Saturday, April 28, 2012


 I was young. It was quite an experience, learning to drive.

At first,  I was overcome with the thrill of it all and the speed limits were not matters of overly concern. It's not that I was reckless, I simply chose not to consider the potential consequences of going too quickly and immersed myself in the moment. Tomorrow was unlimited.

The passage of time shifted my emphasis to the quality of the machine in which I was to be seen. After all, I had earned certain credentials and just like "the clothes make the man" I wanted my car to "be me." My pace didn't slacken, for my comfort behind the wheel had grown and the desire to impress was of paramount importance. An upgrade in make and model was necessary and inevitable. A book was to be judged by its cover.

The next phase found me a bit more attentive to the rules of the road as I flirted with the concept of moderation increasing the accessibility of control. A dash of "easy does it" made the recipe more nourishing. I didn't become a "square", but rather the frequency of contact between gas pedal and brake was beginning to even up.

Approaching the home stretch, attention to highway signs became a factor, along with the realization that careful conduct made the road a lot less bumpy. Easier to travel from A to B while avoiding unnecessary accidents. There was no price to pay for adhering my driving to the norm of propriety.

And, finally, I understood that not violating traffic regulations made things a hellavalot less complicated and, surprise-surprise, bolstered my confidence as I went the distance, as well as my enjoyment of the entire experience. Just settle down and watch where you're going.

Now, um... what was I talking about?

Oh yeah.... .driving a car.

Friday, April 27, 2012


Terry and his band were in deep doo-doo. They were attracting a following, a recording contract was in the offing, the crowds were tripling in size at every performance and "people" were beginning to talk. Their careers resembled a stairway to the stars as they rehearsed their buts off for this Saturday's most important gig yet. This could be their breakthrough. But something bad had happened--real bad. On Friday night, the lead guitarist was rushed to the hospital with appendicitis. He was their best and most important musician and he could not go on. An integral part of the band was missing and the consequences were calamitous. But this chance could not be flubbed. They had worked for so long and so hard, some way out had to be found.

In desperation, Terry put out the pleading calls for a sub to fill the void. On such short notice, the pickin's were expected to be very lean, just castoffs whom nobody wanted on the big night of the week. The dudes who could  play were locked up and had been for weeks. Nobody worth anything was available. The phones were manned through the early morning hours, but to no avail.

At about noon on Saturday,Terry got a call from a drummer with whom he had worked in Vegas many months ago and stayed in touch. Drummer-boy knew a cat who, in his prime, had stepped back from the playing scene because he wanted to, of all things, write music. As brilliant as he was on the guitar, it was time for him to see where and just how far his talent could take him. His name was Skip. Terry got the contact info and wasted no time in getting on his knees to explain how desperately the band needed him.

"Listen, Skip--we're right there, just about ready to go over the edge and now this happens. I've seen you play and dig your reputation so I know you can help us. Whaddayoosay, man? I'm beggin' ya.)

Skip was completely unruffled.

"It's cool, Terry.  I'll do it and we'll get through it just fine.. You'll see."

Terry now began to pant a bit. "Do you want to see our charts, Skip, and jam with us beforehand?

Skip's blood pressure stayed where it should be. "Not necessary, Terry, I'll just crash for a few hours and meet you tonight before showtime. You guys start playin' and I'll blend in and do my thing. O.K?"

There were no alternatives on the table for Terry, so he agreed and arranged to pick Skip up to insure he'd be on time.

The band walked onto the stage where they were greeted with roars of enthusiasm and slammed into their first number. A third of the way through, Skip, who had been listening intently, began to
 join in and play, but it immediately became apparent that he had not signed up merely for a supporting role.

He left the lads in the dust as he played the sounds of music that made the crowd roar and dance and scream and applaud all at the same time, while he continued to augment the song to heights never before known.

When it was over and they were engulfed with yells of amazement and appreciation, Terry, with a wide-eyed look at Skip, said,"Wow! You just blew me away! What was that?"

Skip calmly replied,"Just something of my own. It fit in nicely, don't you think?"

Terry, beside himself with excitement, drooled, "Oh, Man, oh yeah."

The band broke into its second number and the same thing happened again, only more so. Skip dominated the audience as well as his fellow musicians. His music was of pedigree quality. Terry could not restrain himself.

"That was out of sight!"

Skip, ever the ultimate of cool, casually replied,"I wrote that years ago. Never gave it much thought. Just threw it in my closet with my other songs."

When this phenomenon occurred once more after the third offering, the crowd lost all aspects of self control and went vocally nuts. As the group stood there, acknowledging the over-the-top receptive reaction, a guy standing at the stage, yelled out at Skip.

"Do you know there's a hole in your pants and I can see your ball-sack?"

Skip, not missing a beat, shot back: "KNOW IT?  I WROTE IT!"

One cool cat, that Skip.

Sunday, April 22, 2012


Oops! The script of reasonable expectation would never have included this. It appears that somebody goofed. Big time.

I am referring to the in-court statement made by George Zimmerman at his bail hearing on Friday, 4/20/2012. He said, referring to the deceased, Trayvon Martin, "I did not know if he was armed or not."

All delete buttons in the world of criminal defense work were instinctively pressed, but it was too late. Unscripted declarations by a defendant are an accepted no-no and should never happen. They can be severely incriminating and this one was, indeed, potentially fatal to Zimmerman's anticipated defense of self-defense.

Here's why: At trial, Zimmerman must show that he reasonably believed he was in imminent danger of death or serious bodily harm. Only then could the use of deadly force against Martin have been justified. Question: How can he bear this burden if he cannot say that he (reasonably) believed Martin had a weapon? Theoretically, he could rely upon the distinction between "know" and "believe" but this is dancing with the dictionary at a time which calls for unequivocal language. Any way you look at it, his in-court statement is perilously inconsistent with his bottom-line justification of the shooting. On top of everything else he may have said to investigating authorities, who needs this unnecessary baggage?

Why, then, did this happen? Whenever a defendant plans to make a statement in open court, he must be obsessively prepared. Every word must be edited and rehearsed. If walking this mine field is deemed too dangerous, he keeps his mouth shut. Were his words, therefore, planned for a purpose or was he a wild horse? Either way, the question focuses a spotlight upon his attorney, who enjoys a splendid reputation. As he listened to his client, was he suffering the pain of a thousand cuts or playing a well-thought- out card?

We won't know until much farther down the line. But, one thing is for sure: If these words come back to haunt Zimmerman at trial, an verbal attempt to self-defend may have significantly undermined the claim of self-defense.

Unanticipated things happen in the practice of criminal defense law. This is recognized. But when they are within the control of the defendant and, therefore, should not have occured, foreheads furrow and heads are scratched.

'Tis a puzzlement.


Early this A.M. (the morning after my post) the Associated Press quoted Zimmerman's attorney as saying that his client's in-court apology was "ill-timed." No regrets for, or any reference to, the damning words of which I wrote.

I re-affirm my suspicion that Zimmerman's remarks were the result of pilot (read lawyer) error.

It sometimes happens----but shouldn't.

Sunday, April 15, 2012


A bottomless morass. To defend is to reveal. To reveal is to implode. His indictment is the ultimate overkill. He is a disgraced and broken man. His neighbors shun and hiss at him. Former friends recall his negative references to the misbehavior of other elected officials with a sadistic smirk, and refer to him as a hypocrite. His handsome face works against him and spawns the label of "pretty boy." People are afraid to publicly feel sorry for him. He has become the definitive pariah. And now, he faces the prospect of prison.

He fell in love with another woman while his wife was battling cancer. He fathered a child with his mistress and initially denied responsibility, while a political aid falsely claimed paternity. Allegedly, he solicited and received funds from two friends which he funneled through political donations and used to secretly support his lover and their child. This is the predicate for the criminal charges now being tried in a federal courtroom.

All of this sordid mess will be laid out in excruciating detail as the government presents its case. The public watches with smacking lips as a lynch-mob atmosphere hovers over the proceedings. The judge has instructed the jury that their task is not to pass judgement on Edward's personal behavior but, rather, on his alleged misuse of campaign funds, as if this can realistically be done. You gotta be kiddin' me.

From a legal standpoint, the indictment stands on the flimsiest of shaky grounds. It is a stretch beyond the breaking point. For, if the monies in question were gifts, there has been no criminal conduct. If they were donations, this is consistent with guilt. Can this task of distinguishing be accomplished fairly, without the taint of personal misconduct? This is the Senator's challenge.

 I feel sorry for John Edwards. I forgive him. I wish him better times. And here's why:

It's part of human nature to make mistakes and the impulse to cover them up is by no means peculiar to the former Senator. Many, many, many people share this human frailty. His disgrace will permanently prevail, in most quarters of public opinion, throughout his lifetime. He is not a well man. His trial had been scheduled to begin in January but was postponed when the judge apparently concurred with his lawyers' avowals that he had a serious heart problem which required treatment. He is a social leper and the fact that he has brought this on himself makes his scarlet letter all the more notorious. But I do believe  that he is no longer in denial. He is paying for his sins with the dawn of each day. His baggage of errant behavior will constitute a tangible prejudicial presence in the courtroom. Potential jurors will swear to their ability to base their determination of facts "solely on the evidence" because they want front row tickets to the show. How can this man get a fair trial?

Were I his attorney, I would advise him to take the stand and acknowledge his transgressions openly and with somber sincerity. My defense would be predicated upon the quite plausible theory that the monies received were gifts rather than "contributions" as defined in the campaign financing statutes. Senator Edwards can save his own day by  testifying truthfully under oath. This is a difficult path to follow but, at the same time, it can mark the beginning of the road back.

His ordeal is in the home stretch. And yet, this trial could be his salvation. He can earn his redemption.

And his forgiveness.

Other politicians have done worse and lived for a better day.

I wish him alleviation.

Thursday, April 12, 2012


My prognosis of voluntary manslaughter was inaccurate. Nonetheless, that lesser included charge will be on the verdict slip at a conclusion of trial. The special prosecutor was privy to all available evidence and her call should be respected.

There was, from some quarters, rejoicing at the news and even a claim that public pressure had played a hand in the severity of the crime charged. I hope not and don't think so. There has been, however, a discomforting tone in the reaction of those who, from the beginning, in publicly clamoring for Zimmerman's arrest, have blurred the line between a criminal charge and the necessity of proving that charge beyond a reasonable doubt. Celebrating the charging of a man can be explained and even justified by the effects of deep emotion running high. But, dare I suggest that those reins be pulled in a bit.

The case is now officially in the embrace of the Florida legal justice system. The stage has been set for the most effective way of determining guilt to play out on what surely will be before a national audience. A trial by jury, with the Judge and the attorneys doing their best to insure the impartiality and fairness of its members.

I've been involved in the criminal justice system since 1957, when I was admitted to the Bar of the Commonwealth of Massachusetts, and enjoyed the privilege of defending criminal defendants as well as presiding over such trials as a  Massachusetts District Court (First) Justice. I came to respect the positions of both sides and their adversarial skills in attempting to persuade the jury to accept their respective, and diametrically opposed points of view.

But never--not once--as either attorney or judge, did I ever, in any way, even attempt to minimize the presumption of innocence, which embraces every person criminally charged and stays with him unless he is proven guilty beyond a reasonable doubt, to the satisfaction of twelve unanimous jurors.

And so must it be, and so shall it be for George Zimmerman.

So let the fingers be taken off the triggers, and let this case play out in accordance with due process of law, which is a fancy definition of plain talk "fairness."

Let the trial ferret out the facts and let the jury decide whether Mr. Zimmerman's presumption of innocence has been rebutted by proof beyond a reasonable doubt.

Let justice be achieved the old fashioned way.

Let the clamor from the pulpits recede for a while.

Wednesday, April 11, 2012


The Florida special counsel, charged with the investigation of the Trayvon Martin case, has declined to convene a Grand Jury. This means two things: (1) under Florida law, the alleged suspect, George Zimmerman, cannot be tried for first degree murder and (2) the decision as to what charge, if any, will be brought against him is in the exclusive hands of special prosecutor Angela Corey. She is expected to announce her decision on Friday.

Meanwhile, the federal investigation of the case is ongoing, its apparent goal being to determine whether a hate crime has been committed, effectuating federal jurisdiction, sounding in a violation of the victim's civil rights.


Practicality would suggest a coordination of effort between state and federal authorities, pooling their investigative information, thereby achieving maximum credible results. Technically, each sovereign could bring independent charges without violating the protection against double jeopardy. It seems improbable that the feds would fold up their cards merely because the state has first crossed the decision line. Too much investigatory effort has been expended. But this case is not the norm. It has become a national thermometer.

I opine that the special prosecutor shall promulgate an information charging Zimmerman with voluntary manslaughter.

The lack of specific evidentiary clarity shall be deemed insufficient to sustain a charge of second degree murder, which is a murder not premeditated or planned in advance, but does require the element of malice aforethought. This may be considered a legal reach too far. Voluntary manslaughter, sometimes called a "heat of passion" murder, is any intentional killing that involved no prior intent to kill. Both voluntary manslaughter and second degree murder are committed on the spot, but the two differ in the circumstances surrounding the crime. The evidence at hand could be more consistent with the former, alleviating the state's burden of proof.

The country waits and watches.

Thursday, April 5, 2012


At the moment, it's in the hands of the Justice Department. That's a good thing. Were the case to be handled by Florida officials, 'twould be a cause for concern, with alarm antennae at the ready. Fertile ground for race to substitute for justice. Let's take note of a few things.

The "stand your ground' law simply means that when faced with a reasonable apprehension of a threat of death or serious bodily harm, you don't have to use available avenues of escape and may stand your ground and use deadly force to defend yourself. But that apprehension must pass the "reasonable man" test, and not be based upon whim or fancy. The Florida obviation of the necessity to retreat does not dismiss the the necessity that George Zimmerman's belief that he was being threatened with deadly force was reasonable. That's an objective test which requires that the eyes of the beholder be reasonable, what Zimmerman himself thought, notwithstanding.

The F.B.I. is all over the place. It's primary purpose is to ascertain whether Martin's civil rights were violated, thereby giving rise to Federal jurisdiction. That's as close to a level playing field as one can get. The ongoing federal investigation appears to be ultra thorough and should summarize the available evidence while determining at what level the case should be handled.

It is difficult to formulate a legal theory of just what happened, based upon  conflicting accounts reported by the media. The issue, as I see it, is "who was the aggressor and at what point in time was this role justifiably assumed?"

The temptation to emotionally rush to judgement is understandably great. But, this must be avoided now that the Justice Department, under a nation's watch, is trying to determine just what the facts are. This could prove to be the prototype of how to resolve a matter, with racial overtones, in an orderly and just fashion. The federal investigation's focus is on whether a "hate crime" was committed, thereby establishing federal jurisdiction of a civil rights violation. It should also tell us what happened and the most effective avenue of dealing with it.

My bottom line: Zimmerman has a significantly heavy laboring oar to justify this killing on the ground of self defense. His use of deadly force does not seem viable.

The divisive problem will arise if the Feds don't take the case and this responsibility befalls the state of Florida.

That's when, like a bell sounding the final round, the nation will tensely lean forward in its seat and focus on the racially charged outcome.

For now, there's reason for patient optimism that justice will be served.

The F.BI. is thoroughly investigating.

They are accountable to the Attorney General. He is accountable to the President of the United States.

Both are African Americans.

Nothing to be implied.

Just a fact-----which should not provoke any skepticism, but rather assure an investigatory compass of fairness.

I believe its burden of responsibility shall be successfully borne.

Tuesday, April 3, 2012


Gone is the myth that they don their pants two legs at a time.

The four (five?) conservative U.S, Supreme Court Justices pretend to wear the intellectual mantel of legal theoreticians, deeply furrowing their brows, as they descend from the Mount to solemnly deliver the constitutional word.

But, they're merely politicians, moved by the party whose elected President appointed them.

That's the way it is with this court, so there should be no surprise in their attitude towards the health care law. The challenge of the  conservitive members was not to decide whether Obamacare was unconstitutional--that was a pre-conceived given. The question was the grounds upon which to rely in striking it down. They chose a tortuous reasoning of the Commerce Clause. If the gloves don't fit, make 'em fit.

Justice Scalia and company assume the rolls of the founding fathers and, like Lamont Cranston ("The Shadow", to you young'uns), trumpet their ability to read men's minds. The fact that the constitution was signed two hundred and twenty-five years ago, and that things have mightily changed in our society, is arrogantly dismissed.They promulgate in accordance with their own beliefs and in the spirit of "you don't like what we say? Then appeal."

They champion staes' rights but conveniently ignore this principle when it is inconsistent with their political end-game. They grabbed center stage, in a 5-4 ultimate overreach decision, and decided the outcome of the 2000 presidential election, with the final vote tally yet to be determined.

The liberal Court members are also politically aligned, but there's a difference. They identify with the national social agenda. They care about the welfare of society. If an uninsured man lay bleeding in the street, they believe that helping him is preferable to letting him die as a punishment for not paying premiums.

This subject has, by now, been vented ad nauseam. Please see my prior post re the applicability of the congressional power to tax in the interest of the general welfare, as the legal validation of the the health care reform act. To fine those who don't obtain insurance is, of course a "tax", within the meaning of that authority, but the word is a political plague and was avoided by the Solicitor General in his argument before the Court. But it walks and talks like a duck. (See Social Security)

The infallible interpretation of history shall drape the "Conservative Five" with a cloak of shame.

But don't exhale just yet. There are other social issues which they breathlessly await to decimate.

In the words of Justice Austin Powers, "Yeah Baby! They're just politicians."

And this is an election year. 'Nuff said.

Sunday, April 1, 2012


First the disclaimer: I am not an authority on constitutional law. In my years on the bench, I, whenever possible, substituted my version of practical common sense in lieu of theories of expertise. My definition of justice was "to what was right." Of course, that brought into play my life's experiences and qualified me as the most activist judge in the land. But, I digress, except to note that I shall never shed that mantle, for it is self-defining.


Historically, the core belief of the Democratic party is that government should address problems embraced by the arena of public social agenda. The Republican theory would have government refrain from such action, except in dire national emergency, and, even then, look to the role of the states rather than invite the federal authorities to play the evil Big Daddy.

I, however, believe that in matters of sweeping social agendas, on a national scale, Congress has the right, and indeed, the duty to step in and do the right thing. (See Social Security)

Where do they get this power? Not from the Commerce Clause of the Constitution (which led to the ridiculous analogy , offered by the conservative Supreme Court Justices, of being ordered to buy broccoli) but from the legislative taxing authority to provide for the national general welfare.

For, is not the individual mandate provision of the health care law, with a financial penalty for non-adherence, akin to a tax? Of course it is. And this should be the basis for affirming its constitutionality.

On what is this proposition grounded?

The practical, common sense, desire to do the right thing.

Who dares deny that this was not the original intent of the constitutional framers?

Too simplistic an approach? Consider the difference between being "intelligent" and "smart."

Come down to earth. It's a great vantage point for reasonable practicality.