First Sentences

“Somewhere in the dark years between Adolf Hitler’s invasion of Poland and the turn of the Second World War’s tide, Wystan Hugh Auden returned to his childhood faith.” Ross Douthat, Bad Religion: How We Became a Nation of Heretics.

“It was not that he didn’t remember he once had another sort of life.” Gao Xingjian, One Man’s Bible (translated by Mabel Lee.)

“My strongest memory is not a memory.” Tara Westover, Educated.

 “The explosion took place two minutes after Elishva, the old woman known as UMM Daniel, or Daniel’s mother, boarded the bus.” Ahmed Saadawi, Frankenstein in Baghdad.

 “Despite being the official retreat of American presidents, Camp David is a curiously bare and rustic facility.” Michael J. Mazarr, Leap of Faith: Hubris, Negligence, and America’s Greatest Foreign Policy Tragedy.

“The nights are so pleasant in Caulfield.” Cornell Woolrich, I Married a Dead Man.

“Tuesday, September 16, 2008, was the ‘day after Lehman.’” Adam Tooze, Crashed: How a Decade of Financial Crises Changed the World.

“Her journey from Alton to Springfield should have taken no longer than two days, but as the stage driver himself said, ‘That’s no more ‘n a hope.’” Louis Bayard, Courting Mr. Lincoln.

 “In 1926, there were countless ways to die in an airplane.” Keith O’Brien, Fly Girls: How Five Daring Women Defied All Odds and Made Aviation History.

 “Last night I dreamt I went to Manderley again.” Daphne Du Maurier, Rebecca.

“I think of the old football press boxes first, the ones where you’d look up from scribbling in your notebook and find a guy in the crowd staring at you through the window, probably wondering if it was your story that made him choke on his cornflakes the other morning.” John Schulian, Football: Great Writing About the National Sport.

“Word came today: four lines squeezed on a three-by-five.” Richard Powers, The Gold Bug Variations.

“When I left my boxed township of Illinois farmland to attend my dad’s alma mater in the lurid jutting Berkshires of western Massachusetts, I all of a sudden developed a jones for mathematics.” David Foster Wallace, “Derivative Sport in Tornado Alley,” in A Supposedly Fun Thing I’ll Never Do Again: Essays and Arguments.

A Sausage Made It Famous

          Sheboygan is famous for one thing, at least in its eyes. No, it’s not me even though I was born and raised there.

          Sheboygan, Wisconsin, sits on the shores of Lake Michigan halfway between Milwaukee and Green Bay, about fifty miles from each. Growing up this location was a boon. We could get television stations from both places, but this was the days of over-the-air and required an antenna. The father installed a rotor that could shift the antenna’s direction south towards Milwaukee or north towards Green Bay. Most often, this did not matter much because each city had the three networks showing the same shows, and while Milwaukee had an independent station, the networks were where it was at.

Occasionally, the rotor would malfunction, and the father would get out a long ladder and climb onto the roof to make adjustments. This being snow country, the roof was steeply pitched. I should have been concerned that this job held some danger, but I had a child’s faith in his father. The repairs, however, were a three-person job. With him on the roof, one of us watched the TV and shouted when the rotor had the antenna in exactly the right position to get Milwaukee. Another of us would be outside the window and relayed the message to the roof man. Then the inside person would move the rotor through some sort of device towards Green Bay, and the same shouting ensued.

          This rotor business was essential for one very, very important reason—the Green Bay Packers. I can hardly overstate the obsession with the Lombardi-era team of my youth, although a similar obsession for each era of Packers has continued. Back then, Green Bay played half its home games in Green Bay and half in Milwaukee. The NFL then had a blackout policy that prevented hometown television stations from broadcasting games for a team’s home games. However, Green Bay was outside the blackout zone when the Packers played in Milwaukee, and the CBS station could carry Ray Scott announcing the game, and the Milwaukee station carried it when the game was in Green Bay. With that blessed rotor we could get all the games in the comfort of our home. (The Packers have played many famous games. Among them is the Ice Bowl when the Packers met the Dallas Cowboys for the NFL championship on the last day of 1967. On that morning, the father got a call from an acquaintance and was asked whether he wanted to go. Showing wisdom I did not always give him credit for, he declined and said that we would watch the game from the comfort of home. It was not that we were not experienced with cold. The average high for three winter months in Sheboygan was in the mid-twenties with the average low fifteen degrees colder. Whenever there was a cold snap, we would wake up to below-zero days, and I can regale you, as I have the NBP (nonbinary progeny) and the spouse many times, about how I walked to school in that cold, although I lied if I ever said that I had to do it without shoes. We knew cold, but we also had an understanding of cold, and December 31, 1967, was extraordinary. The temperature at kickoff was minus fifteen, but, of course, there was a wind, which plunged the wind chills into the minus forty ranges. I can go on about that game, but you can read about in the pioneering book by Jerry Kramer, who made the key block, and Dick Schaap, Instant Reply, but I don’t think that book contains this nugget. In those long-ago days, spectators could carry beer into the stadium. I was told that those who did found their six-packs frozen before the first quarter ended. For Wisconsites, that brought on real suffering. But I digress. Let me move onto my next digression.)

          For me, however, the defining aspect of Sheboygan was not that it was a half-way point between two other places but that it was on Lake Michigan. Those who consider a place like Wisconsin flyover country do not understand the beauty, power, and importance of the Great Lakes (or the Mississippi River.) I spent many hours on the shore and piers of Lake Michigan. (My bedroom has a series of pictures of the Sheboygan lighthouse.) My childhood would have been much different without Lake Michigan (and the myriad inland lakes, Elkhart Lake, Crystal Lake, Little Crystal Lake, Random Lake, and many others within a half-hour of the hometown.) Whenever I returned after leaving Sheboygan, I would first head to Lake Michigan and drive up the lakeshore starting at the Armory where the Sheboygan Redskins played in the first year of the National Basketball Association (you can look it up) past the beach and up the hill to Vollrath Bowl before heading home. (There is a lot of good literature about the oceans, seas, rivers, lakes, marshes, and swamps. I don’t know any about the Great Lakes. Give me suggestions if you know some.)

(continued June 3.)

Snippets

How does a security guard at a nudist colony pin on the badge?

Have you ever cogitated on the coincidence that both your parents were married on the same day?

When Barack Obama ran for reelection, many tried to make him responsible for things, taken out of context, that the minister of his church had said. I confidently predict the Trump will not have to deal with anything the minister of his church has preached.

“Socialism” is thrown around as an epithet a lot these days. I wish that those who did so would define the term, or does it just mean something the person does not like?

“If the rich could hire other people to die for them, the poor could make a wonderful living.” Yiddish proverb.

“Cultural appropriation” is also thrown around a lot as an epithet. I wish those who did so would define the term. On a recent trip, I saw Moroccans wearing hats with the New York Yankees logo (although I don’t remember seeing anyone sporting any other American team insignia) and NYPD caps. I saw McDonalds, Burger Kings, KFC, spaghetti, and tacos. Was this cultural appropriation?

“Whatever you may be sure of, be sure of this: that you are dreadfully like other people.” James Russell Lowell, My Study Windows.

          In my running days, I was on a traffic island in the middle of a busy Brooklyn street. I was looking for a break in traffic to get to the southside sidewalk when my right foot awkwardly hit broken pavement, and I turned my ankle. I almost fell and had a brief vision of rolling into the moving cars. I could barely stand up. Although I always ran with money in case I needed a cab to get home, I generally avoid taxis. Instead, I painfully hobbled the mile and a half to the house. In those days, I tried to run every day, but in an uncharacteristic act of sensibility, I stopped running for quite a while. But after days, a week, or maybe two weeks the ankle did not seem better. I was worried that it was more than a sprain and that perhaps I had broken or chipped a bone. I finally went to a doctor. I then had an HMO and saw a doctor I had not met before, a suspiciously young guy to be an M.D. He took x-rays and reported that it was only a soft tissue injury. I protested that it was taking “forever” to heal. He replied, “At your age you have to expect these things.” I thought, “I’m paying you for this advice!”  I was then in my mid-thirties.

“As we grow older we grow both more foolish and wiser at the same time.” La Rouchefoucauld.

I am not proud that in scanning the obituaries I feel some satisfaction when I find that a vegan has died of cancer.

Real Americans and Trump

Real Americans I know have had a shot and a beer sitting at the bar of a neighborhood tavern after work. Has Donald J. Trump ever done that?

Real Americans I know have sung along with both Springsteen’s Born in the U.S.A. and Greenwood’s God Bless the U.S.A. Has Donald Trump ever done that?

Real Americans I know have seen Citizen Kane, Easy Rider, and all the Toy Story movies. Has Trump done that?

Real Americans I know eat hot dogs at street fairs, medium rare steaks, sushi, perogies, asparagus, barbecue, haddock, and cotton candy. Does Trump do that?

Real Americans I know have read maybe an Andrew Jackson biography, The Great Gatsby, Harry Potter books, To Kill a Mockingbird, and Michael Connelly detective novels. Has Trump read anything besides tweets and perhaps the crawl on Fox News?

Real Americans I know have at least tried to dance a foxtrot, the Texas two-step, a square dance, a waltz, the swim, the electric glide (or is it slide?), and perhaps, once, the macarena. Has Trump done that?

Real Americans I know own guns and fishing rods, hunt deer and turkeys, fish for smallmouth bass and speckled trout, and support universal background checks to purchase a gun. And Trump?

Real Americans I know have bought milk and eggs at the local store. Has Trump done that?

Real Americans I know have a lively sense of humor. Does Trump know how to laugh?

Real Americans I know both go to church and pray regularly. Does Trump?

Real Americans I know have proudly served in our country’s armed forces. Trump?

Real Americans I now have dressed up for Halloween and worn a goofy mask. Can one imagine Trump doing that?

Real Americans I know have read the Constitution. Trump?

Real Americans I know have worked two jobs to make rent or mortgage payments. Has Trump done that?

Real Americans I know don’t take credit for the accomplishments of others. And Trump?

Real American men I know are laconic and self-effacing. And Trump?

Real Americans I know want both secure borders and secure elections. And Trump?

Real Americans I know have waited in lines for tickets, airplanes, buses, and passport control. When did Trump ever do that?

Real Americans I know have donated money to Meals on Wheels, Doctors without Borders, a neighborhood food bank, the Red Cross, or other charities that they do not control? Does Trump do that?

Real Americans I know volunteer at their church, synagogue, or mosque, at a soup kitchen, in the local library, at little league, at the library, in a tutoring or literacy project, or somewhere? Has Trump ever done that?

Real Americans I know do not claim a “natural ability” to practice medicine and science. Trump?

Real Americans I know want to know more and are curious about many things. And Trump?

Real Americans I now have suffered from racial and ethnic bigotry. And Trump?

But, unfortunately, real Americans I know also are ignorant of history, lack empathy, are inarticulate, lie, bullshit, are self-centered, have their egos easily bruised, are vindictive, are afraid of “others,” and speak without thinking.  Donald J. Trump does do that.

Honor and Remember

Even before the year of Covid-19, Memorial Day had lost its official meaning for most of us. The federal holiday, once called Decoration Day and celebrated on May 30 but now on the last Monday of May, was instituted for the remembrance and the honoring of those who died while in America’s military. (Veterans’ Day on November 11 commemorates all those who served in the military.) In recent years, a few official speeches along those lines have been given somewhere (I missed Trump’s speech—surely it was at least as eloquent as his others). Some of our older generations maintain a tradition of visiting the graves of loved ones, but this somber holiday now seems primarily celebrated as the unofficial beginning of summer and, for smaller fry, the end or near-end of the school year. For few of us, is it a time for solemn reflection about the sacrifices of others but instead about the joys of the beach, barbecues, and the freedom from homework.

But what is Memorial Day this year at a time when, for many of us, every day seems the same? Will it still be joyful for the schoolkids whose classes were suspended? I suppose they may be happy that online assignments will soon end (and perhaps their parents even more so). But surely there will not be the same excitement and relief found when running out of the school door on the last day of school with friends, whooping in the playground and chattering about the planned summer activities. With cheerleading camps and Little Leagues closed around the country, any such chatter this year may be sparse and forlorn.

Many barbecues normally held on Memorial Day have been cancelled, and for those who maintain social distancing, they will be much different even if they are held. Memorial Day normally heralds beach time, but that, too, will be a different experience for many of us. This is not a normal Memorial Day.

But even if traditional Memorial Day activities are curtailed, we should spend at least some of our time doing what we should always do on this holiday—remember and honor those who died while in the military. And we should go further and think about the 100,000 Americans who have already died from Covid-19 and about the tens of thousands who will die in the coming summer months. Let’s remember and honor all the essential workers providing healthcare, making deliveries, working in food stores and meat-packing plants, and the like. Many of them have gotten sick and some have died serving us. A person does not have to die on a battlefield to be a hero. And let’s remember all those who are suffering as a result of the pandemic, including those who have lost their jobs and those who do not have enough to eat in this richest country in the world.

We should have more time on our hands than on past Memorial Days. Let’s use some of that time by honoring and remembering.

Snippets

The newscaster a few days ago said that a tropical storm was forming in the Caribbean and continued, sounding reproachful, “even though the official hurricane season does not start until the first of June.” I know that there are precise times for the equinoxes and solstices that signal a change in the seasons, but isn’t the “official” start of the hurricane season an artificial date or are storms expected to know these deadlines?

I received a census questionnaire. The first sentence of the explanatory material told me that this was my “invitation to respond” to the census. At the bottom of the page it told me that my “response is required by law.” Is it an “invitation” if the law requires me to fill it out?

In this unusual time, many people are doing a lot of baking. I think of the words of a character in Gregory Sherl’s, The Future for Curious People: “My favorite food groups go cheese, bread, cheese bread, and soup served in a hollowed-out loaf of bread.”

Do the Christians who are non-celiac but gluten-free pray sincerely, “Give us this day our daily bread”?

To my surprise, I have been eating healthily during these shut-in days, but I began to feel a strong urge for some junk food. I did not succumb because I could not resolve my quandary: What is a decent wine to pair with a DingDong?

I hear conservatives rail against the “elites,” but that term is not defined. Sean Hannity has seemingly open access to the president and greatly influences him. It has been reported that Hannity makes $36 million a year and lives in a “mansion” in a fancy place on Long Island. Few have as much power and money as Hannity does. Surely that places him in the elite category, but in his eyes and others it does not. That just doesn’t make sense.

A teacher in my grade school periodically checked our fingernails to see if they were clean, something that continues to bedevil me. One girl’s nails always were spotless, and the teacher, pleased, remarked one day, “You must wash the dishes before you come to school.” She smilingly nodded yes in this time before dishwashers. Was this teacherly exercise appropriate? Does it still happen? And why won’t my fingernails stay clean?

A plaque on my desk states: “Every Time You’re Right Someone Loves You A Little Less.” Every time I read those words, I figure that I am not much loved.

I needed a new aortic valve. To get to my heart, the medical team went in with a catheter through the groin. In life generally, the path to the heart frequently goes through the groin.

Old joke: “Drinking makes you look beautiful.” “I haven’t been drinking.” “But I have.”

For Sanity, We Made Jokes

          When I started work as a public defender, I felt myself an outsider. I was viewed with suspicion by many of my colleagues. They were almost always local people who had attended local colleges and law schools. My Ivy League background and my recent relocation to New York City were not considered pluses. Out of the hundreds of attorneys, only a handful had attended an elite law school as I had. Many assumed that I was a dilettante who could not do the work. But the duties suited me.

We did not operate in teams as was done in other public defender offices where I later worked. In New York, an individual attorney, with little oversight, represented clients, and I operated best in this kind of environment. While I learned to discuss difficult cases with others, no authority told me what to do, which, given my anti-authoritarian nature, suited me just fine.

The job required being able to take individual responsibility. I am not a fighter by nature. I seldom initiate a confrontation, but when I am cornered, I am a battler. Basically, a public defender spends a career being cornered, and I was surprisingly good in those situations. I soon had the respect of my colleagues. I truly liked and respected most of the people I worked with. They were good attorneys.

          I also learned a lot and not just about how to be a lawyer. I gained knowledge about lives I would not have otherwise encountered. Much of it was ugly stuff, and I had to find ways to cope with that. Sometimes, for example, I would meet clients hours after they were arrested, and they were going through drug withdrawal, which was awful to see. Even now, many years later, I can’t watch a depiction of that in a movie or on TV. When I left the work, I wanted to leave behind the encounters with violence, dysfunctional families, and hopeless alcoholics. I did not want to bring those memories into the rest of my life, but that has not always been an easy task.

          The difficulty in separating out the public defender work from the rest of my life was there even while doing the work. I cultivated the mental habit of being a careful listener, cataloging and putting into the memory bank what I had been told. The instinct was to be suspicious of every assertion, and I remembered when a client, a cop, a prosecutor, or a judge told me something that was different from what the person had said two weeks or two months previously. Such an inconsistency was hoarded because it might be valuable down the road in defending the indigent. But this habit could become second nature and be carried over into “normal” life, and being immediately suspicious of what friends, family, and other loved ones said is not a particularly good way to operate in regular life.

          We defenders also easily fell into stereotyping victims and defendants. For example, we would say that blacks used guns, Italians knives, and Irish fists. Orthodox Jews committed crimes with pens—various kinds of fraud—or unorthodox sex crimes, such as inserting a key into a young girl’s vagina to “unlock” her. Gypsies (no Roma for us) and Russians were incapable of telling the truth. And many more.

I would like to think that such stereotyping did not affect me when representing the individual client, but I know that I operated on ethnic and other stereotypes in jury selection. Common wisdom was gleaned from other attorneys. For example, try to exclude a black juror born in the West Indies if a black born in the South was on trial. These stereotypes went beyond the racial and ethnic. I had assumptions about the kind of person who would live in certain neighborhoods or hold particular jobs that affected the use of my peremptory challenges. Once again, I did not want all this typing of groups to invade the rest of my life.

          Manipulation also became second nature. Can I maneuver the prosecutor or judge into a better deal for my client? But also, can I manipulate, or more neutrally, convince my client into seeing that a particular plea bargain is not only a good one, but the best he is going to get? Of course, there is manipulation in everyday life, but it is not the constant that it was in criminal defense work.

          Indeed, the contrast between my work life and my other experiences was often jarring. The spouse was studying and training to become a neurobiologist at Cornell and Columbia medical schools. Her mentors were M.D.’s who lived in fancy apartments and townhouses, and many of her colleagues were also medical doctors pulling down nice salaries, while she and I could barely make ends meet. Sometimes I would go straight from work to a Park Avenue party, and the disparity between the two was almost incomprehensible. I was no more than five or ten miles from the courts and my clients’ neighborhoods, but it was worlds apart. I did not talk much about my work at these gatherings because I did not feel it could be grasped by the partygoers just as those I represented could not have comprehended the lives of these doctors and scientists.

          We defenders shared two mechanisms for coping with the work. The first was the more frequent and more creative use of “motherfucker” than even David Mamet could envision. The second was laughter. We all learned to tell jokes about the stuff we saw and did, jokes we knew could not be shared with others outside of our work. Jokes were made about almost anything and was the first reaction to nearly everything.

I remember only one time when we all felt that a joke could not cover the pain of what we experienced, and no one uttered a quip. Other attorneys and I were listening to a tape from a recorder worn by an undercover officer who was in a housing project corridor to make a drug buy. We knew what had happened, but it was still startling to hear the cop’s voice as he recognized a high school classmate as the seller from whom he was to make the buy. We then heard the officer yell, “Don’t shoot! Don’t shoot!” The classmate had realized that his once-friend was now with the police and had pulled out a .357 magnum. We heard the shot which reverberated in the narrow hallway. We knew that the officer was hit. We could then barely hear his pleading voice get the words out again, “Don’t shoot.” Then we heard another shot which hit the cop in the chest right next to the recorder. We could hear the chilling sound of blood and air being sucked in and out of the gaping wound. And then the tape fell quiet. We public defenders looked at each other in silence. Even we couldn’t joke about what we had just heard.

That incident aside, however, I don’t think I ever laughed as much as when I was a public defender.

Aphorisms When Thinking About Trump

 “Racism is pervasive. The pretense that it belongs solely to poor people who talk slow lets the rest of us off the hook.” Rebecca Solnit, The Encyclopedia of Trouble and Spaciousness.

“Blessed is the man who, having nothing to say, abstains from giving us wordy evidence of the fact.” George Eliot.

“Only little people pay taxes.” Leona Helmsley.

“I’ll not listen to reason. . . . Reason always means what someone else has got to say.” Elizabeth Gaskell.

“To love oneself is the beginning of a life-long romance.” Oscar Wilde.

“It is a general error to imagine the loudest complainers for the public to be most anxious for its welfare.” Edmund Burke.

“Those who despise mankind believe themselves great men.” Marquis Luc de Clapiers Vauvenargues.

“You cannot have power for good without having power for evil too. Even mother’s milk nourishes murderers as well as heroes.” George Bernard Shaw.

“The popularity of a bad man is as treacherous as he is himself.” Pliny the Younger.

“One always speaks badly when one has nothing to say.” Voltaire.

“Hypocrisy is the most difficult and nerve-racking vice that any man can pursue; it needs an unceasing vigilance and a rare detachment of spirit. It cannot, like adultery or gluttony, be practiced at spare moments; it is a whole-time job.” Somerset Maugham.

“It is not in human nature to deceive others, for any long time, without, in a measure, deceiving ourselves.” J.H. Newman.

“One of the most striking differences between a cat and a lie is that a cat has only nine lives.” Mark Twain.

“We find it easy to believe that praise is sincere: why should anyone lie in telling us the truth?” Jean Rostand.

“A fool always finds someone more foolish than he is to admire him.” Nicolas Boileau.

“The first step towards madness is think oneself wise.” Fernando de Rojas.

“A man should not be ashamed to own that he has been in the wrong, which is but saying, in other words, that he is wiser today than he was yesterday.” Jonathan Swift.

“Nothing hath an uglier look to us than reason, when it is not on our side.” Marquess of Halifax.

“Those who never retract their opinions love themselves more than they love the truth.” Joseph Joubert.

“A bigot delights in public ridicule, for he begins to think he is a martyr.” Sydney Smith.

“There is nothing makes a man suspect much, more than to know little.” Sir Francis Bacon.

“Trump: His mother did not have him tested.” R. Jonakait.

Finding My Soul Again

I had loved him on TV, and now he was coming to the RKO Albee, just a few blocks from my apartment. The RKO Albee was one of those grand vaudeville/movie theaters built in the 1920s. It was said to be the second largest such theater in New York City after Radio City Music Hall. The Albee, by the time I made it there, was in serious decline. It was situated in downtown Brooklyn that once had many similar theaters, but downtown Brooklyn and large movie houses no longer remained fashionable. Shades of the grandeur that had once been in the Albee were evident, but seeing them took some faith and imagination, except for the bathrooms which remained magnificent.

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

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

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

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

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

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

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

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

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

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

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

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

Bill Barr, Michael Flynn Meet James Brogan

          “A conservative is a liberal who got mugged.” I heard that bon mot many times decades ago when crime was higher in the country.

          Today we have conservatives who are newly-minted civil libertarians because law enforcement techniques, tactics, and procedures employed against many others have been used on those around Trump.

Many of us have been critics of these law enforcement practices for decades and generations. We weren’t joined by conservatives, but rather were attacked as menaces to law and order. When, however, federal agents used these techniques and tactics on conservatives, a cadre of conservatives now denounce these elements of law enforcement. You might say that it is like a liberal who gets mugged; when Trump people are investigated, conservatives become civil libertarians. However, I suggest that you take that conversion with a grain of salt at least until this concern is shown for people other than Trumpistas.

          The most recent conservative outcry concerns Michael Flynn, and their collective cry has been heard. The Department of Justice, not a court or jury, has dismissed the charges against Flynn.

Making knowingly false statements to investigating federal officers is a crime under 18 U.S.C. §1001. Flynn pled guilty to lying to FBI agents about his conversations with the Russian ambassador. That Flynn, represented by expensive, experienced attorneys, admitted his guilt is an inconvenient truth for the newly outraged. (As is the fact that Trump fired Flynn for lying to vice-president Pence.) All they can do is to latch on to Flynn’s present attorneys’ allegation that he pled guilty only because the government threatened prosecution of Flynn’s son if Flynn did not plead guilty.

          We do not know whether this threat was made; we only have Flynn’s attorneys’ word for it. But if it happened, it was not a tactic created for Flynn. I, along with other defense attorneys, have heard that threat from prosecutors more than once. Clients I represented were told many times that unless they pleaded guilt a spouse, a parent, a child, a brother, or sister would face criminal charges. I and my defense brethren often argued that this was coercive and reprehensible, but courts have long accepted the practice. And never once did I hear conservatives speak against this coercive tactic when used against ordinary folk.

          Mostly, however, the conservative commentators maintain that Flynn was treated unjustly because he was placed in a “perjury trap.” Flynn was asked about conversations with the Russian ambassador concerning sanctions that had been placed on Russia. He denied the conversation. He was questioned, as a writer for “American Spectator” said, “without the FBI warning him that it was an investigatory interview.” (Otherwise, it is ok to lie to the FBI?) The FBI apparently had a tape of the conversation in question, and they already knew the content of the conversation. A “National Review” editorial points out that they did not play the tape for Flynn but commenced “instead grilling him.” (Flynn, supposedly experienced in intelligence work, should have known that the ambassador was routinely tapped. Why, then, did he lie?) The “National Review” editors conclude that “it’s not clear what the FBI was doing besides hoping he’d lie.” A writer on foxnews.com said something similar: “In short, there was no law enforcement purpose for the Flynn interview. The purpose of the interview was to have Flynn lie and get him fired. . . . A perjury trap occurs when the facts are known to prosecutors and investigators and the only purpose of the interview is to catch the subject in a lie. This was a false statement trap since Flynn was not under oath, but the principle is the same.”

          The Justice Department under Attorney General William Barr heard the cries and dismissed Flynn’s case because his lie was not material, a requirement of the crime. (18 U.S.C. §1001(a)(3) requires that a statement (1) is false, (2) is material, (3) is knowingly and willfully made, and (4) concerns a matter within the jurisdiction of a federal department.) Courts have interpreted that materiality requirement broadly. The false statement does not have to actually influence the government’s actions; the lie, as one court put it, only has to have “a natural tendency to affect,” the federal agent’s decisions. If Flynn admitted to talking with the ambassador about the sanctions, there would have been follow-up questions: Were you acting on your own or were you following the advice or directions of others? Who knew about your conversation? When did you first discuss sanctions with a Russian official? Before the election? Did you make any promises to the Russians? Did they make any to you? Depending on the answers, agents would have reasonably taken further actions such as interviewing others. This did not happen because the falsehood ended those possibilities. In short, the lie had a “natural tendency to affect” the investigators.

          Why, then, was Flynn’s lie considered not material?  Attorney General William Barr was not entirely clear on this point when he gave an interview to CBS, but he seemed to say that the lie was immaterial because the interview was a perjury trap. He said the questioning was not a “bona fide counterintelligence investigation,” He maintained that the ongoing counterintelligence investigation was being shut down but continued: “And that when they heard about the phone call, which is—the FBI had the transcripts too—there’s no question as to what was discussed. The FBI knew exactly what was discussed. And General Flynn, being the former director of the [Defense Intelligence Agency] said to them, ‘You listen, you listen to everything. You know, you know what was said.’”

          If Flynn had told the FBI agents what Barr said he had, of course he should not have been prosecuted. He would not have been lying, but in fact he denied having the conversations and pleaded guilty, twice, to telling that willful, material, lie.

          But Barr went on to say: “There was no mystery about the call. . . . They kept [the investigation] open for the express purpose of trying to catch, lay a perjury trap for General Flynn. They didn’t warn him, the way we usually would be required by the Department. . . . [It] was not a legitimate counterintelligence investigation going on.”

          I, too, am concerned if the FBI’s goal was to get Flynn to lie. If so, the federal agents were seeking to create a crime, and law enforcement should not do that. But Barr and the Flynn commentators never mention that this is hardly the first time such a trap has been set. Bill Barr and Michael Flynn meet James Brogan.

          James Brogan was a union official in 1987 and 1988 when he accepted cash from a company whose employees were represented by Brogan’s union. The last transaction was in December 1988. Federal agents visited Brogan’s home on October 4, 1993, and asked for his cooperation in an investigation of the company. The agents told him that if he wished to cooperate, he should have his attorney contact the U.S. Attorney.

          The agents then asked if they could ask Brogan some questions, and he agreed. They asked if he had received any cash or gifts from the company. He said, “No.” Only after this response did the agents tell him that a search of the company had uncovered records showing the payments. He was then told that lying to federal agents in the course of an investigation was a crime, but Brogan, without his counsel being present, stuck to his answer.

          Brogan was convicted under 18 U.S.C. §1001, and the case made its way to the Supreme Court.

While lower courts had held that a simple false denial of guilt did not violate the statute—what is known as the “exculpatory no” doctrine–the Supreme Court, in a 1998 opinion by Justice Antonin Scalia joined by Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Thomas, affirmed the conviction.

The Court first held that an “exculpatory no” was a false statement that fell within the literal terms of the statute. Brogan argued, however, that the “exculpatory no” doctrine was inspired by the Fifth Amendment, which says that people cannot be required to incriminate themselves. Brogan contended that the literal reading of §1001 violates the spirit of the Fifth Amendment since it presents the “cornered suspect” with the “‘cruel trilemma’ of admitting guilt, remaining silent, or falsely denying guilt.” Scalia scoffed: “This ‘trilemma’ is wholly of the guilty suspect’s own making, of course. An innocent person will not find himself in a similar quandary. . . And even the honest (sic)and contrite guilty person will not regard the third prong of the ‘trilemma’ (the blatant lie) as an available option.”

          Scalia went on to dismiss the contention that silence in an investigation is an “illusory” option because silence might be used against the person or because the interviewees might not know that they can remain silent: “In the modern age of frequent dramatized ‘Miranda’ warnings, that is implausible.”

Scalia finally considered the argument that §1001 can be an instrument of prosecutorial abuse but concluded that the remedy for that potentiality lies with Congress to redraft the statute. (Section 1001 was amended after Brogan’s conviction, but the amendments did not address the “exculpatory no” issue.)

          Justice Ginsburg, along with Justice Souter, voted to affirm the conviction because Brogan’s false denial clearly fell within the terms of the statute. They wrote separately to point out “the extraordinary authority Congress, perhaps unwittingly, has conferred on prosecutors to manufacture crimes.” She also noted that if Brogan had counsel at the interview, the lawyer would have advised Brogan to amend his answer when the federal agents told him that they had evidence that he had received money from the company.

The Brogan case shows that the Flynn situation that has provoked conservative outrage and an extraordinary Justice Department action is hardly unique. That courts before Brogan case had carved out an “exculpatory no” exception to §1001 indicates that similar law enforcement techniques had been used many times before Flynn was interviewed. Indeed, it has been a common law enforcement tactic: Ask the person about what is already known. If the person admits to the deeds, he might be turned into a cooperating witness. If he denies it, prosecute him under §1001.

If the Flynn situation was egregious, Brogan’s encounter was even more so. Flynn was not told that the agents were conducting an investigatory questioning of him or, as Barr notes, was not given any warning. Barr indicates that such a prelude is standard policy, but Brogan was not told them either. Indeed, the agents were actively misleading Brogan when they only told him they were investigating the company. They seemed to want his guard to fall.

          Flynn was not played the tape of his conversation with the ambassador, but assuming Flynn has even a modicum of sophistication about intelligence activities (surely the president would not appoint someone who was incompetent), he should have known the possibility that such a tape existed, and Barr indicates that he did. (If so, why did Flynn blatantly lie?) Similarly, the agents did not tell Brogan before the questioning that they had documentary evidence of the payments, but this was even worse than the Flynn situation because Brogan could not have reasonably known about the documents.

          The Barr and the conservative commentators maintain that the point to the FBI’s actions was to get Flynn to lie, and, therefore, the questioning was not a bona fide investigation. (Have they asked the agents what their motives were?) The Brogan Court did not speculate on the motives of the federal agents, but those government officials had good reasons to want Brogan to lie. The usual statute of limitations for federal crimes is five years, which means that a person must be charged within five years from the time of a crime’s commission or he cannot be prosecuted. That period had run out on the earlier bribes the company paid Brogan and was fast elapsing on the last payment. However, when Brogan lied, a new crime was committed that would not only permit its prosecution but also allow evidence at his trial of all the payments, something that the agents undoubtedly knew. Surely, they had reasons to get him to lie.

          The Supreme Court in 1998 recognized that the statute was susceptible to abuse and, as Ginsburg said, could be used by law enforcement to manufacture crimes. But, as Scalia noted, lying is not the answer. If the falsehood was not appropriate for Brogan, how could the sophisticated Flynn think that he had a right to lie? If silence was the right answer for Brogan, as Scalia indicated, surely it was for Flynn, too.

The Justices of the Supreme Court said that any remedy had to come from Congress by amending §1001. That was over twenty years ago. I know of no conservative civil libertarians who rose up protesting about Brogan’s conviction and jail sentence. I know of no conservative civil libertarians who have proposed changes to the statute to prevent possible abuses. Where have all those conservative civil libertarians been all this time? I guess they were quietly waiting for the right moment, waiting for Michael Flynn to come along.

Bill Barr also told CBS: “I was concerned that people were feeling there were two standards of justice in this country. . . . There’s only one standard of justice. . . . It doesn’t matter what political party you’re in, or you know, whether you are rich or poor. We will follow the same standard for everyone.” If this is not just empty rhetoric, and if the Flynn decision was not based on politics, and if he truly wants one justice for all, we should expect that he will undertake a review of all §1001 prosecutions. And, although I have no idea of where James Brogan is or whether is even alive, Barr should be considering advocating a pardon for him.

          Oh yes, about liberals being transformed into conservatives when mugged. I have been robbed twice at knifepoint. And I am strongly anti-conservative. Perhaps more so now than I have ever been.

          And, really, why did Flynn lie?

(The next post will by Friday, May 15.)