Friday, October 31, 2014


I got a question a few days ago about the "Common Law Grand Jury" case down in Dixie County and overlooked it until today. The question was quite reasonable. It was occasioned by the fact that the judge issued a capias for failure to appear when the defendant was sitting right there in the courtroom. The result was that the defendant got thrown into jail with no bond for failure to appear at a court proceeding which he actually attended. This gave rise to the question: "How can a judge find that someone has failed to appear in court when he is sitting right there in the court?"

The answer may not be quite as reasonable as the question: There is a difference between courtroom proof and real world truth. Although he was sitting right there, the defendant had failed to prove that he was in the courtroom. Here's how a defendant proves that he has come to court according to his notice to appear:

When a defendant gets a notice to appear in court, he is expected to come to the courtroom and sit in the audience until his name is called. At that time, he is to respond, and come forward, go past the courtroom rail, and stand before the judge's bench. The procedure for getting him out of the audience and before the judge is simple. The prosecutor calls his name, and he steps forward. If he does not step forward, the prosecutor calls his name again. If the defendant fails to respond after his name is called three times, he has failed to appear and a capias can issue for his arrest.

The way it used to work when I was a prosecutor, I'd call the defendant's name and if he didn't answer, I'd make a motion for the judge to issue a capias for his arrest. The judge would direct me to comply with the formalities, and I would call out  in a booming voice "Dan Defendant! Come into court as you are required to do by law or a capias will issue for your arrest! Dan Defendant! Come into court as you are required to do by law or a capias will issue for your arrest! Dan Defendant! Come into court as you are required to do by law or a capias will issue for your arrest!" If I got no answer by the third bellow, I'd turn around and again ask the judge to issue a capias. The judge would then order that  capias issue for the defendant's arrest. I considered myself a sort of a magician. Instead of saying "abracadabra" and producing a rabbit, I bellowed "Dan Defendant! [etc.]" and produced a capias.

On several occasions when I bellowed out the magic words to produce a capias, the defendant would wake up, realize he was being called, and step forward. If he snoozed through the bellowing, then according to the courtroom proof he wasn't there regardless of whether the real world truth was that he was sitting in the courtroom.

In a similar fashion, if a bondsman had posted bond for the defendant to appear and he failed to appear, I would ask the court to estreat the bond [forfeit the bond]. The judge would direct me to comply with the formalities and I would boom out "Barry Bondsman! Produce the body of Dan Defendant in court as you are required to do by law or your bond will be estreated! Barry Bondsman! Produce the body of Dan Defendant in court as you are required to do by law or your bond will be estreated! Barry Bondsman! Produce the body of Dan Defendant in court as you are required to do by law or your bond will be estreated!" The judge would then order that the bond be estreated, and the bondsman could get his money back by going and getting Dan Defendant by the nape of the neck and dragging him to jail.

Again, I felt like a magician, only instead of saying "presto chango" and making the rabbit disappear I bellowed "Barry Bondsman![etc.]" and made his money disappear.

Monday, October 20, 2014


Back in the late 70’s I attended an in-service training program for law enforcement officers and heard a presentation by a Federal agent who was supposed to be an expert on officer survival. He told the story of a group of Basque separatists in Spain who hijacked a train and threatened to kill one passenger every hour on the hour until their demands were met. When the first deadline came and went, one of the terrorists went to a passenger and told him that he was going to be the first to die. The terrorist gave the condemned man some time to prepare to meet his Maker. As the terrorist waited, the victim turned to the passenger in the seat beside him and began giving the other passenger messages to be delivered to his loved ones. The terrorist stood over the victim listening to the man say his goodbyes and send his love to the various members of his family until he could stand it no more. He walked down the aisle, grabbed up another passenger, immediately shot the other passenger in the head, and threw him out of the train.

The presenter explained that the first passenger narrowly escaped death because, as the terrorist listened to him say his goodbyes, the terrorist began to realize that the passenger was a human being. He killed the second passenger quickly so that he would run no risk of realizing the humanity of the second passenger.

The lesson I learned from this story was that we, as human beings, have difficulty harming our fellow beings unless we can think of them as objects rather than humans. Much of the evil that has been done in the world has been done by those who think of those outside their group as objects rather than people. We have a tendency to divide the world into “us” and “them.” This tendency to divide our fellow beings into “we who are worthy” and “those who are not,” runs deep in our history and is even seen in our primate cousins. At least since the beginning of recorded history, and almost certainly before, human beings have shown compassion to those in their in-group and savagery to those outside. Men who were otherwise kind and compassionate could, with great ease, enslave and try to exterminate those of other races. It was relatively easy because they could think of the others as somehow less than human. Even today we can see this attitude exhibited in the world all around us. I don’t need to cite examples, just look at the headlines from today’s paper.

We in America have risen above all this, however. We believe in the siblinghood of humanity. If you really believe that, I want to talk to you about some oceanfront property in Arizona. We aren’t as homicidal as some groups in some other parts of the world, but we can be incredibly callous and abusive toward our fellow beings in other ways. The financier who bilks thousands of victims out of millions of dollars in a Ponzi scheme, the CEO who ignores glaring safety issues to sell dangerous products to the consuming public, the politician who thinks the best way to stay in office is to confiscate the property of the few voters who have and give it to the many voters who don’t—all these people and many more like them can nonchalantly harm others because they do not fully appreciate the humanity of their victims.

Psychopaths differ from normal people in many ways, but I think their most salient difference comes in how psychopaths relate to others—to a psychopath another person is just a thing to be used. To most of us, other people are humans to be loved, respected, and dealt with fairly. But far too many among the normal extend full humanity only to those within their circle. Those outside the circle are either objects to be used or second-class citizens to be despised. We aren’t psychopaths, but we often display psychopathic traits. Many of our most popular contemporary television shows (“Survivor,” for example) applaud and reward psychopathic behaviors such as lying, betrayal of trust, and exploitation of others.

This modern tendency to celebrate psychopathic behaviors might well be the death-knell of our society. There would be a lot less injustice in this world if we could all connect with all our fellow beings at least as well as the terrorist connected with the first passenger whom he spared—we might not all love each other, but we would at least stop harming each other.

I think that the first place to start in weaning ourselves off of psychopathic behavior is in national politics and popular culture. If the two major parties can step back from demonizing each other; if the major news networks can refrain from portraying every politically incorrect group as odious villains; if we can all display some compassion for those with whom we disagree—in short, if we can all recognize the humanity of our fellows, maybe we can keep this great country running for at least another two hundred years.

Thursday, October 9, 2014


I understand completely why the news media would want to report on the Treon Harris case; he is accused of an awful crime. But the attention given the Skyler Mornhinweg/Gerald Willis fistfight is a bit much. I don’t blame the police for responding to the call for assistance, but I’ve got to wonder what the person who called them was thinking. The media is another matter. Don’t they have anything better to do? Football, in case nobody noticed, is a game of violent physical contact played by young men inured to such violence. Players fired up by physical contact at football practice can become involved in on-field fistfights. So long as that’s all there is to it, an at-practice fistfight is a matter of team discipline, not a police matter, and certainly not anything the media should be concerned about. The players, after all, are wearing armor designed to protect them from violent blows. The main thing that a player needs to remember in such a situation is to keep his helmet on. 
I remember a long ago fight on the practice field at UF which was handled, I think, appropriately. We’ll call the combatants Moe and Larry. It happened like this: Moe, a redshirt offensive player, was woolgathering on the sideline while the defense scrimmaged against the freshman team offense. (I said it was a long time ago). Having nothing better to do, Moe decided to walk over to the field where the offense was scrimmaging the freshman defense. (The two fields were side by side with a distance of about five yards between them). Moe engaged Larry, a redshirt defensive player, in a conversation which soon became heated. The next thing you know, they were squared off like boxers throwing punches at each other. Since neither one of them really knew how to box, and neither one of them was going to back up, most of the punches landed. I saw no body shots, only head shots. Moe wasn’t wearing a helmet, but Larry was. The fight was short-lived, with the coaches quickly intervening and separating the combatants. When I say the coaches intervened, I don’t mean that they physically got between the two—they didn’t have to. Snarling “break it up” at the combatants was enough to separate them. Then came the tongue lashing.

Aside from bruised knuckles, Larry was none the worse for wear. Moe hadn’t fared so well. His face was a bloody mess, and his knuckles were cut and bleeding from contact with Larry’s nose guard and chinstrap buckle. They sent Moe to the infirmary for medical attention and practice continued. The police weren’t called and the media weren’t notified. Aside from the tongue lashing they got on the practice field, I don’t know if Moe and Larry received any other discipline. I think the worst repercussion Moe suffered was the ribbing he got from his teammates for getting into a fight with his helmet off.


What version of the Bible is most authentic? What version has been used by the largest number Christians for the longest period of time? Have I just stated the same question in different words or have I asked two distinct questions? Since I am a lawyer by profession, I suffer from the lawyerly proclivity for never giving a straight answer to a straight question. If authentic means “closest to the words penned by the original authors,” then we have two separate questions. It is quite clear that most Christians for the longest period of time have used versions of the Bible which almost certainly differ from the original wording of the original writers.

Bart Ehrman has written two books in which he energetically points out those differences. The first is a scholarly work entitled The Orthodox Corruption of Scripture, and the second is a popular work titled Misquoting Jesus. The thesis of both Ehrman's books seems to be that copyists changed the wording of key passages of scripture to conform the words of the Bible to their own belief system. Refuting that contention is not the aim of this essay, so I will just say I believe the contention is easily refuted and move on. (See Craig Blomberg’s excellent works, Can We Still Believe the Bible? and The Historical Reliability of the Gospels).

Anyhow, by 1611, when the venerable King James Version (KJV) of the Bible was rendered into English, the Bible text they used for the translation did not contain some of the original words of the original writers and contained some words which were not written by the original writers (See, e.g. John 8:1-11). But although it may not have been “authentic,” the KJV New Testament has a good claim to be based on the text which has been used by the largest number of Christians for the longest time.  Up until the 1500’s most Christians used a Latin translation of the New Testament done by St. Jerome in the Fourth Century. Known as the Vulgate, it was the basis of the Catholic Douay-Rheims (DRV) translation which was completed in the early 1500’s. The first versions of the DRV never really caught on.

About the time of the invention of the printing press in the mid 1500’s, it was recognized that there was a need for a standard Greek translation of the New Testament. After all, the New Testament was originally written in Greek. The Renaissance scholar Desiderius Erasmus collected as many manuscripts of the New Testament as he could lay his hands on and compiled them into a Greek text. None of his New Testament manuscripts were complete, so to fill in the gaps he retranslated the missing passages back into Greek from the Vulgate.  Erasmus’s text, with some revisions, became known as the Textus Receptus, the “received text.”

When the KJV was translated into English (1611), they used the Textus Receptus as the basis for the New Testament.  About 100 years later, Bishop Richard Challoner revised the DRV using the Textus Receptus, and it was after this that the DRV became popular. So the Textus Receptus formed the basis of the New Testament for Protestants beginning in 1611 and for Catholics beginning in 1749. The Textus Receptus thus reigned supreme in Western Christianity for a period of approximately 400 years (1519-1900). Then came the Historical-Critical movement in Biblical studies.

Historical-Critical Bible scholars saw that the Textus Receptus didn’t agree with many early manuscripts of the New Testament, and that the early manuscripts didn’t agree with each other. It didn’t really matter that the vast majority of these discrepancies were trivial and that non-trivial discrepancies didn’t affect Christian doctrine, they wanted an “authentic” New Testament. They decided to apply their scholarly knowledge to the problem of figuring out which among the many conflicting passages was the most authentic. The result was the Westcott-Hort text, published in 1881.

The most singular thing about the Westcott-Hort text is that, being pieced together from multiple manuscripts, it is a version of the New Testament that no early Christian ever used. Nevertheless, it supplanted the Textus Receptus and became the forerunner of modern texts such as the Nestle-Aland and the UBS. Most modern translations of the New Testament are based on these modern critical texts. So now we’ve got an “authentic” New Testament text that no early Christian ever even saw.  Whether these modern English translations have successfully captured the “authentic” text of the New Testament is open to debate. I’ve read several different versions from several different denominations, and what I’ve noticed is that the translations of various disputed passages always seem to endorse the theology of the denomination sponsoring the translation.

So what modern English translation most faithfully captures the original text of the New Testament? Who knows? I think it’s much easier to answer the second question. The Textus Receptus wins that contest hands down. It’s been used by Western Christianity for centuries, and it is based on the most common ancient family of Greek texts—the Byzantine text. At least that’s the family which has had the most copies survive to modern times. Casting about looking for a modern translation of the Textus Receptus we find—the New King James Version (NKJ).

Now let us look at the Old Testament and see what we can make of it. Almost all modern Protestant versions of the Old Testament are based on the Masoretic text (MT) of the Hebrew Bible. We can be sure that no early Christians used the Masoretic text because it didn’t exist during the early days of Christianity. The Masoretic text began to take shape around 1000 and took its final form by the late 1300’s. Of course, modern scholars have gone behind the Masoretic text to try to find the original words written by the original authors, and their findings have been incorporated into the modern translations. The Roman Catholic Old Testament is based on an ancient Greek translation of scripture known as the Septuagint, which was originally intended for use by Jews living outside Israel who could not read Hebrew. Sharp-eyed readers of modern translations will notice that when Jesus quotes scripture, it sometimes differs from the text of that scripture found in the Old Testament. This is because Jesus was quoting the Septuagint, not the Hebrew Bible.

Early Christians used the Septuagint, and the Septuagint forms the basis for the Catholic Old Testament. That’s why the Catholic Old Testament has more books in it than the Protestant version. (The books known to Protestants as the Apocrypha). When Protestantism broke off from Catholicism, they wanted the Old Testament to be authentic, which they read to mean more like the Jewish Bible. So they adopted the Masoretic text as their Old Testament, purging the books which weren’t in the Masoretic text.  By trying to become more authentic, they actually produced a less authentic Old Testament. Which leads us to this conclusion—among the archaic English translations of the Bible, the Catholic DRV is truer to early Christianity than the Protestant KJV. Why? The DRV’s Old Testament is based on the Septuagint. So where do we find the most authentic modern English Old Testament? I’d have to say it probably comes from one of the modern Catholic translations. But you have to be careful—some modern English Catholic Old Testaments are based on the Masoretic text.

We can sum up what we’ve learned so far with three points: (1) The Septuagint is the Old Testament text recognized as authoritative by the greatest number of Christians for the longest period of time. (2) The Textus Receptus is the New Testament text recognized as authoritative by the greatest number of Christians for the longest period of time. (3) The most “authentic” modern English Bible translation is going to be based on the Septuagint and the Textus Receptus.

Where do we find such an edition of the Bible? I don’t think we can find a Roman Catholic or a Protestant Bible which will meet our criteria. We can, however, find one. While Western Christianity was replacing the Septuagint with the Masoretic text and abandoning the Textus Receptus for modern critical texts, one branch of Christianity clung to a Bible based on both the Septuagint and the Textus Receptus—the Eastern Orthodox Church. In 2008 the St. Athanasius Academyof Orthodox Theology published the Orthodox Study Bible (OSB). For the New Testament they used the New King James Version, and for the Old Testament, they took the NKJ and reworded it wherever it disagreed with the Septuagint. Protestants would be uncomfortable with the OSB’s Old Testament—some of the books have different names (e.g. I Samuel is I Kingdoms), the order is different, there are too many books, and the chapters and verses sometimes differ.

I myself am partial to the KJV, having read it from an early age, so that’s what I usually read. For modern translations I like the Protestant New American Standard and the Catholic New American Bible. Until I examined a copy of the OSB I always discounted the NKJ as not “scholarly,” but the OSB changed my mind about it.

Wednesday, October 8, 2014


Just as you walk into a pool hall, you notice that the player on the first table has just taken the opening break shot and sixteen balls are careening around the table. Let’s put our story on pause and look at the balls on the table. Each ball has an individual trajectory, spin, and speed. If you were smart enough (I’m certainly not) and you knew all the pertinent information about the balls, you could devise a mathematical formula which would predict with almost 100% certainty where the balls would go, how many cushions they would bounce off of, how many other balls each ball would bump into, and where every ball would ultimately end up when they quit rolling. Not only that, your formula could “retrodict” how tightly the balls were racked, and the trajectory, spin, and speed of the cue ball when it struck them. All that mathematical information is probably going to be useless for saying anything certain about what was happening just before the balls collided. For instance, I don’t think that this information could tell you could tell which of the gentlemen standing around the table actually shot the break, nor could it tell you if he used a cue stick or a croquet mallet.

As I understand the latest theories in astrophysics, the Universe is a mammoth billiard table which is at least 90 billion light years in diameter. This billiard table is filled with moving billiard balls, and I’m not talking about stars and planets. Every atom is a separate billiard ball which is moving along as a result of the break shot which astrophysicists call the Big Bang. Let’s put our story on pause again. If you knew all the pertinent information about every billiard ball careening about the Universe, you could plug that information into a mathematical formula and predict when and how the Universe will come to an end. You could also retrodict what has happened to each and every atom since the Big Bang. You’ll probably need a supercomputer to do the calculation, and even then it might take some time to finally work everything out.

This has been interpreted to mean that everything that happens, has happened, or ever will happen was predetermined by the way the Big Bang banged. Upon being told this, a Calvinist might say “That’s Predestination.” An Arminian on the other hand would probably say “That’s awful.” The Calvinist would be wrong. The reason I say the Calvinist is wrong has nothing to do with a belief in Free Will and everything to do with Theism. Predestination presupposes that the break shot was taken by God. Determinism doesn’t really know how the rack was broken, but a lot of Determinists are certain that God had nothing to do with it. I tend to agree with the Arminian viewpoint, but once again it has nothing to do with Theism.

I can accept Determinism, but I don’t like Predestination at all. I don’t even like the watered down version which posits limited Free Will with just the fact of salvation being predetermined. I understand that John Calvin believed Predestination to be an act of kindness on God’s part, but I doubt if anyone predestined for Hell would agree with him. So that makes me a fan of Free Will.

How can I reconcile Determinism with Free Will? All those billiard balls careening about the pool table are completely brainless, as are the atoms careening about the Universe. If nobody is driving the car, it’s going to continue to roll until it hits something. Somewhere along the line, however, some clusters of atoms acquired drivers. The Earth is teaming with such clusters of atoms—they’re called people. We’re too few and too insignificant to alter the course of a Universe as big as the one we inhabit, but we can alter the course of our own and others’ lives. As the poem Invictus says “I am the master of my fate. I am the captain of my soul.” It might be wise to turn the captaincy over to someone else, but I believe that (absent coercion) we have the ability to choose our masters.

Now where does God fit into all this? Whether you are a Theist, a Deist, or an Atheist predetermines (notice I didn’t say predestines) your answer to that question. I think I have said before that I believe Deism has more prior probability than either Theism or Atheism, but prior probability doesn’t predetermine posterior probability. Last week in college football the prior probability was that both Alabama and Texas A&M would beat Mississippi and Mississippi State. The posterior probabilities were somewhat different.

You might say I’m a fan of Aristotle’s Unmoved Mover theory, but I’ve heard that called a “tired old argument.” I didn’t know that arguments got tired. I think that the biggest objection to the “tired old” Unmoved Mover theory is the fact that it is believed to be an argument for the existence of God. It really isn’t. If you’re arguing for an Unmoved Mover, you’re simply saying that somebody or something took the break shot. Maybe the Demiurge of Gnostic theology.  

Here’s something that I agree with Calvin about. He’s one of the few early theologians who didn’t advance arguments for the existence of God. His reason? He felt it was a waste of time to argue for the existence of God, you either believed or you didn’t. I think Deism can come about as an act of logical reasoning, but belief in God comes more as an act of faith than of logic. Logic can carry you to the threshold, but only faith is going to get you through the door. I think the same can be said of Atheism. It takes a great deal of faith to deny the existence of some sort of god. If Atheists were being completely logical, they would be Deists, or at least “Demiurgists.”