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First Sentences

“In the corner of the small living room of the small country house at the end of the dirt road beneath the blue Carolina sky, the dark-skinned five-year old boy sat with his knees pulled to his chest and his small, dark arms wrapped around his legs and it took all that he had to contain the laughter inside the thrumming cage of his chest.” Jason Mott, Hell of a Book.

“We all want to know how it was in the beginning.”Nathaniel Philbrick, In the Heart of the Sea.

“Well, the sun was shining.” Rumaan Alam, Leave the World Behind.

“The silence was excruciating, the minutes ticking by thick and heavy, time itself gorging on the tension in the humid air.” Ben Mezrich, Once Upon a Time in Russia: The Rise of the Oligarchs—A True Story of Ambition, Wealth, Betrayal, and Murder.

“Mayya, forever immersed in her Singer sewing machine, seemed lost to the outside world.” Jokha Alharthi, Celestial Bodies.

“English rule of Ireland was achieved by force, maintained by force.” Wayne G. Broehl, Jr., The Molly Maguires.

“I was born to be a wanderer.” Maggie Shipstead, Great Circle.

“On the third day of October 1901, Abram S. Hewitt was a happy man.” Clifton Hood, 722 Miles: The Building of the Subways and How They Transformed New York.

“Still hours of dark to go when I left home that morning.” Emma Donoghue, The Pull of the Stars.

“Senior Lieutenant Alexander Logachev loved radiation the way other men loved their wives.” Adam Higginbothan, Midnight in Chernobyl: The Untold Story of the World’s Greatest Nuclear Disaster.

“Simon the Fiddler had managed to evade the Confederate conscription men because he looked much younger than he was and he did everything he could to further that impression.” Paulette Jiles, Simon the Fiddler.

“Texas, perhaps more than any other state in the Union, lives in the public imagination as a place of extremes.” Annette Gordon-Reed, On Juneteenth.

“On Saint Patrick’s Day, Daniel Coleman, an agent in the New York office of the Federal Bureau of Investigation handling foreign intelligence cases, drove down to Tyson’s Corner, Virginia, to report for a new posting.” Lawrence Wright, The Looming Tower: Al-Qaeda and the Road to 9/11.

“The day was flat.” Douglas Stuart, Shuggie Bain.

“On October 5, 1936, thousands of people packed the unpaved roads of Van Meter, Iowa.” Luke Epplin, Our Team: The Epic Story of Four Men and the World Series that Changed Baseball.

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Words, Words, and More Words (concluded)

William and Mary Morris in their book the Harper Dictionary of Contemporary Usage promote standards for the English language that were unknown to me and are likely to fade from my memory. For example, the “fine distinction between completely and wholly should be observed in formal writing.”  While they sought to preserve many seemingly arcane distinctions, the Morrises surprisingly concluded that some standards had passed away. (“Pass away/pass on. Euphemisms for ‘to die.’ Both should be avoided.”) Most surprising: “The subjunctive mood of verbs is used to express hypothesis, supposition, contingency. You don’t hear or read the subjunctive much any more. Nowadays the way language is used by educated, literate speakers and writers is the final criterion, and, by this standard, the subjunctive is today just about dead.”

The subjunctive continues to bedevil me. I have read several language “experts” on the topic, and they seem to be inconsistent upon when it should be used. Perhaps it should be abandoned simply because of the trouble it presents. (Mark Twain said: “Damn the subjunctive. It brings all our writers to shame.”) Perhaps I should totally abandon its use, but in spite of what William and Mary wrote, I know that many people, including “educated, literate speakers and writers” continue to struggle to use it correctly. Perhaps I should accept what they say and give up the burden of trying to get it right.

All this highlights the difficulty for those trying to identify what is appropriate English usage. The language is not static; it changes, and no one can know the precise point when some substandard usage becomes acceptable. That is also true for the creation or new use of words. William and Mary Morris refer to vogue words that crop up suddenly, get attention, but “soon become debased by overuse and lose their initial sparkle and freshness.” They gave a list from thirty or more years ago: “input, output, hangup, freak out, flap, camp, kitsch, watershed, bench mark, overview, empathy, infrastructure, phase (in and out), ongoing, seminal, in depth, feedback, escalate, relevant, generation gap, clout, biodegradable, interface, parameter, ingroup, outgroup, peer group, synergy and synergistic, and longuette.” Presumably the authors thought these terms would largely have disappeared by now, but many of them are still in frequent use. However, I would like to banish some of them. I just turned off a TV show about cars during which the voiceover told me about driver inputs. I would have been embarrassed to have said that, but there it was. But some of those vogue words–even those that are cringeworthy–have not disappeared but have settled into secure and useful places in the language. It is hard to predict the development of English.

If the language is constantly changing, why try to promulgate standards of what some maintain is correct usage? A century ago Ambrose Bierce would demean such a standard bearer as a “lexicographer”: “A pestilent fellow who, under the pretense of recording some particular stage in the development of a language, does what he can to arrest its growth, stiffen its flexibility and mechanize its methods.”

In an epilogue, panelists for Contemporary Usage commented on this tension between correct usage and ongoing language development. Frances Fritchman said, “We are not just quaint antiquarians opposing progress. What we are really fighting for is clarity, accuracy, exactitude—qualities never more needed than now!” Of course, every age probably says that clarity and accuracy are essential, but it is correct that standards can help assure proper communication. (Some would, however, vehemently object to that exclamation point.)

The panelist Vermont Royster also makes that point: “What I deplore is the debasement of the language, whether from violation of the simple and logical rules of grammar or from using good, useful words wrongly. . . . The consequence is a breakdown in communication. Not only are subtleties and shades of meaning lost, but in some cases there is actual misunderstanding between writer and reader, the writer intending one meaning, the reader receiving another. This occurs no matter whether it is the writer or the reader who is using the language wrongly.” However, in spite of what Royster says, the rules of grammar are often not simple and logical. For example, even though recognizing its illogicality, William and Mary Morris maintain that the “preferred usage is ‘two times two is four,’ not ‘two times two are four.’” But why does it matter for accurate communication whether is or are is used?

Similarly, should there be a concern if a subtlety or shade of meaning is lost if the communication is still clear? The panelist Earl Ubell wrote: “When someone says ‘I am nauseous’ rather than the correct ‘I am nauseated,’ I have to learn to hold my tongue because if I make the correction, no matter how gently, my respondent responds with a grimace that say ‘Pedant! Elitist! Nit-Picker!’ and worse.” (Wasn’t it condescending to write to William and Mary Morris and the other panelists that “nauseated” was correct?) Who doesn’t understand me if I say “I am nauseous” or “A nauseating smell came from the rendering plant”? If the communication is clear, when is it pedantry to say the “wrong” word is used? Since I learned at about the age of sixty-five the difference between the two words, I have tried to use them correctly, but I believe that I was understood perfectly well before then. (The Morrises, unwittingly anticipating and differing with Royster, say about the increasing misuse of “nauseous,” “it seems reasonable to infer that we may be here considering an instance of gradually changing usage.”)

Correct usage, however, can also help the struggle against pomposity and euphemisms. Elizabeth Hardwick, another panelist, wrote, “I feel a great many of the barbarisms are an expression of distrust of simple language, a fear that the simple words are not refined enough. . . . Bureaucratic, Latinate words are preferred to old root words of common speech. All of this depresses me.” Clear, simple language is worth promoting, but I also like Hardwick’s openness to new formulations. She also said, “On the other hand I love new coinages from ‘street language’ when they are imaginative and fresh. I like ‘split’ for going away quickly. . . .”

Her comment made me think of when I first heard dissed, as in, “He dissed me.” When I understood that coinage, it conveyed in a succinct manner something meaner than “He insulted me” or “He ignored me.” It had value. Promoting English language standards should not stand opposed to all changes in speech and writing.

 As I write this, I wonder why I read style and usage books, and I realize that mostly I hope to make my speech and writing clearer and more precise. But I also realize that there is something more at work. I like words. They are fascinating and magical. I simply like learning about them. The use of some words can make me cringe; the use of some words is befuddling. However, the use of some can please and delight. I read the guidebooks in hopes of being better able to use words well. I agree with Evelyn Waugh who said, “Words should be an intense pleasure just as leather should be to a shoemaker.” I have never made shoes, but I like both words and leather. So, I read on.

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Words, Words, and More Words

I have been rereading  the Harper Dictionary of Contemporary Usage (Second Edition) by William and Mary Morris. I am not sure when I first read it, but it was probably a few years after the book was published in 1985. I recognized the authors, a married couple both born in 1913 (she died in 1986, he in 1994) from their syndicated column “Word, Wit, and Wisdom.” I read it regularly as a kid in the Milwaukee Journal. I remember only one specific lesson from that column: They informed me that slow is both properly used as an adjective and an adverb. Therefore, “I drove slow” is as correct as is “I drove slowly,” something that my editor, the spouse, still refuses to accept.

Contemporary Usage gives advice that I wish I would follow, such as “die should be followed by the preposition ‘of’ rather than ‘from.’” Or: “Care should be taken not to confuse bemused with amused. A person bemused is deep in thought, sometimes to the point of stupefaction. He is most definitely not laughing.” [Editor’s note from the spouse: I knew that.] I’m pretty sure that I will not remember all that I should from the book.

The authors’ writing is clear, informative, and amusing. And frequently adamant: “The nonstandard thusly must have been coined by someone who thought that all adverbs have to end in ‘-ly’ or thought thusly was a little more ‘elegant’ than just ‘thus.’ In any event it is an abomination. ‘Thus’ is stuffy enough for all normal purposes. See also FIRSTLY/THUSLY.”

The authors, however, did not just rely on their own knowledge. They also submitted questions of disputed usage to a panel of 165 authors and editors and reported the results citing specific comments from some of them. For example, the authors wrote to the panel:

“In recent years the verb ‘to burgeon’ has been, in opinion of purists, widely misused. Its primary sense is simply ‘to bud,’ yet it has been widely used as synonymous with ‘to mushroom.’ Would you accept ‘the rapidly burgeoning city of Dallas’?”

In writing, 39% said yes, and for speech , 46%. Michael J. Arlen commented: “It’s bad enough that people use words such as burgeon because they’re sexier than ‘grow.’ At least let them use an accurate word.” Stewart Beach: “I’m afraid the incorrect meaning has gained so much acceptance it will be hard to stop.” Walter Cronkite: “I would not use it now that the definition has been called to my attention.” A.B.C. Whipple: “It’s probably better than the ‘mushrooming city of Dallas.’ In fact, it’s probably better than Dallas.”

Besides giving sound advice on words and pronunciations, Contemporary Usage also documents the fast-changing nature of what is considered to be good English. The book’s first edition was published only ten years before the second edition, and most of the earlier content appears in the later version. However, sometimes the authors recognized that the language was so rapidly changing that some questions of the first panel should be asked again of the second. For example, 42% of the first panel said hopefully in the sense of “we hope” was acceptable in conversational speech but only 24% accepted it in writing. A decade later, the panel was less tolerant, with 30% accepting it in speech and only 17% in writing.

Sometimes the changing nature of the language can be seen from a single query as new words become more widely accepted. For example: “Would you regard underclass as still another euphemism for ‘poor,’ like ‘underprivileged’ and ‘disadvantaged’? Yes: 49%. No: 51%.” Is the term underclass “a valuable addition to the lexicon of words dealing with society’s problems? Yes: 41%.”

All language stylebooks want to save distinctions between words: “A student does not pour over his books; he pores over them.” A value to me in such books is to learn distinctions that I did not know or only vaguely know, such as “practicable/practical” or “glimpse/glance.” Sometimes there is a distinction or standard that I know and I try to keep, but reading about it makes me wonder if I should care. For example, 90% of the usage panel would maintain a distinction between precipitous and precipitate, a distinction I learned late in life and long after such a distinction was necessary to my existence.

Sometimes, however, the authors tried to maintain standards that were better buried. For example, the Morrises maintained that kudos is singular and “there is no such thing as a ‘kudo.’” They go on to say that while some dictionaries list kudos as both singular and plural, “if it is more than one high honor you are talking about, make it kudoses.” William and Mary have lost out. At least one online dictionary lists kudo as the singular and kudos as a plural. I, for one, have never seen or heard kudoses used, and I am not about to start using it now.

 On a few occasions in the book, the authors seemed to promote a word’s usage, but failed. For example: “With the return of beards to fashion and with barbers becoming ‘hair stylists,’ the term pogonotomy may come back into use. It is made up of two Greek word, ‘pogon,’ meaning ‘beard’ and ‘-tomos,’ meaning ‘cutting.’” And: “Turophile is a word which has recently made it into the pages of unabridged dictionaries and one which Clifton Fadiman is credited with coining. It means ‘a connoisseur or fancier of cheese,’ and comes quite logically from two Greek words: ‘tyros’ for ‘cheese’ and ‘philos’ for ‘loving’.”  Both these words are in modern dictionaries but are not much used, or thankfully (or perhaps, “I am thankful”), not much used in my presence. I might find the use of oenophile pretentious, but progonotomy and turophile are just plain silly.

(concluded October 13)

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Toy Retreat

(Guest Post from the the NBP–the Non-Binary Progeny)

I didn’t realize it as a child, but now I see that I was pretty angry about a lot of things in my young life. I didn’t look like my parents (other kids looked like their parents!), and besides that, I was trapped in a body that I really didn’t like—a body I came to hate, but more on that later. When confusion and anger overwhelmed me, I would go into a zombie-like meditative state and lose myself in my toys.

Several toys consumed me. Whether it was G.I. Joes or Transformers, I became transfixed. I also had an assortment of Lincoln Logs, Matchbox cars, plastic dinosaurs, and other animals for whom I created worlds for us to get lost in. Sometimes those worlds only consisted of marching the dinosaurs around and having them meet the cars and the tigers, but it was enough for me to forget about myself for a time. I loved my “boy” toys.

I hated dolls. I once had a doll my mom named Chamomile (I wouldn’t even deign to name her), given to me by a family friend. Chamomile was a Japanese doll with a porcelain face, straight jet-black hair, and a red kimono. Didn’t this couple—Japanese scholars both—know that Koreans and Japanese aren’t the same thing? Well, I didn’t at the time, so I thought I was supposed to look like this doll; I couldn’t have been more insulted! Okay, well, they couldn’t have known that this Asian (I barely knew I was Korean, only some brand of Asian) toddler despised dolls of any ethnic background. No dolls. Period. This doll was not allowed in my room. I wanted to put her six feet under because I wholly rejected any resemblance to her and flat out thought she was creepy with her piercing eyes and her perfectly puckered lips. [Shivers!] My mother consigned her to a closet, where I wouldn’t be able to see her, nor she me. Obviously, dolls were forever banned from my toy repertoire.

One Christmas—I was about five—my grandpa made me a dollhouse. Built it himself—an old man building a dollhouse. Awww, sweet. I destroyed it. Like a little ungrateful brute, I kicked it in because it screamed to me, “YOU ARE A GIRL.” I feel guilty about demolishing it, and I know my parents were upset that I had done so since it was such a nice thing my grandpa did (and, apparently, he wasn’t always the cuddliest fellow in the world), but I couldn’t stand it. In hindsight, I could’ve at least tried to use the dollhouse as a G.I. Joe headquarters.

The only other “girly” toys I remember owning were My Little Ponies. They were stupid and pink and purple and “girl” colored but ultimately accepted into the mix because they were useful as beasts of burden. All my action figures were allowed to use them as mules and horses for carry and cargo. Mwahaha.

I was a huge fan of Legos and spent hours building Lego cities, both modern and medieval. These were extravagant constructions with multiple dwellings, roads, vehicles, people. Sometimes these architectural masterpieces remained assembled for quite some time…months at least. After a while I would notice that the yellow, blue, and red blocks started looking more and more like the gray ones. Excitedly, I would go majorly OCD. Paintbrushes of all sizes would be assembled and used to dust every nook and cranny. Fan brushes were especially effective, in case you were wondering! Dusting became another therapeutic zombie activity. It required few brainwaves and at the end, when I snapped out of my dusty reverie, I would feel a sense of accomplishment. All my knights, castles, pilots, drivers, and civilians now lived in an allergen-free world! It took hours—blissful, non-thinking hours.

Talking about paintbrushes, art was another outlet for me. Not only was it easy to get lost in, but it was an activity relatively free of gender overtones. My zombie self was an abstract artist veering towards Modernism with lines, colors, patterns, and shapes plunked all over a page; we (my Zombie and I) used crayons, markers, watercolors, pastels, colored pencils, acrylics. These artistic adventures could last for hours in which I would achieve my “zombie-zone”—anger synapses asleep. Pages upon pages would pile up on my art table. Once I had a formidable stack, I would gather together as many pages as the stapler allowed, and add a cover with a clever title (e.g., “Lines and Shapes”) and my name. It amazed and impressed my parents when the zombie state came on because I’d be intent for such long periods of time that they thought it indicated a profound ability to focus on a task. They didn’t know—and neither did I—that it was really a way to unfocus and go to another, less complicated place.

Later on these drawings became distinctly warlike. Knights, axes, swords, battleships, and airplanes shooting fire, bullets, missiles, bombs, ahem all manner of projectiles, figured prominently. The knights or the soldiers were always either armed or had rippling arms themselves. These drawings required total concentration, and the time spent drawing them—images of death-inducing weapons though they might be—had a calming effect on me. Whatever the zombie and I did, it was done subconsciously to calm an inner rage, and it sort of worked.

Warrior wannabe (or disturbed child, ha. Ha. Ha?) though I may have been, I loved stuffed animals. They were cute and soft and uncomplicated (boys had them, too!). Stuffed animals were also good friends because if you felt the need to hit things or throw things against a wall, they could take it. They didn’t get upset or scream or cry. They just pleasantly smiled (hopefully without crying on the inside).

I always had one favorite, and he was never in harm’s way. The first favorite was a super soft leopard with wonderful spots named Larry. Larry had plastic whiskers great for chewing on. Then came Steven who was a tan mini-Gund bear. He loved to have his tummy rubbed and rubbed and rubbed.

Needless to say, all my animals were male, except for one pink Gund bear named Susan. Me, the blossoming little sexist, made her the bitch. Talking about sexism: Loving stuffed animals—being suckered in by cute things—seemed like a disturbingly girly thing to do. Dusting Legos also made me feel girly because neatness and cleanliness were attributes associated with girls. I tried not to think about this too much, because even if they were girly, they were necessities.

Then came William, William T. Bear (his middle name was “The” not “Teddy”). When I received William, a chocolate brown grizzly bear and held him for the first time, he felt so new and soft and was the ultimate in cuteness and comfort—100 percent ergonomic…for hugging. Oh, he even smelled good. I knew we’d have a special bond. He was a present from my father, which made him already special—even magical. I gave him a voice, and in turn, he gave me one. I manipulated and animated him like a puppet (but he’s not a puppet, damn it, he’s real!). I brought him to life by moving him: body, limbs, even ears. I gave him emotions and ascribed body movements to each feeling. I was never without William at home, and I dreaded leaving him behind when I went to school. He was a shield and a security blanket, and a rather excellent companion. William was also a useful communication conduit to my parents. My parents, not bears of small brain themselves, caught on quickly. They would ask me if William were tired, or if William were sad, and William, less guarded than I, would answer truthfully and unassumingly. I, who rarely spoke more than a word or two even at home, became quite vocal and lively when William was around. He was a bubbly bear and made even me laugh. William was who I wanted to be. He was funny and simple and innocent and silly and male. He was not evil, though naturally being a bear, he grrrred a lot. He made my anger disappear. He was the light side to my dark. (Shhh. Don’t tell, but he’s watching Top Chef next to me as I write this.)

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Snippets

The email from a group that sees itself as a defender of religious liberty stated: “Of all the threats to our constitutional freedoms today, the scheme to stage a Supreme Coup of America’s courts is arguably the most dire. If our judicial system is rigged to favor partisan agendas, religious freedom—and all our fundamental, God-given rights—could be stripped away by a tyrannical majority who holds political power. That’s why right now, Americans must make their voice heard and REJECT this brazen power-grab.”

I wondered about various aspects of this plea including what “our fundamental, God-given rights” are. A benevolent, all-powerful God should give all of humanity a right to a peaceful life; to adequate food and shelter; to free speech; to worhip as you see fit; to a fulfilling education; and to good healthcare. I doubted that such rights were being referred to, but I could not discern what rights were meant. If it meant certain provisions in the U.S. Constitution, it ignored that God did not write the constitution. It was not on tablets given to Moses, but instead came on inked paper from humans, or as we often proudly proclaim, from “We the People.”  What do you believe are God-given rights, and why do you believe that? (For a further discussion of “We the People,” see the posts of July 16, 18, and 20, 2018: Search Results for “”We, the People of the United States”” – AJ’s Dad (ajsdad.blog).

A tag on my oven mitt reads: “Cold water wash . . . Do not bleach . . . Tumble low dry . . . Warm iron . . . 100% cotton . . . Made in China.” What kind of person irons an oven mitt?

“A good man, maybe. But it’s best to shoot him.” Old Russian Proverb. Ben Mezrich, Once Upon a Time in Russia: The Rise of the Oligarchs—A True Story of Ambition, Wealth, Betrayal, and Murder.

Baseball playoffs are taking place. This makes me think of the brother’s recollection of our first television. He was in fifth grade, and the father surprised us in October by bringing home a tiny, black-and-white set. He talked about how much the family would enjoy it, but we thought that his desire to see the World Series was the motive behind the purchase. The brother told me that he tried to catch a cold, which he did, so he could stay home from school and watch October baseball, this when the Series had only day games. The mother told the father that my brother was sick and could not watch the game. The brother reports, “Well, she left for her afternoon work at the grocery store. Of course, dad let me.”

Is this joke now politically incorrect: Did you hear about the hillbilly who passed away and left his estate in trust for his bereaved widow? She can’t touch it until she’s fourteen.

My suggestion for an incremental improvement for gun safety: Make it a crime to carry a gun while intoxicated. Of course, carrying a gun is not the same as using it, but even carrying one while drunk should be prohibited because the decision whether to use a carried firearm should not be made when a person is intoxicated. The consequences should be similar to drunken driving, which, of course, is an offense even if there is no accident, Perhaps a first conviction for carrying a gun while intoxicated would only be a misdemeanor, but just as driving licenses are suspended, the ability to carry a gun should be prohibited for a time after the first conviction. A second conviction would be a felony, and the person could no longer possess guns. . . and might even go to jail.

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Five Bullets (concluded)

          The victim in the five-bullets case opened his apartment door one afternoon. A man with a revolver fired at him and fled. Police quickly arrested the shooter who was after revenge because the victim had testified in a grand jury against the shooter’s brother about a robbery, and that brother was now in jail.

          The shooter told the police that my client, who lived in the same housing complex as the victim, had given him instructions on where to find the victim. My client told me that he had been out in the building’s yard when the shooter approached him and asked if he knew the victim. My client said yes, and the shooter asked where the victim lived. My client pointed to the building and said on the fifth floor. The shooter departed. My client said that he had never met the shooter before; he did not see the shooter with a gun; and he had no idea what the shooter was going to do.

          If this was true, my client, like the unwitting driver of the bank robber whom I had used as an example when writing about the Texas abortion law, was not an accomplice to the crime. I suspected, however, that there was a bit more to my client’s story than he was telling. He may not have met the shooter before, but the shooter was a well-known bad guy who evoked fear in the neighborhood. My client may have known the shooter by sight and been intimidated by him. Furthermore, my client may have heard the stories circulating about the victim’s testimony against the brother and at least suspected that the shooter’s inquiry was not a friendly one. Even so, however, I thought I could mount a good defense, especially since my client had never been in any trouble with the police, was an earnest student, and worked two part-time jobs to help his single mom and three siblings with family expenses.

          Alas, I was not to hear a jury announce a not-guilty verdict in what I thought was a winning case. When the shooter’s case went to trial, the prosecutors wanted my client’s testimony, and they agreed to give him immunity. It only made sense for him to accept it.

I remember this case for other reasons besides my lost opportunity for a victory. The victim after being shot somehow made it to the phone and called 911. Later, as was routine, I obtained a copy of that recording. I heard his voice reporting that he had been shot multiple times. His voice sounded calm. There were no screams or pleas for help. Just an affectless recitation of what had happened and where he was. He hung up. The recording continued with the 911 operator contacting a squad car. She said what she heard, but she added. “I don’t know. It sounded like a prank. I don’t think it happened. But I guess you have to go and check it out.” And he had five bullets in his body.

The case had yet another memorable wrinkle. Shortly after my client was arrested, a preliminary hearing was held. The victim was in a hospital, so the hearing was held there. He still had five bullets lodged in his body, three of which were in his skull awaiting surgical removal. I did not know how he survived the shooting, something I wondered about when it was my turn to question him. Multiple tubes were running in and out of his body, and it was hard to hear his responses with the numerous medical devices making different sounds. He, of course, did not know what had occurred between the shooter and my client, but in response to my query, he said he had always considered my client to be a friend, buoying my hopes for the trial that never was.

This was not as difficult as another cross-examination I once had, this one in a drug case. My client was charged with selling heroin to an undercover officer. In what was then a standard practice, the arrest was not made immediately after the sale, but weeks later, when the undercover pointed out the supposed seller to other members of his team, who then swooped in to grab the client. There was always the chance for a mistaken ID in these situations, and I won some cases on that ground but usually only if I could rather conclusively prove that my client had not made the sale. For example, I established that one client was sorting mail with many other workers at the main post office at the time of the transaction. Most often, however, these drug sales were tough to defend. The public, including jurors, generally thought that trained officers were unusually adept at making these identifications. However, data indicate that they are no better than the rest of us, and study after study have documented that mistaken identifications are one of the chief causes of wrongful convictions. My client, a street person, had no solid proof where he was at the time of the sale, and all I could do was to suggest that the undercover could not conclusively ID the seller, a defense that depended on cross-examination of the cop and almost never worked. The difficulty of that task, however, increased because the undercover between the time of the sale and trial had been shot and paralyzed in an incident unrelated to my case. He was wheeled into the courtroom on a hospital gurney with an IV drip in place. Go ahead: You try to cross-examine under these circumstances and show that that cop’s credibility could not be trusted and that there was a reasonable doubt that your client was guilty. I lost, of course. For the sale of two $5 bags of drugs, which he may or may not have done, my client got fifteen years in prison .

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Five Bullets

          Hypotheticals are the life blood of law school. Students read a case and seek out its “holding,” the reasons underlying the court’s decision. The professor then posits modified facts and asks if the reasoning still applies or whether the decision should now be different. Both as a law student and a professor in a law school I played around with hypotheticals, but while sometimes intellectually intriguing, these were bloodless exercises. Grades might have been affected, but since the litigants were made up, money, property, and freedom were not at stake. However, on occasion in my public defender work what could have been a law school hypothetical appeared, and the resolution of the legal game determined whether someone went to prison.

          Hearsay was the issue on one of those occasions. I will spare you an extensive discussion of hearsay, but its definition is one that almost all students memorize. While it is easy to spout those definitional words, the concept is a difficult one. I would throw hypothetical after hypothetical at the student hoping to sharpen their thinking about what was and was not hearsay. This is an important distinction because the rules of evidence say that juries should not hear hearsay, even though there are dozens of exceptions that permit some hearsay to be heard. But the distinction between hearsay and non-hearsay remains important because if the evidence is not hearsay, the hearsay rule allows it. Thus, I used lots of hypotheticals to teach the hearsay concept, but it often seemed beyond the intellectual abilities of many of my students at a third-tier law school.

There came a time that in addition to the classroom teaching, I was doing an appeal for a public defender. I read the trial transcript, and a hearsay issue was at stake, one that, to my surprise and satisfaction, was almost the same as a stock hypothetical I had used in my evidence classes. I wrote a brief explaining that the disputed evidence was not hearsay and that, therefore, the defendant should have been allowed to have the jury hear it, and a retrial should be ordered.

          The prosecutor’s reply brief was written by a young associate of a prestigious law firm doing what I assumed was mandatory pro bono work. Her high-paying day job signaled that she had gone to a much more highly ranked law school then the one in which I taught. Even so, it was clear that she, too, failed to understand hearsay.

          I was confident when the case came for argument before an array of appellate judges. The issue was not one of interpretation or nuance. This was a classic case of non-hearsay; it should have been admitted. Its exclusion in the trial court caused an unfair trial. The conviction had to be reversed.

          After my introductory comments at the lectern, I firmly said, “This was not hearsay. It should have been admitted. The defendant was denied a fair trial.” And then I was taken aback. The presiding justice said, somewhat sheepishly I thought, “Explain to me again why this isn’t hearsay.” And I thought but did not say. “Oh, shit. She doesn’t understand hearsay either.” This, however, allowed me–for my only time in an appellate argument–to haul out some of my trove of law school hypotheticals, which I hoped I was doing in a non-condescending manner, for there is nothing worse for your case than to appear to be condescending to a judge. I don’t know that I was convincing. It may have simply been that the judge’s clerk had an adequate grasp of the hearsay concept and later educated the judge, but the court’s decision—correctly—ruled for my client, and he was released from prison. But I took credit believing that sometimes, law-school hypotheticals can have real-world consequences.

          An aside: I learned something about handling judges early in my career. My client’s son was charged with a rape. His father, on the advice of a lawyer, had offered the woman money in exchange for her dropping the charges. The lawyer, not the sharpest legal mind, had said that it was just like settling a civil case. The lawyer and the father were arrested for attempted bribery of a witness. The lawyer was being represented by a well-known, highly-regarded criminal defense attorney. He and I both had moved to dismiss charges and submitted briefs with several arguments supporting our position. The judge ridiculed our worked and ticked off how our contentions were unpersuasive. However, he then went on to say that we had ignored an argument, which he articulated. I started to interrupt the judge, planning to say, “But I said exactly that in my brief.” Before I could get started, my distinguished co-counsel grabbed my arm to make me stop and whispered to me, “If he thinks that he thought of it, we will win.” I stopped. We won.

          I have been thinking about that case and another after I recently wrote about a law-school hypothetical on this blog when I posted about the Texas abortion law. (See the three posts of “Let’s Expand the Texas Abortion Law: Search Results for “”Texas abortion”” – AJ’s Dad (ajsdad.blog)) There I explained that a person who drove the robber to the bank was only guilty if the driver knew what the robber had planned. This had me thinking about the five-bullets case where I represented a young man charged with taking part in an attempted murder.

(concluded October 4)

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What’s In a Headline

MURDER HEADLINES.

“Murders Spiked in 2020 in Cities Across the United States.” Thus read yesterday’s headline from a news source I look at daily. Often, I read no more than the headline believing it gives me the gist of the news. This time I read the story and realized that the headline could have been written in ways that might have put a different spin on the recently released FBI crime statistics. For example, the headline might also have said, “Major Crimes Fall in 2020.” While the original headline is true, so is the alternative, for the story reported, “Major crimes overall dropped about 5 percent.” But surely while both may be accurate, they likely give differing impressions of crime in the country.

          While we are much more likely to be a victim of a crime other than homicide, murders grab our attention and are likely to make it into the headlines. Nevertheless, variations on the headline were possible. Indeed, the same news source a week earlier reported on preliminary FBI data and had a story similar to the one from yesterday. Its headline: “Murder Rose by Almost 30% in 2020. It’s Rising at a Slower Rate in 2021.” Does this headline from a week ago give you a different impression from the one yesterday? The earlier one also appears to be true. This summer’s spike in homicides was lower than that from the summer of 2020. (Murders rise in the summer each year.) The story reported: “The higher murder rate has continued into 2021, although the pace has slowed as the year progressed.” The earlier headline seems to be delivering some good, or at least mitigating, news. Of course, they could have chosen a different headline, still accurate but more dire: “Murder Rose by Almost 30% in 2020 and Continues to Climb.”

          The headline yesterday stressed cities, but there may have been a different reaction had the headline read: “Murder Rate Jumped in 2020. Widespread Increase Was Not Limited to Major Cities.” This also would have been accurate. Although the story said that some cities had had a record number of murders, it also reported that “killings were more widespread, occurring in all regions of the United States and not limited to major cities.” Another accurate headline: “Murder Rate Spiked in 2020 but Major Cities Account for Smaller Share of Murders in U.S.” The story gave this striking statistic: “In 1990, New York City and Los Angeles accounted for 13.8 percent of the country’s homicides, compared with 3.8 percent in 2020.” The story’s actual headline made this fact a surprise. Would alternative headlines have given a different impression of murders in large cities?

          A different headline might have assuaged fear: “Murders Increased in 2020. Still Well Below Historical Highs.” The article stated that some cities had hit record highs, but the national rates are “still well below the record set during the violence of the early 1990s” remaining about one-third lower than the earlier highs. Three decades ago there were nearly ten murders for every 100,000 people while last year it was slightly over six per100,000. Perhaps the headline might have said, “Lower Murder Rates from Previous Highs Made Big Cities Safer.” The story reported that while 2020 murders in New York City increased to 500 from 319 the previous year, they were twenty-two percent of what they were in 1990 when 2,200 were recorded. Murders in Los Angeles increased from 258 in 2019 to 351 last year but were at their highest—1010—in 1980. And even though Chicago had an increase last year to 771, that was below the 939 murders in 1992.

          Instead of stressing cities in the headline, the editors could have focused on a different part of the data: “Murder Rate Jumped in 2020 Led by Increased Firearm Use.” This, too, would have been accurate as the story reported that 77% of the murders were by firearms which was up from 67% a decade ago.

          The headline might have been more political by saying: “Murder Rate Soared under Trump.” The earlier article contained a graph of the murder rates from the 1960s. The story could have stressed that the rates were highest in the 1970s when Republicans Nixon and Ford were President, dropped a bit, but spiked again under Republicans Reagan and Bush the Elder. The article could also have said murder rates plummeted in the 1990s under Democratic President Clinton, leveled off under W, and then modestly declined when Obama was in office.

          But the most striking headline might have been: “For 32nd Straight Year, Louisiana Had Highest Murder Rate in 2020.”

Posted on by rjonakait

Snippets

Little bear/jumped on the chair/and blinked./A good song/and not too long. . . .

A company says that it will clone a wooly mammoth from preserved DNA. I have questions. I have heard of wooly mammoths, but were there cottony or silky ones? And would a hairless mammoth be hypoallergenic and make a good pet for a toddler?

The spouse asked me when I wanted to leave to be on time for our restaurant reservation. I answered. She immediately said she wanted to go five minutes earlier, and it was clear that we were going at her preferred time. As I started to ask why she asked me what time I wanted to go, I, of course, knew the answer. If by happenstance I had picked the time when she wanted to go—the time when we would go–she could look like she was merely acquiescing to my wishes. I love this clever woman.

“To tell a woman what she may not do is to tell her what she can.” Spanish proverb.

I do not have any biological children. (I know, I am supposed to jokingly add, not that I know of.) But the NBP is my child, an adopted one. Of course, sometimes I have wondered what a child with my genes would have been like, but I know that my genes are a mixture of DNA descended from many others, and I had nothing to do with the genetic material I have. When I was in the hospital for a heart procedure, something that does tend to make you think about your death, I talked with the NBP. I said that my genes were not in him, but I hoped that some part of me would live on in him after I did die. That was more important than the genes, which I did not control. If part of me survived in him, it would be because of the time we had spent together; things we had taught each other; connections we had. That seemed to me, and still seems, more important than the passage of genetic material.

Peacocks were part of my youth. I grew up a half-dozen blocks from a small-town zoo, which contained peacocks, and it was always impressive when I saw one in the feather display. But even when at home, I could hear the call of a peacock, which from a distance sounded mysterious and sort of romantic. My view of that call changed when I spent a season on Longboat Key, the barrier island off the west coast of Florida. In the funky part where I stayed–a collection of old (for Florida), small cottages–peacocks roamed freely. I sometimes had to brake for them, and I would watch them from the porch where I read. I was used to their calls and did not think much about them at first. That changed. The cry came not just during the day, but also at night. One peacock seemed to have an affinity for my bedroom window’s air conditioner and would perch there. When it would emit its cry at 2 a.m., which it did frequently, I would bolt awake, and its reiteration would stop me from falling back asleep. Too often I would stumble outside to chase it and its companions away. I started to have dreams of hunting the birds. Romance turned to vengeance.

“We’re born arsonists and we die firemen.” Andrea Camilleri, Treasure Hunt.

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Let’s Expand the Texas Abortion Law (concluded)

At the turn of the nineteenth century, English philosopher Jeremy Bentham proposed a design for a circular prison with the cells on the perimeter and a guard at the center. The guard could observe the prisoners, but the inmates because of blinds and other contrivances could not see the guard. Of course, the guard could only watch one a few prisoners at a time, but the inmates would not know when they were being observed. Bentham concluded that the risk of observation, as he put it, “a sort of invisible omnipresence,” would cause the prisoners to regulate their behavior to an appropriate standard, which primarily meant work.

In the 1970s, the French philosopher Michel Foucault seized what Bentham called a panopticon as a metaphor for social control using observation to promote docility and “appropriate” behavior. Without using the panopticon term, George Orwell in Nineteen Eighty-Four captured the power, and the terror, of the risk of being watched although his book had the surveillance via telescreens: “There was of course no way of knowing whether you were being watched. . . . You had to live in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.” And watched or not, behavior was controlled by the potential of observation.

The Texas abortion law does something similar. Since anyone in the world may sue to enforce the law, anyone with any contact with an abortion provider will feel as if someone is observing the interaction and seeing an opportunity, whether justified or not, to sue for damages. Since every contact with an abortion provider leads to the possibility of legal liability, the way to avoid that risk is, of course, to cut off contacts with abortion clinics. The law thus will control behavior even without enforcement. And even if the law is overturned someday, the panopticon effect of the statute will affect reproductive rights and choices until then with consequences that will go on even longer.

The Fetal Heartbeat Act is unconstitutional because it forbids abortions that Roe v. Wade and other Supreme Court precedents allow. The law is Orwellian, however, because of its vigilante enforcement and because many people cannot know when or whether they are violating the statute. Conservatives, at least some Texas ones, seem comfortable with these frightening SB 8 procedures, and perhaps will try to extend them to other arenas. Non-conservatives should be thinking along the same paths. Might the Texas law provide a template for other initiatives that non-conservatives might favor?

Gun violence might be an appropriate target. After all, gun violence harms not just those who are wounded or killed but society generally by causing widespread fear affecting the behavior of many. Perhaps we could start out with a narrow proposal. A state might create a private, civil cause of action  gainst anyone who shoots another with an assault rifle unless the shooter shows that the victim was committing a dangerous crime endangering others at the time of the shooting. As with the Texas law, government entities and officials would be forbidden from enforcing the new cause of action, but anyone else could claim under it seeking a minimum of $10,000. In addition, similar damages could be sought from anyone who aided or abetted the shooter without any need to show that the aider or abettor knew or should have known that the shooter would violate this law. As with the abortion law, the extent of aiding or abetting liability would not be immediately clear, but it could extend to those who sold the gun or the ammunition to the shooter. It might reach the manufacturer of the weapon or ammunition, and I am sure that creative attorneys would think of others to sue. 

What other problems do you see that could be addressed with a statute similar to the Texas abortion law?