Indiana - Legislating Us Into Ignorance; Prosecutors Against Presumption of Innocence

 I have spent most of the past hour on this post. That is after telling myself I must stop letting my temper flare over politics.

However, I can no longer keep my mouth shut about what I see as wrongs in the hope that others see the same wrong. Keeping silent is its immorality; it is a cowardice I need to refuse.

 Forget Dog Whistles (Sheila Kennedy)

In the ten-plus months of this horrific excuse for a federal administration, the racism that powers the MAGA movement has become impossible to ignore or minimize. Trump and his sycophants aren’t even trying to mask their hatreds–they have withdrawn funding from universities and other organizations that engage in even the most modest efforts to level the playing field for minorities; waged war against (their version of) DEI; fired competent Black officials and replaced them with manifestly unqualified White ones; sent masked goons into Blue cities to kidnap Brown people…the list goes on.

Now, several media outlets report that the FBI has officially abandoned what has for years been its top domestic terrorism concern: White nationalism. The agency has cut its ties with two major civil rights watchdogs, yielding to pressure from MAGA influencers and Donald Trump’s FBI Director Kash Patel.

***

What is so depressing is the “in your face” evidence that Americans haven’t come very far since the Civil War, that a significant percentage of White Americans continue to hate and fear people who are different. White Christian Nationalism is, in a number of ways, a continuation of the worst of the Confederacy, and it is still as fundamentally unAmerican as it was then.

Trump and MAGA are tearing down more than the East Wing of the White House. That destruction is symbolic of the arrogance with which they are trying to destroy the very fabric of a nation trying to live up to the principle that all people are created equal. 

I think there is a connection between education and the health of our democracy. Without education, we get tricked about our history; we get fooled about why there is no economic progress. So, who benefits from keeping we the people ignorant. And teaching ignorance is what I saw when reading Our New Diploma Problems by Michael J. Hicks.

Indiana’s largest, and growing, problem is that we send too few young Hoosiers to college. The decade-long decline has been so bad, and so sustained, that we are now graduating and keeping young people beneath the replacement rate of our already dismal educational attainment.

This ensures we will slide toward the bottom of the nation in our share of college graduates by mid-century. That matters for our economy because over the past half-century more than 100% of economic growth accrued to places in the top half of educational attainment. So, if you wish to grow the place where you live — whether it’s a county, city or state — it needs to have better than average educational attainment.

The second problem is that too many young Hoosiers who don’t head to college lack the job skills to obtain meaningful employment that will lift them out of poverty. And, just to be clear, we have an excess supply of young Hoosiers who haven’t been to college.

I’m aware that large employers complain to economic developers and legislators that they struggle to find qualified workers for entry-level jobs. However, taking these complaints seriously is one of the worse examples of selection bias available today.

Employers that need college graduates or applicants with advanced degrees don’t typically complain to legislators. They recruit elsewhere.

That doesn’t mean the new diploma changes are without benefits. The new diploma does increase student exposure outside the classroom. Schools will be charged with finding more internships and developing more hands-on learning opportunities. Few Hoosier adults would find fault with that, except to acknowledge that these changes also come at a steep cost.

To accommodate work outside the classroom, the new diploma requirements reduce academic requirements across the board. In fact, under the new rules, it is now possible to get a high school diploma with mathematics courses that are mostly taught in middle school and have been since the 1920s. Math, science, literacy, history and writing requirements have all been reduced. These are the lowest diploma standards in modern state history.

Does it surprise anyone that Indiana's Prosecuting Attorneys want to take away Hoosier's right to bail in all cases except murder and treason? That they want to copy the federal system where bail is denied to anyone falling into a category termed "dangerous" without looking at the individual; where the bail system becomes another form of incarceration? I was held by the federal government because my non-violent, victimless crime fit into a category for which Congress decided on political grounds the perpetrators would not have the right to bail. I also got no credit time against my sentence for my lack of freedom. So when Jarrod Holtsclaw writes the following in Bail and release reform: Preventative detention as a tool for public safety, there is a healthy dose of BS and misinformation:

At least 22 states and the federal government allow the most dangerous arrestees to be held without bail, and Indiana judges should have that discretion to protect the public in that way. 

 It is not that the arrestees are dangerous; it is their crimes are the ones that the legislature finds politically expedient to keep in jail.

I did a quick and dirty search on Google Scholar, since there has been a change in the case law since I resigned from the Indiana Bar. Here are the results:

 Fry v. State, 990 NE 2d 429 - Ind: Supreme Court 2013 

 A criminal defendant now charged with murder challenges the constitutionality of the statutory provision assigning him the burden of showing he is entitled to bail. After due consideration, today we hold that the burden must be placed upon the State to prove the defendant should be denied bail. Nevertheless, given the facts and circumstances of this particular case we affirm the trial court's decision denying the defendant bail.

***

The right to bail is "a traditional and cherished right." Bozovichar v. State, 230 Ind. 358, 361, 103 N.E.2d 680, 681 (1952). It "prevents the infliction of punishment prior to an adjudication of guilt and permits the unhampered preparation of a defense." Id. Its purpose is therefore not punitive, but instead it guarantees a defendant will be present to stand trial on his charges.^[1] Phillips v. State, 550 N.E.2d 1290, 1294 (Ind.1990). "The right to freedom by bail pending trial is an adjunct to that revered Anglo-Saxon aphorism which holds an accused to be innocent until his guilt is proven beyond a reasonable doubt." Hobbs v. Lindsey, 240 Ind. 74, 79, 162 N.E.2d 85, 88 (1959). "Unless that right is preserved, the presumption of innocence, secured only after centuries of struggle, will lose its meaning." Bozovichar, 230 Ind. at 361, 103 N.E.2d at 681.

That the right to bail is so deeply valued, however, does not mean that it is unqualified. The Indiana Constitution specifically provides that "[o]ffenses, other than murder or treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable, when the proof is evident, or the presumption strong." Ind. Const. art. 1, § 17.^[2] We have thus said that "as a general rule, murder and treason shall not be bailable," except "in either 435*435 one of two cases: 1st. When the proof is not evident; 2d. When the presumption is not strong." Ex parte Jones, 55 Ind. 176, 179 (1876). "In either one of these two separate and distinct cases, the offence shall be bailable." Id.

This qualification was proper because murder is "the most serious charge that can be lodged by this state against an individual and carries with it the possibility of the imposition of a sentence of death, society's harshest penalty," Phillips, 550 N.E.2d at 1294-95, and the purpose of bail would likely be disserved by an unqualified right in such a case. "Given the seriousness of the charge and the severity of the consequences that could potentially attach, the likelihood that an accused person would appear for trial if let to bail is sufficiently doubtful that an initial presumption that no monetary sum could provide an adequate assurance of attendance at trial" is appropriate. Id. at 1295.

We have also long-held that the burden is placed upon the defendant to show that either of those two separate and distinct circumstances exist — i.e., to show that in his murder case the proof is not evident, or the presumption not strong. Bozovichar, 230 Ind. at 366, 103 N.E.2d at 683; see also Ex parte Jones, 55 Ind. at 180; Ex parte Heffren, 27 Ind. 87, 88 (1866). However, the presumption against bail in a murder case — and the defendant's corresponding burden to show otherwise — is only permissible under the Constitution "so long as that person is afforded the type of procedural due process hearing that will guarantee that bail is not denied unreasonably or arbitrarily." Phillips, 550 N.E.2d at 1295.

In 1981, the General Assembly codified this case law into § 35-33-8-2, which states, "(a) Murder is not bailable when the proof is evident or the presumption strong. In all other cases, offenses are bailable. (b) A person charged with murder has the burden of proof that he should be admitted to bail." Ind.Code § 35-33-8-2. Fry challenges subsection (b) of this statute, and, by extension, our prior case law.

***

The State argues that the presumption of innocence is not the only factor at issue in bail decisions, which is quite correct. As we have said, the determination must primarily consider the likelihood that the accused will be present to stand trial and, in some instances, any potential danger to the community. In fact, as the State correctly continues, guilt or innocence is not a factor at all in the bail decision, which is why appellate courts avoid laying out the evidence in opinions reviewing pre-trial denial of bail. Doing so would risk improperly influencing a later trial and jeopardizing the presumption of innocence. Rather, the presumption against bail in a murder case is — as we said in Phillips — based on a presumptive likelihood that one accused of such a crime is unlikely to appear for trial no matter what the monetary consequences.

Nevertheless, we do not find the State's arguments availing. For one thing, we read Article 1, § 17, to grant a right to bail for all offenses "other than murder or treason," and those two crimes "shall not be bailable, when the proof is evident, or 441*441 the presumption strong." Ind. Const. art. 1, § 17. We do not see this in any way other than murder and treason — when the proof is evident, or the presumption strong — being exceptions to the presumptive right to bail. We think it only fair that the party seeking to apply that exception — the State — should be the one required to prove it. Cf. Konigsberg, 164 A.2d at 744 ("The burden should rest on the party relying on the exception. That is the logical and natural rule and the one which conforms with the pervasive presumption of innocence attending all criminal charges.").

Additionally, contrary to the State's argument that guilt or innocence is not at issue in a bail hearing, those matters are very much at issue in a bail hearing where the defendant is accused of murder. In fact, the "proof" and "presumption" that Article 1, § 17, refers to are the "proof" and "presumption" of guilt. What the State is seeking — and what we acknowledge that we have always required — is for a criminal defendant accused of murder (and who is presumed innocent until found guilty beyond a reasonable doubt) to get bail only by carrying the burden of proving that he is probably not guilty. This flies in the face of "the principle that the presumption of innocence abides in the accused for all purposes while awaiting trial." Arthur, 390 So.2d at 719.

Second, in considering whether the State or defendant should carry the burden of proof in these matters, these cases tend to hold that "as a matter of convenience, fairness, and practicality, it is preferable that the state have the burden of coming forward when the accused seeks release on bail. Presumably the state is in a better position to present to the court the evidence upon which it intends to rely." Id. at 720; cf. Simpson, 85 P.3d at 487 ("Indeed, apart from the presumption in favor of bail, the State is in a position superior to that of the accused to produce evidence during a hearing because it already will have presented evidence in the process of charging the person."); Purcell, 268 Ill.Dec. 429, 778 N.E.2d at 700 ("As a practical matter, the State is in a better position to present such evidence during a bail hearing.....

What Indiana's Prosecuting Attorneys want is to undermine, if not dispose of, the presumption of innocence. They do not want to do the work of presenting evidence of a person's guilt. 

And let us read the statute that Indiana's Prosecuting Attorneys and courts need to follow: 

35-33-8-4(b) provides:

(b) Bail may not be set higher than that amount reasonably required to assure the defendant's appearance in court or to assure the physical safety of another person or the community if the court finds by clear and convincing evidence that the defendant poses a risk to the physical safety of another person or the community. In setting and accepting an amount of bail, the judicial officer shall consider the bail guidelines described in section 3.8 of this chapter and take into account all facts relevant to the risk of nonappearance, including:

(1) the length and character of the defendant's residence in the community;

(2) the defendant's employment status and history and the defendant's ability to give bail;

(3) the defendant's family ties and relationships;

(4) the defendant's character, reputation, habits, and mental condition;

(5) the defendant's criminal or juvenile record, insofar as it demonstrates instability and a disdain for the court's authority to bring the defendant to trial;

(6) the defendant's previous record in not responding to court appearances when required or with respect to flight to avoid criminal prosecution;

(7) the nature and gravity of the offense and the potential penalty faced, insofar as these factors are relevant to the risk of nonappearance;

(8) the source of funds or property to be used to post bail or to pay a premium, insofar as it affects the risk of nonappearance;

(9) that the defendant is a foreign national who is unlawfully present in the United States under federal immigration law; and

(10) any other factors, including any evidence of instability and a disdain for authority, which might indicate that the defendant might not recognize and adhere to the authority of the court to bring the defendant to trial.

Where is public safety not protected? Pay attention: "to assure the physical safety of another person or the community if the court finds by clear and convincing evidence that the defendant poses a risk to the physical safety of another person or the community." 

What Indiana Prosecuting Attorneys want to relieve themselves of the work of proving public safety is in danger if a citizen is released on bail. 

Pay attention to what bail is about - attendance at trial for someone presumed innocent. 

I believe DeWees v. State, 180 NE 3d 261 - Ind: Supreme Court 2022 is the case that has twisted the panties of our Prosecuting Attorney.

The General Assembly's recent codification of Criminal Rule 26 and the adoption of evidence-based practices in the administration of bail aim to strike the proper balance between preserving a defendant's pretrial liberty interests and ensuring public safety. But these changes call into question the legal standards governing pretrial release, the level of discretion enjoyed by trial courts, and the standard of review on appeal.

Today, we hold that these statutory reforms enhance, rather than restrict, the broad discretion entrusted to our trial courts when executing bail. What's more, a trial court can and should exercise that discretion to protect against the risk of flight or potential danger to the community. The trial court here did just that. And, so, we affirm its order denying the petitioner's motion for bond reduction or conditional pretrial release. We emphasize, however, that neither our affirmance of judgment nor our grant of transfer affects the trial court's order conditionally releasing the petitioner to pretrial electronic home detention with GPS monitoring.^[1] So, should either party seek modification of the petitioner's conditional release, we remand with instructions for the trial court to conduct a hearing consistent with this opinion.

***

o accomplish its goals, Criminal Rule 26 urges trial courts to use "the results of an evidence-based risk assessment" when determining whether to release a defendant before trial. Ind. Criminal Rule 26. This assessment, "based on empirical data derived through validated criminal justice scientific research," aims to assist a court in evaluating the likelihood of a defendant committing a new criminal offense or failing to appear in court. I.C. § 35-33-8-0.5. Evidence-based practices in the criminal-justice system have shown "considerable promise" in recent years. See Malenchik v. State, 928 N.E.2d 564, 569 (Ind. 2010). Indeed, research indicates that the IRAS-PAT itself "has strong to moderate predictive validity when assessing risk for failure to appear and re-arrest during the pretrial stage." Justice Reinvestment Advisory Council, Report on Bail Reform and Pretrial Issues 2 (2019) [hereinafter JRAC Bail Report].

Despite this progress, Indiana's recent bail-reform initiatives call into question the legal standards governing pretrial release, the level of discretion enjoyed by trial courts, and the standard of review on appeal.

Our decision today aims to resolve these questions. To that end, we begin our discussion with an overview of Indiana's statutory bail regime. See Pt. I, infra. Our analysis here leads us to conclude that Indiana's recent bail-reform measures enhance, rather than restrict, the broad discretion entrusted to our trial courts. See id. Next, we analyze the bail decision here, holding that the trial court did not abuse its discretion by denying DeWees's request for reduction of bond or conditional pretrial release. See Pt. II, infra. Finally, we turn to a brief discussion of Indiana Appellate Rule 65(E), the implications of deviating from that Rule, and the need for appellate courts to exercise prudence and restraint—especially in developing areas of the law like we're presented with today. See Pt. III, infra.

***

Whether in setting bail or modifying bail, a trial court must first consider, among "other relevant factors," the "results of the Indiana pretrial risk assessment system (if available)." I.C. § 35-33-8-3.8(b). If the trial court finds, based on the results of its assessment, that a defendant presents no "substantial risk of flight or danger" to himself or to others, "the court shall," with certain exceptions,^[6] "consider releasing the arrestee without money bail or surety." Id. After considering the IRAS results, "other relevant factors, and bail guidelines described in section 3.8," the "court may admit a defendant to bail" and require the defendant to execute a bail bond, restrict the defendant's activities, place the defendant under supervision, or impose any other "reasonable" conditions on the defendant's release. I.C. § 35-33-8-3.2(a).^[7]

These bail conditions aim to assure the defendant's appearance at future proceedings and "to assure the public's physical safety." Id. See also I.C. § 35-33-8-4(b) (prohibiting the amount of bail to exceed that "reasonably required" to ensure future court appearances "or to assure the physical safety of another person or the community"). This latter goal requires "a showing of clear and convincing evidence that the defendant poses a risk of physical danger to another person or the community." I.C. § 35-33-8-3.2(a). See also I.C. § 35-33-8-4(b) (specifying the same standard of proof).

***

Finally, a trial court may reduce the amount of bail when a defendant presents "evidence of substantial mitigating factors." I.C. § 35-33-8-5(c). These factors, the same as those a court must consider when setting and accepting an amount of bail, must "reasonably" suggest "that the defendant recognizes the court's authority" over 268*268 him or her. Id. (citing I.C. § 35-33-8-4(b)). A trial court may not reduce bail—and in fact may increase bail or revoke bail entirely —if it finds by "clear and convincing" evidence that the defendant "poses a risk to the physical safety of another person or the community." I.C. §§ 35-33-8-5(b)-(d).

Though far from a model of clarity, this statutory scheme imparts considerable judicial flexibility in the execution of bail. What's more, these statutes clearly permit —indeed mandate—a trial court to consider all "relevant factors" when setting or modifying bail. See I.C. § 35-33-8-3.8(a). See also I.C. § 35-33-8-4(b) (directing the court to "consider the bail guidelines described in section 3.8" along with "all facts relevant to the risk of nonappearance); I.C. § 35-33-8-5 (permitting modification of bail "based on the factors set forth in section 4(b)"). This reading comports with the very nature of a bail determination. Indeed, to tailor that decision to the individual offender, the trial court should consider the "widest range of relevant information in reaching an informed decision." See Malenchik, 928 N.E.2d at 574 (quoting Dumas v. State, 803 N.E.2d 1113, 1120-21 (Ind. 2004)).

And what happened in this case to the defendant?

DeWees argues that the trial court abused its discretion by denying her motion for reduction of bail or conditional pretrial release. She insists that the State presented no "objective evidence to support a finding that [she] posed a threat to Mullins or anyone else in the community." Resp. to Trans. at 11. A victim's statement of fear, standing alone, she contends, falls short of the clear-and-convincing standard necessary for the evidence to support such a finding. Id. at 11-12.

The State counters that, while the trial court got it right, the Court of Appeals ignored the standard of review by impermissibly reweighing Mullins' testimony. Pet. to Trans. at 9-10. What's more, the State contends, the panel mistakenly "concluded that there was no evidence DeWees posed a risk to the physical safety of the victim or that she was a flight risk." Id. at 10.

While we consider this a close case, our standard of review prompts us to agree with the State.

In reaching its decision, the trial court acknowledged DeWees's "strong" family ties, her lack of criminal record, and no evidence of past bad character. App. Vol. II, p. 50. The court also cited the "extremely serious" nature of the offense; DeWees's IRAS score and unemployment status; and her potential distance from the community, depending on living arrangements. Id. at 50. These factors, the trial court ultimately concluded, prevented it from saying that DeWees "is not a substantial flight risk" or "that she is not a danger to others." In specifically finding that DeWees posed a risk of physical safety to Mullins, the court relied "[p]rimarily" on his testimony that he lived in fear. Id. at 51.

Where was there any failure in protecting the public? 

How does our current right to bail endanger the public? 

Which threatens public safety - our right to bail or the government's ability to declare wide swathes of offenses unbailable? 

I have written more than enough on this. Hopefully, you will read this and pass it along to other Hoosiers.

sch  

 

 

 

 

 

 

 

 

 

Don DeLillo

Putting together this post on Don DeLillo, I was struck by his age: 88 years old as of the time I write this. Thomas Pynchon is about the same age. And so is Joyce Carol Oates. They were in their mid-twenties when JFK died, and this shows in their writing. Both were a little too old for the hippies, or in the range of those likely to be drafted for Vietnam. I feel so old right now. As if watching the edge of oblivion approaching. I came late to so much of American literature that I want to drag these writers closer to me. Read them while you can, get yourself writing while you are young enough to have time to do good work, make me feel like oblivion is not around the bend.

Where Not to Start with Don DeLillo! Of course, I started in the wrong place. I agree with him on starting with Libra.

Don DeLillo's Libra - this seems a bit on the surrealistic side; a short film with DeLillo narrating from his novel. 

The same fellow reviewing Libra, and although it has now been many years since I read the novel, I think this fellow understood the novel better than I did, and so give him a listen:

A Conversation with Don DeLillo and Jonathan Franzen:

This conversation will be of more interest to any writers finding this post. Franzen goes deep into DeLillo's techniques and purposes of his writing. It is long, but I found it worth my time. YMMV.

Some items that are not videos:

Libra by Don DeLillo (biisbooks)

If you’ve read any DeLillo then you’ll probably know that plot is not his primary driver or something that features that heavily in his books. He’s a writer of ideas and concepts, he likes to explore the boundaries of language; he’s interested in motivation and influence, the swell of mass-thought and how it can be manipulated and stretched. All this is very present in Libra, but it is all spun around a much more conventional plot – perhaps because it is based on real-life events which give specific counterpoints which DeLillo has to touch in with. That being said, there’s still plenty of scope for imaginative exploration and speculation. This makes it one of DeLillo’s easier books to read, or in my opinion at least, because there’s something quite concrete to hang on to. How concrete is a question which I think is very much left to the reader’s own judgement. I am not that familiar with the facts of the events that led to the assassination of Kennedy, I guess I have seen my fair share of media on the subject but all I’ve learned from it is the basics and that there’s a lot of speculation. There’s a lot of speculation in Libra too, but I don’t think DeLillo is presenting a factual case for what he believes happened. Instead he posits an idea and explores it, explores how such a chain of events could result in that terrible day in Dallas. What might cause that chain of events to occur, the minds that might control it, want to bring it about, what they might gain and how Oswald, an outsider, might figure in those designs. How independent was he, how much a product of his upbringing and society, the era and the events and the ideas that were swilling around him? The inescapable clutch of history. It all makes for a fascinating read.

Libra by Don DeLillo (California Review of Books)

After listening to a Library of America podcast arguing that novelist, playwright, screenwriter and essayist Don DeLillo deserves to be awarded a Nobel prize for his body of work, I went to my shelves and pulled Libra from a half dozen DeLillo novels. In my early 30s I read DeLillo in the same immersive way I read Henry Miller, John Steinbeck and Philip Roth — one volume after another. DeLillo puzzled me because his novels present familiar elements that often seem alien. What Delillo does, I realized this time around, is slip the reader into the world inside the world. The world of Libra is that of anti-Castro Cuban exiles, current and former members of the CIA, mob figures who want their piece of Cuba back, John F. Kennedy, and Lee Harvey Oswald, a misguided idealist. This world exists inside the paranoid imaginings of the John Birch Society, the Cold War, and the New Frontier. Undercurrents of America: even in the age of Camelot, the country is deeply divided

DALLAS, ECHOING DOWN THE DECADES (NYTimes review of Libra)

It's in those commonplace moments that Mr. DeLillo reveals his genius. After all, he must have had the same source materials available to anyone else - the Warren Commission report, the usual newspaper articles and court proceedings. But he takes the stale facts and weaves them into something altogether new, largely by means of inventing, with what seems uncanny perception, the interior voice that each character might use to describe his own activities. Here, for instance, is a summary of Jack Ruby's movements just before he killed Oswald - a matter of public record, no doubt, but the passage displays a verve all its own:

''He was running late. If I don't get there in time, it's decreed I wasn't meant to do it. He drove through Dealey Plaza, slightly out of the way, to look at the wreaths again. He talked to [ his dog ] Sheba about was she hungry, did she want her Alpo. He parked in a lot across the street from the Western Union office. He opened the trunk, got out the dog food and a can opener and fixed the dog her meal, which he left on the front seat. He took two thousand dollars out of the moneybag and stuffed it in his pockets because this is how a club owner walks into a room. He put the gun in his right hip pocket. His name was stamped in gold inside his hat.'' At what point exactly does fact drift over into fiction? The book is so seamlessly written that perhaps not even those people who own both upstairs and downstairs copies of the Warren report could say for certain. Oswald's mother, for instance, with her nonstop, plaintive, sometimes unwittingly comic stream of talk, was probably willing to speak to any newsman who poked a microphone in her face; and therefore Mr. DeLillo had merely to transcribe her long-ago monologues. Or did he? Other voices are equally convincing, and yet obviously not all of those could have been taped. ''Jack,'' Jack Ruby's roommate tells him, ''for me to express a facial nature, you know it's hard with words, but I don't think you look so good.'' A young black marine explains his presence in the brig to a cellmate: ''There was a fire to my rack, which they accused me. But in my own mind I could like verbalize it either way. In other way of saying it, the evidence was weak.'' Both of these remarks were uttered in private - not recorded, we have to assume, but created, or at least re-created from hearsay, by a writer with a merciless ear for language.

Mao II & Underworld (Library of America)

Don DeLillo’s Underworld: Trash, Violence, and the Hidden Structures of American Life (CHANDLER JAMES)

At its core, Underworld is a meditation on concealment—on the things hidden or pushed out of sight, both literally and metaphorically. DeLillo takes the notion of trash, an object of societal disdain, and elevates it to a central motif in his examination of American life. In this novel, trash is more than refuse; it’s a reflection of who we are as individuals and as a society. What we throw away, ignore, or neglect reveals the underlying structures of our lives—the hierarchy of values we hold, the transience of our existence, and the things we deem unworthy of preservation.

One of the novel’s greatest strengths is its ability to expose those elements of human experience that often remain in the shadows. DeLillo’s exploration of trash isn’t just about the physical objects we discard. It’s a broader critique of how we treat people, relationships, and even ideas with a similar disregard. The interconnectedness of trash and lives moving through time and space is a recurring theme, reminding us that what society casts aside often holds profound meaning when examined closely.

Don DeLillo’s Underworld – still hits a home run (The Guardian) by Rachel Kushner is long and reflects the writer's passion for the novel. I quote only a fraction.

Underworld is a novel, quite simply, about what was experienced in the United States in the second half of the 20th century. An era shaped by the advent and then cancellation of the Bretton Woods agreement. Nuclear proliferation. The withering away and relocation of American manufacturing, and the rise of global capitalism. Jazz. The Cuban missile crisis (through the voice, as DeLillo has it, of Lenny Bruce). Civil rights. The CIA. Bombs on university campuses. Artists on New York rooftops, and around them, the old industrial framework of bygone city life, something aesthetic and exotic, either marvelled at or ignored. 

***

Some authors go for sweep, others for sentences, and yet Underworld is both. Sentence by sentence, it may have the highest density of great sentences of all DeLillo’s novels, at two or three times as long as the rest. How did he sustain it? I have no idea, and the how is not for me to wonder. The book exists. It raises the bar on what can be done. Its 827 pages are filled with hell-bent ambition, and yet also a deep reserve of uncommon, even egoless humility: DeLillo never insists, never veers into showy knowledge or egregious or paranoid plot. He merely goes to the horizon-line of his furthest understanding, and plumbs his love of, and respect for, the great mysteries inside us, between us, among us. 

Don DeLillo, Underworld (John Pistelli). I never heard of Mr. Pistelli until today, but his essay on Underworld knocked me out. Plenty there to think about besides and beyond the novel itself. And I suggest you read it all. Just go there now. If you balk at following the link, consider the following:

 For Underworld is, first of all, in the high tradition of the American novel, which, as umpteenth observers from Nathaniel Hawthorne forward have told us, has never been a novel at all, not a sober realist social survey, but a weird symbolic prose-poem, an inward voyage projected out onto the national landscape. Underworld places itself in this tradition with its first sentence: “He speaks in your voice, American, and there’s a shine in his eye that’s halfway hopeful.” The first thing to say about this sentence is that it pays tribute to two sentences from the Great American Novels of the early 1950s, the period when Underworld begins: the first sentence of Bellow’s Adventures of Augie March (“I am an American, Chicago born”) and the last sentence of Ellison’s Invisible Man (“Who knows but that, on the lower frequencies, I speak for you?”). The second thing to say is that, like a line of poetry, the sentence admits of two readings, with “American” as either a noun, which makes the sentence a direct address to the American reader, or an adjective modifying “voice,” declaring a national origin and destiny for the novel’s style. So this is an American romance, and you have to read it like a poem; and, as in Bellow’s and Ellison’s novels, or Faulkner’s and Melville’s before them, the sensibility and suffering that emerges is less the sojourning protagonists’ and more that of the organizing and presiding consciousness. As in a book of poems or in a long poem, it’s the poet you get to know best, and not for nothing does Underworld, in its final one-word sentence, echo no novel at all but the century’s most famous poem, The Waste Land. “Shantih shantih shantih,” Eliot chants in Sanskrit, which DeLillo puts into plain American: “Peace.”

[I went ahead and subscribed to his Grand Hotel Abyss on Substack and his YouTube page.]

Hopefully, I have left you with enough reasons to read DeLillo.

sch 10/9

A lecture and interview with DeLillo about Underworld:

 I have become more and more convinced that the point (well, the point relevant to me) I missed about DeLillo is finding the extraordinary in the ordinary.

sch 10/17 

Power Corrupts; Roman Collapses;

 I have been trying to avoid politics, putting the effort into my writing, but this is too much to avoid: Indiana Pastor’s Son, Connected to Church with GOP Leaders, Charged in Child-Exploitation Case. It is also something I cannot help, but post here. Time has come for a change. Privilege breeds arrogance. “Power corrupts, and absolute power corrupts absolutely.” Indiana has given much too much power to the Republicans.

The Intellectualist (Substack) provided the story above.

The Intellectualist Substack delivers fact-based analysis and thoughtful commentary focused on defending democracy and fostering informed public discourse. At a time when truth and civic engagement are under threat, it serves as a vital platform.

Rory Stewart and Mary Beard on Power and Politics:

Why Did The Roman Empire Collapse? With Mary Beard:

Prunus Alleghaniensis - Grist Christina Craigo

Jodie Foster & Robert Downey Jr. | Actors on Actors: two great talents talking to one another.

History - Semit people, Caravaggio (one of my favorite painters); the Dutch Libel, General Schofield, and Christopher Marlowe, Julius Caesar by way of Mary Beard.

Did the Irish really save civilization (it being 25 years since I read the book, I cannot remember well enough to criticize the criticism)

Silliness (I do find the presenter for Casually Comics is a hoot, so into what she is doing that even if I am not so interested before, I am at the end.)

Let us see what was today - church, grocery shopping, dropping off a box of clothes to CC, then back to here. I fixed an early dinner while I worked on revising “Blue Eyes Flashing Doom” into “A Heart’s Judgment Judged”. That took hours. Then I went onto finding places for submitting my pieces. You can see how long that took by the number of videos above - they played in the background.

 “A Heart’s Judgment Judged” went to Boulevard Short Fiction Contest and Hudson Review. “Agnes” went to Thin Air. “Thomas Kemp Went Missing” to Underside Stories. 

A lot of time spent with little output. 

Tomorrow, revise another story, and another list of possible outlets for submissions. A political meeting tomorrow night. If I get the revisions and submissions done, a movie tomorrow night. Or Tuesday.

sch

The Civil War, jerry Lee Lewis, Spooky Stuff & Other Recent Videos From YouTube

 From The Feral Historian - Rollerball, Red Son, Childhood's End:

I got to see Mindhunter at Fort Dix. Thought it was good. YouTube popped out this video: The Real Serial Killers Behind Mindhunter – True Crime Psychology. It was interesting to know the background of the show's subjects, and just as creepy listening to the video. I have no intention of listening to the subsequent videos.

A reminder that literary fame may come long after the author's death:

Peter Weller teaches a film class:

It has been about 12 years since I read George R.R. Martin, and less than that since I saw the last episode of Game of Thrones (like Mindhunter, this was bootlegged into our unit building by way of cell phones in the hands of inmates), and I have found these videos telling me how much I either forgot or did not notice (I remain interested in the novels for Martin's plotting; like everyone else I am still waiting to see how he paints himself out of his corner.)

Colbert on Trump Trashing the White House:

Oysters and New York City - just a feel good story:

Avoiding WW3 from Sarah Paine (a military historian who is eminently worth listening to):

The G.A.R. its role in history and about the re-writing of Civil War history; my mother's mother's mother was connected to the Versailles G.A.R. in a way I cannot recall correctly:

No understanding Jerry Lee Lewis:

I thought this video on Native American folklore might be of some help with “Chasing Ashes”. It was not. YMMV.

The Night Indiana Saw a Flying Monster - The 1891 Crawfordsville Mystery - okay, Halloween is coming up.

Enjoy!

sch 10/25

The Beating Heart of 1984

I read 1984 during my senior high school English class; we read Aldous Huxley's Brave New World in class. I argued with my teacher that 1984 was better - it was certainly scarier. While in prison, I re-read Huxley, this did not change my opinion. If anything, reading it again and reading a few more Huxley's books, reinforced my opinion that Huxley satirized his own society and gave us an image of its decadence, but that Orwell wrote jeremiad. This morning, I am thinking that Orwell showed us the ugliness in human nature, while Huxley showed us our stupidity.

The original draft of this post follows. 

sch 10/17 

 

 Discussing George Orwell by way of Anthony Burgess:

The Feral Historian's take on 1984 and the politics of language:

How Orwell Helps Us Remember Truth (The Bulwark)

The importance of being Bering (The Article) - oh, the examples of politicizing history abound.

Scholar says Trump’s efforts to reframe U.S. history is ‘reminiscent of McCarthyism’ (PBS News)

Amna Nawaz:

So the president complained online that the Smithsonian focused on how horrible the country is, in his words, how bad slavery was.

He also said this as part of that post. He said: "The museums don't focus enough on the success and on the brightness and on the future."

As someone who studies history and looks at this intently, what do you make of those concerns?

Peniel Joseph:

Well, Amna, this is really part of an ongoing narrative war that we have had in American history between those who are supporters of Reconstruction, multiracial democracy, and then redemptionists who are supporters of the racial status quo that existed long in this country, both during slavery and then during the period of Jim Crow after.

So when we think about what the president is saying, what he's saying is that the real unvarnished truth about American history hurts too much for all of us to understand and to know and to learn lessons from those truths. And that diminishes our democracy.

It diminishes American history and it diminishes the postwar American order that has really created the most effective multiracial democracy in American history. And that history is both a tragic history, but it's also a triumphant history.

And as somebody who's been a huge attendee at the Smithsonian since I was a boy, that history is always told in a very balanced way, where we talk about the evolution of American democracy, not just slavery and racial segregation, but also the civil rights movement and the suffrage movement and the women's movement and LGBTQIA, how queer folks transformed this country, the disability rights movement, immigrants.

Rewriting American history (International Bar Association)

How House Republicans plan to rewrite history of Jan. 6 (POLITICO)

sch 10/9

 

I like listening to The Feral Historian, and he has something to say about 1984:

 

 sch 10/17

Reporting In

 Yesterday, I made it to the group session and to the bank to set up an investment and had CC over for her dinner.

The group was another chat fest of a weekly check in. However, I was given a questionnaire. I will not repeat the questions here; there are both embarrassing and not for immature eyes. Suffice it to say, they're not bearing on me and my past, and that leaves me thinking someone, somewhere, is exercising their perversions on others. CC read some of them and found them silly - a slightly edited response.

She finished off the quiche Lorraine that I had bought on Thursday, and read more of “One Dead Blonde”. I had her home around 7 pm.

I came back, tried to some more work on the prison journal, and wound up watching Ava on Tubi.

I got this in my email, a purported response from Senator Young to an email sent about the federal shutdown:

     Thank you for contacting me on October 21, 2025.  I appreciate hearing from you.

          Constituent correspondence allows me to hear directly from you and helps me better represent the various views and priorities of millions of Hoosiers.  As I have done during my time in the Senate, I will continue to advance policies that address our fiscal challenges, incentivize private investment in innovation, streamline inefficiencies, and promote our national security, while simultaneously making government more responsive to the American people.  From border security to threats from China on multiple fronts to our ballooning national debt, many pressing challenges face our nation.  I look forward to working with my Senate colleagues in the 119th Congress to tackle these issues, advance American interests, and advocate for Hoosier priorities.

          For more information about my legislative priorities, I encourage you to visit my website: young.senate.gov/priorities.  Additionally, to stay up-to-date on the work I am doing on behalf of Hoosiers, please sign up for my weekly newsletter: young.senate.gov/newsletter. 

          Please be assured I will keep your thoughts in mind should legislation on this issue come before the full Senate for consideration.

          Again, thank you for contacting me.  It is an honor to represent you in the United States Senate.

From Brian Howey: The week America turned authoritarian, which goes well with this letter from Senator Young. 

Can You Be Serious and Seriously Glamorous? Zadie Smith Asks (Vogue); it's Zadie Smith, and I am in awe of her.

‘Everyone seems to be on Zimmers’: after 70 years of hip-shaking thrills, is rock’n’roll dead? (The Guardian)

After all, as Chuck Berry noted, rock’n’roll’s not hard: it’s got a backbeat, you can’t lose it, any old time you choose it.

But what are Zimmers? 

Hedda movie review & film summary (2025) (Roger Ebert) - seems like an interesting idea gone awry.

Hedda review – Ibsen meets Downton Abbey in Nia DaCosta’s exotic rendering of classic play (The Guardian)

This is a movie whose absurdities need to be indulged, and there’s a great deal of slightly baffling business about the manuscript of Eileen’s forthcoming dazzling magnum opus whose title and contents aren’t specified. It unfolds in a counter-historical context of ethnic diversity, though unlike TV’s Bridgerton the fact of racial difference and racial prejudice is explicitly remarked on. Hedda discloses a crazy world of hedonism and gossip; more Hopper than Gabler.

Fallen stars: why are Hollywood A-listers flopping at the box office? | Movies (The Guardian) - or movies are all going awry?

10/25:

Wow: Typepad died. Just learned this. 

Maher in the morning - sense, even if he is still a little smarmy. I do not think the video is still available.

 No Ordinary Word rejected: 

Unfortunately, your submission to shortstory.substack.com was not picked as the July winner. That being said, please feel free to submit for the coming months as submissions are rolling throughout the year. 

Remember, a rejection this month doesn't mean a rejection in future months.

Thanks, 

Mike

 

 

As I said, a word of warning and a call to action from Uncle Lou, which goes well with Brian Howey's commentary above:

 

 I made it out to the apartment, only to get my Coke Zero out of the car. I think I will do something crazy - going to see a movie tonight, a late show of Blue Moon. If I can stay awake that long! Right now, my resolve is fading fast, along with my eyes. But I will go see Good Fortune tomorrow, after church.

I fixed a pork loin, of which I am both impressed and underwhelmed. Maybe it was baked a little too long; maybe I was hoping for more from the apple cider.

The batch of prison journal entries that I have been working on and off for the past few weeks has been finished. They will be published here next month.

I also did some research on the Versailles lynching; that will be published at the end of next month.

And that has been Friday and Saturday. I am trying to avoid the political stuff - I want to get into my fiction, and all that Donald J. Trump does for me is make me wonder if this country is as childish and malicious and destructive as he is.

Yeah, skipping the movie.

sch

 

Breeding Stupid People

 Yesterday, I drove through the Ball State University campus. In front of Emens Auditorium appeared to be a display of AI for students. But nothing about it on The Daily Student site.

 That I do not think this is a good idea may be due to me being an old curmudgeonly Luddite, but turns out my intuition has support in research.

Are we living in a golden age of stupidity? (Sophie McBain, The Guardian)

With some MIT colleagues, Kosmyna set up an experiment that used an electroencephalogram to monitor people’s brain activity while they wrote essays, either with no digital assistance, or with the help of an internet search engine, or ChatGPT. She found that the more external help participants had, the lower their level of brain connectivity, so those who used ChatGPT to write showed significantly less activity in the brain networks associated with cognitive processing, attention and creativity.

In other words, whatever the people using ChatGPT felt was going on inside their brains, the scans showed there wasn’t much happening up there.

The study’s participants, who were all enrolled at MIT or nearby universities, were asked, right after they had handed in their work, if they could recall what they had written. “Barely anyone in the ChatGPT group could give a quote,” Kosmyna says. “That was concerning, because you just wrote it and you do not remember anything.”

Yeah.... I wish I could forget some of the things I've written, I might not spend so much time revising those words.  

A caution, or two, in the following; one about the experiment and one about human beings:

The experiment was small (54 participants) and has not yet been peer reviewed. In June, however, Kosmyna posted it online, thinking other researchers might find it interesting, and then she went about her day, unaware that she had just created an international media frenzy.

Alongside the journalist requests, she received more than 4,000 emails from around the world, many from stressed-out teachers who feel their students aren’t learning properly because they are using ChatGPT to do their homework. They worry AI is creating a generation who can produce passable work but don’t have any usable knowledge or understanding of the material.

The fundamental issue, Kosmyna says, is that as soon as a technology becomes available that makes our lives easier, we’re evolutionarily primed to use it. “Our brains love shortcuts, it’s in our nature. But your brain needs friction to learn. It needs to have a challenge.”

 My mind stuck on this paragraph, too:

One issue is that our digital devices have not been designed to help us think more efficiently and clearly; almost everything we encounter online has been designed to capture and monetise our attention. Each time you reach for your phone with the intention of completing a simple, discrete, potentially self-improving task, such as checking the news, your primitive hunter-gatherer brain confronts a multibillion-pound tech industry devoted to throwing you off course and holding your attention, no matter what. To extend Christodoulou ’s metaphor, in the same way that one feature of an obesogenic society are food deserts – whole neighbourhoods in which you cannot buy a healthy meal – large parts of the internet are information deserts, in which the only available brain food is junk.

Perhaps it is past time to rethink the purpose of technology - not to make money, but to improve our lives. That will upset the tech lords and their finance bros - not the bright idea that will bring in the short-term dollars. I have no idea what this kind of tech would be; I am too old, too bound to other things, for such things.

More cautions:

Michael Gerlich, head of the Centre for Strategic Corporate Foresight and Sustainability at SBS Swiss Business School, began studying the impact of generative AI on critical thinking because he noticed the quality of classroom discussions decline. Sometimes he’d set his students a group exercise, and rather than talk to one another they continued to sit in silence, consulting their laptops. He spoke to other lecturers, who had noticed something similar. Gerlich recently conducted a study, involving 666 people of various ages, and found those who used AI more frequently scored lower on critical thinking. (As he notes, to date his work only provides evidence for a correlation between the two: it’s possible that people with lower critical thinking abilities are more likely to trust AI, for example.)

But if you have low critical thinking abilities, what are you doing in college?

If you cannot imagine a different purpose for tech any more than I can, then what about proving future tech does not have detrimental side effects? The following gives a good argument for such a process:

Until the pandemic, many teachers were “rightly sceptical” about the benefits of introducing more technology into the classroom, Faith Boninger, a researcher at the University of Colorado, observes, but when lockdowns forced schools to go online, a new normal was created, and ed tech platforms such as Google Workspace for Education, Kahoot! and Zearn became ubiquitous. With the spread of generative AI came new promises that it could revolutionise education and usher in an era of personalised student learning, while also reducing the workload for teachers. But almost all the research that has found benefits to introducing tech in classrooms is funded by the ed-tech industry, and most large-scale independent research has found that screen time gets in the way of achievement. A global OECD study found, for instance, that the more students use tech in schools, the worse their results. “There is simply no independent evidence at scale for the effectiveness of these tools … in essence what is happening with these technologies is we’re experimenting on children,” says Wayne Holmes, a professor of critical studies of artificial intelligence and education at University College London. “Most sensible people would not go into a bar and meet somebody who says, ‘Hey, I’ve got this new drug. It’s really good for you’ – and just use it. Generally, we expect our medicines to be rigorously tested, we expect them to be prescribed to us by professionals. But suddenly when we’re talking about ed tech, which apparently is very beneficial for children’s developing brains, we don’t need to do that.” 

AI, smartphones, even the internet that I am using right now, are dangerous. Their threat to civil society has become clearer as the years go by. We impose safety requirements on automobiles - especially as we come to understand their dangers - so why not other products of our technological society?

sch 9:13 AM