James M. Redwine

Law

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.

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.