Archive for April, 2009


April 28, 2009

absolutWhen your blogger was a baby lawyer, his very first trial came when he represented a young man accused of drunk driving.  In those olden times, the police took alleged offenders to a small room in the local jail.  A black stripe, probably four or five inches wide, was painted on the floor, down the center of the room.  The suspect was made to stand at one end of the stripe and then walk down it, all while being filmed on a video camera.  At the beginning of the filming, a police officer stood next to the suspect and read him his Miranda rights from a small card.

I didn’t know this until the trial started. My client had repeatedly assured me he had not been drinking at all the night of his arrest. When they wheeled in the television to show the film, my client likewise assured me they had not filmed him.

They turned on the TV and there was my client, standing quietly and steadily against the wall.  There was the black stripe.  The arresting officer came into view and began reading my client his rights.  About halfway through, the officer leapt out of view.  That was because my client had begun placidly urinating on his leg.

The judge practically fell out of his chair, he was laughing so hard.  We took a short break and I told my client he needed to plead guilty.  At first, he resisted, still telling me he was innocent.  I told him that he could either plead guilty or go back into that courtroom without a lawyer.  He pled.

My point?  No lawyer worth his salt ever accepts at face value what he is told by his client.


Which brings me to Jay Bybee, John Yoo, and the other lawyers involved in writing “The Torture Memos.”  Apparently none had ever learned that lesson.  Most of the memos are filled with long explanations about what the client, in this case, the CIA, had told them.  Not only did the lawyers accept every word as true, they then set about immunizing the CIA as if everything it said was true.

That is a fault frequently found in young lawyers.  They are gullible.  It is the reason why no lawyer under the age of 50 should ever become a judge.  Such lawyers lack the practical experiences of life necessary for such a job.  It is why Jay Bybee — barely dry behind the ears and a resident of an upper-class gated community in Las Vegas, Nevada —  has no business being a judge, let alone a judge on a court as high as the U.S. Ninth Circuit Court of Appeals. It is why it was such a mistake for Alberto Gonzales and George Bush to bring him to Washington and give him a job while they waited for a vacancy on the Ninth Circuit.  It is why it is so awful that the ideologues of both parties now insist on putting young lawyers on the bench instead of seasoned ones.

Beyond that, I have little to add to what is likely to be a long national debate on the Bush Administration’s use of torture, other than this: Watch the chronology.  The memos from 2005 that the former Vice-president wants released are not important.  The memoranda written in late 2001 and 2002 are due much more weight than those written later.  All the later ones were written by people attempting to justify themselves, based on information provided to them by other people attempting to justify themselves.  The later documents are not worthy of belief.

Just like my client of long ago.



April 23, 2009


Our last post – coincidentally the name of the British bugle call used during the burial of honored soldiers – concerned the death of Private Richard A. Dewater.  Here is a photo of his remains returning home.  His funeral is Saturday.

All of which reminds us of the words of H.G. Wells:

A time will come when a politician who has wilfully made war and promoted international dissension will be as sure of the dock and much surer of the noose than a private homicide. It is not reasonable that those who gamble with men’s lives should not stake their own.

It does not matter what your politics and it does not matter what your political stand  about the war in Iraq or the war in Afghanistan, you must agree that men who gamble other mens’ lives should be required to gamble their own.


April 20, 2009
Tyler Hicks photo from the kill zone

Tyler Hicks photo from the kill zone

Monday’s New York Times contains an extraordinarily moving piece about GI’s patrolling in Afghanistan.  I suggest you listen to the audio slide show first and then read the article.

It will remind you , as if you needed reminding, that no matter how long the adjective that is placed in front of the word “war” — for instance, “asymmetric” — it is still war and in war young soldiers behave with uncommon courage and exemplary devotion to each other.

They also die, in the mud and the rain; as did Private Dewater, age 21 years, whose body was blown into a tree by the IED that exploded beneath his feet about a minute after the photo of him crossing the river was taken.
All the photos, including the one above, were taken by war photographer Tyler Hicks who was himself in the kill zone.  I post it as a comment on his courage as well as that of the soldiers who participated in the chaos that is a fire fight.  Note the two soldiers across the river.

Webcasting from Court

April 17, 2009

courthouse-boston3Probably you believe that the federal courts of the United States are public operations.  And, to a limited extent, they are.  If you go to a federal courthouse, they are going to let you in; assuming you clear security, which is akin to the security checks at airports.  If any trials or hearings are in process you are allowed to go into the courtroom, sit quietly, and listen.

But suppose you are interested in a court proceeding in Boston and you live in San Francisco.  What then?  Suppose, for instance, you are a college student — one of those sued by the record companies for allegedly illegal downloading of music — and you want to listen or watch the hearings in the lawsuit that Sony brought against alleged college miscreants, but you can’t afford to jet across the country to attend in person.  You should be able to watch it on the internet, right?  It’s a public proceeding after all, in your United States Court system, paid for with your tax dollars. It would be simple and inexpensive for a student attending college in Boston to take a webcam to the courthouse and broadcast the proceeding over the web.

webcam1You would be perfectly reasonable and logical if you thought that way, but you haven’t accounted for the institutional and intellectual arrogance of federal judges.  They have rules against that sort of thing.

In fact, federal judges have rules against all sorts of things but today we’ll content ourselves with the almost universal rule that no one is allowed to broadcast anything that happens in their courtrooms.  The federal judges worry that someone – they don’t say who, but you can guess – might be “intimidated” by cameras in the courtroom, even little tiny webcams.

There are exceptions, of course, but the majority of today’s federal judges are white, middle and upper class males, born and raised in the Republican party, and conservative by nature. [1] They are not often the first members of our society to embrace new ideas, new technologies.

One exception is the honorable Nancy Gertner, a federal district judge in Massachusetts and the first judge from that state to operate a blog. The case that Sony brought against alleged music pirates was assigned to her.  All cases, including Sony’s, have pre-trial matters that the assigned judge must resolve before proceeding to a trial.  Most such issues are raised by the parties to the lawsuits by motions.  Many federal judges still have hearings on those motions in their courtrooms.  Lawyers for the parties stand up on their hind legs and argue the motions, the judge listens, and renders a decision on each motion, either right then in person or later, in writing.

Judge Gertner scheduled such a pre-trial motion hearing in the Sony case.  One of the college students who Sony has sued asked the judge for permission for the hearing to be webcast and Judge Gertner agreed.

But, like I said, federal judges have rules against that sort of thing.  Besides, Sony did not want you or those college students to listen to the hearing for one reason or another, so it appealed Judge Gertner’s decision to the First Circuit Court of Appeals which outranks Judge Gertner.


The three judges on the First Circuit to whom the case was assigned were not amused.  As I said, they have rules against this sort of thing.

Here is some of what they had to say.

While the new technology characteristic of the Information Age may call for the replotting of some boundaries, the venerable right of members of the public to attend federal court proceedings is far removed from an imagined entitlement to view court proceedings remotely on a computer screen.

In other words, you can go to the court, but the court is not coming to you.

We are mindful that good arguments can be made for and against the webcasting of civil cases. We are also mindful that emerging technologies eventually may change the way in which information — including information about court cases — historically has been imparted.

Historically, the way information about court cases was imparted to the public was through newspapers.  Period.  Even the opinions of the courts were not widely available, although has changed.

Yet, this is not a case about free speech writ large, nor about the guaranty of a fair trial, nor about any cognizable constitutional right of public access to the courts. Our purview here is much more confined: this is a society dedicated to the rule of law; and if a controlling rule, properly interpreted, closes federal courtrooms in Massachusetts to webcasting and other forms of broadcasting (whether over the air or via the Internet), we are bound to enforce that rule. In the last analysis, this boils down to a case about the governance of the federal courts.

The court acknowledges the “ubiquity” of internet webcasting, but all broadcasting of federal court proceedings is and remains forbidden.  They have their rules and they like them.
You can read the entire opinion of the First Circuit Court of Appeals here.

Warning: the opinion was written by Judge Selya of that court.  Judge Selya, appointed to the court by Ronald Reagan, is one of the best writers on the federal bench today, but he is given to using very large, archaic words no longer in common use even among lawyers. To save you time, here are the three stand outs from this opinion.

1. “Impuissant” – weak, lacking strength or power
2. “Perscrutation” – a thorough, diligent inquiry
3. “Sockdolager” – a conclusive blow or remark.

Two of the three judges on the case were appointed by President Reagan, the third by President Clinton.

[1] Disclosure – Even though I am a white male myself, I have spent much time arguing cases in front of federal judges with whom I have often disagreed, so I may not be the most objective observer of the species.

Footnote in American History – Twitter

April 14, 2009

Early 21st Century.  New invention in America  Twitter -computer device enables friends to keep track of your daily life, eg., when you go to bathroom, No. 1 or 2.  Also good for factoids, no analysis required – eg. 120,000 Americans killed by guns since 9/11, long live 2nd A.  No need for grammar syntax or punctuation when tweeting or twittering  Gotta go busy with tax return more later GBA  ooops too many characters.  Only get 140 must edit. So many characters, so little time.

Note to self: remember to exhale.

Happy Easter Weekend

April 11, 2009

The first thunderstorm and the first hummingbird of the season arrived this morning.  It is a fine day here and, we hope, where you are as well.

Note to Future Historians

April 9, 2009

One day in the distant future this blog will be discovered by archaeologists.  I don’t know whether they will stumble on a digital version or the hard copies, lovingly and reverently saved by my children, their children, and all my descendants.  (Are you listening children?)

Archaeologist Discovering this Blog

Future Archaeologist Discovering this Blog

But find it they will; it is unthinkable that my words will simply sink into the abyss of history.  That imposes a heavy responsibility on me.  I must write for the ages as well as you my current readers.  If I write about ephemera like Hula Hoops, Beanie Babies, and Republicans, I risk those future scientists and historians not knowing what I’m talking about.

On the other hand, the business of predicting the future is hazardous.  Will Brittany Spears live happily ever after?  Will Dick Cheney get indicted for war crimes?  Will GM survive?  And what about Madonna?  Will she get to adopt another baby?

These are weighty matters and I don’t have a clue how they will all turn out.  And if I can’t even hazard a guess, how am I supposed to know what will interest some PhD student in a thousand years?

Besides sex, of course.

(Excuse me while I insert a photo for the future historians reading this.)

Blogger Having Sex

21st Century Blogger Having Sex

I do write a little about sex here from time to time, in the Viagra Blues category, but writing about sex everyday would get to be boring reading for you and who knows what sexual mores will be a thousand or a hundred thousand years hence. Beyond the certain knowledge that the Glen Canyon Dam will be gone and the Colorado River again flowing unvexed to the sea, how am I supposed to know what the future holds? That future student will be under a lot of pressure to publish or perish — I suppose that practice will last — and if I’m going to keep her interested, I’ve got to write about stuff that will still matter far in the distant future.

Humans, whatever their lives may be like in that distant time, will probably still be asking some of the same questions about life and death that we ask, but I have no special insight into metaphysics.  And hallucinogenic drugs are not likely to be legalized in my life time so I probably won’t get to do a thorough study of alternative consciousness.  Although Joe Klein over at Time Magazine has a good idea about that. (I would lower the age he suggests.)

Blogger as an Ass

Blogger as an Ass

Well, future historian, I’m sorry I’m not Shakespeare.  Him I suppose you have heard of and read?  If you’ve read this far into my blog, you deserve a break.  May I suggest something light, say A Midsummers’ Night Dream?  Or that mystery you’ve been reading. I bet mysteries are still being written. Take a break and go read that for awhile.  Spoiler Alert: The butler did it.

But don’t forget to come back.  I’ve got lots more good stuff to tell you in future posts!

A Moment in History

April 7, 2009

Moments happen in the lives of every nation-state when all its citizens are justly proud of an accomplishment.  For example, in the recent history of the United States, we’ve won World War II, been to the moon, and rallied after the 9/11 attacks.

Last week the President — of the same Nation that once legally sanctioned  slavery — and his wife took their first official trip to Europe.  When this photo was beamed around the world, all citizens of the United States, no matter what their politics, could be justly proud of another historic achievement.


Railroad Signals

April 5, 2009
No Trains Coming

No Trains Coming

I confessed some time ago to being a foamer, someone who adores trains.  When I was a child I wanted to be a train engineer when I grew up.  This blog is named after a train.  If I wasn’t a foamer, I would probably rename the blog so more people could find it.  But I really did love that train!  And I love all you readers who found the blog notwithstanding the obscure name.  So, please forgive me for today’s quick visit to the railroad.

Recently I was out on a photographic raid and found myself, purely by accident you understand, on the main east-west line of what is now prosaically named the BNSF, standing for the Burlington, Northern, and Santa Fe.  Properly, I was on the main line of the Atchison, Topeka, and the Santa Fe but the Burlington corporation gobbled it up some years ago.

Three Trains Coming

Three Trains Coming

In those olden times, freight trains had cabooses and signal lights were illuminated all the time.  Now, cabooses are gone and signal lights are illuminated only when a train is in the signal block.  Once, you could look down the tracks and if you saw a green light you knew no trains were coming from that direction.  Now, if you look down those same tracks and see a green light, it means you are about to be run over from behind, because that light would not be on unless a train is coming from the other direction.  The moral of this story?  If you are trespassing on the railroad and you see a green light, get off the tracks fast!

Two West-bound Trains

Two West-bound Trains, One Slow

Moreover, in those olden, proper times, the AT&SF used semaphore signals, visible from great distances and from the highways so it was easy to tell if there was a train coming.  Now, mostly the semaphores have been replaced with hooded, energy-efficient lights that you can’t even see from the highways.  Bah.  No semaphores, no cabooses, signal lights not illuminated, no rotating Mars headlights on the engines, grade-crossings where the trains don’t sound their whistles, no mail hooks, and no unlocked, open box car doors.  It’s enough to make a grown man nostalgic.

Departing Engineer

Departing Engineer

As you can see from these photographs trains were lurking in the vicinity that afternoon.  In fact, one stopped just shy of where I was standing and the engineer got out and visited while waiting for another train to overtake his train.  He was kind enough not to refer to me as a foamer.  But he’s only been an engineer for eight years so he may not remember those thrilling days of yesteryear.  You know, back when trains were proper trains.
Foamers, please see the comment to the earlier post from a former railroad employee with some important safety information.