Homeland insecurity

concordmilitiaWe have changed our definition of what’s freedom.

I stand in court rooms in defense of the Accused and invoke the presumption we are all innocent including those charged.

Our government treats us, however, as if we are all presumed guilty, that we must prove otherwise, and we are all treated as suspect for the commission of some unstated possible terrorist act – without any evidence whatsoever.

We have become accustomed to being searched and radiated at airports and public buildings, though we comply reluctantly.

For years now the government, “our” government, has also been collecting every bit of information it can about who we are, what we do, what we say, where we go, what we write, our financial holdings, and with whom we associate.

Our personal information is being inhaled into the government’s mammoth data banks at the cost of our expectation and right to be let alone.

Yet, we brag our freedom is the envy of the world.

The fear of those who would govern this nation is compromising the freedom of the governed.

When 9-11 occurred, I was ashamed of the members of Congress.  Little has changed since. Continue reading

Trapped in a cave

trappedincaveThere’s a marvelous old story of imagined persons chained in place by their legs and necks since childhood staring straight ahead at a blank wall in a darkened cave deep in the earth.

They see only the reflections and shadows on that blank wall and what they see are the projections of puppets and objects passing before a bright fire but the source is hidden from their sight and knowledge atop a wall behind them.

These shades, and echoes of sound, are their only truth; they know no more.

As in every good story of captivity, we require an escape from these “unkindly” shackles, and one person does crawl up a tunnel to the sunlight above, finding it difficult to comprehend the light, still preferring the familiar shadow world below, but soon, with some difficulty, realizing the shadowy images below are false, unreal, forms of misdirection, and he feels pity for those left behind.

The intent of this allegory is obvious. We are metaphorically shackled by what we fail to question and examine and learn.

Case in point – we have a national debate that has sadly reduced for many to which presidential candidate is worse for the nation. (I have a different view about Hillary than those who see it this way.) But, in the debate of who is worse, Donald Trump is winning hands down.

It’s not just about who may win, although that is what we talk about almost 24/7.

Speaker Ryan fears he would win fewer House seats if he opposed Trump.

Senator McCain fears he can only win his Senate Primary if he supports Trump.

Many shun Trump but don’t oppose him because they want to win this congressional seat or that senate seat.

These are the shadows on our public wall that we stare at day by day. Continue reading

Equal justice for all? Not really!

supremecourtbuildingJustice is really much more unequal and arbitrary than as advertised, especially if you can’t afford to hire your own counsel.

I’ve been active in the National Association of Criminal Defense Lawyers (NACDL), served on their Board of Directors some time ago, and we described ourselves as “Liberty’s Last Champions.”

We represent those who have the resources to defend themselves and those who don’t.

Among our most worthy public defenders, years ago, was an NACDL member from Louisiana who said he couldn’t represent a client effectively, not within the bounds of ethical conduct, or the constitution, told this to the Louisiana courts, confessed that he was ineffective to represent the indigent clients that he was assigned to represent because the public defender’s office had not the resources to handle the cases, not the computer power, not the time to research the law, not the investigators to help prepare the facts of the case to determine whether a defense or a negotiated plea was the correct course. Louisiana reformed its system, and they’re going through another iteration as I write this.

But Virginia hasn’t gotten the message.

There is an outstanding lawyer who serves as a public defender in Loudoun County, is as efficient as one could possibly be, smart as could be at the law, and has a current case load of 178 cases.

Others in the public defenders office have similar caseloads.

Imagine what it takes to coordinate 178 different legal cases, to do so thoughtfully, to investigate and research them, on statutory and court regulated deadlines.

Consider also how motivated a public defender must be to overcome the fact that they are being paid, on average, $15,000 less a year than the Assistant Commonwealth Attorneys.

One of the critical phases of representation for an Accused who can’t pay for counsel is the bail that permits them to be free while the charges are pending.

We say that the Accused is innocent but we act quite the opposite way when setting bail, it appears to be about everything else, and the standard in many cases is not whether the Accused will show up, or presents a danger to himself or to others.

You should understand, when there is a bail hearing, and especially for a person who can’t afford counsel, he or she usually doesn’t come to court, they sit in a room with a tv at the Adult Detention Center, in a prison jump suit, watching and responding on a tv feed to the tinny sounding proceedings in a court room across town.

The communications at such bail hearings between a public defender and the Accused is non-existent.

You might think that the Accused receives a copy of the criminal complaint stating the charge and the brief affidavit of probable cause – why they were charged. But the Commonwealth gives the Accused as little information as possible.

Recently, I got “open file” discovery in Loudoun, meaning I get to look at “everything,” so they say, but they want me to copy it with a pen and paper, no xeroxing please, wouldn’t make available a copy, no, you can’t move that file, and, on this last go round, while looking at the file, there was a tab for a search warrant for a cell phone belonging to my client, but neither the warrant nor the supporting affidavit was in the “open file,” and I was told afterwards to get it from the court file. So much for that part about serving the Accused with a warrant when invading his 4th Amendment right to be let alone.

It is little wonder that the ACLU of Virginia recently issued a report, titled, “Unparalleled Power,” because of “events in Virginia and across the country [that] have sparked conversations about racial injustices, mental illness, the failure of the War on Drugs, and the enormous unnecessary cost of mass incarceration.”

The report charges that Commonwealth Attorneys in Virginia have “consistently resisted change,” meaning “common sense reforms,” and instead “lobbied the General Assembly to ramp up the failed war on Drugs.”

It’s a fixed game pretty much when, according to the ACLU, the Commonwealth Attorneys “have the authority to to decide how many charges a person will face at trial, and whether those charges will carry mandatory minimums.”

The ACLU doesn’t even think to suggest the judges rein in the prosecutors – as they hardly ever do.

The ACLU wrote, “prosecutors are rarely sanctioned for ethical or constitutional violations.”

Houston we have a problem but, unlike, NASA we don’t seem to have the gumption to solve it.

Sexism in America

Two great women (Hillary Clinton and Holly Flannery) and one impressed guy

Two great women (Hillary Clinton and Holly Flannery) and one impressed guy

On how far we have to go – well, we have quite a ways yet to go on respecting a woman’s dignity and right as a person to be treated as an equal.

On NPR, the next day after Secretary Hillary Clinton accepted the presidential nomination in the City of Brotherly Love, there was an on-air discussion among both men and women wondering – “Why didn’t Hillary cry?” and “Wouldn’t that have helped?”

Is a woman not perceived as human unless she sheds a tear? This semi-conscious sexism drives me crazy. What’s most distressing is that any woman would suggest another woman should cry for some calculated political effect – what I consider a disappointing form of sexist masochism.

If Hillary had felt the moment in such a way that she cried, then fine, but to suggest this as the projected and expected profile of any woman is sexist.

So yeah, I think these NPR commentators, men and women, were sexist pigs (with apologies to my pet pigs). Continue reading

Not like any other election year

donaldtrumpThere is a disconnect on a rational and emotional level with this last Republican Convention as compared to past Republican Conventions.

I’m not talking about the “not ready for prime time” gaffes, nor Melania’s plagiarism on opening night, nor the misty “Apollo Creed” convention entrance of nominee Trump, the arm-twisting rules decisions “to move things along,” nor Senator Ted Cruz’ thinly veiled pitch to the delegates to turn to Cruz himself as the Republican’s nominee in 2020 after “the Donald” crashes and burns this November.

In my life, when the Republicans chose past candidates, every one of them, even President Richard Nixon, I could see it, understand it, the Republican choice, that is, even as I disagreed with their party’s standards for choosing the nominees.

I was a kid when Dwight Eisenhower was the Republican presidential nominee. True, he hadn’t ever run for elected office, like Mr. Trump, but, besides heading up Columbia University as President, where I served time undergrad and at the law school (long after “Ike” had moved on), President Eisenhower had been a five star general in the Army and was the Supreme Commander of the Allied Forces, heading up invasions into North Africa, France and Germany. Both parties had sought to have Eisenhower head up their ticket. Donald Trump is no Dwight Eisenhower.

Ronald Reagan may have been the consummate show man but he had to be more than that to position himself for a presidential nomination. He had been the head of the Screen Actors Guild, the voice of GE, the Governor of California, and ran for President in ’68 and ’76 before sealing the deal, and winning the presidential nomination and election in 1980.

Blemishes and past disagreements aside, I have never seen a worse nominee than Donald Trump so ill-prepared to lead this nation. Continue reading

Justice in Virginia – worse than imperfect!

loudouncourtThere is this wrong-headed notion in Virginia that, if we could just get better paid criminal defense lawyers with more administrative and investigative resources, that we would have criminal justice in Virginia.

That’s just not the case.

Assuring the Accused of a decent defense in Virginia is but a small part of the failure of our so-called criminal justice system.

We are convicting innocent people in Virginia because of false eye-witness testimony, false confessions, over-eager snitches, faulty forensics, true, some bad defense lawyers, but also, and this is the worst of all, because of prosecutorial misconduct and police misconduct.

In this last category, what we often mean by misconduct is that the government is concealing or destroying evidence that is exclusively within its possession that demonstrates, or tends to demonstrate, that the Accused is innocent, or his accusers are not reliable, or the sentence excessive. Continue reading

Now Dallas

In protest of the Minnesota shooting of Philando Castile

In protest of the Minnesota shooting of Philando Castile

The rule of law is ignored.

Cops kill with impunity based seemingly, given the stats, on the race of the victim.

The system shuffles the shooting cop off stage, hides his identity, misplaces the dash board camera footage, gives us a bs song and dance that doesn’t fly, for, after all, to give one recent example, how can you justify killing a black man, Philando Castile, in Minnesota for having a busted tail light?

If Castile had been arrested for anything, had he not been killed, or if any one of us were arrested, the police would circulate a sorrowful mug shot, showing us off to severe disadvantage, and whisper “on background” to some journalist or other a brief slanderous history.

But the Castile cop is on administrative leave, traveling under the radar.

What we can expect, following Castile’s death, is that they’ll clear the officer 6 or more months later – after a “full and fair” investigation – behind closed doors – and announce the results when most have moved on to another tragic public incident.

The law fails when it lacks force and suffers from favor. Continue reading

Things fall apart

FalcolnWilliam Butler Yeats wrote that “things fall apart” and “the center cannot hold.”

By his dark and beautiful poetry, Yeats wrote what he saw and felt after the close of World War I.

Yeats described the alarming trends we find today in the too easy inclination among some citizens to redress the effects of conflict and war by isolation, intolerance and doomsday desperation.

Our political partisans fail to work together to hold the center.

This condition is not without historical precedent.

In Great Britain, the citizens voted to withdraw from the EU and only after they voted did they bother to learn what EU meant to their economic well-being and national security.

The Tory Prime Minister (PM) David Cameron couldn’t get his Labor Party opposite, Jeremy Corbyn, to join the fight to remain in the EU.

The former London Mayor, Boris Johnson, the PM’s old Eton “friend,” took up the “leave the EU” campaign in opposition.

“Light information voters” are voters too lazy to know much about what they are voting on; many EU voters, however, had “no information,” not a clue about the EU.

Yeats wrote how, “Mere anarchy is loosed upon the world,” listen here.

Public policy generated by a voter’s xenophobic intolerance is anarchy.

Yeats described how “the blood-dimmed tide is loosed, and everywhere the ceremony of innocence is drowned.”

The ceremony of sense, of comity and of tolerance fell beneath Britain’s electoral wave. Continue reading

The nation’s untreated wound

Terrorist_nation_gunsThe nation suffers an open wound that we refuse to treat even after the worst mass shooting in American history.

In Orlando, a semi-automatic assault rifle, in the hands of a soulless assassin, hurled 20 deathly shots every 9 seconds, ripping the flesh and organs of the young and defenseless with the fury and power one could hardly resist.

Innocent young men and women who tried to hide couldn’t.

In the moments before the rain of fire, they were unsuspecting, happy, having fun, dancing at a club about to close in the early morning hours, and, what sounded like fire crackers, as they couldn’t know better, was gunfire; those who were not close to an exit to escape, were stranded, shot at will, as they cowered, and, in the end, 49 would die, and another 53 would be injured or left fighting to live.

Those who ran and escaped were torn, felt guilty, for those they left behind.

This place of unholy devastation was encircled by a community of compassion while the killer continued to hunt those trapped inside.

A Mother traded anxious texts with her son, hiding inside, waiting for the police, hoping to be reunited with his Mom, until the moment he texted, “I’m gonna die.” And he did. Continue reading

The glass ceiling shatters!

Hillary Clinton – shattering the glass ceiling

Hillary Clinton – shattering the glass ceiling

Shirley Chisholm in 1972 was the first black person to announce for President, and the first woman as well.

Shirley said, “I met more discrimination as a woman than for being black. Men are men.”

Shirley faced death threats and knew she might likely fail but ran anyhow to “change the face and future of American politics.”

In 2008, two separate candidates vied to “change the face” America presents to the world.

America fulfilled part of Shirley’s prophecy in 2008 with the election of then Senator Barack Obama.

This year we are trying to meet Shirley’s second hope – to inoculate the oval office against the sexual discrimination Shirley suffered.

I’ve worked for some great women over the years who pushed against the glass ceiling and some were certainly inspired by Shirley.

What sex discrimination has been and mostly remains today is that a woman must excel, be better than a man, to hope to be treated equally.

Over the years, I’ve worked with Bella Abzug, and Liz Holtzman and Mary Sue Terry and Emilie Miller and Kathleen Kennedy Townsend and Maxine Waters and Loretta Sanchez and Nancy Pelosi. I served as Special Counsel to Rep. Patsy Mink from Hawaii and Rep. Zoe Lofgren from California.

All these women were strong, striving to make a difference, to advance individual rights, with the stamina required of women to break through the slights they suffer, like when a woman makes a point among men and women, but is not heard until a man repeats the point she made.

It’s an encouraging shift toward equal rights this year that more men found they could hear what Hillary had to say.
Continue reading