Month: February 2017

During my career I’ve seen a fair number of, what I refer to as, “bad gene pools.”

In the two decades I spent as a criminal defense lawyer, I represented a number of defendants who seemed genetically unable to stay out of trouble.

During the almost two decades I spent as a judge in county court, I encountered the children and even grandchildren of people that I had represented early in my career.

Recently, however, I have become a believer in the theory that there is a “messy” gene.

I clearly possess such a gene.

I can live and work in the messiest, chaotic conditions.

At least one of my siblings, my brother Chuck, possessed it at one time. I can still recall sharing a bedroom with him and every Saturday morning my mother would pound on the door and demand that we clean our room. Chuck would lean against the door, holding it shut until she gave up in frustration and went away.

When I was in elementary school one of the nuns made me bring my father to school so she could show him how messy my desk was.

There was nothing more terrifying at the time than having to bring my father to school.

He came to the classroom, looked at the desk and told me to try and keep it neater.

I realized later that he had given me a pass because he realized I had inherited the gene from him.

Once, when I was in college at the University of Tennessee, my younger sister Jane came to visit. She was in the apartment for about half an hour, when she said, “Don’t you think you could have cleaned a little bit before I got here?’

“We’ve been cleaning for two weeks,” I replied. She seemed to take it in stride and we had a nice visit.

One of my earliest clients recalled my cubicle at the legal aid society. “You had these two huge piles of files several feet high on your desk,’ he told me. “I was always amazed that you never lost anything. You’d reach into the pile and pull out whatever we needed.”

That, of course, was the trick.

When I was in private practice, my law partner, Chris Wiles declared that I couldn’t buy a sofa for my office “because you’ll just pile things on it.” Eventually, he relented.

Two weeks after it was delivered, it was piled high.

Once while interviewing a prospective client, he looked at the several hundred pink telephone messages scattered across the floor of my office. At the end of the interview, he said to me, “I’d really like to have you represent me but I have one question. Did you call any of these people back?” “Most of them,” I answered.

There was the occasional puzzling moment, when I would open a client’s file and the client would give me a quizzical look about the shoe print that was on a letter in the file. For the most part, the gene didn’t interfere with my practice.

The gene manifested itself during the nineteen years I was in County Court.

My friend and colleague, Bill Walsh, was the opposite. He was a true neat freak. I think it was a carryover from his military career. There was a certain Felix and Oscar quality to our friendship.

In his final year on the bench, he said to me, “You should move into my office when I leave, it’s larger.”

“Are you kidding me,” I replied, “I’d have to run for another term just to get packed up for the move.” I stayed where I was.

Every couple of years, my staff would organize everything while I was on vacation. For months, I couldn’t find anything and was afraid to look. At the end, I started packing about six months before my retirement date. I just barely made it.

Last weekend my four-year-old granddaughter was out for dinner with my daughter, Meghan.

“I’d like to see my room,” she announced. “Her room” has the closets and bureaus where my clothes are kept.

Before she and Meghan went down to it, I forewarned, “It’s kind of messy.”

They disappeared for about ten minutes. When she came back up, she marched over to me, looked me in the eye and hissed, “Clean it up!”

Over dinner, she announced that she would like to come out for a sleepover soon.

Since those are very precious times, I’m happy to report that the room is now neat as a pin.

When I was growing up, my father would frequently remark that “telephones were to make appointments over.”

He was a City court judge for sixteen years and I think this observation was the result of his having approved wiretap applications for the various police agencies.
They were usually utilized in bookmaking cases, which he viewed as pretty harmless and were usually resolved by a guilty plea and a fine.

He might even accompany the fine with a stern warning that might be heeded until the next Super Bowl or World Series.

During my years practicing criminal law, I would often give the same advice to clients who immediately disregarded it.

One client that remembered the warning was heard to say on a wiretapped call, “my lawyer said we probably shouldn’t talk on this phone because it might be t-a-p-p-e-d.”

As I listened to that brilliant observation with him seated next to me in court, I looked over at him and said, “I-t –w-a-s.”

With the advent of cell phones, taping calls became much easier for police agencies since the cell calls weren’t being made over a telephone wire. That, however, didn’t stop my clients from having phone calls that they shouldn’t have.

As a judge I couldn’t help but be mystified by the jail inmates that would make calls from the jail to witnesses, relatives, family members and assorted other parties to discuss both past and future criminal activity only to be interrupted every few minutes by a robotic voice that reminded them that the call was being tape recorded.

As the evangelist, Billy Sunday, once observed, “God can forgive sin, but stupid is forever.”

All of these memories came flooding back to me this week as I watched Trump’s National Security Adviser, Michael Flynn’s stunning fall from grace.

Flynn’s demise is, ostensibly, the result of having lied to Vice-President Mike Pence, when he assured the Vice-President that he did not discuss the lifting of sanctions on Russia imposed by the Obama Administration for their hacking and interference in the recent Presidential election during a pre-inauguration telephone call with the Russian Ambassador to the United States.

What seems mind boggling about Flynn’s conduct is that he apparently didn’t know that America’s intelligence agencies routinely monitor and record conversations being had with and by foreign officials on unsecured telephones, despite having held the post of Director of the Defense Intelligence Agency.

Flynn’s legal problems aren’t likely to end any time soon.

It’s illegal for a private citizen, which Flynn was at the time of the telephone calls, to negotiate with a foreign government. While Flynn is unlikely to be prosecuted for that, he apparently lied to the FBI when confronted about the telephone calls.

Lying to the FBI is a felony carrying a prison term.

Trump, for his part, is not alarmed about any criminal conduct Flynn may have been engaged in.

Instead, he has asked the Justice Department to investigate and prosecute those inside the government and intelligence community that leaked the existence and content of Flynn’s telephone calls.

In Trump’s world that investigation is far more preferable than a full and complete investigation into which of his campaign officials knew about and were a party to the Russian hacking of the Democratic National Committee and Clinton Campaign e-mails in the run up to the election.

The Administration is barely a month old but mark my words, not too far down the road, someone is going to ask that famous question.

What did the President know and when did he know it?

I’m betting that Trump will not like the answer.

Seven years ago I had a complete knee replacement of my right knee.

While I’m glad that I had it done, it did change some things.

I can no longer run and kneeling has its challenges but the biggest change came in flying anywhere.

After sitting in Kennedy Airport in New York City six years ago, watching a clock tick down on my flight departure, while waiting someone to wand me, I vowed that I’d never fly to any destination that I could drive to.

I’ve followed that plan ever since then.

I tried to fly to Washington, D.C. this year and learned that TSA had not improved their screening of joint replacements one bit.

So, I’m back to driving.

I was reminded of the wisdom of this plan as I watched the implementation of Donald Trump’s Executive Order restricting travelers from seven Muslim countries from entering the United States.

The countries that were selected for the ban were curious ones. The list did not include Saudi Arabia which was the home of the majority of the 9/11 hijackers.

Indeed, it didn’t include any of the countries that these hijacker originated from.

It also didn’t include Pakistan, United Arab Emirates, Egypt, Lebanon, Kuwait or Russia, all countries that were home to all of the terrorists who committed attacks inside the United States after September 11, 2001.

It didn’t include Turkey, which for years was a gateway for ISIS fighters entering Syria.

It didn’t include Dubai, which, like Turkey is the home of a Trump Hotel.

Indeed, it didn’t include any Muslim country that has a Trump property located in it.

I’m sure that is just a coincidence.

Like most of the actions taken since the Trump Administration has taken office, the travel ban was rolled out in chaotic fashion.

Announced on a weekend, the various agencies which had to implement it were caught by surprise and had little or no guidance on who was covered under it.

Green card holders who are permanent residents were prohibited from returning home.

Scientists that had visas and were working on potential medical breakthroughs were refused entry.

In some instances the order had potentially lethal consequences in which Muslims who had aided U.S. troops during the Iraq war and the campaign against ISIS, at great peril to themselves and their family members, were turned away at foreign airports.

Reaction from Congressional leaders varied from condemnation by Senators John McCain, Lindsey Graham, Chuck Schumer, to criticism from Senate Foreign Relations Chair, Bob Corker, to silence from Majority Leader, Mitch McConnell to support for it from House Speaker Paul Ryan.

Legal challenges to the ban abounded with lawsuits being filed by opponents in cities all across the country. In the State of Washington, a federal Judge enjoined enforcement of the ban nationwide and some of those who were excluded were allowed entry into the United States.

Trump, in typical Trump fashion, lashed out at the judge, referring to him as a “so-called” judge, accusing him of putting the country in peril” and placing blame on him for any attacks that might happen.

It wasn’t the first time that Trump has gone after a judge.

During the presidential campaign he maligned the impartiality of an American born judge of Mexican descent, after he ruled against Trump in a civil suit over his ongoing fraud known as Trump University.

This past Thursday, a panel of the Ninth Circuit Court of Appeals upheld the injunction issued by the “so-called” judge, once again, prompting Trump to criticize the court for being “political” claiming that our “security is at “risk today.”

Echoes of the late Senator Joe McCarthy could be heard across the mall.

I’ve never understood the logic of Trump’s strategy of attacking judges who rule against him while the matter is still in the courts.

His own nominee for the vacant Supreme Court seat Judge Neil Gorsuch, described Trump’s attacks on the judiciary as “demoralizing” and “disheartening.”

One would think that Trump would recognize this as a signal that his strategy is not furthering his position and, perhaps, emboldening the judiciary to assert its independence and authority as a co-equal branch of government.

A reading off the 27 page opinion of the Ninth Circuit Court of Appeals upholding the injunction against Trump’s travel ban, makes it clear that the judiciary does not agree that Trump’s executive actions are unreviewable or beyond their reach.

That is truly comforting.

In a related development, the Westminster Dog Show is going to create a new category this year.

Best in Lap Dog.

Trump is going to enter Paul Ryan.

The latest nomination for a seat on the United States Supreme Court continues a process filled with ironies that started in 1987 with the nomination of Robert Bork to the court by President Ronald Reagan.

Bork was a very prolific writer who had authored countless law review articles which often espoused controversial positions on social issues, sometimes using incendiary language

Armed with this paper trail, the Senate Judiciary Committee, made up largely by Democrats, examined Bork about his views concerning the right to privacy, the Voting Rights Act, the First Amendment and censorship and other subjects. By the time the hearings ended, Bork’s views were portrayed as clearly outside the mainstream. Bork’s nomination was rejected by the Committee and the full Senate.

This started a trend in which Presidents sought nominees with little or no published academic record and who would steadfastly refuse to discuss any issue that might come before the Court. One such stealth candidate was David Souter nominated by President George H.W. Bush. While Souter had little in the way of published views, he turned out to be much more moderate than Bush or other conservatives bargained for.

The ultimate stealth candidate was Clarence Thomas, who couldn’t recall ever discussing Roe v. Wade or the topic of abortion with anyone in his whole life.

Thomas evolved into a stealth justice, asking only two questions during the quarter century that he has been on the Court.

Ask yourselves, how many people would hire a lawyer to represent them in court, who has asked two questions in court in twenty-five years?

Now days, a Supreme Court nominee provides less information than a criminal who has been given a Miranda warning.

In addition to having no views publicly expressed, the trend has been to nominate judicial candidates who are younger and younger, capable of serving on the high court for decades. Administrations of both parties have succumbed to this desire.

At age 49, Neil Gosruch is the youngest Supreme Court nominee in 25 years. We have decided to sacrifice life experience on the altar of longevity.

One of the ironies that Gorsuch’s nomination highlights, that is peculiar to Republican Administrations, is that the nominee must be an “originalist” or “textualist” in the mold of Antonin Scalia. Scalia’s approach to constitutional interpretation dictated that the Constitution had to be interpreted according to the intention of the Framers without regard to considerations that arise as society evolves.

In short, it has no more relevance to the present age than the Dead Sea Scrolls.

Gorsuch’s nomination mirrors those of John Roberts, Samuel Alito and, to a lesser extent, Clarence Thomas.

They all fit the pattern of young Republican apparatchiks, who have served in a prior administration, have left no paper trail nor willing to give any hint about what their views on the monumental modern societal issues that might come before court. Despite their youth, they all cling to a view that the Constitution must be interpreted in the light of events that occurred over two hundred years ago. No one questions their intelligence or academic credentials but it does resemble a judicial replay of the Boys from Brazil.

I remember a Supreme Court that was composed of giants like Earl Warren, William O. ’Douglas, Thurgood Marshall, John Harlan and even Lewis Powell and John Paul Stevens in later years. People who brought a wealth of experience to the court from a variety of worlds.

It reminded me of an exchange that was said to have occurred between Lyndon Johnson and Speaker of the House Sam Rayburn. Johnson was recounting the academic and business backgrounds of John F. Kennedy’s cabinet members and described them as the “best and the brightest” the nation had to offer.

Rayburn is said to have replied’ “That might be true, Lyndon, but I’d feel better if one of them had run for sheriff once.”

Now that, would be something to hope for here.