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The Shot Heard ‘Round the World (continued)

Don DeLillo’s Underworld starts with a set piece about that mythic baseball playoff game won by Bobby Thomson’s home run in the bottom of the ninth, and echoes of it recur throughout the novel. A few years ago, I thought of DeLillo’s portrayal of that day again in an unlikely place—waiting in line at Kennedy airport for a flight to Rome. I found myself in conversation with the man behind me who was a professor at a university in Naples. He told me that his specialty was Italian-American literature. I had heard of many academic concentrations, but never of this one. I asked what authors interested him and he mentioned Richard Russo. I was somewhat taken aback. When I have read Russo, I only thought that I was reading an American novel, not an Italian-American one. His list did not include Mario Puzo, but he praised John Fante, an author I had never heard of. (Because of this conversation, I have since read Fante’s Bandini Quartet­, which I had trouble finding. My copy was shipped from England. These novels are quite good, and I should thank him for putting me on to them.) He went on to talk about DeLillo, and I asked him about his reaction to Underworld, and he was effusive. I asked if he had trouble understanding that baseball game at the beginning of the book, and he gave a charming smile and chortled that he did not have a clue about what was going on. I did not try to explain. There is something so particularly American about that baseball game that I did not think a few minute’s conversation on the topic could accomplish much with a foreigner, and, furthermore, while I did feel that the game had some sort of significance besides its mere outcome, I was not sure why.

          Finally, after reading about the game by Doris Kearns Goodwin and Red Smith, I read for the third time DeLillo’s take on it, and I began to understand at least some of the reasons why that playoff lives in American consciousness. Perhaps every moment in American history is some sort of watershed, but this game encapsulated aspects of American history and past culture and foretold changes that were to come.

          In 1951, baseball provided a peaceful connection to the past. “You do what they did before you,” DeLillo says. The Bobby Thomson game was played at a time when America was thinking it could put the sacrifice and horrors of World War II behind it and carry forward a peaceful world. Baseball reminded us of that past. DeLillo has Gil Hodges, a Brooklyn player in that game, say the Polo Ground is “a name he loves, a precious echo of things and times before the century went to war.”

          Baseball also then resonated with a wide swath of Americans, or at least American males. Red Smith, writing a few years after the game, noted that almost every American male had played some version of baseball, whether it was baseball itself, or softball, stickball, five hundred, punch ball, kickball, or myriad other games. In 1951, it was America’s sport and somehow represented a perpetually youthful America. DeLillo writes about Thomson that “he is forever Bobby now, a romping boy lost to time. . . .”

Baseball is just a game, but it could feel more momentous. DeLillo writes, “The game doesn’t change the way you sleep or wash your face or chew your food. It changes nothing but your life.” And a particular game could feel as if it fit into the tide of American history. Russ Hodge’s producer says about Thomson’s home run, “Mark the spot. Like where Lee surrendered to Grant or something.”

          We readers of Underworld know, however, what its characters did not: that dominance of baseball was going to fade. A column by Red Smith makes that point. He had driven to Florida for baseball’s spring training, where many major league baseball teams prepared for the regular season. He said that once on these drives he had seen baseball and all those other games being played by men and boys in the various town along his route, but now he no longer did. DeLillo foreshadows this change by having the broadcasters ask how can you explain the 20,000 empty seats in the stadium. The sport’s hold on America was still strong, but it was waning.

(concluded September 30)

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The Shot Heard ‘Round the World (continued)

          Broadcasts were not routinely recorded in 1951, but many of us have heard Hodges’ depiction of the famous Bobby Thomson home run 1951. Doris Kearns Goodwin makes it seem as if she heard it on the television, but the reports I have read said that his call was preserved on a tape recording by a Brooklynite made off the radio. Perhaps Hodges was simultaneously broadcasting on radio and TV, but that seems unlikely, and if the Goodwin family was listening to the radio while watching the television broadcast, I would have thought the Goodwins would have been listening to the Dodgers announcer, Red Barber. (Barber, it is reported, pronounced Hodges overexcited call as “unprofessional.”)

          Perhaps Doris really did hear Hodges make the call. Perhaps, like me, she heard it later. It is memorable, and perhaps she conflated it into the actual memory. What’s clear is that for her this game produced what has been sometimes called a “flashbulb memory” in which a memory of a momentous event becomes, we believe, indelibly etched into our mind. We probably all have some of these. Research, however, has shown we are often mistaken in details of these memories. (When I looked at some of this research for an academic project, they were called flashbulb memories. With the decline of flashbulbs, I wonder if researchers now use a different term.)

          Kearns Goodwin makes clear the importance of the event. “It was the worst moment in my life as a fan. . . . From that moment to this, Bobby Thomson and the Brooklyn Dodgers would be forever linked, the mere mention of his name calling forth in every Dodger fan instant recognition, comradeship, a memory of where they were, how they felt.”

          Doris had been posting the baseball scores in the window of a local butcher shop whose owners were Giants fans. She was so miserable that she avoided the shop until she received a bouquet of roses from the owner (“It was the first time anyone had sent me flowers.”), imploring her to come back because she was missed. “My excitement about the flowers drained my humiliation and pain over the Dodgers’ collapse.” She went to the store and posted the last Dodgers’ score of the season.

          The memorability of the game and the pomposity of its importance to some sports fans is seen in a continuing reaction. Goodwin writes that she now lives in Concord, Massachusetts, that is celebrated as the site of the first battle of our Revolutionary War, which was commemorated in a famous line from a no-longer famous poem written in the first half the nineteenth century. When she takes visitors to Concord’s Old North Bridge and sees the inscription on the monument there, ‘the shot heard round the world,’ “I think privately of Bobby Thomson’s home run.” This characterization, however, is not confined to her private thoughts. Thomson’s homer was characterized with the Revolutionary War line almost from the moment that ball landed in the stands and remains with many Americans. I recently tested my assumption that that playoff result lives in the minds of many Americans who had no personal connection with the game. I asked a biergarten drinking buddy, who was born twenty years after it happened, if he was familiar with Bobby Thomson’s home run. He immediately said, “The shot heard ‘round the world.”

          I have also been dipping into American Pastimes: The Very Best of Red Smith edited by Daniel Okrent. Smith, a Pulitzer-Prize-winning sportswriter, is best known for the four-times-a-week columns he wrote for New York City newspapers in the four decades after World War II. Of course, he wrote about the famous home run with a lede, published on the day after the game, that has been characterized as one of the best: “Now it is done. Now the story ends. And there is no way to tell it. The art of fiction is dead. Reality has strangled invention. Only the utterly impossible, the inexpressibly fantastic, can ever be plausible again.” Okrent labels that opening and the rest of the piece “the platonic ideal of a column about a major sports event.” I found Smith’s recounting to be enjoyable, and his often-remarkable prose is always worth examining. However, what first struck me in the October 4, 1951, column is that the writer immediately sensed that Thomson’s home run was not just one among many exhilarating sports events that he had seen. It stood alone. Not just to the rabid fan of the one team or the other, it was, as they say, a game-changer even to the seasoned sportswriter, who could no longer believe that he had seen it all.

          But I noticed something else in Red Smith’s column. He mentioned that there were “34,320 witnesses” to the game. The later depictions of that afternoon make it seem as if the whole country or at least all interested in sports or at least all of New York City or at least all of its baseball fans were living and dying with each pitch. On the other hand, the Polo Grounds, where the game was played, had a capacity of 55,000. More than 20,000 seats were empty. Perhaps the game was not as important when it was played as its extraordinary outcome later made it become.

          These writings by Doris Kearns Goodwin and Red Smith turned my thoughts to Don DeLillo’s remarkable novel, Underworld, which I had read twenty years earlier. It is not an easy book, or, at least it was not for me. I started the book and gave up. A few years later, I picked it up again, this time finishing it, realizing that I had just read something extraordinary.

(continued September 27.)

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The Shot Heard ‘Round the World

          I wasn’t aware of it when it happened. It was on television, I have read, but we did not then own one. It was on the radio, but I did not care. I was aware of little beyond our backyard and our block, even though I ventured further than that to attend one of our two years of kindergarten. I was six years old.

          But my world changed a lot during the next three years, and when I was nine, I learned about it. By then the Braves baseball team had moved from Boston to Milwaukee. I had become a baseball fan, and the New York Giants had traded Bobby Thomson to my Braves prior to the start of the 1954 baseball season. Almost every mention of Thomson referred to probably baseball’s most famous home run (only Babe Ruth’s “called” shot could compare), which Thomson hit on October 3, 1951. With the season nearing its end, the Giants were far behind the Brooklyn Dodgers—13 and a half games. The Giants, however, went on a tear winning 37 of the last 44 scheduled games, and the regular season ended in a tie, which produced the National League’s first playoff, a two-out-of-three affair. The Giants won the first game; the Dodgers the second. In the decisive contest, the Dodgers were winning 4 to 1 going into the bottom of the ninth. The Giants scored one run and got two more runners on base. Thomson then hit a three-run homer that won the game and the National League Championship for the Giants. (The Giants went on to lose the World Series to the New York Yankees.)

          There have been exciting, season-concluding baseball games since then ending that ended with a home run. Joe Carter of the Toronto Blue Jays hit a homer to the end the 1993 World Series, and even more dramatic was the end to the 1960 World Series. The New York Yankees had won three games over the Pittsburgh Pirates in blowouts, outscoring their opponents 38 to 3. Pittsburgh had won three close games. In the seventh and deciding game, the Yankees were leading when Pittsburgh scored five times in the bottom of the eighth after a ground ball took a bad hop hitting Yankee shortstop Tony Kubek in the throat and wiping out what appeared to be a double play. Down two runs, the Yankees scored twice in the top of the ninth with the aid of some unorthodox base running by Mickey Mantle. Bill Mazeroski, who averaged a mere eight home runs per season in a long career and who had already hit a decisive home run in Game 1 of the series, led off the bottom of the ninth, and on the second pitch, hit a home run over the left field wall to win the game and the baseball championship for the Pittsburgh Pirates.

          And since 1961, Super Bowls, NBA, college football playoffs, and college basketball championships have concluded on exciting, improbable plays. Even so, that 1951 game with Bobby Thomson’s home run seems to live on in the American consciousness in ways Mazeroski’s homer and the other exciting games have not. Or maybe I just think that because several things I have read recently and a conversation with a Neapolitan have placed that game high in my consciousness.

          One of those readings was the 1997 memoir of her childhood by the historian Doris Kearns Goodwin, Wait Till Next Year. She was raised in a middle class New York City suburb that emerged after World War II in a family of rabid Brooklyn Dodger fans. The 1951 playoff between the Giants and Dodgers was a momentous event in her eight-year-old life. In those days, playoff and World Series games were played during the day, and her teachers had allowed their charges to listen to the first two games on the radio, but Doris asked to stay home on the afternoon of the decisive game to watch it on that new instrument, a television. Her mother readily consented. She was not alone. Half her classmates also were not in school that afternoon. But the spectatorship was many more than diehard New York and Brooklyn fans, for a continental cable had been finished a few months earlier, and these playoffs were the first nationally televised sporting event.

          Kearns, as she then was, describes the tension of a close game, with the Dodgers scoring three times in the top of the eighth to take a 4-1 lead. And then the fateful bottom of the ninth. The Giants had scored to pull within two runs and had two men on base. The Dodgers pitcher Don Newcombe was tiring, and the manager replaced him with Ralph Branca. “I was horrified,” Doris writes. “Images of Branca’s other failures filled my mind.” She pleaded for this move to be rescinded. “But my pleas were fruitless. The stage was set, the moment irrevocable. Ralph Branca stood on the mound, and Bobby Thompson was advancing to the plate.”

          And the home run came, and along with it, she reports, “the never-to-be forgotten voice of Giant announcer Russ Hodges. ‘There’s a long fly. . . . It’s gonna be . . . I believe.’ He stopped for a moment. Then, as the ball dropped majestically into the lower decks of seats, there came that horrifying shout. ‘The Giants win the pennant! The Giants win the pennant! The Giants win the pennant!”

(continued September 25)

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Snippets

We have instruction for just about everything. We have math tutors and dance instructors; we have sports coaches and voice coaches; we have yoga instructors and meditation leaders; we have workshops for writing and networking. But I am not a good spitter. Who is there to teach me?

Ken Burns is a remarkable filmmaker. He has made outstanding documentaries on a wide range of topics—the Vietnam War, baseball, the Roosevelts, national parks, and now, country music—and yet he can make all these topics feel the same.

When a girl has her first period, she is often congratulated by being told that she has become a woman. Does anyone do anything comparable when a boy has his first nocturnal emission?

Maybe you already knew this, but I just learned that Mark Twain was born in Florida.

I often don’t know who has made my life easier. For example, for much of my life I had trouble finding the beginning of a newly installed roll of toilet paper. I would spin hoping for the end to come loose. Failing that, I clawed at it with fingernails. But then someone learned to make the toilet paper roll with a little hanging flap to start the unraveling. Much better. Who was that person?

A reason I am not a conservative: Religion is more than just about abortion, what sex you love, public prayers and Bible readings, or having the capital of Israel in Jerusalem.

When say “Needless to say,” why do they go on speaking?

Why is a fart funny? Is that true in all cultures?

Why is it called the War of 1812? Of course, the answer is because that is when it started, but we don’t label our other wars by the inception of the hostilities. And while it was going on, what was the War of 1812 called? Perhaps by 1813 it was the War of 1812, but what was the Seven Years War called during those seven years?

I am Donald J. Trump.

I never admit a slump.

My cheeks are pink, my hair is set.

My gift to you: A massive debt.

“The best books, he perceived, are those that tell you what you knew already.” George Orwell, 1984.

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Confessions of a Sometime Public Defender–Bail Edition (concluded)

I have stressed the importance of bail because it not only means whether a person is jailed but also because it can affect the outcome of the case. This is not merely my belief; studies have come to the same conclusion. I have also stressed that attorneys can affect the setting of bail in a fair court setting, and again, studies have come to the same conclusion. It came as a surprise to me, then, that in some jurisdictions where I worked and many others, lawyers are not appointed until after the bail decision. This is just wrong. It is also wastes public resources. Research has shown that when lawyers represent defendants at the initial bail setting, more are released without the skip rate increasing. That means fewer jailed people, and less cost to the taxpayers.

Bail-setting also varies around the country not only in whether an attorney represents the accused, but also in how defendants are brought before the court. In New York, the arrestee is escorted before the bench with handcuffs on, but most judges would order the restraints removed for the court session. In other places, however, the defendants are brought before the court in chains. You have seen what I mean in the movies. There is a chain around the waist, handcuffs are chained to that chain, a further chain drops from the waist down the front to the ankles, where it is chained to ankle chains. Those ankles chains prevent the person from taking a full step, and the chainee can move only by shuffling. And often each defendant is chained to another chained person, so a line of arrested people must shuffle together into court. I have felt revulsion each time I have seen this common sight. Of course, all those chain gang movies come back, but worse, thoughts of what that old plantation life was really like floated about. As far as I know, New York City had no more security problems using lesser restraints. The real purpose of the chains, I always thought, was dehumanization, but then, much of our criminal justice is about dehumanization, and the system is very good at that.

That initial court appearance, arraignments, I thought, might be akin to working in an emergency room. There was constant activity with many people trying to get my attention and time. Those in the cells could be demanding, “When are you going to be talking to me?” Cops out front could be doing something similar. They could not leave until the arraignment occurred and that depended on me. And the arrestee’s family members frequently insisted I do something immediately.

Triage was constant. A prisoner might be in agony from drug withdrawal. (This is, to put it mildly, not a pleasant sight. I tend not to watch movie portrayals of drug withdrawals because they bring back memories I wish I could let go of.) Methadone could help the person, but methadone was not given in the precinct or the courthouse’s holding facilities. The medicine would only first be available in the detention facilities after arraignment. When someone was withdrawing, I tried to get that person before the judge as quickly as possible.

As the session’s end neared, especially when it was a night session and the next arraignments would not be for another nine or ten hours, I would give priority to those who I expected would be released when arraigned. If someone was going to be held over to the next session, better it be someone who was likely to be detained than one who was going to be released. This prioritization was logical but presented a quandary. The cases where the arrested person was likely to be released were the easier ones to defend and giving priority to them meant I would be pushing the harder cases off to colleagues at the next session.

The depth of the quandary depended on the system of representation the Legal Aid Society was using. When I started, LAS employed “horizontal” representation. I would only represent someone at arraignment. On the adjourned date, another set of attorneys would be in the courtroom where the case had been sent, and they would represent the defendant. And so on. A different attorney would represent someone at each stage of the proceeding. If there was a logic in this, it was that the attorneys were experts in the stage of a case where they were working.

Soon, however, we shifted to “vertical” representation. That meant anyone I represented at arraignment I continued to represent at all stages of the proceeding until the case concluded. If I pushed a hard case off until the next arraignment session, I would have an easier caseload, but, of course, I was assuring someone else a harder caseload. Besides that moral quandary, while I thought most of my colleagues were good attorneys, I had my doubts about a few, and I was sometimes concerned about how well a defendant would be represented if he drew one of the weaker attorneys at the next session.

The differing pressures got resolved when I was assigned to be part of a team that handled “major offenses.” I was to represent those charged with most serious offenses, both at arraignments and then on.

 Two arraignment sessions a day were held, the first from nine in the morning until five in the afternoon. The evening session was scheduled from six until one the next morning. These evenings were often physically demanding. An attorney might have tried to take the day off before the evening session or take off the day after the evening session, but many times I started the day in the morning and did my regular work and then went on to night arraignments. I was young and dedicated but working a sixteen-hour day was still rough. I often found it even harder working the next day after night arraignments. Of course, there was not time for a regular night’s sleep, but to make it worse, I found that the grind of the night arraignments along with the emotions the work evoked often made it difficult to go home and fall asleep. This was intensified by the fact that while New York might be the city that never sleeps, it was always bleak around the courthouses at one in the morning with little signs of any normal life. It was often scary going home and I could feel as if I were trapped in a real-life film noir.

 The two arraignment sessions operated 365 days a year.  This, of course, meant Saturdays and Sundays, but also every holiday. We all had to take our share of this weekend and holiday work, and the attorneys would try to accommodate each other. The Jewish attorneys would work Christmas and Easter, while the non-Jewish attorneys would be scheduled for the Jewish holidays. (None of my colleagues then were Muslim or Hindu.) If I were scheduled for a Saturday or Sunday arraignment, but something came up that made that day difficult for me, I would ask around and almost always could find somebody who would swap days with me.

 Because often there was no choice, arraignments taught me that I could deliver bad news. Within twenty-four hours of the arrest, many defendants and family members were still living in a dream world. Many hoped or even expected that the defendant would be going home shortly and would never have to go to prison when I knew that was not going to happen. Perhaps I could have just have the court dash those initial expectations and let them fantasize up until the moment bail was set. I learned that was a mistake. I had to be honest with my client if I was going to have his respect and trust. Defendants usually took the bad news stoically. Perhaps that is because a lot of the conversation in the holding cells among the detainees was about what was going to happen to them, and most often what was said among them was realistic about future prospects.

Not always so with families, especially when the family had no experience in the criminal justice system. Giving them hard news was often emotionally draining. An example, even though something like this was repeated many times: The seventeen-year-old accused was charged with an armed robbery. A victim was shot. The accused was caught by patrolling police as he tried to escape. He still had the gun in his possession as well as a victim’s purse. The defendant had a few minor prior offenses. He had been released at arraignments each time and had not gone to jail for the offenses. I had already told the defendant that he was not going home that night and, frankly, that if I could work out a plea deal where he would go home fifteen years from now, it would be a great deal. (I admit that I might have overstated what I thought might be the ultimate outcome. I might have thought that fifteen was an unlikely worst-case scenario and the more likely outcome would be a five or seven years sentence, but I learned it was good early on to have the defendant thinking worst case so that if I obtained a good plea offer later, he would realize that he should take the deal.)

 I went out to talk to the family. Two people were there. His mother, who was surely not yet forty, and his girlfriend, who was fifteen and looked to be eight months pregnant. (I met many thirty-eight-year-old grandmothers in my work.) The girlfriend said again and again, “You gotta get my man out tonight!” The mother was quiet. I explained the charges and the evidence I had been told about. I told them that the maximum sentence was twenty-five years. The girlfriend almost yelled, “You gotta get my man out tonight!” I calmly said that with the nature of the charges and the judge who was sitting, he was not coming home tonight and probably not for maybe another fifteen years. Both mother and girlfriend became hysterical in the courthouse halls. Of course, there was nothing I could do to make it better.  Sometimes the job was very hard.

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Confessions of a Sometime Public Defender–Bail Edition (continued)

Although bail determines who is jailed and affects the outcomes of the cases, it is set by people without professional training in making such decisions. Judges go to law school, but a legal education does not teach how to set bail. A bail determination is not a consideration of precedents or an interpretation of statutes, but a prediction about human behavior that requires training in disciplines other than law.

On-the-job learning about how to set bail was also limited because judges could not systematically learn from their decisions. New York City judges were not regularly given information about the consequences of their determinations. They did not learn whether the person with a $1,000 bail was able to post it, and if so, whether that person came back to court at the scheduled times. There can’t be improvement without feedback, but such information was not distributed. Even if it had been, it would have been misleading. It would have only told the judge about one kind of error—the released defendant who did not come back. There was no way for the judge to get information about another error—the detained defendant who would have come back if he had been released.

Judges, however, did get feedback in one circumstance. The criminal court judges setting bail generally operated largely in anonymity, but they could expect to see their name in the tabloids if they had set a makeable bail on a defendant who then committed some heinous crime after release. No judge wanted that. Judges surely learned that to avoid public obloquy, it was better to set bail too high than too low.

While in some utopian world, justice is blind and neutral and that the forces of law operate so that individual judges do not matter, we all knew that was not true. The good attorney tried to learn about the bail-setting proclivities of the judge on the bench compared to those of the judge who was to follow in the next session. Stories circulated that Judge Jones, for example, had once had a car stolen and invariably set higher bail than other judges for a grand larceny auto. If he was sitting in the next session, the goal was to try to make sure that all car theft cases got arraigned before Jones took the bench. When Jones was sitting, the goal was to delay the arraignment in hopes it would go over to the next session with another judge.

Judges liked by the defense were not usually liked by the prosecution and vice versa although perhaps most were just viewed neutrally. Some were disliked by all for their personal temperaments—needlessly demeaning or sarcastic and often not bright. At least one judge, however, was despised by prosecutors and defense attorneys alike for both his temperament and for his judicial practices in setting bail.

I will call him Judge Harold. He had the reputation of being smarter than other judges. I don’t know if that was true, but while many judges were educated in local law schools, he was the graduate of the Ivy League. He never said that he was more intelligent than everyone else, but he tried hard to project that he was smarter than you.

He ran roughshod over defendants, prosecutors, and defense attorneys. Judges were evaluated by administrative personnel on how many cases they could dispose of, which meant either a dismissal or a guilty plea. When a defendant with little or no prior criminal record was being arraigned on an “ordinary” felony, Harold would browbeat the prosecutor. Only misdemeanor guilty pleas could be entered in criminal court where we were. The prosecutor’s consent was required to reduce a felony to a misdemeanor, but Harold told the prosecutor that the charges were going to be reduced. The prosecutor could protest, but Harold would say it again, and again. He implied that if the prosecutor did not do that, then Harold was going to be incredibly rough on that prosecutor for the rest of the session, and rough on him in the future, too. Almost always the prosecutor would reduce the charges if there was going to be a plea of guilty.

Harold would then tell the defendant that if he pleaded guilty, he would order a sentencing report and would follow the recommendations of that report. The defendant could get up to a year in jail, but he might get less or even a sentence of no jail time. If the defendant did plead guilty, Harold said, he would release the defendant without any bail. But if the defendant was released and did not return to court for sentencing, Harold continued, when the defendant was picked up by the authorities and brought back to court, he would appear before Judge Harold who definitely would give him the one-year sentence. If the defendant did not take the plea offer, then the judge would, he said, set significant bail so that it was unlikely the accused would be released. When protests were made that he was using bail to coerce pleas, he would reply that a released defendant had hanging over his head the automatic year of jail if he did not return. This incentive to return, Harold maintained, was comparable to the high money bail. It was all equal, he would say.

Most of these defendants jumped at the offer. Often this was their first time in jail, and the day spent there had terrified and exhausted them. Whether guilty or not, they just wanted to get out. Little I might say would register with them. All they heard was, “If I plead guilty, I will get out of jail now.” Few thought about the later possibility about being sentenced to a year.

As promised, Harold set high bail on those would did not take a plea, and they were locked up. The normal course in those days was that if a defendant was expected to be in custody, the case was adjourned for three business days when a preliminary hearing would be held. The formal purpose of that hearing was to take testimony to see if there was reasonable cause to believe that the accused had committed the crime. If that reasonable cause was found, the case went to the grand jury that had to act within thirty days. But the court appearance three days after the arraignment also brought the case before a judge other than Judge Harold. Many of them would conclude that Harold had set unnecessarily harsh bail, and they would lower it.

Knowing this, Harold did one other thing: If the defendant refused the plea, Harold would immediately hold a preliminary hearing. Generally, this was over the objection of both the prosecution and defense because neither had talked enough with witnesses to be prepared. Harold did not care, and then during the hearing he found ways to demean the attorneys. I don’t remember a hearing where he did not find the requisite reasonable cause. This meant that the defendant who had been arrested a day ago and had been told that he could go home if he would only say that he committed the crime was now going to jail for at least thirty days waiting for grand jury action.

It was all coercive. It was not the proper use of bail. The adversary system enshrined in the Constitution fell to the wayside as the judge controlled the outcomes. The United States Supreme Court had commanded that pleas of guilty had to be voluntary, but these guilty pleas were hardly that. The criminal justice system in Judge Harold’s hand seemed dirty and slimy.

There was little to nothing that a defense attorney could do to prevent most of this. I was glad when my position changed so that I did not have to appear in front of Judge Harold, but he kept popping up in my mind years later when he wrote some books about criminal justice that were talked about frequently in the right-wing media. I thought that the books were garbage. He related horror stories without any citations or references. I certainly doubted that he had firsthand knowledge of them. He might say that for some technical reason, a court determined that the Miranda decision had been violated and as a result some horrible criminal was now free on the streets, but surely that had never happened in his courtroom. We defense attorneys talked about this, and no one knew when he had ever found a Miranda violation or an illegal search.

Many years later, when I had been in academics for a long time, a publisher asked me if I would review a manuscript of Harold’s. I replied that I was hardly a neutral reviewer, that I had practiced in front of Judge Harold, and that I had thought that he was a despicable judge. Furthermore, I thought that his previous books had been tabloid trash. Go figure—I was still asked to review the manuscript. That manuscript was not published, and although I don’t remember for sure, I think that I was given $100 worth of the publisher’s books.

(concluded September 18)

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Confessions of a Sometime Public Defender–Bail Edition (continued)

The bail-setting decision is crucial to a defendant, of course, because it can determine whether a person will be held in jail or will go home until the case ends. More than that, bail affects the outcome of the case, especially for what are often considered “minor” cases.

For example, if a woman had been arrested for shoplifting but was released from jail on bail, she was unlikely to take a later plea offer that would send her to jail for sixty days. In the normal course of the court business, she would not come to trial for months and months. If she stayed out of trouble for that time, she would tend to look reformed, and almost always, she would be offered some sort of no-jail plea. Indeed, what would be the point to the expensive process of locking her up if she is already reformed?

If, however, that same person was not bailed out, after several weeks in jail, having come to grips with a jail life and knowing the important fact that her incarceration would end in the not-too-distant future she was likely to take a plea offer of sixty days. Similarly, the minor drug offender out of jail might enter a treatment program, and if he appeared to be succeeding in it, sending him back to jail was senseless. This opportunity, of course, would not be available for the defendant who did not make bail.

Serious charges are affected in other ways. It is easier for a defense attorney to prepare a case when the defendant is out of jail. The best person to find witnesses and get them to cooperate with a defense attorney is often the defendant himself. For example, when there was a barroom fight, if an investigator or I went to that bar, few, if any, would talk with us. If the investigator or I went with the defendant to the bar, the likelihood that someone would tell us about what happened would increase tremendously.

When the defendant is out of jail, communication between attorney and client is easier. There might be frequent discussions in my office when the accused was bailed, and an hour interview took an hour of my time. When the defendant was in jail, the situation was much more complicated. I would have to travel to the jail at a time when I was permitted to talk with someone held there, and often in New York the defendant was incarcerated an hour or more from my office. After getting there, it could take from fifteen minutes to an hour to have the defendant produced in an interview room, and after the discussion was over, there was travel time back to the office. An hour interview could easily take four hours, and that meant less communication between attorney and client.

In addition, most attorneys feel that a jailed defendant is less likely to succeed at trial than one at liberty. Jurors, consciously or unconsciously, will think that if a defendant is already in jail, there must be a reason, and he should stay there.

Many efforts were made to prevent jurors from learning that a defendant was being held in detention. The accused at trial does not have to wear prison garb, and he was always brought into the courtroom and handcuffs removed before the jury would be allowed into the room. Even so, most of us felt that either through slipups or because the demeanor in some ineffable way is different between a jailed and a released defendant, the jury would somehow learn or sense that a defendant was not at liberty. On the other hand, if a defendant was out on bail, I would try to have conversations outside the courtroom or outside the courthouse at times when jurors might see us to try to send the subliminal message that maybe this guy really wasn’t guilty, or why wouldn’t he be in jail now?

While the setting of bail was hugely important, it was usually initially a quick, slapdash affair. The prosecutor could suggest what it should be; the defense attorney had the same opportunity; and the judge would make a decision. Various pieces of information were considered in the bail setting. The seriousness of the charges weighed heavily. As a general proposition, the more serious the charges, the higher the bail. It was not unreasonable to assume that a person who might be sentenced to fifteen years in prison was more likely to flee than one facing only a year. Not surprisingly, most people charged with murder were not granted any kind of bail and instead were simply remanded to pretrial detention. But don’t assume the accused murderer who is granted bail and released will not come to the scheduled court appearances if they are granted bail and released. I represented a person who had twice been convicted of the same murder but both times the convictions were reversed for errors at the trial. He was released from detention while he waited for his next murder trial. He diligently appeared for each court appearance. And he was found not guilty at his final, error-free trial.

A defendant’s prior record was also considered in bail-setting. Among the court papers was a “rap sheet,” which in my early days was often called a “yellow sheet” because it was printed on yellow paper. This, in theory, contained the prior record, but it seldom did. Generally, only the arrest charges leveled by the police were listed without the result of the case. Those arrest charges often made that prior case seem much more serious than it was. For example, as in one of my cases, a person had been initially charged with robbery when he was really accused of pushing a clerk as he tried to leave a store without paying for a bag of Doritos. In court the case was not treated as a robbery, and he pleaded guilty to a minor misdemeanor. Since the disposition was not entered on to the rap sheet, the prior criminal record would contain a robbery offense when it was a low-level larceny. Because his prior record looked worse than it was, higher bail than necessary might be set. The Legal Aid Society fought for more accurate records, and rap sheets did improve over time, but incomplete information was still frequent. (My favorite listed disposition was on the rap sheet of the defendant from one of my first trials. The defendant was about sixty years old, and he had been arrested dozens of times around the country for minor offenses. About two decades before I met him, he had been arrested in Terre Haute, Indiana, for vagrancy, a charge that is unconstitutional today. This arrest did have the disposition: “Put on the bus to Chicago.”)

The prior record was considered important for bail for two reasons. The lengthier the record the more it could be concluded that the defendant had a disregard for the law. The higher the disregard for the law, the less likely it was that the person would follow the law and come back to court for scheduled appearances. In addition, a person who was a recidivist was more likely to get a longer sentence if convicted than one without a record, and, facing more jail time, he had a greater incentive to flee.

Ties to the community was the third consideration for bail. Someone who was firmly embedded in New York was considered a better bail risk than someone else. Possible factors here were the length of time living in the City and at a particular location; a job and its duration; family; and so on. The first source for this information was an interview conducted after the arrest and before the initial arraignment. The interviewer filled out a form, which became part of the court record. A defense attorney, however, could help in establishing ties to the community. The form indicated whether information, say, a job, had been corroborated. Often it was not confirmed because the interviewer could not reach the employer. The interviewer could only call and may have failed to reach the boss because of the hour when the call was made, which could have been after working hours. Since the arraignment might occur twelve hours after the ties-to-the-community interview and corroboration might then be available, I or an assistant might be able to corroborate information that had not been confirmed before. It could make a great deal of difference in the bail decision if I could tell the judge that I had talked to the defendant’s employer, and, yes, he did work there, and he would have a job if released. In this and other ways, a defense attorney could affect the bail-setting decision.

Financial resources also came into play in the bail setting. The theory has been that a loss of the posted amount would be such a blow that those posting it would make sure that the defendant would show up in court. The impact of the forfeiture of, say, $1,000, of course, varies. To the wealthy it may mean little, but it could mean the world to someone just above the poverty level. Logic, then, suggests that bail should be set higher on a well-to-do defendant than on the less affluent. But that conclusion, however, is often counterbalanced since defendants with money probably have a good job or a home with equity that they wish to keep—in other words, they often have solid ties to the community.

The possible future dangerousness of the defendant, while it was not supposed to matter, also affected the setting of bail. In some jurisdictions, including federal court, a defendant can be jailed in advance of trial based on a prediction that he will commit violent acts before the trial—what is called “preventive detention.” New York’s statutes, however, said the only consideration for bail was to assure the defendant’s presence in court. New York had no legal preventive detention. Even so, we knew the judge was going to set higher bail on someone who looked as if he might commit violent acts before trial than someone who did not seem as dangerous. This seemed at least in part a normal human impulse even though it was against the law.

          (continued September 16)

Posted on by rjonakait

Confessions of a Sometime Public Defender–Bail Edition

When he committed suicide, Jeffrey Epstein was being held in jail because he had been denied bail. Headlines have also recently proclaimed that R. Kelly was denied bail, as they did earlier for Paul Manafort. Bail decisions also often make it into at least the local news when a person out of jail on bail is arrested for a heinous crime. But bail has also become newsworthy because California, New Jersey, New York, and other states have reformed their bail laws, and “progressive” prosecuting attorneys have adopted policies of not asking for bail for those arrested for various minor crimes. Furthermore, activists decrying this country’s mass incarceration have turned a spotlight on this aspect of our criminal justice by emphasizing the high numbers of people in jail simply because they cannot post bail. No one has the precise number jailed for the lack of the needed money, but it may be as high 400,000—the equivalent of jailing eighty percent of Wyoming’s population.

So bail is in the news, but our bail system can be easily misunderstood. Part of the reason for that is that we do not have a single unified bail system. Instead, each state and the federal government has its own laws and methods for the setting of bail. The systems, however, have common characteristics.

At least legally, bail is not a punishment. It is set on someone who has been arrested and charged with a crime, not someone convicted of a crime. Only when someone is convicted can punishment follow.  Instead, the original purpose of bail was to guarantee that the accused would be amenable to court processes and make all required court appearances. Bail was to make sure that a person charged with a crime did not flee and appeared for trial.

The purposes of bail were expanded with the federal Bail Reform Act of 1984 which allowed the detention of arrestees because they are a danger to the community, so called preventive detention. However, this was a limited change; it only applied to federal courts, and state criminal cases dwarf the number in federal court. Moreover, most states have not adopted preventive detention. Bail is overwhelmingly set only to prevent the flight of arrestees.

We lack one bail system not only because each jurisdiction has its own bail laws, but also because even localities within a jurisdiction have different cultures for bail-setting. Thus, the amount of bail set and the overall rates of release on bail vary significantly from one city or county to others in the same state. And there is another factor that varies significantly around the country—the quality of the detention facility for those who can’t make bail, which, on the whole, runs the gamut from bad to abysmal.

I can’t, therefore, describe our country’s bail system. I can only give impressions of one system when I practiced law, New York City. That at least might yield a better general understanding of bail in “ordinary” criminal cases.

The sole purpose for bail in New York is to have arrestees show up for required court appearances. Frequently, the bail-setting judge concluded that an accused would return to court without any conditions imposed. In that case, the arrestee was just released, or as said in New York and many other places, “released on recognizance” or ROR. Other times, however, the court concluded that bail was needed.

The basic form of bail was a monetary requirement. Let’s say that a $1,000 bail was set. That meant that if $1,000 in cash was posted with the court, the defendant would be released from jail. The defendant would have the obligation to make all scheduled appearances. If the defendant made the required court dates, at the end of the case no matter what the result—acquittal, dismissal, conviction, prison or no prison—the defendant or whoever posted the money would get $1,000 back minus a service fee. If, however, the accused did not make the required appearances, the state would keep the $1,000, and the defendant would have committed the crime of bail jumping, which carried additional penalties in addition to those for the originally charged crime.

Although judges sometimes required that only cash could be posted, most often the monetary condition was “cash or bond.” In my example, that meant that $1,000 cash or a bond could be deposited with the court clerk.  Someone on behalf of the defendant would purchase a bond from a bail bondsman whose offices dotted the streets around the courts. The law regulated the premium the bondsman could charge, but the bondsmen could decide what collateral they would need to issue the bond. That might be anything of value—jewelry, car titles, bankbooks, property deeds. If the defendant made the court appearances, the collateral went back to whoever gave it to the bondsman, but the premium was an irrevocable fee that the bondsman kept for his service in writing the bond. If the defendant jumped bail, the bond company kept the collateral and the fee, but was supposed to pay the court $1,000. And the bond company had rights to bring the defendant back to court, and, thus, all those movies and TV shows about bounty hunters employed by the bond companies.

In New York, I saw few examples of bond companies bringing bail jumpers back to court. This would indicate that the companies lost money in these situations unless the collateral was worth more than the bond, but that is true only if the bond company paid the $1,000. I never saw a report on how often that happened. Often the companies would in effect plea bargain and get the $1,000 figure lowered. It saved the state the expense of litigating to collect the fee, but it also meant that the bond company was making money and doing little to insure a defendant’s presence in court.

Through history there have been many examples of corruption as a result of the bail bond business. Not much public attention has been paid to the collection of forfeited bonds. The bribery incentive to have state representatives accept less than the forfeited amount can become large.

The bond system also has another problem. It in effect outsources the decision as to who will be released to the bondsman. A person gets released if the bond company decides to write the bond, and that decision solely rests with the company. If the bondsman finds the collateral sufficient, the person gets released; otherwise not. In this way, it is really the bondsman who determines who gets out of detention, not the court. For these and other reasons, many states have outlawed the use of commercial bail bonds.

Whatever the bail system, the setting of bail is a crucial decision for a defendant.

(continued September 13)

Posted on by rjonakait

Snippets

My car was recently towed for being illegally parked. Of course, this was aggravating, but even more so because I had parked it in a place where I had legally parked for decades. Unbeknownst to me, a new sign had gone up making the spot a no parking zone. I went to retrieve my car from the forthrightly named Brooklyn Tow Pound. This being New York, I had to pay a lot of money to retrieve the vehicle, but I was surprised that in addition to the $185 “Total Tow Pound Fees,” which does not cover the parking ticket, I also had to pay a “Convenience Fee: Non Refundable” of $3.70. First, if any of the rest of the money I paid is refundable, please tell me how I claim it. Second, while the people at the pound were efficient and pleasant, how can anyone label a fee in retrieving a towed car a “convenience?”

The pro in a tennis clinic said that a point in doubles should last less than ten seconds. Manny, a co-participant in the clinic looked thoughtful and said, “That sounds like my early love life.”

As it looked as if Dorian would slam into Florida, a Miami official said during a TV interview that southern Florida had adopted new building codes since Hurricane Andrew went through in 1992 the, at least in this case, ironically named Sunshine State. New construction would now weather the rain and winds better than in the past. I thought, “Oh, building codes. Those are a set of regulations.” Then I thought, “Oh, regulations are effective in protecting property and people.” And then I thought, “Regulations are just another way of saying protections.”

Walking with Samuel Beckett one fine spring morning, a friend of his asked, “Doesn’t a day like this make you glad to be alive?” “I wouldn’t go as far as that,” Beckett replied. Sigrid Nunez, The Friend.

On the radio, I heard the prime minister of the United Kingdom described as “a racist, a homophobe, a misogynist, and a sexist.” Do these traits invariably come as a set? For example, are there racists who are also militant feminists?

I was ten and helping set up a meeting room in the church basement with two men parishioners. One asked me to get him an extension cord from a storage closet. When I brought it to him, he told me to hand him the female end of the cord. I was mystified and he said, “The part the prongs go into.” I asked, “Why is it called female?” He stopped and shot a nervous glance to the other man. He looked so uncomfortable that I thought that he was blushing. He mumbled something that was too soft for me to hear and quickly turned his back and started moving some tables. That was the end of the inquiry. I had to learn more about male and female plugs, as I did on related topics, from the streets and playgrounds.

I am Trump, Donald J.

I do not apologize.

I claim “fake news” and bray

Bigger self-serving lies.

“Without clear language, there is no standard of truth.” John LeCarré.

Posted on by rjonakait

Greenland . . . Our New Manifest Destiny (concluded)

One of those in the Trump-is-brilliant camp is Arkansas Senator Tom Cotton. He recently published an op-ed piece in the New York Times. (Why is that when conservatives want to be taken as deep thinkers they so often publish in the “failing” Times? Mitch McConnell also placed an op-ed article with the “enemy of the people” the previous week. His piece was one about the importance of filibusters for our constitutional government and glossed over how he had removed those all-important filibusters for Supreme Court nominees.) Cotton contended that the Greenlanders should welcome coming under American sovereignty. Denmark now subsidizes Greenland to the tune of at least $650 million dollars annually. America has more money than does the Danish government, so we can do even better for the Greenlanders, Cotton maintained. The Senator surprised me. He wants to commit to a new and expensive welfare program. He opposes entitlement programs for American citizens, but he wants to open up the floodgates for those who are now foreigners. Is this the new conservatism? What do Cotton and the others feel about increased federal support for Puerto Rico? Or have I underestimated Trump? Were his remarks merely an opening salvo, and his real goal is to swap Puerto Rico for Greenland? The Art of the Deal may be more subtle than I ever thought.

I wonder, if in stating that America can increase governmental moneys in Greenland, whether Cotton has examined where the Danish subsidies go. Health care in Greenland is paid for by the government, and Danish subsidies support that. Cotton, who adamantly opposes the Affordable Care Act, expects America to expand single-payer medical services in the new possession. And here I thought that Trump supporters believed in America first!

Does Cotton realize that part of the healthcare in Greenland is for abortion on demand. Greenland now has one of the highest abortion rates in the world. In fact, abortions have exceeded live births in recent years. (Remember those long nights.) He supports the laws that prevent the federal government from paying anything for abortions in the United States no matter how poor the woman or how the pregnancy—think rape and incest–occurred, but Cotton wants to increase funding for this medical procedure in Greenland. (I am told that when residents of Greenland’s capital Nuuk do want a baby, they say, “Let’s have a little Nuukie.”) And perhaps Cotton should also examine how education is funded in Greenland.

Cotton is a hardliner about our immigration system, concerned that Mexicans and Central Americans are lured here by all the goodies they can get out of our government. Shouldn’t he and other conservatives then be concerned that when we increase the freebies to Greenlanders, illegal immigration will uncontrollably increase there as refugees see Greenland as a new land of welfare opportunity? Perhaps Cotton, who supports Trump’s border wall, is already planning to build a wall around Greenland to stop the illegal immigration that he must think will inevitably occur. Perhaps Cotton ought to give at least an estimate as to how much federal money he thinks we will spend over there.

I also wonder if Cotton and the other Trump-is-marvelous crowd have thought about the status of those who would fall under American sovereignty. If we own Greenland, will we provide a path to American citizenship for those who live there, or will they automatically be citizens? Will they have an unfettered right to permanent residence in the United States? If so, how long does one have to be a Greenlander for that right? Puerto Ricans are American citizens and can come and go to the United States whenever they wish. Guam, which we own, is similar. Those born on Guam are American citizens who can move to the rest of America. (For reasons I don’t understand while Guamanians have birthright citizenship, those born in American Samoa do not.) If Greenland is to be treated like Guam, aren’t conservatives concerned that refugees will flock to Greenland and have ice-floe babies who will be American citizens who can freely emigrate to America? I am guessing that before conservatives will grapple with such questions, they will have to ascertain whether Greenlanders lean Democratic or Republican. And perhaps even more important: Will there be a path to statehood for Greenland? Just because they have fewer than 60,000 people doesn’t mean they shouldn’t have two Senators and three electoral votes, just as long as they vote Republican.

We have acquired much territory through purchase in our history. As far as I know, we never sought to find out whether the people who already lived on those lands desired a new sovereign. In essence, they were treated like Russian serfs. You buy the land, you buy the people on the land. Should we who proclaim democracy and government of “we the people” continue such a feudal practice? Will there be some sort of plebiscite; will the leaders of Greenland be consulted? (I have no idea who the chief griot of Greenland is, but I am confident neither does our president. However, there is a good chance that Melania knows that person well.)

The Fox News writer points out, however, that we have bought lands before—including the Louisiana purchase, the Gadsden Purchase, Florida, and Alaska, and he concludes that Trump could simply buy Greenland. Hold on–it has never been that simple. We do have a Constitution and the consent of Congress or the Senate has been necessary for those purchases. We may say that President Jefferson and Secretary of State Monroe made the Louisiana Purchase, but in fact Congress ratified and authorized the funds for it. The Gadsden Purchase and the acquisitions of Florida, Alaska, and other lands came via treaties together with the authorization of the funds from Congress. A treaty, of course, requires not just the consent of the Senate, but consent by a two-thirds majority of the Senate. Do you really think that is going to happen? Or does Trump have another trick up his sleeve that he will maintain justifying him in his mind to take unilateral action and do another end run around our Constitution—that document that conservatives proclaim to love so dearly?