Sunday, July 31, 2011

THE TEA PARTY--GIVING THE DEVIL ITS DUE

The Tea Party has worked the system very well. They have abided by the rules of procedure. No curves in their approach. They are immersed in discipline. No one has broken ranks. They commissioned their representatives to Congress with very specific instructions on what and what not to do. And their soldiers have followed orders, without compromise. They have taken senior members of Congress by surprise. Not with regard to their agenda, for this was, at all times, in plain view, but, rather by their sheer resolve.

In the past, however acrimonious the dialogue, it was inevitable that, once everyone had vented ad nauseam, everyone would sit down and give and take a little. Not this time. And the non Tea Baggers looked to the heavens and screamed "How can this be? What can we do?" And they put their heads together to come up with something, anything, to modify the TP's doctrine. And, they huffed and puffed but couldn't formulate a plan upon which they, themselves, could agree. A lack of discipline. And the alarm bell rang loudly and clearly, because even reasonable men could not reason together. A non-fictitous fable. And chaos ruled the realm. All because the TP had presented a new type of political warfare: a platform predicated upon the abolishment of compromise.

As I post this, both Houses of Congress are running amok. They have supposedly come up with a master plan. But as the details are revealed, neither party likes what their leaders have produced. And, the clock ticks on.

There will be a deal because there must be a deal. But nobody will be happy because nobody wins. Except  the TP. And, if they win, the majority of the people lose.


But, how can a majority be vanquished by a minority? Return to the top and re-read.


I've got a headache. Stop the world. I wanna get off.

YOUR EVERYDAY, RUN-OF-THE-MILL TRAFFIC TICKET.

On the daily court docket, traffic citations are regarded as the lighter side of the menu. Except for those who have been pinched. Accordingly, they are usually dealt with first. At 9a.m., the First Session opens for business and the clerk calls out the list of names. As the "respondent" comes forward, so does the police officer who issued that particular citation.

These cops work the roads which are within the Court's jurisdiction. Accordingly, the cops are very familiar faces to the Judge. Not just for tickets but as witnesses in criminal trials. Just as accordingly, some Judges are afraid to piss them off. You heard it right. Theoretically, that's not the way it's supposed to be. Actually, you betcha-bippy. Earning and keeping the cops' respect is a very helpful component of a Judge's ability to be a successful politician and strategist, as well as his ability to be fair, across the board. He must balance things in order to get things done, his way. I'm giving you the inside skinny, on the way things are.


To me, traffic tickets were very sensitive matters. They were the cases which brought about the closest relationship between a citizen and a Judge. Very up close and personal. Usually, no lawyer is involved. It's just the alleged offender, pleading his own case. It was relatively easy to spot, shall we say, the most disingenuous defenses.

"I've got pictures of the scene which show so many trees that it was impossible for the cop to see me."

"The cop's radar gun was not working properly, I just know it."

"My car was in such bad shape that it could not go 70 miles per hour. Besides, if I had been going that fast, I would have known it because I would have crashed."

But, every once in a while, the individual says,"Your Honor, I was speeding. The officer was very polite. It's just that I can't afford to be found responsible. I mean the money. First, I'll have to pay a fine. Then, my insurance company will add a surcharge to my monthly payments for seven years, and I earn just enough to pay my living expenses. This has happened to me just once, two years ago, and it'll never happen again."

WHOA!!! I've got me a truth-teller. And I can identify with his plight. I check his driving record. He did not attempt to mislead. I had been in his shoes myself, but my pleas had fallen on deaf ears.

I motion the cop to the sidebar and whisper,"Officer, I want to give this guy a break, but only if it's o.k. with you."

Trust me, no cop is going to say, in substance, to a Judge,"Up yours with gauze." And besides, I'm not bypassing him. I'm keeping him in the loop. Invariably, the officer will justifiably blush with self-importance and say,"That's fine, Judge." And he'll mean it. The finding is "not responsible."

This often turns into a two way street of cooperation. For, it was not unusual for a cop to see me in my lobby, before I took the bench, and admit that he has had second thoughts as to whether he had properly issued a citation involving an accident which he had not personally observed, but had instead, relied on hearsay statements. This was his way of telling me to call it as I saw it and not to be concerned with overruling his call. Man,it ain't a murder case, but that's justice all the same.

Thus, a judge must do what he thinks is right. But to do it with all parties on board. is sweeter still. I didn't want my court people to fear me. I wanted their respect which I had to earn.

I think I'm on to something, here. There will be more posts which shall provide glimpses of what really happens in courthouses, behind closed doors. Nothing scandalous. but fascinating as hell. You could almost sell tickets.

So, when cited for a traffic ticket, in the absence of any solid factual defense, try the Alch mercy pitch. Got me, every time.



Friday, July 29, 2011

WHEN THE POLITICS END AND THE GOVERNING BEGINS

To the Tea Party, there is no difference, and, therefore, they don't know.
As I post this, the House has adjourned for the night, again failing to bring a vote to the floor of  a body politic which the GOP controls. The TP has given the finger to the leaders of their own party. When a bill contains spending cuts, signifying concessions by the Democrats, they defiantly scream "not enough", all in the context of refusing to give an inch on the question of revenues. This position of non-compromise raises a specter more alarming than failing to raise the debt ceiling. I'm fearful of a threat to the essence of democracy, where a country should be controlled by the majority of its citizens.

During the mid-election campaigns, certain politicians adhered to the voice of a group that was thought of as a right wing minority. They pandered to it and begged for its votes, swearing to follow its orders if elected. That's what's happening now. The TP train runs too fast for them to jump off. They made a Faustian bargain and the country is stuck with it. Even the moderate Republicans are afraid to buck them. So, are they really a right-wing minority if they have the House in deadlock? Perhaps not. And that's scary.

Speaker John Boehner can't get the necessary votes to pass a bill which is a "victory" for the GOP. He is trying to appeal to the reason of a group which doesn't have any. And they are immune to the effect of an Epiphany. They revel in the national interest crisis which they have created.


What's the solution? We must engage in a dangerous waiting game, as the doomsday clock ticks on, while the House, gridlocked by the TP, implodes. When the smoke clears, the Senate will step in and present a bill, so immersed in reasonable compromise, that the triple power of a congressional- citizen majority and the President of the United States shall, finally, hold sway. Neither party may "win" to their satisfaction, but the nation's best interests shall have been served.

Am I smoking something? We'd better hope not.

Thursday, July 28, 2011

MAID IN THE U.S.A.

Nafissatou Diallo has given to Newsweek magazine a detailed account of her allegations against Dominique Strauss-Kahn of sexual assault. "How unseemly" her critics cry. They claim it to be a crude and shameful way of pressuring the prosecutors to not drop the case. Duh! No shit, Sherlock. Her motive certainly wasn't to increase the sale of Corn Flakes. She reads constant reports of the Prosecution's increasing skepticism of her story. To be sure, there are discrepancies in her multiple accounts, but these are tangential to the crux of her claim,i,e, sexual assault. Her step-by-step account of being attacked smacks intrinsically of truth. And the fact that she is knowingly giving defense attorneys pennies from heaven for cross-examination purposes is inconsistent with speaking falsely. An alleged victim's norm is to publicly say nothing prior to trial. Her statements given to police are automatically turned over to defense counsel. They digest each syllable for inconsistencies in preparing their attack on the alleged victim, who must surely testify in her own behalf. She must not veer from that script. She has now repeated her allegations to the public, restricting, if not obviating any wiggle room on the stand. Her trial testimony in now etched in stone. She must be consistent in the face of having provided defense counsel with golden ammunition for cross-examination. Why has she taken this unnecessary step which gifts the defense with unexpected ammo? Because she is not afraid. And she is not afraid because she believes she is telling the truth.


I advise my Law School students that if a witness is telling the truth, the most grueling cross-examination cannot demolish the core of the testimony. Of course, some tangential details may be undermined. but the essence of truthful testimony survives the battle, standing strong.


This case is ready to be tried. A prosecutorial dismissal of charges would acknowledge either immense political pressure or a lack of cojones, or both.

This type of alleged misconduct does not usually confine itself to a single aberration. And, to be sure, there have come forward other similar allegations against Strauss-Kahn. The judge will determine the admissibility of these "similar bad acts."

The battle lines are joined. I opine that the criminal justice system, still reeling from the Casey Anthony debacle, will best be served by letting a jury (oy! it's Valium time) decide the case--the sooner the better.

Remember that before charges were formally filed, Ms. Diallo was intensively and exhaustingly examined for credibility purposes. She must have passed that test. Her acknowledged intent to sue Strauss-Kahn civilly can surely be brought up by defense counsel to show motive to lie, but a person who embraces the obvious is not afraid and, more often than not, makes a very formidable witness.

TRY THE CASE, ALREADY.


 Like Prego spaghetti sauce. name an element of a good trial---and "it's in there."


This case may resuscitate the jury system. The truth may, ultimately, be spoken.
With competent counsel on both sides, this could be a barn burner.

Tuesday, July 26, 2011

THE BUDGET DILEMMA--'TIS A PUZZLEMENT--A SUGGESTION

The only gain for the President, in last night's address to the nation, was the resulting deluge of phone calls to congress by citizens who are anti-Tea Party. A negative aspect was a public letdown at the lack of breakthrough news. When the President asks for primetime t.v. during a crisis, the expectations are high that he will announce a development of substance. Not so. He only accentuated the known negative. To be sure, he took the high ground while John Boehner, the not-so-unwilling captive of the Tea Party, stooped to talk-show talk, but the polarization of politics was etched in stone. Zealots, as elected officials, is unacceptable. But, for present purposes, it's too late for that. Our government is a democracy. Shouldn't the majority rule? Will we ever really appreciate the value of every individual vote? The world scratches its head in bewilderment, as our political machinations effectuate near paralysis. Pundits, much more experienced than moi, can only rationalize in dream- talk.

So, what should be done? Here's my suggestion: The Democrats should shift from reaction to action. Instead of waiting for the Boehner bill to pass the Hostage House only to be defeated by the Senate, the bill proposed by Senate Majority Leader Harry Reid should be filed now in the Senate.  It will pass and fast-track to the House. Then, fortified by both Senate approval and public opinion ( ignited by the President's speech) it will crystalize, under the glare of public scrutiny, just how dictatorial the ideological Tea Party really is. A counterstrike of reason to illuminate the obstinacy of the Radical Right. Let the country see,in vivid colors, just who the good and bad guys are.

Never underestimate the strength of public opinion. It has been been formulated. Let it play out. Discard the inactivity of the waiting game. Take the initiative  and take off the gloves.

Saturday, July 23, 2011

THE TEA PARTY WINS. AMERICA LOSES.

There will be a deal. The world is upside-down. Reason shall cave to intransigency. To be reasonable is to weigh alternatives and choose what's best for our country. Blind fanaticism is incapable of a thinking process which involves anything inconsistent with its cult-goal. Defies common sense.

President Obama shall not allow the self-destruct button to be pressed. This is not blinking in a game of chicken. It is the recognition of the robotic mind set of those who place goal achievement ahead of the national interest.

The final agreement shall be hailed as a "victory' by the Tea Party partygoers. They'll point to the amount of spending cuts as their spoils. The Democrats shall sadly shake their heads and some shall berate the President for selling out the middle and lower income classes. A fatal catastrophe shall have been averted, but with one malignant casualty: the abandonment of reasonableness.

Wait until the consequences begin to be felt. The curtailment of bottom line services to the people who have, and rightly so, relied upon these programs for their survival. Wait until the negative effects upon Medicare, Medicaid, Social security, public libraries, post offices, schools, courts, hospitals etc, begin to actually be felt. These are areas of governmental responsibilities which shall be drastically curtailed if not eliminated. Will the Tea Party fill this void???

It boggles the mind to think that a minority of politicians can wreak so much havoc. Just because they are unreasonable. They want to focus on cutting federal spending to reduce huge financial deficits instead of spending money on programs to create jobs.

What's the solution? Citizenry outrage, now, and , soon at the ballot box. President Obama is attuned to the public welfare. It's not so much that the Tea Party is against this notion, they just don't understand it.


Cause and effect. It's a law they can't repeal.

THE BUDGET TALKS. A BREAKDOWN OF THE BREAKDOWN

What a night of political drama (trauma)! The President says Speaker John Boehner walked away from the table, while the Speaker says just the opposite. The President says the Speaker just kept saying "no", which suggests there never was a deal. Boehner says "We had a deal but the President moved the goalposts." Who is to be believed? I camp with the President and here's why.

Every time Boehner et al. are confronted with a specific question, they consistently fall back on the generalization of "No new taxes." Again, and again and again. But, what new taxes, specifically? The only one specifically mentioned is the suggested repeal of the Bush tax cuts for those with yearly incomes in excess of $250,000.00. But, these cuts are due to automatically expire at the end of this year, anyway. In GOP jargon, to affirmatively void this tax cut is to impose a new tax cut. You can go 'round and 'round on this syntax argument but this is no time to play Scrabble.

The Republicans equate "revenue enhancement" with "new taxes." Let them put forth one specific example other than the name game discussed above. And, any politician who signs a pledge to never do something, must be considered a zealot.

An example of the tilted ship the GOP wants to sail on: Democrats criticize the President for too much reduction in Government spending (Medicare, Social Security, etc.). The Tea Party threatens to bolt if the majority of Republicans even thinks of the most minute compromise. Let the burden be borne by the middle and low earners. Don't touch the upper class with their tax loopholes and breaks. Unfortunately, credit cards, with their outrageous interest rates, permeate our lifestyle. A tax deduction is allowed for interest payments relating to business, but not personal expenses. Who do you think benefits from that?

It is not necessary to choose between versions. When the nation and the world is faced with this type of crisis, no one walks away from the negotiating table. The President presents as reasonable; the Republicans as intransigent, with a moderate majority held hostage by the mob ideology of a minority.

If an agreement cannot be reached, the President should unilaterally raise the debt ceiling, in order to avert calamity, and lead the way from there.

The battle for public perception is vital. The Republicans have, so far, lost it.

Tuesday, July 19, 2011

EXPOSING MYSELF

This morning, I received an email from LinkedIn. It began with the question, "HAVE YOU GOOGLED YOURSELF?"

This passed the junk mail test, so it's legit. I figured: before the tabloids get ahold (truly sorry) of this sensational item, it would behoove me to come clean (don't say a word) in an attempt to nip this in the bud. (I'm a recidivist, what do you want from me?)

The answer could be "not for many years", but that would be a copout. (Shoot me, kill me!) I don't want to pull a Weiner on you (Easy, now. A legitimate news reference), so here is the naked (I'm takin' the Fifth) truth.

"Not so far, today. But, it's early yet."

The more important question is "How did they know?" Camcorders in the can? Clark Kent on my case? Who are their sources? Am I surrounded by rats? It was, certainly, a slow investigation, because I began googling when my voice dropped an octave. I outed myself only with the advent of Google.com. And, let's face it, this would never be a litmus test for politicians.

This has been a stressful episode in my life. I've got to get ahold of myself. Perhaps a vacation in Palm Beach?

THE TEA PARTY SWITCHES TO KOOL-AID AND NOMINATES THELMA AND LOUISE

The "Jonestown Massacre" took place in 1978, when 909 members of the People's Temple committed suicide by drinking a Kool-Aid-like-drink laced with cyanide. Their reasoning was to prevent intelligence organizations from parachuting in, shooting babies and torturing seniors. Of course it sounds crazy. It was crazy.

In the movie "Thelma and Louise" the two smiling heroines drove their car over a cliff, while being pursued by police, in order to escape doomed lives. Bizarre, to say the least? Damned straight.

Which serves as a perfect segue to the Tea Party, which, if believed, and there's no reason not to, is willing to plunge the national, and world economy into a cesspool of quicksand. They are proud of being unreasonable and their monosyllabic language is "no". President Obama has indicated his willingness to just about give away the store by agreeing to spending cuts which would affect Medicare and Social Security, as a means of compromise in order to avoid financial catastrophe.

I do not pretend to be an economics expert, but I do have experience in mediation, wherein the goal is to bring together differing parties. But this requires both parties to compromise, not just one. Thus far, the Tea Party will have none if that. They say absolutely no to closing tax loopholes for the very wealthy and to rescind their one-sided tax breaks ordained by President Bush. Nada, zilch. It's their way or the highway. Hey, what the hell. Most of them are in the highest income brackets, anyway. They're not risking their own life style. They need, however, to be administered an information enema.

They have become unquestioning believers in an ideology. They have accepted a philosophy blindly, without critical examination. Are they really capable of understanding the fallout from a failure to reach a debt ceiling agreement on or before August 2? Do they understand the disastrous effect on Social Security and unemployment? They either don't get it, or they do but don't give a damn. Which is worse?

Interest rates will rise. On credit cards, home mortgages, auto loans, and student loans. New credit will not be available, at all. This mindset is suicidal and completely inconsistent with common sense. Yet the Tea Party is playing no-bluff poker using the middle and lower classes as chips. And the nation watches as if at a golf match with its screwball restrictions on crowd reaction. This is insanity.


For the immediate and most urgent task at hand, it doesn't matter how you'd like to resolve the future budget deficits of America, you just need to raise the debt ceiling, now.

But, of course, this requires the common sense to compromise for the common good, and on one side of the fence, there just ain't none of that. I'm gettin' a wee bit scared. True believers don't want to think of the consequences of discard. They just want to win, and table the ramification discussion for some other time, providing that time will be too late.

The President should stand tall and tough. He's made his fair share of painful compromise. If the Tea Party doesn't reciprocate. he should act unilaterally, utilizing all constitutional powers at his command to raise the debt ceiling in the national interest and spotlight those who didn't even want to throw the dice.

As he, himself, has so aptly said,"ENOUGH IS ENOUGH."




Saturday, July 16, 2011

COURT LITE

The atmosphere in a courtroom is generally regarded as one of solemn decorum, with a strict adherence to rules and custom. When the judge enters, everyone--- lawyers, court personnel and spectators--- take heed not to piss him (or her ) off. If the judge has a mean face, usually indicating the same type of disposition, the tiptoe posture of everyone is extraordinarily high. Whispering with bowed head and lowered eyes is the code of conduct. I didn't dig it.

But, every once in a while, the culture of common life supplants that of common law. I confess that I,  deliberately, encouraged a relaxed and judge-friendly environment wherein attorneys could bask in the comfort zone of being treated with respect by the Court. Brings out the best in them and everybody wins.

Once upon a time (heh, heh), I was presiding over a hearing to determine whether there existed probable cause for the issuance of a criminal complaint for assault and battery. The combatants were two gentlemen who worked as cooks at the same restaurant. They had both been born and raised in eastern Europe and, accordingly, spoke with extremely thick accents. The first witness was the alleged victim. I asked him to explain, in detail, what had happened. He related the fight in the restaurant kitchen and his attempt to flee through the double doors, while being chased by his attacker. I set forth his testimony at this juncture of the narrative.

'He wass runnink at me and wass yellink and yellink."

I said,"It is important that I know the exact words used. Now, for the record, sir, what did he say?"

The man hesitated, took a deep breath, and declared, "He yellt "you modderfo----. You koks-----."
The courtroom acoustics were designed to amplify sound, and besides, he was screaming into a microphone.

As a result of my thirteen years on the bench, I can authoritatively tell you that the Court Officers are the bellwethers of courtroom phenomena. If they think something is funny, then, man, it is funny. Their reactions were uniform. Jaws hung open, followed by a rising tide of red, engulfing their faces, as they valiantly struggled to not lose complete control of their bladders. On my part, I was pinching the flesh at my waist in order to draw blood and cause such pain as to gain my full attention.

Fifteen seconds elapsed. Squirts of laughter were erupting all over. Then, my inner core of mischief awoke, and I went with it.

"Sir, to make sure my notes are accurate, would you please repeat what your attacker said?"

My Chief Court Officer (one of my closest friends, to this day) shot me a glance that said, "Beautiful. Absolutely gorgeous."

"You modderfo----. You koks------."

An echo ricochetting off the courtroom walls, ultimately engulfed by cascading waves of laughter, as everybody, taking cue from me, really lost it. That legend lives on, perpetuated by those who eyewitnessed it, as a testament to the compatibility of respect and enjoyment in a courtroom.

I wouldn't have it any other way. And I didn't. Because, don't look now,  judges are human beings and real life is not checked at the courthouse door.

WHERE DO WE GET SUCH MEN?

I was at the hospital, today, for a routine checkup. No bigee. No digital probe, Hallelujah. Went down to the lobby to get my garage ticket validated and noticed something special. Amidst the people was a serviceman, in combat fatigues, talking to, I presumed, his parents. My immediate reaction was one of awe, respect and pride. Trying to avoid staring, I stopped in my tracks and studied the soldier.

He was in his early twenties, and was standing tall, both in height and stature. Technically off duty but bearing an aura of officialdom. He was "at ease"in posture, but just a little bit. He reflected the business he was in. Speaking in socially correct quiet tones, he, nevertheless, exuded complete confidence. He seemed impervious to fear. If, at that very moment, something calamitous were to happen, you'd want to handcuff your hand to his, thereby maximizing the chance of survival. In truth, he was never "off duty." Self sustaining perpetuity of devotion and allegiance. This flower of our youth "had" me at first sight.

My path to the elevators led me right by him. I noted the perfect fit and crispness of his uniform. As I passed him, I acted instinctively which insured sincerity. Without breaking my gait, I gently touched his shoulder and said,"God bless you." Looking at me ever so briefly, he immediately replied,"Thank you. sir." And my moment was over. I heard a man, directly behind me, utter "Thank you for your service." Another,"Thank you." and the man and I were in the elevator together. The glances we exchanged were smiling acknowledgements of having done something good, the right thing. No conversation was needed.

The soldier is not alone. I dare say that all of his peers are testaments to those committed to fight for our country against radical Islamism. They leave their families to risk death in the cause of protecting our republic. Where do we get such men?

Well, we've got them, and should express our pride whenever an opportunity for us so to do, arises.
The goal is to have as many as possible come home. Not all of them can. Enough must stay to insure the ultimate military goal :

TO ESTABLISH A PERMANENT LAND BASE, STRATEGICALLY LOCATED, WITH SUFFICIENT WEAPONRY, TO CLOSELY MONITOR AND, IF NECESSARY. TO OBLITERATE THE TRUE CANCER IN ALL OF THIS: THE MILITARY THREAT OF  IRAN.

Thursday, July 14, 2011

ROGER CLEMENS CASE: MISTRIAL BUT NO RETRIAL

A mistrial was declared today in the Roger Clemens case. The most crucial government witness, in my opinion, was to be former teammate and still friend, Andy Pettitte. He has stated that Clemens admitted to having taken performance enhancing drugs and that he (Pettitte) told his wife of this conversation that same day. The prosecution wanted to call Pettitte's wife to bolster his credibility on this important point. At a pretrial hearing, the judge had ruled Ms. Pettitte's alleged testimony to be inadmissible "because it didn't involve direct knowledge of what Clemens said." In beginning it's case, the government showed the jury a video of the congressional hearing at which Clemens swore that he never took PED. A portion of this video showed a Congressman making specific reference to Ms. Pettitte's allegations and reading her affidavit. The judge immediately halted the trial proceedings and summonsed the attorneys to sidebar. He was pissed. The prosecution had directly contravened his evidentiary ruling. Note: the defense had made no objection when the video was being played. It was the judge who rang the bell. The sidebar conference lasted several minutes during which time the video remained frozen on the screen, in front of the jurors, with a transcript of what was being said on the bottom. The judge opined that Clemens had been denied a fair trial.The defense moved for a mistrial and the judge so declared. He voiced his displeasure at how much time and money had been wasted because of the government's mistake and expressed his uncertainty as to whether a retrial was in order, adding that he would be consulting with a colleague on what to do. A hearing on his decision is scheduled for September 2.

A retrial would not violate the protection against double jeopardy, especially, since the defense requested it. The most influential factor is the appropriateness, or lack thereof, of a second trial. I'm talking, not just about wasted cost and court time, but about the aura surrounding Roger Clemens. He is an American icon. Even at the congressional hearing, the origin of the perjury question, committee members lavished praise on the all-star pitcher and expressed dismay at the waste of time and money occasioned by its own hearing. Jurors, during their selection process, also voiced this concern. The ruling of the judge, himself, acknowledged this factor.

I do not base my prediction on questions of law. Not to disparage them, but to focus on the practicality of the situation. There exists an abundance of pro-Clemens sentiment among citizens and congress. Political  temperature should, legally, have no place in a court of law. Real life considerations, however, transcend such boundaries.

The judge shall rule against a retrial. His decision shall be based, in the main, on the impossibility of Clemons ever receiving a fair trial. Such a decision could be overturned on appeal only upon a finding that the judge acted arbitrarily. This would never happen. His ruling would, for practical purposes, be predicated on saying to the government: You had your chance. You blew it. You cost the taxpayers a helluva lot of dough. Enough.

This decision shall rankle some. This is their right. But, in this world, theory often takes a back seat to practicality. It's the way it is. And in some situations, that's the way it should be.

The defense didn't win this battle. The prosecution lost it.

Wednesday, July 13, 2011

MOURNING THE LOSS OF COMMON SENSE

A financial Armageddon looms on August 1st. You think the economy is bad right now? You ain't seen nothin' yet. Respected news analysts are of common mind. Both parties are playing the game of "chicken". Democrats say no spending cuts which will hurt the middle and lower classes. Republicans champion the cause of no new taxes. I offer my opinion as a non-expert. Just a man rounding the home stretch of life.

Democrats do not seek to raise taxes. Their aim is to negate the tax breaks and loopholes for the high income class, promulgated by President Obama's predecessor. This is not a play on words. This is a distinction not of form but of substance. Republicans demand cuts in spending. Spending on what? Entitlements. Who get entitlements? Middle and poor classes. The wealthier you are, the more opportunities to obviate tax liability. People earning more than $250,000 are still entitled to social security, which, if they lose, won't make a dent. If you are dependent on S.S. to support yourself and your family, a reduction in this "entitlement" could push you over the edge. And remember, you contribute to S.S. in every paycheck, for as long as you work. This is not a loan from the government. It is a well deserved payback.

I assume both parties to be, in the main, composed of honorable men. In the ongoing crucial meetings, their duty is to communicate and negotiate. Negotiation is a synonym for compromise. The Democrats are inclined to do just that re entitlements, but there is no compromise from the GOP. They won't give an inch re upper class entitlements. Why such blind obstinacy when the stakes are so high? Because of the Tea Party.

Granted, the Tea Party are true believers. But their belief has become a religion. No budging. Not an inch. No compromise whatsoever. Look at Speaker John Boehner. He's no rookie in the world of politics. Been around. Yet, he seems very uncomfortable. As if he knows what the situation requires (compromise), but a cop has put a boot on his car. He's locked in. He is politically afraid of bucking the Tea Party. Sure, they represent a GOP minority but next year is a Presidential election and it's risky to alienate even zealots. But at what price? The Tea Party and common sense is oxymoronic.

President Obama has repeatedly proclaimed his willingness to compromise. At the end of each failed meeting, Speaker Boehner sticks to the mantra of "no new taxes". Period. No hint of compromise. But he's torn. Not so, Majority Leader Eric Cantor. Somewhere, somehow, someway, something's gotta give. Inspect my brownies for I think something will.

We didn't elect revolutionaries. As the deadline approaches, common sense shall be resuscitated. Speaker Boehner will yield to the moral compass instilled in him by years of public service. He will not break ranks, he will join them. Extremists will not be happy. But the national interest is paramount.

It'll be a squeaker. But a realization of the consequences of failure will mandate a deal. It's just common sense. Isn't it???

Monday, July 11, 2011

THE ROGER CLEMENS CASE. "NO MEANS KNOW"

A short, condensed recap:
Clemens is charged with perjury, swearing under oath that he never took performance enhancing drugs (PEF). His former trainer, Brian McNamee, says he personally administered PEF to Clemens. Former teammate, Andy Pettitte claims Clemens admitted taking them. Clemens says he only received B-12 shots from McNamee.
That, dear Readers, is the case summary in a cuckoo-shell. Now, hold on and come for the ride, for this is the skinny. And, remember, you first heard it here.

Perjury means means lying. To lie means to intentionally utter a falsehood. Intentionally means knowing you are uttering a falsehood. Therefore, the prosecution must prove, beyond a reasonable doubt, not just that Clemens said something untrue, but that he knew he was saying something false.

McNamee's credibility will be put into serious question. The defense will attempt to show a motive for blackmailing Clemens with fabricated evidence i,e, to recoup heavy financial losses as a result of a rape investigation. (Hard to believe? See the Casey Anthony case.) Witnesses will swear that McNamee's reputation for truth and veracity is so bad that when he was born, the doctor didn't know which end to slap.

The scale-tipper will be the testimony of Andy Pettitte. IF he is not 100% sure that Clemens flat-out admitted taking PED---IF he says that Clemens may have only said that he was given "shots" by McNamee (after all, with the passage of time, the line of demarcation between different versions becomes blurred) then, at the time of his alleged perjury, Clemens may have honestly believed he was telling the truth. He did not knowingly make a false statement and no crime was committed. He said "no PED", believing that he had  been injected only with B-12. And, all there need be is a reasonable doubt, in this regard.

 Clemens is an American sports legend. A hero to baseball fans everywhere. His autograph will be sought after whenever the judge isn't on the bench.

Not exactly the trappins' for a hangin'.

Sunday, July 10, 2011

THE JURY SYSTEM MAZE

It's far from perfect. So are human beings. Suppose, just suppose, that a bug was secretly installed in the jury room. My guess is that in 75% of the cases, a mistrial, after verdict, would be warranted. Revealed would be some extrinsic information, not introduced at trial, but improperly considered. And, if this happens, it is rarely, if ever, discovered. Even if it is, the jurors will bond defensibly and deny it. The requirement of an unanimous verdict brings them together as one, and God help the rat.

EXAMPLE:
                 The defendant is of a minority race or religion. During recesses, throughout the trial, one juror refers to the defendant as "just another damned-------(you fill in the blanks). They're all alike." The rest of the jurors jump on the bandwagon. Generally, religious or racial bias is vehemently denied, yet lurks beneath the surface, alive and well. A human frailty but jurors are human. When deliberations begin, two people are designated as alternate jurors. They do not participate, but rather remain outside the jury room in the event that one of the other twelve is incapacitated. One of the alternates is brooding over the overtones of prejudice which permeated the jury room during trial. After a verdict of guilty is returned, an astute defense attorney dispatches a private investigator to interview the jurors at their homes. Some refuse to discuss the case, others answer questions in the expected way i,e, everything went properly. The alternate juror, however, perhaps motivated by guilt, explains what has been bothering him. He signs an affidavit. A motion for new trial is made. The judge recalls the jurors and questions them individually. As one, they deny the alternate's allegations. It happened but it can't be proved. The guilty verdict stands. This, or something similar, happens more frequently than you dare imagine.

Do you really believe that all jurors obey their instructions and go home each day, refusing to discuss the case with their spouses? That they don't read newspapers or watch T.V. lest they be influenced by  something they see? Does a trend exist wherein jurors are reluctant to convict for murder unless all doubt has been obviated by the prosecution? These are questions lacking answers of certainty.

The most a lawyer can do is to examine all the evidence and formulate his "pre-ordained theory of the case." Thereafter, everything he does, from picking a jury to closing argument, is consistent with, and in support of, his theory of the case. His ultimate job is to persuade the jury to adopt this theory.

Figuring out a jury is as impossible as truly understanding the legal definition of "reasonable doubt." It is the truest mystery of all.

 An attorney must be fully prepared and become attuned with the mindset of the jury. Remain on that frequency and turn them your way.

What a moment that is, when you rise alongside your client and wait for the verdict to be read. Your mouth is dry and your palms drip with sweat.

It's all up to the jury. The ultimate riddle. But, it'll have to do 'till a better thing comes along.

A PRE-TRIAL ANALYSIS OF THE ROGER CLEMENS PERJURY CASE

As I attempt to summarize, in concentrated form, the factual issues, the resolve of which will resolve the trial, please note the several intangibles coming into play, which may even have more weight.

Clemens faces six felony counts on accusations he lied to Congress under oath when he testified that he never used steroids or human growth hormone. His statements came during a deposition and a hearing at the House Government Reform committee. His long time trainer, Brian McNamee testified that he injected Clemens repeatedly with both substances. Clemen's former teammate, Andy Pettitte, testified that Clemens once told him that he used human growth hormone. There will undoubtedly be more witnesses testifying tangentially about the rampant use of these banned substances at the time, but there you have the crux of the case. McNamee also claims to have kept the vials and syringes used in the injection process. Sounds like a pretty strong case, no?

The word is that the defense has barrels of evidence with which to shred McNamee's credibility to bits. Combine that with the cutting figure Clemens cast on the mound during his record breaking performances, his most notable awards,etc. and, further, his steadfast denials of of any wrongdoing, and you've got the stuff that wins the hearts and minds of jurors. Clemens had been advised not to testify before the Committee, but he would have none of that tactic. His mantra: I never took these banned substances and, therefore, I did not lie. He has proclaimed that McName is lying and that Pettitte misheard him.

That's where the action will be. Picture the moment of Pettitte's taking the stand, as a Government witness. Clemen's attorneys have the right to cross-examine Pettitte, buy they may not want to be that aggressive, and they may not have to. If Pettitte's testimony acknowledges that he may have misheard what Clemens told him, that, along with all the other good ole' boy sentiments flying around the courtroom may be enough for a N.G . Recipe book says, "approach the witness with two hands holding sugar."

This time around, we've got Mr. Apple Pie for a defendant, an American Icon whose praises have already been sung by various members of Congress.
Can't you just hear the jury grumbling among themselves,"don't Congress have more important things to do, like tendin' to three middle eastern wars, than to waist their time, and ours, in trying to bring down an American heero?"

Shiyittt yes!
And, who's gonna give me an "AMEN" on that?

Wednesday, July 6, 2011

THE WAY IT IS. A LAST LOOK BACK AT THE CASEY ANTHONY CASE

Most people enjoy the drama, suspense, mystery and, yes, glamour of a criminal trial. Be it in movies, t.v. or real life, it is a unique and fascinating genre (oh, daddy, listen to me!). Even the Mesdames and Messieurs of the jury (dat's it with da French ting) have their own special allure. And, it's all about justice. A trial is a search for the truth which is translated into justice when the guilty go to jail and the innocent go free. But, that's not the way it really is.

Ya see, the fuel each lawyer depends on, is the desire to win and the truth be damned. The courtroom is the  amphitheater and opposing counsel are the gladiators who are in it for the juice of being the more effective persuader. Because that's what brings home the verdict. All the training, and the just plain hard work of preparing, is for that singular and very personal moment. Few attorneys will openly acknowledge this. They will cling to their respective folklore. The prosecutor represents the people against the bad guy, while defense counsel clings to the constitutional right of an accused to due process of law. True enough. But that's not what drives them. It's the high of the win.

Look at all federal and state criminal statutes. Choose any offense. Look at its elements. You will never find "motive". Legally, it does not have to be shown by either side. Practically, it's the most persuasive component of everything that you ask the jury to believe. If you claim a person did or did not do something, they want to know why. It explains human conduct. In the Casey Anthony case, there was abundant evidence as to why she committed some degree of homicide. She had the motive to kill. Sick as it was, she wanted nothing to stand between her and the swingin' life. Her motive to lie was to conceal her oh-so-dirty hands. To believe her lying was the result of past sexual abuse, requires a complete abandonment of common sense. Like asking someone to meet you at a corner where the streets don't come together. She had the motive to commit the crimes charged. That is why the verdict is so astounding. Today, the talking heads were all over themselves in trying to explain the thought process of the jurors as focusing on insufficient evidence. A desperate attempt to explain the unexplainable by reading minds. The jury should have been able to touch, feel and grab onto motive, which permeated the prosecution's case. Add to this mix, the nonsense of wanting to make an accident appear to be murder, and one is tempted to stick one's head in the oven. The truth did not win out, the defense counsel did. The people did not lose, the prosecutor did. In this case, an aberration.

I may sound overly cynical in all of this. Lay people and professionals may criticize me. That's o.k. If everyone agreed with me, I'd question myself.

Tuesday, July 5, 2011

POSTMORTEM

Casey Anthony was acquitted of all homicide-related charges. She was convicted on four misdemeanor counts of lying to the police.
The unpredictability of a jury is not in dispute. From my second hand seat, the evidence of guilt appeared overwhelming. An innocent person does not lie to the police. Circumstantial evidence, alone, can be a legitimate predicate for a guilty verdict. Was the jury turned off by the smirk of preposterousness on the prosecutor's face when the defense was presenting its closing argument? We won't know until, and unless, a juror speaks out or writes a book.

When I first became a Judge, I sat in an old courtroom. The jury room was adjacent to my lobby. During deliberations, I would occasionally put my ear to the wall and listen in. More often than not, I would internally react by asking myself, "What case are they talking about?" The Anthony jury was out for an extraordinarily short time, given the length of trial and the volume of evidence presented. I suggest that more time was required for an evidentiary comprehensive review. They may have formulated many issues which required deep thought and extensive discussion. And, they may have concluded that the immediate absence of common resolve equalled "reasonable doubt." They may have been waiting for the smoking gun which never materialized. Having been sequestered for forty-five days, they may have wanted to simply go home.

Body language, notwithstanding, a jury cannot be "read."

You can lead a horse to water, but a pencil must be led.

Next case.

THREE OVERVIEWS OF THE CASEY ANTHONY MURDER CASE

I have not attended any portion of the trial. There has been excellent coverage by legal media consultants as to each day's events. Their outstanding detailed work says it all re development of evidence, the positions of both sides and "right there" descriptions of what happened at trial. Kudos to them. I cannot match their hard work
The first media coverage I have looked at, took place 3 hours ago, July 5, at 1 a.m. Three things jumped out at me.

1) During the latter part of the trial, defense counsel asked that the defendant be examined for competency (or lack thereof) to stand trial. The Judge granted their request, apparently agreeing that the defendant's trial behavior warranted a resolution of this issue. The test must be whether the defendant has sufficient present ability to consult with her lawyers with a reasonable degree of rational understanding, and whether she has a rational as well as a factual understanding of the proceedings against her.
It was concluded that she was, indeed, in possession of these required faculties, and the trial continued. The jury has not, and will not be made aware of this.
But, I wonder: with all the evidence of her inconsistent and inappropriate conduct between the time of her daughter's disappearance and the body being found, should not the availability of an insanity defense at least have been explored?
Not in this case, for such a plea of not guilty by reason of insanity admits that the crime was committed, but that Casey's mental state was such that she could not distinguish right from wrong, or, if she could, she was unable to adhere to the right. Her story, as put forth by counsel, was that Caylee's death was an accident, in effect, a complete denial of wrongdoing.
So, why this late, curious suggestion of incompetency? Was Casey acting weird? Was she falling apart? Was she reacting to the weight of the evidence unfolding before her very eyes"
One thing is for sure: something was going on that made defense counsel want to cover their asses, on the record?
There's trouble in River City.

2) In his opening statement (wherein a lawyer tells the jury what the evidence will show), defense counsel alleged that Casey had been sexually assaulted by her father since she was eight years old and that her brother had made sexual advances towards her. The jury will never know the relevance of these allegations because they were never proved. Accordingly, defense counsel could make no mention of these claims in his closing argument. A BIG NO-NO. The jurors may have been waiting for such evidence, since their attention had been called to it in the opening. When it wasn't presented, the lawyer in question is looked upon as one who speaks with forked tongue. A Law school student mistake. Promise only what you can deliver. Any doubt, omit it from the opening.

3) In closing, defense counsel maintained that Baby Caylee drowned, accidentally, in the family pool. Casey panicked, whereupon her father, a former cop, decided to make the death look like a homicide by placing duct tape over the child's mouth and dumping the body in some nearby woods.
This "frequently happens" scenario was denied by the father.
Moreover. the prosecutor, in his closing, proclaimed that "no one makes an innocent accident look like a murder." Jersey Joe Walcott has just been punched by Rocky Marciano.
9, 10 AND OUT! Everybody go home. The fight is over.

The jury begins their second day of deliberation in a few hours.
Mention has been made of a similarity between this case and the O.J. Simpson trial. I know of only one.
During the Simpson case. many people whom I had looked upon as semi-intelligent, would come up to me, look me straight in the eye and, breathlessly ask, in a whisper,"Do you think he really did it?"
As I looked at the questioner, my brain would taunt me to reply, "You really can't be that big a freakin' a--hole, can ya?"

In the Casey Anthony case, the same question will get you the same answer.

Sunday, July 3, 2011

A FRENCH KISS

The New York Times reported, on July 1, that "the sexual assault case against Dominique Strauss-Kahn is on the verge of collapse as investigators have uncovered major holes in the credibility of the housekeeper who charged that he attacked her in his Manhattan hotel suite in May........."
She made her initial allegation on May 14, causing Strauss-Kahn to resign from his post as managing director of the International Monetary Fund. He was required to post one million dollars and a five million dollar bond. He had been a top candidate for the French Presidency before the accusations.

Not exactly Joe Sixpack, a user of public transportation and a resident of the projects.


And note, it was the prosecutor's investigators who found the information which so devastatingly undermine the alleged victim's credibility. And just what are these exonerating, "newly discovered" circumstances?

The woman had a phone conversation with an incarcerated man within a day of her encounter with Strauss-Kahn in which she discussed the possible benefits of pursuing the charges against him.

That man had been arrested on charges of possessing 400 pounds of marijuana. He was among a number of individuals who made multiple cash deposits, totaling approximately $100,000, into the woman's bank account over the last two years.

It was also learned that she was paying hundreds of dollars every month in phone charges to five different companies. The woman insisted that she only had a single phone and said she knew nothing about the deposits except that they were made by a man she described as her fiance and his friends.

The alleged victim has admitted that she has lied about what happened after the encounter. She initially said that after being attacked she waited in a hallway until Strauss-Kahn left the room. She now admits that after the episode, she cleaned a nearby room, then returned to Strauss-Kahn's suite to clean there. Only after that did she report to her supervisor that she had been attacked.

In her application for asylum from Guinea, she claimed to have been a victim of gang rape. She now admits that this was a lie.
This information was obtained from published reports of Jim Dwyer, William K. Rashbaum and John Eligon, in the New York Times, the Boston Globe, and others.

Please note: forensic tests found unambiguous evidence of a sexual encounter between Strauss-Kahn and the woman, whose account of the alleged sexual attack, itself, has never wavered. The District  Attorney was initially emphatic about the strength of the case. But then, the magnitude of the defendant's persona was, obviously called to the Prosecutor's attention. And the popcorn began to pop. At the District Attorney's request, the defendant's bail was changed to personal recognizance and he was released from house arrest.


As a criminal defense attorney, I would be extolling the Prosecutor's work as the essence of justice. He, no doubt, got the word from very high upstairs: This guy was head of the I.M.F.  He was in line ( and still may be ) for the Presidency of France. France is our NATO partner, currently engaging, with us, in military operations in Libya. Don't proceed with this case unless it's an open and shut no-brainer.

As  former judge, I say "try the case." All  this newly discovered evidence certainly tends to undermine the credibility of the alleged victim, but in a tangential way. Only two people have personal knowledge as to whether a sexual assault occurred. Let them face-off in a courtroom. Utilize the criminal justice system. Let the finder of fact (this could be a jury waived trial) weigh everything in context. That way, the verdict will be clean. A dismissal of charges, once so adamantly made, may be deemed by some to be expeditious, but it will be tainted by the suggestion of political pressure from the highest quarter.


I once presided over a similar case, where the defendant was a Doctor, accused of sexually assaulting a patient. Three experts testified that his procedures were in strict conformity with high standards of medical practice. The prosecution presented no experts to support its theory. The defense attorney was drooling with expectation of a "win." But, when the accuser took the stand, her testimony smacked of truth and reason, the absence of supportive expert testimony, notwithstanding. Her words constituted a bullseye to the heart. The defendant was convicted.

The District Attorney has declared his intention to handle this case "as he would any other."
Let it be so.
Even a woman with transgressions of her own, can be the victim of a sexual assault. Don't dismiss the more serious charges and allow Strauss-Kahn to plead to a misdemeanor. Let it all hang out in a trial.

That's the way it would be done with Joe Sixpack.

And, surely, the alleged victim must have been put through and passed a vigorous vetting process.

Mister District Attorney, call your first witness!