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.”

Finding My Soul (concluded)

The reason that we were outnumbered by blacks at theaters nearby our home is that then, and for most of my years in Brooklyn, we have lived in neighborhoods where whites are the minority. I regarded this as neither undesirable nor desirable. It was just a fact. Not surprisingly when I played basketball in one of the local schoolyards, which I did frequently before blowing out my knee in my 30s, I was in the minority.

It was an especially eclectic crowd at the courts nearest to home. The neighborhood had a few whites, but also a sizeable group of Native Americans, who had been in construction in New York City, and were frequently, it seemed, on crutches. They had grown up near Montreal, and when they learned that the spouse and I were going in that direction for a vacation, they were quick to give advice about the places for food and drink on the way to Canada. There was also a group of Puerto Ricans that had been established in the neighborhood for quite some time having come to work at the then-functioning, nearby ExLax factory. There were blacks with relatives in the Carolinas and some Argentinians who had migrated to South America from Italy before coming to the United States. As I said, an eclectic mix.

One day playing basketball, an argument broke out. I am not sure what triggered it, but soon I heard one kid yell an epithet at the other, “You’re white.” “No, I am not. You’re white.” Both were high schoolers. I knew one of them, whose mother was Puerto Rican and whose father Native American. I did not know the other one, but he looked to be mixed race white and black. As the argument went on, I looked around and realized that I was the only white there. For a moment, with the “W” word being tossed around, I wondered whether I should be concerned but decided not to be. I was older and a fixture in that schoolyard and had done favors for the families of some of the other players. My guess is that I was not so much the white guy, as the old guy. I am not sure how the argument was settled, but it did not escalate into anything major. This was not a typical incident. Although I played basketball for countless hours in the neighborhood, I don’t remember another time when anything intended as a racial epithet was hurled.

These incidents may have made me aware of my race, something that does not happen often to this white person, and probably not to most other whites either, but none made me feel deeply uncomfortable. Sometimes while jogging, however, I did feel threatened. I would often use my running for commuting and sometimes that took me through parts of New York where my skin color made me stand out, including the South Bronx, then considered to be an especially dangerous neighborhood.  I did feel conspicuous, and I sometimes heard what I only hoped were sarcastic remarks coming in my direction, but I soon learned behaviors that seemed to defuse any potential problems. Almost always there was a mother with a baby in a stroller on the sidewalk. I would look intently into the stroller as I jogged closer, and when nearby I would smile and then look the mother in the eye and smile even more broadly. Almost always the mother smiled back, and her smile seemed to make others on the block relax. I would also look for young kids, usually boys, on the block. The ten-year olds often made veiled racial remarks, but my response was to urge them to race me to the corner. Most took up the challenge, and seeing me with a kid running neck and neck up the block also seemed to make others relax. (The kids invariably won.)

These methods almost always worked when I ran in “bad” neighborhoods, but for some reason, I found they did not work to defuse any tensions in parts of Harlem, and mostly I stopped running there.

My running led to another incident that was not overtly racial but once again led me to think about my whiteness. I was running through a lily-white, affluent suburb north of New York City. I was not running in fancy running clothes, but, as was my wont, in cast-offs with hair that most would have thought needed a cutting. Why affluent communities can’t afford sidewalks I don’t know, but as a result I was jogging on the side of the road. I was coming up to a nice car at a stop sign with a young woman in it. She saw me and the slightest look of panic came over her face. And then I heard the car locks click shut. I was amused. In the thousands of miles I had run, I was not aware of this happening before, but then I thought, I bet a lot of young black males have heard that clicking sound many, many times.

Finding My Soul

Recent news suggests that he did not die naturally of congestive heart failure stemming from pneumonia but that he was murdered. I know little about these reports, but they made me think back to all the times I had loved seeing him on TV and that I became excited because he was coming to the RKO Albee Theater, just a few blocks from my apartment.

The RKO Albee was one of those grand vaudeville/movie theaters built in the 1920s. It was said to be the second largest theater in New York City after Radio City Music Hall. The Albee, by the time I made it there, was in serious decline. It was situated in downtown Brooklyn that once had many similar theaters, but neither the Brooklyn neighborhood nor large movie houses remained fashionable. The grandeur that had once been in the Albee was there, but seeing it took some faith and imagination, except for the bathrooms which were still magnificent.

Going to a movie there, however, was a bit creepy not only because of the auditorium’s deterioration, but also because of the size of the place. It is only a guess, but the theater held three or four thousand, and the first time I went there, for Diary of a Mad Housewife (who remembers Carrie Snodgrass? Richard Benjamin?), no more than a hundred of us attended. These numbers added up to a lot of empty seats, and an eerie feeling. (Diary remains in my mind not because I remember much about the movie, but because it was my first exposure to people talking back to the movie screen. With the size of the audience, it was easy to hear all the words of those who conversed with the on-screen characters.)

Now, however, it was not a movie coming to the RKO Albee, but James Brown. The Hardest Working Man in Show Business.  The Godfather of Soul. Mr. Dynamite.

The spouse and I got tickets.  Good seats. Fourteenth row, just a little right of center. This time we did not feel as if we were alone in the Albee. I could not see an empty seat. We had a great view of the stage for the opening act, a comedian (perhaps, but I am not sure, Clay Tyson). The audience made it clear that it wanted him off the stage and James Brown on. I could only feel sorry for the comedian, and the clamor was made worse when James Brown with an entourage came down the side aisle. (Huh? The Albee did not have a stage door? Didn’t seem likely. Oh, you think that this was a ploy to whip up the crowd?)

Finally, the warmup was over, and there he was! Our good seats started to be less desirable.  Not because anything happened to them, but because it seemed as if everybody who had been behind us left their seat and rushed towards the stage. Still we could see, but then all those seated in front of us stood up. Now to see we, too, had to stand, which we did. But then those in front of us stood on their seats so we had to stand on our seats. And finally, those in front of us stood on the arms of their seats, and soon, feeling precarious, we, too, were standing on the arms. And we saw a great show.

As we were leaving and I saw the crowd heading towards the exits, it hit me then that besides the spouse, I was not seeing another white person. I had not been uncomfortable before, but this realization made me a bit uneasy. Would all those thousands of black faces think there was something wrong with whites going to see James Brown? There was no reason to think so. The crowd was noisy and excited, but everybody was as polite as you could be in a crowd that size. But still, we seemed to be the only whites. Wasn’t there a good chance something bad might happen to us? At least this white had not confronted this situation before—one that many blacks no doubt had faced—of being the only one of his race in the place.

The Duffield theater was only a few blocks from the RKO Albee, but it had never been a palace, only a neighborhood movie house. It was there we saw The Great White Hope, with James Earl Jones and Jane Alexander. (I have had the privilege of seeing Jones on the stage a number of times, but from years ago the most memorable performances were Fences and Othello, the latter in a production with Christopher Plummer, Dianne Wiest, and, in a much smaller part, Kelsey Grammer.) The Great White Hope is the fictionalized account of the black boxer Jack Johnson. Once again, we seemed to be the only whites in the theater, but this time during the performance we were acutely aware of that. In the James Brown concert, our reactions were not much different from the rest of the audience, but that was not true at this movie. In this story about an extraordinary man’s confrontation with race and racism, there was a scene with a country preacher encouraging Johnson to prayer. The spouse and I were moved, but, to our surprise, the scene brought derisive laughter from around us, the kind of laughter reserved for an Uncle Tom. I was acutely aware that I had not experienced what others in the audience had, and as we left the theater, I did wonder if all those other exiting people were wondering what that white couple was doing there.

(concluded February 27)

Snippets

A recent survey showed that the majority of Americans in forty-nine states (with Vermont being the exception) would fail—not even get a D—answering U.S. citizenship test questions. Another reason to support immigration: The naturalized immigrant knows more than the native-born citizen. Is it surprising to you that the most solid red states scored lowest?

 

Why does the Academy Awards have separate male and female acting categories? Isn’t good acting good acting no matter the gender of the performer?  Should the Academy also give gender-based awards for directing and writing?

 

“He knew the story because he had heard it said that really there are only two kinds: one in which a hero goes on a journey, the other in which a stranger comes to town.” Kevin Powers, A Shout in the Ruins.

 

The open satchel carried by the middle-aged man was filled. I spied a top hat and a Miss Piggy wig with luxurious hair. I wondered. . . .

 

The appraiser on the Antiques Roadshow stated that the item came from “circa about” 1906.  Surely, she should have known better.

 

I was on a park bench. Off to my left a man was ranting. Police were around the apparently mentally ill person dealing with him patiently. On the next park bench to my right were people who panhandled in the park and seemed to know the ranter. One of the them looked at the police, saw a blonde woman, and said, “Look at her. She doesn’t look like a cop. Why did she become a cop? She should have been, uh, uh, uh, a chemist, or something.”

 

I was sitting with David, a 68-year-old with a childlike mind, who had been convicted of a double homicide in Florida. The jury had determined that he should be executed. We sat next to each other waiting for a post-trial hearing to start. I had played only a minor role in the case, but he smiled and seemed pleased to see me. He started joking with me, as he had done during the trial, and wanted to make sure my tie was of high quality. I asked how he was being treated, and he said fine, except that right after the verdict he was put in isolation and had to wear a straitjacket for a few days. During the subsequent court hearing, he got upset, and I had to calm him down. When the hearing concluded, and he was about to be led out of the courtroom, I told him that at the end of the week I was going back to New York indicating that I would not see him again. He said, “Have a safe trip.” Then after a beat he smiled and said, “I wish I were going with you.”

 

“She did not recall how they had agreed that one can be anything but dead, that the two words together created an antimony.” Paul Bowles, The Sheltering Sky.

The Tax Season

A news story a few months back suggested that some of our President’s fortune was amassed by cheating on taxes. Another story suggested that although Jared Kushner has an income significantly higher than mine (ha ha), he has not paid any federal income tax in a while and that his failure to do so may have been legal. The stories made few waves. If you even noticed them, you may have quickly forgotten them. Stories about the rich cheating on taxes or avoiding them are commonplace. Every so often, we learn of someone prosecuted for cheating on taxes, but a common reaction is that person simply got too greedy, and we don’t give it much thought.

On the other hand, legal tax dodging is expected. People are chumps if they don’t seek to pay the least amount of taxes legally required, right? And if they push the envelope too far, and the IRS determined that they underpaid, we don’t normally think of them as bad guys. We expect people to walk on that tax-no-tax line. (Of course, with the big cuts to the IRS over the last decade, the chances of being caught for underpayment is increasingly unlikely.) We certainly don’t want our “public servants” to be chumps, and therefore we don’t criticize them for seeking to avoid taxes. It would probably count against candidates for public office if we saw their tax returns and they “stupidly” paid too much to the government.

But when I hear about the tax dodgers, I think of the famous passage from John F. Kennedy’s Inaugural Address: “And so, my fellow Americans: ask not what your country can do for you; ask what you can do for your country.”

I have mixed feelings about this oft-praised statement. It just isn’t right, or at least it is misleading. It suggests a dangerous false dichotomy, and it comes close to presenting a totalitarian sentiment that the overriding responsibility of citizens is to serve the state.

Our country does not exist simply to be supported by its populace, or at least our government does not. Our government was formed not for the citizens to serve it but for it to aid its citizens in leading productive, happy, prosperous, and safe lives. Kennedy was wrong to suggest that you were doing something wrong if you asked what the country was doing for you. It was almost as if JFK forgot the Preamble to the Constitution, which states that the United States was being formed to “establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty. . . .” The government is there to serve the people.

There is nothing wrong in asking what your country does for you, but it should be asked with open eyes. Many, because they don’t use food stamps or grow federally subsidized crops, think that the government does nothing for them. Presumably they don’t work in a defense industry, don’t have government assisted flood insurance, don’t get social security or medicare, don’t have federal student loans, don’t work for the federal government, don’t drive on the interstate highway system, and don’t bank at an FDIC institution. And, of course, neither do they benefit from our national defense.

Our government helps us in so many ways that we seldom think about it. Try a thought experiment: However successful you are, imagine that you have the same intelligence and skills but had been born and raised in Cambodia. How successful, how prosperous, how happy, how safe would you be compared to now? Doesn’t the United States and its government give you a lot?

President Kennedy really should have said that it was all right to ask what the country does for you, but only if you accept honest answers to the question. With the blessings we get from living in the United States in mind, then we should ask what we can do for our country. If we get much from the country–and we do–we should give back to the country.

How does one give back to the country? Too often all we think about is military service, but there are many different means of governmental and non-governmental public service. And we also give to our country when we obey the law and when we pay our taxes. So why our cynical attitudes about taxes? If you volunteer for the military, you are patriot. If you volunteer extra taxes, you are weird. If you evade the military when there is conscription, you are considered unpatriotic. An art dealer, Mary Boone, was recently sentenced to 30 months for evading taxes of more than $3 million between 2009 and 2011.  (In case you are wondering, tax evasion prosecutions are rare and seldom severely punished. In 2017, 584 tax evaders were sentenced to prison with an average prison term of 17 months, according to a recent report in Axios.) Many in the art world and beyond gave support to her. Would she have received this support if they had seen her crime as an act to intentionally harm the United States, one that showed that she was deemed unpatriotic, one that made her akin to an Army deserter? A person who evades taxes, however, while having made a misstep, is not labeled unpatriotic. Military deserters may provoke the cry that they should lose their citizenship but not the tax evader.

And the tax avoider we actually applaud.

So. What can you do for your country?