A Challenge To Techies

Greg is optimistic about the possibilities of technology. He believes fervently that the internet and other developments offer chances for healing the world.

He argues persuasively, using a language I can barely discern. But his passion is unmistakable and it is mostly his passion that convinces.

So, okay, his generation will make strides for a better environment, better government, universal education, the arts, culture, medicine, understanding.

Great. But there are some problems left over that my generation never solved, well, really, ignored completely. I wonder what the techies of Greg's generation will do about such things.

For instance, what about the toilet? Yes, that's what I said. This system for waste disposal which has us flush our bodily waste into a bowl of water and then flush it into a community sewer system has been around for almost a century.

Can't we do better than that. Those who have addressed the issue have focused on saving some water,from putting a brick in the tank to vast treatment plants to recycle waste water.

But the concept hasn't had a re-think in many years. Isn't it time to apply some of the imagination that now goes into solving the nettlesome problem of how to download free music into this most crucial social concern.

I HAVE A DREAM, to coin a phrase. A world in which there are no toilets, no toilet paper, no need to pull down one's pants (or pantyhose) around one's knees and line a cold, dirty seat with sticky paper.

A world in which each human fuels his body so efficiently that no waste need be disposed of in this inelegant way. Through chemical intervention or surgical implant or genetic redesign we are freed from this daily slavery.

The gains to health, sanitation, environment would be incalculable, a true boon to mankind, an advancement of the species. No more constipation, diarrhea, 1 ply paper, tidy bowl, arguments between the sexes about "seat up" or "seat down".

Come on, techies, do something really useful... Please.

A Judge Decides

Some days reveal humanity in the most unlikely places. Yesterday I was sent to a courtroom for a murder prelim and was annoyed (as usual) by the waiting involved. I had other things to do and my schedule, tight as it was, constricted to unbearable levels with any unforeseen delays.

The judge, it seems, had a personal appointment so was late to court that day — one of the moving parts was stuck and the whole apparatus ground to a halt. My temper was calmed by the whispered explanation given me by one of the court staff. “The judge’s wife has cancer and he’s had to take a lot of time off the last year.”

When he arrived, he apologized for causing everyone to wait. At the sidebar, I told him I knew what he was going through because I’d been there myself. He nodded, and we went on with our work until 4:30. Today we resumed at 8:30 promptly and completed the case by 10. The judge was a reasonable man, knew the law and his function, and ran his court smoothly.

It was a murder case. While my client was driving to McDonald’s his passenger fired 6 shots into the rear of an SUV that contained some rival gang members. He missed the baby seat by inches and killed the infant’s uncle. The judge ordered my client to stand trial for his part in the death, denying my arguments for dismissal. We’d both done our jobs according to our oaths.

After the hearing was over, the judge asked me to come into his chambers and we talked like people. Turns out he is about three fourths of the way to where I wound up. Our nightmares started out almost the same way and his was still in progress. I wished him better luck than I had and re-experienced my end scenes for him, with as much advice as I could manage: “Tell her every day that you love her.” After 15 years, my tears still welled up and the man behind the big desk excused himself and went into his wash room and stayed there for 10 minutes while I called my next court and told them I’d be late.

When he returned, he apologized and we talked some more. We talked about how helpless we felt when confronted with things we could not argue or reason our way to a decision. When I left, I think he felt a little better, knowing that someone understood. I hope so. He’s a nice guy.

... Waiting ...

You know those studies that reveal how much of our lives we spend at a particular task? If you sleep an average of 8 hours a day and live to age 75, you will have spent 25 years asleep. Add in the time spent on the freeway, bathing, shaving, urinating, and you actually have precious little time left to solve the problems of the world — unless you can multi-task.

I’ve never been very good at multi-tasking, not when it comes to my trial work. When I am in trial, I need to concentrate on the dozens — or in capital cases, hundreds, — of decisions that seem to be so crucial to the task. I can’t focus very well on other, less critical things, like my other cases, or personal chores such as defrosting dinner in the morning or calling for dental appointments.

Yet, I have spent a huge chunk of my life in courthouses simply waiting, rather than practicing law. Here’s a typical example. Judge orders me to be in court at 10 A.M. to begin the jury selection. I arrive promptly, wait until 11 A.M. while the judge clears his calendar of other cases. After a brief discussion about the trial, the judge recesses until 1:30 P.M., when 70 jurors will arrive.

At 1:30, I arrive promptly, wait until the panel gathers, is counted and we finally begin at 2 P.M. At 3, the judge calls a 15 minute recess, but doesn’t resume until 3:30 because of one more calendar matter to clear. At 4 P.M., we break for the day. Checking the next day’s calendar, the judge orders us back for 10 A.M.

I’m there at 10 and wait until 11 to begin. And so it goes.

Waiting is endemic to the system because there are so many moving parts that must come together before it can begin to grind. Defendants are shuttled from jails (either in central L.A. or Valencia) to courthouse and to holding cells. Each morning and afternoon, long security lines delay witnesses, lawyers, jurors from entering the courthouse. Lawyers on both sides have other courts to go to. You need back up bailiffs, a court reporter, a language interpreter, a clerk, and a judge who may have meetings or phone calls to attend.

Over the years, I’ve seen many lawyers efficiently deal with the waiting. Some read other files, some read case reports. As a public defender, I was amused by the private lawyers at the pay phones all day, with their pockets full of coins and scribbled note pads. Now, cell phones, PDA’s, and laptops occupy them. They wait outside of courtrooms mumbling like hallucinatory escapees, hearing imaginary bluetooth voices.

Some still read the daily newspaper, some do the crossword puzzle. A few doze off while sitting in the court waiting for their case to be called. Some keep sleeping during the trial.

I can’t do any of that. I just wait. And think, ruminate, worry. I do mental “what ifs” about my trial, pre-experiencing every eventuality, imagining all the bad things that may occur during the trial. It is fatiguing and gets worse as I get older. My long experience has fueled my imagination, because I can foresee more bad things happening than I used to, and I have less energy and even less patience with the foreseeable wastefulness of the process.

I can see all too clearly how the jurors will answer questions, what the DA will argue, how the judge will rule. I foresee the futility of my efforts and the prospect of “going through the motions” — a phrase which seems perfectly suited to this process — is daunting.

I am like an old man who has walked miles through the desert, standing at the foot of a steep mountain, gathering all the energy left to make one more trek. Waiting. Until I can finally rest.

Guest Blog: The San Gabriel Crime Wave

Just in case you think I've been exaggerating the foibles of my life in courts in these bloggy rambles, I asked a friend of mine to guest here with his recent experience. Bill Collins tells his story in his own words:


Last week I tried a case involving a claim of prostitution.
Apparently, the good male citizens of San Gabriel are the victims of rampant acts of masturbation being performed upon them by female masseuses.

This came to the attention of the Chief of Police of the City of San Gabriel and he leaped into action by setting loose upon the unsuspecting massage parlors, the Special Enforcement Team.
This consisted of approximately eight detectives, and other members of the aforementioned police department who skillfully recorded the crime in progress. Part of that skill was knowing where to place the "wire" since the undercover was part of the "disrobing cadre" (defined as "Departmental approval to get naked").

Unfortunately for the jury, the voices on the CD were very difficult tjo understand, and for reasons known only to the police department, they used an English speaking officer to obtain an agreement to perform a lewd act for money from a Chinese speaking suspect. This, notwithstanding the fact they did have a Mandarin speaking officer in the department.

One thing that was very clear on the CD however was the exclamation of the undercover officer: "Oh God, Oh God!"
He explained to the jury I meant "Oh God, I have to go to the bathroom."

As I walked across the courtroom to engage this 6'2", 275 pound behemoth in cross-examination, I could barely miss stepping in the horseshit he had left strewn about the witness stand.

After an initial "good afternoon" we got down to the first question.
"Officer in your line of work isn't it helpful to be deceptive ? In other words, it's advantageous to be a good liar. Correct ?"
And so it went.
The U/C was not only huge, but was completely bald, with a goatee and mustache. He looked like he was from another planet, or perhaps from central casting for the role of a fat Emperor Ming in the Flash Gordon Serials.

The jury deadlocked at 6-6. The case will be dismissed at the next court appearance.

I am sure the citizens of San Gabriel sleep better knowing the scourge of unsolicited acts of masturbation have been excised from their community.

Did I mention the robbery and homicide rate in the community of San Gabriel ?

Jury Of Your Copland Peers

I spent the day in voir dire, questioning jurors in San Fernando. Some fun. All 80 filled out questionnaires with some rudimentary questions. About half gave as residence Santa Clarita or Canyon Country, two way out San Fernando Valley suburbs known for white flight. Almost all of those folks wrote that they had friends, relatives or neighbors who were in law enforcement. Many seem to know only cops - it’s like a paramilitary community. Let's just say the NRA does better there than the ACLU or Democrat Party. The schools are more likely to teach creationism than constitutional law - except for the 1st and 2nd Amendments.

So it was very interesting when I asked them if they could be “fair” to a defendant in a criminal trial. Several disagreed with the proposition that a person is presumed innocent until proved to be guilty. Many asserted that they would not believe the testimony of a defendant, because he’s the one accused.

One young man, whose father and uncle were police officers and who himself admitted such aspirations, stated quite proudly that the police work hard at investigations, weeding out weak cases before arresting and charging someone.

He conceded my conclusion that in his view there was no need for jury trials at all. Several others in the panel slyly smiled their agreement, although even their ardor to avoid jury service couldn’t force them to admit to this overt brand of fascism. Most were content to lie and claim impartiality.

When I got home, I read my L.A. Times and found the following headline:
“Wrongly convicted man wins suit” (May 1, 2007, B5) which reported a $2 million judgment for a man who spent 12 years in prison for a rape which DNA tests later proved he didn’t commit.

The federal jury found that a Riverside County Deputy Sheriff had fabricated incriminating evidence and withheld exonerating evidence in the case in order to get the conviction.

No wonder cops don’t like juries.

Cho

Of all the categories of murder, the lonely gunman rampage is probably the least preventable. Serial killers leave physical evidence at each of their crimes. Science, psychology, police, media and societal attention often leads to eventual capture, notwithstanding the notable anecdotal exceptions like “Jack The Ripper” and “The Zodiac,” both of whom probably stopped because of a combination of the narrowing search, their incarceration or death due to other crimes or mental illness.

But the sudden rampage killer is different. His explosion of violence comes from a place so deep in his psyche that before he strikes he seems not much different from many others in our society who are merely odd.

After the fact, his descriptors include words like loner, depressed, angry, outsider, sullen, friendless. He is often intelligent, shy, troubled. Almost invariably male, often spurned by an imagined lover, with low self-esteem, alienated from family. He is fascinated by weapons and violence, animal cruelty, and is seen to be wierd and creepy.

Whether the cause is a defect in nature or nurture, whether hormonal, chemical or genetic; whether blame can be laid on childhood abuse, lack of compassion, family, adult, societal, or peer group pressures; the truth is that his profile fits many who never act out so outrageously.

What may be the most interesting facet of Cho is that he was a functioning writer and poet. He finished a play, attended a college creative writing class. That his professor spotted in his writing and behavior a strangeness that was alarming to her and others in her class is not surprising. She desperately urged him to seek psychiatric help and urged her superiors to address his problems.

It appears that his wierdness in appearance and behavior was evident to many and he was subjected to intermittent instiutional attention for the obvious symptoms of "dangerous" mental illness.

It is tempting to cite these facts as evidence that the actions were foreseeable and therefore preventable and therefore to place blame on our system for the event. Our need to have faith that we can control our fates impels us to find causes, place blame, name a fall guy or a deficient policy. Institutional failure - government, education, family, society, values - something caused it, something that can be analyzed, tweaked, corrected.

But that is not necessarily the case.

Back in my PD days, a nut case who called himself The Alphabet Bomber was being tried. He had put a bomb in the LAX airport terminal that exploded the day after I flew out of there to go to Tokyo. He then bombed a bus terminal in a similar way. Two of my friends eventually were assigned to defend him and over the next few years his case clanked around the courts, trying to decide if he was “incompetent” and / or “insane” or was merely evil and clever, feigning craziness to "get away with murder."

One day I dropped into the court and watched the defendant on the witness stand trying to explain his actions. He had worked as a draftsman, and co-workers believed he was a mute because he never spoke a word for a year or more. in his spare time, he had assigned every letter in The Bible a number, and with mathematical logic had eventually concluded that he was The Massiah. Somehow he had also worked out that he had to set off bombs in certain places.

I watched him testify with the aid of a blackboard scrawled with names and superscribed numbers, computations. He was trying to prove that the judge and D.A. were conspirators of the devil. I restrained a laugh as the skeptical judge and D.A. tried to disprove the defendant’s theory by pointing to mathematical errors. I thought that was funny and looked to the spectator sitting next to me to see his reaction. He was busy copying the defendant’s writings into a notebook, faithfully recording every letter and number.

I saw then that I was in Wonderland and quickly escaped. It seemed that if this nutty scary murderer was a click less nutty and scary on the scale, he might have founded a new religion or at least written a book that would have established a cult. He was just the wrong side of Rasputin or Joseph Smith or maybe even Jesus. Charles Manson was in that sort of family tree. Jim Jones and David Koresh are out on another limb.

Madness is at the end of a continuum, a scale which includes not too far away eccentrics, ascetics, iconoclasts, independent imaginative artists, the Marquis de Sade, Van Gogh, Ezra Pound, Sylvia Plath, Poe and others whose imagination and perceptions of “reality” differed ninety degrees from the “norm.”

For every Cho there are thousands of his like who never commit the violence they fantasize. Why he did and others don’t is a mystery that may not be explainable.

In criminal cases, shrinks have sometimes claimed to be able to predict propensities for violence and have been called upon to do so. In death penalty cases, prosecutors have called “experts” to proclaim that the defendant should be executed because he is likely to kill again. In mental health cases, “experts” have measured the risk of release of inmates with mental illness or mere “sociopaths.”

Studies have been done over time which have shown conclusively that these opinions are as reliable as coin tosses. The elements distinguishing violent actors from violent thinkers are so ephemeral and unpredictable that forecasts are useless. In fact, erring on the side of caution results in involuntary incarceration of many more innocent people who would never act violently toward others than is warranted by the actual risk.

Jackie Robinson and the Age of Heroes

The Baseball industry is noting the 60th anniversary of Jackie Robinson's first game as a Dodger, April 15, 1947. I was almost 4 years old, and don't remember it.

I remember as far back as 1950, when I was seven. I dimly remember watching on our little Crosley t.v. as the Dodgers lost to the Phillies of Robin Roberts, Curt Simmons and Richie Ashburn, the Whiz Kids. I remember names like Gene Shuba, Gene Hermanski, Rex Barney. I remember crying and my fifteen year old brother consoling me about the loss. There would be another year, he told me with his wisdom borne of the disappointments of his childhood. He remembered 1941, 1947, 1949, all years the Dodgers won pennants, and lost to the Yankees in World Series.

I bitterly remember the “next year”I had waited for, hearing the Bobby Thompson homer in 1951 on the radio coming from one of the apartments. I had run home from school to see the end of the game the Dodgers were winning, as I knew from reports all during the school day. But my mother was out shopping, and I couldn’t get into our apartment. So I sat in the dark hall alone, listening to the end and crying again. Once more, there would be more summers.

There were wonderful summers, when the Dodgers were always winners, and losing to the hated Yanks in the fall. Boyhood should be a time of superlatives, of legends, when every hero seems unbeatable. And they seemed to be.

There was Gil Hodges, who was so strong he could grind sawdust from the bat. Jackie, who drove pitchers crazy at first base, and always stole home. There was Furillo in right, the Reading Rifle, and his arm was strong enough to throw runners out at first on solid hits off the big wall in Ebbets right field. There was Campy behind the plate, a rock who runners crumbled into when sliding home. There was Pee Wee, Erskine, Labine, Newk.

And of course there was Duke, who roamed center field with a loping grace and whose golf swing powered so many homers. Was he really better than the legends to the north: Mays and Mantle?

I remember seeing the enemies who came to town: Musial, Klu, Aaron, and those who visited the Yanks on channel 11: Ted Williams, Rocky Colavito, Nellie Fox.

By the time I was fifteen, it was all over --my Dodgers and my childhood.

In my memory, even today, the events are mixed up, the cause and effect confused. Did the end of the Brooklyn Dodgers signal the end of my boyhood, or did the interests of adolescence end my belief in heroes?

Now I am old, far older than my father was when I was a boy. The old heroes are old men or gone. They are in the Hall of Fame, barely alive in record books, their numbers overtaken and forgotten. They are part of the legends of the game, alongside my father’s heroes.

None of this seems to matter to my son’s generation. Despite my faltering efforts to instill a feeling in him for the history of the game and the magic of the heroism, he feels nothing for the game.

Most of what we remember about the glorious past was attributable to the illusions of youth. I often look back at those days and wonder whether they really were heroic, or whether they merely seemed that way due to my naivete and the natural tendency of old men to deride the present. I suspect that the good old days usually were good only because we were young.

But sometimes I think that they were better days, when hope was high for a bright future. We saw the game as symbolic of something happening in society, and looking back over fifty years, I think it did represent something.

When Jackie Robinson played for the Dodgers it was a symbol of something good for the progress of mankind, not just for a game or the business of baseball, or even for the amusement or entertainment of customers. It was a step in making America a better place, a place it always claimed to be but never was and never has become.

The American claim as a land of opportunity was that talent, ability, skill and hard work could permit any person to achieve success. Class, race, religion, or personal beliefs were irrelevant or at least could be overcome with those traits. But of course, it was not true.

When I was born, in 1943, in the midst of a war against fascism, the vaunted America dream was for only Christian white males. My uncle, a Jewish veteran, was rejected by medical schools because the “Jewish quota” for students was filled. It was an open and accepted fact of life. And for Negroes it was far worse. Segregation, Jim Crow laws, race riots, lynchings were commonplace aspects of American life.

I heard an older Black athlete say that Jackie Robinson’s importance was in providing a role model for young Black boys and men who could hope to attain greatness following his lead.

It occurred to me that in my boyhood I remember him as my hero, and was only dimly aware that he was a Black man. To me he was a Dodger, and such an exciting hero of the game that I did not much notice his blackness. There was Hodges, Robinson, Reese and Gilliam in the infield. There was Furillo, Snider and Pafko in the outfield. There was Newcombe, Erskine, Joe Black on the mound. There was Campanella behind the plate. They were the good guys.

In the realm of identifying with heroes, there was an oddly imaginative conversion in my consciousness. My Dodgers were not Black and White. If anything, they were Jewish while the Yankees were Gentiles; they were working people while the pin-striped Yanks were big business; they were Democrats while the Yanks were Republicans. Of course, I see now that they were just other young men trying their best.

But there was a difference and the difference was that the Yankees had no Black men. None. That was real. The Dodgers were good because of the experiment. And the experiment was due to one man.

Branch Rickey.

He was a hero in the classic sense, in the sense of Lincoln. And Oskar Schindler -- no, that's not too much of a stretch. He was not a saint. He had plenty of human faults. He was a clever dealer in men. He was cheap, kept his workers hungry while making himself rich. But when it came to the issue of whether Black men should be permitted to share the dream of success, he knew what was right. He was courageous. And he was smart. He knew that his own success could be assured by doing what was also right. So he took the risk, at no small jeopardy to himself. He would be threatened with danger, to his reputation, to his financial success, to his friendships.

Rickey opened the country’s eyes to the wastefulness of its racism. Ten per cent of the population had been ignored for much of our history. Rickey was an enlightened capitalist, an entrepeneur who saw the huge profits in cultivating the Negro athletes. He shrewdly gauged his times, sensing that the liberalism of twenty years of government and World War II had brought black heroes into the mainstream of American life. My father thought seeing Negroes in the major leagues was a great advancement.

But when I watched the Dodgers play and imitated their batting stances and pitching motions in my livingroom and tried to walk pidgeon-toed like Jackie, I wasn't aware of any of that social impact. I accepted it as normal.

And that was the impact. My generation, beginning as kids, saw no race in our heroes. And the Dodgers of my childhood will always be far more important than any other ball team in history because of it.

You could look it up.

Passover Revised

When I was a kid growing up in Brooklyn in the 1950's, my world was pretty much a Jewish one. Not that we were religious in any great sense. Oh, I was sent to Hebrew School for a year to study for my Bar Mitzvah. And we “observed” the holidays. Observed is the right word, because we usually observed it from the sidelines, without doing very much about it. My grandfather and father dragged me to Shul a couple of times a year - Rosh Hashanah, maybe - and they fasted on Yom Kippur. When my grandmother died, 10 men with bad breath got together in our livingroom to pray each night for a week while my father “sat shiva.”

We got some chocolate wrapped in gold tin foil on Channukah and felt lousy around Christmas - guilty at enjoying the TV specials, the carols, “Rudolph The Red Nosed Reindeer” and “Amahl And The Night Visitors,” which was a very confusing but moving Jewish experience. But mostly I took Jewishness for granted because most of my schoolmates were either Jewish or Italians, whose family life was almost identical to mine - nagging mothers pushing food, shared ridicule of religion based sex guilt, stuff like that. Actually, I think that when very young I thought of my Italian neighbors as just a sect of Jews. That made enjoyment of Christmas a bit more acceptable.

Politics and sports preferences were also presumed Jewish in my family. The Dodgers and Adlai Stevenson were Jewish, the Yankees, Eisenhower and McCarthy were Goyim. Labor: Jewish, management: definitely not.

From adolescence on (once the Bar Mitzvah ordeal was over - or maybe freed by the misery of it to exercise the free will of the promised Manhood - I got to question all these presumptions, became an agnostic and observed the defects in all religions, dropping the pretense of adherence to most of the rituals.

The one that lingered longest was Passover, the event that America seemed to embrace as a secondary Thanksgiving. Cecil B. De Mille, the most sanctimonious of all Hollywood mythmakers, sanctioned the Americanization of this issue with his movie “The Ten Commandments” in 1956. Charlton Heston as Moses vs. Yul Brynner as a scowling Pharaoh became an annual TV ritual like “The Wizard Of Oz” and “Its A Wonderful Life.” They all taught lessons to children as powerful as Grimm’s fairy tales must have been to German kinder: “there’s no place like home” ... “no man is a failure who has friends” ... and “Let my people go.”

The Exodus Story became an American liberal icon, a brief against slavery and for Self-Determination against Imperialists and tyrants, quickly adopted by the Civil Rights Movement as an paradigm. The movie “Exodus” (1960) solidified the concept and associated it with the establishment of Israel. The survivors of The Holocaust were the underdogs fighting the pompous powerful Colonial Establishment and the neo-Pharaohs of the Arab world, winning because of determination and rightness ... just like the Dodgers and the Negroes.

By the time I had a son, I had moved away from Brooklyn and was living in L.A. which, despite its Jewish population (second only to NY in the US), was not Jewish the way Brooklyn was. The LA Dodgers were definitely NOT Jewish, Sandy Koufax aside.

So when the opportunity arose to give my child a private school Jewish education, I acquiesced. Though most of the holidays and rituals he was immersed in seemed rather contrived to me (Purim, Sukkoth, Simchat Torah, etc) Passover was one I thought was a lesson worth maintaining.

In order to keep up with his schooling, I felt compelled to brush up on my Judaica. Learned a little Hebrew, the new versions of prayers my grandfather “davened” which were now intoned with chic Israeli pronunciation - you can spot any New Yorker when he says “Shabbas” instead of “Shabbat” - and I didn’t want to be embarrassed in the company of the other parents all of whom seemed to be able to fake it better than I could at the childrens’ services.

So one day at the bookstore I ran across a Torah that looked interesting. “The Torah: The Five Books Of Moses ... A new translation of The Holy Scriptures according to the traditional Hebrew text” published by The Jewish Publication Society Of America.

I began to read it like a novel for the first time as an adult. Jumping quickly to Exodus, I came upon the following passage:

And the Lord said to Moses, “When you return to Egypt, see that you perform before Pharaoh all the marvels that I have put in your power. I, however,will stiffen his heart so that he will not let the people go. Then you shall say to Pharaoh, ‘Thus says the Lord: Israel is My first-born son. I have said to you, “Let My son go, that he may worship Me,” yet you refuse to let him go. Now I will slay your first-born son.’”

That quote was typical. Pharaoh wasn’t acting from free will. The Lord was pulling his strings. After every plague - locusts, frogs, lice ... Pharaoh relented, agreed to “let Israel go,” but each time, the Lord “hardened” or “stiffened” Pharaoh’s heart. Why did God do this if his goal was to the free His people from slavery?

The answer was very clear from the sequence of the plot. When Moses first enters Pharaoh’s court, he performs some tricks: turning a stick into a snake and the Nile to blood, which Pharaoh’s magician’s duplicate. With every miracle, Pharaoh is impressed with the power of the Hebrew God, but that is not enough for God. His goal is for Pharaoh to recognize Him as the One True God.

Historians give credit to the Hebrews as the originators of Monotheism, which formed the basis of Western religious thought from then onward and was claimed to be a powerful impetus to Western dominance of world culture. That claim is arguable, but what is not is that the God of the Hebrews freed His people so that they could worship Him, and did it in a way that forced all other people to acknowledge Him as the Only God, not just one that was powerful or fearsome.

The point is proved later on when He gives Moses the Laws of human behavior to relay to the people. The first five of the so-called “ten commandments” are about honoring God.

The only reference to slavery in the first ten Laws lies in the order that “your male and female slaves” must also keep the Sabbath.

Of course, there were more than just ten laws. Another one ordered:

“When you acquire a Hebrew slave, he shall serve six years; in the seventh year he shall go free, without payment. If he came single, he shall leave single; if he had a wife, his wife shall leave with him. If his master gave him a wife, and she has borne him children, the wife and her children shall belong to the master, and he shall leave alone. But if the slave declares, “I love my master, and my wife and children: I do not wish to go free,” his master shall take him before God. He shall be brought to the door or the doorpost, and his master shall pierce his ear with an awl; he he shall them remain his slave for life... (Exodus: 21)

Modern apologists for God argue that these concepts were an advancement in thought for their time, a step in the liberalization of Man's imagining of his relationship with God. For the first time, God is shown providing rational laws and covenants based on a sense of justice rather than arbitrary and capricious whims that previous ideas of Gods has allowed.

Okay, but you gotta admit that He had a pretty healthy ego.

Poli Sci 101 Remembered ... Or Not

When I moved to L.A. in the Fall of 1964, I was more than 20 but less than 21. Draft age, but 2S, which meant safety as long as I was enrolled in school. So I enrolled fast.

At UCLA I took a Poli. Sci. class from Bill Gerberding (who later became Chancellor of U of Washington for 16 years). He was an impressive guy up there on the auditorium stage. Many of his lectures ended in shouting matches with students about Topic A.

Viet-Nam, of course.

As I remember it, Gerberding was pretty down on arguments that talked about the immorality of the war, or those about violations of international law. The question, he kept insisting was simply whether the war was in our national interest or not.

Although many protested this coldblooded approach to a war perceived as evil, I decided to take him on his own turf.

I wrote a term paper arguing that it was not in our national interest to pursue a war that was not essential to our survival, and that made us ashamed of ourselves as a nation.

I relied on Gerberding’s favorite author, George F. Kennan. The assigned reading included two of Kennan’s books: “Russia And The West Under Lenin And Stalin” and “American Diplomacy, 1900 - 1950.”

And for a change I read it all. Gerberding gave me a grudging “A.”

Ever since then, I’ve thought about Kennan, who died at the age of 101 in 2005.

When Kennan wrote about diplomacy and history, he knew what he was talking about. He had been ambassador to USSR, his ideas had helped formulate the containment policy that Truman relied on as an alternative to nuclear confrontation. He had helped develop the Marshall Plan, which was central to his thesis that the central focus of American interest lay in Europe.

Kennan argued that our entry into World War I was justified on the wrong basis. Rather than a war to save democracy from tyrants, it was a war to restore a balance of power in Europe, which was essential to our continuing development as a world power. The false premise on entry made post war disillusionment and disappointment inevitable.

Kennan, in fact, opposed our involvement in Indochina, and later supported Eugene McCarthy in 1968.

In September 2002 at the age of 98, he was interviewed by Alfred Eisele, editor of “The Hill.” The article appeared in the History News Network, 9/26/2002, “George Kennan Speaks Out About Iraq.”

A reminder: the war began in March, 2003.

In the September, 2002 article, the 98 year old Kennan was reported to have said:

1. The evidence of a Saddam Hussein link to Al Qaeda was “pathetically unsupportive and unreliable” and a second war — one against Iraq — would “bear no relation to the first war — against terrorism.”

2. Regarding Bush’s proposed doctrine of pre-emptive war: “Congress is there for the exercise of that responsibility. I think our Constitution and our tradition are quite sufficient here. [Bush] should not do what he’s planning to do without a clear congressional mandate. This is against all American tradition.”

3. The failure of Democratic congressional leaders and the party’s would-be presidential candidates to question Bush’s war plans as “a shabby and shameful reaction.”

4. There is no evidence that Iraq has succeeded in developing nuclear weaponry, and even if they had, it would be targeted on Israel and not the United States.

Prophetically, he said the following, as a lifelong diplomat and historian:

“Anyone who has ever studied the history of American diplomacy, especially military diplomacy, knows that you might start in a war with certain things on your mind as a purpose of what you are doing, but in the end, you found yourself fighting for entirely different things that you had never thought of before...

"In other words, war has a momentum of its own and it carries you away from all thoughtful intentions when you get into it. Today, if we went into Iraq, like the president would like us to do, you know where you begin. You never know where you are going to end.”

Yes, you never know where you are going to end ... or when ... or if...

Kennan also said at the time:

“[T]here is a very, very basic consideration involved here, and that is that whenever you have a possibility of going in two ways, either for peace or for war, for peaceful methods of for military methods, in the present age there is a strong prejudice for the peaceful ones.

"War seldom ever leads to good results.”

Name Calling

Ann Coulter's "joke" at the Conservative CPAC convention, calling John Edwards a "faggot" should not have been a shock. She has shown previously that she has no sense of decorum, propriety, or an understanding of the need for civilized discourse. Besides, she's just a dumb blond bull dyke.

Generation WHY

This is a mea culpa, a confession. Don't worry, I advised myself of my rights before this admission. It is voluntary, but it does hurt a little.

There has been a lot of media blather about a study that concluded that the current generation of 20 Somethings are too narcissistic. Parents, these sociologists concluded, went overboard raising the self-esteem of their children way back.

As a result, kids today think their shit don't stink.

(That's not exactly the way the Ph.D's put it. They had a grant.)

That puts me in the embarassing position of defending another lost cause: my parenting. The first and only witness and exhibit is my son.

He is not only smarter than I am or ever was, he is better in almost every other way. He is also healthier, wiser, has more of a grasp on how to be happy than I ever did. He has more understanding of how the world works, what's important and what is trivial.

I am the first to admit that he is not perfect. He has a lot to learn and I worry about the inevitable pain he will have to overcome in his life.

And his shit does stink.

Other than that, I think he turned out okay.


Case closed. I win.

Snitch Law & Iraq

The PBS show Frontline has done some good reporting, in depth truth telling about issues that the media glossed over in first editions.

It is now running a multi-part series about the problems of journalism which it calls “News Wars.” The second installment analyzed the mess journalists made of the Wilson / Plame Affair. (“Secrets, Sources & Spin”)

Their focus was what the story revealed about the problem of journalists allowing themselves to be spun by government sources who leak information to influence public opinion. The report distinguished this from the whistle blower source who needs confidentiality to protect from retaliation by superiors.

Reporters see no difference, insisting that preserving the confidentiality of sources is a principle on which the First Amendment and therefore a free society depends.

The report delved into the history of this claimed privilege, the cases and arguments that surround it, and the evils of the government “going after” journalists doing their job of informing the people.

I have little quarrel with them up to that point. However, as part of their argument, they quoted Bob Woodward, a journalist who knows something about keeping sources confidential. Woodward was also involved in the Wilson case because his source, which he willingly revealed (Deputy Secretary of State, Richard Armitage) had mentioned Plame’s CIA status to Woodward in an almost off-hand way at the end of a long interview that occurred before Libby, Rove or Chaney leaked the information to reporters.

In Woodward’s view, the fact that Armitage did so without any motive to spin for the Administration which in fact Armitage opposed on the Iraq war, showed that the entire issue was a tempest in a teapot, no Watergate at all.

In my view, the Frontline report and Woodward miss the point entirely by their narrow minded defensive claim that the issue’s chief effect was to sully journalism.

I see the affair as evidence of a governmental cover-up that is as dark and scary as Watergate. To paraphrase Deep Throat, in this case, follow the motive.

The four best arguments the government had for war against Iraq were the imminent threat to the US from Sadam Hussein's: (1) stockpiles weapons of mass destruction; (2) including chemical and biological weapons; (3) and nuclear weapons; plus (4) a direct Al Qaeda connection.

Chaney’s motive in discrediting Wilson was obvious.

• Prior to the war, Chaney had asked CIA Director George Tennant to get evidence of Iraq’s attempt to buy nuclear material from Niger.
  
• The CIA, at Valerie Plame’s urging, sent her husband, a retired diplomat who had served in both Niger and Iraq, to investigate.
  
• Wilson reported to the CIA that there was no evidence of Iraq’s seeking of nuclear weapons from Niger.
  
• Despite the negative report, Chaney continued to argue that it was fact. It would up in Bush’s State Of The Union Address after Wilson had issued his report.
• Later, CIA Director George Tennant took the heat for the faulty intelligence about WMD but has equivocated about the nuclear issue. It has been reported that in fact he asked Bush to remove the reference from the Address, but Chaney put it back in.

When Wilson spoke up, Chaney discussed it with Rove and ordered Libby to leak to reporters that Wilson’s wife got him the job, implying that it was a trivial lark to an unqualified person.

The journalists on Frontline insisted that this was standard operating procedure for all Administrations, retaliating against enemies with inside information.

Okay, I’ll buy that. But here’s the kicker. Libby lied about it when interviewed by the FBI, Special Prosecutor and to the Grand Jury, claiming that he had not told it to reporters, but had heard it from them.

Why lie? The only reasonable inference is that Chaney did not want it revealed that he knew the nuclear claim was “cooked.”

Recent reports have shown that the claim of an Al Qaeda connection with Saddam Hussein was also cooked. The CIA had discounted the information as unreliable, but Douglas Feith, Rumsfield’s assistant, had reported it as if it was fact.

In my trade, we often deal with confidential informants in the area of probable cause to investigate, search and or arrest. Statutes and case law specify when and how such information can be used.

1. The law distinguishes between “reliable” and “unreliable” informants, depending on proof of past performance and independent corroboration to justify reliance.
2. Information that contradicts a confidential informant must be disclosed.
3. The “motive” of the informant must also be disclosed if it tends to reduce his reliability.

You would think that arguments supporting war are at least as important as those supporting the search of a suspected drug dealer’s house.

Neither the Bush Administration nor the journalists we trust to protect of liberties followed any of these guidelines.

Laws Of Love

The LA Times Business section isn’t the place you’d expect to see wry social humor, certainly not the kind that smacks of absurdist commentary on the trends that foretell cultural ruin. But then again, maybe it is.

A recent article notes a corporate trend that involves lawyers in creative problem solving in a new and potentially lucrative field.

Fact: The corporate workplace is fertile ground for coupling between employees. 43% of office workers surveyed have had at least one romantic relationship with a co-worker.

Problem: Some of these affairs crash and burn, leaving raw emotions that lead to law suits against the company and former lover, claiming sexual harassment.

Solution: Dating employees are asked to sign a “consensual relationship agreement” that acknowledges the risks and frees the company from liability in case of a break-up.

The issue reminds me of my thoughts some years ago when I viewed a TV magazine piece about the Brown University dating policy.

A male student was in his dorm room cramming for an exam. A female student entered, asking him to join the beerfest that was going on elsewhere in the dorm. The male demurred. He needed to study to preserve his scholarship. The female drunkenly teased him and they wound up in his bed.

The morning after, the female related the incident to her sisters, and discovered that she had been victimized. Even though she had been the aggressor, had “consented” to the sex act, her intoxication negated her consent according to the Brown policy. Since he knew she was intoxicated, he should not have relied on her consent. He took advantage of her inebriation and was liable.

In fact, there is solid legal ground for this view. In California and most other states, "date rape" is similarly defined according to the enlightened interpretations that respond to Feminist complaints about sexist laws. The burden has been shifted almost completely to the male in such cases.

Consent once given can be withdrawn. A consent to kiss is not a consent to intercourse. Consent must be unequivocal; implying consent based on actions is risky.

Applying a “reasonable man” test to figure out if actions can infer consent is an oxymoron, given that no male or female (especially college students) acts reasonably in the heat of such passions.

Even in the midst of consensual intercourse, consent can be “withdrawn” by a “No” or its non-verbal equivalent. Ambiguity or equivocation may not be a defense when the event is later evaluated objectively.

When consent is withdrawn, so must the male, so to speak.

The Brown incident alarmed me. My son was a college student at the time and the threat it implied replaced AIDS in my mind as something I had to warn him about.

I toyed with creating a form contract to send to my son, for him to use when dating. It contained paragraphs covering the incremental contingencies of dates as I dimly remember them from my own barely survived youth.

Here's a partial draft:

1. I hereby give my consent and voluntarily agree to participate in the following:
A. Kissing ______________
1. With / Without tongue (circle appropriate word)
1. On lips _____
2. On neck _____
3. On breasts ____
4. On labia _____
5. Other (specify) __________________________

B. Hands touching of
1. Breasts ________
2. Labia __________
3. Other (specify) _________________

C. Upon completion of or in conjunction with any or all of the foregoing acts as enumerated in clause A and / or B, supra, I also voluntarily consent and agree to the following acts:
1. Fallatio _____________
2. Cunilingus ___________
2. Penile penetration _______
a. Vaginal _____________
b. Other ______________

The contract would be submitted to the potential datee along with flowers or candy and a Number 2 pencil.

The datee would be asked to initial, check, circle, and sign the paper, keep a copy and return a copy to the dater. He would file the original with the University.

But that would not end it.

Because the datee has the right to withdraw consent at any stage, the parties would have to initial each interval as the date progresses before performing any of the specified acts.

To be completely safe, I recommended the presence of an impartial witness and notary, and audio / video recording of the encounter.

(Today, I would update that proviso to itube uploading of the date - with the appropriate confidentiality waivers, of course.)

In order to prevent later claim of coercion, the contract would suggest that the datee seek independent legal advice before signing.

If the datee wished modification of any clause, each party’s lawyers would meet with them and hammer out their differences.

A 24 hour legal aid hotline would have to be funded for emergency legal advice if issues should arise during dates.

I am also working on post date contracts.

The party trying to contact the other by phone or in person risks claims of “stalking.”

To alleviate this, my proposed "Morning After Contract” would cover all such contingencies.

Female Trouble

There are all kinds of female trouble for a man. It doesn’t matter if you have one or more than one or none. It’s all trouble. This was my day for too many.

My client (call her ‘She’)is only 20 and to me that means She’s still a kid. She’s a sociological case study, this one, charged with helping her boyfriend (call him ‘Dog’) and his homies jack another kid’s cell phone and ipod, this year’s Air Jordans, my era’s lunch money. Dog and his bro’s snatched a few others that night along with a watch, an A’s cap, and some other loot. Then they called her, cuz She had a sweet ride, her daddy’s Cad.

So She picked them up and they cruised and She stopped to get gas and on the way out, the boys saw another fool so they got out and jacked him too. When the cops found them kickin’ it at the park, they found all the stolen shit and they were all busted.

The boys are charged with three robberies and She with abetting the last one.

Daddy bailed her out and he’s with her in court. So is Mummy and Mummy’s Sister. They’re nice people, still strangers stranded in The American Valley, though they’ve been here many years. They speak in that clipped Indian accent I like to listen to, so polite and Englishy. Civil and civilized in an uncivil and uncivilized world. Like the Chinese and the Jews, the Sikhs thrive in many alien worlds by tenaciously preserving their ways.

They’re supportive of their daughter, got her into counseling immediately. She’s on hiatus from nursing school, where She’s going because Mum’s a nurse. Daddy takes her to work with him. Mummy is an attractive woman, dressed & coifed American. Daddy sells cars and has that glad hand personality that goes with it.

Daddy makes pronouncements but Mummy just shoots looks that end discussions. He is big on “respect,” and they both are convincing me that their daughter is full of it, deep down.

“This is not how we raised our daughter,” they keep reminding me. The usual rap: theirs is a “good home,” their child is kind, trusting, loving – too kind, too trusting and too loving to the wrong friends and that’s the problem.

The girl has that Indian look — overly generous eyes, nose, lips, figure. But she’s done what she can with it: she wears startling sky blue tinted contacts, nose and lip studs, too much make-up, has squeezed into faux Paris Hilton rags. It’s a new Her. It doesn’t work for me, but she must have something for Dog, cuz she’s hooked.

All too soon, with my penchant for cross-examining women that endeared my to mine, I strike a nerve with Mummy. “You didn’t approve of her boyfriend?”
“Of course not.”
“Because he’s a thug.”
“Because he’s Black. If she marries him, we’ll disown her.” A simple straightforward declaration, as if it didn’t have to be discussed. “In our culture, it is impossible.”
“So, what about a Muslim?”
“The same.”
“And a Hindu?” That brought about some equivocation. Seems that to Sikhs, Hindus are only marginal, worth a hesitation.
So, I launch into my sermon, my argument for tolerance. First, I assure them that I get them.
“Its the same with us Jews,” I say, with some hyperbole. “For us, the grandmother’s first question was, ‘Is she Jewish?’ They used to want to know more: Orthodox, Conservative, Reform, what part of Europe her people came from?” That gets me on their team.

Then I think of a cool analogy. “You know Vice President Cheney?”
They nod somewhat vaguely. I proceed with a fable: “Well, he’s a strict Christian Fundamentalist and when his followers found out his daughter was homosexual, they asked him about it. He said, ‘I don’t approve but I love her.’ Then they found out she was marrying her lover, they asked him again to denounce her. He said, ‘I don’t approve but I love her.’ Then she announced that she was pregnant. (This stumped my listeners and I had to explain how this could be done without miracles.) Cheney’s followers were outraged. Still, he insisted that though he disapproved of his daughter’s ‘choices’ he still loved her and would love her child too.”

They listen with respect, but my little fable sermon didn’t persuade.

All this while we wait and wait for another woman, the lawyer appointed for defendant #2. She sweeps in around 10:30, stammers an apology to the judge and enters the lock-up to talk to her client. I wait for her to get around to me.

When she does, I’m ready for her. “I don’t appreciate being cross-examined,” she snoots.
That’s enough for me to go off. “Listen, sweetheart,” I whisper loudly, choking on my words, my finger poking at her. “I called the panel to find who was assigned and they gave me your number. So I called you and it was obvious you’d forgotten this case. Then you ask me to stand in for you but you hadn’t even met your client yet.”
She’s fazed. “I tried to call the court but I had the wrong number.”
“Yeah. I heard you tell the judge that. But you found it quick enough after you hung up on me, didn’t you?”
“I don’t have to answer that.”
“Not to me, you don’t. Not today.”
“Is that a threat?”
My glare answers her.

The two custodies are brought out and my client sits in the third seat. I’m standing with my calendar out and we’re talking about next date. I glance around and She’s whispering to her “man” whose cuffed next to her. I shush her.

Then she twists around and mumbles something toward the audience. There’s two Black girls in the second row. They’re smiling at her in that nasty way girls have with rivals. The female mad dog. My client says aloud, “Bitch, you ain’t nothin.’”

“Young lady, turn around and be quiet,” the judge says before I can. He rolls his eyes and I shake my head. I repeat the order to her but she keeps returning the looks and curses at the girls. I want to slap her. The bailiff sees my look and orders the spectators to move. He fears a fight in the making.

After court, I take my client aside, another cross-exam. She’s been taking Dog’s calls, putting money on his books for a calling card. Her look is her Mummy’s but She’s talking about the girl in the audience. “She thinks he’s hers, but he’s not. He loves me.”
“And you love him.”
She doesn’t have to answer.
“Okay, here’s the deal. You tell me if you love him enough to go down with him. He’s going to the joint.”
“I’ll wait for him.”
“You might go with him.”
“No, I won’t go that far.”
“That’s a start. But you are jealous.”
“No,” she insists. “He don’t care about her. She’s the one that’s jealous.”
“How did she know to come to court?”
She shrugs, but the answer is obvious.
“Your boy’s a player. That’s what you’re worried about.”
“I’m not jealous. I’m insecure.”
“Okay, insecure. Here’s the thing. To defend you I have to dump on him.”
“He’ll say I didn’t know anything.”
“That won’t cut it with the DA or judge — and his lawyer may say he was stealing shit for you.”
She knows that.
I tell her something she also knows. “If he loved you he wouldn’t have gotten you into this shit.”
“He said he was sorry.”

Its no use but I instruct her anyway. “No contact with him or with those girls and if they stalk you call me or the cops. After the case, you can do what you want. As to your parents, you’ll be 21 soon. You don’t have to live with them or take their money.”

On the drive home, I’m listening to the news. The astronaut triangle story is churning. I’m thinking, where’s the next screenplay coming from? “Romeo And Juliet’s” been done. And “Fatal Attraction,” too. I’m too fatigued to write this one. The bitches have taken me down, dude.

You've come a long way, baby, er, Ms.

In 1963 Britain’s conservative government fell because a cabinet member, John Profumo, had been having a long term steamy affair with a 21 year old party girl named Christine Keeler, who was also sleeping with a Soviet spy among other men.

In 1998, President Clinton was impeached after lying about whether “sexual relations” with an intern included oral copulation.

Now, the L.A. Times reports, the Israeli government has been shaken by the sexual harassment conviction of a cabinet member who committed the “indecent act” of kissing a 21 year old female army officer which the woman convinced the 3 judge panel was “unwanted.” The culprit may get a 3 year prison sentence.

The Joys of Procrastination

Some time ago I read an L.A. Times article about a recent study concluding that the 218 earlier studies on the causes and cure of procrastination were incomplete. This one concluded that “perfectionism” and “anxiety” are less important than “impulsiveness.” Seems that most procrastinators aren’t as much interested in the future as in immediate pleasure, so they put complicated things off.

I like this idea because it conforms to my general thesis based on my own experiences which I modestly call “Borenstein’s Law.” Most criminal defendants are not deep thinkers. They mean well, intend to finish school, get that job, treat their addiction. But somehow they never quite get around to any of it. A homie calls, a party awaits, a girl text messages. And they are lured from that never ending freeway that leads to the straight life. All those sexy off ramps are irresistible.

There is another twist that appeals to me. I theorized that our clients are not all that much different from the rest of us. We all act in a way contrary to our best interests for many reasons, not the least of which is the impulse for pleasure. And I also deduced that for most, this is not always a bad thing. Taking risks can lead to happiness, as our pop culture often remind us. Who finds love and happiness in the movies? Not the workaholic but the free spirit.

Many of the studies were done with college students of course with an eye toward giving advice though I find most of it not very helpful. They give suggestions like:

make to-do lists,
be satisfied with rough drafts,
start with the easiest task,
avoid distractions,
keep trying,

These are like telling an insomniac to get some sleep. Actually, I imagine many procrastinators are also insomniacs and they’ve heard all this many times before.

Having been a procrastinator most of my life, I have my own takes on the subject. Thinking about the reasons for procrastinating is one of my favorite ways to procrastinate. For me, anxiety is a great reason to avoid less pleasant tasks.

My brother who used to espouse Freudian psychotherapy back when pipe smoking and crew cuts were also in fashion parroted a mantra about “the path of least resistance.” I don’t remember whether that was intended as a pejorative term, but I have always found that path easier on my back than the bumpier “path of most resistance.”

When I was a public defender faced with a stack of case files, each representing problems with varying degrees of insurmountability, I tended to deal with the easier ones while putting aside the harder cases until a later day. If I was lucky, that later day might never come. I could be transferred to another assignment and my hard cases would be re-assigned to some other fool. I considered that a winning strategy, except that the cases I inherited in my new assignment always turned out to be my predecessor’s chronic backaches. Yet, that often turned out well, because my “fresh eyes” were able to dispose of these hard cases more easily.

Then too the process of delay often benefits the system. Justice delayed can be justice served, to coin a phrase. Old cases are everyone’s sores and a properly aged case can ripen into a good result because everyone in the process — defendants, judges, prosecutors, witnesses, etc. — simply runs out of passion and wants finally to get it over with at any cost.

The same dynamic works with tasks that have deadlines far away. Putting them off until the night before forces an efficient use of time and concentration. Some people simply work better under the gun.

I have found that some especially difficult problems demand radical approaches — like doing nothing. I can’t tell you how many times I have anticipated storm clouds, spent sleepless nights devising strategies to confront them, and then found that they are solved or have disappeared or turned out to be mere sprinkles without any action by me. This works as well with personal issues as with work problems.

But there is a caveat: doing nothing is risky. It can work with banks and governments who sometimes “forgive” slackers more easily than conscientious customers. In matters of the heart it is not always a good idea. For instance, I am thinking about that nettlesome problem of gift choosing. I have always found that issue to be one of the hardest to face and therefore tend to put it off, a dangerous non-strategy. It is ironic that those you love are less forgiving to procrastination than cold hearted institutions, but there you are.

FAQ's

A FAQ from clients to their lawyers: “Do you believe I’m innocent?”

My mind races. Here’s what I want to say.

“It isn’t a matter of belief. I’m neither an athiest nor a fanatic. I’m an agnostic - not enough proof either way. But whatever, I’m here to represent you regardless of what I believe. My job is to evaluate the evidence against you, gather evidence for you, make the best arguments for yours and against theirs."

That doesn’t satisfy too many defendants facing jail or prison. What they want to hear is that you are committed to their side no matter the evidence, that you have a strong faith in their innocence no matter the facts against them.

Defendants have no faith. They are cynics - their only core belief is that the system is bent against them and the right lawyer can bend it in their favor. If it breaks, that's okay, too.

The problem is insoluble and quite sad, really. Faith is a plus, maybe even a necessity for some of life's issues - like love and God - but not others - like the ones lawyers have to struggle with.

And probably not in formulating a foreign policy, either.

I can’t help applying my legal experience to the debate over Iraq. Lawyers are taught to argue effectively by using a more or less rigid form of logic that includes concepts like evidence, inferences, and burden of proof. We are taught to approach problems by examining facts, framing issues, and stating rationales for conclusions.

Over the years, I’ve learned to distinguish plausible arguments from bad ones. When I hear Bush and his supporters argue that opposition to the current policy should be ignored unless accompanied by an alternative policy, I can’t help imagining how this argument would apply in a courtroom.

I imagine a D.A. arguing that although all of the evidence supporting his case has crumbled, his witnesses impeached, his evidence rebutted, the judge should still rule in his favor unless the defendant can prove his innocence by showing who really is guilty.

I hear the argument that although every rationale for the invasion and occupation of Iraq proved false, the policy should be continued because the consequences of withdrawing might be disastrous.

It reminds me of the old joke about the lawyer for a son who killed his parents arguing for mercy because his client is an orphan.

Jurors are instructed that a witness who has lied or been proven wrong in one part of his testimony should be distrusted in others.

Imagine a DA arguing that although all the evidence on which he based his assertion of the defendant’s guilt in his opening statement proved to be false, the judge should still convict the defendant because the consequences might be disastrous.

In fact, this argument is one that DA’s do make. Convict this gang member despite the lack of evidence of guilt in this particular case in order to “send a message” to the community and to deter others from gang crime.

Don’t get me wrong. The Law doesn’t have all the answers to life’s problems. And lawyers aren’t necessarily better than others in solving them. But I find it interesting that many of the proponents of the above arguments are not lawyers, Bush and McCain among them.

Advice For The Lovelorn Law Student

In the past few months, several of my friends have told me that their children have decided to become lawyers, and even more terrifying, criminal defense lawyers.

Since I am nearing the end of a long, dismal career in that field, I feel qualified to advise the young in this one area. More than that, I feel it is my obligation.

Don't make the same blunder I did, please!

Thirty six years ago I entered into this quagmire still flushed with that optimism that JFK had inspired when I was a Junior in High School - you remember: “...The torch has been passed to a new generation ... Ask not blah blah blah, but what yada yada yada ...”

In law school I was brainwashed by the hope that the legal system might change the world. Courts had discovered civil rights and civil liberties, corrected past injustices, led fights against discrimination, abuses of police power, narrow mindedness of all brands.

My mistake was to believe that this era of enlightenment was the norm, would progress. In the telescope of years, I see now that it was a kind of Golden Age, a tsunami that comes rarely and yields to the bitter reaction that is society’s norm.

By the way: "tsunami" is a better metaphor than "pendulum" because experience teaches that return to balance is not inevitable - once given up, liberties are harder to win back. Societal stasis favors Order over the chaos of freedom. Take a poll among your peers. How many would agree that it is better to release a guilty person than convict an innocent one?

In my time, the tide receded almost immediately, at first impelled by good intentions as always. In the Seventies, the feminist movement raised consciences about injustices in rape laws. Then came the Drug War, spousal abuse, child abuse, gangs, guns, victims’ rights - hysterical responses to increasing crime rates then blamed on the progressive reforms of the previous decade.

That the real causes of the upswing in crime were demographics, economics, drug technology, not the basics of the legal system hardly mattered. Perception counts more than truth. Every change was perceived as needed reform, not dangerous tampering with Justice.

Nonetheless, The System has crashed. Judges from top to bottom, drawn from the ranks of prosecutors, now see themselves as prosecutors in robes. Draconian laws, many passed through our “democratic” Initiative Process mandate long prison sentences while also making it easier to convict. Prisons are hellholes, overcrowded with hopeless exiles, death row packed with waiting skeletons. Ghetto streets are filled with a permanent underclass of guys with rap sheets.

Most of the advances of the Golden Age have been cancelled.

Appellate courts - federal and state - permit most hearsay and illegally seized evidence. The most egregious violations of rights and rules in trials are deemed “harmless error” if the appellate judges make up their own minds that the defendant was guilty anyway. No matter that the prosecutor withheld evidence, jurors lied, the defense lawyer slept. “Strict interpretation” of The Constitution and the “will of the voters” uphold laws that would have been struck down 30 years earlier.

It is not much fun to be a defense lawyer anymore, especially a public defender.

The L.A. Office grew enormously over the years and evolved into a cog of The System. The old motto was: Provide the most effective lawyers for the lowest cost. Now, it is: Provide cost effective lawyers, period. The change in emphasis is subtle but disastrous. Morale is at an all time low.

Imagine being assigned to defend a shoplifter with two prior felony convictions who can be sentenced to life in prison. A one day trial with no issues to argue, before a judge who last week was prosecuting these cases. The trial DA may sympathize - she’ll go to her supervisor for permission to offer a plea bargain - “strike a strike” and take a plea for six years in prison.

Back in the day, we felt we were the “best and the brightest,” winning against The System because we were smarter, more dedicated, more prepared than anyone in the courtroom. It was still hard to prevail, we lost more than we won, and it took a psychic toll. Now, it is impossible. Not only is The System stacked against the defense, prosecutors are the perceived heroes of The Culture. Most believe that it is noble to defend victims, not criminals.

So here's my conclusion:

I know now that nobility for lawyers is a snare and a delusion. But if you must become a lawyer and still want to think yourself noble, save the environment, or a doomed animal, or an artist ... but most of all, make lots of money and save some so you can tell them all to screw themselves.

More Adventures In Crime - The Tender Gender

The signs of a decaying civilization may be subtle. Like temblors that merely rattle glassware for an instant, they foreshadow a cataclysm to follow. Case in point: an article buried on page B-5 of the L.A. Times of Saturday, October 21, 2006.

A Riverside County judge dismissed an “indecent exposure” charge against a woman. The controversy that made it news in the eyes of the Times editor was the judge’s reverse sexism, holding that the statute only prohibited conduct by males.

Whether the judge is right about that is of less interest to me than the underlying (no pun intended) facts, which the article didn’t get to until the 8^th paragraph. A lady (age 40) complained that a neighbor boy (no age given) was making too much noise playing basketball in his yard. When he ignored her demands, she went onto her sundeck and “’He looked up at her, she looked down at him, and she disrobed.’”

What happened next is the scary part. “The boy ran inside and told his parents, who complained to [the woman]. When she threatened to do it every time he played basketball, his parents called police…. The family has since moved out of the neighborhood.” The “D.A. spokeswoman” commented, “’The whole incident is strange.”

Uh, yeah. Sure, the lady should have complained to the parents instead of taking such drastic action, but the misdemeanor the DA filed (P.C. §314.1) would require the lady to register as a sex offender for life.

Yet, even that is not what I worry about. My concern is for the boy’s well-being. It reminded me of a case I ran across as a public defender years ago in Pasadena. An 18 year old “woman” working as a playground counselor was charged with child molestation for fondling a 12 year old boy on a swing.

I place these stories in the same file as scandals about middle and high school teachers having affairs with students.

I try to imagine myself as a boy faced with these situations. Things were certainly different way back then. Sexism was not even a word. No one’s consciousness was raised above a leer. Sex was a mystery shrouded in an enigma, barely discernible through innuendo and snickers.

If I had been exposed to any of the situations set forth above, I believe we would have told my pals about it. Indeed, I dimly remember whispered hyperbole about such subjects. Someone would claim – to the awed, but skeptical listeners – that he had seen a naked lady, or been groped by “an older” woman. There were teachers whose endowments inspired soaring fantasies, sometimes related as facts.

But try as I might, I cannot conceive of any such event which would have impelled me to rush home after school or play and tell my parents. I can’t imagine a dialogue like this:

“Morty, how was your day? What did you learn?”

“Well, mom, it was a great day. Miss Smith, the substitute, er, taught me a lot, and then at the park, a girl gave me a, whatchacallit, a hand job, and – you know, Mrs. Anderson, she, er, complained about the noise we were making, and she took off all her clothes.”

Now that I think about it, I don’t think my mother would have rushed me to the local shrink – I doubt if she even knew of one – or the principal – and definitely not the police. My mother was - well I guess the word would have been - “earthy.” She delighted in telling a story about how my brother finally beat up the neighborhood bully in front of the kid’s mother who hit her son every time my brother did.

She might have giggled, been a bit shocked, but then might have bragged about it to her friends.

I’m not saying that it was a better world back then. Consciousness raising, over all, is probably a good thing. Adam and Eve had theirs raised – the old “knowledge of good and evil” idea. We were sexist – and racist – and a lot of other evil assumptions.

But I wonder sometimes about lost innocence.

Parannoyed

Paranoia is one of the prime constants of Borenstein’s Law. The Fates and The System all too often conspire to bring our clients down despite the righteousness of their cause.

We are attuned to this defense because we understand paranoia all too well. From the very start, we have felt its force. When we enter courtrooms for trials, the shock wave of contempt directed our way is palpable. Court staff – judge, clerk, bailiff, D.A. – irked that our presence means work and stress, often a tedious trial with a recalcitrant defendant making spurious arguments that must be tolerated.

Yet, the finest rage is directed at the lawyer, not the client. We are to blame. We have failed to “control” the client, to make the case go away by accepting the generous sentence offered. And we will be reminded of it and punished for it all the time we are there.

So I get it when I’m appointed to represent Horace. He threatened to kill his girlfriend and her (probably imaginary) lover, who he thought had come through the bedroom wall and was hiding in the mattress. Horace has been pro per for months beating his weary head against the legal wall. The police, DA, judge, and his public defender had formed a cabal to help the lovers get rid of him.

Horace has made another fateful choice. In a moment of coherent thought, he’s conceded his ineptitude. In a moment of extreme mental fatigue, I accepted the case.

Like most pro pers, Horace has made a hash of all the documents in the file. They are soiled, dog-eared, a mess. I spend too much time putting it into a semblance of order.

Horace has serious problems. He’s charged with PC 422, which used to be called “terrorist threats.” That title was a bit hysterical, so the legislature changed it to “criminal threats.”

It is a crime to threaten harm, even if you don’t really intend to carry it out. If the target thinks you mean it, you’re a felon.

Horace has a bad record. In 1994, he tried a “till tap,” a grand theft of a mini-mart clerk. He got probation. Two years later, he tried it again, and this time there was a struggle. That was a robbery, and he got 2 years for it.

The prior “serious felony” carries a mandatory 5 years consec, and it is also a strike, which doubles any base term and requires doing 85% of the time before parole. His max is therefore 11 years.

At the prelim, his girlfriend Alma, the victim of the threat, testified that on Saturday, Horace had accused her of her tryst with the wall invading mattress hiding guy. Horace had been drinking, and she assured him that he was deluded. Horace then ordered her to leave, saying he would get a gun and shoot her.

Sensibly thinking to spend the night at her mother’s to let Horace sober up, Alma called her mom, who panicked and called the cops. When the cops arrived, Alma didn’t tell them about the threat, because, she testified, she didn’t want Horace arrested. But when she came back the next morning and noticed that Horace had slashed the mattress, she was angry and concerned. So she called the cops and told them about the threat from the day before. The cops came and arrested him.

Alma testified that Horace was not a bad person. He only got crazy when intoxicated, and that hadn’t happened until he lost his job and got depressed. They’d been together for 4 years and he hadn’t been abusive toward her.

I get along well with Horace. He’s been chasing his tail trying to prove tangents. I pursue his diversions, but keep my eye on the crux – the guy needs help, not prison. No history of domestic violence or abuse. He was depressed and went a little nuts. Who hasn't, in a fit of momentary anger, yelled "I could kill you" to a lover ... or a teenager ... or a client?

The calendar DA agrees. He’s been coping with Horace for months and knows he’s more cracked than bad. But his office wants the 5 year prior, so he offered low term (16 months) + 5 years. The law forbids judges from discretion. The DA has all the power and they won’t budge. The DA’s office is suffering from its own paranoia. If they are lenient with this crime and the defendant goes OJ, they might look bad.

I do some investigation, research, subpoena records from prison and his job, verify both his mental illness, drug & alcohol problem, and his work history. I get a shrink appointed. His report is no help. Horace hears voices, hallucinates when loaded, but he’s sane and if he did the act he must have had the intent to do it. Thanks.

So we go to trial. It is a short one. One day to pick a jury, one day for the DA’s case, a half day to argue. They go out at 11 and return at 12. NG.

The trial DA says, “See, I told you there was nothing to worry about. Justice prevailed.”

Sure. No problem. Just a few sleepless nights worrying about every decision. A sore neck from keeping Horace from screwing it up. Second guessing myself every inch of the way. Thinking something was going to go wrong. Hoping for the best and preparing for the worst takes it out of me. The NG is a relief, not a thrill.

Horace can get his own help. Maybe. I’m beyond help. So is The System.

A Real Noir Life

The investigator I use most often is a retired LAPD detective. I’ll call him Nate Markowitz, because the name fits his nose. Nate tells a good story, and like many of his sort, any reference is likely to trigger one. Today I’m telling Nate about the James Wayne case, when I notice a sparkle in his eye.

Nate chortles. "Did I ever tell you about Johnny Fuck Fuck?"
I tell him no, because I am certain that if I heard that name, I would remember.

"Johnny was a character who I ran into a lot in those days. He was a small time crook and sometime snitch, doing us little favors to get out of his many jams. He had Tourette’s and when he got excited everything he said was punctuated by "fuck fuck."

"Well, you mention Wallich’s Music City. It was at Hollywood and Vine. And right next to it was Stuff, a seedy bar that for some reason became an in place when I first made detective, I think it was in ‘66.

"It’s my first week at the Hollywood Division as a detective and this senior detective, Van Vleck, says to me, 'hey kid come with me, I got to make an arrest.'

"Van Vleck was one of the old timers, and I'm new so I just tag along. He’s looking for this guy who’s supposed to be a big receiver of stolen goods in Hollywood.

"We go into this little bar, Stuff, and it’s real seedy, but it’s jammed. Van Vleck goes over to the bar and asks for a particular bartender, who’s not on duty yet. Then the owner, Johnny Vera was his name, he comes over and he obviously knows Van Vleck real well.

"He invites us up to his office to wait. I follow the two of them up these winding stairs that are like hidden near the restrooms, and we enter this office. I swear, the office was like the size of one in the White House, and furnished like for a king. Right above this tiny seedy little bar.

"Johnny Vera points to his private bar, and its bigger than the one downstairs. He says, 'Drink?' Van Vleck says, 'Sure.'

"Well, we’re sipping our drinks and guys are coming in and out, Vera gives them orders, and time goes by. Then two big guys come in carrying these marble pedestals, that must have weighed twenty, thirty pounds each. There were three of them, and these wrestler looking guys set them down in the middle of the floor of the office.

"Vera says 'Ok,' and he continues to talk with Van Vleck. I don’t remember what they were talking about. I was just a kid, and I was just soaking in the atmosphere. Some time goes by.

"Then, three girls come in, each one more gorgeous than the other. And Vera nods at them, and they take off their clothes. Right there in the middle of the room.

"I don’t know what’s going to happen. I look at Van Vleck and he’s got a big shit-eating grin on his face. So, I’m wondering. There’s three of them and three of us. And my first thought is, Gee, being a detective is gonna be a lot more fun than I thought.

"Then the girls get up on the pedestals and just stand there smiling. And some guys come in with paint cans and start painting their bodies. Swirls and flowers, you know, in these da-glow colors, red, blue, green. All over their bodies.

"We’re just sitting there, I’m sipping my drink and Van Vleck and Vera are talking away, and the girls are turning around and lifting their arms and spreading their legs so the painters can get into all the nooks and crannies, and then the phone rings. Vera says to Van Vleck, 'He’s here.'

"The three of us go downstairs to the bar and the new bartender gives Van Vleck a piece of paper and we leave, go to the address on the paper, which is a boarding house on Fountain.

"Van Vleck knocks and a guy opens the door. He’s dripping wet, just out of the shower. Van Vleck grabs him by the wet hair and drags him into the room, asks him if he’s got the goods, which are a bunch of men’s suits stolen from a store.

"The guy is scared of Van Vleck. He says, 'No, I don’t have any.'
'What do you call these,' Van Vleck says, pointing to some suits in a closet.
'They’re not hot, they’re mine,' the guy says.

"Van Vleck grabs him by the throat and pulls him up from his seat, puts his nose up to the guy's and says, 'You better not be fuckin’ lyin’ to me.'
'The guy says, I’m not fuckin’ lyin.’

"Van Vleck makes a phone call and ten minutes later a uniformed cop comes in with the owner of the store, the victim of the heist. He checks out the guy’s suits and says, 'They’re not mine.'

So then Van Vleck puts his nose in the victim’s face and says, 'You better not be fuckin’ lyin’ to me.'

"The guys scared, and I have to step in because Van Vleck’s face is red.

"Finally Van Vleck stalks out, really steaming and cursing, and I follow him down the stairs. 'Where we going?'

'That fuckin’ bartender fuckin’ lied to me.'
"By the time we get back to the bar, I have Van Vleck calmed down a bit so that at least he’s not going to kill the bartender. We go into the bar and it is really jumping. Lights are flashing and music is playing and on top of the bar are the three girls dancing like go-go dancers, but they’re not in cages, they’re on top of the bar naked but painted all over and everybody’s having a good time.

"I go over to the bar and there’s Johnny Fuck Fuck, grinning at me. 'Hey, Nate, that’s somethin’ ain’t it? Fuck. Fuck.' I shrug and watch the show.

"Then Johnny Fuck Fuck whispers, 'Hey Nate, watch this.' He pulls out a piece of red cellophane and puts it up to his eye then to mine and when I look at the girl with the red & pink body, she’s naked.

"Johnny Fuck Fuck giggles and gives me a blue cellophane and then a green cellophane and they work the same with the other two girls which Johnny thinks is great. He keeps mumbling, 'Fuck fuck.'

"Some time later I ran into Johnny Fuck Fuck again at the station.

"His brother had been hired to kill someone, got a couple of hundred for it. But they guy who did the hiring was working both ends and had told the guy who was supposed to be shot about it in return for more money. Johnny’s brother went to do the deed and the supposed victim shot him. Didn’t kill him, everybody was trying to figure out if it was a case, who to arrest and such.

"And Johnny Fuck Fuck was hanging around putting in his two cents or at least his two fucks."