Negotiating From Weakness

President Obama’s recent miseries brought to my mind some of my own. 

I am always reminded that Obama is a trained lawyer, which means that he suffers the defect of being able to see both sides of any question. 

It also means that he understands and values the concept of "reasonable" choices, relative victories, and acting in the best interests of the client.

This often means that the result he can manage will satisfy neither his ungrateful client nor quibbling observers. He is stuck in the middle.

Here’s a hypothetical case for you consideration.

Let us say that I am defending a client who is accused of serious crimes. If I lose the case, my client’s maximum exposure is life in prison. There is evidence against him, but I also have arguments that support my client’s position. He asserts his innocence, but he knows that it looks bad and he fears the worst.

I have some choices in negotiating with the prosecution.

First, I can insist on the rightness of my position, demand a dismissal OR ELSE. The or-else is the dreaded jury trial. 

That of course is risky. Which side has more to lose? Even a partial win (acquittal on some counts) will leave my client vulnerable to a long sentence if convicted of other charges. The chances of a total acquittal are slim.

Forty years ago, as a young public defender, I was tempted to force every case to trial. The ethic of the nobility of the "lost cause" was my romantic ideal. I wanted to be Jimmy Stewart in "Mr. Smith Goes To Washington" or Al Pacino in "And Justice For All" (shout at the judge: "You’re out of order!"). Some of my friends acted that way. They gained quick experience at the expense of clients, and burnt out quickly.

Second, I can try for a compromise plea bargain, find a middle ground that might be acceptable for my client and the prosecutor.

This choice leads to others:

I can be aggressive, choose a bottom line punishment and stick to it: one time offer, take it or leave it.

Problem is, if I insist that I will stand fast, what is my or-else threat?

Answer: a jury trial. 

But as I noted, that is risky for my client. What has the DA to lose by a trial?

My second negotiating option is to be conciliatory, concede the strength of his evidence, while still urging my arguments in opposition, pointing out the weaknesses of his evidence and the risks he faces by going to trial, and showing that his goal (what he perceives as justice) can be attained by my suggested compromise.

The simple fact is that I am almost always dealing from a weaker position than the DA.

No matter how the relative strengths of the evidence seem to stack up, the reality is that the scales of justice are always balanced in favor of the prosecution. Ideal principles claim balance in favor of the accused: presumption of innocence, burden of proof beyond a reasonable doubt. But life in the big city belies these ideals. Judges and jurors presume guilt, not innocence of anyone accused. The more serious the crime, the lower the burden on the DA to prove guilt. Jurors fear criminals so much that they twist the old dictum: better to convict ten innocent persons than to let one guilty one go free.

I admit that all of this is contrary to the public perception that sly defense lawyers have the upper hand, that the system is a swinging door designed to apologize to the bad guys. That may happen in the extremely rare celebrity dream team trial, but in the day to day working of our judicial system, the accused is at a distinct disadvantage.

It doesn’t feel good to always be on the defensive, to be conciliatory rather that aggressive. But the defense lawyer’s duty is to act in the best interests of the client, not his own. If that means swallowing hard and making a bitter deal, the best that can be made, so be it.

That is why I sympathize with Obama.  The sniping from all sides, must hurt like hell.

All The News ... Add ...

The media stories about the British scandal involving revelations of wrongdoing by employees of News Corporations’s tabloids are almost as titillating as stories in his tabloids. It is fun to see Rupert Murdoch squirm, and we can all enjoy the tabloid press getting a dose of its own medicine, suffering from scandal and outrage, the very things it has curried for so long. It seems a pleasing and humorous comeuppance tale of what comes-round-goes-round symmetry.

The core of the story - ethical excesses by the tabloids in digging up and creating sensational stories - is hardly news in the long view of things.

Tabloids have always made their bones by marketing items about sex, crime, corruption, celebrities, and any combination of the above. Sensation sells, sex sells, bloody photos sell, and selling is their only reason for being, not information or reform, although those "journalistic" principles are the excuse.

Truth is that in the colorful and nasty history of the tabloid press in Great Britain, the U.S. or elsewhere in the world, Murdoch’s rags aren’t even in the top ten of sleaziest. 

In the early days of the Twentieth Century, Pulitzer and Hearst notoriously competed in the most bloodthirsty howling that headlines had ever seen. In the 1920's in New York and Chicago, the competition among daily tabloids was ruthless and unrelenting. Celebrity culture reached a zenith with newspapers creating stars from the headlines, from Babe Ruth to Charles Lindbergh to Rudolf Valentino to Al Capone, and destroying them, as exemplified by the crushing of comic Fatty Arbuckle by Hearst's misleading and sleazy reporting about his trial for manslaughter when a drunken starlet died after sex during a "Hollywood party" (though it happened in San Francisco). 
 

But the more dangerous aspect of the Murdoch story has not yet been mined by the media and may never be explored for fear of overturning the entire rotten structure of our "free press" or perhaps for fear of Murdoch's power to retaliate. 

Even so, the scandal is providing a clue as to one of the ways that Murdoch uses his power to gain more power. Like all in business, Murdoch needs influence to thrive. Of course, he makes monetary contributions to politicians in the millions. And he certainly encourages friendships with politicians that they know are important because kissing the ass of the a billionaire media mogul who can influence public opinion is wise policy for a politician.

But this is not news. Other media moguls throughout history have been influential in politics. For example, Horace Greeley of the New York Tribune was a power broker in the Whig, then Republican Party, in the mid Nineteenth Century, influencing policies and attitudes toward all of the great issues of the day: slavery, the Civil War, reconstruction, the western migration, the destruction of the Native American tribes.

In England, Alfred Harmsworth (aka Lord Northcliffe) was owner of The Times and Daily Mail. During World War I, after undermining the prime minister, Lord Asquith, by scathing editorial attacks and biased reports, he was rewarded by appointment as Director for Propaganda by the next prime minister, Lloyd George. This was appropriate because his newspapers had instigated the war with vicious anti-German reporting. Under Northcliffe’s lead, wartime restrictions on newspaper reporting of the blunders of British military leaders during the war was almost total.

(Harmsworth friend, Robert McCormick, owned The Chicago Tribune, which, during the 1930's was a vocal opponent of F.D.R.’s New Deal and was steadfastly isolationist until Pearl Harbor. Joseph Medill Patterson, McCormick’s cousin, bought The New York Daily News in 1919).

The real threat posed by Murdoch’s accumulation of power and his willingness to use it can be seen when you consider what J. Edgar Hoover did as director of the F.B.I.

Hoover ordered his agents to secretly investigate people he suspected of a wide variety of what he considered "wrongdoing". To him, this ranged from "sexual perversion" — which might mean extra marital affairs or homosexual encounters or a kept mistress or a mixed racial relationship — to "criminality" or "anti-American activity." These labels could include any suspicion of membership or contribution to or attending a meeting of any group that Hoover thought of as leftist or upsetting to Hoover's southern biased sensibilities.

Proving that knowledge is power, Hoover’s secret dossiers on F.D.R., L.B.J., and J.F.K. assured his continuing in office long after his negative traits as an administrator should have sent him into retirement. Files on important members of Congress and the media (including Hollywood) also insured that the Bureau itself would never be investigated, its budget never cut, and that the legend of its perfection would never be challenged — the myth of the F.B.I. was protected by extortion.

It is now becoming clear that Murdoch uses his tabloids in much the same way. His editors pay for information — no matter how obtained — not only for sensational stories about murders and celebrity gossip — but far more importantly, to get dirt about politicians. 

Following the practices of spy agencies such as the FBI, the media pays informants (some of whom have ties to such organizations) to act as "agent provocateurs" to create the story by procuring the sex, drugs, situations to entrap subjects -- celebrities or politicians -- into the compromising and embarrassing poses, for cameras, tapes, and computers. 

Some of these stories are published, ending careers of some -- as cabinet members have been snared in the time-honored way (remember Profumo). But the rest are kept in secret files, stored as a deterrent to government interference with the Murdoch empire: regulations, denial of licenses, anti-trust investigations, tax breaks — any of the innumerable issues that billionaire business people need to control.

In the U.S., the influence of News Corp, Fox News — including Dow Jones, The Wall Street Journal, the Fox chain of broadcast stations — is enormous and growing. Its ties to the Republican Party are well known.

It employs and supports past and future candidates, personalities, commentators in interlocking influence peddling and policy creating panels. It channels vast sums of money for its purposes, curries influence, carries enormous weight simply because of its ratings — Fox News cable channel is by far the highest rated (over CNN and MSNBC).    

The New York Post, when I was a boy, was the liberal afternoon tabloid in a city with plenty of right wing representation, namely The Daily News. Murdoch turned The Post into a right wing scandal sheet, reporting on sex, celebrities, crime.

Just as the abuses of power that Nixon threatened represented a far greater danger than the transgressions that popular memory has chosen to trivialize under the misleading label, "Watergate," Murdoch's "hacking" scandal underestimates the danger his conduct presents.

All The News That Fits

Nancy Grace with open mouth

Although I reject the dangerous practice of drawing generalities from highly publicized criminal cases, the recent Casey Anthony trial had one salutary effect, at least for my consciousness raising.
I was exposed for the first time to Nancy Grace, who comments for HLN TV (a CNN affiliate). This woman is depicted as a "reporter" of the trial proceedings. In truth, she is a leader of a lynch mob. Her bias against the defense is open and vitriolic, amounting to self-righteous hatred.

Doing some research, I discovered that she had been a prosecutor in Atlanta for ten years, during which she was cited several times by Georgia appellate courts (not the most liberal forums one can find) for prosecutorial misconduct, including acts which concealed from the defense the presence of suspects other than the accused she was prosecuting, and for extreme and misleading arguments.

Later, when she turned to television "journalism" (the word sticks in my throat), she destroyed a mother of a missing child during an interview in which she implied that the woman was to blame for her child’s disappearance, after which the woman committed suicide. Grace reacted with pleasure, calling the suicide the product of a guilty conscience although the woman had never been accused by police of any wrongdoing.

Undeterred, Grace wrote a book in which she lambasted all criminal defense lawyer, calling them pigs and equating them to Nazis. The book thus sold well, even though it was later revealed that she had plagiarized whole chunks from other sources.

Grace is still employed, and in fact her broadcasts have high ratings.

Now, the news is full of reports regarding Rupert Murdoch’s run-ins with British politicians. The Australian "news magnate" whose American empire includes the Fox chain of television and radio channels as well as The Wall Street Journal (part of The Dow Jones Co.) and The New York Post, among others, shut down his British tabloid, The News Of The World, amid accusations that his employees had conducted a pattern of illicit activities, including hacking into the cellphone voicemails of murder victims.

The scandal exposed other practices of his papers involving politicians. The rag reveled in sex gossip, revealing the secret lives of celebrities, with "investigative" tactics that included paying informants for dirt and photos, secret taping, bribing, embarrassing. The Conservative Party prime minister admitted that he and his party’s reluctance to criticize Murdoch and his publications was in part due to their support.

The other part was fear, not just fear of opposition, but fear of being targeted by Murdoch and his tabloids. No public person is immune to ridicule if his or her private life is examined with the microscope. One woman MP who dared to criticize the tabloid on feminist grounds for exploiting female nudity was ridiculed mercilessly in the News Of The World.

This is not the first recorded instance of an overbearing press in the history of the world.

It should be remembered that these Murdoch tactics of intimidation were used in the 1950's to destroy the careers of any person accused or rumored to be communist, or socialist, or leftist, or pinko, or fellow traveler ... or a civil rights activist ... or trade union member ... or supporter of the ACLU

In the golden age of the movies, Frank Capra was the sentimental guardian of American values. His movies are remembered for their somewhat simplistic and optimistic view of American society. In a series of now classic films, he placed an idealistic and naive American against a powerful, cynical, manipulative tyrant.

In both "Meet John Doe" and "Mr. Smith Goes To Washington" the bad guy was a corrupting newspaper publisher (both played by Edward Arnold) who aimed to subvert democracy and to gain power. (In the more humorous "Mr. Deeds Goes To Town" press ridicule is depicted as responsible for helping a corrupt lawyer’s attempt to destroy the naive and idealistic Deeds who wants to give away his fortune to deserving unemployed men).

Capra’s model for these baddies was certainly W.R. Hearst, who was notorious for using the power of his news empire to destroy his enemies, whether political or personal, or just for the exercise. He understood that sensational accusation — whether accompanied by evidence or not — was good for circulation. His tabloids outdid his competitors in lurid misrepresentation, innuendo, patriotic humbug, jingoistic slanted reporting, and in creating stories where none really existed.

At its best, the press (now widened to include "media") have benefitted society. The Progressive Movement of the early 20^th Century would not have achieved as much without the muckraking journalists in many cases leading the way to reform relating to issues such as food and drugs, working conditions, poverty, housing, child labor — reforms which in the 21^st Century our corporate culture may finally get its wish list granted to reverse.

There have been important highlights in the television age. Ed Murrow famously exposed McCarthy’s evil. Walter Cronkite capped TV news coverage of Viet-Nam with his reporting and opinion. The Washington Post’s investigative reporters are justly credited with exposing Watergate. Occasional local and national reporting is worthy of the title "journalism".

The U.S. Supreme Court has given the First Amendment’s "press" and "speech" provisions a position of preference among the amendments that constitute the Bill of Rights. The court thus puts high barriers against censorship, even going so far as ruling recently that corporate contributions to political campaigns and violent video games are protected speech.

The reasoning for this is the idealistic dictum that goes as far back as the Enlightenment, that the free exchange of ideas is essential for a free society. Jefferson assumed that the more knowledge the better the chances for democracy to work: an educated and informed electorate would usually do the right thing.

Yet, until I researched Nancy Grace on the internet, I had read no newspaper or television reports disclosing her lack of credibility or her character. I wouldn’t expect that so-called respected news outlet, CNN, or investigating and exposing her flaws. After all, they own her and she makes money for them. But even competing media has not bothered to jump on this. MSNBC which shows such pleasure in nipping at FOX cable news for its transgressions, has not touched her. None of MSNBC’s liberal commentators have taken her on.

I suspect that the reason has something to do with a dogma of the news business that goes as far back as Pulitzer and Hearst. When reporting on criminal cases, the defendant is always presumed to be guilty. Almost a hundred years ago, Hearst’s tabloids famously destroyed Fatty Arbuckle who was tried (and eventually acquitted) of manslaughter in a sensational "Hollywood party" case.

One unanswered question is what effect the internet will have. Greg argues persuasively that the broadening of available sources of information is a net (no pun intended) positive. Since no Hearst or Murdoch can control the entire internet, I see his point. Attempts to commercialize, organize or censor the free flow of information is dangerous. It may soon become the only trustworthy source of free information.

"I, THE JURY"

A proposal.
Some time ago I proposed a new reality show, a televised execution.

I thought the time was ripe for this ultimate melodrama, the real life death of an evil criminal.

Now, following the Casey Anthony trial on Twitter, Facebook, TRU TV, and other social network and cable outlets, the trial before the execution is ready for prime time.

So, here’s my pitch:

TITLE: "I, THE JURY" (with apologies to Mickey Spillane).

Simple high concept:
(1) AIR THE ENTIRE TRIAL (2) VIEWERS VOTE.

Don’t worry about constitutional objections. Not a problem.

Our Supreme Court is far more concerned with protecting and broadening the rights under the First Amendment: religion, press, speech, even if primarily commercial speech, corporations are "people", and the Second Amendment right to own and carry weapons of mass destruction than the less important provisions of the Fifth, Sixth and Eighth Amendments (look them up, yourselves — before they disappear — I know you probably never learned about them in school).

After all, this is the ultimate of free speech and democracy. "The public’s right to know" trumps the mere technicality of the defendant’s right to a fair trial. As the current appellate courts remind us, a criminal defendant is not entitled to a "perfect trial."

Think of the possibilities for commercial tie-ins.

Product Endorsements:

(1) Lawyers’ wardrobes, accessories (Mont Blanc pens, computers, smartphones ...).

(2) Sales of rights for films, books, blogs.

(3) Ad placements in the courtroom.

I am so sorry that my legal career is winding down on the verge of this most wonderful era of criminal law.

Two Cases: One Lone Juror & 37,000 Prisoners

Two appeals affecting criminal cases made news this week.
In one, the US 9^th Circuit reversed a conviction of the robbery murder defendant because a trial judge had removed a juror who was the lone holdout for innocence. The replacement made the guilt judgment unanimous. (Williams v. Cavasos ,filed May 23, 2011,)

Judge Reinhardt’s opinion begins this way:

“Consider two scenes:
Scene One
Juror #8: I just want to talk.
Juror #7: Well, what’s there to talk about? Eleven men in here think he’s guilty. No one had to think twice about it except you.
Juror #10: I want to ask you something: do you believe his story?
Juror #8: I don’t know whether I believe it or not — maybe I don’t.
Juror #7: So how come you vote not guilty?
Juror #8: Well, there were eleven votes for guilty. It’s not easy to raise my hand and send a boy off to die without talking about it first. . . . We’re talking about somebody’s life here. We can’t decide in five minutes. Supposin’ we’re wrong.

Scene Two
Juror #6: I said . . . this is a very important case and we should be very convinced that if the defendant is found guilty that it is beyond a reasonable doubt. . . .
Foreman: We have spent some time now trying to understand the reasonable basis for his doubt, and I personally did not yet understand it . . . . I would say that two thirds of the jurors have tried to persuade — have actively tried to persuade . . . him that his current view is incorrect. . .
Juror #4: Well, I guess he believes from the evidence that he’s seen that there hasn’t been sufficient proof. . . .
Juror #5: I think the question may have been raised: “Do you have a political agenda?” I think [it] might have been in the heat of the argument, because it does get heated back and forth from a bunch of different people. It may have been said. . . .
Juror #9: Well, he said this is a serious thing, and I don’t really feel that there is enough cause for — or something to that effect. . . . What he said was, “I wouldn’t want to take anyone’s freedom away, unless,” you know, “I was sure that certain things took place.” . . . .

"The first passage above is dialogue from the classic Academy Award-winning 1957 film, Twelve Angry Men, in which Henry Fonda plays a holdout juror who, over two tense hours, convinces his eleven peers that the defendant in a murder trial should be acquitted.

"The second excerpt comes from the transcript of proceedings during the petitioner’s murder trial, in which each juror was examined and cross-examined, seriatim and mid-deliberation, after it was reported that one juror was taking a different view from the others. In the end, the trial court dismissed that juror on the ground that he was “biased” against the prosecution. With an alternate juror in place, the jury returned a guilty verdict.

"Twelve Angry Men made for great drama because it violated the sanctity of the jury’s secret deliberations by allowing the audience into the jury room. It was, of course, a work of fiction.

"We are presented here with a similar intrusion into heated deliberations involving a holdout juror, except that this one took place in open court, and it resulted in a woman being convicted and sentenced to life imprisonment after the holdout was dismissed.

"Under the precedent that existed when petitioner’s conviction became final (and exists today as well), the trial court’s actions violated the petitioner’s Sixth Amendment rights, as incorporated with respect to the states under the Fourteenth Amendment.

"We therefore conclude that petitioner is in custody in violation of the Constitution, reverse the judgment of the district court, and remand with instructions to grant the writ."

This case reflects a practical truth about the criminal justice system:

Trial judges are under great pressure to prevent hung juries. Trials are expensive, the law has a strong preference for “finality”, and the truth is that almost all judges are biased in favor of conviction. The 11-1 for guilty hung jury is the bane of every prosecutor. The notion that one loony iconoclast can thwart justice is infuriating, to the judge, the D.A., and to the eleven who see clearly the same way.

Judges have tried to influence the verdict by exerting pressure on the hold out, using so-called “blockbuster” instructions, urging holdouts to bend to the majority vote. Appellate courts have decried the practice, but the pressure persists.

The facts of the case as detailed in the appellate opinion clearly support the appeals court conclusion that the trial judge violated the Sixth Amendment right to a jury trial. 

First, he violated the long established rule that in questioning deliberating jurors, the judge may not inquire which way the allegedly offending juror is inclined to vote. Second, he misinterpreted almost every statement the juror made to justify his conduct. For example, when the juror said that he in a murder case, he had to be “very convinced” beyond a reasonable doubt, the judge concluded that he was wrongly applying a higher standard than the prosecution was required to carry.

In the second case, the U.S. Supreme Court ordered California to reduce its prison population by about 37,000 inmates, finding that the prison overpopulation (@157,000 in facilities designed for half that number) resulted in violation of the Eighth Amendment (cruel and unusual punishment) because of grossly deficient medical and mental health care which was documented in lengthy hearings in the District Court.

The opinion was 5-4, with separate dissents by Scalia (joined by his mate, Thomas), and Alito (joined by his partner, CJ Roberts). The majority opinion was by Kennedy, joined by Ginzburg, Breyer, Sotomayor, and Kagan. (Brown v. Plata - filed May 23, 2011,)


Of course, this case has far reaching implications. The dissenters provide ample fodder for conservative law and order types to scream bloody murder (and rape and robbery, etc) citing the imminent fall of civilization when the prisons are emptied of violent criminals.

This is highly unlikely to occur. A sizeable number of inmates are there because of non-violent crimes: drugs and thefts with “strikes” that extended their sentences because they once suffered “serious” prior convictions.

 Some are suggesting out of state transfers or privatization of the prison system and Gov. Brown had suggested transfer to county jails (not L.A. County, which is in worse shape than the prisons, already so overcrowded that it has long been under scrutiny by the U.S. District Court).

The expensive alternative of upgrading medical and psychiatric facilities, and investing in rehabilitation programs in the institution and counseling and parole supervision on release, is not even on the table.

Nor is any serious adjustment of the disastrous sentencing system that results in disproportionately long mandatory minimum sentences and appointment to parole boards of citizens disinclined to release anybody from prisons.

The Casablanca Lesson

Although released in 1942, "Casablanca" seems to speak to us today with insights to human behavior.

Remember the scene when Major Strasser orders Vichy puppet Captain Renault to close the "Cafe Americain" after the embarrassing singing of "La Marseillaise" drowned out the Germans songfest? 

Renault, who has been playing roulette all evening, follows the orders, finding an excuse.

"I’m shocked," he says. "There’s gambling going on here." He is then given his winnings.

Sixty-nine years later, we hear the Pakistan government echo Captain Renault after the U.S. Navy Seal Bin Laden compound raid.

And what is their response?

Reports from Pakistan are that the embarrassed "intelligence" leaders there have arrested many in Abbotabad and are conducting an "investigation" to determine how Bin Laden could have lived there.

In other words, they are following Captain Renault’s orders after the killing of Major Strasser:

"Round up the usual suspects."

And speaking of the usual suspects, the responses by Republicans have been just as predictable and ineffectual. 

First, at least from the more rational, a more or less grudging acknowledgement of President Obama’s win. 

For most, that was not enough.

There had to be a "but." 

The buttheads followed as the night the day: but he was only following what we started. Cheney, Rumsfeld, Rice, and others emerged to remind us that torture, er, tough interrogation, helped start the ball rolling.

Fun fact. Some American nuts and Islamic conspiracy theorists still choose to disbelieve the killing of Bin Laden on the order of the American president.

As Seth Myers said on SNL, a rare event when people deny that a black man is responsible for a killing.

God and Cheating

Here we go again. I just can’t help loving these junky social science studies that purport to provide revelations about human behavior. Previously, I have reported on one that proved the alarming conclusion that teenagers lie about sex (whether bragging about "experience" or "restraint"). Another expensive study explained why students procrastinate ... they fear failure or are just plain lazy. Who woulda thunk it?

Now the L.A. Times reports one of the best I have ever seen. A magazine with the self important title of "International Journal for the Psychology of Religion" published a startling study (which they did not conduct, but instead claimed to have vetted and peer reviewed), called "Mean Gods Make Good People: Different Views of God Predict Cheating Behavior".

As the title suggests, the 100 undergrad students who were tempted to cheat on a test were asked about their particular beliefs in a deity. The study concluded that those who claimed to believe in a fire and brimstone, vengeful, scary Old Testament kind of God cheated less than those who asserted a belief that "God" was just and merciful.

"In line with many previous studies, it found no difference between the ethical behavior of believers and nonbelievers. But those who believed in a loving, compassionate God were more likely to cheat than those who believed in an angry, punitive God."

The article quotes many other studies, including surveys that have concluded that 95% of Americans believe in the existence of God. But which God?

Another study broke it down for us, reminding us that we mostly see God as we see our parents:

"...28% believe in an ‘authoritative’God who is engaged in the world and judgmental,

... 22% in an engaged but ‘benevolent’ God who loves us despite our failings.

Two other groups of believers view the deity as more abstract and less engaged:

...21% conceive of a ‘critical’ God who keeps track of our sins and may render judgment in the afterlife,

... 24% see a ‘distant’ God who set the universe in motion but is not involved in day-to-day life."

[***the last is more like the model my God / parents followed.]

Another conclusion was that:

"More wrathful images of God are related to moral absolutism, while people with benevolent, loving images of God tend to be moral relativists."

[Implication: moral relativists are more likely to cheat. "Moral relativism" of course is a pejorative term used by conservative religionists to refer to "secular humanism", i.e., Godless athiests, aka Liberals.]

Although the co-author of the study acknowledged the need for objectivity, this study, like almost every other one I have read, whether I agreed with the results or not, is highly suspect.

I have spent 40 years questioning people (including thousands of prospective jurors), devising questionnaires to elicit "honest" viewpoints about personal beliefs. My conclusion is that it is almost impossible to be certain about whether the answers provided can be relied on to draw any conclusions.

Duck ... it's The Donald!

The notion that Donald Trump might run for the presidency should be laughable. But in the present political / pop culture climate in the USA the "ha-ha" would be quickly followed by "uh-oh".

David Brooks, the intelligent conservative NY Times columnist classifies The Donald as one of the "obnoxious blowhards" that the American public become enamored of on occasion. He likens Trump to George Steinbrenner, Ross Perot, Bill O’Reilly, Rush Limbaugh, Bobby Knight, Howard Stern, and for balance, includes George Soros, the liberal outspoken billionaire. He might have included others from "the left" such as civil rights shouters Al Sharpton, Jesse Jackson, and Keith Olbermann. Mohammed Ali was probably the first such icon in my memory, a "blowhard" who soared above the pop culture / political fence. Ali was abetted by another blowhard master who saw in him as a kindred ego spirit, Howard Cosell.

Brooks observes that, like others of his sort, Donald’s attraction is his flamboyant aura of success and wealth, traits which many segments of American culture find fatally attractive. The allure is so strong that negatives of character and major flaws in taste, manners, correctness, reason, are overlooked or even seen as signs of iconoclastic courage. Trump, like the other blowhards, says things that his followers wish they had the courage to say, outrageously extreme, but emperor’s new clothes "truths" only people of independent wealth and soaring egos dare to speak.

Brooks’ bottom line is to discount the likelihood of Trump’s presidential ambition, his presence is an amusing and valuable addition to the boring world of cautious politics as usual.

There is a problem with this analysis. History is full of other blowhards who were laughed at by the intellectual rationalists. Even in democracies, populists can become demagogues and if the conditions merit, may metamorphose to tyrants. Fear, caused by economic or political troubles, are such conditions. In our own country, the Depression of the 1930's produced Huey Long, Father Coughlin, and other extreme haters on the left and right. In Europe, Mussolini and Hitler were long viewed as funny blowhards, not worthy of concern.

In the late 1940's and early 1950's, Joseph McCarthy was the loudest blowhard in this country. Long after his demise, his followers continue the conspiratorial paranoid flame burning, giving his name the honor of an "ism". Will we someday be remembering "Donaldism"?

The Un-Civil War?

On its 150^th anniversary, it seemed sensible to refresh my memory about the Civil War. I have been reading "Battle Cry Of Freedom: The Civil War Era" by historian James McPherson. Turns out, things haven’t changed all that much in 150 years.

Today, the debate is still about the power of the central government over the states and the individual, fundamental problems relating to taxation, economy, spending, and welfare. All of these issues have been argued vehemently for more than 150 years, but like racial issues which continue today, the Civil War articulated and dealt with these problems head on, violently, and starkly, providing lessons for us.

Can a government conduct a war and also provide for the welfare of its people?

Can it finance a war and also promote societal progress or must it abandon or roll back the hopes for advancement?

Can it run a deficit and continue to spend, financing war and domestic programs at the same time?

Comparisons between the policies of North versus South, with differing philosophies about the role of government "intrusion" versus "aid", had as much to do with the Civil War experience as the actual fighting.

For example, it seems that, by 1862, the Confederate government had serious financial problems. Less than a year into the war, it was deeply in debt, with inflation spiraling out of control. One cause was the refusal to increase taxes.

McPherson: "Americans had been one of the most lightly taxed peoples on earth. And the per capita burden in the South had been only half that in the free states. A rural society in which one-third of the people were slaves, the South had few public services and therefore little need for taxes."

(Contrary to populist belief, current U.S. tax rates for corporations and individuals rank below most developed countries).

The Confederacy was based on the fundamental purity of "states rights", so states were trusted to collect what taxes were ordered (tariffs and modest direct real & personal property tax of 1/2 of one percent). Only South Carolina obeyed. The other twelve states waffled, ignored or opposed in principle the idea that any central government could force them to do anything.

Just as many of today’s reactionary conservatives (self-identified as Tea Party Movement) champion causes that will hurt them and benefit the wealthy, Southern poor whites in the Civil War era suffered from policies they supported. Not only were their young men fighting the war to preserve the power of the plantation rich to keep their slave based wealth, but the inflation that occurred hurt their families far more than the rich. While they fought the war, their wives and children struggled to keep their farms going.

[Parenthetically, when inflation and scarcity led to black markets and price gouging, scapegoats were found. Guess who? A newspaper wrote: "... native Southern merchants have outdone Yankees and Jews..." Oh wait. "...We shall find all our wealth in the hands of the Jews."]

On the other hand, the Northern economy prospered during (despite or because of) the war. In addition to innovative use of bond sales (presaging the campaigns of the later World Wars), Congress passed the first income tax in our history. It was an intentionally progressive tax, 3 percent on incomes over $800 only, "thereby exempting most wage owners."

Still when the war went badly in the early years, the financial system sputtered. Confidence faltered, led to a panic, a run on banks, and a shortage of money. Lincoln, who McPherson notes was "no financial expert, played little role in congressional efforts to resolve the crisis."

The wartime Congress did act, boldly and successfully. It passed the National Banking Act and elicited the aid of bankers to supply ideas. The government backed and guaranteed loans and bonds by depositing money in the banks, leading to the concept of government bills (greenbacks) being considered "legal tender". (Just as today, there was a cry that this action was unconstitutional, violating the literal words that authorized Congress "to coin money." Paper wasn’t coin. The progressives argued that the "necessary and proper" clause plus a broader construction of "coinage" should apply. Luckily, the ultra conservatives were mostly gone South by then).

Northern inflation was far less severe than that in the rebel states. In fact, the price index of the North in the Civil War was not much different than in the World Wars, less than 100 percent increase from beginning to end, whereas in the South, it rose sixfold.

The Civil War U.S. Congress is considered to be one of the most accomplished in American history. Without obstruction from hidebound Southern conservatives, the Congress passed the Homestead Act, which granted 160 acres of public land "to a settler after five years’ residence and improvements on his (or her, since the law made no distinction of sex) claim." During the war, 25,000 settlers took advantage, by staking claims to over 3 million acres of land. After the war, the westward expansion was fueled by the hopes of a "half-million farm families who eventually settled eighty million acres of homestead land."

A Vermont congressman (Justin Morrill) for years had a pet project, a "bill to grant public lands to the states for promotion of higher education in ‘agriculture and the mechanic arts.’" Passed in 1862, it created the "land grant college movement" leading to establishment of universities such as Michigan State, Penn State, Cal, Wisconsin, Minnesota, Illinois, and many others. The law also included universities in the reunited South after the war.

Another achievement was the "Pacific Railroad Act, granting 6,400 acres of public land (later doubled) per mile and lending $16,000 per mile (for construction on the plains) and $48,000 per mile (in the mountains)" in government bonds to corporations to build the transcontinental railroad. The work began in 1863 (the same year as the Battle of Gettysburg) and was completed in 1868.

While the history of the post Civil War era included vast corruption triggered in part by the corporate power of the railroads, it is also trued that "most Americans in 1862 viewed government aid as an investment in national unity and economic growth that would benefit all groups in society."

In the most ironic parallel, like the Tea Party Movement (TPM) today, Southern secessionists claimed to be inheritors of the original founders of the American Revolution. Lincoln’s election, they cried, would deprive them of their "liberty" and they cited Patrick Henry, and other Virginians for their heritage of "freedom" and their right to "property". It was an odd argument. They fought for the freedom to enslave people as property.

Like the TPM, the CSA was fundamentally white, nativist, intolerant Christian, economically selfish and narrow minded. After the war, American mythology, abetted by romantic notions of the "Lost Cause," elevated the supposed nobility of the Ante-bellum South (e.g., "Gone With The Wind"). But contrary to romantic ideas, some causes deserve to be lost and to be remembered, not fondly but with regret and shame.

Time Marches On

When I was a kid we had one telephone. It was in the hallway near the front door, and when it rang, it was so loud you could hear it all over the apartment. You had to run to pick it up and then yell to your mother, father, or sister, if it wasn’t for you. There was a pad by the phone and several phone directory books nearby. The phone company owned and supplied the phones and updated the books. It was cool to see your family’s name in the book, but a bit disconcerting to notice how many others there were with identical or almost identical names, even in your own neighborhood.

Eventually, I bought a house and had extensions in almost every room. I had an answering machine and an unlisted number. I had to buy new phones and extensions. Later they were wireless and had antennas.

Now, I have a cell phone. It gets the internet with facebook, twitter, texting, so that I hardly ever get phone calls anymore. When it rings, I have to find it because it is the only one I have and it is very small so I misplace it. I have decided to keep it in one central room, probably the hallway near the door.

When I was a kid and got too sick to go to school, the doctor came to the house, told my mother to boil water for his instruments. He gave me a penicillin shot, charged my mother $10.00 which she paid in cash. He drove to his next stop in a Cadillac.

Now, when I am sick, I call the doctor’s office for an appointment. If he can fit me in some time that week, I go to the doctor’s office and sign in. I then sit and wait for an hour or two until I am called into one of the exam rooms. I wait there, until a nurse’s aid comes in with my file and takes my vitals.

Eventually, the doctor arrives. Sometimes he prescribes some medication for me. My co-pay is around $10.00 and he charges the insurance company $60.00. He drives a Mercedes. He doesn’t validate my parking.

When I was a kid, there were seven daily newspapers, four morning, three evening. My grandfather would bring three of them home from the newsstand and my father brought more home every night.

When Kennedy was shot, I grabbed all the newspapers that were left on the seats of the subway train and spent the weekend with the rest of my family and everyone else in the country, watching Cronkite, realizing that things were scary when he welled up, and removed his glasses to announce the time of death.

Now, I read the news on my cell phone (often while I am waiting in the doctor’s office). I saw the videos of the Japanese quake and tsunami, texted my son, brother, sister, nephews, friends, some others. I even spoke to one of them for a few minutes.

It is not the same.

Death Be Not Proud

A few days ago, Donald A. McCartin, a retired Orange County Superior Court judge, wrote an Op-Ed piece in the L.A. Times.

Judge McCartin announces that he had presided over 10 trials which produced death verdicts.

"As a result," he writes, "I became known as 'the hanging judge of Orange County,' an appellation that, I will confess, I accepted with some pride."

However, he reports, except for one of the 10 he condemned who died of "natural causes on death row, none of the others have been executed. One of the worst, the infamous Rodney Alcala, who kidnaped and murdered a 12 year old girl (Robin Samsoe), had been granted a retrial and was resentenced to death.

Sympathy for the victims and families, as well as hatred of the crime (and the criminal) haunted judge McCartin for all the years of appeals and delays. He apparently carried bitterness in his hardened heart.

Now, the judge confesses to a change of heart. 

Though "deeply angered by the fact that our system of laws has become so complex and convoluted that it makes a mockery of decisions I once believed promised resolution for the family members", the judge now is reconciled to the attitude of appellate courts that "death is different" demanding greater scrutiny and care in consideration of appeals. The judge "can live with" this reality.

In fact, he now regrets his support for the death penalty. he wishes he had sentenced Alcala, for instance, to life in prison withoiut parole, which would have spared the victim's family misery of thirty years of wait. 

The family could deal with the fact that the killer "would be shut away, never again to see a day of freedom," and go on to put thier lives back together. 

"And the People of California would (have saved) millions upon millions ... in tax dollars in this meaningless and ultimately fruitless pursuit of death."

Eliminating the death penalty, the judge concludes, would not only save all that money, but more importantly, would prevent "years of emotional torture for victims' family members waiting for that magical sense of 'closure' they've been falsely promised with death sentences that will never be carried out."

The judge then goes further, to state a truth which I long ago argued, spitting in the wind.

"There is actually, I've come to realize, no such thing as 'closure' when a loved one is taken. What families must find is reconciliation with the reality of thier loss, and that can begin the minute the perpetrator is sent to a prison he will never leave. But to ask them to endure the years of being dragged through the courts in pursuit of the ultimate punishment is a cruel lie."

"Let's stop asking people like me to lie to those victim's family members." The governor has the power to do what the state of Illinois has done, convert all 700 pending death row sentences to life without parole.
   

The 160th anniversary of the start of the Civil War is approaching. Reading about that event, which historians unanimously view as a great turning point in our country's life, I keep coming across facts that tease my sense of Deja vu.

For instance, the Republican party's platform in 1860, on which Lincoln ran, contains the following plank:

"That the Republican Party is opposed to any change in our naturalization laws, or any state legislation by which the rights of citizenship hitherto accorded by emigrants from foreign lands shall be abridged or impaired; and in favor of giving a full and efficient protection to the rights of all classes of citizens, whether native or naturalized, both at home and abroad."

In the context of the era, this provision promised repudiation of the "know-nothing" and nativist movements that were the tea party patriots of the day.

Another plank demanded:

"That appropriation by Congress for river and Harbor improvements of a National character, required for the accommodation and security of an existing commerce, are authorized by the constitution and justified by the obligation of Government to protect the lives and property of its citizens."

And:

"That a railroad to the Pacific ocean is imperatively demanded by the interests of the whole country; that the Federal Government ought to render immediate and efficient aid in its construction; and that, as preliminary thereto, a daily overland mail should be promptly established."

Today, these planks would certainly be rejected by any Republican candidate as socialist.

Uncle Sammy update

Some crew members of Cabin in the Sky

Some time ago, I wrote a post about my Uncle Sammy, my father’s brother who died in World War II. I related the amazing story about how I learned the details of his death more than 50 years after the fact. I included some of the documents and photographs, including one remarkable photo of his airplane in flight shortly before it was shot down. All of the information had been provided to me by a gentleman named Donald Olds, who is the historian of the 453rd Bomb Group Association, which I had come across while web surfing.

Now, I have gathered more information about my uncle and the other airmen who served with him from two recently published books.


The first is “An Emotional Gauntlet”, by Stuart J. Wright, University of Wisconsin Press, 2004. The book tells the story of the crew members of a “Liberator” bomber, nicknamed “Corky”, and its crew members. These young men were members of the 453rd, having trained at March Field, Riverside, California, and at fields in Idaho, before being stationed at Old Buckenham, England in January, 1944 along with many other B-24 crews of the 733rd Squadron.

The 733rd was one of four squadrons (732nd, 733rd, 734th, 735th), of the 453rd Bomb Group, which was one of three groups (including the 389th and 445th), which were part of the 2nd Combat Bomb Wing, one of five Wings of Liberators assigned to the 2nd Bomb Division, one of three divisions of the 8th Air Force.

According to this book, “from January to June, 1944, less than forty-one percent of airmen in the 8th Air Force survived fifteen missions ... Less than twenty-eight percent would survive twenty-five missions.”

The author writes that while at March Field, Lt. Donald Lawry, then “Corky’s” navigator, decided to marry his high school sweetheart. His pilot, Bill Eagelson, was to be his best man. "Bill and Lt. Samuel ‘Sammy’ Borenstein, a navigator from the squadron and one of Donald’s closest friends, went out and bought a wedding present and a card.” The wedding occurred at March Field in November, 1943. “Sammy Borenstein and some of the other officers from the 733rd were also present.”

Shortly thereafter the crews ferried their bombers across the U.S., down the coast of South America, across the Atlantic, up the west coast of Africa and eventually arrived at their bases in England to begin combat operations.

Wright notes that a big part of their mission was to lay the groundwork for the eventual invasion of Europe. He gives an almost day-by-day summary of their actions, which helps give a feel for what my uncles’ life must have been like in the months he had left to live.

February 5, 1944 was the first combat mission for the Group. Their target was an airfield in German occupied France, near Tours. On the 6th, the Group bombed a secret base under construction in Siracourt, France. Though the specifics were unknown to the crews, it was in fact a base preparing to launch V-1's the so-called buzz bombs, one of Hitler’s secret weapons. On the 8th, the officers celebrated Bill Eagelson’s 23rd birthday. On the 10th, they bombed an airfield in Holland, and an installation in Hamburg on the 11th.

February 20, 1944 began what was called “Big Week,” seven consecutive days of bombing intended to weaken the German air force. The USAAF and the RAF began round the clock bombing of aircraft plants and other factories, while escort fighter planes would weed out the German fighters that were lured into the sky in defense.

This is a reminder that the American bombers were not only part of a plan of “strategic bombing” intended to destroy military targets, and later to include targets which critics have charged were civilian and without military importance, but were rather chosen for purposes of vengeance, intimidation, or terror. Whatever, it is also true that, at this point in the war, it was crucial to insure air superiority over France and thus destruction of the Luftwaffe was paramount. The American bombers thus served as bait. By June 6, 1944, D-Day, the German Air Force was unable to hamper the invasion and the USAAF ruled the skies over France, and much of Germany itself.

The author writes that “during Big Week, Allied bombers dropped 18,000 tons of bombs on Germany, halving the planned fighter production for the month ahead and significantly influencing the course of the war. But this military success came at a price — from the 8th Air Force alone, one thousand five hundred eighty-seven American airmen were missing in action [either dead or prisoners].”

On February 22, Lt. Don Lawry, earlier described as my uncle’s close friend, whose wedding he had recently attended, was reported as “missing in action, presumed dead” after another B-24 to which he had been loaned as a navigator, crashed into the North Sea and exploded while returning from a mission.

On March 6, the entire Group joined other groups in a “maximum effort”, bombing Berlin. Wright’s lengthy and detailed description of the mission, based on eyewitness accounts, is breathtaking. He concludes, “The 8th Air Force lost sixty-nine bombers ... the heaviest losses it had so far endured in one day. Another one hundred made it back but needed major repairs.”

My uncle, it seems, was not the only Jewish navigator from Brooklyn in the squadron. Wright reports about Lt. Seymour Cohen, who became “Corky’s” navigator after the death of Donald Lawry. Cohen was born in Brooklyn, but unlike my uncle, he moved with his family to Bayonne, New Jersey, studied law at what is now Seton Hall in Jersey City. My uncle had studied chemistry at Brooklyn College.

Like many other young Jewish American men, Cohen was anxious to volunteer to fight Nazis. Also as a Jew, it was suspected that he was assigned to navigation because of the prejudice that “Jews are good with numbers.” Both of those notions may also have applied to Sam. Although not specifically mentioned in the book, I imagine that he and Seymour Cohen must have been friends.

[While describing the book to one of my friends, a lawyer who, like me, began in the public defender’s office in the mid-‘60's, I mentioned the above facts. He then related that he knew an older public defender named Marv Schwartz, who had been a navigator during the war, and had been the command navigator on the famous Ploesti, Romania oil field raid. Schwartz told my friend that his war experiences had haunted him. In fact, he later exhibited depressive behavior and died tragically.]

Wright also notes that: “there were several thousand Jewish fliers in the 8th Air Force but it was understood that in the event of being captured by German civilians or the military and taken prisoner, they might not have the same chances of survival. Jewish prisoners were more likely to be subjected to physical violence than were other captured airmen — and all airmen, whatever their religion, were vulnerable to lynching in captured by German civilians who sought revenge for Allied bombing.”

All airmen were provided with alternative “civilian” false ID papers, for use if they bailed out over enemy land and wanted to melt in before contacting an underground unit. American dog tag I.D.’s included obvious codes for religion: “C” for Catholic, “H” for Hebrew, etc. The Jewish airmen who bailed out thus had a problem: bury the dog tags and perhaps be called a spy, or keep them and be executed.

Of the more than eight thousand Allied airmen who were POW’s, several hundred were Jews in Stalag Luft I alone. “One survivor testified that when Heinrich Himmler visited the camp, he gave the order” to shoot all the Jewish POW’s, but the other prisoners threatened to riot, and the orders “were not carried out.” (P.171.) “However, in January, 1945, Jewish prisoners ... were moved to barracks on an isolated compound. Chilling rumors circulated that they were to be marched to death camps, but ... this did not happen. Meanwhile, the Jewish prisoners lived in constant fear.”

On March 18th, the 453rd’s Commanding Officer, Col. Joseph Miller, was killed on a mission. The Group was getting the reputation as a hard luck outfit. Miller was replaced by Lt. Col. Ramsey Potts, who was (!) twenty-seven years old.

On March 23, the Group bombed a railroad marshaling yard near Münster, Germany, incurring additional losses. The author observes, “In less than seven weeks the 453rd Bomb Group had flown twenty three combat missions ... and had endured severe losses of aircraft and personnel. A significant number of the original crews had either been killed or were now prisoners of war.... The survivors frequently found themselves sleeping in half-empty huts as the memories of names and faces grew forever hazy.” (P.172).

Nonetheless, despite the losses and recurring bad weather, the Group continued to fly missions. Toward the end of March, they flew several mission to targets in France, including airfields.

Then came the 27th of March. Here’s how Mr. Wright describes my uncle’s last mission. At about ten a.m., twenty-three planes of the 453rd BG began the mission to bomb a Luftwaffe training field near Pau, in southern France. “Corky” had to turn back due to mechanical troubles. But “Cabin in the Sky,” a B-24 from the 735th Squadron, the lead ship of the Group, went on. In addition to the regular nine man crew, it also contained the Group Operations Officer, Maj. Curtis Cofield as the command pilot, and as command navigator, Lt. Samuel Borenstein, from the 733rd.

Struck by flak, “witnesses counted as nine parachutes appeared from the burning 'Cabin in the Sky,' just before it plummeted into the Bay of Biscay, five miles off shore near the Isle d’Oleron at 1559 hours. Five of the crew were seen to be picked up immediately, presumably by enemy surface craft. However, no member of the crew was ever reported to be a prisoner of war and none of them was seen or heard from again. The remains of the ball turret gunner [S/Sgt. Clinton W. Caldwell, Jr.] were recovered by the enemy and were allegedly interred at sea. The remains of six others including Maj. Cofield were later washed ashore adjacent to La Rochelle, France. The other four members of the crew were not accounted for, and it was concluded that they were lost at sea.” (P. 175.)

Major Cofield was replaced as Group Operations Officer by Maj. James Stewart, who had been commander of the 703rd Squadron of the 445th Bomb Group, stationed as nearby Tibenham Airfield. His wartime service is chronicled in a fascinating book by Starr Smith, titled “Jimmy Stewart, Bomber Pilot," Zenith Press, 2005. “An Emotional Gauntlet” covers much of the same time and events from the perspective of the airmen who served under him.

It seems clear from the documentation and many interviews with those airmen that Jimmy Stewart was not merely a movie star celebrity who looked good in a uniform. He flew many of the most hazardous missions as a pilot of a B-24, even after assuming command responsibilities. Wright quotes one of the gunnery trainers at Old Buckenham, a Sgt. Walter Matthau, who claimed to be an aspiring actor after the war, about Stewart’s apparent charisma as he spoke to crews about the day’s coming missions. “I used to like to go to the briefings, because I’d like to see him do his ‘Jimmy Stewart.’” Matthau joined many others in admiration for Stewart’s competence as combat leader.

On the contrary, some made somewhat less kind remarks about Sgt. Clark Gable, who had been a gunner in the 8th Air Force, had flown five missions, been given an Air Medal, and been shipped home for bond drives.

Both books deal with the question of whether the 453rd was a “hard luck” outfit that suffered from low morale, and faces head on the inference that the cause was poor leadership. The deaths of the C. O., Col. Miller, and the G.O.O, Maj. Cofield, highlighted the high casualty rate suffered by the group. Other signs of problems, including an allegedly high number of aborted missions, and forced landings in neutral Switzerland, were subject of rumors. Smith’s book naturally credits Stewart with turning the tide, changing the luck.

Wright, however, points out that the causes of the better “luck” were more complicated than new leadership. By late Spring, the weather had improved, as well as the combat experience of the crews. Early on, German fighter pilots figured out that the pilots of the new group, whose planes were all marked with a black “J” in a white circle on the vertical tails, were green, and they took advantage of them. New equipment, improving bomb and gunnery skills, and most importantly, improved long range fighter escorts by Mustangs, which whittled down the Luftwaffe’s best pilots, accounted for the improvement.

In an epilog, Mr. Wright follows the surviving members of the “Corky” crew into their postwar life all the way to the end. Some were still alive as of the writing of the new Afterward, 2007. The descriptions of the passage of this generation gave me a melancholy feeling, realizing that my uncle Sammy missed a life and all that happened in the sixty-seven years since his death.

Some time after I posted about my uncle, I received a comment from a gentleman named Don Dzikowski, whose great uncle was also on “Cabin in the Sky” when all perished. S/Sgt. Jack T. Myers was the right waist gunner. (Like my uncle, he was not a regular member of this plane’s crew.) Mr. Dzikowski had also contacted Don Olds, received many of the same documents and photos I had, and was in touch with other family members who were trying to reconstruct the memories of their lost relatives. 

Just recently (6/26/2016), I received another email regarding these posts: 

My name is Jim Wrobleski, from St Paul, MN. I came across a WWII  bomber navigator's mission diary at an estate sale here. I learned it is the diary of Fred (Fritz) Stein, of Cold Spring, MN who is deceased. I have attached to this note a picture of his diary entry for May 27, 1944 concerning your uncle's mission over Pau, France that day. I found your blog entry concerning your uncle and thought you might want to have this. I hope so anyway.

Regards,

Jim

In Stuart J. Wright's book, Emotional Gauntlet, he mentions Lt. Fred Stein (at p. 248-249):
On 8 May, the navigator, Lt. Fred Stein, was forced to bail out of his crippled Liberator while returning from a mission over Brunswick, Germany. After bombing the aircraft factory there, the members of the crew (except for pilot Lt. Donald Jones, and his co-pilot, who were able to crash land) all bailed out. Stein landed in an English field. Men of the Home Guard carrying pitchforks and shotguns came up. 

"Exhausted by his flight and disoriented from his parachute jump, Lt. Stein addressed the Englishmen ... 'Am I glad to see you guys!' The problem was he said it in German."

Stein was a Minnesotan, acquainted with many German speakers. He had decided that if he was ever shot down in Germany he would save himself by speaking German. 

Now he was rushed to the police station under arrest ... until it was cleared up and he was permitted to return to his Old Buckenham base. 

In our memories their lives continue to be felt.