The gang's all here

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

June in a nutshell

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

The Definitive Essay On Sports

The Olympics are back again.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Swimming is in the same cubbyhole. 

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

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

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

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

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

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

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

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

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

Mere athleticism is not enough.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Obama's feminist heritage

It seems to me that the true significance of Obama’s success has been overlooked. The op-ed pundits and instant historians have been all over the "First African American presidential candidate of a major party" definition.

Sure, that’s important. But what is even more striking is the symbolism of his bi-racial heritage.

In my mind, Obama stands with Tiger Woods and Halle Berry as vindication of the 1960's liberal faith that integration was going to lead to progress.

I remember whispers during the Civil Rights Movement rasing the specter of "miscegenation" as the horror that might flow from integration. Schoolbooks like "To Kill A Mockingbird" and Hollywood films like "Guess Who’s Coming To Dinner" were liberal responses to the nightmare of black male sexual power that was always used as a potent psychological card played to strike fear into white society.

Progressives persevered, idealistically hoping that integration in schools and housing would finally overcome fear of the unknown. This faith is at the heart of all liberal philosophy, which holds that opening doors for all is the cure for society’s ills. The Civil Rights laws of the 1960's ratifying equal protection in voting, work, housing, and education, asserted that hope.

Almost immediately, the hope faded and reaction set in. Assassinations, the Viet-Nam War, and impatience led to a resurgence of the Black Separatist Movement that had thrived during the Jim Crow era with alarming militant faces scowling on the newly pervasive television: Malcolm, Huey, the SLA, which gave excuse to reactionary vitriol from whites. The anti-busing rebellion of the 1970's exposed the soft underbelly of liberalism.

While the Civil Rights Movement floundered in the 1970's, the feminist movement found its militant voice, taking over the media with protests, organizing, fights over abortion and laws against discrimination in the workplace, education, and in social discourse and manners.Gender issues leapfrogged racial concerns, in part because the power women were able to muster far outstripped racial politics if only because of the sheer numbers of votes at stake.Hillary Clinton symbolizes for many the assertion of that power.

I can see the frustration of women who feel denied the symbolic culmination of the battle for gender equality. Feminists understandably resent being passed over for promotion to the job that might finally shatter the most impenetrable ceiling in American history.

It is certainly arguable that gender bias is even more entrenched in American culture than racial animosity. The 15th Amendment (1878) recognized the right to vote for Negro MALES, while no woman was granted that right until 1919 with passage of the 19th Amendment, a span of 41 years. (Ironically, the amendment was ratified in time for the 1920 presidential election. The next three winners were Warren Harding, Calvin Coolidge, and Herbert Hoover. So much for "progress".)

It is a tempting melodramatic irony that the son of a practitioner of feminist freedom eventually defeated the nation’s symbolic feminist.

Obama’s mother, Ann Dunham, was apparently a product of and exponent of her generation's history. Born in 1942 in Kansas, she rebelled against the conformity of small town midwest orthodoxy. As perceived by her son, she was an ardent feminist, admirer of Martin Luther King, intellectually curious about other cultures. Her life — as perceived by Obama in his autobiographies — is almost a classic journey of the liberal ideal.

Her journey reads as an odyssey of an epowered woman, making choices to pursue excellence in her field, asserting iconoclastic independence, challenging traditional assumptions about womens' roles. Reading between the lines, it seems that her choices caused problems for her son that he would have to overcome with enormous difficulty. Divorce, dislocation, blended families, rootlessness -- issues familiar to many of our children.

Obama’s self-identification as "African-American" is a choice he made consciously after having struggled with defining himself through most of his adolescence. The search to find one’s place is an old and very common human experience, well understood as being especially hard in the face of discrimination for perceived differences from the accepted norm.

Youth is a time when discrimination first stings with agonizing power. Differences as subtle as personality, appearance, manners, or family can be just as devastating to forming individuals as race, religion or sexual preference.

Obama’s sense of his differentness must have been particularly sharp. As he himself describes it, he went through the agony of facing up to whether to accept the definition his peers thrust upon him, or some other kind of identity. Seeing himself as "black," he toyed with the perceived norms of "black culture" in its negative as well as positives. He tried the rage, the self-destructive drugs, sports, denial of his articulate intellect.

Certainly, he must have recognized that his biracial heritage, his multicultural upbringing, the diversity of his education and exposure to diverse world views could become a strength when tempered by his intellect.

Ultimately, he came through the crisis with the enormous ego and confidence that makes him such a formidable presence.

The charisma Obama seems to have for young people must stem from a generational sense of identification with him similar to my generation's intuition about JFK. The talking heads have observed with amazement that the phenomenon that his "blackness" is not "an issue" for young people. I've heard politicians who announced their support for his candidacy by saying that their children urged it.

I suggest that it is not only his "blackness" that young people are unconcerned with, but also his differentness. And that my generation should be proud that for all the mistakes we made and failures to measure up to the ideals of our parents' "Greatest Generation", this may be the most important legacy.

Questions at the Bar

I got a letter from the State Bar. This is only a notch below getting one from the IRS in anxiety production.

It turned out to be from the Office of Admissions. A questionnaire asking my opinion of the "moral character" of someone who has applied to the Bar.

As lawyers are an anal-retentive lot, they felt it necessary to define their terms.

"Moral character includes qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the laws ... and respect for the rights of others and for the judicial process."

Although I’ve known this applicant and his family all of his life, I had to think long and hard about these issues. Knowing that he had been an Eagle Scout helped ... not sure if he earned the "fiduciary responsibility" merit badge, though.

Anyway, I checked the box.

That the Bar cares about these qualities in lawyers may come as a shock to anyone familiar with lawyer jokes or movies. You might think the qualifications demanded more realistic qualities:

... dissembling, ruthlessness, deception, backstabbing, greed, ability to parse the law, trampling the rights of individuals as well as the process...

Maybe the questionnaire should be part of a continuing investigation, asked say every year about every lawyer already admitted to practice.

Then I would really sweat the State Bar letters ... more than the ones from the IRS.

Anyway, good luck, Red. (See my other post about this subject.)

Another "beautiful" mind

He tells the shrink that he’s been diagnosed as schizophrenic, schizoaffective disorder and bipolar. He’s been hospitalized several times, treated with Haldol & Prolixin. Now, he’s taking Abilify.

He also tells him that his marriage was destroyed by the FBI. They took his wife as part of a vast complex conspiracy involving Central Stargate and MK Ultra.

His codename is "The Victim" but he’s not allowed to utter that term. He’s studied remote viewing which allows him to see what others can’t. But others in his family have that power and they’ve been using it to ruin his life, including destroying his marriage. A human cyborg program, begun in Las Vegas, sent an agent to L.A. who is after him.

He’s in court because he threatened to kill a good friend because he thought he was having affairs with his ex-wife and his sister. They know he needs help but he scared them. He’s been smoking grass and it worsens his delusions.

The shrink tells his lawyer that using a mental defense is dangerous because incarceration of this kind of chronic mental patient can become indeterminate. In other words, if he is NGI, incurable, and dangerous, he could be warehoused.

His lawyer gets him through a plea after the DA agrees to take one count for probation and time served. A good deal, given the potential.

Of course, as soon as he’s out, he wants to withdraw his plea. He comes to court needing a bath. He’s got a folder with scribbled notes, arrows, boxes, attempts to make coherent thoughts connect. His affect is clearly mental, several ticks away from the usual client, whose reasoning and credibility is faulty. He is more pathetic; his buyer’s remorse is filled with more than the usual claims of coercion, misrepresentation by his appointed lawyer, his expectations.

It’s evident that he is stuck in a no-win Catch-22 (as was his lawyer). Asserting his version of the case would have been futile - he would have lost, and the result would have been to scare the court (and the D.A.) into fearing his future acting out on his paranoia. They would have envisioned headlines: "Mental Patient Freed By Court Kills ..."

But he can’t succeed on probation, either. The court has imposed a bewildering array of conditions: anger management classes, drug counseling classes, drug testing, reporting, fines, fees, restitution, keep-away orders from "victims" including family and friends.

In court, his affect - as the shrinks politely put it - is inappropriate. He can’t keep quiet, rambles, won’t directly answer questions, interrupts the judge, never accepts an outcome the way a civilized condemned defendant and contrite probationer is supposed to.

The judge properly denies his motion to withdraw his plea and orders him back on probation. He’s not satisfied, becomes agitated, makes faces and noises. The judge loses patience after her short fuse (its Friday afternoon) expires. She screams at him. Orders him to leave the court, then to be remanded. Back-up bailiffs appear, each bigger than the other, ready to pounce. The judge relents. He leaves the court.

He’ll be back.

Crimes Without Punishment

I don’t like to watch crime shows. Too much like my day job. My son has been trying to get me to watch "The Wire" or "Homicide" or any number of crime films. I demur. But on Thursday night I went out to see a movie about the most horrendous crimes in history.


The film was called "Swimming in Auschwitz." It was about six teenage girls who survived the horror to tell the story more than 60 years later. Each is now in her 80's, having spent useful, "normal" lives raising families, living in the Los Angeles area. I happen to know one of them.

Rena Drexler is the mother of a close friend, David Drexler, and grandmother of his kids, Jonathan and Justin. I’ve known them for many years. Rena celebrated her 82nd birthday on May 8, the day of the showing, and the anniversary of the date of her liberation from Auschwitz after three years of terror.

Many of those who survived what is inaccurately called "The Holocaust" (the first use of the word was to describe and unintended tragedy like a forest fire), have been reluctant to talk about their experiences, especially to their children. Many children of survivors have carried unresolved burdens of transferred guilt (and perhaps shame) as a result.

My in-laws, Morris and Esther, avoided extermination by escaping to Russia, returning to Poland after the war to find that most of their relatives were dead. Only later in their lives, under my intense cross-examination spurred by my curiosity, did they relate details that their daughters had never heard. The revelations encouraged them to join a group of children of survivors who shared their common demons.

Rena Drexler has not been reluctant to tell her story. On the contrary, she’s made it her life’s work to bear witness to the events she survived. She speaks at junior and senior high schools. What must these American teens, to whom tragedy is using up the minutes on their cell phones, think of Rena’s teen years spent in forced labor, yards and maybe days from starvation and murder? Rena promises to keep telling the story as long as she has the voice to do it.

During 1974 and 1975, Bijou and I traveled around the world. We spent a month in Israel, where we spent time with relatives and friends of her parents. I kept a journal of our time there and these are some of the entries.

17 September 1974 Tuesday Tel Aviv:
... Binem and Anja Cukier took us in with them. Binem and Bea’s father Morris were boyhood friends in Radom, Poland. In 1935, Binem, then 21, emigrated to Palestine where he had relatives. Morris stayed until the Nazis chased him to Russia. After the war, they corresponded and did so for 30 years until Morris visited Israel three years ago. Now the elderly Cukiers, though eking by in semi-retirement on inflation-slashed pensions still offer what little they have to us. Yaakov has not called today. We are being fed to the point of being stuffed on heavy Jewish food. It is impossible to say no to a woman who cooks all day for you.

Anja is a real Jewish mother, a little dynamo of energy, cooking, cleaning, always urging food on us and always with a smile, a laugh and a friendly warm heart.

On her forearm are the numbers of Auschwitz. She was a young girl when the Nazis marched into Radom. She was taken with others to be a servant for the Nazi commander. For years, she washed, cleaned, and kept her eyes open. She heard and saw unspeakable things. Later, she was taken to Auschwitz. For three months, she waited her turn for the gas chamber. But she was strong and was kept barely alive to work in the arms factory. Just when it seemed it was over, the Swedish Red Cross was allowed to take a few thousand of the sickest to Sweden by some Nazi officer who knew that judgment would come and hoped to make a gesture.

When the war ended, Binem found she was alive and said she was his wife to get her to Israel. Now she is a frail old lady with hard black eyes that peer through her thick glasses and a stomach that rejects food she cannot be sure is safe.

Two years ago she was taken to Germany to testify at the trial of the Radom Nazi commander. He had ordered 30,000 deaths. She is proud of her strength and memory.
He was sentenced to seven years in prison.

30 September Monday Jerusalem:
... We went to Yad Vashem, a memorial built as a reminder of the genocide, what the Israelis call "The Holocaust." We decided it is not an apt designation. It connotes to me a natural, rather than man made, disaster. But perhaps it is meant to be ironic.

Through my own family’s experiences, I’ve lived with the telling and retelling of the stories of that period, complete with films of the camp victims dead and barely alive, told by survivors I have known (tattoos burned into arms and hearts as proof) and have thought much about it from many angles until it became, at times, an annoying cliche, just another means for the imposition of "Jewish guilt."

Yet, walking slowly through the "museum" viewing the display of documents proving the incomprehensible, the photos, the testimony, the "tombstone" with its numbing numbers: "children: 1,500,000" ... and the familiar names: "Kirshbaum, Greenberg ..." The effect of sadness created is overwhelming and real.

It is odd but it moved me to tears as the visions of misery in Calcutta did not. Certainly that "live" experience was more "real" and perhaps more relevant because it goes on today. But somehow I felt detached from it, while this is more a part of my being. The parallel of inhumanity caused by men is there, but maybe it is unrealistic to throw them together.

As we walked out, Bea said: "My God, they really planned to kill all the Jews!" It was a shocking emotional reaction to a historical fact known but not until now felt and understood. She also observed angrily that the memorial should be in Burbank, not Israel, if it is to have impact. As usual, she hits it on the head.

When I returned to Tel Aviv in 1999, Binem was a very old man. Anja had passed the year before and he was saddened to learn that Bea had also died. We made a video of his words to bring home to his boyhood friend, Morris. As I left his little apartment, I felt low, ideas of loss and survival all mixed up in my heart.

Those thoughts resurfaced as I watched the movie, tried to imagine the elderly ladies as they might have been as teenage girls, the hours before they were tumbled into an abyss.

My thoughts get all mixed up again with ideas of loss and survival and the limits of life and memory.

Three for the road ...

I know it must be a bore to read these posts about news articles revealing the flaws in our justice system. I'm sorry about that. I am incapable of letting these things go by without notice or comment. Here's three more from the L.A. Times that you might have missed:

1. Sunday, May 4, 2008, page 1: "When a match is far from a lock." Turns out that using DNA evidence in "cold cases" to find the culprit may result in convicting the wrong person. The article contains a primer on the complex subject of statistical analysis of DNA samples drawn from a database of past criminals.

2. Tuesday, May 6, California section, page B3: "Court voids death case." Mr. Miranda spent 26 years on death row until the California Supreme Court unanimously reversed his conviction because the prosecution failed to disclose to the defense that another person confessed to the crime before the case went to trial. The main witness in the case for the prosecution had confessed in a letter that was possessed by the DA that he, not the defendant, was the killer. The letter remained in the DA file and wasn't discovered by the defense until many years later, when habeas counsel finally convinced a federal court to open the DA's file.

3. Tuesday, May 6, California section, page 1: "Thieves make off with dozens of manhole covers." This needs no explanation...

The (Attorney - Client) Confidence Game

I haven't posted for a while. Been suffering from shingles. No, I didn't fall off the roof. In between scratching & moaning, I've been reading. Last Sunday, a New York Times article caught me deep into the National Section, at page 22, a typical placement for this kind of trivial headline: "Confession Revealed, Freeing Prisoner of 26 Years."

The situation is very weird. Seems that another guy confessed to the crime to his lawyers, but they didn't reveal the fact in public until their client died. Now they've come forward and disclosed the confession. So the wrong guy was convicted and kept serving time years after someone else confessed to the crime.

So, is this justice? The lawyers for the confessing client had a dilemma. What he told them was in confidence, covered by the attorney-client privilege. A lawyer cannot - must not - under pain of disbarment - disclose such confidential information to anyone without the client's permission. Understanding their obligation as well as the problem this information would lead to, the lawyers wisely prepared affidavits containing the detailed information their client confessed to UNDER SEAL - not to be opened until their client died.

There are cases which say that the confidential communication privilege doesn't survive the death of the client. But there are other cases that say otherwise.

Vince Foster, an official in the Clinton administration, was under investigation as part of the so-called Travelgate scandal. He had hired and consulted with an attorney and was under pressure by Ken Starr, the (so-called) Independent Counsel. Foster committed suicide. Starr then sought to interview Foster's lawyer to find out if Foster or others (read Bill & Hillary) had committed crimes or if Foster's death was homicide.

The Supreme Court eventually upheld the attorney-client privilege. The idea of the privilege, which has existed in the common law for centuries, is to encourage a free flow of truthful information between lawyer and client. If the client thinks that what he tells his lawyer will be disclosed, he will ( shudder) lie to or withhold facts from his lawyer. The Supremes observed that many clients would not want their confidences revealed even after death and that was an interest worth protecting, even if it causes "injustice" or incovenience to the cause of justice.

The privilege is not without exceptions. It is now established that it doesn't cover future violent crimes. If the client tells his lawyer he intends to commit violent crimes, the lawyer has a duty to disclose that. I've always resented this. It kind of discriminates against us criminal lawyers. I mean, clients planning non-ciminal transactions can consult their lawyers. I'm waiting for the client who calls me in whispers: "Hey, Mort, I'm in a bank and I want to rob it. What should I do?"

In reality, contrary to public opinion, most clients do not confess to their lawyers. They confess to the cops, to their homies, to everyone in the jail - but they deny guilt to their lawyers. This is mostly because they fear their lawyers won't fight for them unless they believe in their innocence, not because they fear the lawyer will tell on them.

I have friends who never ask their clients if they're guilty because they don't want to be hampered in their defense. I can't deal with that fantasy. I always grill my clients until they confess to me or at least until I'm pretty well convinced of their guilt. My reason is partly selfish: it's bothersome to defend innocent people - the pressure of losing the case when the client is innocent is too intense. Its comforting to defend guilty people.

Death Row Inmate Freed ... ho hum ...

This is not a particularly busy news day. On page 1, Bernanke testified before Congress about the mortgage crisis and the Iraqi army's readiness to fight is questioned. Below the fold, home schooling is featured.

Not many people will read all the way to page A16 to read the story beneath the headline "Death row inmate is set free." Glen Edward Chapman spent 14 years on death row in North Carolina before being released after it was discovered that police detectives had failed to disclose evidence that might have proved someone else committed the murders he was condemned for. His own lawyer was also ruled "ineffective" for failing to investigate enough.

This is such a common tale that it is barely news at all. It is not even the lead article on Page A16. That honor belongs to the jarring headline: "FEMA liquidates its free ice policy," which occupies columns one and two.

By the way, the "Death row" article notes that the conviction was actually reversed 4 years ago. It took the local prosecutor 4 years to decide to dismiss the case.

Speedy justice? Of course, all of this would have been moot if Mr. Chapman had been executed in a "speedy" manner, thus providing closure for the system. What a pity.

Dead Man Living

Harold Hall works in the office of the ICDA program of the County Bar. He fields calls from courts, assigns out the cases, and tracks down lawyers. We share a wry sense of the absurd. Like Harold assigned two cases to me - defendants named "Cum" and "Ngo."

On Thursday morning I opened my Times and got to the Op-Ed page when my coffee mug was almost empty. I found the following article written by him, which I reprint here in its entirety.

A sentence too close to death
By Harold Hall March 27, 2008

I almost died for someone else's crime. Had the jury listened to the prosecutor, I would have been sent to death row, and even might have been executed by now. Instead, I spent nearly 20 years in prison before new evidence proved my innocence and I was able to walk away a free man.

I'm far from the only one who lost decades of my life wrongfully imprisoned. Dozens like me have been exonerated by DNA or other new evidence. Just last week, 56-year-old Willie Earl Green was released in Los Angeles after the sole eyewitness in his case recanted. He'd done 24 years of a 33-year-to-life sentence at San Quentin.

I was 18 years old in 1985 when the police in South L.A. arrested me for a double homicide and rape. I was interrogated for 17 excruciating hours, handcuffed to a chair and denied food and water. The police claimed that they had evidence proving my guilt. I was young and scared and desperate to stop the abuse -- so I told the police what they wanted to hear. I was wrongfully convicted based on that coerced confession and the false testimony of a jailhouse informant.

The jury sentenced me to life in prison without parole. Some might say I was lucky; I had escaped the executioner's needle.

But after spending nearly 20 years in a living hell, I can't really see it that way. No matter which prison I was in -- Lancaster, Folsom, Corcoran -- I was under constant surveillance, stripped of any privacy or autonomy. I was at the mercy of the prison guards, who could make my life as miserable as they wished. I lived in constant fear of prison lockdowns, which could last for months; we would not be allowed out of our cells and could take only "bird baths" in the cell sink.

I refused to let my family visit me. Contact with the outside world had become unbearable. I didn't want to hear stories of family outings or other outside news. That life was over unless I could prove my innocence. I had not been sentenced to execution, but I had been sentenced to die in prison.

Because I was sentenced to life without parole, exoneration was my only chance for release. I repeatedly asked for DNA testing of the evidence in my case, but for years my request was denied by the courts. In 2003, a court looked again at the jailhouse informant and granted me a new trial. As a result, the DNA evidence was finally tested, proving my innocence. In 2004, I was finally free.

I returned to Los Angeles a very different man. Living in prison without hope of parole is a horrible punishment that breaks a person down. I maintained my sanity, but I met inmates who would gladly have accepted execution rather than continue living in those conditions.

As horrible as this sentence is, it does give the state an opportunity for redemption: When an inmate like me proves his innocence, at least the state can set him free. No one can give me back those 19 years of my life, but I am thankful I am here today.

Ruben Cantu was not so lucky. Cantu was just 26 when Texas executed him in 1993. Now, even the prosecutor who sent Cantu to his death thinks that he was probably innocent, the victim of mistaken eyewitness identification and a court system that sacrifices accuracy in the name of efficiency. We know that 127 innocent men and women have been freed from death rows in the U.S. since 1973. What we will never know is how many innocent people have been executed.

On Friday, the California Commission on the Fair Administration of Justice will hold its third and final hearing about problems with the state's death penalty, including the length of appeals, access to lawyers and wrongful convictions. The commission will then begin three months of deliberations and draft a report to the Legislature. Among the questions the commission must grapple with is this: Can California's broken death penalty be fixed, and if so, at what price? But given all the problems -- and the stakes -- the commission should tell the Legislature, and the people of California, that it is time to reconsider whether we need to seek executions at all.

We have an alternative. Sentencing people to die in prison of old age and illness punishes without pretending that we have a foolproof legal system. I'm a living example that we don't. Sadly, Ruben Cantu cannot say the same.

Harold Hall works for the Indigent Criminal Defense Appointments Program of the Los Angeles County Bar Assn.

The Prison Vote

The L.A. Times, Washington Post and Associated Press today summarized a new research paper published by the nonpartisan Pew Center. The report confirmed what some of us already knew, but with startling clarity.

1. At the start of 2008, the U.S. has more than 2.3 million people in prisons and jails. The U.S. leads the world in numbers and percentages of population in that statistic, more than in China (despite its far greater population) or Russia.

2. One out of nine black men between 20 and 34 is behind bars. For white men, the number is 0ne in 30.

3. Nonviolent offenders make up about half of the prison population.

4. Florida, which doubled its prison population in the last 15 years has experienced a smaller drop in crime than New York, which eventually reduced the number of inmates below the 1993 level.

5. The study concluded that while "imprisoning more offenders reduces crime, the effect is influenced by the unemployment rate, wages, the ratio of police officers to residents, and the percentage of young people in the population."

6. State governments spend over $50 billion per year, the feds $5 billion, to incarcerate 1 out of every 100 American adults.

Justice ... update

Today, the L.A. Times reported that California Supreme Court Chief Justice Ron George withdrew his proposal to shift work to lower appellate courts intended to speed up death penalty appeals.

He did so because of supposed budget constraints which would reduce the amount of money available to pay the salaries of clerks for appellate judges, deputy attorneys general to prosecute, and attorneys to defend in these cases.

Aww.... too bad.

Oh, and he didn't mention yesterday's post here as motivation.

Justice Delayed Is ...

"Justice delayed is justice denied."

Who says?

In my own experience, the exact opposite is more often true:

justice delayed is ... justice perfected, or at last ... finally attained.

The cliché is usually attributed to 19th Century English politician, William Gladstone, who also said,

"Liberalism is trust of the people tempered by prudence. Conservatism is distrust of the people tempered by fear."

Gladstone it seems was something of an enigma:

he opposed the abolition of slavery and proposed recognition of the Confederate States Of America.

On the other hand, he favored universal suffrage, at least for men, and opposed British imperialism.

His supporters called him the "Grand Old Man." His rival, Disraeli, preferred "God’s Only Mistake."

The "justice delayed" phrase is widely quoted these days by proponents of speedy justice for criminals. Prosecutors, victims rights advocates, politicians calling themselves "Conservatives," (don’t know what old Gladstone would call them) all bemoan delays built into the justice system.

Some years ago, Californians voted overwhelmingly for something called "The Speedy Trial Initiative" which was meant to streamline the trial process. State Supreme Court Chief Justice Ron George has been lobbying for a reform of the appellate process to relieve his court from the obligation to hear every capital appeal. He wants to transfer the onus to intermediate appellate courts (which are more numerous), just like other cases. The Supremes could then simply review the lower court’s opinons without the need to spend the time of independent judgment.

Those in power are annoyed by the fact that there are more than 600 people on the state’s death row, many of whom have been waiting for years to have cases heard. Many have no lawyers appointed to represent them. Others have been slogging through complicated and seemingly endless habeas corpus proceedings, bouncing back and forth from state and federal courts.

The only fly in the speedy justice ointment is that every day or two a "criminal's" conviction or death sentence is reversed after years and years of languishing, when new evidence uncovers the IN- justice that actually happened all those years ago. DNA tests (or other technological marvels) or reneging snitches and / or eyewitnesses or dishonest jurors are unwrapped, proving that the initial verdicts, which had been affirmed by all the courts along the way were dead wrong.

Miscarriages of justice are not limited to capital cases.

The L.A. Times today reported that the Northern California Innocence Project at Santa Clara University Law School (guided by Prof. Gerald Uelman) and the California Innocence Project at Cal Western Law School in San Diego "have succeeded in helping to exonerate 11 people, two based on DNA evidence, nine on other grounds... The two Innocence Projects are now actively investigating 288 cases and have a backlog of 700 cases." (L.A. Times, California, Saturday, February 24, 2008, p.B-3).

The facts were part of a Times article devoted to reporting the findings of a "blue ribbon commission" chaired by former L.A. D.A. John Van De Kamp, which found that exonerated prisoners, many who have served decades in prisons before being released, were inadequately compensated by the state for the loss of their freedom.

Advocates of speedy justice would have denied such prisoners any of the processes that had reviewed and eventually overturned their wrongful convictions and sentences by terminating their rights to appeal and habeas corpus to federal courts or to re-file dismissed appeals when new evidence is exposed.

The conservative strain of The Law favors certainty and cost efficiency in its justice system and closure for victims and their families over the nuisance of interminable appeals.

After all, as old GOM observed: "Conservatism is distrust of the people tempered by fear."

American Pride

Michelle Obama’s been taking heat from the right wing media & radio nutties for saying that in this campaign she’s felt proud of America for the first time in her life.

"What?" the super patriots howl, "Nothing in her lifetime? Typical liberal anti-Americanism !"

The candidate’s spinners have been frantically trying to mend the perceived gaffe — "She really meant that she’s proud of her hubby," some have whimpered.

Wrong answer.

I completely agree with Ms. Obama.

She was born two months after JFK’s assassination. Apart from the passage of the Civil Rights Act when she was about 2 years old, the moon landing when she was 5, and the U.S. victory over the USSR in hockey when she was 16, what has she experienced to make her proud of her country.

Let’s see: She’s lived through the following tragedies:
Race riots (Watts, Detroit, etc.)
1968 (MLK, RFK, Chicago, etc.)
Viet-Nam
Watergate
Disco
The Iran Hostage Crisis
the Reagan years ("Greed is good")
AIDS
Serbian genocide
Bush 41
African genocide
The Savings & Loan Scandal
OJ
Michael
Monica
Bush 43
Iraq
Katrina
Hilton, Spears & Lohan
the Home Mortgage debacle.

Makes ya proud, huh?

Random Thoughts From My Calendar

February 8, Friday:
I meet a San Francisco habeas lawyer to talk about a couple of cases I have a "past" with. More about the details at some future date.

February 11, Monday:
Spend the day in court in the second day of a preliminary hearing that the D.A. had estimated at one day. Because of her absurdly low estimate, the judge was peeved that I spent so much time in the tedious job of cross-examining the many witnesses she decided to put on. At 4 p.m., the judge recesses the case until the 28th, when we will resume.

February 12, Tuesday:
Lincoln’s birthday - a court holiday. (They also take 2/18, next Monday - President’s Day). I spend it preparing billing and filing.

February 13, Wednesday:
I appear in Van Nuys to represent my client who had sex several times with a 12 year old girl. He is 40. He can’t quite understand why the D.A. wants him to do 11 years. He told the appointed shrink that he had drunk 36 beers before the first time, 15 the second time, and 9 the third. The shrink thought he was exaggerating - about the number of beers. I wonder if he had to drink less each time to get in the mood. I give him until the 27th to decide whether to take the deal or coerce me to trial.

February 14, Thursday:
I spend some time watching Roger Clemons squirm before a House Committee, answering their softballs & innuendos. These congressmen all claim to have been prosecutors in their youth, but none can ask a decent lawyerlike question to a witness. Of course, like all prosecutors they only know how to ask leading questions prepared by their staffs which they’ve never seen before. Given a time limit of 5 minutes, they ask one 5 minute question, which is really a statement or argument followed by "Isn’t that right?"

February 17, Sunday:
In the L.A. Times, there is a story about California prison inmates who have served more time than they should due to incompetent prison officials who can’t understand the complex sentencing laws. I sympathize. I don’t understand them either. There are so many enhancements and amendments to the statutes that no one involved can accurately predict any sentence.

Even misdemeanors are a joke. On a DUI, where the stated fine is, say, $300, the total cost to the defendant is over $1000 because of penalty assessments - like lab costs, police education, ink, air, whatever.

Super Tuesday

While preparing for an upcoming trial, I leave one ear open for the political shows. As proof of my ability to multi-task, this is what I (think I) heard:

MSNBC: "... Based on our exit polling we are calling the state for McCain because none of the Huckabee supporters could find the right polling place..."

CNN: "... On the Democratic side, exit polling showed that Obama was preferred by people who described themselves as ‘cool dudes’and Clinton was favored by people who described themselves as ‘blondes.’..."

ESPN: "...Clinton won Massachusetts because of big margins among sports fans who used to boo Jim Rice and burn crosses on Bill Russell’s lawn..."

PBS: "... Obama won North Dakota and Utah because of overwhelming support of African American voters — both of them... This breaking news, the Black voter in Utah has been deported..."

CNN (Lou Dobbs):" ... Clinton is dominating the Hispanic vote in California, except for the one young Hispanic male who can’t get a fake driver’s license..."

MTV: When asked if Clinton’s wins in New York and New Jersey could be seen as a repudiation of his endorsement of Obama, Robert De Niro asked, 'Are you talkin’ to me? He insisted again and again that "He’s good, yes he is, he’s good'..."

FOX: "... As Criswell predicted, tornadoes in Tennessee suppressed the vote except for Huckabee supporters who saw it as a sign from God ..."

MILITARY CHANNEL: "... It was a night for home state loyalties: Huckabee and Clinton won Arkansas, Clinton also won New York, Romney won Massachusetts, Obama Illinois ... and McCain won Iraq and Afghanistan, narrowly lost Viet Nam, where he was fondly remembered, having resided in Hanoi for five years..."

Other than those developments, the highlight of my day was leaving a rollerball pen uncapped in the pocket of the first new dress shirt I've bought in a year.

The best news: Tomorrow not super Wednesday.

Seems Like Old Times

I can keep silent no longer. Politics is not usually my blog fodder, but sometimes I simply have to stand up and squawk.

Today it is mostly the Obama thing. I’ve heard and read some of my generation talk of him as the ghost of JFK and /or RFK spectrally merged with the soul of MLK.

I admit that when I listen to his speeches, I feel a chill breeze that often accompanies ghostly visions. I get a flashback to the long suppressed tingle my people felt when those apparitions first spoke to us. I was still in high school when I first heard the word "charisma" in the summer of 1960 after JFK’s speech accepting the nomination. From then on, words like "the torch has been passed to a new generation" ... "ask what you can do for your country" and "I have a dream," were intoxicating ... yes, I blush to say, inspiring.

How much substance there was beneath the soaring rhetoric was not in issue back then. That feeling is like the hope of puppy love - it blots out all reason, resists logical analysis, thrives on chemically induced passions.

By the time I graduated law school, eight years later, all such passion had been sapped. We had barely survived the macro i.e: BIG events: The Bay Of Pigs, The Cuban Missile Crisis, The Dallas Weekend, The Warren Report, Goldwater, The John Birch Society, Viet-Nam, Governor Reagan, Mario Savio, Watts Riots, Detroit Riots, Stokely Carmichael, The Black Panthers.

Then came 1968.

The year began by cruelly reviving some of our hopes. The Prague Spring promised freedom in Eastern Europe, Gene McCarthy defeated LBJ in the NH primary & RFK entered the race. LBJ quit. By the end of the summer, while I studied for the Bar Exam, any residue of hope was gone.

We turned away from it all. Some time later, while moving in with Bijou, I found an old college textbook: sociologist David Riesman’s "The Lonely Crowd."

Riesman divided personalities in three general types: Other directed, Outer (or Tradition) directed, and Inner directed. His theory seemed apt to what happened in the following decades. Most in my generation spun inward for satisfaction, first to drugs, sex, music, "self-realization," then to career and acquiring things, and eventually to outright greed. It was a dizzying trip from "I have a dream" to "Greed is good."

By the 90's we were ready for Bill Clinton. His style was a stew of JFK’s voice, gestures and virile persona calculated to attract listeners to his earnest caresses. Like the therapists most of his generation trusted, Bill convinced people (mostly women and minorities) that he heard, understood and cared about each of them, one at a time.

I never felt the magic. I had watched his rise as a "new democrat" in the DLC, knew that he was not about ideals or visions, but compromise and finding ways to win. Not that there is anything wrong with that ... in fact, it is a fine strategy – as he proved. But it is not "inspiring," not likely to move a generation to action. It is notable that Clinton achieved most while Congress was in Newt Gingrich’s control, between ‘95 and ‘97.

After abandoning his "radical" health care plan, he admitted that "the era of big government was over," and got do-able things done: he balanced budgets, reformed welfare, made trade agreements and crime laws, embraced globalization and technology. He was credited for prosperity – which was in part fueled by the disintegration of the Soviet Empire’s threat that permitted lowered defense spending and the tech bubble.

Bill Clinton’s willingness to find a "third way," a strategy that was more cynically labeled "triangulation," also permitted him to raise more campaign money than any Democrat before him. His policies were not threatening to corporate contributors and they preferred him to riskier alternatives on the Left. Positions were calibrated by polls and focus groups to a finer point than ever before, straddling the Center with deft balance.

Bill’s eventual fall was the stuff of Greek Tragedy. Like his model, JFK, his womanizing, ruthlessness, deceptions, were the flip side of his character. But unlike JFK, his times did not permit concealment until after his legend was secure. Ironically, by legitimizing the politics of personal appeal, Clinton opened himself to scrutiny of his personal flaws. Character would now be fair game and whether we would lose the "great" leader in search of the "good" person would be a question.

Now we find Obama presenting himself as the leader who can heal polarization and inspire a "new generation" to believe in the democratic illusion: that government can solve problems. He wants to change direction, not only from the Bush mess but also from the style of creating "wedge issues" that stir anger against ... the enemy. His"story," his appearance and his demeanor all personify the difference in a way reminiscent of TR, FDR, & JFK.

When he speaks, those of my generation can’t help but think of him (wishfully) as the shocking proof that we were right after all back when we were young — integration, optimism, public service, good faith, eloquence, excellence, ideas — they can lead to progress.

But now the inherent filth of campaigning in a democratic election is testing that wish. One of Borenstein’s favorite Laws is that anyone who wants to be president should be suspect. Obama certainly "has the bug." He wants it bad. In recent debates, he’s played the dirty game, rising to the bait all too readily, risking everything, exposing his weaknesses.

A recent New Yorker article pinpointed the theoretical differences between Hillary Clinton and Obama. As defined in a recent debate, Obama sees the presidency as the pulpit to inspire movements for positive change; Clinton sees it as a seat of limited power to do enough to get re-elected.

My suspicion is that, although we always seek the inspirational leader, the fact is that the pragmatic compromiser almost always accomplishes more good.

The trick is to find one who can do both. Inspirational leaders can only move the ball when events conjoin to form strong coalitions, dissolving the usual American public’s polarized state of apathetic skepticism. When the stars align, as for a few years for TR, then for Wilson and again for FDR and even LBJ (from ‘65 to ‘66), the ball can be moved forward in greater increments.

2008 seems to be a time when the seas are ready to part. I might even say that if it doesn’t happen, the Democratic Party should declare bankruptcy and flee.

Yet, it can happen. If Clinton and Obama scratch each other’s eyes out and if Clinton wins the nomination, alienating Obama and his base; and if, say, Romney is nominated, the scenario might make him the candidate of "change" and her the return to the bad old days.

What a revoltin’ development that would be.

"The best of times ... the worst of times ..."

The U.S. Supreme Court accepted cert on a death penalty case arising in Louisiana which will provide an interesting test for the newly constituted Bush / Roberts court.

The defendant is appealing a death sentence for the crime of child rape, not murder.

For most of man’s history, capital crimes included any "felonious" (i.e., serious) crime. As Charles Dickens observed, writing about the late 18th Century custom,

"[T]he hangman, ever busy and ever worse than useless, was in constant requisition; now, stringing up long rows of miscellaneous criminals; now, hanging a housebreaker on Saturday who had been taken on Tuesday; ... today the life of an atrocious murderer, and tomorrow of a wretched pilferer who had robbed a farmer’s boy of sixpence." ("A Tale Of Two Cities")

But after Caryl Chessman was executed in California in 1960 for multiple kidnap rape / robberies amidst public outcries, the Supremes ruled it a violation of the 8th Amendment to execute where no murder occurred. Chessman had been executed under a law enacted in the 1930's. California, like many other states, had made kidnaping itself a capital offense after the notoriety of the Lindbergh case.

A few years later, The US Supremes overturned a Georgia law permitting execution for rape of an adult (the victim was actually 16 years old) as "cruel and unusual punishment."

That has been the law in this country since. Now, as in the aftermath of the Lindbergh case, rage against abductors and molesters of children have led legislators in several states to reinstate the death penalty for such crimes.

Whether the Supreme Court, as presently constituted, will "honor precedent" as the recent nominees, Alito and Roberts, promised in their confirmation hearings, or will concur with their brethren Scalia and Thomas in a "strict interpretation" of the Constitution as it was intended in in the 18th Century is in serious doubt.

Passages - Other Thoughts

My recent post, Passages, brought the following comment from Max:

"If it's any consolation, i suspect mckinley & co. seemed farther back to you then than jfk & co. seem to us now. and i think the reason is technology. 1) we can see and hear the great figures and events of your youth in a way we cannot hear or see the events of your grandparents'; and 2) as remarkable a technological leap as you've witnessed in your lifetime, the one witnessed by your parents/grandparents generation must have been even more so - the difference between phones and the internet, while extraordinary, strikes me as less jarring on a day-to-day basis than the difference between horses and buggies and space travel.or maybe that too is just a matter of perspective."

He's right, of course. The leaps of technology, ever accelerating, seemed to approach light speed in the 20th Century, just in time to befuddle my grandparents' generation.

I vividly remember watching the moon landing in July, 1969 at my parents' house. My grandfather, Papa Hymie, peered at the T.V. through his bottle thick glasses, trying to grasp the idea that a rocket sped at 17,000 miles per hour for a few days and deposited men on the surface of the moon.

I viewed my grandfather's inability to accept the concept, much less the reality, of the feat as only a condescending 20 something know-it-all could, feeling quite superior to this uneducated man of limited imagination.

Some time later, I had occasion to re-think my judgment, when it occurred to me that Papa Hymie had been born in Russia @ 1885. He had come to America by train and ship, a journey that must have taken weeks.

He was well into his teens when the Wright Brothers first controlled their biplane in flight, and was in his 20's when he heard his first radio broadcast. One of his brothers died in October, 1918 on the Western Front and Hymie built ships in Perth Amboy, New Jersey during the Second World War.

Now, when Greg tries to explain computers and cell phones, multitasking and internet capabilities, rhapsodizing on the revoluton expected as the 21st Century matures, my own glasses blur.

But still, I suspect that the 2oth Century is going to be a hard act to follow.

Passages

There are event that cause you to pause and see where you’ve been and where you’re bound to go. For me they are the landmark birthdays — 21, 30, 40, 50, 60 — when I’ve found myself imagining or remembering what my father was at those ages.

It is often a shock to think about such things, sometimes uplifting as when it occurs to me that my father at 50 (I was then 19) seemed so old while I at 50 didn’t feel that way.

My father died 20 years ago this week. By now, most of his generation have passed. My father’s kid sister is the sole survivor of his five siblings. And this week I attended the funeral for my sister’s father-in-law, who made it to 93. My own father-in-law is about 96. No one can be certain of his exact age because he was an unreliable reporter long before his memory began oozing away.

At the memorial service, watching my generation’s children as they experienced their own rite of passage — the loss of the last of their grandparents — and watching my brother, sister, our contemporaries, it struck me that we are the elders now.

How absurd! Even when I feel old, tired, used up, achy and sore, I never conceive of being an "elder" anything. And yet I know it is undeniable.

At the dinner tables in my youth, I remember being awestruck when my grandfather spoke of seeing President McKinley, San Francisco after the big ‘quake, Jack Johnson and Jack Dempsey.

My father spoke of his own boyhood experience of seeing Babe Ruth hit a home run, my mother of winning a Charleston contest, mourning Russ Colombo, seeing the Empire State Building being finished.

How is it possible that the events I relate to my son and nephews: McCarthy, Jackie Robinson, the Kennedy assassination — are as far back to them as those ancient events were to me?

Vacation Over

I just got back from a week’s vacation in Hawaii. During that time I didn’t read a single newspaper, in print or on line. When I returned, seven days of the LA Times were delivered at once. And I find that some disturbing things occurred in my absence.

Barry Bonds was indicted, Ira Levin (author of "Rosemary’s Baby") died, the stock market went down and then up again. The housing market stayed down.

Maybe the most disturbing news was the suicide by hanging of Lisa McCalmont, a 49 year old lawyer from Oklahoma who was actively involved in challenging the constitutionality of lethal injection as a means of capital punishment. She had worked for the federal public defender and had won reversal of at least one other death verdict on appeal, resulting in a life sentence. She lectured across the country to defense lawyers on the subject and was lead counsel on cases that forced Oklahoma to suspend its lethal injection procedures.

According to the Times Obit, she left no note, and friends were unable to explain why she killed herself. I showed the article to Greg, thinking it "ironic." He said it wasn’t irony, but I don’t know.

I can’t help wondering why she chose hanging, a particularly painful form of execution, which had been rejected as "cruel" in favor of more humane forms, like lethal injection, which she crusaded against.

Was she sending a message?

Lights, Camera ,,, Your Witness

I spent the weekend watching aspiring film makers do their thing. There were some actors, a camera operator, a few others who helped with the sound, production, props, and the all-important food breaks.

I was particularly interested in the young guy who was directing the piece. While the others were responsible for their particular roles, each came to him to make the final choices about all the details that seemed to be critical to the success of the project. Though there were suggestions and alternatives offered from all sides, his was the final word each time. Even for a one day "shoot" of an 8 page script on a mini budget, he had to make decisions about almost every aspect of the work. I couldn’t help comparing his job to mine.

Every case, especially those that come to a trial, involves hundreds of similar decisions. A "story" has to be told, usually a mystery. Sometimes a whodunnit, or why, or how, but always some riddle that has to be decided. On occasion, the trial becomes a thriller or a comedy and almost all criminal cases have elements of tragedy.

The lawyer is performing, orchestrating by his questions, his arguments — molding a "script" for his audience. Where should the emphasis be placed? How should the scenes be set? It is a performance that demands a certain amount of "craft."
But there are certainly differences.

For one, the director of the film can shoot his scenes in alternative versions and then edit at leisure to tailor his story. The performance of the trial is more akin to a "live" show. The lawyer has to edit on the fly, if at all, by trying to keep out "bad" evidence, to prevent blurted deviations from his theme.

Rarely, the lawyer gets a "do over" when there is a mistrial, a hung jury. Then the drama has to be played out again, with the handy "script" that we call a "transcript," the record of the previous testimony. With the surprise now gone, these shows tend to be anti-climactic and dull, at least for the lawyers. That is, until one of the lawyers decides to "edit" by presenting different or additional witnesses.

Or, as sometimes happens, a witness decides to be creative by improvising new answers to the questions previously asked. That gets to be fun.

The lawyer has one advantage over the film director. He has only to please an audience of 12. But he picks them from among a large pool of unwilling applicants. The director is at the mercy of a random audience which he cannot choose, except by advertising his production in order to entice a favorable pool.

As I watched the director coaching his actors to produce the greatest impact for each scene, I found myself imagining how nice it would be to be able to "coach" witnesses and clients in a criminal trial. Coaching witnesses is supposed to be a no-no, because it implies feeding them lines, but some lawyers find it impossible not to do it.

I’ve never been able to bring myself to do it. Maybe I don’t want to win badly enough — its probably a character flaw. But I just always have the nightmare that if I tried it, my client or witness would mess up and blurt out, "Well, that’s what the lawyer told me to say!"

I’ve caught prosecution witnesses that way on occasion and it is not a pretty sight.
I have had the miserable experience of hearing my client tell a completely different version of the "facts" on the witness stand than the one he told me was the "truth" when I interviewed him. I looked down at my notes of the interview and listened to this new "story," felt the beads of sweat drip in my armpits, and asked "What happened next?" trying to sound to the jury as if I really knew what he was going to say.

That must be how the actors and director feel when Robin Williams or Robert De Niro begin to "wing it" during filming, except that the director can yell "cut" and the result is almost always more entertaining than the original lines.

My client wasn’t as entertaining, at least not to me. But then again, the D.A., judge, and the jury were laughing.