James M. Redwine

Gavel Gamut

The Wheat From The Chaff

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The Sixth Amendment to the U.S. Constitution provides:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been Committed ….”

Our Declaration of Independence raised these issues and complained of King George III:

“For depriving us in many cases, of the benefits of trial by Jury; (and) For transporting us beyond Seas to be tried for pretended offenses.”

The Book of Matthew uses the example of separating edible wheat from its husks as an analogy about dividing the good from the bad. In our legal system we almost always assign this task to judges with probably less than 3% of criminal cases being determined by a jury. The recent case involving the death of George Floyd, Jr. and the conviction of Derek Chauvin is one of those extremely rare jury events. However, this is not a column about that media saturated matter that took place in Hennepin County, Minnesota. I do predict that two of the issues raised by Chauvin when he appeals the guilty verdicts will be whether trial judge Peter Cahill should have granted Chauvin’s motions to change the venue of the trial and to sequester the jury. Those specific assigned errors will fall to the Minnesota state appellate judges and maybe work their way over to the federal judiciary before the saga crawls to an unsatisfactory halt. Shakespeare was right about the Law’s Delay. George Floyd, Jr’s. death was May 25, 2020.

What this week’s column is about is the American legal system’s mental gymnastics involving the relative imbalance between trial judges’ assumed ability to be objective versus that of jurors. Perhaps a few specific examples might help define the dichotomy. During my forty years as a trial judge in a small, rural county with only two judges I was faced countless times with having to process cases about which I had personal knowledge. For example, a crime might be reported then the police or sheriff’s department would present me with a sworn affidavit in support of a request to arrest someone and/or to search their home. A great amount of detail about the alleged crime and the suspect would be laid out before me. Then later I would sit as judge on the case.

Another fairly frequent circumstance might be I would know both the named victim and the defendant. I would sit on the case. In fact, I have remained as the deciding judge on countless cases at the request of victims, defendants and their legal representatives because they all wanted the cases resolved without delay and excessive cost and because everyone, including me, assumed I could separate the wheat from the chaff and both follow the law and be fair and objective. If I could do so, so can jurors. Black robes are a symbol not an inoculation against biased decision making. Facts are what matter, not irrelevancies unconnected to the case at hand.

There are cases where judges should not serve and where the pool from which jurors are selected should be changed. But usually judges and other people have the ability to take on the sacred mantle of administering justice whether they wear a black robe or not. Our legal system should afford to the citizenry that pays for it the same respect we assume for judges who are paid by it.

The delay, expense and great inconvenience caused by changes of venue and juror sequestration should be a last resort. This was true when we gained our independence and communication was untimely via printing presses and quill pens. How much rarer should such dire remedies be when finding a venue and jurors who have no knowledge of a case would require a trial beyond Mars?

One Game At A Time

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Gentle Reader, should you have read last week’s Gavel Gamut you may recall that another reader, Dr. Michael Jordan of Osage County, Oklahoma, sent a letter to the editor asking that I address the topic of immigration. No, I do not know why, but after a couple of minutes of reflection I thought, “Why not?” So here goes. Our current immigration mess should not be any more challenging than Winston Churchill’s view of the old Soviet Union that he called, “a riddle wrapped in a mystery inside an enigma”. A few quick paragraphs ought to suffice. Let’s start back in the 1960’s when our national immigration policy began to gradually change from one based on admitting immigrants based on entrepreneurial or economic qualifications, that is, what does the immigrant have to offer, versus admitting family members to reunite with previous family immigrants already in America.

According to George Mason law professor F.H. Buckley:

“U.S. immigration policies were radically changed in 1965, when national origins quotas were replaced with preferences for family reunification. People from countries that had recently supplied immigrants were given a leg up, while those from countries that had supplied immigrants centuries before found it much harder to get in.

In the 1950’s two-thirds of legal immigrants came from Europe or Canada, by the 1990’s that figure had fallen to 16%. During that same period, the percentage of legal immigrants from Latin America and Asia rose from 31% to 81%.”

See The American Illness, Essays on the Rule of Law

By F.H. Buckley at p.51.

Buckley has written extensively about immigration to America. Ironically, Buckley is himself an immigrant from Canada. That aside, in his above referenced book, Buckley posits that part of the immigration solution is for the United States to return to our pre-1965 immigration policies. Buckley avers that USA law used to determine admittance of immigrants on a general policy based on national origin quotas and economic benefits to America, but changed to a policy of family reunification being the main factor. This led to a change from the long-time admission of immigrants mainly from Europe and Canada to those mainly from Latin America and Asia. Buckley states:

“What is uncontroversial is that the United States could do a better job of competing for the highly qualified immigrants who are more likely to confer economic benefits on natives. America is exceptional in the way in which, more than any other first world OECD (Organization for Economic Co-operational and Development) country, it favors family based immigration and admits relatively few employment-based immigrants.

….

“A move to a more entrepreneurial immigration system would likely offer non-economic spillover benefits. Economic immigrants are less likely to commit crimes or to rely on the welfare system, and for countries that favor them, immigration is less contentious. The natives are more likely to welcome immigrants, who in turn are more likely to assimilate to the natives.”

Buckley: pp. 51-53

Buckley’s book was published in 2013, but it has an eerie prescience to today’s southern border crisis of children being dropped over walls and left alone in the desert in hopes of somehow uniting with their family members already in the United States.

Of course, this does not resolve the immediate situation. We must follow our Constitution and provide due process to those who are legitimately seeking asylum. We have the means to provide humanitarian relief as we abide by the laws and policies we established until we change them. Deserving immigrants should be welcomed without prejudice as to national origin, race, ethnicity and faith or lack thereof and without encouraging the breakup of families. A gradual, fair return to an entrepreneurial immigration policy should begin now. And before anyone projects a conclusion that Buckley or anyone else is saying Canadians and Europeans are superior to Latin Americans or Asians, let us be clear. It is not one’s race, ethnicity or national origin that should determine whether an individual is admitted into our country. The criteria should be mainly whether the aspiring immigrant can be a benefit to America.

Through the fog of one of my undergraduate psychology courses at Indiana University I loosely grasped the concept of projection. One aspect of Sigmund Freud’s theory of projection is that we humans subconsciously cast upon others our own failings as a self-defense mechanism. When it comes to America’s approaches to the problems of immigrations and debates that have raged since at least 1620 and Plymouth Rock, I submit Dr. Freud would diagnose many of us as projectionists. But before we address what Emma Lazarus called the Mother of Exiles, the Statue of Liberty, and the “…[H]uddled masses yearning to breathe free, The wretched refuse of your teeming shore”, let me suggest an analogy between immigration and environmentalism based on an old adage.

In the simplest of terms, the green debate is between those who want to build a house in the woods and those who already own a house in the woods. And with immigration, the competing positions are often those held by we whose ancestors immigrated here versus those who would like to become ancestors for those who may later immigrate here. And while we have certainly managed to maintain many raging controversies about whether certain classes of peoples, Irish, Catholics, Chinese, Muslims, Italians, even people indigenous to North America, and numerous other groups, have a right to exist in the United States, our current concentration involves our southern border.

Some of us might project our own fears, prejudices and greed onto one side or the other of the issues. However, as with every extremely complex problem it may require much more time, effort, and goodwill than most of us care to invest. It is easier for us to simply say those who disagree with us are motivated by hate or ignorance. Hard work is never as appealing as harsh rhetoric. Facts are the enemy of bombast. A knowledge of the facts on immigration is vital to constructively addressing the problem. Just as catcher Crash Davis advised in the movie Bull Durham, we need to concentrate on the here and now and take things one “game” at a time.

The Arts of Medicine and Law

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The great Greek philosopher Hippocrates (460-370 BC), balanced the art of healing with scientific observation. His most famous admonition was to, “first do no harm”. Plato (429?-347 BC) was a contemporary of Hippocrates in that blazing caldron of brilliance of ancient Greece. Plato balanced the art of legal philosophy with observations on the law such as what Socrates (470-399 BC) told his jury, “The jury (or a judge) does not sit to dispense justice as a favor, but to decide where justice lies”.

Dr. Michael Jordan is a disciple of Hippocrates who lives near JPeg Osage Ranch on a similarly sandstone-studded tor and occasionally shares his prescient observations on life via letters to the editor of the Pawhuska, Oklahoma Journal Capital newspaper. The good doctor, whom I have not as yet had the pleasure of meeting in person, recently offered a letter on the subject of immigration. In that letter Jordan solicited my opinion on the topic. It is apparent to me that Dr. Mike is a physician of keen observation much as was Hippocrates and that he is somewhat familiar with my weekly musings on various topics as I offer them up to the readership through Gavel Gamut.

Mark Twain posited that to ask someone for their opinion raises the presumed oracle’s spirit. But to ask a writer to pen and publish his opinion on any subject warms the writer’s soul. Thank you! However, my pride is tempered by the self-evaluation of that greatest of philosophers, Socrates, who said he was wise because he knew that he knew nothing.  I fear my response to the man who is my almost neighbor and who wields his pen as a sage of the Osage may fulfill another of Mark Twain’s aphorisms, “It is better to keep quiet and have people think you know nothing than to speak up and remove all doubt”. Regardless, into the breach I charge.

One good thing about philosophizing on a topic one knows little about is it does not matter where you start and probably will mean little where you end. As one who has written a newspaper column since 1990 and has had over 800 burnt offerings submitted to the normal indifference and occasional indignance of readers, I am reminded of Abraham Lincoln’s thoughts on the likely efficacy of his address at Gettysburg, “The world will little note nor long remember what we say here”. Of course, Lincoln’s prediction about his eleven-minute speech far missed the mark. But my guess is such a prediction will be accurate for my offering herein.

Further, much as Cassandra of Trojan War fame who based her correct but ignored predictions of the future upon her analysis of bird entrails, my suggestions on immigration policies are based more on the vicissitudes of incomplete and inaccurate news reports than actual knowledge or experience. Therefore, Gentle Reader, should you be one of those rarest of individuals, i.e., one who actually reads Gavel Gamut, please remember that when I respond to a request to address the complicated and convoluted dilemma that faces us on our southern border, I am simply following Dr. Jordan’s orders. In other words, please place blame where it properly belongs.

Also, even though the entire world might have been created in six days, Hammurabi’s ancient Babylonian Code (c. 1780 BC) was carved on one pillar and the Constitution of the United States has so far only been amended 27 times since 1789, it will take me more than one column to resolve our immigration mess. For now, let me start by asserting the overarching issue is one of Due Process of Law. Therefore, we can begin our discussion with reference to the Fifth and Fourteenth Amendments of the United States Constitution and the United Nations Charter adopted by the U.N. Assembly in 1948. The Charter contains the Universal Declaration of Human Rights to which we, the United States, agreed. If you are available, we can jump off from there next week with our main goal to be, “first do no harm”.

 

Photo taken from Wikipedia.org:  By Mbzt – Own work, CC BY 3.0, https://commons.wikimedia.org/w/index.php?curid=16931676

Messages From Space

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President Joe Biden held his first news conference in the White House East Room on 25 March 2021. Twenty-five reporters were allowed to attend; the President took questions from eleven of them. The news conference lasted one hour. Each reporter began their questions as follows: “Mr. President”. Is not the Presidency of the United States prestigious enough? How about “President”?

We do not say Mr. Judge, Ms. Senator or Mr. Congressman. Mr. President sounds like a relic from the days our mothers would begin their scoldings of their young children with, “Now listen here, Little Man” or “Little Lady”. One knew to expect bad news when our mom started a one-way conversation with such an address. Perhaps we can drop the feigned aggrandizement or gilding of the lily. Calling our president, President, is both respectful and democratic enough.

But complaints about titles whether from me or Meghan Markle is not the focus of this article nor is it about the current blockage of the Suez Canal. On 24 March 2021 the super-tanker vessel, the Ever Given, owned by the Evergreen Company became lodged into the bank of the canal. The claim is high winds blew the ship off its pathway through the 120 mile long, 205 meter wide and 24 meter deep engineering marvel that has allowed ship passage between Asia’s Red Sea and Europe’s Mediterranean Sea since 1869.

The Suez Canal was the idea of Ferdinand de Lesseps who was France’s Consul to Egypt in 1854. The canal is built across Egypt’s Isthmus of Suez. About 12% of the world’s yearly shipping trade traverses the canal and according to FOX Business News, each hour the canal is unavailable costs the world’s economy $400 million. It may take days or even weeks before the Ever Given can be dislodged and realigned. However, such mundane topics as Presidential politics and the fate of the world’s economy are not our concern right now.

What this article is about is my conclusions about the meaning of the mysterious rhythmic radio blasts originating from beyond our Milky Way Galaxy about one-half billion light years away. First noticed about ten years ago these FRB’s, fast radio bursts, appear unannounced and unsolicited at an aggravating but unpredictable frequency. The blasts are short and one has no way to stop or avoid them. If you, Gentle Reader, as was I, were trying to pay attention to President Biden’s news conference or to reports and analyses of how the Suez Canal blockage might result in a new toilet paper shortage crisis, you might have received numerous FRB type telephone calls.

Well, as Fareed Zakaria might say, here’s my take. Someone, somewhere way out there is so concerned about our welfare they constantly are offering an opportunity for us to extend our vehicle warranties.

Dear Mr. Scorsese

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Osage Hills State Park Falls

As Martin Scorsese ramps up production for his movie of David Grann’s book, Killers of the Flower Moon, concerning the tragic murders of members of the Osage tribe in and around my home town of Pawhuska, Oklahoma, I thought Mr. Scorsese might appreciate a little movie making advice. Here is some information he may find helpful.

Ten years before Pawhuska’s favorite son, Ben (Son) Johnson, Jr., won an Academy Award for his role as pool hall/movie theatre owner Sam the Lion in The Last Picture Show I sold him a Stetson hat. Son, I called him Mr. Johnson, was home for a visit in Pawhuska, Oklahoma in 1960 and I was working Saturdays at Hub Clothiers Men’s Store on Kihekah Avenue. Son had just that year had a gun fight with Marlon Brando in One-Eyed Jacks.  I am not suggesting I deserve any credit for Son’s later success but I am pretty sure the hat he wore in The Last Picture Show was the one I sold him; it looked about right for wear and tear.

In addition to that association with stardom I would like to point out that one summer during Vacation Bible School my Sunday School teacher at the First Christian Church, Violet Willis, had our class film a re-enactment of the Christmas story. It was in July and we threw up a manger of blankets and black jack posts on the banks of Sand Creek near the falls in Osage Hills State Park. I played a shepherd. Now I know there aren’t too many sheep in Osage County but I thought my portrayal was still pretty authentic. And it may be of note to Mr. Scorsese as he directs his new movie about Osage County that Violet both lived and worked at the Osage Agency and was herself Osage.

My memory is that Violet used an 8-millimeter hand-held Bell & Howell camera and that she cast my friend and classmate, Glenda Van Dyke, as Mary. Glenda was blond haired, blue eyed and ten years old but she pulled off the young Hebrew mother role quite well I thought. I wish Glenda was available for a casting by Mr. Scorsese now.

Another person who might merit consideration is my big sister, Janie. Much as Lana Turner was discovered at the soda fountain of the Top Hat Café on Sunset Boulevard in Burbank, California, Janie used to work at the soda fountain of Mom and Pop Curry’s snack shop next to the Kihekah (now the Constantine) Theatre in Pawhuska. Janie might be of more utility behind the camera as she is good at giving directions.

And although I do not wish to accentuate my own resumé, I think in fairness to Mr. Scorsese I should mention that I did have a role in my high school’s junior play. Further, I am generally available except when Peg has me doing some chore around JPeg Osage Ranch.

 

Sans Sand

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Just when it looked like it might be safe to leave the beach and go back in the water the beach is disappearing. After more than a year of masks and isolation Peg and I finally got our second Pfizer shots last Friday. We just need to avoid all human contact for one more week. We were anticipating a return to a normal life. Then I read of an alarming new and totally unexpected world crisis, a sand shortage? Yep, that was the cautionary tale screaming from the Internet. I know I should not use my iPhone for anything but ordering from Amazon, but I find it impossible to ignore the AOL pop-ups in my email.  I know better but still click on the cleverly worded come-ons beseeching me to read about global warming, COVID-19, politics, sports or even Prince Harry and the Duchess of Sussex. This morning as the sun rose I was dinged with an exposé about our planet’s disappearing sands. Had I been aware of the situation I wouldn’t have recognized it even was a problem until I read the CNBC article shouting out the impending catastrophe of sans sand. So, Gentle Reader, just in case you might not have been panicking over this issue either, let me share my newly found angst.

Until this morning about my only concern in regard to sand was Peg’s complaint that I traipse it into our cabin after I have been out walking on the sandstone covered prairie. Peg demands that I leave my boots at the door and slide around in my socks on our bare floors. Now I can tell her I am helping to save the planet when I accumulate sand on her clean floors. She just needs to start bagging it up. Anyway, here’s what the Internet says is as significant to the world as fighting the pandemic.

According to an article on CNBC by Sam Meredith, sand is the world’s most consumed raw material after water and it is, “… an essential ingredient to our everyday lives”. In a “coals to New Castle” type comment the article goes on to say the United State government is hauling in countless tons of sand to protect Florida’s beaches that have been decimated by global warming. Apparently this is a world-wide dilemma and just as some people blame China for COVID-19, China’s over use of sand in massive construction projects accounts for almost 60% of the world use of sand as it is mixed into cement. It takes 10 tons of sand to produce 1 ton of cement.

You, as did I, might think that with such deposits as Sahara or Death Valley or the front yard of JPeg Osage Ranch, we would never run out of sand. However, it turns out that not all sand is created equally.

Desert sands, those created from wind instead of water such as by the seas and rivers, are too smooth to be used for construction so we are depleting our “good” sand too rapidly. There is even a huge illegal enterprise in sand excavation in some countries that has led to mafia type activity or so says CNBC.

As for me, I have resigned myself to continuing to pour cement into fence post holes and hope there will be enough to circle our new barn. If Peg does her part we might be able to make it stretch.