text:
OREGON v. KENNEDY(1982)
During respondent's trial for theft in an Oregon state court, the State's expert witness testified as to the value and identity of the property involved. On cross-examination, he acknowledged that he had once filed an unrelated criminal complaint against respondent, but explained that no action had been taken on his complaint. On redirect examination, the court sustained a series of objections to the prosecutor's questions seeking to establish the reasons why the witness had filed a complaint against respondent. After eliciting from the witness that he had never done business with respondent, the prosecutor asked: "Is that because he is a crook?" The trial court then granted respondent's motion for a mistrial. On retrial, the court rejected respondent's contention that the Double Jeopardy Clause of the Fifth Amendment, as made applicable to the States by the Fourteenth Amendment, barred further prosecution, finding that "it was not the intention of the prosecutor in this case to cause a mistrial." Respondent was convicted, but the Oregon Court of Appeals reversed, sustaining the double jeopardy claim because the prosecutorial misconduct that had occasioned the mistrial, even if not intended to cause a mistrial, amounted to "overreaching."
REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, POWELL, and O'CONNOR, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 679. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 680. STEVENS, J., filed an opinion concurring in the judgment, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 681.
Dave Frohnmayer, Attorney General of Oregon, argued the cause for petitioner. With him on the brief were William F. Gary, Solicitor General, and Robert E. Barton, John C. Bradley, Thomas H. Denney, and Stephen F. Peifer, Assistant Attorneys General.
Donald C. Walker argued the cause and filed a brief for respondent.
Samuel A. Alito, Jr., argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General Jensen, Deputy Solicitor General Frey, and David B. Smith. *
[ Footnote * ] Jennifer Friesen filed a brief for the American Civil Liberties Union Foundation of Oregon, Inc., as amicus curiae.
JUSTICE REHNQUIST delivered the opinion of the Court.
The Oregon Court of Appeals decided that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution barred respondent's retrial after his first trial ended in a mistrial granted on his own motion. 49 Ore. App. 415, 619 P.2d 948 (1980), cert. granted, 454 U.S. 891 (1981). The Court of Appeals concluded that retrial was barred because the prosecutorial misconduct that occasioned the mistrial in the first instance amounted to "overreaching." Because that court took an [456 U.S. 667, 669] overly expansive view of the application of the Double Jeopardy Clause following a mistrial resulting from the defendant's own motion, we reverse its judgment.
Respondent was charged with the theft of an oriental rug. During his first trial, the State called an expert witness on the subject of Middle Eastern rugs to testify as to the value and the identity of the rug in question. On cross-examination, respondent's attorney apparently attempted to establish bias on the part of the expert witness by asking him whether he had filed a criminal complaint against respondent. The witness eventually acknowledged this fact, but explained that no action had been taken on his complaint. On redirect examination, the prosecutor sought to elicit the reasons why the witness had filed a complaint against respondent, but the trial court sustained a series of objections to this line of inquiry. 1 The following colloquy then ensued:
When the State later sought to retry respondent, he moved to dismiss the charges because of double jeopardy. After a hearing at which the prosecutor testified, the trial court 2 found as a fact that "it was not the intention of the prosecutor in this case to cause a mistrial." 49 Ore. App., at [456 U.S. 667, 670] 418, 619 P.2d, at 949. On the basis of this finding, the trial court held that double jeopardy principles did not bar retrial, and respondent was then tried and convicted.
Respondent then successfully appealed to the Oregon Court of Appeals, which sustained his double jeopardy claim. That court set out what it considered to be the governing principles in this kind of case:
Before turning to the merits of the double jeopardy claim, we are met with the respondent's contention that the Court [456 U.S. 667, 671] of Appeals' decision is based upon an adequate and independent state ground. Respondent contends in the alternative that the basis for the decision below is sufficiently uncertain that we ought to remand this case in order that the Court of Appeals may clarify the grounds upon which its judgment rested. See Delaware v. Prouse, 440 U.S. 648, 652 (1979); California v. Krivda, 409 U.S. 33, 35 (1972).
We reject both of these contentions. A fair reading of the opinion below convinces us that the Court of Appeals rested its decision solely on federal law. With one exception, the cases it cited in outlining the "general rule" that guided its decision are decisions of this Court. The Court of Appeals' citation to State v. Rathbun, 37 Ore. App. 259, 586 P.2d 1136 (1978), rev'd, 287 Ore. 421, 600 P.2d 392 (1979), was clearly to its own decision in that case, rather than the decision of the Oregon Supreme Court. Although the Supreme Court's decision in Rathbun was based on state statutory and constitutional grounds, the Court of Appeals' decision in Rathbun clearly rested on federal grounds, a fact which was so recognized by the Oregon Supreme Court. Id., at 430-431, 600 P.2d, at 396-397. Even if the case admitted of more doubt as to whether federal and state grounds for decision were intermixed, the fact that the state court relied to the extent it did on federal grounds requires us to reach the merits. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 568 (1977).
The Double Jeopardy Clause of the Fifth Amendment 3 protects a criminal defendant from repeated prosecutions for the same offense. United States v. Dinitz, 424 U.S. 600, 606 (1976). As a part of this protection against multiple prosecutions, the Double Jeopardy Clause affords a criminal defendant a "valued right to have his trial completed by a [456 U.S. 667, 672] particular tribunal." Wade v. Hunter, 336 U.S. 684, 689 (1949). The Double Jeopardy Clause, however, does not offer a guarantee to the defendant that the State will vindicate its societal interest in the enforcement of the criminal laws in one proceeding. United States v. Jorn, 400 U.S. 470, 483 -484 (1971) (plurality opinion); Wade v. Hunter, 336 U.S., at 689 . If the law were otherwise, "the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again." Ibid.
Where the trial is terminated over the objection of the defendant, the classical test for lifting the double jeopardy bar to a second trial is the "manifest necessity" standard first enunciated in Justice Story's opinion for the Court in United States v. Perez, 9 Wheat. 579, 580 (1824). Perez dealt with the most common form of "manifest necessity": a mistrial declared by the judge following the jury's declaration that it was unable to reach a verdict. While other situations have been recognized by our cases as meeting the "manifest necessity" standard, the hung jury remains the prototypical example. See, e. g., Arizona v. Washington, 434 U.S. 497, 509 (1978); Illinois v. Somerville, 410 U.S. 458, 463 (1973). The "manifest necessity" standard provides sufficient protection to the defendant's interests in having his case finally decided by the jury first selected while at the same time maintaining "the public's interest in fair trials designed to end in just judgments." Wade v. Hunter, supra, at 689.
But in the case of a mistrial declared at the behest of the defendant, quite different principles come into play. Here the defendant himself has elected to terminate the proceedings against him, and the "manifest necessity" standard has no place in the application of the Double Jeopardy Clause. United States v. Dinitz, supra, at 607-610. Indeed, in United States v. Tateo, 377 U.S. 463, 467 (1964), the Court stated: [456 U.S. 667, 673]
Since one of the principal threads making up the protection embodied in the Double Jeopardy Clause is the right of the defendant to have his trial completed before the first jury empaneled to try him, it may be wondered as a matter of original inquiry why the defendant's election to terminate the first trial by his own motion should not be deemed a renunciation of that right for all purposes. We have recognized, however, that there would be great difficulty in applying such a rule where the prosecutor's actions giving rise to the motion for mistrial were done "in order to goad the [defendant] into requesting a mistrial." United States v. Dinitz, supra, at 611. 4 In such a case, the defendant's valued right to complete his trial before the first jury would be a hollow shell if the inevitable motion for mistrial were held to prevent a later invocation of the bar of double jeopardy in all circumstances. But the precise phrasing of the circumstances which will allow a defendant to interpose the defense of double jeopardy to a second prosecution where the first has terminated on his [456 U.S. 667, 674] own motion for a mistrial have been stated with less than crystal clarity in our cases which deal with this area of the law. In United States v. Dinitz, 424 U.S., at 611 , we said:
The difficulty with the more general standards which would permit a broader exception than one merely based on intent is that they offer virtually no standards for their application. Every act on the part of a rational prosecutor during a trial is designed to "prejudice" the defendant by placing before the judge or jury evidence leading to a finding of his guilt. Given the complexity of the rules of evidence, it will be a rare trial of any complexity in which some proffered evidence [456 U.S. 667, 675] by the prosecutor or by the defendant's attorney will not be found objectionable by the trial court. Most such objections are undoubtedly curable by simply refusing to allow the proffered evidence to be admitted, or in the case of a particular line of inquiry taken by counsel with a witness, by an admonition to desist from a particular line of inquiry.
More serious infractions on the part of the prosecutor may provoke a motion for mistrial on the part of the defendant, and may in the view of the trial court warrant the granting of such a motion. The "overreaching" standard applied by the court below and urged today by JUSTICE STEVENS, however, would add another classification of prosecutorial error, one requiring dismissal of the indictment, but without supplying any standard by which to assess that error. 5
By contrast, a standard that examines the intent of the prosecutor, though certainly not entirely free from practical difficulties, is a manageable standard to apply. It merely calls for the court to make a finding of fact. Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system. When it is remembered that resolution of double jeopardy questions by state trial courts are reviewable not only within the state court system, but in the federal court system on habeas corpus as well, the desirability of an easily applied principle is apparent.
Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's [456 U.S. 667, 676] motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. A defendant's motion for a mistrial constitutes "a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact." United States v. Scott, 437 U.S. 82, 93 (1978). Where prosecutorial error even of a degree sufficient to warrant a mistrial has occurred, "[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error." United States v. Dinitz, supra, at 609. Only where the governmental conduct in question is intended to "goad" the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.
Were we to embrace the broad and somewhat amorphous standard adopted by the Oregon Court of Appeals, we are not sure that criminal defendants as a class would be aided. Knowing that the granting of the defendant's motion for mistrial would all but inevitably bring with it an attempt to bar a second trial on grounds of double jeopardy, the judge presiding over the first trial might well be more loath to grant a defendant's motion for mistrial. 6 If a mistrial were in fact warranted under the applicable law, of course, the defendant could in many instances successfully appeal a judgment of conviction on the same grounds that he urged a mistrial, and the Double Jeopardy Clause would present no bar to retrial. 7 But some of the advantages secured to him by the Double [456 U.S. 667, 677] Jeopardy Clause - the freedom from extended anxiety, and the necessity to confront the government's case only once - would be to a large extent lost in the process of trial to verdict, reversal on appeal, and subsequent retrial. See United States v. Dinitz, 424 U.S., at 608 .
In adopting the position we now do, we recognize that language taken from our earlier opinions may well suggest a [456 U.S. 667, 678] broader rule. 8 The Court of Appeals in this case, for example, may have derived its "overreaching" standard from the following language in the plurality opinion in United States v. Jorn, 400 U.S., at 485 :
Because of the confusion which these varying statements of the standard in question have occasioned in other courts, we deem it best to acknowledge the confusion and its justifiability in the light of these statements from previous decisions. We do not by this opinion lay down a flat rule that where a defendant in a criminal trial successfully moves for a mistrial, he may not thereafter invoke the bar of double jeopardy against a second trial. But we do hold that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.
Since the Oregon trial court found, and the Oregon Court of Appeals accepted, that the prosecutorial conduct culminating in the termination of the first trial in this case was not so intended by the prosecutor, that is the end of the matter for purposes of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The judgment of the Oregon Court of Appeals is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
[ Footnote 2 ] These proceedings were not conducted by the same trial judge who presided over respondent's initial trial.
[ Footnote 3 ] This Court held in Benton v. Maryland, 395 U.S. 784 (1969), that this Clause was made applicable to the States through the Due Process Clause of the Fourteenth Amendment.
[ Footnote 4 ] Cf. United States v. Tateo, 377 U.S. 463, 468 , n. 3 (1964) ("If there were any intimation in a case that prosecutorial or judicial impropriety justifying a mistrial resulted from a fear that the jury was likely to acquit the accused, different considerations would, of course, obtain").
[ Footnote 5 ] If the Court were to hold, as would JUSTICE STEVENS, that such a determination requires an assessment of the facts and circumstances but without explaining how such an assessment ought to proceed, the Court would offer little guidance to the federal and state courts that must apply our decisions. JUSTICE STEVENS disagrees with the decision below because his reaction to a cold record is different from that of the Oregon Court of Appeals. The Court of Appeals found "overreaching"; JUSTICE STEVENS finds none. Neither articulates a basis for reaching their respective conclusions which can be applied to other factual situations. We are loath to adopt such an essentially standardless rule.
[ Footnote 6 ] This Court has consistently held that the Double Jeopardy Clause imposes no limitation upon the power of the government to retry a defendant who has succeeded in persuading a court to set his conviction aside, unless the conviction has been reversed because of the insufficiency of the evidence. See, e. g., United States v. DiFrancesco, 449 U.S. 117, 130 -131 (1980).
[ Footnote 7 ] JUSTICE STEVENS' opinion concurring in the judgment criticizes the suggestion that the broader rule he espouses would make it less likely the judges would grant a motion for mistrial than if the narrower rule [456 U.S. 667, 677] prevailed. Post, at 687-688, n. 22. JUSTICE STEVENS' criticism of our conclusion appears to be based on the erroneous assumption that the courts in such a situation would be applying the narrow rule, rather than the broad rule. Tested by the correct assumption that the courts would be applying the all-encompassing standard denominated "overreaching," which he espouses, post, at 689-690, we do not find his criticisms persuasive. If appellate courts and trial courts alike in this branch of the law of double jeopardy were applying a rule of "black letter law" to a predetermined set of facts, it might be true that an appellate court would inevitably reach the conclusion that reprosecution should be barred in a number of cases where the trial court had actually denied the motion for mistrial. But there are two reasons why such a hypothesis is inapplicable here.
First, the rule espoused by JUSTICE STEVENS is anything but a rule of "black letter law." We are admonished that "[i]t is unnecessary and unwise to attempt to identify all the factors that might inform the court's judgment." Ibid. Second, appellate courts have traditionally given weight to a trial court's assessment as to the necessity for a mistrial in deciding questions of double jeopardy. As this Court said in Gori v. United States, 367 U.S. 364, 368 (1961):
[ Footnote 8 ] JUSTICE STEVENS states that we "gratuitously lo[p] off a portion of the previously recognized exception." Post, at 681. This charge is simply not borne out by even a moderately careful reading of our cases on the point. The footnote in United States v. Tateo, 377 U.S., at 468 , n. 3, quoted in n. 4, supra, states the exception in terms of prosecutorial misconduct motivated by "fear that the jury was likely to acquit the accused." The plurality opinion in United States v. Jorn, 400 U.S. 470, 485 (1971), quoted in the text, states the test in the broader terms of "prosecutorial or judicial overreaching"; the Court's opinion in United States v. Dinitz, 424 U.S. 600 (1976), speaks at one point in terms of "governmental actions intended to provoke mistrial requests," id., at 611, and at another point on the same page of "`bad-faith conduct by judge or prosecutor'" which "threatens the `[h]arassment of an accused by successive prosecutions . . . .'" Only last Term, in United States v. DiFrancesco, supra, we said that "reprosecution of a defendant who has successfully moved for a mistrial is not barred, so long as the Government did not deliberately seek to provoke the mistrial request." Id., at 130.
Thus, it is quite inaccurate to suggest that our previous cases have single-mindedly adhered to one rule in cases such as this, and that we are now "lopping off" a part of that rule. However this case is decided, we are faced with a choice between two differing lines of authority in our own recent precedents; for the reasons stated in the text, supra, at 674-677, we think that the better arguments favor the rule which we adopt. But JUSTICE STEVENS, no less than we, chooses one of two differing rules; the state of our case law indicates that the justification for the choice must be based upon principle, and not authority.
JUSTICE POWELL, concurring.
I join the Court's opinion holding that the intention of a prosecutor determines whether his conduct, viewed by the defendant and the court as justifying a mistrial, bars a retrial of the defendant under the Double Jeopardy Clause. Because "subjective" intent often may be unknowable, I emphasize [456 U.S. 667, 680] that a court - in considering a double jeopardy motion - should rely primarily upon the objective facts and circumstances of the particular case. See ante, at 675.
In the present case the mistrial arose from the prosecutor's conduct in pursuing a line of redirect examination of a key witness. The Oregon Court of Appeals identified a single question as constituting "overreaching" so serious as to bar a retrial. Yet, there are few vigorously contested lawsuits - whether criminal or civil - in which improper questions are not asked. Our system is adversarial and vigorous advocacy is encouraged.
Nevertheless, this would have been a close case for me if there had been substantial factual evidence of intent beyond the question itself. Here, however, other relevant facts and circumstances strongly support the view that prosecutorial intent to cause a mistrial was absent. First, there was no sequence of overreaching prior to the single prejudicial question. See ante, at 669-670, and n. 1. Moreover, it is evident from a colloquy between counsel and the court, out of the presence of the jury, that the prosecutor not only resisted, but also was surprised by, the defendant's motion for a mistrial. See App. 24-29. Finally, at the hearing on respondent's double jeopardy motion, the prosecutor testified - and the trial found as a fact and the appellate court agreed - that there was no "`intention . . . to cause a mistrial.'" Ante, at 669.
In view of these circumstances, the Double Jeopardy Clause provides no bar to retrial.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in the judgment.
I concur in the judgment and join in the opinion of JUSTICE STEVENS. However, it should be noted that nothing in the holding of the Court today prevents the state courts, on remand, from concluding that respondent's retrial would violate the provision of the Oregon Constitution that prohibits double jeopardy, Ore. Const., Art. I, 12, as that provision [456 U.S. 667, 681] has been interpreted by the state courts, State v. Rathbun, 287 Ore. 421, 600 P.2d 392 (1979). See South Dakota v. Opperman, 428 U.S. 364, 396 (1976) (MARSHALL, J., dissenting), on remand, State v. Opperman, 247 N. W. 2d 673 (S. D. 1976) (original State Supreme Court judgment adhered to as a matter of state constitutional law); Oregon v. Hass, 420 U.S. 714, 726 (1975) (MARSHALL, J., dissenting).
JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, concurring in the judgment.
Unless the Oregon Court of Appeals based its decision on Oregon law, 1 this is a case in which the state court should have applied the general rule that a defendant's motion for a mistrial removes any double jeopardy bar to retrial. The prosecutor's mistake was not the kind of overreaching or harassment identified in our precedents as an exception to the general rule. Instead of explaining why that conclusion is required by settled law, this Court gratuitously lops off a portion of the previously recognized exception. This exercise in lawmaking is objectionable because it is wholly unnecessary and because it compromises an important protection provided by the Double Jeopardy Clause.
The Double Jeopardy Clause represents a constitutional policy of finality for the defendant's benefit in criminal proceedings. 2 [456 U.S. 667, 682] If the defendant is acquitted by the jury, or if he is convicted and the conviction is upheld on appeal, he may not be prosecuted again for the same offense. 3 The defendant's interest in finality is not confined to final judgments; he also has a protected interest in having his guilt or innocence decided in one proceeding. 4 That interest must be balanced against society's interest in affording the prosecutor one full and fair opportunity to present his evidence to the jury. 5 Our decisions in the mistrial setting accordingly have accommodated the defendant's double jeopardy interests 6 with legitimate prosecutorial interests. 7 [456 U.S. 667, 683]
The accommodation is reflected in two general rules that govern the permissibility of reprosecution after a mistrial. Which general rule applies turns on whether the defendant has retained control over the course to be followed once error has substantially tainted the initial proceeding. 8 When a mistrial is declared over the defendant's objection, the general rule is that retrial is barred. 9 An exception to this general rule exists for cases in which the mistrial was justified by "manifest necessity." 10 The other general rule is that the defendant's motion for, or consent to, a mistrial removes any double jeopardy bar to reprosecution. 11 There is an exception to this rule for cases in which the prosecutor 12 intended to provoke a mistrial or otherwise engaged in "overreaching" or "harassment." 13 The prosecutor has the burden [456 U.S. 667, 684] of proving the former exception for manifest necessity, and the defendant has the burden of proving the latter exception for overreaching. [456 U.S. 667, 685]
As an initial matter, it is useful to explain why the defendant's retention of control over the course to be followed once serious prosecutorial error has occurred represents a reasonable accommodation of double jeopardy and prosecutorial interests. A defendant cannot be guaranteed both that there will be only one proceeding and that it will be free of error. 14 When unfair prejudice is injected into the proceeding by the prosecutor, the defendant may choose to continue the proceeding despite the taint and, if convicted, seek a reversal on appeal. 15 Or he may choose to abort the tainted proceeding and begin anew. 16 While it is true that prosecutorial error leaves the defendant with a "Hobson's choice," 17 it is also true [456 U.S. 667, 686] that the prosecutor suffers substantial costs no matter how the defendant exercises this choice. If the defendant consents to a mistrial, the prosecutor must go to the time, trouble, and expense of starting all over with the criminal prosecution. If the defendant chooses to continue the proceeding and preserve his objection for appeal, the prosecutor must continue to completion a proceeding in which a conviction may not be sustainable. 18
The rationale for the exception to the general rule permitting retrial after a mistrial declared with the defendant's consent is illustrated by the situation in which the prosecutor commits prejudicial error with the intent to provoke a mistrial. 19 In this situation the defendant's choice to continue the tainted proceeding or to abort the proceeding and begin anew is inadequate to protect his double jeopardy interests. For, absent a bar to reprosecution, the defendant would simply play into the prosecutor's hands by moving for a mistrial. The defendant's other option - to continue the tainted proceeding - would be no option at all if, as we might expect given the prosecutor's intent, the prosecutorial error has virtually guaranteed conviction. There is no room in the balance of competing interests for this type of manipulation of the mistrial device. Or to put it another way, whereas we tolerate some incidental infringement upon a defendant's double jeopardy interests for the sake of society's interest in obtaining a verdict of guilt or innocence, when the prosecutor seeks to obtain an advantage by intentionally subverting double jeopardy interests, the balance invariably tips in favor of a bar to reprosecution. 20 [456 U.S. 667, 687]
Today the Court once again recognizes that the exception properly encompasses the situation in which the prosecutor commits prejudicial error with the intent to provoke a mistrial. But the Court reaches out to limit the exception to that one situation, 21 rejecting the previous recognition that prosecutorial overreaching or harassment is also within the exception. 22 [456 U.S. 667, 688]
Even if I agreed that the balance of competing interests tipped in favor of a bar to reprosecution only in the situation in which the prosecutor intended to provoke a mistrial, I would not subscribe to a standard that conditioned such a bar on the determination that the prosecutor harbored such intent when he committed prejudicial error. It is almost inconceivable 23 that a defendant could prove that the prosecutor's deliberate misconduct was motivated by an intent to provoke a mistrial instead of an intent simply to prejudice the defendant. 24 The defendant must shoulder a strong burden to establish a bar to reprosecution when he has consented to the mistrial, but the Court's subjective intent standard would eviscerate the exception. 25 [456 U.S. 667, 689]
A broader objection to the Court's limitation of the exception is that the rationale for the exception extends beyond the situation in which the prosecutor intends to provoke a mistrial. There are other situations in which the defendant's double jeopardy interests outweigh society's interest in obtaining a judgment on the merits even though the defendant has moved for a mistrial. For example, a prosecutor may be interested in putting the defendant through the embarrassment, expense, and ordeal of criminal proceedings even if he cannot obtain a conviction. 26 In such a case, with the purpose of harassing the defendant the prosecutor may commit repeated prejudicial errors and be indifferent between a mistrial or mistrials and an unsustainable conviction or convictions. Another example is when the prosecutor seeks to inject enough unfair prejudice into the trial to ensure a conviction but not so much as to cause a reversal of that conviction. 27 This kind of overreaching would not be covered by the Court's standard because, by hypothesis, the prosecutor's intent is to obtain a conviction, not to provoke a mistrial. Yet the defendant's choice - to continue the tainted proceeding or to abort it and begin anew - can be just as "hollow" 28 in this situation as when the prosecutor intends to provoke a mistrial.
To invoke the exception for overreaching, a court need not divine the exact motivation for the prosecutorial error. It is sufficient that the court is persuaded that egregious prosecutorial misconduct has rendered unmeaningful the defendant's choice to continue or to abort the proceeding. It is unnecessary and unwise to attempt to identify all the factors that [456 U.S. 667, 690] might inform the court's judgment, but several considerations follow from the rationale for recognizing the exception. First, because the exception is justified by the intolerance of intentional manipulation of the defendant's double jeopardy interests, a finding of deliberate misconduct normally would be a prerequisite to a reprosecution bar. 29 Second, because the defendant's option to abort the proceeding after prosecutorial misconduct would retain real meaning for the defendant in any case in which the trial was going badly for him, 30 normally a required finding would be that the prosecutorial error virtually eliminated, or at least substantially reduced, the probability of acquittal in a proceeding that was going badly for the government. 31 It should be apparent from these observations that only in a rare and compelling case will a mistrial declared at the request of the defendant or with his consent bar a retrial.
No one case, of course, is a proper vehicle for identifying the limits of the exception. The Court repeatedly has shunned inflexible standards in applying the comparable "manifest necessity" exception to the general rule that a defendant [456 U.S. 667, 691] is entitled to go to final judgment before the initial tribunal. 32 The value of the overreaching standard, like "[t]he value of the [manifest necessity standard,] thus lies in [its] capacity for informed application under widely different circumstances without injury to defendants or to the public interest." Wade v. Hunter, 336 U.S. 684, 691 . The inexactitude of the standard used to protect defendants in the exceptional case surely should not concern the Court any more than the equally ill-defined formula used to protect prosecutors in the exceptional case. The scarcity of cases in which the exception has been invoked 33 counsels against pre-empting the judgment reflected in our decisions that an exception for overreaching or harassment should remain available for the rare case in which it may be needed. 34 We [456 U.S. 667, 692] should simply decide this case on its facts, as we did in United States v. Dinitz and Lee v. United States, 35 and thereby continue to give meaning to the "abstract formula" 36 in the context of actual cases.
The petitioner, 37 and the state court that denied the respondent's motion to dismiss, 38 have correctly pointed out that it is unnecessary to cut back on the recognized exception, or even to disavow the most liberal construction given it by the federal courts, to conclude that the exception has not been established on the facts of this case. The isolated prosecutorial error occurred early in the trial, too early to determine whether the case was going badly for the prosecution. If anyone was being harassed at that time, it was the prosecutor, who was frustrated by improper defense objections in her attempt to rehabilitate her witness. The gist of the comment that the respondent was a "crook" could fairly have been elicited from the witness, since defense counsel injected the respondent's past alleged improprieties into the trial by questioning the witness about his bias towards the [456 U.S. 667, 693] defendant. The comment therefore could not have injected the kind of prejudice that would render unmeaningful the defendant's option to proceed with the trial.
Because the present case quite clearly does not come within the recognized exception, I join the Court's judgment. I cannot, however, join the Court's opinion because it totally fails to justify its disavowal of the Court's precedents.
[ Footnote 1 ] Although I am willing to accept the Court's reading of the Oregon Court of Appeals' opinion as having been based on federal law, I find the question somewhat more difficult than does the Court because the Oregon Supreme Court declined to review the case without explaining its reasons. Since the Oregon Supreme Court seems to have interpreted the state constitutional protection against double jeopardy to be broader than the federal provision, see State v. Rathbun, 287 Ore. 421, 600 P.2d 392 (1979), it is entirely possible that that court's refusal to review the Court of Appeals' decision was predicated on its view that the decision was sound as a matter of state law regardless of whether it was compelled by federal precedents.
[ Footnote 2 ] United States v. Jorn, 400 U.S. 470, 479 (plurality opinion).
[ Footnote 3 ] United States v. Ball, 163 U.S. 662 .
[ Footnote 4 ] Arizona v. Washington, 434 U.S. 497, 503 .
[ Footnote 5 ] Id., at 505. The Court in Wade v. Hunter, 336 U.S. 684 , explained:
[ Footnote 6 ] "The reasons why [the defendant's `valued right to have his trial completed by a particular tribunal'] merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk than an [456 U.S. 667, 683] innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial." Arizona v. Washington, supra, at 503-505 (footnotes omitted).
[ Footnote 7 ] Society's interest, of course, is not simply to convict the guilty. Rather, its interest is "in fair trials designed to end in just judgments." Wade v. Hunter, supra, at 689.
[ Footnote 8 ] See United States v. Dinitz, 424 U.S. 600, 609 .
[ Footnote 9 ] Arizona v. Washington, 434 U.S., at 505 .
[ Footnote 10 ] Ibid.
[ Footnote 11 ] United States v. Jorn, 400 U.S., at 485 .
[ Footnote 12 ] The exception also encompasses comparable judicial misconduct. Because we are confronted with prosecutorial error, this opinion will address only that context.
[ Footnote 13 ] Ibid. The Court has never invoked the exception to bar reprosecution after a mistrial. In only two cases has the Court actually been confronted with a claim that the exception applied. In United States v. Dinitz, supra, the trial court had granted the defendant's motion for a mistrial after expelling defense counsel for repeated misconduct. In holding that retrial was not barred by the Double Jeopardy Clause, this Court articulated the exception and the reasons why it was not established on the facts of that case:
[ Footnote 14 ] United States v. Jorn, 400 U.S., at 484 .
[ Footnote 15 ] Id., at 484, n. 11. See also United States v. Tateo, supra, at 474 (Goldberg, J., dissenting) ("Many juries acquit defendants after trials in which reversible error has been committed, and many experienced trial lawyers will forego a motion for a mistrial in favor of having his case decided by the jury").
[ Footnote 16 ] "[I]t is evident that when judicial or prosecutorial error seriously prejudices a defendant, he may have little interest in completing the trial and obtaining a verdict from the first jury. The defendant may reasonably conclude that a continuation of the tainted proceeding would result in a conviction followed by a lengthy appeal and, if a reversal is secured, by a second prosecution. In such circumstances, a defendant's mistrial request has objectives not unlike the interests served by the Double Jeopardy Clause - the avoidance of the anxiety, expense, and delay occasioned by multiple prosecutions." United States v. Dinitz, 424 U.S., at 608 .
[ Footnote 17 ] Id., at 609.
[ Footnote 18 ] See Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 S. Ct. Rev. 81, 101-102.
[ Footnote 19 ] The prosecutor might wish to provoke a mistrial "in order to shop for a more favorable trier of fact, or to correct deficiencies in [his] case, or to obtain an unwarranted preview of the defendant's evidence." Id., at 94.
[ Footnote 20 ] Cf. Brock v. North Carolina, 344 U.S. 424, 429 (Frankfurter, J., concurring).
[ Footnote 21 ] Compare ante, at 675-676 ("Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause"), with ante, at 676 ("Only where the governmental conduct in question is intended to `goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion"), and ante, at 679 ("But we do hold that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial").
[ Footnote 22 ] The Court offers two reasons for cutting back on the exception. First, the Court states that "[t]he difficulty with the more general standards which would permit a broader exception than one merely based on intent is that they offer virtually no standards for their application." Ante, at 674. As I indicate in the text, however, some generality in the formula is a virtue and, in any event, meaningful and principled standards can be developed on a case-by-case basis that will not inhibit legitimate prosecution practices. See infra, at 689-692. Moreover, the general standards could hardly be more difficult to apply than the Court's subjective intent standard. On this point, it is noteworthy that JUSTICE REHNQUIST recently cited the exception for "prosecutorial overreaching or misconduct" to illustrate that double jeopardy analysis rests on "balancing and fairness" rather than "`bright line' distinction[s]." Finch v. United States, 433 U.S. 676, 680 (dissenting opinion).
Second, the Court is "not sure that criminal defendants as a class would be aided" by a broader exception. Ante, at 676. If a mistrial will more frequently constitute a bar to reprosecution, the Court supposes that trial judges will tend to refuse the defendant's mistrial motion and permit the error to be corrected on appeal of the conviction, in which event there would be no bar to reprosecution. This reasoning is premised on the [456 U.S. 667, 688] assumption that an appellate court that concluded not only that the defendant's mistrial motion should have been granted but also that the prosecutor intended to provoke a mistrial would not be obligated to bar reprosecution as well as reverse the conviction. The assumption is "irrational." Commonwealth v. Potter, 478 Pa. 251, 282, 386 A. 2d 918, 933 (1978) (Roberts, J.); see id., at 259-260, 386 A. 2d, at 921-922 (Pomeroy, J.); Westen & Drubel, supra, at 103, 106, n. 130; see generally Note, Double Jeopardy: An Illusory Remedy for Governmental Overreaching at Trial, 29 Buffalo L. Rev. 759, 773-776 (1980).
[ Footnote 23 ] For an example of the kind of case that the Court's limited exception would cover, see Commonwealth v. Warfield, 424 Pa. 555, 227 A. 2d 177 (1967).
[ Footnote 24 ] "As an initial matter, I question the validity of the lower court's assumption that the Government in such cases tailors its misconduct to achieve one improper result as opposed to another. It is far more likely that in cases such as this, where the prosecution is concerned that the trial may result in an acquittal, that the Government engages in misconduct with the general purpose of prejudicing the defendant. In this case, for example, the Government stood to benefit from Dixon's misconduct, regardless of whether it resulted in a guilty verdict or a mistrial. Moreover, even if such subtle differences in motivation do exist, I suspect that a defendant seeking to prevent a retrial will seldom be able to prove the Government's actual motivation." Green v. United States, 451 U.S. 929, 931 , n. 2 (MARSHALL, J., dissenting from denial of certiorari).
[ Footnote 25 ] Moreover, a standard that requires a prosecutor to take the stand to explain his trial strategy and his train of thought prior to making a serious error is of questionable wisdom.
[ Footnote 26 ] See, e. g., Shaw v. Garrison, 328 F. Supp. 390 (ED La. 1971), aff'd, 467 F.2d 113 (CA5 1972), cert. denied, 409 U.S. 1024 .
[ Footnote 27 ] The defendant's successful argument for a bar to reprosecution in United States v. Kessler, 530 F.2d 1246, 1253 (CA5 1976), was that "otherwise `a prosecutor would have the option of first trying his case with inadmissible, prejudicial, and irrelevant evidence - that is, committing known error - in hopes of "getting away" with it, with the ability to retry the case properly if the first trial is aborted by a mistrial.'"
[ Footnote 28 ] Ante, at 673.
[ Footnote 29 ] Deliberate misconduct generally must be inferred from the objective evidence. The more egregious the prosecutorial error, and the harsher its impact on the defendant, the more readily the inference could be drawn.
[ Footnote 30 ] Justice Harlan aptly described the defendant's interest as "being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate." United States v. Jorn, 400 U.S., at 486 . There is a corresponding societal interest against the historical and abhorrent practice of terminating trials whenever it appeared that the government's evidence was insufficient to convict. See Arizona v. Washington, 434 U.S., at 507 -508.
[ Footnote 31 ] In a case in which the prosecutor's intent is primarily to harass the defendant, and only secondarily to obtain a conviction, this consideration would, of course, carry much less weight. The Double Jeopardy Clause protects a defendant not only from "declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict" but also from "[h]arassment of an accused by successive prosecutions." Downum v. United States, 372 U.S. 734, 736 .
[ Footnote 32 ] See especially the Court's opinion in Illinois v. Somerville, 410 U.S. 458 . JUSTICE MARSHALL criticized the majority in that case for "abandon[ing] th[e] tradition [of elaboration of rules which give increasing guidance as case after case is decided] and [adopting] a new balancing test whose elements are stated on such a high level of abstraction as to give judges virtually no guidance at all in deciding subsequent cases." Id., at 483 (dissenting opinion).
[ Footnote 33 ] The petitioner and the United States as amicus curiae cite only a few cases in which the exception has been invoked to bar reprosecution. One commentator discovered only two cases in which a Federal Court of Appeals barred reprosecution. Note, Double Jeopardy: An Illusory Remedy for Governmental Overreaching at Trial, 29 Buffalo L. Rev. 759, 760, n. 16 (1980).
[ Footnote 34 ] "We should not be so unmindful, even when constitutional questions are involved, of the principle of stare decisis, by whose circumspect observance the wisdom of this Court as an institution transcending the moment can alone be brought to bear on the difficult problems that confront us. . . . Furthermore, we are not here called upon to weigh considerations generated by changing concepts as to minimum standards of fairness, which interpretation of the Due Process Clause inevitably requires. Instead, the defense of double jeopardy is involved, whose contours are the product of history. In this situation the passage of time is not enough, and the conviction borne to the mind of the rightness of an overturning decision must surely be of a highly compelling quality to justify overruling a [456 U.S. 667, 692] well-established precedent when we are presented with no considerations fairly deemed to have been wanting to those who preceded us." Green v. United States, 355 U.S. 184, 215 (Frankfurter, J., dissenting).
[ Footnote 35 ] See n. 13, supra.
[ Footnote 36 ] Wade v. Hunter, 336 U.S., at 691 .
[ Footnote 37 ] "The Oregon Court of Appeals' holding that retrial of this case was barred on double jeopardy grounds is erroneous by any standard of prosecutorial overreaching which the lower courts of this country had previously derived from the decisions of this Court." Brief for Petitioner 43.
[ Footnote 38 ] "I have reviewed the transcript and the wording, as put, and I would agree that the question was improper as put. I do not find, however, that it constitutes bad faith or was intentional impropriety. The question of whether or not it constitutes overreaching is one of those gray areas where we have to determine what `overreaching' means, and in looking to the case which the defense has cited, United States v. Kessler, prosecutorial overreaching is there defined as being such as must have been a result of gross [456 U.S. 667, 693] negligence or intentional misconduct which prejudiced the defendant so that he cannot receive a fair trial, and I wouldn't find that the overreaching or the erroneous conduct in this matter reaches that degree of aggravation. I don't think it amounted to gross negligence or intentional misconduct." App. 53. [456 U.S. 667, 694]


text:
GDC Technology is a leading
manufacturer and provider of cinema equipment and solutions including cinema
automation systems, cinema servers, cinema enterprise software,
cinema storage, cinema audio solutions, and cinema projectors
that meet the highly demanding performance, security and reliability
requirements established by motion picture studios.
About Us
Founded in 1999 and headquartered in Hong Kong, GDC Technology Limited ("GDC Technology") is a leading global digital cinema solutions provider with a 20-year history of first to market innovations. GDC Technology has the largest installed base of media servers and TMS ("Theatre Management System") in the Asia-Pacific region and the second-largest globally. One out of three cinemas in the world uses GDC products. Today, GDC has presence in 13 offices and 37 service centers* worldwide. GDC Technology holds numerous patents globally, including in USA and China. GDC Technology has established a global market presence with 13 offices and 37 local service centers around the world.
*33 GDC service centers and 4 outsourced service centers in Europe
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GDC Technology Limited

subset: commoncrawl


text:
Salt Lake Acting Company's annual satire Saturday's Voyeur is always dependent on Utah's latest cultural quirks and political adventures to provide fodder to playwrights Allen Nevins and Nancy Borgenicht. As a result, it's natural to expect some primo material in years when, say, the Utah Legislature delivers something like hot-tubbing trysts with teenage girls or another in a long line of idiotic revisions to Utah's insane liquor laws.
In watching the 2013 edition of the long-running SLAC fundraiser, it would seem Utah politicians have been on their best behavior because the show is unusually lacking in homegrown flavor, instead dwelling on the 2012 presidential election and Mitt Romney's role as savior to Mormon voters hoping for a national leader they can call their own.
If the Romney-Obama showdown seems like a lifetime ago, well, it seems the same as one watches the latest version of Saturday's Voyeur, this one subtitled 2013: The End of the World. In fact, it seems like a direct sequel (or maybe even rerun) of last year's version, taking place in the Church Office Building in Salt Lake City and showcasing largely the same characters, from Austin Archer's charming Nephi Jensen (one of only two Democrats allowed to work in the COB) to Justin Ivie's obsequious Elder Neldon Marriott to Kalyn West's island girl-turned-female missionary MoHanna.
With the collection of LDS security guards, elders, docents and (of course) Gayle Godzicka—this year played by Eb Madson, stepping in for long-time favorite Steven Fehr—anxiously awaiting confirmation of the Romney landslide prediction given by Karl Rove, aka the "oracle of Olympus," on their beloved Fox News, the story seems to stagnate, veering between episodes of characters bemoaning Obama's policies or fantasizing about what Willard Romney's ascension to the White House might mean.
Nevins and Borgenicht do briefly touch on some more recent hot-button issues, including the Boy Scouts' curious choice to allow gay scouts, but not gay scout leaders, as well as the Salt Lake Valley's atrocious air quality. But considering Utah Attorney General John Swallow has been wallowing in scandals since around the same time as the 2012 election, it was disappointing that his dalliances with alleged bribery and influence-peddling didn't get more than a couple passing mentions. The same goes for Sen. Mike Lee's obstinate, out-of-touch style of "leadership" his first year in Washington, D.C.; he seems like a natural target for the playwrights' barbs, but he gets off largely unscathed.
While the subject matter of this year's Voyeur is ultimately stale, you can't say the same for the performances. Director/choreographer Cynthia Fleming elicits some stellar song-and-dance routines from a cast full of familiar faces like Alexis Baigue and Jacob Johnson as the security guards and the three docents (played by Janessa Bowen, Connor Norton and Emilie Starr) who collectively act as a walking, talking, dancing Greek chorus of sorts.
With winning backing by the three-piece band delivering adaptations of songs like "Leader of the Pack," "Can't Touch This" and "Call Me Maybe," the production did provide its share of energetic performances and laughs from the audience I saw it with, but there was no shaking the feeling that 2013's version of Voyeur left a lot of potential on the table. Given the playwrights' consistently strong past scripts, that was a bit disappointing.
Here's hoping the Utah government and dominant religious culture find a way to inspire a whole new satire next year. Or at least some new situations for these characters to sing and dance their way through.
Saturday's Voyeur 2013: The End of the World runs at Salt Lake Acting Company through Sept. 1. Visit the Salt Lake Acting Company Website for tickets and showtimes. All photos by David Daniels.
jacob permalink
Outstanding read, I simply passed this onto the colleague who was simply doing a tiny research on that. And he actually bought me personally lunch since i found it with regard to him grin So i want to rephrase that.
Greg McNamee permalink
Joey and I saw it last Friday and I thought the same thing. It was funny and energetic, but it seemed to rely on recycled and dated material.
Comments are closed.


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Books are an end unto themselves
Books are one of the greatest delights of my life. I don't need many excuses to buy new ones, frankly, but when I do feel the situation is spinning out of control (my third trip in a week, say, to the Friends of the Library bookstore in Sylva), my book-buying ways are justified as "building a research library."
While I openly admit to self-deception on this score, there is a strong argument to be made for owning a good selection of reference books. The Internet is a wonderful tool, but it doesn't replace owning books — the information nicely supplements them.
Last week, while ostensibly on assignment interrogating Ryan Sherby of the Southwestern Development Commission for a couple of transportation-related news articles, our conversation soon wandered off into much more interesting territory: vegetable gardening.
Sherby, who lives in the Alarka community in Swain County, has turned the earth and prepared the soil for a Very Big Garden this year. I farmed for a time in Bryson City before moving to Sylva, so it seemed entirely natural to segue from road building (b-o-r-i-n-g) to discussions about much more vital issues, such as planting dates, vegetable varieties and so on (endlessly riveting). I've promised to unearth my seed-starting calendar and email it to him.
Ryan's and my discussion led me into a consideration of the books I rely on as a vegetable gardener. These books are as well used as my favorite hoe, and as important to my growth as nitrogen is for the growth of plants.
That said, here's a few of my favorites:
Related Items
• Four-Season Harvest, Eliot Coleman: A Maine organic farmer who has led the charge for growing yearlong. His books — there's others, all of them worth owning — form the basis of my approach to gardening, which I'd sum up with the truism, feed the soil and not the plant. Coleman's other books are: The New Organic Grower and The Winter Harvest Handbook.
• The New Seed Starter's Handbook, Nancy Bubel: Everything you need to know for growing your own transplants, and more. This is an excellent go-to reference that should be on every gardener's bookshelf. I learned a lot from this book about the importance of soil temperature when it comes to germination rates. In fact, Bubel's book inspired me to purchase a soil thermometer, which if I could locate said thermometer would, I'm sure, prove very useful and interesting.
• Root Cellaring, Mike and Nancy Bubel: As the title indicates, this book is about building and using a root cellar. That's handy, but also tucked inside is a terrific little growing section on vegetables that keep particularly well in the root cellar.
• The Vegetable Gardener's Bible, Edward C. Smith: the subtitle is "Discover Ed's High-Yield W-O-R-D System for All North American Gardening Regions," which has a breathless irritating quality that is repeated in places throughout the book. But if you can overlook the over-hyping of his method — which is simply using wide rows, organic techniques and so on, sound gardening methods but not exactly revolutionary — this is a fine guide. Like so many of the good vegetable gardening books, this is geared for the northern part of the nation, so you have to tweak information for the Southeast. I loaned my copy out and haven't seen it since, a reminder to me not to make loans, only gifts.
• The Essential Earthman, and anything else written by Henry Mitchell. This book is adopted from Mitchell's "Earthman" column in the Washington Post. He died in 1993, but not before penning some of the most delightful, witty words every written in America on gardening. Many of his columns are on flowers and not vegetables, but that's a petty point. Flowers are plants, too, are they not? And some flowers are even edible. Anyhow, buy and read Mitchell. You won't be sorry.


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After decades of controversy, the Boy Scouts of America may finally stop discriminating against gay scouts and scoutmasters. A new policy that will be considered by BSA's national board next week in Texas would allow each scouting unit to decide independently whether to allow gay members and leaders, rather than having the national organization set the agenda. OK, they're passing the buck from the top to the troops, but it's still a step forward.
Because it's a private nonprofit organization, BSA has won the dubious right to discriminate, including in a 2000 Supreme Court decision. But the bad publicity it's received—such as last year's controversy over fired lesbian Cub Scout leader Jennifer Tyrrell—along with growing acceptance for gay rights in the U.S. has suddenly turned the tide.
The long-standing anti-gay ban was reaffirmed by BSA just seven months ago, with the national board claiming it was "the best policy for the organization." However, about 50 local United Way chapters and several other corporations and charities have discontinued financial aid to the Scouts because of their anti-gay policies, and two corporate bigwigs on the BSA board, Randall Stephenson of AT&T (who is next in line to be national chairman) and James Turley of Ernst & Young, have said they would work to end the ban.
"The Boy Scouts of America is one of the last cultural institutions to have discrimination as part of their policy," points out Gay and Lesbian Alliance Against Defamation vice president, Richard Ferraro. The Girl Scouts of America, in comparison, have had an anti-discrimination policy since 1980.
If the new policy is approved, it will certainly move BSA in the right direction, but until the organization institutes a national policy to end LGBT discrimination, we can't give it a full merit badge.
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Smack dab in the middle of the summer superhero season comes this: a brand-new trailer and images for director Peter Jackson's next Hobbit flick, The Desolation of Smaug.
It's been a while since we've heard anything about Jackson's J.R.R. Tolkien adaptation (OK, since like December/January), so here at the mid-point between the release of An Unexpected Journey and Smaug we're getting a little taste of what the next chapter will look like. What's here? First, and probably most interestingly, we have elf warrior Tauriel (Evangeline Lilly) in action. (She fires arrows! Somewhat accurately!) There's also Azog (Manu Bennett) and Luke Evans as Bard the Bowman, among others.
However, what we can see here, but not hear here is Smaug himself. There's a glimpse of the eponymous dragon at the end of the trailer but no sound from the (everywhere all the time) actor playing him: Benedict Cumberbatch. Not that audiences don't already know what he sounds like—his "shall we begin?" from Star Trek Into Darkness is still booming through theaters—but of the things fans are anticipating in Smaug at the top of the list is, well, Smaug. Of course the big Cumberbatch reveal isn't going to come with the first trailer, but it would've been nice.
This new trailer and images also trumpets the return of Orlando Bloom as Legolas, and quite a bit of the gang from the last Hobbit flick: Bilbo (Martin Freeman), who is apparently exercising every opportunity to frolic and look scared in this trailer, Thorin Oakenshield (Richard Armitage), and Gandalf (Ian McKellen). And, overall, the trailer promises an action-packed ride, which would be a relief after An Unexpected Journey's, um, slower moments. Will it be better than its predecessor? Or will it just leave fans with their own desolation? We'll have to wait and see.
The Hobbit: The Desolation of Smaug hits theaters December 13. Check out the first trailer and new images from the flick in the gallery above.
Photos courtesy Warner Bros.


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Call number: FIC PRO
Young, newly rich Verity Daniels claims to be receiving threatening demands for money from a mysterious caller. When Jake Runyon agrees to investigate, it seems a relatively simple matter to expose the extortionist by setting a trap for him. The case, however, is nowhere near as clear-cut as it first appears. And Verity Daniels is nowhere near the helpless victim she pretends to be.
A series of surprise revelations culminates in Runyon being falsely accused of a crime that never happened, and he and his employers then become the targets of a vicious legal vendetta. A sudden act of violence turns the case upside down, leading to a much more serious charge against Jake.
With the help of partner Tamara Corbin, Nameless (known as Bill to his associates) puts aside the difficult personal issue that has kept him sidelined at home and works to clear both Runyon's and the agency's good names. The task requires untangling Verity Daniels's bizarre past and present relationships, and before Bill succeeds, he must overcome a deadly threat to his own safety.
Nemesis continues author Bill Pronzini's acclaimed Nameless Detective Series.
(From Barnes & Noble)


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What are people watching on YouTube
19.11.2013 13:01
Top 50 Most Viewed U.S. YouTube Channels • Week Of 11/15/13
[Editor's Note: Tubefilter Charts is a new weekly rankings column from Tubefilter with data provided by OpenSlate. It's exactly what it sounds like; a top number ranking of YouTube channels based on statistics collected within a given timeframe. We're starting things off simply with a Tubefilter Top 50 of the Most Viewed YouTube Channels This Week, but look for a lot more fun charts to come in the near future. Check out all of our Tubefilter Charts - with new installments every Friday - here.]
Scoll down to see the Tubefilter Chart and download a high-res version here.
It's another installment of the weekly Tubefilter Chart of the Top 50 Most Viewed U.S. YouTube Channels and Jimmy Kimmel is in trouble with child psychologists.
Chart Toppers
The YouTube channel for Late Night with Jimmy Kimmel is in the #1 spot on our U.S. Top 50 thanks to a now controversial Halloween prank.
As we explained in the Worldwide version of the charts this week, every year after October 31, the host of the ABC late night talk show instructs parents to tell their kids they ate all of their Halloween candy, record the semi-traumatic results, and upload the vids to YouTube. The team at Kimmel then cuts the best submissions together into a video. That video got enough views to bump Kimmel and company up to the top position on the chart with 47.44 million views on the week and also draw the ire of parents around the globe.
Eminem wrapped the week very close to Kimmel. The Rap God's YouTube channel amassed 47.36 million views in the last seven days, less than 80,000 shy of #1. DisneyCollectorBR, an online video repository of unboxing, tutorial, and playtime videos for adolescent toys, dropped down to #3 this week, with nearly 46 million views. Katy Perry is next in line at the #4 spot, still riding high off of her Roar with 44.7 million views on the week And Miley Cyrus rounds out the Top 5 with nearly 43.6 million views, showing her Wrecking Ball still has some momentum left.
Top Gainers
The honor of Top Gainer in the U.S. goes to an incredibly good cause.
Chicago-based creative producer Rob Bliss directed, produced, and uploaded to his YouTube channel a 2:51 time-lapse clip and ode to Veterans Day showing the transformation of United States Army Veteran Jim Wolf from disheveled and unkempt to handsome and well put-together. It's like that Dove Evolution commercial, except at the end of the video a homeless and struggling alcoholic is turned into an individual who's proud to look into the mirror and filled with a renewed sense of hope.
The video accounted for Bliss' channel seeing an uptick in views of 505,706% to end up at 13 million and the #43 spot on our U.S. chart this week. If you haven't seen the spot, yu should definitely give it a watch. And, if you feel so moved, donate to Degage Ministries to help other homeless veterans right here.
Channel Distribution
All in all, the top 50 most viewed U.S. YouTube channels this week amassed a total of 1,024,532,557 views. Here's the distribution of those channels by multi-channel network:
- VEVO: 18 channels in the U.S. Top 50, with Eminem topping out at #2.
- WMG: 4 channels in the Top 50, with Atlantic Videos at #38.
- Machinima: 2 channels in the U.S. Top 50,
- Machinima, Maker Studios, Zefr: 2 channels each in the Top 50, with Machinima's with SkyDoesMinecraft at #11, VitalyzdTv the top-ranked of Maker at #22 and Zefr's Movieclips Trailers at #14.
As always, keep up to speed with the latest Tubefilter Charts and all of our news at Tubefilter by following us on Twitter, becoming a fan on Facebook, and watching our videos on YouTube.
Download a high-res version of this week's Tubefilter Chart here.
OpenSlate is a video content analytics platform that tracks more than 50,000 YouTube video channels and measures their ability to attract, engage and influence an audience. By providing one consistent measure of quality – the SlateScore™ – OpenSlate helps marketers, producers and agencies hone their online video marketing strategy.


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Cranach, Lucas
or Kranach, Lucas both: lo͞o´käs krä´näkh [key], the Elder, 1472–1553, German painter and engraver. The son of a painter, he settled in Wittenberg c.1504 and was court painter successively under three electors of Saxony. There he maintained a flourishing workshop and was twice burgomaster. Cranach was a close friend of Martin Luther, whose doctrine he upheld in numerous paintings and woodcuts, and he has been called the painter of the Reformation. He was a rapid and prolific painter, and the work turned out by his studio is uneven in quality. Naïve and fanciful, often awkward in draftsmanship, it has, nonetheless, freshness and originality and a warm, rich palette. His portraits are particularly successful. Among his best-known works are Repose in Egypt (Gemäldgalerie, Staatliche Mus., Berlin-Dahlem); Judgment of Paris (Staatliche Kunsthalle, Karlsruhe); Adam and Eve (Courtauld Inst., London); and Crucifixion (Weimar). The latter contains figures of Luther and Cranach. His many famous protraits include those of Elector John Frederick and Self-Portrait (Uffizi). Cranach was also an accomplished miniaturist. He produced a few copperplates and designs for woodcuts. His son and pupil Lucas Cranach, the Younger, 1515–86, continued the tradition of his father, whose workshop, signature, and popularity he inherited. Their work is often indistinguishable.
See study ed. by E. Ruhmer (1963).
The Columbia Electronic Encyclopedia, 6th ed. Copyright © 2023, Columbia University Press. All rights reserved.
See more Encyclopedia articles on: European Art to 1599: Biographies


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HBGary, the security firm that saw its servers hacked and its e-mails released after its HBGary Federal offshoot angered the Anonymous hive, published a rather peculiar open letter this past Friday in an effort to address the "large amount of misinformation reported in the press." But the letter makes some questionable claims of its own.
The unsigned letter outlines the basics of the attack and asserts that HBGary's internal systems remained safe and uncompromised. To ward off future attacks, the letter also claimed that HBGary's website, which was hacked using a basic security flaw, and its e-mail system, which fell victim to weak, re-used passwords, were now back in operation with "even stronger cyber defense mechanisms."
HBGary says that the company's concern in the immediate aftermath was to determine if customers had been affected by the intrusion. On receipt of legal advice, the company's policy was to refrain from commenting on the e-mails, though it acknowledges that this may have led to the amount of "misinformation" floating around.
Deny everything
The main thrust of the letter is an effort to distance HBGary from the entire hack and its subsequent aftermath. Five specific claims are made: that HBGary and HBGary Federal are distinct, with separate "management, employees, and missions"; that HBGary was not involved in the research performed by then-HBGary Federal CEO Aaron Barr and was merely caught in the crossfire; that HBGary did not develop Stuxnet; that HBGary does indeed sell software to the US government and is proud of that fact; and finally, that HBGary's rootkit research is solely to help improve its own security products.
While the claims about Stuxnet and software sales to the US government are uncontentious, the others are more than a little surprising. For a start, some of the claims appear to be contradicted by the extensive e-mail dumps. Though HBGary representatives have implied that some of the e-mails may have been tampered with, the prodigious quantity of mail precludes any substantial effort to create fraudulent mail (and the company never responded to our request to identify any instances of such fraud).
While HBGary Federal was legally a distinct company (albeit one with some overlap in ownership), both the hacking methodology and e-mails subsequently published make clear that this distinction was far less clear in practice.
The hack itself revealed that HBGary and HBGary Federal used a single Google Apps account for its e-mail. Former HBGary Federal CEO Aaron Barr, whose actions provoked the hack in the first place and whose password was cracked, had administrative access to both HBGary and HBGary Federal mails. The e-mail accounts of HBGary Federal employees used the hbgary.com domain, not hbgaryfederal.com. HBGary Federal COO Ted Vera had access to a Linux server used by HBGary for providing support to its customers. And the e-mails themselves show that Aaron Barr was in regular correspondence with HBGary CEO Greg Hoglund. The two also worked together to decide how best to word press releases to promote HBGary Federal's work to uncover Anonymous.
From: Aaron Barr <email@example.com> To: Karen Burke <email@example.com>, Greg Hoglund <firstname.lastname@example.com>, Penny Leavy <email@example.com>, Ted Vera <email@example.com> Subject: Story is really taking shape Date: 2011-02-05 http://www.ft.com/cms/s/0/87dc140e-3099-11e0-9de3-00144feabdc0.html #axzz1D3oZIcTk -------------------------------------- From: Greg Hoglund <firstname.lastname@example.com> To: Aaron Barr <firstname.lastname@example.com> Cc: Karen Burke <email@example.com>, Penny Leavy <email@example.com>, Ted Vera <email@example.com> Subject: Re: Story is really taking shape We should post this on front page, throw out some tweets. "HBGary Federal sets a new bar as private intelligence agency." - the pun on bar is intended lol. -G
Indeed, from day one, the lack of separation between the companies was clear. Greg Hoglund's e-mail introducing new hires Aaron Barr and Ted Vera had the subject "Welcome Aaron Barr and Ted Very to the HBGary management team!"—hardly supporting the open letter's claim of "completely different management."
From: Greg Hoglund <firstname.lastname@example.com> To: email@example.com Subject: Welcome Aaron Barr and Ted Vera to the HBGary management team! Date: 2009-11-23 I am extremely excited to announce that Aaron Barr and Ted Vera have joined the HBGary team! Ted and Aaron will operate and lead HBGary Federal, a wholly owned subsidiary of HBGary, with a focus on contracting in the government space. They are very experienced and most recently built a $10 million/year business at Northrop Grumman. Both have won and lead multi-million dollar development projects and managed substantial teams. We have known Aaron and Ted for more than 5 years. These two are A+ players in the DoD contracting space and are able to "walk the halls" in customer spaces. Some very big players made offers to Ted and Aaron last week, and instead they chose HBGary. This reflects extremely well on our company. "A" players attract "A" players. Aaron will take position as CEO of HBGary Federal, and will be operating out of the DC area. Ted will take position as President and COO of HBGary Federal, and will be operating out of Colorado Springs. Welcome aboard! -Greg Hoglund CEO, HBGary, Inc.
So while the companies were legally distinct, their management and employees plainly, in practice, were not "completely different." At the very least, HBGary senior management oversaw and were involved with HBGary Federal's operations, and HBGary Federal employees had access to HBGary systems.
Next, the letter specifically distanced HBGary from Aaron Barr's research. The investigation into Anonymous was entirely HBGary Federal's doing, it says, and HBGary was an innocent bystander, caught in the crossfire when Anonymous sought retribution. Prior to the entire issue blowing up spectacularly in their faces, however, nobody from HBGary wanted to be distanced from the research.
From: Aaron Barr <email@example.com> To: Penny Leavy <firstname.lastname@example.com>, Greg Hoglund <firstname.lastname@example.com> cc: Ted Vera <firstname.lastname@example.com> Subject: BSides Talk Date: 2011-01-22 Hey Guys, I wanted to inform you of my research and content for the talk at Bsides. I have focused some of my research and talk around the anonymous group, a supposed loose collection of freedom of speech enthusiasts, anarchists, etc. They used to target the RIAA with DDOS attacks now they have taken up the cause of wikileaks, tunisia, venezuela, algeria, etc. They have received a decent amount of press about this. I am enumerating their communications infrastructure and plan to brief this as well as outing many of the major players within the group. This will likely make HBGary Federal, and likely HBGary a target. I have developed a persona that is well accepted within their groups and want to use this and my real persona against eachother to build up press for the talk. Pre-talk plan. I am going to tell a few key leaders under my persona, that I have been given information that a so called cyber security expert named Aaron Barr will be briefing the power of social media analysis and as part of the talk with be dissecting the Anonymous group as well as some critical infrastructure and government organizations I will prepare a press sheet for Karen to give to Darkreading a few days after I tell these folks under persona to legitimize the accusation. This will generate a big discussion in Anonymous chat channels, which are attended by the press. This will then generate press about the talk, hopefully driving more people and more business to us. But it will also make us a target. Thoughts? Aaron -------------------------------------- From: Greg Hoglund <email@example.com> To: Aaron Barr <firstname.lastname@example.com> Subject: Re: BSides Talk Date: 2011-01-23 Well, I don't really want to get DDOS'd, so assuming we do get DDOS'd then what? How do we make lemonade from that? -Greg
HBGary may not have been aware of the full extent of Aaron Barr's investigation, but completely in the dark they were not; Aaron Barr outlined his research to Greg Hoglund and Penny Leavy, Hoglund's wife and co-owner, on January 22nd, two weeks before the eventual hack. Though Hoglund expressed concern that the research might result in a denial-of-service attack against the company, he showed no qualms about either the subject matter of the research or Barr's investigative methods. When Barr's research started to get some publicity—notably, a story in the Financial Times—Hoglund was quick to praise Barr and leverage the media coverage to promote the companies.
HBGary may not have known everything that Aaron Barr did, but HBGary Federal was plainly operating with the backing of the parent corporation.
Ethical concerns
Perhaps more significantly, however, the open letter doesn't really distance the company from some of the more alarming or damaging revelations. The letter admits that HBGary sells software to the US government, and performs some amount of in-house rootkit development, but leaves the more substantial claims unaddressed. The e-mail trail showed that HBGary was pitching its rootkits to defense contractors, and writing what can only be described as malware; hostile programs that would exploit security flaws and install rootkits.
The letter claimed that this malware had never been used to attack "foreign countries," and that HBGary knew of no instance of production deployment. Instead, these novel rootkits were intended merely to "understand the offensive nature of our foes." Unfortunately, that doesn't really make much sense as an excuse. The company boasted to potential buyers of its rootkits how they went undetected by standard anti-malware software, a feature only useful if the software is going to be used in the wild. Greg Hoglund, in describing the plans for the HBGary Magenta rootkit, made clear that, in his view, nothing like it existed; this was no mere copycat of existing in-the-wild rootkits, but something new and unique. If Hoglund's assessment is accurate, the insight such a rootkit would give into HBGary's "foes" is negligible—it was technology that those foes hadn't invented and weren't using. This would be useful for attacking, but much less useful for defending.
HBGary may very well not actually know about real deployments, but that's missing the point. The concern over its actions were not that the company had explicit, detailed knowledge of actual hacks using its tools—of course the government wouldn't tell HBGary if this were the case. Rather, they concerns were that the company was developing these undetectable rootkits, selling (or at least, attempting to sell) them to defense contractors, at which point they could be sold to essentially any agency for any purpose—they could just as well be used to spy on domestic dissidents as they could on foreign powers.
From: Bob Slapnik <firstname.lastname@example.com> To: Greg Hoglund <email@example.com>, Penny C. Hoglund <firstname.lastname@example.com> Subject: Need 12 Monkeys price Date: 2009-04-14 Greg, Ben [redacted]'s customer may have $200k to spend. Ben wants us to give him a *price* to sell the software as a license where we retain the IP. The work would be firm fixed price (not hourly). This will not be viewed as contract work -- it will be viewed as our selling a product. We should only take the work if we believe we can succeed and do it in 2 months. It looks like, if awarded, our work will start in about 2 months. 12 Monkeys Details. Ben needs price quote for a complete tool that - finds MS Office files using the XRK technique to exfiltrate files - uses the 12 Monkey technique to exist and hide. - Runs on MS Windows XP sp2 and Office 2003. - both Client and Server side. Ben wants us to retain the IP so he can sell it to more customers.
Concluding the letter, HBGary bemoans the state of the press, complaining of low standards of fact-checking and a failure to verify information—something that it blames on the "blog-o-sphere." This comes after admitting earlier in the letter that the company's own refusal to communicate with the press (something that Ars Technica experienced firsthand) was likely to blame in part for that incorrect information. Though some of the speculation surrounding the case was indeed wild (see: Stuxnet), there was little reason to make things up; the facts alone were remarkable enough.
The open letter is a strange thing indeed. If HBGary's aim is to rehabilitate its image, flat denials of the facts revealed in the airing of its dirty laundry are unlikely to be effective. Claiming total ignorance and blaming Aaron Barr and HBGary Federal for everything—in contradiction of the e-mail evidence—is unconvincing, and failing to even acknowledge the serious ethical concerns about the way the business operated means that question marks over the company's conduct remain. But perhaps the letter simply reflects a corporate mindset that ethical constraints are irrelevant so long as one doesn't get caught. On that front, the letter is quite reassuring.


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A world spokesman
On Jan. 12, Michael Fahey stood in the shadow of the Great Pyramids, his first stop exploring Africa, tip to tip.
Over the next four months he will stand below massive Victoria Falls and visit remote parts of little-known Malawi and Zambia, and even the war-torn country of Sudan. His is a 7,000-mile adventure travelers dream of — a trip of a lifetime.
Fahey's working for his kicks. He's pedaling every mile on his bike.
"If I survive Africa," joked Fahey the day he left, "I'm hoping to go to Australia next year."
Fahey and his cohorts with Tour d'Afrique Ltd. started at dawn in Cairo and will ride through 10 countries before raising a victory toast in Cape Town 120 days later.
Along the way he hopes to inspire people to fight breast cancer — and get tested. He's raising money for the American Cancer Society.
It's the latest journey of self-discovery — as a true spokesman — for the father of three from Holley, Orleans County. He first got on a bike in 1990 to bake the idea of being a couch potato. He actually started out walking, going up to 10 miles a day.
"But it took too long," said Fahey. So he bought a cheap mountain bike at Toys "R" Us, and off he went. So far, he's ridden more than 10,000 miles in 15 countries.
His mission to battle cancer is dear to his heart.
Fahey's wife, Ruth, died in 1995 of breast cancer at age 48. His daughter Shari had breast cancer. His youngest girl, Shannon, has the gene for breast cancer. There is a likelihood his granddaughter will also have the gene. While Ruth was battling cancer, Fahey cared for her and would bicycle along Lake Ontario to meditate and pray in the worst of times.
"It gives me peace of mind to be on the road," says Fahey, 65. "I'm always thinking of my wife and kids."
After his wife's death, Fahey decided to ride across America. He finished in 35 days.
"After I did that, I thought, 'Hmm, 3,000 miles. I might as well do the rest of world," said Fahey.
He biked England and Ireland, then in 2002 flew to France and pedaled east to Poland. Then, it was Berlin to the Russian border. In 2005, he went from the Ukraine to Russia and into China, but maintenance problems, including ill-fitting wheel rims and spokes, cut the trip short.
It took him three times to cross China. Fahey's route was so remote that when he tried to pedal China for the second time in 2006, he could physically ride no more.
"I got 600 miles and ran out of road," Fahey said.
Last summer he finished and reached a milestone. He has bicycled across the world, west to east.
His accomplishment amazes him. "I'm an old man!" joked Fahey.
Fahey has so far raised a total of $10,000 for the American Cancer Society over the years. It's a very big accomplishment, says Ann Savastano, director of patient and family services for the Lakes Region office. The office covers seven counties, including Monroe, Ontario, Yates, Wayne and Orleans.
"I think what he does is amazing, considering he's a one-man show," says Savastano. "... He's able to utilize a passion that he has and something that gives him pleasure and joy, to make a difference. I think he's an amazing man."
Donations in Fahey's name are earmarked for breast cancer research, support for women with breast cancer and education programs that educate men and women about the importance of early detection and screening.
The Africa trip is the first Fahey has taken with a group. Fifty-seven cyclists from all over the world began the trip. In 2005, only 15 people managed to pedal every mile. He will average 70 to 80 miles a day, and a crew will carry his gear, food and water.
The route includes Sudan, a country plagued by genocide and civil war, and once stable Kenya, which is rocked by post-election violence. Fahey was optimistic before he left Rochester.
"I'm more worried about the creatures," said Fahey, "like snakes and spiders."
Learning about the countries and people he meets are his favorite parts of the journey. Going way off the beaten path, Fahey will get a unique glimpse of life in Africa, as he had in all the lands he's traveled.
"In Asia, they are poor. Poorer and than poor," said Fahey of his time in China, "and they are very gracious. ... I had people buy me supper, and another gentleman threw a party for me."
No matter what people read in the newspapers, said Fahey, "most places I've been, people have been very welcoming to me."
Fahey comes home in May. Then it's off to Australia, and to explore South America in 2010 while continuing his fundraising goals.
It's a unique perspective to see the world from the seat of a bike, and fitting for exploration.
"You have to watch the road," says Fahey, "You never know what's in front of you."
Inter-action information and links:
• www.cancer.org — The home page for the American Cancer Society.
• www.tourdafrique.com — The home page for Tour d'Afrique, the company Michael Fahey joined for a 7,000-mile cycling journey in Africa. Photos, route stops and more.
• (800) 227-2345 — A 24-hour telephone number for information about American Cancer Society resources, registering for programs and donations.
How to donate ...
• To donate to American Cancer Society, visit its home page, www.cancer.org, or call the local Lakes Region office at (585) 288-1950, attention to Ann Savastano.
• To donate to Michael Fahey's cycling journeys or to the cancer society, send checks to Michael Fahey, 2273 County Line Road, Holley, NY 14470. Designate money for either Fahey's trips or the cancer society.
Kris Dreessen can be reached at (585) 394-0770, Ext. 253, or at firstname.lastname@example.com.


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The Nuevo Leon state government says authorities found images of the scene on the smartphone of one of the officers, who is 23, while trying to determine now the Mexican media got photographs of the secured site, including images of body parts and personal documents.
Investigators searched the homes of the officers who secured the crash site and found victims' belongings in two. The government said Thursday it then arrested the 23-year-old and another officer who is 24.
The officers belong to a new state police force meant to be more effective and less corrupt than its predecessors.


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Atkinson John
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Atkinson John
John Atkinson Grimshaw (6 September 1836 – 13 October 1893) was an English Victorian-era artist best known for his nocturnal scenes of urban landscapes. Today, he is considered one of the great painters of the Victorian era, as well as one of the best and most accomplished nightscape and townscape artists of all time.


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Morton, Thomas
Morton, Thomas, fl. 1622–47, English trader and adventurer in New England. He visited New England in 1622 and returned in 1625 with Captain Wollaston, who founded a settlement at Mt. Wollaston (now Quincy, Mass.). When Wollaston moved on to Virginia, Morton took charge of the settlement, which was renamed Mare Mount, whence it was called Merry Mount. The Plymouth settlers objected to Morton and his companions, who were of the Anglican faith and who started a rival fur trade with the Native Americans. The Maypole festivities at Merry Mount especially scandalized the Pilgrims. A force under Miles Standish seized Morton, who was sent (1628) to England on charges of trading arms to the Native Americans and harboring runaway servants. He returned in 1629 and resumed his fur trading but was again brought to court in 1630 and sent to England. There he was employed by Sir Ferdinando Gorges as legal counsel in the attempt to void the charter of the Massachusetts Bay Company. Going once more to New England, he was imprisoned (1644–45) in Boston. Later he moved to Maine, where he died. His book, New English Canaan (1637, repr. 1883 with notes by Charles Francis Adams, 1835–1915), gives a bitter, satiric view of New England.
The Columbia Electronic Encyclopedia, 6th ed. Copyright © 2023, Columbia University Press. All rights reserved.
See more Encyclopedia articles on: U.S. History: Biographies


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Donna Whitehead: What is it about Bob?
It was crunch time. One day before the Destination Imagination tournament, and my son and his friend were the only two left of a five-person team able to go to Saturday's competition. That's when Bob stepped in as a last-minute replacement.
The three of them went on performing their hastily rewritten skit with Bob in the role of cameraman. They didn't win the competition, but they won rave reviews and a special award, inspired lots of laughter and brought some people to their feet with applause. They were a hit -- my son, his friend and Bob.
That was only the beginning of Bob's amazing appeal. Since his unexpected debut at the tournament, Bob has won friends and admirers wherever he goes. He has starred as Elvis in a musical murder mystery, was featured in my son's class yearbook, attended my son's teacher's retirement party and got a volunteer job at the Plainville Public Library.
It may not seem like much to you but we've all been tremendously impressed by Bob's accomplishments considering he's only about 4 feet tall, is made of cardboard and owes his friendly grin to a black magic marker.
After his debut, Bob went to school with my son and was adopted by his sixth-grade class. They gave him clothes, sunglasses and a pair of sneakers to help him fit in. The strong silent type, Bob soon grew comfortable enough to engage in a bit of small talk (thanks to a limited supply of speech bubbles), such as "Hi my name is Bob."
When Plainville Public Librarian Melissa Campbell visited the sixth-graders for a biography luncheon she heard Bob's story and was so impressed she asked Bob to come to the library when school got out and help with the summer reading program.
After school ended, Bob spent a few days at our house, hanging out on the coach. He quickly became a favorite of our cat who slept on Bob's lap (an honor few earn). Then my son dropped him off at his new post. Before the day was over one of his sixth-grade friends had paid a visit to the library and e-mails went out announcing Bob was at the library and on the job.
It's the perfect job for Bob who has already proved so inspirational to a classroom of sixth-graders, their teachers and the other students and adults he has met.
So far at the library, Bob's gotten to wear a cool space suit with a NASA label, taken part in story time and play Frisbee. He's right at home surrounded by books and young enthusiastic readers just like he was Plainville's Wood School.
So what is it about Bob? What's the secret of his success? The key to his popularity?
I believe Bob brings about a sense of fun and imagination in those around him. When with Bob it's easy to suspend disbelief and be a bit of a child again. And I don't think Bob would mind if I noted he also credits his success to the imagination and sense of humor of the Wood School sixth-grade class, which took him to heart.
Bob's a good friend. He stepped in when my son and his buddy needed a hand. Their belief in him inspired their friends to believe in him too. Those around Bob weren't afraid to be seen hanging out with a cardboard guy with a colorful print shirt and cool shades or even give him a lead in the school play.
Bob's very simple and accommodating. Bob's willing to be whatever you want to him to be. You just have to believe in him.
Belief and imagination — isn't that what summer reading is all about?
You can see Bob on the Plainville Public Library Web site at www.plainvillepubliclibrary.org or stop by in person, give him my regards and let him know what a great job he's doing. Or visit your own local public library and see what fun and exciting events are going on with their reading programs this summer.
Donna Whitehead is editor of the Easton Journal, Mansfield News and Norton Mirror. She can be reached at firstname.lastname@example.com.


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2017-06-09 TheresaMay-StatementAdd to Cart Add to Lightbox Download
London, June 9th 2017. British Prime Minister Theresa May, with her husband beside her, addresses the media after gaining The Queen's permission to form a government following the general election where her Conservative Party lost is majority in the House of Commons.
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- 2017-06-09 Theresa May addresses the media announcing that she will be forming a government