#244: Missed The Archers

This is mark Joseph “young” blog entry #244, on the subject of Missed The Archers.

Somewhere in the back of my mind I knew there was a Christian band called The Archers.  I knew quite a bit, actually–that it was a sister and two brothers of that surname with a backup band behind them.  I had seen somewhere an album cover of three faces, one of them a smiling blonde girl.  I think I never heard them, but somehow I must have done so because I had a notion of what they sounded like, and now scrounging through videos of their songs I find that notion to have been if not strictly correct at least comporting with what I would have thought at the time.

That assessent was that they had a pop sound that did not really appeal to me nor to most of my peers.

That’s not a particularly fair assessment, in a sense.  In researching this I listened to more than a few of their old songs, and they did a broad range of pop sounds from Gary Puckett and the Union Gap to the early disco-era Bee Gees to a bit of funk.  Their music was technically well-performed, with tight vocals and solid instrumental support, and they had some excellent lyrics in the mix.  Even so, when I try to listen to them while driving my wife always wants to change the music to someone else.  While they were probably recognizable from their voices, it never felt like they had anything uniquely original about their sound–of many of the artists of the time, there was always something about the way they played the guitar or the piano, or the vocal arrangements and frills, or the musical stylings, that so characterized them that you could recognize them when they were providing backup on someone else’s album.  The Archers thus were arguably very good, but not very interesting, that I recall.  They were a Light Records act back in the 1970s, and apparently kept going for quite some time, because as we noted that’s what musicians do.

Since I can’t really say I know any of their songs despite having recognized some (many of which I thought or even knew I heard from other artists), I’m not linking any videos here.  However, they have a MySpace page entitled The Archers | Listen and Stream Free Music, Albums, New Releases, Photos, Video, which I have discovered but not explored, so if you are an Archers fan, they must have been out there not very long ago (since the MySpace rebuild, anyway) and you might be able to catch up on what they’ve been doing.

For my part, I’ve got a lot of artists ahead who interest me much more.

*****

The series to this point has included:

  1. #232:  Larry Norman, Visitor;
  2. #234:  Flip Sides of Ralph Carmichael;
  3. #236:  Reign of the Imperials;
  4. #238:  Love Song by Love Song.
  5. #240:  Should Have Been a Friend of Paul Clark.
  6. #242:  Disciple Andraé Crouch.

#243: Verser Redirects

This is mark Joseph “young” blog entry #243, on the subject of Verser Redirects.

With permission of Valdron Inc I have now completed publishing my first three novels, Verse Three, Chapter One:  The First Multiverser Novel, Old Verses New, and For Better or Verse, in serialized form on the web (those links will take you to the table of contents for each book).  Along with each book there was also a series of web log posts looking at the writing process, the decisions and choices that delivered the final product; those posts are indexed with the chapters in the tables of contents pages.  Now as I am posting the fourth, Spy Verses,  I am again offering a set of “behind the writings” insights.  This “behind the writings” look may contain spoilers because it sometimes talks about what I was planning to do later in the book–although it sometimes raises ideas that were never pursued.  You might want to read the referenced chapters before reading this look at them.  Links below (the section headings) will take you to the specific individual chapters being discussed, and there are (or will soon be) links on those pages to bring you back hopefully to the same point here.

There is also a section of the site, Multiverser Novel Support Pages, in which I have begun to place materials related to the novels beginning with character papers for the major characters, giving them at different stages as they move through the books.

This is the fourth mark Joseph “young” web log post covering this book, covering chapters 64 through 84.  These were the previous mark Joseph “young” web log posts covering this book:

  1. #218:  Versers Resume (which provided this kind of insight into the first twenty-one chapters);
  2. #226:  Versers Adapt (covering chapters 22 through 42);
  3. #235:  Versers Infiltrate (covering chapters 43 through 63).

History of the series, including the reason it started, the origins of character names and details, and many of the ideas, are in those earlier posts, and won’t be repeated here.

Chapter 64, Brown 127

The scene so obviously lends itself to that stock moment Derek describes that I had to include the description–and then ignore it.  Bomb defusing is of course very nerve wracking no matter what happens, but the idea that it did not go the way it goes in the movies seemed to be worth including.

There is of course an irony in the comment that Derek’s life is not being written by some author.

The bathroom reference is because they’re almost never mentioned in games and you only see them in movies if something dramatic is going to happen there–a fight scene, a seduction, a confrontation.  It was a way of humanizing Derek, who has been running around chasing terrorists probably for a few hours, and now wants a bathroom.


Chapter 65, Kondor 112

I knew when I set up the “section five of the war code” segment that even though Bob would be expected to know what that meant, no one would be surprised to have Joe ask, and that was how I would get it communicated.

The race war does make it unlikely that there would be infiltrators; any spying would have to be done by people who obviously didn’t belong where they were.


Chapter 66, Brown 128

Derek’s report of his actions in the raid would have sounded like fantasy at first, as he talks about changing forms.  Of course, the fact that he is serious about it and others in the room take it seriously undoubtedly helps give it credibility.

By this time I had made the change (a few Brown chapters before) of resequencing the book to pull Derek’s story forward.  I now knew I wanted another spy adventure of some sort, something different, but spent a lot of time trying to figure out what.  In the meantime, I pulled his loneliness back to the forefront.


Chapter 67, Slade 111

The notion that a verser can claim to be anyone but cannot usually prove his identity in his present universe often appears in play, but I should note that I first saw it in a Peter Davison Doctor Who episode (Black Orchid) in which a murder had occurred and he was faced with the problem of explaining his identity to the local police.  I had to consider what Bob had that might suggest the truth of his claimed identity.  I remembered the ring, but for Bob it was simply the chest at this point.


Chapter 68, Kondor 113

My uncertainty about Derek’s next mission slowed his story, and for the first time in quite a while I let both Bob and Joe continue their stories before returning to him.

It is difficult to know exactly what Joe thinks of Bob’s story about releasing the djinni from the bottle.  He obviously thinks it a fanciful tale, but does not consider what that means in terms of the fact that Bob presents it as if it were true.  That is, did something happen that caused Bob to believe the story of the djinn lord being released from the bottle, or did Bob create the story and disseminate it pretending it to be true, for some other reason?  Of course, the existence of the antique bottle adds color to the story, and causes what the British would call “the punters” to accept the tale more readily.

The wind responds in support of its ally, as well as it is able in this lower-magic world.  Joe of course attributes this to happenstance.


Chapter 69, Brown 129

I was stalling a bit, but also trying to provide credibility for improved skills in some training time.  I was also stepping away from the Kondor/Slade story, in part because I was not certain where it was going and in part because I thought it had created some suspense to hold the reader for a moment.

I selected what I thought were probably the major languages in the world of modern espionage.  I specifically did not include some obvious ones as not really that significant in the kind of work he was doing.


Chapter 70, Slade 112

I was playing this by ear to a significant degree.  When the general asked Slade whether he objected to keeping the inquiry open, I thought immediately that if Slade objected it might close the inquiry, and I needed the story to continue; but then by the time I started writing this I realized that there was bound to be an appeals process, and a closed inquiry would probably mean taking it to another level.

Bob’s perspective on history makes the women’s suffrage movement “ancient history”.  He was never interested in the world before the present, so he doesn’t know much about it.


Chapter 71, Brown 130

I thought about what I could do next, and decided that I should send Derek on a foreign mission–let him use his passports and such.  I thought that an embassy or consulate would be the right choice, because it wouldn’t require him to be better at another language than he had any right to be.  I thought that investigating a security breach or leak was a reasonable choice, in part because I couldn’t remember any movies where that was the hook so I wouldn’t be tempted to follow someone else’s plot.

I chose Romania for a couple reasons.  One is it’s the only country I have ever visited for any length of time–three weeks back in 1972.  I picked up a few words most of which I have since completely forgotten (I can say “what does this cost” and “thank you”, I think, maybe “you’re welcome”).  There’s also the moment in The Thomas Crown Affair (the newer version) when the cop asks insurance investigator Banning if she speaks any Romanian, and she says, “Who would ever bother with Romanian?” and proceeds to talk to the criminal in Russian.  I actually wrote about that in a Game Ideas Unlimited piece about skills which I do not now remember beyond that reference.

Every fictional spy organization has a section that handles special equipment; I needed a name for mine, so I called it “Gear”.  That way I wasn’t stealing from anyone.

I got a kick out of the bit about the British secret service saying everyone else in the world drives on the wrong side of the road.


Chapter 72, Kondor 114

I kept thinking that Joe’s overriding story was going to be about his racial prejudice.  The problem is that every time I brought it forward at all, it began to resolve, and here it pretty much comes to its completion.  Thus I keep thinking that Joe needs a story, and I don’t have one for him–although his character development has been genuinely positive in so many ways.


Chapter 73, Brown 131

The Coke® and Pepsi® observation is one I made on my 1972 visit to Romania, where we also stopped at Prague and bought Coke® in the airport, but then found only Pepsi® during our three-week stay in Romania.  The rest I deduced at the time.

I decided that the best way for Derek to avoid talking about his cover background was to include in the cover that he was not interested in diplomatic service and didn’t want to be here.  That immediately suggested that he must have something else he wants to be doing instead, some different future for himself.  Rock star came to mind, and artist, but he had no skills in those areas; comic book creator suffered from a similar problem, and I did not think that author would be the kind of thing that fit the profile.  I was about to consult with family and fans on the subject when it occurred to me that the big deal today is video games, and Derek certainly can pass himself off as an aspiring computer game designer.

The idea that you get promoted to the place where you are no longer competent is one of the stated corollaries of the Peter Principle; I was not certain at the time that I wrote it, but I was certain that Derek wouldn’t know the origin of the idea.


Chapter 74, Slade 113

The notion that the secret weapons project was at a secret location provided a solution to the problem of Bob not telling the general where he was going; versers have to get good at explanations that explain why they don’t explain more.


Chapter 75, Kondor 115

I wasn’t sure what should happen in this story at this point, so I decided to get my characters to discuss it and see what they thought.

Joe’s prejudice against people who believe in God and magic is growing into a new problem, but I don’t see yet how to resolve it.

This was a strange point in the editorial process.  I had written Kondor stories through 118 and Slade stories also through 118, taken Joe into another world and brought Bob to a place where I was not at all certain what to do with him next, and had then shifted all the Brown stories forward and was filling in his events.  I knew that I had another significant Brown story to tell that was still forming in my mind (the Romanian leak) but didn’t know what was going to happen; I was still in the mode of rushing his story because it was the different world.  I was beginning to think that Bob was going to vanish from the book for a while, because after his upcoming confrontation with Mlambo (the last chapter I had already written) I had nothing.  I abruptly decided that it was time to skip a Brown chapter and bring a Kondor chapter forward, so that Derek would seem to be in stall mode for a bit.  It didn’t really help me with the writing time, because this chapter had already been written and simply had to be slotted into the space and properly numbered, and I would still have to write Derek’s next chapter next anyway, but I thought it would work better in the flow of the book.


Chapter 76, Brown 132

I was a bit stymied myself, and I remembered that one way I use to figure out what the character should do is to have the character try to figure out what he should do, so I put Derek into the mode of trying to identify what kind of person might be the leak.  I thought of four good possibilities, and left it at that, partly because at the time I was late for something else and had to type quickly.


Chapter 77, Slade 114

At this point I’m working through the options by having the characters discuss them.  I’m still not certain what I’m going to do.
It is worth mentioning that I had written this chapter probably several months before I had written the previous chapter in which Derek is doing much the same thing (considering the possibilities).  I’m not sure that I didn’t get the idea of doing it for Derek from the fact that I had noticed it upcoming here, but they were done quite some time apart, and this one first.

When Kondor said that if there were gods controlling their destinies, it would be time to verse out, I did not think it was going to happen any time soon.  It happens to be coincidental, but very telling that what Joe says the multiverse would be like if there were gods happens to happen, and he ignores the exact evidence that he suggested would support such a belief.


Chapter 78, Brown 133

I now had shifted the burden such that I needed to write a lot of Derek’s story in order to slot it between Bob and Joe.  As I struggled with how to proceed with Derek, I remembered thinking, and writing somewhere, that the way to write a mystery is to begin with the conclusion:  decide who did what, how and why, and then work to what clues would be left behind in that case, and then how the detective discovers them and assembles the crime from them.  Yet when I wrote the mystery of the vorgo section of Old Verses New I did not actually do it that way.  I think I started that way–I was going to have the former student be the criminal, who stole the vorgo because his wife had recently died and he hoped he could revive her–but my story managed to go rather directly to him and I thought then that it was too easy, so I changed my criminal as I was closing in on the solution.  (This also gave me the inspiration, eventually, for the game version in which there were six possible suspects and slightly different clue sets for each.)  So now as I faced what is a mystery for Derek, I was floundering in part because I didn’t know who should be the villain–indeed, I didn’t even at this point have a cast of characters for it.  So I was going to have to develop that to get to the solution.

I had begun with a British consulate, but when I started doing online research I discovered that there was a British embassy in Bucharest.  I sent them an e-mail asking for some idea of the staffing and housing there, and got a very nice reply saying that for security reasons they could not tell me any of that–but then, I had also browsed their web site and their Flickr site, so I got a fair amount of flavor from those.  After the fact, my wife said I should not have sent the note, because it was obvious they couldn’t answer my questions and likely that I got myself added to some sort of terrorist watch list for my efforts.

In the time immediately following the writing of the previous Brown chapter I was turning over the possibilities in my mind, and realized that there was a fifth possible motive for the leak.  Someone might do it strictly for the excitement.  I wondered if that was plausible, and also whether it was possible to catch such a person, and if so how.


Chapter 79, Slade 115

I decided that I would move Joe to another world now, and do it simply by having Shella notice that he was no longer there.  I’d cover how it happened retrospectively later, and not have to deal with it directly.

The thing about the wife knowing that the husband is awake before the husband does comes from my personal experience.

I was still undecided about what I would do with Bob and Shella.  On one hand, there wasn’t much I could do with them in this world; on the other hand, I didn’t have any good ideas for a next world for them and there probably were a few things they could do here, if I could think of them.


Chapter 80, Brown 134

It took me several days to get a chance to discuss the idea that the leak might be done by someone seeking excitement with someone else.  It wound up being Evan, my fourth son, who reminded me that in the digital world hackers frequently do it for the thrill, for the ability to prove to themselves and, anonymously, to others that they can.

I took that computer connection and sort of reversed it:  I had come to the idea that Derek got a thrill from hacking systems from that discussion, but I used that recognition on his part as a bridge to the idea that his spy might be doing it for the thrill.  Most of the discussion about how to run the computer part was there to set up that jump.


Chapter 81, Kondor 116

I decided to put Joe in a not-quite-modern military base somewhere, and set up some kind of investigation of something.  The general look is probably nineteen fifties or sixties, and his camouflage fits.

Colonel Roberts is white.  The Adjutant, Lieutenant Philip Vargas, is white; the Exec is black, Captain David Nye.

The trick with “how do you pronounce the name” doesn’t always work, but it often does.

I don’t know why I put together the name “David Nye”; I feel like I’ve heard it somewhere, but the only Nye I can place is the science guy, Bill.

He gives himself the rank of captain, because he needs a rank and preferably of a mid-level officer.  It needs to be high enough to be respected but not so high that it’s easy to trace.

The list of common names includes my own name and my wife’s maiden name along with some others I’ve encountered multiple times in my life.

When I started thinking about integrating Kondor into this world socially (at what was chapter 102) I thought of poker games, and then that he couldn’t play because he had no money in this world and no way to get it, and that reminded me that he was wearing a lot of jewelry.  So I added the end bit about stowing the jewelry somewhere.


Chapter 82, Slade 116

Having separated Slade from Kondor, it no longer made sense to go to Derek every other chapter, particularly as I was at this point writing Brown chapters to catch up and had a new story to tell for Joe.  So the press of Brown chapters slowed a bit.

The questions about how SEP invisibility works when people who are not present are watching remotely is always a tricky one, and gets raised at this point but not answered.

I decided they would get into the bunker without incident, but they of course could not know that until they did.


Chapter 83, Brown 135

About this point I pondered an idea of giving one of the staffers an androgynous name, such as Terry Farnsworth, and having the gender be different in the London listing than in the Bucharest one.  At first I was thinking that it was a replacement, the solution to the puzzle; but then, as hard as the puzzle had been, that would have made it too easy.  Then I thought it might be that it was the same person, probably Terry as a woman who at some point disguised herself as a man to advance her career.  Then I couldn’t decide whether she was listed as a woman in the original file but changed it to a man somewhere along the way and was pretending to be a man, or whether she had originally listed herself as a man years ago when it was harder for women to advance, but had since changed it in the local file when it was no longer necessary to pretend.  But there was another problem:  the facial recognition software would detect that Terry was Terry regardless of what gender was in the photo.  That would be exactly the kind of disguise the software would “see through”, and that meant that Derek would find it not by running facial recognition but by running more detailed data comparison–and if his image recognition program told him that all the images matched, he probably wouldn’t go deeper on the data.

I was still musing on this for several days, and then had the thought that someone might leak information for love.  I wondered whether Derek would think of that, but then I thought perhaps he would be smitten with someone at the embassy, and at that point I envisioned a daughter of the ambassador, perhaps about fifteen years old.  Then I thought that it might be plausible for her to be the leak, that the Romanians had a man perhaps twenty-two or twenty-three years old who looked young for his age, who had effectively wooed or seduced the ambassador’s daughter, and she brought information to him because she thought he loved her.  Derek might discover this because the boy would wind up an imagined rival, and he would have investigated.  That might work.

I decided to bring in the girl, but now I needed to give her a name, and that was problematic.  Whatever name I gave her either would connect too closely to the real British embassy in Romania or break the connection to reality.  I did some research, but could find no indication that the current ambassador, Paul Brummell, had any family–and in any case I did not want this to be quite so recent as his appearance in Romania in 2014.  I had a list of previous persons in that post, and considered Quinton Quayle, who served 2002 through 2006, which is a lot closer to the time I wanted, but also determined that he had two sons, no daughters–and since Quayle was the name of an American Vice President and Presidential candidate, I thought I should avoid that connection.  Martin Harris, the ambassador previous to Brummell (2010-2014), had a daughter named Tabitha; but despite the huge number of “Tabitha Harris” entries obtained from Google, it struck me as an unusual name which connected with the British Romanian embassy could get me in trouble.  So I decided to invent another Harris daughter, or perhaps replace one with the other, and since the only Tabitha I recall ever was the daughter on Bewitched, I named my girl Samantha Endora Harris, after the other female characters in that family.

Once I had the name Samantha, Sammie was a simple step.  Most Samanthas seem to go by Sam, but I remember the sister of one of my sons’ friends was called Sammie.

When I originally put the bug on Sammie it was “in” her purse, and audio was sufficient for my purposes; when I started on the second Romanian story I needed Derek to have collected GSPS positions and some images, so I decided that the bug here had those capabilities.  Video was obviously problematic, though, because for a camera to see out it would have to be visible.  I abruptly resolved this when I was moving it from “in” to “on” by deciding that as a fifteen year old girl she had a lot of bric-a-brac decorating her purse, so a small bug pinned to the outside could hide in the clutter.


Chapter 84, Kondor 117

I’m building the new world as I go; I had decided almost nothing about it at this point, but that it was a mid twentieth century sort of variant earth.

The name Porthos comes from The Three Musketeers; I decided that I could use someone equivalent historically to Lafayette, perhaps.

The flag is not yet clearly identified beyond that it has some number of white stars on a blue field and red and white stripes.  The country is probably “The United States of America” but calls itself “United”, not “America”, a small difference.

I added the part about stashing his jewelry when I did the backwrite to better integrate him in the world.


This has been the fourth behind the writings look at Spy Verses.  If there is interest and continued support from readers we will continue to publish this novel and the behind the writings posts, and prepare the fifth novel to follow it.

#242: Disciple Andraé Crouch

This is mark Joseph “young” blog entry #242, on the subject of Disciple Andraé Crouch.

In 1973 Andraé (often spelled André) Crouch released an album recorded live in Carnegie Hall the previous autumn.  I was in that audience for that performance, and remember the excitement of the performance that had a mostly young white audience on its feet.

Prior to that I had never heard of him; I wasn’t at Carnegie Hall to hear him.  He was one of six performers that night; he wasn’t even the only one recording an album.  I was there because I was a big fan of the fourth act, Rock Garden, and because I had long wanted to hear the third, The Maranatha Singers, and because this was, in its own way, a moment in history.  New Milford’s Maranatha Church of the Nazarene had sponsored the first major multi-artist Christian rock concert in the northeast, precursor to–well, that’s a bit of history in itself.

The church, home of the Maranatha Coffeehouse and Maranatha Band, decided to attempt to run a concert in Carnegie Hall, and so completely oversold the hall that they filled the large church across the street.  I don’t remember what they called these, but it was the first of, if I recall correctly, four such concerts over the next several months.  The second I know I attended, but of it cannot remember more than that it was originally intended to be in Madison Square Garden, but as that proved too ambitious it was moved to the smaller Felt Forum there.  I do not recall the third at all, but the fourth was held in three different cities and featured then-popular premillenial author and speaker Hal Lindsey (The Late Great Planet Earth).  I always perceived them as the precursor to what I think was the first east coast Woodstock-like Christian rock festival, Jesus ’73, held that summer.  I didn’t make it there, but my friend Jack Haberer took my cassette recorder, a stack of tapes and a batch of batteries, and brought back teachings from such people as Stuart Briscoe and Tom Skinner, which I listened to time and again for many years.  This was the beginning of that.

Of course, Crouch’s involvement was in a sense incidental to that.  Still, he was a major artist for decades, winning seven Grammies and six Dove Awards and several other recognitions.

What Andraé did was something like what The Imperials did from the Southern Gospel direction:  he brought the stylings of Black Gospel into Contemporary Christian Music.  The way the music would end and then abruptly restart to sing the chorus again, the soul counterpoint vocals, these were mostly new to the mostly young mostly white Christian audiences of the Jesus Movement.

It actually bothers me to say that, because I read a review of the concert a few days after I attended it, and the critic credited the excitement there to those things.  I want to say that Andraé had an unquestionable anointing in his music.  God clearly gave him a gift–and the story has been told about that gift.

The story is that Reverend Crouch’s church had no piano player, and were praying about what to do about their unaccompanied music.  Suddenly, unexpectedly, the Reverend called his grade-school boy to the front, and said, “Andraé, if God gave you the gift of music, would you use it for his glory?”  The eleven-year-old Andraé said yes, the church prayed, and two weeks later he began playing the piano in the church–and continued playing for decades.  It was rumored that eventually someone attempted to teach him to read music, and he couldn’t grasp it, although eventually he managed to get past the basics to work more broadly in the music industry.

I never owned an Andraé Crouch album; I’m not sure I heard one until Finally was delivered to the radio station.  However, I knew quite a few of his songs.  I taught the Luther College Agape Singers to sing Jesus Is the Answer, and still today I often find myself singing fragments of It Won’t Be Long–I love the part, Count the years as months, count the months as weeks, count the weeks as days, any day now we’ll be going home.  I remember singing Through It All (this video includes Andraé telling the story about receiving the gift of music) while paddling through rapids on rivers in the Adirondacks and on the Delaware.  Looking over his discography, I immediately recall The Blood Will Never Lose Its Power, I Don’t Know Why Jesus Loved Me, and My Tribute (To God Be The Glory).  Even people who weren’t fans knew some of his songs; some of those wound up in my aunt’s Southern Baptist hymnal, and Jimmy Swaggart (who preached against any possibility that God could use contemporary Christian music) recorded at least one that I recall.

His twin sister Sandra (behind him in the featured photo) sang with him in the early days and also had an illustrious career, with a Grammy of her own and several solo albums, but I never heard her outside of her work with The Disciples, the name of the band for most of his early career.  He was embraced as one of the Contemporary Christian artists of the time, and appeared on the later Keith Green tribute album First Love with quite a few other artists in our series.

His first album was released in 1968; he died in 2015.  Between those times, he contributed a great deal to Contemporary Christian music and to music generally, and to the advancement of the Kingdom of God.

*****

The series to this point has included:

  1. #232:  Larry Norman, Visitor;
  2. #234:  Flip Sides of Ralph Carmichael;
  3. #236:  Reign of the Imperials;
  4. #238:  Love Song by Love Song.
  5. #240:  Should Have Been a Friend of Paul Clark.

#241: Deportation of "Dangerous" Felons

This is mark Joseph “young” blog entry #241, on the subject of Deportation of “Dangerous” Felons.

The United States Supreme Court decided a case entited Sessions v. Dimaya (84 U. S. ____ (2018)) which has created a bit of a stir.  The basics of the case are that the defendant/respondent Dimaya (pictured) is a long-time legal resident alien twice convicted of burglary under California law, and Immigration and Naturalization Services decided to deport him under a law that permits the deportation of any non-citizen who commits an “aggravated felony”, as defined by 18 U. S. C. §16, which includes the wording “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  The majority opinion, written by Justice Kagan, held that that provision was “void for vagueness”, relying on a previous case which considered similar language in another statute.

What has the legal news world buzzing is that Justice Gorsuch concurred with most of that opinion, and with the judgment, although he also wrote a separate concurring opinion explaining his position.  Chief Justice Roberts and Justice Thomas both wrote dissenting opinions, and the court split five-four, Gorsuch viewed as the swing vote in a ruling that otherwise had the liberal members of the court in the majority.

There is much about the case that is interesting, and some that is at least confusing, as it raises many varied legal issues and viewpoints.

The argument of the majority seems to be that there is no way to tell whether burglary is an aggravated felony.  The majority says that the statute would require the court to consider not the elements of the crime itself, nor the specifics of the facts of the case, but the “ordinary case”, and then demonstrates how foolish it is to attempt to identify the “ordinary case” of a wide range of serious felonies.  For example, is the ordinary case of kidnapping an armed ruffian grabbing a victim off the street at gunpoint and forcing him into a van to hold for ransom, or a non-custodial parent quietly picking up a child from school?  It becomes impossible to tell, they maintain, whether any given crime, in the “ordinary case”, is necessarily likely to be violent.

Already I am confused.

When I was prepping for the bar exam a quarter century back, I had to learn a list of what was I think ten “dangerous felonies”.  I remember the list, which included both actual and attempted versions of each crime, as including murder (intentional homicide), robbery (theft by force or threat of force), assault (threat of force), arson, rape, and riot–six out of ten, not too bad, and was burglary one of the ones I missed?  A quick internet search finds a felony murder list (well described at that link) to include kidnapping, rape, arson, robbery, and, yes, burglary.  It sounds to me like the Common Law recognizes burglary as a potentially dangerous felony.

Of course, therein lies part of the rub.  Burglary has a Common Law definition, but also a myriad of statutory definitions.  The Court seemed to think that the California statute under which Dimaya was convicted was broad enough to cover dishonest door-to-door salesmen, and that the question of whether such crimes were typically violent was extraordinarily difficult.

What, though, is burglary?  It’s complicated, because it’s what we call a double-intent crime.

If you were working on, say, a rooftop billboard, and you fell and crashed through a skylight into someone’s apartment, you would not be guilty of anything save perhaps some negligence.  You never intended to enter the apartment, and assuming you don’t then form the intent to stay there or commit a crime while on the premises, it’s just unfortunate.

If a storm is coming and you break into an abandoned warehouse for shelter, you’re guilty of breaking and entering and trespass, but as long as that’s all you do you’re not guilty of burglary.

Burglary, legally, means unlawful entry with the intent to commit a felony.  It is that second intention that makes it a serious crime.  Usually the felony is theft, and in the Dimaya case that was the felony involved.  Burglary is considered a violent felony in part because many of the crimes with which it is associated (to commit murder, rape, arson, et cetera) are violent, and in part because it is considered a risk that someone unlawfully entering a residence might encounter the resident leading to a violent confrontation.

However, noting that in the present case the issue involves a conviction for burglary as defined by a statute with a very broad sweep, the majority decided that it would be impossible for a judge to determine reliably what the “ordinary case” would be, and how great the potential risk of violence would be, and then that the standard itself is an ill-defined threshold, and thus identifying whether a particular case meets that requirement is an entirely subjective matter.  That, they assert, creates a Fifth Amendment Due Process issue.  Due Process of Law includes that citizens be on notice of exactly what is and is not illegal, and not be subject to the caprice of police, prosecutors, juries, and judges to decide what is and is not a violation.  Dimaya could not have known that his actions would count as violent felonies rising to the level required by the deportation statute, and thus he was not afforded the protection of due process.  Gorsuch agreed.

Roberts disagreed.  He argued that the text was not vague, and that any judge ought to be able to determine the degree of risk of violence in the ordinary case of a specified crime.  It’s not clear that he overcame the examples offered by the majority.

Thomas also dissented, but at a much deeper level.  He first asserts that “vagueness” doctrine is not consistent with the original meaning of Due Process, but does not pursue that far enough to overcome Gorsuch’ explanation as to why it is.  Thomas then states that the “ordinary case” analysis was something the Court itself invented and read into the previous statute, and that since it makes this statute unconstitutional to so read it but it is not actually in the statute, it is the Court’s fault and the Court should read it otherwise.  He says that the wording of the statute requires a specific circumstance analysis, that is, whether the person was convicted of a crime which under the facts of the case had a high risk of violence.

This is interesting, because as we noted the California burglary statue covers a lot of non-violent crimes and a lot of potentially violent ones.  Arguably residential burglary with the intent to commit theft stands a fairly high risk of a violent encounter with a resident homeowner–but Dimaya specifically targeted vacant residences, significantly reducing the probability of violence, and there was no indication that violence was ever even close to being used.  Thus the facts in the Dimaya case suggest that his particular burglaries were never more potentially violent than simple trespass, unless you count violence to property.  You can only call them dangerous felonies if you base it on some notion of the “ordinary case” that asserts these are more violent on average than his were.  That’s the analysis Thomas would reject.  However, he then wants to uphold the deportation, saying that the statute was not vague because at the time courts were unanimous in the opinion that burglary was a violent felony (which does not take into account the fact that Dimaya’s were not, which was the analysis Thomas was saying we should use).  So it does not appear that Thomas manages to give solid support to the outcome he wants.

However, the genuinely interesting contribution in this case is that of Gorsuch.  After arguing that Due Process requires fair notice, and thus that laws must be clear in their intent, and so agreeing with the majority that this law is not, he delves into a much deeper issue.  He asserts that the Separation of Powers doctrine requires that crimes must be defined by the legislature, the body of persons elected by and accountable to the people most directly, and not by the judiciary.  The legislature is not allowed to ignore this responsibility by telling judges or juries to decide whether any particular action is a crime; it must give specific parameters for what does and does not constitute one.

What is most interesting about this position is that were it consistently applied, it would undermine nearly all of our administrative law, from the IRS to the EPA to the FCC, because it nearly always involves Congress effectively stating broad parameters of an objective and executive branch agencies writing the actual regulations to be enforced.  By Gorsuch’ view, this would be unconstitutional, as such regulations were not written by the legislature but by the executive.  Such delegation of authority is not authorized by the Constitution, and thus would not be enforceable.

There is a serious question concerning whether it would even be possible for a modern state to function entirely by legislation without administrative agencies empowered to create and enforce regulations.  On the other hand, Gorsuch has a strong point, and just because an existing system is efficient and effective doesn’t mean we should overlook the fact that it might be unconstitutional.  Gorsuch may be laying the groundwork for an assault on that system–and libertarians and conservatives who favor smaller government will probably applaud those efforts.  It will be an interesting battle as it unfolds in the years ahead.

Meanwhile, Dimaya gets to stay in the country, because it can’t be determined whether burglary under the California statute ordinarily involves a high risk of violence or not.