My Days In Court

I spent the last two days in and around courtrooms ... waiting. That’s mostly what you do in court. It gives me time to think about stuff. Here’s some of it.

Yesterday I did a pro bono day in Van Nuys, represented a girl (born in 1989) charged with the felony of possessing an access card, which she says belonged to her stepfather. Her mother supports her, says she’s doing well in rehab, no longer seeing her meth selling boyfriend. Another girl (born 1987) is charged with possession of heroin, which she says she was holding for her boyfriend. She wants drug rehab.

... What would it be like to be a public defender in Iran?

Imagine bargaining with the prosecutor:
"Fifty lashes? It’s a first offense. How about 20 lashes."
"Okay, 20 lashes ... and her left hand."

In our country, that could never happen...

Uh oh... What’s this in the L.A. Times?
An 18 year old boy with a 47 I.Q. sexually assaulted a 7 year old boy. The appointed defense attorney pled his client and sought probation. The jury sentenced him to 100 years in prison.

Oh, wait, that was not in this country ... it was in Texas.

Today, I was supposed to start a three day preliminary hearing in San Fernando.

The case stems from a turf dispute between gang members and residents of a drug rehab house in the neighborhood. The gang members had received complaints from their drug buyers that they had been robbed of the drugs by the druggies loitering around their rehab center.

After some negotiations between the parties, somebody got shot five times and ended up in a wheelchair.

I represent one of the three gang members charged ... the innocent one.

We had been ordered to appear in court this morning at 9 a.m. ready to go. Yesterday afternoon, I was informed that one of the lawyers wouldn’t be there until late in the morning or 1:30. So, there was no need for me to rush this morning. At 8:30, I called the court clerk. He told me I’d better get there at nine, because the judge was on the warpath.

I rushed, got there at 9. By 11 a.m, the third lawyer still hadn’t arrived. But the D.A. wasn’t ready either. Her "victim" failed to show up. She didn’t know where he was, hoped she could get him there tomorrow.

Carping Clowns of Conservatism

Spiro Agnew once called critics of the Nixon Administration the "nattering nabobs of negativism" and "pusillanimous purveyors of pessimism." Agnew wasn’t smart enough to have made up those polysyllabic words all by himself, but I was reminded of them when I watch the nabobs on cable t.v. nattering negatives about Obama’s struggles to clean up the mess made by the previous lessees of his residence.

How can anyone watch his press conference today in London without comparing his virtuoso performance with any by the idiot he replaced. This, of course, is a cheap shot, because W. did not set a high standard for competence, fluency, charm, intelligence, insight, or understanding of economics or any other subject taught beyond middle school. In one instance, Obama referred to "Bretton Woods." I’d bet any amount that W. thinks that might be Tiger’s uncle or the place where Tigger lived.

The media & blogs are fixated on "the first 100 days" - as if eight years of destruction and neglect of virtually every duty a government should have performed could and must be healed in that time. I challenge any historian to find a more productive period for a president than what we have seen so far (@ day 80 by my count).

In their effort to maintain controversy, the cable talking heads trot out the usual suspects, introduced as "consultants", who parrot the talking points they’ve been texted by their think tanks. Allowing pinheads like Pat Buchanan, or even Dick Cheney, to be heard at this time is stretching the Fifth Amendment to absurd limits. As one who is all too familiar with the sound of weak arguments, I cringe at the burden such spinners have to carry. In court, the doctrine of "clean hands" precludes hearing of complaints from these sources.

Congressional critics from the Right have the hardest time carping. Like the fabled defendant who killed his parents and asked for mercy as an orphan, these clowns can only whine about "deficits" and "socialism" and "dictatorship" which gets them laugh time on The Daily Show or David Gregory’s (MSNBC)"hypocrisy watch".

As with any rational president, Obama has his critics from within his own party. The Left is dubious about sending more troops to Afghanistan, more Wall Street bailouts while seeming to leave auto union workers to hang in the wind, suspicions about continuing W’s tactics against "terror", and delaying repeal of "don’t ask, don’t tell".

While I admit some concern about these issues, they don’t come near to outweighing the achievements so far. I will remain, for the time being, an Overtly Optimistic Observer Of Obama Operatics.

Superheroes ... and golf (?)

Watchmen, Spiderman, Obama. Batman Returns. So does Tiger Woods.

The relationship of sports to pop culture has been a subject of so much sappy rhetoric that it has become a tired overstated subject. Sports heroes are our equivalent of the heroes of ancient myths. Annointed by the gods, they seem to be living superheroes, possessing physical and mental powers that surpass mere mortals. We watch their games as reality shows, live dramas anticipating a stirring climax - victory snatched from the jaws of defeat. "Larger-than-life" fits these heroic figures far more than mere entertainment celebrities. Not mere stars, they are superstars.

Rarely, a sports hero surpasses the precinct of his or her specialty and enters the realm of social symbolism when we sense an even greater meaning. In America, when a person of color or a woman becomes a hero, it is remarkable. We have had several examples: Jim Thorpe, Jack Johnson, Jesse Owens, Babe Zaharious, Jackie Robinson, Ali, Bille Jean King, Michael Jordan.

Tiger Woods may be the greatest of them all.

Wait, a golfer? Are you serious? Golf is not a sport, it is an activity popular with old men like me who can’t bowl. Golf doesn’t demand the athleticism of boxing, football, basketball or even tennis.

Generally true, but let me state the case before you scoff.

(1) Woods is a physical specimen, acknowledged by Jordan, Gretsky, and other friends as one who could have played any other sport at a high level. He brought fitness, strength, awesome power to his sport.

(2) The spacing between Woods and his merely mortal competitors is enormous. Like Babe Ruth, who hit more home runs than any team, Woods sets marks that none can approach. He often wins by wide margins. The U.S. Open by 15, the Masters by 12, the British Open by 8. He wins over 29% of the time (in a sport where the next greatest in history, Jack Nicklaus, won 12%).

(3) His life story is the stuff of legend. Here is the way the L.A. Times once related it.

"Eldrick ‘Tiger’ Woods was born Dec. 30, 1975 in Cypress and showed an interest in golf when he was 6 months old in his crib, watching (his father) Earl hit golf balls into a net and imitating his swing. The precocious Tiger appeared on the ‘Mike Douglas Show’ at 2, hitting putts with Bob Hope. At 3, Woods shot 48 over nine holes. He played his first pro event at 16, the Nissan L. A. Open ... Woods was 20 when he turned pro in September 1996, after the most heralded amateur career since Nicklaus. He is a three-time winner of the U.S. Junior Amateur Championship, from 1991 to 1993. No one else has won more than once.

"At 18, he became the youngest winner of the U. S. Amateur when he triumphed in 1994. Woods won again in 1995 and in 1996 ... where his victory made him the only player to win three consecutive U.S. Amateur titles. Woods turned pro the next day, leaving an amateur legacy rivaling that of Bobby Jones. No one equaled Woods’ record of 18 consecutive match play victories or his winning percentage of .909. His 6 consecutive years of winning a USGA championship are second to Jones’ eight...."

(4) Woods is not just a person of color. He is a person of all colors. He jokingly labeled himself a "Cau-Bl-In-Asian," mother Cambodian, father and African American with native American ancestry.

Golf has been the last bastion of white supremacy in sports and the Masters, in Augusta, Georgia has been the castle keep. Woods’ victory in 1997 ended the whites only aura at the stately club, and Woods’ has since won three more times.

You see, The Masters was created by and symbolized by Bobby Jones, the ultimate symbol of Southern White gentleman amateur ideals. He retired in 1930 after winning what the newspapers later called "The Grand Slam" (his legend created by the great Southern sports writer, Grantland Rice) the four most prestigious tournaments of the time: the British Open, British Amateur, U.S. Open, U.S. Amateur.

Being a product of the 1920's, the Golden Age of 20th century sports, Jones was a hero to the masses rivaling Ruth, Grange, or the Georgian Cobb (an ungentlemanly Southerner). He was given a tickertape parade down Broadway like Lindbergh and Pershing when he returned from Britain. He then promptly retired from competitive golf in favor of a career in law, business and quiet celebrity. He never turned pro and solidified his status as role model for gentlemen. By 1934, he had built his course in Atlanta as an elite vacation place for wealthy sportsman of the northeast for the mild deep southern winters and spring. The course and tournament mystique was established for all time in the minds and hearts of the southern boys who dominated the sport.

In the 30's and 40's the heros of golf were mostly poor white boys who grew up around courses as caddies, and yearned for the status the sport provided. Texans particularly dominated: Byron Nelson, Ben Hogan and others. In the 1950's, Arnold Palmer appeared to create a new legend and expand the symbolic nature of the sport. Palmer was son of a Pennsylvania greenskeeper, he was White, but he had the look and manner not of a Southern gentleman but of a Pittsburgh miner. He was a working class looking guy who looked and fought like Rocky Marciano. His emergence coincided with television coverage of the sport and his charging style inspired a popularity of the sport among the hoi polloi it had never known before.

Jack Nicklaus’ arrival as a pro after a storied amateur career to challenge and eventually surpass Palmer and all others over a 20 year stretch, dominated the imagination with a consistency of excellence that most believed would never be matched. He won 18 major championships, including the Masters 6 times in 3 decades.

Woods’ success has taken the sport to a new level of popularity. T.V. ratings for his appearances challenge pro basketball. His marketing clout equals the phenomenon of Michael Jordan. Spurred to new heights of effort by Woods’ example, all the other pro golfers have raised their own games. Conditioning and intensity is now a year round grind. The athleticism which was always lacking in the game is now demanded as is consistent concentration. Because of Woods, the money available to all is now staggering: millions in purses, endorsements, and perks are now standard. Golfers are no longer considered by other athletes and viewers as soft bellied, laid back country clubbers.

(5) Woods has an unparalleled flair for drama.
As an entertainment, sports events surpass scripted dramas for tension and surprise. The last second shot, the buzzer beater, the walk-off homer with two out in the bottom of the ninth, the hail Mary bomb with no time on the clock are moments that children dream of, that Hollywood tries to emulate, that provides shock and awe when seen live and real.

As I’ve written, Woods’ power to separate himself from others by huge numbers is one part of his legend. Another is his unbelievable ability to will himself to win at the last moment again and again. Putting is golf’s equivalent of the free throw. It is something that is not too hard to do until the pressure is on. When thousands are watching, when millions of dollars and the hopes of others are pending, it becomes easy to choke.

This week Woods won a golf tournament with a 15 foot putt on the 72nd hole as darkness descended. He had won the same tournament last year on the same hole with an even longer shot. In the U.S. Open, he sunk one to get into a playoff. He has been doing that same thing since he was a child.

Last year in the U.S. Open, we watched him for five days playing on a leg that had two tibial fractures and a shredded knee ligament. Time after time, he winced in agony as he swung his driver at 120 m.p.h. Limping off the tee, he staggered to the next shot, and the next, for 91 holes until he won and went into surgery to repair his leg.

For 8 months he rested. He is almost a billionaire. Now almost 34, he has 2 children, interests apart from playing the game, his place secure, nothing to prove.

What he proved this weekend is that he epitomizes values that sport in its purest ideal promises but rarely approaches. He is a professional, but defines it not by the money he earns, or the fame it provides. He competes with his peers and finds the thrill of living by winning. More than that, he challenges himself to excel, to continuously test himself, to surpass what he has done before.

Comparison with Barack Obama is not a stretch.

I am not afraid to be corny and overly exultant. We are living in remarkable era when we need heroes.

Girls are different

Bijou and Karen were determined to raise their sons by gender neutral non-sexist anti-misogynist socialization. Their clinical experiment soon proved discouraging. Bijou returned from mommy and me sessions nonplussed.

Given a teacup and saucer, the girls played like grownups. The boys played frisbee. Given toy trucks, the girls rolled them on an imaginary road; the boys smashed them together. She concluded: the girls use the tools for the intended purpose; the boys made weapons.

A generation later, Elizabeth Bea calls me to discuss her day. She talks about friends, her new clothes, her clothes.

I ask about her booboo from a fall.

"It’s better. It hurt but then it didn’t anymore and I looked at it in the mirror and it’s still red and my butt is big and ..."

"What?"

"It’s still red ..."

"No, what did you say after that?"

Michele butts in: "She’s been saying that her butt is big. I don’t know where she got that from."

"I wonder that you wonder."

"She’s only four and a half! It starts so young."

Girls are different....

Parole Or Pay

A few months ago, I received a phone call from the mother of one of my former clients. He had been convicted of aiding in a second degree murder and was serving a potential life sentence but now was eligible for a parole hearing. The mom wanted my help. She sent me a packet of documents of her son’s behavior while in prison which convinced me that he had done everything he could to earn his release.

The public still thinks that the justice system is a revolving door that is too lenient. The truth is that for thirty years, the California prison population has exploded because of harsh sentencing laws and the plitically motivated policies of governors pandering to the tough on crime climate of the times. On one end of the spectrum are the disproportionate sentences for non-violent crimes, like drug possession and street sales. The three strikes law is another example, resulting in life sentences or petty crimes committed by repeat offenders.

On the other end are the life sentences imposed for violent crimes for which the law prescribes a possibility of future parole. Governors regularly appoint members of the parole board who are disinclined toward parole. Guidelines for release have been stiffened, reducing the emphasis on rehabilitation and focusing on the evil of the crime itself.

In recent years, however, the pendulum has begun to swing the other way. Abused women serving life sentences for second degree (non-premeditated) murder were the first beneficiaries of the new attitude. In some instances, the parole board recognized the mitigating fact of the newly recognized "battered women syndrome" as mitigation. When the governor overturned his own board’s recommendation in favor of parole, the political winds blasted him. He dropped his objections. The law was changed, requiring consideration of the defense in parole consideration.
The second seismic event was the rumbling caused by DNA evidence that led the public to doubt the infallibility of the system. Recently, the appellate courts have begun to act. Appeals of denial of parole have criticized denials based solely on the facts of the crime. The standard should be whether the inmate currently poses a threat to society. Appellate oversight of the parole system which has been lacking for many years is an encouraging sign.


But now there is likely to be a backlash. The Oakland police officers were killed by a parolee. The Biography Channel has a new series called Parole Board which tells the horror stories about criminals seeking release. There is no doubt that the high rate of recidivism is a strong argument against parole. But the response is not necessarily continued warehousing. If the emphasis of imprisonment was on rehabilitation rather than mere punishment, lives could be redeemed, recidivism reduced, and crime rates managed.

The biggest problem is that reform of the prison / parole process would demand a commitment greater than the Wall Street bailout or Afghanistan nation building. I am less than sanguine about the chances.

In response to the plea from my client’s mother, I sent a lengthy letter to the parole board:
"... At the time of his arrest in this matter, Mr. P was eighteen (18) years of age, with no prior criminal history either as a juvenile or adult. My impression of him at the time I was appointed by the court was that he was an immature young man who became involved in the crimes charged through a misguided sense of loyalty to friends, but that he was not, as so many of my clients have been, irretrievably committed to a gang or habitual criminal life style.
"His culpability in the crimes was based on aiding his friend in the mistaken belief that to do so would be in his friend’s defense. He thus foolishly provided his friend with a knife and, with others, accompanied him to a confrontation with people who he was led to believe had wronged and injured his friend. The jury’s verdict confirmed the fact that P, himself, was not personally armed with a weapon during the encounter, and that his culpability was in fact as an aider-abettor, having provided a weapon which he should have known might be used to kill another.
"After Mr. P’s sentence to prison, I kept in touch with his mother, who continued to apprise me of her son’s progress toward rehabilitation. She has provided me with documentation of his strenuous and sincere efforts to change his life and to prepare himself for a future date when he might be freed from prison.
"I have been impressed that Mr. P has taken every opportunity while incarcerated to prepare himself for life as a responsible citizen. He has pursued an education, participated in vocational training programs to insure his employability, and perhaps most importantly, has taken every opportunity to achieve psychological understanding that will insure that he will be a mature and lawful member of society upon his release. The extent of the documentation of his actions convinces me that his efforts at rehabilitation constitute much more than a mere paying of "lip service" to the concept of rehabilitation, but in fact represents proof that he sincerely and diligently used his "time" productively in a serious effort to change his life.
"I believe that during his incarceration in every institution to which he has been placed, he has achieved a flawless disciplinary record, cooperating with staff in every respect, and avoiding associations with any troublesome groups or individuals. The comments of staff supervisors who closely monitored his behavior at each institution testifies to his continuing commitment to that goal.
"All of these considerations support a strong sense of confidence that Mr. P would not, if released on parole, pose a threat to society. It is clear that he is not the same impulsive, immature young man he was at the time of committing the offenses that resulted in his incarceration. He has shown a willingness and ability to conform to the rules of society, no matter how difficult his circumstances, and to keep his focus on leading a productive and useful life.
"I believe that he has matured, is remorseful about his involvement in the offenses and the harm that his actions caused. He has accepted his punishment for those actions without resentment, and made every effort to make up for his errors.
"If ever there was an appropriate subject for parole, I believe that Mr. P has shown that he has earned that trust."

A couple of days ago, his mother called. P was denied parole, apparently on the rationale that he hadn’t expressed enough remorse for his crime. He can re-apply in five years.

Hall of Famers

The Studio City driving range is a Valley landmark. On Whitsett just north of Ventura Blvd., it is a place where Hollywood types sometimes hang to smash golf balls off mats and share stories about crooked agents and unsold scripts.
Dennis Quaid, Sylvester Stallone, Jon Lovitz and Christian Slater have taken lessons from the pros there and some old timers whose faces pop up in commercials or old films can be seen on the putting green. Don Cornelius, the longtime host of "Soul Train", is a regular.
Those guys are usually left alone by the rest of the duffers who are there to pound golf balls. Celebrities are usually treated the way we treat grieving acquaintances, a quick gesture of recognition (just so they don’t feel forgotten) followed by averting eyes and giving plenty of space.
There is some solace in noticing that most of these famous and successful stars are lousy golfers, and I can usually outdrive them.
Then there are some visitors who inspire something more than curiosity. Pete Sampras recently took a series of lessons from one of the pros there, Ron Del Bario. Sampras was pretty serious about his golf after retiring from a tennis career that left him as one of the all time greats. He brought his own cameraman to record every lesson and said he was practicing hours every day. He sweated out his golf lessons, and you could see what made him a superior athlete. It was impressive.
But I was not still not in awe until a few years ago, when Ernie Banks frequented the range, visiting an old friend from Chicago. I had seen him play in Ebbetts Field when the Cubs visited the Dodgers in 1956. Along with Musial, Kiner, Spahn, Roberts, and the other stars of that era, Banks had been a superhero. He hit 512 career home runs when it meant something, and has ever since been called "Mister Cub".
At the range fifty years later, I was able to have several long talks with Mr. Banks.

Now in his 70's, he was an elderly African American man, friendly and approachable. Not until you looked closely at his forearms and wrists could you see the athlete he was and always will be. Now thick in the waist and waddling on arthritic pins, he swung his golf club gingerly, though the competitive fire was evident when he hit a good one.
I told him about seeing him when I was a kid, realizing that he has heard that story a million times. He was more interested in his work with ghetto kids in Chicago and getting his projects going.

Today at the range I ran into another sports legend of my youth. Jim Brown was the best football player of his era and possibly of all time. He is considered one of the best athletes of the second half of the 20th Century. When I was in high school, rooting for the NY Giants of Sam Huff and company, the Cleveland Browns were their rivals. Brown regularly gained over a hundred yards a game rushing and more than a thousand yards a season (when a season was 12 games, not 16 as now). Although he was the focus of every defense he played against, he averaged 5 yards a carry for nine years. At 6'2" 230, with speed and power, most experts think he would have been a great player in any era.

He quit playing at the top, at age 30, and became an actor, in "The Dirty Dozen" and other films, and was active in the Civil Rights Movement, marching with Dr. King, speaking out with other African American sports stars like Bill Russell, Ali, Kareem-Jabbar. He was known as confrontational, sometimes militant and troubled (as when he was accused of domestic violence acts - throwing a lady friend from a balcony, for instance).

At the range, Brown could barely walk. He was stooped, barely recognizable. I found out that he’s recently had hip replacement surgery, which didn’t surprise me. Brown had over 2300 carries in 9 years, and was targeted by guys like Dick Butkus and Huff for special treatment. Brown’s trademark move was to rise very slowly after a tackle and walk back to the huddle as if he could barely make it. Taking the next handoff, he shot through the line with the same speed and power as always.
I asked him about it today. He explained gruffly but patiently - having told it many times - that he did that so the other team would never know whether he was really hurt by a tackle. I joked that his injuries may have come from lacrosse. Brown chuckled at that. He was an all-American in lacrosse and football at Syracuse, remembered there as the best college lacrosse player ever. He also lettered in basketball.

He said, "No, my troubles come from being 73."

He swung his golf club stiff-legged, but still managed to move the ball out there using only his upper body. He hit two buckets of balls, placing each one on the tee with a device that didn’t require bending down. When he hit a good shot, he smiled. When I hit a good one, he sometimes said, "That sounded good".
He shared his opinion of modern players. "The difference is preparation. You can’t do it in a nightclub." About Tiger Woods? "He may have lost it when he got hurt. This young kid, McElroy is 19 and he looks good." Someone mentioned Anthony Kim, a young pro who used to attract crowds at the Studio City range when he was the best ball striker there at 8 years old.
I suggested that maybe Tiger got interested in other things during his 8 month layoff - he has a second child, all the money in the world, and his father wanted him to change the world. Brown laughed at that. "Earl got pushed aside by the corporate suits and it became about making money, that’s all." I asked about his foundation. Brown didn’t conceal his bitterness. "His foundation? He expects to change life in the ghetto by teaching golf?"

I knew that Brown had spent many years speaking out about gangs and black poverty and had his own foundation. It crossed my mind that disappointment and ego were involved in his opinions.
When I left, he was still hitting balls. I wished him well. He said, "See ya."

On the way out, Samuel L. Jackson strolled in, carrying his golf bag, a serious look on his face, maybe seeking "the path of the righteous man" who can hit a golf ball out to the fence.

Top 100 worries: revised

We used to play a game of listing our top 100 worries. In the beginning, this was reassuring, because by the time we got to number 30 or so, asteroid collisions, locust invasions, and other concerns filled out our lists.
In 1980, we had a child, pushing asteroids down to the high 90's. That was almost 29 years ago. The child is now an independent man. This has reduced the number of my worries, but has not eliminated them. I’ve found it to be true that a parent eventually loses all control over the outcome of a child’s life, but never loses the sense of high anxiety about it.
My anxiety level has fluctuated wildly since he moved to Portland to attend Reed College and majored in Art history. This, I feared, might not lead to the secure (read prosperous) life I wished for him. When, after graduation, he stayed in Portland, formed an Indie Pop band with high school chums, worked as a waiter in a dessert shop, and spent seemingly huge chunks of energy on his laptop computer making and disseminating music, creating art, blogging, and other activities that didn’t fit my definition of "productive" (that is, producing income), my worry list occasionally expanded beyond 100.

As he explains, his interest in creating and disseminating his music led him to create websites which required that he learn and master computing languages, particularly "Rails" on which he has lectured at several conferences. This interest led him to try his hand at physical computing, writing programs that make bells ring and mixes drinks (at last, something useful).
Now, something has happened that has alleviated many of my worries. Greg was recently accepted into the NYU ITP a two year post graduate program focusing on interactive telecommunications.
Turns out there is an entire area of study on the cutting edge that synthesizes many of Greg’s interests. His apparently meandering journey seems to have found a guidepost.

I see now that whether this will lead to "security" as defined by my paper chase generation is very much beside the point. Peace of mind is far more likely through allowing one’s interests to lead wherever they lead. The artificial clocks that ticked so urgently to my generation have been abandoned. While my own winds down, with midnight approaching, I can at least check off items from my list.

Now I have to find new worries to fill out the top 100. Wait, Greg will be in New York for two years ... uh, where’s my list?

Tales from The Great Depression

My father graduated from high school in 1930, possibly the worst year of the century to enter the work force. In fact, he had planned to go to college, but as the oldest of six children he was expected to find work. He found it in the garment industry as his father had.

My mother’s family was poorer. She left high school to work in a slipper factory, earning $8 a week, of which she gave $6 to her mother.

Her mother and aunt had run a succession of basement Rumanian restaurants. This is not to be confused with a string of restaurants - these were tiny establishments which were abandoned when business failed to make the rents. The first month was usually provided free of rent when Papa Hymie agreed to paint the places himself.

They were married in August, 1934. My father was 22, my mother 18. They must have liked each other in those early days. My brother was born in June, 1935.

My mother claimed that those were happy days. "We didn’t have any money, but it was okay because neither did anyone else."

Jobs were hard to find among their group of friends who were always hunting for work. One was Benny Solinsky (phoenetic spelling). According to my mother, Benny would have been a terrific stand up comic, but for one problem, a tantalizing stutter.

One day Bennie returned from one of his many job searches, slouching with disgust. My mother asked Benny what was wrong.

Benny said, "I-I w-went for a j-job."

"What job?" my mother asked.

"An a–a-announcer at a-a r-radio station."

"Dont tell me. They didn’t hire you."

"N-no, b-b-b-because I’m J-J-J-Jewish."

My mother explained the WPA with this story .

She told me that when my brother was an infant, she used to wheel his baby carriage the couple of blocks from our apartment (on 35th Street near Surf Avenue) to the boardwalk in Coney Island. She’d sit on one of the benches, knitting, rocking the carriage and watching the WPA workers on the beach.

A dump truck parked on the beach next to the work gang, a crew of many men with shovels who filled the truck with sand. The truck then took the tons of sand to the next beach (about a block away) while the workmen followed on foot. The sand was dumped and the men smoothed it out.

After a week, the men marched to the beach where the sand had been dumped, filled the truck with the same sand and returned it to the first beach.

My mother accompanied her telling of the story with giggles, appreciating the irony of the make work government program. She was not one to oppose government waste. She understood and accepted the goal of the New Deal to put people to work, even if the work was silly work.

In fact, the particular project she witnessed was useful. The redistribution of the sand on the beach accompanied the renovation and expansion of the rock breakwaters that divided the beaches. The project was needed to prevent erosion and preserve the beaches for recreation. It was the sandbox of my childhood.

A. Lincoln For The Defense

Recently, I issued a post which mentioned the Duff Armstrong murder case, in which Lincoln won an acquittal. Reading further about Lincoln's law career, I came across another of Lincoln's murder cases. Like many Lincoln stories, documentation of the details of this case relies partly on records and partly on folklore.

In 1857, Lincoln represented Melissa Goings, who slugged her abusive husband over the head which resulted in his eventual death. She was charged with murder, although many in the Metamora, Illinois community sympathized with her, knowing her husband's reputation for overly aggressive wife beating.

According to the local legend version of the case, Ms. Goings had been released on bond which had been posted by sympathizers. But the judge, who was not sympathetic to her plight, revoked her bail and remanded her to custody. Sensing the case was going badly, Lincoln asked for time to meet in private with his client and was placed with her in a room on the first floor of the courthouse while the bailiff stood guard outside the door.

At one point, Lincoln left the room. After a while, the bailiff entered and found that Ms. Goings had escaped through an open window.

In a packed courtroom, Lincoln was questioned about his client's absence. He shrugged, said that she had asked him for a drink of water. He told her that the water in Tennessee was sweet. He then left the room.

Supposedly, the audience in the court burst into laughter.

Whether this story is the truth, the whole truth and nothing but the truth is in doubt. It fits a bit too well into the Lincoln lore - admiration for the man of the people who knew how to evade the harsh letter of the law in order to evoke the spirit of the law. The record is devoid of any reference to sanctions imposed upon Lincoln for what the judge surely would have perceived as outrageously unethical conduct.

If Lincoln had made the statements attributed to him, it may have been an example of his famous sense of humor, meant to defuse a tense situation, rather than a serious implication of his complicity.

Historians note that a warrant was issued for Goings' arrest, but when Lincoln returned the next year, he met with the prosecutor and the warrant was quashed and the case dismissed. It has been inferred that, because the community sided with her plight, the lawyers may have conspired to "settle" the matter this way.

Lincoln spent 23 years as a practising lawyer, representing clients in an estimated 5,000 cases of all sorts. Scholars make the case that his experiences as a lawyer during those years formed the character that marked Lincoln's future greatness as president.

Was Preservation of the Union a Moral Issue?

Modern historians hold that the Emancipation Proclamation "ennobled" the cause of the Civil War by making it a moral crusade to free the slaves and, eventually, to end the institution of slavery, which led to the recognition of the equality of all, thus perfecting the Union envisioned by the Founding Fathers.

Yet, Lincoln often said that preservation of the Union was his first and only concern. He famously said that to preserve the Union he would be willing to free all slaves, no slaves or some slaves. While I understand that his views of the goals of the War changed as it progressed, and that he grew to see the issues as unified, he continued to express it in terms of the question of Union, i.e., "... whether that nation [conceived in liberty and ... the proposition that all men are created equal] shall endure ...."

Lincoln repeatedly insisted that his mission was to preserve the Union at any cost --- in the face of disastrous military defeats, despite waste of treasure and lives of unprecedented numbers. Many in the coalition that brought him to power lost heart, repeatedly advised him to negotiate a peace, called him a tyrant, decried his intransigence. Yet, Lincoln persisted in his singlehanded pursuit of complete victory, which meant to him re-union. Why?

Why was Lincoln, who we now perceive as the deepest thinker of his day, the most eloquent spokesman of our nation’s principles, so focused on the issue of Union? Why was the principle of Union so important to Lincoln?

Would Lincoln have pursued a Civil War only to abolish slavery?

Was one a "moral" issue and the other merely a political one?

Why were the issues of Union and slavery so inextricable and so insoluble?

By the way: Why was slavery so important to the South when it is acknowledged that only a small minority of southerners actually owned slaves?

Why were poor southern farmers who made up the vast majority of the Confederate army willing to die for the right of a few wealthy plantation owners to their "property," a source of free labor?

Was slavery the issue Northern soldiers were willing to die for?

Modern historians concede that even if slavery was not the issue at the start of the war, by its end – especially after emancipation – it became the moral justification for the war, the issue that made the devastation and death toll morally justifiable in the eyes of history. Both sides claimed to be fighting for liberty and it was the existence of slavery on one side that made them the wrong, evil side.

All of that is true, but it implies that the issue of Union as a principle, contrasted with that of slavery — was not a moral question.

I am not so certain. I believe that Lincoln held Union as a principle of such importance in and of itself that it was worth dying for, whether or not the seceding states were slaveholders.

Lincoln certainly was opposed to slavery as an immoral institution. But if we take his words seriously, he saw another issue, that of Union, as more immediate, and the issue that was worth the enormous costs of war.

Everything we know about Lincoln leads to the conclusion that he was not a man who would have pursued such a war over an issue which he did not see as a moral and fundamental principle which was at the heart of his understanding of human effort.

Although Lincoln was a dedicated lawyer -- to whom the rule of Law was important, and for whom The Law was an important statement of ideals, I do not believe that his dedication to Union was merely legalistic.

The legal argument for Union is not a compelling one from a moral standpoint. It was based on the recognition that no government sows the seeds of its own destruction at its inception by permitting its dissolution any time a minority loses a vote.

On its face, The South’s legal argument for secession is the more attractive one. The Declaration of Independence established the principle that people have the right to withdraw commitments of loyalty to a government which they believe has become tyrannical. The colonies had grievances against the English king which were economic, but which they perceived as fundamental to their liberty.

Of course, the moral underpinning was inextricably bound to the moral issue of slavery in that the rebuttal is that one-third of the Southern population was not free, a fact which undercut the legitimacy of any southern complaint of tyranny from the central government.

However, the fact that slavery existed at the time of Union and was in fact recognized in the Constitution is a powerful legal – if not a moral – argument for its legitimacy.

The Constitution was a contract among the sovereign states which established a governmental system based on a fair but delicate balancing of the concerns of large states (those with large populations) vs. small states; agriculture dependent states vs. industrial ones; centralized power vs. local rights. The Southern delegates (particularly those from Virginia, Georgia, the Carolinas) were among the primary supporters of the Constitution in its final form as a contract of compromise. Southern historians have noted that they certainly would not have entered into the agreement if they thought they could not terminate it if it became too onerous.

By 1860, Southern leaders had good reasons to believe that the conditions that impelled them to join the union of states had irrevocably changed beyond amendment or compromise. The northern states far surpassed the South in population, industrialization, and wealth. Fundamental issues relating to finance, foreign affairs, and trade divided the sections in every vote in Congress. Southern states had maintained a tenuous power in the federal government by presence on the Supreme Court, in the bureaucracies, the Presidency, and in the congressional committees because of longevity.

But all that was threatened by continuing immigration from Europe (the vast majority of immigrants were attracted to the cities of the North where employment opportunities were greatest) and the inevitable westward expansion, which would bring in states which would reduce the power of the South to nothing.

This is why Southerners persisted in making the central issue of the first half of the 19th century in Congress whether new states would be slave or free. The southern hope was that new slave states would maintain the balance of power. But they must have realized that it was a losing proposition, even if it could be achieved.

A look at the western map revealed the certainty that many more non-slave states would eventually be admitted to the Union. Kansas and Nebraska, the last attempt of a long history of desperate compromises, proved that self-determination would result in more Southern losses. Slavery was too expensive to its owners, and was viable only if the labor was economical. It was, in the cotton states, but the conditions including climate and suitable farmland did not exist in most of the western lands.

I recognize that "slavery" was central, not only to Southern economy, but also to Southern social structure. By 1860, the Southern economy was so dependent on cotton which was dependent on slavery that it could not give up either without destroying itself. Moreover, Southern manhood and self-image was so wrapped in its superiority over the slave class that poor whites could not conceive of life without the existence of Negro slaves as a class below their own.

The growth of the abolition movement in the North was terrifying to the South for these economic, practical, and psychological reasons. The movement was vocal far beyond its actual numbers, and in its radical extreme, made full use of propaganda available in contemporary media: the growing newspapers of the cities, the pulpit, the speech circuit, the popular novel ("Uncle Tom’s Cabin" was a best seller, a galvanizing symbol of the movement the way "The Jungle" and other muckraking books were for a later generation of reformers). Monied Christians in Northern cities were pouring money into the movement in support of the underground railroad and radical terrorists like John Brown, whose cry for slave revolts were feared.

Yet, my speculation is: What would have happened if the South chose not to secede? Would the abolition movement have achieved its goal by the vote?

There is good reason to believe it would not have won any time soon. There were no polls of the day, but it is certain that a vast majority of Northerners would have opposed emancipation. First, it would have been seen as disastrous to create a flood of cheap labor into northern cities, competing with the burgeoning immigrant labor market. Second, even among abolitionists, racial mixing was anathema.

Lincoln and others who saw slavery as immoral also foresaw insurmountable problems in freeing Negroes to full equality, and preferred a plan of colonization to Africa. That plan would also have been prohibitively expensive and impractical (the Negro slave population was 3 million). Any plan of emancipation would have required compensation to slave owners for their loss of "property" and also would have caused disruption of a critical source of national wealth – the trade of raw cotton to foreign nations, which now would be far more costly to produce. Beyond all that, the South’s predicament of diminution of power and influence over its own fate would have remained unsolved.

Also of parenthetical interest relevant to our day is that the Bible was used by both sides of the abolition argument to support its position. In our day, current issues have its passionate adherents quoting the gospel on either side of issues like homosexuality, abortion, and "family values." Southern Christians pointed to the existence of slavery in the Old Testament and New. Northern Christian abolitionists quoted the principles of Christian morality in support of theirs.

It is clear that slavery was an inextricable part of the Gordian Knot of the day. But I have a nagging sense that there was even more at stake.

I believe that Union was essential for another reason, which becomes evident when I ask another speculative fascinating question:

What would have happened if Lincoln had permitted the southern states to secede? ... (or if the South had won the war? – a possibility that seemed likely with small turns of events, such as if Lincoln had taken Horace Greeley’s advice after the debacle at Bull Run, or if England had conferred recognition and support to the Confederacy, which was arguably in its national interest to do.)

The first result would have been that there would be two nations on the continent (in addition to Canada and Mexico). Border disputes would then have been inevitable and competition for western territories also likely.

But how long would it be only two nations?

Once the principle of secession had been established, it is probable that the Confederacy would have splintered into additional nations: the Deep South vs the border states, for example. Pioneers with dreams of nationhood might claim western territories as independent nations, as Texas had done, arguing persuasively that its interests were peculiar to its settlers, far from Washington.

European nations would certainly strive for influence in the new nations, and perhaps seek colonial expansion in the west. Religious minority sects, like the Mormons, might seek to create their own nations, rather than accept statehood within a less united United States. The disputes which later divided the nation in subsequent years – such as a gold vs. silver standard which separated western agrarian debtor states from the industrial creditor northeast; or temperance; or whether to participate in foreign wars — might have impelled national schisms in movements for further secession.

The consequences for the future of the continent and the entire world would have been monumental and disastrous. The United States would not have been the power it has become in the world. The century of peace and prosperity we have known would not have happened. Wars would have been common, wealth and resources wasted in competition and expenditures for secure borders.

The surmise leads to the question of "Manifest Destiny," the ideology that the white Christian American was destined to control the continent for the good of mankind. The concept today has so many negative connotations that I blush to refer to it as legitimate ideology. But the fact is that the concept was widely cited as a rationale for westward expansion in the 19th century, and in fact has been traced to the very beginnings of American colonization in the 1600's.

The pejorative inference derives from the inherent and arrogant assumption of racial and religious superiority and the resultant genocide of Native American races that it engendered and sought to justify. It was not unanimously approved, either as an ideology or as a policy.

Occasional opposition came from those who opposed empire building through the subjection of other Peoples. Notably, both the proponents and opponents cited the same concerns: racial homogeneity.

The Whig Party, of which young Congressman Lincoln was a member, opposed the Mexican War as immoral and expansionist, and also opposed expansion of slavery into new territories, but they were a minority and the expansionists prevailed. The nation won the Mexican War, admitted Texas and California into the nation and committed to continental dominance. The project of the continental railroad was begun during the Civil War, impelling Lincoln’s longing to see California, and was completed in 1868.

But the irony of American continental expansion is that what sets our nation apart from other nationalist movements (such as those which unified Germany and Italy in the 1860's) is our diversity of races. Germany united Germanic Peoples in the various entities; and Italy united Italian speaking Catholic Peoples. Other nationalist attempts which have united – by force or agreement – diverse cultures, have failed to last. Yugoslavia, the Soviet Union are but two examples. Yet, the United States of America lasted, despite all its contradictions: a war conducted to defeat the right of its sovereign units to self-determination; the defeat of slavery followed by the genocide of the Indian race and the continuing discrimination against the freed slaves to the point of subjugation and degradation for a hundred years.

Lincoln, as a man of his century, was certainly aware of what fragmentation of the European continent had meant throughout the ages: interminable wars, poverty, class stratification, religious ferment, famines, plague, tyranny. For the United States to survive, to thrive and prosper, it was evident that it had to avoid that fate, and could insure success only by continental hegemony. That principle is something worth fighting a war to preserve, and if the nation so conceived is thought by its citizens as the last best hope for humanity, it's preservation becomes a moral imperative.

I suspect that my hypothesis can never be proved. Contemporary writings are of limited value for seeking true motivations because people of the time were unaware of the forces which are so clear to us in retrospective analysis. Their rationales given in their speeches and tracts in support of policies are framed in rhetoric which masks the underlying reasons which necessitated the policies. In other words, people who urged a continental nation were right for the wrong reasons.

Just as we fought World War I for the stated reason of "saving the world for democracy" and ending all wars, ignoring the more complex but logical rationale that it was not in our national interest for Germany to defeat France and England, to dominate Europe, I suspect that the true reasons for the Civil War and for continental nationhood were submerged beneath the historically morally justifiable cries against slavery and for the morally questionable claim of manifest destiny.

Of course, I may be entirely wrong. I may be interpreting the effects as the object of the policies, when in fact they may have been unforeseen and unintended happy accidents. Without the evidence of documentation that it was in the ken of people of the time, it is impossible to prove.

If Lincoln supported American expansion, why did he oppose the Mexican War?

Although the younger Lincoln opposed the Mexican War, adopting the Whig party’s stated rationale – immorality of imperialistic acquisitiveness, the underlying political objection was that the acquired territories were expected to be slave or slave friendly states. The compromise of post war admission of California as a non-slave state to balance Texas as a slave state eased those concerns for the time being, but ended the debate about continental settlement.

By the time Lincoln acceded to the presidency, the concept of a continental nation was beyond argument. As a westerner, Lincoln was well aware of the migration of thousands westward (after the gold strike of 1849) and the inevitability of statehood for the territories. During his presidency, he supported legislation establishing the land grant colleges, the continental railroad project, the Homestead Act, all of which were designed to empower the continental nation.

In the battle between Native Americans and settlers, Lincoln made a clear choice. In his twenties, he participated in the Black Hawk War, though the crew Lincoln commanded killed nothing but pigs and chickens, he later joked. As president, in 1862, Lincoln acted decisively to end an uprising of Dakota Sioux warriors, who killed hundreds of settlers in Minnesota. In the midst of the Civil War, he sent an army to quell the uprising, imprisoning many, approving the execution of almost 40 Native Americans. Some historians call this the largest mass execution in American history and others have noted that the Sioux atrocities against the settlers was the costliest act of "terrorism" in our history until the twin towers.

Western settlement was in Lincoln’s pioneer blood. His father had moved the family from Kentucky to Indiana. Lincoln thought of himself as an example of the American dream — the land of opportunity, permitting the ability to rise from poverty and illiteracy to wealth, position and power. As a young man he traveled the Mississippi. As a lawyer, he was immersed in lawsuits which involved the issues of the frontier: canals, bridges, railroads. As a politician he welcomed his label as a representative of the west.

When Lincoln was born, Jefferson was just ending his second term. Lincoln, the self-educated intellectual, was thoroughly versed in the struggles of the Founding Fathers to form the Union and to hammer out the contract known as the Constitution. Lincoln, the lawyer and politician, understood that the concept of "liberty" was central to the American experiment of self-government and fully accepted the notion that this nation was the best hope of mankind to be free.

How could such a man not have thought that preservation of this Union was a moral imperative?

The Great Deception

Part of the argument over the current economic crisis is a revival of the debate about F.D.R.’s policies combating The Great Depression of the 1930's.

Rhetoric from the Right has become the popular revisionist view: that the New Deal’s radical programs and huge federal government involvement in the economy not only failed to end the Depression, but actually lengthened it. It did not end until World War II impelled full production and employment.

That view, however, is an oversimplification, that is not supported by the historical facts and fails to answer two questions. (1) If it was a failure, why was FDR re-elected overwhelmingly in 1936, and again in 1940? (2) Wasn’t World War II the biggest government project of all? Apart from ignoring these inconvenient questions, the conventional wisdom is contrary to the evidence.

Political historian James MacGregor Burns in his book, “Roosevelt: The Lion And The Fox”, points out that Roosevelt’s first term (1933 - 1936) was successful in stopping the slide and turning the disastrous economy around. Roosevelt was re-elected by an enormous margin, winning all but two states. FDR’s legendary skill at inspiring confidence was not an illusory trick. There were good reasons for the public’s overwhelming support. The New Deal had worked.

“By almost any test the economic surge since 1932 had been remarkable. Unemployment had dropped by almost 4 million since the low point early in 1933; at least 6 million jobs had been created. Payrolls in manufacturing industries had doubled since 1932; stock prices had more than doubled. Commercial and industrial failures in 1936 were one-third what they had been four years before. Total cash income of farmers had fallen to four billion in 1932 and recovered to almost seven billion in 1935. Capital issues had shot up sixfold sice 1933. The physical volume of industrial production had almost doubled.”

However, in 1937, the economy turned sharply downward again, wiping out many of the gains of the last four years. The period of 1937-1938 came to be known as “The Roosevelt Recession.”

Burns ascribes the downturn to several causes. After his stunning re-election, an overconfident FDR frittered his political capital on his wrong-headed effort to pack the Supreme Court. The conservative Court had overturned as unconstitutional several of the New Deal’s more radical programs, notably the NRA, infuriating FDR. His solution was to propose increasing the number of justices, a notion that the more traditional members of FDR’s famous coalition (particularly Southern Democrats) could not abide. The press and eventually the public was outraged.

More seriously, it exposed a basic flaw in FDR’s political nature. He had never followed a coherent or consistent economic theory, filling his brain trust of advisors with contradictory advice that he never committed to with any enthusiasm. When he first ran, in the fall of 1932, he had promised to balance the federal budget. By the time he was inaugurated, the emergency had deepened so much that he had abandoned that idea in favor of the deficit spending that marked the New Deal. In the beginning, he acted boldly.

Burns observes: “In three years, federal and other relief agencies had poured over 5 billion dollars into work projects and related relief activities. Another 4 billion had gone into public works: roads, dams, sewage systems, public buildings, and the like.” Agricultural programs (AAA) had succeeded in establishing price supports and federal lending through the RFC had been increased. Social Security began collecting payroll taxes in 1936, and while initially it was a drag on the economy, eventually it would provide the safety net for unemployment and old age. The Home Owners Loan Corporation reduced foreclosures for millions. “The WPA put to work not only blue collar workers but artists, writers, actors, teachers - and in jobs that salvaged their self respect. The National Youth Administration helped thousands of hard-pressed high school and college students to continue their education.” The S.E.C. and F.D.I.C. stabilized investment and banking.

The New Deal’s support for unionization was another critical factor that had controversial effects on the economy. Conservatives violently opposed the movement, citing the drag on business from the pressure to raise wages and working conditions and attendant strikes that fought for these changes. Proponents of unions argued that higher wages and job security were necessary to increase the buying power of workers, to stimulate growth of the middle class.

In 1937, after the court packing debacle, FDR lost his political footing, wavering in his usual forceful confidence in his programs. Congressional conservatives abandoned him and forced a change in direction. The administration sharply reduced spending, submitted a balanced budget. When the economic downturn became evident that year, FDR waffled, unwilling to increase federal spending which would devastate the budget. It was not until the next year, 1938, when the federal budget once again increased, that the recession subsided.

Almost all economists agree that high tariffs imposed by many nations, including the U.S., for the populist cause of protectionism was short-sighted and counterproductive to recovery.

Burns concludes that the inability to end the Depression was not caused by a failure of the theory of government activism. Rather, it was the timidity of Roosevelt’s continued commitment to decisive action after the initial surge of his first term.

In later years, economic theorists have continuously debated the point. Although FDR’s economics was not strictly “Keynesian,” neo-classical economists led by Milton Friedman argued that the New Deal big government solutions failed because it tampered with free markets. Friedman became the leading guru of the Reagan Era, impelling de-regulation and reduction of governmental oversight of the economy, which seems to have laid the foundation for the crisis today.

Uncommon sense

Contrary to popular belief, the legal system is not designed to find "the truth, the whole truth and nothing but the truth."

It has a far less ambitious role, to resolve disputes in a peaceful, socially acceptable manner . It is simply an orderly alternative to violent arguments.

The disciplines and institutions that claim to be possessors of The Truth (like religions) or at least try to systematize the search for The Truth (like science or philosophy) or those that promise thorough if chaotic access to The Truth (like art, journalism and the internet) arguably have had no greater success in finding nonviolent solutions to society's problems.

Like science and philosophy, The Law relies on the idea of debate - adversarial presentation of evidence, cross-examination, and arguments - to reach decisions. Each side is assigned a position to advocate strenuously in opposition to the other.

Wigmore the English legal scholar, stated, "Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not the impale his own cause upon it."

The legal system works best when it retains this skepticism, demanding credible evidence amounting to a high degree of proof before reaching final decisions.

The Law is accordingly suspicious of so called "common sense" (sometimes known as "conventional wisdom"). The phrase itself needs to be parsed, studied and thoroughly examined.

It is "common" because it constitutes widely held beliefs based on lore, anecdotal evidence, collective experiences (also known as rumor and hearsay), and often cursory observations. The word "sense" in this sense has a dual meaning. Sense infers correctness, as opposed to nonsense; it also relates to things that appear to be true to the senses. Senses can be misleading; perceptions of correctness can sometimes be equally wrong.

For instance, common sense as expressed in a commonly held sardonic axiom, is that "if it looks like a duck and quacks like a duck, it is a duck." The law expresses this principle as an example of circumstantial evidence, which the law defines far more carefully, using a different example with the same message. (CALCRIM - jury instructions 223 & 224):

"Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself.
For example, if a witness testifies he saw it raining outside before hecame into the courthouse, that testimony is direct evidence that it was raining.

Circumstantial evidence also may be called indirect evidence.
Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question.

For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside.

Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other.

Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.

Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.

Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty.

If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence.

However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.

This cautionary clause is an expression of widely told folk tales that reveal the wisdom of skepticism in the face of apparently convincing indirect or partial evidence.

One of my favorites is the tale of the six wise men examining an elephant. Each touches a different part of the elephant and draws conclusions based on the limited evidence. One blind man feels the leg and concludes it is a tree. Another the side and envisions a wall. And so on. (See the interesting Wickipedia article, noting the derivations (Indian religious texts) and variations.

In logic, the problem is sometimes called the fallacy of exclusion, or of insufficient sampling (in statistics). In policy making, this fallacy can lead to disastrous results. When the perceiver expects or desires a particular result, intentional (or negligent exclusion) is called "selection bias."

Courses on logic are offered in colleges, but usually they are hidden in Philosophy departments. The basics should be taught as a pre-requisite to entry into any other area of study, because it teaches the one sine qua non, a way to approach any issue.

Our invasion of Iraq, of course is the most blatant and obvious example of this fallacy. The Bush administration drew conclusions from circumstantial evidence derived from often speculative and conclusionary intelligence gathering that conformed to their "belief" that Hussein was a threat, while disregarding, suppressing or minimizing contradictory evidence and inferences.

Their arguments shrugged off "legalistic" objections to the quantum of proof, proposing the common sense based dogma that national security required a lesser standard of proof than beyond a reasonable doubt. Considering the magnitude of the potential threat, they concluded that it was better to err on the side of action.

This impulse — to make decisions based on fear is precisely what causes juries to convict persons accused of heinous crimes on less evidence than they would require if the crime was less serious — is an example of common sense that is in fact contrary to logic, especially as applied to criminal cases.

Logic would seem to demand that the greater the potential punishment, the more certain should be the conclusion of culpability. But, even though the law demands presumption of innocence and proof beyond a reasonable doubt, some crimes are so inflammatory that those cautions are tossed. The instincts of jurors is to err on the side of their fear of releasing an accused child molester, serial killer or gang member.

Another fallacy of common sense is what I call the "who-could-be-so-stupid" fallacy. It proceeds from the assumption that people act in their own best interests, and are not likely to act in ways that expose their faults. Juries sometimes apply it to defendants, jumping to conclusions of innocence and often apply it to alleged victims and witnesses as well. Police officers often benefit from this presumption when jurors conclude that a police officer is telling the truth because "he has nothing to gain by lying."

DOA: Post mortem DNA

In 1985, a Texas Tech co-ed, Michele Mallin, was raped.

Eventually, police arrested a suspect, an African American named Timothy Cole. They put his polaroid photo with five mug shots. Mallin now claims that his photo stood out like a sore thumb and police told her that he was a violent criminal. She identified him again in a live line-up.

Cole claimed innocence, turned down a plea bargain for probation. After his conviction and sentence of 25 years in prison, he was told that his release on parole depended on his expressing remorse, which meant admitting his guilt. He refused.

In 1999, Cole died in prison, from respiratory illness. He was then 39 years old.

In 2008, The Texas Innocence Project tested DNA in the Mallin case. It was matched to Jerry Wayne Johnson, who is serving life in prison for other rapes. Johnson then confessed in the Mallin case.

In a court hearing, Johnson apologized to Cole’s family. So did Mallin. The Lubbock County D.A.’s office did not participate in the hearing.

The state judge expunged Cole’s record.

Source: Los Angeles Times, 2/7/09.

Enough already ... time to put 9/11 to rest

After 9/11, it didn’t take a pundit to predict that an era of mindless repression of civil liberties would follow, falling especially hard on Muslim Americans. Our country is no different from any other in its profiling of minorities based on stereotypes, the susceptibility to panic and mob hysteria in times of crisis. Racial and ethnic "cleansing" has often been our impulsive reaction to perceived threats and our history is riddled with many examples.

When the frenzy subsides – and in some cases it takes the perspective of many generations - we repent, apologize to whatever group we have ravaged, and try to wipe the blood from our hands. We struggle to remember our treasured principles, the words that stick in our throats as we dutifully reclaim our pride in the better angels that we alternatively claim as our heritage. The problem is that history has shown that the longer it takes to return to reason, the deeper the scars on our culture. We still live with the scabrous heritage of historic discrimination against Black, native American, Jew, Nisei, and immigrants from many nations.

Today’s LA Times reports an incident that should make everyone cry, enough already. A family of Muslim Americans - a doctor, his wife and children, accompanied by his brother, a lawyer, and his wife and wife’s sister boarded an airplane in Orlando, Florida. The men were bearded, the women wore traditional head scarves. As they were seated, the women talked casually about which seats would be safest. Two teenage girls overheard the conversation, began a panic, fearing that these unusual looking people were going to take over the plane.

The entire family was removed from the flight, detained and questioned by the F.B.I. for hours. Once cleared, the airline still refused to book them on another flight.
The airline has issued an "apology" to the family and the others who were delayed by the "misunderstanding."

This is only the most recently reported of many such incidents. Innumerable indignities have been suffered by decent people in schools, work, travel, communities in the last eight years.

Should we wait for another generation to recognize and redress the wrongs? After 9/11, our government encouraged the frenzy, cynically using it to support their policy of "crusade" against "jihad." Our democracy fell for it, willingly demonizing the different among us, as we had done so many times in the past. The Patriot Act - as cynical a PR label as was ever slapped on a piece of repressive legislation - codified our acquiescence to fear.

The subsequent wars in Afghanistan and Iraq and the irrational extension of the fear to apply to Hispanics (justified by the call to close our borders) and the emphasis on "homeland security" will be viewed by historians as akin to the roundups of Native Americans throughout the 19th Century, Germans in World War I, "radicals" during the "Red Scare" of the 1920's, Nisei in World War II.

Okay, maybe we could justify some sort of passionate over-reaction to the horrific event as human. Rage derived from fear and anger at acts of terrorism aimed by so few at so many innocent people, causing so much misery, is certainly understandable. But it is time to put an end to it.

I am reluctant to put yet another burden on President Obama’s plate. The expectations for "change" already may be too high and, again, it would not take a prophet to foresee disappointment if he fails be as enlightened as we wish him to be. Again, history provides a sad lesson for us. Jefferson, Adams, Jackson, John Quincy Adams, Lincoln, Teddy Roosevelt, Wilson, FDR, Truman, all viewed as among the more principled of our leaders, each failed tests of leadership against discrimination against some group in their time.

Yet, as a man who has personally experienced the sting of racial and social distrust, it doesn’t seem unreasonable to expect Barack Obama to lead us in a different direction, at least to take the first baby steps to roll back the insanity of the last eight years to bring about some sort of equilibrium when it comes to our view of who are our "enemies" and how we should confront them while not becoming them.

The Avenging Mother

Ellie Nesler’s death was reported in today’s news. She had gained her notoriety the old fashioned way, by killing someone who deserved killing. Her life story is a cornucopia of crimes, as victim, perpetrator, mother --- a hardscrabble life spent in the trailer trash fringes of society. She was the perfect heroine for the T.V. movie, fast food and tabloid gorging denizens of the white flight exurbs, whom she dazzled long before Sarah Palin took the title.

In 1988, her 7 year old son Willie had returned from Christian camp complaining that he had been "touched in a bad way." Suspicion fell on a dishwasher with a child molestation record, Daniel Driver, who was charged. Driver had been suspect in previous incidents, but the church had supported him. The case dragged on until one day, Ellie shot and killed him in the courtroom.

She soon became the heroine of trailer mom supporters of vengeance, her ‘story’ a lightning rod for talkradio, bumper stickers, tee shirts, and a template for Hollywood potboilers, inspiring the likes of Jodie Foster to make movies about this ultimate act of good parenting.

Eventually, as all good stories, the messy facts began to interfere with the perfection of myth. Turns out Ellie had been involved in crimes as a teen, and was revealed to have been loaded on meth at the time of the shooting. Additional evidence of planning cast doubt on her image as the mom temporarily maddened by the sight of her child’s tormentor. Nonetheless, the mitigating factors were enough to justify a manslaughter verdict, which was reversed on appeal. After her release, she got in trouble again, was returned to prison after buying 10,000 pseudoephedrine tabs, the precursor of methamphetamine possessed for sale.

Meanwhile, son Willie was convicted of assault on a handyman in a dispute over tools, and when released from that crime, immediately stomp the victim to death, earning himself a sentence of 25 years to life.

Mom was released from prison in 2006 and died of breast cancer. Willie has asked for permission from prison authorities to attend he funeral.

Obama and the death penalty

President Obama will have a full plate of immediate, if not emergency concerns, when he takes office. Death penalty policy understandably will not be the top priority for his administration.

Nonetheless, as chief executive, he will need to confront the issue deeply and broadly not long after he takes office and all during his administration thereafter.

A president influences the issue in many ways, including appointment of U.S. Attorneys throughout the nation; appointment of federal judges at every level, including of course the Supreme Court; appointment of an Attorney General and subordinates; control over the budget for capital prosecution and defense. With all these actions, the president sets the course on responses to habeas corpus petitions and other appeals and has specific constitutional duty of considering pardons and clemency.

Barack Obama is the first president in memory to have made statements that evince doubts about the constitutionality and general efficacy of capital punishment. He has written that he doubts the claim that it is a deterrent, is troubled by the racial and social inequity inherent in its enforcement, and has stated variously that he is not a "cheerleader" for the death penalty and that his views on the subject are "complicated."

Obama’s depth of thought was well documented during his campaign so it should not be surprising that this deliberative man should view the issue as complex. As a state legislator in Illinois he was active in the practical debate that arose when Governor Ryan declared a moratorium after revelations about its inadequate justice system which included proof of incompetent defenses, concealed evidence of innocence, leading to innocent people condemned to death. Obama actively supported reforms, but also agreed to expanding the number of crimes for which the death penalty could be sought (including murder of an elder or a child), while at the same time opposed expansion to include gang murders, arguing that premeditation was adequate and fearing that "gang" was a buzzword for racial, ethnic and social bias.

During the campaign, Obama trod a tightrope on the issue, fearful of providing a wedge issue to conservatives. In this policy, Obama learned his Dukakis / Clinton lessons, insisting that he favored the death penalty for Osama Bin Laden and other Al Qaeda terrorists and he declared his disapproval of the recent Supreme Court decision overturning the death penalty for child rape without murder.

Despite his campaign positions supporting capital punishment in principle, which depressed opponents of the law, it is still clear that President Obama presents the greatest hope for policies that at least limit the expansion of the death penalty. Moreover, he has the temperament, intellect, and standing to at least begin to swing the pendulum of public opinion away from support of capital punishment.