REMEMBERING 9-11

I’ve read a lot of literature about how terribly inaccurate eyewitness testimony is. They talk about all sorts of experiments and tests that they’ve done to show that you just can’t rely on it. One of the prime examples that is always trotted out to show how unreliable eyewitness testimony can be is tests of people’s memory about where they were and what they were doing when JFK was assassinated. According to the scientific testing, people really don’t remember where they were, their subconscious mind just invents a memory when they’re asked. Apparently my subconscious mind invents the same memory over and over. I was sitting in English class when the shooting was announced, and I can remember it vividly because some idiot sitting in the back of the classroom piped up and said what a good thing it was that the president had been shot. That much I know happened. My subconscious may have invented the next two details. He didn’t get anybody else to agree with him. We just sat there looking at him as if he had three heads.

Another tragedy that I have a vivid recollection of is 9-11. I know exactly what I was doing, and I’ve got documentary proof. I was trying a First Degree Murder case. I found out about the attack during a recess in the proceedings. I walked into the bailiff’s office and they were watching the news reports on TV. I don’t recall if it was a replay or if I saw the live feed of the second plane hitting the tower. Years later I was at a continuing legal education event when the speaker said that a mistrial was declared in every murder case being tried in Florida that day. I spoke up and corrected the speaker. Not every case mistried. The one I was trying didn’t, and we trudged on to finish the trial the following day, or maybe the day after.

I vividly recall two homicide cases that were extremely hard to try, not because of the complexity of the cases, but because of things that were going on not related to the prosecutions. There was the murder case I tried while running a fever of 102. I was too young and too dumb to ask for a continuance, so I just went right ahead and tried it. Then there was the murder case I was trying in another town where I got food poisoning, and the judge gave me a day’s recess to recuperate. He sent me word that after one day's recess the trial would continue with or without me. I got up out of my sickbed, got another assistant state attorney to drive me to the out-of-town courthouse, and finished the murder trial. Neither of those cases were easy to finish, and I didn’t perform at 100% in either of them, but I did manage to get good verdicts in both of them.

As difficult as it was to finish the trials of those two cases, the difficulty was nothing compared to how hard it was to finish that murder trial on 9-11. The crime was atrocious, the defendant was odious, the death penalty was more than appropriate, but it all seemed so trivial and insignificant when compared to the tragedy that was playing out in New York while we were trying the case. I don’t know for a fact why the jury’s death recommendation was only 9-3, but I suspect that the three who voted for life without parole were having some of the same thoughts I was about the magnitude of our case compared to the magnitude of the crime that had just been committed in New York.

I didn’t know any of the people who lost their lives that day, but the grief I felt was just as intense as the grief I have felt at the death of family members, and working through that grief took just as long as working through the death of a family member. Notice that I didn’t say it took me a long time to get over it. That kind of grief is not something you ever completely get over.  It’s something you never forget, no matter what the “memory experts” say. It’s something we as a nation should never forget. I hope and pray that we don’t.

HOW IS COLIN KAEPERNICK LIKE MACBETH?

I have been studiously trying to ignore the Colin Kaepernick flap, but the media doesn’t seem to want to let it die. Kaepernick is exercising a right that was won with the blood of American soldiers over a span of two centuries. That’s right. Our armed services have fought, bled, and died to insure his right to act like the north end of a southbound horse if he really and truly wants to do so. That’s the beauty of America. People are able to exercise their freedom of speech in incredibly offensive ways without fear of the government stepping in and hauling them off to a concentration camp. They may be ostracized by their peers; they may lose lucrative endorsement contracts; controversy-shy employers may fire them; but they are safe from government reprisal. 

And on the scale of 10-1 for subversiveness to the established order, Kaepernick’s action rates about a minus 2. Make no mistake, what he is doing is more an act of petulance than of courage. For comparison purposes, consider the gentleman in this photograph:

This gentleman’s refusal to give the Nazi salute didn’t risk loss of an endorsement contract; it risked loss of his very life. I salute his courage, and I hope he didn’t wind up in a death camp. The only physical injury Kaepernick risks by his refusal to stand for the National Anthem is splinters in his backside. I do not salute his courage, and if he needs tweezers to remove those splinters he won’t be getting them from me.

Senator Sam Ervin of Watergate fame has been quoted as saying that “the Constitution gives a man the right to make a damn fool of himself.” Paul R. Clancy, Just a Country Lawyer: A Biography of Senator Sam Ervin, p. 256. Kaepernick is exercising that right to the hilt. Why do I say that he is making a fool of himself? Kaepernick says he is upset about mistreatment of people of color by police officers, therefore he isn’t going to stand for the National Anthem. Apparently he flunked Civics in high school. The local police don’t work for the Federal Government; they work for state and local agencies which are controlled by different sovereignties (the states) than the United States Government. The Constitution was set up to give the United States Government limited power to oversee the day-to-day activities of state sovereignties. And anyone who has kept track of the news knows full well that the United States Government, in the form of the Civil Rights Division of the Department of Justice, agrees with Kaepernick and is doing what it can to prevent mistreatment of people of color by local law enforcement officers. See, for example, the Justice Department reports on the Baltimore Police Department and the Ferguson Police Department. 

So Kaepernick decides to speak out against mistreatment of people of color by law enforcement officers, and he decides to do so by disrespecting the government which is trying to prevent mistreatment of people of color by law enforcement officers. If that’s not the definition of a damn fool, I don’t know what is. All of which puts me in mind of a remark Macbeth made just before Macduff ran him through with a sword: Kaepernick’s protests is “a tale told by an idiot, full of sound and fury, signifying nothing.” Macbeth 5:5. So let’s all start worrying about something significant and forget about Colin Kaepernick’s illogical protest.

RESTORING POWER; REVIVING POLITENESS

My grandkids are too young to remember the last hurricane that came through Florida, so they were especially frightened by the media coverage of the coming of  Hermine. I told them that they really shouldn't be worried. We live far enough inland that the hurricane would have pretty much blown itself out by the time it got here, and we'd just have issues with fallen trees, power outages, and some flooding--the odds of our house getting flattened, or blown over the rainbow to the Land of Oz with us in it, were slim. My prediction came true. It didn't even blow hard enough to wake me up the night Hermine came by. Of course, my wife says I could sleep through an artillery barrage, but that's beside the point.

I was impressed by the preparations for the storm. I didn't count how many power company trucks had assembled at the fairgrounds before the storm, but it looked to me like they certainly had more than enough. Over the next few days I learned that we needed every one of them, and probably could have used some more. Our house was one of the lucky ones--the lights flickered, but didn't go out. I'd like to express my heartfelt thanks to all the electrical workers who came from hundreds of miles away to help restore our power. I can't say enough about how great it is for people from far away to come together in times of need to help. It is a testament to the brotherhood of man. Or should I say the "siblinghood of humankind"?

Every silver lining comes attached to a cloud, however. It has come to my attention that in some parts of Florida power linemen are being harassed by people who don’t think that their power is being restored quickly enough. I even heard of one person who interfered with the linemen to such an extent that he got himself arrested, and another person who was threatening to sue the power company for being tardy in restoring that person’s power. I'm not one for expressing myself with profanity, but when I heard about this I was tempted to use some in describing what I thought about harassing people who have traveled hundreds of miles to help.

I’ve done a non-scientific survey of the power company trucks which have come in to help restore electricity here in North Florida, and they have come from as far away as Virginia and North Carolina to work in less-than-ideal conditions to help restore our power. It seems to me that we owe these workers our thanks for their selflessness, not heckling because they aren’t putting us at the front of the queue. 

There are many problems with the idea of harassing these linemen as they work. I’ll name just a few: (1) The linemen themselves don’t decide what they’re going to fix first; they take their orders from the central office, which sends them to the places of most critical need first—like hospitals, fire stations, places of densest settlement, etc. So these people who are out there harassing the linemen have misdirected their anger. Go picket the central office which passes out the work assignments if you have to, but don’t interfere with the repair process. (2) The more you harass linemen working on somebody else’s line, the longer you’re going to delay the linemen from getting around to your line. (3) It’s incredibly rude, self-centered, egocentric, and thoughtless to harass people who have traveled hundreds of miles to come help you simply because they have so many people to help that they can’t get around to helping you as quickly as you’d like. (4) Etc., etc. etc.

I worked for the phone company in a previous life, and I vividly remember working 48 hours straight without rest when one particular storm came through. Thousands of people were without telephones (electricity too), and we worked ‘round the clock restoring service. I think I slept 12 hours straight when I got sent home at the end of the ordeal. If someone had come to me in the middle of those dirty, wet, grueling, and exhausting 48 hours and started giving me a hard time because his telephone wasn’t the first to be restored, I would have wanted to bend a lineman’s hammer over his head. 

I don’t want to sound like a fossil talking about the “good old days,” because I fully realize that they were leavened with a lot of “bad old days” that our convenient memories tend to block out. But I do remember that when I was out working in the field for the phone company I would frequently have people come up to me and very politely say, “If you don’t mind. When you get a chance, could you come take a look at my telephone? It’s been out for a week now.” I’d ask, “Why haven’t you called repair service?” and I’d get a reply something like this, “Well, I really didn’t want to bother y’all. I figured I’d just speak to one of you the next time I saw you.” That’s a little too far in the opposite extreme from these people who are harassing power linemen today, but I think the world would be a  better place if more of us had some of the kind of patience and politeness that was displayed by those long-ago people who appreciated the service they received and were willing to wait a while for it to be restored.

So while these selfless workers from faraway power companies are here in our state restoring our power, why don't we revive some old-fashioned politeness and let them know how much we appreciate them. It might help counterbalance the harassment they seem to be receiving from the self-centered, ill-mannered, citizens of our state who seem to think that the world revolves around them.

TURNING POINTS AT TRIAL by SHANE READ

My favorite professor in law school was Hayford O. Enwall, a retired Federal prosecutor who had a "war story" to illustrate every point of law he covered in each of his classes. I believe that learned more about the practice of law from Professor Enwall than I did from all my other professors combined. At least since the time that Plato wrote his dialogs, we have been teaching by telling stories, and it is an effective way to get one's point across.

Shane Read, a Federal prosecutor and an adjunct law professor, has adapted the Enwall method of teaching by story telling in "Turning Points at Trial" to the illustrate important principles of trial advocacy, and the result is both informative and entertaining. Read takes each aspect of the lawyer's craft and tells the story of how a master craftsman performed brilliantly. He begins with a short biographical sketch of the actor, introduces the case, discusses the issues, uses excerpts from the transcript of the trial to show how the lawyer achieved a stunning victory, and then interviews the lawyer to gain insight into the lawyer's strategies and tactics. The cases are interesting; the issues are important; the victims are worthy of empathy; the villains are villainous; and the heroes are heroic.

I got the book day before yesterday and planned to take my time and read a chapter now and again in my spare time. After I read the first chapter, I set the project I was working on to the side and finished the book this afternoon. I won't say that it was as gripping as a David Baldacci thriller, but it certainly had me hooked. The stories were uniformly interesting and some of them were quite moving. Chapter 5 in particular, which dealt with a rape prosecution, was difficult to read. I handled sexual assault cases during all 32 years of my active practice and prosecuted a steady stream of them for about 15 years. That chapter brought back too many unpleasant memories.

The book is divided into seven parts, with one part each for Opening Statement, Direct Examination, Cross-Examination, Cross of the Expert, Closing Argument, Depositions, and Appellate Argument. Each part has multiple chapters, and each chapter is devoted to a different lawyer with a slightly different approach to the same task.

The principles enunciated throughout the book are sound, and I found myself saying "Amen" to numerous comments that the lawyers made during their interviews. No experienced trial lawyer, however, has ever looked at the work of another trial lawyer without finding something to disagree with. I spent my entire career in criminal court, and on the rare occasions when I went to civil court it was usually because I had been subpoenaed as a witness. I was flabbergasted at what civil plaintiff's attorneys can get away with saying in opening statement and final argument. Some of the things they can say in a wrongful death case will cause an instant mistrial in a murder case. If you're a young prosecutor reading this book, I strongly suggest that you do a little legal research about the propriety of some of those statements before you incorporate them into your arguments. With that caveat in mind, the book is an excellent teaching tool for anyone wishing to learn more about the finer points of trial advocacy.

POSTSCRIPT: The book has one factual error that I feel constrained to clear up because it tends to besmirch the integrity of our 16th president. Chapter 6 tells the story of how Allan Dershowitz won a case on cross-examination by pretending to have a non-existent transcript. When he was called down by the judge about it, Dershowitz defended himself by saying that Abraham Lincoln had done much the same thing when he used a faked almanac to break down the testimony of a perjured witness. Lincoln never did any such thing. The almanac was for the correct year, as attested by two members of the jury, John T. Brady and Milton Logan, and confirmed by the investigation of Lincoln biographers Albert Beveridge, J. McCan Davis, William F. Barton, Jason Gridley, and a host of others. The fake almanac canard was a lie made up by Lincoln's opponents in the 1860 presidential election. There's an old saying that a lie can go around the world before the truth gets its boots on. That's certainly true of the lie about Lincoln and the fake almanac.