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Wednesday, June 27, 2018

ABE LINCOLN FOR THE DEFENSE

Abraham Lincoln is the closest thing we have to an American saint. His martyrdom sealed that. His speeches—at Gettysburg, at his two inaugurals, the proclamation emancipating slaves in the rebel states, and in his debates with Douglas—define American aspirational values better than any document since the Declaration of Independence.

Yet, what makes him attractive is that, although his face is carved in granite on Mount Rushmore and in his monumental memorial in Washington D.C., Abe Lincoln still seems quite human rather than unapproachable and larger than life.

For me, a big part of my sense of Lincoln’s humanity is the fact that we shared a common profession. We were both practicing lawyers. Not only lawyers but members of a special branch of the profession: trial lawyers who spent many years taking seriously the task of trying cases before judges and juries.

I knew that for twenty years—from about age twenty-seven—he rode the circuit in his state, traveling with a band of lawyers and judges to the various outlying villages where they would take cases and adjudicate disputes. It was how he learned his trade, enjoyed the camaraderie of colleagues, honed his skills at argument, oratory, and gained a deep understanding of the frailties of human nature.

I was happy to learn that he also represented clients in criminal cases, both serious and petty. Having watched John Ford’s 1939 classic film, “Abe Lincoln In Illinois,” starring Henry Fonda, I learned that he defended in a murder case, one involving eyewitness identification.

Not trusting the accuracy of movies, I read about this case in legal essays. Duff Armstrong was accused of killing a man one night after an argument at a fair. Lincoln made headlines by persuading the judge to take notice of the Farmer’s Almanac, which proved that the moon had set long before the stabbing, so that the eyewitness who claimed to identify Lincoln’s client as the culprit by moonlight was lying.

I later found out about another of his clients, Melissa Goings. She was an elderly woman who killed her abusive husband and was prosecuted for murder. Knowing the history of the couple, the townspeople of their village so sympathized with Melissa that they raised her bail money. When a new judge harshly threatened to revoke bail and remand the old woman to custody pending trial, she fled. The judge asked Lincoln what he knew of this. Lincoln said he had asked to interview her. She was placed in a room on the first floor of the courthouse. Lincoln emerged to get her some water and when he returned she had gone.

As the story goes, the judge questioned Lincoln about the interview and he supposedly told the judge that she had asked him for a drink of water and he merely remarked in passing that the water in Tennessee was clear and sweet. Legal historians speculate that the local prosecutor was not anxious to try the woman either, and so might have winked at Lincoln’s solution to the case. The warrant for her arrest was never served.

These cases became part of the Lincoln legend, the folksy wit and sharp legal mind that we find so heroic.

But what I found later was that in fact, he tried twenty-seven murder cases over the course of his career, and that he lost some of them—in fact, one murder case he lost led to his client’s execution. I was hooked. The parallel to my own experiences gave me an almost eerie sense of familiarity, and (it seems ridiculous to write the words) almost a feeling of brotherhood with the man.

I spent almost twenty years as a public defender and the rest of my forty-four year career in private criminal defense practice. My legal community was just as close knit as was Lincoln’s, with friendships tied to mutual respect, among lawyers who defended, or prosecuted, or were elevated to the judiciary.

In my time, I tried many murder cases including some in which the death penalty was sought. Just as soldiers of one era may feel a kinship with those of any other time, I suspected that Lincoln’s experiences might be something like those I lived through.

So that is why I was anxious to read a new book, titled Lincoln's Last Trial: The Murder Case That Propelled Him to the Presidency, authored by Dan Abrams and David Fisher.

Like those in my experience, the killing was a commonplace sort of act, not the kind that murder mysteries and thrillers are made of. There was no whodunit, no issue as to cause of death, no car chases, no brilliant forensics. Two friends quarreled over a minor domestic issue and it escalated into threats, a confrontation, a fight, and, eventually, a stabbing.

In that sense, the case was closer to those I knew of than those in fictional dramas. Although it contained no esoteric features, the case still involved elements that demanded the skills of a seasoned advocate. For one thing, the defendant claimed self-defense, although he brought a knife to a fistfight and fatally stabbed a man who was unarmed.

But the victim was bigger and stronger than the defendant, who was smaller and weaker. The victim had told others that he intended to beat the defendant, to “stomp him.” But did the defendant know of this intent? Was that why the defendant carried the knife, or did he intend to kill his antagonist no matter what?  

This is one of the most complicated and difficult defenses to present. The law in 1859 was similar to today: you may use only the force reasonably necessary to defend yourself from the perceived threat. You may use deadly force only if you are in reasonable fear of great bodily harm or death. You must back away from the danger if you can (unless in your own home), but can defend yourself if you must.

The law is strict and precise, yet subtle in its implications. The lawyer must understand and be able to communicate the most complex of human feelings: fear, anger, malice, self-survival.

In 1859, the task of the defense lawyer was made far more difficult by a quirk in the existing law. The prevailing rule of evidence precluded the defendant from testifying for himself.

When I first read this, I was shocked. The defendant’s testimony is usually essential to presenting self-defense. But experienced lawyers know that it is far more complex than that.

For one thing, most defendants make poor witnesses. One slip of the lip, one false note, and the entire case is lost, no matter how weak the prosecution’s case, no matter how much reasonable doubt you have sown through careful cross-examination of other witnesses.

During jury selection, I usually asked the following series of questions:

1. Do you think it is fair to make up your mind before you hear both sides of the story?

2. Will you follow the judge’s instruction that every witness, whether called by the prosecution or the defense, must be treated the same or would you disregard witnesses because they testify for the defense?

3. If the defendant testifies in his own behalf, would you disregard his testimony merely because he is the defendant?

Although most prospective jurors answered that they would be “fair to both sides,” many admitted that they might discount a defendant’s testimony, believing that any defendant would lie to save himself. In fact, that was the basis of the old law preventing the accused from testifying.

I found it interesting that the same jurors often admitted they might be prejudiced against a defendant who chose to remain silent even though he had a right under the 5th Amendment to do so.

On reflection, I wonder if the old law helped the defense by removing the choice from the defendant, thus eliminating the juror’s bias about the issue.

Nonetheless, it placed a great burden on the lawyers to establish the defense without the defendant’s word. In this case, however, there were a number of witnesses present. The prosecution called some and the defense called others. As expected, the versions varied, depending on the skills of the lawyers to bring out the truth, or at least the most reasonable version of the truth.

The law makes certain presumptions which in reality may or may not be accurate. Some are carryovers from a more naïve age. One is the idea of the “dying declaration.” Hearsay is defined as an out of court statement that is offered to prove the matter asserted in the statement—such as “He said he saw the man commit the crime, or “She said she saw someone else commit the crime.” If the person who made the statement is not available to be examined under oath, then the witness who says he heard the statement won’t be allowed testify to it—if the issue is who committed the crime.

But there are exceptions, some of which have been recognized for centuries. If the person who made the statement was near death, and knew she was near death, and speaks about the cause of her impending death, and then dies and is therefore unavailable for later trial, then the person who heard the statement may relate it.

The reason for the exception is that, among religious people, it was a sin to die with a lie on one’s lips. People believed in an immortal soul, and confession, atonement, forgiveness, were such strong values that it was considered probable that such a statement at that time was true.

In Lincoln’s case, the victim had spoken to a minister as he lay dying. He begged for forgiveness because he felt himself responsible for his death, not the man who stabbed him. This buttressed the defense claim that the victim had sought the fight and had been stabbed in self-defense.

In one of my cases, a man emerged from a grocery store late one night, his arms full of shopping bags. He was accosted by another man who ran across the street. Without a word the man pulled a sawed off shotgun from inside of his jacket. The gun went off and the man with the bags fell, dying.

In the ambulance, he was told he was dying and was asked what happened. He said in Spanish, “Era un robo.” “It was a robbery.” The DA wanted to use the statement, because even an accidental or negligent killing during an attempted robbery equals first-degree murder.

However, the judge in my case denied the motion, agreeing with me that another condition of the dying declaration exception was not met. The statement must be one of fact, not merely opinion or belief. In my case, no words were spoken, no demands made. It was only the victim’s fear that caused him to assume that it was meant to be a robbery. (My client was guilty of manslaughter, a lesser crime.)

The oddity in Lincoln’s case was that the minister to whom the victim made the statement was the grandfather of the defendant, the man who stabbed him. This might have made the witness’s credibility doubtful, but he happened to be famously respected in the community for his honesty. The judge allowed the testimony and the prosecutor failed to raise enough doubt on the veracity of the testimony.

That raises another oddity that makes this case different from any of my experience. Almost everyone involved in the case seemed to know each other and be friends. That did not only include the lawyers on both sides and the judge, but also the witnesses, the defendant, his family, the victim and his family, and many of the jurors.

For instance, the prosecutor (Palmer) and Lincoln had been law partners. The victim (Greek Crafton) had studied law in Lincoln’s office, and Lincoln was said to have thought highly of him. The minister (Reverend Cartwright) had run for office against Lincoln and had verbally attacked Lincoln as an atheist.

Lincoln’s co-counsel was Steven Trigg Logan, a former judge with whom Lincoln had partnered early in his career. They had been co-counsels in Lincoln’s first murder trial in 1838, which was somewhat factually similar to this one.

Back then, they defended Henry Truett in the murder of Dr. Jacob Early. Another dying declaration, but in this one the victim named Truett as his killer. The motive was Truett’s anger over remarks Early had made about Truett’s appointment to a political office. The defense was, again,
self-defense—in the argument, Early had raised a heavy chair before he was shot. (The prosecutor in this case was none other than Steven Douglas.)

The authors, citing many newspaper accounts, attribute the three-hour not guilty verdict to Lincoln’s brilliant summation. Describing his style of jury argument they struck another chord for me:

“When he approached the jury box and leaned over close, he was just talking to some friends. ... People simply liked him. It was never an act; there was nothing flamboyant or showy about the man. ... [H]e reasoned with them calmly and treated them with respect and so they believed him.”
(Kindle Locations 494-496.) 

In my experience, the best lawyers value their credibility as their most important asset, especially with juries. It is something crucial to preserve from the first day to the last—beginning with jury selection and dealing with the opposition, with the judge, with witnesses, with items of evidence. In argument, speaking directly to the jury, a lawyer who has lost their trust has lost the case.

The authors make the argument that the case was important in furthering Lincoln’s political career because it was widely reported in the national press. Lincoln by then was well known (after his debates with Douglas) and was being spoken of as a possible presidential candidate. Much of his reputation was as a brilliant trial lawyer, and a loss might have tarnished that fame.

When the client was acquitted, the town of Springfield was divided over the verdict, but none who supported the victim’s family blamed Lincoln for his defense. In his argument he had shown nothing but respect for the family’s grief and had even made a point of extolling the victim’s character, while bemoaning the tragic sequence of bad decisions that the young man had made.

It was another example of the humanity that the man, Abe Lincoln, brought to the law and eventually, to our American values.


Sunday, April 08, 2018

GETTYSBURG VS MIDWAY: YAMAMOTO VS LEE



GETTYSBURG VS MIDWAY: YAMAMOTO VS LEE

Gettysburg (July 1863) and Midway (June 1942) are historic battles that have so much in common that it is eerie.

Both battle sites were strategic locations in their wars. If the Union army were defeated at Gettysburg, the road to Washington would be opened to the Confederates. If the Midway Islands were occupied by Japan, and if the American navy’s aircraft carriers were destroyed in the process, Hawaii and even the west coast seemed to be vulnerable.

Thus, both are considered by historians to be “turning points” of their wars, although neither really was. After each battle, there still were to be many more years of war; many thousands of lives lost. But in each case, the losers were so damaged that they were forced to the defensive from then on until the final bitter defeat. 

Coincidentally, both battles were fought over three tense days, but turned on just a few violent minutes when the issue was in doubt, teetered, and was unalterably determined.

THE LOSING COMMANDERS

The most glaring and interesting fact is how similar General Robert E. Lee and Admiral Isoroku Yamamoto, the commanders of the losing forces, were to each other.

Up until Gettysburg, General R. E. Lee had won a string of victories over the Union army. He had outsmarted every general Lincoln had appointed to face him.

Up until Midway, Admiral Yamamoto had made his navy the dominant force in the Pacific. He had devised the raid on Pearl Harbor that crippled the US Navy. His forces had destroyed all of the capital ships the British Navy had in the Pacific.

Both leaders were idolized by their subordinates, feared and respected by their enemies, and are admired by historians for their character traits as much as for their military brilliance. Both were reputed to be dignified gentlemen, decent human beings.

Both had been reluctant to go to war. Lee opposed secession but yielded to his perception of duty to his state. He knew that his army could not defeat the vastly more numerous and better equipped Union forces, especially in a lengthy war of attrition. He knew that the best hope was to force a negotiated peace by audacious victories in battle after battle.

Yamamoto strongly advised Japanese politicians against war versus the US. He foresaw the eventual disaster, famously predicting that he might “run wild” for six months to a year at most before the US geared up its enormous industrial potential to overwhelm Japan. Yet, once the die was cast, he devised the strategy that gave Japan the best chance of forcing the US to the table to at least accept Japan as the dominant power in Asia.

The final stunning similarity is that both brilliant military leaders lost due to the same constellation of factors: both suffered from overconfidence—in themselves, and in the forces they led; both were mythologized as “invincible” and both men began to believe the myths; both finally ran up against opposing commanders who were not intimidated by their reputations; both men were gamblers who ran out of luck, as the element of chance finally turned against them with disastrous effect.

Yet, both commanders were gracious in defeat. Both accepted the blame for it, and both offered to resign. In each case, their superiors (Jefferson Davis and Emperor Hirohito) turned down the offer, seeing that they were the best they had.

Both men would continue fighting for years, never again to gain the initiative, both to lead hopeless defensive struggles from then on.

Of course, there were important differences between the battles, and between the two losing commanders. Lee’s army was numerically inferior to the Union’s; at Midway, Japan outnumbered the US in men, experience, and arms. The technology of war had changed in eighty years, altering the odds and giving secret advantages to Yamamoto’s foe that Lee never had to face.

One of these commanders would die long before the war’s end; the other would survive to accept defeat. History would praise both commanders, even though one of them was a traitor to his country. 

THE STRATEGIES

Both battles resulted from strategies devised by the losing commanders and both strategies backfired disastrously for the losing forces.

Lee’s desperate strategy was to pressure the Union into negotiations by defeating them decisively on their own turf. He had won many battles against inept Union generals, but they had been fought on Southern fields, when the Union army had “invaded” Virginia. He also wanted to relieve pressure on Vicksburg, which was under siege by Grant. By threatening Washington itself, he hoped to distract the Union and divide their forces, his favorite technique.

A year before, in 1862, Lee “invaded” Maryland, a border state that was still in the Union and just a few miles from the US capitol. The Battle of Antietam in September was an inconclusive bloodbath, although a strategic victory for the Union because Lee was forced to retreat back to Virginia.  

(Lee’s setback at Antietam kept Maryland in the Union and allowed Lincoln’s party to keep control of Congress; a year later, the timing of the Gettysburg battle was also significant; the victory allowed Lincoln to issue his Emancipation Proclamation.)

Yamamoto had a similar experience some eighty years later. In May 1942, Japan intended to invade and occupy Port Moresby, on the island of New Guinea, an action that threatened the shipping lifeline to Australia and New Zealand. In the Battle of The Coral Sea, a US Navy aircraft carrier task force fought a Japanese navy carrier force. It was the first battle in history in which the opposing naval warships fought each other without ever seeing the enemy; it was fought entirely through the air. Each side lost a carrier (the USS Lexington was sunk and the Yorktown damaged).

Just as Antietam, Coral Sea was a strategic defeat for the invading forces, which had to retreat and abandon its planned invasion, even though it was a tactical draw in terms of losses. In both cases, the losers could ill afford trading losses with enemies that had much deeper resources of men and equipment.

After Antietam, Lee resumed his winning ways, outsmarting Union generals at Fredericksburg and Chancellorsville. Despite being outnumbered and outgunned every time, Lee had defeated McClellan, Burnside, and Hooker. There seemed a real chance that England might recognize the Confederate States of America as an independent nation.

By July 1863, Lee’s myth of invincibility was at its height. Lee decided to cash in, attacking the North again, this time through Pennsylvania. His march would relieve pressure on the South by forcing the Union army to fight him on grounds he chose.

 Even before Coral Sea, Yamamoto had been convinced that he had to force a confrontation with the US Navy’s aircraft carriers. Pearl Harbor’s great success was tempered by failure to catch the American carriers there. The raid on Tokyo in April by Doolittle’s B-25’s taking off from the USS Hornet, just a few hundred miles from Japan, was a serious embarrassment. Although the damage had been slight, bombs fell close to the imperial palace, endangering the emperor; this was intolerable.

In early 1942, Japan had more carriers in the Pacific than the US. Yamamoto knew that this would not last much longer, considering America’s manufacturing power. He was told that two US carriers (Lexington and Yorktown) had been sunk at Coral Sea. That left only two US carriers left (Enterprise and Hornet). He had the six that had attacked Pearl Harbor, though two were docked for repairs.  

To lure the US carriers to their destruction, his planners decided to invade the US held Midway Islands. The US would be forced to defend or retake the islands because of the threat to Hawaii. Once the island’s defenses were overwhelmed and Japanese planes had landed there, the US carriers would be entrapped by vastly superior forces. Four aircraft carriers, supported by a huge fleet of battleships and cruisers; hundreds of superior Japanese flyers would destroy the far less experienced US forces.

INTELLIGENCE AND SURVEILLANCE
           
In 1863, the Union army knew that Lee was moving, although they were unsure precisely what route he would be taking. Lee didn’t know exactly where the Union army was, either, as his massive army marched north.

In 1942, the US had a secret weapon that gave them a huge advantage; Navy cryptanalysts in Hawaii (led by Joseph Rochefort) had broken the Japanese naval code to the extent that they could predict where and when Japan would next attack with amazing precision. The navy dockyard workers also secretly repaired the Yorktown, and thus Admiral Nimitz, the US commander, had three carriers (in addition to the reinforced air power on Midway), somewhat shortening the odds, though, in the eyes of all including the brass in Washington, they still favored the Japanese.

Intel problems of another sort were also common elements to these battles. In 1863, the cavalry were the eyes of the army. Units were sent galloping away to probe for the enemy and to report back to the commander. In the Pacific in 1942, scouting the enemy was done by submarines and planes designed or adapted for long-range flights. The Pacific is vast and spotting and identifying ships from high altitudes was chancey.

(The US had another secret advantage in 1942: shipboard radar would forewarn of attacking formations of bombers, allowing time to prepare defenses and damage control, but planes were not then equipped with radar and thus were limited to the naked eyes of pilots and observers).

General Lee was blinded by his cavalry commander’s failure to locate the Union Army. General J.E.B. Stuart was the culprit there. At Midway, Yamamoto was stationed in his flagship, a battleship that was steaming many miles behind the vanguard of his aircraft carriers (commanded locally by Admiral Nagumo).

In 1942, Japanese surveillance failed to locate the American carriers for several reasons: first, the US, knowing the details of the Japanese plan, had occupied the islets of Frigate Shoals before Japanese subs could get there to refuel. Thus, the subs were unable to complete their mission. Then luck took part: a Japanese scout plane’s takeoff was delayed, and another had engine trouble. They just happened to be assigned the sector of ocean where the US fleet was lying in wait. (The location was appropriately designated, “Point Luck.”)

US scout planes from Midway were luckier. Intel had correctly predicted that the Japanese would be attacking from the northwest of Midway. That narrowed the scope of their search. They spotted the carriers and sent back the urgent message, “many planes headed Midway.”

FATE AND CHANCE

In 1863, the town of Gettysburg was not expecting to be at the center of a huge battle, although it was strategically located at the junction of several important roads. Neither side planned to do battle there, and it began as a shock to both. Rebel units arrived in town looking for shoes and ran up against US cavalry units that happened to arrive there. A skirmish became a battle as more units arrived on each side. The Rebels outnumbered the Union forces but the Union barely held their ground until reinforcements arrived. The opposing armies gravitated to the site as if magnetically drawn.

By the time Lee arrived, it was apparent that the Union forces held strong defensive positions on the high ground. Lee’s subordinates, especially General Longstreet, advised against fighting a huge battle there. (By then it was clear that frontal assaults on strongly defended positions were futile; artillery and massed gunfire time after time had inflicted unspeakably high casualties on the attackers.)

Longstreet advised moving the army between Gettysburg and Washington, thus forcing the Union army to attack them. But Lee stubbornly insisted that this is where he would make his stand. Do or die. Now.

Some in the navy and many in the army had opposed Yamamoto’s Midway plan. Some navy men thought his plan too complex, depended on too many assumptions as to the US intentions and capabilities, relied too heavily on tenuous intel and lacked sufficient resources allocated for surveillance. Overall, the plan was too rigid; it didn’t allow for improvisation. These objections were cast aside in the “victory fever” but proved to be correct.

Japanese Army generals (who dominated the government) had other objections. They wanted the navy to support its plans for more invasions and occupations in the South Pacific, including New Guinea and the Solomon Islands. (Yamamoto agreed to planned operation to invade Port Moresby, New Guinea in May in order to placate the army brass).  

All opposition to the Midway operation was dropped after the Doolittle Tokyo raid and the Battle of Coral Sea proved Yamamoto’s point about the threat of US carriers. As with Lee, the opposition faded in response to Yamamoto’s reputation for success and his forceful personality.

THE RAZOR’S EDGE

On day two of Gettysburg, the Confederates came close to routing the Union army. Desperate fights led to near victories: at the Devil’s Den, at the Peach Orchard, the Wheatfield, and Cemetary Ridge, and most critically, at Little Round Top. In each pitched battle, the Union forces were bent just short of the breaking point, but barely held on. At the end of the day, Lee thought he needed one more great push to break the enemy’s back. On day three he bet all his chips on a frontal assault that would be known to history as Pickett’s Charge.

At Midway, the full fury of the battle was released on the very first day; in fact, by the end of the morning, the entire battle was all but decided. By the end of the day, it was virtually over, although it went on for two more days until the two forces finally recognized its end.

Although eighty years of technology had permitted the compression of action into minutes instead of hours and days, there was still enough delay for the issue to be doubted by either side. The agonizing and deadly minutes must have seemed to the participants as hours, days, or more. 

The American attack on the carriers began ineptitude and suicidal but ineffectual courage.

Early in the morning of June 4, planes from Midway attacked the Japanese carriers with complete futility. B-17’s bombed from 20,000 feet and hit nothing; B-25’s swooped low and were shot down. Dive bombers and torpedo planes from the island’s marine squadron hit nothing and were shot down. Marine fighter pilots were decimated by Japanese fighters while their bombers severely damaged the island’s defenses.

Planes from the three US carriers did even worse. Carrier planes were of three types: torpedo bombers, dive bombers, and fighters. Optimal tactics required a combined attack: torpedo planes at sea level attacking from different directions while dive bombers dropped from above. Fighters should be there to ward off enemy combat air patrol fighters.

But at this time, the US naval flyers were amateurs by comparison to the Japanese who had perfected the technique. Lack of navigation skills even kept whole squadrons away from the target completely (all the Hornet dive bombers got lost). Dive bombers from the other two carriers lost their slower torpedo squadrons and they all were separated from the fighters who were supposed to protect them.

Added to the skill and experience deficiency, the US planes were at or near their expiration date. The “Devastator” torpedo planes were suicidally slow and their torpedoes were often defective and failed to explode even if the pilot was lucky enough to survive the Japanese Zeros and anti-aircraft fire and get close enough to the carriers release them. Whole squadrons from Enterprise and Yorktown went down without scoring any hits.

There is an old saw that goes, “Chance is the fool’s name for fate.” Or maybe it is vice versa. Either way, fate, chance, luck all decided to favor the US.

Earlier, the Japanese pilots returned to their carriers from their attack on Midway and urgently asked for a second attack to finish the job. As the planes landed, crews began to re-arm them with bombs. At that moment, word arrived from scout planes that a US carrier had been sighted; then a second carrier was sighted. Admiral Nagumo ordered that the planes now must be armed with torpedoes and aerial bombs suitable for striking warships (the detonations were delayed to pierce the ship’s decks and armor and explode deep within, rather than on contact with land.)

When the ineffectual US torpedo attacks were over, the carriers prepared to launch planes. At that moment the US “Dauntless” dive bombers began their assault. Even though few US fighters were there to protect them, the Japanese fighters were not in position to attack them because they had been drawn to sea level to fight the low flying torpedo planes.

The carrier decks were filled with airplanes loaded with fuel and bombs of all types were still on the decks. In just a few minutes, the dive bombers dropped 500 lb and 1000 lb bombs on three of the Japanese carriers, sinking all three.

The fourth Japanese carrier launched its planes in desperation. They might still salvage the day. Earlier, the Yorktown had been hit by bombs and torpedos. It had been set aflame and the Japanese pilots reported it as sinking. Now, they were ordered to attack the other US carriers. If they could sink one or both, the battle could be seen as a draw.

They arrived over the US carriers, looking for one that was not in flames. They found one and attacked it with deadly accuracy, leaving it mortally wounded. They thought they had sunk a second carrier.

In fact, they had hit the Yorktown again. Miraculously, frantic fire suppression teams had quelled all the fires of the morning assault. The ship had regained power. Now, it was struck again. (Yorktown had survived the Coral Sea damage, been repaired at Pearl in three days, and joined the Midway battle. Its pilots had inflicted much of the damage that day. Now it was pounded again and again. Still, it survived, was to be towed back to Pearl. Its luck ran out the next day when a Japanese submarine finally finished it.)

The Japanese pilots from the fourth carrier would have no home to return to. Pilots from the remaining US carriers found it and destroyed it with a rain of bombs.

In the morning of June 4, 1942, the Japanese navy was the dominant force in the Pacific, poised to extend their power to America’s doorstep. By the late afternoon, their fleet was staggering back, having suffered a disastrous defeat.

In the morning of July 3 1863, it still seemed possible that the South would win the battle, and then the war, and would achieve its goal of independence. By the afternoon, that hope was shattered. General Lee ordered George Pickett to attack the center of the Union line. Lee believed that the center would be weak due to the need to strengthen the flanks. But his complex plan to force the result was fatally flawed. Stuart’s cavalry was stalled by Union opposition; Longstreet’s reluctant attack on the other wing was too little too late. Pickett’s force was decimated, few reaching the Union line before being slaughtered.

 The remains of Lee’s army were able to escape to the South and to go on for another two years, but never to regain the initiative. The Union grew stronger; manpower, the blockade, generals who now saw through Lee’s myth of invincibility. In April 1865, Lee surrendered to Grant.

Admiral Yamamoto continued to lead the navy in its desperate struggle to hang on to its island possessions and to forestall the American juggernaut. He tried to regain the initiative and some of the “face” he lost at Midway by making a stand at Guadalcanal. But after months of back and forth brutal fighting, the island was lost.

A few months later, in April, 1943, American fighter planes caught the admiral’s plane and shot it down, killing him. There was a final irony: he was doomed by the same American codebreaking team that had made the difference at Coral Sea and Midway; now they told the P-38 pilots exactly where to find him in order to finish him.   

LEGACIES

If Yamamoto had survived to the end of the war, it is unlikely that he would have been condemned as a war criminal. The Japanese armies were guilty of many unforgivable atrocities, but the navy and Yamamoto in particular didn’t have that reputation. It is possible that he would have raised his voice long before the end to argue for surrender, although it would have been a bitter pill. By the end, the vaunted Japanese Navy had been utterly destroyed and the nation, as he had warned, was in ruins.

 Robert E. Lee lived until 1870, his dignity intact. Southern historians, who dominated the academic field for many years, exalted his reputation, as they glorified the “lost cause.”

Later historians have corrected the record, noting that when Lee’s army entered Pennsylvania, officers rounded up freed blacks and returned them to slavery in the South. Lee tacitly approved of the policy by his silence, just as he never protested the atrocities committed after the end of the war by the Ku Klux Klan, which was headed by former Confederate general Nathan Bedford Forrest.

The fact is that Robert E. Lee was a traitor to his country, the USA. He had been a career officer in this country’s army, having sworn allegiance to its flag and its constitution, not to his state of Virginia. Although it might be understandable that he turned down command of the Union Army on grounds that he couldn’t raise arms against his home and family, that did not justify his taking arms against his country. He could have sat out the war rather than lead the fight the nation he betrayed.

There is a statue and memorial museum dedicated to Isoroku Yamamoto’s memory in his home town of Nagaoka-Nigata, Japan. Robert E. Lee has many things named after him; his statues have recently been removed from public places.



Tuesday, April 03, 2018

WHEN A JEW MISBEHAVES

Many years ago, I was watching the news on TV with my father-in-law when there was a report about an insider trading scandal involving Ivan Boesky. Clearly agitated, my father-in-law asked, “He’s a Jew?” I said that I thought so.  “Ah-ha. This is the way they start.”

It occurred to me that on its face, the comment might have sounded anti-Semitic: “they” meaning “those crooked Jews.” But my father-in-law was a Polish Jew, a holocaust survivor who had lived through the era when Jews were made scapegoats for all the ills of Europe. He had witnessed the escalation of grumbling: whispers that led to graffiti, to beatings, then to pogroms, and eventually, to disaster. But it began with the anecdotal accusations, one person’s wrongdoing being attributed to all.

Years later, I heard the same complaints from black acquaintances about stories accusing Michal Jackson and O.J. Simpson of crimes. The first response was to deny, to attribute the charges to racism. “They always want to knock down the uppity Negroes,” the wise old heads shook. “As soon as we make it, they will go after us.”

 (In the lily-white golf community, the fall of Tiger Woods was seen as comeuppance that was inevitable: “Of course, he cheats on his (white) wife.” The fact that Woods avoided identifying with any racial causes (which annoyed some in the black community) did not deter white haters from enjoying his downfall, or most blacks from bemoaning it.) 

It hurts, it really hurts bad when something happens that seems to confirm the beliefs of the haters about you. You can almost hear them saying to each other, “I told you so, you can’t trust those people.”

As a Jew, I’m forced to be aware of the image I project to the world. I try to avoid all the stereotypes that sting. For example, I pick up the checks at lunch so that I won’t be called “cheap.” (I had a Scots-Irish friend who teased me: “We Scots are thrifty, you Jews are cheap.”)

Money dealings of all kinds are the traditional subjects for ugly anti-Semitic mumbling. The Nazis were not the first, nor the last, to demonize Jews as the bankers and financiers who are supposedly responsible for every ill from economic recessions to world wars.

So, Ivan Boesky was accused of cheating on stock deals. That doesn’t mean all Jews are cheats. Fine. So, what about Michael Milken, and then what about Bernie Madoff?

Well, in truth, stock swindles and Ponzi schemes are common crimes that have been repeated often without involvement of any Jews. In fact, the alleged victims in the Boesky, Milken and Madoff cases were often Jews, investors who trusted the men to be honest and wise. (Sadly and predictably, this fact, too, is fodder for haters: “the Jews who got fleeced were too greedy.”)

Powerful men in various fields have recently been accused of sexual misconduct. The first of these to be widely exposed in the media were in the movie business. This led to other entertainment forms, including the opera, ballet, television, and sports. Then it spread to the workplaces of other businesses, to the offices of politicians, and then to schools, judge’s chambers, the armed services, and so on and on.

Yet, it seems to me that the names most prominently mentioned by the media include a disproportionate number of people of Jewish descent, including: Harvey Weinstein, James Levine, Al Franken, Andrew Kreisberg, Louis C. K. (Szekely), Brett Ratner, Dustin Hoffman, Woody Allen, Roman Polanski, Jeremy Piven, Mark Halperin, James Toback, Bob Weinstein.

(BTW, as a Jew and a lawyer, I am doubly offended by the Michael Cohens of the world who allegedly cover up the crimes of Trump and others by using their skills and wits to devise unbreakable nondisclosure agreements and pressure emotionally fragile victims to accept them.)

Of course, there are many others caught up in these scandals who are not Jews, but the ones who stand out to me are all too Jewish. Frankly, some of them even “look Jewish.” I mean, to be honest, Harvey Weinstein looks like a Nazi stereotype of the “Jew predator”: balding, somewhat obese, jowly and squinty-eyed, a bit slovenly in appearance.

There is a certain nasty snicker effect added to the stereotype. Jewish men supposedly have multiple sexual hang-ups. Comics like Woody Allen and Garry Shandling have traded on these foibles for ages. Now, we are fed Weinstein’s alleged habit of luring aspiring actresses to his hotel rooms so that he might masturbate in front of them. (This apparently was the favorite way that Louis C. K. allegedly would get off as well).

This revelation was a shock to me. It seems such an odd thing to do! I mean, if you need to jerk off, why go to so much trouble? Why bring in an innocent witness? If that is your thing, why not hire a sex worker to cheer you on? You’ve got the money, and they won’t complain.

The answer, of course, is that—just like rape—this particular perversion is hardly about sex; it is mostly about power, raw brutal power. Watching the victim squirm uncomfortably with no means of escape is what keeps his dick hard. He knows she can’t complain because he can ruin her chances at a career, can even use his resources to accuse her of seducing him. People are all too willing to believe a girl will do anything to be in show business, aren’t they?

The fact that so many of Weinstein’s crimes follow the common M.O. of entertainment executives throughout the ages is also troubling. It recalls the painful clichés of the so-called golden era of Hollywood’s movie factories, in which the “casting couch” was common. The culprits then were the studio moguls, who, coincidentally, also happened to be predominantly Jewish. Put a photo of Harry Cohn, head of Columbia at the time, next to that of Harvey Weinstein and their multiple victims would have a hard time choosing between them.

Actually, these culprits do have things in common that account for their crimes other than the fact that one or more of their parents happen to have been labeled as Jews. They are all men who hold power.

(Sports figures who violently abuse women exert power of another kind; physical dominance over their prey. The business types exert a more subtle form of power, inciting fear by threat to career or reputation, in addition to the frequent fear of physical harm.)

I suspect that of the two factors, the most important one is power. While it is true that men are guilty of abuse far more often than women (and that includes abuse by men of boys) that may not always be the case.

As more women enter the upper regions of power in business and the professions, there are certain to be more instances of abuse of that power. While sexual predation is a crime that is traditionally attributed to males, the temptations of power accompanied by our enlightened society’s loosening of sexual restraints might well lead to more instances of abuse by women.

I wonder whether abuses committed by women against males are under-reported, just as incidences of rape by men of females are. Traditional male self-image would tend to deter boys or men from complaining that their teacher, or aunt, or superior at work had fondled them, propositioned them, or made sexually insensitive remarks.

What boy is likely to complain to his parents about that sort of thing? He is more likely to fantasize hopefully about the possibility, to read any provocative gesture by a woman as an invitation. Men in the workplace, moreover, are subject to the same pressures as women vis-à-vis a superior’s approval.

Can’t you imagine an angry boss who is female joking in the not-too distant future about a subordinate’s masculinity, say, in conversation with other women executives over drinks?