Viktor is Still Waiting

Viktor, tall with sharp facial features, intentionally or not, often flattered me. In pre-Covid days, he was a server in DSK, a biergarten in my Brooklyn neighborhood that I frequented. I am sure that I stood out in this place for my wit, knowledge, good cheer, and distinguished looks, but probably more so because I was much older than any other semi-regular. Even so, Viktor, who was in his early twenties, would often sit next to me at the bar when his shift ended, and we talked. That pleased me. At some point he estimated my age as the same as his parents, and I laughed and told him I was then seventy-three. He did a double take and, after a pause, said that was how old his grandmother was. Viktor’s mother was forty-four and his father a year older. He told me that his mother had told him that he was a “mistake,” and so I was surprised to learn that he was an only child.

 Viktor was born in Ukraine where his parents live. Without bragging, he said that he was a smart kid who graduated from high school when he was sixteen and got a master’s in marketing by twenty-one. Then he came to the United States. Like many who staffed the establishment, he had other gigs. He was helping American friends to open a restaurant in the Queens part of New York City. He told me that he also did some video editing. That had started in Ukraine where he and a friend shot videos from a drone and posted them on YouTube. Viktor said that the videos were not particularly good, but back when they did it, few had seen videos from a drone’s perspective. He and his friend got a following.

We often talked about food. He told me that a recent addition to the bar’s menu was very good—a vegan sausage primarily made from beets. He insisted on getting one and splitting it with me. (I said that I’d pay, but he told me that he got free food when his shift was done.) It was not my favorite, but presumably healthier than the bratwurst I often got. In spite of this mediocre recommendation, I listened when he told me that he had a favorite Ukrainian restaurant. Manhattan’s lower east side was once chock-a-block with Ukrainians, and a Ukraine presence still lingers there in a few well-known restaurants. Viktor said that their food was not nearly as good as his favorite, which was in a different part of New York. He insisted that we go to lunch there, and we set a date. However, Covid intervened, and the favored restaurant closed during the pandemic.

I know little about Ukraine, and Viktor was eager to answer my questions, including about the comedian who became prime minister or president or whatever the title for their head of state. (Viktor was ambivalent about the guy.)

During one of our conversations, I jokingly asked Viktor what he was going to do when he got rich. He replied seriously that being wealthy was not his goal, but he did want to make enough money to be able to buy his parents a home in America. He said that when he first came to this country, his parents indicated no desire to move to the United States, but their feelings were changing. It sounded like he missed his mother and father tremendously. He told me that he talked to his mother daily via computer. I asked when he had last been home, and he said that he had not been back since he came to the United States, three years ago. He told me that while he was expecting to get one, he did not have a green card, and without one, he was not sure that he could reenter this country if he left.

During another conversation, however, Viktor indicated that his immigration status was a bit more complicated than just waiting for a green card. He came to the US on a tourist visa although I suspect that he entered planning to stay. He had an introduction to a friend of a friend of a friend in Baltimore. With this tenuous connection, he started living with a Russian couple and had some sort of job. For some reason, however, the man thought that Viktor was sleeping with his wife—“even though I am gay,” Viktor told me. The husband went to Viktor’s employer, said that it was illegal for Viktor to work, and threatened to report the business to the authorities. Viktor’s boss was apologetic but told Viktor that he had no choice but to fire him.

Unemployed and homeless, he begged a friend to allow him to stay with her. She said that she couldn’t take him in but knew a place where he could stay. Viktor: “He was a drug dealer, but he was nice.” I don’t know how long Viktor stayed there, but eventually the drug dealer said, “You need to start over. Here’s $50. Go to a new city and begin again. You can go wherever you want, but if I were you, I would go to New York.” Viktor came to New York.

Homeless again, he called LGBT groups for help, and he got the name and number of someone. Almost immediately, that man came to the phone booth Viktor was using and gave Viktor a subway card and directions to that man’s apartment. Viktor lived with that guy for months. Viktor, without using the man’s name, said that he was Black, about 45, worked in IT in the healthcare industry, and made a comfortable living. The man was gay, and Viktor thought sex was going to be involved, but the man never even hinted at that. Viktor proudly told me, “I have never had sex for material gain.”

(concluded November 10)

Beware of “Expert” Legal Commentary–A Lesson From the Chauvin Trial

          I watched little of the Derek Chauvin trial for murdering George Floyd, but I saw the verdict as it was announced and some of the subsequent commentary during the rest of the day. A great deal has been said about the trial, and I don’t mean to add to it here. Instead, I wish to comment on some of that commentary that followed the trial. Because I was a professor of criminal law, I had often been asked by reporters and producers for various news organizations to comment on criminal and jury trial matters, so I have opinions about how those commentaries should go.  

          An aside: I apparently did not attain lasting fame from my televised commentaries. This sad state of affairs was hammered home to me recently when a friend and I were having a beer at my local bar. It was the first time I had been back since the beginning of the Covid crisis. The owner came over to welcome me, and my friend Tony remarked on the establishment’s name. “DSK. Wasn’t that the French official who was charged with crimes?” “Yes,” I said, “I got a lot of calls from French media about that case.” Instead of being impressed with my fame or expertise, my friend said, “Why were they calling you?” In spite of this, our friendship endures. (I have written about some of my media experiences on this blog including Search Results for “”Meet the Press”” – AJ’s Dad (ajsdad.blog) and Search Results for “”Your Skin is Showing”” – AJ’s Dad (ajsdad.blog)

          In those past days, I had developed a few standards for my commentaries. The first was that I would not comment on the likely outcome of an ongoing trial or the correctness of a verdict unless I had watched all of the trial. From my own experience as a trial attorney, I knew that a jury would have been presented more evidence than a casual observer who had only seen or read excerpts of the trial.

          My other standard was that I would not comment about what I did not know. I knew New York criminal law and procedure. I knew the Supreme Court decisions that pertained to criminal law and procedure. I knew the practices in New York City courts. I knew the general history and practices of American jury trials, and if I could be helpful, I would tell a reporter about the things I knew. But I seldom knew in detail the law and practices of other states and localities, and I would not pretend that I did. If the news organizations wanted comments on Minnesota law or a particular Minnesota trial, I would tell them I was not their guy.

          In watching what were billed as expert legal commentators after the Chauvin verdict, I became aware how bad many of them are. I was especially concerned by those who appeared to have been regulars talking about the trial. I would have expected these attorneys to have boned up on the issues that were sure to arise. All too often, however, my expectations were disappointed, and uninformed statements were made. I could give a number of examples, but I will stick to one.

Not surprisingly, the legal “experts” were asked about sentencing. Many of the commentators pronounced that the maximum penalties for each of the three convicted crimes which were forty, twenty-five, and ten years’ imprisonment. This was informative. They had done this much homework. Many then suggested that Chauvin could be sentenced consecutively so that he actually faced seventy-five years. I wondered if that could be right. Such sentences seemed to me to violate the Constitution.

Without getting into the technicalities, the Supreme Court has concluded that the Double Jeopardy clause forbids consecutive sentences to the top count when the other charges are “lesser included offenses” to the most serious conviction. So, for example, let’s say that stealing $1000 or over is grand larceny and carries a penalty of ten years. Let’s also assume that stealing less than $1000 is petty larceny and carries a one-year penalty. However, if I steal $1000, I have committed not only grand larceny but have also committed a petty larceny. Could I be sentenced to one year for that offense and have it run consecutively to my ten-year grand larceny sentence, thus making me serve 11 years? Without going through all of the reasoning, the Supreme Court has said no, because the petty larceny is, in this scenario, a “lesser included offense.” That is basic law which anyone claiming to be an expert on criminal law should know. Many, probably most, jurisdictions avoid this issue by telling jurors to first consider the grand larceny charge and if they convict on that not to consider the petty larceny. In these states, I would only be convicted of grand larceny.

          Chauvin, however, was convicted on three charges. Not having followed the legal issues in the case, I did not know if two of the charges were lesser included crimes to the greater one. I expected, however, that a legal commentator going on the air after the verdict expecting to be asked about sentencing would have known whether the convictions were for greater and lesser offenses and told us that if so, there could not be consecutive sentences. None did that. At a minimum, I would have expected the legal commentators to explain the constitutional limitation on consecutive sentences. None that I saw did that. Instead, I got the impression that they did not know the relevant Supreme Court decisions.

          Also relevant is that fact that many jurisdictions have limitations on consecutive sentences. When I regularly practiced criminal law, New York had put a cap on how high the consecutive sentences could go. If a defendant was convicted of three separate charges each with a potential twenty-five-year sentence, consecutive sentences would not lead to a seventy-five year sentence but to whatever the cap number was. When the legal experts told me that Chauvin could get consecutive sentences, I wondered if they knew whether Minnesota had similar restrictions on consecutive sentences. None told me whether that were so. If they had known, I am sure they would have shown off their knowledge.

          However, knowledgeable Minnesota attorneys posted the relevant state statute on a discussion group for criminal law professors, even retired ones like me. Minnesota law, as it turns out, forbids consecutive sentences in Chauvin’s situation. These truly expert lawyers explained that Minnesota does not follow the usual practice and asks the jury to render a verdict on each charge even if they have convicted on the top charge and the other charges are lesser included offenses. I learned in a clear and concise manner the law on this issue relevant to Chauvin. I also learned, sadly, that not knowing the law does not prevent some TV “experts” from talking when they do not know what they are talking about.

          This is hardly the most important misinformation presented on cable networks. However people who heard he could get up to seventy-five years and are pleased with that possibility and do not learn that such a sentence is impossible, may feel that an injustice has been committed when Chauvin gets a much lesser sentence. For me when legal commentators make ignorant statements about the law, my respect for the legal profession takes a hit. My takeaway for you is that even when a supposed expert legal commentator says something, take what you hear with a grain of salt.

          And if you care, those knowledgeable Minnesota attorneys report that prisoners must serve two-thirds of their sentences in jail and then are usually released to supervised release for the rest of their sentence.

Bar None

          Every so often these days, I have a down feeling, as if I am under a black cloud. I call this mild Covid depression, a covpression. I fret about when the pandemic will end, but before that happy day I wonder whether I will be able to return to the life that I enjoyed. I expect that many of the joys of New York City will not immediately, if ever, return. So, for example, before Covid I had been going to the theater dozens of times a year. Broadway may come back, but I especially enjoyed small, often experimental, theater productions. I was amazed how many of the companies could exist, and I expect that at least some of them will have folded by the time vaccines and herd immunity will make it safe again to sit in a place with barely enough space for a hundred seats and a stage so small that the actors had to be careful not to bump into each other.

          I worry about more than the theater in a future New York. New York City may headquarter large corporations and have powerful investment and legal firms, but my New York is a city of small businesses. On my walks, I enjoy looking into the storefronts and browsing in the cramped stationery and book stores, popping into an ethnic or upscale food place, or having lunch in an establishment not much bigger than a living room. I value the convenience of getting screws at the local hardware store, milk at a corner grocery, and wine from an establishment all within a few blocks walk from home. But, I fear, that many of these small businesses will not have survived by the time I can stroll without a mask.

          I do know that the experience in my local bar will be different even if gets back into full operation. Before Covid, I went five or six times a month to a nearby biergarten. I didn’t go to drink much. Most times I would have one or two beers and never more than three. Instead, I went on the days when I had not done some other New York activity, for I believe that every day I should do something in the City. When I had not seen a movie or play or had lunch with friends or gone to a museum or the library, I would go to the bar. I always went with a book and was content to read, but I was always hoping that I would get into a conversation with someone I would not ordinarily talk with.

          I got to know some of the staff and had regular conversations with them, and although I have only seen one of them outside of the bar, I would label them friends. They, however, were laid off when the bar could only serve outdoors. They have had to find some other way to make an income, and it seems unlikely that they will return to bartending and serving at this establishment when, or if, it can fully reopen.

Some of the people who were at the bar frequently have become friends—the Buddhist chaplain raised in an army family from New Orleans; the mixed-race public defender raised by a white mother in Brooklyn who went to law school in Wisconsin—each with a cute kid. Will they be back, or will they have found some other way to spend that occasional hour or two?

These thoughts make me hesitant about returning to the bar. I know that these absences will make me sad and will perhaps bring back memories of the pandemic’s bad times that I will, no doubt, be wishing to keep at bay. If I’m going to feel down each time I enter, I may have to give up the biergarten.

          I may go back, however, if the place continues to attract people who interest me. It is not a singles bar. It is not in a business area of town bringing in people on the make as they pour out of office towers. Its communal tables encourage comradeship. Neighborhood families, especially with small children, come and feel comfortable. People going to one of the nearby arts institutions or the sports arena stop in before or after a performance or game. However it developed or for whatever reason, the place has attracted an eclectic group of Brooklynites, and Brooklyn has a wealth of interesting people.

          Although some of the people I have chatted with are of my generation—a couple from South Dakota; a fireman returning to New York City from his North Carolina retirement home; a father from Georgia waiting to meet his son living in Brooklyn—most I meet are much younger. They are at points in their lives that I have long passed, but the myriad possibilities and paths they present hold a fascination—a writer for CNBC; a commercial real estate leasing specialist; the man with the cover band and a standing gig at a tavern in Manhattan; the advertising guy; the vegan hairdresser; the woman who worked in ESPN films; the trivia-playing woman apparently jealous of me for talking to her pregnant wife. All have offered me glimpses into worlds different from my own.

          (And next time, on September 18, a few more examples.)