HILLARY'S TRUMP OF GLOOM

I began watching the returns coming in on CNN last night, and it certainly was interesting. The pundits for the most part acted like they were at a wake. CNN held off calling Trump the winner in states where he obviously had won as their vote-count expert examined the states county-by-county desperately looking for some hope that Hillary could pull it out. It went something like this “Well, here in Transylvania, with 97 % of the vote tallied and Trump holding a 100,000 vote lead, Clinton can still pull it out because they haven’t finished counting the votes in Precinct 37 of Philharmonica, a historically Democratic stronghold.” Never mind that there were only 10,000 votes in Precinct 37 of Philharmonica.

I started swapping around between CNN and MSNBC, and the guys at MSNBC seemed to be taking it a little better, but they were still dragging their feet on calling states where Trump seemed to hold a commanding lead. Swapping over to FOX, I saw less gloom and doom, and more willingness to call states for Trump. An online check with a neutral source (the BBC) tended to validate FOX’s courage in going ahead and calling states for Trump.

Then somewhere between 2:00 and 2:30 John Podesta came out and told the somber crowd at the Clinton “victory” party to go home, that Clinton would have a statement the next morning. The next thing that I remember happening is some pundits talking about Clinton challenging the election results, and the illegitimacy of a Trump presidency because Clinton was probably going to win the popular vote. Seems to me like just a few weeks ago, Donald Trump had undermined the very foundation of American Democracy by suggesting that he might challenge the election results. I guess whether democracy is undermined depends completely upon who is challenging the election results.

Before we go any further, let it be known that I did not vote for Trump. I didn’t vote for Clinton either. I voted for the guy who thought Aleppo was a brand of dog food. In doing that, I have found common ground for agreement with Colin Kaepernick, who voted for None of the Above.

I really was upset that Trump got the Republican nomination, because I believed that he was Hillary Clinton’s best shot at getting elected president. I kept saying to myself and anyone else who would listen “If the Republicans had nominated a decent candidate, we’d have a Republican in the White House for the next four years.” I felt that Clinton was so marred by scandal that only someone who was obviously unqualified could lose to her. I was wrong. She was so marred by scandal that even someone who was obviously unqualified could beat her. I wonder how many Democrats this morning are saying “If we had nominated a decent candidate, we’d have a Democrat in the White House for the next four years.”

That’s one of the two things that I haven’t heard the Wednesday morning experts talk about as a factor in her defeat—her trail of scandal from Whitewater through Benghazi to the email fiasco with stop-offs at other scandals too numerous to mention. My fear of a Trump presidency almost persuaded me to vote for her, but her record of scandal was too great and I just couldn’t bring myself to do it.

Another major factor that nobody seems to be talking about is the Second Amendment. I’m not talking about the NRA—I’m talking about the Second Amendment. The media demonizes the NRA as a powerful lobby which whips up public opposition to gun control. The NRA isn’t creating that public sentiment, it’s getting out in front of an already-existing public sentiment. The public knows that Clinton, like many “gun control” advocates, doesn’t want gun control, she wants gun elimination. If she had been elected president and gotten the opportunity to appoint four Supreme Court Justices, that is quite possibly what we would have gotten—gun elimination along the lines of Australia and England. The specter of that possibility almost, but not quite, persuaded me to vote for Trump.

So now, because the Democrats fielded such a flawed nominee, we have the least-qualified President-elect in history. He can, however, become one of the most successful Presidents of the Twenty-First Century if he does two things: (1) He must gather around himself a cadre of the most qualified people he can find to run the various executive offices, and (2) he must get out of their way and let them run the country. It would be nice if Trump assumed as great a role in running the United States government as Queen Elizabeth takes in running the United Kingdom's government. He could show up for ribbon-cuttings and other public ceremonies while people who knew what they were doing actually ran the country.

PRAIRIE DEFENDER: THE MURDER TRIALS OF ABRAHAM LINCOLN

My next book is a survey of the criminal trial practice of Abraham Lincoln which focuses on the homicide cases which he both prosecuted and defended. The book is now in the copy editing stage, and it should be published sometime next year. Southern Illinois University Press is already taking pre-publication orders for it. It's also being sold on Amazon and Barnes & Noble.

As a sort of a preview of the book, here is the annotated table of contents:

TABLE OF CONTENTS: 

PRAIRIE DEFENDER: THE MURDER TRIALS OF ABRAHAM LINCOLN

INTRO: THE LEGEND OF LINCOLN THE LAWYER:
Discusses the commonly told stories about Lincoln as a practicing lawyer, roughly dividing them into two types: "Lincolnolatry," which portrays Lincoln as a saintly lawyer who never raised technical defenses and could not defend guilty clients; and "Lincolnoclasm," which portrays him as an unethical legal hack with marginal lawyerly skills.  Also discusses the commonly  held belief that Lincoln was not an accomplished criminal trial lawyer.

CH. 1: PEOPLE versus HENRY B. TRUETT, October 13, 1838:
 In his first murder case, which was prosecuted by Stephen A. Douglas, the defense faces the daunting task of trying to neutralize an almost open-and-shut case for the prosecution. Lincoln is trusted by his far more experienced co-counsel to give the summation for the defense. He talks the jury into acquitting.

CH. 2: PEOPLE versus WILLIAM FRAIM, April 23, 1839:
William Fraim stabs a man to death because the man blew cigar smoke in his face. Lincoln is appointed to represent him, loses the case, and Fraim is hanged despite Lincoln's efforts to have the case dismissed on a technicality.

CH. 3: PEOPLE versus SPENCER TURNER, May 23, 1840:
Lincoln teams with Stephen A. Douglas to successfully defend a man on a charge of murder and has to sue him to collect his attorney’s fee.

CH. 4: PEOPLE versus ARCHIBALD AND WILLIAM TRAILOR, June 18, 1841:
In a case which remains a mystery to this day, Lincoln defends two brothers accused of murder and proves they are not guilty by proving (much to his clients’ surprise) that the victim is not dead. Lincoln again has to sue to collect his fee. He later writes an article about the case entitled “Remarkable Case of Arrest for Murder.”

CH. 5: VARIOUS CRIMINAL CASES, 1845-1846:
Discusses a number of cases for which very little evidence has survived.
 
CH. 6: PEOPLE versus JAMES AND GEORGE DENTON, June 12, 1846:
Lincoln is retained to assist the prosecution in an axe murder. The first trial results in a hung jury, and the second results in an acquittal. This trial is cited as evidence of Lincoln’s inability to prosecute. The chapter investigates whether this case really supports the claim that Lincoln was not a good prosecutor.

CH. 7: VARIOUS CRIMINAL CASES, 1850-1853:
Discussion of more cases for which very little evidence survives.

CH. 8: PEOPLE versus MOSES LOE, May 19, 1853:
Loe waylays Gray, knocks him to the ground with a club, and then stabs him in the throat. It’s an open and shut case of murder. Through some adroit pretrial maneuvering and skillful trial work Lincoln is able to obtain a manslaughter conviction, which courtroom observers count as a loss for the prosecution.

CH. 9: PEOPLE versus DAVID LONGNECKER, June 3, 1856:
Longnecker, a lawyer, stabs a former client to death in an argument over unpaid legal fees. He is indicted and tried for murder, and the jury hangs. When the case comes up for retrial, Lincoln has joined the defense team. The jury hangs again. Lincoln writes and circulates a petition asking the prosecutor to drop the charges. It is signed by 14 members of the bar. The prosecutor dismisses the case.

CH. 10: LINCOLN'S PARDON PRACTICE:
Discusses Lincoln’s very active and successful practice in obtaining pardons for his clients. Pays particular attention to the case of George High, where Lincoln obtained a pardon for the leader of the Redwood Gang, a gang of horse thieves which engaged in interstate trafficking in stolen horses and used classic organized crime tactics. Attempts to understand how Lincoln could have associated himself with efforts to pardon such an unrepentant and unworthy person as George High.

CH. 11: PEOPLE versus JANE AND THEODORE ANDERSON, November 28, 1856:
Lincoln turns down an offer of $200 to prosecute a poisoning case and accepts a $75 fee to defend it. In a sensational, high-profile case Lincoln obtains an acquittal.

CH. 12: PEOPLE versus ISAAC WYANT, April 4, 1857:
Lincoln prosecutes one of the first cases in U.S. jurisprudence where the insanity defense is successfully interposed. This is another case cited as authority for the proposition that he was not a good prosecutor. We investigate the validity of charges that Lincoln botched the prosecution.

CH. 13: PEOPLE versus JOHN BANTZHOUSE, October 2, 1857:
Lincoln's client is freed when a murder indictment is dismissed on a technicality, and he flees the jurisdiction before the prosecutor can obtain another indictment. This case is often cited as an example of Lincoln's use of underhanded tactics. We investigate whether Lincoln engaged in improper conduct in the case.

CH. 14: PEOPLE versus MELISSA GOINGS, October 10, 1857:
Lincoln defends a woman charged with killing her husband. She disappears from the courthouse during a recess in the proceedings. When asked where she was, Lincoln is supposed to have said “She asked me where she could get a drink of water, and I told her there was some mighty good water in Tennessee.” Did he advise his client to flee the jurisdiction? Could this possibly have happened? We investigate the likelihood of this incident actually happening. If it did happen, what does this say about Lincoln’s ethics?

CH. 15: PEOPLE versus DUFF ARMSTRONG, May 7, 1858:
We give an outline sketch of Lincoln’s famous Almanac Trial, discussing certain aspects of the case not covered in Abraham Lincoln's Most Famous Case: The Almanac Trial. 

CH. 16: PEOPLE versus TOM PATTERSON, April 21, 1859:
This is the case which is most often cited for the proposition that Lincoln could not defend a guilty client. Lincoln supposedly decided midway through the trial that his client was guilty and refused to participate further in the defense. We examine the evidence that Lincoln quit in the middle of the case and weigh it against conflicting evidence that he did no such thing.

CH. 17: PEOPLE versus PEACHY QUINN HARRISON, September 3, 1859:
Lincoln defends the grandson of his old political rival Peter Cartwright against a charge of murdering a former law student of Lincoln’s. Some suggestion has been made that Lincoln used questionable tactics to introduce inadmissible evidence and free a murderer. We investigate this charge to determine its merits.

CH. 18: THE LEGACY OF LINCOLN THE LAWYER:
We assess the Lincoln shown by the historical record against the Lincoln of the Lincolnolators and the Lincoln of the Lincolnoclasts.

BIG STICK versus BIG MOUTH

In a January 26, 1900 letter to Henry L. Sprague, Theodore Roosevelt penned the immortal words “Speak softly and carry a big stick; you will go far.” In the popular memory that saying has transformed to “Walk softly and carry a big stick,” but the core meaning remains the same—be strong, but don’t shoot your mouth off about it—a lesson which seems to have been lost on the current crop of professional athletes and politicians. 

The lesson also seems to be lost on our current crop of Presidential candidates, especially the Republican nominee, who seems to have reversed the maxim to “Bluster loudly and shoot off a big mouth,” as evidenced by his latest statements about military strategy: “Wouldn’t it be nice if we attacked first, and talked about our great victory later?” Perhaps. But publicly suggesting such a stratagem is irresponsible.

Of course, Trump isn’t the only one who speaks loudly and carries a twig. I remember back in 2011 when our current president declared “Assad must go!” And then he began to flog Assad with his twig. Five years later Assad has gone nowhere and Russia threatens to shoot our planes down if we intervene in Syria. Putin feels perfectly safe in making such a threat because of the multi-year record of courageous resolve that Obama has compiled in the Middle East.

And then we have “What Difference Does It Make” Clinton, who claims great knowledge of international affairs but seems to have displayed neither great courage nor good judgment in conducting them. Where can America find a leader with the courage of a Teddy Roosevelt when one is so desperately needed?

POSITIVE FEEDBACK ON "THE LINDBERGH KIDNAPPING CASE: A CRITICAL ANALYSIS OF THE TRIAL OF BRUNO RICHARD HAUPTMANN"

It's always nice when you get some positive feedback on a project which you've sweated blood to complete. Jim and I got our first Amazon review today, and the reader seemed to like the book. 

MY ACCIDENTAL LITERARY CAREER

On the publication of my seventh (or is it my sixth) book, I got to thinking back over my accidental literary career, how it got started, and how it has progressed. I’d always had a hankering to become a published author, but never thought I'd actually do it. Then I retired from the State Attorney’s Office and things began to fall into place. 

[1] Prosecution Principles: A Clinical Handbook, West Group, St. Paul, MN, 2007.

When I started as a legal skills professor at the University of Florida College of Law, I couldn’t find a textbook on how to be a prosecutor, so I decided to write one myself. It wasn’t hard to throw something together because I had taught a lot of continuing legal education courses on a wide variety of subjects and I had written brief monographs for each subject. It was no trick to simply put the monographs together in the order I wanted to cover the subjects in class, and I had a textbook for my first semester. I made a pdf of the book and gave students free copies of the text. I’m almost never satisfied with something I make, and I keep going back and tinkering with it until I get it as near perfect (for me) as I can. Each semester I improved the textbook. One fine day a representative of West Publishing was giving us a refresher course on Westlaw, the computer research software. During a break, I told her about my plight in being unable to find a textbook and my solution. She said that West might be interested in publishing the book if it were aimed at a national audience. I told her I could certainly rewrite the book and make it less Florida-centric. And so, completely by accident, I got my first book published.

[2] The Last Murder: The Investigation, Prosecution, and Execution of Ted Bundy, Praeger, 2011.

Ever since guilty verdict in the Ted Bundy case, people have been asking me “Why don’t you write a book about the case?” I could write several thousand words on why I didn’t immediately try to write something about the case, but I won’t. I’ll just give two reasons: (1) I felt it was not proper to write about the case while it was still in litigation. (2) I needed to put a few decades between me and the crime before I could bring myself to write anything. I purposely set out to write a book that wouldn’t have a lot of commercial appeal. I wasn’t going to write a lurid, sensational penny-dreadful style book like most of the stuff that is written in the “true crime” genre. I wanted to write an antiseptic, professional analysis of the investigation and prosecution. Despite my best efforts to make the book unmarketable it sold fairly well. The style I adopted for The Last Murder would be the style of every subsequent book I’ve written. Academic, scholarly, and difficult to read unless you really want to learn something about the subject.

[3] Cross-Examination Handbook: Persuasion, Strategies, and Techniques, 1^st ed., Wolters-Kluwer, 2011. (co-author). 

I hadn’t been practicing law long before I began to build a reputation as a pretty fair cross-examiner. I was often asked to teach on the subject of cross-examination at continuing legal education courses. (As a matter of fact, I’m going to be lecturing at a CLE on cross-examination in December). I wrote a monograph that I used in connection with my cross-examination lectures, and over the years I tinkered with it. More for my own amusement than with any thought of publication, I wrote a full-length book on the subject. It must have gone through 20-25 revisions. About the time I retired, I was talking to my good friend Ron Clark, Distinguished Practitioner in Residence at Seattle Law School, and he mentioned he was preparing to write a book on cross-examination. I told him I had already written one, and he wanted to read it. I sent it to him, and he invited me to co-author the cross-examination book with him. I said “Why not.” We used some of my work from my unpublished manuscript in Cross-Examination Handbook, but Cross-Examination Handbook is definitely Ron Clark’s book, I'm just a helper.

[4] The Case Against Christ: A Critique of the Prosecution of Jesus, Cambridge Scholars Publishing, 2012.

When The Last Murder came out someone asked me what I was going to write next. Without thinking I said “I think I’m going to write about the prosecution of Jesus.” I don’t know where that came from. I was surprised when I heard myself say the words, but I got to thinking that would be a very good project. I had been engaged in intense study of the New Testament since college, and I had two three-ring binders full of notes on the Gospels. The Case Against Christ turned out to be the hardest book to write of any of the books I have written. As I understand it, publishers expect fiction writers to provide them with completed manuscripts when they’re pitching a book; non-fiction writers give publishers proposals for unwritten books or books in progress. You send the publisher a description of your project, a sample chapter or two, and an annotated table of contents. If they like the book, they’ll give you a contract and give you direction in how they want you to finish the book. Publishers kept rejecting The Case Against Christ, and some of them were downright nasty about it. I took their critiques and rewrote, and rewrote, and rewrote. I lost track of how many rejections I got, but it was more than two dozen. I kept count of the number of drafts—48.  I finally found a publisher, and they seem to have a much higher opinion of the book’s worth than I do—they’re charging $75 a copy for it. This book turned out to be my biggest disappointment. It’s too dry. Chapters 3-6 should be Appendices A-C. It’s written for too small an audience. It’s formatted like a 19^th Century Bible study book rather than a modern book. I could go on, but I won’t. I got my son John (who is a lawyer) to read the manuscript, and his assessment summed the book up quite well, I think. He said “The five people who read the book will really enjoy it.” One of these days, I’m going to revisit the trial of Jesus and write a more accessible (and affordable) account.

[5] Abraham Lincoln’s Most Famous Case: The Almanac Trial, Praeger, 2014.

The Almanac Trial was far and away the one that I had the most fun writing up to that point in my writing career. By the time I started writing the book, I was beginning to think that I needed write more like the newly emerging genre of “creative nonfiction” than the dry genre of academia. I had a contract to write the book in no time, and I tried hard to be more of a storyteller and less of a dry lecturer. It worked in some places and in other places it didn’t. The critique I got from my daughter Laura was that I spent too much time talking about how I figured out what happened. I felt like I had to do it, though, because some of the things I was saying were so contrary to the conventional wisdom about the Almanac Trial.

  

[6] Cross-Examination Handbook: Persuasion, Strategies, and Techniques, 2^nd ed., Wolters-Kluwer, 2014. (co-author).

You might think I’m cheating by counting a second edition as another book, but we put a lot of work into the rewrite.

[7] The Lindbergh Kidnapping Case: A Critical Analysis of the Trial of Bruno Richard Hauptmann, 2016. (co-author).

When I was still with the State Attorney’s Office, my good friend Jim Dedman, who was with the National College of District Attorneys, asked me if I would like to write a chapter in a collaborative book he wanted to edit about the Lindbergh Kidnapping Case. I had written chapters for a couple of law books already, and I was game to write another one, so I agreed. Jim was busy and I was busy, and things never quite got off the ground until Jim retired, and the project morphed into just Jim and me writing the book. This book was the second-hardest to write, mainly because I knew absolutely nothing about the Lindbergh case before we began and the volume of material on the case is gigantic. I’m still no expert on the shenanigans that went on outside the courtroom, but I’m pretty well versed in the evidence now.

[8] Prairie Defender: The Murder Trials of Abraham Lincoln, in prepublication with Southern Illinois University Press. Projected publication date: late 2017.

To date, this is my favorite book, and I think it is going to be the most marketable. Of all the books I have written it is the least “academic.” Scholarly books have to go through a peer review process where anonymous experts read the book and critique it. You have to have a thick skin to get through the process. One of the reviewers barbecued me because my language wasn’t scholarly enough—it sounded like I was writing mystery stories rather than an academic text. My response to that was “Good.” He didn’t think I had enough footnotes, either. I added some footnotes, but I didn’t change my language. The book is still written in plain English, not “Academian.” I can hardly wait for the publication date. 

[9] Six Capsules: Poisoned Innocence (tentative title, 70,000 words written so far.

When we were finishing up The Lindbergh Kidnapping Case Jim asked me what I was going to write next, and I told him I didn’t know. Jim said “Why don’t you write about the Carlyle Harris case?” Not many people know anything about Carlyle Harris, but back at the end of the 19^th Century, he was New York City’s answer to Ted Bundy—a handsome, articulate, charismatic medical student charged with the murder of a beautiful young girl. The case made headlines all around the nation, and it made the reputation of Francis L. Wellman, author of The Art of Cross-Examination. I read The Art of Cross-Examination when I was a senior in law school, and I read it about once every three months for the first two years I practiced law. There is a chapter in the book on the Harris case, so I was familiar with the case to that extent, but I wasn’t aware of all the bizarre goings-on surrounding the case. I dug into the facts a little, and I got hooked. I have written the book all the way through to the verdict of guilty and the appellate opinion affirming the conviction, and I’ve got about three more chapters to go. The case really gets bizarre after the Court of Appeals affirms the conviction. I haven’t started shopping the book around to publishers yet—I’m actually thinking about self-publishing this one. I want to publish a book in the price range of $15-$25. Well, we’ll just see what happens. 

[10] Who Knows? 

Where I’m going to go after Six Capsules is anybody’s guess. I do know one thing. As long as I can, I’m going to keep on writing. I’m never going to be on the New York Times bestseller list, but I’m going to do something that I really enjoy and something that I think is really worthwhile.