James M. Redwine

Germany

Mox Nix

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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.

Taking Sides

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There was a time when the largest class of immigrants to the United States came from Great Britain. A large number of those erstwhile Englishmen and their descendants fought two wars with their one-time homeland. In spite of the British going so far as to burn down part of Washington D.C. during one of those wars, we still cleave to Great Britain as our closest ally. Neither we nor the British held grudges.

Then about one hundred years after the War of 1812 against our British cousins we joined with them in WWI against Germany. At the end of WWI, even though there were a great many citizens of the United States who traced their lineage to Germany, we signed on to the mean-spirited Treaty of Versailles in an effort to punish the Germans. Of course, as with many such badly intentioned actions, we also ended up punishing ourselves; WWII resulted. But thanks to such charitable American actions as the Marshall Plan, we made great allies out of modern Germany, Italy and some other WWII adversaries at the end of that conflict.

While Reconstruction and the aftermath of the American Civil War could have been handled much better, it also could have been much worse. Thanks to such attitudes as expressed by President Lincoln and others in both the Union and Confederacy, malice was held down and charity was exhibited. Even with hundreds of thousands of deaths and carnage throughout our country we managed to pull together and build what would become a living monument to ideals that had once been only dreams. America needs much more work to become that more perfect union but nowhere else have humans got so near the brass ring and a generous volksgeist has made that possible.

The spirit of openness, generosity and optimism that pervaded much of America after WWII might be helpful today. While such vital interests as equal rights and due process still require much work by all of us, a cooperative attitude and an impulse to be helpful might assuage our current social and political disagreements. What is less likely to be productive is the placement of unnecessary distance between United States citizens and their governments at all levels: federal; state; county; local and areas generally under government regulation such as transportation.

After 9/11 some governments and industries reacted out of fear and concern. Whereas citizens had normally seen their governments as there to serve them, with the restrictions of 9/11, governments appeared to fear those whom they were instituted to serve and who paid their wages. We began to develop a culture where many in and outside of government and the industries regulated by government felt we lived in an “us versus them” environment.

This might have caused just ennui and nostalgia had COVID-19 not arrived. But with the absolute necessity of all-out governmental and societal warfare against COVID-19, the distances between citizens and their governments have become almost complete. We must have some governmental services and we cannot expect people to perform those tasks if we do not provide for their protection. And we are still months away from a return to normality. But we may want to guard against a possible permanent condition of a bifurcated country with the citizens on one side and their governments generally inaccessible on the other.

With that in mind our current imbroglio involving our national government might be placed among these other lessons from our past. What is not called for is more distance between citizens and their elected and appointed representatives. Perhaps instead of a mean-spirited partisanship a mutual sense of charity tempered with common sense might be more in our country’s long-term best interest.

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.

Those Folks Were Tough

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My Mom’s three brothers and one of her three sisters served in the Army during World War II (1941-1945). Aunt Betty was a nurse, Uncle Bud, who was a rodeo cowboy, was in the cavalry, Uncle Buck flew close air troop support over Europe and Uncle Bill killed and saw killed way too many men from Anzio to Germany. Mom sent any extra we had, and some not so extra, to support her siblings and their comrades.

My Mom’s Mom’s Mom’s father, my great-great grandfather immigrated with his parents from Bern, Switzerland in 1852 when he was fourteen. His father served as a career soldier in Switzerland for 21 years. They settled in LaGrange, Indiana.

My great-great grandfather, John Giggy, enlisted in Company H, Forty-Fourth Indiana Volunteer Infantry on August 28, 1861. His first major battle was Fort Donalson then he was wounded at Shiloh and sent to the military hospital in Evansville to recover.

After a short furlough he rejoined his regiment in Murfreesboro then at Chickamauga was wounded in the hip on September 19, 1863, after which he walked back to Bridgeport, Alabama using a bed slat for a crutch and having nothing to eat for 3 days but 3 crackers. He was then ordered to the hospital in Nashville before being furloughed again until he rejoined his regiment at Chattanooga on December 31, 1863 (Happy New Year?)

He continued fighting and marching, marching and fighting until mustered out at Indianapolis in October 1865. He became a farmer and a stone mason and fathered 9 children including my great grandmother, Agnes (Giggy) Vulgamore.

Thereafter he simply went about his life without thinking his country owed him anything more than a fair opportunity to raise his family and be left alone.

I never had the chance to meet him but I am confident his toughness helped buy me and my siblings a better life. Thanks to Grandpa, Aunt Betty, my uncles and all the other tough and non-assuming veterans who did their duty so the rest of us could do things they could not have dreamed of.

Honey or Vinegar

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A large percentage of Americans trace their roots to Germany and Italy, not so many to North Korea. The United States fought two major wars with Germany and one with Italy in the 20th Century. North Korea was our enemy once in the 20th Century. We forgave Germany and rebuilt it and our Italian WWII enemy with the Marshall Plan. It was some of the best money America ever spent.

Both post-war Germany and Italy were near starvation and needed everything from butter to sewers. The U.S. of A. provisioned both countries. As for North Korea, when active hostilities ceased over fifty years ago we maintained, and still do, a stance of belligerence and bellicosity. Our statements and actions as recently as last week invited all-out war and even more harsh economic sanctions to North Korea but not a penny for food or infrastructure. When we helped rebuild Germany and Italy we made long term allies and loyal friends out of people who had previously been engaged in killing us. The Marshall Plan was relatively inexpensive, especially since what it purchased was not only lasting peace but also economic benefits that far exceeded the cost. It was as President Trump might say, “One hell of a deal.”

I propose instead of spending billions of our treasure and many of our lives trying to force North Korea to give up attempting to create nuclear weapons, we should kill them with kindness; it would be a lot cheaper and much longer lasting.

When one whips a dog instead of feeding it, it should not be surprising if its first instinct is to bite.