James M. Redwine

COVID-19

It’s An Ill Wind …

by Leave a Comment

Original Artwork Used by Permission of Artist & Attorney Cedric Hustace

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.

The Good Guys

by Leave a Comment

Cowgirl Sister Shirley’s Covid-19 Mask

On Saturday mornings at the State Movie Theater in Pawhuska, Oklahoma in the 1950’s you could see a black and white double feature western where the good guys wore white hats and the bad guys wore black masks. The lines were not blurred. Cowboys, good; rustlers, bad. Lawmen, good; bandana wearing holdup men, bad. No mask, good; mask, bad.

Today society has divided into two warring factions that are as defined as those satisfying old movie plots but which are themselves not very satisfying. One group champions masks as proof of one’s concern for others and the other group eschews masks as unnecessary and an infringement on individual liberty. However, most of the members of both groups still view cowboys as the good guys.

In my family we had my mother’s youngest brother, Uncle Bud, a rodeo cowboy who roped calves and steers. He was one of my heroes even though the mean billy goat he used to practice his roping often butted me across the roping arena.

Another of our family’s cowgirl heroines was and is my oldest brother’s wife, Shirley Smith Redwine. Sister Shirley competed in barrel racing, pole bending and flag racing for several years at the International Roundup Cavalcade in Osage County, Oklahoma. Shirley was a member of both the Turley, Oklahoma and Sand Springs, Oklahoma round up clubs and she competed as a queen candidate several times. Shirley’s mother, Esther, designed and sewed Shirley’s fancy outfits and Shirley’s father, Hollis, trained her horses. She competed from age twelve until her freshman year at Oklahoma State University where she met my brother, C.E. Redwine, who managed to win Shirley’s heart with his saxophone and ended her rodeo career.

But Shirley has always remained a cowgirl at heart. She knows right from wrong and has always fearlessly championed the right. Cowboys are supposed to stand up and be counted. Shirley did just that when Covid-19 struck our world. She put her sewing skills to work and made masks for our whole family. Now I do not know how many other cowboys and cowgirls have mounted up to confront ’Ole 19, but I believe true cowboys and cowgirls are not afraid to stand up against any evil. So, cowgirl Shirley, thanks for the masks. Peg and I follow your lead and wear them whenever we go out and about. We do notice there are some folks who do not wear masks. Maybe the rest of the good guys can help get the message out until ’Ole 19 goes the way of the Saturday morning horse operas.

 

Our Two Great Tasks

by Leave a Comment

No Blindfold Lady Justice Virginia City, Nev.

Peg claims I can only concentrate on one thing at a time, and usually it is a televised sporting event. My response is, as a wife and mother she has a biased perspective. Many women appear to easily balance a career, housework, child care and husband care or, at least, that part of husband care that involves spotting innumerable tasks that must be done right now. And COVID-19 has not assuaged the situation. In fact, social isolation has converted our intermittent contact with its mutually welcomed respites into an opportunity for constant oversight and conflict.

At the National Memorial for Peace & Justice

And while the roots of our Original Sin may go back to 1619, its most recent manifestation, the tragic death of George Floyd while in police custody, occurred during the throes of the pandemic. This has forced us to face two volatile and virulent national crises at the same time. Something we are not well equipped to do.

As with most problems we can seek guidance from the wisdom of those upon whose shoulders we stand. When many Americans were totally disheartened by the Great Depression President Franklin Roosevelt told us on March 04, 1933: “Our greatest task is to put people to work … and accomplish greatly needed projects.”

State of Oklahoma Seal

The State of Oklahoma enshrined the state seal with the motto: Labor omnia vincit (work conquers all). When confusion and despair threaten us, our collective wisdom directs us to roll up our sleeves and get to work.

I would like to point out to Peg that I see two major tasks to be done: (1) recover economically from COVID-19; and (2) use the protest demonstrations to positive good. My suggested answer to both is to co-opt FDR’s approach and meld it with the trillions of dollars and work hours our governments at all levels are making available to individuals and businesses.

Every locality has needs that are best identified by the people who actually live in each area. Individuals and families need jobs, businesses need workers and the public needs projects completed, such as educating and training children and adults and construction of public assets: dams; roads; medical facilities; and utilities, etc.. People who have lost their jobs need to be re-trained as welders, nurses, farm hands and technicians.

Instead of providing short-term financial help we can set up mobile employment offices where civil rights demonstrations are already taking place and offer job skills training and immediate employment. It is better to teach fishing than dole out a few fish for a few months. We can invest in ourselves as Wall Street does, for the long haul. Capitalism is a system that works. We can use it to address our economic problem and by creating hope and incentive we can get those who have been left behind on the road to social justice.

So there, Peg. Now leave me alone and let me watch a replay of the Tiger Woods/Payton Manning golf match against Phil Michelson and Tom Brady.

Transition Not Decline

by Leave a Comment

Our governmental systems, federal and each state, are designed to avoid rash decisions. We use systems that divide power into three generally equal branches that check one another’s powers and demand debate of important issues. Our fettered freedom created and maintains history’s most propitious culture. It is good to be an American. Of course, our system’s Holy Grail of restraining abuses of power results in diffused responses and partisan debates. That is also good as it helps prevent imprudent, irreversible actions. A concomitant element of our democratic system is that when faced with emergencies we often approach problems as a free people that the theoretical benevolent dictator might resolve quicker and better. COVID-19 comes to mind.

With this unprovoked surprise attack in January 2020 Americans responded as our system of government required. And as human beings one of our first reactions was to seek someone to blame. In a country designed to be a caldron of debate, assessing blame is a perpetual condition. We can call for charity for all but the better angels of our nature often seek partisan cover.

However, we have now had five months to accumulate evidence and analyze the problem. Maybe in hindsight some of our decisions could have been better but hindsight is only worthwhile if it is used to make better decisions now. Another, more cynical way to state this is: Never let a “good” crises go to waste.

I am reminded of what Jack Welch, the head of General Electric Company when it truly brought good things to life, said when one of his employees made a million dollar mistake. When Welch was asked if he intended to fire the employee Welch replied, “Of course not, I just paid a million dollars for his education.”

We have already lost about 100,000 people and are spending trillions of our treasure trying to help families and businesses. Most economic experts agree such an approach is necessary but almost all of them are chagrinned it is. In like manner, most medical experts side with the decisions to require social isolation to avoid spreading the virus, especially in certain at risk populations. But most scientists realize such preventative measures are themselves quite harmful.

Examples of military, economic and social disasters that have been used as opportunities for long-term good are legion. Gentle Reader, you will immediately think of many but I would like to cite just a couple.

President Abraham Lincoln abhorred slavery but was trapped in that most typical political snare, the realization that the ideal of equality was hostage to reality. Therefore, until he could issue the Emancipation Proclamation in January, 1863 under the guise of freeing slaves in the “belligerent states” as a military strategy, Lincoln had to publicly assert what the public would support. As Lincoln had said in a letter to newspaper magnate Horace Greeley only six months earlier:

“If I could save the Union without freeing any slave, I would do it,
and If I could save it by freeing all the slaves I would do it;
and if I could save it by freeing some and leaving others alone I would also do that.”
[August, 1862]

After years of arguing against slavery Lincoln saw the “War Between the States” and the military advantage of freeing only those slaves in states at war with the Union as an opportunity.

Similarly, during the Great Depression, President Franklin Roosevelt and Congress devised the Civilian Conservation Corps that used public funds to employ and train out-of-work young people to create and build public works. The CCC supported families, cared for natural resources and built marvelous public works such as Osage Hills State Park in Oklahoma. Another of the marvelous public works products was Hoover Dam built between 1931-1935. Roosevelt and Congress took a crisis and used it to develop millions of acres for agricultural and recreational purposes.

The reality is America did not avoid COVID-19. If there is anyone to blame, what good does it do to waste our energies and resources pointing our fingers and wringing our hands? Many people are already sacrificing, working, researching and striving to help themselves and others survive. As Patrick Henry exhorted his Colonial colleagues when the British were coming:

“Our brethren are already in the field.
Why stand we here idle?”

Or as that great public works president Theodore Roosevelt said:

“It is not the critic who counts …
The credit belongs to the [one] who is actually in the arena.”

In other words, let us recognize COVID-19 not only as the terror it is but also as an opportunity forced upon us. If we must spend trillions of dollars of our treasure helping our 35 million who are unemployed through no fault of their own maybe we can invest in new Hoover Dams while educating and re-training the unemployed for our new society. For many economists predict at least a third of that 35 million will not be able to return to their old jobs or businesses. Yes, we should help one another but most people prefer an opportunity to a dole. Our world is not going to return to 2019. Perhaps we can prepare for the “Brave New World” fate is casting upon us. America need not become the Rome described by Edward Gibbons in his classic Decline and Fall of the Roman Empire. With the proper and imaginative application of our resources perhaps we can transform, not decline.

Battle Fatigue

by Leave a Comment

We are at war. The actual combat began in January 2020. A declaration of war was not made by Congress as required by the United States Constitution. But virtually every member of the House of Representatives and the Senate, along with the President, has publicly asserted America is at war with COVID-19. Almost 90,000 of us have paid the ultimate price and almost 1.5 million are causalities. Many more losses are predicted.

While wars of any description are great stressors on people, our enemy in this war is truly virulent. If we were fighting another country we would know where to direct our fear and fire. With the Coronavirus we cannot even identify our enemy without a microscope and it is not wearing a uniform. Further, it often attacks us by attaching itself to casual social contacts, businesses, friends and even our loved ones. COVID-19 is a Mata Hari’s dream. Few are immune from its invidious, silent, unseen and sometimes deadly infection and even those who suffer no ill effects themselves can operate as Typhoid Marys.

Another major stressor people feel from the virus is the uncertainty we experience from the fear there is no end in sight. Most people can muster enough courage to combat major stressors if it is fairly certain they will end, even if that end is far off. However, with COVID our scientists keep cautioning us that we may never find a vaccine. After all, the first polio outbreak in America was in 1894 and we did not have a reliable vaccine until 1953.

In our war against COVID-19 we have already been in live-fire combat for at least two months. An official United States government report on battle fatigue among American soldiers in World War II declared:

“There is no such thing as getting used to combat.
…
“The general consensus was that a man reached his peak of effectiveness in the
first 90 days of combat [and] that after that his efficiency began to fall off …”
“Psychiatric casualties are as inevitable as gunshot and shrapnel wounds …”
“Most men were ineffective after 180 or even 140 days.”
As cited in John Keegan’s The Face of Battle at p. 335

America’s “Combat Exhaustion” over our war with COVID-19 is manifesting itself throughout the United States. A majority of Americans still fear the virus more than they question our multilayed, hodgepodge governmental response to it, whether federal, state, county or local. However, the stress of only 60 days or so of fighting the virus is already exposing fissures in our good will toward one another. Unless we come up with a successful Manhattan Project type response to the virus fairly soon perhaps we should develop some new strategies.

Eve She Is Not

by Leave a Comment

JPeg Osage Snake

Peg is a born and reared Yankee. What she used to know about such places as Oklahoma came from Gunsmoke and The Lone Ranger. Now she is learning about the Wild West from personal experience. This morning she received an up close lesson in herpetology. Whereas not long ago rattlesnakes and copperheads were only in Peg’s psyche as metaphors, now she understands why westerners check their boots before pulling them on and make sure doorways and windows are carefully sealed. Of course, these precautions also work well with scorpions and centipedes. But Peg’s education about ferocious arachnids and arthropods has been previously addressed in this space. For now our concentration is on snakes.

Peg has always been an avid online shopper and an imaginative and energetic adaptor of household products. This probably stems from her father’s expertise in engineering. Regardless, during our marriage I have often been impressed by Peg’s ability to envision uses for knick-knacks she finds on the internet, most of which originate in China. No, I will not go there.

Anyway, Peg ordered exterior screens for our veranda double doors so that we could benefit from the relentless prairie breezes. The UPS person delivered the box yesterday and we let it season until this morning. Upon opening the box and reading what purported to be instructions, we installed the screens which stretched from the top of the doors to within four inches of the veranda floor. This let in clean, sweet-smelling air but the material could not be stretched to close the four inch gap. While I had reluctantly entered into the installation as ordered by Peg, I did feel duty bound to point out to her that such uninvited houseguests as scorpions, centipedes and snakes might choose to join us, especially after we went to sleep, if we left the doors open and relied upon the screens to exclude them. Need I say, “I told you so!”?

After spending the better part of an otherwise gorgeous day deciphering the Oriental translation and affixing screens to doors, we stepped back so Peg could admire the affect. Then we ate supper while we talked about the inscrutable mysteries of the magnetic closure on the screens. After supper Peg went to the porch to once again check my work on the screens as I prepared to watch the latest misinformation on cable TV. Then I heard Peg scream, “JIM!” I ran for my 20 gauge as I assumed we had been attacked by some inconsiderate violator of COVID-19 ethics.

“Jim, come here now!”

I eschewed my shotgun and rushed to the veranda doorway where Peg was standing on a chair and pointing a finger at the doorsill where a copperhead was offering to engage with her.

After dispatching the serpent I expected to be allowed to relax on the veranda and admire the prairie view. Wrong! I spent the next hour removing the screens and making sure there was no light coming under the doors. On the other hand, I am fairly confident it will be at least another week before Peg enlists me to modify the entrances to our cabin again.