THE GREAT ESCAPE

“Anyone may arrange his affairs so that his taxes shall be as low as possible; he is not bound to choose that pattern which best pays the treasury. There is not even a patriotic duty to increase one's taxes. Over and over again the Courts have said that there is nothing sinister in so arranging affairs as to keep taxes as low as possible. Everyone does it, rich and poor alike and all do right, for nobody owes any public duty to pay more than the law demands."

The above quotation is a familiar one emanating from the late Judge Learned Hand of the U.S. Federal Court. I first lighted on Judge Hand at a time when I didn't know what a federal judge was and what he was doing in Life Magazine, but it seemed to be over something he'd said about the spirit of liberty being the spirit that was not too sure that it was right. This appealed to progressive types and got him into the media where he remained until his death. The taxation quote became his next most famous statement and squared him with conservatives, who had previously been suspicious of him.

The quotation of course is a defense of tax avoidance which is music to the ears of all who practice it. As it indicates, this takes in just about our whole population. All the same, some of them have guilty feelings about it. That's because they are confused about the difference between tax avoidance and tax evasion. The first is legitimate, the second is not. People practicing Number One claim all the deductions they can find. People practicing Number Two invent deductions, The concept is common enough and applies to innumerable situations. When you go out of your way to avoid a red light, you're avoiding. When you blast through the light you're evading.

The whole matter takes up about twelve pages in Wikipedia, the online encyclopedia, which explains it at length, always coming down on the side of Judge Hand, which is also the side of John Q. Public. Still there are holdouts. One of them is the inspirer of this piece, a Professor Greenwood at Hofstra University, who uses space in Newsday to find the Alternative Minimum Income Tax to be an example of tax evasion that has subtly been slipped into the Code by reactionaries trying to penalize States that impose high taxes for socially desirable projects. This gets a little convoluted, which I'll try to deal with later.

In the meantime I want first to discuss Professor Greenwood's smear tactics of trying to conflate avoidance and evasion so as to make them equivalent no matter what Judge Hand, Wikipedia, tax experts and millions of ordinary Americans think. He begins by claiming AMT was devised to "catch" rich tax evaders. But these were people who took deductions to which they were entitled. How does that make them evaders? They weren't, in the eyes of Judge Hand or anyone else except the Professor. Or did he really know the difference but thought he could get away with a general smear of people who didn't pay as much tax as he alone thought they should?

I conclude that he knew what he was doing because he insisted on repeating his misleading accusation in a subsequent paragraph. He was driving home his point that AMT was aimed at tax evasion by the rich. Quite a few of the Congresspeople who voted for it thought this way, but a lot of others knew better but also knew that the public was easily misled by demagogues who painted all business tax deductions as "shelters" and was receptive to the idea of penalizing their users by enacting a nominal tax on them for their audacity. This was the AMT -- if you had exotic deductions such as stock market losses and they reduced your regular tax, you paid AMT to make up for that sin. A little incense burned on the altar of Envy.

According to the professor, AMT was perverted from its original purpose of mulcting the "rich" by adding local tax deductions and personal exemptions as income, not outgo, items for AMT purposes. He doesn't mention that in 1982, when this took place, the Democrats were in control of Congress and continued to be until 1994 and never objected to these things. At some point in the '80's there was a proposal to eliminate state tax deductions altogether, but it went nowhere, so it wasn't as if the professor's party was just oblivious to things, only that they disagreed with him.

He continues to believe, though, that using state tax and personal exemptions as qualifiers for charging folks an income tax premium like AMT was an insidious move meant to penalize those virtuous states which impose lots of these taxes for progressive ends. As indicated, he gets no support for this view and he also gets none for his claim that to use personal exemptions as AMT qualifiers is also an imposition on the middle class, since children certainly aren't intended as tax shelters. That may be, but the Tax Court ruled against a family of ten who appealed on this. The Court was upheld on appeal, where it was found that Congress intended no discrimination with this addition to the Tax Code. Could it have been the ZPG (Zero Population Growth) people who were behind it? They're all Democrats, I believe.

The prof has some other stretchers sprinkled in his dissertation , among them one to the effect that “middle-class people don’t have tax shelters.” Why does he think so many of own houses, with mortgages? Another claim is that “the AMT as perverted by Reaganites demands that people pay tax on income never received, i.e., state taxes. At the same time he admits that maybe it was received, but then paid out to the state. What about it? He’s trying to find a dichotomy between the original AMT and the additions to it, but non-receipt isn’t one. Plenty of money never received was subject to the tax before 1982. This included depreciation, net operating losses, intangible drilling costs, etc., etc. Tax shelters became like air raid shelters; they got bombed.

WHILE THE CITY SLEEPS

The work I do on this website sometimes gets me accused of living in the past because I do use material collected then to fill in the empty space that confronts me each weekend. That's when I go back to the file of police reports that are my fallback resource when inspiration gives out. There are eight million stories in the naked city, as the TV announcer used to say, and I have some of them.

First lets look at some of the short stories, just to illustrate the variety of incident I faced every time I stepped out of the station house to go and visit other station houses from one end of Queens to the other, in peace and quiet one night, in fire and flood the next. The work varied and the way it was reported varied even more. For instance, here's a robbery report from the 107th Precinct in Fresh Meadows. It tells us that two black males with guns hit the checkout lines at a supermarket and made two cashiers empty out their registers and then got away with the contents.

The interesting thing about this was the way the missing money was reported. There was $324.68 gone from one register and $394.40 from the other. I'd never seen such exact figures before and I've never seen them since. Were they included in the radio alarm, I wonder. "Be on the lookout for two male blacks with following cash in their possession..." "Yeh, we know it's an open and shut case, but you gotta find them first."

From the meticulous to the slapdash is only a step sometimes, as the next report reveals. It's the story of another robber who stuck up a grocery store not far from the one above and fired a shot into the wall behind the counter. The owner, unhit, dropped to the floor anyway, possibly pretending shock. His son ran to help him and he actually was shot. The father, though, terminated the robber with one shot from the concealed gun he'd gotten from under the counter.

That's it. The trouble was, it wasn't even the shadow of a report. A lieutenant made it, but a captain was notified. Probably he made a report in full, making this one a nullity. No reason for making it, even. It leaves out ...everything, damn near. First, the shooting victim. How is he? Where is he? What's his story? The dead robber. What's his cause of death? Who is he? Have we got his gun? Did he have a record? Was anyone seen with him? Have the detectives notified anyone about him? Have we got any witnesses? Has the scene been secured and examined? What cops got to the scene first? How'd they get the word? Any statement from the father? Is that gun of his licensed? If not we'll probably have to bust him. The public won't like it. You know, guy's a hero, for crissake. Maybe the DA will give him a break and just have him report to the Grand Jury. Has the DA been notified? He'll probably roll on this one. The Daily News is on the wire? Okay, I'll talk to them.

Believe it or not, I enjoyed this kind of a ratrace. I had no checkoff list of what every cop should know about an investigation, but I didn't need one. I knew it already. The thing that gave most men trouble were the requirements for notifying specialized units for incidents that concerned them. I had studied this assiduously preparing for examinations. So I was able to say oh yeah, notify the Center for Disease Control on this one or the Child Welfare Bureau on something else. If in doubt leave it out? No way. That's for novels. Here we include the kitchen sink.

Now we come to an actual incident where no one died but I gave it the full treatment and got up a production that would have done honor to a political assassination. One reason for doing it was the fact that it involved an off-duty cop, meaning that he was one of those whose activities always got the full attention of Headquarters, which lived in fear of them lest by some impulsive act they tarnished the fair name of the Department and caused us to blush and hang our heads with shame and remorse.

With this guy it could have happened. When we looked at his work record later on it turned out that he had once been fined ten days pay for losing his revolver and twenty days pay for failure to follow an order. When we talked to him he was on disciplinary probation and enrolled in the department’s alcoholism program. One thing was sure: an investigation like we were doing on him was nothing new to him.

In spite of all the presumptions against him that his record created, for once it seemed the facts were in his favor. He had finished work at a Manhattan precinct at midnight and then drove to a bar -- he would -- in his Queens neighborhood. By some miracle of self--control he drank Coca-Cola only and left after half an hour of conversation with a (drinking buddy?) no, a pal.

When he got to his apartment on the first floor of a two-family house and opened the door there was an onrush of youths stampeding out of it. They had been burglarizing the place. The cop grabbed ahold of one of them and wrestled with him while his accomplices tried to pull him away. The cop finally got to his gun, but this enabled his prisoner to free himself as an accomplice hit the cop from behind. Sager, the prisoner, appeared to be going for a gun so the cop hit him first with his gun, breaking his jaw.

These proceedings were interrupted by the arrival of a uniformed cop who had seen everything from an elevated platform above the battlefield. Picking out the man with the gun as his first problem, he ordered the cop to drop it, so the assailants escaped while the cop was identifying himself. The ringleader was soon found, though, by cops answering an ambulance call at his home, whence they took him to Jamaica Hospital where his victim was waiting for him. Justice was served.

I’ve been raiding the files for these stories for five or more years now and I haven’t come to the end of them yet. Unlike Sherlock Holmes, who had a few he never would tell, like the one of the giant rat of Sumatra, I haven’t any that I’m holding back because the world is not ready for them. The world should get ready already.

P.S. I haven’t forgotten it was a bad week for cops in America. May justice really be done for them.

ABOVE AND BEYOND

In my last disquisition in this space I misstated facts about the microfilm files I’d been consulting at the N.Y. Public Library. I said each micro box contained one reel of film. Not so. It was six reels. Sorry about that. I caught my mistake through trying to figure out why the library achieved its objective of printing two weeks’ editions of a newspaper on every reel of film by printing the same editions over and over until all the film had been used because if they only printed each edition once, two weeks total pages wouldn’t have filled a half a reel. So why didn’t they print four weeks or six weeks or something and fill the reels that way? I don’t know but I’m going back to find out. I’ve already learned that the capacity of a regular .35mm reel is 80 newspaper pages. But how can there be 778 boxes for a paper that never printed more than thirty pages or so a day? What about that? What about…oh, a lot of things. Well, I’ll never know what makes the rain to fall or makes the grass so tall, but I will know why I have to cope with microfilm that goes on repeating itself and wasting the best years of my life when I try to read it. Watch out, library.

The above is a diversion from my subject of today, which is another return to my police days as a relief from trying to penetrate the mysteries of the “plans” and “solutions” and “measures” being proposed for the alleviation of the mortgage miseries besetting us all, including those of us who have always kept our payments current and now wonder where we went wrong. Where are our bailouts?

Well, on to something more encouraging. Leafing through my dogeared collection of reports from my departmental days I’ve been struck by the number of them that are about off-duty incidents involving cops who were…off duty, but still went to bat against crime when they encountered it with no help available and no witnesses to vindicate their actions. I find it impressive. Here are some examples.

Accidental discharge of service revolver by off-duty M.O.F. subduing burglar. Officer heard woman scream at burglar she saw breaking into neighbor’s house. He waited outside with gun drawn, but burglar ran over him escaping. He caught up and they fought each other until cop struck him on head with gun causing it to discharge. The perp then gave up and produced the stolen jewelry from his pockets. The cop would have been justified in shooting but said “I didn’t want to kill anybody.”

Firearms discharge by off-duty officer pursuing robbers. Off-duty detective engaged in second career as fast-food manager is robbed by three men at gunpoint. As they get into car in parking lot he opens fire and hits wrong car once and perps’ car twice, he thinks. They escaped, but it was a good try and could very well have cured them of robbing stores.

(Weird) Injury to off-duty detective effecting arrest. This officer, licking his lips while on the way to a Chinese restaurant, saw a man climbing from the back seat to the front seat in a parked taxicab. He identified himself and questioned him. He got no answer except that a passerby came out of nowhere and slugged him in the jaw. Escalation ended with timely arrival of radio car on scene and detention of all three battlers. The man in the cab turned out to be the owner and the passerby a credulous type who thought he was breaking up a mugging. For his public spirit the cop got abrasions of hjs face, jaw and neck and strains of his right leg and lower back. The other two were arrested on misdemeanor charges. This cop also kept his gun holstered although he had it on him.

(Firearms Discharge Review Board Case Log, July-November) Off-duty officer fired four shots at a male who menaced him with a large fork.

(Log) Off-duty Lieutenant at 0125 hours fired one shot at burglar in his home who resisted arrest.

(Log) Off-duty officer fired two shots in air after an altercation with two females.

That last one seems a bit questionable.

Youth shot exchanging gunfire with off-duty police officer in the 113th precinct. Cop was home minding his own business when his neighbor, also a cop, burst in to tell him he’d just been robbed of two revolvers by a burglar. The two men pursued the culprit, who fired at them. The first man fired back and hit him and he was soon rounded up.

One shot discharged by off-duty Housing P.O. making two robbery arrests in 103rd precinct. This man was driving his two brothers to work when one asked him to stop for cigarettes. He didn’t return from store. Second brother went looking for him and didn’t return either. Finally cop found the two of them in a hallway being robbed by bandits. He fired one shot and bandits fled, leaving sawed-off shotgun behind. The victims went to a local hospital for treatment and there ran into their assailants, who were then arrested. Neither of them had been shot.

There we have it. Five off-duty cases in a limited time period coming to the attention of one captain out of twenty or more in Queens, all well or adequately justified, all voluntary and pretty well forced on the cop and all resolved without serious damage even to the perpetrators. They’re just a small sampling taken at random, which indicates to me that the total for the borough could have reached three figures for the year. If they all came out as well as these, the police department could take pride in the initiative of its members. The people of the city could take comfort from the fact that they were getting more service than they had paid for. For myself I now realize that I should have seen this earlier instead of taking this “above and beyond” activity for granted, as I did for years. I’ve always believed in looking for the patterns to be found in any sequence of events, but I should have found this one sooner. I was too close to the action to see it, I fear.

THE GREAT RACE Ah, my reporting days. No, you're not going to see another recollection of the good old times working on the Daily Bugle and scooping the world on the, ah, endowments of Jane Russell or Jayne Mansfield, after which we all adjourned to Bleeck's for liar's poker and a round or two of Martinis. The principle with my reporting was the same as the above type -- get the story and get it right -- but I did mine in a uniform and not for an editor but for some gold-braided character in Headquarters waiting to take one's work product apart and send it back for wholesale revision. That was how we pictured things anyway, but truthfully it wasn't a real picture. We actually rarely heard from downtown about our breaking stories, indicating that the police administration was satisfied with our work or thought it was beyond help or just didn't care and for all we knew, shredded everything we sent. This was short-sighted, I thought, because with opportunities lacking for personal contact, reports from the front offered the best chance of getting to know something about the people sending them. If I were on the receiving, instead of the sending end, I would have used reports as a tool for appraising the work of the authors and a training aid as well. This might not have worked too well with detectives, who customarily sent skimpy reports for the purpose of blindsiding the defense lawyers who might get ahold of them. I saw things differently and sent elaborately detailed work in, with the same idea. Different strokes for different folks. So, if I had been doing the judging, a lot of stuff submitted would never have been accepted and would have been sent back to make a new start in life. A lot of this kind of thing came from lower ranks that lacked experience in coping with the six commandments of correspondence as laid down by the high command. They were of course When? Where? Who? What? How? and Why? The last was the most often omitted. Not usually by captains, though, who by the time they attained the rank, had accumulated enough experience to get things right. You could still be second-guessed as I will try to show here. One Wednesday afternoon in Queens two cops got lucky and spotted two teenagers running from a burglary they had just committed in a nearby house. They were transported to the Bayside station house and proceeded to lay out things for the detectives interrogating them. They admitted to about a hundred burglaries by themselves and other youths with all the proceeds being fenced by a local man, Frank DeMarco and his son Frank Jr. In his occupation Frank Sr. usually carried a couple of guns for protection. The detectives and uniformed men split up their work by agreement, with two cops heading off to the DeMarco address to watch for any signs of Frank taking off with his loot as a result of the arrests. Two perpetrators had escaped the arrests and could be warning him to escape. A team of cops went looking for them. A team of detectives and uniformed men left for the Queens District Attorney's office to get a search warrant for DeMarco's house which when issued could be executed by the men watching it. All this was short-circuited by DeMarco and son suddenly emerging from the house and speeding off in a late-model Ford. The surveillance team gave chase in an unmarked police car and got abreast of them. They stopped in the road and the sergeant in pursuit , watching out for DeMarco's reported guns, stopped behind them and got out to order them out of their car. This gave the suspects the opportunity to accelerate onto the road again and put distance between them and the pursuit. But the sergeant and driver were broadcasting directions over the car radio and local radio cars were joining in the chase. A cavalcade of cars followed the DeMarcos through the local streets and on and off two highways until finally they attempted a U-turn over a road divider, crippling their car but causing the leading police car to to stop short behind them, after which there was a pileup of three other cars behind them. The total casualties were three police cars towed away for repair and the DeMarco car towed to the stationhouse for examination of the loot carried in it. The number of injured cops totaled six, mostly suffering from whiplash and similar injuries. The DeMarcos emerged unharmed. But at least they were arrested. The questions rained down from headquarters. Who questioned the original arrestees? An unusual question. Who cares? We said they went to the detective office and were informed of their Miranda rights. That's always been considered enough information. Then -- How did uniform, detectives and plainclothesmen all get involved in this together instead of remaining in their own watertight compartments? (Several such questions.) Hey, it was a combined operation. Everybody had a piece of it. Is something wrong with cooperating with each other? Did anyone get a search warrant for the Batkay apartment? (Twice) This is one of the original escapees who was later found in a garage with a couple of stolen rifles. We never searched the apartment -- no need. Gotcha. Why the chase? Was there a serious crime involved or just stolen goods? Please, stolen goods from a hundred burglaries is serious. So were the allegations that the DeMarcos had guns. All the people who've gotten their stolen property back think we did right. Finally -- Didn't the high-speed chase for a possibly insufficient reason violate department guidelines by unnecessarily endangering innocent pedestrians and motorists? Aren't you inferring (implying?) that since none were hurt, only cops due to bad brake linings on a police car, that the chase conformed to standards? Are you claiming the end justifies the means? Well, no, that's not the cliche we would use. We think the proper one is " The proof of the pudding is in the eating," i.e., the fact that no citizens were hurt proves we were not fighting through heavy traffic or plowing through crowds or even groups of pedestrians, just as we claimed. So there. The foregoing is not the actual language we used in rebutting the inquiries we got from on high, but it's in the spirit. We heard no more from them. Ever.

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A FINAL JUDGMENT

It would be normal today to write something about the Democratic convention
just concluded in Denver, but since there were allegedly fifteen thousand
reporters there, I'm assuming there's nothing left to be said that hasn't
already been said, so I'll take a pass on adding my voice to the tumult. Instead I
'll go back to where I left off a few weeks ago and return to the message
left by the late Judge Harold J. Rothwax of the Supreme Court of New York.

Judge Rothwax sat in the criminal court in New York for twenty-five years
and as he did, watched over the gradual "collapse" (his word) of the criminal
justice system. I could paraphrase his comments on this, but I think some
direct quotations will represent him and his case better, e.g: (Emphases added)

"A trial is a minefield and any judicial misstep -- or even a perceived
one -- can lead to reversal of the verdict with no consideration of whether
the defendant is guilty or not."

"The Fourth Amendment does not state that illegally obtained evidence must
be excluded. We've come to that point entirely on our own."

"...the presumption of innocence is a trial presumption -- it does not
relate to the earlier stages of the process." (Arrest, interrogation,
detention, arraignment, etc.)

The above announcement probably won't do anything to deter TV loudmouths
and other media mullahs from babbling about the presumption as if it applied
the moment one of their proteges stuck a knife in the back of a taxpayer and
immediately began to plan his trial strategy. He will be bound to have the
assistance of such experts from then on as they apply their great legal
knowledge to his problem. As Erle Stanley Gardner said, marrying two cliches to each
other "Where ignorance is bliss, a little learning is a dangerous thing."
True, true.

"What the presumption of innocence does not mean is that the defendant is
probably innocent." (Emphasis in original.))

(Paraphrase). A New York defendant was arrested for a fur robbery that
became a homicide. He denied everything. A detective deposited the furs
obtained by his accomplice in front of his cell. He then confessed. An appellate
court found that the furs constituted compulsion to confess and reversed his
conviction. "Frankly, insane" said Judge Rothwax.

"The irony of the speedy trial rules is that most defendants and defense
attorneys don't want a speedy trial." I saw this in print in different words
many years ago "Delay never hurt a defendant." In the Fifties in New York,
and even after that, six or seven or more adjournments in a case were routine
and usually succeeded in their objective of wearing out complainants and so
getting the case dismissed.

Judge Rothwax, as can be seen, was not a conformist to legal orthodoxy,
marching in step with the American Bar Association and other such mad scientists
whose role models are the golf course designers who spend their lives building
courses with ever-narrower fairways and ever-wider sand traps. In their
case the duffers are the citizens who come to court expecting justice and
getting -- Johnny Cochran.

Here I'll quote the judge at more length than before because he puts his
case so well that paraphrasing would only detract from it. So I give you the
original:--

"[The Supreme Court's Miranda decision makes] the criminal justice system...
a sporting event in which the defendant has a a sporting chance to evade
society's punishment."

"...why should we try to advocate equality between a defendant and a police
officer -- unless we thought the system was a game, a sport, a fox hunt?"

"A desire for equality cannot be a justification for restrictions on police
investigation. [Why should we worry] that a guilty person's chances of
acquittal have been reduced?"

Is the judge suggesting that only guilty people get questioned by the
police? No, he's simply saying "Miranda" helps no one but guilty people because
the last thing innocent ones need is a warning about keeping silent. They
want to talk and proclaim their innocence.

Of course the judge was not used to cases involving this type of individual.
Not many criminal lawyers are. A criminal lawyer is what Rothwax was
before becoming a judge and serving twenty-five years in that capacity. In one of
his early criminal cases he represented a rapist who maintained that he had
picked up his victim in a park and everything that happened was consensual.
Rothwax found that the girl had only been in the country for a week and didn'
t know a word of English. By the time he became a judge he knew what
everyone else in his field did -- that just about every arrested person has been
guilty of something, usually of the charge under which they've been arrested.

In other countries this doesn't leave lawyers much room for maneuver and
they concentrate their efforts not on getting an acquittal for their client but
on getting him or her the most lenient punishment possible. In America the
arrest of the most blatantly guilty criminal is only the starting point for a
series of attempts to circumvent the law through frivolous motions, delays,
adjournments, evidentiary hearings, false charges, witness tampering, press
leaks, document dumps, mistrials and every other trick conceivable in the
twisted minds of, well, interested parties. I wonder if this kind of thing might
not have contributed to the judge's early death. Maybe he was more affected
by it than he realized. In any case he died lighting the way for others to
follow in a good cause.






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OFF WITH THEIR HEADS

A contributor to Newsday, the Long Island paper, has created a bit of a
rumpus on the Internet by alleging that the lunatic who recently shot up a
meeting of the Unitarian Universalist church in Tennessee, killing two people and
wounding seven, was inspired to do this by the anti-liberal "rants" of some
conservative broadcasters, some of whose books were found in his home and of
course confiscated. Conservatives have been fighting back on the net, denying
that anything anyone said in a broadcast could possibly trigger such an
outburst by an unhinged individual who acted completely on his own in obedience
to voices he heard in his head, not on the radio.

The writer of the letter, a woman, finds that an atmosphere of hatred has
been created by right-wingers and really needs to be dispelled before more
violence erupts. She names four individuals in her indictment and presents
evidence against them as follows; Rush Limbaugh leads the list, as might be
expected. He said "Liberalism is the greatest threat this country faces." He
also said "The Islamofascists are [for] the Democrats" and "Riots at the
Democratic Convention would be the best thing that could happen to this country."

Sean Hannity was guilty of saying "There are things...worth fighting and
dying for and one of them is making sure Nancy Pelosi doesn't become the Speaker."

Michael Savage got rapped for writing "...[a] catastrophic attack would cause
(liberals) to march thousands of us into the hands of the enemy."

Last on the list, Bill O'Reilly was charged with saying "The far left in
America is dominated by haters, people who despise their own country."

Wow! These guys really rattled their cages, didn't they? Or did they? Not
much, in my opinion. Not enough to cause even the looniest loner in the
country to open fire on his neighbors with the intent of wiping them out. Going
back over the roll of sinners above and looking at Limbaugh first, he simply
made an accusation of a kind that's normal in Presidential campaigns, I.e.,
sinister foreign interests are supporting a candidate I don't like. These
things happen. In the flush days of the Soviet Union Moscow would send as much
as $2 million a year to the American Communist party. After it was counted
by the FBI, who had infiltrated the operation, it went to the Party and was
then distributed to politicians and others who were in favor with Moscow.
None of it went to Republicans.
(Cf. Barron, J., Operation Solo: Washington: Regnery Publishing Inc., 1996)

A Hungarian named Soros pledged $50 million in 2004 to defeat George Bush.
So it seems like foreign powers do try to influence American elections,
meaning that there is precedent for Limbaugh's suspicion of Islamists in this
connection. As for his alleged incitement to riot, it's obviously a pious hope
that the left will show its true colors by going on a rampage at its friends'
convention. It's not a suggestion that his fans should do the rioting.
Whatever one thinks about them, it's for certain that none of them have minds
that are that literal.


The case against Hannity is even flimsier. Saying in effect that Nancy
Pelosi's ascension to Speaker of the House was a matter of life and death is
clearly a bit of humorous exaggeration, common in this country as when Mark Twain
said things like "Congress is our only native criminal class." After all,
nobody in his right mind could imagine anyone staking his life on the outcome
of anything Mrs. Pelosi might or might not do in Congress or out. The idea'
s absurd. If it seemed otherwise to the mad bomber in Tennessee, assuming he
ever even heard of it, it's simply more proof of his derangement. Blaming
Hannity for it is a stretch as long as a giraffe's neck.

Next, Michael Savage. He fantasized a situation where a catastrophic attack
on this country resulted in Hillary and Barack taking over our military and
using it to put down resistance to the "enemy." But who would this incite?
Nobody is expecting that kind of attack on this country. 9/11was
catastrophic enough, but there was no such outcome as Savage describes. So, unlike
France in 1940, there won't be any scope for any "collaborators" to join with
the enemy, whoever he might be. Savage is conjuring up a situation like the
movie "Red Dawn" where the U.S. is invaded and occupied. I avoided the movie
because I didn't like its premise that such a thing could happen. I leave
it to fantasists to take an idea like this seriously. As for Hillary and
Barack, I'm sure they'd never be collaborators. Would they be holding out in
the hills? Sure they would.

Bill O'Reilly and the far-left's hate for the U.S. Is Mrs. Kern-Rugile,
the complainant, a far-left individual? She'd deny it, I assume. So what's
her problem? O'Reilly's right. The proof is to be found on the internet
among other places. The people who spell America "Amerika" and demand the
assassination of Bush and Cheney, who can't even be printed some of the time in
their group blogs because of the obscenity and depravity of their messages,
these are the people Billo is talking about.

Mrs. Rugile shows a disturbing side of her own character in the windup to
her diatribe against those who dare to disagree with her world-view. When
conservatives protest against articles like hers, they usually confine themselves
to asking for more balance in the media concerned. They try to get a
hearing, in other words. They don't think of taking over a publication and setting
up an opinion monopoly therein. That is beyond their aspirations. They
know the weight of journalists' opinions will always be on the left. The
left-to-right ratio in the media is easily fifty to one.

That's what some people would call a monopoly. But it's not good enough
for Mrs. Kern-Rugile. She's not interested in balance or in having different
points of view represented as the conservatives are. Instead she specifically
proposes boycotts for right-wing talkers so as to drive them out of public
life. No more broadcasts, no more newspaper columns, above all no more books.
No more opposition, that is. Familiar, isn't it?






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IN THE WEE SMALL HOURSOF THE MORNING In the Police Department we not only investigated cases, but we re-investigated them and then investigated the investigators. Oh, you mean stealing the crown jewels, assassinations and the like? Well, no, I mean cases involving cops which might mean someone somewhere might draw an inference unfavorable to the department and damaging to our reputations as outstanding defenders of civil liberties acutely sensitive to the rights of citizens and the safeguards of the same laid down in the law. Your friend the policeman, was the image we sought to project. When we could, that is. It was none too easy sometimes. One time was a September night in Queens when two unlucky highway cops encountered a couple of young chaps heading home from a wedding in the wee hours in an exhilarated state. One of them, Donald Pretto, flew by them at seventy miles per hour on the Long Island Expressway, causing them to begin a pursuit. Donald refused to comply with orders to stop and instead raced up a ramp to a local street where he attempted to execute a snappy getaway by means of a U-turn. It didn't work and he instead skidded into the cops' lane so that he and they were now facing each other. They got out of their car and walked toward him, whereupon he backed up enough to get starting room and then drove straight at them. The cops scrambled out of the way and fired one shot at Pretto so that he came to a halt and allowed himself to be dragged out of his car. At this time his friend Giovanni C. showed up in his car and attempted to interfere with the cops so that he was arrested along with Pretto. All concerned then proceeded to the nearest station house. None of this would have required much in the line of investigation if it had not been for the shot that was fired. That, ah, triggered an inquest. A captain took charge and started questioning everybody. Donald admitted refusing to stop but denied he'd driven at the cops. His friend, though, signed a statement that Donald had driven at them. This would have concluded the case favorably for the cops if not for the fact that they still had to account for the shot at the driver, which had missed him, but not by much. Police Department guidelines, which everybody was now looking up, prohibited shooting at a moving car where the occupants were using it as a weapon but not using any other weapons. A couple of doubtful cases had caused this provision to be adopted although in the opinion of some, it placed too much reliance on the ability of cops to get out of the way of cars used as missiles. Whatever about that, the duty captain was left with no recourse except to find that the guidelines had been violated, though he softened this with the finding that there were extenuating circumstances in the fact that the car was coming right at the shooter when he let go. This did not pass muster at Headquarters. The report came back with an inquiry as follows: "Sketch indicates Police Officers directly approached the front of the suspect's vehicle on foot. Were they questioned as to why they placed themselves in such a dangerous position which is contrary to the instructions and training of the Police Academy?" Well, we had an answer to that, kind of. I had to provide it, though, since I was now assigned to tie up such loose ends. Headquarters was being misled by a diagram of the incident that had been sent along with the report. It had a professional look, with everything labeled engineering-style and directional arrows pointing here and there. The mapmaker had left his name off though, so we couldn't ask him why he'd made the cars half their actual size, thereby making it look as if the cops had unlimited room to take cover and protect themselves against an attack by car. Instead the two cars, theirs and Pretto's, were actually cheek by jowl facing each other with only five feet or so between for the cops to maneuver in. At such close quarters there was no time for strategizing, but only for emergency action to save one's skin. I pointed this out in a kindly manner to the people who had sent us the inquiry. I had the urge to tell them what we forgave them for their failure to understand the situation better unlike us soldiers in the field with our front-line experience. I decided that it wouldn' t really be appreciated as it deserved and it might even lead to a reopening of the question as to why we had sent down a comic-strip drawing instead of one that made sense. So it went. Headquarters second-guessed us and we snapped back at them. What did those desk jockeys know about the troubles of the man on the ground? we asked. Let them give up their soft touches and come out here for a while and find out what it's really all about. We'll show them. Terrible bunch of bores we were, you see. We didn't really want anybody coming out to join us with a lot of ideas for new ways of doing things that might upset our accustomed routine. Typical. Here I must enter a caveat. Before you conclude that I was one of a crowd of reactionaries resisting progress at every step, I must tell you that in our view it was the progressive types running our show that were the real obstacles to constructive change. The car-shooting prohibition is an example. It was ill-conceived and simply not practical in every case even though it made no exceptions for changing circumstances. It represented Headquarters at its worst. The thing it did best was to make concessions and promulgate new restrictions to prevent cops from protecting themselves. Eventually I left all that behind. I went to work for a bank. What did I find out? That the people in headquarters didn't really understand those of us in the field.

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	HERE COME THE JUDGES I see by Google today that a man at the Washington Post thinks the Supreme Court was off its rocker the other day when it upheld the Second Amendment of the Constitution and the right of citizens to own and carry arms. The writer begged to remind the justices that guns in the household meant a greatly increased chance of accidents and thefts, for the results of which the Court would now be responsible. This was not very relevant, though, for what the Court was deciding was not the question of the risks involved in gun ownership, but the meaning of the Constitution as generally understood. This might be attended with some inconvenience, as the saying goes, but there are many rights in the Constitution which have this drawback.. Free speech, for instance. It 's often abused. Free elections. They always give trouble. Religious freedom. Very inconvenient sometimes. And so it goes. Nothing's perfect, I'm afraid. Such is life. Two ideas from Justice Scalia's opinion jumped out at me although I was only skimming his sixty pages. One was about the meaning of the language in the Amendment that the right to bear arms was contingent on the necessity of having a well-regulated militia. To anti-gun people this means that only militia members should have the right. I don't think so. It strikes me as more of a "whereas" clause in the enactment. "Whereas" clauses are common in all speeches and resolutions and legislative bills. They can be very specific as in a bill authorizing a Panama Canal or a railroad to be built or they can be very general as in the Preamble to the Constitution, which lists no less than six reasons for its creation, all of them extremely noble and high-minded. Looked at in this light, I see the "militia" phrase as some window dressing for the purpose of following normal procedure by presenting a plausible reason for a legal enactment. It was the expected thing to do and still is. There was a logical connection, of course; people used to bearing arms would be good candidates for enlistment. There would be a pool of such prospects. But as Scalia said, it was even more likely that arms would be useful for hunting and self-protection. If they were to be restricted to the militia, it would have been easy to specify this in the Amendment. It wasn't done. Americans wouldn't have stood for it and everyone knew it. It was true that in the Seventeenth Century the British Crown restricted arms to those eligible to join militias approved by the party in power, but this still didn't mean they had to join to have arms and America's wide-open permission for arms in the hands of people able to join or not join any militia at all meant that the right of arms was an individual one and militia enrollment was not necessary. Today the Court finds that's still the case. I now shift from Justice Scalia to another judge, from a lower court and no longer living who had some important things to say about subjects related to the one I've been lecturing on. His name was Harold Rothwax and he sat on the New York State Supreme Court. He wrote a book called "Guilty; The Collapse of the Criminal Justice System." Once again I haven't completely vetted a book I've decided to write about in this space. Instead I've cherry-picked my way through it looking for tidbits to serve up to the public. I will eventually read it in full, but I haven' t yet. But my truffle-hunt hasn't been all waste. For instance I find an old hobby-horse of mine, the misuse of the "presumption of innocence" gets attention from the judge . He was writing soon after the Simpson trial, a kind of a judicial Jonestown as far as horror shows go. No bodies littered the courtroom, but the busted precedents, legal abuses and phony arguments filled it up. Through the smear tactics of the lawyers a lot of people got the idea that maybe there had been a "rush to judgment" to try Simpson on flimsy evidence. Not so. Judge Rothwax disposes of that claim and simultaneously the "presumption" by pointing out that prosecutors don't really want to waste their time indicting people whom they don't believe are probably guilty. A lot of people seem never to have thought of that. The judge reminds us that "reality screens" exist to weed out the innocent from the guilty before any trial is held. As I 've often pointed out, these are the witnesses, the victims, if any, the arresting officers, the committing magistrates, the district attorney, and even the jailers responsible for confining the accused. All of these have to believe the defendant is "probably guilty" or they have no right to detain him for the next step in the criminal justice treadmill. And they have no obligation anytime to give him the benefit of the presumption of innocence. The judge goes on to point out that this is a trial presumption only, just as the Chief Justice of the United States, Warren Burger, did in my hearing in 1969 at Lincoln Center. The only people required to presume a defendant's innocence are the trial jurors, no one else. If only the TV and media blabbermouths could have this taught to them, the B.S. index would decline like the Dow Jones in a recession. Judge Rothwax knew all the tricks -- he'd been a criminal lawyer himself, never a prosecutor, and tricks are what he calls them instead of daring innovations and brilliant strategies in defense of society's victims, the underprivileged uneducated youth facing a future of hopelessness and turning to crime as the only way out of the misery and deprivation to which they've been condemned by the system. Rothwax left all this out of his book. Instead he has stories about the shenanigans of lawyers going to ridiculous extremes in their zeal to preserve their clients from the punishment they deserve. There are a lot of these stories, but I only have room for one: It's about a " missing witness" charge that a lawyer sought when a robbery victim refused to return from Belgium to testify against her client. This charge permits the jury to conclude that the reluctant witness would have testified against the prosecution. However it came out that he had told the lawyer he would accuse her client if he returned but still wasn't coming. Rothwax asked her, "Doesn't your own testimony belie the inference you're seeking?" "Yes", she said, "but my client is entitled to it." Entitled to mislead the jury, that is. The judge concludes "When it is proper to say in a court of law that a defendant is 'entitled' to mislead a jury, you have to wonder."
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ALL MEN ARE PRORATED EQUAL 7/25/08

Blogging does funny things to a guy. I started out with a bag full of police reports accumulated during my time in that job which I made the foundation of strikemepink, pulling them out and using them whenever I ran out of other material to use. Luckily Long Island provided me with quite a bit of such material. In my twenty-five years in Westchester I never encountered anything like the succession of scandals I came across in a fraction of that time out here. Just the $11million ripoff of the Roslyn school district was enough to keep me going for weeks. Then there was the spending spree of the fire departments and lately the double-dipping school scandal along with other such dodges which never seem to end and always furnish material for a sermon to the congregation.

Gradually then I have gotten to the point that my horizon has expanded and I no longer confine myself to police stories and related matters. Like Dr. Jekyll looking into a mirror and seeing himself morphing into Mr. Hyde, I see myself turning into an all-around commentator on all kinds of things that never stimulated me before. A guru, in other words.

That brings me to a subject that’s been bothering me lately, one connected with education which by rights shouldn’t bother me because mine was finished a long time ago and so was my children‘s, so it’s only of academic interest to me now (no joke intended). My stake in the education question today is that of a taxpayer only, but that doesn’t make me irrelevant to it. Quite the contrary, as a lot of taxpayers will be quick to let you know.

I am bothered by the insistence I hear that education for all, as exists in this county, has to be equal education for all, or it violates the Constitution, the Bill of Rights, common decency and equal justice under law. Actually the Constitution says nothing about education, but that doesn’t mean that it was illegal or anything like that. A series of laws were passed determining how land should be allocated in the new states looking for admission, and in so doing speaking well of education and reserving some of the land for its support. Popular education was the objective, but nothing was said of equality. Everybody would learn to read and write but not everybody would be taught Latin and Greek.

Surprisingly it was the southern segregationists of the 1950’s who first introduced the idea of “equality” as a requirement between schools when they defended segregated southern education as “separate but equal” and therefore not really discriminatory against blacks and not requiring integration to level things out. Just one picture in Life magazine showing the squalid conditions of a black classroom was enough to explode this theory. In 1954 the Supreme Court in its Brown v. Board of Education decision ordered full integration of all public schools nationwide.

The South should never have tried to maintain that equality prevailed in its segregated schools. What they overlooked was the fact that the South was the poorest section of the country and hardly had enough money to maintain its white schools at a decent level, without trying to claim that its black schools were on the same level. A claim like this defies reason, which tells us that the first duty of parents toward their children is to bring them up, i.e., educate them safely and equip them as fully as possible for adult life. In a section where the whites didn’t have enough to do this for their own children it was not to be expected that they would do it for black children.

Integration solved the problem in a way. Blacks who went to well-to-do white schools got to share in the superior education there. Poor white schools admitting blacks got poorer. Eventually re-segregation restored the status quo ante. Recognizing this, black pressure groups stopped pressing for integration but campaigned for equality instead.

As I’ve just said, this demand runs up against universal law. The law is that parents must provide for their children first and the children of other people second. This is the deepest human instinct that exists. In this country it translates into support for the schools one’s children attend and only after this has been provided can there be support for the ones they don’t attend.

Since all government everywhere exists of necessity to redistribute money, we don’t say that the poor shall have nothing from the contributions of the taxpayers. Once you get past subsistence amounts for food, clothing, shelter, and education, though, the problems of redistribution begin. As we have seen, there are people who want it to go to the length of equalizing, well, all incomes. This will never happen because the taxpaying class will always find ways to evade the full weight of taxation, but the demand for equal education, which sounds so reasonable to so many people, is a big step in that direction.

I’ll admit the idea didn’t sound so bad to me when it was first promoted in New York, but it didn’t take me long to figure out that equality was going to be achieved by taking my money and instead of spending it on my local schools, spending it on other ones far away. With my provincial, parochial outlook, spiced with xenophobia, irredentism, lycanthropy, morosis and other symptoms, it just wouldn’t do. It’s the same mindset that makes me balk at the idea of universal health insurance. This country is infested with millions of junkies, alcoholics, chronic overeaters and other thin-icers for whose mistakes I will be paying. Sorry, but I have enough to do to pay for my own.

Equality is an unlucky word anyway. There was a chap in France during the Revolution who renamed himself Egalité . It did him no good. He went to the guillotine anyway. As thousands cheered.

 

 

A JUDGE SPEAKS OUT JULY 4, 2008

This week I’ve been enjoying what’s known as the pleasure of recognition through my reading of the late Judge Harold Rothwax’s book, “Guilty; the Collapse of the Criminal Justice System.” I knew his reputation as a judge who maintained that the system had gone overboard in its protection of criminals and made itself into an enemy of the people it was supposed to protect. I only knew this from newspapers, though, and not from any better source with more detailed information.

His book has changed all that. The program is spelled out in full and it’s one that goes to the heart of the problem, not just to the periphery like most so-called reform proposals. Lots of reformers are all in favor of better law enforcement so long as (a) criminals are not seriously inconvenienced, only mildly so; (b) the term law enforcement is changed to law endorsement or something similar, for obvious reason. Force is such a harsh word. That’s really all that’s required to effect the changes that some people seem to feel are needed in our system.

Rothwax didn’t buy any of this. His experience of twenty-five years on the bench wouldn’t let him. He knew better. Sacred cows like the presumption of innocence, the right against self-incrimination, the right to bail, the right against illegal searches and other such banalities stood in need of re-examination the way a ship’s hull has to be de-barnacled when too much marine growth accumulates on it.

There was nothing wrong with the principles behind these hoary old monuments, but the accretions of many years had to be cleared off them to get back to those principles. How had the Fifth Amendment for instance, meant to prohibit forced self-incrimination, been turned into a prohibition against anyone drawing a negative inference from its use? Why shouldn’t a judge and jury draw conclusions from a defendant’s refusal to testify in his own defense or his invocation of the Fifth if he did so? This is just driving common sense out of the courtroom for the convenience of defense attorneys. The only consolation the rest of us have is that many jurors do draw conclusions no matter what the judge tells them in his charge.

I said above that I enjoyed recognizing some of my own ideas emerging in the judge’s book, thereby giving me, an amateur, validation from a professional in the field of lawmaking and law administration. It’s good to see a high court judge endorsing ideas you’ve been playing with for years, wondering why no one else was interested. They were heretical notions of course, questioning the very foundations of our institutions -- if you listen to the professors -- but somebody somewhere had to stand up and say the emperor was wearing no clothes.

We get the whole layout here. Rothwax believed in the Fifth Amendment like the rest of us, but he didn’t believe it was sacred. Among his other heresies are the following:

1, Search and seizure laws are so enigmatic that no evidence should be excluded if there has been good-faith compliance with the law in obtaining it.

 

2. The “Miranda” ruling should be revoked. Videotaping is sufficient to prevent the use of coercion in getting confessions.

3. Speedy trial statutes should be replaced with a rule-of-reason standard for scheduling trials.

4. The right to an attorney should apply only in the pretrial and trial stages of an investigation.

5. If a defendant fails to answer evidence against him, the jury should be instructed that they may conclude the evidence was accurate.

6. If defendants demand pretrial discovery of the state’s evidence, they should first have to file their own story so a new one can’t be concocted to fit the prosecution evidence.

7. Peremptory challenges should be limited to three or four to prevent stacked juries.

8. Majority jury verdicts are better than unanimous ones and should be introduced to replace them. Unanimous verdicts often represent a compromise with holdouts who ignore everyone else’s opinion and have to be appeased. Contrary to “Twelve Angry Men” Rothwax found that they were always wrong. He wants them neutralized.

9. American judges should be allowed a more active role in the trial, setting them apart from pushovers like Ito.

10. Go back to Square One and revise the law to comply with common sense.

The judge made particular music to my ears when he repeated my mantra about the presumption of innocence applying only to the trial jury and emphatically not to the earlier stages of the process. Some so-called true crime shows on TV print an admonition at the end that the characters we’ve just seen getting themselves arrested for gross abuses are to be considered innocent until proven guilty. No they’re not. In Judge Rothwax’s words they belong to the “probably guilty” class because they’ve been arrested on reliable information from eyewitnesses usually and haven’t given anyone reason to believe they’re innocent. This will continue to the end of the process until they face a jury, who will apply the presumption The rest of us in the chain of custody leading thereto will have held them to be “probably guilty” or, in the judge’s words there would have been no righteous grounds for arrest. I may give the judge a rest in my next essay, but I’ll be returning to him before long.

Did you know that a recent London murder jury consulted a Ouija board to get in touch with the victim, who demanded a conviction and was upheld unanimously by the jury?