Eyewitness identification

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

When will we ever learn?

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

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

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

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

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

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

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

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

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

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

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

The News That (Gives) Fits ...

THREE ITEMS TO MAKE ME SAD FOR MY COUNTRY:

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

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

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

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

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

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

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

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

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

... And You're Out (Finally)

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

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

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

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

Happy Birthday, Sis

HOW IS IT POSSIBLE THAT THIS CHILD ...




BECAME THIS THIS WOMAN ...



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






Happy Birthday, Risë Marlene.


Love, mort.

Sunday News Roundup

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

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

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

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

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

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

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

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

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

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

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

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

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

The Radical Lawyer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Whining in The Gulf

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

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

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

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

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

Brooklyn 7, L.A. 1.

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

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

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

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

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

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

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

Okay, so I am biased. Sue me.

Feel No Pain

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

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

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

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

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

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

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

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

Give me libertarian or give me breath

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

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

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

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

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

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

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

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

SCOTUS TWINS

Observations about the latest SCOTUS rulings:

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

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

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

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

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

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

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

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

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

“Short People” By Randy Newman

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

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

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

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

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

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

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

[apologies to Emma Lazarus]

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

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

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

Now, that might really help the economy.

Stupid Criminal Tricks

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

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

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

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

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

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

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

Goodnight, Miranda

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

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

This is Yahoo! search screen is a small sample:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Two Lives

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

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

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

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

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

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

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

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

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

And this is the obituary of the other man:

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

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

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

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

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

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

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

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

Another DNA reversal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tea Partying

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 ...