30 June 2010

Reflections on Weighing the Same as a Duck

Ducks are Apprentice Eagles?

Did you know that the news networks refer to some of the talking heads who appear on issue-specific segments as “analysts”? OK, I can live with that. That means the folks who cook at McDonald’s are chefs; drug dealers, entrepreneurs; ducks, apprentice eagles; and Pee-wee Herman an example of manhood and moral rectitude.

Of particular interest (and distress) too me are the “legal analysts.” Oh, I suppose the possibility exists that they are qualified. Most are lawyers, so I presume they’ve been to law school, and some of them even teach at law schools. Naturally, they all fit the talking head formula (handsome, pretty or dignified; aggressive attitude; sneer; and a big mouth). There seems to be a lack of those who actually have made their bones in society and particularly in the nasty trenches where the justice system must go to referee the kind of raw sewage that society spills.

I may be too harsh here - the “analyst” format and particularly the “panel” format don’t seem to lend themselves to any kind of rational or thoughtful discussion. Rational discussion, you see, lives out beyond cute soundbites with which an audience already agrees. Cheerleaders are fun, and a hearty “go team!” can stir the blood, but it hardly constitutes intelligent discourse. The talking heads talk over one another in a contest for “Most Obnoxious” and certainly the “Loudest and Most Whining Voice.” And it’s the most obnoxious, whining comments that get the heartiest feedback from the “hosts.”

Two nights ago, I was treated to such a panel of highly qualified legal analysts discussing the Joran van der Sloot prosecution in Peru. This involves the twenty-something fellow who is considered a leading suspect in the disappearance and presumed murder of a female college student in Aruba a few years ago. Now, he has been arrested for murder in Lima, Peru, again of a young woman and the news has presented a somewhat colorful description of the evidence.

Parenthetically, how come I say “somewhat colorful” when the guy is clearly guilty? Because I’m not in Peru. I wasn’t at the murder scene. I have seen small snippets of video tape together with explanations which, if true, present a strong circumstantial case. I know nothing about any other available evidence, have heard nothing from or on behalf of the defendant, and am not cocky enough or stupid enough to make an accurate assessment of guilt or innocence by divination from 8000 miles away. Premature adjudication is a nasty habit in America. Van der Sloot is in custody. We have time to make an adequate analysis (or rather the Peruvians do) before making a judgment.

The talking heads were lamenting that Van der Sloot had been released from custody in Aruba and were wondering if a similar injustice would occur in Peru. Simply impossible, said one shrieking analyst! “There is no jury!” No one paid attention to this analyst. The analyst repeated, ever more shrilly, “There is no jury to fool!” The analyst kept repeating the same sentence, louder and louder, to extol the superior justice system of Peru where a learned judge decides the fate of a defendant rather trusting his or her fate to the ignorant jury which can be so easily misled by the clever lawyer. Oh, dripped the sarcasm, what a wonderful thing it would be if America were not saddled with these silly juries and if judges could simply declare the truth as the press knows it to be.

I’m sure that kind of sentiment played well with a big part of the audience. Indeed, I bet a lot of those folks were self-styled conservatives and a good many of them were self-styled liberals. These are people who would say, “let’s not have juries.” Indeed, we hear the same tune sung in civil cases all the time whenever a jury decides “the wrong way” according to someone with enough money to do a press release. “They were fooled,” by the trial lawyer or the insurance company lawyer or the advertisers or they didn’t understand the value of money or the the issues in the trial were too complex or they were swayed by sympathy or the experts were bought off or something or something or something. Never have I heard a loser in a jury trial say, “Damn, a jury of citizens ruled against me. I wonder if they’re right?”

Seldom does any real issue have a simple answer. Seldom does one cause explained an effect, let alone a whole society of effects. Never have I see one single “fix” solve a problem or set of problems. The notion that we should “get rid of juries” should shake honest people down to their roots. Certainly, frustration is at work here. Sometimes that frustration is justified; sometimes it’s not. We have decided that we want to be as certain as we reasonably can be before we convict someone of a criminal offense. We have decided that it’s not acceptable to risk putting factually innocent people in prison and we recognize that memory and evidence may be fallible at times. At least we had made those decisions as of the time our system of justice emerged.

And since? We have, perhaps, become accustomed to a short attention span, because we have come to expect instant results. An arrest? We need a conviction, right now. Quick punishment, quick, quick, quick, and if that means a few rat droppings fall into the sausage press of Justice, that’s the way things go. I also agree with a proposition put forth by my friend former Justice Richard Neely, that we as a people have become too lazy, too stupid and too scared to take care of ourselves. If that is the case, I have to wonder if we still qualify for self-government.

We venerate “The Founders.” To most, they cannot have done wrong, although there is an element of society who hold that they did nothing but wrong. All but a precious few unrestrained modernists know how to divine “original intent” even on subjects unknown and unknowable to The Founders. The Second Amendment? It applies to modern firearms, obviously. (Don’t hassle me on that example - I conclude that the Second Amendment does apply, but that you have to think about it first.) Search of an automobile by a police officer? Elementary, the Founders were right on top of that. From every conceivable political direction, The Founders are cited as the one, the only, the perfect authority. But only when it’s convenient.

In the Declaration of Independence, Thomas Jefferson and company enumerated several reasons for the colonies to declare independence from the British king. One of the dastardly acts for which the king was excoriated was “depriving us in many cases, of the benefits of Trial by Jury.” Please note the T. in trial in the J. in jury - that’s in the original. And in that masterly plan, the Constitution of the United States, a copy of which our beloved Senator Byrd carried in his vest pocket all of his years in the Senate, the Constitutional convention preserved the right to trial by jury for all crimes. [See detour about civil cases below.] These were not new concepts. The jury was a right grudgingly granted by King John in Magna Carta and extended to all Englishmen throughout the development of the common law. The jury was the creature which saved Peter Zenger from prison for publishing a newspaper and saved some hapless British soldiers from a political hanging for the ill- named “Boston massacre.” A jury convicted Jack Ruby and Jeffrey Dahmer. A jury decided for Karen Silkwood that indissoluble plutonium doesn’t get into the urine by accident. Juries have been the ultimate control of the power of government over the individual. Without the jury, government “of the people, by the people and for the people” would be a jest.

The detour: Juries were not called upon in civil cases centuries ago. Some cases are appropriate for juries, generally those about whether one person or entity owes money to another. In the injury realm (where most of the controversy lies), the civil jury system was built by the prevalence of insurance policies. Most civil court actions, however, are what used to be called “actions in equity” where the litigants are seeking something other than money. There, it is a judge who must decide.

And some juries of runaway and award what many believe is too much money. (There are rousing articles on this, and perhaps I’ll do a me, too, one day. Or perhaps not, I’ve seen juries runaway where I wondered where in the hell they had found evidence of that much damage.) And a jury acquitted O.J. Simpson when the heaviest weight of the evidence was clearly against him. (I’ve written before that a judge who refused to take charge of the courtroom had a lot to do with that verdict.)

So what will it be? The people as a whole? Or the products of the law schools who have morphed into judges? Do not think that we would have a perfect system under judges alone, or even a better system than we have with the presence of juries. Certainly, we would have a more efficient system, for it takes little time for a single person who doesn’t have defend his or her beliefs before pronouncing them to rule. And I do not condemn judges as a system or as a group generally or even individually. Some of the finest and most honorable people I have known within the legal profession have been judges. My best friend, man and boy, was a judge. (In West Virginia, state judges are elected, and his refusal to act political led to him losing an election. To me, that’s not a bad trait for a judge.) But there is the rarity that no one likes to talk about, a judge who does not exercise self-restraint, a judge who makes snap decisions and then refuses to hear any evidence or opinion which tends to contradict those decisions. What then?

I’m no “legal analyst.” And while I’ll cop to knowing how Courts work, I don’t pretend to any higher knowledge of right and wrong. I’m content to let the people as a whole keep control of that.

Eagles: Get the Hell Out of My Duck Pond; Or Oddities of local practice

Large law firms, I understand, are supposed to be run like a large families, where everyone cooperates and works together for the good of the whole. Generally, they’re pretty good about protecting the confidentiality of the firm, so I seldom have any indication how big firms do pulling off the family thing. No matter.

I practice in Marion County. There are around 90 lawyers who actively practice in here in Marion County. A few are in local offices of the very large firms, but most are in much smaller offices. And yet, the pleasure of practice in Marion County is that the Bar as a whole does resemble a family-oriented big law firm. There is a cooperation which is the hallmark of practice here. There is a ongoing tradition of mentoring younger lawyers which passes on good, sound, effective practice even when what they’ve learned on the way to the bar is insufficient. That’s not even a criticism of the legal education system - - when I first came to the bar, I was ready to start learning how to be a lawyer, and thank God I came to Fairmont, but I wasn’t ready to be turned loose on real people with real bad problems. In Fairmont, I found older masters of the craft who were willing to teach me. There are still times that I’ll get on the phone to some other lawyer here just to make sure that I’m not on the totally wrong track about some legal issue. And one of the great pleasures of my practice is that, now and then, I’m the recipient of such calls. I don’t understand why, but I am.

Some years ago, the West Virginia Supreme Court of appeals adopted “Standards of Professional Conduct.” These standards explained dignified and polite practice. Some Courts added these standards to their local rules. The funny thing was, however, we all knew that we didn’t need those standards for the great majority of the local people, because the strongly ingrained culture here was one of polite, cooperative and professional practice. Oh, I realize that’s not the TV image. There, lawyers are supposed to be raging pricks who are successful only if they screw unto others and prevent the other side of a lawsuit from even presenting their side.

You're DUCKS, Dammit, Not Chickens, or We need a continuing education course on basic computer stuff.

In moving files around, I found that I didn’t know there was a difference between a CD and DVD, and I still don’t get this +R & -R stuff. Sounds like blood types to me. On the other hand, in talking with another lawyer a few weeks ago, I found she didn’t know that you could open multiple windows in an Internet browser. Yes, I know that is all pitiful. Don’t let your babies grow up to be electron-dumb lawyers.

Have You Received Your Personal Duck Blessing?

There was a blurb this morning in one of the many political e-mails I receive from all across the political spectrum. If someone tries to classify me by what mailing lists I’m on and what periodicals I receive, they’re going to have a difficult time figuring out who or what I am unless they posit that I’m a victim of Multiple Personality Disorder. Anyway, this was an e-mail with the tagline “Do you want to annoy an atheist?” The e-mail was plugging a book entitled The Politically Incorrect Guide to the Bible.

Where do I begin? First and foremost, why would I want to annoy an atheist? Other than being of the rather mild opinion that being annoyed is a bit unpleasant, rather like having the sniffles, and the further mild opinion that giving someone the sniffles isn’t nice, I really don’t care if an atheist is annoyed. Ditto a Methodist. Ditto a Buddhist. And the guy who charges me $2 to launder a dress shirt. And so forth.

I also wonder about the title of the book. How can a tome about the Bible be “political”? It can be high-minded and intellectual or totally silly, but “political” seems to be somewhere outside the foul lines. (Under the circumstances, I decline to refer to “left field” or “right field.”) And how can it be “incorrect.” I can understand a “politically incorrect” history. “In 1900, William Jennings Bryan was elected President of the United States.” OK, gotcha, politically incorrect. Of course, in the modern babble-lexicon, “politically incorrect” means that we are extra brave because we are victims because someone doesn’t like what we say. So if I brag that I’m about to say something “politically incorrect,” I’m really saying that I don’t have the self-confidence just to tell you what I think, I have to whine about it.

From the description of the book and e-mail, it’s clear that the author of The Politically Incorrect Guide to the Bible takes a very literal interpretation of the Christian Bible. The author self- identifies that as a part of the conservative political weltanschauung. I don’t know what he does about the many Jews who are political conservatives nor even the rabid agnostic conservatives of my acquaintance. Well, that’s his problem. I rather idly imagine that the author would find my own lack of a detailed dogma inadequate for his needs, and that’s OK, he has the same First Amendment rights I do. He can disapprove of whoever thinks whatever as strongly as he likes.

In the 10th chapter of Joshua, we find:

12Then spake Joshua to the LORD in the day when the LORD delivered up the
Amorites before the children of Israel, and he said in the sight of Israel, Sun,
stand thou still upon Gibeon; and thou, Moon, in the valley of Ajalon. 13And the
sun stood still, and the moon stayed, until the people had avenged themselves
upon their enemies. Is not this written in the book of Jasher? So the sun stood
still in the midst of heaven, and hasted not to go down about a whole day.
The language and the image are pretty and striking. In the solar system created on the model revealed by Copernicus seems to imply that the Earth’s rotation stopped and then restarted. Given the laws of physics that we refer to as Newton’s laws, that seems like a rather profligate use of energy to make not much of a point. Not that God could not pull it off, it just doesn’t seem like a very logical act. I look for meaning there which doesn’t require tera-tera joules to accomplish. I’m not sure what that is, for as a Biblical scholar, I’m definitely in the remedial class. But how believing in that literal event is “politically incorrect” or “politically relevant” or even “politically who really cares” is a stretch.

The death struggles surrounding the creation are, to me, somewhat a tempest in a teapot. I am amused about that “Creation Museum” in Kentucky where they display models of dinosaurs wearing saddles. The simple fact is, here we are. The current expression of creation is a marvelously complex universe complete with self-aware, creative, regenerating life, and concepts of emotions which seem to have no direct connection to survival by natural selection. That’s pretty neat. I accept that this is all a gift from God. Others don’t. One of us is right. And does it matter? Oh, in the scheme of things, that’s the central issue of life, the one that invigorates us or scares the hell out of us. But the truth already exists. And so we go back to the idea of arguing with an atheist. Or any other person who holds a particular religious belief pattern deeply. Listen to some of those arguments – how often does anyone change their mind? At best, it becomes a hard-fought match in the UFC octagonal ring with lots of blood, no clear winner, and the crowd cheering their favorite and asking for more, more, more. I’ve seldom heard sober people sit down and calmly chitchat about their different views. In my own church, the “orthodoxy” is somewhat more flexible than in others. One simply makes a an open profession of faith which can be as simple as affirming that one believes that “Jesus is the Christ.” You want more dogma? No problem, join a different church. Or no church. Or I don’t care.

And so, armed with the information from The Politically Incorrect Guide to the Bible, what are faithful readers supposed to do to annoy atheists? Bore them to death? Do they expect to change their minds? Or in such arguments, will people of faith decide to change our minds? I’m reading The Rage Against God: How Atheism Led Me to Faith, by Peter Hitchens (brother of well-known atheist author Christopher Hitchens) (Zondervan, 2010), and he describes his own journey back to faith as being his journey and not one imposed on him from without.

Or to be politically incorrect, do the faithful need to kill them all and let God sort them out?

Well, there is plenty of objective evidence that we are doing poorly enough with both motivations and results that we should think about our own lives before we keep riding this particular tiger.

Kindness For My Web-Footed Friends:

A book from the Three Parsec Bookshelf® to the first reader who correctly identifies the scholarly reference denoted by the title of this post.

Pippa passes.


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