Books I Love: The Worm Ouroboros

Eric R. Eddison’s “The Worm Ouroboros” is truly a sentimental favorite for me (which is why I own two copies.)IMG_2754

I had heard about it for years before I picked it up. Eddison is mostly forgotten today, and not without reason. His prose is dense and deliberately archaic, often dwelling for long stretches on the minutia of decor or weapons, but his work is absolutely fascinating nonetheless. A scholar of the Norse sagas and an admirer of Homer, it draws in equal parts from the greatest of ancient literature and from his own childhood imagination.

That’s no exaggeration or hyperbole, Eddison’s childhood drawings in sketchbooks from the 1890’s still exist, preserved at the Bodleian Library in England. Amazingly, they depict many of the same characters that later appeared in this book–as conceived by a 10 year old.

This is a deeply flawed, but beloved masterpiece. The scope and the themes are epic on a Tolkien-like scale, but it’s all done with absurdly childish names that the adult Eddison, upon sitting down to write his tale as an author, apparently couldn’t bring himself to change. The heroes hail from “Demonland” and the villains from “Witchland” although neither are demons or witches. Lords Juss and Spitfire fight alongside Brandoch Daha and Goldry Bluszco. Unlike Tolkien (who this book predates by decades) there is no consistent nomenclature, nor even an attempt at invented languages or history. There is a peculiar “framing device” that begins the book and is never re-visited, weirdly setting the entire story on Mercury, but having no relationship to the actual planet.

Despite all of that, or maybe because of it, this novel is uniquely confounding and unlike any other work of fantasy, before or since.


Film Friday: The “other” Scorsese Oscar Nomination

Last week I looked at how heavily influenced Joker was by Scorsese’s early work (Taxi Driver and especially The King of Comedy) as well as how peculiar it is that he’s nominated for several awards in his own right, only to go up against work he directly inspired.


So this week, I’ll turn to the other side of the coin, his own entry into this year’s Oscar discussion: The Irishman.

I wanted to love this movie. It looked like all the ingredients were there for Scorsese to make the crowning achievement of his career:

-A cast of gangster movie all-stars: DeNiro, Pesci, Pacino and Keitel, joined by a roster of other talent, Anna Paquin, Jesse Plemmons, Stephen Graham.

-A based-on-true-events story, involving politics, corruption, murder, mobsters, etc.

-As much money as Netflix could throw at him.

What could go wrong?

Well, I’m still not 100% sure. I just know something did (or maybe a few somethings, actually.) What I can say though, is that I didn’t feel this film delivered. All I can do is jot down the things that I felt didn’t work, and maybe a picture will come together.


This film is long. Is it heresy to say “too long”? I wouldn’t have dared to question before watching it. Trust Scorsese, right? He’s the master. He knows what he’s doing. Plus, he’s got Thelma Schoonmaker there in the editing room, as always. And when have they ever steered us wrong?

Except maybe now. Because the length isn’t exactly the problem, or at least not the main problem. Yes, many scenes drag on a little too long, and there are plenty of places that probably could (and should) have been cut. Did we need to see DeNiro get on the private plane, sit down while the pilot does a pre-flight check, take off and then see the same plane coming in for a landing, land and have him get out? Probably not.

But I think that sequence represents the real problem with the length here. The whole series of shots should be hugely tense. DeNiro’s Frank Sheeran is heading off to betray and murder his old friend. It should be the darkest, most weighty section of the movie. Everything has been building to this moment. But nothing about any of it really packs an emotional punch. Even later, when Hoffa gets in the car–only because Sheeran is there–it should be gut-wrenching. This guy is putting his trust and his life in Sheeran’s hands–he evens asks if he’s armed, for his own safety–and all the while Sheeran (and us) know he’s about to kill him.

It’s almost as if Scorsese thought that just the length alone was sufficient to strike the right emotional note. That by extending the moment the obvious tension would just naturally emerge from the circumstances. Except it doesn’t. Whether because DeNiro is playing Sheeran as a stoic, who betrays no emotion, or because Scorsese doesn’t frame the shots to amp up the anxiety (we keep cutting to long shots of the car and the house, etc.), or the editing doesn’t quicken the pulse of the scene at all.

It’s long, yes. But what really failed for me was all of that.


A lot has been said/written about the technology to de-age actors. The way I see it, there are two problems with it right now that no amount of Netflix’s money can apparently fix.

One, removing wrinkles and age spots is fine. That actually does work to smooth out the skin and sort of wipe away some years. What it doesn’t do is change the shape of the face. It might work if we didn’t all have such a clear recollection of what these guys actually looked like at 30 or 40 years old, but we do, and the comparison is not good.

DeNiro’s face at 40 was thinner and more angular than it is now. 30 plus years have added some weight, and softened some edges. Just removing the wrinkles makes him look like an old man in makeup, not a young guy.

The tech might get better on that. Some guy with at-home deep fake software apparently already did an upgrade. But the second issue is worse, and harder to fix: the bodies. No amount of de-aging can make a 70 year old DeNiro as slim or agile as he was 30 or 40. Even if the de-aged face had been perfect, it would still have been perched on a body that is clearly not that of a young, or even middle aged man. Short of some kind of ultra photo-realistic CGI or Andy Serkis type motion capture here, I don’t know how you correct that.

Maybe you use other actors to do full body or long shots, and then use the software to put the de-aged faces on them. The problem there is, you’re watering down the performance, now half of what you’re seeing is some other actor’s choices for positioning, movement and every other physical aspect of the role. Acting is more than delivering lines. In film especially, it’s the whole person giving the performance. Every gesture matters.

Details, Details

You don’t have to be from the same place as the guy you’re playing, as long as you do the homework to get the details right. Stephen Graham is from the UK, but did a fine job as Tony Pro, who was from New Jersey (I say that as an Italian American from the Garden State myself). Or Compare Pesci’s accent in Goodfellas to his accent in Casino. The first is a classic NYC, the second is a very affected Chicago-land. Totally different. Again, in this movie, he’s spot-on.

So how hard would it have been for Sebastian Maniscalco, who I generally like, to make one or two tweaks to his accent to pull off Crazy Joe Gallo? The guy was from New York, you’re from Chicago. Make the effort. It was especially noticeable in the testimony scene. Gallo famously joked about the carpet. Except the real guy said something like “Kah-pit.” Maniscalco went full on “Da-Bears” and said “Kaer-pet.”

One of the things Scorsese has always nailed are those little details. I mean, Daniel Day Lewis basically reconstructed a mid-nineteenth century New York accent that no one in living memory can attest to, just for the sake of authenticity. I feel like Scorsese 25 years ago would’ve stopped Maniscalco, and had him deliver the line correctly.


Ultimately, I think the Irishman rests on one thing: it’s a story told through Frank Sheeran’s point of view. You have to care about him on some level in order for it to work. That doesn’t mean you have to like him. Anti-heroes are fine, and can be really bad guys, as long as the audience cares about them on some level.

Frank Sheeran is a cold, absentee father. He’s capable of great violence and straight-faced, almost sociopathic deceit. That’s a tough character to bring to an audience. If you do it right, there’s the potential for huge pathos there. This is a guy who should have spent his entire life wrestling with issues of conscience, haunted by the consequences of his actions. He should be struggling to pay the wages of sin. He should be a living lesson in the way violence and lies can bring money and power, but ultimately poison your personal relationships.

But he wasn’t any of those things, at least to me. The problem with the Irishman for me begins and ends here. Frank Sheeran needed to do more than tell us what happened. He had to bring the audience behind the curtain, not just to let us see what he saw, but to make us feel what he felt. Otherwise, we end up just watching a bad guy do bad things without apparently feeling much of anything about any of it.

And that, sadly, is how I felt when it was all over.


Reservoir (Old) Dogs

reservoirReservoir Dogs is a movie I have a particular, sentimental attachment to–but the reason behind it requires a brief story.

Back in 1992 I was in college at Boston University. I had started out two years earlier as a journalism major, but was in the process of switching to broadcasting & film. From a very young age, I always knew I wanted to write–which is how I landed in that program to begin with–but after several semesters, the dry and disciplined approach of print journalism left me feeling kind of empty.

I wanted to let the words run wild. I wanted to write fiction. The problem was, having “novelist” as a career goal is kind of a long-shot, to say the least. Even now, with several books to my name, I still don’t do it full time. It’s a very tough nut to crack.

Still, that’s what I wanted to do, and while journalism didn’t feel like it fit the bill, “Film and TV” seemed liked it offered a better outlet. There, at least, you could write fiction professionally, but with the promise of an actual paying job. BU happened to have a fairly well regarded Film school at the time. It wasn’t NYU or USC, but we took it seriously. We knew we weren’t first tier, but we liked to imagine we were a solid second tier school.

Diving into film studies opened up all kinds of windows I had never even known about before. I immersed myself in classes about classic film noir, Italian neo-realism and a host of other genres. One of my favorite classes though, and the one that sticks with me to this day, was on French New Wave Cinema.

The class was taught by a guy who became my favorite professor, Gerry Peary. He was a life-long film buff and an accomplished writer. He taught me a ton about movies, about writing and about life in general (when my first novel came out years later, he was one of the people I sent a copy to–with a thank you note).

Gerry was a regular on the festival circuit, and that year he discovered a film by an unheard-of young director that did something very few movies (then or now) did much of: it paid homage to the French New Wave tradition. It had just played at the Boston Film Festival to great acclaim (and a little controversy). Given how rare this was, Gerry invited the brash, wunderkind director to come meet our class. His name was Quentin Tarantino.

At the time, no one had heard of him. He showed up that day entirely unheralded, in a black leather jacket and jeans, introduced to us as just some kid a few years older than we were, who had made a curious little movie. I remember being mesmerized by him, as he talked to us about cinema virtually non-stop for the entire class.

It wasn’t just French film either. He took the age old Truffaut v. Godard argument and spun it into a discussion about Elvis v. the Beatles, Buster Keaton v. Charlie Chaplin, and a host of other things. His knowledge of film history was encyclopedic and his recall was instantaneous. His enthusiasm was infectious and his cadence was frenetic.

I’ll never be able to prove this–so you’ll just have to take my word for it–but when it was over and we shook his hand I turned to my roommate at the time and said “I think we may have just met the next Scorsese.”

Reservoir Dogs hit the theaters soon after. I went out and saw it 5 times.

Now that movie is nearly 30 years old and Tarantino is Hollywood royalty. So when James Corden brought back Mr. Pink and Mr. Orange recently (Steve Buscemi & Tim Roth, of course) it was great to see them poking a little fun at this seminal work from back then.

Although Tarantino inspired me to deepen a life-long love of cinema (and to make some of my own little movies back then) I never did become a real filmmaker. Eventually, I found my way back to where I always wanted to be, and where I always belonged anyway: writing.

I still love Reservoir Dogs though. Not only is it a great film, it’s maybe one of the most impressive directorial debuts of all time. The fact that I have a tiny little personal connection to it only makes me love it more, especially as the memory of that long-ago conversation grows older and grayer, just like all of us.

So in that spirit, enjoy this tribute, in which James Corden (clearly a big fan in his own right) brings back Misters Pink and Orange to imagine how Mr. Blonde might have done things with a slightly different soundtrack.

Film Friday: Scorsese v. Scorsese

jokerThe Oscar nominees were announced earlier this week. One of the things I usually try to do every January is to catch (at least) each Best Picture candidate. Given the roster we have, I’ve already had the chance to see the Irishman, Joker and Once Upon a Time in Hollywood, which obviously leaves me with some work to do.

So for the restoscars of Awards season, in the month between now and the ceremony itself (February 9, if you’re marking your calendars) I’ll be spotlighting one or two of my favorite nominees each week, along with a look at the prominent snubs that are always a hot topic around this time of year. In case you missed it the other day, the complete list of nominees is here: Oscar Nominations

JOKER: Scorsese vs. Scorsese 

The first thing that jumps out at me about this year’s slate (given what I’ve seen so far) is that we have a peculiar, but absolutely fascinating situation–a master working at the highest level, whose new film is up against one that takes inspiration almost entirely from his earlier work. Scorsese vs. himself, in other words.

A lot has been written about how much Joker owes to Taxi Driver, and that’s all right on the money. The films share a lot. A gritty, late 70’s/early 80’s urban squalor setting. A disturbed loner, teetering on the brink of sanity. Robert De Niro.

But these things are all just as true about another of Scorsese’s earlier films, and maybe more so: The King of Comedy. That’s the movie I think the Joker is actually paying homage to in the most direct fashion, and it happens to be one that people in general are far less familiar with than Taxi Driver.

In broad strokes, the same elements are there: garbage-choked streets lost in some kind of post- Jimmy Carter/malaise-era dysfunction, another disturbed loner, etc. Where Taxi Driver was a study of a man losing his grip though, King of Comedy is about a guy who never quite had a grip, a guy who is openly delusional, but not nearly as dangerous as Travis Bickle.

Take this plot summary for example: A lonely, unaccomplished man-child drifting out of youth toward middle age, lives with his mother in a crime-ridden major city in the early 80’s. He idolizes the Johnny Carson-esque host of a late night talk show, and dreams about becoming a stand up comic himself, even going so far as to act out his own imaginary interviews. Unable to make a name for himself through normal avenues, he hatches a plot to get famous (or infamous) by committing a crime that lands him a moment in the spotlight–a bizarre guest shot on that very same late night talk show. He also has a penchant for loud, almost clownish looking suits.

Which movie is that?

Spoiler alert: it’s both. The Joker and the King of Comedy. The two are that closely linked. As an even deeper connection, King of Comedy starred Robert De Niro as the aspiring comic, Rupert Pupkin. Joker, nearly forty years later, casts Joaquin Phoenix as the comic, but has the now-70-something De Niro as the late night host.

So everything comes full circle.

The Joker does owe a lot to Taxi Driver, without a doubt. But if you really want to get the “full effect” — the movie to see side by side with it is The King of Comedy.








Crisis on Infinite Earths: The Day After

crisisThe big CW Arrowverse Crossover “Crisis on Infinite Earths” concluded last night, and as a long-time comic book fan from way back in the 80’s, when these things were first published, I was of course glued to my TV for all 5 hours.

Here are some of my “day after” thoughts, in no particular order.

Merging Earth 1 & Earth 38

This needed to happen, but I have to wonder a few things in the wake of the big event.

  • Why did only 1 & 38 fully merge? Apparently a whole host of other Earths were restored afterwards. We need a compelling explanation for why only these two realities were permanently fused. Or did I miss this?
  • Thank the stars they did, at least, revive the other realities. The notion that they would go so far in acknowledging the various live action DC properties and then pretend to erase them was one of my biggest worries. Good job in bringing them all back.
  • How is Brainy still at the DEO?

If he was originally a time traveler from the Legion of Super Heroes, which existed in the 31st century of Earth 38’s universe, and that reality has been fused to Earth 1 back in the 21st century, then how did the future of Earth 38 ever exist?

  • For that matter, how much (if any) of the events that took place on Earth 38 that we’ve seen so far remain “canon”? The one line about Lena suggests that all the drama of the last few seasons between her and Kara never happened, at least in “new” Lena’s mind. So does that stuff get erased, and we start fresh, or does it somehow get revived?

Brandon Routh/Kingdom Come

If I could have one wish granted by the gods of the Arrowverse, any wish at all, it would be to do something more substantial with Earth 96. We have now been told that this reality is one and the same with the world of Christopher Reeve’s original movies, carried forward by the Brandon Routh “sequel” and now existing in the 21st century with a graying, late-middle aged Superman.

Sadly, Margot Kidder is gone in real life, but in the continuity of the Kingdom Come stories, Superman is grappling with the grief over the death of Lois. It’s a story with emotional depth that should be told. One of the things that makes Superman hard to pull off is that he’s become over-powered. How do you tell a compelling story about a guy who has only one or two true weaknesses (without going back to the green stuff or the red sun thing every single week)? Well, one approach is that you make him vulnerable in other ways. You wound him emotionally, rather than physically, and explore how that affects him long term. Add to that the fact that this a character we fans have been invested in for forty-some years now, and you have a recipe for a great show.

No offense to the upcoming Superman + Wife & Kids show we’re apparently about to get, but I’d much rather see a show about a damaged, grieving Superman trying to carry on, in a world with free reign to bring in different versions of Wonder Woman, Batman, Lantern, etc.

Oliver Queen=The Spectre … or maybe not

I didn’t like the idea of turning Ollie into the Spectre. The Spectre is a long-standing, uber-powerful figure within the DC multiverse. He was integral to the Crisis events, so it was fitting to bring him in. But I think you have to fully commit or don’t do it at all. The show tried to have it both ways, and that didn’t work for me.

The thing is, if you’re going to go down that road, go all the way. If Ollie “became” the Spectre, then play out all the consequences of that change. Maybe you can’t quite do the whole original costume thing, given he was basically a half-naked guy in a green speedo with a hood (honestly though, you probably could have done a little better than a pale-faced, voice-modulated Ollie). In a larger sense though, run with it as a long-term story choice: Ollie isn’t dead, but he isn’t really Ollie anymore. He’s there, but he’s not. Permanently removed from normal life, but a part of him still existing, in a new way, in perpetuity. That is somehow more tragic than him just dying (which the Spectre, by definition, can’t do—you know…again). His friends mourn him, rightly so because he’s no longer with them, but it’s even harder in a way because at the same time, he’s never truly gone.

Unless the show is planning some other path forward at this point, I think they missed the boat here. Oliver should now be eternal, yet distant and ethereal. Not dead and gone. Make him the Spectre, or don’t. The show tried to have it both ways: make him the Spectre, but just long enough to perform his heroic send off. It felt like a cheap cop out to me.


This part I loved. A full-fledged, permanent super team is long overdue.

If I could have it my way, no more annual universe-hopping cross overs. From now on, I would do two smaller cross-overs per season. One two-parter or maybe a three episode thing in the fall, and one in the spring—both centered around a large threat that causes a full gathering of the JLA (or Superfriends if we have to call them that for legal reasons).

In that spirit, use these smaller events to audition more heroes. Bring us a Green Lantern (maybe Diggle?) – He could plausibly be off guarding all of Sector 2814 the rest of the time, but he’d pop in for the twice-a-season events. Find some way to bring back Hawkman or Hawkgirl from those early Legends seasons. Or introduce a new one, again he or she could be busy on Thanagar most of the time, but ready to appear when the League called.

As long as I’m dreaming wildly, and because we got a moment with Ezra Miller that establishes the existence of the DCEU, then how crazy would it be to have Jason Momoa or Gal Gadot do a guest shot? Maybe versions of them exist on Earth Prime, as yet unseen? Maybe they pop in from the cinematic universe? Marvel pulled off little instances of this with Agents of SHIELD, bringing on a quick Nick Fury cameo that maintained continuity but didn’t break the bank.

Maybe we can’t have Batman (and since I’m totally enamored with Ruby Rose as Batwoman, I’m cool with her taking his place) but a Superfriends without Wonder Woman and Aquaman? I mean, we’re even getting Gleek the Space Monkey. Make this happen, folks.

Random Closing thoughts:

-I will always hate how these crossovers never fully emerge from the shadow of their individual shows.

Cisco and Iris feature heavily on the Flash episode. The rest of the time they pop in randomly or get lost entirely.

The tone of the Legends episode is whimsical and out of step with the rest of the Crisis episodes, etc.

I know it’s budgetary, but I wish they could pool resources and give us a fully coherent five hours that felt truly consistent in tone and with the same characters throughout. Either use Cisco or find an excuse to have him somewhere else. And no Beebo or whatever the hell the furry version of the Stay Puft Marshmallow monster thing was. Totally out of place.

-I love that they brought back Lex Luthor, and I’m looking forward to having him around. But I wish they’d found a way to keep Kingdom Come Superman in the last few episodes. The way Lex dispatched him when we were told he’d be an integral part of the Paragon-based conclusion was a huge let down. Brandon Routh is far and away better as Supes than as Ray.

-The Anti-Monitor was lame. But I guess he’s always been.

-I hope they do something more with Ryan Choi now. Otherwise he was just a throwaway character and he deserves better.

-The “dementor/shadow demons” were also lame, and reminded me too much of the Avengers demons. For that matter, the “circle the wagon” fight scenes were a little too much like what the MCU gave us several times (and the DCEU aped as well) going so far as to have multiple non-powered heroes just flat out shooting the demons with arrows or firearms (switch out Green Arrow, White Canary and Alex Danvers for Hawkeye & Black Widow and it’s basically the same stupid idea). Maybe try something different next time.

-Melissa Benoist is consistently fantastic. She’s earnest without being saccharine or phony. She’s strong and determined but goofy and vulnerable. She continues to prove that she has captured the spirit of Supergirl and made it her own. This might have been Ollie’s send off, but she’s pretty much the MVP of this team every single time.



The Superman that would be … and then never was, sort of

As I kid I lived on a steady diet of comic books, mostly DC when I was younger, although I briefly aged-up into some Marvel stuff (X-Men and Alpha Flight) before falling away from it until much later.

Supes new

When I was 9, in October of 1981, I picked up the then-current issue of Superman. Volume 1 # 364.  It’s still sitting in a box in my parents’ basement.

This was years before DC started in with the “Crisis of the month”, reshuffling the deck of the multiverse ad infinitum (that was actually one of the things that turned me off to DC later–I liked the complexity of the original multiverse.)

What was interesting about this issue however, was the EXTRA story at the end. As you can see on the pic of the title page above and the front cover below, it concerned Superman’s grandson–in a tale that took place in the far off future of … 2020.


In short, this story was set in the twilight years of the “Silver Age” Superman (who was actually the second Superman, although he lived on Earth 1, as opposed to the first Supes who lived on Earth 2 … ok, I can see why the multiverse bothered some people). What it assumed as its premise was that the Superman I grew up with, who emerged in the 1960’s and was still flying high over Metropolis in the early 80’s, would (in the fullness of time) get old, have a son and pass the mantle on to him. Then, this second Superman would also have a full career, eventually creeping into middle age himself, at which point he would repeat the process, passing the “S” down to his own son, the  grandson of the original Man of Steel.

All of this, it was assumed, would take place in the years between when I was reading the book, the “present day” of 1981 and the oh-so distant future year of 2020–the actual present day, as of this month.

A version of this had already happened, even back then, with the real original Superman on Earth 2. Having emerged in the late 1930’s (a retconned version of the first appearance of the hero in any form), he was in very late middle age by the 1980’s, depicted with graying temples, married to Lois and settling into near-retirement. It was natural, I guess, to assume that the same path lay ahead for Earth 1’s Superman.

Looking back then, what this story anticipated was that our Earth 1 Superman, arriving here as a baby somewhere in the late 30’s/early 40’s — essentially a Silent/almost-Boomer-generation Supes — would have finally settled in and had a kid sometime in the 70’s or early 80’s — making that super kid about my age, and Superman Jr. something of a Gen-X hero. He would conceivably have had his prime adventures starting around the mid 90’s, putting him in middle age today, just as his son, Millennial or maybe Gen Z Superman would be just be stepping up.

This never happened, of course, negating the entire plot line.

A few years after this story came out, DC rebooted their entire continuity in the first of a series of Crisis events, first destroying and then re-working the multiverse over a period of many years. In doing so, they retconned original Superman, rejuvenating him and eliminating the need for a newer, younger Gen X version (although 90’s Supes did sport some grunge-inspired shaggy locks for a while). In other words, my generation never got to see “our” Superman arise and take over the duties in the way this 2020 story had assumed we would. Instead, DC just recycled the character in a massive reboot.

While later amendments to official continuity finally “established” that these events had not been erased from existence, as Crisis originally presumed, they instead decided that all of this took place on a parallel Earth, which they cleverly dubbed Earth 2020.

However it all shook out, I so vividly remember as a kid reading that story and wondering what the world of 2020 would look like. We Gen-Xers never really got our own Superman, which is par for the course since we’re kind of a forgotten generation in general.

But this month, we all finally got to see the real 2020. The future is now.

Superman 2020

Film Friday: Touch of Evil

touchOrson Welles directed some of the greatest films in the history of American cinema–and that’s just counting the ones the public actually got to see in the way he intended.

Touch of Evil is one of his most fascinating works. It wasn’t exactly a passion project, like Citizen Kane or the Magnificent Ambersons. He had no deep connection to the source material as he did with his Shakespeare adaptations (among the best ever, in my opinion). Instead, this movie fell into his lap more or less by accident–as Charlton Heston explains in the clip below.

That’s what makes it so interesting.

Genius is an over-used word, but Welles fit the bill in the truest sense. He had an innate ability to see the art form in ways that no one else did, and in the case of something like Touch of Evil, that meant taking a script for a hard boiled noir and turning it into something almost transcendent.

The first take alone is legendary, a three-plus minute tracking shot that carries the viewer along on a mini-tour of the border zone and ends with a bang, to say the least.

In this retrospective, Welles and Heston (among others) discuss the making of the film, including how it came together and some of the little things that happened during the process. It’s an intriguing window into the work of a man who made films unlike anyone else, before or since.

1st Monday Legal Fiction: Daredevil (2003)

dareThere are a lot of phrases lawyers use that mean something very specific to them. We sometimes call these terms of art. Some of them are in Latin, like res judicata or nunc pro tunc, while others appear to mean something by the plain reading of the English words, yet actually signify something else entirely.  One of these is the term legal fiction.

In lawyer speak, legal fiction means a construct that achieves a certain aim under the law, but is only loosely based in a set of facts, and occasionally divorced from them completely. An example would be something that comes up a lot in criminal litigation: plea bargains. In Ohio, where I practice, there is a general attempt statute. In most cases attempting to commit a crime is still a crime, but since it’s usually less serious to try and fail (in terms of the ultimate harm done) attempt offenses are always one degree lower than whatever the underlying offense would have been.

So when you have a low level felony case, like drug possession, and the prosecutor wants to give a guy a break (something the defense attorney is always looking for too) the lawyers might agree to call the charge “attempted possession” for plea purposes. That reduces the offense one degree, which takes it from a felony to a misdemeanor–a significant distinction for a number of reasons. In many cases, the notion that a defendant caught with drugs only attempted to possess them is nonsense, and totally counter-factual, but amending the charges down to that provides a convenient avenue to resolve the case.

Hence, a legal fiction.

In real life though, there is plenty of actual legal fiction, as in books, movies and TV about the legal process. I write some of that myself. What I’m going to do here over the weeks and months to come is to put a spotlight on some of these, discussing what legal fiction writers get right, what they get wrong and everything in between. In honor of the Supreme Court practice of beginning their term on the “First Monday” in October, I’ll be posting a new entry each month on the … yes, the first Monday.

So without further adieu, for my first attempt at this … let’s look at the 2003 Ben Affleck Daredevil film.

While not strictly a legal thriller, the Daredevil character always touches on the law, since his secret identity Matt Murdock is a defense attorney in his normal life.

At least, I think that’s what he’s supposed to be. You’d never know it from watching the 2003 version of the character, which flunks every possible test for courtroom accuracy. It’s not even a close call. This film’s representation of a trial is so bad that I don’t know whether to laugh out loud or throw something at the screen.

The writers had either never been near a courtroom, or just didn’t gave a rat’s ass about approaching authenticity–because this movie’s version of it is pure fantasy.

A few of the points — for one, Murdock proclaims that he only represents innocent clients. Boy, that sounds so … altruistic, doesn’t it? Who could be more dedicated to justice and truth than a lawyer who only handled innocent clients? Who could object to that?

How about every single competent defense attorney ever. Because this is the biggest pile of steaming horse$%#t imaginable.

Defense attorneys check the power of the government to take away the most precious commodity that exists: a person’s life — which the state can compromise by locking someone up, or in some cases, killing them. The one thing no one can make more of is time. Your life is limited. And that is the thing that defense lawyers protect.

You quickly learn in this job that most of your clients are guilty of something, but in our system that doesn’t strip them of their rights. Defense lawyers guarantee everyone has a fair hearing, no matter what they did. That’s the virtue in this line of work, not in ignoring the rights of 99% of people to focus on the wrongfully accused.

Also, good luck making money if that’s your business model. How would that even work? Most clients tell you they’re innocent, at least up front. Would he take their money, only to discover three months into the case that they were — shocker of shockers — lying? Then what? Give the retainer back and, oh by the way, hope the judge lets you off the case that you’ve committed to — after presumably figuring out a way to explain that you need to withdraw without telling the court that it’s because you’ve learned your client is guilty? The absolute last thing you can do ethically is to make your client’s standing in front of the court worse than you found him.

None of this ever happens in real life. Not. Even. Close.

Second, it’s impossible to tell from the courtroom scene in this movie what the hell kind of cases Murdock actually handles. From the way the proceedings flow, you’d think he wasn’t even a defense attorney at all. Clearly, it’s supposed to be a rape case, which would mean he’d be representing the defendant—but no—apparently he’s representing the victim? That makes no sense at all.

Quick legal lesson here: Rape is a crime, which means the State prosecutes someone accused of it, and in that case the victim (Murdock’s client??) doesn’t have a lawyer, because they aren’t a litigant. It’s the State vs. Mr. Accused Rapist.

Disputes between two private parties on the other hand are called civil cases, or what lawyers call torts–the typical forum for any other lawsuit. So maybe he’s a plaintiff’s attorney suing someone for …. what …. assault, maybe? Because crimes like rape are never handled in civil court. You can sue someone for doing harm to you, but only in a specific tort-based way. You can’t sue someone for a crime.

The reason is, if you’re guilty of a crime, you go to prison (or suffer some state-imposed penalty like probation). If you’re liable for a tort, you generally owe money. That’s how the civil system works. If you hurt me, there’s no way to un-hurt me, so the only remedy I have is to get you to pay me to make up for it.

It doesn’t end there though. Aside from apparently having literally zero understanding of even the most fundamental facts about how court works, Murdock quickly proves that no matter what kind of case he’s involved with, he’s an astoundingly bad trial lawyer. He literally asks the apparent rapist to “please state the sequence of events that took place that night” — which is pretty much the worst example of cross examination in the entire history of cross examination.

“Excuse me, Mr. Bad Guy, would you please be so kind as to confess to everything you did wrong here? I mean we went through the trouble of sitting here in a courtroom, and I put on a tie and everything, so if you wouldn’t mind….”

Even if you allow for the notion that with his Daredevil super-senses, he can somehow detect dishonesty in a witness, it’s still laughably bad. Besides, even if he had the power to tell from listening to the guy’s heartbeat that he was lying, what good would that do? He can’t just tell the jury “hey folks, I have super hearing and I can assure you this guy is committing perjury” — plus he already thinks this guy is a rapist, he doesn’t need to be convinced from hearing his vital signs like a human lie detector.

Bottom line: the way an actual lawyer exposes liars in court is by skillful, careful cross examination. You don’t need superpowers, you just need to know how to ask questions properly in a courtroom.

Finally, once they lose the case, on the steps outside the courthouse and flanked by his loyal partner (the indefatigable Jon Favreau–who has maybe redeemed himself lately by bringing us the gloriousness that is the Mandalorian) , he comments that it’s an example of “one more rapist back on the street.” Again, this makes no sense at all.

It’s just been made clear that this can’t be a criminal case, because he’s representing the victim, right??? So if it’s a civil case, which is never about anything but money, then there is no criminal penalty at stake. The guy would be “back out on the street” no matter what had happened, win or lose.

This movie is so mind-numbing stupid in its handling of pretty much everything associated with the legal profession that on literally every possible point, I give it big fat F.


Film Friday: Heir to the Empire

220px-HeirToTheEmpireFor this week’s Film Friday, the first of the new year, I’m going to do something a little different. I’ve been on record (here–yesterday but also on twitter and elsewhere) with my disdain for the Star Wars sequel trilogy. I was less than impressed with the paint by the numbers “A New Hope” redux of “The Force Awakens”–not to mention the absurdity of Mary Sue Rey. I flat out hated “The Last Jedi”, for reasons I outlined earlier. And of course, what else is there to say now about the shameful conclusion of “The Rise of Skywalker”?

I loved the original trilogy as a kid. Growing up in the late 70’s and early 80’s, I was right in the target demographic for those first three movies. For me, the prequel trilogy was a huge let down, again for too many reasons to go into here. We fans had waited twenty-plus years, but the reward for our patience was a pint-sized, mop-headed Vader, midi-effing-chlorians and Jar Jar Binks.

There was however, one bright spot during that long wait, and while it has been largely overshadowed for various reasons in the decades that followed, someone is thankfully doing tremendous work to keep it alive. What I’m talking about is the Thrawn trilogy, or what I always just called the Heir to the Empire, after the first entry in the series.

For those who do not recall (or never knew), in the early 90’s, nearly a decade after Jedi had concluded with the Feast of the Ewoks scene, Lucas finally agreed to let someone keep the story going. Yes, there had been comic books, but none of that storytelling felt as epic in scope as Star Wars demands. Until Timothy Zahn came along with his three book opus, telling us the grand tale of what happened after Endor.

What was the next challenge for Luke? Where did Han and Leia’s relationship go? How did the Republic finally finish off the remnants of the Empire?

Heir the the Empire told us. In three books Zahn gave us a fitting sequel trilogy. It was true to the spirit of the original. It was true to the characters and it stayed true to the fans. It gave us exactly what we wanted–in book form if not in live action, but for a while it felt like enough. I devoured the books, along with my friends.

In time, this series spawned what came to be known as the Extended Universe. And yes, it got big and it got messy. The tales that followed explored every corner of the Star Wars galaxy, so widely and so fully that by the time Disney got around to making an actual new trilogy, the EU had grown so bloated that they decided to wipe it all away, declaring this and every other book that followed “legends”.

Ultimately, the garbage that Disney gave us made that decision feel hollow. If the reason for re-booting had been to give us a new, better Star Wars, then they failed miserably. It only made me, and other fans wish they’d just adapted Zahn’s trilogy the way we’d always wanted them to.

That will never happen, now that so many years have passed. But fortunately, there is at least one person out there dedicated to keeping the flame of this work alive. He goes by the youtube handle Darth Angelus, and he’s done something truly amazing. Using digital animation technology, he is bringing the Heir to the Empire to life.

It takes a while for each new installment, but it’s clear from the time and the effort that this is a true labor of love. By the fans, for the fans.

So this week, my Film Friday entry is something you’re not going to find in the theaters, but which deserves the attention of every true Star Wars fan. The first three chapters of the sequel we should have had.




Moon Knight

mkI’m a long-time fan of the Moon Knight character. I think he’s been terribly under-used and under-appreciated over the years. Some have dismissed him as a Batman clone, which is maybe part of his original conception, but the complexity of his psychological make up combined with the supernatural mythology built into his background set him apart in my mind.

Needless to say, I’m really looking forward to the upcoming Disney+ live action adaptation, and this week we got some news on that front, including some rumors about a few other Marvel legacy characters who will be appearing on the show (whenever it actually debuts). Stay tuned.

Moon Knight TV Show Update