James M. Redwine

Law

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.

Legally Thinking

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Mount Rushmore

 

My brother, Philip Redwine, that is Philip spelled with the Biblical one “l”, graduated from the Oklahoma University Law School while I was an undergraduate at Indiana University. When I asked him what he had been taught he told me the entire process boiled down to “learning to think like a lawyer”. When I excitedly quizzed him about that arcane and mysterious subject he replied the whole three years of law school could be summarized by the following story:

“A client asked his attorney for advice as to whether he should file for a divorce. The client told the attorney that each time he tried to climb the stairs to the second floor of the couple’s home his wife would kick him back down. The man said to the attorney, ‘Doesn’t that show she doesn’t love me anymore?’ The attorney reflected on the situation and thoughtfully responded, ‘Either that or she just doesn’t want you upstairs.’”

So, to think like a lawyer means to objectively consider a situation from all sides and apply any relevant analogies to it. After three years of my own legal education at Indiana University, then ten years practicing law and forty years of being a judge, my conclusion is my brother was right and that lawyer-type analysis requires imagination and objective open-mindedness. I respectfully suggest we may want to try this approach to our COVID-19 impacted situation as some of our greatest legally trained presidents might have done. Yes, we must act now but we should do so with wisdom, courage and imagination.

Vision and objectivity have certainly been displayed by several of our greatest non-legally trained presidents. George Washington and Theodore Roosevelt readily come to mind. However, I would like to discuss with you a few of our legally thinking leaders who helped guide us through tough times by having the ability to seize opportunity from crisis by winnowing the wheat from the chaff.

Thomas Jefferson saw the Louisiana Purchase of 1803 and the Lewis and Clark Expedition of 1803-1806 as a means of expanding the United States from the Atlantic to the Pacific and discovering the untold resources of our country. Jefferson did this at a time when most Americans still feared, or too much admired, Great Britain. And he had to maneuver the funding through a skeptical Congress.

The Golden Spike

Abraham Lincoln was faced with the possibility of California seceding from the Union and with slavery remaining as a state option even if the South were defeated. He boldly issued the Emancipation Proclamation in 1863 and that same year signed the bill funding the Intercontinental Railroad. Lincoln did not live to see the golden spike driven at Promontory, Utah on May 10, 1869, but his use of grants of public lands and issuance of bonds helped preserve the Union he so admired.

Franklin Roosevelt saw the need for a great infusion of public funds for the education and re-employment of our out-of-work Americans during the Great Depression. Thanks to his vision America was much better prepared to respond to Japan and Germany in World War II.

John Kennedy started us on the elliptical route to the moon as financed with public monies. The vast number of jobs, products and conveniences the Space Program brought are still being enjoyed by our citizens.

I do not cite these heroes’ legal training as required for a novel approach to the Novel Virus. Millions of Americans can see that borrowing trillions of dollars to help people for a short time merely delays the pain. A cure requires applying our resources with a long view. We can invest in ourselves for the future while helping those in need now.

Germany’s Autobahn

One need not be a lawyer to see an issue such as COVID-19 from all sides and apply similar solutions as were used in similar prior crises. President Eisenhower was a West Point trained soldier who planned the greatest military invasion in history and could envision the benefits from a German Autobahn-type interstate highway system for America. And my friend, Warren Batts, is not an attorney but a rock ’n roll musician who suggests we could build a national high speed railway passenger system utilizing the middle portion of our already existing interstate rights-of-way between the separated lanes of traffic.

What we need, from our lawyers and non-lawyers combined, is the vision to prepare for our new society as it will surely be transformed by the Corona Virus. We will be changed but we can transform not regress. New skills can be taught using public funds as we did with the Lewis and Clarke Expedition, the Transcontinental Railroad, the Civilian Conservation Corps and the Space Program.

I realize these are not new ideas. That is my legally thinking point. You, Gentle Reader, will surely have several similar suggestions of your own, which I encourage you to share.

Tipping The Scales

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Ma’at, the daughter of Ra, the sun god and Hathor his wife, may be the earliest recognized use of a deity holding a scale to represent justice. A few thousand years later the Greeks looked to the goddesses Themis and Dike to balance court cases, then the Romans envisioned Justina as a blindfolded law-giver carrying a set of scales and a sword.

I do not know why humans tend to look to women as the bearers of truth but my guess is it is because we all had mothers and most likely we realized early on that what mom said was the law. Dads may occasionally get to brandish a sword but all smart husbands know when the rubber meets the road mom rules.

Regardless, all those female judicial goddesses are portrayed trying to balance the scales of justice. One does not need to be a judge in a court to understand law is a matter of balancing interests, the yin and yang of life.

While every court case can be better understood applying the lessons learned from the study of balancing competing interests, rape cases can be jarring evidence of why tipped scales and slipped blindfolds have represented failed justice systems for thousands of years. The balance of power between a victim of a sexual assault and her or his assailant is often greatly weighted in favor of the antagonist. And not only does life on the streets usually favor the assaulter, when the legal system gets involved often such things as the wealth, power and fame of some defendants tilts the scales in their favor vis a vis other defendants. Therefore, not only does Lady Justice sometimes have her scales akilter against the victims of an assault, she also disproportionally imposes more severe sanctions on less well situated criminals, a dual slippage of the blindfold and an unfair tilting of the scales.

If a defendant has means and connections he or she may be able to avoid even being charged or, if charged, may be able to avoid jail or even a conviction by paying money directly to the victim. It is certainly justice to compensate victims but is not justice to buy one’s self out of jail.  Such tilted scales can lead to a cynical belief in society that Lady Justice is no better than some other practitioner of situational ethics. And if society comes to believe that a thumb on the scales is to be expected, the goddesses will lose their symbolic moral authority and the justice system will be seen as just a system.

Yuletide

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Yuletide is the Germanic term for the season that begins with the Winter Solstice, usually about December 21 or 22. For 2019 the fleeting moment when Earth’s true North Pole was at its maximum tilt away from the sun occurred on Saturday, December 21 at 10:19 p.m. Central Standard Time. The winter or hibernal solstice marked the twenty-four hour period of the calendar year with the least sunlight and the beginning of longer daylight days. Humans probably have always celebrated this event. It is the true “new” year.

For many people the end of the year’s gradually darkening after the Summer Solstice, about June 20 or 21 each year, is a time to reflect on the past and hope for the future. One need not be superstitious to experience a period of introspection when darkness turns to light. Nature provides the perfect metaphor.

For Peg and me as leftovers from the turbulence of the 1960’s retrospection often includes the days of Jim Crow and America’s legal system. These painful recollections were once again seared into our psyches when we happened to come upon the 2018 movie Green Book while surfing television shows for something of value, that is, something other than the cacophony of vile opinions claiming to be news.

Green Book is based on events from 1962. Dr. Don Shirley (1927-2013) was an African-American pianist who decided to engage in his own sociological experiment concerning racism in America. Instead of designing a laboratory environment where rats are manipulated and observed followed by conjectural opinions, Shirley literally put some real skin in the game, his. He hired a white Italian-American from New York City to be his driver and event manager then, with a white cellist and white bass player, the four of them dove into America before the Civil Rights Act of 1964. It was not pretty. Believe me, I remember.

I was born in 1943 in the legally segregated state of Oklahoma. I lived the good life of a middle-class white kid and young man with hardly a thought about why everyone I went to school or ate out with looked like me. If I ever had a passing observation of this phenomenon until after Brown vs. The Topeka Board of Education in 1954 I do not recall it.

Then in 1957 Oklahoma used “all deliberate speed” to comply with the United States Supreme Court’s decree that its previous decree that Separate but Equal was no longer constitutional. Turns out the Judicial Branch is no more virtuous than the other two. Not surprised? Me neither.

Anyway, the public schools of Oklahoma initiated their version of integration and the “colored” kids from Booker T. Washington School across Bird Creek from the rest of us came to school with the rest of us. Of course, public transportation, restaurants, restrooms and water fountains remained pristinely white until after the Civil Rights Act of 1964. Jim Crow still reigned.

Green Book transported Peg and me back to those not so thrilling days of yesteryear. Don Shirley was kept back by the dominant white culture to those dark days symbolized by the Winter Solstice. Perhaps whoever erected the Stonehenge paean to the coming light had their own demons to quell. My guess is there is in human nature a certain element of dark mentality that is constant and that each generation must re-learn and deal with that fact.

Of course, for one to recognize the darkness in our souls we must have the ability to appreciate the possibilities of the coming light. When the light finally expels the dark, if it ever does, we will be able to dispel the competition between good and evil by not just hiding from the long night but reveling in the light.

Happy New Year!

Justice In A Box

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What happened to Christmas? Only one month ago there were carols, candles, colored lights, presents and happy people. Then came January and cold, grey gloomy weather with glum people wondering where the sun went.

On the other hand, if you are in need of more self-flagellation you could be where American Paul Whelan is, a courtroom in the glummest of all places, Russia in January. You talk about grey. Being in Moscow and Volgograd, Russia in the winter of 2003 was like living inside a wet, icy-cold burlap bag for Peg and me. And as our son, Jim, says, “You can always pick out the American tourists from the Russian natives, the Americans are the only ones smiling”.

Of course, as in all of life there are a few positives of the Russian winter. Russian’s three greatest military generals are January, February and March. Just ask Napoleon and Hitler. And when the National Judicial College sent me to Russia in 2003 to teach Russian judges about jury trials Peg and I spent four days in Volgograd (the old Stalingrad) where a million and a half Russian soldiers and half a million German soldiers slaughtered one another in six months. It is analogous to America multiplying our Civil War by three and cramming it into half of 1863. No wonder so many Russians are not smiling.

Another reason not to smile is the Russian legal system, especially what they call jury trials. That is why the NJC sent me there. In January 2003 Russia had once again, as part of the country’s long history of their fits and starts “right to trial by jury”, reinstituted some jury trials for some alleged crimes. The NJC tasked me to teach Russian judges from all over Russia how America tries jury cases. I do not know what I was able to impart to the Russian judges, but Peg and I sure learned a lot. Mainly we learned that by a mere accident of birth we received one of life’s greatest gifts, American citizenship.

These recollections were brought back to me when I saw a photograph in the Palm Beach Sun Sentinel newspaper of Paul Whelan in a cage in a Russian courtroom. Hang on. I know it’s Florida, but as you can readily see I am not just lounging on the beach. I am working; at least I am writing this column.

Anyway, back to the matter at hand. I have no idea if the former U.S. Marine Paul Whelan is a spy as charged by Russia. He says he is not, what a surprise. However, he received a Bad Conduct Discharge from the Marines for theft and he has citizenship in four countries, United States, Ireland, Canada and Great Britain. That sounds suspicious but may just mean he likes Anglo Saxons. That alone might make him a suspect in Russia, a country that used to be the heart of the old Soviet Union with its conglomeration of fifteen countries and seventy-seven languages, none of which had an Anglo, Saxon or Celtic base.

What the photographs show is Whelan in a cage, in a courtroom, trying to communicate through a translator with his attorney and through the bars and in front of everyone. When the Russian judges asked me to critique a jury trial of a man charged with murdering two people, I had difficulty being diplomatic. With the judge and jury in place and the Russian prosecutor wearing a blue military type uniform seated between the mothers of the two murder victims right in front of the jury, the courtroom doors burst open and this is what Peg and I and the judge and jury saw: four guards armed with AK 47 rifles escorting the handcuffed defendant into court and locking him into a cage.

 Well, Gentle Reader, you see the problem.