James M. Redwine

Law Enforcement

The Source

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Where my boxes of stuff went!

When former President Donald Trump moved out of 1600 Pennsylvania Avenue in Washington, D.C. he took fifteen boxes of stuff with him that he stored at his Mar-a-Lago home in Florida. Someone tipped off the FBI that the boxes were stashed in some closets. Who might that have been is one of the matters the FBI and the Department of Justice wish to keep confidential. That information is most likely part of what was redacted from the Affidavit that was filed with the application for the Search Warrant. We in the general public, therefore, do not know who the source was; I certainly do not. However, I do have a theory for your consideration, Gentle Reader.

It is reported that the 15 boxes contain governmental documents with news articles and magazines interspersed. Who would be concerned with such stuff being left sitting around the house? If The Donald is like most husbands, he probably does not get exorcised over a few extra items thrown into an attic, a basement or a closet. However, if Melania is anything like Peg, she takes a dim view of stacks of stuff cluttering up her house.

I remember when Peg and I last moved she took it as an opportunity to jettison a great deal of what I held dear, such as stories about my youth and old files from legal cases long forgotten. Anytime I was not vigilant Peg would trash my treasures to make room for her new acquisitions in our new residence. Clutter is to Peg as the contents of the Augean Stables were to Hercules and it seems most of what I hold dear as personal history Peg decrees to be stable staples. We are in a perpetual yang and yin of store or shovel when it comes to my inclination to preserve what Peg sees as dross. My guess is Donnie and Melania live a similar dynamic.

Now I do not know what was in the boxes. I do know the stuff sat around Florida from when the Trumps left Washington on January 28, 2021 and the country seemed to chug along okay until August 08, 2022 when the Search Warrant was executed. The stuff in the boxes did not seem to affect America’s decision to send billions of dollars of military equipment to help Ukraine defend the war against Russia’s invasion. It is probably what the psychologists would call my retrogressive inhibitions from the 1960’s, but for some reason visions of Viet Nam and Afghanistan keep muddling around in my brain.  The contents of the boxes may be of no more significance than the contents of the file cabinets I struggled to schlepp down three flights of steps from my attic in our old home and haul to a barn at our new one.

That is not to say Donald should not turn them over to the National Archives. Maybe they are important, or not, but they still belong to all of us. And I wonder if Melania may not have been that unhappy to see the closet doors open for the FBI to haul the offending boxes away so that they have now become the National Archives’ problem instead of hers

Let There Be Light

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On August 08, 2022 the FBI executed a search warrant at former President Donald Trump’s residence, Mar-a-Lago, in Palm Beach, Florida. That is about the extent of what we in the general public know about the situation. There is a great deal of speculation about the process but very little of that speculation is likely to be unbiased. The search of any former president’s home would of necessity be embroiled in competing political interests. Many important issues are in play and countless questions arise.

We in the general public may be greatly affected by the search and the motivations for it or there may be no great significance to our democracy. We do not yet know the basis for the search or the reasoning of those who sought, granted or executed it. And that is unacceptable as almost always, our interests as a nation are better served by more factually correct information than less. A lack of transparency engenders suspicion and confusion. In a country so at odds over Donald Trump, more light is best. Careful release of information may be called for but it is more likely that the greatest harm to our country will result from suspicions raised by in camera legal proceedings.

There are good reasons our Founders saw Great Britain’s use of General Warrants and Writs of Assistance as cause for Revolution. The Fourth Amendment to our Constitution was adopted to protect our right to be free from unreasonable searches and seizures. It requires “an Affidavit of Probable Cause supported by Oath or Affirmation and particularly describing the place to be searched, and the persons or things to be seized.”

I do not ascribe to the fear our country is near another revolution. However, I do think we should seek to benefit from the wisdom of those who fomented the first one. Was the search of Donald Trump’s home called for by the facts? Were those who made the call properly motivated? Was the Fourth Amendment followed?

Perhaps it was in America’s best interests to search Mar-a-Lago. Maybe evidence of “High Crimes and Misdemeanors” was secreted in the premises. If so, then a search was not only justified, it was required. However, until the secrecy is removed and the light of justice is brought to bear, the citizenry is in the dark. And that dark might lead to more harm than the revelation of some uncomfortable documents.

Positive or Negative

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Equal Justice Initiative National Memorial Montgomery, Alabama

 

There is no memorial on the Posey County, Indiana courthouse lawn to the seven Negroes murdered by a white mob on October 12, 1878. There is a modest stele naming those soldiers with Posey County connections who served in   the Revolutionary War and an impressive statue honoring all who served in the Civil War. There are bronze plaques on the lobby walls of the Posey County Coliseum commemorating many of those who served. The Coliseum houses one of Posey County’s two courts and the other court is located in the courthouse.

Because I was the elected Posey Circuit Court Judge and because our son, James David Redwine, was a West Point graduate who would later earn a Bronze Star for Service on the front lines of both the Gulf War 1990-1991 and the Iraq War of 2003-2011 I was asked to speak at both the War Memorial Re-Dedication on Sunday, October 21, 1990 and Re-Dedication of the Soldiers and Sailors Monument on July 23, 2008. I was honored to do so and wrote the following poems for the occasions. The poems appeared in several newspapers after each commemoration:

 

WAR MEMORIAL RE-DEDICATION
(Sunday, October 21, 1990)

SUNDAY MORNING CHIMES

How dear it is to be alive:
To hear the peal of morning chimes;
To feel the invigorating sting of this autumn day;
To taste the rich and biting air;
To smell the acrid smoke of burning leaves;
To see the glory of Nature’s third act.

How satisfying to still be a player:
To know a child’s trust;
A family’s support;
A friend’s companionship; or
A lover’s caress.

How thrilling it is to learn,
To plan,
To strive
To serve,
To live!

These wondrous things:  These sensations;
These desires;
These dreams;
These visions.  This life,
Is what these heroes have sacrificed for us.

RE-DEDICATION OF THE SOLDIERS AND SAILORS MONUMENT
(Wednesday, July 23, 2008)

WELL DONE!

At Lexington and Concord, the young blood began to flow.
At the Battle of New Orleans, muskets killed our cousins and our foes.

At the Alamo and Buena Vista, we stood to the last man.
At Shiloh, Chickamauga and Gettysburg, brothers’ blood soaked the sand.

At San Juan Hill and when the Maine went down, our soldiers never flinched.
At Verdun and by the Marne, a million men died in the trench.

At D-Day and the Battle of the Bulge, after Hiroshima’s mushroom clouds,
At Incheon Landing the forgotten war brought many more funeral shrouds.

At Khe Sanh and during Tet, we held our own and more.
At the Battle of Medina Ridge, our Gulf War warriors upheld the Corps.

At Sinjar, Mosul, and places with strange names,
Our Iraqi War veterans now earn their fame.

In uniforms, our citizens have served well everyone.
Today, we here proclaim to them our solemn praise:  Well done!

 

It is fitting and proper that we honor those who serve and that we are permanently reminded of the horrors of war. Society needs to be constantly on guard and eternally grateful. Of course, the reasons that call for memorials about wars are much the same as why we need memorials to our collective evil done to some citizens by other citizens.

Since I first discovered, by accident, in 1990 the legal system’s long covered up murders of Daniel Harrison, Sr., Daniel Harrison, Jr., John Harrison, James Good, Ed Warner, William Chambers and Jeff Hopkins by, as the Mt. Vernon, Indiana Western Star Newspaper said on October 17, 1878, “two to three hundred of the county’s best white citizens” right on the Posey County, Indiana courthouse campus, I have called for accountability and a memorial to the victims. Society owes this atonement to the victims and we as a society need it for ourselves.

What the sign says. Pictures by Peg Redwine

Mox Nix

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American soldiers stationed in Germany picked up the German saying “Macht nichts” and anglicized it to Mox Nix. Either way it means, it doesn’t matter, kind of short hand for don’t sweat the small stuff. If you read the Gavel Gamut entitled “Wheat from the Chaff” you might recall the general topic involved the American legal system’s treatment of high-profile cases such as the George Floyd/Derek Chauvin matter. Judge Cahill in that Minnesota jury trial was faced with several issues related to publicity about the case. The judge was asked to change the venue of the jury trial out of Hennepin County, MN; he refused. The judge was asked to sequester the jury; he refused. And he was asked to recuse himself as judge; he refused.

The basis for each of these requests from defendant Chauvin was imputed bias because the judge, jury, victim, defendant and witnesses were from Hennepin County and, there might be prejudice due to personal experiences with the local area and populace, or from the pervasive local media coverage. The defense asserted the judge and jury would perforce decide the case not based on the evidence but without regard to the proven facts, or worse in spite of them.

While I have no position as to the validity of such allegations in the Chauvin case, in general, it strikes me that such fears evince disdain for the character of judges and jurors. Do those who aver a trier of fact would find someone guilty or innocent based on personal bias in the face of admitted evidence proving the opposite really think so little of their fellow citizens? Haven’t we all had to make many difficult choices that often go counter to what we would prefer? Then why would we assume others are made of lesser stuff than we? If we were the judge or jury wouldn’t we swallow hard and decide the case as required by the law and the evidence in spite of what we might wish the facts to be? So why not afford our fellow citizens that same consideration?

Does that mean no case should ever be venued or no judge should ever recuse? Absolutely not and I was neither the judge nor a juror in the Derek Chauvin case so I take no position on whether Judge Cahill erred or whether the jury based its verdicts on improper factors. Those issues are now going to be reviewed by the Minnesota appellate courts which will have the duty and ability to ascertain whether the trial was fairly conducted by the judge and proper verdicts returned by the jury.

Most judges and most jurors most of the time have the ability and character to recognize when their personal feelings and news accounts must be set aside if a just verdict is to be reached. In those circumstances where human frailty overcomes treating others in court the way we would expect and like to be treated, we do have appellate procedure as a safeguard. Most cases are decided in circumstances where extraneous matters could be influential on the outcome. However, America’s legal system and the citizens who are responsible for operating it have the ability to sift the wheat from the chaff and they have the character to know when to say Mox Nix.

Of Motes And Logs

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Last week the National Basketball Association deferred its 2020 playoff games out of respect for the Black Lives Matter movement. The incident that was the catalyst for the Milwaukee Bucks professional team to decide to boycott game five of the playoffs against the Orlando Magic team was the shooting of 20-year-old Jacob Blake, a Black man, on August 23, 2020 during an encounter with the police in Kenosha, Wisconsin. Blake informed the arresting officers he possessed a knife but he did not wield it. Blake’s shooting struck many as part of a continuum that began May 25, 2020 in Minneapolis, Minnesota when 46-year-old George Floyd, an unarmed Black man, died as a result of an encounter with police. In between Floyd and Blake several other incidents of police/Black person violence have made national news. History records numerous such incidents and a great many more have not been recorded but exist in the psyches of both minority and majority populations. Until cell phone cameras became ubiquitous such incidents tended to get lost in the vagaries of competing memories. Today the incidents are often still in dispute but there may be video and audio evidence to analyze in search of the facts as opposed to mere opinions.

In my experience the truth as believed to be proved by whatever evidence may exist tends to depend to a large extent upon the ability of the observers to set their personal prejudices aside and apply a degree of objectivity to the situation in question. Although such matters as the Blake and Floyd cases are qualitatively light years from sporting events, perhaps an analogy may still be apt when it comes to determining the actual facts as opposed to opinions about the perceived facts or, more likely, the projected ones.

When a sports fan endures the indignity of an umpire’s or referee’s close call against the fan’s team, it is the rare fan who congratulates the official for his/her judgment. What may look like interference to the referee may look more like “no harm, no foul” to the fan. Of course, when it comes to issues of race the emotions are much more complicated and visceral and deadly force or resistance may be involved. If in war the first casualty is truth, when it comes to matters of race and ethnicity truth often depends more on the culture of the observers than observation alone. That is why the wise people who founded this country fashioned a government of laws. Without law the scales of justice tend to dip in favor of whoever has the power to put their thumbs on the scales even when they would swear, and probably believe, they are fair to a fault.

About the best we can hope for, even in ourselves, is that we recognize our judgments on matters as fundamental as human rights are often influenced by our particular frailties and that our frailties come from our particular culture. Then we can bring up the logs that are in our own eyes and try to account for them in determining what the evidence truly proves in any particular case. People whose duty it is to make judgments on the behaviors of other people often learn, sometimes the hard way, that their conclusions about what certain evidence proves have been subconsciously affected by personal factors related more to the person doing the judging than the actual behavior of the ones they judge. This phenomenon has been recognized by trial lawyers and judges since we homo sapiens first began to settle our disputes in court instead of with clubs. That is one of the main reasons attorneys prefer to settle cases by compromise as opposed to seeking the full measure the attorneys believe their clients may be entitled to from a decision by a judge or jury after a trial. Over 95% of all court cases settle without a trial. The attorneys know that it is rare for a court decision to be intentionally biased but it is often subconsciously so. And if this is true with trained judges it is good to keep inherent biases in mind with such organizations as political parties and the media.

There are remedies to unjust treatment that has resulted from unrecognized prejudices. However, such things as money damages are usually insufficient compensation, especially if permanent disability or death to either an offender and/or officer occurs. Prevention is a better treatment. And prevention requires that we look deep within ourselves, hopefully well before, but at least at the time of a racially or culturally charged incident. Such introspection should be demanded of all whose job it is to control the behavior of others; police officers and judges come to mind.

But all of us would do well to recognize our potentional to unfairly discriminate based on factors we rarely acknowledge to ourselves. Of course, one of the best remedies for eliminating prejudicial behavior is an atmosphere where all points of view are allowed to be considered and evaluated. That is why Frederick Douglass (1818-1895) stated that the right of free speech is … “the dread of tyrants”. Perhaps Douglass recognized that tyranny can also come from within each of us and that the atmosphere of our current Cancel Culture that is festering hate on college campuses, in the news media, in politics and even among friends may be the place to start addressing systemic prejudices.

Spare The Rod …

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When our early immigrants from Great Britain set up their legal system in New England they did not have prisons and, often, not even jails. What passed for justice included such corporal punishments as standing in the stocks or being bound to the whipping post, usually in the village square and always in public view. That shaming was part of the punishment. Also, it was erroneously believed to reduce recidivism. The great French legal philosopher Paul-Michael Foucault (1926-1984) posited that the “public” part of public punishments was essential to helping eliminate cruel and unusual sentences for crimes.

If a petty thief could have their hands hacked off on the public square, society would more likely be averse to such disproportionate penalties. According to Foucault, modern governments began to remove punishments such as beheadings from public view not out of a concern for general sensibilities but out of a desire to prevent the people from rising up against the government. If the public, through its governmental officials, see fit to physically punish a miscreant, especially a political prisoner, then the public should be witness to the gory spectacle.

Recently, perhaps as a concomitant of the Black Lives Matter phenomenon, such vestiges as public whipping posts are being removed from public lands and moved to museums. The state of Delaware allowed public floggings as criminal punishments until 1972. Now the places where the public could watch as a person was beaten with a cat-o-nine tails are being removed from such places as jail yards and courthouse lawns. Even the memory may be lost.

In 1817 Posey County, Indiana did not yet have a jail but in one of the county’s first criminal jury trials the defendant, one Mr. Green, was found guilty of hog stealing and sentenced to 49 lashes at a post just outside Posey County’s first courthouse which was the living room of Absalom Duckworth’s home.

Under the procedure of 1817 the defendant’s lawyer, Richard Daniels, had the right to immediately petition for a new trial. He did so and Judge Isaac Blackford took a lunch break to consider the motion. During the lunch hour Sheriff John Carson, who either did not know or did not care about the petition for new trial, tied Mr. Green to the whipping post and flogged him without the Judge’s or the attorneys’ knowledge.

When Judge Blackford reconvened court, Attorney Daniels stood and requested a new trial. The Defendant grabbed his attorney by his coattails and said, “For God’s sake, Dick, do stop. I’ve had enough already!” I suppose no one could accuse the legal system of delay in 1817.

I do not condone or recommend corporal punishment as a sanction for criminal behavior. However, I do agree with Foucault; excluding the public from the imposition of Draconian sanctions makes such unfair outcomes more likely. For example, the spectacle of public whippings was legal in Delaware until 1972, but there had not been such a horrific punishment in that state since 1952 when a husband was lashed 20 times for beating his wife. There is no evidence such a sanction affected spousal abuse. But it surely caused citizens to lose respect for their legal system.

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