Tea Partying

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


For instance: The Tea Party Movement.

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

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

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


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

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

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

One thing is different, upside down really.

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

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

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

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

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

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

The Real Bad Guys?

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

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

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

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

What next? We find out Barack Obama registered Republican?

"Don't Worry About It"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Principled Centrist Revisited

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Remorse is a funny thing ...

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

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

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

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

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

Here's how Tiger phrased it:

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

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

No expression of remorse can ever satisfy everyone.

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

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

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

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

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

"Say It Ain't So" attacks Tokyo

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

Stop me before I think again ...

In mid-thought ...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

While I Sit On The Sidelines ...

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

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

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

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

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

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

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

THE 'SAY IT AIN'T SO' MOMENT

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

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

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

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

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

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

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

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

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

Bullshit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Four Thoughts

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

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

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

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

One Brief Shining Moment

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

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

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

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

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

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

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

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

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

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

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

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

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

And he will be right.

A Stubborn Man

Morris Trukenberg died last night. He was around 96 years old. The best guess is that he was born in 1913, although he teased the date so often that no one now alive can be certain.

He was a stubborn man.

A few years ago, I received a call to come to the emergency room at Kaiser Hospital. Morris had fainted and been brought there for examination. When I arrived, I heard his distinctive voice shouting, "There's nothing wrong with me. I don't need a doctor. You're keeping me here a prisoner."

The loud complaints were accompanied by some unpleasant references to the presumed heritage of the nurses. I apologized to one of them. "He can be a bit stubborn at times." The nurse smiled, said, "You don't get to be 90 unless you are very stubborn."

His stubbornness probably save his life, not once but many times.

He was 26 years old when the Germans occupied his home town of Radom, Poland. Morris was living with his large family, but apparently acting independently from his parents. He told me that one night he and his friends were harassed by some German soldiers - a rifle butt in the small of his back for "no good reason except we were Jews."

Over the objections of his parents, Morris decided to leave with friends, to go to the east, to Russia, to evade the advancing Germans.

Over the next years, he would travel to a city, look for work, and occasionally be arrested by Russians, who mistook him for a German spy. His reddish hair, fair complexion, name, were circumstantial enough to force his detention several times until he was finally able to persuade some commissar of his true identity, which was the second worst thing to be in the eyes of Soviet officials: He was a Polish Jew, not a German spy. It was then on to the next city.

Eventually, he met Esther Teitelbaum, who had fled her home in Lodz, Poland, with a sister and brother, traveling east. The brother had dropped out in a border town, where his girlfriend's family lived. The girl's father convinced him to stay - the Germans could be "dealt with." Esther later discovered that her brother, along with all the members of his girlfriend's family had been murdered.

Morris and Esther married, continuing to move east, to Stalingrad, and by persistent step east and south (to avoid the bitter winters) to the Caucas. A daughter was born on VJ Day (August 14, 1945), while they were in Orsk in the Urals.

Returning to Poland, Morris found that his family was gone, all but a brother, Chaim, who had been exiled to Paris before the war. Chaim had been "deported" to forced labor, but survived and was back in Paris.

Morris packed up and came to Paris where he and Chaim began a "schmatte" business, making clothes and selling them from a cart. When frictions arose between the brothers and their wives mostly over competition and jealousy, Morris took a chance by 1954 to emigrate to Los Angeles where some cousins and friends from Radom had alit.

It is hard to realize that Morris lived for another 55 years after moving to America.

Learning another new language - Morris was in his 40's - Morris got jobs painting houses in the new developments in the San Fernando Valley.

He and Esther survived, thrived in fact. They scrimped and bought a house on the West Side, raised their daughter and then, when Morris was over 50, had a second daughter, whom they raised with a new generation of parents.

He survived his wife and first child, lived to see and enjoy three grandchildren, leave them a legacy of stubbornness in the face of obstacles that would seem to make survival, much less some measure of material success, a highly unlikely proposition.

"America's Best Idea"

While, recuperating, I spend many hours reading and watching the news and commentary, especially on cable T.V., and specifically, relating to the so-called Health Care Debate.

Much of the debate seems to center on the mythical ideological division between Liberals and Conservatives about issues of Big Government versus Free Market Private Enterprise.

The President is having a hard time getting his way because Senate rules and traditions conspire to demand 60 votes (rather that the supposedly democratic majority principle, which would seem to call for no more than 51).

This mundane but annoying historical fact is infuriating to Obama supporters from The Left who took literally the concept that his overwhelming election victory (with coattails of Democrat control of both Houses of Congress) would mean sweeping reforms were possible.
It turns out that Republicans can exert power (mostly the power of veto) by coalescing with a mere handful of Democrats who got elected (or are awaiting election in the next cycle) by constituencies that are far more skeptical of Obama’s call for Change.

These Blue Dog Democrats are carry overs from the Clinton era - barely distinguishable from Republicans on central policy issues, especially when labeled Big Government. Clinton’s declaration in 1994 that "the era of BG was over" is still their mantra.

So I listen all day to this debate about Big Government and whether any national health care system, and especially one with a public option is Socialism or whether the health care companies will be priced out of business by the unfair competition that the government option entails. Ironically, from the other side of their mouths, the same people who argue that government will outcompete private companies also argue that government is too incompetent to be trusted with health care - ignoring the example of Medicare, which works and which they also opposed.

Then the other night I watched a Ken Burns documentary about our National Park System, subtitled: "America’s Best Idea".

It tells the story of how millions of acres of wilderness were preserved from development. Contrary to all logic and history, at the end of the 19th Century, after two hundred years of brutal exploitation and slaughter of billions of animals, the rape of forests, rivers, natural resources of all kinds, and the genocide of the Native Americans who had resided on the land, suddenly it was decided to set aside these certain lands, to keep them free from development, and to protect their pristine existence at any cost.

The people who decided to do this were those who had gorged themselves on the frontier, become wealthy and fat and bloated during the feast. They were of the era of "Manifest Destiny", "rugged individualism", free market Capitalism at its most free. They were the believers in these principles as philosophy, politics, religious theory.

Yet they were persuaded to wipe the blood from their mouths and let some part of their prey live.

The Icon of the era was the young Theodore Roosevelt. A self-made epitome of the "rugged individualist" and proud hunter and killer of all things wild, he was also an intellectual, lover of the West and all its mythologies, and a collector. More importantly, his wealth was Old, not dependent on ravaging the wilderness or pillaging the vanishing frontier. He had the sense of "Noblesse Oblige" that has marked several of the American families that have established themselves as practitioners of a form of philanthropy that considers the "public good."

As president, of course, TR gave his class a good thrashing, busting trusts, pushing through Progressive Era reforms, and insuring permanence to the national parks system. He was the most "Active" of Government activists; he bullied the monied interests of Capital by steamrolling them with Big Stick Government. He was justifiably called "socialist" by his snarling enemies, the J.P. Morgans, who were appalled by his use of their government to whip them.

Sure, the national parks equate to socialism - the government withholding land from private exploitation in order to satisfy the needs of The People and their descendants.

I guess a health care system can’t be defined the same way.

Painful Injection

One of the most annoying things about being in a hospital was the constant jabbing of my veins. First thing they do after putting you in one of those silly backless gowns in set up an Intravenous line to provide saline and for convenience when they have to inject drugs or whatever else they can think of into your veins.

Then they come around to stick you in other veins in order to draw blood for testing. This is done at the apex of inconvenience: when you have finally dozed off, or when you have managed the pain of the everpresent I/V needle.

And then it so happens that I have an apparently genetic problem that the nurses call "Rolling Veins". My mother and sister shared this trait. The vein walls are particularly firm, and when the needle tries to enter, the vein rolls away and resists puncturing. This is very painful as the nurse jabs, prods, pokes. Blood clots under the skin form and throb.

So it is with this vivid memory that I read today of the attempted lethal injection execution of a murderer in Ohio. For almost two and a half hours, the workers (I won't call them doctors or nurses) tried to find a vein that would accept the cocktail of drugs that were intended to kill this guy.

Finally Ohio's governor called Time Out and rescheduled the execution for a week later. Cries of "double jeopardy" and "cruel and unusual punishment" are likely to fail, although the status of lethal injection as a "humane" form of execution is likely to suffer some humiliation.

How I spent my Summer vacation

It's been a month since my last post. Nothing much has happened. You might say I've been on a Summer holiday.

So anyway, I had a little bit of cancer. They tell me it is gone now and not to worry, it will probably not come back - at least not in the place it showed its ugly face, because that place doesn't exist anymore in my body. They threw that out and everything else that surrounded it, leaving that portion of my guts with some vacancies that they filled up with some other spare parts that they moved in.

That's as near as I can come to explaining it. Something of a medical marvel, it seems, I was chosen to be part of an academic program to prove the efficacy of this particular procedure: a robotic laparascopic radical cystectomy. Luckily for me, the doctors at USC all seem to have been paying attention in class when this subject was discussed. From top (Dr. Gill and Dr. Skinner) to the residents (Dr. Patil and Dr. Chin) and the nursing staff at USC Hospital and the Norris Center, were spectacularly on top of their game.

So, now I am in recovery mode. How long? Well, a nurse said a rule of thumb was one month for each hour of surgery in order to be at full strength. I am told I was on the table for 9 and a half hours.

There are things I have to learn to do all over again. Things that I have been taking for granted have to become concentrated tasks. But that's okay. It's only a nuisance, sometimes embarrassing. Dignity is one of the first victims, and to tell the truth, I never felt very dignified anyway.

"A Borenstein is a Borenstein"

A few days ago, my sister sent me a link to a site devoted to preserving memoirs of holocaust survivors. The one that caught her attention was written by a survivor named Izak Borenstein.

I don't know if Mr. Borenstein is a relation. It apparently was not an uncommon name in Eastern Europe, along with the many variations ... Bernstein, Bornstein ... etc.

But this one was particularly interesting because of the additional coincidence that Izak Borenstein was born in Radom, a city in Poland which happens to be the home town of Bijou's father, Morris Trukenberg, who is still alive at age 96.

The part of Izak Borenstein's story that my sister noted is this:

"My brother told me that after I left Radom for Russia at the beginning of the war, the Germans had come looking for me. When they couldn't find me, they looked up another Jewish boy who lived near us who had the same name as I did-- Borenstein. We were not exactly friends, but we knew each other. The Germans came to my house looking for me, but since they could not find me, they looked him up. They took him out and shot him by the door of his house. A Borenstein is a Borenstein. Can you imagine? I do not know if I feel guilty. It is hard to talk about this. It hurts."

I don't know if Morris knew Izak Borenstein or the Borenstein that was murdered in his place. Morris' memory is now locked deep within and no longer accessible.

When does it stop going around?

In a post entitled "What Goes Around ..."I reported on the bizarre events surrounding our purchase of a house that was haunted by the murder that had occurred there, a mother killed by a person the authorities believed to be her adopted son.

I reported the later -- almost as wierd -- events which involved me in the habeas corpus proceedings many years after the murder, in which the convicted son tried to prove his innocence and I was enlisted to give my testimony.

Now, 26 years after the conviction, a Los Angeles federal district court judge finally ordered a retrial or dismissal in the case, according to today's L.A. Times.

It may not, however, be the end of the story. The L.A. D.A. has the option of re-trying the matter and a spokesperson has indicated a willingness to do so. If I had to bet, my money would be on a re-trial, if for no other reason than that the reversal was partly based on police misconduct and that implies besmirching the L.A.P.D. and exposes the city to possible restitution to the wrongfully convicted "victim", to compensate him for his life spent in hell.

"A wondrous toy"

In a couple of weeks, Greg will be moving from Portland to New York. He found an apartment to share with two others on East 4th between Avenues C & D, on the border of the East Village. It is a couple of blocks from the lower East Side, which was his grandmother’s first home.

I was raised with stories about life on the streets that Greg will soon become familiar with: Eldridge, Orchard, Delancey, Rivington, Houston (pronounced “House-ton” in those parts) and The Bowery. Tin Pan Alley songwriters of my mother’s age wrote scores of pop tunes about the neighborhood, songs about “Second Hand Rose from 2nd Avenue”, and “It’s very fancy / On old Delancey Street you know” ... And tell me what street / Compares with Mott Street in July / Pushcarts gently rolling by”.

In the almost 100 years since my mother’s infancy, the tenements have changed hands and tunes many times, the street smells changing from garlic and paprika to chili peppers and cilantro. I’ve heard that a sort of gentrification has beun to alter the mood again, though it retains its diversity and all that goes with it, good and bad.

Unlike urban sprawls like L.A. which consist of miles of suburban areas linked by freeways, New York City neighborhoods are measured in square blocks, not square miles. They are often pockets of perhaps a block or two square. Walk around the corner from tenements and pushcarts and you may find a street or avenue with awnings and doormen, Mercedes at curbside, poodles on leashes.

If he walks west and south on Houston, he’ll find himself in SoHo, among the lofts that rapidly evolved from warehouses, to artists’ studios to high priced homes.

When Greg walks a few blocks further north and west, he will pass the house where my brother had an apartment in the early 1960's, a 5th floor walkup on E. 11th Street near 3rd Avenue. He later lived in one of those houses with a doorman, East 9th and Broadway, round the corner from the West Village.

Greenwich Village may be the most famous neighborhood in American pop culture. Washington Square, The Mews, Bleeker Street, and MacDougal, where Bob Dylan first sang for quarters in the Café Wha? [Chronicles, Volume 1, Bob Dylan, p. 9.] where he writes that he waited to meet Dave Van Ronk. “Once on a cold winter day near Thompson and 3rd, in a flurry of light snow when the feeble sun was filtering through the haze, I saw him walking toward me in a frosty silence.” [Id., p16.]

In those days, The Beats still thrived. Their self-proclaimed poets along with the new aspirants to pop celebrity, the Folkies, occupied the cafés and clubs during the days, giving way to the hip young comics, who brought in paying customers: Woody Allen, Richard Pryor, Lenny Bruce, Joan Rivers.

The Minnesota kid Dylan describes noting that Café Bizarre was housed in a building that once served as Aaron Burr’s stable. I hope Greg will explore as Dylan did.

“New York City was cold, muffled and mysterious, the capital of the world. On 7th Avenue I passed the building where Walt Whitman had lived and worked. I paused momentarily imagining him printing away and singing the true song of his soul. I had stood outside of Poe’s house on 3rd Street, too, and had done the same thing, staring mournfully up at the windows. The city was like some uncarved block without any name or shape and it showed no favoritism. Everything was always new, always changing... [¶] The whole city was dangling in front of my nose. I had a vivid idea of where everything was. The future was nothing to worry about. It was awfully close.” [Id., p.103-104.]

So right, Greg.

The Costs of Losing

I am approaching the end of my professional life. My chosen field demands traits that diminish as one passes one’s prime: energy, concentration, optimism. Even in one’s prime, it is hard. You lose more than you win and it takes effort and patience to endure the losses. Now, I accept the rare wins with more relief than exultation; I find the losses are still bitter and depressing. I anticipate the probability of losses with dread.

I see a lesson in a sporting event which was televised this weekend. Tom Watson, at the ancient age of 59, lost golf’s British Open by one stroke, missing a ten foot putt on the 72nd hole. The grueling four day event in the chill Scottish coastal winds produced the kind of drama that scripted shows strive for. It was what reality shows so pitifully contrive to create.

Watson had been one of the best in his prime, which ended twenty years ago. Yet, here he was, leading the best of the current best under the harshest pressure an athlete performer can face. Tiger Woods failed. One by one, all the other top - far younger - competitors fell. Watson, who won the event five times, the last one in 1983, substituted his vast experience for his diminishing physical skills to place himself in a position to win.

It wasn’t a storybook ending; he lost, yielded to the pressure when standing over that final putt which he and the whole world knew would change the history of his profession and his place in it.

There are many parallels between sports and life as I’ve experienced it. The first is that there is satisfaction in preparing, doing the hard work needed to excel. The second is that experience counts; every failure teaches something. And the third - and most imporant - is that no matter how much you try, you are probably going to fail more often than you succeed. In the big picture, this probably true about anything worth pursuing. It is the effort that counts.

The fourth lesson is that it is always going to hurt to lose. Watson said it well in his press conference: "Losing eats at my guts ... but it isn’t a funeral."

Conservatives and the Death Penalty

I've written many posts about the death penalty, but this one may be the most important. In one of my first entries, I announced that I considered myself to be a Conservative when it comes to criminal justice and to the death penalty in particular. This statement was based on my understanding of conservatism.

I wrote: "The true Conservative is skeptical of governmental power over the individual and seeks to restrain its use. The most power a government wields, short of the ability to wage war, is the police power to incarcerate and execute individuals. I fight for the rights of the individual against the power of the government. That makes me a conservative."

Now I have found confirmation of that view from an unexpected source. The Death Penalty Information Center recently reprinted an op-ed piece written by Richard Viguerie, who is described as "one of the architects of" the Conservative movement. Viguerie has been credited as one of the most important activists on The Christian Right, having organized massive fund raising efforts for conservative causes and candidates from religious conservatives. His efforts resulted in the swing to the right for the past twenty years.

Although that trend has resulted in re-invigoration of support for capital punishment over that time, Viguerie has now decided to speak out AGAINST the death penalty. His reasons, as revealed in his op-ed piece, originally published in the Christian conservative Sojourners Magazine, are spot on.

When Governments Kill
A conservative argues for abolishing the death penalty.
by Richard A. Viguerie.

... I’m a Catholic. Because of my Christian faith, and because I am a follower of Jesus Christ, I oppose the death penalty. I’m a conservative as well, and because my political philosophy recognizes that government is too often used by humans for the wrong ends, I find it quite logical to oppose capital punishment.

I have been criticized by some conservatives for my opposition to the death penalty. On the other hand, some conservatives have told me they question capital punishment or even oppose it, but believe that the conservative "position" is to support it. Fortunately for me, even if someone were to question my conservative bona fides (I’ve never been called not conservative enough, trust me), I wouldn’t care.

The fact is, I don’t understand why more conservatives don’t oppose the death penalty. It is, after all, a system set up under laws established by politicians (too many of whom lack principles); enforced by prosecutors (many of whom want to become politicians—perhaps a character flaw?—and who prefer wins over justice); and adjudicated by judges (too many of whom administer personal preference rather than the law).

Conservatives have every reason to believe the death penalty system is no different from any politicized, costly, inefficient, bureaucratic, government-run operation, which we conservatives know are rife with injustice. But here the end result is the end of someone’s life. In other words, it’s a government system that kills people.

Those of us who oppose abortion believe that it is perhaps the greatest immorality to take an innocent life. While the death penalty is supposed to take the life of the guilty, we know that is not always the case. It should have shocked the consciences of conservatives when various government prosecutors withheld exculpatory, or opposed allowing DNA-tested, evidence in death row cases. To conservatives, that should be deemed as immoral as abortion.

The death penalty system is flawed and untrustworthy because human institutions always are. But even when guilt is certain, there are many downsides to the death penalty system. I’ve heard enough about the pain and suffering of families of victims caused by the long, drawn-out, and even intrusive legal process. Perhaps, then, it’s time for America to re-examine the death penalty system, whether it works, and whom it hurts.

On how society would ever get to the point of abolishing the death penalty, if it were to do that, I have my conservative views. It must be done in a way consistent with our constitutional system. That means it cannot be imposed by the courts or by the federal government (except for federal cases). In my opinion, the Constitution does not grant the federal government the authority to ban the death penalty in the states. That must be left to the people’s representatives in their respective states, which also means that judges must not take it upon themselves.

This is why I am joining my friend Jim Wallis in a coalition of liberals and conservatives calling for a national moratorium and conversation about the death penalty, so people can study, learn, think, pray if they wish, about whether or how the various state death-penalty systems should be changed. I hope you’ll join us."

(R. Viguerie, "When Governments Kill," Sojourners Magazine, July 2009). See New Voices and Religion.

Death be not proud

A month ago I noted a news item about an American soldier who was spared the death penalty by a Kentucky jury for the rape murders of Iraqi civilians.

Today, a related article caught my attention. Five American soldiers were convicted of executing four Iraqi men who had been detained after weapons were found where the men had been hiding. The members of the squad lined up the detainees and shot them. They confessed that the killings were in retaliation for the killing of two American soldiers from their unit.

The soldiers were sentenced to life WITH the possibility of parole. After receiving many supporting letters from relatives and neighbors of the soldiers, "a brigadier general" reduced the sentence of one of the soldiers to "20 years with parole eligibility after 7 years." A clemency board may reduce it yet further if it finds mitigation based on combat stresss and facts showing that he was "following the lead of" higher ranking officers.

In a non-related story in the same issue, California death penalty opponents are reportedly urging that commuting current death verdicts to life without parole would save $1 billion. There are currently 682 death row inmates.

Borenstein's Law Strikes Again

When I began to blog at the urging of my son, one of my first posts (Intro to Borenstein’s Law, originally posted 6/20/2005) was an attempt to answer a question that haunts all criminal defense lawyers: why our clients act so irrationally in a way that seems so stupid, so contrary to their best interests.

I gave many examples, like leaving a wallet at the scene of the crime ... and then reporting it stolen. I now have a case that ranks close to the top. My client, after being questioned by police and jailed, called his girlfriend. During the call he made incriminating statements, despite a loudly intrusive recording that blared every 60 seconds that warned speakers that such calls are monitored and taped.

In my post, I noted that people - not just our clients - act contrary to their best interests so often that it can be called the norm, not an aberration. In fact, supposedly smart people - like Bill Clinton and Dick Nixon - commit reckless acts that satisfy immediate urges without considering the consequences. The drive for sex, money, power and other elemental desires often overwhelms caution, reason, or religious teachings - uh, abusing priests, q.e.d.

Today’s L.A. Times contains an article that confirms my thesis. Discussing South Carolina Mark Sanford’s revelations, the article notes:

"Experts have all kinds of theories about why otherwise intelligent men -- and it's almost always men -- behave so recklessly. Sex and power are inextricably intertwined, as Henry Kissinger famously noted, and some politicians have a hard time reining in the urge for either. ‘If you're one of these Master of the Universe kind of guys, you get to a place where you feel that the rules don't apply to you,’ said Pepper Schwartz, a University of
Washington sociologist who specializes in relationships.

"Frank Farley, a Temple University psychologist, even coined a term -- the ‘Type T personality’ -- to describe politicians' predilection for philandering. The "T" stands for thrill-seeker, which describes the kind of person drawn to a career that, by its nature, requires a willingness to step out of ordinary life and take risks."‘It's not a 9-to-5 job,’ said Farley, a former president of the merican Psychological Assn. who has extensively studied politicians' behavior. ‘It has very high levels of uncertainty, variety, novelty, challenge, unpredictability -- and therefore it attracts a certain kind of person.’ The positive side of that risk-taking is a willingness to expose oneself to that most public of examinations: an election campaign. The downside, Farley said, is relenting to personal urges, like drugs, alcohol or an extramarital dalliance.
　
"‘It's almost built into their personalities,’ he said of many officeholders. ‘Put it together with the opportunities they have, and we should not be shocked when we see it happening.’ "Why the risk? ‘It's hard to understand this if you have not been in passionate love, and it's particularly intense when it's star-crossed,’ Schwartz said. ‘You are pumping adrenaline, testosterone and dopamine -- it's a drug cocktail; you are
intoxicated. And you know what kind of decision we make when we are intoxicated.’"

The Midnight Sun

Once upon a time in the land of the midnight sun, a nearsighted woman was raped by two men. She identified a man as one of them and he was sentenced to prison. Now, with the aid of the Innocence Project, he wants his DNA compared with fluids donated by the rapist to prove his innocence, asserting his willingness to pay for the tests himself so the state will have no financial excuse.

Many states have fashioned procedures for such post conviction testing. Alaska is not one of them. Their high court denied his request in 2001. Now the U.S. Supreme Court has issued a 5-4 opinion upholding the denial. Chief Justice Roberts wrote for the majority. He could find no provision in the Constitution that mentioned the right to a DNA test. As an example of the philosophy of judicial restraint, he suggested that this was an issue that state legislatures are better able to address. He was joined by Alito, Thomas, Scalia, and Kennedy (the so-called swing vote).

Justice Stevens dissented, finding it outrageous that a man must serve a life sentence when there is a means of proving or disproving his guilt which is available, cheap, and certain. And, oh yeah, isn’t there a provision called the 14th Amendment which guarantees "due process"? He was joined by Ginsberg, Breyer and Souter, who filed as separate dissenting opinion - differing from the other dissenters in the issue of how broad a "right" should be.

The case presents a fairly clear example of what is at stake in the selection of Supreme Court justices. The trenches are deep and apparent: judicial restraint vs. judicial activism. The issue: is there a court of last resort when an injustice is ignored by legislatures and state courts?

To be clear, before trial, an accused has a recognized right to access of the evidence to test it. That right was recognized long ago by the same Supreme Court (in Brady v. Maryland). Also, during post-conviction habeas corpus proceeding, most states and federal courts authorize appointment of experts for DNA testing. State rules about these processes vary greatly - most impose nearly insurmountable obstacles to overturn convictions.

The fact is that the legal system is psychologically defensive about admitting its possible errors. The tradition and bias is to favor closure over certainty. Conservative jurists wax eloquently about the need for finality in the system. Public opinion generally concurs - how many times have you heard the media decry the "endless appeals" by prisoners alleging "technicalities" and using "legal tricks" to overturn convictions?

In the 90's, Congress passed legislation (with President Clinton’s support) limiting access to habeas corpus post-convictions appeals. We are now living with the effects of that misguided law. To date, more than 200 guilty verdicts have been proven by DNA evidence to have been wrong. Many of those innocent people had been condemned to death or life sentences.