Are you getting tired of the whining by officials and residents of Louisiana and Florida about the disastrous results of their own greed and negligence?
I am. These deep crimson states of the deep south have long supported the oil industry and other business development over traditional concerns about the risks to the environment. Now, they moan about the clean-up defects from one side of their mouths while from the other side they bemoan the loss of oil industry jobs.
Although they consistently opposed meaningful federal regulation of businesses, and favored jobs vs environment, politicians and residents in this region have the gall to blame the federal government for failing to regulate the oil companies and for failing to clean up the mess that non-regulation created.
In fact, we citizens of the rest of the country should be enraged at the behavior and neglect of these states. Every state has a responsibility to preserve its environment resources. This is true of our parks and coastlines. It is in our best interests to do so and it is our duty to do it for the benefit of all and for future generations.
Now, Louisianians and Floridians are reaping the harvest they sowed ... oil on their shores. Shame on them.
Tuesday, June 29, 2010
Sunday, June 27, 2010
Brooklyn 7, L.A. 1.
This week, the Los Angeles Times commemorated the interleague series between the Dodgers and Yankees by printing the results of a poll of "experts" called the "all-time Dodgers, Yankees rosters."
What I found interesting was that, although the Dodgers have been in L.A. for more than a half century (having played more games in Chavez Ravine than they did in Ebbets Field), the consensus of experts was that 7 of the 8 best Dodgers who were position players were those who played (most of their careers) in Brooklyn rather than in L.A.
[HOF = Hall of Fame]
1b: Gil Hodges (1943-1963); Second on Dodgers' home run and RBI list. [not in HOF enormous injustice].
2b: Jackie Robinson (1947-1956); Averaged 95 runs in 10 seasons (refused trade to Giants, retired). [HOF]
3b: Ron Cey (1971-1987) 20 plus homers 7 times as Dodger. Great nickname: “The Penguin.”
Ss: Harold “Peewee” Reese (1940-58) Team leader in runs, #2 in hits. [HOF]
C: Roy Campanella (1948-57) 3 time NL MVP, 9 time All Star. [HOF]
CF: Duke Snider (1947-64) Team leader in HR’s, RBI’s, extra base hits. [HOF]
LF: Zack Wheat (1909-27) 2,884 hits, 1,289 runs. [HOF]
RF: Carl Furillo (1946-60) Lifetime BA .299 with 1,1910 hits, 1,58 RBI; “The Reading Rifle”.
I admit that the consensus was not unanimous. Some idiots suggested that Steve Garvey replace Hodges[!] What next, Lopes over Jackie? Okay, a fair argument for Maury Wills over Peewee and for Tommy Davis over Furillo. But that's about it. I might counter with Jim Gilliam or Billy Cox over The Penguin, if you want to play that game.
As to pitchers, they chose Koufax, Drysdale, Zach Wheat (who even predates my memory) as well as Don Sutton, Fernando, Orel. But they left out Newk and Oisk. In relief: Gagne [a steroid cheater] and Labine.
All-time owner? I'll take Rickey over O'Malley any day.
And what about Vin Scully? The all time best baseball broadcaster, who spans both eras. Wonder who's on Vin's team? Was Red Barber better than ... who are the other guys out here?
Okay, so I am biased. Sue me.
What I found interesting was that, although the Dodgers have been in L.A. for more than a half century (having played more games in Chavez Ravine than they did in Ebbets Field), the consensus of experts was that 7 of the 8 best Dodgers who were position players were those who played (most of their careers) in Brooklyn rather than in L.A.
[HOF = Hall of Fame]
1b: Gil Hodges (1943-1963); Second on Dodgers' home run and RBI list. [not in HOF enormous injustice].
2b: Jackie Robinson (1947-1956); Averaged 95 runs in 10 seasons (refused trade to Giants, retired). [HOF]
3b: Ron Cey (1971-1987) 20 plus homers 7 times as Dodger. Great nickname: “The Penguin.”
Ss: Harold “Peewee” Reese (1940-58) Team leader in runs, #2 in hits. [HOF]
C: Roy Campanella (1948-57) 3 time NL MVP, 9 time All Star. [HOF]
CF: Duke Snider (1947-64) Team leader in HR’s, RBI’s, extra base hits. [HOF]
LF: Zack Wheat (1909-27) 2,884 hits, 1,289 runs. [HOF]
RF: Carl Furillo (1946-60) Lifetime BA .299 with 1,1910 hits, 1,58 RBI; “The Reading Rifle”.
I admit that the consensus was not unanimous. Some idiots suggested that Steve Garvey replace Hodges[!] What next, Lopes over Jackie? Okay, a fair argument for Maury Wills over Peewee and for Tommy Davis over Furillo. But that's about it. I might counter with Jim Gilliam or Billy Cox over The Penguin, if you want to play that game.
As to pitchers, they chose Koufax, Drysdale, Zach Wheat (who even predates my memory) as well as Don Sutton, Fernando, Orel. But they left out Newk and Oisk. In relief: Gagne [a steroid cheater] and Labine.
All-time owner? I'll take Rickey over O'Malley any day.
And what about Vin Scully? The all time best baseball broadcaster, who spans both eras. Wonder who's on Vin's team? Was Red Barber better than ... who are the other guys out here?
Okay, so I am biased. Sue me.
Sunday, June 13, 2010
Feel No Pain
Bijou would come home from a frustrating day at work
and want to talk about it
... and talk about it.
I would come home from a frustrating day at work
and want to forget it.
So she talked
... and I listened.
Then I made a terrible mistake.
I suggested solutions for her problems.
She became enraged.
"Don't solve my problem.
Just listen to me and empathize."
I protested.
I am a lawyer,
trained to hear my clients' problems
and to solve them.
Imagine if I told my client that I empathized,
and then left the jail.
Eventually I learned to speak the language,
to sense the warning signs
that marked the beginning of the burst of emotion
that demanded attention.
Bill Clinton is credited
with mastering personal politics.
He made everyone,
especially female voters
feel as if he understood
and empathized
with their problems.
In the jargon of the time,
he felt their pain.
Barack Obama has a hard time with Clintonspeak.
His approach is more lawyerly,
less emotive.
In a crisis he will first seek facts,
then seek solutions.
The press and shallow observers slam him
for failing to show emotion
(i.e., anger) at enemies of the state
-- like BP and GM.
The media wants him to be more like an action star
swearing revenge.
Would they prefer the G.W. Bush tactic
of manipulating the overwrought emotions
of the nation following 9/11
to lead us into disastrous wars?
and want to talk about it
... and talk about it.
I would come home from a frustrating day at work
and want to forget it.
So she talked
... and I listened.
Then I made a terrible mistake.
I suggested solutions for her problems.
She became enraged.
"Don't solve my problem.
Just listen to me and empathize."
I protested.
I am a lawyer,
trained to hear my clients' problems
and to solve them.
Imagine if I told my client that I empathized,
and then left the jail.
Eventually I learned to speak the language,
to sense the warning signs
that marked the beginning of the burst of emotion
that demanded attention.
Bill Clinton is credited
with mastering personal politics.
He made everyone,
especially female voters
feel as if he understood
and empathized
with their problems.
In the jargon of the time,
he felt their pain.
Barack Obama has a hard time with Clintonspeak.
His approach is more lawyerly,
less emotive.
In a crisis he will first seek facts,
then seek solutions.
The press and shallow observers slam him
for failing to show emotion
(i.e., anger) at enemies of the state
-- like BP and GM.
The media wants him to be more like an action star
swearing revenge.
Would they prefer the G.W. Bush tactic
of manipulating the overwrought emotions
of the nation following 9/11
to lead us into disastrous wars?
Saturday, June 12, 2010
Give me libertarian or give me breath
Chutzpah is blaming the the BP oil spill on the federal government after years of insisting with equal vigor that government should not interfere with business, especially the big ones involving national security - like oil companies.
Both Left, Right and Center share responsibility for this and other crises of our time. De-regulation began in the 1970's with Jimmy Carter, accelerated under Reagan, and was embraced by Clinton, who declared that the era of big government was over.
There is grumbling on the Left because Obama's style doesn't permit him to rant and rave. He has not threatened to nationalize the oil, auto, coal, financial, or insurance industry as much as his supporters would wish him to do it. This is the same Left that called Bush an immature cowboy for his ravings about terrorism and macho threats that alienated our allies and independent nations.
The Right also blames Obama for the recession, for bailing out companies whose failure would have destroyed our economy for fifty years rather than the time it will take to dig out of the mess they left for him.
The Right laid the groundwork for the worst epidemic of corporate incompetence and greed since 1929. From Exxon to Enron to Goldman Sachs, from General Motors to Toyota, from coal mines to oil rigs, big government cannot compete with big business for gross negligence, fraud, or greed.
Bush / Cheney produced an era of incompetent and corrupt government that challenged the Harding administration of the early 1920's - which also permitted big oil interests to buy the government. In Afghanistan and Iraq, in New Orleans, in Texas, on the coastlines, on Wall Street, government policies resulted in disaster.
Every crisis Obama has had to deal with for the past year and a half has had roots deep in the past. The truth is that there was nothing more he could have done in the time he had to forestall or even mitigate the damage.
Calls for kicking ass are like cries to shoot first and ask questions later. It is akin to the traditional witch hunts and scapegoating that accompanies every crisis.
Both Left, Right and Center share responsibility for this and other crises of our time. De-regulation began in the 1970's with Jimmy Carter, accelerated under Reagan, and was embraced by Clinton, who declared that the era of big government was over.
There is grumbling on the Left because Obama's style doesn't permit him to rant and rave. He has not threatened to nationalize the oil, auto, coal, financial, or insurance industry as much as his supporters would wish him to do it. This is the same Left that called Bush an immature cowboy for his ravings about terrorism and macho threats that alienated our allies and independent nations.
The Right also blames Obama for the recession, for bailing out companies whose failure would have destroyed our economy for fifty years rather than the time it will take to dig out of the mess they left for him.
The Right laid the groundwork for the worst epidemic of corporate incompetence and greed since 1929. From Exxon to Enron to Goldman Sachs, from General Motors to Toyota, from coal mines to oil rigs, big government cannot compete with big business for gross negligence, fraud, or greed.
Bush / Cheney produced an era of incompetent and corrupt government that challenged the Harding administration of the early 1920's - which also permitted big oil interests to buy the government. In Afghanistan and Iraq, in New Orleans, in Texas, on the coastlines, on Wall Street, government policies resulted in disaster.
Every crisis Obama has had to deal with for the past year and a half has had roots deep in the past. The truth is that there was nothing more he could have done in the time he had to forestall or even mitigate the damage.
Calls for kicking ass are like cries to shoot first and ask questions later. It is akin to the traditional witch hunts and scapegoating that accompanies every crisis.
Tuesday, May 18, 2010
SCOTUS TWINS
Observations about the latest SCOTUS rulings:
In one case, the court found LWOPP sentences for juvenile violative of 8th Amendment (cruel & unusual punishment) except for murder. In another case, the court upheld a federal law authorizing extended civil commitments of sex offenders based on threats of future danger to children based on proof of propensities to commit sex crimes.
For those interested in the soap opera of shifting alliances on the court, the usual suspects dissented in both case: Scalia and Thomas. In one case, Roberts joined the majority holding but not its rationale. In the other, Alito did the same. Kennedy wrote the majority (5-4) opinion in one, Bryer the other (7-2).
In the debate of left vs. right, so-called “libertarians” immediately decried both rulings. One interfered with states eliminating vicious teenagers. The other upheld a civil law based on a premise that was not literally found in the Constitution. Conservatives will rage about reference in the court’s opinion to international standards of morality in sentencing.
The left is likely to approve the juvenile decision but might be (at least should be) troubled that the court was not troubled by a law that permits lengthy involuntary incarceration based on unreliable medical predictions of future dangerousness.
As Solicitor Gen, court nominee Kagan had argued support for the federal law, thus making new enemies, or at least reinforcing the enmity of her opposition.
In practice, neither case has much impact in California. The vast majority of our vicious juveniles with LWOPP sentences are there for murders. Only a few crimes (eg. kidnap for ransom) authorize that sentence and resentencing to life with possibility of parole or a sentence of years will pose no great barrier to a virtual life sentence. Adding up of consecutive sentences including the many enhancements provided by the criminal statutes can result in sentences like: 184 years, of which the criminal must serve 85%.
California has a law analagous to the federal civil commitment to extend incarceration of sexual offenders. Our sexually violent predator (SVP) law is being applied every day in our courts.
In one case, the court found LWOPP sentences for juvenile violative of 8th Amendment (cruel & unusual punishment) except for murder. In another case, the court upheld a federal law authorizing extended civil commitments of sex offenders based on threats of future danger to children based on proof of propensities to commit sex crimes.
For those interested in the soap opera of shifting alliances on the court, the usual suspects dissented in both case: Scalia and Thomas. In one case, Roberts joined the majority holding but not its rationale. In the other, Alito did the same. Kennedy wrote the majority (5-4) opinion in one, Bryer the other (7-2).
In the debate of left vs. right, so-called “libertarians” immediately decried both rulings. One interfered with states eliminating vicious teenagers. The other upheld a civil law based on a premise that was not literally found in the Constitution. Conservatives will rage about reference in the court’s opinion to international standards of morality in sentencing.
The left is likely to approve the juvenile decision but might be (at least should be) troubled that the court was not troubled by a law that permits lengthy involuntary incarceration based on unreliable medical predictions of future dangerousness.
As Solicitor Gen, court nominee Kagan had argued support for the federal law, thus making new enemies, or at least reinforcing the enmity of her opposition.
In practice, neither case has much impact in California. The vast majority of our vicious juveniles with LWOPP sentences are there for murders. Only a few crimes (eg. kidnap for ransom) authorize that sentence and resentencing to life with possibility of parole or a sentence of years will pose no great barrier to a virtual life sentence. Adding up of consecutive sentences including the many enhancements provided by the criminal statutes can result in sentences like: 184 years, of which the criminal must serve 85%.
California has a law analagous to the federal civil commitment to extend incarceration of sexual offenders. Our sexually violent predator (SVP) law is being applied every day in our courts.
Sunday, May 16, 2010
Short, fat and ugly: You're under arrest!
They got grubby little fingers
And dirty little minds
They're gonna get you every time
Well, I don't want no short people
Don't want no short people
Don't want no short people
'Round here.
“Short People” By Randy Newman
Today’s New York Times reports that some economists argue that short people are more apt to become criminals. If the poor shrimp is also fat and ugly, look out. He is more likely to fail in school, romance, and business.
You may be skeptical about this latest study, call it junk, point to it as just more evidence that the term social “science” is absurd. Support for this view may be found in the details of these studies. For instance, the economists examined records from the last three centuries to conclude that “shorter men are 20 to 30 percent more likely to end up in prison than their taller counterparts, and that obesity and physical attractiveness are linked to crime.”
Although they found from 19th century prison records that “increased body weight was associated with a lower risk of crime,” the trend has reversed in our time. Now, “being overweight is linked to a higher risk of crime.” According to the Times article, the studies attribute this to the difference in the labor market — from manufacturing which favored strength and endurance, to service jobs which values attractiveness and self-esteem.
It starts in school, where shorter students get lower grades, have more behavior problems (seeking attention?) and participate less in clubs and sports, which leads to fewer social connections. From birth, medicine correlates development with size – height, weight — and nutrition, general physical and mental health, resistance to disease are all pinned to these issues. Poverty has long been associated with physical disabilities.
On the one hand, you may say, “Duh!” You need studies to figure out that socially scorned children become failures in life? On the other hand, you may be appalled by the echo of Social Darwinism in the claim, something that history teaches us is a slippery slope leading to racism, Nazi ideology, and genetic preferencing.
Another study found that Americans are getting shorter and fatter compared with our history and with other industrial nations. Some speculate that our deficient health care system (compared with Europe’s) is the culprit. For others, the blame is placed on — guess what — immigration.
Yes ...
Give me your tired, your poor,
Your fat, Your short, Your ugly,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
[apologies to Emma Lazarus]
Findings that obesity, unattractiveness, and diminutive stature are disadvantages in the labor market should be no surprise. The scholars are quick to admit that they cannot discern a “cause / effect” relation between the two. The same can be said of the link to crime, although it demands no leap of logic to make the jump.
My own experience in my life of crime doesn’t really support the thesis. I cannot generally conclude that my clients have been fatter, uglier, or shorter than the average. Actually, they can more accurately accuse me of those traits. Lately, I have found that obesity has thrived among jurors, prosecutors, and even some defense lawyers.
Will there be a time when the criminal law’s arsenal of social sciences which already include many dubious theories and prejudices adds physical attributes to the available defenses and excuses? Will prisons become fat farms? Perhaps botox, liposuction, and spine stretching should be added to rehabilitation techniques.
Now, that might really help the economy.
And dirty little minds
They're gonna get you every time
Well, I don't want no short people
Don't want no short people
Don't want no short people
'Round here.
“Short People” By Randy Newman
Today’s New York Times reports that some economists argue that short people are more apt to become criminals. If the poor shrimp is also fat and ugly, look out. He is more likely to fail in school, romance, and business.
You may be skeptical about this latest study, call it junk, point to it as just more evidence that the term social “science” is absurd. Support for this view may be found in the details of these studies. For instance, the economists examined records from the last three centuries to conclude that “shorter men are 20 to 30 percent more likely to end up in prison than their taller counterparts, and that obesity and physical attractiveness are linked to crime.”
Although they found from 19th century prison records that “increased body weight was associated with a lower risk of crime,” the trend has reversed in our time. Now, “being overweight is linked to a higher risk of crime.” According to the Times article, the studies attribute this to the difference in the labor market — from manufacturing which favored strength and endurance, to service jobs which values attractiveness and self-esteem.
It starts in school, where shorter students get lower grades, have more behavior problems (seeking attention?) and participate less in clubs and sports, which leads to fewer social connections. From birth, medicine correlates development with size – height, weight — and nutrition, general physical and mental health, resistance to disease are all pinned to these issues. Poverty has long been associated with physical disabilities.
On the one hand, you may say, “Duh!” You need studies to figure out that socially scorned children become failures in life? On the other hand, you may be appalled by the echo of Social Darwinism in the claim, something that history teaches us is a slippery slope leading to racism, Nazi ideology, and genetic preferencing.
Another study found that Americans are getting shorter and fatter compared with our history and with other industrial nations. Some speculate that our deficient health care system (compared with Europe’s) is the culprit. For others, the blame is placed on — guess what — immigration.
Yes ...
Give me your tired, your poor,
Your fat, Your short, Your ugly,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
[apologies to Emma Lazarus]
Findings that obesity, unattractiveness, and diminutive stature are disadvantages in the labor market should be no surprise. The scholars are quick to admit that they cannot discern a “cause / effect” relation between the two. The same can be said of the link to crime, although it demands no leap of logic to make the jump.
My own experience in my life of crime doesn’t really support the thesis. I cannot generally conclude that my clients have been fatter, uglier, or shorter than the average. Actually, they can more accurately accuse me of those traits. Lately, I have found that obesity has thrived among jurors, prosecutors, and even some defense lawyers.
Will there be a time when the criminal law’s arsenal of social sciences which already include many dubious theories and prejudices adds physical attributes to the available defenses and excuses? Will prisons become fat farms? Perhaps botox, liposuction, and spine stretching should be added to rehabilitation techniques.
Now, that might really help the economy.
Friday, May 14, 2010
Stupid Criminal Tricks
The reports about the Times Square bomber's incompetence reminded me of my many clients who have done similarly dumb things in their frantic attempts to foul up their lives ... and my chances of winning their cases.
Example: A client entered a McDonald's, ordered a Big Mac, removed a twenty from his wallet. When the register was opened, he pulled a gun, took a handful of cash and fled ... leaving his wallet on the counter. Later, while police were writing the info from the ID in the wallet, he returned, wishing to claim his lost wallet and was arrested.
Some conservatives have withheld acclaim for the capture of Shahzad because of his ineptitude which ably abetted his pursuers. What the critics igore is that his flaws are not rare. They are common among wrongdoers, whether from nerves, fear, or a self-destructive impulse (see introduction to Borenstein's Law for a more thorough explanation of the phenomenon).
It is this same trait that impels captured criminals to talk freely and willingly to authorities even after warned that "... anything you say may be used against you ..."
Example: In a recent case, a D.A. provides a CD to me with a twinkle in her eye. "You're gonna love this," she chuckles. I listened and chuckled (ironically).
It was a recording of a phone call made from the jail to my client's friend (who later became a co-defendant). My client's voice is clearly heard making a number of incriminating statements in a confidential tone, some whispered, some in street slang, but all clearly inculpating.
Periodically, he is heard to pause while a recorded voice interrupts his conversation with the following: "Warning: calls from the jail may be monitored for security reasons ...." After hearinjg each loud warning, my client simply continues his admission.
Example: A client entered a McDonald's, ordered a Big Mac, removed a twenty from his wallet. When the register was opened, he pulled a gun, took a handful of cash and fled ... leaving his wallet on the counter. Later, while police were writing the info from the ID in the wallet, he returned, wishing to claim his lost wallet and was arrested.
Some conservatives have withheld acclaim for the capture of Shahzad because of his ineptitude which ably abetted his pursuers. What the critics igore is that his flaws are not rare. They are common among wrongdoers, whether from nerves, fear, or a self-destructive impulse (see introduction to Borenstein's Law for a more thorough explanation of the phenomenon).
It is this same trait that impels captured criminals to talk freely and willingly to authorities even after warned that "... anything you say may be used against you ..."
Example: In a recent case, a D.A. provides a CD to me with a twinkle in her eye. "You're gonna love this," she chuckles. I listened and chuckled (ironically).
It was a recording of a phone call made from the jail to my client's friend (who later became a co-defendant). My client's voice is clearly heard making a number of incriminating statements in a confidential tone, some whispered, some in street slang, but all clearly inculpating.
Periodically, he is heard to pause while a recorded voice interrupts his conversation with the following: "Warning: calls from the jail may be monitored for security reasons ...." After hearinjg each loud warning, my client simply continues his admission.
Wednesday, May 05, 2010
Goodnight, Miranda
The current controversy about providing Miranda warnings to “terrorist” suspects tickles me. I have been dealing with it for more than forty years. It is one of the most misunderstood rules and has been controversial since it was issued, in 1966.
But the outcry about the possibility of terror suspects having and demanding their rights under the Constitution before providing intelligence that could lead to arrests of other plotters and finding evidence of future crimes is rampant. The amount of misinformation and hysteria is amazing.
This is Yahoo! search screen is a small sample:
"782,136 results for “miranda warning terrorist…:
"CNSNews.com - Holder: Miranda Warnings for Terrorists Won't ... Holder: Miranda Warnings for Terrorists Won't Harm Interrogations ... If the suspected terrorist IS AN AMERICAN CITIZEN, miranda and right to an attorney are ..."
"CNSNews.com - Reading Miranda Rights to Terrorists Is 'Crazy' and 'Stupid,' Say GOP Congressmen ... Miranda warnings were mandated by a U.S. Supreme Court decision that said domestic law ... "
"Will terrorists be given Miranda warnings? Saturday, February ... matter of terrorists and Miranda warnings (and by extension the trying of these sub ..." lodinews.com
"Miranda Rights for Terrorists. BY Stephen F. Hayes. June 10, 2009 2:05 PM ... many Americans are familiar with the Miranda warning - so named because of the ..." weeklystandard.com
"Jo's Cafe " Miranda for Terrorists? Miranda for Terrorists? Tuesday, 27 January 2009, 5:30. As Dear Leader Obama closes Gitmo ... expressed about rights for these terrorists under the Miranda Warning. ..." joscafe.com
"Conservative View Point, Political Blog, Conservative ... Terrorist Miranda Warnings. Posted by Bill Patchett on Saturday, November 14, 2009 12:44: ... If we read these terrorist Miranda warnings we would have obtained ..." aconservativeviewpoint.blogtownhall.com
"Obama and Miranda Warnings - The Hill's Pundits Blog ... Obama and Miranda Warnings. By Ron Christie - 06/11/09 09:56 AM ET ... him that terrorist suspects were being read Miranda warnings prior to interrogation. ..." thehill.com/blogs
"DOJ Confirms FBI is Reading Miranda Rights to Detainees in ... the FBI is reading Miranda rights to terrorist suspects in Afghanistan: "There has been ... Miranda warnings. In September 2008, when McCain-Palin pulled ahead of Obama..." dailyradar.com."
Without hysteria or hyperbole, these are the facts as I know them from forty years of criminal practice:
The Miranda holding was intended to enforce the Fifth Amendment’s command that no person shall be compelled to give evidence against himself.
Courts long ago decided that any admission or confession of guilt by a suspect must be shown to be voluntary rather than coerced. The landmark case for this rule is Bram v. U.S., decided as far back as 1897.
In the first half of the 20th century, American courts grappled with the problem of coerced confessions. Common police tactics throughout the country ranged from the less than subtle “rubber hose” to “the third degree” and all the now familiar psychological techniques that border on torture.
Courts responded with occasional but ineffectual rulings that sought to deter such police misconduct until in 1966, the U.S. Supreme Court finally issued its Miranda decision, which required police to warn suspects in custody that (1) they have a right to remain silent, (2) that anything they say can be used against them, (3) that they have a right to have an attorney present before questioning, (4) that if they asserted the right to remain silent, no further questioning could be done. Failure to comply with the rule meant that any statement obtained in violation would be inadmissable in the suspect’s trial (an expansion of the exclusionary rule that courts had imposed for violations of the 4th Amendment’s prohibition against unreasonable searches).
The holding met hysterical opposition as soon as it was issued. Police advocates cried that it would tie their hands, prevent them from “solving” cases, free the guilty. Conservative legal scholars criticized the Warren court’s policy of expanding the exclusionary rule — punishing the society for the “constable’s blunders.”
At the time, more competent and less paranoid law enforcement authorities pointed out that the ruling would be beneficial to police work, demanding that detectives continue to investigate, finding solid evidence rather than lazily relying on unreliable coerced confessions to make their cases.
However, the golden age of the Warren court passed quickly. New “conservative” appointees over the next forty years narrowed the ruling in many ways. Among these changes: narrowing the definition of “custody” and “interrogation”; broadening the permissive form of the advisement. The Supreme Court held that detectives can receive statements even if Miranda is not followed. The prosecutor can’t use the statement in its case, but if the defendant testifies contrary to his statement, it can then be used to impeach him.
Equally important, the Supreme Court has refused to demand a high degree of proof in this area, turning back calls for audio or video taping of the interrogation process to insure its fairness.
Of course, the major defect in the law has always been apparent to anyone within the system. Before Miranda, police were able to coerce confessions and then lie about it in court. After Miranda, they were still able to lie about that and also lie about whether they advised the suspect of rights.
Two important limitations to the Miranda rule are worth mentioning. First, the Supreme Court carved out what it calls “the public safety exception”. In the Quarles case in 1984, the Court held that police could continue to question a suspect without advisement if there was an imminent threat to the public. There, a gun was loose; in other cases it has been explosives, dangerous contraband. The Court did the same in the 4th Amendment (search and seizure) context, creating an warrant exception for “exigent circumstances”.
Beyond all the law, which clearly present few obstacles to questioning of terrorist suspects, is the aspect of human nature that we in the system know all too well. The fact is that criminal suspects in general and people who commit crimes for political motives in particular are more than willing to talk — without counsel or against advice of counsel.
But the outcry about the possibility of terror suspects having and demanding their rights under the Constitution before providing intelligence that could lead to arrests of other plotters and finding evidence of future crimes is rampant. The amount of misinformation and hysteria is amazing.
This is Yahoo! search screen is a small sample:
"782,136 results for “miranda warning terrorist…:
"CNSNews.com - Holder: Miranda Warnings for Terrorists Won't ... Holder: Miranda Warnings for Terrorists Won't Harm Interrogations ... If the suspected terrorist IS AN AMERICAN CITIZEN, miranda and right to an attorney are ..."
"CNSNews.com - Reading Miranda Rights to Terrorists Is 'Crazy' and 'Stupid,' Say GOP Congressmen ... Miranda warnings were mandated by a U.S. Supreme Court decision that said domestic law ... "
"Will terrorists be given Miranda warnings? Saturday, February ... matter of terrorists and Miranda warnings (and by extension the trying of these sub ..." lodinews.com
"Miranda Rights for Terrorists. BY Stephen F. Hayes. June 10, 2009 2:05 PM ... many Americans are familiar with the Miranda warning - so named because of the ..." weeklystandard.com
"Jo's Cafe " Miranda for Terrorists? Miranda for Terrorists? Tuesday, 27 January 2009, 5:30. As Dear Leader Obama closes Gitmo ... expressed about rights for these terrorists under the Miranda Warning. ..." joscafe.com
"Conservative View Point, Political Blog, Conservative ... Terrorist Miranda Warnings. Posted by Bill Patchett on Saturday, November 14, 2009 12:44: ... If we read these terrorist Miranda warnings we would have obtained ..." aconservativeviewpoint.blogtownhall.com
"Obama and Miranda Warnings - The Hill's Pundits Blog ... Obama and Miranda Warnings. By Ron Christie - 06/11/09 09:56 AM ET ... him that terrorist suspects were being read Miranda warnings prior to interrogation. ..." thehill.com/blogs
"DOJ Confirms FBI is Reading Miranda Rights to Detainees in ... the FBI is reading Miranda rights to terrorist suspects in Afghanistan: "There has been ... Miranda warnings. In September 2008, when McCain-Palin pulled ahead of Obama..." dailyradar.com."
Without hysteria or hyperbole, these are the facts as I know them from forty years of criminal practice:
The Miranda holding was intended to enforce the Fifth Amendment’s command that no person shall be compelled to give evidence against himself.
Courts long ago decided that any admission or confession of guilt by a suspect must be shown to be voluntary rather than coerced. The landmark case for this rule is Bram v. U.S., decided as far back as 1897.
In the first half of the 20th century, American courts grappled with the problem of coerced confessions. Common police tactics throughout the country ranged from the less than subtle “rubber hose” to “the third degree” and all the now familiar psychological techniques that border on torture.
Courts responded with occasional but ineffectual rulings that sought to deter such police misconduct until in 1966, the U.S. Supreme Court finally issued its Miranda decision, which required police to warn suspects in custody that (1) they have a right to remain silent, (2) that anything they say can be used against them, (3) that they have a right to have an attorney present before questioning, (4) that if they asserted the right to remain silent, no further questioning could be done. Failure to comply with the rule meant that any statement obtained in violation would be inadmissable in the suspect’s trial (an expansion of the exclusionary rule that courts had imposed for violations of the 4th Amendment’s prohibition against unreasonable searches).
The holding met hysterical opposition as soon as it was issued. Police advocates cried that it would tie their hands, prevent them from “solving” cases, free the guilty. Conservative legal scholars criticized the Warren court’s policy of expanding the exclusionary rule — punishing the society for the “constable’s blunders.”
At the time, more competent and less paranoid law enforcement authorities pointed out that the ruling would be beneficial to police work, demanding that detectives continue to investigate, finding solid evidence rather than lazily relying on unreliable coerced confessions to make their cases.
However, the golden age of the Warren court passed quickly. New “conservative” appointees over the next forty years narrowed the ruling in many ways. Among these changes: narrowing the definition of “custody” and “interrogation”; broadening the permissive form of the advisement. The Supreme Court held that detectives can receive statements even if Miranda is not followed. The prosecutor can’t use the statement in its case, but if the defendant testifies contrary to his statement, it can then be used to impeach him.
Equally important, the Supreme Court has refused to demand a high degree of proof in this area, turning back calls for audio or video taping of the interrogation process to insure its fairness.
Of course, the major defect in the law has always been apparent to anyone within the system. Before Miranda, police were able to coerce confessions and then lie about it in court. After Miranda, they were still able to lie about that and also lie about whether they advised the suspect of rights.
Two important limitations to the Miranda rule are worth mentioning. First, the Supreme Court carved out what it calls “the public safety exception”. In the Quarles case in 1984, the Court held that police could continue to question a suspect without advisement if there was an imminent threat to the public. There, a gun was loose; in other cases it has been explosives, dangerous contraband. The Court did the same in the 4th Amendment (search and seizure) context, creating an warrant exception for “exigent circumstances”.
Beyond all the law, which clearly present few obstacles to questioning of terrorist suspects, is the aspect of human nature that we in the system know all too well. The fact is that criminal suspects in general and people who commit crimes for political motives in particular are more than willing to talk — without counsel or against advice of counsel.
Thursday, April 29, 2010
Two Lives
Two men died recently. Their pictures depict similar looking men, both appear to be gentle elderly men. Both were born in Europe and left after surviving World War II. But the circumstances of their survival couldn't have been more different, the lives they subsequently led were opposites, and the vast differences in their lives are notable and deserving of memory.
Harry Drexler, the father of dear friends, passed away recently. His life was an admirable one, overcoming enormous obstacles to thrive in America. He should be remembered as a much loved and admired family man.
The death of a man named Paul Shaefer was reported today in the Los Angeles Times. His life was a despicable one, taking opportunities to victimize and damage human beings. He should be remembered, if at all, as a monster.
These are their obituaries as each appeared in the Los Angeles Times.
Harry B. Drexler, June 8th, 1919 - April 23, 2010of North Hollywood California, passed away Friday April 23, 2010.
Harry Drexler was born in Poland, on June 8th 1919. Harry miraculously survived the Holocaust while almost all of his family perished. Harry was the devoted husband of Rena Drexler for 63 years, the father of David Drexler and Nina Guttman, grandfather of Jonathan and Justin Drexler, Leora Lang and Elana Guttman, and great-grandfather of Shai and Gabriel Lang.
After the War, he met Rena, a survivor of Auschwitz concentration camp, in Germany. They married and immigrated to the United States in 1951.
In 1957, Harry and Rena opened Drexler's Delicatessen, the first kosher deli in the San Fernando Valley. Drexler's Deli became a famous landmark in North Hollywood, with Harry and Rena serving as pillars in the growing Jewish Community.
Harry worked tirelessly, every day, except the Sabbath, as a butcher, providing for his family and serving the needs of his customers and community. With a strong work ethic, and unwavering family values, Harry successfully achieved the American Dream and built a strong foundation for his family. Harry always cherished his family and the traditions of the Jewish faith.
He was grateful for the freedom, liberty and opportunities in America. He deeply loved his Dodgers, Lakers and America.Harry will be fondly remembered as a man of few words, with a big heart. He was the rock-solid anchor of his family and community.
Schaefer immigrated to Chile from his native Germany in 1961 and started Colonia Dignidad, or Dignity Colony, a strictly regimented enclave 210 miles south of Santiago that was home to several hundred Germans and Chileans.
According to witnesses' testimony in court documents, Schaefer allowed Pinochet's security forces to operate a clandestine prison on the grounds where they detained, tortured and executed dissidents during the 1973-1990 military dictatorship.
Colony members say he ruled them cruelly as well. Married couples were forced to live apart, and children were separated from parents. Residents were prevented from leaving. Those who angered Schaefer were subject to electric shocks, high doses of tranquilizers and long periods of isolation.
Many "became real slaves of Schaefer, like robots dedicated only to obey his orders and not displease him," members said in a newspaper ad they took out in 2006 acknowledging human rights abuses at the colony and asking for forgiveness. The colony is now called Villa Baviera.There were also dozens of allegations of child molestation, leading Schaefer to flee the country in 1997. He was arrested in neighboring Argentina in 2005 and extradited back to Chile the same year.
Schaefer was convicted in 2006 of sexually abusing 20 children who attended the colony's school and clinic. He was sentenced to 20 years, plus three additional years for an illegal weapons conviction.
In two separate cases in 2008, Schaefer received more prison time for the torture of seven colony residents and for the fatal poisoning of a renegade security agent during the dictatorship.
After his World War II service, Schaefer became an evangelical preacher. He fled Germany after being accused of molesting boys at the orphanage he ran.
Harry Drexler, the father of dear friends, passed away recently. His life was an admirable one, overcoming enormous obstacles to thrive in America. He should be remembered as a much loved and admired family man.
The death of a man named Paul Shaefer was reported today in the Los Angeles Times. His life was a despicable one, taking opportunities to victimize and damage human beings. He should be remembered, if at all, as a monster.These are their obituaries as each appeared in the Los Angeles Times.
Harry B. Drexler, June 8th, 1919 - April 23, 2010of North Hollywood California, passed away Friday April 23, 2010.
Harry Drexler was born in Poland, on June 8th 1919. Harry miraculously survived the Holocaust while almost all of his family perished. Harry was the devoted husband of Rena Drexler for 63 years, the father of David Drexler and Nina Guttman, grandfather of Jonathan and Justin Drexler, Leora Lang and Elana Guttman, and great-grandfather of Shai and Gabriel Lang.
After the War, he met Rena, a survivor of Auschwitz concentration camp, in Germany. They married and immigrated to the United States in 1951.
In 1957, Harry and Rena opened Drexler's Delicatessen, the first kosher deli in the San Fernando Valley. Drexler's Deli became a famous landmark in North Hollywood, with Harry and Rena serving as pillars in the growing Jewish Community.
Harry worked tirelessly, every day, except the Sabbath, as a butcher, providing for his family and serving the needs of his customers and community. With a strong work ethic, and unwavering family values, Harry successfully achieved the American Dream and built a strong foundation for his family. Harry always cherished his family and the traditions of the Jewish faith.
He was grateful for the freedom, liberty and opportunities in America. He deeply loved his Dodgers, Lakers and America.Harry will be fondly remembered as a man of few words, with a big heart. He was the rock-solid anchor of his family and community.
And this is the obituary of the other man:
Paul Schaefer, a former Nazi Luftwaffe medic who founded a secretive, commune-like colony of German immigrants in Chile, died of heart failure Saturday in a Chilean prison where he was serving time for child molestation and human rights abuses dating to the dictatorship of Gen. Augusto Pinochet. He was 89.
Schaefer immigrated to Chile from his native Germany in 1961 and started Colonia Dignidad, or Dignity Colony, a strictly regimented enclave 210 miles south of Santiago that was home to several hundred Germans and Chileans.
According to witnesses' testimony in court documents, Schaefer allowed Pinochet's security forces to operate a clandestine prison on the grounds where they detained, tortured and executed dissidents during the 1973-1990 military dictatorship.
Colony members say he ruled them cruelly as well. Married couples were forced to live apart, and children were separated from parents. Residents were prevented from leaving. Those who angered Schaefer were subject to electric shocks, high doses of tranquilizers and long periods of isolation.
Many "became real slaves of Schaefer, like robots dedicated only to obey his orders and not displease him," members said in a newspaper ad they took out in 2006 acknowledging human rights abuses at the colony and asking for forgiveness. The colony is now called Villa Baviera.There were also dozens of allegations of child molestation, leading Schaefer to flee the country in 1997. He was arrested in neighboring Argentina in 2005 and extradited back to Chile the same year.
Schaefer was convicted in 2006 of sexually abusing 20 children who attended the colony's school and clinic. He was sentenced to 20 years, plus three additional years for an illegal weapons conviction.
In two separate cases in 2008, Schaefer received more prison time for the torture of seven colony residents and for the fatal poisoning of a renegade security agent during the dictatorship.
After his World War II service, Schaefer became an evangelical preacher. He fled Germany after being accused of molesting boys at the orphanage he ran.
Another DNA reversal
NY man wrongly convicted of killing woman in 1988 is cleared by DNA evidence, goes free.
BEN DOBBIN, Associated Press Writer
April 28 2010, 2:47 PM PDT
ROCHESTER, N.Y. (AP) — A former truck driver who spent nearly 19 years behind bars for a 1988 slaying he didn't commit walked free Wednesday after DNA testing exonerated him and instead pointed to a man who strangled a 4-year-old girl in 1994.
BEN DOBBIN, Associated Press Writer
April 28 2010, 2:47 PM PDT
ROCHESTER, N.Y. (AP) — A former truck driver who spent nearly 19 years behind bars for a 1988 slaying he didn't commit walked free Wednesday after DNA testing exonerated him and instead pointed to a man who strangled a 4-year-old girl in 1994.
Sunday, April 25, 2010
Arizona's Immigration Law: fascist or business as usual?
Arizona’s new law (SB 1070) which, among other things, authorizes detention and questioning of suspected illegal aliens, is a political hot potato.
The law which has the overwhelming popular support of Arizona citizens has been labeled as fascist and Nazi by non-constitutional scholars such as Keith Olbermann and Cardinal Mahoney. "Let me see your papers," cable comic Jon Stewart accurately recalls, was the familiar chilling phrase repeated in all those black and white movies of the 1940's that depicted Gestapo inquiries inevitably leading to concentration camps.
The other side of the argument, represented by equally hyperbolic, but openly xenophobic Fox commentators and the Arizona governor, is that this measure is needed because of a "dire emergency" in the state.
The porous border with a near failed drug state is intolerable, dangerous to Arizonans, especially in these fragile economic times of high unemployment and limited government resources.
[As a footnote, I am currently re-reading Barbara Tuchman’s "The Zimmermann Telegram", which summarizes U.S. relations with Mexico circa 1916, when President Wilson sent General Pershing and thousands of U.S. soldiers in a "punitive expedition" to capture or kill General Pancho Villa, after his soldiers raided a New Mexico border town and killed American citizens. Mexico, it seems, was as unstable and poor as it is a hundred years later.]
Adversaries on either side display ignorance of the current state of the law and the demands of our Constitution as they are interpreted by our courts. In the following post, I am going to try to calm the waters a bit, while showing what my legal training leads me to believe is the basic problem with this kind of law.
Note: I’m going to use quotes to denote language of the statute and cases; I’m going to use italics to denote words or phrases that need further definition. Notice how vague these terms of art are, and how much leeway their vagueness gives to police and the courts in their enforcement.
First, these are excerpts of the law, which is titled: "Support Our Law Enforcement and Safe Neighborhoods Act." [Now, who can oppose that?]
"B. FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON.
"E. A LAW ENFORCEMENT OFFICER, WITHOUT A WARRANT, MAY ARREST A PERSON IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE PERSON HAS COMMITTED ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES.
"...NOTWITHSTANDING ANY OTHER LAW, A PEACE OFFICER MAY LAWFULLY STOP ANY PERSON WHO IS OPERATING A MOTOR VEHICLE IF THE OFFICER HAS REASONABLE SUSPICION TO BELIEVE THE PERSON IS IN VIOLATION OF ANY CIVIL TRAFFIC LAW AND THIS SECTION.
"F. For the purposes of this section:
"A. IT IS UNLAWFUL FOR AN OCCUPANT OF A MOTOR VEHICLE THAT IS STOPPED ON A STREET, ROADWAY OR HIGHWAY TO ATTEMPT TO HIRE OR HIRE AND PICK UP PASSENGERS FOR WORK AT A DIFFERENT LOCATION IF THE MOTOR VEHICLE BLOCKS OR IMPEDES THE NORMAL MOVEMENT OF TRAFFIC.
"B. IT IS UNLAWFUL FOR A PERSON TO ENTER A MOTOR VEHICLE THAT IS STOPPED ON A STREET, ROADWAY OR HIGHWAY IN ORDER TO BE HIRED BY AN OCCUPANT OF THE MOTOR VEHICLE AND TO BE TRANSPORTED TO WORK AT A DIFFERENT LOCATION IF THE MOTOR VEHICLE BLOCKS OR IMPEDES THE NORMAL MOVEMENT OF TRAFFIC.
"C. IT IS UNLAWFUL FOR A PERSON WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES AND WHO IS AN UNAUTHORIZED ALIEN TO KNOWINGLY APPLY FOR WORK, SOLICIT WORK IN A PUBLIC PLACE OR PERFORM WORK AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR IN THIS STATE.
"Impounding a vehicle is authorized if:
"... 4. THE PERSON IS IN VIOLATION OF A CRIMINAL OFFENSE AND IS TRANSPORTING, MOVING, CONCEALING, HARBORING OR SHIELDING OR ATTEMPTING TO TRANSPORT, MOVE, CONCEAL, HARBOR OR SHIELD AN ALIEN IN THIS STATE IN A VEHICLE IF THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE FACT THAT THE ALIEN HAS COME TO, HAS ENTERED OR REMAINS IN THE UNITED STATES IN VIOLATION OF LAW."
Even without this statute, our current law is generous to police in their contacts with suspicious people. These are the rules as reflected in the language and reasoning of cases from the U.S. Supreme Court and high state courts:
1. Police can ask anyone for identification.
Law enforcement officers do not violate the Fourth Amendment in approaching an individual on the street or in another public place and asking if he is willing to identify himself. (Florida v. Royer, U.S. Supreme Court, (1983) .)
2. If Police have cause to stop a vehicle [eg,any traffic violation], they can ask the passenger [who has done nothing suspicious] for his identification.
Once the privacy of a car has been intruded upon by a lawful traffic stop, the courts find no reason to expand the rights of passengers in vehicles beyond those afforded travelers in airports; employees in garment factories; or fishermen on public streets. All can be asked for identification.
3. But what if a person refuses to provide identification? May he be detained [defined as prevented from departing] further for identification purposes?
The lawful request by a police officer of anyone on the street for identification does not in and of itself turn the otherwise consensual encounter into a detention.
However, a passenger in a stopped car is not in the same situation as a person standing or walking on the street. When the police stop the car, the passenger is detained.
When a police officer asks a detained passenger for identification, no reasonable person would feel free to refuse that request. Thus, such a request is in fact a demand and thus is unlawful without further cause.
4. When is a detention [a temporary seizure of a person] constitutional?
"The Fourth Amendment prohibits detentions of persons by law enforcement if they are unreasonable." (Terry v. Ohio U.S. Supreme Court (1968).)
A detention is reasonable under the Fourth Amendment if the detaining officer, at the time of the detention, can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.
5. The courts recognize the wide variety of necessary police functions of modern life.
The community caretaking exception to the warrant requirement derives from the expanded role undertaken by the modern police force. Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office.
Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.
In addition to their investigative tasks, police officers regularly perform community caretaking functions—helping stranded motorists, returning lost children to anxious parents, assisting and protecting citizens in need.
There are other exceptions recognized by courts, which free police from constitutional restraints. The emergency aid component of the community caretaking exception requires specific, articulable facts indicating the need for swift action to prevent imminent danger to life or serious damage to property.
In addition, "circumstances short of a perceived emergency may justify a warrantless entry, including the protection of property, as ‘where the police reasonably believe that the premises have recently been or are being burglarized.’
The appropriate standard under the community caretaking exception is one of reasonableness: Given the known facts, would a prudent and reasonable officer have perceived a need to act in the proper discharge of his or her community caretaking functions? . . .
In determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or hunches, but to the reasonable inferences which he is entitled to draw from the facts in light of his experience; in other words he must be able to point to specific and articulable facts from which he concluded that his action was necessary.’
As I see it, the problem with this law is the same problem we have been coping with for fifty years or more. The standards of police contacts are so vague that they are almost meaningless. Police are free to be "creative," i.e., to lie. They claim to "see" suspiciious acts, smell odors, hear words and acts that their "experience and training" gives cause to suspect criminality over the denials of indepependent witnesses. Courts (made up of judges who are former prosecutors elected or appointed to enforce popular laws) will not wish to negate police activity intended to, in the words of the title of the statute: "support law enforcement and safe neighborhoods."
The law which has the overwhelming popular support of Arizona citizens has been labeled as fascist and Nazi by non-constitutional scholars such as Keith Olbermann and Cardinal Mahoney. "Let me see your papers," cable comic Jon Stewart accurately recalls, was the familiar chilling phrase repeated in all those black and white movies of the 1940's that depicted Gestapo inquiries inevitably leading to concentration camps.
The other side of the argument, represented by equally hyperbolic, but openly xenophobic Fox commentators and the Arizona governor, is that this measure is needed because of a "dire emergency" in the state.
The porous border with a near failed drug state is intolerable, dangerous to Arizonans, especially in these fragile economic times of high unemployment and limited government resources.
[As a footnote, I am currently re-reading Barbara Tuchman’s "The Zimmermann Telegram", which summarizes U.S. relations with Mexico circa 1916, when President Wilson sent General Pershing and thousands of U.S. soldiers in a "punitive expedition" to capture or kill General Pancho Villa, after his soldiers raided a New Mexico border town and killed American citizens. Mexico, it seems, was as unstable and poor as it is a hundred years later.]
Adversaries on either side display ignorance of the current state of the law and the demands of our Constitution as they are interpreted by our courts. In the following post, I am going to try to calm the waters a bit, while showing what my legal training leads me to believe is the basic problem with this kind of law.
Note: I’m going to use quotes to denote language of the statute and cases; I’m going to use italics to denote words or phrases that need further definition. Notice how vague these terms of art are, and how much leeway their vagueness gives to police and the courts in their enforcement.
First, these are excerpts of the law, which is titled: "Support Our Law Enforcement and Safe Neighborhoods Act." [Now, who can oppose that?]
"B. FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON.
"E. A LAW ENFORCEMENT OFFICER, WITHOUT A WARRANT, MAY ARREST A PERSON IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE PERSON HAS COMMITTED ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES.
"...NOTWITHSTANDING ANY OTHER LAW, A PEACE OFFICER MAY LAWFULLY STOP ANY PERSON WHO IS OPERATING A MOTOR VEHICLE IF THE OFFICER HAS REASONABLE SUSPICION TO BELIEVE THE PERSON IS IN VIOLATION OF ANY CIVIL TRAFFIC LAW AND THIS SECTION.
"F. For the purposes of this section:
"A. IT IS UNLAWFUL FOR AN OCCUPANT OF A MOTOR VEHICLE THAT IS STOPPED ON A STREET, ROADWAY OR HIGHWAY TO ATTEMPT TO HIRE OR HIRE AND PICK UP PASSENGERS FOR WORK AT A DIFFERENT LOCATION IF THE MOTOR VEHICLE BLOCKS OR IMPEDES THE NORMAL MOVEMENT OF TRAFFIC.
"B. IT IS UNLAWFUL FOR A PERSON TO ENTER A MOTOR VEHICLE THAT IS STOPPED ON A STREET, ROADWAY OR HIGHWAY IN ORDER TO BE HIRED BY AN OCCUPANT OF THE MOTOR VEHICLE AND TO BE TRANSPORTED TO WORK AT A DIFFERENT LOCATION IF THE MOTOR VEHICLE BLOCKS OR IMPEDES THE NORMAL MOVEMENT OF TRAFFIC.
"C. IT IS UNLAWFUL FOR A PERSON WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES AND WHO IS AN UNAUTHORIZED ALIEN TO KNOWINGLY APPLY FOR WORK, SOLICIT WORK IN A PUBLIC PLACE OR PERFORM WORK AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR IN THIS STATE.
"Impounding a vehicle is authorized if:
"... 4. THE PERSON IS IN VIOLATION OF A CRIMINAL OFFENSE AND IS TRANSPORTING, MOVING, CONCEALING, HARBORING OR SHIELDING OR ATTEMPTING TO TRANSPORT, MOVE, CONCEAL, HARBOR OR SHIELD AN ALIEN IN THIS STATE IN A VEHICLE IF THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE FACT THAT THE ALIEN HAS COME TO, HAS ENTERED OR REMAINS IN THE UNITED STATES IN VIOLATION OF LAW."
Even without this statute, our current law is generous to police in their contacts with suspicious people. These are the rules as reflected in the language and reasoning of cases from the U.S. Supreme Court and high state courts:
1. Police can ask anyone for identification.
Law enforcement officers do not violate the Fourth Amendment in approaching an individual on the street or in another public place and asking if he is willing to identify himself. (Florida v. Royer, U.S. Supreme Court, (1983) .)
2. If Police have cause to stop a vehicle [eg,any traffic violation], they can ask the passenger [who has done nothing suspicious] for his identification.
Once the privacy of a car has been intruded upon by a lawful traffic stop, the courts find no reason to expand the rights of passengers in vehicles beyond those afforded travelers in airports; employees in garment factories; or fishermen on public streets. All can be asked for identification.
3. But what if a person refuses to provide identification? May he be detained [defined as prevented from departing] further for identification purposes?
The lawful request by a police officer of anyone on the street for identification does not in and of itself turn the otherwise consensual encounter into a detention.
However, a passenger in a stopped car is not in the same situation as a person standing or walking on the street. When the police stop the car, the passenger is detained.
When a police officer asks a detained passenger for identification, no reasonable person would feel free to refuse that request. Thus, such a request is in fact a demand and thus is unlawful without further cause.
4. When is a detention [a temporary seizure of a person] constitutional?
"The Fourth Amendment prohibits detentions of persons by law enforcement if they are unreasonable." (Terry v. Ohio U.S. Supreme Court (1968).)
A detention is reasonable under the Fourth Amendment if the detaining officer, at the time of the detention, can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.
5. The courts recognize the wide variety of necessary police functions of modern life.
The community caretaking exception to the warrant requirement derives from the expanded role undertaken by the modern police force. Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office.
Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.
In addition to their investigative tasks, police officers regularly perform community caretaking functions—helping stranded motorists, returning lost children to anxious parents, assisting and protecting citizens in need.
There are other exceptions recognized by courts, which free police from constitutional restraints. The emergency aid component of the community caretaking exception requires specific, articulable facts indicating the need for swift action to prevent imminent danger to life or serious damage to property.
In addition, "circumstances short of a perceived emergency may justify a warrantless entry, including the protection of property, as ‘where the police reasonably believe that the premises have recently been or are being burglarized.’
The appropriate standard under the community caretaking exception is one of reasonableness: Given the known facts, would a prudent and reasonable officer have perceived a need to act in the proper discharge of his or her community caretaking functions? . . .
In determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or hunches, but to the reasonable inferences which he is entitled to draw from the facts in light of his experience; in other words he must be able to point to specific and articulable facts from which he concluded that his action was necessary.’
As I see it, the problem with this law is the same problem we have been coping with for fifty years or more. The standards of police contacts are so vague that they are almost meaningless. Police are free to be "creative," i.e., to lie. They claim to "see" suspiciious acts, smell odors, hear words and acts that their "experience and training" gives cause to suspect criminality over the denials of indepependent witnesses. Courts (made up of judges who are former prosecutors elected or appointed to enforce popular laws) will not wish to negate police activity intended to, in the words of the title of the statute: "support law enforcement and safe neighborhoods."
Monday, April 19, 2010
Tea Partying
One of the advantages of being old ... probably the only advantage among many disadvantages ... is the length of memory ... actually a blessing and a curse. Reading or viewing the news is like deja vu all over again.For instance: The Tea Party Movement.
The thing to understand about his so-called phenomenon is this: It is nothing new. We have seen them many times before in our lifetime and the lifetime of our country.
Whether you believe the polls that claim that the participants have more income and education than the average American (which is contrary to previous polling which showed that most opposition to Obama from supposed independents and Clinton Democrats came from white, low middle class, high school education, lower income middle aged suburbanites and small town occupants),
anyone in my age easily (but chillingly) recognizes these people as the survivors of the half of our generation that Nixonians used to call their "silent majority"; that is, the ones who favored the Viet Nam War, who abhorred all the vocal movements of the 60's and 70's that were considered too liberal.
They were terrified by "Women’s Lib" and its associated demands for reproductive rights and equal rights in the workplace. They were on the wrong side of the civil rights movement in the South and the North. They opposed laws and courts actively enforcing voter registration, housing, employment, education (including busing). They have resisted and resented the changes in social consciousness that modified our language, customs, attitudes for the past half century.
What they mean when they claim to be defending "traditional American values" is that they prefer everything that existed in the 1950's, including racial and gender discrimination, mostly the domination by WASP male values.
The Mad Hatter is their hero but "Mad Men" is the culture they want to reinstate.
One thing is different, upside down really.
The Tea Partiers claim to be a coalition of several disparate movements unified by one principle — a general distrust of the government. This too is deja vu all over again. But in a twerped sort of way, because back in the day, these people were bitterly opposed to the coalition which was on the other side of the political spectrum who were deeply suspicious of the government.
That opposition to the government was called "unpatriotic": The bumper stickers that appeared were: "Your country: love it or leave it" and "I love my country — right or wrong." Opponents of the government were considered "anti-American".
I can understand the shock caused by the images of election night, 2008. I felt it. Barack Obama's election in my lifetime was as shocking as the Berlin Wall, the walk on the moon, the darkness of most faces of Alabama, Georgia, Florida and Texas university football and basketball team members.
But the warm, fuzzy glow I felt on Inauguration Day, the optimistic sense that this was a better world we had long wished for, a feeling that at last, my generation had gotten it right ... that feeling soon proved to be premature.
The "forces of reaction" - as my father, whose memory of The Depression were , warned - can never be defeated.
Eventually, like monsters in horror movies, they revive from their stupor, and renew their age old complaints.
In the 19th century, they were the Know Nothings. In the 20th, they were the isolationists, America Firsters, John Birch Society, Minutemen, Christian Coalition.
Friday, March 12, 2010
The Real Bad Guys?
W. has been rightly ridiculed for his "axis of evil" hyperbole. We liberals recognize simplistic jingoistic war mongering rhetoric when we hear it.
But now it turns out that West Side L.A. right thinking trend setters have been duped and are now sulking in shame.
While our eyes were diverted to concentrate on Iran, North Korea, and other supposed threats to our way of life, it turns out that the real bad guys were the Japanese. Four recent news items should be enough to make the point and make us all cringe.
#1. Toyota ... Prius ... egad.
#2. Academy Award winner, "The Cove."
#3. Typhoon Restaurant in Santa Monica.
#4. "The Pacific".
What next? We find out Barack Obama registered Republican?
But now it turns out that West Side L.A. right thinking trend setters have been duped and are now sulking in shame.
While our eyes were diverted to concentrate on Iran, North Korea, and other supposed threats to our way of life, it turns out that the real bad guys were the Japanese. Four recent news items should be enough to make the point and make us all cringe.
#1. Toyota ... Prius ... egad.
#2. Academy Award winner, "The Cove."
#3. Typhoon Restaurant in Santa Monica.
#4. "The Pacific".
What next? We find out Barack Obama registered Republican?
Thursday, February 25, 2010
"Don't Worry About It"
The words were spoken by Army Air Corps Lieutenant Kermit A. Tyler, who had been assigned to oversee a radar installation on Oahu.
On the morning of December 7, 1941, the operator reported to Lt. Tyler that he observed "blips" indicating a large number of aircraft 130 miles away and approaching the island. Having been alerted to expect 50 U.S. B-17's to arrive that morning, Tyler (who had little experience involving radar) told the operator, "Don’t worry about it."
Of course, history was about to crash down upon Lt. Tyler’s head. The blips turned out to be about 180 Japanese planes.
Tyler was exonerated of any negligence by several hearings conducted after the event, and went on to prove his heroism as a pilot, retiring in 1961 as a Lt. Colonel. He died recently at age 96.
It seems to me that Tyler’s mistake was to assume that the simplest explanation was correct. Based on the information at hand, he chose the conclusion that was far more likely. In philosophy and science, this choice is ratified by reference to a concept known as "Occam’s razor."
It is still accepted as a logical guideline for scientists, although the proven exceptions are so numerous, and laced with such dire consequences, that it is practically useless as a rule of thumb.
It is human nature to prefer the simplest explanation of things to more complex solutions. But my experience in the law has shown me the danger of simple minded thinking and reliance on common sense to decide proof of guilt.
These dangerous assumptions falsely support the reliability of confessions, eyewitness testimony, police officer veracity, expert opinions, and a multitude of legal fictions - such as the reliability of so-called "dying declarations" and other hearsay exceptions, all of which lead to injustices galore.
At any rate, Tyler’s suggestion has gone down in history along with other remarks that soon proved ironic.
George Armstrong Custer’s specific words preceding the massacre he stumbled into have never been authenticated, but it is tempting to assume that he said something that comics over the years have put into his mouth something like: "C’mon, boys, let’s wipe out those darned Injuns."
These incidents are variants of the so-called "famous last words" that are subject of many biographies.
Historians love to find nuggets of wit and wisdom among such tidbits, especially deathbed insights, confessions (not just of guilt but expressions of faith by atheists), hints of an afterlife ("I see the light ...").
But the phrase, "famous last words," also connote the "oops" moment. I will mention two that I found to be particularly ironic.
H.G. Wells was noted as a futurist, who, along with the Frenchman, Jules Verne, made his living predicting future events. However, it is reported that on his deathbed, his prescience failed him. His last words were "Go away. I’m all right."
Wells’ final error probably did not change the outcome of his story. But other last words have done so.
Terry Kath, a guitarist and founding member of the rock group Chicago, put a gun to his head. When a friend showed concern, Kath reportedly showed that the magazine was empty, saying "Don’t worry it’s not loaded."
He pulled the trigger and discovered a bit too late that a cartridge had been left in the chamber.
Among actors, rock performers, and other risk takers, fatal games with guns is not unknown, but Kath’s voiced assertion makes his oops moment special.
On the morning of December 7, 1941, the operator reported to Lt. Tyler that he observed "blips" indicating a large number of aircraft 130 miles away and approaching the island. Having been alerted to expect 50 U.S. B-17's to arrive that morning, Tyler (who had little experience involving radar) told the operator, "Don’t worry about it."
Of course, history was about to crash down upon Lt. Tyler’s head. The blips turned out to be about 180 Japanese planes.
Tyler was exonerated of any negligence by several hearings conducted after the event, and went on to prove his heroism as a pilot, retiring in 1961 as a Lt. Colonel. He died recently at age 96.
It seems to me that Tyler’s mistake was to assume that the simplest explanation was correct. Based on the information at hand, he chose the conclusion that was far more likely. In philosophy and science, this choice is ratified by reference to a concept known as "Occam’s razor."
It is still accepted as a logical guideline for scientists, although the proven exceptions are so numerous, and laced with such dire consequences, that it is practically useless as a rule of thumb.
It is human nature to prefer the simplest explanation of things to more complex solutions. But my experience in the law has shown me the danger of simple minded thinking and reliance on common sense to decide proof of guilt.
These dangerous assumptions falsely support the reliability of confessions, eyewitness testimony, police officer veracity, expert opinions, and a multitude of legal fictions - such as the reliability of so-called "dying declarations" and other hearsay exceptions, all of which lead to injustices galore.
At any rate, Tyler’s suggestion has gone down in history along with other remarks that soon proved ironic.
George Armstrong Custer’s specific words preceding the massacre he stumbled into have never been authenticated, but it is tempting to assume that he said something that comics over the years have put into his mouth something like: "C’mon, boys, let’s wipe out those darned Injuns."
These incidents are variants of the so-called "famous last words" that are subject of many biographies.
Historians love to find nuggets of wit and wisdom among such tidbits, especially deathbed insights, confessions (not just of guilt but expressions of faith by atheists), hints of an afterlife ("I see the light ...").
But the phrase, "famous last words," also connote the "oops" moment. I will mention two that I found to be particularly ironic.
H.G. Wells was noted as a futurist, who, along with the Frenchman, Jules Verne, made his living predicting future events. However, it is reported that on his deathbed, his prescience failed him. His last words were "Go away. I’m all right."
Wells’ final error probably did not change the outcome of his story. But other last words have done so.
Terry Kath, a guitarist and founding member of the rock group Chicago, put a gun to his head. When a friend showed concern, Kath reportedly showed that the magazine was empty, saying "Don’t worry it’s not loaded."
He pulled the trigger and discovered a bit too late that a cartridge had been left in the chamber.
Among actors, rock performers, and other risk takers, fatal games with guns is not unknown, but Kath’s voiced assertion makes his oops moment special.
Saturday, February 20, 2010
Principled Centrist Revisited
Last year I published a post based on an essay I originally wrote in the 1990's. I updated it to apply the ideas stated to Obama. I tried to fit him into the traditional mold of the "principled centrist," a tradition which included the best presidents in our history: notably Washington, Lincoln, F.D.R. It also encompassed some failures.
Bill Clinton's presidency showed how difficult it is for a centrist to govern in this era. With the pervasive sniping of 24/7 media critics, ideological and cultural polarization that approaches the sectional suspicions preceding the Civil War, and the absence of public consensus about any particular crisis, the ability of even the most charismatic president to lead is doubtful.
I am re-printing the essay again because it seems that its points are still pertinent to the political climate today.
Like many of my peers in the late 1960's, I entered a law career with a radicalized illusion that I could shake up The Establishment from within. But early in my career as a public defender, I became persuaded that idealists made lousy lawyers.
Viewing a case as "a cause" led to ineffective advocacy for the individuals who were our clients. Railing against "the system" was a losing strategy; tweaking it to make it work led to some success. To work from within demanded adherence to core principles - like those expressed in the Bill of Rights, but also a rational sense of moderation. Seeing the flaws of radical ideologies of Left and Right, I came to think of myself as a principled centrist.
The flaw of this philosophy is that it can easily lead to indecision, timidity, and a loss of confidence. Weak compromises are tempting when the risks are great. Uncertainty leads to failure and depression.
Barack Obama, by education and inclination, is a principled centrist. His legal education, which suited his innate propensities, prepared him well for effective advocacy. The first attribute of the lawyerly approach is the ability to see all sides of a question. The second is the exercise of judgments based on reason and evidence rather than faith and ideology.
The term itself is an oxymoron in presidential politics. The centrist is wedded to no firm ideology that huge numbers of people can identify with. It is historically rare to satisfy enough of the people enough of the time from the middle of the road.The centrist is not an ideologue, except to moderation. Idealogues have a rigid vision, a religious faith in their righteousness. Moderation and consensus are lukewarm ideals. Neither notion stirs passion.
Ronald Reagan’s simple ideology allowed him to be certain and clear about every issue: lower taxes, secure defense, less government, American domination of foreign affairs, strict Christian morality and adherence to normative lifestyles.
A centrist cannot be sure about any of these things, is sometimes for some of them, against some at some other times. He is a relativist - his motto must be "It depends." His survival depends on compromise.
A principled centrist in American politics is, by definition, in trouble. First, he states his principles, then is forced to compromise them.
Bill Clinton’s adventure with the health care issue in the 1990's is a cautionary tale. He stated a principle: universal coverage. Eventually, he had to temporize, and was seen as weak, the inevitable risk of centrists. The result: his leadership coinage dissipated. He could not fall back on the moral leverage of ideology, had no constant constituency on left or right.
At first, it seemed that Obama had advantages Clinton never had. Times had changed. In 1993, Clinton’s "mandate for change" was tenuous at best. G.H.W. Bush had alienated a chunk of the Reagan coalition - the middle right - with higher taxes and a weak economy. Because Clinton was a "new" Democrat, based on a sensible, more conservative model, who shied from liberal doctrine, he was positioned as non-threatening. On the left, he was pictured as youthful, a JFK disciple, compassionate, with a feminist wife - a guy of the sixties, who had matured to moderate progressivism. Many "boomers" could identify with that beause they had moved that way as well.The two-faced picture was enough to gain him a slim plurality in a three way race. Perot's candidacy made it clear that the only consensus in the public mind was that government was distrusted, and that the majority of voters were slightly to the right of center.
But that is where the consensus ended. There was no singleness of mind in the public for where it wanted a president to go. There was no mandate for any particular change.
Clinton thought it was there for health care reform, fooled by the fact that he spoke about it in his speeches and he was elected. But the public was never fully committed to it, and was easily swayed by fears of expense and bureaucratic incompetence.
In this as in every other issue the people wanted reform, but didn’t want to pay for it: crime, the economy, services, campaign reform. The public was schizophrenic: apathetic and impatient at the same time.
When the Republicans reclaimed the Congress in 1994 with a severe ideological conservative agenda, it forced Clinton the centrist to waffle to the right. The lesson was clear: a centrist may only succeed as a progressive leader if the public is ready to be led and only then by a leader who is perceived as a hero without baggage.
The commentators of the time blamed Clinton for a lack of leadership. The great leader defines the issues and unifies the people behind him. That Clinton failed to do.
What he was forced to do is what a centrist does best: react to the extremes of left and right. He must be the captain of a sailing ship, tacking left and right but steering the middle. Clinton’s political acumen was such that he was able to survive well enough to be re-elected and, despite his tragic personal flaws, his presidency is now remembered as a time of peace and prosperity.
At the beginning of his term, Obama’s seemed to have an advantage: the crises caused by the failure of G.W. Bush’s failure, which is ascribed rightly to the flaw of rigid ideological governance, had forced public opinion to coalesce into a coherent consensus for change - not necessarily "radical" change, but at least, meaningful reform.
The last time that happened was in 1964, when L.B.J. took advantage of his opponent’s extreme conservatism, to form a strong coalition for social change. He succeeded in passing meaningful civil rights reform and programs that began a "war on poverty", only to self-immolate over Viet-Nam.
F.D.R. is probably the better model for Obama. F.D.R. was (and still is) perceived as a decisive leader because his motto was "do anything, but do something." He was able to take chances because the public of the time was willing to be led - almost anywhere. The times were that bad. His one principle was that government had to put people back to work.
Everything he proposed, supported, persuaded, was directed toward that goal. He had many detractors from the left and right, but he had such a convincing presence to a people desperate for charismatic leadership that he prevailed and is revered as a great leader.
Bear in mind that in F.D.R.'s era, "charismatic leadership" in the form of dictatorships were preferred by mainstream political theorists to democracy, which seemed in the period between the World Wars, to have failed. Today, there is an echo of that era --- extreme fear caused by economic collapse and democratic institutions unable to ameliorate the crises --- China seen as a paragon of successful governance ---as many had perceived Italy of the 1920's and Germany of the 1930's.
FDR revived the democratic system because he was able to form a consensus from huge chunks of the public: union members -- in a time of solidly unified, active and powerful unions, Southern poor, the unemployed --- 25% unemployment in the depths of the depression ---and the educated un-rich.
At the start, the Obama constituency seemed to be similarly broad: the educated and hopeful young, aspiring Hispanics and proud African-Americans, depressed boomers. Those who voted for him, adding to his landslide and coattails, were also a significant number who were not committed to any "change" except that which threw the rascals out.
Like F.D.R., Obama benefitted from a bankrupt and disillusioned opposition party. The fatal flaw of ideological and faith based governance is that when exposed as false by incontrovertible evidence it collapses.
The strength of principled centrism is that its flexibility and foundation of moderation and reliance on evidence permit fine-tuning alterations without conceding defeat.
Parenthetically: in the view of many historians, FDR’s policies failed to end the Depression because they were not radical enough. His centrism was a flaw, led to inconsistent contradictory policies. He wavered from his initial policy of governmental activism, caving to budget balancing contraction of spending, overly fearful of the political consequences of huge deficits. He was saved by the war which reinvigorated the broad consensus and commitment to action.
Now, Obama, faced with apparent dissatisfaction by a vocal minority to his policies, has to decide whether to reclaim the centrist ground by accepting compromise, or to retreat to the right by abandoning any progressive agenda, or to try to forge a new coalition on the left to push through an aggressive program.
Obama, the principled centrist, walks the dangerous tightrope, his only net is his legal background, which, I hope, will permit him to find his way through analysis of facts, collection of evidence pro and con, and submitting all potential policies to thorough logic based argument before moving.
Bill Clinton's presidency showed how difficult it is for a centrist to govern in this era. With the pervasive sniping of 24/7 media critics, ideological and cultural polarization that approaches the sectional suspicions preceding the Civil War, and the absence of public consensus about any particular crisis, the ability of even the most charismatic president to lead is doubtful.
I am re-printing the essay again because it seems that its points are still pertinent to the political climate today.
Like many of my peers in the late 1960's, I entered a law career with a radicalized illusion that I could shake up The Establishment from within. But early in my career as a public defender, I became persuaded that idealists made lousy lawyers.
Viewing a case as "a cause" led to ineffective advocacy for the individuals who were our clients. Railing against "the system" was a losing strategy; tweaking it to make it work led to some success. To work from within demanded adherence to core principles - like those expressed in the Bill of Rights, but also a rational sense of moderation. Seeing the flaws of radical ideologies of Left and Right, I came to think of myself as a principled centrist.
The flaw of this philosophy is that it can easily lead to indecision, timidity, and a loss of confidence. Weak compromises are tempting when the risks are great. Uncertainty leads to failure and depression.
Barack Obama, by education and inclination, is a principled centrist. His legal education, which suited his innate propensities, prepared him well for effective advocacy. The first attribute of the lawyerly approach is the ability to see all sides of a question. The second is the exercise of judgments based on reason and evidence rather than faith and ideology.
The term itself is an oxymoron in presidential politics. The centrist is wedded to no firm ideology that huge numbers of people can identify with. It is historically rare to satisfy enough of the people enough of the time from the middle of the road.The centrist is not an ideologue, except to moderation. Idealogues have a rigid vision, a religious faith in their righteousness. Moderation and consensus are lukewarm ideals. Neither notion stirs passion.
Ronald Reagan’s simple ideology allowed him to be certain and clear about every issue: lower taxes, secure defense, less government, American domination of foreign affairs, strict Christian morality and adherence to normative lifestyles.
A centrist cannot be sure about any of these things, is sometimes for some of them, against some at some other times. He is a relativist - his motto must be "It depends." His survival depends on compromise.
A principled centrist in American politics is, by definition, in trouble. First, he states his principles, then is forced to compromise them.
Bill Clinton’s adventure with the health care issue in the 1990's is a cautionary tale. He stated a principle: universal coverage. Eventually, he had to temporize, and was seen as weak, the inevitable risk of centrists. The result: his leadership coinage dissipated. He could not fall back on the moral leverage of ideology, had no constant constituency on left or right.
At first, it seemed that Obama had advantages Clinton never had. Times had changed. In 1993, Clinton’s "mandate for change" was tenuous at best. G.H.W. Bush had alienated a chunk of the Reagan coalition - the middle right - with higher taxes and a weak economy. Because Clinton was a "new" Democrat, based on a sensible, more conservative model, who shied from liberal doctrine, he was positioned as non-threatening. On the left, he was pictured as youthful, a JFK disciple, compassionate, with a feminist wife - a guy of the sixties, who had matured to moderate progressivism. Many "boomers" could identify with that beause they had moved that way as well.The two-faced picture was enough to gain him a slim plurality in a three way race. Perot's candidacy made it clear that the only consensus in the public mind was that government was distrusted, and that the majority of voters were slightly to the right of center.
But that is where the consensus ended. There was no singleness of mind in the public for where it wanted a president to go. There was no mandate for any particular change.
Clinton thought it was there for health care reform, fooled by the fact that he spoke about it in his speeches and he was elected. But the public was never fully committed to it, and was easily swayed by fears of expense and bureaucratic incompetence.
In this as in every other issue the people wanted reform, but didn’t want to pay for it: crime, the economy, services, campaign reform. The public was schizophrenic: apathetic and impatient at the same time.
When the Republicans reclaimed the Congress in 1994 with a severe ideological conservative agenda, it forced Clinton the centrist to waffle to the right. The lesson was clear: a centrist may only succeed as a progressive leader if the public is ready to be led and only then by a leader who is perceived as a hero without baggage.
The commentators of the time blamed Clinton for a lack of leadership. The great leader defines the issues and unifies the people behind him. That Clinton failed to do.
What he was forced to do is what a centrist does best: react to the extremes of left and right. He must be the captain of a sailing ship, tacking left and right but steering the middle. Clinton’s political acumen was such that he was able to survive well enough to be re-elected and, despite his tragic personal flaws, his presidency is now remembered as a time of peace and prosperity.
At the beginning of his term, Obama’s seemed to have an advantage: the crises caused by the failure of G.W. Bush’s failure, which is ascribed rightly to the flaw of rigid ideological governance, had forced public opinion to coalesce into a coherent consensus for change - not necessarily "radical" change, but at least, meaningful reform.
The last time that happened was in 1964, when L.B.J. took advantage of his opponent’s extreme conservatism, to form a strong coalition for social change. He succeeded in passing meaningful civil rights reform and programs that began a "war on poverty", only to self-immolate over Viet-Nam.
F.D.R. is probably the better model for Obama. F.D.R. was (and still is) perceived as a decisive leader because his motto was "do anything, but do something." He was able to take chances because the public of the time was willing to be led - almost anywhere. The times were that bad. His one principle was that government had to put people back to work.
Everything he proposed, supported, persuaded, was directed toward that goal. He had many detractors from the left and right, but he had such a convincing presence to a people desperate for charismatic leadership that he prevailed and is revered as a great leader.
Bear in mind that in F.D.R.'s era, "charismatic leadership" in the form of dictatorships were preferred by mainstream political theorists to democracy, which seemed in the period between the World Wars, to have failed. Today, there is an echo of that era --- extreme fear caused by economic collapse and democratic institutions unable to ameliorate the crises --- China seen as a paragon of successful governance ---as many had perceived Italy of the 1920's and Germany of the 1930's.
FDR revived the democratic system because he was able to form a consensus from huge chunks of the public: union members -- in a time of solidly unified, active and powerful unions, Southern poor, the unemployed --- 25% unemployment in the depths of the depression ---and the educated un-rich.
At the start, the Obama constituency seemed to be similarly broad: the educated and hopeful young, aspiring Hispanics and proud African-Americans, depressed boomers. Those who voted for him, adding to his landslide and coattails, were also a significant number who were not committed to any "change" except that which threw the rascals out.
Like F.D.R., Obama benefitted from a bankrupt and disillusioned opposition party. The fatal flaw of ideological and faith based governance is that when exposed as false by incontrovertible evidence it collapses.
The strength of principled centrism is that its flexibility and foundation of moderation and reliance on evidence permit fine-tuning alterations without conceding defeat.
Parenthetically: in the view of many historians, FDR’s policies failed to end the Depression because they were not radical enough. His centrism was a flaw, led to inconsistent contradictory policies. He wavered from his initial policy of governmental activism, caving to budget balancing contraction of spending, overly fearful of the political consequences of huge deficits. He was saved by the war which reinvigorated the broad consensus and commitment to action.
Now, Obama, faced with apparent dissatisfaction by a vocal minority to his policies, has to decide whether to reclaim the centrist ground by accepting compromise, or to retreat to the right by abandoning any progressive agenda, or to try to forge a new coalition on the left to push through an aggressive program.
Obama, the principled centrist, walks the dangerous tightrope, his only net is his legal background, which, I hope, will permit him to find his way through analysis of facts, collection of evidence pro and con, and submitting all potential policies to thorough logic based argument before moving.
Friday, February 19, 2010
Remorse is a funny thing ...
"The only thing you owe the public is a good performance." H. Bogart.
"I am deeply sorry for my irresponsible and selfish behavior I engaged in.I know people want to find out how I could be so selfish and so foolish." T. Woods.
T. Woods has a string of outstanding performances in his chosen field, which is golf. Let's get that straight. Golf. Not religion, politics, ethics, oratory. It is golf talent that has made him celebrated, envied, and vulnerable to attack for hubris.
He is also living proof of a central principle of Borenstein's Law - the counter intuitive truth that human beings can be counted on to act against their own best interests - sometimes to the point of self-destruction.
This Law applies to anyone, from the most sociopathic criminal to the highest achieving powerful people on earth.
Here's how Tiger phrased it:
Now, Mr. Woods has exemplified another lesson I have learned in almost forty years of defending people accused of wrongdoing:
No expression of remorse can ever satisfy everyone.
There are ramifications of this fact.
The transgressor is usually in a no-win posture.
Failure to express remorse for bad conduct is seen as aggravating, but expressions of remorse are usually suspiciously self-serving.
"Sincerity" is completely subjective and tentative. Bill Clinton apologized with the same "sincere" voice he had used to deny guilt under oath months before.
Cynical responses such as "he wouldn't be sorry if he hadn't been caught" are earned by the initial deception.
The reaction to "I'm sorry" has as much to do with the listener's attitude as the transgressor's. People whose faith in another's goodness is shattered by revelations of transgression are usually hurt and angry.
The media does not have the "right" to know all the facts about everybody's life, even so-called "public figures." The First Amendment does not demand that people who want to sell products must give power over their lives to commercial media, whose primary purpose is to profit from celebrities rather than to provide information people need to form a better world.
"I am deeply sorry for my irresponsible and selfish behavior I engaged in.I know people want to find out how I could be so selfish and so foolish." T. Woods.
T. Woods has a string of outstanding performances in his chosen field, which is golf. Let's get that straight. Golf. Not religion, politics, ethics, oratory. It is golf talent that has made him celebrated, envied, and vulnerable to attack for hubris.
He is also living proof of a central principle of Borenstein's Law - the counter intuitive truth that human beings can be counted on to act against their own best interests - sometimes to the point of self-destruction.
This Law applies to anyone, from the most sociopathic criminal to the highest achieving powerful people on earth.
Here's how Tiger phrased it:
"I knew my actions were wrong, but I convinced myself that normal rules didn’t apply. I never thought about who I was hurting. Instead, I thought only about myself. I ran straight through the boundaries that a married couple should live by. I thought I could get away with whatever I wanted to. I felt that I had worked hard my entire life and deserved to enjoy all the temptations around me. I felt I was entitled. Thanks to money and fame, I didn’t have to go far to find them."
Now, Mr. Woods has exemplified another lesson I have learned in almost forty years of defending people accused of wrongdoing:
No expression of remorse can ever satisfy everyone.
There are ramifications of this fact.
The transgressor is usually in a no-win posture.
Failure to express remorse for bad conduct is seen as aggravating, but expressions of remorse are usually suspiciously self-serving.
"Sincerity" is completely subjective and tentative. Bill Clinton apologized with the same "sincere" voice he had used to deny guilt under oath months before.
Cynical responses such as "he wouldn't be sorry if he hadn't been caught" are earned by the initial deception.
The reaction to "I'm sorry" has as much to do with the listener's attitude as the transgressor's. People whose faith in another's goodness is shattered by revelations of transgression are usually hurt and angry.
The media does not have the "right" to know all the facts about everybody's life, even so-called "public figures." The First Amendment does not demand that people who want to sell products must give power over their lives to commercial media, whose primary purpose is to profit from celebrities rather than to provide information people need to form a better world.
Sunday, February 07, 2010
Monday, February 01, 2010
Stop me before I think again ...
In mid-thought ...
... Explain to me why it is so terrible that China and India, countries which contain about 2/5 of the population of the entire world, have economies that are growing at a high rate, thereby improving the welfare of their people, taking them out of poverty, making them into consumers rather than dependents. ...
... the debate over whether to Mirandize terror suspects is a sham. Miranda rules shouldn’t hamper obtaining info from suspects like the Xmas day underwear bomber ... They are fanatics - will love to talk. Also, his guilt is so obvious, it doesn’t matter whether his statements are useable against him. Miranda rules do not preclude continued questioning without advising or even if a suspect has asserted his rights. It simply makes his statements inadmissable in his trial, unless he presents a defense which contradicts his statements. Finally, his knowledge of the Al Qaeda workings is probably very limited ...
... Torrey Pines tournament proves that there is no one who will make anyone forget Tiger Woods ... the great white hope, Phil Mickelson fizzled ... the winner and those others in contention were Who He? and Who Cares?
... Meanwhile Fed disappointed all Brits and Aussies by destroying Andy Murray.
... Kobe MJ’d the Celtics with another last sec impossible shot ...
... Conventional wisdom that the New Deal failed to solve unemployment, proving failure of its big government activism was a construct of Milton Friedman (an Ayn Rand devotee). Later economists have revised thinking, pointing out that FDR got cold feet about deficits. ... There should be a lesson there for Obama, who is not unlike FDR in his lack of ideological dogma, straddling a centrist tightrope, sorting through unreliable contradictory advice, facing an uneducated, easily manipulated frightened electorate and an even more frightened Congress. See: http://borensteinslaw.blogspot.com/2009/02/great-deception.html
... My father would have explained the lagging employment stats thus: capitalists love depressions - gives them the excuse to slap labor down, damage unions, lower wages and benefits, break contracts ... Stock market loves layoffs of workers because it reduces costs, increases bottom lines. ... Capital will fight hard to prevent re-employment, mandatory benefits for workers. ...
... Obama’s skewering of the Republicans in his State of the Union speech, and later, his Q&A right in their nest was awesome as an example of how a good lawyer can use the power of argument to overcome deceit. The problem is that the voters these days do not have the patience or intelligence to hear complex explanations, even if they are rational. The sound bite generation is too deeply ingrained.
... The Supreme Court decision expanding 1st Amendment rights to corporations is merely the latest in a long line of cases that elevate the speech freedom over all of the others in the Bill of Rights... I became aware of this long ago when earlier rulings permitted reporting re. & televising criminal trials which damaged the defendant’s 6th Amendment right to a fair trial ... For a long time, the Court has denied a difference between "political speech" and "commercial speech" ... Their rationale for this has always seemed a thinly disguised excuse for favoring business and property interests over individual liberties, which is central to the conservative tradition of The Court. ... In fact, that is what the Founders intended it to be, and how it has worked for most of our history... It has been "activist" as a reactionary restraint on progressive movements in society ... control of commerce, slavery / Jim Crow / civil liberties, regulation of business ... on almost every issue the Court has been a drag ... the Warren Court, a tiny window of progressive control of the Court from @1953 - 1966 was a very rare exception, a Golden Age of civil liberties that has no other parallel in American history ...
... Way back then, I argued with friends who defended pornographers, debating which of the Bill of Rights I would die to defend ... I argued that defending the right of sleaze makers to make money from porno movies was way down on my list - considering what else was at risk at the time: anti-war protesters being shot and jailed, civil rights workers the same, coerced confessions, death penalty offenses proved by perjured testimony, planted evidence, denial of counsel. ... porn is just another form of commercial speech. ...
... Equating corporate rights with individual rights is mainstream American thinking ...
... Howard Zinn’s death again raises the debate about "neutral" or "objective" history vs. activist or argumentative perspectives ... My small contribution centers on how offended I was at discovering that the "history’ I was subjected to in my childhood was, in crucial details, distorted ... The most egregious distortions related to the genocide of native Americans ... The predominance of Southern rooted historians accounted for the mythology which elevated the romance of the ante bellum South, overestimating the greatness of Robert E. Lee and the evils of Grant and Sherman ... and most harmfully, the belief that Southern white society was unfairly victimized by Reconstruction ... Overlooking the weakness of heroes like Wilson and TR relating to race and native Americans... that the creation of the American Empire was all good ... and many more lies... all that being said, Zinn’s bias should also be considered before accepting his works ...
No more thinking ... back to work ...
... Explain to me why it is so terrible that China and India, countries which contain about 2/5 of the population of the entire world, have economies that are growing at a high rate, thereby improving the welfare of their people, taking them out of poverty, making them into consumers rather than dependents. ...
... the debate over whether to Mirandize terror suspects is a sham. Miranda rules shouldn’t hamper obtaining info from suspects like the Xmas day underwear bomber ... They are fanatics - will love to talk. Also, his guilt is so obvious, it doesn’t matter whether his statements are useable against him. Miranda rules do not preclude continued questioning without advising or even if a suspect has asserted his rights. It simply makes his statements inadmissable in his trial, unless he presents a defense which contradicts his statements. Finally, his knowledge of the Al Qaeda workings is probably very limited ...
... Torrey Pines tournament proves that there is no one who will make anyone forget Tiger Woods ... the great white hope, Phil Mickelson fizzled ... the winner and those others in contention were Who He? and Who Cares?
... Meanwhile Fed disappointed all Brits and Aussies by destroying Andy Murray.
... Kobe MJ’d the Celtics with another last sec impossible shot ...
... Conventional wisdom that the New Deal failed to solve unemployment, proving failure of its big government activism was a construct of Milton Friedman (an Ayn Rand devotee). Later economists have revised thinking, pointing out that FDR got cold feet about deficits. ... There should be a lesson there for Obama, who is not unlike FDR in his lack of ideological dogma, straddling a centrist tightrope, sorting through unreliable contradictory advice, facing an uneducated, easily manipulated frightened electorate and an even more frightened Congress. See: http://borensteinslaw.blogspot.com/2009/02/great-deception.html
... My father would have explained the lagging employment stats thus: capitalists love depressions - gives them the excuse to slap labor down, damage unions, lower wages and benefits, break contracts ... Stock market loves layoffs of workers because it reduces costs, increases bottom lines. ... Capital will fight hard to prevent re-employment, mandatory benefits for workers. ...
... Obama’s skewering of the Republicans in his State of the Union speech, and later, his Q&A right in their nest was awesome as an example of how a good lawyer can use the power of argument to overcome deceit. The problem is that the voters these days do not have the patience or intelligence to hear complex explanations, even if they are rational. The sound bite generation is too deeply ingrained.
... The Supreme Court decision expanding 1st Amendment rights to corporations is merely the latest in a long line of cases that elevate the speech freedom over all of the others in the Bill of Rights... I became aware of this long ago when earlier rulings permitted reporting re. & televising criminal trials which damaged the defendant’s 6th Amendment right to a fair trial ... For a long time, the Court has denied a difference between "political speech" and "commercial speech" ... Their rationale for this has always seemed a thinly disguised excuse for favoring business and property interests over individual liberties, which is central to the conservative tradition of The Court. ... In fact, that is what the Founders intended it to be, and how it has worked for most of our history... It has been "activist" as a reactionary restraint on progressive movements in society ... control of commerce, slavery / Jim Crow / civil liberties, regulation of business ... on almost every issue the Court has been a drag ... the Warren Court, a tiny window of progressive control of the Court from @1953 - 1966 was a very rare exception, a Golden Age of civil liberties that has no other parallel in American history ...
... Way back then, I argued with friends who defended pornographers, debating which of the Bill of Rights I would die to defend ... I argued that defending the right of sleaze makers to make money from porno movies was way down on my list - considering what else was at risk at the time: anti-war protesters being shot and jailed, civil rights workers the same, coerced confessions, death penalty offenses proved by perjured testimony, planted evidence, denial of counsel. ... porn is just another form of commercial speech. ...
... Equating corporate rights with individual rights is mainstream American thinking ...
... Howard Zinn’s death again raises the debate about "neutral" or "objective" history vs. activist or argumentative perspectives ... My small contribution centers on how offended I was at discovering that the "history’ I was subjected to in my childhood was, in crucial details, distorted ... The most egregious distortions related to the genocide of native Americans ... The predominance of Southern rooted historians accounted for the mythology which elevated the romance of the ante bellum South, overestimating the greatness of Robert E. Lee and the evils of Grant and Sherman ... and most harmfully, the belief that Southern white society was unfairly victimized by Reconstruction ... Overlooking the weakness of heroes like Wilson and TR relating to race and native Americans... that the creation of the American Empire was all good ... and many more lies... all that being said, Zinn’s bias should also be considered before accepting his works ...
No more thinking ... back to work ...
Tuesday, January 05, 2010
"Sue me, sue me ... what can you do me"
A civil case in Iowa may change things for many people involved in the oxymoronic criminal "justice" system in this country.
The L.A. Times reports today that a lawsuit accusing local prosecutors of conspiring with police to frame two murder suspects was settled on the eve of a decision by the U.S. Supreme Court.
Prevailing case law holds that police can be sued for such conduct, but prosecutors can't. This is based on a historically based tradition of immunity for government officials in exercise of their duties. The idea of the tradition is based on the notion that officials shouldn't be fearful being sued for doing their jobs. Certainly, if a D.A. could be sued for every judgment that affected someone's life, it would result in chaos.
However, this recent case threatened to overturn the tradition. In 1977, a retired police officer working as a security guard was shot and killed during an attempted robbery of cars at a dealership. A witness identified a "white suspect," who was arrested and failed a lie box test.
But police arrested a 16 year old car thief who fingered the two African Americans as the killers. The snitch's facts at first didn't fit the known facts. Defendants were convicted by an all-white jury and sentenced to prison.
In the words of the article, "Decades later. [defendants] were able to obtain official files showing that police and prosecutors ... coaxed the witness to implicate them, while ignoring evidence that pointed to the white suspect. The sole witness recanted his testimony."
While the prosecutors maintain that they still believe in the defendants' guilt, the county settled the case for $12 million dollars, fearing an adverse Supreme Court opinion. During oral argument, Justices Kennedy and Stevens, two of the centrist "swing votes" on the Court, both indicated doubts about the tradition against suing prosecutors when intentional use of false testimony is alleged.
In addition to the central issues: the continuing reality of police and prosecutorial misconduct and the continuing evil of racist elements in the system, another point is illustrated by the case.
The errors were not discovered until "decades" after the wrong. It was revealed by persistent lawyering by use of habeas corpus to discover the documents and to investigate and re-interview the witness that helped to expose the misconduct.
Proponents of laws limiting habeas corpus, asserting a need for "certainty" and "finality" and "speedy justice" must confront this case as well as the hundreds of other examples contradicting their arguments.
The L.A. Times reports today that a lawsuit accusing local prosecutors of conspiring with police to frame two murder suspects was settled on the eve of a decision by the U.S. Supreme Court.
Prevailing case law holds that police can be sued for such conduct, but prosecutors can't. This is based on a historically based tradition of immunity for government officials in exercise of their duties. The idea of the tradition is based on the notion that officials shouldn't be fearful being sued for doing their jobs. Certainly, if a D.A. could be sued for every judgment that affected someone's life, it would result in chaos.
However, this recent case threatened to overturn the tradition. In 1977, a retired police officer working as a security guard was shot and killed during an attempted robbery of cars at a dealership. A witness identified a "white suspect," who was arrested and failed a lie box test.
But police arrested a 16 year old car thief who fingered the two African Americans as the killers. The snitch's facts at first didn't fit the known facts. Defendants were convicted by an all-white jury and sentenced to prison.
In the words of the article, "Decades later. [defendants] were able to obtain official files showing that police and prosecutors ... coaxed the witness to implicate them, while ignoring evidence that pointed to the white suspect. The sole witness recanted his testimony."
While the prosecutors maintain that they still believe in the defendants' guilt, the county settled the case for $12 million dollars, fearing an adverse Supreme Court opinion. During oral argument, Justices Kennedy and Stevens, two of the centrist "swing votes" on the Court, both indicated doubts about the tradition against suing prosecutors when intentional use of false testimony is alleged.
In addition to the central issues: the continuing reality of police and prosecutorial misconduct and the continuing evil of racist elements in the system, another point is illustrated by the case.
The errors were not discovered until "decades" after the wrong. It was revealed by persistent lawyering by use of habeas corpus to discover the documents and to investigate and re-interview the witness that helped to expose the misconduct.
Proponents of laws limiting habeas corpus, asserting a need for "certainty" and "finality" and "speedy justice" must confront this case as well as the hundreds of other examples contradicting their arguments.
Saturday, December 19, 2009
While I Sit On The Sidelines ...
During my forced hiatus from the practice of law, I have tried to keep up with the news that always swirls around the courthouses which have been my milieu for almost forty years. One way to keep up is simply to read the daily newspaper. Today, for instance, three articles referenced cases involving lawyers I’ve known for many years.
The first of these is an article which notes the unusual fact that Los Angeles County, in the past year, has bucked the national trend of reduced death verdicts. In L.A., thirteen death penalties were ordered by juries. This seems to be a statewide trend. California death verdicts have also risen.
The reasons for the data are debated. Steve Cooley, LA DA, thinks it is a partially a fluke, considering the fact that these cases take many years to come to trial. But he did claim that his office has been more "selective" in choosing which cases to pursue, which may account for the higher percentage of death sentences meted out.
My good friend, Robert Schwartz, an experienced defense lawyer, pointed out that jurors have become hardened to mitigation evidence about abused and deprived childhoods of violent criminals. The article also speculates that judges have tightened procedures to encourage more severe verdicts.
I’ve found that there is truth to all of these points. And there is another, that the article doesn’t underline. Jurors are well aware of the fact that California has a moratorium on executions, and has performed ONLY thirteen executions, while almost seven hundred rot on death row. Just as the existence of a credible alternative of ‘life imprisonment without possibility of parole’ has been shown to reduce the number of death verdicts, as was recently reported in Texas of all places, the suspicion that a death verdict will never be enforced is conducive to more of them being issued.
One of the judges who is often cited as having an agenda that includes a preference for death verdicts made the news in another case, non-capital case. Mark Overland, a former public defender, and one of the best lawyers anywhere, is representing Ms. Lazarus, the LAPD officer accused of killing a romantic rival more than twenty years ago. After the pro forma ruling that ordered that she be brought to trial, the judge set bail at $10 million dollars in cash, an extraordinarily high amount, tantamount to a denial of any bail. This is higher, as Overland observed, than the bail set for Phil Spector. The judge justified this act by citing her accessibility to guns, because she is married to a cop, and his subjective belief that she would probably flee the jurisdiction to avoid prosecution.
In another article, a second degee murder conviction is reported. The case, defended by my friend Dave Houchin, had resulted in two mistrials due to hung juries when tried in the Central L.A. courthouse. Once transferred back to the Antelope Valley where the crime occurred and the where extremely vocal victim’s family members lived, a compromise verdict of 2nd degree was achieved after three weeks of deliberation, in a case which relied on circumstantial evidence and the defendant had steadfastly asserted his innocence.
The first of these is an article which notes the unusual fact that Los Angeles County, in the past year, has bucked the national trend of reduced death verdicts. In L.A., thirteen death penalties were ordered by juries. This seems to be a statewide trend. California death verdicts have also risen.
The reasons for the data are debated. Steve Cooley, LA DA, thinks it is a partially a fluke, considering the fact that these cases take many years to come to trial. But he did claim that his office has been more "selective" in choosing which cases to pursue, which may account for the higher percentage of death sentences meted out.
My good friend, Robert Schwartz, an experienced defense lawyer, pointed out that jurors have become hardened to mitigation evidence about abused and deprived childhoods of violent criminals. The article also speculates that judges have tightened procedures to encourage more severe verdicts.
I’ve found that there is truth to all of these points. And there is another, that the article doesn’t underline. Jurors are well aware of the fact that California has a moratorium on executions, and has performed ONLY thirteen executions, while almost seven hundred rot on death row. Just as the existence of a credible alternative of ‘life imprisonment without possibility of parole’ has been shown to reduce the number of death verdicts, as was recently reported in Texas of all places, the suspicion that a death verdict will never be enforced is conducive to more of them being issued.
One of the judges who is often cited as having an agenda that includes a preference for death verdicts made the news in another case, non-capital case. Mark Overland, a former public defender, and one of the best lawyers anywhere, is representing Ms. Lazarus, the LAPD officer accused of killing a romantic rival more than twenty years ago. After the pro forma ruling that ordered that she be brought to trial, the judge set bail at $10 million dollars in cash, an extraordinarily high amount, tantamount to a denial of any bail. This is higher, as Overland observed, than the bail set for Phil Spector. The judge justified this act by citing her accessibility to guns, because she is married to a cop, and his subjective belief that she would probably flee the jurisdiction to avoid prosecution.
In another article, a second degee murder conviction is reported. The case, defended by my friend Dave Houchin, had resulted in two mistrials due to hung juries when tried in the Central L.A. courthouse. Once transferred back to the Antelope Valley where the crime occurred and the where extremely vocal victim’s family members lived, a compromise verdict of 2nd degree was achieved after three weeks of deliberation, in a case which relied on circumstantial evidence and the defendant had steadfastly asserted his innocence.
THE 'SAY IT AIN'T SO' MOMENT
Those who cannot understand why Tiger Woods, a man with so much to lose, would risk it all by committing risky sexual behavior are ignorant of Borenstein’s Law.
But after all, the head scratchers say, Woods is one athlete whose reputation for good character was squeaky clean. His trademark as a golfer is his intelligent approach to the sport. He is the most physically fit and the smartest golfer on the course, whose preparation and discipline are unparalleled.
So what? Bill Clinton was the smartest guy in any room. He was the freakin’ president of the U.S., dude.
Borenstein’s Law holds that decisions and conduct which are against an individual’s best interests and therefore by common sense would seem to be unlikely, are actually within the normal range of human behavior, no matter the stature of the individual in society. This kind of apparently irrational risky behavior accounts for most of the annoying things teens do, most crimes of impulse, and most philandering in the upper crust.
More interesting is that the Woods case seems to illustrate a corollary to Borenstein’s Law: Goodness (i.e., high moral character) and Greatness (i.e., exceptional achievement) are often mutually exclusive, that is to say people of great accomplishments in their chosen field usually would not qualify for sainthood if the standard is morality in their private lives.
The examples proving this point are too numerous to mention, but I will mention one prominent example. Albert Einstein, perhaps the greatest thinker of the 20th Century and one of the greatest of all time, was a self acknowledged failure as husband and father.
He was a selfish man, discarded his first wife (herself a trained physicist whose ideas may have contributed to his early work) and their three children without a second thought after years of surreptitious affairs, including one with his cousin, who became his second wife. He then proceeded to be unfaithful to her as often as the opportunities arose. He admitted his personal failings, attributing them to his nature, and his need for concentration on his work.
One other point worth mentioning. When the subject arises, the conclusion is often criticized as chauvinistic, seen as a weak argument justifying male prerogatives relating to monogamy. I don’t believe the propensity for risky behavior is limited to one sex.
I.e.: Catherine THE GREAT. Q.E.D.
But after all, the head scratchers say, Woods is one athlete whose reputation for good character was squeaky clean. His trademark as a golfer is his intelligent approach to the sport. He is the most physically fit and the smartest golfer on the course, whose preparation and discipline are unparalleled.
So what? Bill Clinton was the smartest guy in any room. He was the freakin’ president of the U.S., dude.
Borenstein’s Law holds that decisions and conduct which are against an individual’s best interests and therefore by common sense would seem to be unlikely, are actually within the normal range of human behavior, no matter the stature of the individual in society. This kind of apparently irrational risky behavior accounts for most of the annoying things teens do, most crimes of impulse, and most philandering in the upper crust.
More interesting is that the Woods case seems to illustrate a corollary to Borenstein’s Law: Goodness (i.e., high moral character) and Greatness (i.e., exceptional achievement) are often mutually exclusive, that is to say people of great accomplishments in their chosen field usually would not qualify for sainthood if the standard is morality in their private lives.
The examples proving this point are too numerous to mention, but I will mention one prominent example. Albert Einstein, perhaps the greatest thinker of the 20th Century and one of the greatest of all time, was a self acknowledged failure as husband and father.
He was a selfish man, discarded his first wife (herself a trained physicist whose ideas may have contributed to his early work) and their three children without a second thought after years of surreptitious affairs, including one with his cousin, who became his second wife. He then proceeded to be unfaithful to her as often as the opportunities arose. He admitted his personal failings, attributing them to his nature, and his need for concentration on his work.
One other point worth mentioning. When the subject arises, the conclusion is often criticized as chauvinistic, seen as a weak argument justifying male prerogatives relating to monogamy. I don’t believe the propensity for risky behavior is limited to one sex.
I.e.: Catherine THE GREAT. Q.E.D.
Friday, October 23, 2009
Bullshit
The reason for global warming should be obvious: the world is full of bullshit. There is more in the world now than there has ever been. We now have entire fields of study which are founded on bullshit, obtaining grants to collect and disseminate bullshit. We are now inundated with “information” which we call “data” but which is mostly bullshit. We have a proliferation of Art, 99% of which is bullshit. How much of the internet is bullshit? Are you kidding?
Even before the internet, there was already so much bullshit on television, radio, in newspapers and magazines that it was nearly impossible to discern what was not bullshit. Now, the static of bullshit pervading cyberspace boggles the brain.
All advertizing is bullshit. Large chunks of serious institutions have been taken over by bullshit. Government, The Law, Medicine, Sports, Literature, Art, Business, Education from top to bottom are infested with bullshit.
Religion, philosophy and “serious thought” are pervaded by bullshit. There are entire bullshit sciences: psychiatry, psychology, sociology, anthropology. Most history is bullshit. Take away the bullshit and you have a slim volume of commons sense known to anyone with an I.Q. higher than an imbecile (and, oh, the I.Q. test is also bullshit).
What do I mean by bullshit?
I mean garbage, waste, lies, dissembling, poses, self-serving nonsense, sentimental wishes, statistics, anecdotal evidence, anything said in a political campaign, most medical tests, all local news programming.
When the little boy in Hans Christian Andersen’s story saw the emperor parading naked, he should have cried, “Bullshit!”
Andy Warhol was a “bullshit artist” in both senses. So are all the cable talking heads, the Sunday pundits, the PBS experts (including Deepak Chopra, Suze Orman,). Talkradio is the font of more bullshit every day than was produced in all the books of every century before the Twentieth.
The Twentieth Century was the bullshit century. The greatest figures of the era were bullshitters of the highest magnitude: Mussolini, Hitler, Churchill, FDR, JFK, Nixon, Reagan, Clinton. Our heroes are mostly made of bullshit (“bravado” = bullshit). Bullshit is the definition of acting and accounts for most of what we are fascinated with about celebrities.
The cure for bullshit is simple. Skepticism — a state of mind which stands uncomfortably between cynicism and apathy — is the antidote. When you see it, doubt it. When it moves you to tears, proceed from the assumption that you are being manipulated. When it makes you angry, ask who wants you to feel that way. Who benefits from the news stories about crime? How did the latest subject on the gossip shows become an “issue.”
It is true that there has always been bullshit. Bullshit thrived throughout history. Myths, legends, superstition, the Middle Ages (the Age of Bullshit). The start of every war can be traced to bullshit, and most were won or lost by bullshit.
But we were led to believe that the modern age would distinguish itself by overcoming bullshit. In science and medicine, truth would triumph over ignorance for the betterment of mankind.
The Founding Fathers were products of an era historians call The Age of Enlightenment, when bullshit was recognized as the enemy of man. Having seen through such bullshit notions as “the divine rights of kings”, they hoped that an idea like democracy might work. The hypothesis was: “You can bullshit some of the people some of the time and some of the people all of the time, but not all of the people all of the time.”
The plan required that th people would be educated and informed of the dangers of the bullshit-riddled future. It assumed that the people would choose to be guided by an enlightened and intelligent elite — a group not unlike, oh say, the Founding Fathers. They would be a cut above the people in the ability to reason, the eloquence to lead, and mostly, possessed of just enough independent wealth to allow them the luxury of expressing selfless wisdom to act for the common good occasionally — on the really important issues. Parenthetically, it should be noted that this has worked during our history. Noblesse oblige, the duty of enlightened wealth and upper classes to govern wisely and selflessly has provided many of our best leadership: the Roosevelts, Kennedys, Adamses, Byrds, Rockefellers, etc.
The U.S. Constitution stands as the most remarkable work of protection against bullshit ever devised out of a laboratory. The checks and balances every textbook so glibly mention are an ingenious expression of the anti-bullshit political theory. No one group is to be trusted not to bullshit the others.
Even so, Jefferson and some others still smelled bullshit. They didn’t buy the argument that individual rights would be protected against the greatly increased power of the new improved people’s government. The proponents argued that it was not necessary to enumerate individual rights into the document. Those rights were well understood by the founders who were English gentlemen by birth and lawyers by training. These rights were guaranteed to every Englishman through the English constitution, a conglomeration of written documents and laws, unwritten traditions. They had incorporate these rights into the charters of their colonies and now their states’ constitutions, and the states were to be independent and sovereign.
Besides, the clever argument ran, the mere definition of individual rights was dangerous. It would lead to the conclusion that the defined rights articulated the exclusive list of rights possessed by individuals. That was contrary to their intention. They meant the powers of government to be circumscribed, clearly defined and limited, with all the other powers, rights and residue belonging to the people. The argument was somewhat prophetic as throughout much of our history parsing of the language and divining of the intentions of our constitution has become a parlor game played by Supreme Court justices and law professors.
Jefferson the scientist remained skeptical. He felt more comfortable putting it in writing. The result was The Bill of Rights, which has become the model for every constitutional democracy.
So did it work? Did it prevent or at least restrain the bullshit? Let’s first admit that the odds were long. It is in the nature of things that most everything is bullshit. It is simply part of the nature of the human animal to survive by wits, which means learning to bullshit better than the next guy. Every baby cons its mother into attentiveness by tears and tantrums. Toddlers trick their peers away from their toys, the best students learn to fools their teachers, rites of passage into manhood and womanhood involve successfully duping members of the opposite sex as well as a large dose of self-deception for survival.
In politics, democratic leadership inherently requires bullshitting the largest numbers of people, persuading them to do what is right contrary to their self-interest, usually by manipulation and promises.
Jefferson pinned his hopes for bullshit detection on the concepts contained in one cluster of clauses of the First Amendment — no state religion, unrestricted freedom of speech and press, peaceable assembly, and petition for redress of grievances. The idea was that if given access to all points of view, the people would sort out the bullshit and eventually make the right choices. There would be no state religion, no one Truth about ultimate questions. Rather, there would be a diversity of theories to choose from. The same with political truths: let everyone state a point of view, try to prove it, argue it, print it, try to persuade others, march about it, get together with others of like mind, complain to the government about it. Eventually, right choices would be made.
But Jefferson never anticipate the power of Bullshit. The mass media and now the internet have produced volumes of misinformation. He never imagined how much misleading data would bury the people trying to sort out the few nuggets of truth from the piles of bullshit. The naked emperor in our world is hidden behind blizzards of bullshit.
Jefferson, the architect, botanist, agronomist, philosopher, historian, naturalist, and lawyer could never have foreseen that there would come a time when everyone became a specialist, when the educated elite, the best and brightest that he relied on, would be so overwhelmed in bullshit about their own field of study that they could not hope to lead others in general debate over diverse issues. The most educated of us are narrow-minded and suspicious, self-interested without pause. Doctors and lawyers hate each other; scientists learn government to milk it rather than check it.
The system envisioned by the founding fathers, of enlightened leaders followed by an educated informed people, foundered on the mass of bullshit.
What does that leave us with? The only hope was to educate the people to fend for themselves. The mass media promised to inform, but it deforms, manipulates, distorts by overemphasis, creates hysteria. The free press, conceived as protectors of dissent and a marketplace of creative ideas, has devolved into just a marketplace of shabby commercialism. Since first discovered by Hearst and Pulitzer to be a profitable consumable, the News Business, pandering to the lowest tastes regarding crime, scandal, or salable issues, is an industry captured by the compulsion to SELL, not to inform.
We had the hope that public education, free to everyone, would insure that all the people would be able to recognize the bullshit. But we are failing miserably, even to insure basic literacy. Educators focus on giving information (data, bullshit) rather than teaching how to sort it out. There are so many people to process and so much bullshit to plow through that teachers become buried under it and eventually give up or become part of the bureaucracy that cultivates bullshit for a living.
The result is a public mired in cynicism and apathy. Most people don’t bother to vote, too discouraged by the weight of bullshit. Those who do vote, increasingly and understandably, do so to express a narrow self-interest — an issue or small constellation of related issues they perceive as relevant to their lives — and even then, are easily manipulated into buying bullshit.
Even before the internet, there was already so much bullshit on television, radio, in newspapers and magazines that it was nearly impossible to discern what was not bullshit. Now, the static of bullshit pervading cyberspace boggles the brain.
All advertizing is bullshit. Large chunks of serious institutions have been taken over by bullshit. Government, The Law, Medicine, Sports, Literature, Art, Business, Education from top to bottom are infested with bullshit.
Religion, philosophy and “serious thought” are pervaded by bullshit. There are entire bullshit sciences: psychiatry, psychology, sociology, anthropology. Most history is bullshit. Take away the bullshit and you have a slim volume of commons sense known to anyone with an I.Q. higher than an imbecile (and, oh, the I.Q. test is also bullshit).
What do I mean by bullshit?
I mean garbage, waste, lies, dissembling, poses, self-serving nonsense, sentimental wishes, statistics, anecdotal evidence, anything said in a political campaign, most medical tests, all local news programming.
When the little boy in Hans Christian Andersen’s story saw the emperor parading naked, he should have cried, “Bullshit!”
Andy Warhol was a “bullshit artist” in both senses. So are all the cable talking heads, the Sunday pundits, the PBS experts (including Deepak Chopra, Suze Orman,). Talkradio is the font of more bullshit every day than was produced in all the books of every century before the Twentieth.
The Twentieth Century was the bullshit century. The greatest figures of the era were bullshitters of the highest magnitude: Mussolini, Hitler, Churchill, FDR, JFK, Nixon, Reagan, Clinton. Our heroes are mostly made of bullshit (“bravado” = bullshit). Bullshit is the definition of acting and accounts for most of what we are fascinated with about celebrities.
The cure for bullshit is simple. Skepticism — a state of mind which stands uncomfortably between cynicism and apathy — is the antidote. When you see it, doubt it. When it moves you to tears, proceed from the assumption that you are being manipulated. When it makes you angry, ask who wants you to feel that way. Who benefits from the news stories about crime? How did the latest subject on the gossip shows become an “issue.”
It is true that there has always been bullshit. Bullshit thrived throughout history. Myths, legends, superstition, the Middle Ages (the Age of Bullshit). The start of every war can be traced to bullshit, and most were won or lost by bullshit.
But we were led to believe that the modern age would distinguish itself by overcoming bullshit. In science and medicine, truth would triumph over ignorance for the betterment of mankind.
The Founding Fathers were products of an era historians call The Age of Enlightenment, when bullshit was recognized as the enemy of man. Having seen through such bullshit notions as “the divine rights of kings”, they hoped that an idea like democracy might work. The hypothesis was: “You can bullshit some of the people some of the time and some of the people all of the time, but not all of the people all of the time.”
The plan required that th people would be educated and informed of the dangers of the bullshit-riddled future. It assumed that the people would choose to be guided by an enlightened and intelligent elite — a group not unlike, oh say, the Founding Fathers. They would be a cut above the people in the ability to reason, the eloquence to lead, and mostly, possessed of just enough independent wealth to allow them the luxury of expressing selfless wisdom to act for the common good occasionally — on the really important issues. Parenthetically, it should be noted that this has worked during our history. Noblesse oblige, the duty of enlightened wealth and upper classes to govern wisely and selflessly has provided many of our best leadership: the Roosevelts, Kennedys, Adamses, Byrds, Rockefellers, etc.
The U.S. Constitution stands as the most remarkable work of protection against bullshit ever devised out of a laboratory. The checks and balances every textbook so glibly mention are an ingenious expression of the anti-bullshit political theory. No one group is to be trusted not to bullshit the others.
Even so, Jefferson and some others still smelled bullshit. They didn’t buy the argument that individual rights would be protected against the greatly increased power of the new improved people’s government. The proponents argued that it was not necessary to enumerate individual rights into the document. Those rights were well understood by the founders who were English gentlemen by birth and lawyers by training. These rights were guaranteed to every Englishman through the English constitution, a conglomeration of written documents and laws, unwritten traditions. They had incorporate these rights into the charters of their colonies and now their states’ constitutions, and the states were to be independent and sovereign.
Besides, the clever argument ran, the mere definition of individual rights was dangerous. It would lead to the conclusion that the defined rights articulated the exclusive list of rights possessed by individuals. That was contrary to their intention. They meant the powers of government to be circumscribed, clearly defined and limited, with all the other powers, rights and residue belonging to the people. The argument was somewhat prophetic as throughout much of our history parsing of the language and divining of the intentions of our constitution has become a parlor game played by Supreme Court justices and law professors.
Jefferson the scientist remained skeptical. He felt more comfortable putting it in writing. The result was The Bill of Rights, which has become the model for every constitutional democracy.
So did it work? Did it prevent or at least restrain the bullshit? Let’s first admit that the odds were long. It is in the nature of things that most everything is bullshit. It is simply part of the nature of the human animal to survive by wits, which means learning to bullshit better than the next guy. Every baby cons its mother into attentiveness by tears and tantrums. Toddlers trick their peers away from their toys, the best students learn to fools their teachers, rites of passage into manhood and womanhood involve successfully duping members of the opposite sex as well as a large dose of self-deception for survival.
In politics, democratic leadership inherently requires bullshitting the largest numbers of people, persuading them to do what is right contrary to their self-interest, usually by manipulation and promises.
Jefferson pinned his hopes for bullshit detection on the concepts contained in one cluster of clauses of the First Amendment — no state religion, unrestricted freedom of speech and press, peaceable assembly, and petition for redress of grievances. The idea was that if given access to all points of view, the people would sort out the bullshit and eventually make the right choices. There would be no state religion, no one Truth about ultimate questions. Rather, there would be a diversity of theories to choose from. The same with political truths: let everyone state a point of view, try to prove it, argue it, print it, try to persuade others, march about it, get together with others of like mind, complain to the government about it. Eventually, right choices would be made.
But Jefferson never anticipate the power of Bullshit. The mass media and now the internet have produced volumes of misinformation. He never imagined how much misleading data would bury the people trying to sort out the few nuggets of truth from the piles of bullshit. The naked emperor in our world is hidden behind blizzards of bullshit.
Jefferson, the architect, botanist, agronomist, philosopher, historian, naturalist, and lawyer could never have foreseen that there would come a time when everyone became a specialist, when the educated elite, the best and brightest that he relied on, would be so overwhelmed in bullshit about their own field of study that they could not hope to lead others in general debate over diverse issues. The most educated of us are narrow-minded and suspicious, self-interested without pause. Doctors and lawyers hate each other; scientists learn government to milk it rather than check it.
The system envisioned by the founding fathers, of enlightened leaders followed by an educated informed people, foundered on the mass of bullshit.
What does that leave us with? The only hope was to educate the people to fend for themselves. The mass media promised to inform, but it deforms, manipulates, distorts by overemphasis, creates hysteria. The free press, conceived as protectors of dissent and a marketplace of creative ideas, has devolved into just a marketplace of shabby commercialism. Since first discovered by Hearst and Pulitzer to be a profitable consumable, the News Business, pandering to the lowest tastes regarding crime, scandal, or salable issues, is an industry captured by the compulsion to SELL, not to inform.
We had the hope that public education, free to everyone, would insure that all the people would be able to recognize the bullshit. But we are failing miserably, even to insure basic literacy. Educators focus on giving information (data, bullshit) rather than teaching how to sort it out. There are so many people to process and so much bullshit to plow through that teachers become buried under it and eventually give up or become part of the bureaucracy that cultivates bullshit for a living.
The result is a public mired in cynicism and apathy. Most people don’t bother to vote, too discouraged by the weight of bullshit. Those who do vote, increasingly and understandably, do so to express a narrow self-interest — an issue or small constellation of related issues they perceive as relevant to their lives — and even then, are easily manipulated into buying bullshit.
Wednesday, October 21, 2009
Four Thoughts
(1)I find myself exaggerating my recovery so that I won’t disappoint people who ask me how I feel. If I keep saying "Lousy," especially if I follow up with details about bowel movements and such, friends may eventually stop calling. I know I would.
(2)The U.S. Supreme Court recently upheld a Virginia court’s ruling that an anonymous tip about a supposed drunk driver could not justify a police traffic stop of the car unless the police themselves saw the car do something suspicious. Justice Roberts issued a vigorous dissent, arguing, among other things, that the evil of drunk driving justifies the police action. He wrote: "The effect of [this] rule will be to grant drunk drivers 'one free swerve' before they can be pulled over by the police... It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check." Roberts noted that hotlines and other services encouraged the public to report suspected drunk drivers.
I thought Roberts was supposed to be one of those “conservative” judges who show “judicial restraint” as opposed to those “liberal judicial activists” on the bench who bend their interpretation of the law to conform to their personal preferences. He would never be “result oriented,” would he?
(3)The stock market rebound to above 10,000 has T.V. pundits scratching their wooden heads. How can this be, they whine, when unemployment is at 10% and other signs of the recession persist? They never read their Milton Friedman, the father of neo-conservative economics. When a recession comes, businesses wisely lay off workers to reduce costs. It is the excuse they need to do what they should have done during good times. Now, business improves (meaning bottom lines show net profits because of reduced costs), and it would be foolish to rehire workers, especially at the old hourly rates. Having been squeezed for more than a year, any worker re-hired would be glad to take a huge cut in pay and benefits.
(4)And speaking of benefits. I thought that the main benefit of a universal health care plan was supposed to be to remove the burden from business, as most of the industrialized nations of the world have done for generations and which even the “less civilized” nations of the emerging world recognize as necessary. Once government takes over the job of insuring health care, American businesses can compete with foreign companies. Wasn’t that supposed to be the prime argument — the unified field theory — that cemented the economy’s recovery with health care? Why haven’t I heard that argument made forcefully to support the “public option”?
(2)The U.S. Supreme Court recently upheld a Virginia court’s ruling that an anonymous tip about a supposed drunk driver could not justify a police traffic stop of the car unless the police themselves saw the car do something suspicious. Justice Roberts issued a vigorous dissent, arguing, among other things, that the evil of drunk driving justifies the police action. He wrote: "The effect of [this] rule will be to grant drunk drivers 'one free swerve' before they can be pulled over by the police... It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check." Roberts noted that hotlines and other services encouraged the public to report suspected drunk drivers.
I thought Roberts was supposed to be one of those “conservative” judges who show “judicial restraint” as opposed to those “liberal judicial activists” on the bench who bend their interpretation of the law to conform to their personal preferences. He would never be “result oriented,” would he?
(3)The stock market rebound to above 10,000 has T.V. pundits scratching their wooden heads. How can this be, they whine, when unemployment is at 10% and other signs of the recession persist? They never read their Milton Friedman, the father of neo-conservative economics. When a recession comes, businesses wisely lay off workers to reduce costs. It is the excuse they need to do what they should have done during good times. Now, business improves (meaning bottom lines show net profits because of reduced costs), and it would be foolish to rehire workers, especially at the old hourly rates. Having been squeezed for more than a year, any worker re-hired would be glad to take a huge cut in pay and benefits.
(4)And speaking of benefits. I thought that the main benefit of a universal health care plan was supposed to be to remove the burden from business, as most of the industrialized nations of the world have done for generations and which even the “less civilized” nations of the emerging world recognize as necessary. Once government takes over the job of insuring health care, American businesses can compete with foreign companies. Wasn’t that supposed to be the prime argument — the unified field theory — that cemented the economy’s recovery with health care? Why haven’t I heard that argument made forcefully to support the “public option”?
Sunday, October 18, 2009
One Brief Shining Moment
For one brief shining moment in November of 2008 Americans seemed unified. For the first time in at least a generation, an election produced a meaningful consensus for change.
But it is one of the many curses of long life that I must remember that these shining moments are all too brief and that the shine is easily and quickly tarnished.
The reality is that the default position for the American electorate is stasis; i.e., resistance to real change. The nature of our politics is that elections are decided by a small percentage of voters - so-called swing voters because they have no ideological or party loyalty. Rather, they sway from left to right to middle, easily manipulated by events, rhetoric, rumor, always motivated by fear.
Obama’s brief shining moment, his Golden Age, may be one of the shortest ever. FDR’s lasted about four years (1933 through 1936); LBJ’s two years (1965 and 1966).
If the health care law turns out to be a disappointment, meaning that (1) it fails to provide universal coverage, (2) seems to be a boondoggle to the insurance companies, and (3) is perceived to be too costly for most people, and if unemployment continues to rise or seems to be stagnant, the midterm election of 2010 may bring an end to any possible alteration of the status quo.
I well remember the 1960's, an era which - to this current generation - stands mostly for excessive optimism and bad hair. The notion that spiritual enlightenment was achievable through individual or collective shortcuts such as drugs, meditation, rock and roll, or free love is rightly viewed as a ridiculous illusion.
But that is not the 60's that I best remember. Another side of the optimistic urge for change manifested in more rational but no less hopeful attempts at leaps of progress. The United States Supreme Court, an institution which for most of our history has been a powerful force against even incremental change, for the blink of an eye under Chief Justice Earl Warren, carried the struggle for societal progress, with revolutionary decisions that enforced racial equality, ensured the separation of church and state, and gave new meaning to the Bill of Rights, especially the often neglected minority protections, the 4th, 5th, 6th and 8th Amendments. It has taken the powers of reaction 40 years to unravel the framework the Warren Court constructed.
In the middle of the decade, political winds gathered to create a perfect storm of progress that had not been equaled since 1933. After the death of JFK, the Republicans nominated Barry Goldwater, the most ideological and polarizing candidate possible. LBJ won a strong mandate and used his unique position as a Southerner with a congressional expertise to pass the Civil Rights Act, the most important racial equality law passed since Reconstruction.
In 1965, LBJ pushed through the Congress the experiment in socialized medicine called Medicare. He followed this with the most optimistic set of programs since the New Deal: his War on Poverty, a constellation of programs designed to directly aid the poor. It included Head Start, the Job Corps, food stamps, and was credited with reducing the percent of families below the poverty line to the lowest it had ever been.
Of course, LBJ soon trashed all the possibilities for progress with his tragic Vietnam policy. Most of his programs were quickly dismantled with the rise of Milton Friedman, resulting in deregulation, reliance on so-called “free markets”, the decline of trade unionism, and “trickle down economics.”
Beginning in the disastrous year of 1968, the Democratic Party began a rapid decline. Progressivism (poisonously labeled “Liberal”) became a dirty word, rejected by the two successful presidential candidates, both right of center Southern governors, Jimmy Carter and Bill Clinton. Both tried to meld a few social policies that were mildly progressive with economic policies that co-opted moderate Republican positions. Both abetted the erosion of Constitutional freedoms, supporting laws that expanded the police power of the government. Carter began the rush to deregulation; Clinton raised campaign fundraising to an art, surpassed Republicans in pandering to corporate lobbyists with the resulting policies that declared “the era of big government was over” and abetting a free market boom that laid the groundwork for Bush’s subsequent rape of the middle class and the crash of our entire economy.
The election of 2008 at first presented a mirror image of the 1968 election. This time, it was the Republican candidate who was saddled with the legacy of disaster by his party’s president. The difference was that this Democrat presented a literal face of change in the most obvious sense. Yet, in a sense, this was an illusion. Oddly, Barack Obama resembles JFK in this way. His personal image wreaks of change, but his politics is actually less radical than his image.
Obama’s overwhelming victory, which dragged in Democratic majorities in both houses of congress, was another illusion. The apparent “mandate for change” neglected to consider the realities, particularly of Democratic party politics. Clinton democrats really control the Senate, with “Blue Dogs”, or heirs of the Democratic Leadership Council, whose politics are barely distinguishable from Republicans.
The lack of difference between the parties has been decried by many observers, cited as responsible for cynicism or apathy among the electorate. Contrary to the wishes of many, Obama is not the massiah of liberalism. He is a Centrist, who learned the lessons taught by Clinton in the 1990's regarding radical social issues. He will be satisfied with a health care bill that passes, whether or not it contains a “public option,” and whether or not it provides universal coverage. He will claim victory and make the best argument he can for the practical need for compromise in order to achieve “progress,” no matter how imperfect.
And he will be right.
But it is one of the many curses of long life that I must remember that these shining moments are all too brief and that the shine is easily and quickly tarnished.
The reality is that the default position for the American electorate is stasis; i.e., resistance to real change. The nature of our politics is that elections are decided by a small percentage of voters - so-called swing voters because they have no ideological or party loyalty. Rather, they sway from left to right to middle, easily manipulated by events, rhetoric, rumor, always motivated by fear.
Obama’s brief shining moment, his Golden Age, may be one of the shortest ever. FDR’s lasted about four years (1933 through 1936); LBJ’s two years (1965 and 1966).
If the health care law turns out to be a disappointment, meaning that (1) it fails to provide universal coverage, (2) seems to be a boondoggle to the insurance companies, and (3) is perceived to be too costly for most people, and if unemployment continues to rise or seems to be stagnant, the midterm election of 2010 may bring an end to any possible alteration of the status quo.
I well remember the 1960's, an era which - to this current generation - stands mostly for excessive optimism and bad hair. The notion that spiritual enlightenment was achievable through individual or collective shortcuts such as drugs, meditation, rock and roll, or free love is rightly viewed as a ridiculous illusion.
But that is not the 60's that I best remember. Another side of the optimistic urge for change manifested in more rational but no less hopeful attempts at leaps of progress. The United States Supreme Court, an institution which for most of our history has been a powerful force against even incremental change, for the blink of an eye under Chief Justice Earl Warren, carried the struggle for societal progress, with revolutionary decisions that enforced racial equality, ensured the separation of church and state, and gave new meaning to the Bill of Rights, especially the often neglected minority protections, the 4th, 5th, 6th and 8th Amendments. It has taken the powers of reaction 40 years to unravel the framework the Warren Court constructed.
In the middle of the decade, political winds gathered to create a perfect storm of progress that had not been equaled since 1933. After the death of JFK, the Republicans nominated Barry Goldwater, the most ideological and polarizing candidate possible. LBJ won a strong mandate and used his unique position as a Southerner with a congressional expertise to pass the Civil Rights Act, the most important racial equality law passed since Reconstruction.
In 1965, LBJ pushed through the Congress the experiment in socialized medicine called Medicare. He followed this with the most optimistic set of programs since the New Deal: his War on Poverty, a constellation of programs designed to directly aid the poor. It included Head Start, the Job Corps, food stamps, and was credited with reducing the percent of families below the poverty line to the lowest it had ever been.
Of course, LBJ soon trashed all the possibilities for progress with his tragic Vietnam policy. Most of his programs were quickly dismantled with the rise of Milton Friedman, resulting in deregulation, reliance on so-called “free markets”, the decline of trade unionism, and “trickle down economics.”
Beginning in the disastrous year of 1968, the Democratic Party began a rapid decline. Progressivism (poisonously labeled “Liberal”) became a dirty word, rejected by the two successful presidential candidates, both right of center Southern governors, Jimmy Carter and Bill Clinton. Both tried to meld a few social policies that were mildly progressive with economic policies that co-opted moderate Republican positions. Both abetted the erosion of Constitutional freedoms, supporting laws that expanded the police power of the government. Carter began the rush to deregulation; Clinton raised campaign fundraising to an art, surpassed Republicans in pandering to corporate lobbyists with the resulting policies that declared “the era of big government was over” and abetting a free market boom that laid the groundwork for Bush’s subsequent rape of the middle class and the crash of our entire economy.
The election of 2008 at first presented a mirror image of the 1968 election. This time, it was the Republican candidate who was saddled with the legacy of disaster by his party’s president. The difference was that this Democrat presented a literal face of change in the most obvious sense. Yet, in a sense, this was an illusion. Oddly, Barack Obama resembles JFK in this way. His personal image wreaks of change, but his politics is actually less radical than his image.
Obama’s overwhelming victory, which dragged in Democratic majorities in both houses of congress, was another illusion. The apparent “mandate for change” neglected to consider the realities, particularly of Democratic party politics. Clinton democrats really control the Senate, with “Blue Dogs”, or heirs of the Democratic Leadership Council, whose politics are barely distinguishable from Republicans.
The lack of difference between the parties has been decried by many observers, cited as responsible for cynicism or apathy among the electorate. Contrary to the wishes of many, Obama is not the massiah of liberalism. He is a Centrist, who learned the lessons taught by Clinton in the 1990's regarding radical social issues. He will be satisfied with a health care bill that passes, whether or not it contains a “public option,” and whether or not it provides universal coverage. He will claim victory and make the best argument he can for the practical need for compromise in order to achieve “progress,” no matter how imperfect.
And he will be right.
Subscribe to:
Posts (Atom)
