Borenstein's Law

The Politics of Pogo Possum

2012-01-02T10:38:00.000-08:00

Some news items gave me a nagging itch.

One, some segments of the "Occupy Movement" declared for Ron Paul, exposing the anti-government at all costs attitude that lies beneath much populist fuzzy thinking. They proudly quote the mad "Network" rant, "we're mad as hell and we're not gonna take it any more!".

A second article quoted some Hispanic leaders as warning that their voters were angry about the deportation policy of the the administration.

Another item noted that emails which had been exposed which fueled doubts about man made global warming were not put out by deniers, but rather by activists on the well meaning left who feared that third world economic progress would be stalled by climate change policies.

Remember Ralph Nader.

"I'm not a member of any organized political party. I'm a Democrat." Will Rogers

That accurately describe a problem for liberals in any political season and now poses obstacles for our candidate, the now and (hopefully) future president.

No one can be elected by hewing to strict ideologically pure liberal (or progressive, if you prefer) rhetoric or programs. Even FDR, who is seen by the right as the epitome of a dangerously liberal president, wasn't deemed radical enough for many on the left of his own party.

The Democratic Leadership Council was formed by the right wing of the party to correct the perceived failure of tired left ideas that led to losses by McGovern, Dukakis, and Mondale. Clinton and Gore rescued the so-called Reagan Democrats by triangulating, co-opting conservative talking points: welfare reform, balanced budgets, free trade, tough on crime, pro death penalty, strong defense.

Obama has done as well as he could with the tools at his disposal and given the obstacles thrown in his path. Like FDR, he had to salvage a corrupt capitalist system from itself. As in the 1930's rapid and complete recovery of the economy is not within his power to achieve.

His problem is that as a scruples moderate, he is dealing from a tepid ideology that doesn't fit with our angry and polarized public's notion of the "passion" they want, either from the left or right.

His solution may be that his opposition quotes Pogo: "We have met the enemy and he is us." Walt Kelly (Pogo).

My First Death

2011-12-30T13:10:00.000-08:00

Almost a quarter of a century ago I lost a death penalty trial. It was to be the only such loss in my career. I was to defend in many more cases in which the prosecution sought to execute my client, but none would result in death verdicts, although many would be deemed more "deserving" of punishment by death than the one who had been condemned to die.

The client in the one case I lost was named Mitchell Sims. He was accused of killing a Domino Pizza delivery man and robbing the store. He had come from South Carolina with his accomplice, Ruby. At the time of his California trial, he had yet to be tried for killing two Domino employees there. Eventually, he would be convicted there too, sentenced to death as well.

Although the crimes Sims was convicted of committing were horrible, they were by no means the worst crimes which my capital clients have committed.

One killed two undercover DEA agents in the course of a drug deal / robbery.

Another executed four "innocent" witnesses during another robbery of a drug dealer.

Yet another beat to death a middle aged woman who had MS and a few months later stomped to death a seventy-year old man who was thought to be wealthy.

Possibly the worst was a young man who, with his fellow gang members went on a summer rampage, killing eleven people.

In all of these cases, juries voted for life sentences instead of death.

Mitch Sims has been on death row in San Quentin since 1987 and all of his appeals have been exhausted of the issues surrounding "whether" he should be killed. What remains are arguments about "how" it should be accomplished.

Thirteen people have been executed since then, the last in 2006. At that time a moratorium (ironic) was declared when judges objected to the details of the manner of execution by lethal injection, which is deemed to violate the Eighth Amendment’s prohibition against punishments that knowingly cause pain. Sims’ habeas counsel has now (December 16, 2011) succeeded in obtaining another judge’s halt to the proceedings by questioning the drugs which should be used to kill him.

A week later, California Supreme Court Chief Justice Tani Cantil-Sakauye stated her opinion that the system of capital punishment in this state is not working. It is "ineffective" and "costly," imposing an enormous burden on the justice system that outweighs the benefits.

Within days, The L.A. Times published letters from outraged death penalty proponents, attacking the Chief Justice. "Endless appeals" are to blame, the writer complains.

This reaction is a typical argument. It ignores the enormous number of convictions which have been overturned after DNA or recanting witnesses or other new evidence was uncovered which proved that the original guilt / death verdicts had been faulty. It is now clear that innocent people in this country have been executed.

Well, Mitch Sims is not "innocent" in the sense of guiltless. But the capital law in this country doesn’t stop with the crime. In every state, the jury is required to consider not just the facts of the crimes, but also the life of the accused as well as the lives of the victims. In other words, no matter how horrible (or "heinous") the crimes appear to be, no juror is supposed to vote for death without considering "mitigating factors" most of which relate to the life of the killer.

In the cases I mentioned, all of the defendants had troubled lives. Broken homes, abusive parents, poverty, mental issues.

But none was as bad as Mitch Sims’ life. It was like a Dickens southern gothic nightmare. His drunken stepfather serially raped Mitch’s sister and forced Mitch to have sex with his mother. Mitch medicated his clinical depression with booze, and his self-hatred in self-destructive actions.

So why was Mitch Sims sentenced to death while the others were not?

After the verdict a juror sought me out. She felt guilty about her death verdict and wanted to set up a trust fund for Mitch’s son, "to stop the cycle of damage". She told me that she voted for death because, although she sympathized with his horrible background, she couldn’t relate it to the cold blooded manner of his crimes. If he had killed his stepfather, or even if he had committed sex crimes, or his family, she and others on the jury would have spared his life.

That was my failure. The law and reason doesn’t demand a nexus between the background and the crime for it to be mitigating enough to vote against death. It is not a cause and effect relationship. It represents our society’s judgment that lives should be measured in their entirety rather than the moments of criminal acts.

In all of the other cases, the jurors "got it". I was able to present facts, experts, arguments, or something else that even the jurors couldn't explain, to justify a non-death verdict.

There is also a concept that the courts have given lip service to but which has been ignored in practice. It is the notion of "proportionality". This means three things. First, it means that the sentence should be proportionate to the crime. For instance, should someone be executed for crimes other than murder? The second idea relates to consistency in enforcement. Crimes committed in Los Angeles should be prosecuted and punished the same way as in Riverside. Even within L.A. County, the results vary. Jurors in Pasadena (where Sims was tried) and the central L.A. are different and prosecutors know it.

Although the appellate courts promised to consider these factors, in practice they have not faced the issue with integrity.

When it comes to non-capital crimes, the courts have been inconsistent. The Three strikes law, which permits life sentences for petty crimes, has been upheld.

But death is different, the courts have repeatedly claimed. The Supreme Court keeps saying: "There is no question that death as a punishment is unique in its severity and irrevocability."

And: "When a defendant's life is at stake, the Court has been particularly sensitive to insure that every safeguard is observed."

Another issue that lends doubt about the fairness of the death penalty is its racial bias. Statistically, it is clear that African Americans are more likely than whites to be executed, especially where their victims are not black.

All of these issues complicate the process that is supposed to be rational, rather than "arbitrary and capricious."

And that is not all. The random luck of the skill and ethics of the detectives, experts, prosecutors, defense lawyers, judges, and many other unknown variables bear on the result.

California, which clings to its claims of diversity, is an equal opportunity state, fearful of executing only minorities. Mitchell Sims is white and therefore is a leading candidate for immediate execution as soon as the moratorium is lifted and the governor yields to the inevitable pressure to go forward into hell.

Does Jerry Brown have the guts to do the right thing and stop it?

He could send Mitch Sims back to South Carolina. That state has a tradition of law and order, except when it is seceding from the Union. Other governors (as in Illinois and Oregon) have acted on doubts about the system by courageously stopping it, at least temporarily.

I hold my breath.

Newt Gingrich: Bad Historian / Bad Ideas

2011-12-11T13:15:00.000-08:00

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

2011-11-30T20:40:00.001-08:00

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

2011-10-19T09:27:00.000-07:00

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

2011-08-05T10:52:00.000-07:00

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 ...

2011-07-18T11:33:00.000-07:00

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

2011-07-10T13:13:00.000-07:00

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"

2011-07-06T09:31:00.000-07:00

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

2011-05-26T07:05:00.000-07:00

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

2011-05-08T12:43:00.000-07:00

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

2011-04-30T11:51:00.000-07:00

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!

2011-04-21T08:56:00.000-07:00

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?

2011-04-17T12:04:00.000-07:00

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.

Time Marches On

2011-04-02T21:14:00.000-07:00

When I was a kid we had one telephone. It was in the hallway near the front door, and when it rang, it was so loud you could hear it all over the apartment. You had to run to pick it up and then yell to your mother, father, or sister, if it wasn’t for you. There was a pad by the phone and several phone directory books nearby. The phone company owned and supplied the phones and updated the books. It was cool to see your family’s name in the book, but a bit disconcerting to notice how many others there were with identical or almost identical names, even in your own neighborhood.

Eventually, I bought a house and had extensions in almost every room. I had an answering machine and an unlisted number. I had to buy new phones and extensions. Later they were wireless and had antennas.

Now, I have a cell phone. It gets the internet with facebook, twitter, texting, so that I hardly ever get phone calls anymore. When it rings, I have to find it because it is the only one I have and it is very small so I misplace it. I have decided to keep it in one central room, probably the hallway near the door.

When I was a kid and got too sick to go to school, the doctor came to the house, told my mother to boil water for his instruments. He gave me a penicillin shot, charged my mother $10.00 which she paid in cash. He drove to his next stop in a Cadillac.

Now, when I am sick, I call the doctor’s office for an appointment. If he can fit me in some time that week, I go to the doctor’s office and sign in. I then sit and wait for an hour or two until I am called into one of the exam rooms. I wait there, until a nurse’s aid comes in with my file and takes my vitals.

Eventually, the doctor arrives. Sometimes he prescribes some medication for me. My co-pay is around $10.00 and he charges the insurance company $60.00. He drives a Mercedes. He doesn’t validate my parking.

When I was a kid, there were seven daily newspapers, four morning, three evening. My grandfather would bring three of them home from the newsstand and my father brought more home every night.

When Kennedy was shot, I grabbed all the newspapers that were left on the seats of the subway train and spent the weekend with the rest of my family and everyone else in the country, watching Cronkite, realizing that things were scary when he welled up, and removed his glasses to announce the time of death.

Now, I read the news on my cell phone (often while I am waiting in the doctor’s office). I saw the videos of the Japanese quake and tsunami, texted my son, brother, sister, nephews, friends, some others. I even spoke to one of them for a few minutes.

It is not the same.

Death Be Not Proud

2011-03-26T11:22:00.000-07:00

A few days ago, Donald A. McCartin, a retired Orange County Superior Court judge, wrote an Op-Ed piece in the L.A. Times.

Judge McCartin announces that he had presided over 10 trials which produced death verdicts.

"As a result," he writes, "I became known as 'the hanging judge of Orange County,' an appellation that, I will confess, I accepted with some pride."

However, he reports, except for one of the 10 he condemned who died of "natural causes on death row, none of the others have been executed. One of the worst, the infamous Rodney Alcala, who kidnaped and murdered a 12 year old girl (Robin Samsoe), had been granted a retrial and was resentenced to death.

Sympathy for the victims and families, as well as hatred of the crime (and the criminal) haunted judge McCartin for all the years of appeals and delays. He apparently carried bitterness in his hardened heart.

Now, the judge confesses to a change of heart.

Though "deeply angered by the fact that our system of laws has become so complex and convoluted that it makes a mockery of decisions I once believed promised resolution for the family members", the judge now is reconciled to the attitude of appellate courts that "death is different" demanding greater scrutiny and care in consideration of appeals. The judge "can live with" this reality.

In fact, he now regrets his support for the death penalty. he wishes he had sentenced Alcala, for instance, to life in prison withoiut parole, which would have spared the victim's family misery of thirty years of wait.

The family could deal with the fact that the killer "would be shut away, never again to see a day of freedom," and go on to put thier lives back together.

"And the People of California would (have saved) millions upon millions ... in tax dollars in this meaningless and ultimately fruitless pursuit of death."

Eliminating the death penalty, the judge concludes, would not only save all that money, but more importantly, would prevent "years of emotional torture for victims' family members waiting for that magical sense of 'closure' they've been falsely promised with death sentences that will never be carried out."

The judge then goes further, to state a truth which I long ago argued, spitting in the wind.

"There is actually, I've come to realize, no such thing as 'closure' when a loved one is taken. What families must find is reconciliation with the reality of thier loss, and that can begin the minute the perpetrator is sent to a prison he will never leave. But to ask them to endure the years of being dragged through the courts in pursuit of the ultimate punishment is a cruel lie."

"Let's stop asking people like me to lie to those victim's family members." The governor has the power to do what the state of Illinois has done, convert all 700 pending death row sentences to life without parole.

2011-03-12T17:26:00.000-08:00

The 160th anniversary of the start of the Civil War is approaching. Reading about that event, which historians unanimously view as a great turning point in our country's life, I keep coming across facts that tease my sense of Deja vu.

For instance, the Republican party's platform in 1860, on which Lincoln ran, contains the following plank:

"That the Republican Party is opposed to any change in our naturalization laws, or any state legislation by which the rights of citizenship hitherto accorded by emigrants from foreign lands shall be abridged or impaired; and in favor of giving a full and efficient protection to the rights of all classes of citizens, whether native or naturalized, both at home and abroad."

In the context of the era, this provision promised repudiation of the "know-nothing" and nativist movements that were the tea party patriots of the day.

Another plank demanded:

"That appropriation by Congress for river and Harbor improvements of a National character, required for the accommodation and security of an existing commerce, are authorized by the constitution and justified by the obligation of Government to protect the lives and property of its citizens."

And:

"That a railroad to the Pacific ocean is imperatively demanded by the interests of the whole country; that the Federal Government ought to render immediate and efficient aid in its construction; and that, as preliminary thereto, a daily overland mail should be promptly established."

Today, these planks would certainly be rejected by any Republican candidate as socialist.

Uncle Sammy update

2011-02-11T11:07:00.000-08:00

Some crew members of Cabin in the Sky

Some time ago, I wrote a post about my Uncle Sammy, my father’s brother who died in World War II. I related the amazing story about how I learned the details of his death more than 50 years after the fact. I included some of the documents and photographs, including one remarkable photo of his airplane in flight shortly before it was shot down. All of the information had been provided to me by a gentleman named Donald Olds, who is the historian of the 453rd Bomb Group Association, which I had come across while web surfing.

Now, I have gathered more information about my uncle and the other airmen who served with him from two recently published books.

The first is “An Emotional Gauntlet”, by Stuart J. Wright, University of Wisconsin Press, 2004. The book tells the story of the crew members of a “Liberator” bomber, nicknamed “Corky”, and its crew members. These young men were members of the 453rd, having trained at March Field, Riverside, California, and at fields in Idaho, before being stationed at Old Buckenham, England in January, 1944 along with many other B-24 crews of the 733rd Squadron.

The 733rd was one of four squadrons (732nd, 733rd, 734th, 735th), of the 453rd Bomb Group, which was one of three groups (including the 389th and 445th), which were part of the 2nd Combat Bomb Wing, one of five Wings of Liberators assigned to the 2nd Bomb Division, one of three divisions of the 8th Air Force.

According to this book, “from January to June, 1944, less than forty-one percent of airmen in the 8th Air Force survived fifteen missions ... Less than twenty-eight percent would survive twenty-five missions.”

The author writes that while at March Field, Lt. Donald Lawry, then “Corky’s” navigator, decided to marry his high school sweetheart. His pilot, Bill Eagelson, was to be his best man. "Bill and Lt. Samuel ‘Sammy’ Borenstein, a navigator from the squadron and one of Donald’s closest friends, went out and bought a wedding present and a card.” The wedding occurred at March Field in November, 1943. “Sammy Borenstein and some of the other officers from the 733rd were also present.”

Shortly thereafter the crews ferried their bombers across the U.S., down the coast of South America, across the Atlantic, up the west coast of Africa and eventually arrived at their bases in England to begin combat operations.

Wright notes that a big part of their mission was to lay the groundwork for the eventual invasion of Europe. He gives an almost day-by-day summary of their actions, which helps give a feel for what my uncles’ life must have been like in the months he had left to live.

February 5, 1944 was the first combat mission for the Group. Their target was an airfield in German occupied France, near Tours. On the 6th, the Group bombed a secret base under construction in Siracourt, France. Though the specifics were unknown to the crews, it was in fact a base preparing to launch V-1's the so-called buzz bombs, one of Hitler’s secret weapons. On the 8th, the officers celebrated Bill Eagelson’s 23rd birthday. On the 10th, they bombed an airfield in Holland, and an installation in Hamburg on the 11th.

February 20, 1944 began what was called “Big Week,” seven consecutive days of bombing intended to weaken the German air force. The USAAF and the RAF began round the clock bombing of aircraft plants and other factories, while escort fighter planes would weed out the German fighters that were lured into the sky in defense.

This is a reminder that the American bombers were not only part of a plan of “strategic bombing” intended to destroy military targets, and later to include targets which critics have charged were civilian and without military importance, but were rather chosen for purposes of vengeance, intimidation, or terror. Whatever, it is also true that, at this point in the war, it was crucial to insure air superiority over France and thus destruction of the Luftwaffe was paramount. The American bombers thus served as bait. By June 6, 1944, D-Day, the German Air Force was unable to hamper the invasion and the USAAF ruled the skies over France, and much of Germany itself.

The author writes that “during Big Week, Allied bombers dropped 18,000 tons of bombs on Germany, halving the planned fighter production for the month ahead and significantly influencing the course of the war. But this military success came at a price — from the 8th Air Force alone, one thousand five hundred eighty-seven American airmen were missing in action [either dead or prisoners].”

On February 22, Lt. Don Lawry, earlier described as my uncle’s close friend, whose wedding he had recently attended, was reported as “missing in action, presumed dead” after another B-24 to which he had been loaned as a navigator, crashed into the North Sea and exploded while returning from a mission.

On March 6, the entire Group joined other groups in a “maximum effort”, bombing Berlin. Wright’s lengthy and detailed description of the mission, based on eyewitness accounts, is breathtaking. He concludes, “The 8th Air Force lost sixty-nine bombers ... the heaviest losses it had so far endured in one day. Another one hundred made it back but needed major repairs.”

My uncle, it seems, was not the only Jewish navigator from Brooklyn in the squadron. Wright reports about Lt. Seymour Cohen, who became “Corky’s” navigator after the death of Donald Lawry. Cohen was born in Brooklyn, but unlike my uncle, he moved with his family to Bayonne, New Jersey, studied law at what is now Seton Hall in Jersey City. My uncle had studied chemistry at Brooklyn College.

Like many other young Jewish American men, Cohen was anxious to volunteer to fight Nazis. Also as a Jew, it was suspected that he was assigned to navigation because of the prejudice that “Jews are good with numbers.” Both of those notions may also have applied to Sam. Although not specifically mentioned in the book, I imagine that he and Seymour Cohen must have been friends.

[While describing the book to one of my friends, a lawyer who, like me, began in the public defender’s office in the mid-‘60's, I mentioned the above facts. He then related that he knew an older public defender named Marv Schwartz, who had been a navigator during the war, and had been the command navigator on the famous Ploesti, Romania oil field raid. Schwartz told my friend that his war experiences had haunted him. In fact, he later exhibited depressive behavior and died tragically.]

Wright also notes that: “there were several thousand Jewish fliers in the 8th Air Force but it was understood that in the event of being captured by German civilians or the military and taken prisoner, they might not have the same chances of survival. Jewish prisoners were more likely to be subjected to physical violence than were other captured airmen — and all airmen, whatever their religion, were vulnerable to lynching in captured by German civilians who sought revenge for Allied bombing.”

All airmen were provided with alternative “civilian” false ID papers, for use if they bailed out over enemy land and wanted to melt in before contacting an underground unit. American dog tag I.D.’s included obvious codes for religion: “C” for Catholic, “H” for Hebrew, etc. The Jewish airmen who bailed out thus had a problem: bury the dog tags and perhaps be called a spy, or keep them and be executed.

Of the more than eight thousand Allied airmen who were POW’s, several hundred were Jews in Stalag Luft I alone. “One survivor testified that when Heinrich Himmler visited the camp, he gave the order” to shoot all the Jewish POW’s, but the other prisoners threatened to riot, and the orders “were not carried out.” (P.171.) “However, in January, 1945, Jewish prisoners ... were moved to barracks on an isolated compound. Chilling rumors circulated that they were to be marched to death camps, but ... this did not happen. Meanwhile, the Jewish prisoners lived in constant fear.”

On March 18th, the 453rd’s Commanding Officer, Col. Joseph Miller, was killed on a mission. The Group was getting the reputation as a hard luck outfit. Miller was replaced by Lt. Col. Ramsey Potts, who was (!) twenty-seven years old.

On March 23, the Group bombed a railroad marshaling yard near Münster, Germany, incurring additional losses. The author observes, “In less than seven weeks the 453rd Bomb Group had flown twenty three combat missions ... and had endured severe losses of aircraft and personnel. A significant number of the original crews had either been killed or were now prisoners of war.... The survivors frequently found themselves sleeping in half-empty huts as the memories of names and faces grew forever hazy.” (P.172).

Nonetheless, despite the losses and recurring bad weather, the Group continued to fly missions. Toward the end of March, they flew several mission to targets in France, including airfields.

Then came the 27th of March. Here’s how Mr. Wright describes my uncle’s last mission. At about ten a.m., twenty-three planes of the 453rd BG began the mission to bomb a Luftwaffe training field near Pau, in southern France. “Corky” had to turn back due to mechanical troubles. But “Cabin in the Sky,” a B-24 from the 735th Squadron, the lead ship of the Group, went on. In addition to the regular nine man crew, it also contained the Group Operations Officer, Maj. Curtis Cofield as the command pilot, and as command navigator, Lt. Samuel Borenstein, from the 733rd.

Struck by flak, “witnesses counted as nine parachutes appeared from the burning 'Cabin in the Sky,' just before it plummeted into the Bay of Biscay, five miles off shore near the Isle d’Oleron at 1559 hours. Five of the crew were seen to be picked up immediately, presumably by enemy surface craft. However, no member of the crew was ever reported to be a prisoner of war and none of them was seen or heard from again. The remains of the ball turret gunner [S/Sgt. Clinton W. Caldwell, Jr.] were recovered by the enemy and were allegedly interred at sea. The remains of six others including Maj. Cofield were later washed ashore adjacent to La Rochelle, France. The other four members of the crew were not accounted for, and it was concluded that they were lost at sea.” (P. 175.)

Major Cofield was replaced as Group Operations Officer by Maj. James Stewart, who had been commander of the 703rd Squadron of the 445th Bomb Group, stationed as nearby Tibenham Airfield. His wartime service is chronicled in a fascinating book by Starr Smith, titled “Jimmy Stewart, Bomber Pilot," Zenith Press, 2005. “An Emotional Gauntlet” covers much of the same time and events from the perspective of the airmen who served under him.

It seems clear from the documentation and many interviews with those airmen that Jimmy Stewart was not merely a movie star celebrity who looked good in a uniform. He flew many of the most hazardous missions as a pilot of a B-24, even after assuming command responsibilities. Wright quotes one of the gunnery trainers at Old Buckenham, a Sgt. Walter Matthau, who claimed to be an aspiring actor after the war, about Stewart’s apparent charisma as he spoke to crews about the day’s coming missions. “I used to like to go to the briefings, because I’d like to see him do his ‘Jimmy Stewart.’” Matthau joined many others in admiration for Stewart’s competence as combat leader.

On the contrary, some made somewhat less kind remarks about Sgt. Clark Gable, who had been a gunner in the 8th Air Force, had flown five missions, been given an Air Medal, and been shipped home for bond drives.

Both books deal with the question of whether the 453rd was a “hard luck” outfit that suffered from low morale, and faces head on the inference that the cause was poor leadership. The deaths of the C. O., Col. Miller, and the G.O.O, Maj. Cofield, highlighted the high casualty rate suffered by the group. Other signs of problems, including an allegedly high number of aborted missions, and forced landings in neutral Switzerland, were subject of rumors. Smith’s book naturally credits Stewart with turning the tide, changing the luck.

Wright, however, points out that the causes of the better “luck” were more complicated than new leadership. By late Spring, the weather had improved, as well as the combat experience of the crews. Early on, German fighter pilots figured out that the pilots of the new group, whose planes were all marked with a black “J” in a white circle on the vertical tails, were green, and they took advantage of them. New equipment, improving bomb and gunnery skills, and most importantly, improved long range fighter escorts by Mustangs, which whittled down the Luftwaffe’s best pilots, accounted for the improvement.

In an epilog, Mr. Wright follows the surviving members of the “Corky” crew into their postwar life all the way to the end. Some were still alive as of the writing of the new Afterward, 2007. The descriptions of the passage of this generation gave me a melancholy feeling, realizing that my uncle Sammy missed a life and all that happened in the sixty-seven years since his death.

Some time after I posted about my uncle, I received a comment from a gentleman named Don Dzikowski, whose great uncle was also on “Cabin in the Sky” when all perished. S/Sgt. Jack T. Myers was the right waist gunner. (Like my uncle, he was not a regular member of this plane’s crew.) Mr. Dzikowski had also contacted Don Olds, received many of the same documents and photos I had, and was in touch with other family members who were trying to reconstruct the memories of their lost relatives.

In our memories their lives continue to be felt.

Sara & Michele's 19th Constitutional Dilemma

2011-01-27T08:36:00.000-08:00

Sarah Palin and Michele Bachmann pose a problem for progressives. Dedication to women's rights and free speech have been deep commitments for us. But we wouldn't be human if we listened to either of these harridans and didn't wish for repeal of the Nineteenth Amendment to the Constitution.

That provision, ratified in August, 1920, was hailed as the culmination of decades of struggles for the suffrage movement in this country.

During her much publicized speech in which she praised the founding fathers for their supposed dedication to the slavery problem, Bachmann neglected to mention the additional absence in the original Constitution of votes for women. How the founding fathers could have ignored the founding mothers is something Originalists do not seem to have learned.

On the other hand, maybe the founders were right after all. The record of women in politics has had it's blemishes long before Sara and Michele's emergence.

Even before they achieved the Constitutional right to vote, many states had accorded the privilege. The first woman elected to Congress was Jeannette Rankin, Representative from Montana. Her long career is noteworthy for her votes against declarations of war in World War I and World War II. Two mistakes.
The Eighteenth Amendment, known as Prohibition, was ratified in 1919. It's passage was the achievement of the temperance movement, which was dominated by women activists allied with religious leaders (WCTU). This too proved to be a bad mistake.
After getting the vote in 1920, women proceeded to elect Warren G. Harding, Calvin Coolidge, and Herbert Hoover.
It should also be mentioned that Paris Hilton, Snooki, Lindsay Lohan, and almost all Kardashins have the vote.
No, I am not advocating repeal of the Nineteenth Amendment. But wait, Sara & Mich', be careful. Tea parties may not always permit dainty china.

Pope John Paul II, miracle worker

2011-01-26T16:27:00.000-08:00

It was recently reported that Pope John Paul II has passed the first step toward sainthood. He has been “beatified” based on “proof” that he performed a miracle. A nun who claimed to be suffering from Parkinson’s Disease was “cured” after praying to him to intercede.

At first this struck me as rather anachronistic, a throwback to an earlier age when people believed in miracles. And then I thought again — more kindly this time.

For one thing, sainthood is merely the Church’s Hall of Fame. The rules for admission are similar. There is a 5 year waiting period from the end of the applicant’s career before eligibility. The requirements are stringent, demanding exceptional works in the chosen profession. A “miracle” is kind of like winning the batting title, home run record, career .300 average or 300 wins for a pitcher.

For another thing, Pope John Paul II seemed to be a kindly old man. He had a grandfatherly smile, and looked the way I thought a pope should look.

Unlike a majority of popes throughout history, he was not Italian. He was a Pole, his birth name was Karol Józef Wojtyła and although he lived under Nazi occupation at a time when many Poles were virulently anti-Semitic and cheerfully collaborated with the Nazi efforts to solve the “Jewish Problem”, he has been given a pass from the Bnai’ Brith, a watchdog group that checks into such things. The young priest, Father Wojtyla, was credited with acts of kindness toward and even saving a number of Jews.

When he became the pope, he had to deal with the controversial issues that beset all Catholic leaders. His philosophy was conservative, so he made gays and abortion rights advocates queasy.

But he was known for issuing a string of 100 apologies to make up for centuries of “mistakes” made by or ratified by or at least tolerated by the Catholic Church.

He apologized to Galileo Galilei for calling him a heretic for claiming that the earth revolved around the sun, which was contrary to Catholic dogma.

He acknowledged that the Inquisition may possibly have gone too far in torturing and executing innocent people.

He apologized to Jews for the blood libel, pogroms, and silence of the Church during the Holocaust and to Muslims who were killed by Crusaders.

He was sorry for burning Protestants, sorry for the Church’s violation of womens’ rights.

He apologized for Catholics who participated in the slave trade, and for Spanish Catholics who forcibly converted native South and Central Americans, killing and exploiting many.

These were the real miracles he performed and are the acts for which he should be remembered.

"Slick Barack"?

2011-01-23T09:50:00.000-08:00

In the always shifting high stakes political hold em game, President Obama seems to be making some clever bets. On the other side of the table the playas seem confused.

That's enough of stale deadens metaphors, whew.
It is interesting. Obama's poll numbers are up. The schizo electorate spanked him in November and he surprised by "getting things done" during the lame duck session. What he got done was to take hold of The Center while Republicans as a result of their win, lost the center and were pushed further toward the untenable extreme Right. Hahaha.

We oldies have seen this before. 1994. Clinton takes a licking after his and Hillary's health care crash. Newt becomes the Speaker of the House. He steers shapely Right. "the Contract With America" gave Clinton the opening to move to the Center, reduce deficits, fight crime, boost entrepreneurism (later known as "the dotcom bubble"). Newt sputtered as the economy improved and Slick Willy got re-elected.

It may be Deja vu all over again.

Obama Haters

2011-01-20T11:20:00.000-08:00

I have something to add to my last post. Trying to understand why the hatred of Obama is so vicious, I think I made a fundamental ... (sorry) ... basic error. I ascribed the attitude to irrational fears about the Constitution, which is thought of as scripture by a certain portion of the illiterati that dominates talk radio and cable commentaries.

Now, my thinking has, please pardon the expression, evolved. I noticed that Mr. Obama's uniqueness lies not in his political philosophy or his policies. Let's face it: he is not simply our first African American president. That in and of itself would be enough to set certain segments of the American electorate to boil their teapots.

But he is more than that. He is of mixed race heritage: an African father and a liberated midwestern latter day hippie intellectual white mother. As I have noted previously, his mom, Ann Dunham, was a product of the 1960's, a true believer in the notion that a better world could be created if people gave up biases based on race and gender.

I think that this fact blows minds of many whites, especially in the south and midwest ... and Alaska. It is the worst nightmare of those who were on the wrong side of the civil rights movement. The white supremacists always feared that "integration" (remember that notion) might result in mixed "mongrel" races.

That the races have been mixing ever since the beginning of time was an inconvenient fact ignored by the racial purists, many of whom have never accepted the outcome of the Civil War, much less the Supreme Court opinions, government policies, and societal evolution that resulted in people like:

Tiger Woods, Halle Berry, Derek Jeter, Blake Griffin ... and Barack Obama.

As Churchill noted about the Nazis, certain attitudes are so extreme and wrongheaded that they leave no ground for debate.

Take this Constitution from my cold dead hands

2011-01-16T10:02:00.000-08:00

From the perspective of The Left, the virulent hatred of Obama and so- called Obamaism and ObamaCare is puzzling.

He and they seem so moderate, so centrist, so tame. What are the lions of The Right getting so worked up about? Is it Gays in the military (which was delayed until a consensus of military brass including Defense Secretary Gates approved)? The threat (unfulfilled) to close Guantanamo? The continuation of the wars in Iraq and Afghanistan?

Okay, he is a Black Man. But not exactly a Jesse Jackson. His wife and children are also black, but they seem more into fashion, vegetables, and puppies than radical politics. Compare Michelle to Hilary.

Which of his policies are Marxist? Bailing out banks, General Motors, homeowners? Giving insurance companies an enormous pool of additional customers? What’s so revolutionary, so dangerous to right wing values in all of that?

The New Yorker this week contains a piece that made me nod in recognition and say, “Oh, now I get it.”

Jill Lepore, in “The Commandments ... The Constitution and its worshippers”, was about the analogy between constitutional originalism and biblical fundamentalism.

The common article of faith in the two belief systems is that change is bad. The authors of both documents are viewed as infallible and their products immutable.

So, when some of us got all gooey eyed hearing the ringing words about time for change we can believe in, many others were terrified to the point of rage by the same words and images.

To those of us who have been appellate court opinion watchers all of our professional lives, the originalist issue is ludicrous, some new clothes for an old emperor.

Back in the golden (or dark - depending on your perspective) age of the 60's and early 70's, the Warren court (and later, even the more timid Burger court) issued a series of opinions that marked serious change in constitutional interpretation. They struck down a hundred years of segregation, defined an array of rights for the accused, ended school prayer, recognized abortion rights and womens’ right to equality.

The backlash was immediate and vicious. The Right, from “The Minutemen” to “The John Birch Society” to William Buckley and Barry Goldwater and Ronald Reagan, ranted about liberal judges who were twisting the constitution to fit their own agenda. Legal scholars then molded this complaint into the originalist doctrine — no interpretation, just reading.

Liberal judges were accused of being result oriented which is a judicial sin. Judges are supposed to be philosophically neutral, objective, letting the chips fall where they may, even if they personally disagree with the result. The Law is the thing.

Over the next thirty years, Nixons, Reagans, Bushes, (and in California, a succession of similar governors) have appointed so-called conservative judges.

In this sense, conservative is a term of art, intended to be literal — their philosophy was to conserve the Constitution, based on the original intent of the founders.

Amazingly enough, this supposed insistence on strict interpretation and asserted revulsion against judges making law has led to results that conform to the political philosophies of the judges and those who appointed them.

The conservative judges proved to be just as result oriented as their liberal predecessors. In the last term the U.S. Supreme Court ruled struck down campaign contribution limits on corporations on First Amendment grounds --- although the Bill of Rights clearly was intended by and understood by the framers to apply to "The People", not businesses. The court also declared D.C.'s gun control law violated the Second Amendment, despite clear language and 250 years of precedent that its purpose was to insure "A well regulated militia ...."

In law school I was taught that legal opinions were supposed to begin with the facts, proceed to defining the issues, and then an analysis of the law and precedents, followed by a ruling and explanation of the reasoning. A corollary was that if the reasoning did not support the ruling, then judicial integrity required abandonment or modification of the ruling.

Intellectually dishonest judges begin opinions with the ruling they wish to make. They relate the facts that support it and ignore or rationalize away those that diminish their view. The issues are defined in ways that insure the preferred result. The reasoning consists of little more than rationalization, distinguishing opposing precedent without convincing analysis.

In a real sense, originalists are fundamentalists whose faith bars belief in evolution, whether as a science explaining the nature of the world, or as a metaphor for social progress ... that is, change. Their religion will not permit this.

Assassins

2011-01-14T11:26:00.000-08:00

Wikipedia reports that the word assassin was Arabic, which first referred to an Islamic sect of killers who targeted political and religious opponents. They also were reputed to do their evil deeds while under the influence of hashish.

This is interesting because modern American assassins seem to combine in varying mixtures the brew of political and / or religious zealotry with histories of troubled mental states which often involve self-medication by drugs.

Why is it that so many assassins are also poets?
Seung-Hui Cho, Va. Tech killer was an English major whose writing was central to his mental illness. Should any pretensions toward introspective creativity in our youth be a warning sign of a troubled mind?

The notion that possession of concealed weapons by more people make society safer is one that I would like to debate ... at ten paces.

How far is Tucson from Tombstone?

That is the town where the Earp brothers confronted the Clanton clan at the O.K. Corral back in 1880 or so. As I recall the legend, the Earps were town marshals who intended to arrest the gang members for violating the city ordinance that prohibited carrying of concealed weapons. So, maybe the pro gun people are right ... in an insane way.

Why haven’t those from The Right insisted that Jared Loughner be handled as they wish other “terrorists” to be: interrogated “forcefully” without reference to any Constitutional rights to root out the cause of his actions, whether he had help or is part of a greater conspiracy? Why do they not insist that he be transported to Guantanamo, tried in military court without access to other inmates or counsel?

How many will blame Loughner’s acts on “the government’s socialistic totalitarian policies” which naturally drive certain unbalanced and super sensitive souls to extreme acts?
This was the argument made by the extreme Right — including survivalists and white supremacists — about Tim McVeigh of Oklahoma City bombing infamy. He rationalized his “radicalization” on the events at Ruby Ridge and Waco.

This is not too far different from what was going on in the late 1960's / early 70's from The Left. Radicalized by Viet-Nam, freed from societal constraints by the prevailing anti-establishment rhetoric and counter culture, revolutionary cults like the SLA and Weather Underground (as well as parts of the extreme black liberation movement).

For those of us near the center, it is a bit hard to understand why the election of Barack Obama has stirred such hatred in extreme elements of his opposition. The anti rhetoric has seemed to be so absurdly hyperbolic that demogogic commentators who stirred up the rabble like Glen Beck, Rush Limbaugh and others seemed to us to be comical characters that few could be expected to take seriously.

How naive we were.

Luddite Department: The Eve of Destruction - Facebook and Google attack

2010-12-11T08:42:00.000-08:00

Facebook seems to be the latest target of the forces of reaction against technology. Every advancement produces a backlash induced by fear of radical change.

The Luddites were a movement begun @ 1812 against the advent of mechanical looms, which were seen as a disastrous example of the Industrial Revolution’s destruction of society’s stability. The mechanical loom, an invention which used a precursor of computer technology, eliminated the need for skilled textile workers. Cheaper unskilled labor replaced the more expensive workers.

In the 20th and 21st centuries, experts consistently predict doom as each new invention emerged. Civilization was threatened by the telephone, automobile, radio, motion pictures, television, the computer, cell phones, the internet.

On one hand, it is possible that the Luddites were right all along. After all, many economists predict that high unemployment is likely to be chronic, the old high paying skilled labor jobs permanently disappeared, replaced if at all by low paying service industry jobs.

And scanning the L.A. Times today, I ran across no less than four items that raise the “uh-oh” about Facebook, Google, and the internet:

Item #1. Page A20: MAN ACCUSED OF STALKING STUDENTS ON FACEBOOK.
A man who worked as a chef in Florida is accused of cyber-stalking and (I love this term) “attempted video voyeurism”. Wanting to see pix of naked girls and apparently too cheap to pay for a porn site, this doofus (allegedly) used various fake female names, claiming to be an alum of sororities of several southern universities to contact co-eds and demand that they send naked photos or else he (pretending to be she) would do nasty things to her. Using knowledge of intimate facts acquired through Facebook, the culprit convinced some girls that compliance was necessary.

Item #2. Page A22: NO FACEBOOK: IT’S A LOAD OFF.
Harrisburg (Pa.) University conducted an experiment. Students gave up social networking, including Facebook and Twitter, for one week. Survey said: 25% reported better concentration in class, and that lectures and seminars were “more interesting”. 33% claimed that the hiatus from the impulse toward networking reduced their stress level.

Item #3. Page B3. GOOGLE’S STREET VIEW DATA IS BEING SOUGHT.
The attorney general of Connecticut has subpoenaed Google’s records. Google has apparently admitted that it “inadvertently” “collected and stored data from unsecured Wi-Fi networks taken by cars that take photos for its Street View mapping service”. The AG demands the “consumer data” that was collected by this mistake for which Google has apologized.

Item #4. Page B3. POT FARM IS THRIVING ON FACEBOOK.
1.5 million users pay to play the Pot Farm game online. Facebook reportedly “made Pot Farm pull a hookah pipe from the game.”

Luddites beware.

A Dog's Life

2010-12-05T09:32:00.000-08:00

They say that one year of a dog’s life is equal to seven of a human’s. But that is misleading. After one year, the dog is an adult, far superior to the seven year old human. On the far end of the life, the analogy is also inapposite. A dog of ten years is almost certainly better off than a human of seventy.

The reason for this difference demands reference to Darwinian principles. To survive in the nomadic pack, dogs could not afford the lengthy weaning period of apes and humans. Nor could they survive the lengthy decline of health and vigor we associate with aging. If life could be depicted by a line chart, a human’s life would be more like a parabola, while a dog’s would be a long straight line preceded by a steep rise and ending with a precipitous drop.

Of course, now that we have reduced dogs to the status of pets, replacing the cruel truths of the pack with the pampering attentions of loco parentis, old dogs suffer age related ailments and are just as miserable as old people.

Well, almost as miserable.

We don’t know if dogs sense their impending death. We humans do and as we get older it becomes undeniable, rushing inexorably closer each moment. But for most of us death doesn’t come suddenly. It follows a long slow painful and increasingly miserable decline

My son is now thirty and in his recent visit I noticed that he has many grey hairs. Thankfully, his generation’s life expectancy will be far longer than mine. Medical advances will probably also soften the decline of his life’s parabola.

But these innovations can only delay, not eliminate the sadness that comes with awareness that you are on the downside of the parabola, life’s roller coaster ride. When I was a kid in Coney Island, I always knew when the ride was ending, slowing down after the final thrilling turn. As the car stopped, the bar unlocked and I wanted to go round again.

Two For The Road ... Sunday

2010-11-28T12:33:00.000-08:00

Two apparently unrelated news stories about the death penalty should raise new doubts about its viability. But probably won’t.

The LA Times reminded us that one of the reasons for the lengthy delays between trial and execution is the lack of available and competent appellate lawyers willing to commit to pressure packed habeas corpus representation.

Paranoid prosecutors whine about a conspiracy of defense lawyers who raise multiple issues merely to cause delays. Noting that other states don’t seem to have problems finding defense lawyers, outgoing California Supreme Court Chief Justice Ronald George explains that California’s standards of legal ethics and competence are just a bit higher than those of Texas, Florida and the several other states that rush to executions.

The fact that DNA as well as otter revelations (such as the defects in arson expertise) have proven (yes proven beyond any doubt) that many (not some, many) innocent people have been executed because of the insistence on speedy results rather than correct justice.

The New York Times previews a coming article in the New York Review of Books written by retired US Supreme Court justice John Paul Stevens, who expresses his regret about his votes to uphold the death penalty and his revised opinion that the punishment is unconstitutional. He had voted to uphold it because he thought procedures could be devised which would insure its fair application. He no longer believes that. He cites later opinions by the shifting majorities on The Court that undermined he faith in the law’s ability to devise fair procedures.

From the prosecutoria decision to seek death to jury selection to victim impact testimony to sentencing and appellate review, he concludes that the entire system of capital justice to be fatally flawed.

Justice Stevens was interviewed for CBS's "60 Minutes" to be aired tonight (Sunday, November 28, 2010).

If there is to be an educated and informed electorate to decide things like capital punishment, these are the facts that need to be exposed.

Free Speech And The Internet

2010-11-24T11:19:00.000-08:00

The joke goes: one of the cool things about Alzheimer's is that you learn something new every day. The same is true of old people and technology. My friend has recently become alarmed about a new - to him - phenomenon: the internet. Now retired from a life competing in the bloody killing fields of high school football, Valley golf courses and various courthouses, he had discovered surfing of the browsing sort.

Inevitably, he came upon a website which disseminated Tea Party treats with arsenic centers. Reviving his vigor for combat, he used his legal skills to argue against their vitriol, lacing his inconvenient but legally correct factual revelations with his own brand of counter vitriol. He posted scathing comments responding to know-nothing blog posts and other comments without mercy to the feeble-minded.

As a result, he found that eventually, his comments were deleted. He complained to me about this and I tried to explain the concept of "moderating" comments. "Where's the First Amendment?" my friend cried. "This internet thing is outrageous. This isn't free speech." To no avail, I tried some logic of my own with a legalistic Socratic analogy: "Don't newspapers censor letters to the editor that criticize their articles?" He was having none of it. "This is different. The internet is full of lies and no one can challenge them."

He decided to do more legal research. Having learned the magic word: "Google", he now spent his life in research. So he sent me proof. An article in "The Atlantic" online edition by Garrett Epps, a legal journalist and law prof at the University of Baltimore.

Epps reported on the Supreme Court oral argument in the so-called funeral-picketing case, in which a church picketed and on their website ridiculed the funeral of an American soldier, in protest over some perceived lack of religious education his parents had provided, involving gays in the military or some stupid notion. The parents were offended by the action and sued the church members for "intentional infliction of emotional distress." One problem for the plaintiffs was an element of such torts: that the "victim" has to be confronted by the action. Does posting on the internet meet this test. The statute and older case law never anticipated this issue - is the internet different from Hyde Park corner, or radio? If so, is the difference legally significant. And, hey, what about the First Amendment? The traditional refuge of scoundrels like Neo-Nazis, Daniel Ellsburg, and others.

So, here's what I wrote back to my friend.

Thanks for forwarding Garrett Epps’ opinion piece in The Atlantic. It is an interesting if superficial analysis of some of the issues presented to the law by internet speech. Although he makes a few cogent general points, I disagree with his tone, which is a bit hysterical and with his conclusions, which are speculative and argumentative with insufficient factual support.

The author’s citation of the Prop 8 case is inapposite. There, the court censored broadcast of the gay marriage trial proceedings on Utube. But that was well within precedent. The rationale was to prevent intimidation of potential witnesses. This is traditional balancing: fair trial vs. free press.

The reference to Breyer’s concerns about the potential need for new rules in the funeral picketing case is weak support for the case for “radical change” (i.e., reduction) of First Amendment protections. Breyer himself recognized that televising was not significantly distinguishable (in this context) from the internet publication in this context:

“So now we have two questions. One is, under what circumstances can a group of people broadcast on television something about a private individual that's very obnoxious? . . . And the second is, to what extent can they put that on the Internet, where the victim is likely to see it? Either on television or by looking it up on the Internet. Now, those are the two questions that I'm very bothered about. I don't know what the rules ought to be there.”

Breyer’s voiced worry about the Koran burning video disseminated to the world on the internet is also an issue that can be treated within the traditional context of First Amendment analysis. Breyer himself acknowledges this with his reference to Holmes’ fire in the theatre example, which has been a hypothetical bright line in the law for more than 100 years.

That doesn’t mean the internet doesn’t pose new and difficult issues for consideration by the law. It certainly does. As a source of unauthorized, unedited and unverified information, it is a dangerous weapon in the hands of advocates of any persuasion, left, right, lunatic.

But civilization has faced similar challenges many times. With the invention of the printing press the law had to alter its notions about slander, recognizing the greater danger of the written word, upping the penalties for libel. When technology permitted cheap publication, allowing access by all classes to “The Press”, its power was seen as frightening, even potentially disastrous by the elite educated leaders who previously held a monopoly on ideas and arguments. Eventually, the process became so cheap that anyone with a mimeograph machine in the basement could foment revolution, on paper at least.

Concerned “journalists” decry the lack of editorial control over content of blogs and other sites. This is true. It is also, as the author writes, “instantaneous,” “ubiquitous,” and “persistent.”

These issues create problems, but are they unique in the history of the law? Do they require reduction of our First Amendment protections? I am still a “free market” conservative when it comes to the “marketplace of ideas.”

I believe the time has long since past when people assumed that whatever was printed must be true. Of course there are some who will, either out of ignorance, or wishful thinking. The internet has not (yet) altered human nature. Humans often choose to believe and to act — based on faith rather than reasoning. Hatred or fear of Obama leads to “birthers” and this rumor is of the kind that would have thrived at any time in our history.

For example, Lincoln was widely reported to be and believed by huge portions of the public, north and south, to be part “Negro” - there was no Gallup poll back then but penny newspapers gleefully spread the rumors.

Frets about the accuracy of information on the internet seem to me to be not any different than what appeared in biased American newspapers for 200 years and more. Pro Hamilton / Federalist publications printed rumors about Jefferson’s love life. Jefferson even financed print reports about Hamilton’s scandals. The lies published about Lincoln keep historians employed. Fox News need not be on the internet to carry enormous influence in its biased reporting.

I am dubious about the ability of the nine members of the Supreme Court, especially those currently sitting, to define universal rules for internet censorship that would be effective and unharmful. Their “conservatism” may lead them to favor the “individual” over the “police power” of the state, whereas the “liberals” as exemplified by Breyer, are even more dangerous to individual liberties because they tend to look to government for rational regulation of behavior. But I don’t trust either side to be intellectually honest or intelligent in deciding such issues.

Having studied the history of the 4th Amendment, you know as well as I that it is always in times of crises and in extreme cases that our panic results in diminishing our rights. Once forfeited, these rights are difficult to regain.

[NOTE: My friend was able to gain a measure of revenge against the nutso webbies. One blogger or commenter suggested to his readers that our president was a usurper who deserved the fate or all such usurpers. My friend called the Secret Service, asking whether athreat against the life of the president was something they might be interested in knowing about. He received a cordial response and felt that he had succeeded in striking a blow against the blowhards in the war in cyberspace.]

Who says all wars are fought by the young.

The Shame and The Horror

2010-11-14T14:14:00.000-08:00

The shame of the Holocaust and its consequences continue to reverberate, more than a half century later. The L.A. Times reports that the French state railroad company, SNCF, which wants to bid on a high speed rail contract in Florida, has finally conceded its complicity in the transportation and “deportation” of more than 70,000 French Jews to their doom.

Collaboration has always been a sore subject with the French people who have a hard time swallowing the truth of their behavior during the Nazi occupation after June, 1940.

But you don’t need to visit Paris to find shameful actions and inactions regarding Nazis. The New York Times exposes a US Justice Department report of American use of Nazi scientists after the war.

Fifty years after the events, the government continues to conceal embarrassing details about this episode. In response to the Cold War, some Nazis were given safe haven here, used by U.S. intelligence agencies including the C.I.A., to follow East German Nazis who were aiding the Soviets. One was Otto Von Bolschwing, an assistant to Adolf Eichman. He died peacefully in the U.S. in 1981 before the O.S.I. could deport him.

Another Nazi that the U.S. government valued was Arthur Rudolph, whose story has been well documented and dramatized in other sources. The scientist was credited by NASA and the military with work on the Saturn 5 rocket. He had a leading role during the war in managing the slave labor used to build and maintain the German V1 and V2 rocket program. More slave laborers, mostly Jews, died in the launching of the rockets than were killed in England by the explosions caused by the rockets.

"Operation Paperclip", the program to bring these scientists, including the famous Werner Von Braun, to the U.S. is well known. The recently disclosed documents show details of how the C.I.A. conducted the cover-up to conceal the extent of their complicity in war crimes.

Baseball As Metaphor Department

2010-11-02T11:22:00.000-07:00

San Francisco over Texas equals a minor victory in what is likely to be a day of bloodbath for blue state vs red state symbolism.

Whatever, the win by the Giants is also payback for the Dodgers and their miserable fans this year and for the past 56 years.

As one of the few people still alive who actually remembers watching the 1954 World Series, the last time any Giants team won, it was gratifying to see this series - which, judging by the miniscule television ratings, I am also one of the few who watched.

A win is a win

2010-10-28T07:31:00.000-07:00

Went to court this week on one of the most difficult cases I've ever had. It's taken nine years to get to trial, partly due to my own incompetence in the field, partly due to the Byzantine complexities of the forms and code sections in this area of the law.

Came to court that morning not knowing if I'd finally managed to successfully maneuver through the paper maze into the clear. Met my opponent in the corridor outside of the court. Hadn't seen her for a long time, but she seemed to be bearing up well under the stress. We were friendly enough - had come to an agreement about the case long ago - were both anxious to get it settled and done with.

We waited in line to check in with the clerk, who took most of the drama out of the day by saying that this time he and the judge were satisfied with our forms. Whether that meant the number of them, the content or the appearance, I was not about to ask. One of the first lessons I learned in court was when you are going to win the point, stop swinging. Since I didn't expect to ever have another case in this particular area of the law there was no further need to educate myself for the future, as I always have done.

Amazing luck continued when we were told that we were first on what was a three page calender of trials and other matters. When the judge finally emerged of course, he took another case first, an off calendar matter that seemed to relate to a controversy about a trial that was to start the next day. Understandable.

When called forward, we took our places and were sworn in, questioned, and in a few more minutes, were told that I had won. My opponent was just as happy as I was. She laughed when I whispered, "Mazel Tov" and asked whether it was customary to put the glass together again.

Outside we wished each other well, exchanged best wishes to our families. It is unlikely that we will ever oppose each other again. She asked me if I was going to begin another such case. I was emphatic in denial. She claimed a similar disinterest in repeating the error.

It was a melancholy feeling to finish this case, but a win is a win.

The prosecution lies

2010-10-05T09:38:00.000-07:00

If you are one of the many (possibly majority) who believe that the ends of punishment of bad guys justifies any means and that ignoring technicalities like rules of evidence is okay when it comes to convicting criminals (“hey, they didn’t give due process to their victims, did they?”), then ... stop reading... S’long.
Anybody left?

The public’s negative image of lawyers in the criminal justice system, “informed by” (I love that phrase - it so often means “misinformed by”) pop culture references, has focused on defense lawyers.

Our profession always scores below used car sales on the integrity scale. Some deserve the shame, although I have found that lack of competence, effort, and concern for the client are habits that are far more pervasive than cheating to win-at-all-costs behavior.

BUT ... Today’s L.A. Times contains an article that is not news to many of us who have labored in the justice system for any length of time. A study conducted at Santa Clara University School of Law concluded that misconduct by prosecutors in California was widespread — tolerated with a shrug by the courts, their peers and superiors, and mostly by the public.

The article contains a few quotes from prosecutors in their own defense. One, who had been criticised in several appellate cases, shrugged that the court didn’t find that his misconduct resulted in an erroneous conviction.

I thought that was funny, like the doctor saying the patient would have died anyway, so what’s the rumpus! Chick Hearn’s dictum: “No harm, no foul.”

Yes, it is true that in the vast majority of cases, appellate courts find any misconduct by prosecutor’s to be “harmless error,” i.e., not enough to reverse a conviction because the appellate judges have reviewed the trial evidence and decided that the defendant was guilty anyway.

This result is not completely surprising, considering that almost all appellate judges are recruited from the ranks of prosecutor offices. Many consider their duties as judges simply to be an extension of their careers as prosecutors — they are still “administering” the law.

Thus, their view of evidence and their conclusions as to what a “reasonable” jury would have done if the prosecutor hadn’t concealed, misled, distorted, lied, and / or knowingly violated substantive rules of law is drastically skewed.

Even when prosecutors are caught committing serious misconduct they are rarely disciplined by their superiors. The culture — like that of the police — supports the “tough on criminal” mentality. Part of the reason for this state of mind lies in the perception that the system is biased in favor of the defense.

The culture bridles at traditions like “presumption of innocence”, “proof beyond a reasonable doubt”, and unanimous verdicts, which are perceived to place too high a burden on overworked and underpaid prosecutors.

The public’s perception in this case is based on realities that haven’t existed since telephones had rotary dials. Judges haven’t been “too liberal” in California since the 1960's.

A succession of conservative governors and draconian initiatives which constitute wish lists for prosecutors have tilted the scales of justice so far in favor of the prosecution that the most ambitious law students interested in criminal law careers almost invariably seek jobs as prosecutors rather than defense lawyers.

Public defender offices are now housed with shell shocked inmates, terrified of receiving yet another losing case.

Defending is no tea party. Sorry.

Eyewitness identification

2010-09-26T20:38:00.000-07:00

Tonight's 60 minutes repeats a story about how DNA finally proved a woman's eyewitnesss testimony identifying a man as her rapist wrong ... after he served 11 years in prison for the crime he did not commit ... and after the actual rapist had raped other women because she denied that he was the one who raped her rather than the person she misidentified ... and how the wrongfully convicted black man and the white woman whose testimony condemned him have become friends ... after he forgave her ... for which she was grateful for his expression of mercy.

When will we ever learn?

2010-09-17T09:23:00.000-07:00

Two news stories reported in today’s L.A. Times should be linked to appreciate their full import.

First, well hidden on page A12, is a report of “2 Innocent men freed in ‘79 rape and killing.” In yet another revelation triggered by DNA testing spurred by The Innocence Project, two men who served 30 years for crimes they did not commit were exonerated by a Mississippi court.

Since many of our Draconian laws have responded to anecdotal evidence, you have to wonder what it will take to change the public’s attitude about rape. The true incident of "The Scottsboro Boys“ and the dramatized fame of "To Kill A Mockingbird” wasn’t enough to raise skeptical eyebrows when black men are accused of rape, especially (but not exclusively) in the south.

I’ve reported several of these cases before:
A death row inmate cleared.
A personal acquaintance was freed after serving years in prison.
Alaska justice.
Post Mortem.

The second report involves the ongoing saga of Bruce Lisker, whose ironic connection to my own life I have previously observed. Lisker was released after a lengthy hearing by a federal judge who determined that he was wrongly convicted of the murder of his adopted mother in 1983. She ruled that his lawyer failed to adequately investigate evidence that pointed to a different suspect and noted that the police detective apparently committed misconduct in the investigation. Lisker was freed after 26 years in prison, while the prosecution decided whether to dismiss the case.

Now, the L.A. District Attorney’s office, which is notorious for its refusal to admit its own errors, is urging the Attorney General to seek his re-incarceration, by appealing to the 9th Circuit. The legal grounds for the appeal would be the hyper technical one that Lisker missed a deadline in one of his habeas corpus writs over the many years of his efforts to gain a retrial.

The law relating to habeas corpus writs, the traditional last resort of prisoners claiming injustice, has been stiffened to severely restrict access to the courts. The purpose was to assure "finality" in the system and to bring an end to multiple appeals and writs, in other words, to encourage speedier justice.

The nagging question that has been argued ever since is what about the inmate who isn’t just complaining that his or her conviction was wrongful because a perceived “technicality” i.e., a violation of some ephemeral constitutional right, but is strongly asserting his or her actual innocence, willing to accept the burden of proving it, as by DNA evidence or other convincing proof?

The 9th Circuit (claimed by conservatives to be the most liberal appellate court) recently denied release of a prisoner whose child molesting conviction was overturned by a district court, ruling that he was in fact innocent, on the ground that his habeas writ was “untimely” because he had failed to meet the stringent deadlines for filing his papers.

Will the California Attorney General try to apply that ruling to Lisker’s case? The A.G. has decided to delay deciding, to study the issues more fully. Lisker’s lawyer suspects the decision might have something to do with Attorney General Jerry Brown’s run for governor (and L.A. D.A. Steve Cooley’s run for the A.G. job).

That crime is a political football is no shock. In our democracy, politicians gain no benefit by asserting the rights of convicted criminals. This is particularly true this year of the tea party, the neo neo John Birch Society.

The News That (Gives) Fits ...

2010-08-19T15:04:00.000-07:00

THREE ITEMS TO MAKE ME SAD FOR MY COUNTRY:

ONE:
North Carolina: "State crime lab analysts omitted, overstated or falsely reported blood evidence in dozens of cases, including three that ended in executions, a government ordered audit found.

"Agents of the State Bureau of Investigation repeatedly aided prosecutors in obtaining convictions from 1987 to 2003, mostly by misrepresenting blood evidence and withholding notes from defense counsel....

"State Attorney General ... ordered the review after the exoneration of a man imprisoned for 17 years for a murder he didn't commit."

COMMENT: WHY IS THERE NOT A DEATH PENALTY FOR THOSE RESPONSIBLE FOR THESE ACTIONS?

TWO:
WASHINGTON (AP) — "President Barack Obama is a Christian who prays daily, a White House official said Thursday, trying to tamp down growing doubts about the president's religion. A new poll showed that nearly one in five people, or 18 percent, believe Obama is Muslim. That was up from 11 percent who said so in March 2009. The survey also showed that just 34 percent said Obama is Christian, down from 48 percent who said so last year. The largest share of people, 43 percent, said they don't know his religion."

COMMENT: NO ONE EVER LOST MONEY UNDERESTIMATING THE INTELLIGENCE OF THE AMERICAN PEOPLE.... YOU CAN FOOL SOME OF THE PEOPLE ALL OF THE TIME ...

THREE:
ORLANDO (FLORIDA) SENTINEL: "The Council on American-Islamic Relations (CAIR) is calling on American Muslims to respond to a Florida church’s planned “International Burn a Koran Day” by hosting educational “Share the Quran” Ramadan fast-breaking dinners (iftars) at which copies of Islam’s holy text will be distributed to neighbors, public and law enforcement officials and journalists. (The month-long Islamic fast of Ramadan will begin in August.)

"Representatives of the Dove World Outreach Center in Gainesville say they will burn a Quran outside the church on September 11 and are encouraging others to follow their example. This is the same controversial church that has been in the news for claiming that “Islam is of the devil” and for protesting recently outside a local mosque."

COMMENT: BOOK BURNING? NO MOSQUES IN NEW YORK? WHOSE NEXT? AREN'T WE PROUD?

... And You're Out (Finally)

2010-08-17T19:05:00.000-07:00

The L.A. Times reported today that a man who was sentenced to life in prison for entering a church to steal food as a "third strike" should be released from prison after a mere eight years. Even D.A. (and California attorney general candidate) Steve Cooley apparently claimed some credit for this, having cited it as one of the reasons for his policy not to seek a third strike conviction where the underlying crime is so minor.

His policy, by the way, results in another injustice, almost as egregious as the disproportionate life sentence of the three strikes law. By "striking a strike" on condition that the defendant plead guilty, the D. A. assures denial of a fair trial and a still outrageous sentence -- double the sentence that would have been given without a strike and a requirement to serve 85% (rather than 50%) of the stated prison sentence. Thus, a defendent committing a petty non-violent crime might still serve many years in prison.

The three strikes law, like many changes in criminal procedures over the past twenty years, is the product of the Initiative Process, based on propositions written as a wish list of District Attorney associations allied with so-called victims rights groups. Most of these laws take discretion away from judges and juries and give it to prosecutors. This increase in power has resulted in a corrupt, complacent, political, dictatorial prosecutor-driven justice system.

The cost to the society of these mistakes will be incalculable, but you can start by counting all the wasted money spent to incarcerate non-violent prisoners for many years.

Happy Birthday, Sis

2010-07-26T20:11:00.000-07:00

HOW IS IT POSSIBLE THAT THIS CHILD ...

BECAME THIS THIS WOMAN ...

my sister is 65???????????????

Happy Birthday, Risë Marlene.

Love, mort.

Sunday News Roundup

2010-07-25T14:55:00.000-07:00

After California Supreme Court Chief Justice Ron George announced his retirement, Governor Schwarzenegger nominated Appellate Court Justice Tani Cantil-Sakauye to replace him. She would be the first Asian (Filippino) woman in that post. What else we know about her doesn’t yield great optimism that she will improve the reputation of the court, which has lost most of its luster since the great days of CJ Roger Traynor in the 1960's and Don Wright in the 1970's.

After the massacre of Rose Bird and three other justices in the 1980's, the court swung to the Right and has stayed there under a succession of conservative Republican governors and a spineless nominal Democrat, Gray Davis. Justice Cantil-Sakauye, married to a retiring Sacramento Police lieutenant, was appointed to the bench and elevated by all the Republican governors since 1990.

Meanwhile the NY Times produced a lengthy analysis of the US Supreme Court and reached the startling conclusion that since CJ Roberts, it has become more conservative. They included a timeline that tried to fit appointees into slots between left and right ideologies, concluding that five of the ten most conservative justices on the court since 1937 are serving today: Thomas, Alito, Scalia, Roberts, Kennedy. How conservative is this group? All are rated further to the right than Justice McReynolds who refused to speak or have pictures taken with Jewish Justice Brandeis, and voted to upset all of FDR’s New Deal programs.

The NY Times Book Review includes interesting reviews of books about the Dreyfuss Affair, English novelists W. Somerset Maugham and E. M. Forster, and diplomat and political theorist George F. Kennan.

Last week, the sports pages were preoccupied with an issue that occasionally but persistently rears its ugly head and scares the hell out of the big big business of big time college sports.
A few stories coincidentally brought the oily mess to the surface. USC was drilled by the NCAA for violations relating to illegal payments given to sports stars in their football (Reggie Bush), basketball (O.J. Mayo) and womens’ tennis (?) programs. The second incident related to a number of investigations being conducted about similar violations in several other universities in the SEC. Some coaches, who were blamed for failing to enforce the rules blamed the agents, who they likened to pimps soliciting and corrupting their players (who I guess would be the whores?).

The background of this latest controversy is this. First, college sports business is big business. Billions are earned by the universities from television contracts, merchandising, etc, which the CEO’s of these institutions of higher learning claim are needed to support all the other sports programs that suck money from the schools (like Title Nine womens sports programs) which would sink otherwise.

Second, the competition for first rate “student-athletes” is cutthroat, leading to recruiting of players who not only wouldn’t otherwise qualify as “students” but would really prefer to go straight to the professional level.

Toward that end, ghetto playgrounds and small town fields all aroung this country — and the world — are scoured for prospects, whether they can read or write. Given scholarships and deported to university campuses, they are then expected to live like slaves and monks, work full time on their skills and fitness, while the archaic rules of the NCAA also demand they maintain C averages in academic classes.

If they are injured or found ineligible for academic or ethical failings, they may lose their scholarships and be forced to drop out of the university. After their playing days, those who fail in the pros (the average span of a career in the NFL or NBA is less than five years) usually find themselves back where they started: without marketable skills or the benefits of a college education.

There is a solution. It is radical, forces us to discard some antiquated ideas about “amateurism.” But we were able to overcome the naive prejudice when it came to professionalism in the Olympics. So, it is not impossible. Here’s my simple plan: pay recruits to play their sport for the university.

The pay or stipend can’t compete with what they might get in the pros, but the compensation must be sweetened by giving what the pros cannot give: an education. Not while they are employed in their teams, but after their college careers are over. (Except all student athletes should be offered classes in money management, communication, relationship counseling.
Promise every recruit free tuition for as many semesters as it takes to graduate, including prerequisite tutoring to bring the student up to grade level necessary to equal other matriculating students.

Registered and regulated sports agents should be permitted to recruit students just as other businesses recruit undergrad scientists and engineers, etc. They can sign the student and supplement the stipends.

Those few who become independently and permanently wealthy as pros should be expected to return a portion of their fortune to the university in return for their post career schooling.

The Radical Lawyer

2010-07-02T11:41:00.000-07:00

I just saw a remarkable documentary. PBS broadcast a filmed biography of so-called “radical lawyer” William Kunstler, titled “Disturbing The Universe.” The title is appropriately grandiose considering Kunstler’s outsized ego and his notoriety in his time, even if it barely overstates his impact on the cosmos.

Kunstler, I am certain, is a name completely unknown to callow lawyers and youthful humans born too late to hear the words like Attica, Yuppies, Wounded Knee, Black Panthers and Weather Underground in newspapers rather than textbooks. Unlike most current celebrities, his fame was earned for actions that mattered. He was the most famous criminal defense lawyer since Clarence Darrow, and for many of the same reasons.

In these days, the press covers the right wing Tea Party Movement as if it is a phenomenon unique to American experience and as if it parallels the Civil War as a revolt against the government. The anti-establishment movements of the 50's, 60's and 70's make the Tea Party seem like ... a tea party.

The documentary reminded me of Kunstler’s involvement in these causes and my ambivalent attitude toward him and what he meant to the legal profession, which I was then entering. My generation came to the public defender’s office with notions of becoming lawyers like Darrow and Kunstler, who could make statements, fight injustice, argue for causes. Instead, we were quickly disabused of that ambition. We were trained to defend individuals, not issues. We fought “The Establishment” — labeled in the title of the times: “The System”. But we fought it from within. We envied Kunstler and others of his persuasion for the righteousness of their arguments. But we also derided them for the ineffectiveness of their tactics of confrontation. Kunstler’s defiance of the system often hurt his clients while it aided his “causes”.

Kunstler’s general philosophy was that the law should be violated when it interfered with the greater goal: social justice. There was obvious truth in this as reflected by tactics of non-violence, civil disobedience, and peaceful resistance. Kunstler and his allies, however, carried it to another level, as the radicalized protests escalated. He rationalized. supported and justified radical violent solutions to social injustice. He went beyond advocacy as a professional defender of the “unpopular client”, he was an activist, a strategist, an abettor of radical acts.

During his defense in show trials, his blatant expressions of disrespect for the legal system, his pandering to the press, his distasteful craving for attention, his self-indulgent ego massaging he enjoyed often diminished his reputation as an effective defender.

The documentary depicts William Kunstler as an example prototype of his era. During the 1950's he had been comfortably entrenched as a mildly liberal minded New York Jewish lawyer, a World War II veteran, practicing civil law and living in an upscale suburb with wife and children.

His first test came when he joined the ACLU and was asked to advise civil rights activists in the south. His experiences there raised his consciousness and of course excited him with the prospect of making a real difference.

Once his reputation was established in this movement, it was easy for him to dive into the deeper waters of increasingly “radical” campaigns. He was in his 50's in the 1960's and the youthful protesters of war, racism, societal injustice needed a middle-aged lawyer who could be spokesman, strategist, counsel, and ultimately, co-participant.

Eventually, many of Kunstler’s generation experienced a deeper, more radical personal transformation — a mid-life crisis of conscience and search for spiritual meaning, a striving for youthful relevance. They divorced, discarded their ties and station wagons, tried drugs, grew long hair and sideburns, countered the culture with a vengeance.

Kunstler was eager to do all of it. He represented Father Berrigan for draft card burning, the Chicago Democratic Convention protesters in the era’s most notorious political trial known as “The Chicago 7". The press vilified him and the Left glorified him. He was certifiably famous. Kunstler was sentenced for contempt when he accused the judge (the notorious symbol of establishment injustice, Julius Hoffman) of fascism when he ordered pro per defendant Black Panther Bobby Seale to be bound and gagged because of offensive outbursts in court.

The high point of Kunstler’s fame combined with effective righteousness came when he defended Dennis Banks and Russell Means, leaders of AIM (American Indian Movement) who had occupied federal land at Wounded Knee to protest American mistreatment of native Americans. He not only won acquittal, but convinced a rather conservative federal judge that the government had committed massive misconduct in the case. Kunstler admitted that he had begun the case believing the judge to be a racist, but grew to respect him as he ruled correctly time after time. To us, this case proved an important principle that Kunstler could never fully embrace, that a person committed to the legal system could be decent, honest, just.

When he tried to use his fame and credibility with radicals to negotiate peace at Attica and failed miserably, he was blamed for naive misjudgments in advice that many believed contributed to the horrible climax. To many, including his daughters who were very young at the time and now are the co-creators of this documentary of their father, Attica was a depressing turning point. For the rest of his life, Kunstler represented clients who were not only “unpopular” to the establishment, they were often despised by his presumed constituents, The Left.

He defended the accused in the 1993 bombing of The World Trade Center, and the accused killer of radical Jewish Defense leader Meir Kahane, who had preached violence against anti-semitism. A young Palestinian man was arrested, gunshot residue on his hands. He denied his guilt in the face of strong evidence. Kunstler won acquittal and was excoriated by the liberal Jewish community as a “self-hating Jew”. His house was picketed, and his young daughters felt shame along with fear. They asked, “Daddy, do you think he was guilty?” His lawyerly answer that the question is irrelevant of course disappointed them.

He defended a drug dealer who shot police officers who had come to “arrest” him. He won an impossible acquittal on self defense. The press, politicians, and the public were appalled.

He defended Yusef Salaam in the sensational “Central Park Jogger Case”. Salaam with other African American youths were arrested for raping a white woman while rampaging through the park “wilding” which the press attributed to Tone Loc’s rap classic “Wild Thing.”

It was another in the long line of perfect storms that conspire to create spectacular pop culture moments in courtrooms. Four of the defendants had confessed after many hours of interrogation, implicating Salaam, who was the only one who did not confess. They were all convicted, although no DNA evidence or eyewitness identifications were produced. Liberal New Yorkers joined The Daily News in the hysteria that polarized the city by race and class, calling for all but lynching of the accused defendants. `

Recently, the convictions were overturned when a prisoner serving life for serial rapes and murder confessed that he did it, acting alone, and DNA tests confirmed it. The New York police had obtained false confessions. Kunstler did not live to see this reversal. He died in 1995.

The legacy of lawyers such as Clarence Darrow and William Kunstler is mainly positive. The human frailties they displayed – attributed to their outsized egos and the hyperbole demanded by the pressure of their times – can be understood and balanced against the courage they displayed. They used their skill and energies mostly to achieve good, fighting against perceived injustice. History has ratified most of their choices. They fought for the right side most of the time. For a lawyer, that’s a pretty good epitaph.

Whining in The Gulf

2010-06-29T10:33:00.000-07:00

Are you getting tired of the whining by officials and residents of Louisiana and Florida about the disastrous results of their own greed and negligence?

I am. These deep crimson states of the deep south have long supported the oil industry and other business development over traditional concerns about the risks to the environment. Now, they moan about the clean-up defects from one side of their mouths while from the other side they bemoan the loss of oil industry jobs.

Although they consistently opposed meaningful federal regulation of businesses, and favored jobs vs environment, politicians and residents in this region have the gall to blame the federal government for failing to regulate the oil companies and for failing to clean up the mess that non-regulation created.

In fact, we citizens of the rest of the country should be enraged at the behavior and neglect of these states. Every state has a responsibility to preserve its environment resources. This is true of our parks and coastlines. It is in our best interests to do so and it is our duty to do it for the benefit of all and for future generations.

Now, Louisianians and Floridians are reaping the harvest they sowed ... oil on their shores. Shame on them.

Brooklyn 7, L.A. 1.

2010-06-27T10:25:00.000-07:00

This week, the Los Angeles Times commemorated the interleague series between the Dodgers and Yankees by printing the results of a poll of "experts" called the "all-time Dodgers, Yankees rosters."

What I found interesting was that, although the Dodgers have been in L.A. for more than a half century (having played more games in Chavez Ravine than they did in Ebbets Field), the consensus of experts was that 7 of the 8 best Dodgers who were position players were those who played (most of their careers) in Brooklyn rather than in L.A.

[HOF = Hall of Fame]
1b: Gil Hodges (1943-1963); Second on Dodgers' home run and RBI list. [not in HOF enormous injustice].
2b: Jackie Robinson (1947-1956); Averaged 95 runs in 10 seasons (refused trade to Giants, retired). [HOF]
3b: Ron Cey (1971-1987) 20 plus homers 7 times as Dodger. Great nickname: “The Penguin.”
Ss: Harold “Peewee” Reese (1940-58) Team leader in runs, #2 in hits. [HOF]
C: Roy Campanella (1948-57) 3 time NL MVP, 9 time All Star. [HOF]
CF: Duke Snider (1947-64) Team leader in HR’s, RBI’s, extra base hits. [HOF]
LF: Zack Wheat (1909-27) 2,884 hits, 1,289 runs. [HOF]
RF: Carl Furillo (1946-60) Lifetime BA .299 with 1,1910 hits, 1,58 RBI; “The Reading Rifle”.

I admit that the consensus was not unanimous. Some idiots suggested that Steve Garvey replace Hodges[!] What next, Lopes over Jackie? Okay, a fair argument for Maury Wills over Peewee and for Tommy Davis over Furillo. But that's about it. I might counter with Jim Gilliam or Billy Cox over The Penguin, if you want to play that game.

As to pitchers, they chose Koufax, Drysdale, Zach Wheat (who even predates my memory) as well as Don Sutton, Fernando, Orel. But they left out Newk and Oisk. In relief: Gagne [a steroid cheater] and Labine.

All-time owner? I'll take Rickey over O'Malley any day.

And what about Vin Scully? The all time best baseball broadcaster, who spans both eras. Wonder who's on Vin's team? Was Red Barber better than ... who are the other guys out here?

Okay, so I am biased. Sue me.

Feel No Pain

2010-06-13T07:53:00.000-07:00

Bijou would come home from a frustrating day at work
and want to talk about it
... and talk about it.
I would come home from a frustrating day at work
and want to forget it.

So she talked
... and I listened.
Then I made a terrible mistake.
I suggested solutions for her problems.
She became enraged.
"Don't solve my problem.
Just listen to me and empathize."

I protested.
I am a lawyer,
trained to hear my clients' problems
and to solve them.
Imagine if I told my client that I empathized,
and then left the jail.

Eventually I learned to speak the language,
to sense the warning signs
that marked the beginning of the burst of emotion
that demanded attention.

Bill Clinton is credited
with mastering personal politics.
He made everyone,
especially female voters
feel as if he understood
and empathized
with their problems.
In the jargon of the time,
he felt their pain.

Barack Obama has a hard time with Clintonspeak.
His approach is more lawyerly,
less emotive.
In a crisis he will first seek facts,
then seek solutions.

The press and shallow observers slam him
for failing to show emotion
(i.e., anger) at enemies of the state
-- like BP and GM.
The media wants him to be more like an action star
swearing revenge.

Would they prefer the G.W. Bush tactic
of manipulating the overwrought emotions
of the nation following 9/11
to lead us into disastrous wars?

Give me libertarian or give me breath

2010-06-12T20:21:00.000-07:00

Chutzpah is blaming the the BP oil spill on the federal government after years of insisting with equal vigor that government should not interfere with business, especially the big ones involving national security - like oil companies.

Both Left, Right and Center share responsibility for this and other crises of our time. De-regulation began in the 1970's with Jimmy Carter, accelerated under Reagan, and was embraced by Clinton, who declared that the era of big government was over.

There is grumbling on the Left because Obama's style doesn't permit him to rant and rave. He has not threatened to nationalize the oil, auto, coal, financial, or insurance industry as much as his supporters would wish him to do it. This is the same Left that called Bush an immature cowboy for his ravings about terrorism and macho threats that alienated our allies and independent nations.

The Right also blames Obama for the recession, for bailing out companies whose failure would have destroyed our economy for fifty years rather than the time it will take to dig out of the mess they left for him.

The Right laid the groundwork for the worst epidemic of corporate incompetence and greed since 1929. From Exxon to Enron to Goldman Sachs, from General Motors to Toyota, from coal mines to oil rigs, big government cannot compete with big business for gross negligence, fraud, or greed.

Bush / Cheney produced an era of incompetent and corrupt government that challenged the Harding administration of the early 1920's - which also permitted big oil interests to buy the government. In Afghanistan and Iraq, in New Orleans, in Texas, on the coastlines, on Wall Street, government policies resulted in disaster.

Every crisis Obama has had to deal with for the past year and a half has had roots deep in the past. The truth is that there was nothing more he could have done in the time he had to forestall or even mitigate the damage.

Calls for kicking ass are like cries to shoot first and ask questions later. It is akin to the traditional witch hunts and scapegoating that accompanies every crisis.

SCOTUS TWINS

2010-05-18T08:48:00.000-07:00

Observations about the latest SCOTUS rulings:

In one case, the court found LWOPP sentences for juvenile violative of 8th Amendment (cruel & unusual punishment) except for murder. In another case, the court upheld a federal law authorizing extended civil commitments of sex offenders based on threats of future danger to children based on proof of propensities to commit sex crimes.

For those interested in the soap opera of shifting alliances on the court, the usual suspects dissented in both case: Scalia and Thomas. In one case, Roberts joined the majority holding but not its rationale. In the other, Alito did the same. Kennedy wrote the majority (5-4) opinion in one, Bryer the other (7-2).

In the debate of left vs. right, so-called “libertarians” immediately decried both rulings. One interfered with states eliminating vicious teenagers. The other upheld a civil law based on a premise that was not literally found in the Constitution. Conservatives will rage about reference in the court’s opinion to international standards of morality in sentencing.

The left is likely to approve the juvenile decision but might be (at least should be) troubled that the court was not troubled by a law that permits lengthy involuntary incarceration based on unreliable medical predictions of future dangerousness.

As Solicitor Gen, court nominee Kagan had argued support for the federal law, thus making new enemies, or at least reinforcing the enmity of her opposition.

In practice, neither case has much impact in California. The vast majority of our vicious juveniles with LWOPP sentences are there for murders. Only a few crimes (eg. kidnap for ransom) authorize that sentence and resentencing to life with possibility of parole or a sentence of years will pose no great barrier to a virtual life sentence. Adding up of consecutive sentences including the many enhancements provided by the criminal statutes can result in sentences like: 184 years, of which the criminal must serve 85%.

California has a law analagous to the federal civil commitment to extend incarceration of sexual offenders. Our sexually violent predator (SVP) law is being applied every day in our courts.

Short, fat and ugly: You're under arrest!

2010-05-16T09:50:00.000-07:00

They got grubby little fingers
And dirty little minds
They're gonna get you every time
Well, I don't want no short people
Don't want no short people
Don't want no short people
'Round here.

“Short People” By Randy Newman

Today’s New York Times reports that some economists argue that short people are more apt to become criminals. If the poor shrimp is also fat and ugly, look out. He is more likely to fail in school, romance, and business.

You may be skeptical about this latest study, call it junk, point to it as just more evidence that the term social “science” is absurd. Support for this view may be found in the details of these studies. For instance, the economists examined records from the last three centuries to conclude that “shorter men are 20 to 30 percent more likely to end up in prison than their taller counterparts, and that obesity and physical attractiveness are linked to crime.”

Although they found from 19th century prison records that “increased body weight was associated with a lower risk of crime,” the trend has reversed in our time. Now, “being overweight is linked to a higher risk of crime.” According to the Times article, the studies attribute this to the difference in the labor market — from manufacturing which favored strength and endurance, to service jobs which values attractiveness and self-esteem.

It starts in school, where shorter students get lower grades, have more behavior problems (seeking attention?) and participate less in clubs and sports, which leads to fewer social connections. From birth, medicine correlates development with size – height, weight — and nutrition, general physical and mental health, resistance to disease are all pinned to these issues. Poverty has long been associated with physical disabilities.

On the one hand, you may say, “Duh!” You need studies to figure out that socially scorned children become failures in life? On the other hand, you may be appalled by the echo of Social Darwinism in the claim, something that history teaches us is a slippery slope leading to racism, Nazi ideology, and genetic preferencing.

Another study found that Americans are getting shorter and fatter compared with our history and with other industrial nations. Some speculate that our deficient health care system (compared with Europe’s) is the culprit. For others, the blame is placed on — guess what — immigration.

Yes ...
Give me your tired, your poor,
Your fat, Your short, Your ugly,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.

[apologies to Emma Lazarus]

Findings that obesity, unattractiveness, and diminutive stature are disadvantages in the labor market should be no surprise. The scholars are quick to admit that they cannot discern a “cause / effect” relation between the two. The same can be said of the link to crime, although it demands no leap of logic to make the jump.

My own experience in my life of crime doesn’t really support the thesis. I cannot generally conclude that my clients have been fatter, uglier, or shorter than the average. Actually, they can more accurately accuse me of those traits. Lately, I have found that obesity has thrived among jurors, prosecutors, and even some defense lawyers.

Will there be a time when the criminal law’s arsenal of social sciences which already include many dubious theories and prejudices adds physical attributes to the available defenses and excuses? Will prisons become fat farms? Perhaps botox, liposuction, and spine stretching should be added to rehabilitation techniques.

Now, that might really help the economy.

Stupid Criminal Tricks

2010-05-14T08:56:00.000-07:00

The reports about the Times Square bomber's incompetence reminded me of my many clients who have done similarly dumb things in their frantic attempts to foul up their lives ... and my chances of winning their cases.

Example: A client entered a McDonald's, ordered a Big Mac, removed a twenty from his wallet. When the register was opened, he pulled a gun, took a handful of cash and fled ... leaving his wallet on the counter. Later, while police were writing the info from the ID in the wallet, he returned, wishing to claim his lost wallet and was arrested.

Some conservatives have withheld acclaim for the capture of Shahzad because of his ineptitude which ably abetted his pursuers. What the critics igore is that his flaws are not rare. They are common among wrongdoers, whether from nerves, fear, or a self-destructive impulse (see introduction to Borenstein's Law for a more thorough explanation of the phenomenon).

It is this same trait that impels captured criminals to talk freely and willingly to authorities even after warned that "... anything you say may be used against you ..."

Example: In a recent case, a D.A. provides a CD to me with a twinkle in her eye. "You're gonna love this," she chuckles. I listened and chuckled (ironically).

It was a recording of a phone call made from the jail to my client's friend (who later became a co-defendant). My client's voice is clearly heard making a number of incriminating statements in a confidential tone, some whispered, some in street slang, but all clearly inculpating.

Periodically, he is heard to pause while a recorded voice interrupts his conversation with the following: "Warning: calls from the jail may be monitored for security reasons ...." After hearinjg each loud warning, my client simply continues his admission.

Goodnight, Miranda

2010-05-05T19:08:00.000-07:00

The current controversy about providing Miranda warnings to “terrorist” suspects tickles me. I have been dealing with it for more than forty years. It is one of the most misunderstood rules and has been controversial since it was issued, in 1966.

But the outcry about the possibility of terror suspects having and demanding their rights under the Constitution before providing intelligence that could lead to arrests of other plotters and finding evidence of future crimes is rampant. The amount of misinformation and hysteria is amazing.

This is Yahoo! search screen is a small sample:

"782,136 results for “miranda warning terrorist…:

"CNSNews.com - Holder: Miranda Warnings for Terrorists Won't ... Holder: Miranda Warnings for Terrorists Won't Harm Interrogations ... If the suspected terrorist IS AN AMERICAN CITIZEN, miranda and right to an attorney are ..."

"CNSNews.com - Reading Miranda Rights to Terrorists Is 'Crazy' and 'Stupid,' Say GOP Congressmen ... Miranda warnings were mandated by a U.S. Supreme Court decision that said domestic law ... "

"Will terrorists be given Miranda warnings? Saturday, February ... matter of terrorists and Miranda warnings (and by extension the trying of these sub ..." lodinews.com

"Miranda Rights for Terrorists. BY Stephen F. Hayes. June 10, 2009 2:05 PM ... many Americans are familiar with the Miranda warning - so named because of the ..." weeklystandard.com

"Jo's Cafe " Miranda for Terrorists? Miranda for Terrorists? Tuesday, 27 January 2009, 5:30. As Dear Leader Obama closes Gitmo ... expressed about rights for these terrorists under the Miranda Warning. ..." joscafe.com

"Conservative View Point, Political Blog, Conservative ... Terrorist Miranda Warnings. Posted by Bill Patchett on Saturday, November 14, 2009 12:44: ... If we read these terrorist Miranda warnings we would have obtained ..." aconservativeviewpoint.blogtownhall.com

"Obama and Miranda Warnings - The Hill's Pundits Blog ... Obama and Miranda Warnings. By Ron Christie - 06/11/09 09:56 AM ET ... him that terrorist suspects were being read Miranda warnings prior to interrogation. ..." thehill.com/blogs

"DOJ Confirms FBI is Reading Miranda Rights to Detainees in ... the FBI is reading Miranda rights to terrorist suspects in Afghanistan: "There has been ... Miranda warnings. In September 2008, when McCain-Palin pulled ahead of Obama..." dailyradar.com."

Without hysteria or hyperbole, these are the facts as I know them from forty years of criminal practice:

The Miranda holding was intended to enforce the Fifth Amendment’s command that no person shall be compelled to give evidence against himself.

Courts long ago decided that any admission or confession of guilt by a suspect must be shown to be voluntary rather than coerced. The landmark case for this rule is Bram v. U.S., decided as far back as 1897.

In the first half of the 20th century, American courts grappled with the problem of coerced confessions. Common police tactics throughout the country ranged from the less than subtle “rubber hose” to “the third degree” and all the now familiar psychological techniques that border on torture.

Courts responded with occasional but ineffectual rulings that sought to deter such police misconduct until in 1966, the U.S. Supreme Court finally issued its Miranda decision, which required police to warn suspects in custody that (1) they have a right to remain silent, (2) that anything they say can be used against them, (3) that they have a right to have an attorney present before questioning, (4) that if they asserted the right to remain silent, no further questioning could be done. Failure to comply with the rule meant that any statement obtained in violation would be inadmissable in the suspect’s trial (an expansion of the exclusionary rule that courts had imposed for violations of the 4th Amendment’s prohibition against unreasonable searches).

The holding met hysterical opposition as soon as it was issued. Police advocates cried that it would tie their hands, prevent them from “solving” cases, free the guilty. Conservative legal scholars criticized the Warren court’s policy of expanding the exclusionary rule — punishing the society for the “constable’s blunders.”

At the time, more competent and less paranoid law enforcement authorities pointed out that the ruling would be beneficial to police work, demanding that detectives continue to investigate, finding solid evidence rather than lazily relying on unreliable coerced confessions to make their cases.

However, the golden age of the Warren court passed quickly. New “conservative” appointees over the next forty years narrowed the ruling in many ways. Among these changes: narrowing the definition of “custody” and “interrogation”; broadening the permissive form of the advisement. The Supreme Court held that detectives can receive statements even if Miranda is not followed. The prosecutor can’t use the statement in its case, but if the defendant testifies contrary to his statement, it can then be used to impeach him.

Equally important, the Supreme Court has refused to demand a high degree of proof in this area, turning back calls for audio or video taping of the interrogation process to insure its fairness.

Of course, the major defect in the law has always been apparent to anyone within the system. Before Miranda, police were able to coerce confessions and then lie about it in court. After Miranda, they were still able to lie about that and also lie about whether they advised the suspect of rights.

Two important limitations to the Miranda rule are worth mentioning. First, the Supreme Court carved out what it calls “the public safety exception”. In the Quarles case in 1984, the Court held that police could continue to question a suspect without advisement if there was an imminent threat to the public. There, a gun was loose; in other cases it has been explosives, dangerous contraband. The Court did the same in the 4th Amendment (search and seizure) context, creating an warrant exception for “exigent circumstances”.

Beyond all the law, which clearly present few obstacles to questioning of terrorist suspects, is the aspect of human nature that we in the system know all too well. The fact is that criminal suspects in general and people who commit crimes for political motives in particular are more than willing to talk — without counsel or against advice of counsel.

Two Lives

2010-04-29T09:29:00.000-07:00

Two men died recently. Their pictures depict similar looking men, both appear to be gentle elderly men. Both were born in Europe and left after surviving World War II. But the circumstances of their survival couldn't have been more different, the lives they subsequently led were opposites, and the vast differences in their lives are notable and deserving of memory.

Harry Drexler, the father of dear friends, passed away recently. His life was an admirable one, overcoming enormous obstacles to thrive in America. He should be remembered as a much loved and admired family man.

The death of a man named Paul Shaefer was reported today in the Los Angeles Times. His life was a despicable one, taking opportunities to victimize and damage human beings. He should be remembered, if at all, as a monster.

These are their obituaries as each appeared in the Los Angeles Times.

Harry B. Drexler, June 8th, 1919 - April 23, 2010of North Hollywood California, passed away Friday April 23, 2010.
Harry Drexler was born in Poland, on June 8th 1919. Harry miraculously survived the Holocaust while almost all of his family perished. Harry was the devoted husband of Rena Drexler for 63 years, the father of David Drexler and Nina Guttman, grandfather of Jonathan and Justin Drexler, Leora Lang and Elana Guttman, and great-grandfather of Shai and Gabriel Lang.

After the War, he met Rena, a survivor of Auschwitz concentration camp, in Germany. They married and immigrated to the United States in 1951.

In 1957, Harry and Rena opened Drexler's Delicatessen, the first kosher deli in the San Fernando Valley. Drexler's Deli became a famous landmark in North Hollywood, with Harry and Rena serving as pillars in the growing Jewish Community.

Harry worked tirelessly, every day, except the Sabbath, as a butcher, providing for his family and serving the needs of his customers and community. With a strong work ethic, and unwavering family values, Harry successfully achieved the American Dream and built a strong foundation for his family. Harry always cherished his family and the traditions of the Jewish faith.

He was grateful for the freedom, liberty and opportunities in America. He deeply loved his Dodgers, Lakers and America.Harry will be fondly remembered as a man of few words, with a big heart. He was the rock-solid anchor of his family and community.

And this is the obituary of the other man:

Paul Schaefer, a former Nazi Luftwaffe medic who founded a secretive, commune-like colony of German immigrants in Chile, died of heart failure Saturday in a Chilean prison where he was serving time for child molestation and human rights abuses dating to the dictatorship of Gen. Augusto Pinochet. He was 89.

Schaefer immigrated to Chile from his native Germany in 1961 and started Colonia Dignidad, or Dignity Colony, a strictly regimented enclave 210 miles south of Santiago that was home to several hundred Germans and Chileans.

According to witnesses' testimony in court documents, Schaefer allowed Pinochet's security forces to operate a clandestine prison on the grounds where they detained, tortured and executed dissidents during the 1973-1990 military dictatorship.

Colony members say he ruled them cruelly as well. Married couples were forced to live apart, and children were separated from parents. Residents were prevented from leaving. Those who angered Schaefer were subject to electric shocks, high doses of tranquilizers and long periods of isolation.

Many "became real slaves of Schaefer, like robots dedicated only to obey his orders and not displease him," members said in a newspaper ad they took out in 2006 acknowledging human rights abuses at the colony and asking for forgiveness. The colony is now called Villa Baviera.There were also dozens of allegations of child molestation, leading Schaefer to flee the country in 1997. He was arrested in neighboring Argentina in 2005 and extradited back to Chile the same year.

Schaefer was convicted in 2006 of sexually abusing 20 children who attended the colony's school and clinic. He was sentenced to 20 years, plus three additional years for an illegal weapons conviction.

In two separate cases in 2008, Schaefer received more prison time for the torture of seven colony residents and for the fatal poisoning of a renegade security agent during the dictatorship.

After his World War II service, Schaefer became an evangelical preacher. He fled Germany after being accused of molesting boys at the orphanage he ran.

Another DNA reversal

2010-04-29T08:54:00.000-07:00

NY man wrongly convicted of killing woman in 1988 is cleared by DNA evidence, goes free.

BEN DOBBIN, Associated Press Writer
April 28 2010, 2:47 PM PDT

ROCHESTER, N.Y. (AP) — A former truck driver who spent nearly 19 years behind bars for a 1988 slaying he didn't commit walked free Wednesday after DNA testing exonerated him and instead pointed to a man who strangled a 4-year-old girl in 1994.

Arizona's Immigration Law: fascist or business as usual?

2010-04-25T10:59:00.000-07:00

Arizona’s new law (SB 1070) which, among other things, authorizes detention and questioning of suspected illegal aliens, is a political hot potato.

The law which has the overwhelming popular support of Arizona citizens has been labeled as fascist and Nazi by non-constitutional scholars such as Keith Olbermann and Cardinal Mahoney. "Let me see your papers," cable comic Jon Stewart accurately recalls, was the familiar chilling phrase repeated in all those black and white movies of the 1940's that depicted Gestapo inquiries inevitably leading to concentration camps.

The other side of the argument, represented by equally hyperbolic, but openly xenophobic Fox commentators and the Arizona governor, is that this measure is needed because of a "dire emergency" in the state.

The porous border with a near failed drug state is intolerable, dangerous to Arizonans, especially in these fragile economic times of high unemployment and limited government resources.

[As a footnote, I am currently re-reading Barbara Tuchman’s "The Zimmermann Telegram", which summarizes U.S. relations with Mexico circa 1916, when President Wilson sent General Pershing and thousands of U.S. soldiers in a "punitive expedition" to capture or kill General Pancho Villa, after his soldiers raided a New Mexico border town and killed American citizens. Mexico, it seems, was as unstable and poor as it is a hundred years later.]

Adversaries on either side display ignorance of the current state of the law and the demands of our Constitution as they are interpreted by our courts. In the following post, I am going to try to calm the waters a bit, while showing what my legal training leads me to believe is the basic problem with this kind of law.

Note: I’m going to use quotes to denote language of the statute and cases; I’m going to use italics to denote words or phrases that need further definition. Notice how vague these terms of art are, and how much leeway their vagueness gives to police and the courts in their enforcement.

First, these are excerpts of the law, which is titled: "Support Our Law Enforcement and Safe Neighborhoods Act." [Now, who can oppose that?]

"B. FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON.

"E. A LAW ENFORCEMENT OFFICER, WITHOUT A WARRANT, MAY ARREST A PERSON IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE PERSON HAS COMMITTED ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES.

"...NOTWITHSTANDING ANY OTHER LAW, A PEACE OFFICER MAY LAWFULLY STOP ANY PERSON WHO IS OPERATING A MOTOR VEHICLE IF THE OFFICER HAS REASONABLE SUSPICION TO BELIEVE THE PERSON IS IN VIOLATION OF ANY CIVIL TRAFFIC LAW AND THIS SECTION.

"F. For the purposes of this section:
"A. IT IS UNLAWFUL FOR AN OCCUPANT OF A MOTOR VEHICLE THAT IS STOPPED ON A STREET, ROADWAY OR HIGHWAY TO ATTEMPT TO HIRE OR HIRE AND PICK UP PASSENGERS FOR WORK AT A DIFFERENT LOCATION IF THE MOTOR VEHICLE BLOCKS OR IMPEDES THE NORMAL MOVEMENT OF TRAFFIC.

"B. IT IS UNLAWFUL FOR A PERSON TO ENTER A MOTOR VEHICLE THAT IS STOPPED ON A STREET, ROADWAY OR HIGHWAY IN ORDER TO BE HIRED BY AN OCCUPANT OF THE MOTOR VEHICLE AND TO BE TRANSPORTED TO WORK AT A DIFFERENT LOCATION IF THE MOTOR VEHICLE BLOCKS OR IMPEDES THE NORMAL MOVEMENT OF TRAFFIC.

"C. IT IS UNLAWFUL FOR A PERSON WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES AND WHO IS AN UNAUTHORIZED ALIEN TO KNOWINGLY APPLY FOR WORK, SOLICIT WORK IN A PUBLIC PLACE OR PERFORM WORK AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR IN THIS STATE.

"Impounding a vehicle is authorized if:
"... 4. THE PERSON IS IN VIOLATION OF A CRIMINAL OFFENSE AND IS TRANSPORTING, MOVING, CONCEALING, HARBORING OR SHIELDING OR ATTEMPTING TO TRANSPORT, MOVE, CONCEAL, HARBOR OR SHIELD AN ALIEN IN THIS STATE IN A VEHICLE IF THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE FACT THAT THE ALIEN HAS COME TO, HAS ENTERED OR REMAINS IN THE UNITED STATES IN VIOLATION OF LAW."

Even without this statute, our current law is generous to police in their contacts with suspicious people. These are the rules as reflected in the language and reasoning of cases from the U.S. Supreme Court and high state courts:

1. Police can ask anyone for identification.
Law enforcement officers do not violate the Fourth Amendment in approaching an individual on the street or in another public place and asking if he is willing to identify himself. (Florida v. Royer, U.S. Supreme Court, (1983) .)

2. If Police have cause to stop a vehicle [eg,any traffic violation], they can ask the passenger [who has done nothing suspicious] for his identification.

Once the privacy of a car has been intruded upon by a lawful traffic stop, the courts find no reason to expand the rights of passengers in vehicles beyond those afforded travelers in airports; employees in garment factories; or fishermen on public streets. All can be asked for identification.

3. But what if a person refuses to provide identification? May he be detained [defined as prevented from departing] further for identification purposes?

The lawful request by a police officer of anyone on the street for identification does not in and of itself turn the otherwise consensual encounter into a detention.

However, a passenger in a stopped car is not in the same situation as a person standing or walking on the street. When the police stop the car, the passenger is detained.

When a police officer asks a detained passenger for identification, no reasonable person would feel free to refuse that request. Thus, such a request is in fact a demand and thus is unlawful without further cause.

4. When is a detention [a temporary seizure of a person] constitutional?
"The Fourth Amendment prohibits detentions of persons by law enforcement if they are unreasonable." (Terry v. Ohio U.S. Supreme Court (1968).)

A detention is reasonable under the Fourth Amendment if the detaining officer, at the time of the detention, can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.

5. The courts recognize the wide variety of necessary police functions of modern life.

The community caretaking exception to the warrant requirement derives from the expanded role undertaken by the modern police force. Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office.

Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.

In addition to their investigative tasks, police officers regularly perform community caretaking functions—helping stranded motorists, returning lost children to anxious parents, assisting and protecting citizens in need.

There are other exceptions recognized by courts, which free police from constitutional restraints. The emergency aid component of the community caretaking exception requires specific, articulable facts indicating the need for swift action to prevent imminent danger to life or serious damage to property.

In addition, "circumstances short of a perceived emergency may justify a warrantless entry, including the protection of property, as ‘where the police reasonably believe that the premises have recently been or are being burglarized.’

The appropriate standard under the community caretaking exception is one of reasonableness: Given the known facts, would a prudent and reasonable officer have perceived a need to act in the proper discharge of his or her community caretaking functions? . . .

In determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or hunches, but to the reasonable inferences which he is entitled to draw from the facts in light of his experience; in other words he must be able to point to specific and articulable facts from which he concluded that his action was necessary.’

As I see it, the problem with this law is the same problem we have been coping with for fifty years or more. The standards of police contacts are so vague that they are almost meaningless. Police are free to be "creative," i.e., to lie. They claim to "see" suspiciious acts, smell odors, hear words and acts that their "experience and training" gives cause to suspect criminality over the denials of indepependent witnesses. Courts (made up of judges who are former prosecutors elected or appointed to enforce popular laws) will not wish to negate police activity intended to, in the words of the title of the statute: "support law enforcement and safe neighborhoods."

Tea Partying

2010-04-19T11:18:00.001-07:00

One of the advantages of being old ... probably the only advantage among many disadvantages ... is the length of memory ... actually a blessing and a curse. Reading or viewing the news is like deja vu all over again.

For instance: The Tea Party Movement.

The thing to understand about his so-called phenomenon is this: It is nothing new. We have seen them many times before in our lifetime and the lifetime of our country.

Whether you believe the polls that claim that the participants have more income and education than the average American (which is contrary to previous polling which showed that most opposition to Obama from supposed independents and Clinton Democrats came from white, low middle class, high school education, lower income middle aged suburbanites and small town occupants),

anyone in my age easily (but chillingly) recognizes these people as the survivors of the half of our generation that Nixonians used to call their "silent majority"; that is, the ones who favored the Viet Nam War, who abhorred all the vocal movements of the 60's and 70's that were considered too liberal.

They were terrified by "Women’s Lib" and its associated demands for reproductive rights and equal rights in the workplace. They were on the wrong side of the civil rights movement in the South and the North. They opposed laws and courts actively enforcing voter registration, housing, employment, education (including busing). They have resisted and resented the changes in social consciousness that modified our language, customs, attitudes for the past half century.

What they mean when they claim to be defending "traditional American values" is that they prefer everything that existed in the 1950's, including racial and gender discrimination, mostly the domination by WASP male values.

The Mad Hatter is their hero but "Mad Men" is the culture they want to reinstate.

One thing is different, upside down really.

The Tea Partiers claim to be a coalition of several disparate movements unified by one principle — a general distrust of the government. This too is deja vu all over again. But in a twerped sort of way, because back in the day, these people were bitterly opposed to the coalition which was on the other side of the political spectrum who were deeply suspicious of the government.

That opposition to the government was called "unpatriotic": The bumper stickers that appeared were: "Your country: love it or leave it" and "I love my country — right or wrong." Opponents of the government were considered "anti-American".

I can understand the shock caused by the images of election night, 2008. I felt it. Barack Obama's election in my lifetime was as shocking as the Berlin Wall, the walk on the moon, the darkness of most faces of Alabama, Georgia, Florida and Texas university football and basketball team members.

But the warm, fuzzy glow I felt on Inauguration Day, the optimistic sense that this was a better world we had long wished for, a feeling that at last, my generation had gotten it right ... that feeling soon proved to be premature.

The "forces of reaction" - as my father, whose memory of The Depression were , warned - can never be defeated.
Eventually, like monsters in horror movies, they revive from their stupor, and renew their age old complaints.

In the 19th century, they were the Know Nothings. In the 20th, they were the isolationists, America Firsters, John Birch Society, Minutemen, Christian Coalition.

The Real Bad Guys?

2010-03-12T09:46:00.000-08:00

W. has been rightly ridiculed for his "axis of evil" hyperbole. We liberals recognize simplistic jingoistic war mongering rhetoric when we hear it.

But now it turns out that West Side L.A. right thinking trend setters have been duped and are now sulking in shame.

While our eyes were diverted to concentrate on Iran, North Korea, and other supposed threats to our way of life, it turns out that the real bad guys were the Japanese. Four recent news items should be enough to make the point and make us all cringe.

#1. Toyota ... Prius ... egad.
#2. Academy Award winner, "The Cove."
#3. Typhoon Restaurant in Santa Monica.
#4. "The Pacific".

What next? We find out Barack Obama registered Republican?

"Don't Worry About It"

2010-02-25T10:21:00.000-08:00

The words were spoken by Army Air Corps Lieutenant Kermit A. Tyler, who had been assigned to oversee a radar installation on Oahu.

On the morning of December 7, 1941, the operator reported to Lt. Tyler that he observed "blips" indicating a large number of aircraft 130 miles away and approaching the island. Having been alerted to expect 50 U.S. B-17's to arrive that morning, Tyler (who had little experience involving radar) told the operator, "Don’t worry about it."

Of course, history was about to crash down upon Lt. Tyler’s head. The blips turned out to be about 180 Japanese planes.

Tyler was exonerated of any negligence by several hearings conducted after the event, and went on to prove his heroism as a pilot, retiring in 1961 as a Lt. Colonel. He died recently at age 96.

It seems to me that Tyler’s mistake was to assume that the simplest explanation was correct. Based on the information at hand, he chose the conclusion that was far more likely. In philosophy and science, this choice is ratified by reference to a concept known as "Occam’s razor."

It is still accepted as a logical guideline for scientists, although the proven exceptions are so numerous, and laced with such dire consequences, that it is practically useless as a rule of thumb.

It is human nature to prefer the simplest explanation of things to more complex solutions. But my experience in the law has shown me the danger of simple minded thinking and reliance on common sense to decide proof of guilt.

These dangerous assumptions falsely support the reliability of confessions, eyewitness testimony, police officer veracity, expert opinions, and a multitude of legal fictions - such as the reliability of so-called "dying declarations" and other hearsay exceptions, all of which lead to injustices galore.

At any rate, Tyler’s suggestion has gone down in history along with other remarks that soon proved ironic.

George Armstrong Custer’s specific words preceding the massacre he stumbled into have never been authenticated, but it is tempting to assume that he said something that comics over the years have put into his mouth something like: "C’mon, boys, let’s wipe out those darned Injuns."

These incidents are variants of the so-called "famous last words" that are subject of many biographies.

Historians love to find nuggets of wit and wisdom among such tidbits, especially deathbed insights, confessions (not just of guilt but expressions of faith by atheists), hints of an afterlife ("I see the light ...").

But the phrase, "famous last words," also connote the "oops" moment. I will mention two that I found to be particularly ironic.

H.G. Wells was noted as a futurist, who, along with the Frenchman, Jules Verne, made his living predicting future events. However, it is reported that on his deathbed, his prescience failed him. His last words were "Go away. I’m all right."

Wells’ final error probably did not change the outcome of his story. But other last words have done so.

Terry Kath, a guitarist and founding member of the rock group Chicago, put a gun to his head. When a friend showed concern, Kath reportedly showed that the magazine was empty, saying "Don’t worry it’s not loaded."

He pulled the trigger and discovered a bit too late that a cartridge had been left in the chamber.

Among actors, rock performers, and other risk takers, fatal games with guns is not unknown, but Kath’s voiced assertion makes his oops moment special.

Principled Centrist Revisited

2010-02-20T20:05:00.000-08:00

Last year I published a post based on an essay I originally wrote in the 1990's. I updated it to apply the ideas stated to Obama. I tried to fit him into the traditional mold of the "principled centrist," a tradition which included the best presidents in our history: notably Washington, Lincoln, F.D.R. It also encompassed some failures.

Bill Clinton's presidency showed how difficult it is for a centrist to govern in this era. With the pervasive sniping of 24/7 media critics, ideological and cultural polarization that approaches the sectional suspicions preceding the Civil War, and the absence of public consensus about any particular crisis, the ability of even the most charismatic president to lead is doubtful.

I am re-printing the essay again because it seems that its points are still pertinent to the political climate today.

Like many of my peers in the late 1960's, I entered a law career with a radicalized illusion that I could shake up The Establishment from within. But early in my career as a public defender, I became persuaded that idealists made lousy lawyers.

Viewing a case as "a cause" led to ineffective advocacy for the individuals who were our clients. Railing against "the system" was a losing strategy; tweaking it to make it work led to some success. To work from within demanded adherence to core principles - like those expressed in the Bill of Rights, but also a rational sense of moderation. Seeing the flaws of radical ideologies of Left and Right, I came to think of myself as a principled centrist.

The flaw of this philosophy is that it can easily lead to indecision, timidity, and a loss of confidence. Weak compromises are tempting when the risks are great. Uncertainty leads to failure and depression.

Barack Obama, by education and inclination, is a principled centrist. His legal education, which suited his innate propensities, prepared him well for effective advocacy. The first attribute of the lawyerly approach is the ability to see all sides of a question. The second is the exercise of judgments based on reason and evidence rather than faith and ideology.

The term itself is an oxymoron in presidential politics. The centrist is wedded to no firm ideology that huge numbers of people can identify with. It is historically rare to satisfy enough of the people enough of the time from the middle of the road.The centrist is not an ideologue, except to moderation. Idealogues have a rigid vision, a religious faith in their righteousness. Moderation and consensus are lukewarm ideals. Neither notion stirs passion.

Ronald Reagan’s simple ideology allowed him to be certain and clear about every issue: lower taxes, secure defense, less government, American domination of foreign affairs, strict Christian morality and adherence to normative lifestyles.

A centrist cannot be sure about any of these things, is sometimes for some of them, against some at some other times. He is a relativist - his motto must be "It depends." His survival depends on compromise.

A principled centrist in American politics is, by definition, in trouble. First, he states his principles, then is forced to compromise them.

Bill Clinton’s adventure with the health care issue in the 1990's is a cautionary tale. He stated a principle: universal coverage. Eventually, he had to temporize, and was seen as weak, the inevitable risk of centrists. The result: his leadership coinage dissipated. He could not fall back on the moral leverage of ideology, had no constant constituency on left or right.

At first, it seemed that Obama had advantages Clinton never had. Times had changed. In 1993, Clinton’s "mandate for change" was tenuous at best. G.H.W. Bush had alienated a chunk of the Reagan coalition - the middle right - with higher taxes and a weak economy. Because Clinton was a "new" Democrat, based on a sensible, more conservative model, who shied from liberal doctrine, he was positioned as non-threatening. On the left, he was pictured as youthful, a JFK disciple, compassionate, with a feminist wife - a guy of the sixties, who had matured to moderate progressivism. Many "boomers" could identify with that beause they had moved that way as well.The two-faced picture was enough to gain him a slim plurality in a three way race. Perot's candidacy made it clear that the only consensus in the public mind was that government was distrusted, and that the majority of voters were slightly to the right of center.

But that is where the consensus ended. There was no singleness of mind in the public for where it wanted a president to go. There was no mandate for any particular change.

Clinton thought it was there for health care reform, fooled by the fact that he spoke about it in his speeches and he was elected. But the public was never fully committed to it, and was easily swayed by fears of expense and bureaucratic incompetence.

In this as in every other issue the people wanted reform, but didn’t want to pay for it: crime, the economy, services, campaign reform. The public was schizophrenic: apathetic and impatient at the same time.

When the Republicans reclaimed the Congress in 1994 with a severe ideological conservative agenda, it forced Clinton the centrist to waffle to the right. The lesson was clear: a centrist may only succeed as a progressive leader if the public is ready to be led and only then by a leader who is perceived as a hero without baggage.

The commentators of the time blamed Clinton for a lack of leadership. The great leader defines the issues and unifies the people behind him. That Clinton failed to do.

What he was forced to do is what a centrist does best: react to the extremes of left and right. He must be the captain of a sailing ship, tacking left and right but steering the middle. Clinton’s political acumen was such that he was able to survive well enough to be re-elected and, despite his tragic personal flaws, his presidency is now remembered as a time of peace and prosperity.

At the beginning of his term, Obama’s seemed to have an advantage: the crises caused by the failure of G.W. Bush’s failure, which is ascribed rightly to the flaw of rigid ideological governance, had forced public opinion to coalesce into a coherent consensus for change - not necessarily "radical" change, but at least, meaningful reform.

The last time that happened was in 1964, when L.B.J. took advantage of his opponent’s extreme conservatism, to form a strong coalition for social change. He succeeded in passing meaningful civil rights reform and programs that began a "war on poverty", only to self-immolate over Viet-Nam.

F.D.R. is probably the better model for Obama. F.D.R. was (and still is) perceived as a decisive leader because his motto was "do anything, but do something." He was able to take chances because the public of the time was willing to be led - almost anywhere. The times were that bad. His one principle was that government had to put people back to work.

Everything he proposed, supported, persuaded, was directed toward that goal. He had many detractors from the left and right, but he had such a convincing presence to a people desperate for charismatic leadership that he prevailed and is revered as a great leader.

Bear in mind that in F.D.R.'s era, "charismatic leadership" in the form of dictatorships were preferred by mainstream political theorists to democracy, which seemed in the period between the World Wars, to have failed. Today, there is an echo of that era --- extreme fear caused by economic collapse and democratic institutions unable to ameliorate the crises --- China seen as a paragon of successful governance ---as many had perceived Italy of the 1920's and Germany of the 1930's.

FDR revived the democratic system because he was able to form a consensus from huge chunks of the public: union members -- in a time of solidly unified, active and powerful unions, Southern poor, the unemployed --- 25% unemployment in the depths of the depression ---and the educated un-rich.

At the start, the Obama constituency seemed to be similarly broad: the educated and hopeful young, aspiring Hispanics and proud African-Americans, depressed boomers. Those who voted for him, adding to his landslide and coattails, were also a significant number who were not committed to any "change" except that which threw the rascals out.

Like F.D.R., Obama benefitted from a bankrupt and disillusioned opposition party. The fatal flaw of ideological and faith based governance is that when exposed as false by incontrovertible evidence it collapses.

The strength of principled centrism is that its flexibility and foundation of moderation and reliance on evidence permit fine-tuning alterations without conceding defeat.

Parenthetically: in the view of many historians, FDR’s policies failed to end the Depression because they were not radical enough. His centrism was a flaw, led to inconsistent contradictory policies. He wavered from his initial policy of governmental activism, caving to budget balancing contraction of spending, overly fearful of the political consequences of huge deficits. He was saved by the war which reinvigorated the broad consensus and commitment to action.

Now, Obama, faced with apparent dissatisfaction by a vocal minority to his policies, has to decide whether to reclaim the centrist ground by accepting compromise, or to retreat to the right by abandoning any progressive agenda, or to try to forge a new coalition on the left to push through an aggressive program.

Obama, the principled centrist, walks the dangerous tightrope, his only net is his legal background, which, I hope, will permit him to find his way through analysis of facts, collection of evidence pro and con, and submitting all potential policies to thorough logic based argument before moving.

Remorse is a funny thing ...

2010-02-19T09:31:00.000-08:00

"The only thing you owe the public is a good performance." H. Bogart.

"I am deeply sorry for my irresponsible and selfish behavior I engaged in.I know people want to find out how I could be so selfish and so foolish." T. Woods.

T. Woods has a string of outstanding performances in his chosen field, which is golf. Let's get that straight. Golf. Not religion, politics, ethics, oratory. It is golf talent that has made him celebrated, envied, and vulnerable to attack for hubris.

He is also living proof of a central principle of Borenstein's Law - the counter intuitive truth that human beings can be counted on to act against their own best interests - sometimes to the point of self-destruction.

This Law applies to anyone, from the most sociopathic criminal to the highest achieving powerful people on earth.

Here's how Tiger phrased it:

"I knew my actions were wrong, but I convinced myself that normal rules didn’t apply. I never thought about who I was hurting. Instead, I thought only about myself. I ran straight through the boundaries that a married couple should live by. I thought I could get away with whatever I wanted to. I felt that I had worked hard my entire life and deserved to enjoy all the temptations around me. I felt I was entitled. Thanks to money and fame, I didn’t have to go far to find them."

Now, Mr. Woods has exemplified another lesson I have learned in almost forty years of defending people accused of wrongdoing:

No expression of remorse can ever satisfy everyone.

There are ramifications of this fact.
The transgressor is usually in a no-win posture.
Failure to express remorse for bad conduct is seen as aggravating, but expressions of remorse are usually suspiciously self-serving.

"Sincerity" is completely subjective and tentative. Bill Clinton apologized with the same "sincere" voice he had used to deny guilt under oath months before.

Cynical responses such as "he wouldn't be sorry if he hadn't been caught" are earned by the initial deception.

The reaction to "I'm sorry" has as much to do with the listener's attitude as the transgressor's. People whose faith in another's goodness is shattered by revelations of transgression are usually hurt and angry.

The media does not have the "right" to know all the facts about everybody's life, even so-called "public figures." The First Amendment does not demand that people who want to sell products must give power over their lives to commercial media, whose primary purpose is to profit from celebrities rather than to provide information people need to form a better world.

"Say It Ain't So" attacks Tokyo

2010-02-07T13:51:00.000-08:00

TOYOTA the company that can do no wrong ... did wrong ... oops.

Stop me before I think again ...

2010-02-01T10:17:00.001-08:00

In mid-thought ...

... Explain to me why it is so terrible that China and India, countries which contain about 2/5 of the population of the entire world, have economies that are growing at a high rate, thereby improving the welfare of their people, taking them out of poverty, making them into consumers rather than dependents. ...

... the debate over whether to Mirandize terror suspects is a sham. Miranda rules shouldn’t hamper obtaining info from suspects like the Xmas day underwear bomber ... They are fanatics - will love to talk. Also, his guilt is so obvious, it doesn’t matter whether his statements are useable against him. Miranda rules do not preclude continued questioning without advising or even if a suspect has asserted his rights. It simply makes his statements inadmissable in his trial, unless he presents a defense which contradicts his statements. Finally, his knowledge of the Al Qaeda workings is probably very limited ...

... Torrey Pines tournament proves that there is no one who will make anyone forget Tiger Woods ... the great white hope, Phil Mickelson fizzled ... the winner and those others in contention were Who He? and Who Cares?

... Meanwhile Fed disappointed all Brits and Aussies by destroying Andy Murray.

... Kobe MJ’d the Celtics with another last sec impossible shot ...

... Conventional wisdom that the New Deal failed to solve unemployment, proving failure of its big government activism was a construct of Milton Friedman (an Ayn Rand devotee). Later economists have revised thinking, pointing out that FDR got cold feet about deficits. ... There should be a lesson there for Obama, who is not unlike FDR in his lack of ideological dogma, straddling a centrist tightrope, sorting through unreliable contradictory advice, facing an uneducated, easily manipulated frightened electorate and an even more frightened Congress. See: http://borensteinslaw.blogspot.com/2009/02/great-deception.html
... My father would have explained the lagging employment stats thus: capitalists love depressions - gives them the excuse to slap labor down, damage unions, lower wages and benefits, break contracts ... Stock market loves layoffs of workers because it reduces costs, increases bottom lines. ... Capital will fight hard to prevent re-employment, mandatory benefits for workers. ...

... Obama’s skewering of the Republicans in his State of the Union speech, and later, his Q&A right in their nest was awesome as an example of how a good lawyer can use the power of argument to overcome deceit. The problem is that the voters these days do not have the patience or intelligence to hear complex explanations, even if they are rational. The sound bite generation is too deeply ingrained.

... The Supreme Court decision expanding 1st Amendment rights to corporations is merely the latest in a long line of cases that elevate the speech freedom over all of the others in the Bill of Rights... I became aware of this long ago when earlier rulings permitted reporting re. & televising criminal trials which damaged the defendant’s 6th Amendment right to a fair trial ... For a long time, the Court has denied a difference between "political speech" and "commercial speech" ... Their rationale for this has always seemed a thinly disguised excuse for favoring business and property interests over individual liberties, which is central to the conservative tradition of The Court. ... In fact, that is what the Founders intended it to be, and how it has worked for most of our history... It has been "activist" as a reactionary restraint on progressive movements in society ... control of commerce, slavery / Jim Crow / civil liberties, regulation of business ... on almost every issue the Court has been a drag ... the Warren Court, a tiny window of progressive control of the Court from @1953 - 1966 was a very rare exception, a Golden Age of civil liberties that has no other parallel in American history ...

... Way back then, I argued with friends who defended pornographers, debating which of the Bill of Rights I would die to defend ... I argued that defending the right of sleaze makers to make money from porno movies was way down on my list - considering what else was at risk at the time: anti-war protesters being shot and jailed, civil rights workers the same, coerced confessions, death penalty offenses proved by perjured testimony, planted evidence, denial of counsel. ... porn is just another form of commercial speech. ...

... Equating corporate rights with individual rights is mainstream American thinking ...

... Howard Zinn’s death again raises the debate about "neutral" or "objective" history vs. activist or argumentative perspectives ... My small contribution centers on how offended I was at discovering that the "history’ I was subjected to in my childhood was, in crucial details, distorted ... The most egregious distortions related to the genocide of native Americans ... The predominance of Southern rooted historians accounted for the mythology which elevated the romance of the ante bellum South, overestimating the greatness of Robert E. Lee and the evils of Grant and Sherman ... and most harmfully, the belief that Southern white society was unfairly victimized by Reconstruction ... Overlooking the weakness of heroes like Wilson and TR relating to race and native Americans... that the creation of the American Empire was all good ... and many more lies... all that being said, Zinn’s bias should also be considered before accepting his works ...

No more thinking ... back to work ...

"Sue me, sue me ... what can you do me"

2010-01-05T08:21:00.000-08:00

A civil case in Iowa may change things for many people involved in the oxymoronic criminal "justice" system in this country.

The L.A. Times reports today that a lawsuit accusing local prosecutors of conspiring with police to frame two murder suspects was settled on the eve of a decision by the U.S. Supreme Court.

Prevailing case law holds that police can be sued for such conduct, but prosecutors can't. This is based on a historically based tradition of immunity for government officials in exercise of their duties. The idea of the tradition is based on the notion that officials shouldn't be fearful being sued for doing their jobs. Certainly, if a D.A. could be sued for every judgment that affected someone's life, it would result in chaos.

However, this recent case threatened to overturn the tradition. In 1977, a retired police officer working as a security guard was shot and killed during an attempted robbery of cars at a dealership. A witness identified a "white suspect," who was arrested and failed a lie box test.

But police arrested a 16 year old car thief who fingered the two African Americans as the killers. The snitch's facts at first didn't fit the known facts. Defendants were convicted by an all-white jury and sentenced to prison.

In the words of the article, "Decades later. [defendants] were able to obtain official files showing that police and prosecutors ... coaxed the witness to implicate them, while ignoring evidence that pointed to the white suspect. The sole witness recanted his testimony."

While the prosecutors maintain that they still believe in the defendants' guilt, the county settled the case for $12 million dollars, fearing an adverse Supreme Court opinion. During oral argument, Justices Kennedy and Stevens, two of the centrist "swing votes" on the Court, both indicated doubts about the tradition against suing prosecutors when intentional use of false testimony is alleged.

In addition to the central issues: the continuing reality of police and prosecutorial misconduct and the continuing evil of racist elements in the system, another point is illustrated by the case.

The errors were not discovered until "decades" after the wrong. It was revealed by persistent lawyering by use of habeas corpus to discover the documents and to investigate and re-interview the witness that helped to expose the misconduct.

Proponents of laws limiting habeas corpus, asserting a need for "certainty" and "finality" and "speedy justice" must confront this case as well as the hundreds of other examples contradicting their arguments.

While I Sit On The Sidelines ...

2009-12-19T10:27:00.000-08:00

During my forced hiatus from the practice of law, I have tried to keep up with the news that always swirls around the courthouses which have been my milieu for almost forty years. One way to keep up is simply to read the daily newspaper. Today, for instance, three articles referenced cases involving lawyers I’ve known for many years.

The first of these is an article which notes the unusual fact that Los Angeles County, in the past year, has bucked the national trend of reduced death verdicts. In L.A., thirteen death penalties were ordered by juries. This seems to be a statewide trend. California death verdicts have also risen.

The reasons for the data are debated. Steve Cooley, LA DA, thinks it is a partially a fluke, considering the fact that these cases take many years to come to trial. But he did claim that his office has been more "selective" in choosing which cases to pursue, which may account for the higher percentage of death sentences meted out.

My good friend, Robert Schwartz, an experienced defense lawyer, pointed out that jurors have become hardened to mitigation evidence about abused and deprived childhoods of violent criminals. The article also speculates that judges have tightened procedures to encourage more severe verdicts.

I’ve found that there is truth to all of these points. And there is another, that the article doesn’t underline. Jurors are well aware of the fact that California has a moratorium on executions, and has performed ONLY thirteen executions, while almost seven hundred rot on death row. Just as the existence of a credible alternative of ‘life imprisonment without possibility of parole’ has been shown to reduce the number of death verdicts, as was recently reported in Texas of all places, the suspicion that a death verdict will never be enforced is conducive to more of them being issued.

One of the judges who is often cited as having an agenda that includes a preference for death verdicts made the news in another case, non-capital case. Mark Overland, a former public defender, and one of the best lawyers anywhere, is representing Ms. Lazarus, the LAPD officer accused of killing a romantic rival more than twenty years ago. After the pro forma ruling that ordered that she be brought to trial, the judge set bail at $10 million dollars in cash, an extraordinarily high amount, tantamount to a denial of any bail. This is higher, as Overland observed, than the bail set for Phil Spector. The judge justified this act by citing her accessibility to guns, because she is married to a cop, and his subjective belief that she would probably flee the jurisdiction to avoid prosecution.

In another article, a second degee murder conviction is reported. The case, defended by my friend Dave Houchin, had resulted in two mistrials due to hung juries when tried in the Central L.A. courthouse. Once transferred back to the Antelope Valley where the crime occurred and the where extremely vocal victim’s family members lived, a compromise verdict of 2nd degree was achieved after three weeks of deliberation, in a case which relied on circumstantial evidence and the defendant had steadfastly asserted his innocence.

THE 'SAY IT AIN'T SO' MOMENT

2009-12-19T09:40:00.000-08:00

Those who cannot understand why Tiger Woods, a man with so much to lose, would risk it all by committing risky sexual behavior are ignorant of Borenstein’s Law.

But after all, the head scratchers say, Woods is one athlete whose reputation for good character was squeaky clean. His trademark as a golfer is his intelligent approach to the sport. He is the most physically fit and the smartest golfer on the course, whose preparation and discipline are unparalleled.

So what? Bill Clinton was the smartest guy in any room. He was the freakin’ president of the U.S., dude.

Borenstein’s Law holds that decisions and conduct which are against an individual’s best interests and therefore by common sense would seem to be unlikely, are actually within the normal range of human behavior, no matter the stature of the individual in society. This kind of apparently irrational risky behavior accounts for most of the annoying things teens do, most crimes of impulse, and most philandering in the upper crust.

More interesting is that the Woods case seems to illustrate a corollary to Borenstein’s Law: Goodness (i.e., high moral character) and Greatness (i.e., exceptional achievement) are often mutually exclusive, that is to say people of great accomplishments in their chosen field usually would not qualify for sainthood if the standard is morality in their private lives.

The examples proving this point are too numerous to mention, but I will mention one prominent example. Albert Einstein, perhaps the greatest thinker of the 20th Century and one of the greatest of all time, was a self acknowledged failure as husband and father.

He was a selfish man, discarded his first wife (herself a trained physicist whose ideas may have contributed to his early work) and their three children without a second thought after years of surreptitious affairs, including one with his cousin, who became his second wife. He then proceeded to be unfaithful to her as often as the opportunities arose. He admitted his personal failings, attributing them to his nature, and his need for concentration on his work.

One other point worth mentioning. When the subject arises, the conclusion is often criticized as chauvinistic, seen as a weak argument justifying male prerogatives relating to monogamy. I don’t believe the propensity for risky behavior is limited to one sex.

I.e.: Catherine THE GREAT. Q.E.D.

Bullshit

2009-10-23T12:03:00.000-07:00

The reason for global warming should be obvious: the world is full of bullshit. There is more in the world now than there has ever been. We now have entire fields of study which are founded on bullshit, obtaining grants to collect and disseminate bullshit. We are now inundated with “information” which we call “data” but which is mostly bullshit. We have a proliferation of Art, 99% of which is bullshit. How much of the internet is bullshit? Are you kidding?

Even before the internet, there was already so much bullshit on television, radio, in newspapers and magazines that it was nearly impossible to discern what was not bullshit. Now, the static of bullshit pervading cyberspace boggles the brain.

All advertizing is bullshit. Large chunks of serious institutions have been taken over by bullshit. Government, The Law, Medicine, Sports, Literature, Art, Business, Education from top to bottom are infested with bullshit.

Religion, philosophy and “serious thought” are pervaded by bullshit. There are entire bullshit sciences: psychiatry, psychology, sociology, anthropology. Most history is bullshit. Take away the bullshit and you have a slim volume of commons sense known to anyone with an I.Q. higher than an imbecile (and, oh, the I.Q. test is also bullshit).

What do I mean by bullshit?
I mean garbage, waste, lies, dissembling, poses, self-serving nonsense, sentimental wishes, statistics, anecdotal evidence, anything said in a political campaign, most medical tests, all local news programming.

When the little boy in Hans Christian Andersen’s story saw the emperor parading naked, he should have cried, “Bullshit!”

Andy Warhol was a “bullshit artist” in both senses. So are all the cable talking heads, the Sunday pundits, the PBS experts (including Deepak Chopra, Suze Orman,). Talkradio is the font of more bullshit every day than was produced in all the books of every century before the Twentieth.

The Twentieth Century was the bullshit century. The greatest figures of the era were bullshitters of the highest magnitude: Mussolini, Hitler, Churchill, FDR, JFK, Nixon, Reagan, Clinton. Our heroes are mostly made of bullshit (“bravado” = bullshit). Bullshit is the definition of acting and accounts for most of what we are fascinated with about celebrities.

The cure for bullshit is simple. Skepticism — a state of mind which stands uncomfortably between cynicism and apathy — is the antidote. When you see it, doubt it. When it moves you to tears, proceed from the assumption that you are being manipulated. When it makes you angry, ask who wants you to feel that way. Who benefits from the news stories about crime? How did the latest subject on the gossip shows become an “issue.”

It is true that there has always been bullshit. Bullshit thrived throughout history. Myths, legends, superstition, the Middle Ages (the Age of Bullshit). The start of every war can be traced to bullshit, and most were won or lost by bullshit.

But we were led to believe that the modern age would distinguish itself by overcoming bullshit. In science and medicine, truth would triumph over ignorance for the betterment of mankind.

The Founding Fathers were products of an era historians call The Age of Enlightenment, when bullshit was recognized as the enemy of man. Having seen through such bullshit notions as “the divine rights of kings”, they hoped that an idea like democracy might work. The hypothesis was: “You can bullshit some of the people some of the time and some of the people all of the time, but not all of the people all of the time.”

The plan required that th people would be educated and informed of the dangers of the bullshit-riddled future. It assumed that the people would choose to be guided by an enlightened and intelligent elite — a group not unlike, oh say, the Founding Fathers. They would be a cut above the people in the ability to reason, the eloquence to lead, and mostly, possessed of just enough independent wealth to allow them the luxury of expressing selfless wisdom to act for the common good occasionally — on the really important issues. Parenthetically, it should be noted that this has worked during our history. Noblesse oblige, the duty of enlightened wealth and upper classes to govern wisely and selflessly has provided many of our best leadership: the Roosevelts, Kennedys, Adamses, Byrds, Rockefellers, etc.

The U.S. Constitution stands as the most remarkable work of protection against bullshit ever devised out of a laboratory. The checks and balances every textbook so glibly mention are an ingenious expression of the anti-bullshit political theory. No one group is to be trusted not to bullshit the others.

Even so, Jefferson and some others still smelled bullshit. They didn’t buy the argument that individual rights would be protected against the greatly increased power of the new improved people’s government. The proponents argued that it was not necessary to enumerate individual rights into the document. Those rights were well understood by the founders who were English gentlemen by birth and lawyers by training. These rights were guaranteed to every Englishman through the English constitution, a conglomeration of written documents and laws, unwritten traditions. They had incorporate these rights into the charters of their colonies and now their states’ constitutions, and the states were to be independent and sovereign.

Besides, the clever argument ran, the mere definition of individual rights was dangerous. It would lead to the conclusion that the defined rights articulated the exclusive list of rights possessed by individuals. That was contrary to their intention. They meant the powers of government to be circumscribed, clearly defined and limited, with all the other powers, rights and residue belonging to the people. The argument was somewhat prophetic as throughout much of our history parsing of the language and divining of the intentions of our constitution has become a parlor game played by Supreme Court justices and law professors.

Jefferson the scientist remained skeptical. He felt more comfortable putting it in writing. The result was The Bill of Rights, which has become the model for every constitutional democracy.

So did it work? Did it prevent or at least restrain the bullshit? Let’s first admit that the odds were long. It is in the nature of things that most everything is bullshit. It is simply part of the nature of the human animal to survive by wits, which means learning to bullshit better than the next guy. Every baby cons its mother into attentiveness by tears and tantrums. Toddlers trick their peers away from their toys, the best students learn to fools their teachers, rites of passage into manhood and womanhood involve successfully duping members of the opposite sex as well as a large dose of self-deception for survival.

In politics, democratic leadership inherently requires bullshitting the largest numbers of people, persuading them to do what is right contrary to their self-interest, usually by manipulation and promises.

Jefferson pinned his hopes for bullshit detection on the concepts contained in one cluster of clauses of the First Amendment — no state religion, unrestricted freedom of speech and press, peaceable assembly, and petition for redress of grievances. The idea was that if given access to all points of view, the people would sort out the bullshit and eventually make the right choices. There would be no state religion, no one Truth about ultimate questions. Rather, there would be a diversity of theories to choose from. The same with political truths: let everyone state a point of view, try to prove it, argue it, print it, try to persuade others, march about it, get together with others of like mind, complain to the government about it. Eventually, right choices would be made.

But Jefferson never anticipate the power of Bullshit. The mass media and now the internet have produced volumes of misinformation. He never imagined how much misleading data would bury the people trying to sort out the few nuggets of truth from the piles of bullshit. The naked emperor in our world is hidden behind blizzards of bullshit.

Jefferson, the architect, botanist, agronomist, philosopher, historian, naturalist, and lawyer could never have foreseen that there would come a time when everyone became a specialist, when the educated elite, the best and brightest that he relied on, would be so overwhelmed in bullshit about their own field of study that they could not hope to lead others in general debate over diverse issues. The most educated of us are narrow-minded and suspicious, self-interested without pause. Doctors and lawyers hate each other; scientists learn government to milk it rather than check it.

The system envisioned by the founding fathers, of enlightened leaders followed by an educated informed people, foundered on the mass of bullshit.

What does that leave us with? The only hope was to educate the people to fend for themselves. The mass media promised to inform, but it deforms, manipulates, distorts by overemphasis, creates hysteria. The free press, conceived as protectors of dissent and a marketplace of creative ideas, has devolved into just a marketplace of shabby commercialism. Since first discovered by Hearst and Pulitzer to be a profitable consumable, the News Business, pandering to the lowest tastes regarding crime, scandal, or salable issues, is an industry captured by the compulsion to SELL, not to inform.

We had the hope that public education, free to everyone, would insure that all the people would be able to recognize the bullshit. But we are failing miserably, even to insure basic literacy. Educators focus on giving information (data, bullshit) rather than teaching how to sort it out. There are so many people to process and so much bullshit to plow through that teachers become buried under it and eventually give up or become part of the bureaucracy that cultivates bullshit for a living.

The result is a public mired in cynicism and apathy. Most people don’t bother to vote, too discouraged by the weight of bullshit. Those who do vote, increasingly and understandably, do so to express a narrow self-interest — an issue or small constellation of related issues they perceive as relevant to their lives — and even then, are easily manipulated into buying bullshit.

Four Thoughts

2009-10-21T10:25:00.000-07:00

(1)I find myself exaggerating my recovery so that I won’t disappoint people who ask me how I feel. If I keep saying "Lousy," especially if I follow up with details about bowel movements and such, friends may eventually stop calling. I know I would.

(2)The U.S. Supreme Court recently upheld a Virginia court’s ruling that an anonymous tip about a supposed drunk driver could not justify a police traffic stop of the car unless the police themselves saw the car do something suspicious. Justice Roberts issued a vigorous dissent, arguing, among other things, that the evil of drunk driving justifies the police action. He wrote: "The effect of [this] rule will be to grant drunk drivers 'one free swerve' before they can be pulled over by the police... It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check." Roberts noted that hotlines and other services encouraged the public to report suspected drunk drivers.
I thought Roberts was supposed to be one of those “conservative” judges who show “judicial restraint” as opposed to those “liberal judicial activists” on the bench who bend their interpretation of the law to conform to their personal preferences. He would never be “result oriented,” would he?

(3)The stock market rebound to above 10,000 has T.V. pundits scratching their wooden heads. How can this be, they whine, when unemployment is at 10% and other signs of the recession persist? They never read their Milton Friedman, the father of neo-conservative economics. When a recession comes, businesses wisely lay off workers to reduce costs. It is the excuse they need to do what they should have done during good times. Now, business improves (meaning bottom lines show net profits because of reduced costs), and it would be foolish to rehire workers, especially at the old hourly rates. Having been squeezed for more than a year, any worker re-hired would be glad to take a huge cut in pay and benefits.

(4)And speaking of benefits. I thought that the main benefit of a universal health care plan was supposed to be to remove the burden from business, as most of the industrialized nations of the world have done for generations and which even the “less civilized” nations of the emerging world recognize as necessary. Once government takes over the job of insuring health care, American businesses can compete with foreign companies. Wasn’t that supposed to be the prime argument — the unified field theory — that cemented the economy’s recovery with health care? Why haven’t I heard that argument made forcefully to support the “public option”?

One Brief Shining Moment

2009-10-18T19:14:00.000-07:00

For one brief shining moment in November of 2008 Americans seemed unified. For the first time in at least a generation, an election produced a meaningful consensus for change.

But it is one of the many curses of long life that I must remember that these shining moments are all too brief and that the shine is easily and quickly tarnished.

The reality is that the default position for the American electorate is stasis; i.e., resistance to real change. The nature of our politics is that elections are decided by a small percentage of voters - so-called swing voters because they have no ideological or party loyalty. Rather, they sway from left to right to middle, easily manipulated by events, rhetoric, rumor, always motivated by fear.

Obama’s brief shining moment, his Golden Age, may be one of the shortest ever. FDR’s lasted about four years (1933 through 1936); LBJ’s two years (1965 and 1966).
If the health care law turns out to be a disappointment, meaning that (1) it fails to provide universal coverage, (2) seems to be a boondoggle to the insurance companies, and (3) is perceived to be too costly for most people, and if unemployment continues to rise or seems to be stagnant, the midterm election of 2010 may bring an end to any possible alteration of the status quo.

I well remember the 1960's, an era which - to this current generation - stands mostly for excessive optimism and bad hair. The notion that spiritual enlightenment was achievable through individual or collective shortcuts such as drugs, meditation, rock and roll, or free love is rightly viewed as a ridiculous illusion.

But that is not the 60's that I best remember. Another side of the optimistic urge for change manifested in more rational but no less hopeful attempts at leaps of progress. The United States Supreme Court, an institution which for most of our history has been a powerful force against even incremental change, for the blink of an eye under Chief Justice Earl Warren, carried the struggle for societal progress, with revolutionary decisions that enforced racial equality, ensured the separation of church and state, and gave new meaning to the Bill of Rights, especially the often neglected minority protections, the 4th, 5th, 6th and 8th Amendments. It has taken the powers of reaction 40 years to unravel the framework the Warren Court constructed.

In the middle of the decade, political winds gathered to create a perfect storm of progress that had not been equaled since 1933. After the death of JFK, the Republicans nominated Barry Goldwater, the most ideological and polarizing candidate possible. LBJ won a strong mandate and used his unique position as a Southerner with a congressional expertise to pass the Civil Rights Act, the most important racial equality law passed since Reconstruction.

In 1965, LBJ pushed through the Congress the experiment in socialized medicine called Medicare. He followed this with the most optimistic set of programs since the New Deal: his War on Poverty, a constellation of programs designed to directly aid the poor. It included Head Start, the Job Corps, food stamps, and was credited with reducing the percent of families below the poverty line to the lowest it had ever been.

Of course, LBJ soon trashed all the possibilities for progress with his tragic Vietnam policy. Most of his programs were quickly dismantled with the rise of Milton Friedman, resulting in deregulation, reliance on so-called “free markets”, the decline of trade unionism, and “trickle down economics.”

Beginning in the disastrous year of 1968, the Democratic Party began a rapid decline. Progressivism (poisonously labeled “Liberal”) became a dirty word, rejected by the two successful presidential candidates, both right of center Southern governors, Jimmy Carter and Bill Clinton. Both tried to meld a few social policies that were mildly progressive with economic policies that co-opted moderate Republican positions. Both abetted the erosion of Constitutional freedoms, supporting laws that expanded the police power of the government. Carter began the rush to deregulation; Clinton raised campaign fundraising to an art, surpassed Republicans in pandering to corporate lobbyists with the resulting policies that declared “the era of big government was over” and abetting a free market boom that laid the groundwork for Bush’s subsequent rape of the middle class and the crash of our entire economy.

The election of 2008 at first presented a mirror image of the 1968 election. This time, it was the Republican candidate who was saddled with the legacy of disaster by his party’s president. The difference was that this Democrat presented a literal face of change in the most obvious sense. Yet, in a sense, this was an illusion. Oddly, Barack Obama resembles JFK in this way. His personal image wreaks of change, but his politics is actually less radical than his image.

Obama’s overwhelming victory, which dragged in Democratic majorities in both houses of congress, was another illusion. The apparent “mandate for change” neglected to consider the realities, particularly of Democratic party politics. Clinton democrats really control the Senate, with “Blue Dogs”, or heirs of the Democratic Leadership Council, whose politics are barely distinguishable from Republicans.

The lack of difference between the parties has been decried by many observers, cited as responsible for cynicism or apathy among the electorate. Contrary to the wishes of many, Obama is not the massiah of liberalism. He is a Centrist, who learned the lessons taught by Clinton in the 1990's regarding radical social issues. He will be satisfied with a health care bill that passes, whether or not it contains a “public option,” and whether or not it provides universal coverage. He will claim victory and make the best argument he can for the practical need for compromise in order to achieve “progress,” no matter how imperfect.

And he will be right.