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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 GrandprĂ© 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.