James M. Redwine

Law

The Cure for Black Robe Fever

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In response to both the states of Indiana and Oklahoma’s CLE requirements I am currently engaged in a forty-hour online Mediation course presented by the National Judicial College in Reno, Nevada. I may subject you, Gentle Reader, to the exciting content of this course before long. Hey, why should I have all the fun alone. But for this week I thought you might prefer another of those true courtroom dramas such as the one presented in last week’s column about my service as a prosecuting attorney that helped keep me from falling too deeply into the Black Robe Syndrome. The case that today’s column is about occurred about 25 years ago in front of me in the Posey County, Indiana Circuit Court. To my chagrin, I confess it is all too true and was first confessed to by me in a Gavel Gamut article on August 07, 2006 and appears in the book Gavel Gamut Greetings from JPeg Ranch.

The whole embarrassing courtroom episode reminded me of Dorothy’s serendipitous traipse along the Yellow Brick Road in the land of Oz with the cowardly Lion, the Scarecrow and the Tin Man in search of a brain for the Scarecrow, courage for the Lion, a heart for the Tin Man and the Wizard of Oz for Dorothy. When the mighty Wizard of Oz is finally seen for what he really is by Dorothy his façade of omnipotence gets shattered.

It is probably a good thing that we sometimes have false images of our leaders.  I remember my feelings of dismay when I was told by one of my grade school teachers that the painting of George Washington that hung in our classroom and in which The Father of Our Country looked so stern and powerful portrayed General Washington with his lips tightly pursed because he had ill-fitting false teeth.

And I will not disclose at what advanced age I still clung to Santa Claus and the Easter Bunny.  I might have been slow to catch on but I was happier than my peers.

We may be wrong, but most humans believe in pomp and circumstance and the regalia of office.  Police officers have badges, soldiers have uniforms and presidents have Air Force One.  We do not need to know about what happens behind the scenes.

Then there are judges.  Judges have courthouses, high benches, gavels and those flowing black robes. Hey, it’s kind’a cool. And, of course, some judges have spouses who are not so easily impressed by all the accoutrements since they see their judges asleep on the couch in dingy tee shirts and torn Levi’s.

But what brings the old “feet of clay” sharply into focus are those unexpected events that occur in court where some citizen decides to act like this is a democracy and he or she is an American.

While there are many instances where I have been made to realize that the trappings were for the office and not for me personally, my wife Peg’s favorite story involved a case from about ten years ago where I was imparting great judicial wisdom and admonitions to a young woman who had been found guilty of stealing.

As I was regaling the full courtroom with the majesty of the law and how it fell so heavily on this poor young miscreant, all of a sudden the huge double doors in the back of the courtroom burst open and a large woman with her hair in curlers wearing a housecoat and bunny slippers charged up towards my bench. She was the young woman’s mother and she was not amused and certainly not impressed by my lecture to her daughter.

The lady stopped just behind the bar that separates the hoi polloi from those who are paid to serve them. She stood to her full height and said very loudly:

                     “If you weren’t wearing that long black dress, I’d come up there and slap your face!”

Then she turned and marched slowly and grandly out the back of the courtroom giving me what for the whole time.  The packed courtroom was split between amazement and amusement.

As for me, I knew how the old Wizard of Oz felt.

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.

Passion Put To Use

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Gentle Reader, if you read last week’s Gavel Gamut you will recall we were considering Alexis de Tocqueville’s observations of America as a country based on law. De Tocqueville’s parents, Hervé and Louise de Tocqueville, had barely escaped the guillotine during the French Revolution (1789-1799). De Tocqueville was born in 1805 so he and his family had an intimate personal understanding of the dangers of a nation ruled by individual people, not laws. De Tocqueville studied law and served as a magistrate. He knew the value of French philosopher Montesquieu’s theory of a government formed with a separation of balanced and competing powers (legislative, executive and judicial). And he agreed with the morality of English philosopher John Locke’s (1632-1704) theories that governments should serve their people whom nature had endowed with the rights to life, liberty and property.

When people call for revolution they might wish to re-visit Locke, Montesquieu and de Tocqueville or one could refer to those more contemporary English philosophers, The Beatles. As John Lennon sang while backed by the cabal of Paul McCartney, George Harrison and Ringo Starr in “Revolution”:

♫ You say you want a revolution

    Well, you know

    We all want to change the world.

    ….

    But when you talk about destruction

    Don’t you know you can count me out.

    ….

    You say you got a real solution

    Well, you know

    We’d all love to see the plan. ♫

Unfortunately, Mark David Chapman did not get the message. But Lennon’s untimely loss is an example of how ideology and ignorance can get weaponized as opposed to de Tocqueville’s prescient observation about how the United States holds its “revolutions” every four years via the ballot box. Americans may get quite passionate about their politics, but as Elizabeth Barrett Browning (1806-1861) might philosophize, “It (should be) a passion put to use”, not destruction.  (How Do I Love Thee).

A Legal Revolution

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Alexis de Tocqueville (1805-1859) was a Frenchman who studied American society during a nine-month tour in 1831 when the United States were still simmering with vitriolic political animus from the 1824 and 1828 elections between John Quincy Adams and Andrew Jackson. Adams was elected by the House of Representatives in 1824 and Jackson won via the Electoral College in 1828. After neither election did the United States fall into chaos, even though Jackson won both the popular vote and a plurality, but not a majority, of the Electoral College vote yet Adams grabbed the presidency in 1824.

Four men ran for president in 1824, John Quincy Adams, Andrew Jackson, Henry Clay and William Crawford. Because the Electoral College vote was split in such a way that none of the four received a majority, as required to be elected President, under the Twelfth Amendment to the U.S. Constitution a “contingent” election was held in the House of Representatives. Each state’s delegation was given one vote and Adams was elected. Jackson and his supporters alleged that Adams and Clay had entered into a “Corrupt Bargain” to shift Clay’s votes to Adams. Regardless, Adams was elected by the House and the country moved on until 1828 when Jackson ran against Adams again.

In his treatise on American democracy de Tocqueville defined America’s presidential election as “a revolution at law” and described it as follows:

“Every four years, long before the appointed (presidential election) day arrives, the election becomes the greatest, and one might say the only, affair occupying men’s minds…. As the election draws near intrigues grow more active and agitation is more lively and widespread. The citizens divide up into several camps.… The whole nation gets into a feverish state.”

De Tocqueville’s ultimate verdict on America’s democracy was encapsulated in his general verdict on how political controversies were ultimately resolved. His observation was that:

“In America there is hardly a political question which does not sooner or later turn into a judicial one.”

De Tocqueville’s opinion was that the American manner of resolving political issues without bloodshed worked because, unlike European monarchies, the United States citizens respected the law and they did so because they had the right to both create it and change it. Since we get to choose our legislators who write our election laws and because we can change the laws by changing whom we elect if we are unhappy, we accept the laws as written including who is ultimately declared the winner of a current election.

The laws we have the right to create and the right to change include filing for an elected office, running for that office, who counts the votes, how they are counted, as well as how and when someone can legally contest an election. That legal procedure applies to all facets of an election cycle. Each state’s legislature has the authority to establish its own procedures in this regard as long as they do not violate federal law.

As an Indiana Circuit Court Judge I was involved in a recount of a congressional race, a county clerk general election, a county council general election, a town council election and a county council primary election. The Indiana legislature had enacted and published a clear statutory procedure for each type of election contest, including what role each public official should play in any recount. The statutes demanded total openness and media access to ensure the public could have confidence that if all involved followed the law a clear winner would be fairly determined. There were time limits, controls and transparency. After a recount result was certified in each contest life moved on and the eventual losers and their supporters accepted the results because they had had their “day in court”; that is, democratically enacted law was followed not the arbitrary or partisan activity of individuals.

De Tocqueville compared America’s hotly contested democratic elections to a surging river that strains at its banks with raging waters then calms down and carries on peacefully once the results have been properly certified. From my own experience with several elections and after the recounts of some of them, I agree with de Tocqueville’s analogy.

That is not to say I am for or against any type of recount for any office. I absolutely have no position on whether any candidate for any office should concede or contest anything. My position is simply that as long as the law is properly followed our democracy can handle either circumstance.

Another China Virus?

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Log Futon Before Assembly

When I have nothing to do that’s what I do. When my wife Peg has nothing to do Amazon’s stock rises. I do not recall a promise to love, honor and spend countless hours schlepping around Peg’s mail-order treasures but she assures me it was in the fine print. And when Peg shops I get blessed with packages that must be unpacked and inscrutable assembly instructions. I do not know if China deserves any blame for ’Ole 19 but it seems everything that UPS or FedEx or Amazon, etc., etc., etc., ships to us comes with the warning “made in China” and “easy” guides that are “Greek” to me. Let me ask you, did ancient Greece once fill the current China role of world-wide shipping of products accompanied by Tower of Babble type assembly manuals?

Peg’s most recent “essential” on-line purchase was a log futon; it came in three large cardboard containers. But even though it was plainly labeled with Peg’s name and our address it was dumped by some overworked FedEx driver at an address four miles from our home. Julie and Wayne Brown, the nice people who found our packages propped against their front door, contacted us and we picked them up. Actually Wayne Brown, an innocent victim, helped me load the heavy and cumbersome articles into our SUV then Peg and I had to unload them at JPeg Osage Ranch. I had just a glint of uncharitable satisfaction when Peg could barely lift her end.

Once we removed the cardboard and located the sixteen-page assembly booklet we understood why the furniture company did not offer, at any price, the option of fully put together delivery. On the face of the assembly manual was a large red STOP sign that notified us we could not return the items to the store that sold them but, we had to deal with the manufacturer. Then we were directed to a website for a “video tutorial”. My heart sank as I realized my Labor Day weekend was over and the “holiday” was aptly named.

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Peg is the daughter of an engineer and is amazingly adept at technical stuff. I am better at more sanguine pursuits such as watching football and writing newspaper columns. However, I am highly experienced in the realm of lifting heavy objects and following Peg’s orders. Therefore, together we are usually able to navigate the choppy waters of arcane mail-order living during these unusual days of social distancing; however, not so fast on this Gordian Knot puzzle dumped on the neighbors and then us. It is a testament to our pure stubbornness, the potential waste of hundreds of dollars and our total lack of options that we did not simply add these finished wood parts to our burn pile. If I were not acutely aware of “the Law’s Delay” and the almost always unhappy experience with lawsuits, we would have just thrown up our hands and sought out a lawyer. Surely the sadists who came up with both the futon and its accompanying assembly manual(s) ought to be held liable for our two (2), that’s right, days of frustration before our “Mission Accomplished” was.

One good thing that happened was Peg was so ticked off at Kodiak Furniture and FedEx she may not order anything else for a week or so.

Log Futon After Assembly

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.