Third Corollary to Borenstein’s Law: Drastic measures which are intended as progressive reforms often yield reactionary results. (refer to the Law of Unintended Consequences.)
The direct initiative process was used by Progressives in the early 20th Century as an antidote to the corrupt ultra-conservatism of state legislatures, which were then in the grip of monied interests. The idea of direct legislation by "the people" seemed the only way to "democratize" the process.
Since the 1970's, the process has been a means of evading a legislature which was perceived as being in the grip of liberals. Proposition 13, put forth by Howard Jarvis, who for years had been one of several crackpot low tax gadflies, provided a template for the future use of the initiative process to roll back liberal reforms.
This year, Coloradans will vote on whether life begins at conception, defining every conception as creating "a person". Whether voters will base this vote of their vast scientific expertise, their religious beliefs, or the toss of a coin is a question. How it will affect people in Colorado is another question: is every terminated pregnancy going to be murder?
In the field of civil liberties and criminal law, this means of altering the law has been particularly effective. Clever labeling ("Victim’s Bill of Rights," "Speedy Trial Initiative,") and no organized opposition interest groups (the ACLU has been repudiated as an effective voice for civil liberties) resulted in easy passage of these propositions.
These initiatives resulted in changing evidentiary rules to make it more likely that innocent people would be convicted, while also lengthening prison sentences. The electorate was barely aware of the details of these drastic changes they approved.
For instance, what voter anticipated or intended that "the three strikes law" would demand that a shoplifter be sentenced to life if he had a couple of juvenile burglaries in his past? So too, who understood that a person who has no intention to kill anyone can be executed if someone is accidentally killed by an accomplice during a crime?
The L.A. Times today reports that five of the propositions on the November 4th ballot are pet projects of billionaires. George Sauros, the liberal minded magnate backs Proposition 5(with $1.4million), which would extend expand the trend toward treatment rather than incarceration of drug violators. T. Boone Pickens backs Prop 10 with over $15 million, expecting to profit from conversion to alternative fuel vehicles because of his major investment in natural gas.
Two propositions, 6 and 9, which stiffen criminal penalties and reduce civil liberties in criminal cases, are the babies (almost $6 million) of Henry T. Nicholas, III, founder of Broadcom. They are responses to his own family’s tragedy — his sister was a murder victim.
Scant media attention has been paid to Propositions 6 and 9, which put more nails in the coffin of the Bill of Rights. There have been few debates, programs, ads, or discussion about these proposals.
Proposition 6 is an example of the dangers of this kind of law making. Like most of its ilk it contains a wish list for law enforcement.
The 2008 voter pamphlet consists of 143 pages. Prop 6 is contained in 15 pages of fine print. It amends or creates sections in the Evidence, Penal, Government, Health and Safety, and Welfare and Institutions Codes.
It is labeled "THE SAFE NEIGHBORHOOD ACT" and includes provisions for increased police funding as well as money to build jails.
But way down near the end are the vastly increased criminal penalties and drastic changes in evidence law that further endanger the fairness of the judicial system.
Among many other tidbits, It further eviscerates the Sixth Amendment by expanding the use of hearsay in gang cases.
In effect, if a person claims the defendant committed a crime, but refuses to testify or fails to come to court to face his accuser and cross-examination because he says he was intimidated or threatened, a police officer may testify in his stead to claims purportedly made.
Prosecutors complain constantly that gang cases are hard to prove. It is true that witnesses are reluctant to come forward in such cases. However, the law already provides many shortcuts which allow police "gang experts" to fill in gaps in evidence. These gang cops are notoriously unreliable in fact, dangerously biased zealots who have no reluctance to coerce witnesses, plant evidence, shade their testimony and worse, in order to get convictions. Occasionally, we find that witnesses claim they were threatened and intimidated by police, not gangs, to make incriminating statements.
Proposition 9 (THE "2008 VICTIM’S BILL OR RIGHTS; MARSY’S LAW")is another in a string of efforts to expand the rights of "victims" of crimes. Notice of bail, OR or parole hearings are fine. However, packed in are provisions that victims have the rights (1) "to prevent disclosure of confidential information.... to the defendant’s attorney ... which could be used to ... disclose confidential communications made in the course of medical or counseling treatment ...; (2) "to refuse an interview... or discovery request by ... the defendant’s attorney ...."
The law already provides that any witness may refuse to be interviewed, but expanding this choice into a constitutional right is foolish and contrary to the presumption of innocence that exists before a person is convicted of a crime.
Before such conviction, the accusing person is rightly called an "alleged victim," who is a witness like any other witness, subject to the Constitutionally guaranteed rights of confrontation and cross-examination by the accused.
By changing the rules of discovery and evidence the chances of false accusations increases exponentially.
The Constitution envisions a legislative system in which proposed laws will go through a rigorous vetting process, including hearings by committees peopled by lawmakers who understand the existing law, with aid of experts in law enforcement, financing, and most importantly, the rights of all citizens.
In bypassing the representative government that the founding fathers set up, this direct process of lawmaking by teh uninformed and easily manipulated electorate will upset the checks and balances that keep our delicate justice system respectably fair.
Saturday, November 01, 2008
Monday, October 27, 2008
Greenspan's Folly and Borenstein's Law
On October 23, former Fed chair Alan Greenspan testified before Congress, trying to explain how he blew it, failed to anticipate the current economic tragedy, and in fact, had fashioned policies and theories that led to it.
According to the AP, Greenspan, 82, acknowledged under questioning that he had made a "mistake" in believing that banks, operating in their own self-interest, would do what was necessary to protect their shareholders and institutions. Greenspan called that "a flaw in the model ... that defines how the world works."
DUH!
Greenspan's error was that he failed to read Intro to Borenstein's Law.
In June, 2005, I was trying to explain why our criminal clients act in ways that are often ascribed to stupidity. I pointed out that intelligence and education was an unreliable barrier to risky behavior.
As I explained, people (not just our clients) act contrary to their best interests so often that it can be called the norm, not an aberration.
Greenspan's presumption that bankers would be restrained by their sense of financial responsibility because it was in their own self-interest to do so is naive, reflecting a misunderstanding of history and law.
Supposed conservatives recognize the wisdom of restraints on government and individuals imposed by the Constitution and criminal laws. Yet, they also urge limiting restraints on the so-called Free Market, assuming that the inherent structure of the marketplace will suffice.
Smart people like Alan Greenspan thus draw risky conclusions about human behavior --- not too different from the kinds of decisions our dumb criminal clients make, like assuming that their homies won't snitch them off when cornered by the cops.
According to the AP, Greenspan, 82, acknowledged under questioning that he had made a "mistake" in believing that banks, operating in their own self-interest, would do what was necessary to protect their shareholders and institutions. Greenspan called that "a flaw in the model ... that defines how the world works."
DUH!
Greenspan's error was that he failed to read Intro to Borenstein's Law.
In June, 2005, I was trying to explain why our criminal clients act in ways that are often ascribed to stupidity. I pointed out that intelligence and education was an unreliable barrier to risky behavior.
As I explained, 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.).Greenspan's presumption that bankers would be restrained by their sense of financial responsibility because it was in their own self-interest to do so is naive, reflecting a misunderstanding of history and law.
Supposed conservatives recognize the wisdom of restraints on government and individuals imposed by the Constitution and criminal laws. Yet, they also urge limiting restraints on the so-called Free Market, assuming that the inherent structure of the marketplace will suffice.
Smart people like Alan Greenspan thus draw risky conclusions about human behavior --- not too different from the kinds of decisions our dumb criminal clients make, like assuming that their homies won't snitch them off when cornered by the cops.
Sunday, October 26, 2008
Here Lies My Generation (1968-2008) R.I.P.
To use an old "Ghostbusters" phrase, the streams of crime and politics crossed this week with nearly cataclysmic results.In Pennsylvania, a young white woman who claimed to be a McCain worker played a nasty race card, trying in her sadly psychotic way to "work" for her candidate. Conspiracy theorists didn’t need to sound paranoid to question whether she was a designated "suicide bomber" for her cause rather than a weird sick kid acting alone. Certainly, it can be reasonably argued that in the least, she was inspired to her crime by the panicky rhetoric of her candidate’s supporters.
Maybe I’m a bit paranoid to suggest that a shiver goes up my spine imagining what would have happened if the cops believed her story and if she had picked some black man from a line-up, but I don’t think so. I’ve seen too many such cases end up with long prison sentences.
It didn’t take Nostradamus to foresee that Barack Obama’s presence would stir thousands of ugly and dangerous vermin to rise from the substrata where they hibernate. Such creatures thrive during hard times. Economic distress releases forces that drift on the air, demanding scapegoats for the coming bloodlust. It is possible to read too much into the shouts of "terrorist," "socialist," and "kill him" that have been heard on the fringes of crowds or in blogs. But the law doesn’t think so. It is a crime in California and most states to threaten death or injury even if there is no intent to actually carrying it out if the person threatened can be said to be reasonably placed in fear. (Penal Code section 422).
Campaigns of the recent past haven’t stirred such juices on any side. I haven’t seen this much emotion since 1968, and I think I know why.
The screams are the death rattle of a generation, at least the half of the generation that fought the central wars of the last half of the 20th Century from the Right.
The Cold War, The Civil Rights struggle, and The Viet-Nam War each revealed (or caused or exacerbated) traditional cultural divisions in our country. Most people aligned themselves on the same side of all three issues. If you were anti-communist, you were against "radical" solutions for racial equality, and certainly against terminating the Viet-Nam War without "victory" and "honor".
If you favored rapprochement with the Soviets and opposed support for dictators, even if anti-communist, the odds were that you supported civil rights and liberties, and also, you protested and opposed the Viet-Nam War.
All of the ancillary battles of the era generally found the same alignment. Your attitudes about The War also predicted your feelings about women, gays, immigrants, crime, welfare, drugs, abortion, and often seeped into many other tangential cultural issues, including parenting, religion, education, rock music, fashion, entertainment, movies.
Of course, race was the initiating wedge issue. Nixon's southern strategy of 1968 and 1972 was premised on the South's resistance to racial progress, and bled into every other cultural issue we live with today.
The cultural divisions were so bitter that they colored every election since until each side was polarized, manipulated by hot button wedge issues. Throughout the next thirty years, the generation was split down the middle on virtually every issue and presidential candidate. The more or less permanent 45% to 45% permanent split reflected in divided government for most of the time, with the "swing" 10% of "independent" voters in a few states becoming the deciding vote, sometimes tweaked by third party nuisance candidates (like Perot and Nader).
George W. Bush’s pitifully flawed presidency with its disastrous policies and incompetence has caused severe mental depression for the aging pro Viet-Nam half of the generation. They are almost too old to have the energy to fight back this time. Katrina, Iraq Cheney, Gonzales, Rumsfeld, Libby, and all the other blows have taken most of the fight out of them.
This happened to the Left after Carter’s debacle laced presidency, with oil crises, inflation, high crime rates, the Iran embarrassment, leading to Reagan "democrats" crawling to the right, until redeemed by a triangulating centrist, Bill Clinton, who cruised barely left of center, co-opting some previously divisive issues by conceding them (welfare, fiscal restraint, crime).
The Crash of 2008 is the final crushing skull exploding blow to the other half of my generation. They must now go hat in hand and beg BIG GOVERNMENT to save them so that they can crawl away into retirement.
Yet, I see a weird, almost tragic irony to McCain’s status. He reminds me a bit of Hubert Humphrey, a man with a reputation for decency, a pioneer of civil rights, who found himself running in 1968 as the supporter of the war despised by his own party. He became an object of ridicule, an anachronism on the wrong side of generational shifts.
But John McCain is no Hubert Humphry. He is psychologically incapable of disassociating himself from his side of the '60's generation struggle. He remans a prisoner of war.
McCain sees "victory in Iraq" as a way to disprove the truth of Viet-Nam, to justify his life. He represents the last gasp of his frustrated and terrified lost generation. That is why, for all his obvious deficiencies as a perfect candidate, for these unreconstructed survivors of the "Silent Majority" of the 60's and 70's, he is the appropriate symbol.
Then again, maybe this election is also the last best hope for my side of the generation war as well. Obama seems like JFK reborn for many of us, and maybe it is wishful thinking. But we haven't got too much time left to wish or to dream impossible dreams. One last gasp of optimism is all we have. So we're going all in this time.
Then again, maybe this election is also the last best hope for my side of the generation war as well. Obama seems like JFK reborn for many of us, and maybe it is wishful thinking. But we haven't got too much time left to wish or to dream impossible dreams. One last gasp of optimism is all we have. So we're going all in this time.
Wednesday, September 03, 2008
Crossing the bar
Confession. I violated my own pledge never to watch a TV crime / lawyer show. I saw the first episode of a series produced by Stephen Bochco called "Raising The Bar," which was touted as being about a public defender in New York City.
The creator is David Feige, billed as a "former New York public defender" who wrote a book called "Indefensible" about his experiences. Feige is a founder of a laudible New York defender program called "Bronx Defenders," which pioneered a holistic approach to indigent criminal practice, including social workers and a team of experts supporting the lawyers. They claim legal breakthroughs, including cases that reformed New York's law regarding suggestive identifications.
The show he and Bochco created contains no more than caricatures of the denizens of NY criminal practice and flimsy sketches of the kind of cases and issues that arise there. It is mostly about sex and sensation, over-the-top drama, and appeal to audience demographics.
One of the characters is a public defender. His name is Jerry Kellerman (played by Mark-Paul Gosselaar). Kellerman looks like some PD’s I’ve known. With shoulder length hair, shirt out and intense scowl, he looks and acts the way people think PD’s should look and act. He whines about "injustice" to the DA, his superiors, his client, and especially to the judge.
In this first episode, he ultimately "wins" his case, but only after an hour of struggle. The win comes despite his ineffectual ranting which is reminiscent of Al Pacino’s conduct in the classic, "And Justice For All" (1979) in which a lawyer assigned to defend a despicable judge charged with sexual assault, comes unglued, screaming, "This whole system is out of order!"
Kellerman's client, wrongfully accused of rape, misidentified in a highly suggestive one-photo show up, is offered a plea bargain to a second count of possession of a Swiss Army knife with intent to do harm, which (apparently in New York) carries up to seven years in prison. Kellerman advises his tearful client to take the deal, but the judge, a woman who appears to be a sarcastic, vindictive "power junkie," refuses to accept the deal and forces a trial, over the objections of the DA, who points out the weakness of her case.
The D.A., "Michelle Ernhardt," (played by Melissa Sagemiller) is depicted as an ethical, smart hottie who wants to dump the case because of her doubts about guilt. Her superior, a sexist buffoon whose harrassment bluff she calls by sitting on his lap in his office, insists that she go forward because the accused must have done other crimes.
Ernhardt supports the plea bargain but when the judge refuses it and orders her to trial, she complies and argues strenuously for guilt. After the jury acquits on the rape, but convicts on the knife possession charge, the judge insists on a prison sentence and high bail on appeal. The PD whines about the ruling, accuses the judge of every fault but bribery, and winds up in jail with his client.
Ultimately, both are freed despite the defense lawyers incompetent petulance, but because of interventions --- from his superior (played by Gloria Rubens, who used to be on "ER"), the judge’s clerk / lover who is secretly gay (don’t ask!), another DA who happens to find the real rapist, and form Michelle, who pleads to her boss and then to the judge to do the right thing and then at the end is revealed to be sleeping with Kellerman – who is still pissed off at "the system."
My overall impression is that this series is about as "realistic" a depiction of the justice system as Hollywood can manage in a televised basic cable series. I do wonder whether it will inspire some in the audience to service as the 1950's classic series, "The Defenders," once did. I think it more likely that it will inspire young lawyers to grow out their hair, loosen their ties, keep their shirts out, and hit on some hot D.A.’s.
The creator is David Feige, billed as a "former New York public defender" who wrote a book called "Indefensible" about his experiences. Feige is a founder of a laudible New York defender program called "Bronx Defenders," which pioneered a holistic approach to indigent criminal practice, including social workers and a team of experts supporting the lawyers. They claim legal breakthroughs, including cases that reformed New York's law regarding suggestive identifications.
The show he and Bochco created contains no more than caricatures of the denizens of NY criminal practice and flimsy sketches of the kind of cases and issues that arise there. It is mostly about sex and sensation, over-the-top drama, and appeal to audience demographics.
One of the characters is a public defender. His name is Jerry Kellerman (played by Mark-Paul Gosselaar). Kellerman looks like some PD’s I’ve known. With shoulder length hair, shirt out and intense scowl, he looks and acts the way people think PD’s should look and act. He whines about "injustice" to the DA, his superiors, his client, and especially to the judge.
In this first episode, he ultimately "wins" his case, but only after an hour of struggle. The win comes despite his ineffectual ranting which is reminiscent of Al Pacino’s conduct in the classic, "And Justice For All" (1979) in which a lawyer assigned to defend a despicable judge charged with sexual assault, comes unglued, screaming, "This whole system is out of order!"
Kellerman's client, wrongfully accused of rape, misidentified in a highly suggestive one-photo show up, is offered a plea bargain to a second count of possession of a Swiss Army knife with intent to do harm, which (apparently in New York) carries up to seven years in prison. Kellerman advises his tearful client to take the deal, but the judge, a woman who appears to be a sarcastic, vindictive "power junkie," refuses to accept the deal and forces a trial, over the objections of the DA, who points out the weakness of her case.
The D.A., "Michelle Ernhardt," (played by Melissa Sagemiller) is depicted as an ethical, smart hottie who wants to dump the case because of her doubts about guilt. Her superior, a sexist buffoon whose harrassment bluff she calls by sitting on his lap in his office, insists that she go forward because the accused must have done other crimes.
Ernhardt supports the plea bargain but when the judge refuses it and orders her to trial, she complies and argues strenuously for guilt. After the jury acquits on the rape, but convicts on the knife possession charge, the judge insists on a prison sentence and high bail on appeal. The PD whines about the ruling, accuses the judge of every fault but bribery, and winds up in jail with his client.
Ultimately, both are freed despite the defense lawyers incompetent petulance, but because of interventions --- from his superior (played by Gloria Rubens, who used to be on "ER"), the judge’s clerk / lover who is secretly gay (don’t ask!), another DA who happens to find the real rapist, and form Michelle, who pleads to her boss and then to the judge to do the right thing and then at the end is revealed to be sleeping with Kellerman – who is still pissed off at "the system."
My overall impression is that this series is about as "realistic" a depiction of the justice system as Hollywood can manage in a televised basic cable series. I do wonder whether it will inspire some in the audience to service as the 1950's classic series, "The Defenders," once did. I think it more likely that it will inspire young lawyers to grow out their hair, loosen their ties, keep their shirts out, and hit on some hot D.A.’s.
Wednesday, August 20, 2008
There is [no] justice in this world ...
LONDON: (N.Y. Times, The World, July 27, 2008, p.4) A columnist recounts a case in which an English court awarded damages to a man whose privacy was invaded by a British tabloid.
The Brit rag had printed a story about a famous Formula One racing official frequenting prostitutes who wore German style military jackets, spanking him while counting off the strikes in "guttural" German (presumably "Eins, Tsvei, Drei..."). The subject was the son of an English "nobleman" (my quotes) who was described as Britain’s prewar Fascist leader, whose wedding had been attended by Hitler. Though warned that his private life was under surveillance, our "hero" nonetheless entered an apartment for his regular spanking "therapy" session. One of the women who had been promised money to video the encounter, had a camera hidden in her bra.
The judge’s controversial (in England) ruling was that exposure of private sexual conduct doesn’t involve significant crimes was none of the media’s business even if it is of "prurient interest" or part of a "moral crusade." "In a sentence, titillation just won’t do," the judge pronounced.
BANGKOK: (L.A. Times, August 20, 2008, A6) reports that terrorists convicted of involvement in the 2002 Bali bombing that killed 202 people at a resort want to be executed by beheading [the traditional Islamic method] rather than the court ordered firing squad, while their lawyers asked for lethal injection, which is more humane and negates "torture" resulting from poor aim.
SEATTLE: (L.A. Times, The Nation, July 27, 2008, A16) The U.S. Army apologized for the erroneous courts-martial of 28 African American U.S. soldiers and execution of 2 of them for lynching of Italian P.O.W.’s during World War II.
Investigative reporting many years later revealed "flaws" in the Government’s case, including the fact that only 2 defense lawyers had been appointed to represent the 43 defendants and were given 10 days to prepare for the trial. More seriously, The Army prosecutor assigned to the case had denied discovery to the defense of a lengthy investigative report by the Army Inspector General. The report, it was revealed many years later, pointed to white men as the true culprits who had killed the prisoners.
The Army now admits that its prosecutor’s conduct was "disingenuous," "illegal" and "unethical", and resulted in this "fatal flaw". The prosecutor in question was Col. Leon Jaworski, who later became a power in the Democratic Party and was appointed special prosecutor in the Nixon / Watergate scandal. He died in 1982.
Congress is now considering a Bill to grant "reparations" to the wrongly convicted, imprisoned, and in 2 instances, executed soldiers and their descendents.
LOS ANGELES: (L.A. Times, California Section, August 19, 2008, p.1) reports yet another case in which an LAPD detective was caught allegedly "testilying" (as one of my old clients would have called it).
At the urging of the D.A., a judge dismissed a pending attempted murder case after the D.A. listened to a communications tape that contradicted the detective’s testimony that identified the two defendants. On the tape, he is heard to question the identities and to describe actions that directly contradicted his incriminatory testimony. The D.A. attributed the mistaken testimony to "faulty recollection," though the defense characterized it less charitably.
The Brit rag had printed a story about a famous Formula One racing official frequenting prostitutes who wore German style military jackets, spanking him while counting off the strikes in "guttural" German (presumably "Eins, Tsvei, Drei..."). The subject was the son of an English "nobleman" (my quotes) who was described as Britain’s prewar Fascist leader, whose wedding had been attended by Hitler. Though warned that his private life was under surveillance, our "hero" nonetheless entered an apartment for his regular spanking "therapy" session. One of the women who had been promised money to video the encounter, had a camera hidden in her bra.
The judge’s controversial (in England) ruling was that exposure of private sexual conduct doesn’t involve significant crimes was none of the media’s business even if it is of "prurient interest" or part of a "moral crusade." "In a sentence, titillation just won’t do," the judge pronounced.
BANGKOK: (L.A. Times, August 20, 2008, A6) reports that terrorists convicted of involvement in the 2002 Bali bombing that killed 202 people at a resort want to be executed by beheading [the traditional Islamic method] rather than the court ordered firing squad, while their lawyers asked for lethal injection, which is more humane and negates "torture" resulting from poor aim.
SEATTLE: (L.A. Times, The Nation, July 27, 2008, A16) The U.S. Army apologized for the erroneous courts-martial of 28 African American U.S. soldiers and execution of 2 of them for lynching of Italian P.O.W.’s during World War II.
Investigative reporting many years later revealed "flaws" in the Government’s case, including the fact that only 2 defense lawyers had been appointed to represent the 43 defendants and were given 10 days to prepare for the trial. More seriously, The Army prosecutor assigned to the case had denied discovery to the defense of a lengthy investigative report by the Army Inspector General. The report, it was revealed many years later, pointed to white men as the true culprits who had killed the prisoners.
The Army now admits that its prosecutor’s conduct was "disingenuous," "illegal" and "unethical", and resulted in this "fatal flaw". The prosecutor in question was Col. Leon Jaworski, who later became a power in the Democratic Party and was appointed special prosecutor in the Nixon / Watergate scandal. He died in 1982.
Congress is now considering a Bill to grant "reparations" to the wrongly convicted, imprisoned, and in 2 instances, executed soldiers and their descendents.
LOS ANGELES: (L.A. Times, California Section, August 19, 2008, p.1) reports yet another case in which an LAPD detective was caught allegedly "testilying" (as one of my old clients would have called it).
At the urging of the D.A., a judge dismissed a pending attempted murder case after the D.A. listened to a communications tape that contradicted the detective’s testimony that identified the two defendants. On the tape, he is heard to question the identities and to describe actions that directly contradicted his incriminatory testimony. The D.A. attributed the mistaken testimony to "faulty recollection," though the defense characterized it less charitably.
Wednesday, August 13, 2008
A bid for the 2012 Olympics
Multi-tasking, I am told by Greg, is not simply adding distractions to concentration. It can result in positives, like drawing connections between seemingly disparate interests. So, I decided not to feel guilty about watching some of the Olympics while working on my cases.
Neither occupation is satisfying standing alone. My cases are fairly routine, as I’ve outlined previously and the Olympics events can be almost as deadly (no pun intended).
Then I had an epiphany that Greg would have been proud of. What the Olympics needs is a shot in the arm (pun intended).
Why not add a "gang" sport to the agenda? Something like "Drive-by shooting." There are lots of shooting events in The Games: skeet, target, airgun. The Winter Games has one of my favorites: the biathlon, cross-country skiing + shooting rifles at targets.
Why not make a sport of shooting from a moving car at a moving target or into an inhabited dwelling?
Think of the societal advantages. In past generations, ghetto delinquents were urged to get into boxing as a catharsis for violent tendencies. When I was a kid in Brooklyn I boxed in the P.A.L. (Police Athletic League). Y.M.C.A.’s had their boxing and wrestling programs.
This sport requires just as much talent and skill as the events now calendared. Well, maybe not as much as synchronized diving. But certainly it demands more eye-trigger finger coordination than that one.
Judging from the number of instances of this sort of behavior in our court system, we would have a head start on other countries competing for medals in this sport.
Just as skateboading is now a money-making "Extreme Sport," drive-by's could be a cash cow instead of a scourge. Nike could make a bundle on the sportswear. Taking the skills off the streets and into the corporate sports entertainment business world is our meat.
Don’t let the fact that this activity began as a crime chill the concept. There is precedent. NASCAR’s roots were in bootlegged liquor hauling over state lines. Pioneers like Junior Johnson went from souped up jalopies outracing Revenuers to stock cars racing around tracks.
Neither occupation is satisfying standing alone. My cases are fairly routine, as I’ve outlined previously and the Olympics events can be almost as deadly (no pun intended).
Then I had an epiphany that Greg would have been proud of. What the Olympics needs is a shot in the arm (pun intended).
Why not add a "gang" sport to the agenda? Something like "Drive-by shooting." There are lots of shooting events in The Games: skeet, target, airgun. The Winter Games has one of my favorites: the biathlon, cross-country skiing + shooting rifles at targets.
Why not make a sport of shooting from a moving car at a moving target or into an inhabited dwelling?
Think of the societal advantages. In past generations, ghetto delinquents were urged to get into boxing as a catharsis for violent tendencies. When I was a kid in Brooklyn I boxed in the P.A.L. (Police Athletic League). Y.M.C.A.’s had their boxing and wrestling programs.
This sport requires just as much talent and skill as the events now calendared. Well, maybe not as much as synchronized diving. But certainly it demands more eye-trigger finger coordination than that one.
Judging from the number of instances of this sort of behavior in our court system, we would have a head start on other countries competing for medals in this sport.
Just as skateboading is now a money-making "Extreme Sport," drive-by's could be a cash cow instead of a scourge. Nike could make a bundle on the sportswear. Taking the skills off the streets and into the corporate sports entertainment business world is our meat.
Don’t let the fact that this activity began as a crime chill the concept. There is precedent. NASCAR’s roots were in bootlegged liquor hauling over state lines. Pioneers like Junior Johnson went from souped up jalopies outracing Revenuers to stock cars racing around tracks.
Monday, July 14, 2008
If I ruled the world ...
If I ruled the world, it would be a far, far better place. We would have energy independence, a stable economy, universal health care, no troops in Iraq, and the Designated Hitter Rule in the National League.
This is the kind of radical change we need to have immediately.
So, first things first.
A few weeks ago, Hank Steinbrenner, the heir to the Yankees fortune, whined when his star pitcher was injured running the bases during an interleague game. He blamed the failure of the other league to adopt the DH rule. For this, he was ridiculed in the press. But the fact is, he was right.
It is time to admit that the DH rule, which is hated by old-school purists and hide-bound baseball philosophers and poets, is here to stay. It has been in effect now in the American League for more than 30 years. Although it has been rightly blamed for disrupting the legitimacy of statistical comparisons, the life blood of baseball historians, the fact is that other changes have been far more significant in diluting the numbers. Expansion, steroids, band box ballparks, artificial turf, srategies (like pitch counts, 5 day rotations, relief specialists) have also acted to skew the statistics from previous eras.
The DH rule has a positive side, which accounts for its permanence. Fans want to see more offense, and it is clear that the rule has juiced scoring. This year’s team batting stats illustrate the point. Of the 30 major league teams (16 NL, 14 AL), 9 of the first 15 are from the AL. Seven of the bottom 10 are NL teams. The best hitting pitcher in the NL, Carlos Zambrano has 1 home run and 13 RBI’s. Milton Bradley, DH for the AL Rangers, has 17 and 54, far more than all NL pitchers combined. Other DH’s include Thome, Matsui, Stairs, Ortiz, Sheffield, Floyd, sluggers whose production exists without concern for their defensive flaws.
An important benefit of the DH rule is the roster affect. NL teams typically carry 12 pitchers, AL teams 13, which results in more rested staffs. (The first 4 teams leading in pitching are from the AL.) The NL needs to carry an extra position player as pinch hitter and defensive replacements for late inning double switches, to avoid relief pitchers from batting. Without the dead number 9 spot in the order, AL managers can manipulate the bottom third of the order to be far more productive.
In the recent interleague play the AL advantage was evident. The AL won 149 games to 102, a win pctg. of .593. That is proof of dominance. The World Series is not a good measure of league dominance. In the 1940's - 1950's, the Yankees dominated in October, but the NL overall was the stronger league (due mostly to the NL’s lead in African American talent).
The NL’s refusal to adopt the DH rule is absurd. No other major sports league has such a significant disparity in rules. It is time for the purists, poets, and philosophers to admit defeat.
This is the kind of radical change we need to have immediately.
So, first things first.
A few weeks ago, Hank Steinbrenner, the heir to the Yankees fortune, whined when his star pitcher was injured running the bases during an interleague game. He blamed the failure of the other league to adopt the DH rule. For this, he was ridiculed in the press. But the fact is, he was right.
It is time to admit that the DH rule, which is hated by old-school purists and hide-bound baseball philosophers and poets, is here to stay. It has been in effect now in the American League for more than 30 years. Although it has been rightly blamed for disrupting the legitimacy of statistical comparisons, the life blood of baseball historians, the fact is that other changes have been far more significant in diluting the numbers. Expansion, steroids, band box ballparks, artificial turf, srategies (like pitch counts, 5 day rotations, relief specialists) have also acted to skew the statistics from previous eras.
The DH rule has a positive side, which accounts for its permanence. Fans want to see more offense, and it is clear that the rule has juiced scoring. This year’s team batting stats illustrate the point. Of the 30 major league teams (16 NL, 14 AL), 9 of the first 15 are from the AL. Seven of the bottom 10 are NL teams. The best hitting pitcher in the NL, Carlos Zambrano has 1 home run and 13 RBI’s. Milton Bradley, DH for the AL Rangers, has 17 and 54, far more than all NL pitchers combined. Other DH’s include Thome, Matsui, Stairs, Ortiz, Sheffield, Floyd, sluggers whose production exists without concern for their defensive flaws.
An important benefit of the DH rule is the roster affect. NL teams typically carry 12 pitchers, AL teams 13, which results in more rested staffs. (The first 4 teams leading in pitching are from the AL.) The NL needs to carry an extra position player as pinch hitter and defensive replacements for late inning double switches, to avoid relief pitchers from batting. Without the dead number 9 spot in the order, AL managers can manipulate the bottom third of the order to be far more productive.
In the recent interleague play the AL advantage was evident. The AL won 149 games to 102, a win pctg. of .593. That is proof of dominance. The World Series is not a good measure of league dominance. In the 1940's - 1950's, the Yankees dominated in October, but the NL overall was the stronger league (due mostly to the NL’s lead in African American talent).
The NL’s refusal to adopt the DH rule is absurd. No other major sports league has such a significant disparity in rules. It is time for the purists, poets, and philosophers to admit defeat.
Thursday, July 10, 2008
Winning a lost cause
"God is watching us. If we support someone we don't believe in and say he's electable, then God will make sure he's not elected and hope we do better the next time." Mort Sahl.
"Dad used to say the only causes worth fighting for were the lost causes." ("Mr. Smith Goes To Washington", Sidney Buchman).
"I’m not fighting for anything anymore, except myself. I’m the only cause I’m interested in." ("Casablanca", Philip & Julius Epstein)
What I find interesting about the Obama phenomenon is that he seems to be a leader who in tune with his times, attuned to his generation’s heartbeat, eloquently giving it voice. In my life, FDR, JFK, Reagan, Clinton all had the same power – whether they used it for good or not, it is the essence of democratic leadership.
When I became a public defender, in the late 1960's, I quickly became disabused of the romantic notion that I was fighting for a "cause". I was taught that I was there to defend individuals, not the Bill of Rights, or racial equality, or anything else. If the interests of the client demanded fighting, fine; but if it was best for the client to compromise, or even give up, that was my obligation. This was not the Clarence Darrow role; he could no longer be a model — fighting for lost causes was "noble" but was not an affordable luxury to a public defender.
Nonetheless, the fondest memory of my career was winning a case that resulted in reversal of many death verdicts. The asserted nobility of public defending lies in the pride of losing most of the time while fighting "the good fight."
In politics, I’ve supported mostly lost causes during my lifetime. McGovern, Dukakis, Mondale, Gore, Kerry. Tired of losing nobly, Bill Clinton represented a new idea: winning was more important than noble losing.
Greg’s generation seems to have found a candidate who can appeal to both impulses. Obama’s recent statements smack of "positioning." But that’s okay, because his youthful supporters understand the concept.
"Dad used to say the only causes worth fighting for were the lost causes." ("Mr. Smith Goes To Washington", Sidney Buchman).
"I’m not fighting for anything anymore, except myself. I’m the only cause I’m interested in." ("Casablanca", Philip & Julius Epstein)
What I find interesting about the Obama phenomenon is that he seems to be a leader who in tune with his times, attuned to his generation’s heartbeat, eloquently giving it voice. In my life, FDR, JFK, Reagan, Clinton all had the same power – whether they used it for good or not, it is the essence of democratic leadership.
When I became a public defender, in the late 1960's, I quickly became disabused of the romantic notion that I was fighting for a "cause". I was taught that I was there to defend individuals, not the Bill of Rights, or racial equality, or anything else. If the interests of the client demanded fighting, fine; but if it was best for the client to compromise, or even give up, that was my obligation. This was not the Clarence Darrow role; he could no longer be a model — fighting for lost causes was "noble" but was not an affordable luxury to a public defender.
Nonetheless, the fondest memory of my career was winning a case that resulted in reversal of many death verdicts. The asserted nobility of public defending lies in the pride of losing most of the time while fighting "the good fight."
In politics, I’ve supported mostly lost causes during my lifetime. McGovern, Dukakis, Mondale, Gore, Kerry. Tired of losing nobly, Bill Clinton represented a new idea: winning was more important than noble losing.
Greg’s generation seems to have found a candidate who can appeal to both impulses. Obama’s recent statements smack of "positioning." But that’s okay, because his youthful supporters understand the concept.
When Greg was in 6th grade, we took him for an interview at a prominent private school. We sat in the admissions office squirming while the director quizzed our son. "Do you like to wear a uniform for school?" she asked him. "Yes," he said without hesitation. "Why?" "Because when I put it on I know I’m there for work."
In the car, I asked him how he came up with that answer. "I thought that was what she wanted to hear," he shrugged.
I knew then that our nation’s future was in good hands.
Thursday, July 03, 2008
The gang's all here
I recently settled one homicide case and I’ve got three more pending. They’re all in San Fernando, all involve Valley Hispanic gang members shooting at each other.
In one case, my client (not a gang member) was driving two gangster friends to get McDonald’s. On the way, the passenger saw a car belonging to a rival gangster. He told my client to speed up, and then shot into the rear of the car, narrowly missing the car seat carrying the year old infant, killing her uncle in the next seat.
In the second, my client went to a party with some homies and asked his sister to pick him up because the others were going to go cruising. His father, who was angry that his son had disobeyed him by hanging with his gangster friends, told his sister not to give him a ride. So, my client got into a truck with three others. One of the guys in the back seat testified that they drove into an enemy ‘hood and shot at some rival gang members who ran away. Some of the bullets from the .45 traveled about 40 to 50 yards away, entering the wall and window of two apartments, narrowly missing a child in a crib.
In the third, my client and two friends went to a flyer party. My client’s friend refused to be searched on entry, pulled a gun and shot a rival gang member who was standing in a crowd of partiers.
In the case I recently settled, my client and his friend stopped at an intersection and were met by a mentally challenged young man, a gang member who was probably selling drugs and was too stupid to realize they were from rival gangs. He was shot and died there.
My client had maintained his innocence for two years, in the face of two witnesses against him. One was a young man who was riding in a car that crossed the intersection at the time of the shooting. He claimed to identify my client and the other man as the ones in the shooting car. Another was my client’s former girlfriend, who claimed he "bragged" about the shooting to her. She had plenty of motive to dislike my client by the time she told the police about this supposed statement, 6 months after it made to her. She had become pregnant by him, and had been beaten up by some of his home girls, at his order, she believed.
As we neared the trial date, we discovered that the eyewitness had been recently arrested for carjacking. He claimed a gang "moniker." All this placed his credibility in doubt, so the D.A. offered a reduced plea to manslaughter — a term of about 11 years in prison instead of life. When the day for the plea arrived, my client told me that the witness, whose case as a defendant happened to be set on the same date, was placed in the same holding cell that morning. They had "talked" and the witness (now an inmate / defendant) told my client that he didn’t intend to testify. He’d been "forced" by police to testify at the preliminary hearing.
Quite upset, I told my client that in my opinion the witness who changed his testimony under these circumstances would be presumed to have been threatened to do so. Despite my client’s denials, that is how it would appear to the D.A., the judge, and a jury. BUT, I told him I would continue the case and investigate this if he wished. After hesitation, my client decided to take the deal instead.
I mention all of this because in each of these cases, the D.A.’s and police claim concern for the safety of their witnesses who testify against gang members. They have used changes in the laws to deny the defense access to identifying information, especially addresses of witnesses for as long as possible. In short, the police, prosecutors, and courts treat gang cases the way the "Patriot Act" treats terrorists, limiting traditional due process protections while at the same time demanding harsher penalties.
Gang cops and specially assigned gang unit D.A.'s have contempt for defendants, their attorneys (even if appointed by courts rather than "hired"), and for judges and laws demanding "rights" for the accused that frustrate their perception of justice. Though this frustration is sometimes justified because voluntary witnesses are hard to come by because of the age-old problems of fear, family, distrust of authority, deportation, etc., the self-righteous prosecutors pursue the end no matter the means.
Several years ago, I had a case which was dismissed by a D.A. before the preliminary hearing because he had no witnesses. He told me that he was violating his office’s policy to keep gang defendants in jail for as long as possible even if there was not enough evidence to proceed to trial by continuing it, getting past the prelim by using hearsay, offering lesser pleas. But he knew the policy was unethical, so he was dismissing the case.
This week the L.A. Times reported about a case in which police interrogated a girlfriend of a gang member accused of murder. She had refused to finger the accused, but police told the suspect that she had named him. They went so far as to fabricate a "6-pack," a photo ID folder with the suspect’s picture circled, and the girl’s signature forged underneath, in order to encourage the suspect to confess.
Courts have never had problems with police lying to suspects about "evidence" if it yields a "truthful" confession. I’ve had many cases in which the defendant confessed after police told him his fingerprints were at the scene, or that witnesses or other suspects had named him. "They fingered you, so you better tell us your side of it..."
In this case, however, the girl — who had not in fact "snitched," was murdered, apparently on the telephoned order of the accused.
Just to add to the carnage, police arrested the brother of one of the suspects as the shooter of the girl / witness and tried to get him to confess, using three more faked photo show-up folders. He eventually was exonerated — after spending 6 months in jail, when he proved he was at a Dodgers game at the time of the crime. He was awarded $320,000 in a wrongful arrest suit.
The parents of the murdered girl are suing the city, claiming that police, after lying to the suspect about her "snitching," failed to warn her of any danger.
In one case, my client (not a gang member) was driving two gangster friends to get McDonald’s. On the way, the passenger saw a car belonging to a rival gangster. He told my client to speed up, and then shot into the rear of the car, narrowly missing the car seat carrying the year old infant, killing her uncle in the next seat.
In the second, my client went to a party with some homies and asked his sister to pick him up because the others were going to go cruising. His father, who was angry that his son had disobeyed him by hanging with his gangster friends, told his sister not to give him a ride. So, my client got into a truck with three others. One of the guys in the back seat testified that they drove into an enemy ‘hood and shot at some rival gang members who ran away. Some of the bullets from the .45 traveled about 40 to 50 yards away, entering the wall and window of two apartments, narrowly missing a child in a crib.
In the third, my client and two friends went to a flyer party. My client’s friend refused to be searched on entry, pulled a gun and shot a rival gang member who was standing in a crowd of partiers.
In the case I recently settled, my client and his friend stopped at an intersection and were met by a mentally challenged young man, a gang member who was probably selling drugs and was too stupid to realize they were from rival gangs. He was shot and died there.
My client had maintained his innocence for two years, in the face of two witnesses against him. One was a young man who was riding in a car that crossed the intersection at the time of the shooting. He claimed to identify my client and the other man as the ones in the shooting car. Another was my client’s former girlfriend, who claimed he "bragged" about the shooting to her. She had plenty of motive to dislike my client by the time she told the police about this supposed statement, 6 months after it made to her. She had become pregnant by him, and had been beaten up by some of his home girls, at his order, she believed.
As we neared the trial date, we discovered that the eyewitness had been recently arrested for carjacking. He claimed a gang "moniker." All this placed his credibility in doubt, so the D.A. offered a reduced plea to manslaughter — a term of about 11 years in prison instead of life. When the day for the plea arrived, my client told me that the witness, whose case as a defendant happened to be set on the same date, was placed in the same holding cell that morning. They had "talked" and the witness (now an inmate / defendant) told my client that he didn’t intend to testify. He’d been "forced" by police to testify at the preliminary hearing.
Quite upset, I told my client that in my opinion the witness who changed his testimony under these circumstances would be presumed to have been threatened to do so. Despite my client’s denials, that is how it would appear to the D.A., the judge, and a jury. BUT, I told him I would continue the case and investigate this if he wished. After hesitation, my client decided to take the deal instead.
I mention all of this because in each of these cases, the D.A.’s and police claim concern for the safety of their witnesses who testify against gang members. They have used changes in the laws to deny the defense access to identifying information, especially addresses of witnesses for as long as possible. In short, the police, prosecutors, and courts treat gang cases the way the "Patriot Act" treats terrorists, limiting traditional due process protections while at the same time demanding harsher penalties.
Gang cops and specially assigned gang unit D.A.'s have contempt for defendants, their attorneys (even if appointed by courts rather than "hired"), and for judges and laws demanding "rights" for the accused that frustrate their perception of justice. Though this frustration is sometimes justified because voluntary witnesses are hard to come by because of the age-old problems of fear, family, distrust of authority, deportation, etc., the self-righteous prosecutors pursue the end no matter the means.
Several years ago, I had a case which was dismissed by a D.A. before the preliminary hearing because he had no witnesses. He told me that he was violating his office’s policy to keep gang defendants in jail for as long as possible even if there was not enough evidence to proceed to trial by continuing it, getting past the prelim by using hearsay, offering lesser pleas. But he knew the policy was unethical, so he was dismissing the case.
This week the L.A. Times reported about a case in which police interrogated a girlfriend of a gang member accused of murder. She had refused to finger the accused, but police told the suspect that she had named him. They went so far as to fabricate a "6-pack," a photo ID folder with the suspect’s picture circled, and the girl’s signature forged underneath, in order to encourage the suspect to confess.
Courts have never had problems with police lying to suspects about "evidence" if it yields a "truthful" confession. I’ve had many cases in which the defendant confessed after police told him his fingerprints were at the scene, or that witnesses or other suspects had named him. "They fingered you, so you better tell us your side of it..."
In this case, however, the girl — who had not in fact "snitched," was murdered, apparently on the telephoned order of the accused.
Just to add to the carnage, police arrested the brother of one of the suspects as the shooter of the girl / witness and tried to get him to confess, using three more faked photo show-up folders. He eventually was exonerated — after spending 6 months in jail, when he proved he was at a Dodgers game at the time of the crime. He was awarded $320,000 in a wrongful arrest suit.
The parents of the murdered girl are suing the city, claiming that police, after lying to the suspect about her "snitching," failed to warn her of any danger.
Tuesday, July 01, 2008
June in a nutshell
George Carlin & Bo Diddley died...
I settled one murder case and picked up another one....
Some tasks were completed, some put off....
Hillary & Barack claimed an uneasy alliance...
Barack crabbed to the Center....
The Supreme Court ended its term, 5-4 votes reminding us that J. Stevens is 88, Bader Ginsburg is 75....
Ron is 73. ...
Interleague baseball proved again that the AL is far superior to the NL. ... Time to admit the DH rule is here to stay.
Tiger Woods proved again that he is a god.... Kobe proved he isn’t....
Another DA on one of my cases became a judge....
Two more friends retired....
I applied for Medicare.... gulp.
I settled one murder case and picked up another one....
Some tasks were completed, some put off....
Hillary & Barack claimed an uneasy alliance...
Barack crabbed to the Center....
The Supreme Court ended its term, 5-4 votes reminding us that J. Stevens is 88, Bader Ginsburg is 75....
Ron is 73. ...
Interleague baseball proved again that the AL is far superior to the NL. ... Time to admit the DH rule is here to stay.
Tiger Woods proved again that he is a god.... Kobe proved he isn’t....
Another DA on one of my cases became a judge....
Two more friends retired....
I applied for Medicare.... gulp.
Monday, June 30, 2008
The Definitive Essay On Sports
The Olympics are back again.
For me it means that many people around the world will be doing something I haven’t done for a while: watching sports with non-stop mesmeric addiction.
Our idea of sports is molded by TV’s definition of sports. Back in the day, ABC's Wide World of Sports, created to fill winter weekends after football and basketball and before baseball seasons, broadened the definition of sports: ski jumping, downhill racing, bobsled, gymnastics, tennis, soccer, billiards, demolition derby. WWS eventually blurred the definition of Sport beyond recognition. What they presented was "athletic competition" in all its forms. But athleticism exists in many endeavors (like ballet). It does not become a Sport simply by engrafting an artificial scoring system to create competition.
We have survived to the cable age. Remote in hand, I have viewed the "extreme" sports: ski-diving, mountain skiing, snow boarding half-pipe, (sounds more like pot smoking). Now, in the Olympics, we will be subjected to them all: including synchronized swimming, shooting, and beach volleyball.
But wait a minute. Where do these events fit into the Olympic motto: "Citius, altius, fortius"; faster, higher, stronger? How do they relate to the ancient Olympic sports, which were exercises in heroism related to skills of warriors?
It is important to remember that what we are watching are the Olympic "Games", among which are some "sports" and some "games" which are something other than "sports."
Through the years, I have engaged in many debates with friends about the crucial philosophical issues: whether golf is a sport; which sport is the truest sport.
I have come up with some criteria to define sports and to judge which are the most sport-like.
To define the truest sport, I go back to the basic pre-historic origin of sport, that of a contest between children proving power over one another.
The first sport, as anyone who watches tiger cubs (or chimps) will admit, must have been wrestling. One cub tries to show his or her domination over another by pinning him to the ground, or breaking his neck. This mano a mano contest is the rawest form of sport.
I hold that the closer the sport is to this ideal, the more it is a sport. The further away you drift from this ideal, the less it is a real sport. Thus, wrestling, judo, ju-jitsu, are the purest sports. The fact that rules have been imposed to decrease the risks, to quantify the gains short of pinning the opponent, diminishes the purity only slightly.
Do not misunderstand: it is not the dangerousness of the activity which is the criteria, though it is an exciting element added to the "sportness." Risk of injury is present in many human activities that are not necessarily sports.
Boxing adds the next level of sophistication. True, the fight is ritualized, with gloves, helmets, and layers of subjective rules for point scoring which further lessen the purity of the sport aspect. In other so-called sports (gymnastics and figure skating being the prime examples) the subjective nature of the scoring is fatal to its consideration as sport.) But, because at its foundation, boxing is still a face to face power struggle of one person against another, it remains one of the purest sports.
The next category of pure sports also stems from natural activities of boys and girls (as well as other animals): running. In children and other animals this contest often is part of the fighting game: hit and run. The swiftest child has a status in challenge: "Hey, race you to that tree?"
Races, the sprints to the marathon, are also basic sports.
Swimming is in the same cubbyhole.
Running over obstacles - hurdles, steeplechases, also are in the same category.
So, too, races with machines that assist, but do not eliminate physical labor: bicycles, rowboats, skis, skates.
Races with machines that do most of the physical labor, like motor and sail boats, cars, bobsleds, fall in a completely different category and must be considered under different criteria which will be discussed below.
Other sports stemming from the same primitive urge to best the other kid and answer similar fundamental questions such as who is faster include: the high jump and pole vault (who can jump higher); long jump, triple jump (who can jump farther); weightlifting (who is stronger); discus, shotput, hammer throw, javelin (who can throw this object - rock, stick, disk, or spear the furthest).
The javelin and other events related to it raise another important point about sports. Many began as contests among soldiers in skills needed for the hunt for meat and later, for enemies in battle. The javelin -- a spear -- is one of the most primitive of weapons.
It is not difficult to imagine ancient hunters and soldiers, in those many hours of boredom between battles, challenging each other to such contests. One of them must have then picked up a cannonball and tossed it. It is also not hard to imagine officers encouraging these games as healthy diversions for the troops which had the added benefit of honing skills, rewarding aggressiveness, and identifying the most skilled and competitive among the troops.
When I first watched the biathalon, a winter Olympic sport which consists of rifle shooting and cross-country skiing, others with whom I watched, mocked the seeming incongruity of the violent with the idyllic pastimes; but I remembered the black and white footage of Finnish troops fighting Germans in World War II when both these skills became deadly serious business.
In this category, we must acknowledge fencing, archery and shooting, although shooting and archery, by interposing mechanisms which do most of the physical labor, are closer to auto racing in the skills they require, and are thus diminished as sports.
Before we go further, it is best to discuss some of the criteria I have devised to test whether a sport is really a sport. Some are self-evident, others are slightly biased according to my taste, others are stated with tongue at least partly tucked in cheek. None are perfect, because exceptions always exist in this complex study, but a few standards are absolutes.
Mere athleticism is not enough.
There is no question that ballet dancers are fine athletes. Anyone who watched Barishnikov’s sculptured body in tights leap gracefully and turn thrice in the air, landing perfectly in time to lift his partner as if she weighed 90 pounds (which she usually did) cannot deny his status as a premier athlete, probably superior in conditioning to many sportsmen. However, none would argue seriously that ballet is a sport.
Neither is ice dancing, synchronized swimming, or women’s floor exercises in gymnastics. What these athletic achievements lack to be called a sport is hard to define. But there are two elements they possess in common which disqualify them in my judgment.
First, they are measured by a purely subjective scoring system.
(Although boxing scoring is also subjective - unless the opponent is knocked out - it is so basic a sporting contest that it passes the test.)
Second, and fatally, they are accompanied by music. My fundamental rule of sport is that it cannot be a sport if it is accompanied by music.
I must note that the tendency to accessorize popular sports with music is disturbing: baseball, football and basketball games are more and more accompanied by orchestrated crowd-pleasing chants: Queen's "We will, we will rock you!"
There may come a day when entire basketball games have musical scores like movies, continuing throughout the game, and I will get back to you when that comes.
On the other side of the coin, a total lack of athleticism is also fatal to sportiveness.
Golfers, bowlers, dart throwers, auto racers, pool players, shooters, sailors, horse riders (equestrians, if you wish), come in this dubious category.
What they have in common is a tendency to have pot bellies, wear street clothes (or worse, bad looking shirts and pants). Thus if you can be completely out of shape, if you can smoke a cigarette between or during shots, or drink a beer while you are competing, it is a less sportive sport.
This is not to say that these activities do not require athletic skill. Eye-hand coordination, muscle memory, courage, strength, agility, nerves of steel, extreme skill are all required.
But the questions often asked: "Oh yeah, you try bowling a 300, or hitting a 300 yard drive, or sinking a three cushion shot in the corner pocket" are beside the point.
The fact that a superb athlete like Tiger Woods was the world’s best golfer seems to some to elevate golf to a sport, and I must admit that watching him perform it is hard to deny his athleticism.
It is also true that just because out-of-shape people participate should not disqualify the sport. I’ll get to baseball soon; and of course there are some boxers and many football players who look like they’ve had too many hamburgers during training.
Other criteria are more playful, and less certain, but illustrate the point.
If you don’t sweat during the contest, it is not a sport. If you do, it is more likely, though not certainly a sport. I note that swimmers probably don’t sweat, but they would if they weren’t being continuously cooled by water. Golfers sweat from southern heat and over a two foot putt, but not because of physical exertion. Ice dancers probably do, but it is still not much of a sport.
Someone trying to be clever said that Black men and women should be good at it. It is true that if there are few Blacks participating in true sports, look for a defect in the society which causes it (or a geographic reason - meaning there are few people of color in the area). I leave it to racists and / or geneticists to explain whether slavery or fast twitch muscles have anything to do with this. (Some jerk once got into hot water by explaining the lack of people of color in swimming events: "They aren't buoyant.")
Events that are simply exhibitions of showing off are not sports.
It is clear that the attraction of sports stems from the basic human urge to show off, to prove one’s superiority over one’s peers. Performing better tricks with one's body or device (such as a skateboard or motorbike) is fun, but attaching a score to the stunt doesn't make it a sport. Of course,many sports that are closer to the borderline of sport definition award style or form.
Here, I am referring to diving, gymnastics events, figure skating. These are akin to muscle building. They are exhibitions of great bodies doing extraordinary things. But the NBA Dunk contest is not a sport although basketball certainly is. The subjective nature of the scoring defines it as an exhibition: a 9.9 distinguished from a 9.8 by what the judge’s perceive as a minuscule flaw in form is insufficient to fool the true sports lover.
It is the raising of "form" over result that defines the event as an exhibition, more akin to ballet than to sport.
If a boxer flattens his rival, or a sprinter gets to the line faster, the one with better form gets no added points. Better form may lead to better results, but in true sport, it is the result which counts. Debates rage over which boxer had the prettiest form, and was thus the better artist, but the result is still what counts.
It is worthwhile to remark that observers who note that baseball players, notably pitchers, are in less than tip-top shape, have a point. It is certainly arguable that pitchers like CC. Sabathia, or Phil Neikro, who played into his forties, couldn’t bat (and didn’t have to, in the dh era) were lesser athletes than Tiger Woods or Jack Nicklaus.
But that is beside the point. Baseball is more a sport than golf. One reason is that baseball excellence requires a combination of objectively measurable and comparable athletic achievements that separate the great baseball players from all others. The abilities to run fast, throw far, fast and accurately, catch, hit for average and with power are rare. A second reason is that generally, those talents and skills are necessary to success.
However, baseball is less of a sport than basketball or football or soccer. I freely admit that, although I much prefer watching baseball than the others. But that is because baseball is a better "game" than the others.
It is more interesting to watch (for me) because of the many mystical elements which (for me) accompany any game I watch. There is history, childhood memories of playing catch with my dad or brother, little league, hero worship, summertime nostalgia, and many more elements to it.
But in defining the sport one must separate the pleasure of watching the game from the participation in the sport.
The distinction between the "game" and the "sport" must be kept in mind when rating the "sportiveness" of team sports.
Basketball is a good example for analysis. Here is a sport which satisfies most of the criteria laid down above: it requires superb conditioning and the elements of sport - jump higher, be stronger, be quicker, be smarter. It has one-to-one contests within the game. Participants sweat plentifully (and Blacks are great at it). On its most basic level, it is simple: get the ball in a basket which is placed high above one’s head. Give a basketball to young children, show them a basket and they quite naturally understand the goal, and feel the pleasure of the game.
But there is a basic flaw inherent in the sport of basketball which diminishes its universality. It rewards natural height. Although one can develop shooting, dribbling, defensive skills, there is little a boy or girl can do about height. Shorter boys and girls are eventually deterred from participation by this disability.
There is nothing they can do about this problem. This fact does not mean that basketball is not a sport. There are many sports which favor natural physical attributes. Some sports favor small stature (such as horse racing -- for the jockey, not the horse). However, this fact diminishes its pleasure as a viewing event because it is harder for ordinary people to identify with the participants; and to some degree, it lessens its status as a sport because it is so specialized that competitiveness is reduced. It was fun to watch the Dream Team destroy all opposition by 50 points, it is awesome, but it is not as good a sporting contest.
The point is that team events have to be considered on two criteria: as a game and as a sport.
In recent years the Olympics has lost much of its gloss, especially with the current generation. They seem to be unimpressed by the nationalism inherent in the event. They have lost the television habit. They prefer video games, whether playing them or watching them online.
Scandals involving corruption and drugs have tarnished the Olympics and corporate involvement is so pervasive in the production, promotion of the event as well as the sponsorship of the professional athletes that the event is far from the claimed idealism of its founding.
I may watch a few of my favorite "games" but not with the passionate interest of past years. Too bad, in a way.
For me it means that many people around the world will be doing something I haven’t done for a while: watching sports with non-stop mesmeric addiction.
Our idea of sports is molded by TV’s definition of sports. Back in the day, ABC's Wide World of Sports, created to fill winter weekends after football and basketball and before baseball seasons, broadened the definition of sports: ski jumping, downhill racing, bobsled, gymnastics, tennis, soccer, billiards, demolition derby. WWS eventually blurred the definition of Sport beyond recognition. What they presented was "athletic competition" in all its forms. But athleticism exists in many endeavors (like ballet). It does not become a Sport simply by engrafting an artificial scoring system to create competition.
We have survived to the cable age. Remote in hand, I have viewed the "extreme" sports: ski-diving, mountain skiing, snow boarding half-pipe, (sounds more like pot smoking). Now, in the Olympics, we will be subjected to them all: including synchronized swimming, shooting, and beach volleyball.
But wait a minute. Where do these events fit into the Olympic motto: "Citius, altius, fortius"; faster, higher, stronger? How do they relate to the ancient Olympic sports, which were exercises in heroism related to skills of warriors?
It is important to remember that what we are watching are the Olympic "Games", among which are some "sports" and some "games" which are something other than "sports."
Through the years, I have engaged in many debates with friends about the crucial philosophical issues: whether golf is a sport; which sport is the truest sport.
I have come up with some criteria to define sports and to judge which are the most sport-like.
To define the truest sport, I go back to the basic pre-historic origin of sport, that of a contest between children proving power over one another.
The first sport, as anyone who watches tiger cubs (or chimps) will admit, must have been wrestling. One cub tries to show his or her domination over another by pinning him to the ground, or breaking his neck. This mano a mano contest is the rawest form of sport.
I hold that the closer the sport is to this ideal, the more it is a sport. The further away you drift from this ideal, the less it is a real sport. Thus, wrestling, judo, ju-jitsu, are the purest sports. The fact that rules have been imposed to decrease the risks, to quantify the gains short of pinning the opponent, diminishes the purity only slightly.
Do not misunderstand: it is not the dangerousness of the activity which is the criteria, though it is an exciting element added to the "sportness." Risk of injury is present in many human activities that are not necessarily sports.
Boxing adds the next level of sophistication. True, the fight is ritualized, with gloves, helmets, and layers of subjective rules for point scoring which further lessen the purity of the sport aspect. In other so-called sports (gymnastics and figure skating being the prime examples) the subjective nature of the scoring is fatal to its consideration as sport.) But, because at its foundation, boxing is still a face to face power struggle of one person against another, it remains one of the purest sports.
The next category of pure sports also stems from natural activities of boys and girls (as well as other animals): running. In children and other animals this contest often is part of the fighting game: hit and run. The swiftest child has a status in challenge: "Hey, race you to that tree?"
Races, the sprints to the marathon, are also basic sports.
Swimming is in the same cubbyhole.
Running over obstacles - hurdles, steeplechases, also are in the same category.
So, too, races with machines that assist, but do not eliminate physical labor: bicycles, rowboats, skis, skates.
Races with machines that do most of the physical labor, like motor and sail boats, cars, bobsleds, fall in a completely different category and must be considered under different criteria which will be discussed below.
Other sports stemming from the same primitive urge to best the other kid and answer similar fundamental questions such as who is faster include: the high jump and pole vault (who can jump higher); long jump, triple jump (who can jump farther); weightlifting (who is stronger); discus, shotput, hammer throw, javelin (who can throw this object - rock, stick, disk, or spear the furthest).
The javelin and other events related to it raise another important point about sports. Many began as contests among soldiers in skills needed for the hunt for meat and later, for enemies in battle. The javelin -- a spear -- is one of the most primitive of weapons.
It is not difficult to imagine ancient hunters and soldiers, in those many hours of boredom between battles, challenging each other to such contests. One of them must have then picked up a cannonball and tossed it. It is also not hard to imagine officers encouraging these games as healthy diversions for the troops which had the added benefit of honing skills, rewarding aggressiveness, and identifying the most skilled and competitive among the troops.
When I first watched the biathalon, a winter Olympic sport which consists of rifle shooting and cross-country skiing, others with whom I watched, mocked the seeming incongruity of the violent with the idyllic pastimes; but I remembered the black and white footage of Finnish troops fighting Germans in World War II when both these skills became deadly serious business.
In this category, we must acknowledge fencing, archery and shooting, although shooting and archery, by interposing mechanisms which do most of the physical labor, are closer to auto racing in the skills they require, and are thus diminished as sports.
Before we go further, it is best to discuss some of the criteria I have devised to test whether a sport is really a sport. Some are self-evident, others are slightly biased according to my taste, others are stated with tongue at least partly tucked in cheek. None are perfect, because exceptions always exist in this complex study, but a few standards are absolutes.
Mere athleticism is not enough.
There is no question that ballet dancers are fine athletes. Anyone who watched Barishnikov’s sculptured body in tights leap gracefully and turn thrice in the air, landing perfectly in time to lift his partner as if she weighed 90 pounds (which she usually did) cannot deny his status as a premier athlete, probably superior in conditioning to many sportsmen. However, none would argue seriously that ballet is a sport.
Neither is ice dancing, synchronized swimming, or women’s floor exercises in gymnastics. What these athletic achievements lack to be called a sport is hard to define. But there are two elements they possess in common which disqualify them in my judgment.
First, they are measured by a purely subjective scoring system.
(Although boxing scoring is also subjective - unless the opponent is knocked out - it is so basic a sporting contest that it passes the test.)
Second, and fatally, they are accompanied by music. My fundamental rule of sport is that it cannot be a sport if it is accompanied by music.
I must note that the tendency to accessorize popular sports with music is disturbing: baseball, football and basketball games are more and more accompanied by orchestrated crowd-pleasing chants: Queen's "We will, we will rock you!"
There may come a day when entire basketball games have musical scores like movies, continuing throughout the game, and I will get back to you when that comes.
On the other side of the coin, a total lack of athleticism is also fatal to sportiveness.
Golfers, bowlers, dart throwers, auto racers, pool players, shooters, sailors, horse riders (equestrians, if you wish), come in this dubious category.
What they have in common is a tendency to have pot bellies, wear street clothes (or worse, bad looking shirts and pants). Thus if you can be completely out of shape, if you can smoke a cigarette between or during shots, or drink a beer while you are competing, it is a less sportive sport.
This is not to say that these activities do not require athletic skill. Eye-hand coordination, muscle memory, courage, strength, agility, nerves of steel, extreme skill are all required.
But the questions often asked: "Oh yeah, you try bowling a 300, or hitting a 300 yard drive, or sinking a three cushion shot in the corner pocket" are beside the point.
The fact that a superb athlete like Tiger Woods was the world’s best golfer seems to some to elevate golf to a sport, and I must admit that watching him perform it is hard to deny his athleticism.
It is also true that just because out-of-shape people participate should not disqualify the sport. I’ll get to baseball soon; and of course there are some boxers and many football players who look like they’ve had too many hamburgers during training.
Other criteria are more playful, and less certain, but illustrate the point.
If you don’t sweat during the contest, it is not a sport. If you do, it is more likely, though not certainly a sport. I note that swimmers probably don’t sweat, but they would if they weren’t being continuously cooled by water. Golfers sweat from southern heat and over a two foot putt, but not because of physical exertion. Ice dancers probably do, but it is still not much of a sport.
Someone trying to be clever said that Black men and women should be good at it. It is true that if there are few Blacks participating in true sports, look for a defect in the society which causes it (or a geographic reason - meaning there are few people of color in the area). I leave it to racists and / or geneticists to explain whether slavery or fast twitch muscles have anything to do with this. (Some jerk once got into hot water by explaining the lack of people of color in swimming events: "They aren't buoyant.")
Events that are simply exhibitions of showing off are not sports.
It is clear that the attraction of sports stems from the basic human urge to show off, to prove one’s superiority over one’s peers. Performing better tricks with one's body or device (such as a skateboard or motorbike) is fun, but attaching a score to the stunt doesn't make it a sport. Of course,many sports that are closer to the borderline of sport definition award style or form.
Here, I am referring to diving, gymnastics events, figure skating. These are akin to muscle building. They are exhibitions of great bodies doing extraordinary things. But the NBA Dunk contest is not a sport although basketball certainly is. The subjective nature of the scoring defines it as an exhibition: a 9.9 distinguished from a 9.8 by what the judge’s perceive as a minuscule flaw in form is insufficient to fool the true sports lover.
It is the raising of "form" over result that defines the event as an exhibition, more akin to ballet than to sport.
If a boxer flattens his rival, or a sprinter gets to the line faster, the one with better form gets no added points. Better form may lead to better results, but in true sport, it is the result which counts. Debates rage over which boxer had the prettiest form, and was thus the better artist, but the result is still what counts.
It is worthwhile to remark that observers who note that baseball players, notably pitchers, are in less than tip-top shape, have a point. It is certainly arguable that pitchers like CC. Sabathia, or Phil Neikro, who played into his forties, couldn’t bat (and didn’t have to, in the dh era) were lesser athletes than Tiger Woods or Jack Nicklaus.
But that is beside the point. Baseball is more a sport than golf. One reason is that baseball excellence requires a combination of objectively measurable and comparable athletic achievements that separate the great baseball players from all others. The abilities to run fast, throw far, fast and accurately, catch, hit for average and with power are rare. A second reason is that generally, those talents and skills are necessary to success.
However, baseball is less of a sport than basketball or football or soccer. I freely admit that, although I much prefer watching baseball than the others. But that is because baseball is a better "game" than the others.
It is more interesting to watch (for me) because of the many mystical elements which (for me) accompany any game I watch. There is history, childhood memories of playing catch with my dad or brother, little league, hero worship, summertime nostalgia, and many more elements to it.
But in defining the sport one must separate the pleasure of watching the game from the participation in the sport.
The distinction between the "game" and the "sport" must be kept in mind when rating the "sportiveness" of team sports.
Basketball is a good example for analysis. Here is a sport which satisfies most of the criteria laid down above: it requires superb conditioning and the elements of sport - jump higher, be stronger, be quicker, be smarter. It has one-to-one contests within the game. Participants sweat plentifully (and Blacks are great at it). On its most basic level, it is simple: get the ball in a basket which is placed high above one’s head. Give a basketball to young children, show them a basket and they quite naturally understand the goal, and feel the pleasure of the game.
But there is a basic flaw inherent in the sport of basketball which diminishes its universality. It rewards natural height. Although one can develop shooting, dribbling, defensive skills, there is little a boy or girl can do about height. Shorter boys and girls are eventually deterred from participation by this disability.
There is nothing they can do about this problem. This fact does not mean that basketball is not a sport. There are many sports which favor natural physical attributes. Some sports favor small stature (such as horse racing -- for the jockey, not the horse). However, this fact diminishes its pleasure as a viewing event because it is harder for ordinary people to identify with the participants; and to some degree, it lessens its status as a sport because it is so specialized that competitiveness is reduced. It was fun to watch the Dream Team destroy all opposition by 50 points, it is awesome, but it is not as good a sporting contest.
The point is that team events have to be considered on two criteria: as a game and as a sport.
In recent years the Olympics has lost much of its gloss, especially with the current generation. They seem to be unimpressed by the nationalism inherent in the event. They have lost the television habit. They prefer video games, whether playing them or watching them online.
Scandals involving corruption and drugs have tarnished the Olympics and corporate involvement is so pervasive in the production, promotion of the event as well as the sponsorship of the professional athletes that the event is far from the claimed idealism of its founding.
I may watch a few of my favorite "games" but not with the passionate interest of past years. Too bad, in a way.
Monday, June 09, 2008
Obama's feminist heritage
It seems to me that the true significance of Obama’s success has been overlooked. The op-ed pundits and instant historians have been all over the "First African American presidential candidate of a major party" definition.
Sure, that’s important. But what is even more striking is the symbolism of his bi-racial heritage.
In my mind, Obama stands with Tiger Woods and Halle Berry as vindication of the 1960's liberal faith that integration was going to lead to progress.
I remember whispers during the Civil Rights Movement rasing the specter of "miscegenation" as the horror that might flow from integration. Schoolbooks like "To Kill A Mockingbird" and Hollywood films like "Guess Who’s Coming To Dinner" were liberal responses to the nightmare of black male sexual power that was always used as a potent psychological card played to strike fear into white society.
Progressives persevered, idealistically hoping that integration in schools and housing would finally overcome fear of the unknown. This faith is at the heart of all liberal philosophy, which holds that opening doors for all is the cure for society’s ills. The Civil Rights laws of the 1960's ratifying equal protection in voting, work, housing, and education, asserted that hope.
Almost immediately, the hope faded and reaction set in. Assassinations, the Viet-Nam War, and impatience led to a resurgence of the Black Separatist Movement that had thrived during the Jim Crow era with alarming militant faces scowling on the newly pervasive television: Malcolm, Huey, the SLA, which gave excuse to reactionary vitriol from whites. The anti-busing rebellion of the 1970's exposed the soft underbelly of liberalism.
While the Civil Rights Movement floundered in the 1970's, the feminist movement found its militant voice, taking over the media with protests, organizing, fights over abortion and laws against discrimination in the workplace, education, and in social discourse and manners.Gender issues leapfrogged racial concerns, in part because the power women were able to muster far outstripped racial politics if only because of the sheer numbers of votes at stake.Hillary Clinton symbolizes for many the assertion of that power.
I can see the frustration of women who feel denied the symbolic culmination of the battle for gender equality. Feminists understandably resent being passed over for promotion to the job that might finally shatter the most impenetrable ceiling in American history.
It is certainly arguable that gender bias is even more entrenched in American culture than racial animosity. The 15th Amendment (1878) recognized the right to vote for Negro MALES, while no woman was granted that right until 1919 with passage of the 19th Amendment, a span of 41 years. (Ironically, the amendment was ratified in time for the 1920 presidential election. The next three winners were Warren Harding, Calvin Coolidge, and Herbert Hoover. So much for "progress".)
It is a tempting melodramatic irony that the son of a practitioner of feminist freedom eventually defeated the nation’s symbolic feminist.
Obama’s mother, Ann Dunham, was apparently a product of and exponent of her generation's history. Born in 1942 in Kansas, she rebelled against the conformity of small town midwest orthodoxy. As perceived by her son, she was an ardent feminist, admirer of Martin Luther King, intellectually curious about other cultures. Her life — as perceived by Obama in his autobiographies — is almost a classic journey of the liberal ideal.
Her journey reads as an odyssey of an epowered woman, making choices to pursue excellence in her field, asserting iconoclastic independence, challenging traditional assumptions about womens' roles. Reading between the lines, it seems that her choices caused problems for her son that he would have to overcome with enormous difficulty. Divorce, dislocation, blended families, rootlessness -- issues familiar to many of our children.
Obama’s self-identification as "African-American" is a choice he made consciously after having struggled with defining himself through most of his adolescence. The search to find one’s place is an old and very common human experience, well understood as being especially hard in the face of discrimination for perceived differences from the accepted norm.
Youth is a time when discrimination first stings with agonizing power. Differences as subtle as personality, appearance, manners, or family can be just as devastating to forming individuals as race, religion or sexual preference.
Obama’s sense of his differentness must have been particularly sharp. As he himself describes it, he went through the agony of facing up to whether to accept the definition his peers thrust upon him, or some other kind of identity. Seeing himself as "black," he toyed with the perceived norms of "black culture" in its negative as well as positives. He tried the rage, the self-destructive drugs, sports, denial of his articulate intellect.
Certainly, he must have recognized that his biracial heritage, his multicultural upbringing, the diversity of his education and exposure to diverse world views could become a strength when tempered by his intellect.
Ultimately, he came through the crisis with the enormous ego and confidence that makes him such a formidable presence.
The charisma Obama seems to have for young people must stem from a generational sense of identification with him similar to my generation's intuition about JFK. The talking heads have observed with amazement that the phenomenon that his "blackness" is not "an issue" for young people. I've heard politicians who announced their support for his candidacy by saying that their children urged it.
I suggest that it is not only his "blackness" that young people are unconcerned with, but also his differentness. And that my generation should be proud that for all the mistakes we made and failures to measure up to the ideals of our parents' "Greatest Generation", this may be the most important legacy.
Sure, that’s important. But what is even more striking is the symbolism of his bi-racial heritage.
In my mind, Obama stands with Tiger Woods and Halle Berry as vindication of the 1960's liberal faith that integration was going to lead to progress.
I remember whispers during the Civil Rights Movement rasing the specter of "miscegenation" as the horror that might flow from integration. Schoolbooks like "To Kill A Mockingbird" and Hollywood films like "Guess Who’s Coming To Dinner" were liberal responses to the nightmare of black male sexual power that was always used as a potent psychological card played to strike fear into white society.
Progressives persevered, idealistically hoping that integration in schools and housing would finally overcome fear of the unknown. This faith is at the heart of all liberal philosophy, which holds that opening doors for all is the cure for society’s ills. The Civil Rights laws of the 1960's ratifying equal protection in voting, work, housing, and education, asserted that hope.
Almost immediately, the hope faded and reaction set in. Assassinations, the Viet-Nam War, and impatience led to a resurgence of the Black Separatist Movement that had thrived during the Jim Crow era with alarming militant faces scowling on the newly pervasive television: Malcolm, Huey, the SLA, which gave excuse to reactionary vitriol from whites. The anti-busing rebellion of the 1970's exposed the soft underbelly of liberalism.
While the Civil Rights Movement floundered in the 1970's, the feminist movement found its militant voice, taking over the media with protests, organizing, fights over abortion and laws against discrimination in the workplace, education, and in social discourse and manners.Gender issues leapfrogged racial concerns, in part because the power women were able to muster far outstripped racial politics if only because of the sheer numbers of votes at stake.Hillary Clinton symbolizes for many the assertion of that power.
I can see the frustration of women who feel denied the symbolic culmination of the battle for gender equality. Feminists understandably resent being passed over for promotion to the job that might finally shatter the most impenetrable ceiling in American history.
It is certainly arguable that gender bias is even more entrenched in American culture than racial animosity. The 15th Amendment (1878) recognized the right to vote for Negro MALES, while no woman was granted that right until 1919 with passage of the 19th Amendment, a span of 41 years. (Ironically, the amendment was ratified in time for the 1920 presidential election. The next three winners were Warren Harding, Calvin Coolidge, and Herbert Hoover. So much for "progress".)
It is a tempting melodramatic irony that the son of a practitioner of feminist freedom eventually defeated the nation’s symbolic feminist.
Obama’s mother, Ann Dunham, was apparently a product of and exponent of her generation's history. Born in 1942 in Kansas, she rebelled against the conformity of small town midwest orthodoxy. As perceived by her son, she was an ardent feminist, admirer of Martin Luther King, intellectually curious about other cultures. Her life — as perceived by Obama in his autobiographies — is almost a classic journey of the liberal ideal.
Her journey reads as an odyssey of an epowered woman, making choices to pursue excellence in her field, asserting iconoclastic independence, challenging traditional assumptions about womens' roles. Reading between the lines, it seems that her choices caused problems for her son that he would have to overcome with enormous difficulty. Divorce, dislocation, blended families, rootlessness -- issues familiar to many of our children.
Obama’s self-identification as "African-American" is a choice he made consciously after having struggled with defining himself through most of his adolescence. The search to find one’s place is an old and very common human experience, well understood as being especially hard in the face of discrimination for perceived differences from the accepted norm.
Youth is a time when discrimination first stings with agonizing power. Differences as subtle as personality, appearance, manners, or family can be just as devastating to forming individuals as race, religion or sexual preference.
Obama’s sense of his differentness must have been particularly sharp. As he himself describes it, he went through the agony of facing up to whether to accept the definition his peers thrust upon him, or some other kind of identity. Seeing himself as "black," he toyed with the perceived norms of "black culture" in its negative as well as positives. He tried the rage, the self-destructive drugs, sports, denial of his articulate intellect.
Certainly, he must have recognized that his biracial heritage, his multicultural upbringing, the diversity of his education and exposure to diverse world views could become a strength when tempered by his intellect.
Ultimately, he came through the crisis with the enormous ego and confidence that makes him such a formidable presence.
The charisma Obama seems to have for young people must stem from a generational sense of identification with him similar to my generation's intuition about JFK. The talking heads have observed with amazement that the phenomenon that his "blackness" is not "an issue" for young people. I've heard politicians who announced their support for his candidacy by saying that their children urged it.
I suggest that it is not only his "blackness" that young people are unconcerned with, but also his differentness. And that my generation should be proud that for all the mistakes we made and failures to measure up to the ideals of our parents' "Greatest Generation", this may be the most important legacy.
Saturday, May 31, 2008
Questions at the Bar
I got a letter from the State Bar. This is only a notch below getting one from the IRS in anxiety production.
It turned out to be from the Office of Admissions. A questionnaire asking my opinion of the "moral character" of someone who has applied to the Bar.
As lawyers are an anal-retentive lot, they felt it necessary to define their terms.
"Moral character includes qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the laws ... and respect for the rights of others and for the judicial process."
Although I’ve known this applicant and his family all of his life, I had to think long and hard about these issues. Knowing that he had been an Eagle Scout helped ... not sure if he earned the "fiduciary responsibility" merit badge, though.
Anyway, I checked the box.
That the Bar cares about these qualities in lawyers may come as a shock to anyone familiar with lawyer jokes or movies. You might think the qualifications demanded more realistic qualities:
... dissembling, ruthlessness, deception, backstabbing, greed, ability to parse the law, trampling the rights of individuals as well as the process...
Maybe the questionnaire should be part of a continuing investigation, asked say every year about every lawyer already admitted to practice.
Then I would really sweat the State Bar letters ... more than the ones from the IRS.
Anyway, good luck, Red. (See my other post about this subject.)
It turned out to be from the Office of Admissions. A questionnaire asking my opinion of the "moral character" of someone who has applied to the Bar.
As lawyers are an anal-retentive lot, they felt it necessary to define their terms.
"Moral character includes qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the laws ... and respect for the rights of others and for the judicial process."
Although I’ve known this applicant and his family all of his life, I had to think long and hard about these issues. Knowing that he had been an Eagle Scout helped ... not sure if he earned the "fiduciary responsibility" merit badge, though.
Anyway, I checked the box.
That the Bar cares about these qualities in lawyers may come as a shock to anyone familiar with lawyer jokes or movies. You might think the qualifications demanded more realistic qualities:
... dissembling, ruthlessness, deception, backstabbing, greed, ability to parse the law, trampling the rights of individuals as well as the process...
Maybe the questionnaire should be part of a continuing investigation, asked say every year about every lawyer already admitted to practice.
Then I would really sweat the State Bar letters ... more than the ones from the IRS.
Anyway, good luck, Red. (See my other post about this subject.)
Saturday, May 17, 2008
Another "beautiful" mind
He tells the shrink that he’s been diagnosed as schizophrenic, schizoaffective disorder and bipolar. He’s been hospitalized several times, treated with Haldol & Prolixin. Now, he’s taking Abilify.
He also tells him that his marriage was destroyed by the FBI. They took his wife as part of a vast complex conspiracy involving Central Stargate and MK Ultra.
His codename is "The Victim" but he’s not allowed to utter that term. He’s studied remote viewing which allows him to see what others can’t. But others in his family have that power and they’ve been using it to ruin his life, including destroying his marriage. A human cyborg program, begun in Las Vegas, sent an agent to L.A. who is after him.
He’s in court because he threatened to kill a good friend because he thought he was having affairs with his ex-wife and his sister. They know he needs help but he scared them. He’s been smoking grass and it worsens his delusions.
The shrink tells his lawyer that using a mental defense is dangerous because incarceration of this kind of chronic mental patient can become indeterminate. In other words, if he is NGI, incurable, and dangerous, he could be warehoused.
His lawyer gets him through a plea after the DA agrees to take one count for probation and time served. A good deal, given the potential.
Of course, as soon as he’s out, he wants to withdraw his plea. He comes to court needing a bath. He’s got a folder with scribbled notes, arrows, boxes, attempts to make coherent thoughts connect. His affect is clearly mental, several ticks away from the usual client, whose reasoning and credibility is faulty. He is more pathetic; his buyer’s remorse is filled with more than the usual claims of coercion, misrepresentation by his appointed lawyer, his expectations.
It’s evident that he is stuck in a no-win Catch-22 (as was his lawyer). Asserting his version of the case would have been futile - he would have lost, and the result would have been to scare the court (and the D.A.) into fearing his future acting out on his paranoia. They would have envisioned headlines: "Mental Patient Freed By Court Kills ..."
But he can’t succeed on probation, either. The court has imposed a bewildering array of conditions: anger management classes, drug counseling classes, drug testing, reporting, fines, fees, restitution, keep-away orders from "victims" including family and friends.
In court, his affect - as the shrinks politely put it - is inappropriate. He can’t keep quiet, rambles, won’t directly answer questions, interrupts the judge, never accepts an outcome the way a civilized condemned defendant and contrite probationer is supposed to.
The judge properly denies his motion to withdraw his plea and orders him back on probation. He’s not satisfied, becomes agitated, makes faces and noises. The judge loses patience after her short fuse (its Friday afternoon) expires. She screams at him. Orders him to leave the court, then to be remanded. Back-up bailiffs appear, each bigger than the other, ready to pounce. The judge relents. He leaves the court.
He’ll be back.
He also tells him that his marriage was destroyed by the FBI. They took his wife as part of a vast complex conspiracy involving Central Stargate and MK Ultra.
His codename is "The Victim" but he’s not allowed to utter that term. He’s studied remote viewing which allows him to see what others can’t. But others in his family have that power and they’ve been using it to ruin his life, including destroying his marriage. A human cyborg program, begun in Las Vegas, sent an agent to L.A. who is after him.
He’s in court because he threatened to kill a good friend because he thought he was having affairs with his ex-wife and his sister. They know he needs help but he scared them. He’s been smoking grass and it worsens his delusions.
The shrink tells his lawyer that using a mental defense is dangerous because incarceration of this kind of chronic mental patient can become indeterminate. In other words, if he is NGI, incurable, and dangerous, he could be warehoused.
His lawyer gets him through a plea after the DA agrees to take one count for probation and time served. A good deal, given the potential.
Of course, as soon as he’s out, he wants to withdraw his plea. He comes to court needing a bath. He’s got a folder with scribbled notes, arrows, boxes, attempts to make coherent thoughts connect. His affect is clearly mental, several ticks away from the usual client, whose reasoning and credibility is faulty. He is more pathetic; his buyer’s remorse is filled with more than the usual claims of coercion, misrepresentation by his appointed lawyer, his expectations.
It’s evident that he is stuck in a no-win Catch-22 (as was his lawyer). Asserting his version of the case would have been futile - he would have lost, and the result would have been to scare the court (and the D.A.) into fearing his future acting out on his paranoia. They would have envisioned headlines: "Mental Patient Freed By Court Kills ..."
But he can’t succeed on probation, either. The court has imposed a bewildering array of conditions: anger management classes, drug counseling classes, drug testing, reporting, fines, fees, restitution, keep-away orders from "victims" including family and friends.
In court, his affect - as the shrinks politely put it - is inappropriate. He can’t keep quiet, rambles, won’t directly answer questions, interrupts the judge, never accepts an outcome the way a civilized condemned defendant and contrite probationer is supposed to.
The judge properly denies his motion to withdraw his plea and orders him back on probation. He’s not satisfied, becomes agitated, makes faces and noises. The judge loses patience after her short fuse (its Friday afternoon) expires. She screams at him. Orders him to leave the court, then to be remanded. Back-up bailiffs appear, each bigger than the other, ready to pounce. The judge relents. He leaves the court.
He’ll be back.
Sunday, May 11, 2008
Crimes Without Punishment
I don’t like to watch crime shows. Too much like my day job. My son has been trying to get me to watch "The Wire" or "Homicide" or any number of crime films. I demur. But on Thursday night I went out to see a movie about the most horrendous crimes in history.
The film was called "Swimming in Auschwitz." It was about six teenage girls who survived the horror to tell the story more than 60 years later. Each is now in her 80's, having spent useful, "normal" lives raising families, living in the Los Angeles area. I happen to know one of them.
Rena Drexler is the mother of a close friend, David Drexler, and grandmother of his kids, Jonathan and Justin. I’ve known them for many years. Rena celebrated her 82nd birthday on May 8, the day of the showing, and the anniversary of the date of her liberation from Auschwitz after three years of terror.
Many of those who survived what is inaccurately called "The Holocaust" (the first use of the word was to describe and unintended tragedy like a forest fire), have been reluctant to talk about their experiences, especially to their children. Many children of survivors have carried unresolved burdens of transferred guilt (and perhaps shame) as a result.
My in-laws, Morris and Esther, avoided extermination by escaping to Russia, returning to Poland after the war to find that most of their relatives were dead. Only later in their lives, under my intense cross-examination spurred by my curiosity, did they relate details that their daughters had never heard. The revelations encouraged them to join a group of children of survivors who shared their common demons.
Rena Drexler has not been reluctant to tell her story. On the contrary, she’s made it her life’s work to bear witness to the events she survived. She speaks at junior and senior high schools. What must these American teens, to whom tragedy is using up the minutes on their cell phones, think of Rena’s teen years spent in forced labor, yards and maybe days from starvation and murder? Rena promises to keep telling the story as long as she has the voice to do it.
During 1974 and 1975, Bijou and I traveled around the world. We spent a month in Israel, where we spent time with relatives and friends of her parents. I kept a journal of our time there and these are some of the entries.
17 September 1974 Tuesday Tel Aviv:
... Binem and Anja Cukier took us in with them. Binem and Bea’s father Morris were boyhood friends in Radom, Poland. In 1935, Binem, then 21, emigrated to Palestine where he had relatives. Morris stayed until the Nazis chased him to Russia. After the war, they corresponded and did so for 30 years until Morris visited Israel three years ago. Now the elderly Cukiers, though eking by in semi-retirement on inflation-slashed pensions still offer what little they have to us. Yaakov has not called today. We are being fed to the point of being stuffed on heavy Jewish food. It is impossible to say no to a woman who cooks all day for you.
Anja is a real Jewish mother, a little dynamo of energy, cooking, cleaning, always urging food on us and always with a smile, a laugh and a friendly warm heart.
On her forearm are the numbers of Auschwitz. She was a young girl when the Nazis marched into Radom. She was taken with others to be a servant for the Nazi commander. For years, she washed, cleaned, and kept her eyes open. She heard and saw unspeakable things. Later, she was taken to Auschwitz. For three months, she waited her turn for the gas chamber. But she was strong and was kept barely alive to work in the arms factory. Just when it seemed it was over, the Swedish Red Cross was allowed to take a few thousand of the sickest to Sweden by some Nazi officer who knew that judgment would come and hoped to make a gesture.
When the war ended, Binem found she was alive and said she was his wife to get her to Israel. Now she is a frail old lady with hard black eyes that peer through her thick glasses and a stomach that rejects food she cannot be sure is safe.
Two years ago she was taken to Germany to testify at the trial of the Radom Nazi commander. He had ordered 30,000 deaths. She is proud of her strength and memory.
He was sentenced to seven years in prison.
30 September Monday Jerusalem:
... We went to Yad Vashem, a memorial built as a reminder of the genocide, what the Israelis call "The Holocaust." We decided it is not an apt designation. It connotes to me a natural, rather than man made, disaster. But perhaps it is meant to be ironic.
Through my own family’s experiences, I’ve lived with the telling and retelling of the stories of that period, complete with films of the camp victims dead and barely alive, told by survivors I have known (tattoos burned into arms and hearts as proof) and have thought much about it from many angles until it became, at times, an annoying cliche, just another means for the imposition of "Jewish guilt."
Yet, walking slowly through the "museum" viewing the display of documents proving the incomprehensible, the photos, the testimony, the "tombstone" with its numbing numbers: "children: 1,500,000" ... and the familiar names: "Kirshbaum, Greenberg ..." The effect of sadness created is overwhelming and real.
It is odd but it moved me to tears as the visions of misery in Calcutta did not. Certainly that "live" experience was more "real" and perhaps more relevant because it goes on today. But somehow I felt detached from it, while this is more a part of my being. The parallel of inhumanity caused by men is there, but maybe it is unrealistic to throw them together.
As we walked out, Bea said: "My God, they really planned to kill all the Jews!" It was a shocking emotional reaction to a historical fact known but not until now felt and understood. She also observed angrily that the memorial should be in Burbank, not Israel, if it is to have impact. As usual, she hits it on the head.
When I returned to Tel Aviv in 1999, Binem was a very old man. Anja had passed the year before and he was saddened to learn that Bea had also died. We made a video of his words to bring home to his boyhood friend, Morris. As I left his little apartment, I felt low, ideas of loss and survival all mixed up in my heart.
Those thoughts resurfaced as I watched the movie, tried to imagine the elderly ladies as they might have been as teenage girls, the hours before they were tumbled into an abyss.
My thoughts get all mixed up again with ideas of loss and survival and the limits of life and memory.
The film was called "Swimming in Auschwitz." It was about six teenage girls who survived the horror to tell the story more than 60 years later. Each is now in her 80's, having spent useful, "normal" lives raising families, living in the Los Angeles area. I happen to know one of them.
Rena Drexler is the mother of a close friend, David Drexler, and grandmother of his kids, Jonathan and Justin. I’ve known them for many years. Rena celebrated her 82nd birthday on May 8, the day of the showing, and the anniversary of the date of her liberation from Auschwitz after three years of terror.
Many of those who survived what is inaccurately called "The Holocaust" (the first use of the word was to describe and unintended tragedy like a forest fire), have been reluctant to talk about their experiences, especially to their children. Many children of survivors have carried unresolved burdens of transferred guilt (and perhaps shame) as a result.
My in-laws, Morris and Esther, avoided extermination by escaping to Russia, returning to Poland after the war to find that most of their relatives were dead. Only later in their lives, under my intense cross-examination spurred by my curiosity, did they relate details that their daughters had never heard. The revelations encouraged them to join a group of children of survivors who shared their common demons.
Rena Drexler has not been reluctant to tell her story. On the contrary, she’s made it her life’s work to bear witness to the events she survived. She speaks at junior and senior high schools. What must these American teens, to whom tragedy is using up the minutes on their cell phones, think of Rena’s teen years spent in forced labor, yards and maybe days from starvation and murder? Rena promises to keep telling the story as long as she has the voice to do it.
During 1974 and 1975, Bijou and I traveled around the world. We spent a month in Israel, where we spent time with relatives and friends of her parents. I kept a journal of our time there and these are some of the entries.
17 September 1974 Tuesday Tel Aviv:
... Binem and Anja Cukier took us in with them. Binem and Bea’s father Morris were boyhood friends in Radom, Poland. In 1935, Binem, then 21, emigrated to Palestine where he had relatives. Morris stayed until the Nazis chased him to Russia. After the war, they corresponded and did so for 30 years until Morris visited Israel three years ago. Now the elderly Cukiers, though eking by in semi-retirement on inflation-slashed pensions still offer what little they have to us. Yaakov has not called today. We are being fed to the point of being stuffed on heavy Jewish food. It is impossible to say no to a woman who cooks all day for you.
Anja is a real Jewish mother, a little dynamo of energy, cooking, cleaning, always urging food on us and always with a smile, a laugh and a friendly warm heart.
On her forearm are the numbers of Auschwitz. She was a young girl when the Nazis marched into Radom. She was taken with others to be a servant for the Nazi commander. For years, she washed, cleaned, and kept her eyes open. She heard and saw unspeakable things. Later, she was taken to Auschwitz. For three months, she waited her turn for the gas chamber. But she was strong and was kept barely alive to work in the arms factory. Just when it seemed it was over, the Swedish Red Cross was allowed to take a few thousand of the sickest to Sweden by some Nazi officer who knew that judgment would come and hoped to make a gesture.
When the war ended, Binem found she was alive and said she was his wife to get her to Israel. Now she is a frail old lady with hard black eyes that peer through her thick glasses and a stomach that rejects food she cannot be sure is safe.
Two years ago she was taken to Germany to testify at the trial of the Radom Nazi commander. He had ordered 30,000 deaths. She is proud of her strength and memory.
He was sentenced to seven years in prison.
30 September Monday Jerusalem:
... We went to Yad Vashem, a memorial built as a reminder of the genocide, what the Israelis call "The Holocaust." We decided it is not an apt designation. It connotes to me a natural, rather than man made, disaster. But perhaps it is meant to be ironic.
Through my own family’s experiences, I’ve lived with the telling and retelling of the stories of that period, complete with films of the camp victims dead and barely alive, told by survivors I have known (tattoos burned into arms and hearts as proof) and have thought much about it from many angles until it became, at times, an annoying cliche, just another means for the imposition of "Jewish guilt."
Yet, walking slowly through the "museum" viewing the display of documents proving the incomprehensible, the photos, the testimony, the "tombstone" with its numbing numbers: "children: 1,500,000" ... and the familiar names: "Kirshbaum, Greenberg ..." The effect of sadness created is overwhelming and real.
It is odd but it moved me to tears as the visions of misery in Calcutta did not. Certainly that "live" experience was more "real" and perhaps more relevant because it goes on today. But somehow I felt detached from it, while this is more a part of my being. The parallel of inhumanity caused by men is there, but maybe it is unrealistic to throw them together.
As we walked out, Bea said: "My God, they really planned to kill all the Jews!" It was a shocking emotional reaction to a historical fact known but not until now felt and understood. She also observed angrily that the memorial should be in Burbank, not Israel, if it is to have impact. As usual, she hits it on the head.
When I returned to Tel Aviv in 1999, Binem was a very old man. Anja had passed the year before and he was saddened to learn that Bea had also died. We made a video of his words to bring home to his boyhood friend, Morris. As I left his little apartment, I felt low, ideas of loss and survival all mixed up in my heart.
Those thoughts resurfaced as I watched the movie, tried to imagine the elderly ladies as they might have been as teenage girls, the hours before they were tumbled into an abyss.
My thoughts get all mixed up again with ideas of loss and survival and the limits of life and memory.
Tuesday, May 06, 2008
Three for the road ...
I know it must be a bore to read these posts about news articles revealing the flaws in our justice system. I'm sorry about that. I am incapable of letting these things go by without notice or comment. Here's three more from the L.A. Times that you might have missed:
1. Sunday, May 4, 2008, page 1: "When a match is far from a lock." Turns out that using DNA evidence in "cold cases" to find the culprit may result in convicting the wrong person. The article contains a primer on the complex subject of statistical analysis of DNA samples drawn from a database of past criminals.
2. Tuesday, May 6, California section, page B3: "Court voids death case." Mr. Miranda spent 26 years on death row until the California Supreme Court unanimously reversed his conviction because the prosecution failed to disclose to the defense that another person confessed to the crime before the case went to trial. The main witness in the case for the prosecution had confessed in a letter that was possessed by the DA that he, not the defendant, was the killer. The letter remained in the DA file and wasn't discovered by the defense until many years later, when habeas counsel finally convinced a federal court to open the DA's file.
3. Tuesday, May 6, California section, page 1: "Thieves make off with dozens of manhole covers." This needs no explanation...
1. Sunday, May 4, 2008, page 1: "When a match is far from a lock." Turns out that using DNA evidence in "cold cases" to find the culprit may result in convicting the wrong person. The article contains a primer on the complex subject of statistical analysis of DNA samples drawn from a database of past criminals.
2. Tuesday, May 6, California section, page B3: "Court voids death case." Mr. Miranda spent 26 years on death row until the California Supreme Court unanimously reversed his conviction because the prosecution failed to disclose to the defense that another person confessed to the crime before the case went to trial. The main witness in the case for the prosecution had confessed in a letter that was possessed by the DA that he, not the defendant, was the killer. The letter remained in the DA file and wasn't discovered by the defense until many years later, when habeas counsel finally convinced a federal court to open the DA's file.
3. Tuesday, May 6, California section, page 1: "Thieves make off with dozens of manhole covers." This needs no explanation...
Tuesday, April 29, 2008
The (Attorney - Client) Confidence Game
I haven't posted for a while. Been suffering from shingles. No, I didn't fall off the roof. In between scratching & moaning, I've been reading. Last Sunday, a New York Times article caught me deep into the National Section, at page 22, a typical placement for this kind of trivial headline: "Confession Revealed, Freeing Prisoner of 26 Years."
The situation is very weird. Seems that another guy confessed to the crime to his lawyers, but they didn't reveal the fact in public until their client died. Now they've come forward and disclosed the confession. So the wrong guy was convicted and kept serving time years after someone else confessed to the crime.
So, is this justice? The lawyers for the confessing client had a dilemma. What he told them was in confidence, covered by the attorney-client privilege. A lawyer cannot - must not - under pain of disbarment - disclose such confidential information to anyone without the client's permission. Understanding their obligation as well as the problem this information would lead to, the lawyers wisely prepared affidavits containing the detailed information their client confessed to UNDER SEAL - not to be opened until their client died.
There are cases which say that the confidential communication privilege doesn't survive the death of the client. But there are other cases that say otherwise.
Vince Foster, an official in the Clinton administration, was under investigation as part of the so-called Travelgate scandal. He had hired and consulted with an attorney and was under pressure by Ken Starr, the (so-called) Independent Counsel. Foster committed suicide. Starr then sought to interview Foster's lawyer to find out if Foster or others (read Bill & Hillary) had committed crimes or if Foster's death was homicide.
The Supreme Court eventually upheld the attorney-client privilege. The idea of the privilege, which has existed in the common law for centuries, is to encourage a free flow of truthful information between lawyer and client. If the client thinks that what he tells his lawyer will be disclosed, he will ( shudder) lie to or withhold facts from his lawyer. The Supremes observed that many clients would not want their confidences revealed even after death and that was an interest worth protecting, even if it causes "injustice" or incovenience to the cause of justice.
The privilege is not without exceptions. It is now established that it doesn't cover future violent crimes. If the client tells his lawyer he intends to commit violent crimes, the lawyer has a duty to disclose that. I've always resented this. It kind of discriminates against us criminal lawyers. I mean, clients planning non-ciminal transactions can consult their lawyers. I'm waiting for the client who calls me in whispers: "Hey, Mort, I'm in a bank and I want to rob it. What should I do?"
In reality, contrary to public opinion, most clients do not confess to their lawyers. They confess to the cops, to their homies, to everyone in the jail - but they deny guilt to their lawyers. This is mostly because they fear their lawyers won't fight for them unless they believe in their innocence, not because they fear the lawyer will tell on them.
I have friends who never ask their clients if they're guilty because they don't want to be hampered in their defense. I can't deal with that fantasy. I always grill my clients until they confess to me or at least until I'm pretty well convinced of their guilt. My reason is partly selfish: it's bothersome to defend innocent people - the pressure of losing the case when the client is innocent is too intense. Its comforting to defend guilty people.
The situation is very weird. Seems that another guy confessed to the crime to his lawyers, but they didn't reveal the fact in public until their client died. Now they've come forward and disclosed the confession. So the wrong guy was convicted and kept serving time years after someone else confessed to the crime.
So, is this justice? The lawyers for the confessing client had a dilemma. What he told them was in confidence, covered by the attorney-client privilege. A lawyer cannot - must not - under pain of disbarment - disclose such confidential information to anyone without the client's permission. Understanding their obligation as well as the problem this information would lead to, the lawyers wisely prepared affidavits containing the detailed information their client confessed to UNDER SEAL - not to be opened until their client died.
There are cases which say that the confidential communication privilege doesn't survive the death of the client. But there are other cases that say otherwise.
Vince Foster, an official in the Clinton administration, was under investigation as part of the so-called Travelgate scandal. He had hired and consulted with an attorney and was under pressure by Ken Starr, the (so-called) Independent Counsel. Foster committed suicide. Starr then sought to interview Foster's lawyer to find out if Foster or others (read Bill & Hillary) had committed crimes or if Foster's death was homicide.
The Supreme Court eventually upheld the attorney-client privilege. The idea of the privilege, which has existed in the common law for centuries, is to encourage a free flow of truthful information between lawyer and client. If the client thinks that what he tells his lawyer will be disclosed, he will ( shudder) lie to or withhold facts from his lawyer. The Supremes observed that many clients would not want their confidences revealed even after death and that was an interest worth protecting, even if it causes "injustice" or incovenience to the cause of justice.
The privilege is not without exceptions. It is now established that it doesn't cover future violent crimes. If the client tells his lawyer he intends to commit violent crimes, the lawyer has a duty to disclose that. I've always resented this. It kind of discriminates against us criminal lawyers. I mean, clients planning non-ciminal transactions can consult their lawyers. I'm waiting for the client who calls me in whispers: "Hey, Mort, I'm in a bank and I want to rob it. What should I do?"
In reality, contrary to public opinion, most clients do not confess to their lawyers. They confess to the cops, to their homies, to everyone in the jail - but they deny guilt to their lawyers. This is mostly because they fear their lawyers won't fight for them unless they believe in their innocence, not because they fear the lawyer will tell on them.
I have friends who never ask their clients if they're guilty because they don't want to be hampered in their defense. I can't deal with that fantasy. I always grill my clients until they confess to me or at least until I'm pretty well convinced of their guilt. My reason is partly selfish: it's bothersome to defend innocent people - the pressure of losing the case when the client is innocent is too intense. Its comforting to defend guilty people.
Thursday, April 03, 2008
Death Row Inmate Freed ... ho hum ...
This is not a particularly busy news day. On page 1, Bernanke testified before Congress about the mortgage crisis and the Iraqi army's readiness to fight is questioned. Below the fold, home schooling is featured.
Not many people will read all the way to page A16 to read the story beneath the headline "Death row inmate is set free." Glen Edward Chapman spent 14 years on death row in North Carolina before being released after it was discovered that police detectives had failed to disclose evidence that might have proved someone else committed the murders he was condemned for. His own lawyer was also ruled "ineffective" for failing to investigate enough.
This is such a common tale that it is barely news at all. It is not even the lead article on Page A16. That honor belongs to the jarring headline: "FEMA liquidates its free ice policy," which occupies columns one and two.
By the way, the "Death row" article notes that the conviction was actually reversed 4 years ago. It took the local prosecutor 4 years to decide to dismiss the case.
Speedy justice? Of course, all of this would have been moot if Mr. Chapman had been executed in a "speedy" manner, thus providing closure for the system. What a pity.
Not many people will read all the way to page A16 to read the story beneath the headline "Death row inmate is set free." Glen Edward Chapman spent 14 years on death row in North Carolina before being released after it was discovered that police detectives had failed to disclose evidence that might have proved someone else committed the murders he was condemned for. His own lawyer was also ruled "ineffective" for failing to investigate enough.
This is such a common tale that it is barely news at all. It is not even the lead article on Page A16. That honor belongs to the jarring headline: "FEMA liquidates its free ice policy," which occupies columns one and two.
By the way, the "Death row" article notes that the conviction was actually reversed 4 years ago. It took the local prosecutor 4 years to decide to dismiss the case.
Speedy justice? Of course, all of this would have been moot if Mr. Chapman had been executed in a "speedy" manner, thus providing closure for the system. What a pity.
Saturday, March 29, 2008
Dead Man Living
Harold Hall works in the office of the ICDA program of the County Bar. He fields calls from courts, assigns out the cases, and tracks down lawyers. We share a wry sense of the absurd. Like Harold assigned two cases to me - defendants named "Cum" and "Ngo."
On Thursday morning I opened my Times and got to the Op-Ed page when my coffee mug was almost empty. I found the following article written by him, which I reprint here in its entirety.
A sentence too close to death
By Harold Hall March 27, 2008
I almost died for someone else's crime. Had the jury listened to the prosecutor, I would have been sent to death row, and even might have been executed by now. Instead, I spent nearly 20 years in prison before new evidence proved my innocence and I was able to walk away a free man.
I'm far from the only one who lost decades of my life wrongfully imprisoned. Dozens like me have been exonerated by DNA or other new evidence. Just last week, 56-year-old Willie Earl Green was released in Los Angeles after the sole eyewitness in his case recanted. He'd done 24 years of a 33-year-to-life sentence at San Quentin.
I was 18 years old in 1985 when the police in South L.A. arrested me for a double homicide and rape. I was interrogated for 17 excruciating hours, handcuffed to a chair and denied food and water. The police claimed that they had evidence proving my guilt. I was young and scared and desperate to stop the abuse -- so I told the police what they wanted to hear. I was wrongfully convicted based on that coerced confession and the false testimony of a jailhouse informant.
The jury sentenced me to life in prison without parole. Some might say I was lucky; I had escaped the executioner's needle.
But after spending nearly 20 years in a living hell, I can't really see it that way. No matter which prison I was in -- Lancaster, Folsom, Corcoran -- I was under constant surveillance, stripped of any privacy or autonomy. I was at the mercy of the prison guards, who could make my life as miserable as they wished. I lived in constant fear of prison lockdowns, which could last for months; we would not be allowed out of our cells and could take only "bird baths" in the cell sink.
I refused to let my family visit me. Contact with the outside world had become unbearable. I didn't want to hear stories of family outings or other outside news. That life was over unless I could prove my innocence. I had not been sentenced to execution, but I had been sentenced to die in prison.
Because I was sentenced to life without parole, exoneration was my only chance for release. I repeatedly asked for DNA testing of the evidence in my case, but for years my request was denied by the courts. In 2003, a court looked again at the jailhouse informant and granted me a new trial. As a result, the DNA evidence was finally tested, proving my innocence. In 2004, I was finally free.
I returned to Los Angeles a very different man. Living in prison without hope of parole is a horrible punishment that breaks a person down. I maintained my sanity, but I met inmates who would gladly have accepted execution rather than continue living in those conditions.
As horrible as this sentence is, it does give the state an opportunity for redemption: When an inmate like me proves his innocence, at least the state can set him free. No one can give me back those 19 years of my life, but I am thankful I am here today.
Ruben Cantu was not so lucky. Cantu was just 26 when Texas executed him in 1993. Now, even the prosecutor who sent Cantu to his death thinks that he was probably innocent, the victim of mistaken eyewitness identification and a court system that sacrifices accuracy in the name of efficiency. We know that 127 innocent men and women have been freed from death rows in the U.S. since 1973. What we will never know is how many innocent people have been executed.
On Friday, the California Commission on the Fair Administration of Justice will hold its third and final hearing about problems with the state's death penalty, including the length of appeals, access to lawyers and wrongful convictions. The commission will then begin three months of deliberations and draft a report to the Legislature. Among the questions the commission must grapple with is this: Can California's broken death penalty be fixed, and if so, at what price? But given all the problems -- and the stakes -- the commission should tell the Legislature, and the people of California, that it is time to reconsider whether we need to seek executions at all.
We have an alternative. Sentencing people to die in prison of old age and illness punishes without pretending that we have a foolproof legal system. I'm a living example that we don't. Sadly, Ruben Cantu cannot say the same.
Harold Hall works for the Indigent Criminal Defense Appointments Program of the Los Angeles County Bar Assn.
On Thursday morning I opened my Times and got to the Op-Ed page when my coffee mug was almost empty. I found the following article written by him, which I reprint here in its entirety.
A sentence too close to death
By Harold Hall March 27, 2008
I almost died for someone else's crime. Had the jury listened to the prosecutor, I would have been sent to death row, and even might have been executed by now. Instead, I spent nearly 20 years in prison before new evidence proved my innocence and I was able to walk away a free man.
I'm far from the only one who lost decades of my life wrongfully imprisoned. Dozens like me have been exonerated by DNA or other new evidence. Just last week, 56-year-old Willie Earl Green was released in Los Angeles after the sole eyewitness in his case recanted. He'd done 24 years of a 33-year-to-life sentence at San Quentin.
I was 18 years old in 1985 when the police in South L.A. arrested me for a double homicide and rape. I was interrogated for 17 excruciating hours, handcuffed to a chair and denied food and water. The police claimed that they had evidence proving my guilt. I was young and scared and desperate to stop the abuse -- so I told the police what they wanted to hear. I was wrongfully convicted based on that coerced confession and the false testimony of a jailhouse informant.
The jury sentenced me to life in prison without parole. Some might say I was lucky; I had escaped the executioner's needle.
But after spending nearly 20 years in a living hell, I can't really see it that way. No matter which prison I was in -- Lancaster, Folsom, Corcoran -- I was under constant surveillance, stripped of any privacy or autonomy. I was at the mercy of the prison guards, who could make my life as miserable as they wished. I lived in constant fear of prison lockdowns, which could last for months; we would not be allowed out of our cells and could take only "bird baths" in the cell sink.
I refused to let my family visit me. Contact with the outside world had become unbearable. I didn't want to hear stories of family outings or other outside news. That life was over unless I could prove my innocence. I had not been sentenced to execution, but I had been sentenced to die in prison.
Because I was sentenced to life without parole, exoneration was my only chance for release. I repeatedly asked for DNA testing of the evidence in my case, but for years my request was denied by the courts. In 2003, a court looked again at the jailhouse informant and granted me a new trial. As a result, the DNA evidence was finally tested, proving my innocence. In 2004, I was finally free.
I returned to Los Angeles a very different man. Living in prison without hope of parole is a horrible punishment that breaks a person down. I maintained my sanity, but I met inmates who would gladly have accepted execution rather than continue living in those conditions.
As horrible as this sentence is, it does give the state an opportunity for redemption: When an inmate like me proves his innocence, at least the state can set him free. No one can give me back those 19 years of my life, but I am thankful I am here today.
Ruben Cantu was not so lucky. Cantu was just 26 when Texas executed him in 1993. Now, even the prosecutor who sent Cantu to his death thinks that he was probably innocent, the victim of mistaken eyewitness identification and a court system that sacrifices accuracy in the name of efficiency. We know that 127 innocent men and women have been freed from death rows in the U.S. since 1973. What we will never know is how many innocent people have been executed.
On Friday, the California Commission on the Fair Administration of Justice will hold its third and final hearing about problems with the state's death penalty, including the length of appeals, access to lawyers and wrongful convictions. The commission will then begin three months of deliberations and draft a report to the Legislature. Among the questions the commission must grapple with is this: Can California's broken death penalty be fixed, and if so, at what price? But given all the problems -- and the stakes -- the commission should tell the Legislature, and the people of California, that it is time to reconsider whether we need to seek executions at all.
We have an alternative. Sentencing people to die in prison of old age and illness punishes without pretending that we have a foolproof legal system. I'm a living example that we don't. Sadly, Ruben Cantu cannot say the same.
Harold Hall works for the Indigent Criminal Defense Appointments Program of the Los Angeles County Bar Assn.
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