Whither Hate?

(Guest post by the spouse.)

In preparation for my upcoming trip to Spain, I am reading C.J. Sansom’s Winter in Madrid, a spy novel set in Franco’s Spain during WWII. Coming upon many references to the Spanish Civil War, I have Hugh Thomas’s massive The Spanish Civil War history holding down the seat next to me to fill me in on the characters and organizations that produced the civil war.* The ever-present fear of characters in Winter in Madrid is that Franco will join Hitler in the war against England. The goal of the espionage community is to make certain that doesn’t happen and to be prepared if it does. And this has set my mind spinning.

My surprise is how similar Franco’s dictatorship is to Hitler’s. “Kill the Jewish Bolsheviks and the English fags who support them,” yell Franco’s Falangists as they try to drive Franco into a German/Italian alliance. I shouldn’t be surprised; but I am. And it makes me think about this week’s massacre of 49 Moslem worshipers in New Zealand, the slaughter of 11 Jewish congregants in Pittsburgh, and the murder of 9 black parishioners as they held a peaceful prayer meeting in Charleston.

While the prevalence of gun-related violence in the United States is a serious issue that should be addressed, my query today: “What is it about human beings that we require an enemy that is ‘other’?” And why is it that we don’t simply need to taunt or bait our enemy; we need to annihilate them. And why do we flock to leaders who allow – nay, nurture – these tendencies in the human psyche?

This is, of course, a worldwide – human – phenomenon. Why must Tutsis terrorize Hutus (and vice versa) in Rwanda?  Why do Huers slaughter Dinkas (and vice versa) in Sudan? And what about the countless Afghans who have been blown to bits by the Taliban in the past few months? The Sunnis who slaughtered Shia (and vice versa) in the (most recent) Iraqi civil war? The Yemenis who are being starved to death by Saudi Arabia? Are these simply power struggles for control of “local government”? No; these are hate crimes. But why?

It’s a naïve question, I know, because we all know that the “the world is mean and man uncouth.”* But I wonder if leaders like Franco really believe in the rhetoric of anti-semitism and anti-communism or if they just use it to play to the basest instincts of their countrymen. Ridding the world of these base instincts is, unfortunately, more difficult even than stemming global warming. It’s too late; it’s baked into the human soul.

I admire those who — with hope in their hearts that good can overcome evil — condemn these acts horror.  I condemn them, too, but I am losing that hope.

——————–

* With plaudits to Thomas’s masterful scholarship, the book gives one more information than one really needs to know!

** From The Threepenny Opera, Berthold Brecht.

The Gracious Chefs (concluded)

In our early days in New York City, our exploration of cuisines in restaurants was largely limited to places like Alfredo’s and middle eastern places because that was all we could afford. The most famous eating places in New York, which generally had French food, were too expensive for us. And then we learned that many of these outstanding, beyond-our-means places had weekday prix fixe lunches, which, while not cheap, we could afford once in a great while.

A few times a year we would go to one. The spouse and I would work in the morning but take off the afternoon and meet at some well-regarded restaurant for a late lunch. After that we might head off to a gallery or museum. We considered it a mini-mini-vacation.

This once-in-a-while lunching at the top restaurants finally led us to Lutèce, then considered by many to be New York’s and, therefore the country’s, best restaurant. Located in an eastside townhouse, we were seated in a second-floor dining room where women with expensive pearls and men in expensive suits and, presumably, expense accounts sat.  I don’t remember all we ate, but we thought it was marvelous and as the dining room emptied, we talked over the exceptional dishes. And then we saw the man with the tied apron and the toque—the Alsatian-born chef-owner, and legend, André Soltner, considered to one the most important chefs in the world.

We knew that his peers held him in awe. This regard comes across from Gabrielle Hamilton, one of New York City’s most outstanding chefs with one of the City’s best restaurants, Prune. In her book, Blood, Bones, & Butter: The Inadvertent Education of a Reluctant Chef she tells of the time her sister, an editor at a cooking magazine, cooked omelet’s with Soltner. Just his method of cracking open eggs was noteworthy to other professionals. (I can’t recommend Hamilton’s book too much and not just to foodies. The elegantly-written memoir is fascinating on many levels. On the other hand, if you don’t know her restaurant, I won’t recommend it to you. It is already too hard to get reservations there.)

At our Lutèce lunch, after Soltner emerged from the kitchen, he exchanged a few words with one or two of the remaining patrons, who, by the way he talked to them, I assumed were regulars, but then he headed straight for us. He said that a waiter had told him in the kitchen how much we had enjoyed lunch, and especially a salmon dish, which the spouse had said to me might have been the best fish she had ever eaten. Soltner asked, “Would you like to know how to make it?” We mutely nodded. He pulled out a chair, sat down, and proceeded step by followable step to explain how he had made the dish. (The secret was bacon fat.) We thanked him. He got up and smiled and concluded, “I am so glad that you enjoyed it.” He walked back to the kitchen. We recognized how kind and gracious this was. It was clear that we were not regulars, that we might not ever even be back again, but sharing the recipe made us feel welcome and as if we belonged. And in fact, the spouse did a creditable job of recreating the salmon dish at a number of dinner parties.

André Soltner. And Alfredo Viazzi. Fame, running a wonderful organization, in this case a kitchen, and natural graciousness. They can all go together.

The Gracious Chefs

Travel supposedly expands horizons, but sometimes I have traveled only a few miles from home for expansive, new experiences. A generation ago, the Trattoria da Alfredo, in a storefront space on Eighth Avenue and Twelfth Street in New York City’s Greenwich Village, opened worlds for the spouse and me. Until then, Italian food was only a pizza-shaped object and spaghetti covered in bottled Ragu containing browned ground meat and topped with something that Kraft labeled “parmesan.” Alfredo’s gave us our first taste of fresh pasta in innovative, but simple, sauces. It all tasted ethereal.

The restaurant did not have a set menu. Instead, each time we went, we found a choice of six or eight pasta dishes and perhaps two meat ones. They were all reasonably priced, which means that in our straitened circumstances back then, we could just afford them, but adding to the attractiveness of the place to us, it did not have a liquor license. It was BYOB (without a corkage fee!), and so we would bring a bottle of wine from our cache of inexpensive, yet still drinkable to our not-yet-tested palates, wine. All in all, this made for a wonderful dining experience.

The pasta dishes were unlike anything we had experienced before because this was fresh pasta. The sizes and shapes were often unknown to us, but, of course, the texture was also different from our boxed Ronzoni. At Alfredo’s we learned that the sauce did not just have to cling or drip from the pasta but that the pasta could absorb the sauce—a new taste experience. We also learned that meat dishes could be delicious even though simply prepared, as they were at this trattoria. Less was often tastier than complicated.

One night after the dinner rush and we were almost ready to go home, the chef-owner Alfredo Viazzi came into the dining room. I am sure that he must have talked to other patrons, but I know that he talked to us. We learned that he had come to New York City from Savona, Italy, about fifteen years earlier. Savona, he told us, was in the northwest corner of Italy on the sea. We effusively praised the food and his restaurant. I finally asked if he made the pasta. To my surprise, he said that he generally bought it at Raffetto’s. I assumed that was some restaurant supplier not available to the public, but he explained that it was a fresh pasta store open to the public just a few blocks away.

Fresh pasta was not something easily obtainedd in those days. (Of course, it is not as easy today as some markets try to pretend, for often what is passed off as fresh pasta in the refrigerator cases is hardly that.) Sharing his source was an act of graciousness on Alfredo’s part. He did not have to do that, for as far as he knew, now knowing the sources of excellent fresh pasta, we might never come back.

I did start going to Raffetto’s. It was always amazing to watch their medieval-seeming pasta cutting machine as some sort of guillotine cut large sheets of pasta dough into the desired width. Soon, their black pepper linguine became a favorite and a staple of many of our dinner parties. Raffetto’s is still there. It is still marvelous.

When I think of Trattoria da Alfredo, I think of my introduction to Northern Italian cuisine, of a line from that little, innovative restaurant to the marvelous cookbooks of Marcella Hazen, and to trips to Italy and meals eaten in Venice and Bergamo and Florence and elsewhere. But when I think of Alfredo Viazzi, I also think of his graciousness and charm. It reminds me of the graciousness and charm of another, even more well-known, chef.

(concluded March 18)

Snippets

In The Real Cool Killers by Chester Himes, published in 1959, the euphemism “mother-rapers” appears frequently. Is that less offensive than the phrase it was replacing?

 

I was not much surprised that the thirtyish woman on the subway was carrying a pink purse that matched her pink sneakers. I was a bit more surprised that they both matched the pink surgical mask she was wearing. I thought, however, that the mask should have had the Hello Kitty symbol on it.

 

          Were these words meant to be comforting? Before the medical procedure, the anesthesiologist came to me and explained what he was planning to do in the operating room (although he did not tell me how the insertion of various needles in my wrists was going to make me wince.) He told me about various risks of the anesthetics, something I had heard before from other procedures. He left, but before I was taken to the operating room, he came back with a worried look. “I just saw the results of your stress test. It indicates that you will have an increased risk of a heart attack from the sedatives we will give you.” Then came the words meant to be reassuring, “But what better place to have a heart attack than in the OR?”

 

“Since the world began has any man ever been able to know what would happen tomorrow?” Paul Bowles, The Spider’s House.

 

I was given a booklet when I first went to the doctor that described the procedure and aftercare. It said that after discharge: “Avoid sexual activity until your follow-up appointment with your cardiologist.” I thought, “Even if you don’t find your heart doctor overly attractive?”

 

“Chekhov says that it is in the beginnings and the endings of stories that we are most tempted to lie.” Wallace Stegner, Crossing to Safety.

 

I had forgotten the German-Turkish-American server’s name. She feigned, I think, that she was upset. I said, referring to the Mexican-American server/busboy standing next to her, “I have known him longer, and I forget his name.” She replied, “We call him Doughnut.” I looked at him and said, “Why is that?” He just smiled. She explained. “He went to a house of pleasure, and instead of giving out dollar bills, he handed out doughnuts.” The Colombian-American bartender clarified that the establishment was a strip club not too far away. The Mexican-American server/busboy had bought the doughnuts at a fancy neighborhood shop, and he had given them out to the strippers. He would not tell me what kind the doughnuts were—I thought that they should have been Boston cream–but his English is limited, and he might not have understood the question. A few minutes later, however, he looked at me with his always sweet smile and said, “Now I am a VIP.”

Arrested and Brought to Court (concluded)

After the rights were waived and counsel appointed at arraignment, there might be something that was not legally a part of the arraignment. This was known as plea bargaining. It would not take place if the charges were serious. The New York Criminal Court, where these arraignments took place, only had jurisdiction over misdemeanors and preliminary matters on felonies. A plea of guilty could not be entered to a felony and so plea bargaining on serious cases was down the road. It was different for misdemeanors where the maximum penalty was no more than a year in jail.

Court administrators pressure judges to “dispose” of cases quickly. In practice this meant to get pleas of guilty or a dismissal that would clear cases from the docket. If the charges were of a kind that might be plea bargained, the judge would call the assistant district attorney and me to the bench where we would have a conversation that was private and not on the record.

The prosecutor’s consent was necessary for any guilty plea to less than all the charges. Thus, the assistant district attorney would indicate to what charge(s) he would allow a guilty plea with the understanding that he would dismiss the remaining one. He might also indicate what he thought the punishment should be. I would indicate whether this was sensible to me and often make a counter offer, not generally on the charges but to the sentence. If I had learned plausible reasons from my interviews why the matter might not be as serious as depicted in the charging papers, the judge would ask the arresting officer or the complaining witness something to weigh in.

Finally, the judge would indicate what sentence he would impose if the defendant did plead guilty to the charges the prosecutor offered. I would then go back to my client standing at a table a few feet away from the bench. I would tell the client in a confidential tone what had happened at the bench. The defendant then had a few moments, and only a few moments, to decide whether he wanted to take that offered plea. If he did want to take what had been offered, I indicated that to the court, and his plea was taken. This required an “allocution.” The defendant had to be asked on the record whether he wanted to plead guilty. He had to answer “Yes.” He was then asked whether he understood that he was giving up various constitutional rights, including the right to a trial, by pleading guilty. He had to answer “Yes.” He would then be asked whether he had been forced or coerced to plead guilty or whether he had been offered any inducement to plead guilty other than the offered plea bargain. He would have to answer “No.” Such an allocution took about a minute, and the defendant would then be led back behind the courtroom. If the plea included immediate release, some paperwork had to be filled out and then he could go. If he had people in court for him, I would go to them and tell them what had happened and where they could go to meet the defendant.

There was an advantage if I had worked with the assistant district attorney and the judge before. If so, I often had a good idea of what a plea offer would be before it was made, and I would have discussed that possibility with the client back in the holding cell before the arraignment so that he could think about an offer before having to make a snap decision in court.

The limited time that an accused had for the important decision of whether to plead guilty bothered me. I was also often disturbed when I was representing multiple defendants and a plea was offered. The prosecutor and judge were dealing partly to get the case over with, and that would require a disposition from all the defendants. If three out of four were willing to plead guilty but not the fourth, the case continued and would take basically the same amount of time in the future as if none had pleaded guilty. Thus, the deal was for all or for none. This presented an ethical dilemma. If the case went on, each defendant would have a separate attorney, but at the arraignment I was representing them all, and this presented a conflict. I was simultaneously the attorney for someone who wanted to plead guilty but could only do so if all pleaded guilty and a person who did not want to plead guilty. A way out of this ethical conflict was to have the case continue so that separate attorneys could be appointed, but that conflicted with the court’s desire to get dispositions at arraignments and the desire of those defendants who wanted the case over immediately. The court never cared about the ethical conflict, and I never found a good way to handle it.

While many cases were plea bargained, defendants often rejected the offered deal. Many other cases were not plea bargained because the charges were too serious to be resolved by a misdemeanor plea. Such cases would live beyond that initial court appearance. Then the proceedings returned to another formal part of the arraignment—the setting of bail, but I will leave that for another day.

Arrested and Brought to Court

When I was working arraignments, after examining the court papers, I would head to the holding cell behind the courtroom and call out the name of my client. That person would move to the bars where I stood. I would introduce myself and present my card. I would tell him that I was the lawyer who was going to represent him. I would tell him the allegations in the court papers and explain his rights and what would happen in the courtroom.

A brief interview followed. This was legally problematic. Conversations between a lawyer and client are privileged; that is, the government cannot force disclosure of privileged conversations from either the client or the lawyer. However, normally the privilege applies only if the conversation has been conducted in a confidential manner, that is in a way that other people do not hear what is said. The person I would interview, however, was not alone in the holding cell. There might be a half dozen or more other arrested people waiting to be arraigned; court officers who staffed the holding cell area were present; and other attorneys also meeting clients were around. These people could easily hear what was being said; there was no true privacy. Even so, it was often important to try to get some information from the client.

If the rap sheet indicated a criminal record, I would ask the client about it to get his version of the dispositions that were not recorded. I would go over the information from the pre-trial agency report and ask whom I might contact to verify anything that could aid the client. I would ask whether any of his family or friends were in court so that I could talk to them.

I would also ask his version of the charged crime. I did this for several reasons. The judge would only have the prosecution’s version, and for plea-bargaining and bail-setting reasons, I might want to indicate the defendant’s alternative as to what happened. And getting the client’s version could be important for starting an investigation. If the arrested person indicated that he had an alibi–that is he was at some other place than the scene of the crime–it would be important to seek out and interview witness who might confirm that alibi. If the crime arose out of some sort of altercation, it was important to interview those who witnessed the altercation to learn their version of the event. Time mattered. Witnesses became harder to find the longer the search for them was delayed, and their memories often became less useful as time elapsed. For example, if I asked where you were and who you were with yesterday at 6PM, you could probably tell me. If I asked where you were and who you were with at 6PM three weeks ago, your answer might not be as certain. Add to that the fact that many people who might be witnesses lead what might be called irregular lives that make it difficult to recall actions from weeks or even days before. In short, prompt witness interviews were essential. A delayed investigation might lose evidence entirely. For example, many surveillance cameras erase or record over what had been recorded in the last week or so.

If an investigation seemed beneficial, I would ask investigators that were on staff to do so in the coming days, or if I had the time, I would do it myself or in conjunction with an investigator. But that depended on what the client said, and clients were seldom fully forthcoming in these initial interviews. That was hardly surprising. The client had met me only moments ago. He had not selected me. He had little reason to trust me. I could tell him that anything he told me was confidential, but surely few of the clients were aware of the attorney-client privilege. And somehow talking with bars between us with others around was hardly conducive to building up the bond often necessary for forthright conversation.

Now add to these difficulties what the client had gone through in the day before we had met. He had, of course, been arrested, and, whether deserved or not, an arrest is traumatic. This meant a person was handcuffed, often in a public place or in front of family or friends, also traumatic. He was ordered and moved around—into a police car and into several different police stations. He had been placed in one cell and then moved to another and probably another. He had not been alone in these lockups but with others who may have been weeping softly or who appeared threatening. If he had to have a bowel movement, he would have had to pull down his pants in front of strangers and sit on a seatless toilet. (I have known some arrestees who soil their pants instead of doing this.)

From the time of the arrest until arriving incourt, the arrested person probably desired sleep, but sleep could only have been grabbed in a cell without beds. A metal bench or the floor would have been the only place for sleep, but that rest was unlikely with others around who may have been violent or mentally disturbed or simply talkative. After a day like this, when fear and anxiety and degradation have been ever-present, it is not surprising that many arrested people are not exactly loquacious when they first meet their appointed attorney.

(continued March 8)

Arrested and Brought to Court (continued)

After interviewing my new client in the holding cells behind the arraignment courtroom (also, revealingly, called the pens), I headed to the audience section of the courtroom. When there was a break in the action up front, I would ask if there was anyone there for the interviewed defendant. If there was, I would motion them out to the corridor where I would ask who they were and seek more basic information about the defendant. I might have a ballpark idea of the bail that would be set, and I would inquire about the ability of those present to post it. This could be important for getting the defendant out of jail that day. Perhaps the judge was about to set bail at $2,500 (more on bail-setting later), but the relatives had told me that they had brought $2,000 to court. I would give the judge that information, and the judge might then lower bail to $2,000. In addition, often those who came to court had information about the charged crime. Many of the crimes were neighborhood affairs and had been witnessed by relatives or friends of the defendant, or the relatives or friends had been told about the crime from others. This information could be useful in the plea bargaining and the bail-setting that might take place or in a subsequent investigation.

After talking with any people who were in court on the defendant’s behalf, I would go back to the courtroom, and ask the audience whether the complaining witness was there. If so, I would ask to talk with the person in the corridor. I would tell the complainant that I was the attorney for the defendant and tell them they did not have to talk with me but that I would appreciate it if they would. Perhaps under the impression that if they talked with me it would speed up the process, most were willing to speak. I would ask them to describe the crime to me.

After talking with the complainant, I went to talk to the arresting officer. The police did not have to talk with me either but were usually eager to do so because they knew that I could delay the calling of the case in court and, thus, extend the officer’s day. (A case would go before the judge after I indicated that I was ready for the case to be called.) I never delayed a case to try to get the complainant to talk, but cops, who almost never liked being in court, were generally eager to go home or back to duty. Sometimes there had been enough repeat business between me or my colleagues and a particular cop that opinions about the officer had developed. Most of the police were professional in dealing with defense attorneys, but a few were known as nasty, untrustworthy, or liars, and yes, sometimes I delayed the calling of the case if it would irritate such a cop or if he would not talk with me.

After all these interviews, I would indicate to the court officers that the case was ready to be called. When it was announced, court officers would lead the defendant from the holding cell into the courtroom. In New York, the defendant was generally only handcuffed, and the cuffs were removed when he was brought before the judge. In other cities, defendants are brought into court with belly chains and leg shackles that are not removed. I still find this a sickening sight, and I always think of engravings of slavery. I am sure that the places that use chains and shackles cite safety as their reason for the practice, but New York, with its more civilized practice has no more violent incidents than these other places.

Once the case was called, I would stand in front of the judge. I would state my name as representing the defendant and spell it for the court reporter, although that reporter already knew it from other appearances. I was then asked by the presiding court officer whether I waived the reading of the rights and charges. One of the formal reasons for an arraignment is to inform the defendant of the charges against him and various rights granted him, such as the right to a jury trial and the right to cross-examine witnesses. I would have gone over this stuff with the client while he was in the holding cell, and I would waive this part of the formal process in court, as did all other attorneys. Going over again what attorneys should have already explained needlessly delayed the proceedings and would have, at a minimum, irked the judge and court officers making unnecessary enemies.

One of the rights granted a defendant is his right to an attorney. If he could afford an attorney, he would have to retain one. In many places, judges really make the determination whether the accused is indigent and enitled to appointed counsel, but this was not case in New York City when I did public defender work. Instead, there was a working assumption that the Legal Aid Society would be representing a defendant unless the Legal Aid lawyer had determined that the client was getting a private attorney or had the resources to do so. Even if the defendant was going to retain an attorney, the practice was that the Society would represent the accused at the arraignment.

When there were multiple defendants in the case—a common situation—the public defender would represent them all at the arraignment, but each defendant would be entitled to a separate appointed counsel after that initial court appearance. In these situations, the Legal Aid attorney would say who she would represent after arraignments and ask the court to appoint counsel for the other defendants. The Appellate Division, an intermediate appellate court in New York, compiled a list of private attorneys who were certified to be appointed in criminal cases. These attorneys would be appointed for the other defendants for future court appearances. The Legal Aid attorney would get to choose which defendant would remain the Society’s client. My selection of a client was often random, but sometimes my choice was affected by an instant like or dislike of an accused. Sometimes, however, it was clear that defendants were likely to have differing criminal liabilities. Many Legal Aid attorneys would choose the defendant with the least likelihood of a long sentence because it would be easier to represent that person. I probably did that some of the time. But I had found the lawyers on the Appellate Division list to be of mixed competence.  The quality of the attorney would not matter much to the defendants who were going to be easy to represent, and since I thought I was as good as any of those attorneys and better than most, I generally selected the defendant who appeared to be hardest to defend.

(Concluded March 11)

Arrested and Brought to Court (continued)

When I was working arraignments, after examining the court papers, I would head to the holding cell behind the courtroom and call out the name of my client. That person would move to the bars where I stood. I would introduce myself and present my card. I would tell him that I was the lawyer who was going to represent him. I would tell him the allegations in the court papers and explain his rights and what would happen in the courtroom.

A brief interview followed. This was legally problematic. Conversations between a lawyer and client are privileged; that is, the government cannot force disclosure of privileged conversations from either the client or the lawyer. However, normally the privilege applies only if the conversation has been conducted in a confidential manner, that is in a way that other people do not hear what is said. The person I would interview, however, was not alone in the holding cell. There might be a half dozen or more other arrested people waiting to be arraigned; court officers who staffed the holding cell area were present; and other attorneys also meeting clients were around. These people could easily hear what was being said; there was no true privacy. Even so, it was often important to try to get some information from the client.

If the rap sheet indicated a criminal record, I would ask the client about it to get his version of the dispositions that were not recorded. I would go over the information from the pre-trial agency report and ask whom I might contact to verify anything that could aid the client. I would ask whether any of his family or friends were in court so that I could talk to them.

I would also ask his version of the charged crime. I did this for several reasons. The judge would only have the prosecution’s version, and for plea-bargaining and bail-setting reasons, I might want to indicate the defendant’s alternative as to what happened. And getting the client’s version could be important for starting an investigation. If the arrested person indicated that he had an alibi–that is he was at some other place than the scene of the crime–it would be important to seek out and interview witness who might confirm that alibi. If the crime arose out of some sort of altercation, it was important to interview those who witnessed the altercation to learn their version of the event. Time mattered. Witnesses became harder to find the longer the search for them was delayed, and their memories often became less useful as time elapsed. For example, if I asked where you were and who you were with yesterday at 6PM, you could probably tell me. If I asked where you were and who you were with at 6PM three weeks ago, your answer might not be as certain. Add to that the fact that many people who might be witnesses lead what might be called irregular lives that make it difficult to recall actions from weeks or even days before. In short, prompt witness interviews were essential. A delayed investigation might lose evidence entirely. For example, many surveillance cameras erase or record over what had been recorded in the last week or so.

If an investigation seemed beneficial, I would ask investigators that were on staff to do so in the coming days, or if I had the time, I would do it myself or in conjunction with an investigator. But that depended on what the client said, and clients were seldom fully forthcoming in these initial interviews. That was hardly surprising. The client had met me only moments ago. He had not selected me. He had little reason to trust me. I could tell him that anything he told me was confidential, but surely few of the clients were aware of the attorney-client privilege. And somehow talking with bars between us with others around was hardly conducive to building up the bond often necessary for forthright conversation.

Now add to these difficulties what the client had gone through in the day before we had met. He had, of course, been arrested, and, whether deserved or not, an arrest is traumatic. This meant a person was handcuffed, often in a public place or in front of family or friends, also traumatic. He was ordered and moved around—into a police car and into several different police stations. He had been placed in one cell and then moved to another and probably another. He had not been alone in these lockups but with others who may have been weeping softly or who appeared threatening. If he had to have a bowel movement, he would have had to pull down his pants in front of strangers and sit on a seatless toilet. (I have known some arrestees who soil their pants instead of doing this.)

From the time of the arrest until arriving incourt, the arrested person probably desired sleep, but sleep could only have been grabbed in a cell without beds. A metal bench or the floor would have been the only place for sleep, but that rest was unlikely with others around who may have been violent or mentally disturbed or simply talkative. After a day like this, when fear and anxiety and degradation have been ever-present, it is not surprising that many arrested people are not exactly loquacious when they first meet their appointed attorney.

(continued March 8)

Arrested and Brought to Court

We see footage on TV of some famous person being arrested and led off in a black and white. Later we see a noose of news people shouting outside a courthouse and are told what happened inside the courtroom where the arrestee has appeared. It is all highly scrutinized, and “experts” may be talking about that first court appearance for days on the news sites. Most people who are arrested do not draw this attention, and their traumatic event–for it is always traumatic–draws little scrutiny.  Perhaps if court proceedings for “ordinary” people were better understood, we would have a better perspective when famous and influential people are arrested and brought to court. What follows, then, is a description of what happened to someone who was arrested when I worked in the New York City courts.

The process goes by different names around the country and is not precisely the same everywhere, but in New York City when I was doing public defender work for the Legal Aid Society, it was an “arraignment.” Of course, before that first court appearance came the arrest. After being arrested, he (much more likely to be a he than a she) would be taken to the local police station where he was fingerprinted, photographed, and when the technology advanced, swabbed for a DNA sample. The police asked and would record basic “pedigree” information: name, age, and address. The arrested person would be placed in a small cell to await transportation to a more central police facility. From that central place, he was taken to court.

In New York City, a person was required by law to be arraigned within twenty-four hours of his arrest, and generally that happened. Part of the reason that time restriction could be met is that the arraignment courts were in session from nine in the morning until one at night 365 days a year. Yes, these courts were open on Sundays, on Christmas, on the Fourth of July. (I never worked on Christmas. The practice accepted by all Legal Aid Society offices was that Jewish lawyers would work on Christian holidays so that they would not have to work on the Jewish holidays. I did work on many secular holidays, however.)

After coming from a police facility, the arrested person was put into a lockup facility behind the arraignment courtroom. As in other courtrooms, a waist-high railing separated the audience portion from the section where the judge’s bench loomed. The court clerk had a desk off to the side of the bench. Within the railing but on opposite sides of the room facing each other, the assistant district attorneys and the legal aid attorneys each had a desk.

Three of us “legal aids” worked during arraignments. Court officers deposited copies of the legal papers onto our desk. Those papers were parceled out among us based on the seriousness of charges, the age of the defendant, and the experience of the attorney.

If it was my case, I was given several documents. The first contained the charges and brief description of the alleged crime. It might report something like this: The defendant is charged with robbery in the first degree. On a specific date at a particular time at a stated location the defendant displayed a gun and forcibly took the wallet of James Smith who, in courthouse lingo, was the complainant or the complaining witness. The charges would say little beyond this unless there were additional charges. If, for example, the defendant had been apprehended with a gun, a firearm charge would be listed. If the defendant had the complainant’s wallet, the crime of possession of stolen property would be added.

A defense attorney learned some basic information from the totality of the charges. If a gunpoint robbery was alleged, but no firearm or stolen property charges were lodged, the case looked different from one in which other charges were included. Caught with a gun and the stolen property, the defendant was unlikely to have much of a defense. If he did not have a gun or property when arrested, a viable defense might exist. The time of the crime was also important. If it was in the last twenty-four hours, the defendant was undoubtedly arrested shortly after the crime, perhaps even at the scene of the crime. However, if the crime had occurred earlier, then one would want to know how the defendant was identified. The court papers would not give me that information; I would have to ferret it out.

A criminal history of the defendant was also in the defense packet. This was often called the “rap sheet.” When I started out it was also called the “yellow sheet” because back then, for reasons I never knew, it was printed on yellow paper. This document was invariably misleading. It would show where and when the defendant had been previously arrested and charged with a crime, but it only contained the charges lodged by the police officer following an arrest. That officer, for his own career, had a stake in making the alleged criminal behavior look as serious as possible. The charges in the court documents, however, were drawn up by an assistant district attorney (ADA) and were often different from, and lesser than, those on the rap sheet. When I started, the rap sheet did not list the official ADA charges, and it seldom contained the outcome of the case, which might have been a dismissal or a guilty plea to lesser charges.

When I worked in a test case unit at the Legal Aid Society, we sued to require that the disposition to each arrest appeared on the rap sheet. We had some success. More of the outcomes were presented, but few rap sheets were complete and gaps in the disposition column were too common.

The third important document in the court papers given to the defense attorney was a report from a pre-trial agency that had interviewed the defendant and presented a report that could later be important in setting bail. The information obtained was to gauge, in the court lingo, the defendant’s “ties to the community.” How long had the defendant lived in New York? How long at his present address? Whom did he live with? Mother? Father? Spouse? Girlfriend? Children? What was his education? Did he have a job? If so, where and for how long? What income and assets did he have? The interviewer tried to verify information through phone calls, but the verification was often spotty. If the interviewer was calling at night, the business where the defendant worked might not be open. And many people back then did not have a phone so much of the supplied information could not be checked before the court appearance.       After examining at these documents, I headed to the holding cell behind the courtroom to meet my client.

(continued March 6)

Remember the Panama Canal Treaties

The vote in the House of Representatives and the upcoming one in the Senate over President Trump’s emergency declaration so he can reallocate money from authorized defense department spending to congressionally unauthorized spending on a border wall has made me think of a book I read a while back, Drawing the Line at the Big Ditch: The Panama Canal Treaties and the Rise of the Right by Adam Clymer. The book did not get much play as far as I know, but it had some important themes that have stuck with me and resonate in our present political climate

Clymer maintained that the fight over the Panama Canal Treaties helped fuel the rise of the modern Right.  The two treaties were signed in 1977.  One treaty authorized the United States to use force to assure that the canal would remain open to ships of all nations.  The second treaty gave Panama, starting in 2000, control over the canal.

The treaties, of course, had to be ratified, and after Panama did so in a plebiscite, a political battle ensued in the United States Senate, which under our Constitution must approve treaties by a two-thirds majority.  According to Clymer, this battle led to the emergence of Richard Viguerie, a founder of modern conservatism, the use of direct-mail marketing, and the rise of single-issue PACs to raise money to defeat moderate Republicans.

Although it was President Jimmy Carter who signed the treaties, the negotiations had started under President Nixon.  The treaties were thought desirable because they gave America the right to ensure the canal’s neutrality and they removed a flashpoint for much of Latin America, and Panama in particular, by giving Panama control over the canal.  Those supporting the treaties maintained that the treaties would increase the security of the canal by helping to remove the threat of guerrilla attacks, which were almost impossible to defend against.

The treaties were backed by prominent conservatives, including Henry Kissinger and William Buckley, but the treaties were also attacked by other conservatives in near-hysterical terms.  This, they argued, was a surrender of American sovereignty, and furthermore, the military leader of Panama was pro-Communist.  Communists would control the canal and Panama, and the subsequent harm to the US would be incalcuable.

What is surprising and heartening to a surveyor of the contemporary political scene is that some Senators supported the treaty simply because they thought it was right even though they knew that their ratification vote might harm them politically.   The single-issue PACs targeted pro-treaty Republican Senators and, through direct-mail marketing, inflamed a cadre of voters. Some moderate Republicans who supported the treaties were defeated when they stood for reelection or had their political influence dissipated. Robert G. Kaiser, the Washington Post’s Senate correspondent during this period, in his book Act of Congress: How America’s Essential Institution Works, and How It Doesn’t, expresses admiration for Senator Howard Baker of Tennessee, who was a Republican leader in the Senate. Kaiser writes, “Baker had presidential ambitions for 1980 and new conservatives viewed him warily, but nevertheless decided to support the treaties, provided they were modified slightly. This, Baker told me privately, was the right thing to do, though he knew it could cost him dearly in the political arena. In fact it probably ended his career.” Sixty-eight Senators, one more than needed, voted for the treaties.

This issue is now largely forgotten even though its aftermath still affects the United States. A lesson from the controversy has been absorbed, even if that lesson’s source is not remembered.  Republican politicians fear that if they don’t toe some single-issue lines, a portion of conservatives will target them and defeat them in the primaries or otherwise destroy their careers.  The result is that the politicians cannot develop nuanced positions; compromises are verboten.  There must be complete acceptance of the NRA’s positions.  Abortions are absolute evil.  Tax cuts are always essential.  All government spending, except on defense, is bad.

Back in 1978, however, some Senators studied a complex situation and decided that a ratification vote was in the best interests of the country even though their decision would harm them politically.  What is remembered is not that their position was right, but that they were harmed politically. The takeaway message was don’t to try to figure out what is best for the country; take the action that avoid personal political harm.

This history is also striking because the treaty opponents have been proven wrong. The Canal functions just fine. Panama is not a hotbed of anti-American Communism. Those who were wrong, however, did not pay a price for their gross error. They continued in office, and one notable politician benefited handsomely from his opposition. Ronald Reagan opposed the Treaty, and some, including Bill Buckley, maintained that the treaty controversy helped make Reagan president.

Pay a price for being right. Gain from being wrong. Ah, America.

And most of us have forgotten the debate. But it will affect the vote on Trump’s “national emergency.”