Investigative journalism that uncovers and publicizes official corruption has an American tradition going back to John Peter Zenger who was born in Germany in 1697 and died in New York in 1746. Zenger was a printer who wrote exposé articles about our English cousins’ ham-fisted governance of New York, especially by the Royal Governor William Cosby. Cosby took umbrage at these early efforts to inform Americans about government malfeasance. Cosby had Zenger charged with libel but in 1735 a jury refused to convict Zenger because the jury determined that what Zenger wrote about Cosby was the truth. What Zenger printed about Cosby related directly and only to Cosby’s actions as governor. Cosby’s personal life was not in issue. Such subjects as the state of his laundry or personal habits were not material to Cosby’s official actions. There was no “need to know” any salacious scatology.
The First Amendment is our best protection from bad government but it should not be cited in support of mere muckraking. Gossip is fun, if it is about others, but it is not germane to curing our body politic of corruption or bad decisions. And a bipartisan cooperation on matters of national importance would be most welcome. We have certainly been blessed many times before with such attitudes. For example, Republican President William Howard Taft appointed Republican Henry L. Stimson (1867-1950) as Secretary of war (now Secretary of Defense) in 1911-1913. Then later two Democratic presidents, Franklin D. Roosevelt and Harry Truman, appointed Stimson for the same position (1940-1945). Stimson had the experience and knowledge America needed. His political party affiliation was irrelevant to understanding and meeting the threats to our country from Japan and Germany.
But even though Stimson was not naïve about foreign designs on American assets he famously eschewed delving into personal matters. Stimson’s most famous quote relates to secret Japanese dispatches. Stimson explained trust cannot be established by distrust. He succinctly posited: “Gentlemen do not read one another’s mail.”
As story after story and book after book come out about Joe Biden and Kamala Harris and Donald Trump and Mike Pence the muckraking inundates the investigative journalism. We do need to know our politicians’ philosophies, positions and past performances. But such information is sometimes obfuscated by “revelations” about their personal lives and peccadilloes.
COVID-19 has killed about 200,000 Americans since it took our first citizen in early February 2020. It has cost us millions of jobs and thousands of businesses. Before we finally defeat it, and we will, ’Ole 19 will have cost us many trillions of dollars of our personal and public treasure. It is difficult to contemplate there may be anything worthwhile to be gleaned from this world-wide pandemic. However, we humans are a resilient species. We have learned better hygiene from past plagues (Typhoid Mary?), better agriculture from past famines (the Dust Bowl?), and better technology from past wars (too numerous to name). With the corona virus we are rapidly developing better, cheaper and more ecumenical delivery systems of social services, including legal services, in response to social distancing.
As Jeff Bezos rides Amazon into the financial stratosphere we now can get groceries and education without leaving our homes by simply using our thumbs and televisions. While we complain about the pervasiveness of the outside world into our lives we can now consult with our medical providers at lower cost and with greater convenience. We can even have our “day in court” and never go to court. And the courts we no longer have to go to may have changed their attitudes more in this year of 2020 than they changed in the transition from ecclesiastical models to secular ones over the last few hundred years, or, at least, since I began practicing law in 1970 and judging in 1981.
Just as Walmart encouraged southern ladies to eschew high heels when shopping and Rural King and Atwoods relaxed the clothing bar even further for men than their wives thought possible, socially distanced court proceedings have proved that justice need not be pretentious to be administered fairly. A live-streamed video decision that grants a divorce or closes an estate is just as valid and just as readily accepted as a stuffy proceeding presided over by some self-important potentate in the presence of three-piece suits and tasseled loafers.
“Zoom”ed legal proceedings are quickly proving what some in the judiciary have been asserting for years, it is the facts and the law of a case, not the “majesty of the law”, that are the essence of justice. We judges are discovering thanks to COVID-19 what the Wizard of Oz was so rudely apprised: litigants do not need to tug on their forelocks and beseech their “betters” for justice. In an American courtroom even if that courtroom is one’s living room, “Justice is to be administered freely and without purchase, speedily and without delay”.
What we are discovering is that American citizens can save time, money and inconvenience by attending court electronically while sipping coffee and wearing casual clothing and still accept judicial decisions as just. It is the fairness of a judge’s ruling, not the judge’s robe or periwig, that is the woof and weave of our judicial system. If we judges concentrate on the evidence and properly apply the law, we need not waste time and resources enforcing arcane rules designed to stroke our egos. Legal proceedings do need proper structure but two of our most honored judicial precepts should always be followed by judges: (1) De minimis non curat lex (don’t sweat the small stuff), and (2) When the reasons for a rule no longer apply, do not apply the rule. A casual but mutually respectful atmosphere and the ability to ignore behaviors that do not impact a just outcome in court proceedings may be an unanticipated “symptom” of ’Ole 19 and electronic court.
With electronic court the days of waiting for years to get into a court should be over. Every judge, lawyer and litigant has instant access to a court; there is one in his or her hand, home or chamber. And since 95% of all cases are eventually settled without trial why delay justice due to everyone having to use the same brick and mortar building? Socially distanced justice has been forced upon us. Of course we must address the health issues but we need never go back to the Wizard of Oz days. The curtain has been raised and up it should stay.
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.
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.
“The crisp autumn air. The dry brown grass. Sweaty pads and the exhilaration of combat without weapons. The kind of battle where one can experience the thrill of having been shot at and missed without even being shot at. Football. Ersatz war. Clashes of pride, power and cunning.”
Echoes Of Our Ancestors: The Secret Game, p. vii
James M. Redwine
Baseball may be America’s Pastime but football is America’s Passion. The only thing more endemic to the American psyche than football is politics and I am sick of politics. If, “politics ain’t bean bag”, it ought to be. Any sporting event from ballet to boxing is healthier for our country than political conventions and cable news. Heck, even a good old-fashioned fist fight often results in life-long friendship versus contemporary political campaigns in which social media is used much as small pox was allegedly used against Native Americans by the British colonial soldiers in 1763.
The difference between sporting contests of all types and modern national politics is glaring. When I think back to those times my erstwhile adversaries became my current friends via a skirmish over some forgotten controversy, I long for those days. My friends and I spent no time accusing one another of being a liar or a murderer or even a traitor to our country. We would just drop our baseball gloves or kick our opponent’s marbles out of the way and start the shoving process. Every now and then we would even throw a punch. I will not name those who bloodied my nose or tore off my T shirts but we buried our hypothetical hatchets immediately after each fray. Our politicians and news anchors could learn something.
Another thing we learn from sports versus politics is that the pain of physical injuries almost always goes away whereas the sickness of false comments can grow fatal to our body politic. There is something liberating from a sweaty fight or a sweaty game. But often permanent harm results from accusations of venality and planted stories of misdeeds.
Anyway, I am glad football and other games are coming back and I hope we will soon be able to engage in them and/or enjoy watching them in good health. I leave it up to each community and every individual to decide whether they feel comfortable participating in or watching in person any sporting event. Peg and I certainly want the right and ability to decide such highly personal matters for ourselves and we will afford the same right to others. However, the lessons from sports are easily learned and, unlike high school Algebra, one will always remember them. In fact, as I think of the fist fights and sporting contests I engaged in it now seems to me I never lost and I have gotten a lot faster, stronger and more talented as the years have transpired.
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.
Last week’s column was fueled by my current fear that the upcoming football season will not come up and my fond memories of football seasons past that did. It is not just football but all team sports and communal activities such as church and school choirs that each of us is anxious about and yearning for. And that yearning is truly about personal relationships, not the games we played and the songs we sang. The symptoms of ’Ole 19 include social distancing from friends and family but, ironically, our current isolation evokes poignant memories of times we did get to share with people who once filled our lives and now do not.
Should you have read last week’s Gavel Gamut you probably saw the photograph of my high school football team. It was my wife Peg, you know, the one who actually does the work on Gavel Gamut (and most everything else at JPeg Osage Ranch), who suggested using the team photo that appears in my 1961 high school annual. I am glad she did as it was a virtual reunion for me and, I hope, for others such as Ron Reed who is the brother of my friend and teammate Jim Reed who appears next to me in the picture. Ron contacted me after last week’s article appeared. Gentle Reader, you may hear more from Ron in some future column. Anyway, there are several of my friends in the team photo who look young, strong and positive who went on to greater accomplishments such as Jim’s service in the Viet Nam War.
Another of our teammates was Bud Malone who, along with his twin brothers, Jerry and Gary, also saw combat in Viet Nam where Gary gave his life for his country on July 28, 1966. The team photograph caused me to concentrate on several other of our teammates who no longer can bring laughter and high jinks to my life and it evoked thoughts of two of my favorite songs from one of my favorite musicals.
In Les Misérables young revolutionaries are filled with idealism and bravery in their quest for social justice, kind of the elàn our football team had hoping for a championship season. Our team did achieve such success but some of the young revolutionaries in Le Miz paid with their lives in their losing cause.
In the song “Empty Chairs At Empty Tables” one of the young survivors, Marius, sings to his fallen comrades:
♬ ”Empty chairs at empty tables
Now my friends are dead and gone.
From the table in the corner
They could see a world reborn.
Oh, my friends, my friends, don’t ask me
What your sacrifice was for.
Empty chairs at empty tables
Where my friends will sing no more.” ♬
However, in the song “Drink With Me” the young friends sound to me just the way I remember those footballers from 1960-61:
♬ “Drink with me to days gone by
Drink with me to the life that used to be
At the shrine of friendship never say die
Let the wine of friendship never run dry.
Here’s to you and here’s to me.” ♬
Well, here’s a thank you for those times we have played and sung in the past and to the fervent hope the next opponent to fall will soon be ’Ole 19.