People may come in various varieties but I suggest there are only two types: (1) those who think up projects; and, (2) those who have to do the work. In marriages the lines are clear. Someone cooks the meals; someone helps eat the meals. Someone dirties the clothes; someone washes the clothes. Someone decides flower or shrubs or vegetables must be planted and someone digs the holes. We could go on but I am confident you agree with my general concept.
I am aware there are those readers who would get deeper into the weeds of this ancient dynamic. For example, I can hear Peg offering the following division of labors: someone cleans the house while someone watches football or someone goes fishing while someone deals with AT&T, Amazon, the bank, the various levels of government from the local precinct to the president, and responds to requests from kids and grandkids. My position has always been I am simply staying out of her way. But starting next week we are going to find out if my theory is reality or merely bug dust. Peg goes for hip replacement Tuesday. There may not be enough time for me to learn how to be a wife.
It is not as if we haven’t known this time was coming. About every week since April Peg has served up cautionary instructions with our morning coffee. The days normally begin with this dreaded announcement, “Jim, we need to talk”. Each such session includes some lesson akin to grade school. “Now you know we need groceries; here’s how I order them online and how I pick them up. The sweeper is in the living room closet; you have to plug it in. When the sink is too full to hold any more dirty dishes you must rinse them and put them in the dishwasher [Tell me again why we must wash the dishes before we wash them]. Let me show you which button to push to start the dishwasher. Of course, you need to use dishwasher soap and it is under the kitchen sink. When the dishwasher stops you need to make sure the dryer has dried the dishes then put them away. Now let’s move to the laundry. I have written out the procedure to load, wash and dry. All you need to do is put the clean sheets on the bed and fold everything from socks to shorts; remember, use thirds and don’t just stuff everything in a drawer. That’s enough for this week. After all, I’ve got to get this week’s Gavel Gamut typed, sent in to the papers, put it on your website and post it on Facebook and Twitter.”
Well, Gentle Reader, I suggest next week will begin my rowing across the River Styx to Hades where the dog Cerberus guards Hell and according to Dante’s Inferno the sign on the gate says “Abandon all hope, ye who enter herein.” Maybe I’ll see you on the other side after Peg recovers. Wish her to get well soon, I know I certainly do.
President Lincoln reportedly used to occasionally sit on the back steps of the White House and talk to old friends who might just drop by. President Truman used to play poker at his Key West, Florida White House with ordinary folks. President Jackson invited the hoi polloi to his inauguration and they came and trashed the White House. There was a time America’s leaders thought of Americans as equals, or at least not as persona non grata. Now there are fences and armed guards at the White House and the only time a president makes personal contact with Americans is to have a photo op. Democracy is now pretty much non-democratic.
Our politicians often ascribe the responsibility for this metamorphosis to need for security, that is, fear of contact with us. I suggest it has more to do with their desire to just pick up their tax payor funded paychecks while being left alone. Kind of like getting COVID-19 checks not to work. Anyway, my experience in working for the public has been that it has not been a concern for my security or anyone else’s that has brought about such distance between public servants and the public. But it comes more from a realization that there simply is very little difference between those who control the government and those who are controlled by it, and the controllers are afraid that will be found out. At least that is true with the judicial branch and the legal system. I invite you, Gentle Reader, to return with me to at least one incident from those “thrilling days of yesteryear” to help me illustrate my concerns about the loss of direct connection to our office holders.
When the State of Indiana used justices of the peace to process most minor legal matters such as driving offenses and small civil claims, the “courts” were often held in the homes or store fronts owned by the justices. One would appear before some non-formally trained person who would dispense justice in a relaxed atmosphere and at little cost. Then we “improved” the system by requiring legally educated and licensed judges and publicly financed court facilities. Everything became more complex, costlier and more distant.
In Posey County, Indiana the County Court that replaced the Justice of the Peace system in 1975 was jammed into a portion of the 1927 Memorial Coliseum Building. The original coliseum was built as a community center. It had a swimming pool, a gymnasium, a stage for shows and a pool table. The new County Court, including the judge’s chamber, took up three small rooms next to where the pool table was. And another feature was the closet in the approximately 20-foot by 30-foot courtroom where the Daughters of the American Revolution ladies kept their regalia to be used in their meetings that also were held in the courtroom.
When I was the Chief Deputy Prosecuting Attorney for Posey County, 1976-1978, I tried six-person jury trials in that courtroom. As we had no separate jury room we would try a case then leave the jury in the courtroom alone to deliberate on their verdict. Everyone in the courtroom could reach out and almost touch everyone else. Of course, there was little pretense of confidentiality. I know it sounds bizarre but it worked okay and no one, including the judge and the attorneys, could arrogate themselves into special status. Please let me tell you about one of my favorite cases from that halcyon time.
I was a little younger then and one of the cases I prosecuted involved a misdemeanor charge against a Billy ______ who was about my age. Billy represented himself in the jury trial. After Billy and I traded accusations and insults during final arguments the judge gave the case to the jury then ordered the courtroom cleared except for the jury. Billy and I stepped out to the adjoining room where both a soft-drink machine and the pool table were located.
As we attempted to ignore one another, Billy turned to me and said, “Hey, Jim, do you play pool?” As I grew up in Pawhuska, Oklahoma at a time when the only thing other than the ball field was the pool hall, of course I played pool.
“Yeah, Billy, I play pool and I can beat you at that too. By the way, I thought you did okay in court, but be prepared for the gavel to fall.” I was much more sure of myself then.
“Jim, do you want to put anything on the pool game?”
“No, Billy, that would be illegal; go ahead and break.” I did not mention that a portion of my tuition at Oklahoma State University came from non-legal lucre.
Well, we played as the jury was busy deciding they didn’t care if I thought Billy was a menace to society; they sided with Billy. Since that trial Billy and I have had several contacts of the legal variety and you may note Billy is still playing pool but now my pool table is in my barn.
In my opinion, America could use a reprise of some of that by-gone legal system where the people who are processed and those who do the processing are not separated by layers of convolution. As Eva Peron might say, ♫ I’ll keep my promise, don’t keep your distance.” ♫
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.
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.
“If a woman’s just a woman but a good cigar’s a smoke” (Rudyard Kipling), football’s just a game but baseball’s who we are. Or, as my friend and favorite song writer, Randy Pease, sang about baseball (and life), “Maybe I should quit but that’s a hard thing to admit, God, I love this game.” Randy honed his musical skills when he took a break from his studies at Oklahoma State University where I also found pursuits other than the prescribed curricula. Another Cowboy that Randy occasionally played guitars and sang with in Stillwater, Oklahoma was a songwriter named Garth Brooks who also loved baseball. I wonder if he ever made the big leagues? For as Garth, Randy and the rest of us frustrated would-be major leaguers eventually accept and as the protagonist in Randy’s song knows, “our playing days are numbered and our fastball’s lost some speed” but we aren’t quite ready to “hang up the cleats and mitt.” On the other hand most of us, not Tom Brady of course, have no angst about leaving the sweaty football pads hanging in the dank locker room while we are still a ways from our porch swings.
Baseball is not just America’s Past Time it is America. It is a grimy catcher’s mask and miraculous or stumbling catches in left-center field. It is come from behind in the bottom of the ninth and lessons learned from games that should have been won. It is sweat and spit and grief and grit and all that makes us glad to endure heat and aches. Boys and girls and men and women of all ages can and do play baseball and softball; not so much football once high school fades.
Baseball affords fathers and mothers a parent’s greatest satisfaction, being asked by their adult children for advice. No kid over fourteen seeks football insights from their folks but even aging children who may question a parent’s sanity on matters of politics, music or religion still occasionally rely on mom and dad on how to hit a softball or play old folk’s league shortstop. As a parent slowly rocks and questions decisions she or he once made, when their grown offspring return to ask the best way to use a pinch hitter the cobwebs seem less opaque. On the other hand, no post-teenager cares what a parent thinks about a statue-of-liberty or a flea-flicker trick football play.
So, we can continue to pretend we understand football’s pass defense coverage two and can continue to yearn for our adult children to ask us to explain it and other football errata or we can thank baseball for keeping us in the real game. But I’ll let Randy finish the column because he is a fine writer of both prose and song lyrics:
“Although the song is on the surface about baseball, it’s really about life and how we should love our lives even when it beats the crap out of us nearly every day. In baseball, even the best hitters get on base only three times out of ten. Such is life. It’s full of disappointments and heartbreaks. But there’s always that hope the next at bat you’ll knock the ball out of the park. And baseball is a sign of spring – new grass, new life, renewal, redemption. It represents the hope that comes with a new season. And it poses a tough question: Can I still play or is it time to hang up the cleats and mitt?”
Lyrics to “I Love This Game”
♫ My name is Eddie Roberts, and I’m a starting pitcher
For the Winston-Salem Warthogs in the Carolina League.
I’m thirty-four years old. My playing days are numbered.
I can’t control my curveball, and my fastball’s lost some speed.
I’ve been knockin’ ‘round the minors since I got out of high school,
signed my first pro contract on my seventeenth birthday.
From Burlington to Birmingham to Charlotte I have traveled,
But the White Sox never called, and I stalled in Triple-A.
I love this game. I love this game.
Maybe I should quit, but that’s a hard thing to admit.
God, I love this game.
I won fourteen games one year, led the league in shutouts.
Several of the pro scouts told me I was on my way.
But I hurt my arm in Lynchburg. Doc said it was a pinched nerve.
And I swear that ever since, sir, it’s never been the same.
I love this game, I love this game.
Maybe I should quit, but that’s a hard thing to admit.
God, I love this game
Maybe I should quit. Hang up the cleats and mitt.
God I love this game.
My name is Eddie Roberts, and I’m a starting pitcher
For the Winston-Salem Warthogs in the Carolina League. ♫
© I Love This Game
Randy Pease Decaf Music 1998 (BMI)
The Sixth Amendment to the U.S. Constitution provides:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been Committed ….”
Our Declaration of Independence raised these issues and complained of King George III:
“For depriving us in many cases, of the benefits of trial by Jury; (and) For transporting us beyond Seas to be tried for pretended offenses.”
The Book of Matthew uses the example of separating edible wheat from its husks as an analogy about dividing the good from the bad. In our legal system we almost always assign this task to judges with probably less than 3% of criminal cases being determined by a jury. The recent case involving the death of George Floyd, Jr. and the conviction of Derek Chauvin is one of those extremely rare jury events. However, this is not a column about that media saturated matter that took place in Hennepin County, Minnesota. I do predict that two of the issues raised by Chauvin when he appeals the guilty verdicts will be whether trial judge Peter Cahill should have granted Chauvin’s motions to change the venue of the trial and to sequester the jury. Those specific assigned errors will fall to the Minnesota state appellate judges and maybe work their way over to the federal judiciary before the saga crawls to an unsatisfactory halt. Shakespeare was right about the Law’s Delay. George Floyd, Jr’s. death was May 25, 2020.
What this week’s column is about is the American legal system’s mental gymnastics involving the relative imbalance between trial judges’ assumed ability to be objective versus that of jurors. Perhaps a few specific examples might help define the dichotomy. During my forty years as a trial judge in a small, rural county with only two judges I was faced countless times with having to process cases about which I had personal knowledge. For example, a crime might be reported then the police or sheriff’s department would present me with a sworn affidavit in support of a request to arrest someone and/or to search their home. A great amount of detail about the alleged crime and the suspect would be laid out before me. Then later I would sit as judge on the case.
Another fairly frequent circumstance might be I would know both the named victim and the defendant. I would sit on the case. In fact, I have remained as the deciding judge on countless cases at the request of victims, defendants and their legal representatives because they all wanted the cases resolved without delay and excessive cost and because everyone, including me, assumed I could separate the wheat from the chaff and both follow the law and be fair and objective. If I could do so, so can jurors. Black robes are a symbol not an inoculation against biased decision making. Facts are what matter, not irrelevancies unconnected to the case at hand.
There are cases where judges should not serve and where the pool from which jurors are selected should be changed. But usually judges and other people have the ability to take on the sacred mantle of administering justice whether they wear a black robe or not. Our legal system should afford to the citizenry that pays for it the same respect we assume for judges who are paid by it.
The delay, expense and great inconvenience caused by changes of venue and juror sequestration should be a last resort. This was true when we gained our independence and communication was untimely via printing presses and quill pens. How much rarer should such dire remedies be when finding a venue and jurors who have no knowledge of a case would require a trial beyond Mars?