QUORA QUESTION: How many major battles would a regular soldier usually fight in the American Civil War?

Oddly enough, one of the soldiers most likely to die in combat during the Civil War was a Brigadier General.

Joshua Lawrence Chamberlain, my favorite Union General, fought in the Battle of Fredericksburg, the Battle of Gettysburg, the Battle of Cold Harbor, the Second Battle of Petersburg, the Battle of White Oak Road, the Battle of Five Forks, and the Appomattox Campaign. He would have fought in more battles, but he suffered grievous wounds on numerous occasions. Once he was wounded so badly that some papers printed his obituary. Chamberlain, a college professor, so distinguished himself as a soldier that Grant appointed him to receive the formal surrender of the Army of Northern Virginia. He also was awarded the Medal of Honor.

Patrick Cleburne, my favorite Confederal General, fought in the Battle of Shiloh, the Battle of Stones River, the Battle of Chickamauga, the Chattanooga Campaign, the Battle of Pickett's Mill, the Atlanta Campaign, and the Battle of Franklin. He would have fought in more battles, but he was mortally wounded at the Battle of Franklin. Cleburne, who was known as the Stonewall of the West, was the only Confederate leader to fight Sherman to a standstill in a pitched battle. Cleburne was a lawyer and a native of Ireland who owned no slaves; he went to war to defend his adoptive state, Arkansas. Cleburne ruined his military career by writing a letter to Jefferson Davis urging emancipation of any slaves who would volunteer to enlist in the CSA. He urged that the emancipation extend to the families of such slaves as well.

QUORA QUESTION: As a lawyer, what is the worst behavior by a client you’ve ever witnessed?

I’m going to have to say it was the defendant who sucker punched me during a sentencing hearing. When I got up off the floor I had completely changed my mind about recommending probation. He wound up doing a year (the maximum sentence) for the crime, and he picked up an additional 18 months for Battery on a Law Enforcement Officer. (Prosecutors are law enforcement officers in Florida).

This incident prompted me to do three things:

[1] I resumed weightlifting after a 15 year hiatus, and eventually became able to lift more weight at age 40 than I could as a redshirt tackle for my college football team. This training actually came in handy a few times when fights broke out in the courtroom & the bailiff had conveniently disappeared.

[2] I became much more cognizant of what the defendant was doing in the courtroom. I later decided I had to maintain this vigilance anywhere in the courthouse when the brother of a murder defendant attacked me in the hallway. Luckily, he began his charge at the far end of the hall from me, and other family members were able to tackle him and drag him into the elevator. Being in somewhat of a fog after just getting a verdict in a week-long trial, I remarked, “I wonder what he was trying to do.” My trial partner said, “You darn fool, he was coming after you!”

[3] When I began teaching law school I always included a prosecutor safety module in my prosecution classes.

QUORA QUESTION: WHAT'S THE FUNNIEST COURT CASE YOU'VE SEEN?

It’s a tie:

[1] I defended a guy once on a robbery charge. The clerk in the convenience store hit the silent alarm, but the police didn’t take it too seriously because that particular store was always accidentally tripping the alarm. Officer Friendly came strolling into the store while the two robbers were standing there holding guns on the cashier, who had just put a brown paper bag full of money on the counter.

“Are y’all having a robbery here?” Officer Friendly asked. Nobody said anything. Just then the pay phone on the wall rang. Robber A pocketed his pistol, walked over, and answered it. The Police Station was calling to see if there was really a robbery occurring. Robber A told the dispatcher to hold the line.

“It’s for you,” he told Officer Friendly. Officer Friendly walked over to the payphone and stood with his back to the robbers. While he was telling the dispatcher it was a false alarm, Robber A was slipping out of the store, getting into the getaway vehicle, and driving off. Robber B was just standing there with his gun in his hand, immobilized by the intellectual challenge of deciding what to do.

When Officer Friendly got off the phone and turned around, he began to figure out that he really had a robbery in progress. His clues were: the frightened look on the clerk’s face, the bag of money on the counter, and the gun in Robber B’s hand, all of which he had seen but not understood when he first walked into the store.

Having at last detected a crime, Officer Friendly swung into action and arrested my client without incident.

Because my client never touched the bag of money I was able to get the charge reduced to attempted robbery, which at that time only carried five years—a much lesser penalty than the life sentence he would have gotten for a robbery conviction.

[2] Then there was the attempted robbery case where my client walked up to the grocery store cashier who was checking out a line of customers. He stuck his hand in his pocket, announced that he had a gun, and said nobody would get hurt if they handed the contents of the cash register over to him.

“Yeah, right,” replied the cashier, and she kept on checking out customers. The bag boy was equally impressed. He kept on bagging groceries. My client was persistent. He repeated over and over that he was serious, he did have a gun, and they better fork over the money. The clerk and bag boy kept on checking out customers.

It wasn’t long before he got somebody to take him seriously. As his demands grew louder, he finally attracted the attention of the butcher in the back of the store. The butcher armed himself, marched up to the front of the store, and began firing at my client. Deciding that now would be a good time to leave, my client fled the store in a hale of bullets. The butcher chased him around the store firing at him until his gun ran dry, and my client escaped on foot.

On cross-examination of the clerk and bag boy, I had the jury slapping their knees laughing. The judge threw the case out when I moved for a directed verdict of not guilty. This upset my client greatly, and as the jury was filing out of the courtroom he was on his feet loudly demanding that the judge had to let him testify so he could clear his good name.

I had heard his story and was certain that the last thing he wanted was to be cross-examined by the prosecutor. His story drained all the humor from the situation and made him look guilty as home-made sin. I finally got him to shut up, and he left the courtroom fuming over the denial of his right to testify.

QUORA QUESTION: ON A PURELY MORAL BASIS, RATHER THAN A PRACTICAL ONE, TO YOU THINK THERE ARE ANY CRIMES/PEOPLE THAT DESERVE THE DEATH PENALTY?

Yes. Here’s a non-exclusive list of reasons I think the death penalty is morally justified gleaned from some of the First Degree Murder cases I prosecuted.

DERRICK MANNING—Shot and killed two deputy sheriffs who were investigating a sexual battery complaint because he didn’t want his third degree felony probation revoked. RESULT: Death penalty overturned on appeal. Serving life sentences for murder.

THEODORE ROBERT BUNDY—I prosecuted him for the murder of a 12 year old school girl, the crime for which he was eventually executed. Need I say more? RESULT: Electrocuted.

JOHN MERRITT—While burglarizing his girlfriend's home, her father came home unexpectedly, so Merritt tied him up and shot him in the back of the head. He didn’t want anybody to be able to identify him. RESULT: Death Penalty overturned on appeal. Serving life sentence for murder. Had a rap sheet as long as your arm for burglary and crimes of violence.

MARSHALL GORE—A Ted Bundy wannabe who raped a string of victims from Cleveland, Tennessee, to Miami, Florida. His MO was to torture them, bash their heads in, and cut their throats. Miraculously, most of his victims survived, but they were mentally scarred for life. I will never forget the angelic young lady whose wrists and throat he cut. She kept passing out on him while he was torturing her, and he would dutifully wake her up so she could feel the pain he was inflicting. The most disturbing thing he did to her was to screw a corkscrew into her throat. She was so traumatized she flatly refused to come to court and testify against him. RESULT: Executed for a Miami murder before our death penalty could be carried out.

CARLIS LINDSEY—A serial killer who bragged that he “had his own private graveyard down on the muck.” Killed at least four people that we had proof of over a 30 year period of time, his last murders coming when he blew the faces off a young lady and her brother with a shotgun because he was angry that she was moving out of his house. She wanted to move out because of a disagreement over whether she was his girlfriend (she said “No”) or a rent-paying tenant. RESULT: Death penalty overturned. Died in prison.

KENNETH CHAKY—Brained his wife and put her in the trunk of the family car, and then hired a neighbor to “burn my car, but don’t look in the trunk.” When the neighbor opened the trunk, he abandoned the car at a nearby Dempsey Dumpster. A deputy sheriff saw the car, which Chaky had reported stolen, and returned it to Chaky with the body still in the trunk. Chaky then tried to recruit his neighbor to help in gather up a sufficient number of stray dogs to eat his wife’s body. Chaky wanted to be unmarried, but he didn’t want to pay alimony or child support. RESULT: Death penalty reversed on appeal. Now serving life in prison.

RICHARD HAMILTON—Career criminal who escaped prison and kidnapped a young nursing student who had stopped at the supermarket to pick up diapers for her infant child. Raped her multiple times and then killed her to prevent being identified as her rapist/kidnapper. RESULT: Awaiting execution.

ANTHONY WAINWRIGHT—Career criminal accomplice of Richard Hamilton. RESULT: Awaiting execution.

ROGER HARRIS—Another man who had an inconvenient wife. Had the mechanical ability to hand-make a firearm to use as a murder weapon. Lured her into the rear seat of her van on the pretense of having sex and shot her in the back of the head with the gun, which fired a finishing nail punch which was approximately 1/2 inch in diameter. RESULT: Death penalty overturned. Serving a life sentence.

JOHN BLACKWELDER—Serving multiple life sentences for sexual battery on children under twelve. Got angry with his boyfriend and convinced the boyfriend to lie spread-eagle on his bunk and be tied down in four point restraints to make sexual relations more fun. Once he got the victim tied down, he garroted the man. While the trial was pending, he told me he’d like to straighten my tie (I wonder what he meant by that?) and that he would like to sexually molest my children. Shortly after 9/11 I got a letter from him celebrating the deaths of all the victims who were killed on that day. RESULT: Executed by lethal injection.

CHARLES GLOBE—Career criminal serving multiple life sentences for armed robbery who conspired with a fellow prisoner (with whom he was very, very close) to kill a number of prisoners and prison guards. They made a list, decided on one victim, attacked him in his cell, garroted him, had sex on the top bunk while the victim lay dead on the bottom bunk, and then they decorated the cell with the victim’s blood. (A mitigating factor: Globe did talk his accomplice out of cutting the victim’s head off). RESULT: Died on death row while awaiting execution.

ANDY BUSBY—Globe’s accomplice and also a convicted murderer. RESULT: Death penalty reversed, sentenced to life on remand. Now serving life. The remand was after I retired. If I had still been working, I would have pushed for another death penalty.

COMMENT—Probably the two least deserving of death on this list were Chaky and Harris. If I had it to do over again, I would not have sought the death penalty on them, but not because they didn’t deserve it; because I now know how difficult it is to make a death penalty stick on a wife killer. The Chaky and Harris results caused me to forego the death penalty and just get LWOP sentences on a number of other wife killers. (LWOP means life without parole).

QUORA QUESTION: WHAT MADE ULYSSES S. GRANT SUCH AN EFFECTIVE GENERAL? WHY DID HE SUCCEED WHERE SO MANY OTHERS FAILED?

My Answer: 

I think it was because of a number of things, including but not limited to the following:

First, his talent as a strategic thinker. He was probably the best strategist on either side, possibly excepting Winfield Scott, who was too old to be effective when the war began. Sherman stood in awe of Grant’s strategic grasp.

Second, he didn’t panic under fire. When he returned to Shiloh on the second day, he walked into the middle of a disaster. George McClellan would have panicked and ordered a full retreat. Most Union generals would have done so. Grant calmly put things back together, rallied the troops, and won the battle.

Third, he was tenacious. In the Vicksburg Campaign he faced logistical defeat at every step of the way, but he just regrouped and went at it again until he got the job done.

Fourth, he was willing to pay the blood price of victory. In the Overland Campaign he suffered battle casualties on a titanic scale, but kept on pushing. After the Battle of Spotsylvania Courthouse he wrote to Secretary of War Stanton:

“We have now entered the sixth day of very hard fighting. The result to this time is much in our favor. Our losses have been heavy as well as those of the enemy. I think the loss of the enemy must be greater. We have taken over five thousand prisoners, in battle, while he has taken from us but few except stragglers. I propose to fight it out on this line if it takes all summer.” 

(Grant was wrong about casualties. By the end of the Campaign, Grant had suffered over 50,000 casualties while Lee suffered approximately 31,000–35,000).

Can anyone imagine George McClellan writing such a letter as that under such conditions as that? Compare the Seven Days Battles, where McClellan arguably won a string of tactical victories over Lee, but retreated after each battle because of his horrendous casualties. (Lee's casualties were a little over 20,000; McClellan's a little over 15,500). If Grant had been in charge at that stage, he would not have been deterred. He would have attacked Lee after each battle rather than retreating, and Richmond would have fallen.

QUORA QUESTION: WHEN HAVE YOU BELIEVED A CLIENT'S STORY, BUT THEY WERE LYING?

QUORA QUESTION: When have you believed a client's story, but they were lying?

MY ANSWER:  Frequently. Less often I have thought my client a liar when he was telling the truth. Because of the possibility that my client’s unlikely story was true, if I could not shake the story I operated as though the client were telling the truth. This procedure often cooked my client’s goose, but it’s not malpractice to believe your client.

I recall one case where we spent two weeks turning a small county upside down looking for two alibi witnesses named “Root Man” and “Crime.” When we reported back to our client that we couldn’t find anyone who had ever heard of “Root Man” or “Crime,” he confessed that he had made them up because “I had to tell you something.”

IS SUPREME COURT JUSTICE BRETT KAVANAUGH GUILTY?

I’m recovering from a second rotator cuff repair on my left shoulder, a recovery which is predicted to take 3-4 months. The first came in January of this year, and I almost immediately re-tore the cuff when I fell hard on a concrete floor. A very eventful year caused me to repeatedly put off rotator cuff repair because of other commitments, and I just had the second surgery last week. The recovery is projected to take 3-4 months, and I will be hors de combat for a long time. I am trying to be extremely careful not to re-tear the cuff. The result is that I’m spending a lot of down time on my iPhone.

In my enforced idleness I discovered a website called Quora, a question-and-answer website which ought to be more popular than it is. You join the site, tell it what subjects you are interested in, and it sends you questions on those subjects that have been asked by other members. You can read the answers to those questions given by others, or you can write your own answers. Or you can ask your own questions. Some of the questions are near-unintelligible, and some of the answers are so far out in left field that they’re not even in the ballpark, but most questions are good and most answers are thoughtful. And it gives you a chance to talk about a lot of stuff that would probably bore your friends to tears. There are very few people in my circle of friends who are interested in the philosophy of the Ante-Nicene Fathers or the military campaigns of Subotai Bahadur.

So in my downtime I have answered a boatload of questions on Quora and engaged in some thought-provoking discussion. I have decided to publish some of my discussions on Quora as blog posts. I’ll try to steer clear of some of the more arcane subjects, but I may stray into areas that will bore you to tears. I apologize in advance if I do so.

Here’s a question on a subject that I don’t think anyone will find boring:

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QUESTION: Is Supreme Court Justice Brett Kavanaugh guilty?

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MY ANSWER: I have prosecuted numerous “historical” sex assault cases, the oldest conviction came around 1996 for a crime which happened in 1966 when I was a senior in high school.

I have declined to charge in even more “historical” sex assault cases because I believed the evidence was insufficient to give the requisite reasonable prospect of conviction.

Along the way I learned some things about human memory: It is fallible, and it is malleable. Uncorroborated eyewitness testimony is fraught with peril. Most exonerations in wrongful conviction cases come from cases where eyewitnesses are positive the defendant did it, but DNA shows them to be wrong. It’s like the definition of positive in “The Devil’s Dictionary:” Mistaken at the top of your voice.

In historical cases we did not file on the uncorroborated testimony of an eyewitness, and we were very careful about filing charges in current cases with uncorroborated eyewitnesses.

If the Kavanaugh case had been brought into our office when I was prosecuting sex crimes, I would never have filed it; and I could have made the decision without an FBI investigation.

None of which means that I think Ford was lying. Decades after I graduated from high school, I was accused of being drunk out of my mind at a high school football game by a high school classmate who had known me for years. She said I fell on her while trying to climb to the top of the grandstands and she could smell the alcohol on me. She had no corroboration, but I had this corroboration:

When I was old enough to drive after dark, I was on the football field playing football. Before I was old enough to drive after dark, my parents drove me to every game. I didn’t start drinking until I was a sophomore in college. (I reached my lifetime quota for alcoholic beverages in 1980).

But she was positive, and nothing I could do or say would convince her otherwise.

Do you think I was guilty of being drunk and disorderly at a high school football game?

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My answer provoked another member to ask me this question:

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QUESTION: “None of which means that I think Ford was lying.” This one sentence of yours seems to not fit in with the rest of your response. Are you maybe being sarcastic, or what? Or are you splitting hairs about the meaning of “lying?”

***

MY ANSWER: The dictionary defines “Lie” as “A false statement made with deliberate intent to deceive; an intentional untruth.” You can tell the biggest whopper imaginable (E.g. “The earth is flat and rests on four elephants standing on the back of a turtle”) and not be lying, if you believe you’re speaking the truth.

During my 32 years in the courtroom I came to the conclusion that most false testimony is given because witnesses are mistaken, misinformed, or have misinterpreted what they saw or experienced.

I became very careful about tossing around the L word, never accusing anyone of lying unless I had rock-solid evidence of intent to deceive. That is a hard-and-fast rule that I have tried to adhere to outside the courtroom as well.

If that’s splitting hairs, so be it.

Here’s what I think of Ford’s credibility. Something unpleasant happened to her all those years ago. Being under the influence of alcohol, she was not certain who the offending party was. It was easy to think Kavanaugh was the offender because of the past difficulties between their parents, but initially it was too foggy an identification to make an accusation. Over the years her memory transmogrified the offense into something more serious than it actually was, and as Kavanaugh’s success grew so did her anger at him. As her anger grew, so did her certainty that he was the offender.

When Kavanaugh was nominated to the Supreme Court, she shared her belief about the incident with forces aligned against him. She thought that what she said would be held in confidence. Instead it was weaponized and deployed at the time it was calculated to be most likely to derail Kavanaugh’s nomination.

Having nothing but vague memories of the event, she initially refused to testify. She was eventually persuaded to testify by two things: (1) pressure from anti-Kavanaugh forces, and (2) vilification from pro-Kavanaugh forces. I think (2) had more to do with causing her to decide to testify than (1).

When witnesses take the stand, they have a tendency to become advocates for their own side rather than impartial reporters of what they saw. This is what happened with Ford. When a witness becomes an advocate for the truthfulness of her testimony rather than an impartial reporter, the witness embellishes her story to make it sound better.

The result of all this was testimony which didn’t have sufficient force to be believed from a witness who probably was not lying. She was not making statements she knew to be false with intent to deceive. She was embellishing an account of a memory she had with intent to get others to believe what she believed—that her memory was true.