Kennedy v. Louisiana: I Agree 2 -- More Thoughts

Justice Alito argues in his dissent that there is not a national consensus to prohibit child rape that could be reflected in the "evolving standards of decency."  He's probably right about that.  As he notes, the language in the Coker decision thirty years ago prohibiting the death penalty for rape of an adult woman was broad enough to allow most state legislatures to assume that a murder was required for death.  That was pretty well my assumption and I assumed the Texas legislature was doing its usual meaningless posturing when the death penalty was extended to the death penalty for child rapes.

I think judges are more reluctant than the communities "standards of decency" to impose the death penalty in rape.  The confidence level that a crime has been committed in a murder tends to be higher in a murder than with a rape.  With a murder there is usually a body and a murder weapon.  It is of course possible to confuse a murder with an accident or a suicide and it is possible to get mixed up about who did it.  With a rape, there are the issues of consent and even whether there has been a sexual act.   

So if rape can be worse than murder (and it can) why not forge ahead and kill rapists?  Well, its the Scottsboro Boys.  It was 1931 and the Chattanooga to Memphis freight train was filled with young hoboes, white and black, male and female.  There was an altercation that involved the white teenagers being tossed off the train.  They complained to the stationmaster who wired ahead and a posse Paint Rock, Alabama stopped the train.  They unloaded all the blacks they can find, tied them up, threw them on a flatbed truck and hauled them to the jail in Scottsboro, Alabama.

They were brutalized legally and in the jail system.  They were given the death penalty without lawyers.  The racism was undisguised.  The case became a international scandal and new law was made trying to find a way to keep Alabama from lynching the young men.

Most likely from the examining doctor's testimony a rape was never committed.  The girls had been seized by the posse in Alabama and were under pressure to cooperate.  The doctor found sperm, but it was not motile and too old to be from the train ride.

As I remember the history I read years ago, had it not been for the American Communist Party the teenagers would most certainly have been hanged.  The NAACP was a afraid of the case because of the issue of rape.  Other normally activist groups were similarly passive.

A black on white rape was easy to allege, hard to deny and could serve as a great tool to control an under-class.  I think this is part of the reticence today to apply the death penalty to race cases.

However, I understand the reluctance of Mr. BB and others to rely on "evolving standards of decency."  I have written before here about the risk that evolution can give a bigger or a smaller product at the end of the process.  Little horses have evolved into big horses, but big armadillos have evolved into little armadillos.  Our sense of dignity historically allowed genocide against different Indian peoples and could well evolve into mass murder and internment camps again.

The confidence placed in the written word is misplaced though.  How much is the Article I, the Texas Bill of Rights honored?  Was has become of being secure in a persons, etc?  Where are those 4th, 5th, and 8th Amendments when we need them?

Original intent is very logical, but are we willing to swallow the pill that comes with it.  Our evolving sense of dignity has rejected both banishment and punishment by hard labor.  Do we want these back?

The founders' sense of decency allowed slavery and prohibited women the vote.  Are we ready to return to those wise days?

And as Mr. WC notes, homosexual acts could bring the death penalty.  In fact one Joseph Ross was executed for "buggery" by the state of Pennsylvania in 1785.  That's not all, though.

 Blasphemy and idolatry were capital crimes in Connecticut, Massachusetts, and New Hampshire.  Adultery was capital in Connecticut, Massachusetts and New York.  Sodomy and bestiality were capital throughout the northern colonies, even for the animals involved.

Other capital crimes included robbery, burglary, arson, manslaughter, rape, highway robbery, maiming, burglary, arson, witchcraft, counterfeiting, squatting on Indian land, prison-breaking, piracy, perjury, embezzling tobacco, fraudulently delivering tobacco, forging inspectors' stamps for tobacco, smuggling tobacco, stealing hogs, receiving a stolen horse and concealing property to defraud creditors and burning timber intended for house frames.  

There were special capital statutes applicable only to blacks.  These included burning or destroying any grain, commodities, or manufactured goods, enticing other slaves to run away or "bruising" whites.  Virginia feared attempts at poisoning and made it an offense for blacks to prepare or administer medicine.

I hope an execution for most of these offenses would offend the sense of decency for most of us.  The colonial and state legislatures, though, gathered a majority to allow an execution for all of these laws.

Can't we acknowledge the sense of decency has and should change?  Or should go round up a black pharmacist and kill him to avoid the threat of poisoning?

Kennedy v. Louisiana: I agree.

Kennedy v. Louisiana.  This is the case that told Louisiana they could not execute a man convicted of child rape.  I have finally, and somewhat belatedly, waded through the 65 page decision and am no ready to toss my two cents on the scale.  I would have voted with the majority and prohibited the execution, but I may have given my own concurring decision.  Not that my opinion matters much, but since I get to give it for free, why not?

Let me first, though, describe my friend who while waiting for the bar results and impoverished, worked in a chicken factory in  East Texas.  I never saw the place, but she described it as thousands of chickens in all stages of hunger, drugging, narrow confinement and slaughter.  It was twenty years later and she would not eat a chicken.

I will confess that I view every new Supreme Court decision through images of thirty plus years of watching the hunger, drugging, narrow confinement and slaughter of human beings.  Not only do I lack the desire to eat them, I just don't see much point in their confinement and slaughter anymore.

So why not kill child rapists?  I don't dispute the proposition that rape can be a more depraved crime than  murder.  Rape can destroy a life just as effectively as a bullet in the brain.  Most of the sexual predators I have represented were childhood victims of rape.  It is much like those horror movies in which, once bitten by the vampire, you become one.  

Moreover, a lot of murders are not particularly depraved.  Anecdotally, at least, they make the best trustees.  The murderess who is chosen to be the nanny to the warden's children is part of prison lore.  My dear old dad requested a parolee as a care-taker and, believing the lore, asked for a murderer.  I ended up putting him in a nursing home instead, but the sentiment was there.

A lot of crimes are more depraved than murder.  Bhopal for instance.  AT&T in Chile.  IBM in Nazi Germany.  Asbestos companies.  The Pinto gas tank.  The War in Iraq.  

So, for me, the proportionality argument does fall flat.  But I have other and I think better arguments why the decision was correct.  More later.

Lynchings, Poverty and Executions

I'm only recently back from my annual pilgrimage to Gerry Spence's Thunderhead Ranch near Dubois, Wyoming.  Sara and I went for the capital punishment seminar.  Sara is returning as an intern for the Trial Lawyer College this summer.

I have attended since 2001.  The top defenders in death penalty cases come from around the country to work on their cases.  

A week of death is not exactly a cheery prospect, but the weather is cool, the surroundings are peaceful.  Because there is no internet or cell phone access, we have an enforced isolation that allows reflection.

This is a very unselfish group of lawyers.  Lawyers in other fields often hide their secrets of success.  Professional jealousy and the competition for clients may result in protecting what little is known to make sure some other lawyer doesn't get the case.  Capital punishment defense lawyers do not do this.  No one ever knows if the next case is the one that will result in the type of melancholy that ends a career.

So skills and ideas are shared freely, making it an easy field to enter.  And of course poverty and crime are a growth industry.

One interesting discussion is the relationship between slavery and the death penalty.  States with a legacy of slavery are far more likely to have the death penalty.  To the extent the lynchings were used to enforce slavery and then Jim Crow laws, those areas continue with the death penalty.  A map provided to me by my scholarly friend, Phillip Cowen, darkens the counties that had lynchings; Phillip argues there is a correlation between the lynchings in past and legal executions today.  Cameron County is of the darkest color.

Why would either be necessary?  I think they are rational.  If you want to terrorize an underclass to keep them from challenging people in power, lynchings and legal executions are a tool in the arsenal.    Because Cameron County has an extreme divide between rich and poor, we would expect many death sentences.  And we get them.

Tricycling Brownsville

So Jeff now daily rides his bicycle to the federal courthouse and parks under the awning while he presides for the Brownsville division over the defense of the huddled masses yearning to breath free. Anyway, with the usual dollop of mimetic desire, I too wanted to ride a bicycle to the courthouse.

Kathy, though, insisted that I could not walk without falling so the risk of a bicycle was too great for the meager amount of life insurance I had purchased. Because I suspected I was unable to qualify for more life insurance, we compromised on the adult tricycle. As it happens, Jeff had purchased the tricycle for his suegro who it seems is even more feeble than I am and he had only been able to ride it once.

Kathy and I headed for the island in Sara's truck, fighting all the way. My daughters thought it was fine if I rode a tricycle, but only if I wore a disguise, so no one would recognize me as their father--Groucho nose, glasses and mustache.

On the way back, somewhere along the way, the flag, you know, orange on a tall fiberglass pole, blew away.

Back on the ground in Brownsville, I raised the seat and tightened things up. Kathy insisted I ride around in the parking lot behind the house some before I ventured out. I also dug up an old bicycle cable with a lock on in that belongs to some long since stolen bicycle. I did fine in the parking lot so I ventured out into the larger world, humming the tune from Indiana Jones.

The first problem is car driving in downtown Brownsville is a blood sport and there are extra points for bicyclists. There was no way I could go on the busy streets. The next problem is that tricycles are wider than bicycles and it takes some calculation to make sure I didn't get stuck on a curb.

I soon discovered 8th Street, low traffic and a nice parking area halfway between the state and federal courthouses: a light pole perfect for locking up an adult tricycle. There wasn't a lot of other traffic.

This particular adult tricycle has a basket of a perfect size for my old beat-up leather briefcase.

However, there is the problem of sunburning the top of my bald pate. My usual straw fedora won't stay on with the blazing speed of an adult tricycle. I dug a gimme cap out of the closet that says "Relax" on the front and it seems to work.

The neighborhood kids are also out on their bikes and when I drive by they come out and join me for a couple of blocks. A half a dozen kids on bikes, one pulling another in a sort of bike trailer filled with yet another kid, cruising the wrong way down 8th street. It may appear to be an odd gathering, but outside of inmates, it has become the larger part of my contact with the world.

Jeff tells me this is a good green thing to do, but then he is much more hopeful about life. I just keep thinking how much money I could save if I could raise enough money to be able to afford to sell the car.

Pascal's First Three Provincial Letters

"Go West Young Man," is the phrase Horace Greeley famously stole from another editorial. "Read Pascal, Old Man" is what my kid suggests. So I have been trying.

I dutifully hopped on the adult tricycle loaned to me by Jeff (the retired syphilis hunter) and peddled over to the Brownsville Public Library. There, the only Pascal available was volume 30 out of the Great Books publication. So I check it out and I also picked up both volumes of the Syntopicon for browsing.

For the last several days, I have been reading The Provincial Letters.  It seemed reasonable to start at the beginning of the book, because I don't know enough about the writings to skip to the good parts.  Also, the last third is filled with science and math and equations that I will probably never be able to read.  Unfortunately several days of reading and re-reading has taken me only through the first three letters.

Austin sneers at the reading of interpretations, histories, biographies, etc. from the classic writers, but with hard guys, I tend to read around them a while before I can get up the courage to actually read the book. Sometimes I only read around them and never get to the book.

In the case of Pascal, except for the two page "Biographical Note" at the beginning of the Volume 30, I haven't read anything.  Usually, trying to get ready to read something this intimidating, I would first read a biography of Pascal, then I would read a history of 17th Century France, then I would read a history of mathematicians and then I would pick up a "the Best of" type of collection that has summaries and explanations surrounding snippets of original work.  The down side to this approach is that I may never actually read anything by the author I am reading about so I don't get a chance to see if I agree with any of the critiques.  For instance, I once read a good biography of James Joyce.  I still have both Ulysses and Finnegans Wake knocking around in the house, unread.

For what very little it may be worth, this is what I have gleaned from the first three Provincial Letters:  Pascal was attracted to a form of French Catholicism called Jansenism.  A theologian for the Jansenists named M. Arnauld was "brought before the Sorbonne" which seems to mean was tried in a court that decided correct theology.  The Sorbonne must have been large because 71 doctors tried to defend him and "on the other side" eighty secular doctors and some forty mendicant friars condemned him.

Pascal came to the rescue with these Provincial letters.  The orthodox view was promoted by the Jesuits and this was that every person had "sufficient grace" given to him by God to obey the divine commandments.  The Jansenists said, maybe so, every person has sufficient grace, but not every person was given by God the "efficacious grace," so they couldn't actually obey the divine commandments by putting this sufficient grace into action.

The Jesuits accused the Jansenists of believing like Protestants and in particular, Calvinists, that God had given this efficacious grace only to a chosen few.  Then there were fence straddlers who agreed with the Jansenists, but wanted to stay on the right side of the argument politically who said, "Sufficient grace is given to all, but not every one has the type of grace that will suffice."

Pascal notes that the choices given are being censured as a Jansenist, being a heretic or being a blockhead and offending against reason.

Pascal has one of his characters argue that silence is the safest position.  If you cannot remain silent, the next safest position is being a blockhead.

I'm sure there is a moral to this story, a punch-line to this joke, a crisis to be weathered, a lesson to be learned.  If I get to the end and figure it out, I'll let you know.  

Doocing

People seem to be willing to post almost anything on the internet, about themselves, about their friends, about their enemies, about their employers.  I have been amazed.  I don't know how to get on facebook, but I have seen it when the kids do and have been surprised at what all the youngsters will brag about--sexual escapades, employment hi-jinks, drug use.

I don't doubt these things have been topics among friends and acquaintances into pre-history, but now they are permanent and available to all.  In junior high school, we would quake because what we did was on our "permanent record."  Now it really is.  And if it seems cute enough at age 16, like a little tattoo of a pussy cat, say, at age 40 and beyond it becomes grotesque.  Now that aging tattoo is stretched  across continents and hardened into scarred pieces of old flesh.  It is like having that old shoplifting mug shot etched on your sagging jowls.

I suppose we may finally learn some tolerance with everyone's past being dragged around like a dead prehensile tail, but it is not (to my eyes) a pretty sight.

This is all new to me and requires teaching some new tricks to an old dog.   For a long time I resisted putting a "." in the middle of a sentence.  I've given up, of course, on that now.  I still don't know what various signals mean or how to use them.  LOL :-) :-( :-o, etc.  But I do now know "blog" is short for "web log" and I know the meaning of "doocing."

"Doocing" is:  

dooced adjective /dust/  having lost your job because of something you have put in an Internet weblog

dooce verb [T] (usually passive) /dus/
doocing noun [U/C] /dus/

The word came from a blog by Heather B. Armstrong, still in existence, dooce.com

 Ms. Armstrong coined the term by misspelling the word "doood," a term that must mean something to someone, but not me.  She was working as a blog designer, wrote about her employer and got fired.  She seems to have taken her fame on to bigger and better things based on the references to book signing parties on her blog, but her ultimate advice is as follows:

“I started this website in February 2001. A year later I was fired from my job for 

this website because I had written stories that included people in my workplace. 

My advice to you is BE YE NOT SO STUPID. Never write about work on the 

internet unless your boss knows and sanctions the fact that YOU ARE WRITING 

ABOUT WORK ON THE INTERNET.” 

Since Armstrong, there have been many notorious cases of people being dooced.  Ellen Simonetti was fired from Delta airlines for some hardly racy photographs of herself in an flight attendant uniform in an airplane.  Mark Jen was fired from Google for posting comparative pay benefits between Google and Microsoft.  Jessica Cutler was a staff assistant from an Ohio Senator who was posting anonymously, but was outed and then fired after she described her ventures into prostitution to augment her meager staff pay.

At this stage there is very little protection for employees of private employers who are not careful and offend their bosses.  The larger issues of defamation and disclosure of trade secrets are also being tested by the law.  I am interested in the legal developments related to blogging and plan to do a few posts along these lines.

Pigsmeat Spence and the return of Food Riots

Do you ever wake up in the morning thinking of Pigsmeat Spence.  Yes, this happened to me again this morning, so I thought it must be time to unburden myself.

Pigsmeat was about five feet tall.  He was born in 1750 and died in  1814.  He was one of nineteen children and spent a lot of time in jail.  He once got in a fight with a political opponent and was beat up with a quarterstaff.  (This is the English hardwood fighting stick Little John used in the Robin Hood story.)  He married, but his wife, preacher and publisher all died before Pigsmeat reached the age of 45, so he lived the last part of his life alone.  He was usually penniless.  He made some money teaching and selling tracts about politics and coining money.  He had a son who helped him some in his businesses and married a young pretty servant girl as his second wife, but she deserted him.

I have a warm spot for Pigsmeat: he could see the problems, but couldn't really figure out a good way to fix them, so he came up with a series of plans that confused his followers.  He was responding to the enclosures that were forcing people off the land and causing starvation.  He was thought to favor the nationalization of land, but he didn't trust the government believing the rich would use political power to take advantage of such a system.  He also advocated land owned by parishes for the benefit of people in the parish.  Critics complain his various plans were inconsistent and half-baked.  I see him, then, as a searcher after truth who says what he believes and then when he figures out it won't work says something else.

Pigsmeat's real name was Thomas.  He got the apodo of Pigsmeat after his publication, "Pig's Meat or Lessons for the Swinish Multitude."  Numismatists still value the tokens he minted to celebrate his magazine.

He took the name in response to an Edmund Burke quotation in response to the French Revolution, "Learning will be cast into the mire and trodden down under the hoofs of a swinish multitude." 

The aristocracy was afraid the French and their revolutionary ideas were on the way.  Pigsmeat was especially peaved that the a local Duke hoarded the bounty of the land when people were hungry.  He says this:

What must I say to the French if they come? If they jeeringly ask me what I am fighting for? Must I tell them, "for my country"? My dear country in which I dare not pluck a nut? Would they not laugh at me? If the French came I would throw down my musket, saying: "Let such as the Duke of Portland, who claims the country, fight for it."

No wonder he kept getting in trouble.

Now why has Pigsmeat been bubbling up in my dreams?  The food riots, probably.  Pigsmeat Spence was formed by food riots.  His favorite preacher, addressed them in sermons.  (Where are these kinds of preachers now that we need them?)

Food riots in Malhalla, Egypt.  Food riots in Haiti where there has been a sharp increase in the sale of "dirt cookies," (cookies of mud with salt and shortening).  Also in Burkina Faso, Cameroon, Ivory Coast, Maurtania, Senegal and Bangladesh.  Three  billion people survive on less than $2 per day.  In 2007 the price of grain rose by 42 percent and dairy products by 80 percent.  In the last twelve months alone what prices have increased by 130 percent, and rice by 74 percent.

In the United States food inflation is the highest in decades.  An unprecedented 28 million Americans are expected to receive food stamps to survive this year.

Today's Washington Post in an article by Colum Lynch says, "The United Nations is already struggling to avert a famine in Somalia and is feeding more than 2.7 million. 'What is of major concern is the thought that the entire emergency food system may not be able to cope,' according to an internal U.N. paper."

More on Success--Chesterton

In earlier discussion of whether my friends and I are failures, I missed our strongest defender-- G.K. Chesterton.  Under the title is an essay that I could never succeed in surpassing on the subject.  But I will make some comments on his comments just so I can be close enough to be warmed by the embers of his wordsmithing.

"To begin with, of course, there is no such thing as Success. Or, if you like to put it so, there is nothing that is not successful.  That a thing is successful merely means that it is; a millionaire is successful in being a millionaire and a donkey in being a donkey. Any live man has succeeded in living; any dead man may have succeeded in committing suicide."

This is not what is normally meant we worry about success or failure:  "You are a success at having spent far more money than you have earned."  "You are a success at not paying bills on time and incurring late fees."

For years I have restricted my New Years' resolutions to a plan to eat a little more, gain some more weight and get less exercise.  These are resolutions I can keep.

Chesterton uncovers the real aim when we talk about success:  success in obtaining money or worldly position.  He then exposes the self-help books that pretend to teach success.  There are only two ways to success at any decent occupation, say, bricklaying or writing books:  "One is by doing very good work, the other is by cheating. Both are much too simple to require any literary explanation. If you are in for the high jump, either jump higher than any one else, or manage somehow to pretend that you have done so."

Accepting this and doubting that at this stage that I can get any impressive measure at obtaining money or worldly position, I have decided to merely pretend I have done so.  Please spread the word that wrote the great American Epic poem and then moved on to invent the perpetual motion machine.  For these I won back to back Nobel prizes in literature and science.  My Olympic Gold medal was only in curling, but it shows I am well rounded.  

Chesterton then looks at the surest way to riches:  There are many definite methods, honest and dishonest, which make people rich; the only "instinct" I know of which does it is that instinct which theological Christianity crudely describes as "the sin of avarice."

My Dear Old Dad used to say, "Behind every great fortune is a great crime."  I'm not sure he thought this was a bad idea:  he would have enjoyed both the fortune and the crime.  However, the game was to look at the great fortune and find the crime that preceded it:  smuggling, war-profiteering, consumer fraud, monopoly, theft, murder.

Why shouldn't we view someone who hoards too much wealth the same way as we view someone who drinks too much whiskey or shoots too much heroin?  In all these cases, the harm both to the addict and society is great-- I would suggest greater in the case of the rich man.  After all Jesus never warned against alcohol or drugs.

But Jesus must have meant something when he said,...I tell you the truth, it is hard for a rich man to enter the kingdom of heaven. Again I tell you, it is easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of God.  Matthew 19:24

Chesterton makes the point about lust:  Puritans are always denouncing books that inflame lust; what shall we say of books that inflame the viler passions of avarice and pride? 

TB and MRSA and Ronald Reagan

I will always think of Ronald Reagan as the president who brought back tuberculosis.  I think of all the evil he did, corruption at home and abroad, his legacy should most appropriately linked to inflicting disease on America.

I thought I had remembered Reagan cutting of the tuberculosis funds in the eighties, but I could find so little reference to this political crime, I began to doubt my memory.  Ironically, when you run a search of "Ronald Reagan and tuberculosis" you mainly get an outbreak among the sailors on the USS Ronald Reagan in 2006.  

My memory in this case was correct.  These are from a publication of the Johns Hopkins University Press in 2004 (click the title):

        Unlike the outbreaks of “emerging” diseases like Ebola, Hanta Virus or AIDS, when New York City faced an epidemic of resurgent tuberculosis in 1990-91 the famous disease detectives of the CDC  faced the challenge, not of identifying a new pathogen, but of developing policies to correct a breakdown in institutional disease control that had been more than a decade in the making. The few remaining tuberculosis specialists in the United States had warned for years that a TB resurgence was likely due to the dismantling of the city’s public health surveillance and treatment programs since the 1960s. One of those critics was Dr. Lee Reichman, Executive Director of the National Tuberculosis Center in Newark, N.J., who in 1992 described the upsurge in TB cases as “horrendous” to a New York Times reporter, remarking that, “This was a 100% preventable and curable disease.”

And,

   The rightwing political climate had generated an atmosphere of retrenchment in the public health community. Every year from 1981-87 the Reagan Administration called for repeal of the federal tuberculosis program (Ryan 1992).  Ironically, in 1986, the year when New York City’s TB case rates suddenly rose by 20% over the previous year, the federal-supported TB surveillance program for drug resistance was discontinued (Berkelman 1994). 

Of course, in the early eighties, tuberculosis was not much of a problem, but Reagan guaranteed it would become one.  I first started seeing tuberculosis during about the same time in Brownsville in the jail when the jailers were getting sick and calling about workers' compensation claims.  Of course, we could then still blame the problem on sick people coming across from Mexico.  Not anymore.

Now we are hearing about MRSA or the antibiotic resistant strains of staph.  These have been around for a while.  I had a case involving an infection in a local hospital about 15 years ago.  My client had gone into the hospital for a knee replacement.  The radiologist had burned him and then the burn was infected with an drug resistant staph infection.

The expert witnesses gave information about the disease, but the facts that struck me were the origin of the disease and why it sticks around.  As I recall from the expert testimony, MRSA arose in Detroit among drug users who were passing needles around and treating themselves with antibiotics, but not allowing a long enough course of treatment to cure the disease.  Soon, though, it was in hospitals all over the country.  The problem is that modern hospitals don't have windows that will open.  The bug is killed with fresh air and sunlight.

Now, the bug sits in wait in almost every hospital, jail, military base and school.  About a third of us would show positive for some staph infection if we all got our noses swabbed.  Many people don't get sick, but some are more susceptible than others.  Especially those with open wounds or compromised immune systems.

What does this have to do with government?  First, this is not even a disease that requires reporting to the CDC, so we don't know how many have it or how many have died.  However, it is generally believed as infectious diseases go, to be the biggest killer in the country.  Second, it is a disease perpetuated by a large poor, sick, incarcerated population.  

Twenty eight years of Reaganism has taken a toll.  I hope it ends this year.

Brownsville: Land of the Free

United States Supreme Court Justice Potter Stewart famously said of hard-core pornography, it may be indefinable, but "I know it when I see it."  That is roughly my view of defining freedom.

In general, if a large man with a pistol or an automatic rifle is nearby telling you what to do, this indicates a loss of freedom.  If someone with a weapon insists that you take off your shoes or belt or throw away your toothpaste or takes away your telephone, this indicates a loss of freedom.  Freedom is hard to find crossing a border, going through Sarita, Texas, getting on a plane, going into a courthouse or driving around near the border.

If someone with a gun asks to search your trunk or open your bags or look through your papers, this is a loss of freedom.

If someone with a gun expects to get an answer when your are asked why you went into Mexico, or asks for your ID or a birth certificate, or sends you through a metal detector or won't let you carry a pen-knife, this is a loss of freedom.

There is a certain indignity in much of this.  As long as I am healthy and don't have holes in my socks, it is not much to me, but watching airport security search my old mother when she was in a wheel chair, seemed beyond the pale.  Watching older jurors struggling to take off their shoes and put them back on to get into the courthouse was painful.  After all, they were ordered to be there by the court and probably didn't want to be there.

Maybe when the Bill of Rights are observed, this is a good American definition of freedom.  That poor battered document cannot be taken at face value, though.  The exceptions are bigger than the rules.

Remember the hubbub among minor politicians when Kris Kristofferson wrote, "Freedom is just another word for nothing left to lose?"  And he was talking about romance and Bobby McGee.

I don't know if it is just my mood in the last few days, or I am changing my mind about the world, but increasingly I am less concerned about societal freedom than those things that make me feel freer.

There is not much I can do about going to the courthouse, but I fly and cross the border less and less as time goes on.  And this makes me feel freer.  I am freer in my house and on foot than I am out driving around.  "Did I remember the seat belt?  Do I have my insurance card with me. Is my inspection sticker current?"  I am freer in Brownsville than Harlingen or Denton, Texas.  There are fewer cameras to report whether I paid a toll or had a full stop.  Also, there is a more tolerant attitude for minor foibles among the police, judges and prosecutors than in other places I have lived.

This was part of the reason I moved to Brownsville in 1980 in the first place.  I had lived in McAllen when I was in grade school and had fond recollections of the Valley.  I was representing the Moonies, that is the Holy Spirit Association for the Unification of World Christianity throughout Texas and Oklahoma after the Regional Commander of the Moonies had been beaten by the Chief of Police of Aubrey, Texas and been charged with an assault on a police officer.  The young man had been selling flowers door to door, and had offended the sensibilities of that mean, inbred little town, Aubrey, Texas.

Anyway, as part of the work I was hired to do after defending the Regional Commander, I started suing cities across Texas and Oklahoma to challenge the constitutionality of their ordinances aimed at keeping out the Moonies.  Mostly, I was met with hostility by the City Attorneys, a group who are notoriously ignorant of the United States Constitution.

Then I received a letter from Brownsville that made me love the place.

Brownsville was an exception.  Instead of the usual nasty response, I received a nice letter from Shel Weisfeld who was then serving as a contract assistant city attorney.  Shel in his letter apologized for the City having inadvertently and improperly restricted the free exercise of religion.  He saved the City a lawsuit.

A few months later I came to Brownsville to see what sort town this must be.  And I began looking for a place to live.

Austin's interpretation of "That our happiness must not be judged until after our death."

Mr. Dupin observes: Perhaps its the translation,but I find it difficult to take any real meaning from XVIII other than what seems apparent on its face: "That Men Are Not to Judge Of Our Happiness Till After Death" because Fortune plays a role.

This is my reading as well. An aside, Uncle Toby: The translation I read is by Donald M. Frame. It is a 20th Century Translation first published in 1957. Mr. Dupin uses Charles Cotton's translation from the late 17th Century. John Florio's translation from the early 17th Century is the one to which I linked yesterday's post. Both Cotton's and Florio's translations are pleasing to the ear. Frame's is easier for me to understand.

Austin, though, tells me I am missing the whole point of the essay. He gives three clues to support his argument: 1. When referring to the Latin, pre-Christian writers, "fortune" is not capitalized, but when referring to the present day, "Fortune" is capitalized. 2. When reaching his conclusion, he notes, "God has willed it as he pleased...." 3. Montaigne notes three (not two or four) execrable and infamous persons whose deaths were ordered and "in every sense composed to perfection." 4. The "by his fall" language echoes the descent into hell of Jesus and other Christian references.

Austin says, we may dismiss one or two of these clues, but at three,we have to pay attention because Montaigne fills his essays with hints of his true intentions. And however much he may love the classics, Montaigne is still very much the Christian.

This, then, is the the argument Austin gives from the hints: "That our happiness must not be judged until after our death" is a rejection of the pagan virtues and an embrace of salvation through Christ. Upon death, the "power and fame" to which we aspire by a career is surpassed by something more grand and glorious than we have desired or hoped.

The pagans before Jesus recognized that "however fortune (small 'f') may smile on them, men cannot be called happy until they have been seen to spend the last day of their lives. The pre-Christian standard is the "state" of the person. If a king is captured and ends up a carpenter or clerk to Rome, his station in life has changed and he cannot be happy.

Today (Montaigne's time) we have Jesus and the present time is indicated when saying, "For it seems that, as storms and tempests are provoked to humble the pride and loftiness of our buildings," so are there "spirits up above" who are envious of grandeurs here below and will wreak havoc on human things and trample all that speaks of human eminence and laugh them all to scorn.

It further seems (again in Montaigne's Christian present tense) that "Fortune (big 'f') sometimes lies in wait precisely for the last day of our life, to show her power to overturn in a moment what she has built up over many years...."

The three execrable and infamous persons are meant to remind us of Jesus and the two thieves on the cross. And the holy trinity. Who but Jesus had a death that was "ordered and in every circumstance composed to perfection?"

By embracing Christian Grace and rejecting the ambitions and designs of man, we can gain a gallant and fortunate death. Through Christ, we may arrive where we "aspired to without going there, more grandly and gloriously" than we had desired or hoped. By our fall we may go beyond the power and the fame to which we had aspired in by our careers.

According to Austin, in this essay, Montaigne answers the question, "Does it matter, this success or failure in life?" with, "No. Success and failure are replaced by something more grand and glorious--the Peace of Christ. This is what allows us when we die to "go well, that is to say quietly and insensibly."

Mr. Dupin also notes that as with the Bible, "improper translation and interpretation can lead to unintended results." This has long concerned me. If Jesus spoke Aramaic, and then His words were written down in Greek and much later translated to English, how am I to rely on what Jesus supposedly said, not speaking or reading Aramaic or Greek?

Neither do I read French. Oh, to be an exegete.

Interpreting Montaigne: Ed's superficial reading of the Essay of judging happiness only after death

I was pleased with the comments yesterday's blog elicited.  As Mr. Dupin observed, Montaigne (the granddaddy of all bloggers, GOAB) does say it best, in his essay, (aptly named for our subject) "That our happiness must not be judged until after our death." He begins by quoting Ovid:

No man should be called happy till his death; 

Always we must await his final day

Reserving judgment till he's laid away. 

Here I have the aid of my son, Austin, back from his studies for a few days, in interpreting: Ovid's stories involve metamorphosis.  The man with the grief in his old age was Cadmus.  "Actaeon, one of your grandsons, was your first reason for grief, in all your happiness, Cadmus."   The grandson grew horns on his forehead and his hunting dogs ate him.   As long and happy as Cadmus' life had been when his grandchildren began to suffer, his joy ended.

Mr. Hugo 2006 adds the alliterative "lawyers' lament" verdict to the concerns about success and failure.   But we lawyers cannot take comfort from the fact we are largely too selfish to find ourselves working in a hospice;  we very well may end up the recipient of the care.

Montaigne makes the point, "God has willed it as he pleased; but in my time three of the most execrable and most infamous persons I have known in very abomination of life have had deaths that were ordered and in every circumstance composed to perfection."

And it feels like to me, good people often have nasty, ugly deaths.  When the wrong organs begin to fail before the rest of the body, long periods a pain result.

Montaigne also tells us, "In judging the life of another, I always observe how it ended; and one of my principal concerns about my own end is that it shall go well, that is to say quietly and insensibly."

Montaigne is concerned that we may live just a day too long.  He quotes someone named Laberius:  "Truly this day I have lived one day longer than I should have."  When I first read that I tried to figure out who Laberius was and why he thought he should have avoided a certain day.

One guy named Laberius was ridiculed by Julius Caesar but he won the day by being quicker witted.  This is all I can find out about him, but it doesn't seem like his last day disgraced his historical legacy, in any case.

Another guy name Laberius died in Britain with a spear through his lung.

Lingering on seems to give the chance to repair a reputation.  It is rather like refusing to pass the examination of a harmful witness until something good comes of the testimony.  A line in Chinatown made this point: "Course I'm respectable.  I'm old.  Politicians, ugly buildings, and whores all get respectable if they last long enough."

Presidents are said to worry about what history will say.  And I have friends who worry about a legacy.  "Will I be known as a greater lawyer than Clarence Darrow?"  That sort of thing.

Now my task is to decide whether or not it matters.

That all having been said, Austin tells me I have missed the whole point of the essay.  On the next post, I'll describe what he says it really means.

If At First You Don't Succeed, Failure May Be Your Style. Quentin Crisp

My friend Randall (who hereinafter will be referred to as R. to protect his anonymity) called with a topic. When are we failures in life? His wife tells him he is a failure and he is past 60 with the kid grown and gone, so there is not much time to turn things around at this point.

R. disputes her conclusion. He sees his life as largely a success and his wife sees it as largely (or completely and totally) a failure. A loss. Not really worth having been lived.

I for one would be willing to declare R. a success on the basis of being a successful father alone. This was Jackie O's definition and she was rich and famous. So R. can accept this definition if he wants. His wife won't, but I'll give it to him. For that matter, it would be easy to make an argument for R. He was elected a member of his city counsel and had many successful law suits that mattered at least to his clients. Somehow, though, I don't think these would weigh much in the wifely judgment day.

I have further assured R. that in my experience, all husbands are sooner or later failures, completely and utterly. I further assured him that Kathy is always asking me, "If you're so smart, why aren't we rich." She throws out the decade that has passed without a vacation. She notes my car always looks like a wreck. My clothes are terrible. My dog is fat and has gas. She grumbles about the 32 inch waist I had when we were married that keeps swinging between 40 and 50 inches. Despite my soaring success in life (as I see it), she is sure I have failed and failed her as well. "I'm worried about my future," she cries.

And it is the same with all of our friends. I mentioned our mutual friends, all of whom are now about sixty and failures in the eyes of their wives. Some have actually saved money, have a nice house, annuities and 401 K plans, but their wives are still wrecks about the declining income and the likelihood of destitution. None of this seemed to comfort R.

Anyway, it is now incumbent upon me to redefine success and failure in such a way that R. and I and all of our friends (who have lived so long and have so little to show for it) are not failures.

Oddly, I don't remember much comment about the subject of failure from philosophers or novelists or poets in my decades of aimless and unproductive reading.

However, I do think when we read a translation of Aristotle and his definition of "happiness," this is something we would now call "success." My hope is that Aristotle can bail out R. and me and all others similarly situated. If we can claim to be a success by Aristotelian standards, this would largely negate being a failure when we are weighed in the wifely balance.

The word we translate as happiness is eudaimonia which breaks down, eu, "good" and daimonia, "spirit." By extension, it refers to good fortune or what we might usually call "success."

Happiness for moderns is subjective. You can take a pill or have whiskey and become happy. For Aristotle, a child could never be happy, because not enough life had been lived. Aristotle grappled with the concept of not calling anyone happy until his death and believed that the life of happiness could be negated even after death. If someone based his life on a project that was merely and illusion and false, this may not be learned until later. The happy life would be erased retroactively even if the dead was oblivious to the failure. If the dead man's son turns out to be a murderer, he will not have been happy.

Even for moderns, these things could be said about success. The apparently successful man might be safely in the grave when his children or his life's work goes on to prove he was a terrible failure.

First what I "remember" Aristotle said, but cannot find. Happiness (hereinafter called success) is achieved with good birth, good health, good land, good children and some other things like good horses.

These things are achieved by practicing the virtues. Political virtue is highly ranked. R. served as a counsel member for the poor area of town and worked to help them get the city services of the richer parts of town. Aristotle would give him high marks for this. I'd say a B or maybe an A-.

Aristotle would also judge success on how money is handled. He ranked liberality and magnificence high. Magnificence is something like giving a park to the city. I doubt R. was able to do much of this, but he always ranked high in liberality. He gave political contributions and attended the arts and bought lunches. Aristotle would probably at least give him a C+. Now this is the sticking point and where his wife probably fails him. In fact, a failure here for most wives seems to outweigh all the other grades. It is heavily weighted in the wifely report card.

Aristotle put a lot of stock in honor as well. I think he was talking about war or other sacrifice. R. probably wouldn't get much there.

Aristotle wanted a balance between ambitions and lack of ambition. R. may have fallen a little heavy in the lack of ambition category. OK, only a D, but it isn't failure.

On the anger/good temper grade, after overcoming a childhood inability to lose at ping pong, he would score very high on the good temper grade. Pushing an A, I would say.

Aristotle also graded success on friendliness, truthfulness and good-wit. R. really should get better than average on all of these. Especially on friendliness and good-wit. I don't know if Aristotle graded on a curve or not, but surely R. should get B's or better.

So, on Aristotle's success report card, I think R. would probably be a success.

How then, should he (and I and all others similarly situated) comfort ourselves on having failed on the wife report card? I say we look to true successes in life like Socrates, Tolstoy, Gandhi. If the biographers are correct, their wives would have given them failing grades as well.

On Clichés

It has been a while since I've posted. No one has complained or apparently even noticed, but I am feeling disoriented by the lack of structure in my life. The ritual of nightly (or in the wee hours of the morning) pounding out what is on my mind has been interrupted by the whip of economic necessity and the slings and arrows of outrageous fortune. Differently put, I have been working and it has kept me from my play.

Now for the correction (or the swinging back of the pendulum), I love a cliché.

The wee hours of the morning. I never recall having used the word "wee" in any other context. "The small hours of the morning" says the same thing. About thirty years ago I heard a jury argument in which the lawyer (one Warren Burnett of Odessa, Texas, now forgotten, but lionized by the young lawyers in those days) told the jurors to make a decision that they would not wake up and worry about in the wee hours of the morning. I have now repeated it in jury argument dozens of times.

I associate the phrase in my mind with another phrase, "the drinker's hour." I have understood there is an hour about three in the morning when the alcohol wakes you up again after passing out earlier in the evening. Is this in Malcom Lowry's Under the Volcano? It turns out a musical band of a genre foreign to me (post-grunge?) called a song "the drinker's hour." The Von Ra drinker's hour is 2:35 a.m. Whether we wake up from alcohol or the slings and arrows of outrageous fortune in the wee hours of the morning, it is always something uncomfortable, that a juror does not want to have to do for making a bad decision in deliberation.

We sometimes teach the use of clichés in trial advocacy courses, though no one says it quite like that. The idea is to find a theme the jury will recognize for the trial. Something comfortable and settling like, "A leopard doesn't change its spots" or "If you lie down with dogs, you'll get up with fleas" or "Oh what a tangled web we weave, when first we practice to deceive" or "Don't rush to judgment." Cliché's all, but innovation is not what the law is supposed to do. New law takes a few centuries getting used to.

Journalists and comedians seem to get excited about stealing other people's work, but lawyers do not. It is perfectly OK to get a copy of someone else's final argument and memorize it word for word and then deliver it to the next jury. Pleadings and briefs are often cut and paste (now in the word-processor sense, before, literally). Lawyers don't call it "plagiarism," (unless a client pays to call it plagiarism), we call it "precedent."

Whip of economic necessity. This is a cliché, but it seems in narrow circles. Back when Texas still required insurance companies to actually pay a little bit to workers injured on the job, there was case law that explained someone might have to keep working even after suffering total incapacity because of the whip of economic necessity. If the kids are hungry and you are losing your house, you keep working even if you are hurt. To me, it sounds like a cliché, but an internet search doesn't even produce the phrase.

Slings and arrows of outrageous fortune. Most everything Shakespeare said first is now a cliché. Hamlet used this phrase when deciding whether to commit suicide. Talking about worries, I like "uneasy lies the head that wears the crown" also.

In a final argument I gave in an asbestos case many years ago, I cribbed most of the language from Shylock's speech: "We are people too. Don't we have hands, organs,
dimensions, senses, affections, passions? Aren't we fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means,
warmed and cooled by the same winter and summer? If you prick us, do we not bleed?
if you tickle us, do we not laugh? if you poison us, do we not die?" Something along that line. I didn't give credit, foolishly believing it would be obvious. Later the court reporter told me that the asbestos company's defense lawyers and later a national network of asbestos defense lawyers had been ordering the transcript from all around the country to decide how to answer it. For a while it was entertaining watching the asbestos defense bar, always stump ignorant, trying to debate Shylock. (Ultimately, through the clever misuse of bankruptcy laws the answer was much like that in the play: "We have the political power, so you little people sooner or later lose, no matter how clever you think you are.")

Stump ignorant. Because I have not yet been called out on it, I don't yet consider this a cliché, but merely a very clever thing I say. Now for the confession: I think I read that phrase in a Thornton Wilder novel--The Eighth Day, maybe. "Why would you do that," he asked. "Well, because I don't want to live and die stump ignorant," he answered sagely.

Cameron County Can't Afford Death Penalty Prosecutions

How much does it cost to kill a man? How much should it cost?

North Carolina estimated that that an execution costs $2.6 million more than a non-death murder case. Florida says $3.2 million per prosecution, but the average cost of those executed has averaged out at $24 million. Californians have paid more than a quarter of a billion for each of the state's eleven executions.

The Dallas Morning News estimates that each Texas death penalty case costs an average of $2.3 million.

The trial alone involves a hefty increased fee. The State of Kansas estimated $508,000 per capital case more than plain vanilla murder. The State of Washington said it was $470,000 on top of the costs for another type of murder. Washington also estimated as much as an additional $70,000 for court personnel and $100,000 for appeal.

In a February 4, 2008 article in the New Yorker Magazine called Death In Georgia: The high price of trying to save an infamous killer’s life by Jeffrey Toobin, the author describes a trial in which the entire indigent defense budget of the county of $1.2 million was exhausted before the first juror was picked. The case had to be put on hold until more money could be found.

Cameron County has charged about 100 people with capital murder according to an i-docket count. These cases appear to go back about ten years.

I recently requested a count of the number of pending capital prosecutions in Cameron County. The number is an extraordinary 18 cases with two on death row.

With even a conservative price of, say, $2 million per execution and Cameron County proposes to execute all twenty of these people, the price will be about $40 million. I am not accountant, but this looks to me like it is impossible with Cameron County's budget.

Nor am I very good at reading budgets, but it appears that the Cameron County's 2008 is $111 million. The indigent defense budget is located in two places. One is for personnel in the amount of $199,000, down from $223,000 in 2007 and the other from a General Fund in the amount of less than $900,000. My guess is the second number represents the approximately $6,000 per month per court for contract attorneys and appointments and the first number is court personnel who run the system, but I welcome correction and explanation from the numbers crunchers among you, Readers True.

Assume that no new capital indictments are issued and the costs of the 20 now targeted for death is spread out over five years, that is still $8 million per year. The entire cost of the jail for 2008 is only about $4 million. The district courts are $2.4 million a year. The County Courts at Law run $1.5 million.

In other words, to truly prosecute and defend this many capital cases, the expense would be greater than the entire criminal and civil justice system in Cameron County. We would need to shut down the jail and all the courts to be able to fund the prosecutions, but of course then we would have no place to put or try the capital inmates. Either that or cut into indigent health care, burials and road crews.

So if the numbers are impossible, how is it that Cameron County is pretending to prosecute 18 pending capital cases with two on death row. I have a couple of guesses. One is that many of these 18 shouldn't be capital cases at all and will be reduced, but only after small fortunes are spent to pretend they are capital cases for a while. Another is that the judges will try to defend these cases without spending this much money.

Every old-time criminal lawyer has a story about how he was made to take a capital case, worked on it for months or years and then either not paid or paid a pittance. Other horror stories abound of expert witnesses who were stiffed. Differently put, the county pretended to pay for the defense of capital cases, but did not. So the quality of justice was low, which means in in a capital case that the risk of executing the innocent was high.

The law has changed in the last few years so that if the lawyer falls asleep in the course of the trial of a capital case or the trial judges refuse to pay for needed expert witnesses, the cases will be reversed and sent back to be tried again. For a defense to be constitutional, every defendant must have a mitigation specialist thoroughly investigate the background of the defendant and present that information at trial to support life rather than death. He must have a psychologist on the trial team. He must be able to investigate the facts and have experts who can analyze the physical evidence. He must have parity with the state in resources.

As far as I can tell, these minimum requirements have not been met in the past. Under these conditions, if things are not done better now than they were before, Cameron County may produce some death penalty convictions, but they won't be legal.

We will enter into an endless cycle of cheap, illegal trials that have to be redone because no one has the political will to require that indigent capital defendants receive a defense that meets minimum requirements of the constitution. Because of lawyer errors, we will likely get some executions, but we won't really know if the people being executed are guilty.

We pay a high price for cheap justice.

Some Thoughts About Contempt

A joke lawyers tell: The Judge says to the lawyer, "Are you trying to show contempt for this court?" The lawyer replies, "No your honor, I'm doing my best to conceal it."

A friend gave me the audiotapes of Blink, the Power of Thinking Without Thinking by Malcomb Gladwell. Gladwell reviews the research of Paul Ekman, beginning with Ekman's teacher Silvan Tomkins.

Tomkins was said to have the capacity to look at faces and describe moods to a level that appeared to be mind reading. Ekman lacked the innate ability, but broke the face down into a measurable coding system.

Now there is a certification in the reading of faces. After a five day workshop and 45 hours of study, applicants are eligible for a test to be certified as a FACS coder. The advertisement for the workshop says, traditionally, the information is learned with 100 hours of self-study of the 500 page FACS manual.

This study seems to largely be the realm of clinical psychologists. Gladwell describes the use of the system to quickly judge couples to see who will stay married. The single most important factor in judging the relationship is the expression of contempt.

Darwin describes the emotion in The Expression of the Emotions in Man and Animals: Scorn and disdain can hardly be distinguished from contempt, excepting that they imply a rather more angry frame of mind. Nor can they be clearly distinguished from the feelings discussed in the last chapter under the terms of sneering and defiance.... Nevertheless, extreme contempt, or as it is often called loathing contempt, hardly differs from disgust."

Darwin describes how contempt is shown: The most common method of expressing contempt is by movements about the nose, or round the mouth....

The artist Faigin describes "disdain," which Darwin views as angry contempt. Disdain is expressed in the mouth. The upper lip is raised and flattened in a sneer-- the lip is squared-off in shape. Slight sneer is often asymmetrical with one half of the upper lip active and the other half relaxed. The lower lip is neutral. The signature wrinkle is the nasolabial fold (deepest alongside the nose). The eyebrows and eyes are relaxed.

Contempt is a seventh emotion that Ekman recognized as a universal emotion after developing the original six: anger, fear, disgust, happiness, sadness, surprise. The contempt expression is expressed in FACS terms is still being debated by the researchers. They seem to agree it includes AU 12 and 14, but the issue is whether AU 10 is also included. AU 12 is the common smile expressed with the zygomatic major. AU 14 dimples the cheeks with the buccinator muscle. These alone look a lot a smile. Adding AU 10 which uses the levator labii superioris to raise the upper lip, is the quick change in the smile that shows contempt.

Contempt can be largely masked except for a fleeting lapse into the hostility exhibited with the raising of the upper lip. The psychologists film the expressions and then slow them down in able to spot and measure AU 10.

If it is true that contempt is the measure of why relationships fail, this is a valuable fact for making our ways through this hard life.

One of my philosophy teachers in college at UT was Robert Solomon. He wrote a book called Emotions and the Meaning of Life in which he defines contempt as the last of a continuum of resentment and anger. According to Solomon the differences between the three emotions are that:

1. Resentment is directed toward a higher status individual.
2. Anger is directed toward an equal status individual.
3. Contempt is directed toward a lower status individual.

This would give a suggestion that the reason marriages fail (as signaled by the expression of contempt) is that one of the partners believes the other is a lower status individual.

David Hume compares respect and contempt (click the title). Contempt arises when we do not merely observe the "qualities and circumstances" of others, but we "make a comparison betwixt them and our own qualities and circumstances."

Hobbes says "Contempt is when a man thinks another of little worth in comparison to himself."

Built into contempt, then, is the need to not merely observe, but pass judgment on others.

The inferior position implied by contempt is described by Edmund in King Lear:

I will preserve myself: and am bethought
To take the basest and most poorest shape
That ever penury, in contempt of man,
Brought near to beast: my face I'll grime with filth;
Blanket my loins: elf all my hair in knots;
And with presented nakedness out-face
The winds and persecutions of the sky.

Some Brief Notes About Hell

What is hell? Yes, Kathy, now I have jumped off the deep end.

I can remember being asked once to draw heaven in a Bible school class. I drew a picture of someone climbing up a hill and then sliding down only to begin again. My thought was that the greatest pleasure in life was achieving something (I suspect the thought was more in Bible school age language) and so heaven must be the continued effort without it really mattering if you got anywhere or not.

Only later did I hear about the the Greek myth of King Sisyphus who for eternity was required to push a boulder up a hill in tartarus, the hellish part of the Greek's underworld, only to see it roll down again.

My childhood drawing of heaven looked a lot like the Greek's conception of hell. Back to the drawing board.

From childhood sermons I had heard of a hell of fire and brimstone. Later I read Jonathan Edward's sermon, "Sinners in the hands of an angry God:"

The God that holds you over the pit of hell, much as one holds a spider, or some loathsome insect over the fire, abhors you, and is dreadfully provoked: his wrath towards you burns like fire; he looks upon you as worthy of nothing else, but to be cast into the fire; he is of purer eyes than to bear to have you in his sight; you are ten thousand times more abominable in his eyes, than the most hateful venomous serpent is in ours.

I wasn't sure I could swallow that idea of God or hell, but the language still holds me spellbound.

When I read Dante's Inferno in college, my imagination of the sophistication of hell increased. I was particularly struck by the varieties of hell for different types of sinners. Also, I had never thought of Satan in a frozen center, so that was fun. A couple of years ago, I read a murder mystery, The Dante Club, by Mathew Pearl. I enjoyed it and also enjoyed revisiting various types of Dante's punishments. It features Longfellow, who by the way, wrote some of my favorite translations of Spanish literature.

Milton's hell seemed like a great adventure for me. I read Paradise Lost in college. I was of an age when the adventure of being in hell plotting a revenge against heaven was much more appealing to me than Milton's paradise. I agreed with the proposition: To reign is worth ambition though in Hell: Better to reign in Hell, then serve in Heav'n.

I also read about Sartre's hell being other people in "No Exit." It did not hold me spellbound.

For some reason, I have been fascinated by the contemplation of hell. It makes me feel better, but I am not sure why. I know my conception of hell is simple, simple, simple. Maybe, as I approach that seventh decade, I should think more deeply about the subject.

Thoughts about dying and death

When I told Kathy I was going to write about dying and death today, she gave one of her caustic comments about me opining on another subject about which I know nothing. On the contrary, Kathy, this is the only subject to which I have the same access as all other mortals.

Montaigne (the Granddaddy of All Bloggers, GOAB) makes this point in his Of Practice. We can gain a proficiency through practice in all other human tasks, "But for dying, which is the greatest task we have to perform, practice cannot help us. A man can, by habit and experience, fortify himself against pain, shame, indigence, and such other accidents; but as for death, we can try it only once: we are all apprentices when we come to it."

Montaigne then describes an incident in which he was knocked off his horse by a bigger horse and rider. "It is the only swoon I have experienced to this day," he relates. He didn't think the experience of being close to death, at first, was that bad: "It seemed to me that my life was hanging only by the tip of my lips; I closed my eyes in order, it seemed to me, to help push it out, and took pleasure in growing languid and letting myself go. It was an idea that was only floating on the surface of my soul, as delicate and feeble as all the rest, but in truth not only free from distress but mingled with that sweet feeling that people have who let themselves slide into sleep."

Later he started throwing up clots of blood. And then after two or three hours he began to feel himself caught up in the pains, he says, "...my limbs being all battered and bruised by my fall; and I felt so bad two or three nights after that I thought I was going to die all over again, but by a more painful death; and I still feel the effect of the shock of that collision."

Montaigne in another essay, Judging the death of others, says being dead is not what troubles us, but dying. He quotes (someone completely unknown to me) Epicharmus: "It is not death, but dying, that I fear.

When Caesar was asked what death he found most desirable, he answered (again according to GOAB), "The least premeditated and the quickest." And Pliny, "A quick death is the supreme good fortune of human life."

I have thought that an easy death for me would be by drowning. I once suggested to Kathy that if I fall into senility, she take me to the beach, point out to sea, and tell me to swim to an island paradise. (She wanted to know if it would work right then.)

When I described this plan as an easy death to Brownsville Blogger Stan Raines, he gave me a book of poems he had written, There's More to Blues Than Meets the Eye. One of his poems, The Sea, begins:

When I have reached sufficient age
And experience has filled me up
And the world has drained me dry
I will heed god's call and take me to the sea.

It might be a far worse death than Stan or I imagine, but I had an experience when I was in college that makes me think it might not be the worst of all. I, then, fancied myself the greatest of under-water swimmers. I could take several deep breaths and swim from a lakeside restaurant in Lake Travis to a ski ramp near the other side of the lake. Though, we never did, there was some discussion of taking bets on the matter.

Once, in a pool, with my friends Dan Boyd and Stephen McNally present, I was going to put on a demonstration. I was going to swim laps in the pool far beyond anyone's expectations and to universal amazement and admiration. I did. However, at some point I stopped swimming and began to sink. The only thing I remember was Stephen pulling me out and telling me that my competitive spirit was in conflict with the likelihood I would enjoy a long life.

That wasn't so bad. I lost consciousness and it may have been I would have been unaware of the dying part and gone straight to the death. I'm glad it didn't happen then, and I don't want it to happen any time soon, but, Lord, may I be blessed with an easy way out.

Sherwin B. Nuland is a favorite writer of mine on death. One way to judge a book is to look at the index. If it quotes Montaigne, it's a keeper. Nuland, a surgeon from Yale, in his book How we Die, quotes Montaigne twice. (He also quotes Tolstoy, Shakespeare and Laurence Sterne. What a guy.)

Lawyers don't have to see much death, but some of us must hear many very good descriptions of death. Nuland, on the other hand wrote about death after seeing it at close hand over a long career. He says he would like to have a death without suffering, but the overwhelming odds are against it: "Like most people, I will probably suffer with the physical and emotional distress that accompany many mortal illnesses, and like most people I will probably compound the the pained uncertainty of my last months by the further agony of indecision--to continue or to give in, to be treated aggressively or to be comforted, to struggle for the possibility of more time or to call it a day and a life--these are the two sides of the mirror into which we look when afflicted by those illnesses that have the power to kill."

So I will be most likely trapped as well. Stretching out the agony with the hope of recovery or at least a little more time.

Nuland reminds us of the words Shakespeare gives to Julius Caesar:

Of all the wonders that I have yet heard,
It seems to most strange that men should fear;
Seeing that death, a necessary end,
Will come when it will come.

Supporting the Northern Wall

Tancredo says we should build the wall north of the city. If a wall is to be built, maybe we should. Tancredo and his ilk can be dangerous.

Tancredo went to Miami and declared it a Third World Country. He compared his reception to that he would have received in Havana and talked about the "thugs" who opposed him.

So Brownsville got off light in the Tancredo mauling. Tancredo's level of viciousness is unusual for someone holding public office, but it is certainly not new to the American scene.

I remember undisguised fear, hatred and bigotry even as a child in McAllen. It was just OK to tell the Jewish kids that they had to answer for killing Jesus. It was also OK to speak openly about the laziness and tendency to steal that was part of the Mexican character. Racist jokes and skits were part of Church entertainment. We did not see any African-Americans, but where they fit in this scheme was clear.

I had little trouble assuming that I was most likely superior to a Mexican or a Jew. I heard this in polite society. Some of the kid's parents talked about these things. Not usually when a Mexican or a Jew was around, but when it was just us, then it was fine. It would not have been wrong if we were not among ourselves, just impolite.

This was not universally true. A visiting preacher talked about the song, "Jesus loves the little children, all the children of the world, red and yellow, black and white, they are precious in his sight, Jesus loves the little children of the world." He had been a missionary where there were children red or yellow or black or brown and he didn't like this racism. The parents were polite to him too, but there was discussion that he had "gone a little native" with all the time he had spent in other countries.

It would also turn ugly. We had fights based on race. The older students bragged about driving into the Mexican part of town with a blank pistol to shoot at people point blank out of the car window just to enjoy their fear.

There is no reason to believe Tancredo himself would ever be a vigilante. He has the mantle of respectability and at a certain level of power, it is easy to keep your hands clean.

But the vigilante man is fixture of the American landscape. Modern so-called "minutemen" organizations guarding the border in their lawn chairs and coolers are not yet particularly menacing, but they can get there. Tancredo went out and told the forming minutemen organization that they were "genuine American heroes."

Writer and historian Mike Davis in his collection of essays, In Praise of Barbarians:

The vigilantes are back. In the 1850's they lynched Irishmen; in the 1870's they terrorized the Chinese; in the 1910's they murdered striking Wobblies; in the 1920's they organized "Bash a Jap" campaigns; and in the 1930's they welcomed Dust Bowl refugees with tear gas and buckshot. Vigilantes have been to the American West what the Ku Klux Kan has been to the South: vicious and cowardly bigotry organized as a self-righteous mob.

Davis describes Tancredo's genuine American heroes:

In any event, they turned out 150 sorry-ass gun freaks and sociopaths who spent a few days in lawn chairs cleaning their rifles, jabbering to the press, and peering through binoculars at the cactus-covered mountains where several hundred immigrants perish each year from heatstroke and thirst.... Confronted with the Minutemen and the hundreds of extra border patrol sent to keep them out of trouble, campesinos simply waited patiently on the Sonora side for the vigilantes to get sunburned and go home.

The Minutemen had apparently imported themselves for their show. The greater danger arises when the local interests get riled. Steinbeck describes the process like this:

Men who had never been hungry saw the eyes of the hungry....They said, "These goddamned Okies are dirty and ignorant. They're degenerate, sexual maniacs. These goddamned Okies are thieves. They'll steal anything. They've got no sense of property rights."

And then:

The local people whipped themselves into a mould of cruelty. Then they formed unites, squads, and armed them--armed them with clubs, with gas, with guns. We own the country. We can't let these Okies get out of hand.

Perhaps the story that King Christian X of Denmark donned the Star of David to protect the Jews of Denmark is apocryphal. But the idea is solid. If the City of Brownsville were to build even a short and inexpensive wall north of the city, we could give a concrete repudiation to Tancredo.

An Eye For an Eye

People keep saying to me, "an eye for an eye." I suppose I bring it on myself, but they look at me and as if I have forgotten something obvious that can be put right by a simple reminder they say, "An eye for an eye."

Once the reminder is given, I believe I am expected to say, "Oh yes, you are right. How could I have been so foolish. That's right, "an eye for an eye." And then I will change my mind about whatever silliness I had said before and the world is properly ordered again.

"Eye for an eye" comes out of Exodus. God has led the Israelites out of Egypt, but they need some rules to govern themselves. First, God gives the Ten Commandments. Then He tells Moses that there are rules Moses must give to the Israelites.

"If someone buys a male Hebrew slave, the master has to let him go in seven years, unless the slave loves the master then the master can pierce the slave's ear with an awl and the slave will serve for life."

"If someone curses or strikes his father or mother, he will be put to death."

"When a slave-owner strikes a male or female slave with a rod and the slave dies immediately, the owner shall be punished. But if the slave survives for a day or two, there is no punishment; for the slave is the owner’s property."

And then if people are fighting they injure a pregnant woman, and she only has a miscarriage, but no other injury, they have to pay her husband a fine, but if there is other injury (apparently to the injured pregnant woman). "If any harm follows, then you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe."

Moses then goes on with some other rules:

"If a thief is found breaking in, and is beaten to death, no blood-guilt is incurred; but if it happens after sunrise, blood-guilt is incurred."

"When a man seduces a virgin who is not engaged to be married, and lies with her, he shall give the bride-price for her and make her his wife."

"You shall not permit a female sorcerer to live."

"Whoever lies with an animal shall be put to death."

Then there are a couple that I like that are seldom mentioned:

"You shall not wrong or oppress a resident alien, for you were aliens in the land of Egypt."

"If you lend money to my people, to the poor among you, you shall not deal with them as a creditor; you shall not exact interest from them. "

Differently put, even for the time the laws of the Israelites were given, it is a little difficult to expand this law to include killing all those people in Hiroshima and Nagasaki. When God destroyed Sodom and Gomorrah, he got all of the innocent people out first.

Some of us aspire to be, or pretend to be, or think we are followers of the teachings of Jesus. What did Jesus make of this eye for an eye?

Jesus' words parallel those of Moses. Instead of the Ten Commandments, He gives the Beatitudes. Then Jesus states a series of laws and provides for a different reaction to the law that goes beyond the law and provides for mercy. In particular about the "eye for an eye," He says:

You have heard that it was said, “An eye for an eye and a tooth for a tooth.” But I say to you, Do not resist an evildoer. But if anyone strikes you on the right cheek, turn the other also; and if anyone wants to sue you and take your coat, give your cloak as well; and if anyone forces you to go one mile, go also the second mile. Give to everyone who begs from you, and do not refuse anyone who wants to borrow from you.

I am no scholar of the Bible, but somehow this does not sound to me like Jesus is insisting on capital punishment.

As Gandhi suggested, "An eye for an eye will make the whole world blind."

It seems to me the complete statement when using "an eye for an eye" as an argument for retaliation should be something like this:

"I know Jesus fulfilled this law of retribution by providing for a higher law of love and mercy. I know He said the only true law was to Love God and Love Other People. I know He said not to resist an evil doer. But I don't accept Jesus' teachings. He is wrong about these things. My sense of justice says that Jesus may even be immoral or crazy for suggesting such a thing. I want to go back to the law Moses, and at least if a pregnant woman is injured when people are fighting we should knock out the eye of anyone who knocks out her eye. And we should kill all the witches."