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Tuesday, December 30, 2008

The Avenging Mother

Ellie Nesler’s death was reported in today’s news. She had gained her notoriety the old fashioned way, by killing someone who deserved killing. Her life story is a cornucopia of crimes, as victim, perpetrator, mother --- a hardscrabble life spent in the trailer trash fringes of society. She was the perfect heroine for the T.V. movie, fast food and tabloid gorging denizens of the white flight exurbs, whom she dazzled long before Sarah Palin took the title.

In 1988, her 7 year old son Willie had returned from Christian camp complaining that he had been "touched in a bad way." Suspicion fell on a dishwasher with a child molestation record, Daniel Driver, who was charged. Driver had been suspect in previous incidents, but the church had supported him. The case dragged on until one day, Ellie shot and killed him in the courtroom.

She soon became the heroine of trailer mom supporters of vengeance, her ‘story’ a lightning rod for talkradio, bumper stickers, tee shirts, and a template for Hollywood potboilers, inspiring the likes of Jodie Foster to make movies about this ultimate act of good parenting.

Eventually, as all good stories, the messy facts began to interfere with the perfection of myth. Turns out Ellie had been involved in crimes as a teen, and was revealed to have been loaded on meth at the time of the shooting. Additional evidence of planning cast doubt on her image as the mom temporarily maddened by the sight of her child’s tormentor. Nonetheless, the mitigating factors were enough to justify a manslaughter verdict, which was reversed on appeal. After her release, she got in trouble again, was returned to prison after buying 10,000 pseudoephedrine tabs, the precursor of methamphetamine possessed for sale.

Meanwhile, son Willie was convicted of assault on a handyman in a dispute over tools, and when released from that crime, immediately stomp the victim to death, earning himself a sentence of 25 years to life.

Mom was released from prison in 2006 and died of breast cancer. Willie has asked for permission from prison authorities to attend he funeral.

Sunday, December 28, 2008

Obama and the death penalty

President Obama will have a full plate of immediate, if not emergency concerns, when he takes office. Death penalty policy understandably will not be the top priority for his administration.

Nonetheless, as chief executive, he will need to confront the issue deeply and broadly not long after he takes office and all during his administration thereafter.

A president influences the issue in many ways, including appointment of U.S. Attorneys throughout the nation; appointment of federal judges at every level, including of course the Supreme Court; appointment of an Attorney General and subordinates; control over the budget for capital prosecution and defense. With all these actions, the president sets the course on responses to habeas corpus petitions and other appeals and has specific constitutional duty of considering pardons and clemency.

Barack Obama is the first president in memory to have made statements that evince doubts about the constitutionality and general efficacy of capital punishment. He has written that he doubts the claim that it is a deterrent, is troubled by the racial and social inequity inherent in its enforcement, and has stated variously that he is not a "cheerleader" for the death penalty and that his views on the subject are "complicated."

Obama’s depth of thought was well documented during his campaign so it should not be surprising that this deliberative man should view the issue as complex. As a state legislator in Illinois he was active in the practical debate that arose when Governor Ryan declared a moratorium after revelations about its inadequate justice system which included proof of incompetent defenses, concealed evidence of innocence, leading to innocent people condemned to death. Obama actively supported reforms, but also agreed to expanding the number of crimes for which the death penalty could be sought (including murder of an elder or a child), while at the same time opposed expansion to include gang murders, arguing that premeditation was adequate and fearing that "gang" was a buzzword for racial, ethnic and social bias.

During the campaign, Obama trod a tightrope on the issue, fearful of providing a wedge issue to conservatives. In this policy, Obama learned his Dukakis / Clinton lessons, insisting that he favored the death penalty for Osama Bin Laden and other Al Qaeda terrorists and he declared his disapproval of the recent Supreme Court decision overturning the death penalty for child rape without murder.

Despite his campaign positions supporting capital punishment in principle, which depressed opponents of the law, it is still clear that President Obama presents the greatest hope for policies that at least limit the expansion of the death penalty. Moreover, he has the temperament, intellect, and standing to at least begin to swing the pendulum of public opinion away from support of capital punishment.

Saturday, November 22, 2008

The Great War

Some time ago, I issued a post about my uncle Sammy, who died in World War II. Recently, while rummaging through the garage, I found some papers and old photos my mother had given me before she died. They included things she had kept for her stepfather, my Papa Hymie.
Papa Hymie had emigrated as a young boy from Kiev, Russia with his parents, Aaron & Rose, his brothers Ben and Joe and a sister, His brother, Joe, had enlisted in the army and died during World War I. His mother, Rose, had written to find out what happened to him. His commanding officer had written her a letter detailing how Joe Boriskin, 24, had died.
The letter, dated 12 December 1918, is very fragile, three typed pages bound by permanent staples. The body of the letter reads as follows:

Barry, Wainright, Thacher & Symmers
59 Wall Street, New York
16 December 1919
To: Mrs. Rose Boriskin:

Dear Mrs. Boriskin,

Your letter of 25 November 1919, addressed to Major General (now colonel) Robert Alexander, formerly the Commanding General of the 77th Division, has been forwarded to me for reply because your son Corporal Joseph H. Boriskin was in my battalion, and as corporal in command of the battalion runners, was attached to my battalion headquarters.

As the major commanding the second battalion, 306th Infantry, A.E.F. from 22 June to 24 October 1918, I came to know your son well, and had I known where to address you, I should have written to you before, to express my high opinion and appreciation of his courage and the fine spirit with which he always responded to every call of duty.

As Corporal of the Battalion Runners, who, as you probably know, were the men who carried messages and orders to the various officers of the battalion and also regimental headquarters and elsewhere, he occupied an important position and had direct charge and responsibility over more than forty men.

Corporal Boriskin’s efficient work and high courage came especially under my personal observation during the exhausting advance and attack through the Argonne Forest from 26 September until 16 October, when your son fell, mortally wounded in a most gallant effort to bring into our lines for medical treatment, a wounded German officer, who had fallen on the slope of Hill 182, immediately north of the little town of St. Juvin, which was captured by my battalion on the afternoon of 14 October 1918.
For this brave service, your son received the following citation,

"Cpl. Joseph H. Boriskin, No. 1,702,058, Headquarters Company, 306th Inf., who on October 14, volunteered to carry a wounded German officer to a Frrst Aid Station, accomplishing his mission under a heavy machine gun fire, as a result of which he himself was seriously wounded."

On the 15th of October, I saw your son, together with other wounded men, being carried on a stretcher along the road leading from St. Juvin to the dressing station. I could then see that he ws very seriously wounded and I gave orders that he should receive the best care possible and be included among the men who, because they were badly wounded, were entitled to receive the first attention; he was carefully covered with a warm blanket and was made as comfortable as possible while being carried to the doctors.

A few days afterwards I was ordered to a hospital in Paris of an operation, and while there was, without previous warning, ordered home and consequently carried with me from the front no addresses or other material which would have enabled me to write to the parents or families of my officers or men who had been killed or wounded.

I, therefore, welcome this opportunity of writing to you about your son. You are indeed entitled to be proud of him for he always performed his duty bravely and well, set an admirable example to the men under him, and rightly enjoyed the confidence and respect of all officers with whom he came in contact. I can well appreciate what his loss means to you. At the same time, nothing can take away from you your just pride in him and the consciousness of the high privilege which you have had in sharing in the greatest gift which any man can make to his country, namely, his life.

I hope some day that I may see you and I shall be glad to talk over with you the service of your son.
Will you accept from me, as a slight tribute of my appreciation of your son, the accompanying copy of the History of the 77th Division.

On page 176 of this history, your son’s name appears among many officers and men cited for gallantry in action.

I enclose four copies of your son’s citation, and also three additional copies of this letter in order that, if you so desire, you may send them to certain of the societies of which your so was a member, and to which you refer in your letter to General Alexander.
Very sincerely yours,
Archibald G. Thacher
(Formerly Major 306th Inf., 77th Div., A.E.F. Commanding 2nd Battalion 306th Inf.)
Archibald Thacher came from a prominent Boston and New York family. After the war, he was a respected Wall Street lawyer specializing in Admiralty Law, appearing before the U.S. Supreme Court several times in his career.
The 77th Division, which also saw action in World War II, and is still active, was called the "Empire State Division," made up of mostly New Yorkers, now based in Queens.
Long ago, I’d read a book about World War I by Laurence Stallings, who had fought and was wounded in the Great War. He later became a novelist, writing the book on which the silent movie "The Great Parade" was based. He also wrote "What Price Glory," another famous story / movie about the war. His non-fiction book, published in 1963, was called "The Doughboys." Stallings writes:
"The 77th was called the Melting Pot Division, New York City’s own. It spoke 42 languages and among its gamblers could be found Chinese from Mott Street playing fantan, Jewish boys from Allen Street in stuss games, Italian boys from east of Union Square playing piquet, Germans from Yorkville on the Upper East Side. There were Turks who spoke a little Hebrew and Hebrews who spoke a bit of Arabic. Many could speak only Brooklyn English; their accent was that of the Don Marquis ballad that ended: ‘Prince, when you cal on a Brooklyn goil, Say Poil for Pearl, and erl for oil.’
"There were some Kentucky and Tennessee immigrants to New York City who referred to a dud shell as a 'possum playin’ daid.' He notes that others who received citations during their battles had names like 'Sing Kee' and 'Abraham Hirschkovitz'."
Referring to the battle near the town of St. Juvin in October 1918, Stallings writes:
"When the Meuse-Argonne operation was launched September 26, the American First Army’s objective on the extreme left of its line had been to seize the citadel of Grandpr√© east of the confluence of the Aire and Aisne rivers, and make a junction with Gouroud’s French Army moving up on the left of the forest. The 77th Division’s Bowery Backwoodsmen finally got a toehold at Grandpre’s approaches on October 9-10 as it emerged from the Argonne blinding in unaccustomed sunlight. The key to Grandpre was Saint-Juvin, an ugly piece of fieldworks on a hillside that had resisted the best efforts of the infantry of the tired 82nd Division on the right.
"General Alexander ordered an assault on Saint-Juvin from both flanks by the 77th Division in battalion strengths on October 13. The left flank battalion began first and was hard at it and suffering when the leading element of the other battalion wove through the forest to begin its attack. That element consisted of Captain Julius Ochs Adler, of the New York Times family, his personal Chauchat gunner, and the ammunition carrier. Adler came upon a left flank guard of the 82nd’s units still in the line to assist the refreshed division moving up again, the guard consisting of a major with three Hotchkiss teams. When Adler told him that he and his two friends were now going to capture the deafening town on the hill beyond, the major was dubious but said that he would come up behind him with his Hotchkiss gunners..."
Adler’s citation, for which he was awarded a D.S.C., and later, Croix de Guerre and Purple Heart, reads as follows:

"Accompanied by another officer, Major Adler was supervising the work of clearing the enemy from St. Juvin where they suddenly came upon a party of the enemy numbering 150. Firing on the enemy with his pistol, Major Adler ran toward the party, calling on them to surrender. His bravery and good marksmanship resulted in the capture of 50 Germans, and the remainder fled."
After the war, Adler returned to the NY Times, and when his uncle died, became the managing editor. Stallings writes: "It was difficult in later years for anyone invited to lunch in the paneled room high above Times Square to see in the quiet, self-effacing Major Adler a soldier with the effrontery of a con man and the ferocity of a bear." Adler later served as the commanding officer the 77th Division in World War II.
Checking the internet further, I came upon a website titled: "History of the 306th Infantry" by Julius Ochs Adler (1935). In a section subbed The Meuse - Argonne, I found the following:

"One of the pathetic sights as the units moved toward Fleville from St. Juvin was Corporal Boriskin of the 306th Infantry, who was being carried on a stretcher to a support dressing station; he had been mortally wounded in crawling out under heavy fire the day before to rescue and give first aid to, a wounded German major lying in front of the American lines on the slopes of Hill 182. It was one among many fine acts done that day and fully justifies the statement contained in General Alexander's Memoirs: 'I wrote a letter of commendation to the Commanding General)153rd Brigade, more especially for the brigade and specifically for the 306th Infantry, the unit which had done the work and paid the price therefor.'"
Joe and Papa Hymie’s mother, Rose, must have been a persistent woman, judging from the hints in Major Thacher’s letter. In 1930, she apparently sailed to France to see her son’s grave as a "Gold Star Mother." The U.S. government paid for ships full of the mothers of fallen heroes.
I’ve included on this post a remarkably kind and considerate letter she received, which even suggests appropriate clothing for the trip and expresses the kind of sentiments that would be hard to find in today’s harsher attitudes.
The Gold Star Pilgrimages also have an interesting history. American War Mothers, first organized in 1917, lobbied Congress regarding the problem that many families could not afford to travel to see their loved ones' burial sites, which were scattered in several cemetaries in France and Belgium built after the Great War. Newly elected Congressman Fiorello La Guardia introduced the first bill in 1919 but it took ten years for Congress to agree to pay for the pilgrimages for mothers or widows.

From 1930 to 1933, the Government paid all costs to sail on luxury liners to France. The mothers were provided flowers and their photos were taken at the gravesite.
Ironically, the times demanded that African American mothers sail separately from others, and many commented that they received better treatment from the French than from their own country. Another controversy was the cost, which some critics challenged because of the Great Depression. But generally, the project was considered a great success, providing succor to thousands of families. It was praised as a rare occasion when the Government spent money and effort to relieve private grief and suffering.

My Papa Hymie lived to about 87 years old, dying peacefully in his sleep. I was in my twenties at the time and had always admired him as the best of my many intertwined relatives, though there was no "blood" connection. He had married my mother's mother (Anna), after her father had abandoned or been thrown out of the house for reasons my mother barely suggested. Hymie had brought order to the impoverished little family, bought shoes for my mother to wear to school and tried to discipline her brother.

He and Anna had a daughter, Ruthie, who died of illness in her early teens. I remember that his sister taught school in Philadelphia and his brother, Ben, worked for the US. Mint in Denver.

Papa Hymie told wonderful tales that began in the middle and ended before the finish involving his adventures. He'd seen McKinley, San Francisco after the 1906 'quake, knew Dempsey, Lepke, had worked in the Perth Amboy shipyard during WW II, introduced me to a variety of Runyonesque figures --- Max the barber and Harry the captain. He'd been shot when young and stabbed by a mugger when very old. He'd chased the mugger down the stairs to the street, still carrying a loaf of bread in his bleeding hand before he realized that, as a man in his 70's, catching the thug might be his last adventure. My mom, hearing the tale, convinced him to migrate to L.A. where he spent his last years in warmth and comfort, walking our dog to the park, where secretaries on lunch breaks bent to pet the dog, keeping Papa Hymie smiling at cleavage. "I still look," he told me, "but I can't remember why."

In his 80's, he could thrill to an infant's grasp of his finger, and find amazement at a dog's ability to 'tell' him when he wanted a walk. I don't remember any time when Papa Hymie spoke about his brother Joe.

Wednesday, November 19, 2008

Obama's First Nightmare

If I were a political cartoonist (do they still exist, anyway), I’d be drawing a big US SUV (with luggage stacked precariously on the roof, labeled "Debts", "Pensions" "Legacies" "Health Care") sinking and stuck in a huge mudhole (labeled "The Economy"). The GM CEO behind the wheel, while in the back seat trapped UAW workers scream, "Help?!" and the US taxpayer stands at the rear, scratching his head in confusion. The driver yells "Push!" but the taxpayer looks helplessly at the quagmire. Someone (a Democrat) whispers to the taxpayer: "Tell him to let us drive." A Republican, driving a new Japanese car nearby, shouts: "Let it sink". Obama is nearby, rolling up his sleeves, pushed by a mob of "Liberals", but cautious about getting his shoes muddy.

All the talk during the election about saving the middle class is about to get a test. Not with a tax cut but with a fight to the death over the very concept of powerful and influential trade unions. The strongest union in the country, the United Auto Workers, the union most responsible for the creation of the American middle class in the second half of the 20th century, is in a fight for its very life. And it is a very scary trap being set by Republicans for President Obama.

The hysteria over whether the government should save the U.S. auto industry from bankruptcy boils down to a Republican effort to exact the last item on Reagan’s and Gingrich’s wish list from the 1980's and 1990's. That is, the final elimination of big labor unions as a major force in American business.

The UAW fully organized in the 1930's with the support of FDR’s administration in the midst of The Great Depression. The industry didn’t become healthy until it began to get huge government contracts to make the weapons that won World War II. After the war, the industry re-tooled and by the 1950's boom was ready to shift into overdrive. The union won contracts that created the lifestyle that we still associate with the idea of "middle class".

The ability to buy and own cars, build and buy suburban homes and appliances, send children to colleges to become creators and managers of businesses, teachers, doctors, scientists; create new technologies in engineering, plastics, all derived from the powerhouse auto industry that drove the economy. Our computer industry was hatched in the garages of suburban middle class American homes.

Beginning in the 1960's, the US auto industry began to get flabby, smug, self-satisfied. It failed to respond adequately to challenges from the re-emerging European (VW, Mercedes) and modern post-war Japanese auto industry, which had turned from producing fighter planes like the Zero to innovative car designs.

U.S. firms, through lazy mismanagement and lack of foresight, smugly continued its ruinous path, relying on their long established brands to keep them afloat, even as they consistently lost market share. They used their lobbying clout to oppose regulation for emissions, safety, reliability, gas consumption, rather than accepting the trend and planning for it with any entrepreneurial enthusiasm as their competitors did. As long as gas prices stayed low, many consumers continued to feed their egos.

The auto unions too were late to recognize the climate change in the industry, clinging for far too long of their tradition of antagonism to management. The hostility was justified by decades of hide-the-ball negotiating over profit margins, executive salaries, and was exacerbated by the institutional memory of union leaders, whose political power within the Democratic party made them complicit.

In the last twenty years, Japanese auto companies have built plants in many Southern states, building Toyotas, Hondas and Nissans because those states promised low taxes and more importatly, "right-to-work" laws, meaning no union shops. The companies pay lower wages, provide minimal benefits of health care, severance, and pensions, by comparison with the US company plants in the North, giving them a clear competitive edge.

Republican politicians in these Southern states vehemently oppose helping the US Big Three with anything but the forms for bankruptcy filing. Bankruptcy would mean reorganization, and that would mean dumping the union contracts if — and it’s a big if — the companies were able to survive bankruptcy, which might soil the brands irrevocably.

If they didn’t suvive, that would be okay, too, for Southern Republicans. It would mean a flow of skilled auto labor to the south, reduced competition for the foreign owned companies based in the South, and a new form of slavery for workers with no meaningful unions to turn to.

During the campaign there was some talk about card checks. This is a technique which unions have used to organize and gain recognition. If the union can get an employer to agree to remain neutral, employees can signify their desire for union representation by presenting union cards at an open meeting. Once a majority is reached, the union is recognized as a bargaining agent for the plant. The unions need it because employees are afraid to vote for the union over the opposition of employers and once seeing their co-workers going along, will join.

Republicans violently oppose the idea, and the Chamber of Commerce, Heritage Foundation, and other conservative ideologues have proposed laws to ban card check. Ted Kennedy has proposed legislation legitimizing it. Whether it will pass in the new Congress, even with strong Democratic and presidential support, is questionable because this is one bill that will yield the loudest and longest filibuster the Southern senators can muster since the Civil Rights Acts of the 1960's.

This is the trap being set for President Obama. Will he risk his prestige at the start of his administration by backing the unions and the industry? If he fails to save the industry and a deep recession or a depression results — that is the armageddon predicted if Ford, G.M. and Chrysler go under – 3 to 4 million jobs at risk (1 in 10 workers reliant on the US auto industry) — his administration will be doomed. If he tries and loses, he will also be blamed. And if he wins support to bail out the companies and they still go under ...?

Obama already has been tossed into a deep mudhole by Bush’s policies. They stuck him in two expensive and unwinnable yet unending wars, an economy that has not yet hit bottom, and budget deficits that will damage his hopes for progressive and expensive programs for health care, energy, and environment.

Now, progressives who theorize that this election proved that they have emerged from a long winter of despair, will have their first test, and maybe will commit suicide as they did when Bill Clinton was elected in 1992 and they prematurely pressured him with gays in the military and health care. His failures and temporizing led to defeat just two years later and for the rest of his presidency he threaded his way through mines from the left and right.

Obama declared a hope for a holistic approach to governing. He argued that his programs for health care reform, energy independence, and greening were all interconnected with each other and with the economy and national security. That’s why he consistently deflected challenges about adjusting priorities. Whether he can sell that vision and make it work as the vehicle continues to sink deeper into the mud is a real question.

There is a faint glimmer of hope. If the companies can hold out for a while longer, Obama might propose universal health care that might eventually remove those devastating costs from the backs of the auto industry, pus a program of tax incentives (such as credits for buying back and scrapping gas guzzlers for energy efficient vehicles), all of which might make a "bridge loan" to keep the US companies afloat more palatable.

Monday, November 10, 2008

Revenge Of The Lawyers

Having been the butt of so many jokes for so many years, we lawyers are about to get our chance for rehabilitation.

One of Barack Obama's finest attributes is his lawyerly approach to issues. When I hear his speeches, or listen to him debate, I can readily discern the legal training in his analysis and articulation of positions. His responses are coherent arguments, not unlike those made by experienced and skilled lawyers to juries. He neither condescends to nor overestimates his audience.

Though his legal education was apparently serious and thorough, his biography doesn't include trial practice. He was involved in civil rights litigation, taught constitutional law, but I've found no references to any trial experience. Too bad, he would have been a dynamite criminal defense attorney.

To my knowledge, there have only been two previous presidents who have defended in criminal trials. One is John Adams, who defended the British soldiers accused in the "Boston Massacre."

The other was Abraham Lincoln, whose career in a few other respects, bears some similarities to Obama's. Both were from Illinois, both fixated on politics at an early age, both from humble origins - self-made men, both served in the Illinois legislature, both spoke out against a war (Lincoln vocally opposed the Mexican War), neither had administrative experience when elected president, and neither won electoral votes in Texas, Alabama, South Carolina, or Mississippi.

Lincoln, however, had defended in criminal cases. One became famous in his time and contributed to his legend. In May, 1858, he represented William Duff Armstrong, accused of murder during a drunken brawl. An eye witness claimed to identify Armstrong as the killer, having seen him by the light of a full moon at 11 pm.

Accounts of the trial reported in the press and later memoirs and repeated in many Lincoln biographies relate that Lincoln carefully cross-examined the witness, pinning down the details of his testimony. He then persuaded the judge to take judicial notice of the Farmer's Almanac, convincing the judge of its authoritative record of the phases of the moon, proving that there had been no full moon that night, and it had set long before 11 p.m. The jury acquitted on one ballot.

The story was preserved by John Ford in "Young Mr. Lincoln" (1939) with Henry Fonda as the saintly Abe. The screenplay takes some sentimental liberties with the facts; eg: Fonda defends two brothers, and has to protect their mother from a prosecutor who wants her to name the guilty one.

The true client, Armstrong, later served in the Civil War, and was discharged by Lincoln after he received a letter from Armstong's mother informing him that the man whose life he had saved was seriously ill.

Saturday, November 01, 2008

Propositioning the voters of California

Third Corollary to Borenstein’s Law: Drastic measures which are intended as progressive reforms often yield reactionary results. (refer to the Law of Unintended Consequences.)

The direct initiative process was used by Progressives in the early 20th Century as an antidote to the corrupt ultra-conservatism of state legislatures, which were then in the grip of monied interests. The idea of direct legislation by "the people" seemed the only way to "democratize" the process.

Since the 1970's, the process has been a means of evading a legislature which was perceived as being in the grip of liberals. Proposition 13, put forth by Howard Jarvis, who for years had been one of several crackpot low tax gadflies, provided a template for the future use of the initiative process to roll back liberal reforms.

This year, Coloradans will vote on whether life begins at conception, defining every conception as creating "a person". Whether voters will base this vote of their vast scientific expertise, their religious beliefs, or the toss of a coin is a question. How it will affect people in Colorado is another question: is every terminated pregnancy going to be murder?

In the field of civil liberties and criminal law, this means of altering the law has been particularly effective. Clever labeling ("Victim’s Bill of Rights," "Speedy Trial Initiative,") and no organized opposition interest groups (the ACLU has been repudiated as an effective voice for civil liberties) resulted in easy passage of these propositions.

These initiatives resulted in changing evidentiary rules to make it more likely that innocent people would be convicted, while also lengthening prison sentences. The electorate was barely aware of the details of these drastic changes they approved.

For instance, what voter anticipated or intended that "the three strikes law" would demand that a shoplifter be sentenced to life if he had a couple of juvenile burglaries in his past? So too, who understood that a person who has no intention to kill anyone can be executed if someone is accidentally killed by an accomplice during a crime?

The L.A. Times today reports that five of the propositions on the November 4th ballot are pet projects of billionaires. George Sauros, the liberal minded magnate backs Proposition 5(with $1.4million), which would extend expand the trend toward treatment rather than incarceration of drug violators. T. Boone Pickens backs Prop 10 with over $15 million, expecting to profit from conversion to alternative fuel vehicles because of his major investment in natural gas.

Two propositions, 6 and 9, which stiffen criminal penalties and reduce civil liberties in criminal cases, are the babies (almost $6 million) of Henry T. Nicholas, III, founder of Broadcom. They are responses to his own family’s tragedy — his sister was a murder victim.

Scant media attention has been paid to Propositions 6 and 9, which put more nails in the coffin of the Bill of Rights. There have been few debates, programs, ads, or discussion about these proposals.

Proposition 6 is an example of the dangers of this kind of law making. Like most of its ilk it contains a wish list for law enforcement.

The 2008 voter pamphlet consists of 143 pages. Prop 6 is contained in 15 pages of fine print. It amends or creates sections in the Evidence, Penal, Government, Health and Safety, and Welfare and Institutions Codes.

It is labeled "THE SAFE NEIGHBORHOOD ACT" and includes provisions for increased police funding as well as money to build jails.

But way down near the end are the vastly increased criminal penalties and drastic changes in evidence law that further endanger the fairness of the judicial system.

Among many other tidbits, It further eviscerates the Sixth Amendment by expanding the use of hearsay in gang cases.

In effect, if a person claims the defendant committed a crime, but refuses to testify or fails to come to court to face his accuser and cross-examination because he says he was intimidated or threatened, a police officer may testify in his stead to claims purportedly made.

Prosecutors complain constantly that gang cases are hard to prove. It is true that witnesses are reluctant to come forward in such cases. However, the law already provides many shortcuts which allow police "gang experts" to fill in gaps in evidence. These gang cops are notoriously unreliable in fact, dangerously biased zealots who have no reluctance to coerce witnesses, plant evidence, shade their testimony and worse, in order to get convictions. Occasionally, we find that witnesses claim they were threatened and intimidated by police, not gangs, to make incriminating statements.

Proposition 9 (THE "2008 VICTIM’S BILL OR RIGHTS; MARSY’S LAW")is another in a string of efforts to expand the rights of "victims" of crimes. Notice of bail, OR or parole hearings are fine. However, packed in are provisions that victims have the rights (1) "to prevent disclosure of confidential information.... to the defendant’s attorney ... which could be used to ... disclose confidential communications made in the course of medical or counseling treatment ...; (2) "to refuse an interview... or discovery request by ... the defendant’s attorney ...."

The law already provides that any witness may refuse to be interviewed, but expanding this choice into a constitutional right is foolish and contrary to the presumption of innocence that exists before a person is convicted of a crime.

Before such conviction, the accusing person is rightly called an "alleged victim," who is a witness like any other witness, subject to the Constitutionally guaranteed rights of confrontation and cross-examination by the accused.

By changing the rules of discovery and evidence the chances of false accusations increases exponentially.

The Constitution envisions a legislative system in which proposed laws will go through a rigorous vetting process, including hearings by committees peopled by lawmakers who understand the existing law, with aid of experts in law enforcement, financing, and most importantly, the rights of all citizens.

In bypassing the representative government that the founding fathers set up, this direct process of lawmaking by teh uninformed and easily manipulated electorate will upset the checks and balances that keep our delicate justice system respectably fair.

Monday, October 27, 2008

Greenspan's Folly and Borenstein's Law

On October 23, former Fed chair Alan Greenspan testified before Congress, trying to explain how he blew it, failed to anticipate the current economic tragedy, and in fact, had fashioned policies and theories that led to it.

According to the AP, Greenspan, 82, acknowledged under questioning that he had made a "mistake" in believing that banks, operating in their own self-interest, would do what was necessary to protect their shareholders and institutions. Greenspan called that "a flaw in the model ... that defines how the world works."


Greenspan's error was that he failed to read Intro to Borenstein's Law.

In June, 2005, I was trying to explain why our criminal clients act in ways that are often ascribed to stupidity. I pointed out that intelligence and education was an unreliable barrier to risky behavior.

As I explained, people (not just our clients) act contrary to their best interests so often that it can be called the norm, not an aberration.

In fact, supposedly smart people (like Bill Clinton and Dick Nixon) commit reckless acts that satisfy immediate urges without considering the consequences.

The drive for sex, money, power and other elemental desires often overwhelms caution, reason, or religious teachings (uh, abusing priests ... q.e.d.).

Greenspan's presumption that bankers would be restrained by their sense of financial responsibility because it was in their own self-interest to do so is naive, reflecting a misunderstanding of history and law.

Supposed conservatives recognize the wisdom of restraints on government and individuals imposed by the Constitution and criminal laws. Yet, they also urge limiting restraints on the so-called Free Market, assuming that the inherent structure of the marketplace will suffice.

Smart people like Alan Greenspan thus draw risky conclusions about human behavior --- not too different from the kinds of decisions our dumb criminal clients make, like assuming that their homies won't snitch them off when cornered by the cops.

Sunday, October 26, 2008

Here Lies My Generation (1968-2008) R.I.P.

To use an old "Ghostbusters" phrase, the streams of crime and politics crossed this week with nearly cataclysmic results.

In Pennsylvania, a young white woman who claimed to be a McCain worker played a nasty race card, trying in her sadly psychotic way to "work" for her candidate. Conspiracy theorists didn’t need to sound paranoid to question whether she was a designated "suicide bomber" for her cause rather than a weird sick kid acting alone. Certainly, it can be reasonably argued that in the least, she was inspired to her crime by the panicky rhetoric of her candidate’s supporters.

Maybe I’m a bit paranoid to suggest that a shiver goes up my spine imagining what would have happened if the cops believed her story and if she had picked some black man from a line-up, but I don’t think so. I’ve seen too many such cases end up with long prison sentences.

It didn’t take Nostradamus to foresee that Barack Obama’s presence would stir thousands of ugly and dangerous vermin to rise from the substrata where they hibernate. Such creatures thrive during hard times. Economic distress releases forces that drift on the air, demanding scapegoats for the coming bloodlust. It is possible to read too much into the shouts of "terrorist," "socialist," and "kill him" that have been heard on the fringes of crowds or in blogs. But the law doesn’t think so. It is a crime in California and most states to threaten death or injury even if there is no intent to actually carrying it out if the person threatened can be said to be reasonably placed in fear. (Penal Code section 422).

Campaigns of the recent past haven’t stirred such juices on any side. I haven’t seen this much emotion since 1968, and I think I know why.

The screams are the death rattle of a generation, at least the half of the generation that fought the central wars of the last half of the 20th Century from the Right.

The Cold War, The Civil Rights struggle, and The Viet-Nam War each revealed (or caused or exacerbated) traditional cultural divisions in our country. Most people aligned themselves on the same side of all three issues. If you were anti-communist, you were against "radical" solutions for racial equality, and certainly against terminating the Viet-Nam War without "victory" and "honor".
If you favored rapprochement with the Soviets and opposed support for dictators, even if anti-communist, the odds were that you supported civil rights and liberties, and also, you protested and opposed the Viet-Nam War.

All of the ancillary battles of the era generally found the same alignment. Your attitudes about The War also predicted your feelings about women, gays, immigrants, crime, welfare, drugs, abortion, and often seeped into many other tangential cultural issues, including parenting, religion, education, rock music, fashion, entertainment, movies.
Of course, race was the initiating wedge issue. Nixon's southern strategy of 1968 and 1972 was premised on the South's resistance to racial progress, and bled into every other cultural issue we live with today.

The cultural divisions were so bitter that they colored every election since until each side was polarized, manipulated by hot button wedge issues. Throughout the next thirty years, the generation was split down the middle on virtually every issue and presidential candidate. The more or less permanent 45% to 45% permanent split reflected in divided government for most of the time, with the "swing" 10% of "independent" voters in a few states becoming the deciding vote, sometimes tweaked by third party nuisance candidates (like Perot and Nader).

George W. Bush’s pitifully flawed presidency with its disastrous policies and incompetence has caused severe mental depression for the aging pro Viet-Nam half of the generation. They are almost too old to have the energy to fight back this time. Katrina, Iraq Cheney, Gonzales, Rumsfeld, Libby, and all the other blows have taken most of the fight out of them.

This happened to the Left after Carter’s debacle laced presidency, with oil crises, inflation, high crime rates, the Iran embarrassment, leading to Reagan "democrats" crawling to the right, until redeemed by a triangulating centrist, Bill Clinton, who cruised barely left of center, co-opting some previously divisive issues by conceding them (welfare, fiscal restraint, crime).

The Crash of 2008 is the final crushing skull exploding blow to the other half of my generation. They must now go hat in hand and beg BIG GOVERNMENT to save them so that they can crawl away into retirement.

Yet, I see a weird, almost tragic irony to McCain’s status. He reminds me a bit of Hubert Humphrey, a man with a reputation for decency, a pioneer of civil rights, who found himself running in 1968 as the supporter of the war despised by his own party. He became an object of ridicule, an anachronism on the wrong side of generational shifts.

But John McCain is no Hubert Humphry. He is psychologically incapable of disassociating himself from his side of the '60's generation struggle. He remans a prisoner of war.
McCain sees "victory in Iraq" as a way to disprove the truth of Viet-Nam, to justify his life. He represents the last gasp of his frustrated and terrified lost generation. That is why, for all his obvious deficiencies as a perfect candidate, for these unreconstructed survivors of the "Silent Majority" of the 60's and 70's, he is the appropriate symbol.

Then again, maybe this election is also the last best hope for my side of the generation war as well. Obama seems like JFK reborn for many of us, and maybe it is wishful thinking. But we haven't got too much time left to wish or to dream impossible dreams. One last gasp of optimism is all we have. So we're going all in this time.

Wednesday, September 03, 2008

Crossing the bar

Confession. I violated my own pledge never to watch a TV crime / lawyer show. I saw the first episode of a series produced by Stephen Bochco called "Raising The Bar," which was touted as being about a public defender in New York City.

The creator is David Feige, billed as a "former New York public defender" who wrote a book called "Indefensible" about his experiences. Feige is a founder of a laudible New York defender program called "Bronx Defenders," which pioneered a holistic approach to indigent criminal practice, including social workers and a team of experts supporting the lawyers. They claim legal breakthroughs, including cases that reformed New York's law regarding suggestive identifications.

The show he and Bochco created contains no more than caricatures of the denizens of NY criminal practice and flimsy sketches of the kind of cases and issues that arise there. It is mostly about sex and sensation, over-the-top drama, and appeal to audience demographics.

One of the characters is a public defender. His name is Jerry Kellerman (played by Mark-Paul Gosselaar). Kellerman looks like some PD’s I’ve known. With shoulder length hair, shirt out and intense scowl, he looks and acts the way people think PD’s should look and act. He whines about "injustice" to the DA, his superiors, his client, and especially to the judge.

In this first episode, he ultimately "wins" his case, but only after an hour of struggle. The win comes despite his ineffectual ranting which is reminiscent of Al Pacino’s conduct in the classic, "And Justice For All" (1979) in which a lawyer assigned to defend a despicable judge charged with sexual assault, comes unglued, screaming, "This whole system is out of order!"

Kellerman's client, wrongfully accused of rape, misidentified in a highly suggestive one-photo show up, is offered a plea bargain to a second count of possession of a Swiss Army knife with intent to do harm, which (apparently in New York) carries up to seven years in prison. Kellerman advises his tearful client to take the deal, but the judge, a woman who appears to be a sarcastic, vindictive "power junkie," refuses to accept the deal and forces a trial, over the objections of the DA, who points out the weakness of her case.

The D.A., "Michelle Ernhardt," (played by Melissa Sagemiller) is depicted as an ethical, smart hottie who wants to dump the case because of her doubts about guilt. Her superior, a sexist buffoon whose harrassment bluff she calls by sitting on his lap in his office, insists that she go forward because the accused must have done other crimes.

Ernhardt supports the plea bargain but when the judge refuses it and orders her to trial, she complies and argues strenuously for guilt. After the jury acquits on the rape, but convicts on the knife possession charge, the judge insists on a prison sentence and high bail on appeal. The PD whines about the ruling, accuses the judge of every fault but bribery, and winds up in jail with his client.

Ultimately, both are freed despite the defense lawyers incompetent petulance, but because of interventions --- from his superior (played by Gloria Rubens, who used to be on "ER"), the judge’s clerk / lover who is secretly gay (don’t ask!), another DA who happens to find the real rapist, and form Michelle, who pleads to her boss and then to the judge to do the right thing and then at the end is revealed to be sleeping with Kellerman – who is still pissed off at "the system."

My overall impression is that this series is about as "realistic" a depiction of the justice system as Hollywood can manage in a televised basic cable series. I do wonder whether it will inspire some in the audience to service as the 1950's classic series, "The Defenders," once did. I think it more likely that it will inspire young lawyers to grow out their hair, loosen their ties, keep their shirts out, and hit on some hot D.A.’s.

Wednesday, August 20, 2008

There is [no] justice in this world ...

LONDON: (N.Y. Times, The World, July 27, 2008, p.4) A columnist recounts a case in which an English court awarded damages to a man whose privacy was invaded by a British tabloid.

The Brit rag had printed a story about a famous Formula One racing official frequenting prostitutes who wore German style military jackets, spanking him while counting off the strikes in "guttural" German (presumably "Eins, Tsvei, Drei..."). The subject was the son of an English "nobleman" (my quotes) who was described as Britain’s prewar Fascist leader, whose wedding had been attended by Hitler. Though warned that his private life was under surveillance, our "hero" nonetheless entered an apartment for his regular spanking "therapy" session. One of the women who had been promised money to video the encounter, had a camera hidden in her bra.

The judge’s controversial (in England) ruling was that exposure of private sexual conduct doesn’t involve significant crimes was none of the media’s business even if it is of "prurient interest" or part of a "moral crusade." "In a sentence, titillation just won’t do," the judge pronounced.

BANGKOK: (L.A. Times, August 20, 2008, A6) reports that terrorists convicted of involvement in the 2002 Bali bombing that killed 202 people at a resort want to be executed by beheading [the traditional Islamic method] rather than the court ordered firing squad, while their lawyers asked for lethal injection, which is more humane and negates "torture" resulting from poor aim.

SEATTLE: (L.A. Times, The Nation, July 27, 2008, A16) The U.S. Army apologized for the erroneous courts-martial of 28 African American U.S. soldiers and execution of 2 of them for lynching of Italian P.O.W.’s during World War II.

Investigative reporting many years later revealed "flaws" in the Government’s case, including the fact that only 2 defense lawyers had been appointed to represent the 43 defendants and were given 10 days to prepare for the trial. More seriously, The Army prosecutor assigned to the case had denied discovery to the defense of a lengthy investigative report by the Army Inspector General. The report, it was revealed many years later, pointed to white men as the true culprits who had killed the prisoners.

The Army now admits that its prosecutor’s conduct was "disingenuous," "illegal" and "unethical", and resulted in this "fatal flaw". The prosecutor in question was Col. Leon Jaworski, who later became a power in the Democratic Party and was appointed special prosecutor in the Nixon / Watergate scandal. He died in 1982.

Congress is now considering a Bill to grant "reparations" to the wrongly convicted, imprisoned, and in 2 instances, executed soldiers and their descendents.

LOS ANGELES: (L.A. Times, California Section, August 19, 2008, p.1) reports yet another case in which an LAPD detective was caught allegedly "testilying" (as one of my old clients would have called it).

At the urging of the D.A., a judge dismissed a pending attempted murder case after the D.A. listened to a communications tape that contradicted the detective’s testimony that identified the two defendants. On the tape, he is heard to question the identities and to describe actions that directly contradicted his incriminatory testimony. The D.A. attributed the mistaken testimony to "faulty recollection," though the defense characterized it less charitably.

Wednesday, August 13, 2008

A bid for the 2012 Olympics

Multi-tasking, I am told by Greg, is not simply adding distractions to concentration. It can result in positives, like drawing connections between seemingly disparate interests. So, I decided not to feel guilty about watching some of the Olympics while working on my cases.

Neither occupation is satisfying standing alone. My cases are fairly routine, as I’ve outlined previously and the Olympics events can be almost as deadly (no pun intended).

Then I had an epiphany that Greg would have been proud of. What the Olympics needs is a shot in the arm (pun intended).

Why not add a "gang" sport to the agenda? Something like "Drive-by shooting." There are lots of shooting events in The Games: skeet, target, airgun. The Winter Games has one of my favorites: the biathlon, cross-country skiing + shooting rifles at targets.

Why not make a sport of shooting from a moving car at a moving target or into an inhabited dwelling?

Think of the societal advantages. In past generations, ghetto delinquents were urged to get into boxing as a catharsis for violent tendencies. When I was a kid in Brooklyn I boxed in the P.A.L. (Police Athletic League). Y.M.C.A.’s had their boxing and wrestling programs.

This sport requires just as much talent and skill as the events now calendared. Well, maybe not as much as synchronized diving. But certainly it demands more eye-trigger finger coordination than that one.

Judging from the number of instances of this sort of behavior in our court system, we would have a head start on other countries competing for medals in this sport.

Just as skateboading is now a money-making "Extreme Sport," drive-by's could be a cash cow instead of a scourge. Nike could make a bundle on the sportswear. Taking the skills off the streets and into the corporate sports entertainment business world is our meat.

Don’t let the fact that this activity began as a crime chill the concept. There is precedent. NASCAR’s roots were in bootlegged liquor hauling over state lines. Pioneers like Junior Johnson went from souped up jalopies outracing Revenuers to stock cars racing around tracks.

Monday, July 14, 2008

If I ruled the world ...

If I ruled the world, it would be a far, far better place. We would have energy independence, a stable economy, universal health care, no troops in Iraq, and the Designated Hitter Rule in the National League.

This is the kind of radical change we need to have immediately.

So, first things first.

A few weeks ago, Hank Steinbrenner, the heir to the Yankees fortune, whined when his star pitcher was injured running the bases during an interleague game. He blamed the failure of the other league to adopt the DH rule. For this, he was ridiculed in the press. But the fact is, he was right.

It is time to admit that the DH rule, which is hated by old-school purists and hide-bound baseball philosophers and poets, is here to stay. It has been in effect now in the American League for more than 30 years. Although it has been rightly blamed for disrupting the legitimacy of statistical comparisons, the life blood of baseball historians, the fact is that other changes have been far more significant in diluting the numbers. Expansion, steroids, band box ballparks, artificial turf, srategies (like pitch counts, 5 day rotations, relief specialists) have also acted to skew the statistics from previous eras.

The DH rule has a positive side, which accounts for its permanence. Fans want to see more offense, and it is clear that the rule has juiced scoring. This year’s team batting stats illustrate the point. Of the 30 major league teams (16 NL, 14 AL), 9 of the first 15 are from the AL. Seven of the bottom 10 are NL teams. The best hitting pitcher in the NL, Carlos Zambrano has 1 home run and 13 RBI’s. Milton Bradley, DH for the AL Rangers, has 17 and 54, far more than all NL pitchers combined. Other DH’s include Thome, Matsui, Stairs, Ortiz, Sheffield, Floyd, sluggers whose production exists without concern for their defensive flaws.

An important benefit of the DH rule is the roster affect. NL teams typically carry 12 pitchers, AL teams 13, which results in more rested staffs. (The first 4 teams leading in pitching are from the AL.) The NL needs to carry an extra position player as pinch hitter and defensive replacements for late inning double switches, to avoid relief pitchers from batting. Without the dead number 9 spot in the order, AL managers can manipulate the bottom third of the order to be far more productive.

In the recent interleague play the AL advantage was evident. The AL won 149 games to 102, a win pctg. of .593. That is proof of dominance. The World Series is not a good measure of league dominance. In the 1940's - 1950's, the Yankees dominated in October, but the NL overall was the stronger league (due mostly to the NL’s lead in African American talent).

The NL’s refusal to adopt the DH rule is absurd. No other major sports league has such a significant disparity in rules. It is time for the purists, poets, and philosophers to admit defeat.

Thursday, July 10, 2008

Winning a lost cause

"God is watching us. If we support someone we don't believe in and say he's electable, then God will make sure he's not elected and hope we do better the next time." Mort Sahl.

"Dad used to say the only causes worth fighting for were the lost causes." ("Mr. Smith Goes To Washington", Sidney Buchman).

"I’m not fighting for anything anymore, except myself. I’m the only cause I’m interested in." ("Casablanca", Philip & Julius Epstein)

What I find interesting about the Obama phenomenon is that he seems to be a leader who in tune with his times, attuned to his generation’s heartbeat, eloquently giving it voice. In my life, FDR, JFK, Reagan, Clinton all had the same power – whether they used it for good or not, it is the essence of democratic leadership.

When I became a public defender, in the late 1960's, I quickly became disabused of the romantic notion that I was fighting for a "cause". I was taught that I was there to defend individuals, not the Bill of Rights, or racial equality, or anything else. If the interests of the client demanded fighting, fine; but if it was best for the client to compromise, or even give up, that was my obligation. This was not the Clarence Darrow role; he could no longer be a model — fighting for lost causes was "noble" but was not an affordable luxury to a public defender.

Nonetheless, the fondest memory of my career was winning a case that resulted in reversal of many death verdicts. The asserted nobility of public defending lies in the pride of losing most of the time while fighting "the good fight."

In politics, I’ve supported mostly lost causes during my lifetime. McGovern, Dukakis, Mondale, Gore, Kerry. Tired of losing nobly, Bill Clinton represented a new idea: winning was more important than noble losing.

Greg’s generation seems to have found a candidate who can appeal to both impulses. Obama’s recent statements smack of "positioning."
But that’s okay, because his youthful supporters understand the concept.

When Greg was in 6th grade, we took him for an interview at a prominent private school. We sat in the admissions office squirming while the director quizzed our son. "Do you like to wear a uniform for school?" she asked him. "Yes," he said without hesitation. "Why?" "Because when I put it on I know I’m there for work."

In the car, I asked him how he came up with that answer. "I thought that was what she wanted to hear," he shrugged.

I knew then that our nation’s future was in good hands.

Thursday, July 03, 2008

The gang's all here

I recently settled one homicide case and I’ve got three more pending. They’re all in San Fernando, all involve Valley Hispanic gang members shooting at each other.

In one case, my client (not a gang member) was driving two gangster friends to get McDonald’s. On the way, the passenger saw a car belonging to a rival gangster. He told my client to speed up, and then shot into the rear of the car, narrowly missing the car seat carrying the year old infant, killing her uncle in the next seat.

In the second, my client went to a party with some homies and asked his sister to pick him up because the others were going to go cruising. His father, who was angry that his son had disobeyed him by hanging with his gangster friends, told his sister not to give him a ride. So, my client got into a truck with three others. One of the guys in the back seat testified that they drove into an enemy ‘hood and shot at some rival gang members who ran away. Some of the bullets from the .45 traveled about 40 to 50 yards away, entering the wall and window of two apartments, narrowly missing a child in a crib.

In the third, my client and two friends went to a flyer party. My client’s friend refused to be searched on entry, pulled a gun and shot a rival gang member who was standing in a crowd of partiers.

In the case I recently settled, my client and his friend stopped at an intersection and were met by a mentally challenged young man, a gang member who was probably selling drugs and was too stupid to realize they were from rival gangs. He was shot and died there.

My client had maintained his innocence for two years, in the face of two witnesses against him. One was a young man who was riding in a car that crossed the intersection at the time of the shooting. He claimed to identify my client and the other man as the ones in the shooting car. Another was my client’s former girlfriend, who claimed he "bragged" about the shooting to her. She had plenty of motive to dislike my client by the time she told the police about this supposed statement, 6 months after it made to her. She had become pregnant by him, and had been beaten up by some of his home girls, at his order, she believed.

As we neared the trial date, we discovered that the eyewitness had been recently arrested for carjacking. He claimed a gang "moniker." All this placed his credibility in doubt, so the D.A. offered a reduced plea to manslaughter — a term of about 11 years in prison instead of life. When the day for the plea arrived, my client told me that the witness, whose case as a defendant happened to be set on the same date, was placed in the same holding cell that morning. They had "talked" and the witness (now an inmate / defendant) told my client that he didn’t intend to testify. He’d been "forced" by police to testify at the preliminary hearing.

Quite upset, I told my client that in my opinion the witness who changed his testimony under these circumstances would be presumed to have been threatened to do so. Despite my client’s denials, that is how it would appear to the D.A., the judge, and a jury. BUT, I told him I would continue the case and investigate this if he wished. After hesitation, my client decided to take the deal instead.

I mention all of this because in each of these cases, the D.A.’s and police claim concern for the safety of their witnesses who testify against gang members. They have used changes in the laws to deny the defense access to identifying information, especially addresses of witnesses for as long as possible. In short, the police, prosecutors, and courts treat gang cases the way the "Patriot Act" treats terrorists, limiting traditional due process protections while at the same time demanding harsher penalties.

Gang cops and specially assigned gang unit D.A.'s have contempt for defendants, their attorneys (even if appointed by courts rather than "hired"), and for judges and laws demanding "rights" for the accused that frustrate their perception of justice. Though this frustration is sometimes justified because voluntary witnesses are hard to come by because of the age-old problems of fear, family, distrust of authority, deportation, etc., the self-righteous prosecutors pursue the end no matter the means.

Several years ago, I had a case which was dismissed by a D.A. before the preliminary hearing because he had no witnesses. He told me that he was violating his office’s policy to keep gang defendants in jail for as long as possible even if there was not enough evidence to proceed to trial by continuing it, getting past the prelim by using hearsay, offering lesser pleas. But he knew the policy was unethical, so he was dismissing the case.

This week the L.A. Times reported about a case in which police interrogated a girlfriend of a gang member accused of murder. She had refused to finger the accused, but police told the suspect that she had named him. They went so far as to fabricate a "6-pack," a photo ID folder with the suspect’s picture circled, and the girl’s signature forged underneath, in order to encourage the suspect to confess.

Courts have never had problems with police lying to suspects about "evidence" if it yields a "truthful" confession. I’ve had many cases in which the defendant confessed after police told him his fingerprints were at the scene, or that witnesses or other suspects had named him. "They fingered you, so you better tell us your side of it..."
In this case, however, the girl — who had not in fact "snitched," was murdered, apparently on the telephoned order of the accused.

Just to add to the carnage, police arrested the brother of one of the suspects as the shooter of the girl / witness and tried to get him to confess, using three more faked photo show-up folders. He eventually was exonerated — after spending 6 months in jail, when he proved he was at a Dodgers game at the time of the crime. He was awarded $320,000 in a wrongful arrest suit.

The parents of the murdered girl are suing the city, claiming that police, after lying to the suspect about her "snitching," failed to warn her of any danger.

Tuesday, July 01, 2008

June in a nutshell

George Carlin & Bo Diddley died...
I settled one murder case and picked up another one....
Some tasks were completed, some put off....
Hillary & Barack claimed an uneasy alliance...
Barack crabbed to the Center....
The Supreme Court ended its term, 5-4 votes reminding us that J. Stevens is 88, Bader Ginsburg is 75....
Ron is 73. ...
Interleague baseball proved again that the AL is far superior to the NL. ... Time to admit the DH rule is here to stay.
Tiger Woods proved again that he is a god.... Kobe proved he isn’t....
Another DA on one of my cases became a judge....
Two more friends retired....
I applied for Medicare.... gulp.

Monday, June 30, 2008

The Definitive Essay On Sports

The Olympics are back again.

For me it means that many people around the world will be doing something I haven’t done for a while: watching sports with non-stop mesmeric addiction. 

Our idea of sports is molded by TV’s definition of sports. Back in the day, ABC's Wide World of Sports, created to fill winter weekends after football and basketball and before baseball seasons, broadened the definition of sports: ski jumping, downhill racing, bobsled, gymnastics, tennis, soccer, billiards, demolition derby. WWS eventually blurred the definition of Sport beyond recognition. What they presented was "athletic competition" in all its forms. But athleticism exists in many endeavors (like ballet). It does not become a Sport simply by engrafting an artificial scoring system to create competition.

We have survived to the cable age. Remote in hand, I have viewed the "extreme" sports: ski-diving, mountain skiing, snow boarding half-pipe, (sounds more like pot smoking). Now, in the Olympics, we will be subjected to them all: including synchronized swimming, shooting, and beach volleyball. 

But wait a minute. Where do these events fit into the Olympic motto: "Citius, altius, fortius"; faster, higher, stronger? How do they relate to the ancient Olympic sports, which were exercises in heroism related to skills of warriors?

It is important to remember that what we are watching are the Olympic "Games", among which are some "sports" and some "games" which are something other than "sports."

Through the years, I have engaged in many debates with friends about the crucial philosophical issues: whether golf is a sport; which sport is the truest sport.

I have come up with some criteria to define sports and to judge which are the most sport-like.

To define the truest sport, I go back to the basic pre-historic origin of sport, that of a contest between children proving power over one another.

The first sport, as anyone who watches tiger cubs (or chimps) will admit, must have been wrestling. One cub tries to show his or her domination over another by pinning him to the ground, or breaking his neck. This mano a mano contest is the rawest form of sport.

I hold that the closer the sport is to this ideal, the more it is a sport. The further away you drift from this ideal, the less it is a real sport. Thus, wrestling, judo, ju-jitsu, are the purest sports. The fact that rules have been imposed to decrease the risks, to quantify the gains short of pinning the opponent, diminishes the purity only slightly.

Do not misunderstand: it is not the dangerousness of the activity which is the criteria, though it is an exciting element added to the "sportness." Risk of injury is present in many human activities that are not necessarily sports.

Boxing adds the next level of sophistication. True, the fight is ritualized, with gloves, helmets, and layers of subjective rules for point scoring which further lessen the purity of the sport aspect. In other so-called sports (gymnastics and figure skating being the prime examples) the subjective nature of the scoring is fatal to its consideration as sport.) But, because at its foundation, boxing is still a face to face power struggle of one person against another, it remains one of the purest sports.

The next category of pure sports also stems from natural activities of boys and girls (as well as other animals): running. In children and other animals this contest often is part of the fighting game: hit and run. The swiftest child has a status in challenge: "Hey, race you to that tree?"

Races, the sprints to the marathon, are also basic sports. 

Swimming is in the same cubbyhole. 

Running over obstacles - hurdles, steeplechases, also are in the same category. 

So, too, races with machines that assist, but do not eliminate physical labor: bicycles, rowboats, skis, skates. 

Races with machines that do most of the physical labor, like motor and sail boats, cars, bobsleds, fall in a completely different category and must be considered under different criteria which will be discussed below.

Other sports stemming from the same primitive urge to best the other kid and answer similar fundamental questions such as who is faster include: the high jump and pole vault (who can jump higher); long jump, triple jump (who can jump farther); weightlifting (who is stronger); discus, shotput, hammer throw, javelin (who can throw this object - rock, stick, disk, or spear the furthest).

The javelin and other events related to it raise another important point about sports. Many began as contests among soldiers in skills needed for the hunt for meat and later, for enemies in battle. The javelin -- a spear -- is one of the most primitive of weapons.

It is not difficult to imagine ancient hunters and soldiers, in those many hours of boredom between battles, challenging each other to such contests. One of them must have then picked up a cannonball and tossed it. It is also not hard to imagine officers encouraging these games as healthy diversions for the troops which had the added benefit of honing skills, rewarding aggressiveness, and identifying the most skilled and competitive among the troops.

When I first watched the biathalon, a winter Olympic sport which consists of rifle shooting and cross-country skiing, others with whom I watched, mocked the seeming incongruity of the violent with the idyllic pastimes; but I remembered the black and white footage of Finnish troops fighting Germans in World War II when both these skills became deadly serious business.

In this category, we must acknowledge fencing, archery and shooting, although shooting and archery, by interposing mechanisms which do most of the physical labor, are closer to auto racing in the skills they require, and are thus diminished as sports.

Before we go further, it is best to discuss some of the criteria I have devised to test whether a sport is really a sport. Some are self-evident, others are slightly biased according to my taste, others are stated with tongue at least partly tucked in cheek. None are perfect, because exceptions always exist in this complex study, but a few standards are absolutes.

Mere athleticism is not enough.

There is no question that ballet dancers are fine athletes. Anyone who watched Barishnikov’s sculptured body in tights leap gracefully and turn thrice in the air, landing perfectly in time to lift his partner as if she weighed 90 pounds (which she usually did) cannot deny his status as a premier athlete, probably superior in conditioning to many sportsmen. However, none would argue seriously that ballet is a sport.

Neither is ice dancing, synchronized swimming, or women’s floor exercises in gymnastics. What these athletic achievements lack to be called a sport is hard to define. But there are two elements they possess in common which disqualify them in my judgment.

First, they are measured by a purely subjective scoring system. 

(Although boxing scoring is also subjective - unless the opponent is knocked out - it is so basic a sporting contest that it passes the test.)

Second, and fatally, they are accompanied by music. My fundamental rule of sport is that it cannot be a sport if it is accompanied by music.

I must note that the tendency to accessorize popular sports with music is disturbing: baseball, football and basketball games are more and more accompanied by orchestrated crowd-pleasing chants: Queen's "We will, we will rock you!"

There may come a day when entire basketball games have musical scores like movies, continuing throughout the game, and I will get back to you when that comes.

On the other side of the coin, a total lack of athleticism is also fatal to sportiveness.

Golfers, bowlers, dart throwers, auto racers, pool players, shooters, sailors, horse riders (equestrians, if you wish), come in this dubious category.

What they have in common is a tendency to have pot bellies, wear street clothes (or worse, bad looking shirts and pants). Thus if you can be completely out of shape, if you can smoke a cigarette between or during shots, or drink a beer while you are competing, it is a less sportive sport.

This is not to say that these activities do not require athletic skill. Eye-hand coordination, muscle memory, courage, strength, agility, nerves of steel, extreme skill are all required.

But the questions often asked: "Oh yeah, you try bowling a 300, or hitting a 300 yard drive, or sinking a three cushion shot in the corner pocket" are beside the point.

The fact that a superb athlete like Tiger Woods was the world’s best golfer seems to some to elevate golf to a sport, and I must admit that watching him perform it is hard to deny his athleticism.

It is also true that just because out-of-shape people participate should not disqualify the sport. I’ll get to baseball soon; and of course there are some boxers and many football players who look like they’ve had too many hamburgers during training.

Other criteria are more playful, and less certain, but illustrate the point.

If you don’t sweat during the contest, it is not a sport. If you do, it is more likely, though not certainly a sport. I note that swimmers probably don’t sweat, but they would if they weren’t being continuously cooled by water. Golfers sweat from southern heat and over a two foot putt, but not because of physical exertion. Ice dancers probably do, but it is still not much of a sport.

Someone trying to be clever said that Black men and women should be good at it. It is true that if there are few Blacks participating in true sports, look for a defect in the society which causes it (or a geographic reason - meaning there are few people of color in the area). I leave it to racists and / or geneticists to explain whether slavery or fast twitch muscles have anything to do with this. (Some jerk once got into hot water by explaining the lack of people of color in swimming events: "They aren't buoyant.")

Events that are simply exhibitions of showing off are not sports.

It is clear that the attraction of sports stems from the basic human urge to show off, to prove one’s superiority over one’s peers. Performing better tricks with one's body or device (such as a skateboard or motorbike) is fun, but attaching a score to the stunt doesn't make it a sport. Of course,many sports that are closer to the borderline of sport definition award style or form. 

Here, I am referring to diving, gymnastics events, figure skating. These are akin to muscle building. They are exhibitions of great bodies doing extraordinary things. But the NBA Dunk contest is not a sport although basketball certainly is. The subjective nature of the scoring defines it as an exhibition: a 9.9 distinguished from a 9.8 by what the judge’s perceive as a minuscule flaw in form is insufficient to fool the true sports lover.

It is the raising of "form" over result that defines the event as an exhibition, more akin to ballet than to sport.

If a boxer flattens his rival, or a sprinter gets to the line faster, the one with better form gets no added points. Better form may lead to better results, but in true sport, it is the result which counts. Debates rage over which boxer had the prettiest form, and was thus the better artist, but the result is still what counts.

It is worthwhile to remark that observers who note that baseball players, notably pitchers, are in less than tip-top shape, have a point. It is certainly arguable that pitchers like CC. Sabathia, or Phil Neikro, who played into his forties, couldn’t bat (and didn’t have to, in the dh era) were lesser athletes than Tiger Woods or Jack Nicklaus.

But that is beside the point. Baseball is more a sport than golf. One reason is that baseball excellence requires a combination of objectively measurable and comparable athletic achievements that separate the great baseball players from all others. The abilities to run fast, throw far, fast and accurately, catch, hit for average and with power are rare. A second reason is that generally, those talents and skills are necessary to success.

However, baseball is less of a sport than basketball or football or soccer. I freely admit that, although I much prefer watching baseball than the others. But that is because baseball is a better "game" than the others.

It is more interesting to watch (for me) because of the many mystical elements which (for me) accompany any game I watch. There is history, childhood memories of playing catch with my dad or brother, little league, hero worship, summertime nostalgia, and many more elements to it. 

But in defining the sport one must separate the pleasure of watching the game from the participation in the sport.

The distinction between the "game" and the "sport" must be kept in mind when rating the "sportiveness" of team sports.

Basketball is a good example for analysis. Here is a sport which satisfies most of the criteria laid down above: it requires superb conditioning and the elements of sport - jump higher, be stronger, be quicker, be smarter. It has one-to-one contests within the game. Participants sweat plentifully (and Blacks are great at it). On its most basic level, it is simple: get the ball in a basket which is placed high above one’s head. Give a basketball to young children, show them a basket and they quite naturally understand the goal, and feel the pleasure of the game.

But there is a basic flaw inherent in the sport of basketball which diminishes its universality. It rewards natural height. Although one can develop shooting, dribbling, defensive skills, there is little a boy or girl can do about height. Shorter boys and girls are eventually deterred from participation by this disability.

There is nothing they can do about this problem. This fact does not mean that basketball is not a sport. There are many sports which favor natural physical attributes. Some sports favor small stature (such as horse racing -- for the jockey, not the horse). However, this fact diminishes its pleasure as a viewing event because it is harder for ordinary people to identify with the participants; and to some degree, it lessens its status as a sport because it is so specialized that competitiveness is reduced. It was fun to watch the Dream Team destroy all opposition by 50 points, it is awesome, but it is not as good a sporting contest.

The point is that team events have to be considered on two criteria: as a game and as a sport.

In recent years the Olympics has lost much of its gloss, especially with the current generation. They seem to be unimpressed by the nationalism inherent in the event. They have lost the television habit. They prefer video games, whether playing them or watching them online. 

Scandals involving corruption and drugs have tarnished the Olympics and corporate involvement is so pervasive in the production, promotion of the event as well as the sponsorship of the professional athletes that the event is far from the claimed idealism of its founding. 

I may watch a few of my favorite "games" but not with the passionate interest of past years. Too bad, in a way.