CRIME AND ITS FASCINATIONS : SOME THOUGHTS ON THREE MASSACHUSETTS MURDER CASES

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PART V : THE TRIAL

Assuming that a high-profile murder case can make it past trial preparation in reasonably useful shape, it finally goes to trial.

So, the question needs be asked: what IS a trial ?

To the gut-reaction public, a trial is an action by which the public’s judgment of the outcome is confirmed. If the public thinks an accused guilty, the trial is supposed to find him gulty. If the public thinks an accused is not guilty, the trial’s job is to find him or her nor guilty.

In the pre-Civil Rights South, trials, of Black people most of all, were exactly what I have said above, except that a finding of not guilty was never an option. To bring an accused to trial was to obtain a guilty verdict. No more, no less. Today we do it differently. We are prepared — so we say — to accord the accused a fair trial, complete with defense lawyers paid from public funds if need be and a jury carefully selected by both sides. Rules of evidence are accepted. The jury is allowed to deliberate for as long as it pleases them. Yet a verdict of guilty is expected, in the end, just as back in the old South.

A trial, however, is not that AT ALL. A trial is a procedure for getting at the truth of the matter, let the chips fall as they may. Impartiality is the guide. A trial has no expected outcome other than that the outcome will be as close to the truth as is feasaible given that human minds and procedures only approximate.

As this is what a trial is, it’s not at all a given that the public agrees that there should be trials of high-profile murder cases. The public says it does, but its actions in high-profile criminal cases say otherwise.

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Nonetheless, we have trials, and those whom we entrust with governance in our society are unshakably committed to having trials and ensuring their fairness. Grumble though we might, we at least allow trials to take place without interference. Court TV, no doubt, has helped to give the public an interest in letting trials take place according to the rules. By “rules,’ we mean the presentation of evidence, its cross examination, and attorneys’ summations before and after the presentation of evidence.

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Whole libraries of hornbooks have been written on the Law of Evidence. (The best is the classic treatise, Wigmore on Evidence.) We cannot do an extended discussion of Evidence Law here, but suffice to say that it includes all the familiar — but very difficult to apply — “Law and Order” cliches : the rule against Hearsay, the admissibility of death bed speech, forensic findings, surveillance camera footage, witness testimony, confessions, authentication of records, evidence illegally obtained, telephone messages, and the like.

The basic rule of admissibility is this : does the evidence help to get at the truth ? Or is it prejudicial, or irrelevant, or self-interested, or otherwise unhelpful ?

Does it go without saying that conjecture is not evidence ? An expert giving expert testimony is permitted to give an opinion. No one else may do so. Can I add that race prejudice abiout the accused, and such like, are not evidence ?

Unfortunately, those of us who watch a high-profile trial on TV, or read about it in the news, have nothing to offer a trial except opinion, conjecture, or even, for some of us, race prejudice. Because that is all that we have; because we are not even in the courtroom, where presentations play out differently than as filtered by media, and where boredom is the usual sound; because we feel strongly about the ccas — if not, it would not be high profile — we tend to decide the outcome of a trial on grounds that must play no part in that trial ! Ironic, isn’t it ? But none theless toxic to the administration of a trial.

Thus the dilemma that continues present in today’s criminal law : we say we wnat fair and impartial trials, but we do not. We say we want the jury to reach ITS verdict, but in fact we wnat it to reach OUR verdict.

We want these things vehemently, noisily, frigheningly.

Given what we are like in this regard, it’s a wonder that trials — real trials — exist at all. Perhaps it’s the innate skepticism that also resides in our souls, along with the conjectural certainty, that gives trials room to breathe, and flower, and produce — one hopes — their fruit of truth.

—- Michael Freedberg / Here and Sphere

THE ZIMMERMAN VERDICT … THE GEN Y VIEW FROM LOWELL, MA

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On a hot humid Saturday night in mid-July, the world (or at least the Social Media world) reacted to the “not guilty” verdict given to George Zimmerman. The reactions (at least on this writer’s Facebook feed) varied from the “First Casey Anthony, now this? (Expletive) Florida,” to the “The Jury made their call. Now it’s time to move on to real issues, like Obama and the NSA.”

Confession: I admit to having posted my Verdict rage, as well, on Facebook. I felt that evidence sufficient to convict Zimmerman of second-degree murder of 17-year old Trayvon Martin was a slam dunk for the Prosecution. Naive of me. I had indeed forgotten that this Florida, home to the Casey Anthony acquittal as well as the year 2000 Florida Recount.
So what did this verdict mean to Millennials — “Generation Y”… “Hipsters” — whatever you may want to call them ? Gen Y has pretty much earned the reputation of being both apathetic and lethargic — mostly by being both apathetic and lethargic. A game of “Candy Crush” and the posting of “Grumpy Cat Memes” appear to enage more Y’ers than the use of Facebook to organize marches against student loan debt and the endless drug war that has imprisoned good people and cost many innocent lives. Most Millennials shy away from discussing sociological and economic issues. It’s complicated, and, after all, nobody wants to alienate others by stating an opinion.

Nonetheless, the Zimmerman Verdict we could not ignore. the finding was too impossible. Tweets and posts roiled our outrage. In several cities, protests broke out the next day in solidarity for Martin. Oakland’s and Los Angeles’ protests even turned violent.

Flash forward now to almost a week later. As I sit here in my favorite Coffee House in Downtown Lowell, Massachusetts, I look around and overhear my peers lingering over their iced drinks talking about the issues of the day. People here in this ordinary American city are still talking about the Zimmerman verdict. Apparently some of us haven’t moved on the next outrage — I’m speaking, of course, about the July issue of Rolling Stone with accused Boston Bomber Dzhokhar Tsarnaev on its cover.

So here’s what we’re saying :

“To me, it seems like a flash in the pan. For my generation, there will be a big discussion about issues like the Zimmerman case. But I’m not sure that it will lead to any real discussion to any changes in the judicial system” — Kofi Edzie, 24, from Lowell.

“The only silver lining here is that it is bringing race back into the discussion, but as a young millennial, I think that we have all of these immediate concerns such as student loan debt for example, that I don’t think that social media is going to inspire any of my peers to make any changes,” Edzie added.

Another coffee adept, who wished to remain anonymous, said that he credits Social Media for bringing Millenials to discussion of race in the 21st century.

“I don’t think that it’s fair to say that things won’t change, but you have to give our generation some credit for at least opening up the dialogue on race. I don’t think that it’s fair to dismiss our generation as ADHD,” opined my unnamed table neighbor.

There were also Generation X’ers at the coffee house, such as Kevin Fahy, who felt somewhat more cynical.

“I don’t think that anything is going to change. I just came back from Ocala, Florida, where my folks live, and a lot of people down there think that Zimmerman did the right thing. Of course, a lot of them are older, upper class retired folks,” said Fahy, 52 and also a Lowellite. Semi-retired from working security for many years, Fahy feels that today’s Millenials fail to utilize their energy to organize for social causes.

“This isn’t the civil rights marches of the sixties. This isn’t Kent State. People aren’t going to get off their asses to do anything, even change the channel on their TV’s,” Fahy tells me.

Fahy may yet be wrong. It’s hard to expect immediate moral commitment from a generation inundated with “Grumpy Cat” memes and living the distraction life on Social Media. That said, Gen Y’s are young yet, very young. They will grow. If there’s any good to be extracted from this depressing tale of a young man walking home after buying some Skittles and Iced Tea, it’s this. Gen Y has not yet spoken. It will. Perhaps.

There’s hope, and plenty of it, for what a generation still finding its way and place will say and do. A generation that may very well rise up and do whatever it takes to advance justice, by any means necessary.

— Dave Morrison / Here and Sphere Guest Contributor

MEEK AT THE MOVIES : ONLY GOD FORGIVES ( Rating ; 2.5 stars )

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( photo courtesy aceshowbiz.com )
Nicolas Winding Refn and Ryan Gosling team up for their second bloody go round after finding success and lauds for their 2011 car chase noir “Drive.” The teaming of the pair is a good one, a director with a hyper-stylized eye and a penchant for flourishes of quick bloody violence that would make Sam Peckinpah nod in appreciation; and a laconic actor, enigmatic and bristling, a brooding baby-faced brute if you will, capable of unspeakable savagery.

In “Drive,” the story was rooted in a true anti-hero, who comes to the aid of the hapless family next door. A simple set-up that plyed the darkest recesses of the black and white spectrum. Here though, there’s no true right and just corner, as those who seemingly mete out justice by disemboweling others later prove to be morally ambiguous and as the page turns, perhaps even the face of evil.

Mind you, there’s nothing wrong with moral ambiguity and grey areas, they can texture a film with piquant provocation and soul searching exploration; but when the motivational catalysts and driving tenets become hollow and arbitrary, the visceral connection that the filmmaker desires to forge with the audience gets lost on a sea of senseless violence.

That’s pretty much what happens here. Gosling’s Julian and his brother Billy (Tom Burke) are expats running a boxing gym in Bangkok, one that’s really a front for a drug trafficking ring run by their brassy mother (Kristin Scott Thomas). Right out of the gate, and playing the antithesis to the film’s title, Billy mentions he’s “got a date with the Devil,” runs off and rapes and brutally murders an underage sex worker. The local police chief, Chang (Vithaya Pansringarm) in retaliation allows the father of the girl to bludgeon Billy to death, and then cuts off the father’s arm for allowing his daughter to work in the sex trade.

So goes the film; and as Julian is ultimately enlisted by his mother to exact revenge, “Only God Forgives” settles into a blood feud between the transplanted Americans and Chang. Julian too becomes conflicted when he learns of his brother’s atrocity and there is the strange and titillating overture of sexual tension with Mom. Scott Thomas nearly steals every scene she’s in. Some are fine moments of weary female assertion, others skate dangerously close to “Mommy Dearest” camp. Then comes those moments that pop out of left field , such as when she meets Julian’s girlfriend (a dancer in a strip club) and refers to her as a “cum dumpster.”

It doesn’t matter the context, whenever Scott Thomas is onscreen, the film is alive.

Gosling as Julian here feels like a blanched-out version of his cool driver from “Drive.” Pansringarm’s stoic Chang practically floats through the movie — an arcane ghost. Sized up against the bigger, younger and more physically imposing Billy or Julian, Chang remains calm, poised and in command. His sangfroid is an eerie prelude to death and his lethal capabilities include a samurai saber covertly holstered along the spine of his back. When it comes out, someone bleeds in ample spurts.

Refn — who is Danish and made the devilishly taut prison film “Bronson” (that brought him and Thomas Hardy to a world audience’s attention in 2008) — has made films in LA, the UK and Asia and with timeframes that have spanned as far back as the Vikings (“Valhalla Rising”). At the heart of all of Refn’s work is always the embattled male, outside the bounds of the law and pressed up against a wall. His style too — long telescopic shots of red bathed hallways and dark rooms with jagged slashes of light to expose the emotion on the protagonist’s face, as well as his seamless integration of soundtrack, action and mood — has become signature. Still, the one thing that Refn should keep in mind is that no matter how broadly he trots the globe or how richly choreographed his arterial spray is in some underworld abyss, a story and its characters must have heart and soul.

—- Tom Meek / Meek at the Movies

CRIME AND ITS FASCINATIONS : MEDIA ISSUES — DZHOKHAR TSARNAEV

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PART IV : IMPEDIMENTS TO TRIAL PREPARATION — MEDIA ISSUES

Wow. That’s just about all we can say by way of a start to this, the fourth in Here and Sphere’s “Crime and Its Fascinations” op-ed series.

Wow.

No sooner has the typhoon of outrage and gloating over the verdict in People v. Zimmerman begun to coalesce than along comes Rolling Stone magazine with its Dzhokhar Tsarnaev cover, and off we go, chasing the next jet scream in this season’s long and obsessive flight of major criminal airplanes.

We at Here and Sphere like jet flight as much as the next journal, so let’s say it : Rolling Stone is to be congratulated, journalistically, for doing its job : getting and telling a story that people want to know and have every right to know. Telling the story AND featuring it : because yes, it IS a feature story. Dzhokhar Tsarnaevs do not come along every day. How DOES a 19-year old boy — just two years older than Trayvon Martin — go from being a pot-smoking party guy to a dedicated Islamo-terrorist ? Of course we want to try to know. Human life is a mystery: it is a mystery that we all live a part of. Why shouldn’t we want to know as much as we can about one of the most mysterious mysteries of the human mystery ?

And who would dare, or presume, to upbraid us, or the media that serve us, for featuring and reading this story ? What motive arises in the mind of a person who condemns a news medium for doing its job ? We vigorously oppose any such motive.

We at Here and Sphere commit this to you : if we get a story that people want to know, and is not on its face libellous, we will research it, confirm its factual assertions, and publish it.

The larger issue, though, is that media coverage of major criminal trials always arouses controversy, much of which is damaging to justice. Media coverage of criminal cases should be used for information, not for judgment. Judgment is the province of the jury. We can form an opinion, but as recent trials have made clear, our opinion is likely to miss the mark. Often, too, it is the opinions that most miss the mark that make the loudest cry — cries heard all too readily by prosecutors,. who face election and act to convict someone — anyone — rather than to pursue their mission, which is justice, not scapegoating. A major portion of people wrongly convicted are so because media coverage and the furor it arouses in the public intimidate prosecutors.

Media coverage and resulting anger endangers jurors, too. That is why many juries in passion-arousing criminal trials go unnamed and why they deliberate in sequester. The same anger threatens defense lawyers. We say that we accord every accused his or her day in court, including competent defense attorneys. We say it; but when our words are put to the test, we often voice the opposite.

Justice demands that we defend the rights of the most heinous accused all the more strongly. An unjust trial exonerates the accused and shames those who enabled injustice.

But it begins now: the trial of Dzhokhar Tsarnaev, who faces almost certain conviction of a terror crime as ghoulishly casual as it was grievously hurtful to our city’s people, community, and spirit. Do we want to try to understand how he got to here ? You bet we do. Does Tsarnaev merit every facet of the defense rights enshrined in our law and Constitution ? You bet he does. And so does “Whitey” Bulger, whose long and gruesome trial is nearing its mid-point. And so does Aaron Hernandez, soon to go to trial in his own peck of tsouris.

Here and Sphere will see you in Massachusetts Federal court. And see Rolling Stone’s report on the trial as well.

—- Michael Freedberg / Here and Sphere

NEXT : PART V : THE TRIAL

GUEST EDITORIAL : RACISM AND THE MEDIA, IN LIGHT OF THE TRAYVON MARTIN CASE

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By Curtis Atchison, house music DJ and track producer

“We’re all blitzed with the same images, propaganda and distorted information wherever we turn. Mainstream media (regardless of ideological leanings) tends to be nothing more than overgeneralized information, watered down for the lowest common denominator to ingest.
“I know when I was growing up, I saw much of the same gripes and complaints people are voicing today. But I did have a mother who was willing to explain things to me the best way she knew how, without trying to make it about “white people” or “black people”. She wanted to make sure things were as objective as possible so I could form my own opinions, but kept me in line to make sure at the very least I wouldn’t physically act out on any discriminations or bigotries I developed. That’s the best she could do, and because of my love for my mother that’s the best I can try to live up to.

“Case in point… right now I’m helping to raise four nieces and nephews in my family. They all know I’m in a committed relationship with another man of a different skin color. My family has opened their arms to him, and out of respect for me they have the kids refer to him as “Uncle” even though we’re not married. They run up to him, give him hugs & kisses and show him love that only another family member could give. But once in a while they do come in with conflicting messages about how life is “supposed to be”. I know they hear many negative things about “white people”. But then they see my partner and the love he bestows and they aren’t able to make the connection between their newly “acquired knowledge” and the man they see in front of them. Even though he’s white, they grew up thinking that he was “Italian” and not “white”.

Same thing on an LGBT level. The kids have no problem jumping into our arms and always want to stay with “the Uncles”. But I know they hear messages from other outside sources about how the LGBT lifestyle is a sin and all that other stuff. And occasionally, those thoughts come into the home whenever they see me kiss my partner. The six year old on rare occasions will go, “Ewww! You two kissed!” But in the next five minutes, he’s asking us when we get married how would they know who the bride is?

IMO, media and outside forces can only do so much to mold minds. If that was your only connection to learning about society, I could see how that could affect you negatively. Beyond that, one needs to be surrounded by loving people who can help them see things through the headlines and the generalizations. OK, now I’m babbling and I have a new mix show to work on…”

CRIME AND ITS FASCINATIONS : SOME THOUGHTS ON THE THREE MURDER PROSECUTIONS NOW UNDER WAY IN MASSACHUSETTS

PART THREE : THE TRIAL AND TRIAL PREPARATION — IMPEDIMENTS

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^ Carmen Ortiz, United States Attorney for Massachusetts, already under fire for over-charging Aaron Swartz

Part III in this Here and Sphere series was going to focus on Punishment. But given the obsessive passions afoot with regard to the Zimmerman Case, its presentation, preparation, and verdict, we have changed the plan. Trial preparation and presentation require a strong look from us.

Thanks to TV shows like “Law and Order” especially, most Americans know a lot about what happens in a criminal case long before it goes to trial. “Law and Order” is particularly valuable because its drama includes plenty of mistakes made, bad decisions, incompetent or overreaching lawyers, disagreements about evidence, and such like. On the defense side there is always the problem of what to emphasize and how. Prosecutors face election and find themselves forced to go the route on cases in which their voting public has great interest. The media pounce on criminal cases of great interest; they cannot avoid it, nor should they. This too has consequences for justice, most of them unhappy. “Law and Order” retreats from none of it. The picture this show puts in frame is often stereotyped — but never false.

“Law and Order” succeeds because crime unthinkably violent or unjust arouses great passions. Whence arises the rush to accuse, which almost always brings more injustice.

The rush to accuse and judge has ruined many a life : one thinks of the Duke LaCrosse team fiasco, the Atlanta security guard falsely accused of bombing a fair, the national security scientist wrongly accused of sending anthrax letters, the Tawanna Brawley accusation that a NY County prosecutor had raped her. One could add many, many more such incidents.

False accusation is no minor break in the social fabric. “Thou shalt not bear false witness” is one of Moses’ 10 commandments, the ground rules of Jewish tribal law. No social mistake outranks false accusation as an act of barbarity. Still, false accusation arises from people’s knowledge that grievous crimes do occur; and who can tell, at the outset, whether an accusation is false or true ? That is why we have police detectives and investigators and why we pay them good money. To separate the false accusation from the likely true one.

Public outcry has engendered more incompetent or unwarranted prosecutions than we can count. In the 1980s it was day care centers abusing children : every case brought was eventually reversed or compromised — in Massachusetts, the Amirault Family of Fells acres — after ruining the lives of the accused. In the 1930s – and before that — it was people of color in the South accused of rape. In the 1920s it was Sacco and Vanzetti — right here in Dedham, Massachusetts.Bartolomeo sacco 1

^ Bartolomeo Vanzetti and Nicola Sacco, prosecuted almost certainly wrongfully and executed after seven (7) years of world wide protests.

In 1692 in my home city of Salem, also in Massachusetts, it was men and women accused of witchcraft.  In the South, from the late 1880s until the Second World war, many black men didn’t even get an unfair trial but were simply lynched…

a lynching

^ injustice at its most passionate…

To return to the present, New York City’s Brooklyn prosecutor is now investigating 50 convictions based on what looks like perjured testimony, doctored confessions, and prosecutorial misconduct.

David Ranta

^ David Ranta, freed in NY after serving 22 years for a rape he almost certainly did not commit

A victim is required. No matter who or how. Prosecutors and police staffs work with that as a backdrop. It is not pretty and it is wrong.

Jurors, too, feel the heat. Juries in high-passion criminal cases are sequestered and their names impounded. We do this so that passion people cannot threaten or otherwise intimidate jurors, at trial and after verdict. It is a wonder that, given this pressure, people are willing to serve as jurors at all.

In the time of Henry VIII, jurors gave a verdict unfavorable to the King at their peril. We, today, are the King.

The moral of the story is plain: the public should — must — reserve judgment; prosecutors and police must seek justice, not convictions; and juries must never be afraid to decide a case as THEY see it, not as WE see it.

In the Zimmerman matter, which we have discussed in separate editorials, very little went as it should. Injustice, incompetence — you name it. Now we turn to Massachusetts and our own three murder prosecutions. Hopefully, we will do much better than tyhe Zimmerman prosecutors and police staffs.

The three cases now under way –James “Whitey” Bulger, Dzhokhar Tsarnaev, and Aaron Hernandez — fascinate us. Murder most foul can never be grasped. It is always open and shut ; was it done, or not ? By this person, or someone else ? Murder is simple — and a mystery beyond resolution.But never beyond opinion.

Most of us have already formed an opinion as to the accuseds’ guilt and of appropriate punishment. Because this is Massachusetts, we ought be fairly sure that the prosecutions will be competent and NOT tainted by misconduct, although our history in this regard is not auspicious. We are proof that being politically progressive is no guarantee of being just about justice.

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< J. W. Carney, lead defense attorney for James “Whitey”Bulger

The big danger, though, is that all three men’s juries will feel pressured to reach a certain verdict rather than another. To that end, we commend the Bulger prosecution for its methodical presentation and its readiness to provide to the defense such evidence as our law requires it to disclose. We shall see if the Tsarnaev prosecution meets this standard.

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< Bristol County District Attorney Sam Sutter, who will prosecute the Aaron Hernandez case.

Stay tuned.

— Michael Freedberg / Here and Sphere

NEXT : PART FOUR — MEDIA ISSUES

BLUES TALK : JOHN TEJADA @ ARC NIGHT CLUB 07.12.13

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When this writer arrived at Arc, a new room for Boston house music, at about 12.15 AM, John Tejada was already hard at it. Working his own mix board, rich with shape-shifting knobs and beat-breaking buttons, Tejada put the bluest house music this writer has heard recently into talk and walk shape. Blues is a music of talk and walk — of move and monologue — and in house music there are plenty of move and monologue tracks. Tejada dropped a couple of those — glitch vocal tool ins — but his talk works sounded most prickly and seductive when he made instrumentals do the talking.

Born in Vienna, Austria, to an Austrian, orcherstra-conducting Dad and a Mexican Mom, Tejada, who will be forty years old next year, has been workling his uniquely bluesy sound for almost fifteen years — but rareky in boton. His last vist that we know of happened four yrears ago. The rarity of his performing in Boston assured a full dance floor at Arc, and full it was, and entirely committed to Tejada’s mix work. Guys danced to the front; cameras flashed on all sides; and on and on Tejada moved his music, never coasting, not taking a bathroom break (something no DJ should ever have to do in a two hour set), no acceding to a fan greeting. (Why fans feel they have the OK to interrupt DJs, this writer will never understand. People at a rock or jazz concert wouldn’t think to come up on stage like that.) With Tejada, fans evidently felt they owed him the space not to play “hey good-buddy ! hi-ya !” with. He was able thus to concentrate all attention upon forty or so mix board edit buttons of which he made constant use.

He describes his sound as techno — but of the Detroit, not the German version. Detroit, at Arc, it was ; a sound almost entirely blues based from which ticklish, twisty, wire-thin strands of upper register noise arose, seductive to the body as to one’s ear. His sound had family resemblance to that of Carl Craig : choppy but soulful, airy as well as blues. Tejada, however, dropped a sound much more walk and talk than Craig’s glide and sublime.

Playing his best-liked “Elsewhere,’ “Somewhere,’ and “Here” — the titles felt appropriate to the sonic displacements Tejada made — as well as “Wanna,” “Seven X Seven” and several others similar, Tejada played stomp and tickle, rumble and fumble; and his fans loved every move.

There was, however, less dancing than appreciating. Most of the approximately 225 fans stood to watch Tejada do his mixes and to snap photos of it. This was not a mistake. Tejada played the mix board as if it were a piano. Almost every knob and button made its mark, as Tejada jumped from track to track and shattered, repeated, stuttered, undertoned, fade-knobbed, flatted and sharped his sound. He kept his head down, his hands on the music, making it a throat, lips, and belly of burp, squeak, and irresistibly lush blues walk-offs.

Curiously, Tejada’s set ended not at Arc’s closing time but at 1.25 A.M. he was followed by Matt Mcneil, a local DJ who dropped a plush, loud, embracing sound. Mcneil has the deep house chops needed to take over from a headline master, and he did not lose Tejada’s ground. This writer will be very disappointed if Mcneil does not get invited, and soon, to open at Bijou, Boston’s most important house music venue, and, quickly thereafter, to headline.

— Deedee Freedberg / Feeling the Music