In the wake of yesterday's deadly vehicular attack in Manhattan, President Trump, Senators John McCain and Lindsey Graham and others have called for the accused attacker to be handed over to the military, for him to be sent to Guantanamo Bay and for his Miranda rights and other due process protections afforded to him under the Constitution to be disposed of.
This is not new, of course. Men in Trump's McCain's and Graham's position have long sought such Constitutional rollbacks for terrorist suspects of a certain kind (though, curiously, not for terrorist suspects of a different kind). They most famously obtained such things after 9/11, with the passage Patriot Act, the advent of black site torture and interrogation centers and the imprisonment of terrorist suspects and men designated "enemy combatants" at Guantanamo Bay, with its attendant permanent, trial-free detentions.
Not that those were their only efforts in this regard. In 2010 Senator McCain sponsored the "Enemy Belligerent Interrogation, Detention, and Prosecution Act," which called for placing terrorist suspects -- including those whose alleged criminal acts occurred on American soil -- in indefinite military custody for purposes of interrogation, during which time their Constitutional rights would be suspended. Calls for similar measures are often renewed following acts of terrorism.
The common thread: fear and distrust of the American criminal justice system. A belief that, somehow, our centuries-old institutions are unable to handle such cases. This is a baseless and pathetic claim. Our criminal justice system has repeatedly shown that it is capable of dealing with terrorism suspects. In contrast, our habit of throwing detainees into secret detention sites and dispensing with due process and the rule of law has been a miserable failure.
Federal civilian criminal courts have convicted hundreds of individuals on terrorism-related charges since 9/11. These convictions include those resulting from investigations of terrorist and criminal acts by those with identified links to international terrorism and include several high-profile terrorists such as the “Shoe Bomber” Richard Reid, the 1993 World Trade Center bomber Ramzi Yousef, the "Times Square Bomber" Faisal Shahzad and Osama bin Laden's son-in-law, Sulaiman Abu Ghaith. In contrast, military commissions have convicted only eight. All of those prosecutions took years and cost millions. In the end, three of those convictions were overturned completely and one overturned partially.
Some who advocate for military tribunals doubt the security of a U.S. courtroom and stoke fears about the safety of the populace near where suspects are held, but such claims are baseless. Federal prisons hold hundreds of individuals convicted of terrorism-related offenses and none have ever escaped. None of the federal districts which have held or tried terrorism suspects have been attacked in retaliation.
Others say that the seriousness and high-profile nature of the crimes demand a different sort of justice system. This, however, is exactly what terror suspects want. They want to be martyrs, figuratively if not literally, and want to appear as though they have gained the special attention of our highest elected officials. When they get it -- when we publicly freak out like Trump, McCain and Graham are and put them before army officers in a special proceeding -- their supporters can cast them as warriors, taking on the United States government and the United States Army. When you put them in a courtroom in a federal courthouse, they're just criminals. Their crimes cast as simple murder, not an act of war.
There is a greater flaw with the calls for military tribunals and the denial of suspects' rights than their lack of efficacy, however: denying due process rights to our enemies defies the very values we are fighting to protect.
The Constitution is not optional. Indefinite detention, suspension of basic rights and the deprivation of Due Process flies in the face of American values and violates this country’s commitment to the rule of law. Sacrificing our principles in the vain hope that doing so will make us safe has only made us weak. Weak because it sends the message to our enemies that our most sacred ideals are not strong enough to withstand external threats. Weak because it sends the message to our would-be allies that we do not stand for that which we claim to stand and that our words and promises carry no weight.
A man attacked innocent people in New York yesterday, and he should be held responsible for his crimes. Attacking our Constitution, our federal courts, the rule of law and the bedrock values upon which our country was built is no way to do that. Indeed, doing so more effectively wages war on America and its institutions than anything a criminal terrorist suspect can ever hope to accomplish.
The mass shooting in Las Vegas that left 59 people dead on Sunday night is, on one level, shocking and on another unsurprising.
It's shocking in its violence, its cold-blooded calculation and its scale. Shocking in a way that something so awful must always be shocking to anyone who values and cherishes human life. Shocking to all of us who have not become numb to gun violence. To those of us who cannot and will not allow ourselves to become numb to it, because to allow this increasingly common and increasingly deadly sort of tragedy to become just another news story which holds our attention for a few days before being forgotten is to abandon our very humanity.
This is all unsurprising, however, because our laws and, increasingly, our very values, practically ensure that events like those that unfolded in Las Vegas will occur again and again. I'll get to the laws shortly, but it's worth talking about the culture of guns in America for a moment.
There is, obviously, a long and rich history of gun ownership in America. We are a nation born of the fighting of armed civilians marshaled into a revolutionary army. We are a nation whose land was explored by hunters and frontiersman. We are a nation populated by farmers and sportsmen and the children and grandchildren of farmers and sportsmen, the vast majority of whom were and are responsible and law-abiding members of our community. Our history -- and the largely rural character of America for most of that history -- forged a culture in which owning firearms, while never a requirement of responsible citizenship, was most certainly compatible with it. Where I grew up, in Michigan and West Virginia, there was hardly a household that didn't have at least one hunting rifle in it. I'm sure a lot of you grew up in similar circumstances.
Recently, however -- very recently -- there has been a marked shift in what it means to be a gun owner in America and who it is that owns most of our guns. Some have referred to this as "extreme gun ownership," in which people own a dozen, two dozen or perhaps scores of guns, including quasi-military weapons and hundreds upon hundreds of rounds of ammunition. This dynamic, which has resulted in a full 50% of all guns in our country being owned by 3% of the population, is perfectly legal, of course.
But however legal it is for a person to stockpile weapons like this, it's worth scrutinizing why they do so. Yes, a small portion of these people are genuine collectors. I suspect a much larger proportion of these people, however, own numerous weapons for what amount to philosophical reasons. Many of these people -- and I know a good number of them personally and professionally -- are afraid of something, be it rational or irrational. A fear egged on by the gun lobby and a conservative media that has convinced a wide swath of Americans that there are enemies hiding around every corner and that our government is their greatest enemy of all. I further suspect that we will find out that the Las Vegas shooter, Stephen Paddock -- who likely owned all of his guns legally -- harbored fears like these. Fears which, even if they did not lead him to commit mass murder, inspired him to compile a private arsenal, which in turn allowed him to carry his rampage out far more readily.
We can legislate until our pens run dry, but we will not stop the next Stephen Paddock unless we truly understand how a person can come to live in a state of such suspicion and fear that they feel it necessary to stockpile private arsenals that have only one deadly purpose. Until we understand how a country that was once comprised of households with some hunting rifles became one in which owning a dozen or more military-inspired guns became a lifestyle choice. We must, as a nation, come to understand how something that was, until very recently, thought of as a tool, became a symbol of so many people's personal politics and identity.
Achieving such an understanding may not be a simple matter, but it may not be as tough as passing new gun laws, which are obviously not easy to implement or change.
Part of this is by design. While, as a lawyer, I disagree with the legal notion that the Second Amendment confers an absolutist, unquestionable and un-regulatable individual right rather than a collective right of action (the words "a well-regulated militia" seem to be the only words in the Constitution conservative judges seem to think mean nothing) the fact of the matter is that any broad-based effort to ban certain types of firearms or to broadly restrict gun ownership in this day and age would be met with intense political opposition and legal challenge. Likely successful legal challenge, mind you, thanks to the current makeup of the federal judiciary, its view of the Second Amendment and the deep pockets of the National Rifle Association which has the entire Republican Party under its control and much of the Democratic Party living in fear.
The fact, however, that wide-ranging gun regulations seem legally and/or politically impractical in the current environment does not mean that there is nothing that can and should be done. Indeed, there are a host of common-sense regulations that we can and should pursue that do not violate the Second Amendment as currently interpreted but which would go a long way toward reining in the scourge of gun violence plaguing our country.
One of these is obvious, if only in hindsight of the tragedy in Las Vegas: outlawing devices that allow semi-automatic guns, which are legal, to be transformed into automatic weapons, which have been illegal to manufacture for civilian use for over 30 years. This relates specifically to “bump stocks,” which are attachments that enable semiautomatic rifles to fire faster, mimicking the action of automatic weapons. Under no set of circumstances should a person be allowed to legally acquire devices which convert a legal weapon into one that is essentially identical to those which are illegal. Thankfully, there appears to be some movement this week on that very issue.
Beyond the currently newsworthy topic of bump stocks, we should work to pass laws or regulations, on the state or federal level, as appropriate, that fall, generally, into three categories:
None of these sorts of regulations would take guns away from law abiding citizens or infringe on the their rights under the Second Amendment. All of them would work to keep guns from falling into the hands of violent criminals and discourage those who would seek to inflict mass casualties.
Ultimately, though, there are many complex, historical and cultural factors which have led us to this regrettably violent place in our nation's history. As such, there is no one thing that can be done to drastically reduce gun violence in this country, let alone eliminate the threat of a mass shooting. Anyone who promises that they can put an end to such things is not being honest with you.
We can, however, do many things, each of them modest in and of themselves, that work to add a much-needed dose of common sense and responsibility to an issue which has, increasingly, led itself to intense, emotion-based polarization and special interest group-fed partisan rancor. We should start to do so, immediately.
This afternoon Angela Ahrendts, Senior Vice President of Retail at Apple Inc., said of Apple stores, “we don’t call them stores anymore, we call then town squares, because they’re gathering places.”
Ahrendts' comment could simply be written off as hubristic marketing-speak, but to me it's an unwittingly sad comment about how, in the current age, a luxury goods story can and does serve as a rough proxy for a public square and how, concurrently, civic society continues to be degraded.
While a small number of very rich people have always been able to keep themselves separate and apart from the masses, a larger and larger number of people are using money, technology and education to insulate themselves from the sort of everyday life all citizens once lived. Elite status, VIP sections, priority lines, “Cadillac” healthcare plans, private schools and all manner of other luxuries available to the professional and technological classes create a situation in which a larger swath of the well-educated and at least moderately well-to-do have created what amounts to a separate class apart from the rest of the country. A class that carries with it insidious assumptions, conscious or otherwise, that the affluent and educated are demographically superior to the poor. Or, perhaps, that the affluent and educated are the only people who even exist.
While, admittedly, there has always been some semblance of a class system in this country, the instances in which people come together in commons spaces -- in train stations, post offices, hospitals, libraries, public schools, museums and retail spaces -- has decreased dramatically. What's more, there was once a time in this country where the class divisions we had were at denied and diminished out of either shame or idealism born of the notion that the United States is not a class-based society. Today that conceit has been disposed of almost entirely, with “success” being increasingly equated with one's ability to buy one’s way out of the public sphere altogether.
We live in isolated and increasingly homogenous and cloistered communities. We have made it so that those with access to the gifts of the technological age can do their shopping, their banking and their interaction with the government via electronic means without ever having to encounter the general public or, at the very least, the part of the general public unlike themselves. The increasing power of a small handful of technology companies is exacerbating this trend, turning even basic acts of life, such as buying groceries, into a class-based pursuit.
As a result of all of this, the public sphere of life has broken down in many important ways. We do not come together as a society across economic classes in anything approaching the way we did even as recently as the early 1980s, let alone the way we did in previous decades. This is bad for democracy and social health because, when we do not interact with the whole of society in meaningful ways, we are no longer truly stakeholders in the whole of society. We are, at best, voyeurs, intellectually lamenting that which has befallen our fellow man, yet not really being invested in it in any real sense. When you encounter those in different circumstances than yourself only virtually, you can simply click away. Or you can just choose not to click in the first place.
Which brings me back to Apple. The nearest Apple store to me is in a place called Easton Town Center. It's a mall, but one of those outdoor malls that apes a cityscape, built on what used to be farmland out by the freeway outerbelt. There are storefronts and parking meters and sidewalks and all of that, but it's all private property. While it's a fake city, it holds the sorts of community events -- Christmas caroling, arts fairs, outdoor performances and the like -- that once took place in my town's real public spaces. Except it's not truly a community event given that no one has much business being there unless one is shopping or dining out at one of the luxury goods stores on its premises, and that's obviously not for everyone. And, of course, since it's private property, they can kick out anyone they want to for basically any reason or for no reason whatsoever.
Which certainly puts Apple's claim that its stores, a great number of which are located in places like Easton, are "town squares" in a different light. A light that is sadly telling of what our society has come to in this day and age.
President Trump pardoned Joe Arpaio because he likes the cut of Arpaio's jib.
He pardoned him because he knows it'll play great with his base. He pardoned him because Arpaio was an early political supporter and because Trump rewards loyalty. He pardoned him because Arpaio provided Trump with a rough blueprint for demonizing Obama, immigrants and minorities as a means of achieving electoral victory. He pardoned him because he shares Arpaio's contempt for laws, courts and political and legal authority that belongs to anyone but himself.
Like anything else Trump does, it was done based on a gut feeling and a selfish desire. If there is any doubt about that, one need only look at the way Trump bypassed the customary pardon process which involves review by the Department of Justice. There was not a ton of thought and analysis put into this. It was a purely personal, purely political act.
In light of that, anyone trudging into the weeds to frame this as some complicated interplay between the branches of government, the nuances inherit in the separation of powers or any of that stuff is selling you a bill of goods. They're doing this either because they support Trump or because, even if they do not, they support people who would have to do something about Trump if the pardon comes to be seen broadly as the disgraceful act that it truly is. When you're a Republican -- even a #NeverTrump Republican -- the last thing you want is for the people you do support to have to spend any time or political capital opposing Trump, because that takes valuable time away from cutting taxes for the wealthy and hamstringing the government's ability to, you know, govern. It also makes them worry that they're committing religious heresy.
But really, it's a simple case. Arpaio and Trump share supporters and share enemies and at a time when Trump feels that he's under attack, he's going to do whatever he can to show strength, to prove he has allies and to rally whatever support he feels he can rally. And make no mistake, he'll rally a lot of people to his side with this pardon because he and his supporters will couch it in terms of "law and order" -- Arpaio was a sheriff after all! -- and people eat up appeals to law and order.
Unfortunately, the growing public conception of law and order is twisted and corrupt. Indeed, "Law and order" has quickly become synonymous with "police," and any effort to oversee and check the power of police is seen as hostile to "law and order." This includes civilian political authority and the courts, which politicians and, increasingly, the public, have chosen to portray as an impediment to law and order as opposed to a necessary component of it.
In this, such vocal support of "law and order" is in direct opposition to the rule of law, which requires checks on the power bestowed upon men, particularly the coercive power of government as manifested in armed police forces. It's a craving for the "order" without the "law." People want cops to "get the bad guys" but increasingly have no respect for the process by which "bad guys" are identified and handled and refuse to accept that the police themselves can ever be "bad guys." Such a view is anathema to a functioning civilian-led democracy. Indeed, it the very definition of authoritarianism.
Which brings us back to Donald Trump and Joe Arpaio. To the extent you approve of this pardon, you approve of a leader using his extraordinary power to vindicate his personal obsessions and to reward his allies. To the extent you believe Arpaio was deserving of this pardon, you do so because you believe that the power of police should be absolute and that the power of the courts to rein in that power is illegitimate. You, quite simply, approve of an authoritarian government.
As everyone knows by now, a man was dragged off of a United Airlines flight by police yesterday and was injured in the process. The reason: United wanted to place a couple of its employees on the flight and kick off paying passengers to do it. I wasn't aware that a private business had the right to manhandle you when they messed up, but here we are.
While the condemnation of United over this event has been considerable, today the media has decided that the victim of this act of excessive force is the one owed scrutiny.
From the Louisville Courier-Journal:
From a news anchor at WJLA TV in Washington D.C.:
From the gossip site TMZ
Some of this might've been relevant if anything Dr. Dao did contributed to yesterday's incident. If he had been an unruly passenger or if he had assaulted someone or if he had broken some law. Looking at the past of someone who commits a transgression is often instructive and illuminating. It makes sense to do that sometimes.
But, of course, Dao committed no transgression here. He was roughed up in the name of bad corporate policy made worse by it being carried out incompetently. His past is of no consequence or relevance to what happened yesterday. So why is the media digging into it so eagerly?
Part of it is mere sensationalism. The United story has captured the attention of the nation and anything that can keep it going is in the best interests of certain segments of the media. If it bleeds, it leads, and Dao bled. If there's sex or drugs or a crime involved, all the better. One may have to dig years into Dao's past to find that, and it may not have anything to do with the news story itself, but beggars can't be choosers as they chase ratings and page views, so whatever dirt anyone can find on the guy is, apparently, fair game. This sort of muckraking is a story as old as newspapers themselves.
There's a deeper motivation at work here, however. It may be an unconscious motive on the part of any one member of the media pushing this kind of smear job, but it's a motive aimed at giving us something we, as a society, crave in these sorts of situations. The need to believe that a person who had something bad happen to him had it coming to him. And that, in turn, nothing bad like this could ever happen to us.
In the past 24 hours I've seen countless people -- otherwise disinterested individuals, -- rush to United's defense to talk about the fine print on tickets or the need to overbook flights or how, in general, people forfeit their rights once they get on a plane. People coming, almost reflexively, to the defense of authority, lest anyone suggest that authority was abused. If you're the sort of person who doesn't feel comfortable challenging the status quo and take much greater comfort in defending it, this line of reasoning is tailor made for you.
Not everyone is like that, of course. Some people are super upset with what United did regardless of the underlying policy but are desperate to minimize the ugliness of the incident because confronting ugliness is not a pleasant thing for many. To that end we see the media dig into Dao's past which will, almost certainly, result in Dao being considered "controversial" or worse by the public, causing them to see his ejection from the United plane in a more ambiguous, less ugly light. "Sure, he was roughed up," they'll say, "but he's no angel."
It's all about people wanting to feel better about the incident. To make them believe that it was not as arbitrary as it seemed. To make them think this was a special case, in which the victim was partially to blame. To make them less likely to question how and why it happened. To make them less likely to ask themselves whether they have ever done something, actively or passively, to enable this particular sort of horror. If a truly innocent man has something terrible happen to him, it shakes our faith in the system. If a sketchy individual with a sordid past does, well, everything is just fine. And maybe he even had it coming.
We all sleep better if we think the world is just. The world is more just if the people who do bad things have bad things happen to them and the people who have bad things happen to them turn out to be bad. We all want to sleep better, so sometimes we'll work extra hard to make sure that state of affairs exists.
Even if we have to delude ourselves into believing it does. Even if we have to smear a victim to make it so.
I just watched the latest Trump press conference. As usual, it was a disaster. Not for him so much, as he's apparently bulletproof and/or oblivious, but for things like rationality, democracy and civil society. It served as just the latest in a never ending series of reminders that we have given a dangerously arrogant, deluded and incompetent man the nuclear codes.
It also reminded us that the press has no idea how to ask Trump a question.
I understand why they are having so much trouble. While presidents have used press conferences as a means of propaganda and reality denial for as long as presidents have given press conferences, at least a small amount of actual information has been disseminated at the things over the years. Presidents -- even Nixon -- have always possessed at least a scintilla of shame which regulated just how big their lies could be and which, in turn, reined in their most nonsensical tactics of distraction. As such, a reporter's lazy, open-ended or compound question has never been that harmful. Presidents have become experts at ducking them and steering them to other, more comfortable topics, but they have always at least pretended to be acquainted with reality and have always communicated some rudimentary information as they sparred with the Fourth Estate.
Not Trump. He hits the lectern at Mach 2 with his hair on fire spewing a brand of nonsensical drivel that would make Tristian Tzara chuck it all, go back to school and become an actuary. He is so utterly shameless that, were he not so mendacious, dangerous and corrupt, it'd almost be perversely admirable. He has blown past Orwellian archetypes so quickly that he is not even bothering to answer the question "what is two plus two" with "five." He's gone straight on to "potato."
As such, the presidential press conference has shed the last vestiges of an exchange of information and has, necessarily, become a truly adversarial affair. The guy being questioned has already, in explicit terms, declared war on the press. The investigative journalists and columnists have grokked this and are firing their big guns at Trump on the daily. It's time for the members of the White House Press Corps -- the ones who actually get to ask Trump questions -- to quit pretending they're sparring and join the goddamn fight.
While I am a member of the media, I'm not really a reporter. I never went to J-school and I don't interview people very often. I don't have a fedora with a card that says "press" in the band. I don't even own one of those cool little digital tape recorders. As an interviewer of willing, sensible and amiable subjects, I'm fairly mediocre. I get the basic information fairly well, but I'm not fantastic at digging too deeply below the surface. I just don't have the reps yet.
But as a lawyer who did cross-examinations and depositions and who conducted internal investigations for 11 years, I do have a lot of experience asking questions of people who don't want to answer them. Or who have something to hide. Like any trial lawyer, I've sat across a table or stood across a room from people who I knew to be lying to me and I got them to either admit it or to look so bad in denying it that they may as well have.
I was not successful at it because I am uniquely talented. Indeed, compared to my colleagues, I suspect I was pretty average when it came to legal talent and instincts. I was successful at it because I followed some basic rules that I and every other trial lawyer is taught. They are rules that, in this mad age, when the President of the United States of America is trying to get one over on us like some employee embezzling from the payroll of my clients tried to get over on me, would serve the White House Press Corps well.
The big ones:
Litigation, war and conducting presidential press conferences are, obviously, very different things. But they do have a few things in common. In all three you have a mission. Thanks to the approach the Trump Administration has taken, in all three you, unfortunately, have an adversary. Above all else in all three you have to have a plan and it has to be a plan that you can carry out without your adversary controlling the terms of engagement. By following the rules of litigation and, in some cases the rules of war, you're way more likely to be successful than whatever the hell it is you're doing now.
While I’m a sportswriter now, I am a lawyer who spent ten years in private practice and one year working for the Ohio Attorney General’s office. In that time, a chunk of my practice was devoted to defending allegedly crooked politicians before the Ohio Ethics Commission, the Ohio Elections Commission and the Joint Legislative Ethics Commission. When I was with the state I represented the Ohio General Assembly, providing it with advice with respect to the legality of its actions.
It’s been a few years since I’ve done that and I was never a particularly important member of the Ohio ethics bar, but I had my moments, some of them ridiculous, and learned some things about that weird world. Among the biggest takeaways: the procedure of an ethics investigation is of the utmost importance. Indeed, it is often more important to the outcome of an ethics investigation than are the actual facts of the underlying ethical allegations.
It’s easy for me to say this now because my preferred candidate just lost in the Electoral College despite winning the popular vote. I thus appreciate that it looks self-serving for me to say this.
I have, however, been opposed to the Electoral College since I first studied it in depth 25 years ago and would be no less opposed to it if the situation were reversed. You can choose to believe that or not. If you don’t, you won’t care about anything else I write here and will assume I am viewing this through a partisan lens. If that’s the case you may as well move along and save yourself some time.
It is, however, a fact that I would be against the Electoral College even if it had elected Clinton despite Trump winning the popular vote. I’m against it even when it does not work such anomalous results. As I said the other day, Donald Trump is the fairly-elected President of the United States. I do not claim that he was illegitimately elected. This is the system we have and both he and Clinton knew it going in. The results will stand. And they should.
But the system should not stand.
I just read a fascinating story by Sarah Ellison in Vanity Fair about the downfall of Fox News head Roger Ailes. The backstory is well known by now, of course: Ailes sexually harassed women he employed for decades and got away with it for almost as long. His downfall came when former Fox News anchor Gretchen Carlson sued him for it in July, leading to his disgrace and departure.
The Vanity Fair article is not interesting for the facts regarding Ailes’ conduct, however. For a much better treatment of that go with Gabriel Sherman’s detailed and at times sickening account of it all in his early September story at New York Magazine. No, it’s fascinating because it’s an account of the legal process which actually effected Ailes’ termination. Specifically, the Fox-led internal investigation of Ailes launched by James and Lachlan Murdoch, sons of News Corp head Rupert Murdoch, and Gerson Zweifach, the general counsel of 21st Century Fox once Carlson filed her lawsuit.
Someone snagged some alcohol and took it, quite illegally, to where it shouldn’t have been taken. It wasn’t an impulsive crime of opportunity, however. It wasn’t someone knocking over the corner liquor store. This was planned. Planned by professionals who knew exactly what they were taking and exactly who would be drinking the illegally-obtained booze. And the people who would be drinking it would be paying top dollar for the privilege. Far more than the retail price.
Why? Because the alcohol in question was scarce. Not the sort of thing you could find just anywhere. Its scarcity is what made it valuable. Its scarcity likely even made it taste better to the folks who would eventually drink it. Better to them than it would taste to someone who drank from the same bottles obtained through legal means. Better than stuff that, objectively speaking, was not much different and may have in fact tasted better than the illegal stuff before its qualities were enhanced by the air of danger and intrigue which infused it with … greater complexities.
The booze in question: Coors beer. Obtained illegally by Burt Reynolds and Jerry Reed in the 1977 film “Smokey and the Bandit.” It was illegal to ship Coors east of Texas in 1977 and that illegality made it a highly sought-after commodity to Big Enos and Little Enos Burdette, who bankrolled the racket in order to get the stuff to serve, quite appropriately, at a banquet in honor of the winner of the Southern Classic truck rodeo in Georgia.
It seems preposterous now that the plot to the second highest-grossing movie of 1977 was set in motion by someone coveting Coors beer. Because, with all apologies to the good folks at the MillerCoors Brewing Company, Coors is kind of crappy. A mass-produced light lager that your dad probably drank because that’s about as good as he could do for the price and which you probably drank when you were in college because, Jesus, you didn’t know any better.
But drive the plot it did. Its believability as a McGuffin supported by its scarcity east of Texas. Its value supported by a small handful of wealthy men who used its scarcity and their ability to overcome it as a means of showing off to their friends. When the Bandit and the Snowman smashed their way through that last police blockade with that truck full of Coors and handed their haul over to Big and Little Enos, the retail price of their load didn’t matter a bit.
The same goes for another bunch of booze illegally swiped: 200 bottles of Pappy Van Winkle bourbon, stolen from the Buffalo Trace Distillery in Frankfort, Kentucky back in October 2013. Those bottles go for anywhere between $40 and $250 at retail but, because of their scarcity, can fetch over $1,000 in private sales. Some sales have netted as high as $5,000. And those are just the sales between friends and acquaintances on the so-called “gray market.” There’s no telling what they’d go for on the truly black market.
It’s not that Pappy is so much better than any other bourbon. Oh, it’s good. Thanks to a good friend with family near Lexington I was lucky enough to have some back before the bourbon bubble truly inflated. I enjoyed it a great deal. But it’s not hundreds of times better than the next best thing. It really can’t be.
All bourbon, in order to be bourbon, has to have a mash bill (i.e. the proportion of grains used in the fermentation process) of 51% corn. Up to that point, the stuff is all identical. It’s what makes up the other 49% that gives different bourbons their different tastes.
But here’s bourbon’s little secret: there are generally only three different taste profiles once you get past the corn:
Pappy Van Winkle is a wheated bourbon. It’s a good one, usually aged longer – 10, 15 or 23 years compared to the 3-7 years of most bourbons – but it’s still a wheated bourbon. Unless you’re in the bourbon industry and have tasted multiple different bourbons hundreds of different times as a point of professional purpose, you’re not going to be able to identify a great many bourbons by taste alone. it’s safe to say that the occasional bourbon drinker couldn’t tell the difference between Pappy and, say, Willett Pot Still Reserve, W.L. Weller or a Maker’s 46. After they’ve already had a couple, a novice bourbon drinker could probably be fooled with a bit of Old Fitz. Maybe even some of those occasional drinkers.
Yet there Old Pappy sits at the top of the bourbon pyramid, coveted, sought after and, yes, even stolen. Not because it’s so great but because the folks at Buffalo Trace produce only 1% of the amount of it as the folks at Jim Beam 70 miles to the southwest make of their white label bourbon each year. Because celebrity chefs like David Chang, Sean Brock, and Anthony Bourdain have conspicuously endorsed it. Because its annual release has been well-marketed as “Pappy-Day,” creating a land rush effect.
Of course, Pappy Van Winkle Bourbon is not unique in this respect. Simple economics suggest that the low supply of any product combined with its high demand will beget a higher price. But there’s something else going on with Pappy Van Winkle. There the low supply and great demand is baked into the price. It comes before the price is set. But then an after-effect of exclusivity washes over it where either the price or the overall scarcity of the product works to make people think it actually tastes better than it really does. Ask anyone who has been fortunate enough to drink some Pappy recently. They’ll tell you it’s the best they’ve ever had. Mostly because they’ve been fortunate enough to have it.
It’s not simple snobbery at work here, however.
Back in 2008 some Caltech economics professors conducted a study which found that changes in the stated price of a given wine influenced how good volunteers thought it tasted. But it wasn’t just an instance in which vanity and exclusivity entered into things. The lead researcher, Antonio Rangel, concluded that "prices, by themselves, affect activity in an area of the brain that is thought to encode the experienced pleasantness of an experience.” Put differently: the price tag on the wine bottle literally made the person drinking it think it tasted better.
Another product which, I suspect anyway, affects brain chemistry is In-N-Out Burger. Here it’s not about price. In-N-Out Burger’s menu prices are pretty low, actually. It’s really about exclusivity. As a result of the company’s obsession with quality control and its refusal to franchise, In-N-Out’s reach has been limited to five states: California, Nevada, Arizona, Utah and Texas.
My brother worked at an In-N-Out burger in San Diego for several years. He can vouch for the quality of their food. But the taste? It’s good. Quite good! But are the burgers better than Shake Shack? Five Guys? Any number of other burger joints across the country which use fresh, high-quality ingredients? Maybe a bit. Maybe a good bit if your palette is simply more amenable to the extra Thousand Island spread, mustard grilled patties, and extra pickles of an animal style burger. But it’s not so much better than the next chain down to justify the frenzy and the hype, is it? My brother grew positively sick of the stuff after six months and started taking his lunch breaks at the Del Taco across the street.
I’m a baseball writer, and an annual tradition among baseball writers is for the ones sent to Arizona for spring training to gloat about the availability of In-N-Out Burger to the sad, unfortunate baseball writers who have to cover spring training in Florida. Whenever I travel from Ohio to California to visit my brother, I’m always asked by friends if I plan to stop at In-N-Out before or after I go to his house. And there those celebrity chefs again – among them Thomas Keller and our old friend Anthony Bourdain – singing In-N-Out’s praises, stoking that perception of quality and feeding that demand.
I’ll leave it to Antonio Rangel and his colleagues at Caltech to parse all of that. But for now I will try to find “Smokey and the Bandit” streaming online and giggle anew at the fact that the whole damn thing was set off by Coors beer. And wonder whether, if and when there is a reboot of the franchise, Big Enos and Little Enos Burdette will send the Bandit after Pappy Van Winkle, In-N-Out Burger or something else entirely.
Two seconds after the police car came to a stop, 12-year-old Tamir Rice was shot. Two seconds is all it took to end the life of a child playing with a toy. In the initial reports the police officers claimed they asked Rice to put his hands up three times and that he didn’t comply. We know now, however, that their entire interaction took a total of two seconds, casting serious doubt on the officers’ stated justification.
A child shot down for no good reason and a plainly implausible cover story. Yet people, for the most part, will believe the implausible cover story. Why?
I can’t begin to know what it’s like to have someone close to me killed. I also can’t imagine what it’s like to be black in a country that (a) was built on several centuries of enslaving and exploiting black people; and then (b) turns around and blames black people for the bad things which befall them.
I can read about this pernicious and destructive dynamic and I can understand it on an intellectual level, but the America that I get to experience is a totally different one than that which people who aren’t white males who make a decent living have to experience. And since I can’t imagine what that feels like, I haven’t spouted off too much about these sorts of things, even though I spout off about all manner of things throughout the day.
This doesn’t mean someone in my position can’t speak out about the specifics of the injustices in Ferguson and Cleveland and the public fallout of it all that is dominating the news this week. Many people in my general demographic category have, often eloquently. I just choose not to myself. I don’t offer much in the way of blow-by-blow of the incidents and the investigations and I don’t talk about the larger implications of the subsequent unrest. I don’t because I feel like most of what I would say about it all is naive, relatively ill-informed in ways that truly matter and that there are others who would do a far better job talking about the injustices visited upon Michael Brown and Tamir Rice and what it all means.
But since I am someone who comes from a safe and privileged background and since I live a safe and privileged life, I think I can offer some insight into the reaction many of my fellow privileged Americans have had to what has gone on in Ferguson and Cleveland. I can, I think, explain why many of my fellow privileged white Americans refuse to come to grips with the fact that bad shit goes down in this country and who refuse to believe that it’s racial and ethnic minorities, women and the poor who spend their lives looking down the barrel of that bad shit.
These are people who refuse to believe things like Michael Brown and Tamir Rice were shot and killed without justification and that the police are and should be held accountable for their deaths. People who latch on to every vague and often implausible account of hulked-up black men and ominous moves to their waistbands, nod their head and ultimately come down on the side of law enforcement in these all-too-common incidents, always.
It’s too simple to chalk it all up to racism. Sure, there are unabashed and crypto racists in your Facebook news feed right now talking about how the “thugs” had it coming, but there aren’t too many of them. Not as many as there were a few decades ago anyway. They represent a specific and non-trivial problem, but let’s ignore them for these purposes.
There are also a lot of people – an awful lot of people – who, while not themselves racist, are ignorant of the fact that they were born into and socialized by a system that is inextricable from America’s racist history. People who, even if they’ve applauded every bit of racial progress made in the past 60 years, are not totally conversant with just how thoroughly racism is ingrained in today’s America. How, even if slavery and Jim Crow are now things of the past, stuff like housing and educational and economic policies born in those eras still, quite shockingly until you actually read about it, carry on to this day. Privileged people who, however unwittingly, carry assumptions about how the world is in 2014 that simply aren’t true and which inform their beliefs.
But I’m not really talking about that dynamic either. It’s a critical dynamic to be sure, and one that causes a hell of a lot of the problems we have today, but it’s not the one that causes the immediate, knee-jerk defense of police officers like we’re seeing in the news of late and it’s not bolstering that certainty that everything that went down in Ferguson and Cleveland, however sad, went the way it had to go.
No, we can chalk that up to our fear of the horrifying and the power of denial.
When you, like I did, grow up in an ideal world with a mom and a dad and a good education and you don’t want for anything, there isn’t much room for the horrifying. There are anxieties and there are neuroses, but to privileged folks like me, the real horror of existence – of life and death and the possibility that it could very easily come to you at any second without justification – is utterly foreign.
Sometimes we get a peek of it. Maybe on the news, beaming images from thousands of miles away. We read about it. We hear about it second hand. But we don’t experience it. And on some level it’s so utterly out of our frame of reference that our brains work hard to deny its existence. To explain it away as something not real. I mean, think about the last time you saw some middle class white person on CNN talking about a tragedy they witnessed. What are the words they’re almost 100% certain to use: “I couldn’t believe it … it was … surreal.”
I’m not immune to this. I’ve never been involved in a shooting or a bombing, but I’m almost always quick to assume something that could be bad is not a worst case scenario. My son’s cough is nothing. That biopsy my mom is going in for is no cause for concern and, if it is, the doctor will fix it. That guy the guards are talking to by the courthouse entrance is not a security threat. My brain and the brains of people like me are not set up to grapple with awful things because I and people like me have not had to deal with truly awful things all that much. If things always work out just so – and for us, they usually do – you come to assume the existence of an orderly and just universe.
But it’s not an orderly and just universe. The universe is indifferent to our sense of justice. Mother nature and human beings can be downright horrifying. People kill each other for dumb reasons or no reason at all and a lot of people believe that some sorts of people are inherently inferior to others and act accordingly, often with force. Leaders let their populations starve while they themselves live like kings. Corporations calculate the acceptable number of people who should be allowed to die before going through the expense of fixing a defect in a product. There are a small handful of people who love and care about you, a great many who don’t give a shit and a select few who would cut your throat if there was something in it for them.
I’m not one of those folks who scream “wake up sheeple!!” and demand action against such horrors. Mostly because I think the horror of humanity is a feature, not a bug, and there’s not much we can do to fix it. Also because I do believe it’s possible for people to still get on with life in spite of these horrors and find a bit of happiness in our short time here even if the horror still exists. We’ve actually come a long way in learning to coexist with horror. It’s certainly better now than it was even 100 years ago.
But the horror does still exist and, I suspect, most people couldn’t get through the day if they were constantly reminded of that. No one is gonna brew the coffee, stock the shelves or analyze last quarter’s financials if they acknowledge that life, for many if not most people on this earth is nasty, brutish and short. Society works much better if they assume that everything happens for a reason and that reason is benevolent.
But then something horrifying happens that they can’t ignore. Say, a 12-year-old child is shot dead while playing with a toy.
When that happens, people have a choice:
Knowing what we know about how people respond to horror, it’s not at all surprising that, generally speaking, they are quick to believe a cop who killed an unarmed black teenager, even if his story strains credulity. Or that police truly warned the 12-year-old boy three times before they shot him yet he still acted menacingly, all in the space of two seconds. They’ll believe that, in part, because it fits in with a lot of things they’ve been taught about how police are heroes and young black men are “thugs.”
But more so, I think, they’ll believe it because not to believe it upends their pleasant, orderly and just universe. It reminds them – or maybe informs them for the first time in their lives – that not everyone in a position of authority is there to protect you, that anyone can be a killer and that anyone, even a child, can be gunned down for no reason. And that, often, the killer can get away with it.
They deny that which is horrifying because to accept it is to negate everything they think and believe about how the universe works. And no one wants to accept such a thing.
Bill Wilkinson died over the weekend. His ghost is haunting me this evening.
Most people knew Bill Wilkinson as a top-flight attorney. Which he was. But he was a special breed of top-flight attorney, unique to a special time and place in the Columbus legal community. A hybrid beast of rainmaker and street fighter known as a Big Swingin’ Dick. A term used for Bill and his like, sometimes affectionately, sometimes mockingly, sometimes respectfully, sometimes derisively. But one thing was for sure: you knew a Big Swingin’ Dick when you came across one.
These guys were all around the same age. The first generation of Baby Boomers and men just a few years older than that. Men who came into the law in the late 60s and early 70s, just as the age of genteel and respectful Officers of the Court who epitomized the legal profession for decades before began to retire and die off. The Big Swingin’ Dicks would pay lip service to their grand profession and tradition of high ethics and collegiality of their elders, but they were in fact amoral warriors who made the legal culture of the 80s and 90s what it came to be, for better and for worse. Men who sought to crush their enemies, to see opposing counsel driven before them and to hear the lamentations of their financial advisors.
By the time I graduated law school in 1998 there were maybe ten Big Swingin’ Dicks left in Columbus. Ten of the original ones, anyway. Some 40-year-old junior partner may have been called a Big Swingin’ Dick once in a while, but he was second generation at best. He was not one of the big shot lawyers who made their bones and reputations by the end of the 1980s but who nonetheless still went into the trenches to keep doing it every day. He was a lot more like the Big Swingin’ Dicks’ contemporaries who had eased into lives of schmoozing clients, billing cases (but not really working them) and having long lunches at the Columbus Club, all while still claiming the status, but not really living it. Not really getting their hands dirtied and their mouths bloodied from time to time. By 1998 only a few true Big Swingin’ Dicks remained. I somehow ended up working for three of the Big Swingin’ Dicks in my eleven year legal career. Bill was the last. We worked together at Thompson Hine from May 2003 until the end of 2008.
And he was the most interesting. Certainly the smartest. Bill’s undergraduate degree had been in the sciences and he approached every case as though it were mathematics, physics or chemistry. He took a fact pattern and read out all of the human emotions and motivations – all of the subjective flotsam that most people think animates a lawsuit – and simply deduced what would happen and how, as if there were no uncertainty at all.
“Johnson will file the lawsuit on Friday,” Bill would say, “and he won’t include the tort claims.
“I’m not sure I see it that way,” I’d reply. “He has every reason to wait and then throw as many claims up as he can just before the statute of limitations is up.”
“No, he’ll realize by Friday why he can’t do that.”
He didn’t say it as though it was a matter of fact. He said it as though it were a matter of immutable universal law. And, when it came to matters of law, he was almost always right.
This scientific approach extended into everything he did. Once, toward the end of my legal career, when I had clearly lost my motivation and my work began to suffer, I was called into Bill’s office. I expected to be chewed out or put on notice. Instead I was given a lecture on the concept of entropy.
“Craig, a legal career is like any system subject to the laws of physics. If you don’t add energy to that system, it degenerates into a state of thermodynamic equilibrium. That may sound like a pleasant phrase, but thermodynamic equilibrium is bad for people like you and me. That’s when there are no driving forces. When the system is isolated from its surroundings. We must constantly battle entropy. We must stoke the system with energy. We must avoid thermodynamic equilibrium. Do you understand?”
I understood what he was getting at. I was completely bewildered by how he put it.
The scientific approach also extended to small, personal matters as well as big picture concerns. He would always have his secretary bring him a cup of ice water to go with his cup of coffee, and he would explain to you, in great detail, how alternating sips between the coffee and water would lead to optimal hydration and alertness. He took great pains to explain how he had discovered – and acted as if he were the first to discover – that one could use a rewards credit card for everyday expenses and household bills, thereby maximizing one’s rewards. Everything Bill did was rational, as Bill would be the first to tell you. Everything he did had purpose, and no small amount of righteousness, behind it. If you doubted him, all you needed to do was ask.
A corollary to Bill’s scientific certitude was the notion that, once he had come to rest on an idea or a course of action, the matter was forever settled. This was not a product of stubbornness on his part. There was not a sense that one couldn’t bring up the matter again if one wanted to. Rather, it was as if all previously available courses of action had never existed in the first place. Indeed, it was as if the very choice or controversy itself had never existed. To change Bill’s mind about something or to remind him about something already settled meant presenting it to him as if it were a totally new matter that had never before been presented.
My first experience with this corollary came the day Bill hired me to work at Thompson Hine. I wrote a mildly fictionalized version of this once before, but the upshot of it all was that a former boss of mine was a friend of Bill’s and, three years prior, assigned me to represent Bill and his wife in a dispute with the company that built their home. I dealt mostly with Susan, not Bill, but Bill knew who I was. The representation ended abruptly, however, when Bill was arrested for soliciting a prostitute in a grocery store parking lot on the way to work one day. All communication was cut off and the day of my interview was the first day we had spoken to one another since the incident.
It was not surprising that his arrest never came up – it was a job interview after all and I certainly wasn’t going to mention it – but my representation of Bill and his wife never came up either. I learned much later that, yes, he remembered me and still had the files of our case together in his office. But for purposes of the interview we were total strangers. I came to realize that Bill had decided that that unfortunate mistake in his life never existed and thus nothing even remotely surrounding it existed either. It had been in the papers, but was never discussed in the office. Not because to do so risked embarrassing Bill, but because it never happened.
I spent the next five-plus years working with Bill on the sorts of cases the Big Swingin’ Dicks tended to work. High-profile cases, many involving public officials and many which were accompanied by no small amount of media coverage. Fixer work. Some white color crime. It was mostly interesting and engaging and occasionally even exciting. It all culminated in the biggest such case he or I would ever have. A political scandal which turned into a highly-publicized criminal prosecution. A case which resulted in my eventual burnout and which, eventually anyway, led to Bill’s professional and personal downfall.
The case developed quickly. The scandal hit the papers and as all of the implicated politicians ran for cover it became clear that our eventual client would be the fall guy. He went to two or three other Big Swingin’ Dicks but they turned the case down either because their firms represented some of those politicians running for cover, they didn’t want the publicity or because there was no obvious way for the client to pay what would certainly be enormous legal bills. I was sitting in Bill’s office the day the call came in. Bill took it immediately and set up the first meeting.
Bill made two audacious decisions at the outset of the case. The first one involved legal strategy. Though not a criminal lawyer by trade, Bill would handle the representation. Unlike the usual approach of a criminal lawyer, Bill would not seek to merely create reasonable doubt as to our client’s guilt, he would seek to prove his innocence. He would do so via objective and clinical means involving contract law and no small amount of science. In order to do so, he’d make several claims and admissions early in the case which confounded the expectations of the press and the prosecution. The sorts of claims and admissions a criminal lawyer normally would not make. Only a man certain of the outcome and completely and utterly dismissive of the notion of failure would do what Bill did in defending this case.
The second audacious decision was made with respect to how we would be paid. The case was going to cost the client millions of dollars he clearly did not have. The firm’s administration was extremely uneasy, but Bill convinced them – again, through the sheer force of his logic – that it made perfect sense to accept the representation and to seek payment via a complex set of business arrangements with the client and his family.
With a strategy and approval from firm brass secured, he and I spent the next two years consumed with the case in ways no other case had ever consumed us before.
Two years later our client was beginning a 20-year prison term. And to this day only a small fraction of his bill was ever paid. After that, everything changed.
With the case over, I spent the first two months of 2007 mostly idled and completely and utterly burnt out. After two years of brutal legal combat I only wanted to think of things which brought me joy. I spent more time at home than I should have and, in April, began a baseball blog to take my mind off things. I would never be fully committed to the practice of law again.
Bill seemed to take the defeat in stride, at least initially. There’s a saying in the law that it takes one hell of a lawyer to lose a big case. There’s some truth to that, inasmuch as no one gives a big case to a crappy lawyer to begin with. Losses like that can be shaken off and, eventually, even joked about. Bill couldn’t joke about it – his refusal to acknowledge failure or mistake on his part made that impossible – but he immediately dove into the next case.
It soon became apparent, however, that not everything was well in Bill’s world. Always a significantly overweight man, Bill shed nearly 100 pounds as the case wound down. It wasn’t a healthy weight loss. It was accompanied by Bill’s turning into a chain smoker and dramatically increasing how much he drank. When his weight was commented upon, Bill would claim that he had discovered the key to a healthy diet and, when he had the time, he’d gladly explain it to you. He never did seem to have the time.
Not long after the case was over Susan kicked him out of their house. The rumor was that Bill had taken up with prostitutes again. His divorce records make reference to a “longterm extramarital affair.” One story I heard was that the girlfriend was, in fact, a prostitute and that Bill had simply bought out all of her time for his benefit and she never left. I don’t know if that was true but it feels like something Bill might explain to himself and anyone else who would listen as an arrangement that made simple economic sense. As it was, he explained the breakup of his marriage as something that was as inevitable as ocean tides and, ultimately, a good thing.
I left Thompson Hine in late 2008. I was pushed, even if it was a gentle push. Bill delivered the news to me. He said he was sorry to be doing this and that, however bad things seemed now, I would eventually land on my feet. He once again referenced entropy and equilibrium as bad things and said that he knew I was capable of introducing energy into whatever system I chose and good things would happen. I didn’t want to hear any of that. Bill seemed so phony and hollow to me by then and the idea of equilibrium seemed wonderful to me, no matter how he characterized it. I didn’t feel any hostility at all for him, however. I felt sorry for him and how deluded he was. I was relieved to be leaving law firm life and the world of the Big Swingin’ Dicks. A world where such thorough denial was necessary to get through the day.
Bill only lasted at Thompson Hine until 2010. He had become unreliable and his drinking became too much of a burden. Really, though, the seeds of his demise were sown back in 2005 when he agreed to that fee arrangement with our now-incarcerated client. You can be a raging alcoholic and stay in a law firm’s good graces. You can’t cause the firm to be stiffed on a multi-million dollar bill and expect the same amount of leeway. After some time off he resurfaced as the partner of a solo-practitioner who, while well-known in town, is not well-respected. At least not among the remaining few Big Swingin’ Dicks. Bill himself used to mock and denigrate the guy when we were still at the law firm. For the last couple years of his life, Bill was basically his assistant.
Though I never saw Bill again after our final discussion about entropy, I did hear from him. About two years ago he saw me on television and emailed me, congratulating me on my new career. Since then, and until about a month ago, he would send me an email every few weeks about some baseball topic or another. Usually it was a link to an article with some sabermetric element to it. Bill wasn’t a huge baseball fan, but the science of the game was something he was naturally drawn to.
I believe he was unaware of my sabermetric leanings, because most of the time his emails came with explanations of the topic at hand, as though the theories being discussed were new and unknown to me. I never had the heart to tell him that, most of the time, what he was sending me was old news or, in some cases, obsolete thinking. Maybe because I feared that he’d respond with his old air of authority in an effort to correct my clearly mistaken ideas. Maybe because I feared that he had fallen so far in life that he couldn’t bring himself to do that anymore.
Bill died of a massive heart attack in his apartment. He was alone at the time and was found by his girlfriend some time after his death. I’m told that there will be no funeral service. I’m told that his girlfriend is disclaiming any responsibility and that his ex-wife and his daughters have refused to claim his body. A few of us are going to meet up at a bar sometime soon to pay our last respects. That’s about all he’ll get, I suppose.
It simultaneously seems like too much and nowhere near enough.
It’s an exaggeration to say that drafting legal documents is all copying and pasting, but not that much of one. At least if you sort of know what you’re doing. Make sure you know what you’re trying to accomplish, find a good form and pay attention to the local court rules and you’re most of the way home. After substituting “Craig Calcaterra” and “Petitioner” for “State of Ohio” and “Plaintiff,” I was on my way to turning my last legal brief – written in 2009 – into my divorce petition.
I had been putting it off for a while. For logical reasons mostly. I wanted to have everything settled between us prior to filing rather than make the court have to weigh in, and those negotiations took a little time.
But there was part of me that was procrastinating due to the unpleasantness of the task. To reducing 16 years of marriage to a pleading, two contracts and a handful of affidavits. Given my complicated relationship with the legal system, doing such a thing seemed like an even greater insult to the memory of my marriage than did its ignominious end.
But I got through it. To be honest, it was easier than I thought it would be. For as much as I disliked it when I was practicing, there is a certain calming ritual to legal writing. To formatting the page just so. To inserting just enough terms of art to make the document accomplish what it’s supposed to accomplish without making it unintelligible and jargony. To going back and making sure that your editing didn’t cause the numbered paragraphs to be non-sequential. To make sure your Exhibit A is, in fact, what you said it would be in the body of the document. After a little while I was able to forget that I was drafting the documents that would put an end to my marriage and just think of it as a necessary task.
Married: July 1, 1995 at Beckley, West Virginia … Residents of Franklin County, Ohio since May 20, 1998 … two children were born of this marriage … Petitioners are separated, and have been living apart since October 21, 2011 … the residence shall remain in the possession of The Husband … a Shared Parenting Agreement has been entered into …
After a while the words become secondary to the form and it all washes over you.
When I was done I secured the necessary signatures – mine, hers, the notary and the witnesses – and made the necessary copies. I was left with a neat stack of white paper, properly bound and ready for the clerk’s stamp. I put them in my messenger bag and, for the first time in over two years, went to the courthouse.
In some ways it was more emotionally daunting to walk through those courthouse doors. I had a nice bit of catharsis upon my marriage ending and I’m moving on in healthy directions now. I still feel like I have unfinished business with the law, however. Maybe because I left it instead of the other way around. Whatever the case, I found the few brief minutes I spent there Monday morning mildly unsettling.
As the clerk took the documents and stamped each one, I was waiting for her to give them back and to tell me that they weren’t in proper order. To tell me that the local rule I had followed in preparing them had been amended recently and that I needed three more copies, two more signatures and a different kind of fastener because staples were no longer sufficient. It dawned on me as I was waiting that the two biggest anxieties of my life – my difficult legal career, complete with all of the little rules that always seemed to vex me, and the deterioration and ultimate failure of my marriage – had joined forces. I stood there terrified that I’d have to redo the documents and prolong this unpleasant process.
But it all checked out OK. The clerk handed me back my copies and gave me a slight smile and nod, which is probably as close to a “have a nice day” a person who processes divorce and child custody documents all day can muster. I took the elevator back down to the lobby and walked out onto the sidewalk. It was cold, but clear and the air felt clean. I took a deep breath and exhaled, feeling lighter than I had in a long while.
The final hearing is set for March 20. After that, there will be no reason to look backward instead of forward anymore. And what has so far been a pleasant new morning can grow in to a bright new day, unimpeded by old business.
I’m often asked how I got a job writing about baseball for a living. How I managed to turn a legal career and life in an office tower to blogging in my pajamas. The people who ask me that do so in the same way that they might ask a magician how he guessed the card they picked. As if there were some simple trick to it all that, were I so moved, I’d be willing to divulge.
I don’t have an answer for them. There was a lot of luck involved. Some of that luck was the residue of design. It wasn’t good design. Indeed, looking back I’m struck by how reckless I was to make many of the decisions I made while crossing over from the real working world to however you’d describe the world in which I’m more or less paid to argue with people on the Internet all day.
I write a daily recap of the previous night’s events in baseball called “And That Happened.” It doesn’t seek to explain all that much. It merely sets forth what occurred and tries its best to place those events into some kind of understandable context. That’s the best I can do with my career path as well.
I wrote it all up in late 2011. This is it. It's long.
The last stop in my legal career was at the Ohio Attorney General’s Office. One of my jobs there was to defend lawsuits brought against the state arising out of stuff that went down on the Statehouse grounds. Some of it was slip-and-fall cases, but the vast majority of the work involved helping the people who managed the Statehouse property approve (or not approve) petitions for people who wanted to march or protest.
Normally it was easy: they’d call, asking if they can keep some group off the capitol steps and I’d say “Nope, sorry. Gotta let ‘em march.” The First Amendment is so troublesome that way. But heck, several years earlier the KKK got to rally there, and if you can’t keep them out, you can’t keep anyone out. Besides, the guy who ran that operation was a cranky old guy who didn’t like anyone protesting, so it was a lot of fun to tell him just how little say over the matter he had.
But then, in the summer of 2009, came PETA. Who, though I disagree with their stance on the tastiness of animals, their suitability for my barbecue and the comfort of their skin when put on my comfortable Eames lounge chair, I do respect in an odd fashion. They’ve got moxy and chutzpah and, though they’re occasionally (frequently) insane, they usually seem to have a good sense of humor about themselves. Which is essential when you’re wrong so often. Live and let live, I say (note: this motto may not apply to cattle, pigs, chickens and other things that I may want for dinner this evening).
That summer PETA wanted to stage a massive protest on the Statehouse lawn in which they would (a) place approximately 1000 buckets full of pig poop in neat rows; (b) place giant industrial-sized fans all around them in order to blow the stink all over downtown Columbus; © bring in giant amplifiers with which to project the sounds of pigs being slaughtered to a mutliple-block radius; and (d) erect giant video screens on which the horrors of factory farming would be displayed.
You won’t be surprised to learn that the guy who ran the Statehouse called me, somewhat upset over all of this. And while I normally would just say “First Amendment, forget it” and go back to my clandestine baseball blogging, I felt that I needed to dig into this one a bit more. So I did. And I learned that PETA had just recently tried to do the same protest in Washington and maybe in a few other states besides Ohio, but were denied everywhere else. Indeed, it was my assumption – based on the fact that they hadn’t yet started suing everyone over it – that the protest was never really going to happen and that they just wanted the headlines that the state’s rejection of the application would provide. Smart!
The whole thing fascinated me, really, so I decided that rather than simply send a letter saying no, I’d try to find a legitimate yet innocuous basis for denying their application, putting the ball back in their court rather than letting them use my state as an example of intolerance and authoritarianism for their next press release.
After an afternoon of research with a summer law clerk – who herself happened to be a vegan and former PETA member and who had quit the organization because this kind of nonsense bugged the heck out of her – we found some obscure 19th century law that dealt with the storing of offal within the city limits. We didn’t think that offal and pig poop were the same thing, but we figured it would be fun to make the PETA lawyers research that one and explain it in their letter objecting to our decision or in the lawsuit if it came to that. If they want to fight over the true nature of poop, by God, I’d fight that fight.
We sent the letter denying their right to rally on the Statehouse lawn. I spent another four months at the AG’s office before coming to NBC full time. Never heard back from them, so even if it was just a phantom protest/publicity stunt, I’m still claiming that I’m 1-0 all-time vs. PETA.
Gosh, remembering that has me in a really good mood now. I think this evening I’m going to eat a really bloody steak in celebration.
When a starting pitcher leaves a game with runners on base, he is still responsible for them. His day, statistically speaking, is not done until those runners either score, are retired or until the inning ends. When that happens the announcer usually says “you can close the book on” the starting pitcher, because nothing else that occurs in the game will be attributable to his line in the box score.
I just read in the Columbus Dispatch that the Ohio Supreme Court has finally ruled on a case involving the Ohio Legislature. The substance of the case would be boring for most of you, but it’s interesting to me because I was the pitcher of record, having represented the Legislature while working for the Ohio Attorney General’s Office. I had almost forgotten about the case in the past year. Reading about it this evening, it seems like something from a past life. Which I guess it is.
I took myself out of the game in November 2009 when I bailed for blogging, but there were still runners on base. The relievers who came in got me off the hook and, with today’s decision, we ended up winning. Personally speaking I probably got a no-decision, but I pitched pretty damn well. Either way, I was glad to see the outcome. Not just because my side won, but also because it happened to be the correct decision. It’s not often both of those things happen in the same case.
But win or lose, it was a great game. The case helped me rekindle, well, not my love, but at least my fondness and respect for the law that I had lost in private practice. I lived and breathed it for nine months. It kept me up many nights. But it touched on some elemental constitutional law questions. It required sophisticated legal thinking, writing and argument. My colleagues and I sat around and discussed competing legal theories just like I imagined I would always be doing back when I was in law school but never really did in private practice. No one ever talked about the amount of attorney time being devoted to the case. Everyone just wanted to win it and to win it with our honor intact. We did.
And now that it’s finally over you can close the book on Craig Calcaterra’s legal career. Because unless I’m mistaken, it was the last case I worked on as a lawyer that was still active. Soon the clerk will send the last file with my name anywhere in it to a storage room where it will be quickly – and justifiably – forgotten.
And though I probably don’t deserve the honor, I have it on pretty good authority that Ohio Attorney Registration Number 0070177 will be retired. Not a bad way to end a career, no?
I received a blast from the past last week when the decision came down in a case I left a long time ago. The case? State v. Noe, one of my three forays into criminal defense work in my eleven-year legal career. The decision: Tom Noe’s conviction affirmed. His eighteen year sentence – which still has around sixteen years left on it – upheld. I wrote that appellate brief a good eighteen months ago. Maybe longer. Glad to see the wheels of justice spinning so swiftly.
For reasons that aren’t worth going into here I think it’s an awful decision.* Most people familiar with Tom Noe’s story don’t lose any sleep over him rotting in jail, but the fact is that Tom was unconstitutionally overcharged, shafted on a dozen procedural motions, convicted in the press long before a jury was ever seated and handed a sentence that outstripped his actual transgressions by orders of magnitude (query: how does one engage in a criminal conspiracy with oneself? Only that Lucas County jury can say for sure). Still, there’s a difference between not guilty and innocent, and when you play the kinds of games, make the kinds of decisions and make the kinds of enemies Tom Noe made in his life you’re not going to get a lot of calls in your favor. The upshot: I’m not terribly surprised by the outcome even if, legally speaking, it’s the wrong outcome.
People who know about that case ask me how I, a liberal guy with a strong aversion to backroom political messiness could defend a hardcore, admittedly corrupt Republican dealmaker like Noe for as long as I did. I have two answers to that. Well, two answers other than “he was my boss’s client so I had to do so if I didn’t want to get fired.”
The first one is the boring one: I truly do believe that quaint stuff about people being innocent until proven guilty, about the government having the burden of proof, about the Fourth Amendment protecting people from illegal searches and seizures and about people being treated equally under the law. Tom Noe deserved a defense just like anyone else, and if he was going to choose my boss and, by extension, me to give it to him, I felt duty-bound to give it to him.
It was the second reason, however, that made me quite happy to defend Tom Noe day-in-day-out for nearly two years: he’s a neat guy. He’s funny. He’s strange in a harmless though highly interesting way. For all the malevolence of which he has been accused (and convicted, I probably need to add), he’s the kind of guy you just want to hang around. And before you assume that I was either a victim of Stockholm syndrome or hypnotized by his power, wealth and charisma, let me note that by the time he entered my life he had no power or wealth left and little in the way of charisma, if indeed he ever had any. Because of the scandal and media circus that preceded his indictment, by the time I met him he was basically an unemployed guy living off of the generosity of his family and the very small number of friends who hadn’t abandoned him while waiting for his inevitable trip to prison.
I have about 50 Tom Noe anecdotes, most of which I can’t share due to the attorney-client privilege. This one, however, kind of sums up his personality during his limbo of 2005-06, and it’s the kind of thing that made me come to like him.
Tom was living in Florida when he got indicted. The indictment came down on a Thursday. He surrendered himself to the local authorities, was arrested, booked, and cavity-searched on Friday, flown to Ohio for his arraignment on the following Monday during which he had to pledge both his home and his elderly mother’s home in order to make bail. He was given the perp-walk to end all perp-walks, his kids were tracked down and interviewed at school, and his name and face led every newscast in the state. When he was finally released late Monday evening he flew back home to Florida.
Our co-counsel up in Toledo was handling the nuts and bolts of the arraignment and bail, so I hadn’t heard from Tom this entire time. On Tuesday morning he calls me. I answer the phone.
“Hey buddy!” he says cheerfully.
I jokingly ask him if anything is new.
“You bethca! They gave me a first class upgrade on the flight back last night. Free booze! And man, there’s a lot of legroom! You shoulda been there! Really nice. You and me fly anywhere, we gotta fly first class. It’s the best!”
I laugh, thinking he’s joking around, but Noe is genuinely jazzed about his upgrade. Talks about it forever. Asks me to help him figure out the best way to get upgrades the next time he flies. This, by the way, from a man who was just indicted for stealing tens of millions of dollars. If he actually had any of the money they said he stole, he certainly wasn’t using it on airfare.
Anyway, it was at that point I decided that Tom was either (a) in total denial as to the seriousness of his situation; (b) had plans to take a boat to Belize soon; and/or © was some kind of sociopath criminal mastermind like the Joker or something, completely dismissive of the trouble he was in. It’s been nearly four years since that conversation and I haven’t been able to rule out any of those options (though if he still has plans to book it to Belize, it’s gonna take a jailbreak at this point). All I know for sure is that he spent three nights wearing blaze orange in jail cells, and first class seats on a two hour flight home was all he wanted to talk about.
Don’t get me wrong: I’m not defending any of Tom Noe’s actions here, proven, alleged or otherwise. And none of this makes Tom Noe a good guy. The judicial system and public opinion has decided pretty clearly that he isn’t. I’m just saying that little stupid things like that are the reason I liked defending the guy. And given how few of my clients in my eleven years of practice I can say that about, it has to count for something.
*Given that I haven’t worked for my old law firm since 2008 and haven’t talked to Tom Noe since well before that, it should probably go without saying that the opinions expressed in this post are that of the author and do not necessarily reflect those of my old law firm, Tom Noe or anyone else except me. I’m sure the old law firm will give a bunch of no comments about the court’s decision if they haven’t already and would probably call me a whack job if asked about that. At this point I’m sure Tom Noe would talk to you if you asked him.