James M. Redwine

George Washington

The Cure for Black Robe Fever

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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.

Independence Day

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Lexington Minuteman
Lexington Battle Green, MA

The Fourth of July is called Independence Day with good reason. Our Founders were willing to die for the right to control their own lives. They were not seeking war with the most powerful nation on Earth in 1776. They were not attempting to dictate to King George III how the English should behave. They sought only free will for America to determine its own course. In these troubled times we are now navigating, perhaps a look back to America’s early struggles might be helpful.

We may wish we could ask George Washington or James Madison for advice. But the best we can do is read about past heroes’ courage and sacrifice and try to learn lessons that will help us during our own battles.

For example, one of my heroines is Frances (Mad Fanny) Wright, that fighter for women’s rights, Black rights and freedom from religion who spoke in New Harmony, Indiana on July 04, 1828. Oh, how much we could learn if we could speak with her now. However, we do know she dedicated her life and fortune to eliminating slavery. Had she lived only nine more years she would have experienced the start of the Great Struggle that ended a whole race of Americans’ loss of control over their lives.

Control, isn’t that what matters most to all of us? The visceral need for the freedom to make our own choices is why on that day we now call Patriots Day, April 19, 1775, at Lexington and Concord those suppressed colonists “Fired the shots heard ’round the world”. And in our current political climate when Americans get embroiled in political discussions it sometimes feels as if both sides have muskets at the ready.

When I find myself surrounded by the competing political mini balls, I try to remember this is nothing new. Over the two or three hundred thousand years we Homo sapiens have been around, after air, water, food, shelter and procreation we seem to have two more basic needs: the control of our own lives; and the strong desire to control the thoughts and behavior of others. These two related but directly oppositional impulses apply to groups of people and nations as well. You know, we will each defend to the death the right of our political adversaries to agree with us. But conversations can rapidly turn to confrontation if someone comes down on what we believe is the wrong side of such issues as religion, race, global warming, immigration, war and peace, who should or should not be President of the United States and a thousand other subjects.

The right to control our own lives makes us smile. The desire to control other peoples’ lives can lead to such things as vitriolic statements and sometimes even vicious interchanges in our public and interpersonal interactions. Sometimes today’s discussions about control may center on sexual assault and the “Me Too Movement” or hate crimes and “Black Lives Matter”.

Rape is a terrible crime not because of forced sexual contact, billions of humans have had sexual relations. No, rape is a terrible crime because of the victims’ loss of their right to decide for themselves whether and with whom to have sex. The fear, terror, anger and humiliation caused by losing total control of one’s body is incalculable. It is in itself a life sentence that can lead to permanent bitterness toward and distrust of our legal system much as lynchings can result in an entire race of people living with constant concern about their freedom.

Lynchings, such as those that were committed on the Posey County, Indiana courthouse lawn on October 12, 1878, are a collective denial of another’s right to control their own destiny. And it is not just the victims who lose, but even those who deny justice to others may reap the whirlwinds of retaliation and political correctness.

Wars of aggression, not constitutionally authorized wars for national defense, are our country’s intentional denial of another country’s or people’s right to independently determine their own destiny. One of the main causes of our country’s post-WWII denials of the right of other countries to control their own lives are wars instigated by independent executive action without congressional authorization.

We can each quickly cite evidence of such wars based on false premises and rash executive action. President Lyndon Johnson used the shaky premise of the Tonkin Gulf Resolution to get us hopelessly embroiled in Vietnam. President George W. Bush relied on false intelligence reports that Iraq had weapons of mass destruction and was involved in 9/11. President Bush then precipitously led us into what appears to be an endless and pointless war in the Middle East.  As Pete Seeger’s song “Where Have All The Flowers Gone?” asks us, “When will we ever learn?, when will we ever learn?”

Our Founders’ wisdom of placing the authority to wage war in congress is that such a procedure keeps all of our citizens more closely involved in these grave decisions. And, it requires much more careful deliberation when congress is involved. Also, when we eliminated the military draft, we turned from a citizen minute man type military to a professional and less ecumenical type force. To make the tragic choice to go to war all Americans should feel the direct cost. It is too easy to hire others to impose our will on the powerless. With a professional standing military our armed forces never stand down. And the temptation for any of our presidents to play with these awesome powers as if they were toy soldiers is too intoxicating for most to resist. Of course, the draft is one of the ultimate impositions of loss of control. Our country should only use it when our national survival is truly at issue. And then it should include all able-bodied adult citizens. Not everyone needs to serve on the front lines but everyone can serve somehow.

One of the good things we received from one of our British cousins were John Locke’s Enlightenment philosophies as highlighted by the doctrine of separation of governmental powers. Our independence as a nation has survived great trauma due in large part to our three separate and equal political powers: Executive; Legislative; and, Judicial. We forget this at our peril. Control of our lives is an inherent need for individuals and nations and, if lost, can lead to long-term bad effects for both the invaders and the invaded. Freedom of choice is essential to our personal and national well-being. Our Founders enshrined that opportunity for us in our Constitution and that is what we celebrate on Independence Day as we struggle to afford that right to all of our citizens.

 

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.

High Crimes And Misdemeanors

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Old Cadet Chapel, West Point

If you visit our country’s most hallowed military institution at West Point you will find America’s most infamous traitor, Benedict Arnold, is as reviled today as he was in 1780. Arnold had been one of General George Washington’s closest colleagues and was in command of Fort West Point when he plotted with British Major John André to surrender West Point to the British.

André was caught and hanged but Arnold escaped to England where he joined the British Army as a general and then engaged in battles against America. Such treachery is not easily forgiven. When you enter the venerable old Cadet Chapel at West Point you will find there is no mention of Arnold; his name has been removed from where others are displayed with honor.

Interior of Old Cadel Chapel

If even now America has not forgotten what treason truly is you can imagine how the Framers of our Constitution felt when they wrote our Constitution only seven years after Arnold’s betrayal. When Article II, section 4 of the Constitution was drafted treason was the first reason given for impeachment:

“The President, Vice-President, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery or other high crimes and misdemeanors.”

Article I, section 5 gives the House of Representatives the sole power of impeachment and Article I, section 3, subsection 6 gives the Senate the power to try the charge of impeachment with a conviction, and subsequent removal from office, requiring a two-thirds vote.

We have had forty-five Presidents of which three have been impeached: Andrew Johnson (1865-1869); Richard Nixon (1969-1974); William Clinton (1993-2001); and now perhaps, Donald Trump (2017-?). Andrew Johnson and William Clinton were not convicted. Richard Nixon resigned. And Donald Trump’s situation is yet to be determined.

I do not know the significance of why America went from George Washington (1789-1797) to 1973 with only one presidential impeachment then has had two, and perhaps three, since then. My speculation is the bar for impeachment has been lowered from the behavior of a Benedict Arnold to a standard based on personality. Have we transitioned from treason to Tricky Dicky, Slick Willy, and, perhaps, Dodgy Donnie? If so, the cautionary statements of then Representative Gerald Ford and the Founding Father and main architect of the Constitution James Madison may be worth considering. “An impeachable offense is whatever a majority of the Members of the House of Representatives says it is” (Ford); and we should be aware “Maladministration” [or its kin] is, “so vague a term [as] will be equivalent to a tenure during pleasure of the Senate.” (Madison).

A short-hand interpretation of these admonitions is that America should not allow itself to become a nation based on the fluctuating opinions of those in Congress but only upon a system of law as sought by those who crafted our Constitution.

 

Two Auspicious Days

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The seven day period beginning April 08 and ending April 15 has two important days, one joyous and one sad. April 08 is Peg’s birthday. Please wish her happiness and strength as she deals with having me home a lot more now. As to the other significant anniversary, Abraham Lincoln died on April 15, 1865. As if paying our taxes on April 15 was not already sad enough.

Of course, there is a certain historic connection between federal income taxes and President Lincoln. He helped institute the first federal income tax to pay for the Civil War, which was fought to preserve the Union. However, after the Civil War ended the income tax was also ended until 1916 when it was made permanent by the 16th Amendment to the Constitution.

Kentucky, Indiana and Illinois claim Lincoln for our own but hardly anyone lays claim to the income tax. As Peg and I will wait until 11:59 p.m. on April 15 to pay ours we assume we will have a lot of fellow travelers. It is widely accepted that the major need for America to impose taxes on itself is to pay for wars or the preparation for potential wars. Oh, we expend a lot for various other things too such as salaries and expense accounts for Congress people, Executive Branch workers and judges, health care and the clean up after celebrations such as inaugurations and ticker-tape parades to honor sports teams. I am assured by those involved in these endeavors our hard earned money is well spent.

If you are like me you put Presidents George Washington and Abraham Lincoln in a separate rarified class from other presidents. And while George Washington never visited Posey County, Indiana as did Abraham Lincoln (thanks to my friend and historian Jerry King for this information), I note Washington managed to birth our nation without a federal income tax. Anyway, I forgive Lincoln since he took the time to dedicate a bridge in Savah, Posey County, Indiana in 1844 when he was campaigning for Henry Clay (1777-1852); Clay lost. Maybe those early Hoosiers suspected Abraham Lincoln might someday start an income tax.

Well, income taxes and the Civil War aside, Abraham Lincoln still has much to teach us about humility, compromise, mercy, justice and just plain decency. And as for Peg’s birthday, I am going to celebrate it by thanking you Gentle Readers who have been kind enough to commiserate with her as she has often served as a foil in these articles over the many years!

The Constitutional Convention and Cable News

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The Constitutional Convention was held in Philadelphia in 1787. The delegates kept the proceedings secret to avoid, “licentious publications of their proceedings.” James Madison, the Father of the Constitution, stated that no Constitution would have ever been adopted if the debates had been public. Remarkably, for four months the secrecy was maintained.

Can you imagine the motives CNN, FOX and MSNBC would have projected upon George Washington, et. al.? No delegate would have escaped the allegations of lying or even treason to the Revolution.

But inside the Convention the fifty-five delegates, half of whom were lawyers, debated the most volatile issues of the day. Slavery, whether we would have one-man-one-vote or an electoral college, large states versus small states, foreign attachments, the establishment of courts, provision for national defense and many others. How did they do it?

Of course, I do not know. However, I am pretty sure no one was called a liar for stating his views and no one was ascribed venal motives. Most likely George Washington as the presiding officer of the Convention made sure each delegate had an opportunity to present his views and everyone else had an opportunity to respond.

Maybe it is because I am a judge and once practiced law but it seems likely to me the Constitutional Convention proceeded much as a court case. First an issue would be brought up, States’ Rights for example, then each delegate who wished to would state his position. Then, after extensive but civilized debate a vote would be taken.

This time honored approach to resolving controversies has served the legal system and America well for over two hundred years. First define the issues for resolution, a criminal trial for example, then allow each side to fully present their views without threats or name-calling.

I humbly suggest this same respectful approach will work in every conversation from government to individuals. Shouting down or using force to prevent those one disagrees with from speaking will not result in the kind of result we achieved in 1787.

As I was writing this column I received an email and an attachment from my friend Jerry Wade of New Harmony, Indiana who used to live in New York City and who still subscribes to the New York Times.

Jerry must have been really bored recently because he has obviously been following my column about our country’s increasingly uncivil discourse. Jerry sent me an article by Bret Stephens that appeared as an opinion editorial in The Times. It contained an excellent analysis of the current climate surrounding “Freedom of Speech”, a.k.a., “If you don’t agree with me, you must be crazy!”

I will share a small portion of Stephens’ article with you.

“We disagree about racial issues, bathroom policy, health care laws and, of course, the 45th president. We express our disagreements in radio and cable rants in ways that are increasingly virulent; street and campus protests that are increasingly violent; and personal conversations that are increasingly embittering.”

Stephens does suggest a solution:

“… [T]o disagree well you must first understand well. You have to read deeply, listen carefully, watch closely. You need to grant your adversary moral respect; give him the intellectual benefit of doubt; have sympathy for his motives and participate empathically with his line of reasoning. And you need to allow for the possibility that you might yet be persuaded of what he has to say.”

In other words, to have productive intellectual discourse we have to first concentrate on being civil.