James M. Redwine

Gavel Gamut

Not That Long Ago

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My childhood friend and neighbor Gary Malone was killed in combat in Viet Nam July 28, 1966. On Sunday, September 10, 2023 President Biden stood in front of United States and Vietnamese flags and announced a strategic partnership with Viet Nam, more honestly identified as a pseudonym for military assistance. It is generally understood that this military realignment is to counter balance Viet Nam’s reliance on its neighbor China. China was North Viet Nam’s main supporter when the United States was fighting a 20-year war against it (1955-1975).

Gary cannot express his feelings about his country’s rapprochement with the people our government sent him to fight. But I may soon get to see his brother, Bud Malone, who along with Gary’s twin, Jerry, also saw combat in Viet Nam. Maybe Bud and I will discuss the war and Gary and Jerry or more likely, since Bud is Osage and we have been friends for almost 80 years, not much will need to be said. Perhaps a song from the musical Les Misérables can help fill the void:

♪….

Oh my friends, my friends forgive me
That I live and you are gone
There’s a grief that can’t be spoken
There’s a pain goes on and on

…

Oh my friends, my friends don’t ask me
What your sacrifice was for
Empty chairs at empty tables
Where my friends will meet no more ♪

When American young people were both fighting and protesting the Viet Nam War our government was issuing vague exhortations about the need to stop the advance of Communism in China and the U.S.S.R. (today’s Russia). In fact, as Gary and 58,000 more members of our generation were serving and being killed in Viet Nam, our government’s pronouncements then sound much like our government’s rationales for war today. We must fight China, Russia, Iran and a myriad of other perceived enemies there now so we will not have to fight them here later. The one constant we can rely on is that old people will do now what old people did then when 22-year-old Gary gave his life for what he believed in. That is, our government will send young people to pay the price.

My guess is Gary would support peace and even friendship now with Viet Nam and even China, Russia, Iran, etc., so other people on all sides might avoid an early death from armed conflict. Of course, I cannot ask Gary today what he would think as if he were an 80-year-old. We all struggle to understand how that puzzling young person we used to be would react today. I do remember I started out believing the government and supporting the war then slowly realized we had been misled by our leaders who were themselves misled by false intelligence and bad judgment. Gentle Reader, does that remind you of our recent wars in Iraq, Afghanistan and even, perhaps, Ukraine?

Peace and friendship with Viet Nam do not denigrate the honorable service of Gary and his fallen comrades. Rather they validate the ideals they stood for. The issue is not was their sacrifice in vain? It was not, as long as we do not forget it and as long as we learn from it. Rest in peace my young friend. Your former adversary and your beloved country have finally come full circle building upon your service. We must now guard against our new alliance helping to lead us into a new conflict with another old enemy. Your memory deserves better.

Mental Gymnastics

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Former President Donald Trump is facing both state and federal charges in several courts of law. These charges present difficult challenges to the judges in each case with the most important judicial task being to guarantee that all parties receive a fair trial. However, that duty to the people directly impacted by each case must be carried out without violating the right that our Founders knew to be the right that was essential to guaranteeing all of our rights, Freedom of Speech.

While several of the Founders championed freedom of expression as fundamental to democracy, Benjamin Franklin, a newspaper publisher himself, led the debate:

“Freedom of speech is a pillar of a free government;
When this support is taken away, the Constitution of
a free society is dissolved, and tyranny is erected on its ruins.
Republics derive their strength and vigor from a popular
examination into the action of the magistrates.”
 

Benjamin Franklin was born in 1706 and was immersed in the printing of politically focused newspapers in Philadelphia when fellow printer John Peter Zenger was prosecuted for libeling British Governor William Cosby in New York City in 1734. Zenger was jailed pending his jury trial but when he was tried the jury acquitted him in spite of the clear violation of the British Colonial law. The jury made up its own mind in spite of an atmosphere of bias from the government.

Currently, some of the judges in Donald Trump’s cases have fashioned gag orders that threaten punishment if Trump says things about the possible evidence, the witnesses, the prosecutors or the judges. The reasons given by the judges for these gag orders all claim they are to protect the parties and witnesses from attempted coercion and to prevent the tainting of any future jury pool. In other words, the judges have no faith that potential jurors can do what judges must do in every case. That is, put aside any irrelevant matters and decide Trump’s cases only on the law and the facts.

As a judge for over forty years I find this lack of confidence in jurors ill founded. Judges decide almost all cases without a jury if there is no plea agreement in criminal cases or no settlement in civil cases. In other words, people have confidence a judge in a criminal case may receive an indictment from a grand jury the judge impaneled or approve a charge brought by a prosecutor and still decide the case. Or, a judge may issue an arrest or search warrant based on in depth out of court statements and then set that information aside and still fairly decide guilt or innocence. If one person, a judge, can do this so can twelve. Of course, statements by parties that threaten physical harm should not be tolerated. However, comments about the evidence, the prosecutor or the judge that offend the judge come with the robe, even if those comments are unfair, unkind and untrue. Just ask John Peter Zenger, Benjamin Franklin, Thomas Jefferson, James Madison, etc., etc.

Jurors can be trusted, just as judges can be, to do their duty. CNN or FOX News can be eliminated from the jury room. The voir dire procedure is designed to exclude potential jurors who cannot do that. Does the legal system occasionally fail and a biased judge or jury render a decision based on pre-trial publicity or emotion? Unfortunately, that happens. But to deny America the vital protection of the First Amendment in an attempt to eliminate human frailty is a fool’s errand and an affront to our Sixth Amendment, Right to Trial by Jury.

Gentle Reader, I would like to share with you one of my own experiences as judge as an example of the public’s faith in the ability of a judge, or jury, to set aside bias and still fairly handle a case. Now, I might not process this case today the way I did a few years ago but I will let you be the judge of what happened then. Anyway, what follows is true, if perhaps, somewhat askew legally.

When I received my honorable discharge from the United States Air Force the only job I could find in Indianapolis, Indiana where I lived with my wife and son was selling P.F. Collier Encyclopedias door-to-door. We only owned one car, a 1956 Ford Fairlane convertible. I really liked that car but we decided we needed a new one so I sold it to a guy I worked with on the basis he would pay me each week. Well, the week after I gave him the keys he disappeared with my car. I did not see him again for twenty-five years when he appeared in my courtroom charged with a home burglary.

I had forgotten his name and he surely did not recognize mine. He and his attorney and the prosecutor had filed a plea recommendation and requested that I approve it based on a pre-sentence report prepared by my probation department. After reading the report I realized this man in front of me had stolen my car. When I confirmed that fact, I told him I would recuse and get him another judge. He said, “Ah, Judge, were you going to take the deal before you remembered who I was?” I said, “Yes”. He said, “Well go ahead.” I said, “No, go out and talk to your attorney”. He did. Then he and his attorney and the prosecutor said, “Judge, we really want you to stay on the case so we can get this done now”. I said, “Okay, but what did you ever do with my car?” He said, “Well, when we got to Oregon it quit running and my wife had me cut off the top and fill it with potting soil then she made a planter out of it.”

Now, I know I had other options but one thing this case showed me was a judge or jury can be fair even when personally offended. So suck it up judges and have faith the jurors will not be any less pure than you.

 

Respite and Nepenthe

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Photo by Peg Redwine

Edgar Allan Poe in The Raven holds out little hope for relief from the memories of the lost Lenore. Poe seeks respite in the mythical ancient Greek beverage, nepenthe, that causes forgetfulness. In those Dog Days of summer where August made the fires of hell sound inviting, respite and nepenthe finally arrived in September on the wings of the forward pass. Gentle Reader, allow me to quote my favorite author on our salvation from the hades of 100℉ temperatures:

“The crisp autumn air. The dry brown grass. Sweaty pads and the exhilaration of combat without weapons.
The kind of battle where one can experience the thrill of having been shot at and missed without even being shot at.
Football! Ersatz war. Clashes of pride, power and cunning.”

Echoes of our Ancestors: The Secret Game, p. vii
By James M. Redwine

Football has returned and the grass is going dormant. The experts may assert there is no connection but I say the frequency of mowing is inverted to my several favorite teams’ re-emergence in game day uniforms. Somehow the same weather that keeps me from doing outside chores does not hinder me from sitting in the heat for four hours watching boys and men shoving an inflated pig bladder covered with cowhide back and forth.

Perhaps it is because I no longer have to endure the two-a-day early morning and evening practices nor the inane exhortations of coaches who themselves also no longer must do so, but watching others play football sure beats working in the heat. In fact, Peg and I have already been jiggling our schedules so we can follow the Hoosiers, the Cowboys and the Sooners on Saturday. Our new season hopes are high but any disappointments can be assuaged with guacamole, chips and cold beer. Besides, even though we may have the occasional opportunity to attend a game in person, normally we will be sitting on the couch in 72-degree air conditioning while others entertain us with their sweat and blood and give us an excuse to leave the lawnmowers put away. I would not want you to think Peg and I have not had to make our own hard choices during the football season. For example, we had to get up at 5 o’clock in the morning to watch the 2023 Super Bowl when we were in the country of Georgia; it was tough.

Anyway, thank you to all those who have sacrificed their August sweating and preparing and now their autumn struggling for our relief. We truly appreciate it and will frequently raise a parting glass in your honor.

Photo by Peg Redwine

True Believers

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People have the constitutional right to have their children taught whatever religion they wish as long as what their children are taught does no harm to them or to others and as long as American taxpayer money is not involved. Parents should and do have the right to send their children to a religious based school. However, tax supported schools violate the Constitution and the rights of others if students are taught any religion as fact. Public schools should expose children to the great myths of history, especially as those stories help explain how great civilizations have prospered and declined. Tax supported public schools must not seek to proselytize any child for any faith. Muslims, Jews, Christians, atheists, Hindus, pagans and every other dogma have the right to believe as they wish and to attempt to inculcate in their children what any particular belief teaches is right, but no group has the right to have the taxpayers fund such indoctrination.

Public schools should expose students to comparative religions just as the schools should teach world history and philosophy. Where taxpayer supported public schools breach the Constitution’s wall dividing religion and the state is when the schools teach any religion as fact or when the schools promote any particular religion. That is why Oklahoma’s Superintendent of Public Instruction Ryan Walters may want to revisit some of his pronouncements. And the same may be true for other elected or appointed governmental officials and not only in Oklahoma.

Superintendent Walters was elected, so many citizens may agree with his theories of education. However, a general acceptance of a governmental practice of discrimination does not validate such a theory. Separate but Equal and the Trail of Tears come to mind. Superintendent Walters may believe he has the best interests of students at heart when he promotes Christianity in public schools. True believers often have seen it as their duty to save others. But, attempting to save children by indoctrinating them using taxpayer funds violates the law and the principles upon which the United States of America were founded. It also violates the rights of parents who do not want their children taught any religion by strangers who work at public schools their taxes pay for, especially if what a school may promote as fact the parents may not believe is correct.

Most of us want others to agree that what we believe is the truth actually is factual. Such a desire is normal and not illegal. Ryan Walters may believe his faith is fact if he wishes. However, Superintendent Walters violates his oath of office and the Constitution if he uses his office to discriminate against or for any particular faith in our public schools. And, of course, so does any other governmental or public school official who does the same.

Mr. Walters may think he has the best of intentions in his heart. But it is his mind and the law that should guide his actions. He need only look at the religious based atrocities of the Taliban to understand the dangers of what he may consider our children’s salvation.

 

The Book Club

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Photo by Peg Redwine

Phil Ochs (1940-1976) was an American folk singer who wrote and sang about the dangers of governmental suppression of human rights. One of his favorite topics was censorship. In his song Outside of a Small Circle of Friends, his lyrics include:

“Oh there’s a dirty paper using sex to make a sale
The Supreme Court was so upset, they sent him off to jail.
Maybe we should help the fiend and take away his pain.
But we’re busy reading Playboy and the Sunday New York Times
And I’m sure it wouldn’t interest anybody
Outside of a small circle of friends.”

Ochs is addressing his lyrics to the hypocrisy of selective censorship. That, of course, is the greatest danger of suppression of ideas; certain groups seek to deny the thoughts of certain other groups and individuals while the ideals of other groups and individuals are allowed to flourish.

It may be coincidental that recent political discord in America includes powerful movements to ban thought or it may be that competing strident voices seeking to drown out conflicting thoughts are the source of the stalemate of constructive solutions to our current social miasma. As various special interest groups attempt to censor the airing of the ideals of other special interest groups such as by banning books in public schools, the education of future leaders suffers. It is reasonable to assume when these narrowly indoctrinated children become adults, they will continue the process of increasing public ignorance. And children being children and the internet being ubiquitous we should not be surprised if public school education in general is eschewed and our nation might lose sight of some of its founding principles that have helped right our ship of state for over two hundred years.

While there are numerous special interest groups that seek to have our public schools, including even our colleges and universities, deny free expression, often the banning of unwelcomed ideas comes from religious sects. In America that often includes Christian denominations that see themselves as protecting children by shielding them from the dangers of sexually aberrant thought.

I recall my own Christian upbringing when some of the first stories I was taught, even before I started my formal public schooling, were from the Bible. The realization of their nakedness by Adam and Eve and Lot’s having children with both of his daughters after his wife was turned into a pillar of salt and the adultery and homosexuality of Sodom and Gomorrah were stories related matter of factly by various teachers and preachers to me and my young friends. Then there is the ultimate Christian story I was taught untold times by Sunday School teachers and ministers about God having a child with an unsophisticated young Hebrew girl. I am fairly sure no Christian right group nor any Me Too group is calling for the Bible to be banned for depicting incest among Lot and his daughters, sodomy, the machinations of an Immaculate Conception or as the Bible says, “God’s only begotten son”. And billions of people, including me, have enjoyed the Christmas Story without a thought for Mary’s lack of input in the decision.

The point, of course, is that the evils sought to be avoided by book banning are not nearly as damaging as the suppression of free speech or the violation of First Amendment rights. Schools should not stock or teach pornographic materials. However, the Bible is great literature that should be taught along with many of the other books some groups want to ban. Public schools should not teach the faiths of particular religions as fact but should expose students to the lessons and wisdom of all great literature including the myths that have helped guide many successful civilizations. We need to teach our students how to make sound, informed judgments. The best way to do that is to expand their minds not narrow their horizons.

 

What Is The Score?

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80th birthday! Photo by Peg Redwine.

Psalms, Book IV, Chapter 90, verse 10 should be avoided by anyone who is nearing or has reached 80 years of age:

“The years of our life are threescore and ten,

Or even by reason of strength fourscore;

Yet their span is but toil and trouble;

They are soon gone, and we fly away.”

I make no comment on 80-year-old President Biden or 77-year-old Former President Trump. If both men are on the November 2024 ballot the voters can exercise their own judgment. And, should some other person lead either or both slates, the news media will make sure that their callow youth or doddering age are thoroughly exposed. And it will not matter anyway if the Bible is any guide because as the Book of Ecclesiastes, Chapter I, verse 9 advises:

“What has been is what will be,

And what has been done is

What will be done;

And there is nothing new under the sun.”

Now, Gentle Reader, you may be of such an age that 80 seems but a pleasant temperature, not a grave specter or condition of daily life. However, as one who has recently joined the Four Score assemblage, I respectfully refer you back to Ecclesiastes, Chapter 4 verse 13:

“Better is a poor and wise youth

Than an old and foolish king

Who will no longer take advice.”

In other words, the mere arriving at or near 80 is not much of an accomplishment. Whether our leaders are 18 or 80 is not the relevant consideration; it is wisdom that matters and wisdom is not guaranteed by age nor is exuberant recklessness always the province of youth.

But what I have unfortunately come to experience is that diet and exercise mean little to most people who reach the “three score and ten” plateau. “Magic bullets” as trumpeted on countless television commercials do not really contain any magic. Sure, it is a good idea to not be sedentary or overeat at any age. However, no matter what good habits old people engage in, the battle still goes to the strong and the race to the swift. And those two truisms are proved by the rosters of any professional sport team and the ages of university faculties. Yes, some emeritus scholars still fill chairs so colleges can raise their images, and contributions, but doddering is not a productive exercise nor hardly inspiring.

Those near or in the octogenarian grouping are old enough to remember the Viet Nam War, the Gulf War and the Iraq War; of course, an awareness of the Ukrainian tragedy is inescapable. Yet we appear to be digging in deeper in numerous military briar patches while we have great humanitarian needs at home and abroad. Those of us who lived through Viet Nam are puzzled by others who did also yet vigorously have us engaged in numerous similar new quagmires.

Perhaps the real lesson some 80-year-olds, and many less than 80, anticipate is that there really is nothing new under the sun except the aches and pains we never truly expected should it be our lot to live long enough to experience them. On the other hand, as that eternal optimist, and opportunist, Scarlett O’Hara, said in Gone With The Wind, “Tomorrow is another day”. At least we all hope so regardless of the Sturm und Drang. As Robert Frost pointed out, all we have is the struggle so we better make up our minds to enjoy it regardless. Therefore, I’ll just pull myself up and say Happy Birthday to all my fellow Leo’s, especially the Four Score ones.

 

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