Newt Gingrich: Bad Historian / Bad Ideas

A New York Times editorial today criticized Newt Gingrich for what they called his "attack on the courts" by "McCarthyist tactics." 

They cited Newt as proposing that Congress should punish federal judges who issue "wrong" opinions — such as those affecting "religious liberty" — by calling on judges "to explain their constitutional reasoning", and if they were not satisfied, to simply eliminate their jobs. (NYT: Editorial, 12/11/2001: "Mr. Gingrich's Attack on the Courts"). 

I was curious about how Gingrich came to these proposals. Sure, he is prone to making outrageous comments, but he is also a "historian", as he often reminds everyone. 

Did he really mean that or was he being misquoted, taken out of context, distorted by the Eastern establishment liberal press, as usual?

Fairly quickly, I found a YouTube video of a speech he gave in Iowa, which the site, RawReplay.com headlined: "Gingrich claims ‘there is no Supreme Court’ in the U.S. Constitution."

I watched the video. Newt did say that but they were quoting him out of context. Again.

Newt was referring, not to Article III of the Constitution, which explicitly establishes a Supreme Court, but to the notion that the Court is "supreme over the legislative and executive branch. We have the entire national elite that wants us to believe that any five lawyers are a national convention. That is profoundly un-American and profoundly wrong."

In another speech, Gingrich, claiming his bona fides as a "historian", cited "The Federalist Papers" Number 78, authored by Alexander Hamilton as establishing that the judiciary under the proposed constitution, was intended to be the "weakest" branch, not equal to the legislative and executive.

Newt’s inference of course is to buttress the conservative cry that the courts don’t have the power to overturn local, state, or even federal laws passed by their legislatures or ordered by their leaders. 

He argues a simplistic analogy: suppose one morning 5 lawyers decided that 2 + 2 = 5. Would we need a constitutional amendment to overturn them? Absurd, he cries to the approving laughter of his audience. So too, the founding fathers in their wisdom cannot have meant to permit Justice Kennedy (the swing vote on the Supreme Court) to awaken one morning and decide that he felt liberal that morning and voted that way to ban prayer in schools in Iowa.

Compelling argument? What’s the answer.

I read the document Newt the historian cites, the accumulation of essays that make up "The Federalist Papers". I have had a copy since law school, but instead I readd one that comes free with an Ipad app along with the constitution.

In #78, the founding father, Alex, did say what Newt says he said. But, amazingly, Newt took the statement out of context, just like he says the liberal press does to his brilliant ideas.

Hamilton’s article explains that the judiciary is weak because it has neither the power of the purse (as does Congress) nor a military (as the executive commands) to enforce its opinions.

However, he continues: "The complete independence of the courts of justice is peculiarly essential in a limited Constitution." 

That would seem to undermine one of Newt’s ideas, to intimidate judges.

Hamilton is specific and clear:

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."

He goes even further to undercut the conservative argument about the power of the court to interpret the constitution:

"A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."

The rest of the article is directed toward the argument for permanent appointments of judges to insulate them from the sort of attacks that later idea men such as Newt Gingrich would conjure.

Oh yes, according to Wikipedia, Gringrich’s credentials as a historian stem from obtaining a Ph.D. in modern European history from Tulane in 1971. "His dissertation was entitled ‘Belgian Education Policy in the Congo: 1945–1960'.... "Gingrich joined the history department at West Georgia College as an assistant professor. In 1974 he moved to the geography department and was instrumental in establishing an interdisciplinary environmental studies program. Denied tenure, he left the college in 1978."

Movements

Three things are converging in my consciousness these days. In reaction to the expected distortions of Clint Eastwood’s biopic, "J Edgar", I began reading Curt Gentry’s biography of Hoover, ("J. Edgar Hoover, The Man and the Secrets," which I suspect will be more accurate.

I got to the part relating to the so-called "Palmer raids" of 1920, in which the Attorney General got the federal government to round up the usual suspects after his house was bombed.

A. Mitchell Palmer, who wanted to be president, used the insane acts of a miniscule terrorist group to gain fame, build his empire (getting Congress to increase his budget) and convince the American public that foreign born radicals were an existential threat to the democracy.

It was a press inspired hysterical response to the "Red Scare" -- which turned out to be a vast exaggeration arising from the paranoia of European and American conservatives over the spread of Bolshevism after WW I and the Soviet revolution -- exacerbated by the terrorist acts (bombs, letter bombs, attempted assassination) by a few, a very few "anarchists", including pronouncements, incitements, and rare violent acts by some on the very outer fringe, which the press was manipulated into ascribing to all "radicals", (including labor union advocates, whose repudiation was the goal of many of those who pushed the issue).

During a break, I happened on the news reports of the Occupy ____ Movement, which were highlighting conservative suspicions that the protests were motivated by murky leftist foreigners.

And this, of course, stirred embers in my memory of the 1960's when students and many others coalesced to clog campuses, streets, government buildings, and parks with protesters. The issues back then were as varied and serious as those that face this generation. In my day, there was segregation, then "free speech" on campus, then The War, then La Raza, then the liberation of women from the shackles of their bras and their men.

All of these movements within my own lifetime were accused of being inspired and funded by "outside agitators", communist governments who wished to overthrow the democracy.

Occupywallstreet.org states its mission as:

"... a people-powered movement ... fighting back against the corrosive power of major banks and multinational corporations over the democratic process, and the role of Wall Street in creating an economic collapse that has caused the greatest recession in generations ... inspired by popular uprisings in Egypt and Tunisia, and aims to fight back against the richest 1% of people that are writing the rules of an unfair global economy that is foreclosing on our future."

In all fairness, I have to admit that the "tea party movement,"  at least in the beginning, probably also qualifies as the same sort of grass root protest movement, arising from serious complaints about perceived wrongs by the government.

The First Amendment to the Federal Constitution purports to guarantee that:

Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

 Of course the Supreme Court and inferior courts are permitted to regulate the details of such "assembly" in order to assure that the "petition" is done "peaceably".

And the present Supreme Court majority puts "commercial speech" (including that of corporations) at a par with and sometimes superior to that of "the people".

Hoover was infamous as the Director of the F.B.I. for 50 years, during which time he wielded enormous power to restrict free speech and lawful assembly if these rights were exercised toward anything he disagreed with, such as racial and gender equality, liberal or progressive causes such as support for labor, peace, or against support of right wing dictators. 

He ordered and conducted illegal clandestine surveillance, warrantless searches and seizures of property, withheld exculpatory evidence from defendants, trumped up false incriminatory evidence when he concluded that the ends of his version of "national security" justified the means. 

He cultivated a culture in the F.B.I. specifically and in all of federal and local law enforcement of arrogant entitlement - they were the good guys getting rid of the filthy bad guys and you don’t need to know how they do it.

Nixon and Bush / Chaney were weaned on this attitude.

They despised the portion of my generation that dared to protest The War and overturn the de jure segregation of the South and the de facto segregation of the rest of the country.

One emotion motivates all of these enemies of liberty: They fear and hate change, i.e., progress. They want the power structure to remain untouched.

With rare exceptions in the history of our country, they have had their way.

My "Onion Field" degrees of separation

It is reported today that Gregory Powell, a life prisoner, was denied parole. Powell has prostate cancer and is not expected to live more than another six months so this is likely to be his last try for release. Powell and his crime partner, Jimmy Smith, were notorious as the "Onion Field" killers, subjects of Joseph Wambaugh’s book about the kidnapping of two L.A.P.D. officers and the killing of one (Ian Campbell). 

The crime occurred in 1963, the book was published ten years later. In between there were three trials, appeals, reversals of convictions, re-sentences, and eventually life sentences.

I got to know several of the "players" in the Onion Field case drama. John Moore, the public defender who represented Powell in his first trial was my boss, Charley Maple who did the re-trial was a colleague. I also knew others: Irving Kanarek, who got Smith his first reversal, represented him in his second trial, Arthur Alarcon, the judge who removed Kanarek as Smith’s counsel, and Bill Drake, who was appointed to replace Kanarek, and later became a superior court judge.

My first connection with the case occurred around 1967, while I was a student at Loyola Law School. I took a class taught by Arthur Alarcon, then a Superior Court judge. In one lecture, Alarcon vented about his recent reversal by the California Supreme Court in the Smith and Powell retrial. Alarcon ranted about the dilemma he, as a judge was placed in by Kanarek’s incompetent defense tactics. The judge claimed that he had removed Kanarek (over the objection of his client) after it became clear that Kanarek was hurting his client’s case by his eccentric and ineffective behavior in court. 

Later, when I got to know Irving fairly well, I came to sympathize with Alarcon’s assessment of the lawyer, who used to come to the public defender luchroom to cadge potato chips and nap on our couch, his undarned socks revealing dirty toes. Many judges had Kanarek stories, revolving around his infuriating conduct in courts, including his never-ending arguments, constant objections, and other "obstructionist" tactics. 

On the other hand, many defense lawyers, though amused by Irving’s extreme chutzpah, also admired his vigorous defenses, which sometimes hit the mark. For example, in the pro forma rush of arraignments in the crowded court, Irving, alone among all defense lawyers, refused to "waive reading of the complaint, and statement of rights," refused to admit his client’s "true name." The rite, considered a meaningless formality by others, was deemed by Irving to be a concession that an accused need not make, in view of the constitutional duty of the prosecution to prove everything and the right of the defense to remain mute. 

Knowing Irving put into perspective Judge Alarcon’s explanation of his ruling which relieved Kanarek. In his lecture, the judge cited Kanarek’s continuing objection and perpetual argument about the security in the court room. Alarcon had ruled after a hearing that shackling the defendant was required because of the poor sight lines in the court, which was in the old building on New High Street, where pillars obstructed the bailiff’s view of the counsel table. Kanarek’s refusal to accept the ruling was the final straw. The judge removed him.

The problem was that he replaced Kanarek with Bill Drake, who was a retired cop. In the most notorious cop killing case in L.A. history, this was a controversial choice. Alarcon argued (to our class) that he was a good choice, because his credibility as defense counsel was enhanced by his experience as a cop. His new client, however, did not agree, feeling somewhat uneasy by replacement of his vigorous advocate who had won reversal of his first conviction, with Drake, who was friendly with the D.A., sheriffs and L.A.P.D. detectives, and seemed to sympathize and identify with the victims. 

After the second conviction, the supreme court concluded that Kanarek was not incompetent, ordered another trial.

When I joined the public defender, John Moore, who had represented Gregory Powell in his first trial, was now running the office and became my boss. Moore was a stern, but principled attorney, whose views on what it meant to be a public defender, inspired a generation of excellence in our office. Charley Maple, who took over the re-trial, was one of my colleagues. Both men had notable eccentricities of their own, two of the many colorful personalities I got to know in my twenty years there.

My first felony trial assignment was before Judge Bill Drake. It didn’t take long for me to appreciate Jimmy Smith’s dilemma. In my experience, Drake was a lazy, ill-prepared judge, who delegated his authority to the D.A. (In my day, his calendar deputy D.A. was Paul Plutae, a strange and evil character, who reveled in his role of running Drake’s court room.) 

Some day I’ll tell you about my slightly closer association with the Manson case.

Negotiating From Weakness

President Obama’s recent miseries brought to my mind some of my own. 

I am always reminded that Obama is a trained lawyer, which means that he suffers the defect of being able to see both sides of any question. 

It also means that he understands and values the concept of "reasonable" choices, relative victories, and acting in the best interests of the client.

This often means that the result he can manage will satisfy neither his ungrateful client nor quibbling observers. He is stuck in the middle.

Here’s a hypothetical case for you consideration.

Let us say that I am defending a client who is accused of serious crimes. If I lose the case, my client’s maximum exposure is life in prison. There is evidence against him, but I also have arguments that support my client’s position. He asserts his innocence, but he knows that it looks bad and he fears the worst.

I have some choices in negotiating with the prosecution.

First, I can insist on the rightness of my position, demand a dismissal OR ELSE. The or-else is the dreaded jury trial. 

That of course is risky. Which side has more to lose? Even a partial win (acquittal on some counts) will leave my client vulnerable to a long sentence if convicted of other charges. The chances of a total acquittal are slim.

Forty years ago, as a young public defender, I was tempted to force every case to trial. The ethic of the nobility of the "lost cause" was my romantic ideal. I wanted to be Jimmy Stewart in "Mr. Smith Goes To Washington" or Al Pacino in "And Justice For All" (shout at the judge: "You’re out of order!"). Some of my friends acted that way. They gained quick experience at the expense of clients, and burnt out quickly.

Second, I can try for a compromise plea bargain, find a middle ground that might be acceptable for my client and the prosecutor.

This choice leads to others:

I can be aggressive, choose a bottom line punishment and stick to it: one time offer, take it or leave it.

Problem is, if I insist that I will stand fast, what is my or-else threat?

Answer: a jury trial. 

But as I noted, that is risky for my client. What has the DA to lose by a trial?

My second negotiating option is to be conciliatory, concede the strength of his evidence, while still urging my arguments in opposition, pointing out the weaknesses of his evidence and the risks he faces by going to trial, and showing that his goal (what he perceives as justice) can be attained by my suggested compromise.

The simple fact is that I am almost always dealing from a weaker position than the DA.

No matter how the relative strengths of the evidence seem to stack up, the reality is that the scales of justice are always balanced in favor of the prosecution. Ideal principles claim balance in favor of the accused: presumption of innocence, burden of proof beyond a reasonable doubt. But life in the big city belies these ideals. Judges and jurors presume guilt, not innocence of anyone accused. The more serious the crime, the lower the burden on the DA to prove guilt. Jurors fear criminals so much that they twist the old dictum: better to convict ten innocent persons than to let one guilty one go free.

I admit that all of this is contrary to the public perception that sly defense lawyers have the upper hand, that the system is a swinging door designed to apologize to the bad guys. That may happen in the extremely rare celebrity dream team trial, but in the day to day working of our judicial system, the accused is at a distinct disadvantage.

It doesn’t feel good to always be on the defensive, to be conciliatory rather that aggressive. But the defense lawyer’s duty is to act in the best interests of the client, not his own. If that means swallowing hard and making a bitter deal, the best that can be made, so be it.

That is why I sympathize with Obama.  The sniping from all sides, must hurt like hell.

All The News ... Add ...

The media stories about the British scandal involving revelations of wrongdoing by employees of News Corporations’s tabloids are almost as titillating as stories in his tabloids. It is fun to see Rupert Murdoch squirm, and we can all enjoy the tabloid press getting a dose of its own medicine, suffering from scandal and outrage, the very things it has curried for so long. It seems a pleasing and humorous comeuppance tale of what comes-round-goes-round symmetry.

The core of the story - ethical excesses by the tabloids in digging up and creating sensational stories - is hardly news in the long view of things.

Tabloids have always made their bones by marketing items about sex, crime, corruption, celebrities, and any combination of the above. Sensation sells, sex sells, bloody photos sell, and selling is their only reason for being, not information or reform, although those "journalistic" principles are the excuse.

Truth is that in the colorful and nasty history of the tabloid press in Great Britain, the U.S. or elsewhere in the world, Murdoch’s rags aren’t even in the top ten of sleaziest. 

In the early days of the Twentieth Century, Pulitzer and Hearst notoriously competed in the most bloodthirsty howling that headlines had ever seen. In the 1920's in New York and Chicago, the competition among daily tabloids was ruthless and unrelenting. Celebrity culture reached a zenith with newspapers creating stars from the headlines, from Babe Ruth to Charles Lindbergh to Rudolf Valentino to Al Capone, and destroying them, as exemplified by the crushing of comic Fatty Arbuckle by Hearst's misleading and sleazy reporting about his trial for manslaughter when a drunken starlet died after sex during a "Hollywood party" (though it happened in San Francisco). 
 

But the more dangerous aspect of the Murdoch story has not yet been mined by the media and may never be explored for fear of overturning the entire rotten structure of our "free press" or perhaps for fear of Murdoch's power to retaliate. 

Even so, the scandal is providing a clue as to one of the ways that Murdoch uses his power to gain more power. Like all in business, Murdoch needs influence to thrive. Of course, he makes monetary contributions to politicians in the millions. And he certainly encourages friendships with politicians that they know are important because kissing the ass of the a billionaire media mogul who can influence public opinion is wise policy for a politician.

But this is not news. Other media moguls throughout history have been influential in politics. For example, Horace Greeley of the New York Tribune was a power broker in the Whig, then Republican Party, in the mid Nineteenth Century, influencing policies and attitudes toward all of the great issues of the day: slavery, the Civil War, reconstruction, the western migration, the destruction of the Native American tribes.

In England, Alfred Harmsworth (aka Lord Northcliffe) was owner of The Times and Daily Mail. During World War I, after undermining the prime minister, Lord Asquith, by scathing editorial attacks and biased reports, he was rewarded by appointment as Director for Propaganda by the next prime minister, Lloyd George. This was appropriate because his newspapers had instigated the war with vicious anti-German reporting. Under Northcliffe’s lead, wartime restrictions on newspaper reporting of the blunders of British military leaders during the war was almost total.

(Harmsworth friend, Robert McCormick, owned The Chicago Tribune, which, during the 1930's was a vocal opponent of F.D.R.’s New Deal and was steadfastly isolationist until Pearl Harbor. Joseph Medill Patterson, McCormick’s cousin, bought The New York Daily News in 1919).

The real threat posed by Murdoch’s accumulation of power and his willingness to use it can be seen when you consider what J. Edgar Hoover did as director of the F.B.I.

Hoover ordered his agents to secretly investigate people he suspected of a wide variety of what he considered "wrongdoing". To him, this ranged from "sexual perversion" — which might mean extra marital affairs or homosexual encounters or a kept mistress or a mixed racial relationship — to "criminality" or "anti-American activity." These labels could include any suspicion of membership or contribution to or attending a meeting of any group that Hoover thought of as leftist or upsetting to Hoover's southern biased sensibilities.

Proving that knowledge is power, Hoover’s secret dossiers on F.D.R., L.B.J., and J.F.K. assured his continuing in office long after his negative traits as an administrator should have sent him into retirement. Files on important members of Congress and the media (including Hollywood) also insured that the Bureau itself would never be investigated, its budget never cut, and that the legend of its perfection would never be challenged — the myth of the F.B.I. was protected by extortion.

It is now becoming clear that Murdoch uses his tabloids in much the same way. His editors pay for information — no matter how obtained — not only for sensational stories about murders and celebrity gossip — but far more importantly, to get dirt about politicians. 

Following the practices of spy agencies such as the FBI, the media pays informants (some of whom have ties to such organizations) to act as "agent provocateurs" to create the story by procuring the sex, drugs, situations to entrap subjects -- celebrities or politicians -- into the compromising and embarrassing poses, for cameras, tapes, and computers. 

Some of these stories are published, ending careers of some -- as cabinet members have been snared in the time-honored way (remember Profumo). But the rest are kept in secret files, stored as a deterrent to government interference with the Murdoch empire: regulations, denial of licenses, anti-trust investigations, tax breaks — any of the innumerable issues that billionaire business people need to control.

In the U.S., the influence of News Corp, Fox News — including Dow Jones, The Wall Street Journal, the Fox chain of broadcast stations — is enormous and growing. Its ties to the Republican Party are well known.

It employs and supports past and future candidates, personalities, commentators in interlocking influence peddling and policy creating panels. It channels vast sums of money for its purposes, curries influence, carries enormous weight simply because of its ratings — Fox News cable channel is by far the highest rated (over CNN and MSNBC).    

The New York Post, when I was a boy, was the liberal afternoon tabloid in a city with plenty of right wing representation, namely The Daily News. Murdoch turned The Post into a right wing scandal sheet, reporting on sex, celebrities, crime.

Just as the abuses of power that Nixon threatened represented a far greater danger than the transgressions that popular memory has chosen to trivialize under the misleading label, "Watergate," Murdoch's "hacking" scandal underestimates the danger his conduct presents.

All The News That Fits

Nancy Grace with open mouth

Although I reject the dangerous practice of drawing generalities from highly publicized criminal cases, the recent Casey Anthony trial had one salutary effect, at least for my consciousness raising.
I was exposed for the first time to Nancy Grace, who comments for HLN TV (a CNN affiliate). This woman is depicted as a "reporter" of the trial proceedings. In truth, she is a leader of a lynch mob. Her bias against the defense is open and vitriolic, amounting to self-righteous hatred.

Doing some research, I discovered that she had been a prosecutor in Atlanta for ten years, during which she was cited several times by Georgia appellate courts (not the most liberal forums one can find) for prosecutorial misconduct, including acts which concealed from the defense the presence of suspects other than the accused she was prosecuting, and for extreme and misleading arguments.

Later, when she turned to television "journalism" (the word sticks in my throat), she destroyed a mother of a missing child during an interview in which she implied that the woman was to blame for her child’s disappearance, after which the woman committed suicide. Grace reacted with pleasure, calling the suicide the product of a guilty conscience although the woman had never been accused by police of any wrongdoing.

Undeterred, Grace wrote a book in which she lambasted all criminal defense lawyer, calling them pigs and equating them to Nazis. The book thus sold well, even though it was later revealed that she had plagiarized whole chunks from other sources.

Grace is still employed, and in fact her broadcasts have high ratings.

Now, the news is full of reports regarding Rupert Murdoch’s run-ins with British politicians. The Australian "news magnate" whose American empire includes the Fox chain of television and radio channels as well as The Wall Street Journal (part of The Dow Jones Co.) and The New York Post, among others, shut down his British tabloid, The News Of The World, amid accusations that his employees had conducted a pattern of illicit activities, including hacking into the cellphone voicemails of murder victims.

The scandal exposed other practices of his papers involving politicians. The rag reveled in sex gossip, revealing the secret lives of celebrities, with "investigative" tactics that included paying informants for dirt and photos, secret taping, bribing, embarrassing. The Conservative Party prime minister admitted that he and his party’s reluctance to criticize Murdoch and his publications was in part due to their support.

The other part was fear, not just fear of opposition, but fear of being targeted by Murdoch and his tabloids. No public person is immune to ridicule if his or her private life is examined with the microscope. One woman MP who dared to criticize the tabloid on feminist grounds for exploiting female nudity was ridiculed mercilessly in the News Of The World.

This is not the first recorded instance of an overbearing press in the history of the world.

It should be remembered that these Murdoch tactics of intimidation were used in the 1950's to destroy the careers of any person accused or rumored to be communist, or socialist, or leftist, or pinko, or fellow traveler ... or a civil rights activist ... or trade union member ... or supporter of the ACLU

In the golden age of the movies, Frank Capra was the sentimental guardian of American values. His movies are remembered for their somewhat simplistic and optimistic view of American society. In a series of now classic films, he placed an idealistic and naive American against a powerful, cynical, manipulative tyrant.

In both "Meet John Doe" and "Mr. Smith Goes To Washington" the bad guy was a corrupting newspaper publisher (both played by Edward Arnold) who aimed to subvert democracy and to gain power. (In the more humorous "Mr. Deeds Goes To Town" press ridicule is depicted as responsible for helping a corrupt lawyer’s attempt to destroy the naive and idealistic Deeds who wants to give away his fortune to deserving unemployed men).

Capra’s model for these baddies was certainly W.R. Hearst, who was notorious for using the power of his news empire to destroy his enemies, whether political or personal, or just for the exercise. He understood that sensational accusation — whether accompanied by evidence or not — was good for circulation. His tabloids outdid his competitors in lurid misrepresentation, innuendo, patriotic humbug, jingoistic slanted reporting, and in creating stories where none really existed.

At its best, the press (now widened to include "media") have benefitted society. The Progressive Movement of the early 20^th Century would not have achieved as much without the muckraking journalists in many cases leading the way to reform relating to issues such as food and drugs, working conditions, poverty, housing, child labor — reforms which in the 21^st Century our corporate culture may finally get its wish list granted to reverse.

There have been important highlights in the television age. Ed Murrow famously exposed McCarthy’s evil. Walter Cronkite capped TV news coverage of Viet-Nam with his reporting and opinion. The Washington Post’s investigative reporters are justly credited with exposing Watergate. Occasional local and national reporting is worthy of the title "journalism".

The U.S. Supreme Court has given the First Amendment’s "press" and "speech" provisions a position of preference among the amendments that constitute the Bill of Rights. The court thus puts high barriers against censorship, even going so far as ruling recently that corporate contributions to political campaigns and violent video games are protected speech.

The reasoning for this is the idealistic dictum that goes as far back as the Enlightenment, that the free exchange of ideas is essential for a free society. Jefferson assumed that the more knowledge the better the chances for democracy to work: an educated and informed electorate would usually do the right thing.

Yet, until I researched Nancy Grace on the internet, I had read no newspaper or television reports disclosing her lack of credibility or her character. I wouldn’t expect that so-called respected news outlet, CNN, or investigating and exposing her flaws. After all, they own her and she makes money for them. But even competing media has not bothered to jump on this. MSNBC which shows such pleasure in nipping at FOX cable news for its transgressions, has not touched her. None of MSNBC’s liberal commentators have taken her on.

I suspect that the reason has something to do with a dogma of the news business that goes as far back as Pulitzer and Hearst. When reporting on criminal cases, the defendant is always presumed to be guilty. Almost a hundred years ago, Hearst’s tabloids famously destroyed Fatty Arbuckle who was tried (and eventually acquitted) of manslaughter in a sensational "Hollywood party" case.

One unanswered question is what effect the internet will have. Greg argues persuasively that the broadening of available sources of information is a net (no pun intended) positive. Since no Hearst or Murdoch can control the entire internet, I see his point. Attempts to commercialize, organize or censor the free flow of information is dangerous. It may soon become the only trustworthy source of free information.

"I, THE JURY"

A proposal.
Some time ago I proposed a new reality show, a televised execution.

I thought the time was ripe for this ultimate melodrama, the real life death of an evil criminal.

Now, following the Casey Anthony trial on Twitter, Facebook, TRU TV, and other social network and cable outlets, the trial before the execution is ready for prime time.

So, here’s my pitch:

TITLE: "I, THE JURY" (with apologies to Mickey Spillane).

Simple high concept:
(1) AIR THE ENTIRE TRIAL (2) VIEWERS VOTE.

Don’t worry about constitutional objections. Not a problem.

Our Supreme Court is far more concerned with protecting and broadening the rights under the First Amendment: religion, press, speech, even if primarily commercial speech, corporations are "people", and the Second Amendment right to own and carry weapons of mass destruction than the less important provisions of the Fifth, Sixth and Eighth Amendments (look them up, yourselves — before they disappear — I know you probably never learned about them in school).

After all, this is the ultimate of free speech and democracy. "The public’s right to know" trumps the mere technicality of the defendant’s right to a fair trial. As the current appellate courts remind us, a criminal defendant is not entitled to a "perfect trial."

Think of the possibilities for commercial tie-ins.

Product Endorsements:

(1) Lawyers’ wardrobes, accessories (Mont Blanc pens, computers, smartphones ...).

(2) Sales of rights for films, books, blogs.

(3) Ad placements in the courtroom.

I am so sorry that my legal career is winding down on the verge of this most wonderful era of criminal law.

Two Cases: One Lone Juror & 37,000 Prisoners

Two appeals affecting criminal cases made news this week.
In one, the US 9^th Circuit reversed a conviction of the robbery murder defendant because a trial judge had removed a juror who was the lone holdout for innocence. The replacement made the guilt judgment unanimous. (Williams v. Cavasos ,filed May 23, 2011,)

Judge Reinhardt’s opinion begins this way:

“Consider two scenes:
Scene One
Juror #8: I just want to talk.
Juror #7: Well, what’s there to talk about? Eleven men in here think he’s guilty. No one had to think twice about it except you.
Juror #10: I want to ask you something: do you believe his story?
Juror #8: I don’t know whether I believe it or not — maybe I don’t.
Juror #7: So how come you vote not guilty?
Juror #8: Well, there were eleven votes for guilty. It’s not easy to raise my hand and send a boy off to die without talking about it first. . . . We’re talking about somebody’s life here. We can’t decide in five minutes. Supposin’ we’re wrong.

Scene Two
Juror #6: I said . . . this is a very important case and we should be very convinced that if the defendant is found guilty that it is beyond a reasonable doubt. . . .
Foreman: We have spent some time now trying to understand the reasonable basis for his doubt, and I personally did not yet understand it . . . . I would say that two thirds of the jurors have tried to persuade — have actively tried to persuade . . . him that his current view is incorrect. . .
Juror #4: Well, I guess he believes from the evidence that he’s seen that there hasn’t been sufficient proof. . . .
Juror #5: I think the question may have been raised: “Do you have a political agenda?” I think [it] might have been in the heat of the argument, because it does get heated back and forth from a bunch of different people. It may have been said. . . .
Juror #9: Well, he said this is a serious thing, and I don’t really feel that there is enough cause for — or something to that effect. . . . What he said was, “I wouldn’t want to take anyone’s freedom away, unless,” you know, “I was sure that certain things took place.” . . . .

"The first passage above is dialogue from the classic Academy Award-winning 1957 film, Twelve Angry Men, in which Henry Fonda plays a holdout juror who, over two tense hours, convinces his eleven peers that the defendant in a murder trial should be acquitted.

"The second excerpt comes from the transcript of proceedings during the petitioner’s murder trial, in which each juror was examined and cross-examined, seriatim and mid-deliberation, after it was reported that one juror was taking a different view from the others. In the end, the trial court dismissed that juror on the ground that he was “biased” against the prosecution. With an alternate juror in place, the jury returned a guilty verdict.

"Twelve Angry Men made for great drama because it violated the sanctity of the jury’s secret deliberations by allowing the audience into the jury room. It was, of course, a work of fiction.

"We are presented here with a similar intrusion into heated deliberations involving a holdout juror, except that this one took place in open court, and it resulted in a woman being convicted and sentenced to life imprisonment after the holdout was dismissed.

"Under the precedent that existed when petitioner’s conviction became final (and exists today as well), the trial court’s actions violated the petitioner’s Sixth Amendment rights, as incorporated with respect to the states under the Fourteenth Amendment.

"We therefore conclude that petitioner is in custody in violation of the Constitution, reverse the judgment of the district court, and remand with instructions to grant the writ."

This case reflects a practical truth about the criminal justice system:

Trial judges are under great pressure to prevent hung juries. Trials are expensive, the law has a strong preference for “finality”, and the truth is that almost all judges are biased in favor of conviction. The 11-1 for guilty hung jury is the bane of every prosecutor. The notion that one loony iconoclast can thwart justice is infuriating, to the judge, the D.A., and to the eleven who see clearly the same way.

Judges have tried to influence the verdict by exerting pressure on the hold out, using so-called “blockbuster” instructions, urging holdouts to bend to the majority vote. Appellate courts have decried the practice, but the pressure persists.

The facts of the case as detailed in the appellate opinion clearly support the appeals court conclusion that the trial judge violated the Sixth Amendment right to a jury trial. 

First, he violated the long established rule that in questioning deliberating jurors, the judge may not inquire which way the allegedly offending juror is inclined to vote. Second, he misinterpreted almost every statement the juror made to justify his conduct. For example, when the juror said that he in a murder case, he had to be “very convinced” beyond a reasonable doubt, the judge concluded that he was wrongly applying a higher standard than the prosecution was required to carry.

In the second case, the U.S. Supreme Court ordered California to reduce its prison population by about 37,000 inmates, finding that the prison overpopulation (@157,000 in facilities designed for half that number) resulted in violation of the Eighth Amendment (cruel and unusual punishment) because of grossly deficient medical and mental health care which was documented in lengthy hearings in the District Court.

The opinion was 5-4, with separate dissents by Scalia (joined by his mate, Thomas), and Alito (joined by his partner, CJ Roberts). The majority opinion was by Kennedy, joined by Ginzburg, Breyer, Sotomayor, and Kagan. (Brown v. Plata - filed May 23, 2011,)


Of course, this case has far reaching implications. The dissenters provide ample fodder for conservative law and order types to scream bloody murder (and rape and robbery, etc) citing the imminent fall of civilization when the prisons are emptied of violent criminals.

This is highly unlikely to occur. A sizeable number of inmates are there because of non-violent crimes: drugs and thefts with “strikes” that extended their sentences because they once suffered “serious” prior convictions.

 Some are suggesting out of state transfers or privatization of the prison system and Gov. Brown had suggested transfer to county jails (not L.A. County, which is in worse shape than the prisons, already so overcrowded that it has long been under scrutiny by the U.S. District Court).

The expensive alternative of upgrading medical and psychiatric facilities, and investing in rehabilitation programs in the institution and counseling and parole supervision on release, is not even on the table.

Nor is any serious adjustment of the disastrous sentencing system that results in disproportionately long mandatory minimum sentences and appointment to parole boards of citizens disinclined to release anybody from prisons.

The Casablanca Lesson

Although released in 1942, "Casablanca" seems to speak to us today with insights to human behavior.

Remember the scene when Major Strasser orders Vichy puppet Captain Renault to close the "Cafe Americain" after the embarrassing singing of "La Marseillaise" drowned out the Germans songfest? 

Renault, who has been playing roulette all evening, follows the orders, finding an excuse.

"I’m shocked," he says. "There’s gambling going on here." He is then given his winnings.

Sixty-nine years later, we hear the Pakistan government echo Captain Renault after the U.S. Navy Seal Bin Laden compound raid.

And what is their response?

Reports from Pakistan are that the embarrassed "intelligence" leaders there have arrested many in Abbotabad and are conducting an "investigation" to determine how Bin Laden could have lived there.

In other words, they are following Captain Renault’s orders after the killing of Major Strasser:

"Round up the usual suspects."

And speaking of the usual suspects, the responses by Republicans have been just as predictable and ineffectual. 

First, at least from the more rational, a more or less grudging acknowledgement of President Obama’s win. 

For most, that was not enough.

There had to be a "but." 

The buttheads followed as the night the day: but he was only following what we started. Cheney, Rumsfeld, Rice, and others emerged to remind us that torture, er, tough interrogation, helped start the ball rolling.

Fun fact. Some American nuts and Islamic conspiracy theorists still choose to disbelieve the killing of Bin Laden on the order of the American president.

As Seth Myers said on SNL, a rare event when people deny that a black man is responsible for a killing.

God and Cheating

Here we go again. I just can’t help loving these junky social science studies that purport to provide revelations about human behavior. Previously, I have reported on one that proved the alarming conclusion that teenagers lie about sex (whether bragging about "experience" or "restraint"). Another expensive study explained why students procrastinate ... they fear failure or are just plain lazy. Who woulda thunk it?

Now the L.A. Times reports one of the best I have ever seen. A magazine with the self important title of "International Journal for the Psychology of Religion" published a startling study (which they did not conduct, but instead claimed to have vetted and peer reviewed), called "Mean Gods Make Good People: Different Views of God Predict Cheating Behavior".

As the title suggests, the 100 undergrad students who were tempted to cheat on a test were asked about their particular beliefs in a deity. The study concluded that those who claimed to believe in a fire and brimstone, vengeful, scary Old Testament kind of God cheated less than those who asserted a belief that "God" was just and merciful.

"In line with many previous studies, it found no difference between the ethical behavior of believers and nonbelievers. But those who believed in a loving, compassionate God were more likely to cheat than those who believed in an angry, punitive God."

The article quotes many other studies, including surveys that have concluded that 95% of Americans believe in the existence of God. But which God?

Another study broke it down for us, reminding us that we mostly see God as we see our parents:

"...28% believe in an ‘authoritative’God who is engaged in the world and judgmental,

... 22% in an engaged but ‘benevolent’ God who loves us despite our failings.

Two other groups of believers view the deity as more abstract and less engaged:

...21% conceive of a ‘critical’ God who keeps track of our sins and may render judgment in the afterlife,

... 24% see a ‘distant’ God who set the universe in motion but is not involved in day-to-day life."

[***the last is more like the model my God / parents followed.]

Another conclusion was that:

"More wrathful images of God are related to moral absolutism, while people with benevolent, loving images of God tend to be moral relativists."

[Implication: moral relativists are more likely to cheat. "Moral relativism" of course is a pejorative term used by conservative religionists to refer to "secular humanism", i.e., Godless athiests, aka Liberals.]

Although the co-author of the study acknowledged the need for objectivity, this study, like almost every other one I have read, whether I agreed with the results or not, is highly suspect.

I have spent 40 years questioning people (including thousands of prospective jurors), devising questionnaires to elicit "honest" viewpoints about personal beliefs. My conclusion is that it is almost impossible to be certain about whether the answers provided can be relied on to draw any conclusions.

Duck ... it's The Donald!

The notion that Donald Trump might run for the presidency should be laughable. But in the present political / pop culture climate in the USA the "ha-ha" would be quickly followed by "uh-oh".

David Brooks, the intelligent conservative NY Times columnist classifies The Donald as one of the "obnoxious blowhards" that the American public become enamored of on occasion. He likens Trump to George Steinbrenner, Ross Perot, Bill O’Reilly, Rush Limbaugh, Bobby Knight, Howard Stern, and for balance, includes George Soros, the liberal outspoken billionaire. He might have included others from "the left" such as civil rights shouters Al Sharpton, Jesse Jackson, and Keith Olbermann. Mohammed Ali was probably the first such icon in my memory, a "blowhard" who soared above the pop culture / political fence. Ali was abetted by another blowhard master who saw in him as a kindred ego spirit, Howard Cosell.

Brooks observes that, like others of his sort, Donald’s attraction is his flamboyant aura of success and wealth, traits which many segments of American culture find fatally attractive. The allure is so strong that negatives of character and major flaws in taste, manners, correctness, reason, are overlooked or even seen as signs of iconoclastic courage. Trump, like the other blowhards, says things that his followers wish they had the courage to say, outrageously extreme, but emperor’s new clothes "truths" only people of independent wealth and soaring egos dare to speak.

Brooks’ bottom line is to discount the likelihood of Trump’s presidential ambition, his presence is an amusing and valuable addition to the boring world of cautious politics as usual.

There is a problem with this analysis. History is full of other blowhards who were laughed at by the intellectual rationalists. Even in democracies, populists can become demagogues and if the conditions merit, may metamorphose to tyrants. Fear, caused by economic or political troubles, are such conditions. In our own country, the Depression of the 1930's produced Huey Long, Father Coughlin, and other extreme haters on the left and right. In Europe, Mussolini and Hitler were long viewed as funny blowhards, not worthy of concern.

In the late 1940's and early 1950's, Joseph McCarthy was the loudest blowhard in this country. Long after his demise, his followers continue the conspiratorial paranoid flame burning, giving his name the honor of an "ism". Will we someday be remembering "Donaldism"?

The Un-Civil War?

On its 150^th anniversary, it seemed sensible to refresh my memory about the Civil War. I have been reading "Battle Cry Of Freedom: The Civil War Era" by historian James McPherson. Turns out, things haven’t changed all that much in 150 years.

Today, the debate is still about the power of the central government over the states and the individual, fundamental problems relating to taxation, economy, spending, and welfare. All of these issues have been argued vehemently for more than 150 years, but like racial issues which continue today, the Civil War articulated and dealt with these problems head on, violently, and starkly, providing lessons for us.

Can a government conduct a war and also provide for the welfare of its people?

Can it finance a war and also promote societal progress or must it abandon or roll back the hopes for advancement?

Can it run a deficit and continue to spend, financing war and domestic programs at the same time?

Comparisons between the policies of North versus South, with differing philosophies about the role of government "intrusion" versus "aid", had as much to do with the Civil War experience as the actual fighting.

For example, it seems that, by 1862, the Confederate government had serious financial problems. Less than a year into the war, it was deeply in debt, with inflation spiraling out of control. One cause was the refusal to increase taxes.

McPherson: "Americans had been one of the most lightly taxed peoples on earth. And the per capita burden in the South had been only half that in the free states. A rural society in which one-third of the people were slaves, the South had few public services and therefore little need for taxes."

(Contrary to populist belief, current U.S. tax rates for corporations and individuals rank below most developed countries).

The Confederacy was based on the fundamental purity of "states rights", so states were trusted to collect what taxes were ordered (tariffs and modest direct real & personal property tax of 1/2 of one percent). Only South Carolina obeyed. The other twelve states waffled, ignored or opposed in principle the idea that any central government could force them to do anything.

Just as many of today’s reactionary conservatives (self-identified as Tea Party Movement) champion causes that will hurt them and benefit the wealthy, Southern poor whites in the Civil War era suffered from policies they supported. Not only were their young men fighting the war to preserve the power of the plantation rich to keep their slave based wealth, but the inflation that occurred hurt their families far more than the rich. While they fought the war, their wives and children struggled to keep their farms going.

[Parenthetically, when inflation and scarcity led to black markets and price gouging, scapegoats were found. Guess who? A newspaper wrote: "... native Southern merchants have outdone Yankees and Jews..." Oh wait. "...We shall find all our wealth in the hands of the Jews."]

On the other hand, the Northern economy prospered during (despite or because of) the war. In addition to innovative use of bond sales (presaging the campaigns of the later World Wars), Congress passed the first income tax in our history. It was an intentionally progressive tax, 3 percent on incomes over $800 only, "thereby exempting most wage owners."

Still when the war went badly in the early years, the financial system sputtered. Confidence faltered, led to a panic, a run on banks, and a shortage of money. Lincoln, who McPherson notes was "no financial expert, played little role in congressional efforts to resolve the crisis."

The wartime Congress did act, boldly and successfully. It passed the National Banking Act and elicited the aid of bankers to supply ideas. The government backed and guaranteed loans and bonds by depositing money in the banks, leading to the concept of government bills (greenbacks) being considered "legal tender". (Just as today, there was a cry that this action was unconstitutional, violating the literal words that authorized Congress "to coin money." Paper wasn’t coin. The progressives argued that the "necessary and proper" clause plus a broader construction of "coinage" should apply. Luckily, the ultra conservatives were mostly gone South by then).

Northern inflation was far less severe than that in the rebel states. In fact, the price index of the North in the Civil War was not much different than in the World Wars, less than 100 percent increase from beginning to end, whereas in the South, it rose sixfold.

The Civil War U.S. Congress is considered to be one of the most accomplished in American history. Without obstruction from hidebound Southern conservatives, the Congress passed the Homestead Act, which granted 160 acres of public land "to a settler after five years’ residence and improvements on his (or her, since the law made no distinction of sex) claim." During the war, 25,000 settlers took advantage, by staking claims to over 3 million acres of land. After the war, the westward expansion was fueled by the hopes of a "half-million farm families who eventually settled eighty million acres of homestead land."

A Vermont congressman (Justin Morrill) for years had a pet project, a "bill to grant public lands to the states for promotion of higher education in ‘agriculture and the mechanic arts.’" Passed in 1862, it created the "land grant college movement" leading to establishment of universities such as Michigan State, Penn State, Cal, Wisconsin, Minnesota, Illinois, and many others. The law also included universities in the reunited South after the war.

Another achievement was the "Pacific Railroad Act, granting 6,400 acres of public land (later doubled) per mile and lending $16,000 per mile (for construction on the plains) and $48,000 per mile (in the mountains)" in government bonds to corporations to build the transcontinental railroad. The work began in 1863 (the same year as the Battle of Gettysburg) and was completed in 1868.

While the history of the post Civil War era included vast corruption triggered in part by the corporate power of the railroads, it is also trued that "most Americans in 1862 viewed government aid as an investment in national unity and economic growth that would benefit all groups in society."

In the most ironic parallel, like the Tea Party Movement (TPM) today, Southern secessionists claimed to be inheritors of the original founders of the American Revolution. Lincoln’s election, they cried, would deprive them of their "liberty" and they cited Patrick Henry, and other Virginians for their heritage of "freedom" and their right to "property". It was an odd argument. They fought for the freedom to enslave people as property.

Like the TPM, the CSA was fundamentally white, nativist, intolerant Christian, economically selfish and narrow minded. After the war, American mythology, abetted by romantic notions of the "Lost Cause," elevated the supposed nobility of the Ante-bellum South (e.g., "Gone With The Wind"). But contrary to romantic ideas, some causes deserve to be lost and to be remembered, not fondly but with regret and shame.