Gin Van, Joan Collins and Rare Earth

Friday is upon us, so a few notes about cocktails.

Blue Hawaiian, anyone?

The cocktail snob is suffering a (deserved) backlash, as Robert O. Simonson of the New York Times points out in When Bad Drinks Go Good:

Just as the cocktail renaissance has brought renewed fame to classics like the martini, the Manhattan and the Negroni, it has heaped fresh infamy on a rogues’ gallery of less classy concoctions, most of which emerged during the final decades of the last century.

Now a backlash of sorts has begun, as some high-end bartenders apply their skills to a new challenge: doing bad drinks well.

Bars like Holiday Cocktail Lounge in New York; Pépé Le Moko in Portland, Oregon; and the Automatic in Cambridge, Massachusetts, where the martini shares space on the menu with a blue margarita, have risen to this curious challenge.

Whenever I see the Blue Hawaiian cocktail, which is not often, I compusively think of Elvis in Blue Hawaii (1961):

Superb sash.

Two by two.

The martini is not a complex drink.

Mercifully, this article keeps the options simple:

The cocktail world is divided into two camps: those who order martinis and those who don’t. And for those who don’t, it may be because they just haven’t found their best martini yet.

There are many different ways to mix this cocktail, and there’s a recipe out there for everyone ― you just have to know what to ask for when you stroll up to the bar. 

Classically, a martini is one part dry vermouth to four parts gin. But that recipe is not set in stone ― here are eight different ways you can order the cocktail. Figure out what’s right for you and have a better happy hour.

Read the entire article: How To Order A Martini Like A Total Pro.

Gin van (New World Trading Company)

A great concept from the United Kingdom: a mobile gin van:

Forget hosting a BYOB gathering, you can now pay for a mobile gin van to deliver delicious drinks straight to your party. The catch is that you can’t have the van, called The Wanderer, on speed dial for a quick drink or two.

Instead, the van, created by New World Trading Company (NWTC), has to be hired as a fully-kitted mobile bar, so it’s more suitable for weddings and big celebrations than your average house party.

Still, dedicated gin fans may be tempted to club together for an extravagant Saturday night after hearing what the van offers.

Read the article by Rachel Moss: This Mobile Gin Van Will Deliver Cocktails Straight To Your Party (But There’s A Catch).

From the UK’s Daily Mail, an article on retro drinks and the current popularity of bitter drinks (the Negroni) and ingredients (such as Campari, Cinzano and Aperol):

Speaking about the new trend, John Vine, drinks buyer at Waitrose, said: ‘Bitter notes can be refreshing and act as a foil to sweetness , the right balance makes for the perfect cocktail.’

His comments correspond with data from the store, which shows a thirty five per cent sales increase in sales of Cinzano, which is perhaps best known for its placement in the iconic TV advert featuring Leonard Rossiter and Joan Collins.

I am a fan of bitter cocktails and have written previously about the Negroni.  Such drinks reflect, in some ways, this vale of tears through which we pass.

Failing to recall the “iconic TV ad,” I looked it up:

Outstanding.  According to the Campari corporate website:

Rated 11th best TV commercial of all time, the most famous Cinzano TV ads were those of Leonard Rossiter and Joan Collins during the 1970s. The infamous couple engaged in 10 unforgettable slapstick sketches that always ended in Rossiter pouring a glass of Cinzano on a progressively more resigned Joan Collins.

Here is another one, this time about rose.

The Gin Corner

Rose be damned.  I am partial to gin.  Spaniards apparently take their gin and tonic seriously:

“In Spain, gin-tonic is not just a cocktail, 
it is an obsession,” says José Andrés. Here’s everything you need to know to nail this iconic drink at home—and six places in the States with excellent G&T options.

  • In Spain, fresh herbs (lemon verbena, rosemary or lavender), 
lemon peel, juniper berries, edible flowers and even whole spices are used to enhance the gin’s botanicals.
  • Spanish bars stock as many as 50 different gins. Our choice: a London dry style. José’s two favorites: Rives Special Premium Tridestilada from Andalusia and Xoriguer Gin de Mahón from Menorca.
  • Amplify the aroma of the 
gin and the garnishes with a large wine glass or goblet.
  • Big ice cubes keep your gin-tonic chilled without watering 
it down.
  • Look for tonic made with cane sugar or agave (not high-fructose syrup), such as Q, Fever-Tree or Fentimans, for 
a balanced mix 
of sweetness 
cut with quinine bitterness.

In particular, I endorse lemon (rather than lime); lots of ice (most G&Ts are insufficiently cold); and high-quality, non-syrupy tonic.

Read the full article here: How to Make the Perfect Gin and Tonic, According to José Andrés.

Also, from the Boston Globe, a recipe-filled article for new gin cocktails from New England distillers.

The Joy Division (via Liquor.com)

Finally, here is a recipe for the Joy Division cocktail.  This may be worthy of a try: at times, I will rinse the inside of a martini glass with absinthe, which manages to simultaneously slow down and speed up the gin.

I know little of the post-punk English band from which the cocktail takes its name, although one of my favorite crime writers, Ian Rankin, used the title of one of their songs for a book title.

More to my taste, and to start you into your weekend, is Rare Earth’s 1970 version of “Get Ready”:

Preview (opens in a new window)


White-Collar Motive, Gun Crazy Movie

Gun Crazy (1950)

In 1950, producers Frank and Maurice King released Gun Crazy, a sometimes surreal Bonnie-and-Clyde story with an introverted, pacifist gun lover (Barton Tare, played by John Dall) and an English femme fatale sharpshooter  (Annie Laurie Starr, played by Peggy Cummins).  Carried forward by his lust for and fascination with Annie, the non-violent Bart — without thinking or planning — becomes a robber and, eventually, an accessory to murder.

A classic American film noir, Gun Crazy has merited a book (Eddie Mueller’s Gun Crazy: The Origin of American Outlaw Cinema) and much commentary by film buffs.  It also gives us insight into a common question in white-collar cases: “Why did he [or she, but usually he] do it?”

The question of motive in white-collar cases is not an idle one but, rather, has implications for how prosecutors charge; how juries hear evidence; how defense lawyers defend; and how judges sentence.

But first, a little about this very strange, very cool movie.

The most famous scene is the bank robbery, which is one, long 7-minute shot.  It’s long, so you may want to come back to it:

 According to Wikipedia:

The bank heist sequence was shot entirely in one long take in Montrose, California, with no one besides the principal actors and people inside the bank alerted to the operation. This one-take shot included the sequence of driving into town to the bank, distracting and then knocking out a patrolman, and making the get-away. This was done by simulating the interior of a sedan with a stretch Cadillac with room enough to mount the camera and a jockey’s saddle for the cameraman on a greased two-by-twelve board in the back. [The director] kept it fresh by having the actors improvise their dialogue.

In other words, when actor John Dall hopes aloud that there is parking place, he isn’t kidding: other than the people inside the bank, nobody knew that there was a movie being made or a bank robbery about to be staged, and no parking space had been reserved.

And what is the point of this for us white-collar readers?

The point is that almost nobody starts out to be a white-collar offender, any more than Bart starts out to be a bank robber.  People rarely say on Monday: “Note to self – commit mail fraud by the end of the week.”  The question is less one of “intent” and more one of “motive.”

Academic analysis bears upon the question of motive in ways inconsistent with popular thinking.  Consider Harvard Business School professor Eugene Soltes, from the introduction to his fine volume Why They Do It: Inside the Mind of the White-Collar Criminal (2016):

Many people, federal prosecutors, scholars, and media commentators claim that executives make decisions, including criminal ones, through explicit cost – benefit calculation.  Although such deliberate reasoning is consistent with the way many business decisions are made, this exclamation seems that odds with how these former leaders made the choices that eventually led them to prison.  Mini we’re not mindfully weighing the expected benefits against the expected costs. If they had been, even the remote chance of being caught and sent to prison, upending their otherwise comfortable lives, would have weighed heavily on their conscience.  But I didn’t see this. Instead, I found that they expanded surprisingly little effort deliberating the consequences of their actions. They seem to have reached their decisions to commit crimes with little thought or reflection. In many cases, it was difficult to say that they had ever really “decided” to commit a crime at all.

Business crime?

Soltes goes on to say later in the book:

The prevailing ideas around reducing white – collar criminality rely on the assessment that executives are reasoning and calculative when they decide to commit and illegal act.

The emphasis on viewing cost – benefit analysis as a psychological model of choice rather than as simply a description of behavior has led to a particular notion of why once successful and intelligent executives commit white – collar crime long – namely, that these executives make thoughtful and deliberative calculations to break the law when doing so serves their needs and desires.  They are not making hasty decisions with clouded judgment.  Their personal failure lies in reasoning that the illicit choice is the ” appropriate” one.

 [T]he trouble with this theory is that it doesn’t seem to match especially well with how executives who engage in white-collar crime actually think.

Why does this matter?

After all, many people (and almost all prosecutors) would argue that the “why” of things does not matter in the criminal context.  In other words, they say, although “intent” is relevant, “motive” is not.  The only important question, under this approach, is whether the person charged had sufficient “culpable intent” or a “guilty mind.”  Under this view, “motive” is neither inculpatory nor exculpatory, even though the Federal Rules of evidence do allow, under certain circumstances, evidence to be admitted as proof of motive.  (Consider Federal Rule of Evidence 404(b), which allows bad acts to be offered as evidence of motive).

But motive does matter.  It matters for charging decisions.  It matters for how juries hear evidence in the courtroom and how lawyers speak with them.  And it matters for sentencing.

Closed-door proceedings.

Charging Decisions

Prosecutors have discretion, as they should, with regard to whom to charge (and for what).  If the cost-benefit model that Soltes describes is the governing lens through which a charging decision is made, then it is reasonable to expect that there will be over-charging (or at least more aggressive charging) as compared to an approach that, in a more nuanced fashion, appreciates the way business people actually make decisions.  If I believe that your action is the result of a careful, cold cost-benefit analysis, I will conclude, other things being equal, that a more serious charge is due.  As you sow, so shall you reap.

On the other hand, if I understand that rather than cost-benefit analysis what I am seeing is something more akin to business negligence, I may reasonably decide that a less serious charge (or no charge at all) is due. In Soltes’s words, if what I as the prosecutor see is “little effort deliberating the consequences of [one’s] actions,” I may think differently: after all, negligence, even gross negligence, is not normally the province of the criminal courts.

Maybe a cutaway would help.

How Juries Hear

Motive colors the jury’s intake of evidence, and the prevailing zeitgeist of cost-benefit analysis works against the presumption of innocence (itself a largely extinct species, as I have discussed here and here and here.

Why is this so?

Distrust of business — and especially of large organizations, global institutions and the financial-services industry — is high among jurors across multiple demographics and political orientations.  The caricature of the cold, calculating “fat cat” businessperson fits neatly with popular suppositions — and, sometimes, conspiracy theories — about business and finance.  No amount of pretrial questionnaires or voir dire can address these deep-seated concerns with any regular success.  At trial, the Government understandably seeks to tap into these veins of distrust and fear.  And, once the jury hears at least some evidence confirming its initial biases, it is almost impossible, even for the most skilled defense lawyer, to turn them around.

On the other hand, if the jury rejects “cost-benefit” assumptions and believes that, in general, most white-collar defendants are not “reasoning and calculative” when they act (Soltes again), two things may happen.

First, the near-extinct presumption of innocence may be revived.

Second, if even some members of the jury conclude that the defendant was mindless (or just stupid), the chances increase that evidence offered by the Government will be examined more critically.

Just do the math.

Sentencing

If cost-benefit analysis is a religion in white-collar cases, the fraud tables and the concept of “loss” in the federal Sentencing Guidelines constitute its liturgy.  Were we to adopt a more realistic understanding of business decisionmaking in the context of white-collar offenses, we would reconsider the content and deployment of at least portions of the Guidelines.

The loss table in USSG 2B1.1.(b) is just math, a form of cost-benefit bracketing. The table attempts to impose a “cost” to a victim that it considers (or the Sentencing Commission considers) commensurate with a defendant’s “benefit.”

Laypersons are always surprised to learn that “loss” under the Guidelines does not mean “loss.”  In fact, “loss” can mean “no loss.”  (The dollar amount of loss to someone that the court believes the defendant “intended” to cause can be sufficient, even if there is no actual dollar loss to anyone). In a cost-benefit analytical regime, this idea of notional loss may be tolerable: we assume a calculation on the part of the business defendant and thus are more willing to accept a notional loss.

A more realistic view of business decisonmaking would go a long way towards restoring balance is an unbalanced white-collar system.

And, even if you disagree with me, you really should watch Gun Crazy.

Perhaps, like Annie, we all just “want things, a lot of things, big things.”  The question is: When do we go to prison for it?

 


Search Warrants and Russia Raids

Look sharp, feel sharp.

The execution of a search warrant on a residence owned by Paul Manafort, President Trump’s former campaign director, raises some interesting questions.  Search warrants are rarely necessary in white-collar cases, yet their use seems to be more and more common.

Here was my take on Brian Williams’s MSNBC show The 11th Hour:

As I told Michael Schmidt of the New York Times:

“A search warrant is very bracing for the person who is being searched,” said Jack Sharman, the former special counsel to the House Banking Committee during its Whitewater investigation of President Bill Clinton in the 1990s. “It’s very invasive and sends a loud statement from the prosecutors to the person that there should be no doubts about the seriousness of the investigation.”

“The government will be investigating something like public corruption, and it knows that you know something about it,” said Mr. Sharman, now a white-collar criminal defense lawyer at Lightfoot, Franklin & White. “The government will then come after you on something unrelated, where you have criminal exposure, in the hopes that you will cooperate on their public corruption investigation.”

Read the full article here.

And here, for Amber Phillips of the Washington Post:

He’s also the perfect target to send a message to the rest of Washington that the special counsel investigation means business, said Jack Sharman, a white-collar lawyer in Alabama and former special counsel for Congress during the Bill Clinton Whitewater investigation.

“One purpose of such a raid is to bring home to the target the fact that the federal prosecution team is moving forward and is not going to defer to or rely on Congress,” he said.

Read the entire article here.

Finally, for all you Grateful Dead fans, I have written about search warrants before and provided additional compelling video: Subpoenas, Search Warrants and the Dead.

The video (with less gray hair and longer tie) is here: