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Sunday, December 06, 2015



When I was young and thought I was going to hell along with the rest of the world unless I worried about it, I survived by making a list of my worries. I found that micro fears (personal worries, such as cancer) paled before my many macro horrors (eg: nuclear fallout).

Yet, even in a really bad year for macro trouble (e.g., 1968) my imagination faltered after listing so many ills, resorting to minimal angst about things like UFO's. There may not be any more items on the macro list today than there were in 1968 but they seem worse because so many of these problems appear to be intractable.

Even in the depressing ‘’60’s” when assassinations, wars, crime, racial strife, were rampant, there was still a sense that we “shall” eventually “overcome” the problems. Today we are justified if we are far more pessimistic.  So many of today’s problems have passed the event horizon: the point of no return. They are too complicated to be solved. 

Here are some examples — not necessarily in order of importance or insolubility: 

The boomer generation scourge. The most entitled and largest generation in American history is about to use up all the remaining resources that they haven't yet sopped up. By continuing to live, they (we) endanger the prosperity of our children and grandchildren, who reasonably believe that they will be denied the chance for prosperity because of us. 

Climate change: Some scientists suggest that climate change has reached the tipping point and that the earth’s ecology is beyond repair. In the U.S. one of our two major political parties (the one that currently – and for the foreseeable future – controls the Congress, and almost all of its presidential candidates, deny that it is a problem at all. The influence of wealthy anti-environmentalists is too powerful to be overcome. Even if we were willing to sacrifice in order to solve this problem, emerging nations in Africa, Asia, and elsewhere would not. Thus, a solution is hopeless.

Gun violence in the U.S. The will does not exist to reduce or even limit the amount and type of weapons of mass destruction in the hands of almost anyone living in this country. The Supreme Court’s decision broadly interpreting the Second Amendment and the power of the NRA mean that any meaningful limit on weaponry is impossible. The federal government is handcuffed and state laws are ineffectual as long as neighboring states don’t care.

Use of excessive force by local police officers. Perhaps related to the availability of weapons almost as much as profiling that inevitably involves race- and ethnic-based stereotypes, patrol officers in local departments fear the public they serve. Fear breeds contempt; authoritarianism breeds arrogance and anger on both sides. The institutional norm of militaristic unity leads to the code of silence among brothers in arms (and this usually crosses race and gender lines within the department). Coupled with inherent pro-police bias by prosecutors, judges (usually former prosecutors), legislators (also frequently former prosecutors) and city officials, there is little hope of serious reform. Increasing militancy by racial minorities who feel victimized by police brutality and political impotence will encourage a violent reaction (probably more serious than the Black Power / separatist movement of the 60’s).

Permanent underclass that is underemployed, uneducated, hopelessly mired in poverty. Urban and suburban police (the borderline in our megacities is blurred) are dealing with communities (ghettos) in which all the common ills are rampant and by now, have existed for decades. Schools in these areas have been poor for generations. This is particularly true in a sizeable percentage of the African American population, unable to assimilate into the mainstream of middle class culture. The concept of “upward mobility” that has been a myth of American exceptionalism doesn’t apply to the permanent underclass.  

Permanent homelessness. When I returned from a trip around the world in July 1975, I saw for the first time men sleeping in cartons on the streets of downtown L.A. I had been in Calcutta a few months before and saw similar things. Today it is so common a sight on our streets that we ignore it. Public and private charities provide minimal life support and our mental health care and drug rehabilitation systems have failed to solve the problem.

Incompetence in our major institutions: education; health care; criminal and civil justice; religion; government services (veterans, taxes, licenses, etc.). I lump these all together because it all seems that, like the organs of a dying body, all of these systems are beyond reclamation. The beginning of the end for these institutions happened with the so-called taxpayer’s revolt at the start of the 1970’s in California. Conservative radicals used the initiative process (that had been a progressive instrument intended to override official corruption in the early part of the century) to defund state and local governments. Proposition 13 reduced property taxes that were the main source of funding for state and local government. That was its intent; and it worked. The trend is now permanent. The public demands lower taxes but more and better government services. Science fantasy.  

Economic decline: loss of high paying unionized manufacturing jobs that built the middle class. We will never get these jobs back from overseas, no matter how much demagogic politicians moan about it. Outsourcing assembly line work is needed for the multi-national corporate bottom line. Low paying service jobs in health care, food, retail, and other such industries are going to be the backbone of US employment from now on. The transition to “green” and “high tech” related employment is promised but very uncertain. Globalization is generally good for Asians and Africans who strive to join the developed nations, but the transition is going to be painful for all societies.  

Political polarization; voter apathy; electoral control by the wealthy. At the turn of the 19th century, federal state and local governments were controlled by the moneyed classes and used mostly for their own benefit. Corruption was normal. Progressive reforms swung the pendulum to some degree. Unions became a voting bloc that, along with the second generation of immigrant families that came of voting age in the 1930’s, made the system work. Americans are rarely energized enough to vote in high numbers by comparison to other democracies. Most are apathetic, confused, cynical, detached from the process. Each major party generally has about 40% of the vote; the remaining 10% who call themselves “independent” sway one way or the other for complex unpredictable reasons, often relating to momentary concerns. They are easily manipulated by the news, prejudices, or transitory emotions. A few wealthy contributors can manipulate elections by focusing on these few swing voters in a few swing states.  

Drug crime. As long as there is a demand, the supply will continue in this very profitable trade. Legalization of marijuana may change the economics relating to that drug, but there will be others. Illegality will always be part of the lure. So, methamphetamines, opiates, and recreational drugs such as ecstasy and whatever pharma can conceive will surely continue to thrive.

Fanatical radicalism; turning to terror as a tactic by the powerless for political or religious purpose; willingness to kill and commit suicide for a cause. Some people have always been attracted to these powerful self-destructive and murderous ideas. Combined with the increased availability of weaponry, there is no reason to expect this will abate.

Israel / Palestinians. This is on the list because it is the oldest of the deadly feuds that threaten world peace. As long as Islam resents the very existence of a Jewish nation on this “holy land” and as long as Israel distrusts any treaty with a neighboring Palestinian state as a threat to its existence, this sore spot will continue to be explosive. It provides a stimulus to pan-Islamic militancy.

The U.S. Supreme Court. You can blame the mess of our foreign policy in the Middle East and Persian Gulf to the Presidents Bush. And you can also blame them for the mess that four appointees to the Supreme Court have made of the constitution. Of all the far reaching mistakes, these appointments may have the most devastating impact. Election financing, reproductive rights, voting rights act limits, second amendment ruling, capital punishment . . . just the start of the damage. 

Reapportionment: In 2010, Republicans took advantage of low voter turnout during mid-term elections to win majorities in state legislatures and governorships even in previous “blue” states such as Wisconsin. The Republican legislators gerrymandered congressional districts so as to assure continuing majorities in congress and state legislatures at least until 2020 when the next reapportionment will occur. Once in control of state governments, Republicans rolled back progress on funding for poverty, health care, education, reproductive rights, unions, environment, etc. They also passed voter registration laws to further repress the Democratic Party vote in the future. 

Religion is here to stay. Some who argue that the greatest source of evil in the world is “religion” have a point, but it is irrelevant. Whether as some suggest, we are hard-wired to seek spiritual guidance, it is clear humans are drawn to religious faith and many are strongly influenced by faith, even when contrary to evidence. Many will prefer religious teaching to scientific proof. Thus, evolution, climate change, gender, family, and sexual issues are all subject to religious tests for many and will always be.

 A free press will not save us. Jefferson’s dictum was that democracy would work IF driven by an educated and informed electorate. We have depended on news media to inform us. They have failed. Corporate infotainment in commercial media is pervasive, permanent, and irretrievably flawed. The old saw, “if it bleeds, it leads,” is revealing. Anecdotal emphasis on violent, highly emotionally charged events instills fear. A crime spree in Atlanta causes people in Los Angeles to buy guns and vote to toughen laws. Sound bites replace analysis, politicians and experts need to give instant, short, meaningless answers to complex questions.

Social media is an unreliable savior. More people today get their news thru their portable devices than from print or traditional broadcast media. The argument in its favor is that it is broader, less corporate dependent, and freer. Others counter that reporting is notoriously unreliable. Vetting of reporting for accuracy is spotty. There are no accepted standards for fact checking, no limits relating to taste, sensationalism, gossip, or bias. Still, the future belongs to social media and there is no likelihood that it will go away. The threatened suppression by governments of this source will not defeat it; it is too pervasive now.

Privacy is a diminishing reality. Governments will continue to monitor telecommunications on the basis of national security and crime suppression. Corporations will come under increasing pressure from governments to cooperate by turning over customer records. The battle between encryption and decryption is permanent. Cyber crime and cyber terrorism will increase in importance and be a part of life for the foreseeable future.

This depressing list is probably incomplete. But what all of the examples have in common is a sense that we have lost the ability to make progressive meaningful change at least for the foreseeable future.

As to the micro worries . . . it turns out that we were right to put cancer at the top of the list. In fact, we could have ended the list right there. Yet, now at this stage of life, my personal worries are too ordinary, numerous and omni-present to be reduced to any list. 

Maybe it is nature’s trick to occupy our minds with impossible conundrums while it destroys us from the inside. Clever.

Sunday, November 08, 2015

Journalism 101

The Third Corollary to Borenstein’s Law states:

A lawyer who loses his credibility by making unsupported assertions ruins his case. The same is true for “journalists.”

The movie, Truth, is about a blunder that CBS news committed in 2007. Sloppy reporting led to a loss of credibility and firing of Dan Rather. The subject was an investigative piece that claimed to have found documents that proved that G.W. Bush, then running for president, had used influence to avoid service in Viet Nam. The rush to air the news meant poor vetting of the documents, which turned out to be false. A smug W was elected.

This month, CNBC botched its questioning of Donald Trump and Marco Rubio by lazy preparation, fumbling the sources related to the queries. These “reporters” left themselves open to visceration by Republican politicians to whom this was blood in the water. They tore into the red meat for their base for which the news media is an old and common enemy.

Now, Ben Carson has been “investigated” by multiple media snifferes seeking to verify or debunk his “stories” about his own biography. Politico reported that his claim of a scholarship to West Point was wrong. Carson replied that the co-author of his book used that word instead of “grant.” So what? CNN “investigated” his claim about his wild and violent youth (before he found religion). They reported that they couldn’t find victims of his assaults, inferring that he it was not true. He answered that he hadn’t used the real names to protect their privacy. Easy rebuttal. Another search failed to find a Yale class and photo that he mentioned. He answers: so, I forgot the real name of the class after forty years? This is merely a typical witch hunt by media. His supporters cheer, and more are drawn to him because his assertion that the media is out to get him is credible.

The lesson is that when the journalistic media shoots a silver bullet, and it turns out to be a blank, it does far more harm than good.

I don’t remember very many things I was taught in high school. Most of the science, math, poetry, and Victorian novels I had to memorize, analyze, parse, and cram into my addled teen brain have vanished along with my acne. But I did learn a few valuable lessons in those classrooms. For instance, I credit my journalism class with preparing me for my future life as a lawyer and as a citizen.

The discipline of writing paragraphs for news articles helped me to write legal briefs. The basics of the five w’s translated well for judges whose patience was as limited as that of morning newsreaders. I learned to get to the crux of an issue at the top (whether arguing orally or in writing), and then to complete the thought in coherent order of relevance.      

I found that those principles were also helpful in considering public issues. When listening, watching or reading news reports, I was better able to separate known facts from speculation. It helped me to distinguish evidence from beliefs.

The classic rules of journalism that I learned are simple. A newspaper is supposed to be divided into separate sections: News, Features, Editorials. There is a bright line between news, feature stories, and opinion columns. Opinion is for the editorial section. Features include “human interest” stories, investigative reports, and follow-ups to earlier news. Outside of the editorial / opinion pages, bias should be avoided, even if a story has to have a “slant,” which really means that it is told from or with a point-of-view. 

The essential and traditional function of newspapers was to report the news. The first American newspapers mimicked their English counterparts; they were blatantly biased. In politics, each party had its own trumpet that did what modern parlance would called “spin,” informing partisans of their version of any issue. When the daily press became “mass media” the editorial policies of each publisher infected their reporting. The goals were pushing an agenda, defeating opponents, and of course, selling more newspapers than the competition. All was fair by those principles.   

Thomas Jefferson has often been quoted as the source of the dictum that a free press is essential in a republican democracy because such a government demands an “educated and enlightened” electorate to function. The People have to be informed of the facts in order to make the decisions that a democracy requires of its citizens. Newspapers exist to serve that purpose. (Jefferson, as we all now recognize, had trouble living up to his own beautifully articulated principles, such as “equality.” The same is true of his ethics regarding news: he was suspected of spreading the “news” of his rival Alexander Hamilton’s adultery to a scandal sheet.)

Like most ideals, the journalistic standards have been more theoretical than practical. Tabloids have dominated the industry; readers have always preferred the flamboyant style of The Daily News to the dry reportage of The Times. Yet The Times has been considered the journal of record for the elite class: government, academe. Other periodicals follow the lead of The Times, and rely on its sourcing for its own reporting.   

But we are now in a new era. The internet is now the source of information for the computer literate generation. My son, 35, although he was the editor of an award winning prep school newspaper, never reads a newspaper in print. Most people his age or younger get their news on line.

The power of the print press began to erode as early as the 1950’s with the coming of television news. Before long, most people got their “news” from the rapid “bulletins” of live TV rather than “Extras,” special editions of newspapers that used to supplement the usual morning and evening editions. When I was in high school (class of 1961) there were seven major papers in New York and that was down from as many as fifteen at times.

Newspapers realized they couldn’t compete with the immediacy of news reporting on TV. The civil rights movement, the Cuban missile crisis, the Vietnam War, political campaigns, all were visually powerful stories that TV covered more vividly. Newspapers began to evolve: producing in depth analysis of stories, investigaitions that went beneath the headlines.
The internet revolution has even eroded the domination of the broadcast media today. With the possible exceptions of satire on SNL, the Daily Show, John Oliver, and youtube clips of late night monologues and local news bloopers, TV news is ignored by everyone 35 and younger. 

Eventually, “journalism” became an academic subject, guided by a rigid set of ethical standards that were deemed to be necessary to legitimize it as a worthwhile career. They included: accuracy, objectivity, and impartiality in reporting the discernable facts. Facts were reported as true only when proved by reliable sources. Gossip, innuendo, opinion and spin may be reported, but with clear labels to distinguish from facts.

Just as newspapers groped to find new uses when TV usurped the “news,” TV now struggles to keep its audience. The commercial mass medium depends on advertising, subscribers for cable networks, and sources willing to feed items. Entertainment is a goal that vies with the duty to provide information (thus, the pejorative term “Infotainment”).

As in all forms of entertainment, charismatic star power draws an audience. Newspapers always had star columnists who became powerful personalities: Walter Winchell, Drew Pearson, as examples. TV had Murrow, Cronkite, Brinkley. Walter Cronkite was a trained print reporter who brought his writing skills and reporting ethics to CBS. He edited and read the news each night with a stern, steady, neutral voice. He became “the most trusted man in America” because viewers sensed his innate credibility.

Cronkite also accepted entertainment assignments — You Are There — a show that dramatized history by his “interviews” of famous people: Eg: Aaron Burr and Alexander Hamilton before their duel. Murrow did Person to Person, celebrity “interviews.” But there was a clear distinction between these amusements and their jobs as reporters of news.

Because they had built credible reputations, Cronkite and Murrow had the most impact when they crossed the line into commentary. Murrow’s famous expose of McCarthy, and Cronkite’s investigations into the Vietnam War were departures from their objective reporting and thus had even more impact than if they had been ranting on every show.

Cable “news” shows such as those on Fox, MSNBC, and CNN, are not so different from the biased, party-based tabloids of the past. They present brief summaries of a few items from the news of the day. Each segment — that is strictly timed in order to accommodate advertizers — spins the news with opinion after opinion: by professional surrogates of politicians, and spokespeople for the government. Then there are opinions from “consultants,” who are supposed “experts” in various fields. They include former politicians, former print columnists, and academics, who are willing to express views on subjects, even without full knowledge of facts. They do so because exposure equals fame.
I’ve seen this sort of speculation turn my profession into a spectator sport. Every “trial of the century” attracts experts willing and eager to sell their opinions about the case. You rarely hear any of them say, “Gee, I really don’t know.” I presume that any rational person who gave that answer to a producer’s call would not make it to air.

The splintering of the news business, spreading from three broadcast networks to many cable channels and then to a plethora of websites, should be good: a few closely held corporations no longer control the news. But along with the new freedom from autocracy comes a loss of confidence in the reliability of reporting.

Another lesson I learned was that loss of credibility is fatal to advocacy. Your case is destroyed if you overreach, misstate, mislead, or rely on weak arguments that are easily rebutted. The corollary is that once lost, your credibility cannot be salvaged.   

Monday, July 06, 2015


The website for Business Insider Magazine recently summarized an article written for Georgetown Law Journal by Hon. Alex Kozinski, who has been a judge on the U.S. Circuit Court of Appeals since 1985 (appointed by Ronald Reagan).
The headline the magazine chose for this article is


No one who reads this blog over the years should be surprised by any of Judge Kosinski’s observations. I have mentioned many cases that were reported in legal journals or in general news media that made the same points. Nonetheless, here is the LIST of MISCONCEPTIONS that Judge Kosinski “identified.”

            As I have reported many times, the truth is that eyewitness testimony is among the LEAST RELIABLE forms of evidence. The myths perpetuated by so-called common sense, such as “I’ll never forget that face” . . . “ are wrong. False ID’s account for up to a third of convictions of the innocent, including those who have been executed.

            As with most forms of forensic evidence the reliability varies greatly with the degree of integrity, competence and intelligence of the expert examiner. Fingerprints can be planted, forged, misread. Experts are rarely independent; rather, they are employed by police or prosecutor, therefore are often biased.

            In many cases DNA testing has proved that the wrong person was convicted. Studies show that the evidence that misled the jury was often given by EXPERTS asserting the infallibility of their field, including BLOOD STAIN / SPATTER; ARSON; FOOT AND SHOE PRINT; TIRE PRINT; HAIR COMPARISON; BALLISTICS COMPARISON . . . The truth is that the scientific foundations of these fields are dubious, often amounting to mere guesswork by the expert (who is usually employed by the prosecution).

            There is an irony here. When used carefully, DNA evidence can be effective to prove or to disprove identity. However, in practice, it is just as fallible as any other science based tool, depending on the handling of the evidence from start to finish. Additionally, the statistical assumptions regarding racial and ethnic genetic characteristics that underlie its accuracy have been called into question. The FBI recently acknowledged such “mathematical flaws.”

            A corollary to the ID problem is the myth that the mind is like a recorder, capturing experiences which can be replayed accurately. This has been proven to be untrue. Memories are subjective, colored by fear, prejudice, and many other factors that influence perception.

            Kosinski debunked that claim. Truth is that interrogation techniques, not necessarily torture but almost as coercive can often adduce false confessions.

            The law assumes that jurors understand and follow the rules as laid out by judges in their oral and written instructions. This is called “a legal fiction.” Kosinski observes that courts have no way of knowing is jurors actually do that. From my experience, I believe they frequently do not understand the details of the legal principles, and that they ignore admonitions by the court all the time. E.g.: “You are not to consider evidence that is stricken” . . . “You are to ignore that answer” . . . “You are not to form any opinion until all the evidence is in” . . . “You are not to discuss the case with anyone else.”

            Kosinski points to the many cases that have come before appellate courts in which it was shown that prosecutors concealed evidence that pointed to the innocence of the defendant. This violation of the Constitution has resulted in many reversals, but sadly many more cases in which the appellate judges (a majority are former prosecutors) have called “harmless error.” Even when they have found egregious misconduct, courts very rarely punish the trial prosecutor, who might have conspired with police to railroad an innocent person.

            In rebutting this false belief, Judge Kosinski mentions a factor that I have often found to be true. The defense is at a disadvantage because of the inherent structure of our trials. The prosecution goes first, in argument, in presenting evidence and in closing. This is due to a concept of fairness because it has the burden of proof. But as Kosinski observes, "whoever makes the first assertion about something has a large advantage over everyone who denies it later."
            Also, the concept of “reasonable doubt” is so vague that it allows conviction on as much or as little evidence as the finders of facts wish.

            Investigators of crime have been shown to alter or remove evidence, unduly influence witnesses, extract false and involuntary confessions, manipulate the circumstances of cases in order to achieve their favored result, which in almost all cases is a conviction. The attitude of police officers is all too often, “I know this person is guilty, so justice is served even if the rules are bent a little to get justice.”

            The system is designed to coerce guilty pleas. Prosecutors often OVERCHARGE defendants. If a person is exposed to life in prison he is prodded to take a plea bargain for a lesser sentence. Criminal defendants are often people who have long distrusted the fairness of the system, believe the deck is stacked against them. They distrust the competence and good faith of their appointed counsel – and in far too many cases this distrust is justified.

            Among western nations, the U.S. has by far the highest per capita prison population (716 prisoners for every 100,000 people). "As with much else in the law, the connection between punishment and deterrence remains mysterious," Kozinski writes. "We make our decisions based on faith."
            I have watched the evolution of California sentencing laws since 1968. The legislature – encouraged by the Initiative process – has upped sentences for almost all crimes for the past 40 plus years to the point that one of every four African American men between the age of 18 and 30 is either in jail, prison, on probation or parole. The prisons warehouse thousands with no program or hope for rehabilitation.


Off the top of my fading memory, I would add these lies to Judge Kosinski’s list:

            In California, most Judges are appointed by the governor. Whereas in the past, appointments were a reward for party loyalty or to honor eminent lawyers such as senior partners at prestigious firms, judges are now chosen to carry on the program of vigorous law enforcement. To insure few embarrassments, prosecutors are elevated to the bench as soon as they qualify. For political correctness, a fair percentage of women and minority racial and ethnic prosecutors are picked. Almost all these appointees see their duty to continue the job they started as prosecutors . . . which includes protection of their colleagues in their former office and the other law enforcement agencies.

            Wrong on so many levels it is hard to begin. “Technicalities” such as those in the 4th, 5th, 6th, and 8th Amendments to the Constitution are insured by excluding evidence obtained in violation. That is the principle, but in practice, such rulings are rarely made. It is even less likely that excluding bits of improperly obtained evidence results in acquittal or dismissal.
            Second misconception is that judges are “liberal.” In California, as I have shown, governors beginning with Ronald Reagan and including a succession of Republican conservative and nominally Democratic governors (e.g., Grey Davis) cautiously appointed “safe” judges who would not embarrass their tough on crime agendas.
            Third, appellate courts rarely reverse convictions on any ground, much less on so-called “technicalities.”


            Although delays can result in bad results – eg: loss of evidence, absence of witnesses – delays sometimes insure justice. This has been proven by the discovery of DNA evidence for use in cold cases which have lingered unsolved. It has also uncovered unjust convictions and freed prisoners who have serve 10, 20, 30, or more agonizing years behind bars for crimes they did not commit. Capital cases are no exception to this. The expense of multiple appeals and the use of habeas corpus to review these cases has annoyed those who call for “speedy justice.” But the price of speed has been and will surely continue to be the execution of innocent people.