Category Archives: Uncategorized

May I Remind You

I just published a long piece about the killing of George Floyd by the Minneapolis police. As I wrote it, another story kept emerging in my thoughts, a true story from my distant past.

It was 1968. April 5. A nice warm spring day in Washington DC, where I worked as a newly-minted trial lawyer at the Civil Aeronautics Board. The CAB offices were in a building at Connecticut Avenue just below the Washington Hilton. My then wife worked some blocks downtown for an association. Typical Washington jobs.

We got the news the previous day that Martin Luther King, Jr. had been assassinated in Memphis, the city where I grew up from age 2 to age 17 when I left for college. Washington was in flames, we were told, and the government was closing. I made my way downtown, leaving my car, a Volkswagen, parked on a sidewalk and walked to my wife’s office. Everyone was confused. There was no internet, no Google, no good way to find out “breaking news” that is now a staple of our daily existence. The rioting had started the evening before but there was no up-to-the-minute news. So, we watched the scene unfolding outside at a major downtown intersection. Gridlock. Total gridlock. No one moving. Horns honking. People shouting at each other from their cars. Panic.

I took a glass of scotch and walked down to the middle of the intersection, threading my way carefully through the cars. I wore my customary work clothes, a vested suit, as was common in those days. I put my drink down in the dead center of the intersection and became a traffic cop. I began “ordering” cars to wait before entering the intersection. Most drivers, though not all, obeyed, and a semblance of order began to emerge from the chaos.

Every so often a car would stop in passing by me, roll down the window and a frantic person, always white, would look out at me and yell “Thank you, oh thank God for you.” I didn’t know what to say except “you’re welcome.” The scene was totally surreal.

White people were fleeing the city by the tens of thousands. Some crying. I could see the smoke from the 7th Street NW and 14th Street NW corridors, just three blocks from where I stood and could smell the acrid odor. For whatever reason, I was not afraid, but fear was all around me. I suspected that those people thought the black people burning Washington were going to come after them if they didn’t get out of town quickly.

The aftermath is well known. One of the major reactive themes was, “those people are crazy because they burned their own businesses.” It was true. Many black-owned businesses in the area were savaged in the rioting. The rage was simply that – rage – and the rioters took it out on what was near them, their own businesses and even homes.

Crazy? Perhaps, but that’s what rage does. White people seem to think that rage should somehow be rational, in the way that a professional boxing match is rational – people fighting by agreement over a prize, winner-take-all. But, of course, that is not rage. That is just business. Rage is something else altogether, and we’re seeing it in Minneapolis and many other cities across the country. We should not be surprised.

My story ended quite simply and quietly. A relatively young police officer appeared out of the chaos surrounding the intersection. He was black, as were many members of the Washington police force. He walked toward me slowly, carefully. I thought, “great, reinforcements.” I looked at him and he looked at me, the anger etched in his face. He was in no mood to have a friendly chat with the white stranger doing a policeman’s job in a scene of total chaos. I don’t recall exactly what I said, but I think I tried to smile and asked if he was going to stay. He said something about taking over and I picked up my drink and backed out of the intersection. He had no time or further interest in me. I understood then and understand now why that was so.

I can still see his face. He was in control of his anger, but it was obvious how conflicted he was to have been ordered to help these hysterical, panicked white people flee the city that was burning just down the road. I suspect he came from that direction, knew what was happening but was here now to do his duty, despite his personal pain and despair.

I confess I was glad to get back inside. But I will never forget the way that young black policeman looked at me. He felt no sense of thanks for me having helped out, no empathy, and I didn’t expect otherwise. I can’t begin to imagine the depth of his suffering even as he continued to do the duty he had sworn to perform.

The coda to the story is that there were mass arrests of protestors and rioters alike. A call went out for lawyers to come downtown to the courthouse to help process and represent those huge number of detained people, many of whom were innocent of any wrongdoing. My good friend and officemate at the CAB and I decided to volunteer. We drove into Washington that evening, passing military guards on the Key Bridge. Soldiers were stationed in the doors of businesses on M Street in Georgetown. Machine gun emplacements were visible on the lawn of the White House. Ultimately, we were rejected by the administrators of the court on grounds that as federal employees we had a conflict of interest in representing individuals charged with federal crimes. We drove home. The rioting lasted for four days.

And here we are again. Fifty-two years later. Same story. Again. And again.

Déjà vu All Over Again – We’ve Learned Nothing

Minneapolis burns. Los Angeles. Memphis, Louisville. Others.

A police officer in full view of multiple people, including store surveillance cameras, calmly kills an unarmed, non-resisting person accused of trying to pass a fake $20 bill. The unarmed, non-resisting man is a big man, imposing stature, but not resisting. His hands are in cuffs behind his back. The police officer forces him to the ground on his face, or maybe he sits down on his own. Maybe he said something offensive or even threatening. So what? He is cuffed and defenseless. The officer places a knee on the man’s neck. The man complains “I can’t breathe.” Multiple times. The officer ignores him. The other three officers on the scene ignore him. Witnesses plead with the police to check the man, but they are ignored. The man stops breathing. Still the police officer sits on his neck. The man dies.

The man dies in the presence and under the complete control of FOUR ARMED POLICE OFFICERS EQUIPPED WITH PEPPER SPRAY, TASERS, CLUBS, SIDEARMS. IF the man said something threatening to the officer OR IF the man did “resist” by passively dropping to the ground, under what police procedure and training did one of the four officers to think that the appropriate response was to sit on the man’s neck until he died? Is it even conceivable that police procedure condones this practice? Anywhere in the United States?

The prosecutor goes on TV and says there is “other evidence” indicating no crime was committed. What evidence? No comment. Why, then, did the prosecutor think it was a good idea to tell everyone he already had doubts about what virtually every non-racist person on the planet believed was almost certainly a crime – the deliberate taking of a life without justification under color of authority? Again.

All four of the officers have been fired so they are not among the strike force of hundreds of police now sent to suppress the, surprise, rioting and looting that have broken out in the wake of yet another “good people on both sides” scenario. The police use tear gas, pepper spray, fire hoses, among other things, against the crowds of enraged protestors.

Many people who were silent in the immediate aftermath of the video releases that at least raised a presumption that a police officer had, for the how-manyieth-time, killed an unarmed, non-resisting black person have come out clutching their pearls over the terrible rioting and looting. Sure, there may have been a problem with the police conduct – maybe, who knows, there could be an explanation, let’s wait for all the evidence, don’t jump to conclusions –but rioting and looting? Outrageous. Taking property? Unacceptable. Must meet force with force. Law and order. Restore peace by whatever means. Call out the National Guard.

And if you’re the president of the United States, what do you do? Well, our current president calls people names, threatens to “take control” with the military and “when the looting starts, the shooting starts.” Here is part of Trump’s actual message:

These THUGS are dishonoring the memory of George Floyd, and I won’t let that happen. Just spoke to Governor Tim Walz and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts, the shooting starts. Thank you!

You don’t need a degree in linguistics to get the president’s message: “I will declare martial law and I approve of the National Guard/military shooting protesters who are rioting and looting. That’ll show ‘em who’s the boss.”

The victim here was a black man named George Floyd. His name joins the pantheon of unarmed black people killed by police in circumstances where other means of addressing the “situation” were readily available. Often the “situation” is really just that a black or brown-skinned person was involved. Involved in the sense of just being there. Despite the availability of other options, the police in these cases chose the lethal option. It’s not an accident. It’s a choice. And in virtually every case, the police are exonerated. There have been a few exceptions, but precious few.

The officer who killed George Floyd had 18 complaints on his record. One of the other four had six complaints and was involved in a settled lawsuit alleging use of excessive force among other things. https://cnn.it/2M8R3mm

All four officers in the present case have been fired. Fine, but not enough. Not even close. They will no doubt face civil suits whether or not the City of Minneapolis takes action against them. Why they are still at large is unknown and inexplicable on the known facts. Reminds us of the initial reaction of authorities in Georgia to the killing of Ahmaud Arbery. The “there is other evidence” position of the prosecutor is very close, too close, to “good people on both sides,” the president’s unsubtle endorsement of the neo-Nazis in Charlottesville. The mind boggles at the thinking behind the prosecutor making such a statement while refusing to describe the evidence. But, rest assured, he will study this case really hard and be sure the law is followed. Rest assured.

While you’re waiting for the prosecutor, think about this. What would the operative difference be if, instead of kneeling on Floyd’s neck, the policeman had rolled him over, pinning his cuffed hands under his body, sat on his chest and choked him to death with his fingers? Any real difference?

The Minnesota GOP had plenty to say about the beaches being closed due to the coronavirus pandemic, but I can’t find anything they have had to say about the killing of George Floyd. No doubt, they are “extremely concerned” that there has been violence and property loss. They likely joined the Trump-led GOP chorus of outrage at Colin Kaepernick peacefully protesting by kneeling at a football game during the playing of the National Anthem. They can’t have it both ways. Peaceful protest – Noooo! Riots and looting – Noooo! The real message, obvious to me and others, is, “don’t be black.”

As a society, if that term still applies, we appear to have learned nothing. Armed racists threaten legislators over pandemic lockdown and masking policies, and no one lifts a finger. Police are expected, and do, stand in rows while being screamed at by AR-15 carrying vigilantes complaining about their “rights.” No one is arrested. In Minneapolis, on the other hand, today’s protesters were pepper sprayed by the driver of a passing police car for no discernable reason except a “take that” attitude by an unhinged and uncontrolled police force. The officers surely know they are being filmed but they are not concerned there will be repercussions if they wantonly attack protesters.

I get that police are under a lot of stress. I support the police almost all the time, but not when unarmed black and brown people are killed and there were readily available alternatives to the use of deadly force. Police are supposedly trained and re-trained on the use of deadly force. Presumably their calm under stress is evaluated carefully before they are unleashed on the community carrying an array of weaponry, some of which can be used to kill. Or maybe not. Maybe in Minneapolis and the countless other places where these violations of human rights have occurred the police are not really trained. They are just armed and sent into the community with instructions to “keep the peace” however they choose. Is this possible?

In the George Floyd case, ironically and painfully, the police didn’t need to use anything but handcuffs to kill a man. We have learned nothing from all the prior cases. And the president of the United States just fans the flames with hostile rhetoric, showing yet again his complete unfitness to hold office. Still, the Grand Ole Party is apparently silent. They sat silently and voted to acquit Trump when he was impeached for extorting a foreign government, allowing him to withhold relevant evidence and witnesses. They sat silently while Trump’s henchman Attorney General William Barr lied and distorted the Mueller Report. They preach law and order while the president’s immigration policy separates families and leaves small children parentless, in some cases forever, locking them in cages in concentration camps.

This is but a small sample of what Republican leadership has created in America. All the racism can’t be blamed on them, but they have endorsed and facilitated it over and over. And when the police yet again kill an unarmed and defenseless black person, they sit silently until their leader speaks and incites further hatred, dividing the country even further.

How long does the white conservative establishment think the underclass which is huge and growing is going to continue to tolerate this blatant racism and discrimination? Do they not understand that when large numbers of citizens no longer feel invested in the established order and peaceful change of that order is foreclosed, they lose their connection to that society and their justified but ignored and resisted rage boils over? How long do they think this can continue without serious and violent consequences becoming the order of the day, as the unwarranted killings of unarmed black and brown people has become the order of the day?

November is coming, not soon enough, but it’s coming. The good people of this country had better put an end to the Republican leadership that has brought us to this place. The consequences of failure are too grim to imagine, but it seems certain that the failing light of democracy that, at least in principle, was the founding dream and aspiration of this country will be extinguished if change is not achieved. That sounds apocalyptic, I know, but don’t believe it can’t happen here. It can and it will, unless we stop it. ENOUGH!

 

 

Pandemic Influences on Higher Education Choices

My good friend and professional colleague, Kevin Mitchell, founded the Business Travel Coalition (http://www.businesstravelcoalition.com/) many years ago and publishes a subscription based daily newsletter of important reporting on the entire travel business. The newsletter, now called tVillage Intelligencer, is seen by thousands around the world.

Kevin is prolific writer and thinker and has published a thoughtful and, as always, well-crafted essay addressing the implications of the pandemic on the decisions being faced by many families and young people whether to go to college or pursue other options. I responded to the piece and, with Kevin’s permission, am republishing the exchange here (without the graphics; his original essay can be seen at  https://publicate.it/p/KqXmdg152169):

A Pandemic Consequence: The Questioning of Higher Education

No idle Memorial Day weekend exercise for some

This weekend as Americans think about and honor the more than one million patriots who gave their precious lives for the promise of America, there is even more on the minds of parents. The economic fallout of the COVID-19 (C19) pandemic is causing parents of children already in college, about to enter college or considering applying to think long and hard if such an expensive commitment is the best and only path for their children.Indeed, there is a counter-push against the American must-go-to-college mantra that is increasing in strength. I believe that like previous pandemics, C19 will accelerate many existing or latent economic and societal trends. The crisis is likely, for example, to push a lot of parents and their children to rethink the cost/benefit of a traditional college education compared with alternative paths.

Sadly, a lot of kids today go to college because all their friends do without considering whether that’s what they really want to do and if it is worth 4 years of their lives and a lot of expense, including lost wages, versus other options. For sure, some have a dream of becoming an architect, physicist, astronaut or the next Olympic track star. However, that’s different in that those young adults have strong personal life-purposes and visions. Still, for others, they want to explore new intellectual, social and cultural experiences that are important and valuable to them to better understand.

Higher education has been justifiably pedestalled as a highly valued tradition in Western and non-Western cultures for its numerous and far reaching societal benefits. My grandmother and grandfather, for example, immigrated from Ireland to America in the early 20th century and originally took jobs in Boston as a maid and policeman respectively. They were determined to put my mother and her sister through college to improve their lives. My mother graduated from Chestnut Hill College in Philadelphia in 1940 when very few women of her parents’ means were able to attend college. Both went onto long careers in education touching many thousands of lives and living the American Dream. So, I am all-in for this important tradition of higher education and its linkage to upward social mobility.

Today, however, especially against the backdrop of a C19 economic crisis, where close to 40 million Americans have so far lost jobs in a highly unsure future-looking economy, many are beginning to challenge the assumption that college is the only path on which to responsibly put their children to achieve the American Dream and a productive, fulfilling life.

It’s not just the high cost. Also at issue is the perceived uneven quality of the education itself, the totality of today’s campus experience and the enabling public policy. Many point to the financing model of higher education as a root cause of the $1.6 trillion college tuition debt-bubble that is more likely to burst during this C19 economic malaise as parents making loan payments are increasingly under financial duress. And let’s not forget the superrich buying their kids’ entry to prestigious universities; not a good look for American society or higher education! In combination, these developments reinforce some parents’ weariness and instincts that it’s time for a revalidation of assumptions. This should worry U.S. institutions of higher learning that have already seen student enrollments decline every year since 2011.

It’s fair to ask if recent graduates are better prepared to work hard, take risks and achieve success than if they had chosen to take a different path, or waited for a while until they discovered their keen interests or passions to make the best possible decisions for themselves.

Perhaps with some irony, a pandemic is once again poised to insert itself in the trajectory of higher education – which has been forever short on innovation and long on cost increases. University education was democratized for the masses as an eventual consequence of the Bubonic Plague in the 14th century wherein prior to that time those of us with European roots had ancestors some 75% of whom were serfs largely confined to their lords’ fields and heavy-handed restrictions. However, while there is something very important about the pursuit of university study that should be understood, valued and safeguarded, there is reason for healthy skepticism as well.

I graduated from St. Joseph’s University in Philadelphia in 1980 with a 4-year tuition debt of a mere $10K, which I easily paid off in 3 years. Was it worth it for me? Yes, because I learned that jobs in a big company without a degree were virtually non-existent. In my case, a bachelor’s degree in international relations apparently provided an employer with an indication of some competence and/or other positive attributes. I was offered a job by CIGNA Corp.

Beyond getting my foot in the door at CIGNA, did I secure new skills and knowledge from investing four years of my life and working full-time, year-round? Yes. Was it an even-trade for the benefit? Leaving aside that it represented the key to the CIGNA door, my answer is a resounding no. Very little of what I learned in class helped me in my career and I did not benefit from the interactions of living on campus with fellow students because I lived at home.

The university model should be fundamentally reformed. However, it should also be cherished and safeguarded while culturally celebrating the upward-mobility successes available to those in America who want to strike out with personal visions and work hard and achieve their goals without four-year college degrees. Options include self-education, job training, trade schools and technical certifications, as an example, for aircraft mechanics.

The classic American expression “self-made man” was coined in 1832 by U.S. Senator Henry Clay to acknowledge the inner promise and strength of individuals who work hard and succeed irrespective of the circumstances in which they find themselves. There are enough examples in America to fill a university library.

Born poor in Kentucky, and with a total of one year of school, self-educated Abraham Lincoln led our country through its most profound crisis ever during the American Civil War abolishing slavery and fundamentally modernizing the American economy. Lincoln pursued a path that diverged from Harvard, Yale, Princeton, Dartmouth, Penn, Haverford, Fordham and other institutions accepting students at that time.

Lincoln, instead, chose a version of distance-learning enabled by borrowed books to become a self-taught lawyer at age 25, state legislator, Member of Congress and President of the United States. With some irony, in 1862 Lincoln signed into law the Morrill Land-Grant Act enabling the creation of soon-to-become prestigious universities such as Cornell, MIT, Penn State, Rutgers, Ohio State, Texas A&M, West Virginia and the University of California.

Not such a bad path, role model or agent of change! 

Perhaps it would be counter-intuitive, but fruitful, for colleges and universities to celebrate and embrace alternative paths to four-year degrees and lifelong learning and reinvent themselves by taking a leadership role in a comprehensive national initiative to prepare future generations of Americans to be productive, highly successful citizens. Lincoln, the epitome of the self-made man, was able to appreciate accomplishment without the benefit of a college degree and, at the same time, to champion the strategic importance to our nation of expanding institutions of higher learning.As pandemics are wont to do, I am sure many Americans this Memorial Day weekend are using the reflective time to think over many long-held assumptions about important components of their lives from college, to work-life balances, to placing their parents in nursing homes.

My response:

I read with great interest your essay on the questioning of higher education as a partial result of the economic disruptions of the COVID-19 pandemic. I have been mulling this subject for a long time, inspired by some much earlier published pieces in which (1) a successful entrepreneur (one of your “self-made men”) argued that college was useless, that his son would have to make his way as an innovator, just like dad, or fail, without wasting time in college; (2) arguments were presented that the cost-benefit analysis, comparing future earning differentials for college graduates v. non-college people showed conclusively that, as you have suggested, it’s “not worth it.”

Having been blessed with a scholarship-financed liberal arts education at an Ivy League college, also with associated debt to repay, I must dissent.

You are no doubt correct that the economic destruction wrought by the pandemic will force many to rethink their ability to pay for a college education. This is but one of the many tragedies to emerge from the pandemic. But that, I suggest, is a separate issue from whether a college education is so valuable that, if the opportunity exists, it should almost always be chosen. The value is properly determined not simply by traditional “cost benefit” analysis but by a broader range of intangible considerations.

For example, an on-campus college education presents the opportunity for young people to engage with a range of intellectual and other mind-expanding stimuli in an atmosphere that, if properly run, expands understanding of how the world works. It forces students to confront different points of view and to think more deeply about hard questions about which they previously just assumed the answers. They have the opportunity to confront and understand complexity. Ultimately, they learn to think, often about subjects they had no original interest in and would never have been touched by in the absence of the “cloistered” college experience.

Viewed this way, college is not just a trade school, a place where you learn how to do something. It’s a place where you come to understand what you can and should be doing and then you move on to more advanced studies or enter the world and take up the rest through direct experience.

I do not suggest, however, that college is right or necessary for everyone. But it is right for most young people who life paths are still being sorted at the time college is an option .It is not just the ticket to superior employment – it is the essential prerequisite to the fully examined life.

I believe we are seeing now in our society the consequences of having a large population of adults who did not have this experience. The polls refer to them as the “non-college educated white people.” They tend to support Donald Trump, to revere destructive rhetoric, support anti-immigrant and anti-diversity policies, to “hate” the “other,” defined as people not like them. Their thought processes embrace ideas like “fake news” and are unable to distinguish truth from ideology. They don’t think deeply about anything because they’ve never been required to do so. They see themselves as victims and engage in much magical thinking, including attraction to conspiracy theories.

Obviously, not all non-college educated people are like that but I believe the shockingly large segment of the American population that the above does describe is in significant part a function of the lack of higher education and the exposure to “other” ideas and “other” people that such education most often provides.

It would be ideal, of course, if the United States offered both paths, so that those people who only want to learn a trade and pursue the resulting life can do so. In the past the country did have trade schools but the shifting of manufacturing to foreign sources caused job opportunities in many trades to dry up, leading to the closure of many related educational opportunities. The demand now is for computer science and related skills and while there are schools devoted largely to teaching those things, the emerging students will likely lead more rewarding lives, all aspects considered, if they also have some learning experiences in literature, history and the like.

You and I are probably not as far apart as might appear with respect to the above. Where we more seriously diverge, I suspect, is regarding the notion of the “self-made man,” for which you cite Abraham Lincoln as a stellar example of what can happen to individuals with the “inner promise and strength … who work hard and succeed irrespective of the circumstances in which they find themselves.” Lincoln certainly stands out in the pantheon of such people, but I suggest that the chances today of more “Lincolns,” or even more Steve Jobs emerging and doing great works, as opposed to simply making themselves rich with some new technology they imagined, is slimmer than ever.

That is not just a consequence of the greater complexity of today’s knowledge-demands; the system has been rigged to suppress many of the potential innovators. I wrote about this in my blog post entitled, The Larger Meaning of “Hidden Figures” https://bit.ly/2TGx172, the gist of which was expressed thus,

 As bad as slavery, Jim Crow and segregation were for the direct victims, and most of us cannot comprehend how it was to be the constant target of such practices every  day of our lives with no hope of change, the larger lesson from this movie is, I believe, the staggering cost to everyone, in the United States and everywhere, of the lost  contributions and achievements of which these practices deprived us.  And still do.

In the millions of people directly suppressed by these practices, it is a certainty that there were multitudes of people who would, in other circumstances, have become  great scientists, inventors, artists, musicians, athletes, caregivers, writers, teachers and on and on. All of us have lost forever the benefits of the achievements of those  people who never had a chance to develop into their individual potentials as human beings. The frightened people of no vision who perpetuated these practices from    America’s earliest days even to today in some places have deprived the country and the world of an immeasurable gift.

One of the most surprising aspects of that blog post, written in in early 2017, is that visitors to the blog to this day seek it out more than anything else I have written. From where I sit, there may still be some chances for so-called “self-made men” to emerge but the odds are heavily against them. And, I must say, that the term “self-made,” in my opinion, grossly understates the contribution that others made to all such people, including Abraham Lincoln properly understood.

In conclusion, having staked that position, I now declare that I agree strongly with you regarding the need for reform in our education system. Those reforms should certainly include opportunities for future “tradesmen” to learn and proceed with an honorable path through life. They should, I think, also provide for a viable economic path to and through higher education so that everyone who wants to study anything serious should be able to do so without assuming overwhelming debt that take decades to repay and have all manner of deleterious impacts on individuals, families and society at large. I readily confess I don’t know how to get to that idyllic state, but the price we pay as a society of failing at this may well be our undoing, not just as a nation-state but as a civilization.

No Way to Run a Justice System

Note: This piece is being simultaneously posted at autumninnewyork.net.

Not two years after moving to New York, the justice system turned its attention, randomly, I’m sure, to me by sending me a notice to report for jury duty. At the time, reporting would have conflicted with a business commitment, so I asked for, and received, an automatic deferral. I chose January 16 as my report date. Fate, of course, would inevitably intervene and an important business meeting was unavoidably scheduled for January 17.

That’s the beginning. When I wrote the first draft of this post, it was all minute-by-minute, blow-by-blow in the same excruciating detail as I experienced a wasted day-and-a-half of my life for no discernible purpose. Upon re-reading the draft, I realized it was boring, even to me, so I decided on another approach.

What was wrong with the process whereby I was called upon by the state to assist in the administration of justice for parties who had demanded a trial by jury, as guaranteed by law in appropriate cases? Just about everything. The process seemed like something from another time, a relic of the days when everything was done manually and the administrative process was a slave to established practice no matter how wasteful.

You are ordered to report, then after arrival in the Jury Assembly Room (452) are told that you may be there between one and three days. If you’ve already had a postponement, you can go down to Room 139 and make a pitch for further relief but if called while there you may be forced to return again for another stint. And the implication is that your chances down there are slim at best. So, I decide to take a chance and stay put. Mistake. I collect my Juror Questionnaire and fill it out. I foolishly think this is good because when the lawyers see it, they will immediately disqualify me and I can leave. Trial lawyers generally are extremely averse to having other lawyers on their juries.

I am eventually called with a group of 35 others to follow some lawyers to a courtroom where 10 are selected for voir dire, the questioning by counsel for the parties to determine if each individual can be “fair and impartial.” It is now apparent that the system is not designed for efficiently dealing with the group of prospective jurors. The lawyers are in charge now and they only collect the questionnaires from the first group of 10 prospects. They don’t know I’m here and they don’t care.

It turns out this is a personal injury case involving disputes about medical records, medical treatments, negligence and related issues. There are, we discover the next day, other lawyers in the group and a doctor as well. None will eventually serve on the jury, but it takes a full day and a half to determine that. The lawyers painstakingly, slowly, repetitively query the jury pool in groups of 10 to pick the final six jurors and two alternates. They are in no hurry and spend hours in the hallway reviewing questionnaires and negotiating over whom to select. The first group of 10 produced only 3 jurors. The second group, another 3, then a third group to get the two alternates.

I confess I was not a trial lawyer by experience, although I did litigate administrative and arbitration cases in my active legal career. Nevertheless, it did not take a lot of imagination to grasp that this process was designed for the benefit of the trial lawyers and gave little to no consideration to the jury pool that was stuck there for, potentially, three days just to settle on 8 people out of the pool of 35. And the trial itself, scheduled to start the following Tuesday, is estimated to take five days but “it could be longer if, for example, the judge has to hear motions in other matters.”

By way of example only, once a group is selected from the pool, the lawyers and all of the pool jurors in that group must return to the clerk’s office for processing out. It seems that every step in the process is calculated to consume more time and that no one, except some members of the jury pool, is an any hurry to move the process to conclusion.

On Day One, we arrive at 3:35 pm and it is finally time to question the second group of 10 prospects.

But, wait, we’d been told earlier that the stop time today was 4 pm. The attorneys inform us that since there is only 25 minutes left before the appointed end time, we’ll just knock off early. Report back tomorrow at 9:45. What? 9:45? What the hell kind of workday do these folks follow? Do they not understand that everyone in the jury pool has another life to pursue outside the jury selection process?

I approached the lawyers and explained who I was and that since I was pretty sure they would never select me, how about you just excuse me now? The answer was “no, we can’t control that and, besides, we might run out of prospects and want you on the jury anyway, but you can go try the clerk.” I rush downstairs and approach the clerk’s desk, only to hear her tell someone else, “once you’re in the pool, there is no way out.” So, no way out, even if the lawyers take three full days to finish selection.

I leave the courthouse and return home. I am uncertain whether I really heard that the start time tomorrow is 9:45 rather than the 8:45 the first day. So, I call the number on the yellow card we were instructed to collect that morning. A voice message, at 4:45 pm, says that the number is not part of the answering system and therefore no message can be left. “Goodbye.”

Let me cut to the end now. No point in prolonging the obvious. Suffice to say that I was never selected as a potential juror, never questioned and the lawyers finally chose the six jurors and two alternates. We then had to return to the clerk’s desk for final processing, a final speech by one of the clerks, and then … freedom. I bolt out of the courthouse to catch a cab to a business lunch that is going on without me.

A day and a half of monotonous, repetitious rehashing that could have been accomplished in less than half the time with the judicious use of some documents for prospective jurors to read, perhaps even in advance of coming to the courthouse. Turning over prospects to the control of the litigating lawyers means that the jurors’ interests may be completely disregarded if the lawyers are in no hurry to complete the process.

I well understand the need to assure that citizens do their duty as jurors in order to assure that litigants that want a trial by jury can have one. But I do not understand why the process is under the unsupervised control of the trial lawyers. I do not understand why the process seems to be the same as was used decades before modern technology became available. Much of the factual information painstakingly drawn from the pool members could have been collected in writing beforehand. If the trial lawyers were going to disqualify lawyers, doctors and other people in certain professions or who had experienced injuries similar to the one at issue in the case, all of that could have been ascertained in advance. Doing that would require systematic changes in the way the jury selection process works but it could be done if efficiency were regarded as relevant to the process.

The good news is that the ordeal will not be repeated for me for at least four years. The clerks gave us a piece of paper that we can use to resist being recalled by the state for that period. It even protects against federal court jury calls which may come because “the state and federal systems are not integrated.” No surprise there.

So, fine, I will state for the record now that if called after the four- year period ends, I will not serve again. Lock me up if you want, but at this late stage of my life, I am not going to give the courts any more of my time under a system that provides little or no respect for me as a citizen. They can do better if they try. I, for one, am done.

 

Mind the Words You Read – Part Two

A compelling third example of this issue may be found in the OZY Presidential Brief of October 17. https://bit.ly/2MV1HgE This email newsletter also reports on the Trump-Pelosi encounter:

Trump Has ‘Meltdown Over Syria Criticism

President Donald Trump and House Speaker Nancy Pelosi accused one another of having a “meltdown” during a tense meeting yesterday about the U.S. troop pullout in Syria. Trump, at least, had reason to fume: Amid growing bipartisan anger, two-thirds of House Republicans voted for a resolution condemning his decision, which left the formerly U.S.-backed Kurds open to attack from Turkish forces. Democratic leaders ditched the meeting after Trump reportedly called Pelosi a “third-rate politician.”

The key words, that I bolded in the quote, are “at least,” a usage that in this context clearly implies that Pelosi had no reason to be upset. The deck is subtly stacked in favor of Trump, by suggesting that Trump’s unhappiness about the House impeachment is warranted in some undefined way. The unstated further implication is that Pelosi, the woman in the room, was being unreasonable. The language reinforces the title of the article, further supporting the message that Trump, and only Trump, was justified in having a ‘meltdown,’ removing the implicitly negative implication of the title as regards Trump.

The OZY piece was not labeled “Opinion.” It was presented as a news story. There is no particular reason to think that OZY supports Trump. The writer of this piece may not even be aware of the effect of the language choice.

Finally, another example from the New York Times. https://nyti.ms/32CAV3h Its title is: What, Exactly, Is Tulsi Gabbard Up To? The subtitle is “As she injects chaos into the 2020 Democratic primary by accusing her own party of “rigging” the election, an array of alt-right internet stars, white nationalists and Russians have praised her.” [bolding added]

Clearly there is a lot to unpack here. For present purposes, however, let’s just focus on what is being conveyed. The implication is that Gabbard is “up to” something big — accusing the Democratic Party of “rigging” the primary election. If true, that’s pretty important. Having been thus primed for it, you would expect the presentation of compelling evidence to support those claims.

The “chaos” supposedly being injected by Gabbard consists only of her threatening to boycott the next Democratic debate [she ultimately participated though her poll numbers barely scraped by the threshold]. Other than her apparent attraction for white supremacy groups, detailed in the article, there is no apparent reason to credit her with injecting anything into the debate process. Indeed, “Both Ms. Gabbard and her campaign refused requests for comment about her support in right-wing circles or threat to boycott the debate.” If she won’t talk about it, why is the press making a “thing” of it?

The article speculates that “There is potential upside for Ms. Gabbard: Drawing more attention could energize her donors and perhaps attract more supporters, extending her candidacy’s life span.” But the “attention” seems to be from the media, not from the Democratic Party. In attacking the media and suggesting election rigging, we are seeing a familiar refrain used repeatedly by none other than Donald Trump himself. In a masterful deployment of self-contradictory double-speak and exaggeration, the article says “In a moment marked by fractured politics, Ms. Gabbard’s nontraditional positions are a major part of her appeal for voters seeking to break out of polarized partisan divisions…. she is representing viewpoints that draw support from an array of people in the United States as well as abroad.” How one sees supporting someone claiming election rigging as way out of polarization remains a mystery. And, I remind you, she is polling barely above 2 percent, just enough to squeeze into the debates she is decrying.

But most disturbing is that the article describes the embrace of Ms. Gabbard by the Russian media that were involved in the documented and indisputable 2016 election interference, then, in language reminiscent of the Mueller Report, takes her off the hook with “but there is no evidence of coordination between these networks and the campaign itself.”

Here I remind readers of the truism that “the absence of evidence is not evidence of the absence.” And, whether or not Gabbard’s campaign is in cahoots with Russia, it’s more than a little curious that, using some of the same tropes as Trump in 2016, she has attracted the same support from an adverse foreign power and has not rejected it. Then, the article cites Franklin Graham, described as an “influential evangelist” saying, “This whole thing the Democratic Party has done by putting forward this false idea that there was collusion between Russia and Trump has hurt our relations in a huge way with the Russians.”

That’s the Donald Trump party line. Isn’t it strange that Gabbard’s ardent supporters are repeating the Trump mantra in defending her political position? Is she a Democrat or a Republican? It’s hard to tell from articles like this and her political platform. The article recites her attraction to Middle Eastern dictators, another trait she shares with Trump.

So, you may be asking, where is the evidence of election rigging that was the chaos Gabbard supposedly was injecting into the Democratic debates? There is none, at least not in this article. I remain puzzled as to the true purpose of this article. I understand that it has a byline but that, by itself, does not disqualify it as an attempt at providing news. If we accept it as an opinion piece anyway, what is the opinion? Gabbard is in cahoots with Russians to influence the 2020 election? There is evidence, though not conclusive proof, of that. There is also much “equivalency,” albeit in the form of endorsements from Republican enablers of Donald Trump, like Franklin Graham. It’s a mighty curious thing, all this circling of Republican and Russian wagons around the marginal, barely-alive candidacy of a woman with few actual credentials warranting a nomination for the top executive leadership job in our government. Am I being too hard on her? I don’t think so. It was easy for her to reject the support of David Duke of KKK fame but she still sounds like a Republican and a Trump Republican at that.

********

As consumers of political reporting and commentary, we must remain constantly on guard against priming, framing and other psychological biases that work their way into the language of journalism. Taken to extremes, these techniques amount to ‘gaslighting’ which is defined as,

a tactic in which a person or entity, in order to gain more power, makes a victim question their reality.… Anyone is susceptible to gaslighting, and it is a common technique of abusers, dictators, narcissists, and cult leaders. [https://bit.ly/2Ep8mJV]

Over time, gaslighting erodes the public sense of what is trustworthy and leads to false equivalencies being accepted for blatantly untrue claims such as Trump’s claim that there were good people on both sides of the conflict in Charlottesville between pro-Nazi and anti-Nazi groups. Gaslighting eventually wears down people’s resistance to lying. Google “effect of indifference in politics” and you’ll begin to get an idea of how serious this is.

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – B

B. Involvement of WikiLeaks –Gaping Holes & Unresolved Issues

Immediately after the Billy Bush “grab ‘em” video, WikiLeaks released more stolen documents. How was WikiLeaks kept on such a short leash that it twice responded to developments in the US campaign by releasing documents intended to harm Clinton and offset self-inflicted harm by Trump?  Who was the link and why was the investigation ended before this party was run to ground?  [It may have been Roger Stone who is the subject of ongoing investigation covered by multiple Report redactions] GRU[1] and WikiLeaks were working together and hiding communications so that SCO efforts to collect them all were frustrated. I-MR 45. Mueller was never able to identify individuals other than Assange who were part of the DCLeaks/WikiLeaks coordination of anti-Clinton activities.

This leaves a gaping hole in the results of the investigation and raises the question why the investigation was ended before it was completed. If further efforts to identify individuals other than Assange were likely to be futile, this should have been explained.

Is it plausible that all the lying by Campaign people, I-MR 9-10, was all driven by the concern that the close association of the Campaign to Russians looked bad and was not also to cover up some deeper relationships instigated and nurtured by the Russians who had independent reasons to prefer Trump in the White House rather than the more experienced Hillary Clinton? The Russians are reputedly pretty good at dark statecraft and would likely not have made the trail easy to follow.

 We should not overlook the reasons stated by Mueller that the investigation was incomplete, including:  (1) Fifth Amendment claims by witnesses; (2) some information was “presumptively privileged,” a questionable conclusion not thoroughly explained or developed in the Report; (3) witnesses and documents outside U.S. jurisdiction; (4) some information was deleted by Trump Campaign people under investigation; some information was encrypted or simply not retained.  I-MR 10.

 Given the statement that it is possible that such information would have changed conclusions in some cases, WHY does Report not detail all instances in which (1) witnesses claimed the Fifth Amendment against self-incrimination; (2) information was deleted or (3) encrypted information was withheld?

This also raises questions about the basis for wrapping up the investigation when it was. Mueller refers to it being “late” but no explanation for that is given. Late in relation to what? If there was a deadline, what was it, who imposed it, and when was it imposed?

 Russian involvement in the 2016 election clearly had an impact; Mueller estimated tens of millions of people were exposed to fake social media information and Russian organized rallies. I-MR 26, 29. Yet, no effort was made to conclude how big an effect resulted.

 Note that Mueller did not investigate deeply the GRU intrusion into state/local administration of elections, observing that FBI, DHS and state authorities are investigating. I-MR 50.

WHAT is the status of those investigations? These activities occurred in 2016 – three years ago! Many of the states where the impacts might have been greatest were controlled by Republicans who showed no interest in protecting the electoral process from Russian interference; indeed, the record outside the Mueller investigation plainly shows multiple efforts at voter suppression in such states, all aimed at reducing Democratic voter turnout.

 The section of I-MR addressing Trump Campaign interest in WikiLeaks’ use of Russian hacked documents is heavily redacted with Harm to Ongoing Matter, indicating active investigation somewhere in the US government is continuing. I-MR 51 et seq. Again, this was some years ago. What is going on with those investigations?

Trump was personally interested in the missing Clinton emails and frustrated they had not been found. I-MR 52. Manafort was particularly interested in Clinton emails as well. I-MR 52-53. By late summer 2016, the Trump Campaign was planning a press/communications strategy based on expected further leaks of Clinton documents from Wikileaks. I-MR 54. How did Trump know this? Who was providing Trump with direct information about WikiLeaks’ plans for further document dumps? Much of the evidence is heavily redacted, but Trump had links to WikiLeaks that were producing information for him. If Campaign was planning strategy based on WikiLeaks release of Russian-stolen documents, why is this not “coordination” or at least attempted coordination with Russian hacking activities, using Mueller’s own restrictive definition? Again, no explanation.

At I-MR 59-60, there is explicit evidence of Donald Trump Jr conspiring with WikiLeaks to promote a false narrative regarding Hillary Clinton. WHY is this not overt evidence of coordination with Russians through WikiLeaks as intermediary? How can Mueller conclude, at I-MR 61, that there was no evidence of coordination between Russia and Trump campaign regarding the effort to recover Clinton’s missing 30,000 emails.

I-MR 61-62 has a discussion of Henry Oknyansky’s alleged effort to sell dirt on Clinton, promoted by Michael Caputo but concludes that information about the events was conflicted, that Alexei Rasin, who was claimed to have the information could not be found, and that the investigation could not determine the content or origin of the information. Therefore, the conclusion was that there was no evidence of a connection with Russia and this particular set of claimed dirt on Clinton. BUT this is largely inconclusive. There was much smoke but no fire could be found. As noted at outset by Mueller, the absence of evidence does not prove the absence of the fact in question.

I-MR 62-64 discusses Peter Smith’s efforts to locate the Clinton emails, including explicit claims of coordination with the Trump organization, including Flynn, Bannon and Kellyanne Conway. Mueller seems to raise the bar regarding what is probative evidence when he states that the investigation did not find evidence that any of the Trump people “initiated or directed” Smith’s work. If, for example, Bannon or Conway knew about Smith’s work and encouraged it without initiating or directing it, WHY would that not qualify as “coordination?” This is not explained. At I-MR 65, the ultimate conclusion was, in substance, that Smith had fabricated his claims of being in contact with the Russian hackers and that he had acquired the missing emails. But the key issue here is Trump Campaign coordination, not whether people like Smith were overstating what they knew.

 It has been suggested that all of this is just the work of a bunch of small-time hustlers trying to get in on the Trump action. https://bit.ly/2RWv1FT That may be true, but given that the control of the highest political office in the country was at stake, all of this smoke deserves the deepest scrutiny. The story here remains incomplete. Mueller elected to treat conflicted information as essentially neutral, giving equal weight to the “no coordination evidence.” This approach is not required in these circumstances and, given all the lying and withholding going on about the Russian connection throughout the Campaign, there is no apparent reason to treat conflicted evidence as neutral.

Mueller showed little interest in attempted conspiracy between Trump organization and Russia-connected individuals. For example, in fn 288 Mueller states that a Russian internet newspaper registered names for Trump2016.ru and DonaldTrump2016. Ru, then requested an interview by email to Hope Hicks. Mueller concludes this part of the narrative with “No interview took place.” Fine, BUT what was Hicks’ response to the email request and why is that not set out in the Report?

George Papadopoulos attended a March 31, 2016, meeting with Trump & Jeff Sessions, among others, and came away with impression that Trump, and possibly Sessions (some conflict re Sessions position) favored getting a meeting with Vladimir Putin. He pursued the idea through Joseph Mifsud and made many contacts with Russian-govt affiliated individuals. In the course of that work, he was told by Mifsud that the Russians had email dirt on Clinton. I-MR 89. On May 6, Papadopoulos told an unidentified representative of a foreign govt about the damaging emails that Russia wanted to use to hurt Clinton’s electoral chances. On July 26, 2016, after the WikiLeaks email dump, that foreign govt informed the FBI which then opened its investigation into Russian interference in the election.

At no time did Papadopoulos tell the FBI what he had learned. WHY was Papadopoulos not charged with aiding a foreign govt in defrauding the U.S.?? Papadopoulos was working for the Trump campaign at that time and had alerted the campaign about Russian interest in Trump. He believed that the Campaign wanted him to pursue the lead. What was the source of that belief? At the very least this should have been fully explained in the Report.

 Thru the spring/summer 2016, Papadopoulos kept Campaign officials aware of his efforts to arrange a meeting in Moscow with Putin thru emails to at least Lewandowski, Clovis (co-chair of Trump Campaign) and Manafort. I-MR 89. The Report barely mentions responses from any of these people. WHY?  Papadopoulos eventually suggested he personally could attend Russia meetings on behalf of the Campaign “off the record.” I-MR 90. This is an act of concealment, from which a reasonable inference can be drawn that the parties knew what they were doing was wrong.

Next: Campaign Officials Suffering from Failed Memories at Critical Times

[1] A military intelligence agency called the Main Intelligence Directorate of the General Staff, or GRU.

 

Journalism and Democracy

I have just finished Breaking News: The Remaking of Journalism and Why It Matters Now by Alan Rusbridger.

Based on the title, you might think this book is all about Donald Trump and his attempt to sell the idea that the press is the “enemy of the people.” While the Trump menace to freedom of the press is mentioned, the book is not mainly about that. It’s about the process by which The Guardian, one of the UK’s most storied newspapers, has navigated, with varying success, the rocky path from the traditional ways of journalism to the world brought about by the internet and the digital globalization of information.

Rusbridger is not a household name in the United States like, perhaps, Ben Bradlee of the Washington Post. Rusbridger was editor-in-chief of The Guardian from 1995 to 2015, the seminal period during which the digital challenge to top-down journalism manifested and ran roughshod over traditional ways of delivering the “news.” He is, among other things, a hell of a great writer and a compelling storyteller who confesses throughout that he was usually at a loss to know what to do to save The Guardian from financial destruction and from loss of its moral compass.

Rusbridger’s book is a remarkable explanation of the transition from a news operation funded by a trust, but still dependent upon advertising revenues for survival, to a multi-element news machine adapting to the digital age. Some of the financial details may challenge your interest, but the overall story line is as powerful as anything in great fiction. But, of course, it’s not fiction, not fake news, but truth.

Along the way, Rusbridger explores the meaning of “news” in a digital world, how news is discovered, vetted for importance and interest, and delivered to a global audience still interested in “truth” mediated by trusted investigators, writers, editors and publishers. He narrates the stories of Wikileaks (Julian Assange) and Edward Snowden and the issues their pilfered documents raised about what was responsible to publish, how governments attempted to prevent publication and much else. Readers from my generation will, of course, remember Daniel Ellsberg, the Pentagon Papers, the New York Times and the ultimate victory in court that enabled the world to understand how the United States government had misled the people about the Vietnam War. Even then, the Nixon administration tried to imprison Neal Sheehan under the Espionage Act for his journalism in breaking the story.

The struggle over the Snowden documents was no less dramatic with the special twist – something I did not know – that the United Kingdom has no equivalent to the First Amendment to the U.S. Constitution guaranteeing freedom of the press. In the UK publishers, editors and even individual journalists are subject to lawsuits by “offended” parties, including giant corporations, who object to unfavorable news being published about them. Even members of Parliament and the British government itself were ominously threatening to punish difficult publish/don’t publish decisions about matters to which they took serious umbrage. Editors could go to jail for publishing the “wrong stories.”

Early in the book, Rusbridger discusses the period during which UK competitors of The Guardian began to dumb down their news to attract eyes, with considerable success and adverse effects on more traditional news organization that continued to publish in the old style. The conflict is described as “an ongoing concern for complexity, facts and nuance versus a drift towards impact, opinion and simplicity.” [Breaking News at 91] In ruminating about the divergent paths before them, Rusbridger raises question to which no ready answers existed at the time or even now [Id. at 92-93]

“What … should a news organization do, faced with legions of apathetic readers?

Did we have any kind of responsibility to tell our readers things they might not think they wanted to know?

Would a move to less complexity end up reinforcing a pattern of ignorance, or carelessness about things that ultimately do matter to us all? … Most of public life was not faithfully representable in either black or white. Somebody – surely – had the duty to paint in the greys.

Fast-forwarding to the second decade of this century, Rusbridger observes that “an ever-more polarized public – favouring either black or white answers to complicated problems – had lost either interest or trust in a world of greys.”

Another interesting observation lies in the discussion of the “long tail” of news. In traditional newspaper journalism, the story was developed during the day, published late and delivered for morning consumption. The story was effectively “over” until at least the next day’s paper was distributed. In the digital world of social media, however, “a story had a life independent of the news organization which created it.” Breaking News at 157. The story “was now a living thing – being shared, critiqued, rubbished, celebrated, clarified, responded to, rendered irrelevant, added to, challenged – maybe all of the above – while [the reporter] was trying to take a well-earned break.”

The battle that ensued after The Guardian published some of Snowden’s documents led many UK papers to line up against The Guardian. Rusbridger listed a series of legal challenges over the years to newspapers’ publication of controversial material, almost always sustained by the courts. Rusbridger:

“Journalists may often make wrong  decisions – but the assumption has to be that newspapers are free to make those wrong decisions and, if necessary, be held responsible afterwards. It was so strange to see writers and editors in 2013 willing to concede this principle when judges had, in general, been so much more robust in their defence of the press.” [Breaking News 321]

The attacks on The Guardian will look familiar to anyone paying attention to the rhetoric of Donald Trump who, in his paranoid desperation to deflect criticism, has labeled the press the “enemy of the people.” Rusbridger discusses that and the issue of “fake news” at length in the Epilogue to the book. Of course, his views will be of no interest to people who have forfeited their ability to think in favor of abject adoration of everything Trump. For the rest, though, whom I still believe to be the majority, the centrality of a free press to the survival of democracy will resonate. The current challenge to genuine journalism is deadly serious, one among many such threats that now arise from the kleptocracy that Trump and his family, with full support of the Republican Party, seeks to establish in the United States.

The story of The Guardian is our story as well and should be read by everyone who cares about the survival of democracy and personal freedom in America.