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.


28 June 2010

Senator Byrd

Senator Byrd was in Congress my entire life. Writers are falling over one another in the flowery-prose competition today.

Simply put, Senator Byrd's death is a great loss to the United States and to West Virginia. It is also a great personal loss to a great many West Virginians.

He started with nothing. He never became money-rich in his service to the people.

At least he is now reunited with his beloved Erma.

11 June 2010

Helen Thomas and the New Challenge: Can My God Beat Up Your God?

(Portion of post title shamelessly stolen from Pastor Josh Patty)

Helen Thomas has reported the White House beat since Dwight Eisenhower was in office. She shows her age and, obviously, it’s about time for her to retire. On 27 May 2010, she appeared at the Jewish Heritage Celebration at the White House. Out on the sidewalk, Rabbi David Nesenoff of RabbiLive.Com stuck a camera in her face for an impromptu chat. The transcript follows:

Nesenoff: Any comments on Israel? We're asking everybody today--

Thomas: Tell them to get the hell out of Palestine.

Nesenoff: Ooh. Any better comments? [Does "better" imply "gotcha"??]

Thomas: Remember, these people are occupied, and it's their land, not German and not Polish.

Nesenoff: So where should they go? What should they do?

Thomas: They should go home.

Nesenoff: Where is home?

Thomas: Poland. Germany.

Nesenoff: So you're saying the Jews should go back to Poland and Germany?

Thomas: And America, and everywhere else

The interview took less than one minute by the clock. And in that time, she and insulted the Jews in the State of Israel, proving that she is an anti-Semite, and an all round nasty and very undeserving human being. The kindest things which have been said about her are that she should retire immediately and the little nametag screwed on her chair in the White House press room should be removed. We cannot tolerate disrespect of Israel.

Israel, formally created in 1948, occupies its borders by virtue of conquest. In this case it was moving in and conducting what was partially a guerrilla war. (The British called some of it terrorism at the time, but that’s the nature of guerilla warfare.) The primary difference Israel acquired its territory most other nations doing so is that the Israelis did it more recently. In 1967 and again in 1973, neighboring (Muslim culture) states went to war against Israel and Israel opened a can of whoop-ass on them, making large territorial gains in the process. The Israeli war machine was then and is now fantastically funded and gloriously equipped by the United States, and it is unwavering American doctrine that Israel is our friend in the Middle East and is a strong counterweight to the Arab/Islamic terrorist states and thus some sort of guarantor of peace in the region. No kidding, that’s the doctrine.

Like nearly all "the answer is easy" responses, Thomas' response was simplistic nonsense. Sorry, Helen, you could have helped God make the damn place and it still would be simplistic nonsense. We are all inheritors of invaders of some sort. Usually, we call them "explorers" or "bold discoverors," although sometimes we adopt some weird self-loathing and assign non-existent motives to people long dead in order to suffer angst which somehow satisfies our need for drama. (Yes, the Europeans brought the smallpox virus. No, it wasn't intentional. Yes, there is a record of the British sending blankets from smallpox patients to Indians. Once. It was not genocide. It was we have more people and we are much better armed and ain't life a bitch, which is a theme that has been repeated rather often in human history.) I live where pre-Columbian Indians whose self-designation we don't know were dispossessed by others, principally Shawnee, who were in turn dispossessed by mostly English-descended poor people looking for land, who acquired legal title, through which I now claim. I'm not giving stuff back to the Shawnee. On the other hand, I haven't invaded Pennsylvania lately because that would be uncivilized.

The Israelis PR mask slipped some when the annexation of Palestinian occupied areas got into high gear. While it was occupation by force, it wasn’t much opposed because the Palestinians as a society are economically poor and militarily nil. All the Israelis needed were a few tanks, a few bulldozers, and a whole lot of fencing material. They forced Palestinians out of their homes in many instances with near zero notice, bulldozed the homes, and moved Israeli citizens into new housing on those sites. Some of the destroyed structures were at least a century old. Lacking an army, the Palestinians also already used guerrilla/terrorist tactics, mainly bombing, so Israel can always point to the cowardly bombers as justification for moving in.

Not a lot of people in the United States are bothered by this. Not only is Israel that counterweight, Americans have always disliked Muslims. They’re not the ones who killed our Lord (that was the Jews, but it was a long time ago and we ignore that) (don’t be an idiot, that was sarcasm) there is also some sort of Biblical interpretation that says we need a State of Israel in good shape to set up the end times for the second coming of Christ. Whatever the reason, we shovel Israel money like coal into the boiler of a steam engine and if they do something outrageous we smile, nod, and pull our forelocks. We ignore the fact that they have nuclear weapons secretly developed (although it’s a pretty open secret that they really want their neighbors to know), forgave them for an obviously deliberate attack on the USS Liberty by air and sea which killed 34 United States sailors and injured 174. We also tolerate the Israel lobby as customers in that prettiest whorehouse in America, the U.S. Capitol.) Not that that’s so unusual.

The pundits applaud Walt Whitman High School in Bethesda, Maryland (an upscale upscale DC suburb) for withdrawing the invitation for Helen Thomas to speak at the senior class graduation. Of course, the school could do that exercising somebody’s First Amendment right, although it’s not clear how the decision was made. And that is one hell of a lesson for high school kids. Let’s take a highly respected journalist who knows more about American government than anyone most of those kids will ever meet and refuse to hear any of her words about anything because she has an opinion contrary to an American shibboleth. Great job letting kids model independent thinking, huh?

And in the meantime, while we fiddle around with censoring opinions, the Middle East remains that Ultimate Fighting Challenge Octagonal Ring where everybody plays “My God Can Beat Up Your God,” with the assistance of the latest in projectiles, explosives, noxious chemicals and fissionables. We don’t hear from people of goodwill in the Middle East, because the true believers will kill them. Ask Sadat. (Muslim true believers.) Ask Begin. ( Jewish true believers.)

(Note: I would particularly welcome the views of Preacher Joel, Pastor Josh and Parson Jim, all of whom are religious leaders & accomplished scholars and men of good will who I think disagree with me on this issue. Disagree. First Amendment. Marketplace of Ideas. Got it?)

Pippa passes.


08 June 2010


It used to be that newspapers ran “fillers,” little one or two paragraph items to fill up what would otherwise be white space. I assume that the use of computers for composing the pages makes that unnecessary now, but I’m not sure. In any event, some filler-type material has been sticking in odd places on the hard drive here at No. 3:

I saw some video of a trendy nightclub full of beautiful people on the news. I wondered: Come sunrise, do any of those people DO anything useful that justifies the oxygen they breathe?

Once everyone is wearing the bright lime yellow shirts, will highway workers wear black to stand out and be noticed?

On Le Tube d’ Boob, there’s an ad for a “neckline slimmer,” a piece of exercise equipment which “targets the muscles of the neck and jaw to create a firmer, younger-looking you,” and so forth. The secret? The devise uses “resistance coil technology.” Translation? It has a spring in it.

Pointed observation: In the barber shop, it’s impolite to leave the toilet seat down.

“Some guys are born with the idea in his head that they can automatically drive fast, make women happy, and shoot a gun just based on his gender.” Not the greatest grammar, but true. (From Introduction to Firearms and Their Usage in Self Defense, by David Nash)

Seen on a sign at a Tea Party rally: No Socialized Anything!
I do understand that the Health Care “Reform” (see below) is castigated as “socialized medicine,” which invokes the old “communist” images. (Insofar as it restricts choice of providers, they’re right, although PPO’s and HMO’s have gone a long way down that road already.) Sorry to say, we are already heavily socialized. We have socialized highways. Socialized police and fire departments. Socialized municipal water systems. You get the drift.

And reform? I’ve been looking on WestLaw to find a quote from an opinion by my friend, former Justice Richard Neely, when he was on the West Virginia Supreme Court. I can’t find it, so I called Richard and he can’t remember where it was, either. (We did have a delightful chat - lots of people really disliked Richard because he always told the truth as he saw it. I always enjoyed raised-voice arguments with him.) The comment was about the Judical Reform Amendment and it was something to the effect that if the Legislature wanted to kill all women over 60, they’d call it the Grandmother Improvement Plan. (When can you recall ANY legislation which had ANY bad effect having a name which admitted the possibility of that effect?)

And in honor of my friend and brother Oce Smith, now returned to the inked presses of the traditional Fourth Estate, I bid you: Mizpah!