Showing posts with label Law. Show all posts
Showing posts with label Law. Show all posts

Apr 20, 2013

Prosecutorial Discretion and Prosecutorial Protection

NYPD Deputy Inspector Anthony Bologna: American fascist
In Boston and Watertown, America has seen the best of law enforcement working with citizens and communities in a common effort.

Now comes word of the worst.

"The [Manhattan] District Attorney’s Office has concluded, after a thorough investigation, that we cannot prove these allegations criminally beyond a reasonable doubt," says Erin M. Duggan, chief spokeswoman for the Manhattan DA, Cy Vance.

Duggan refers to the savage attacks by New York City Police Inspector Tony Bologna who sought out and assaulted peaceful Occupy Wall Street protesters in 2011 with pepper spray in several premeditated acts of disgusting violence, captured on video, and plastered all over the Net in 2011. (John Del Signore, The Gothamist)

"Despite the overwhelming proof on videotape, seen around the world, (Manhattan District Attorney) Cy Vance Jr. has shown that it he will do nothing to disturb his cozy relationship with the police, even in the face of the clearest wrongdoing," attorney Ron Kuby said.

Consider also from late February (2013), the Milwaukee District Attorney's press release announcing the closing of the John Doe probe into Scott Walker's tenure as Milwaukee County executive in which Walker was not charged.

This February exoneration of sorts occurs—though Walker's e-mails on a secret, illegal e-mail system in his office were made public along with those of convicted felons' whom Walker hired and supervised—with the same explanation given about Inspector Tony Bologna.

The Milwaukee DA's press release reads in part: "I am satisfied that all charges that are supported by proof beyond a reasonable doubt have now been brought and concluded," per the Milwaukee DA John Chisholm's policy.

Proof beyond a reasonable doubt. That's what it takes to convict a defendant.

Now, this standard is increasingly presented by prosecutors to justify not launching prosecutions against protected figures like Anthony Bologna and Scott Walker, because these prosecutions might take a political toll on the prosecutors' offices.

This quantum of evidence of 'beyond a reasonable doubt' is not the standard used by prosecutors' offices to prosecute cases, though this position is getting more use of late as bigger-name, would-be defendants are getting away with corruption and in Bologna's case, physical assaults.

The process by a prosecutor's office in evaluating whether to bring a criminal charge is not a mini-trial with evidential presentations that prosecutors use as the basis to proceed only if the faux mini-trials conclude with a 'beyond a reasonable doubt' quasi verdict, which is the same as the standard to convict in a criminal trial.

There is no finding of guilt beyond a reasonable doubt reached; that's what a trial in a court of law does.

The reality is a miscarriage of justice that applies only for some, namely Walker and Bologna, and is pernicious to our society and the rule of law.

For most everyone else, prosecutors determine whether there is sufficient evidence and facts establishing probable cause that charges against a defendant should go forward and a probability of guilt exists before trial in jurisdictions in which alleged crimes are the "most flagrant, the public harm the greatest, and the proof the most certain," to again borrow from Jackson.

In our criminal justice system in which law enforcement officials routinely cook police reports and lie in open court (testilying), America has seen the criminal justice system create a "leviathan unmatched in human history," as Glenn C. Loury writes in Boston Review, [and his book, Race, Incarceration, and American Values. Glenn C. Loury. (MIT, 2008)].

This leviathan has not been constructed by prosecutors engaging in bringing only prosecutions they think are supported by evidence beyond a reasonable doubt.   

Ours is a punitive system that now nakedly protects high-profile, would-be defendants in the reasonable expectation that most people will not be paying attention, and most corporate press will work as stenographers.

Does any legal observer or defendant for that matter—surveying the mounting civil citations in municipalities as protests are deemed illegal, money is extracted from citizens, and the sheer number of criminal defendants incarcerated—believe the DA's offices (including Manhattan's and Milwaukee County's) prosecute only cases that prior to criminal trial and plea bargaining have been determined to have already met the legal standard of proof beyond a reasonable doubt?

Not a chance.

Surely, all of the innocent Americans persecuted by their local DA's offices would agree, and are critical of the corporate press that actually cheers innocent Americans being prosecuted.

Take an example, Stephen Biskupic, former U.S. Atty for the Eastern District of Wisconsin (2001-08).

After prosecuting proven-innocent voters, one Georgia Thompson and a Navy Vietnam-era veteran, Keith Roberts, Biskupic largely received a pass from the press and after 2008 worked for Scott Walker's campaign, before jumping ship early this year from the GOP's ethically challenged law firm where Biskupic was a partner.

Consider GOP mouthpiece Mike Nichols of the Milwaukee Journal-Sentinel (May 11, 2007) who says though the evidence behind the prosecution of Georgia Thompson was a "bust," [Thompson's ludicrous conviction was actually tossed after oral arguments in April 2007, an occurrence that almost never happens] we should "admire" Biskupic.

That's giving an out-of-control US attorney a pass, certainly; one reads Nichols' piece and word "admire" rings out today.

Nichols is still writing for the Journal-Sentinel, despite issuing no apology or retraction for cheering on an innocent women being convicted of a federal crime by a corrupt U.S. attorney.

In Wisconsin, even as Scott Walker seems to believe he is above the law after DA Chisholm's refusal to prosecute Walker for misuse of public office, Walker has used the justice system and maintained his personal palace guard to issue civil citations to citizens expressing anti-Walker political thought at what has long been known as the People's House—our state capitol.

Wall Street bankers, Scott Walker, and Tony Bologna may think they are above the law as those prosecutors charged with building criminal cases and protecting the public decide the costs are too high to prosecute—too high for their careers—but refraining from protecting the public from the most egregious of baleful and illegal acts of powerful factions in our society is a betrayal.

As the great jurist, Robert Jackson said in 1940 while serving as U.S. attorney general:

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.
Citizens the nation-over need to ask: Does fair play, human kindness and truth, sound like our U.S. Attorney and local DA?

If not, then speak up.

If so, an occasional thank-you is in order.

Now, too many prosecutors are protecting powerful, unindicted criminals using the imprimatur of prosecutorial discretion as they look to the future with their eyes posted firmly on their careers.

Justice Jackson addressed this action as well: "Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character."

The statistics Jackson referred to are how well the actions of the office serve the powerful.

As for character, that seems to belong to another time.

Feb 1, 2013

'Massive layoffs’ predicted in law schools due to big drop in applicants

Update II: Wisconsin-Madison jumps to 16th best law school in the National Jurist ranking.

Update: Just about any professional service field is feeling the pinch of the worst recession since the Great Depression.The field of law—as studied locally in Wisconsin remains—is not immune. Locally, the Capital Times ran a piece with the law school Dean Raymond noting the imperative of the school to be "creative" and "prepared" for changing dynamics in placing law school graduates.

"A plunge in the number of applicants to law schools will likely lead to closures and faculty layoffs, according to law professors following the statistics," writes Debra Cassens Weiss in the ABA journal yesterday.

Based on current trends, the number of law school applicants for the 2013 school year is expected to number between 53,000 and 54,000, a 30-year low. In 2004, for example, 100,000 people applied to law schools, the New York Times reports. 'Responding to the new environment,' the Times says, 'schools are planning cutbacks and accepting students they would not have admitted before.'"

The Times has been all over this story the last several years.

In Wisconsin, the two law schools in the state remain well-positioned to fight off this national trend of a depressed job market in law.

Nov 25, 2012

Law Schools' Lost Generation

University of Wisconsin-Madison Law School

Update III: This on background, but several attorneys—contacted after this piece was published—are cautioning that legal services will remain a vital contribution for the additional reason that the GOP is increasing enactment of state laws attacking attorneys who protect people from corporations. Such laws are an attack on the rule of law. As for law schools, Lawrence E. Mitchell's piece in the NYT is gaining increasing currency among jurists.

Update II: 'Massive layoffs’ predicted in law schools nationally due to big drop in applicants (Debra Cassens Weiss, Jan. 31, 2013)

Update: NYT - Law School Is Worth the Money (Mitchell). A "one-sided analysis is inflicting significant damage, not only on law schools but also on a society that may well soon find itself bereft of its best and brightest lawyers."

Students Face Uncertain Job Market, Massive Debt;
Wisconsin Law Schools Positioned to Fight National Trend

Nathan Littrell appears a prize catch for prospective employers.

Graduating in May 2012 with honors from the University of Wisconsin-Madison law school, Nathan is a family man, has corporate real-world experience, completed a clerkship with the U.S. Attorney's Office, and has extensive experience with the Wisconsin Department of Justice (DOJ).

Littrell is young, ambitious, and has a great sense of humor.

But Littrell, a Madison resident, volunteers with the Wisconsin DOJ, and drives a cab at night.

You can be anything, my daughter—a doctor, a lawyer, a scientist, anything—many a hopeful parent has said to her child.

Forget about it. Littrell cannot find a paid, legal job now. And he is not alone.

Littrell and his family starred in a humorous video posted on YouTube this year (produced by Stuart's Law Revue), quickly drawing over 12,000 hits. The video portrays Littrell’s experiences of obtaining a law degree and not being able to find paid legal work.

Now, a number of parents and jurists are advising undergraduate students explicitly to scratch a law degree off the list of higher education leading to promising careers and in many cases—fulfillment of dreams.

The field of law no longer appears to be a safe haven for young, brilliant students seeking professional employment.

At Wisconsin’s two law schools, faculty, staff, and students are well aware of the state of the profession of law.

As a graduate school at the second largest public research university in the United States, the UW-Madison Law School is innovative and aggressive in its professional training through the law school's “law-in-action” approach to professional training.

“We recognize that this is a tough time to enter the field of law. We are constantly adapting and exploring new ways to give our students experiences, skills and opportunities that will help launch their careers. This is not new at the University of Wisconsin, where we have a long history of graduating practice-ready lawyers,” said Dean Margaret Raymond in a statement for this piece. “Students get real-world experience in our clinical and experiential learning programs, which are among the best in the country, both in terms of the breadth of opportunity they offer and in the number of students who take advantage of them. Over 80 percent of our students participate in a clinical or externship opportunity in their time here. UW Law students add these rich experiences to a foundation of academic rigor. They graduate well prepared for twenty-first century practice.”

Raymond was named Dean of the Law School in July 2011.

The economic crisis and the downturn in legal jobs are generally regarded as being casually linked.

Reads the Employment Data webpage on the UW-Law School site:
In 2009, in response to the financial crisis and resulting downturn in the legal employment market, the Law School implemented its STEP program (Students Transitioning to Employment Program), under which the Law School provides modest stipends to graduates who have not secured permanent employment at graduation but who do legal work for at least two months after graduation on a volunteer basis at a public interest organization or government agency.
Data maintained at the UW Office of Career Services (OCS), (self-reported by UW-Law grads) on the number of graduates from the class of 2010 shows 239 employed grads of 257 grads from 2010 (92 percent employed). In 2011, 226 out of 254 grads are employed (88 percent employed).

Data on percent employed over the last 10 years similarly show employment in the mid-90 percent range.

These data points on the website are not all revealing to the situation law students face today, however, as the data do not indicate the underemployment in the salaries of attorneys beginning at minimum wage or working for free, the temporary legal jobs, the tenuous nature of offered positions, and of course the problem of paying off six-figure student loans.

The annual costs of attendance at UW-Madison law today is $40,157. Law school tuition and fees for Wisconsin residents is $21,347.

UW-Madison is generally regarded as in the top 15 percent of law schools nationally.

The UW is candid about this data on its employment data webpage, breaking the employment down into subsets of differing types of employment.

“Employment statistics reflect part-time, full-time, contract, temporary, and permanent positions,” reads the UW-Law Employment Data webpage.

Looked at from a macroeconomic perspective, too many law student graduates compete for too few law positions.

As Professor William Henderson of the University of Indiana-Maurer School of Law writes on his blog on the risks and idiosyncratic nature of the study and practice of law:

In ordinary industry, capacity just goes away in response to declines in demand. But [law] we are not an ordinary business. … (And) (a)lthough entry level salaries are going down, tuition is likely to go up or sideways at best.
“The quality of candidates for open position is extraordinary. The number of law school graduates who either don’t have jobs or who are willing to work for embarrassingly low salaries is just amazing,” said Michael Bauer, partner in the Madison-based Bauer and Bach, LLC.

Bauer previously worked as the administrator of the Legal Services Division at the Wisconsin Department of Justice from 2003-2007.

“It was the same at the DOJ, the people we had applying for jobs were so highly qualified, you cannot help be surprised they were looking for work,” said Bauer.

The Bubble May Burst

A widely read January 2012 American Bar Association (ABA) Journal piece by Henderson and Rachel M. Zahorsky characterizes the number of law students nationally as a "bubble" in danger of bursting under the weight of the volume of students, massive debt incurred (since student loan policies were changed under the Ronald Reagan administration), the saturated jobs market facing new attorneys, and new technologies.

Outsourcing and offshoring are not limited to muscle labor, phone banks, and information technology shops. Large firms involved in big legal cases increasingly offshore some basic legal work to India and other developing countries, a trend that began some 20 years ago.

Marquette University Law School
Said Ed Fallone, Associate Professor at Marquette University Law School in an e-mail:

"It is possible that new technology has opened up certain basic legal tasks to outsourcing abroad, and that the demand for new lawyers is undergoing a fundamental change. It is also possible that the current hiring situation is simply a temporary reflection of a historically severe recession. I don’t think that we can be certain of anything, other than the fact that recent law school graduates have faced a very difficult job market over the last few years."

"Is law school still worth the investment, and the debt that is typically incurred in order to obtain a law school degree? I believe that law school is still a good value for many graduates, but the reality is that a law school diploma doesn’t guarantee future employment. People applying to law school need to look carefully at the potential cost of a legal education, but in addition, law schools themselves need to explore options—like a two-year degree—that might reduce the cost of tuition."

The days of graduating from law school, hanging a shingle on an office and beginning a new practice, appear nearly gone. Getting an attorney’s job is often cause for relief as well as celebration.

“I receive a lot of legal periodicals and they are chock-full of stories of large firms cutting back and large firms trying to hire students for next-to-nothing, and in some cases actually nothing,” said Madison attorney, Jeff Scott Olson. “My long-time paralegal, Theresa Lenz, just graduated from Marquette in May, and she and I were just overjoyed when she got a job as a field attorney with the National Labor Relations Board in the Baltimore office.”

Wisconsin Law Schools Well-positioned on Jobs Downturn
A black letter law school is a professional training school, emphasizing training, skills, and knowledge of procedures to practice law, and virtually nothing else.

A stripped-down professional training law education, of course, can produce attorneys who are less than the iconic learned counsel who are imbued with a wide array of academic and life knowledge for service in a client-focused practice.

The numbers of law school graduates and new laws schools have ballooned over the past five decades, as noted by J. Gordon Hylton in his July 2012 column in a Marquette University Law School online journal.

Some of the increase is from smaller, black letter law schools whose quality and usefulness to law firms and the public are perceived to vary widely.

The New York University (NYU) School of Law recently announced a "retrofit" of its third-year curriculum in an effort to address the graduates entering the depleted jobs market, as reported by Peter Lattman in the New York Times, which has heavily covered national trends in law and school.

The NYU effort includes an initiative with the objective of implementing a specialization of skills making law grads more attractive to prospective employers.

At the UW law school, some students graduate in 2.5 years, according to a law school assistant Dean, as a costs-savings adaption for law students.

This helps grads deal with depleted jobs market, driving down the salaries recent graduates can make to pay down their student loans.

"All other things being equal, it doesn't make sense for an employer to spend time training a recent graduate if someone with two or three years' experience can be had for the same salary. And in the current market, there are a lot of underemployed 2009 and 2010 graduates champing at the bit for a shot at a decent job,” said recent UW grad, Littrell.

Many jurists speak of their preference not for “black letter” law training emphasizing skills and knowledge of procedures to practice law, but merely more effective professional training.

“One strength of the Marquette curriculum is that we focus on imparting practical lawyering skills and producing graduates who are ready to practice law on day one after graduation. A large number of our graduates start a solo or small firm practice after graduation, and are, in a sense, becoming their own employer,” said Marquette's Prof. Ed Fallone in an e-mail.

Marquette is often said to resemble almost a club—so close are alumni, the law school, and the graduate community. This community comes in handy in the competitive jobs market.

Other types of law schools—policy-oriented and philosophical law schools—are typified by Yale Law School, emphasizing, broadly speaking, philosophical, sociological, historical, and social contract aspects of what law is and how it functions in our society for the people for whose benefit law is implemented to serve.

UW-Law School: A Law-in-Action Approach

From “The Dean’s View”:

The University of Wisconsin approach to legal education has been characterized by what we call ‘law in action.’… Our focus on law in action helps our students think about these issues and learn to be more effective and proactive advocates, counselors and advisers.
The law-in-action approach has a long tradition and Wisconsin has need no of a retrofit.

The UW Law School is immersed in the Wisconsin Idea of serving the greater community of Wisconsin, and the reciprocal benefit of law students effectively serving as second-chair counsel for real people is hailed.

“In your law school experience at the UW, you have the ability to observe federal court, the state Supreme Court, and county courts. And as the center of government (Madison) there are many different opportunities for internships in different agencies so they (law students) get a different look at the law,” said Ismael R. Ozanne, Dane County District Attorney. “As for the [Frank J.] Remington Center (a clinical-professional program), it's truly a hands-on experience. You immerse yourself in the practice of law. The nice thing about the prosecution project and the public defense project, you are actually there getting real world experience that in my judgment truly puts you up ahead up of 90 percent of law schools in the country. The Remington Center is an incredible resource that we may not truly appreciate.”

Ozanne graduated in 1998 from the UW-Law School, and was appointed by Gov. Doyle as District Attorney in 2010. He was elected in November 2012.

Not just DA Ozanne sings the praises of the UW-Madison as law school for its hands-on, clinical-professional programs.

The clinical-professional programs are as much of the law school as the Wisconsin Idea is of the Wisconsin University System.

The UW-Madison Law School's Career Services maintains orientation, recruiting, placement, and job search programs throughout law students' educational training.

UW clinical-professional programs like the Frank J. Remington Center and the Lawyering Skills Program are renowned for providing practical legal training in criminal justice and civil areas of law.

And the Wisconsin Innocence Project (WIP) remains a "nationally recognized clinical legal educational program that investigates and litigates viable claims of innocence on behalf of inmates and seeks to remedy the causes of wrongful conviction."

Other programs, such as the UW-Madison Law School Veterans Law Center also serve the greater community while providing training for the law students.

Dick the Butcher and Lawyers

As the number of lawyer jokes attest, the profession is not necessarily held in the highest regard—that is, until you need a lawyer. Then a well-educated, erudite person who understands the intricacies of the law and can explain them in a concise and meaningful way becomes indispensable.

“The first thing we do, let's kill all the lawyers,” said the Shakespearean character, Dick the Butcher, as he and another discussed imposing a mob-led tyranny upon the populace in a project using uneducated underground political movements glorifying ignorance.

This is a widely misunderstood quote, implying for many that lawyers are the bad guys.

The lawyers are the good guys in Henry VI—learned and ethical—protecting the rule of law, rights and due process in our civil society.

Marquette’s and the UW’s commitment—as part of a liberal arts education—to furthering the study and application of the law in our country remain during this downturn in the legal market.

For many law students, critical study and social commitment will animate their lives as citizens.

Many students of the law are motivated to pursue this course of study so they can affect change in the world and bring about justice for those who do not often have access to it. These students are not motivated by the promises of riches upon graduation.

"I went to law school with the idea of helping people in mind. Whether you are at a public interest practice or a small general practice firm, law is really a career centered on helping the public or clients," said Jenni Dye, the executive director of NARAL Pro-Choice Wisconsin.  "I graduated in 2008, which was when the market was starting to constrict. I was able to get a job, by looking for jobs at small to mid-sized firms, more insulated from the decline in business and real estate felt by some of the larger firms. The trade off was, of course, salary. With a high amount of debt coming out of law school, paying off debt on a lower salary is an uphill battle. I'm able to pay my bills, but it hurts your ability to spend elsewhere. I don't have a car loan or a mortgage, in large part because I'm paying off student debt."

Right now, law schools teach you 'the law', but often not the practical skills needed to be successful as an attorney. I was fortunate to take the Lawyering Skills course headed by Ralph Cagle and Gretchen Viney at UW Law, and that gave me valuable skills and insight into how to actually put my legal knowledge into practice. UW offers clinical experience, too, but those are not a requirement for graduation. Movement towards more practice-based training would benefit both students and potential employers, as they would not have to invest as much time and energy into providing that practical training on the job."

Dye, Littrell, and Wisconsin's law-in-action approach appear to be good bets in any market.

It may be equally gratifying to our future jurists if making a living practicing as attorneys is a predictable outcome of graduating from law school in a saturated jobs market.

Jan 28, 2010

Ellsberg on Howard Zinn

A Memory of Howard
Jan 27, 2010
By Daniel Ellsberg

I just learned that my friend Howard Zinn died today. Earlier this morning, I was being interviewed by the Boston Phoenix, in connection with the February release of a documentary in which he is featured prominently. The interviewer asked me who my own heroes were, and I had no hesitation in answering, first, “Howard Zinn.”

Just weeks ago, after watching the film, I woke up thinking that I had never told him how much he meant to me. For once in my life, I acted on that thought in a timely way. I sent him an e-mail in which I said, among other things, what I had often told others: that he was, “in my opinion, the best human being I’ve ever known. The best example of what a human can be, and can do with their life.”

Our first meeting was at Faneuil Hall in Boston in early 1971, where we both spoke against the indictments of Eqbal Ahmad and Phil Berrigan for “conspiring to kidnap Henry Kissinger.” We marched with the rest of the crowd to make citizens’ arrests at the Boston office of the FBI.

Later that spring, we went with our affinity group (including Noam Chomsky, Cindy Fredericks, Marilyn Young, Mark Ptashne, Zelda Gamson, Fred Branfman and Mitch Goodman), to the May Day actions blocking traffic in Washington (“If they won’t stop the war, we’ll stop the government”). Howard tells that story in the film, and I tell it at greater length in my memoir, “Secrets: A Memoir of Vietnam and the Pentagon Papers.”

But for reasons of space, I had to cut out the next section in which Howard—who had been arrested in D.C. after most of the rest of us had gone elsewhere—came back to Boston for a rally and a blockade of the Federal Building. I’ve never published that story, so here it is, an outtake from my manuscript:

A day later, Howard Zinn was the last speaker at a large rally in Boston Common. I was at the back of a huge crowd, listening to him over loudspeakers. Twenty-seven years later, I can remember some of what he said. “On May Day in Washington, thousands of us were arrested for disturbing the peace. But there is no peace. We were really arrested because we were disturbing the war.”

He said, “If Thomas Jefferson and Alexander Hamilton had been walking the streets of Georgetown yesterday, they would have been arrested. Arrested for being young.”

At the end of his comments, he said: “I want to speak now to some of the members of this audience, the plainclothes policemen among us, the military intelligence agents who are assigned to do surveillance. You are taking the part of secret police, spying on your fellow Americans. You should not be doing what you are doing. You should rethink it, and stop. You do not have to carry out orders that go against the grain of what it means to be an American.”

Those last weren’t his exact words, but that was the spirit of them. He was to pay for that comment the next day, when we were sitting side by side in a blockade of the Federal Building in Boston. We had a circle of people all the way around the building, shoulder to shoulder, so no one could get in or out except by stepping over us. Behind us were crowds of people with posters who were supporting us but who hadn’t chosen to risk arrest. In front of us, keeping us from getting any closer to the main entrance to the building, was a line of policemen, with a large formation of police behind them. All the police had large plastic masks tilted back on their heads and they were carrying long black clubs, about four feet long, like large baseball bats. Later the lawyers told us that city police regulations outlawed the use of batons that long.

But at first the relations with the police were almost friendly. We sat down impudently at the very feet of the policemen who were guarding the entrance, filling in the line that disappeared around the sides until someone came from the rear of the building and announced over a bullhorn, “The blockade is complete. We’ve surrounded the building!” There was a cheer from the crowd behind us, and more people joined us in sitting until the circle was two or three deep.
We expected them to start arresting us, but for a while the police did nothing. They could have manhandled a passage through the line and kept it open for employees to go in or out, but for some reason they didn’t. We thought maybe they really sympathized with our protest, and this was their way of joining in. As the morning wore on, people took apples and crackers and bottles of water out of their pockets and packs and shared them around, and they always offered some to the police standing in front of us. The police always refused, but they seemed to appreciate the offer.

Then one of the officers came over to Howard and said, “You’re Professor Zinn, aren’t you?” Howard said yes, and the officer reached down and shook his hand enthusiastically. He said, “I heard you lecture at the Police Academy. A lot of us here did. That was a wonderful lecture.” Howard had been asked to speak to them about the role of dissent and civil disobedience in American history. Several other policemen came over to pay their respects to Howard and thank him for his lecture. The mood seemed quite a bit different from Washington.

Then a line of employees emerged from the building, wearing coats and ties or dresses. Their arms were raised and they were holding cards in their raised hands. As they circled past us, they held out the cards so we could see what they were: ID cards, showing they were federal employees. They were making the peace sign with their other hands, they were circling around the building to show solidarity with what we were doing. Their spokesman said over a bullhorn, “We want this war to be over, too! Thank you for what you are doing! Keep it up.”

Photographers, including police, were scrambling to take pictures of them, and some of them held up their ID cards so they would get in the picture. It was the high point of the day.
A little while after the employees had gone back inside the building, there was a sudden shift in the mood of the police. An order had been passed. The bloc of police in the center of the square got into tight formation and lowered their plastic helmets. The police standing right in front of us, over us, straightened up, adjusted their uniforms and lowered their masks. Apparently the time had come to start arrests. The supporters who didn’t want to be arrested fell back.

But there was no arrest warning. There was a whistle, and the line of police began inching forward, black batons raised upright. They were going to walk through us or over us, push us back. The man in front of us, who had been talking to Howard about his lecture a little earlier, muttered to us under his breath, “Leave! Now! Quick, get up.” He was warning, not menacing us.

Howard and I looked at each other. We’d come expecting to get arrested. It didn’t seem right to just get up and move because someone told us to, without arresting us. We stayed where we were. No one else left either. Boots were touching our shoes. The voice over our heads whispered intensely, “Move! Please. For God’s sake, move!” Knees in uniform pressed our knees. I saw a club coming down. I put my hands over my head, fists clenched, and a four-foot baton hit my wrist, hard. Another one hit my shoulder.

I rolled over, keeping my arms over my head, got up and moved back a few yards. Howard was being hauled off by several policemen. One had Howard’s arms pinned behind him, another had jerked his head back by the hair. Someone had ripped his shirt in two, there was blood on his bare chest. A moment before he had been sitting next to me, and I waited for someone to do the same to me, but no one did. I didn’t see anyone else getting arrested. But no one was sitting anymore, the line had been broken, disintegrated. Those who had been sitting hadn’t moved very far, they were standing like me a few yards back, looking around, holding themselves where they’d been clubbed. The police had stopped moving. They stood in a line, helmets still down, slapping their batons against their hands. Their adrenaline was still up, but they were standing in place.

Blood was running down my hand, covering the back of my hand. I was wearing a heavy watch, and it had taken the force of the blow. The baton had smashed the crystal and driven pieces of glass into my wrist. Blood was dripping off my fingers. Someone gave me a handkerchief to wrap around my wrist and told me to raise my arm. The handkerchief got soaked quickly and blood was running down my arm while I looked for a first-aid station that was supposed to be at the back of the crowd, in a corner of the square. I finally found it, and someone picked the glass out of my arm and put a thick bandage around it.

I went back to the protest. My shoulder was aching. The police were standing where they had stopped, and the blockade had reformed, people were sitting 10 yards back from where they had been before. There seemed to be more people sitting, not fewer. Many of the supporters had joined in. But it was quiet. No one was speaking loudly, no laughing. People were waiting for the police to move forward again. They weren’t expecting any longer to get arrested.

Only three or four people had been picked out of the line to be arrested before. The police had made a decision (it turned out) to arrest only the “leaders,” not to give us the publicity of arrests and trials. Howard hadn’t been an organizer of this action, he was just participating like the rest of us, but from the way they treated him when they pulled him out of the line, his comments directly to the police in the rally the day before must have rubbed someone the wrong way.

I found Roz Zinn, Howard’s wife, sitting in the line on the side at right angles to where Howard and I had been before. I sat down between her and their housemate, a woman her age. They had been in support before until they had seen what happened to Howard.

Looking at the police in formation, with their uniforms and clubs, guns on their hips, I felt naked. I knew that it was an illusion in combat to think you were protected because you were carrying a weapon, but it was an illusion that worked. For the first time, I was very conscious of being unarmed. At last, in my own country, I understood what a Vietnamese villager must have felt at what the Marines called a “county fair,” when the Marines rounded up everyone they could find in a hamlet—all women, children and old people never draft- or VC-age young men—to be questioned one at a time in a tent, meanwhile passing out candy to the kids and giving vaccinations. Winning hearts and minds, trying to recruit informers. No one among the villagers knowing what the soldiers, in their combat gear, would do next, or which of them might be detained.

We sat and talked and waited for the police to come again. They lowered their helmets and formed up. The two women I was with were both older than I was. I moved my body in front of them, to take the first blows. I felt a hand on my elbow. “Excuse me, I was sitting there,” the woman who shared the Zinns’ house said to me, with a cold look. She hadn’t come there that day and sat down, she told me later, to be protected by me. I apologized and scrambled back, behind them.

No one moved. The police didn’t move, either. They stood in formation facing us, plastic masks over their faces, for quite a while. But they didn’t come forward again. They had kept open a passage in front for the employees inside to leave after 5, and eventually the police left, and we left.
* * *
There was a happier story to tell, slightly more than one month later. On Saturday night, June 12, 1971, we had a date with Howard and Roz to see “Butch Cassidy and the Sundance Kid” in Harvard Square. But that morning I learned from someone at The New York Times that—without having alerted me—The Times was about to start publishing the top secret documents I had given them that evening. That meant I might get a visit from the FBI at any moment; and for once, I had copies of the papers in my apartment, because I planned to send them to Sen. Mike Gravel for his filibuster against the draft.
From “Secrets” (p. 386):

“I had to get the documents out of our apartment. I called the Zinns, who had been planning to come by our apartment later to join us for the movie, and asked if we could come by their place in Newton [Mass.] instead. I took the papers in a box in the trunk of our car. They weren’t the ideal people to avoid attracting the attention of the FBI. Howard had been in charge of managing antiwar activist Daniel Berrigan’s movements underground while he was eluding the FBI for months (so from that practical point of view he was an ideal person to hide something from them), and it could be assumed that his phone was tapped, even if he wasn’t under regular surveillance. However, I didn’t know whom else to turn to that Saturday afternoon. Anyway, I had given Howard a large section of the study already, to read as a historian; he’d kept it in his office at Boston University. As I expected, they said yes immediately. Howard helped me bring up the box from the car.

“We drove back to Harvard Square for the movie. The Zinns had never seen ‘Butch Cassidy’ before. It held up for all of us. Afterward we bought ice-cream cones at Brigham’s and went back to our apartment. Finally Howard and Roz went home before it was time for the early edition of the Sunday New York Times to arrive at the subway kiosk below the square. Around midnight Patricia and I went over to the square and bought a couple of copies. We came up the stairs into Harvard Square reading the front page, with the three-column story about the secret archive, feeling very good.”

- Daniel Ellsberg is a lecturer, writer and activist and the former American military analyst employed by the RAND Corporation who, in 1971, released the Pentagon Papers to The New York Times.

Aug 6, 2009

77 Percent of GOP Sens Committed Against Sotomayor

Update: For Puerto Ricans, Sotomayor's Success Stirs Pride

With Judge Sonia Sotomayor poised to be confirmed as Supreme Court Justice, the Republican Party did not disappoint its political opponents expecting it to overwhelmingly oppose confirming the first Latina on the high court.

Of the 40 GOP senators, 31 have committed to opposing Sotomayor. That's 77 percent. The White Party remains true to its ultimately destructive and contemptible form.

Nationally, the Southern Strategy is still employed, it just does not work as well in a changing America.

Sotomayor is a wise Latina judge, and the White Party remains mostly foolish, oblivious or hostile to the concerns of brown and black America.

Apr 27, 2009

Brennan Center Grades Obama: Mixed

The Brennan Center for Justice has issued a report card on the Obama's administration first 100 days. In sum, the administration's grades are decidedly mixed.

The Brennan Center for Justice at New York University School of Law is a non-partisan public policy and law institute that focuses on fundamental issues of democracy and justice. Our work ranges from voting rights to redistricting reform, from access to the courts to presidential power in the fight against terrorism.

Apr 20, 2009

There They Go Again

Republicans and their legal allies are asking the U.S. Supreme Court to end forcing "states and localities with a history of discrimination to submit changes in their voting process and procedures to Department of Justice or a federal D.C. district court for approval (preclearance)" in Northwest Austin (Texas) Municipal Utility District Number One v. Holder, a potentially landmark case specifically challenging Section 5 of the Voting Rights Act of 1965 and its 2006 congressional reauthorization signed into law by president Bush.

It's not that Republicans dislike black people. It's just that the political operatives don't like the way black people vote, though civil rights advocates don't see the distinction very well. [Graphic above is from Charles Franklin at]

But wrong voting is why Wisconsin Attorney General J.B. Van Hollen (John McCain 2008 co-chair) and the GOP's voter obstruction program last year was directed at black people. [The GOP takes what it can get. See Suppressing the Vote in Florida for a new vote-suppression tactic, and Van Hollen's 2008 case in which the GOP struck out.]

Those discrete American minorities—like black people—don't they realize that racism is a relic from time gone by, and has been since Reconstruction? Affirmative action, civil rights, voting rights legislation, c'mon we don't need that stuff anymore.

I mean Obama won some 43 percent of the white vote nationwide; okay, so Mississippi, Alabama and Louisiana white voters went for Obama in the low teens', but they love black people down there. Just ask Alabama Gov. Bob Riley (Republican) whose amicus brief objects to his state being included in the 2006 congressional reauthorization: "By renewing Alabama’s coverage in 2006, Congress wrongly equated Alabama’s modern government, and its people, with their Jim Crow ancestors."

[Speaking of history, the Voting Rights Act of 1965 was passed with the help of northern Republicans and here's one northern Republican who is carrying on that tradition: Rep. James Sensenbrenner who represents a Milwaukee-area district. See Voting Rights Act has passionate, strong advocate in Sensenbrenner (Diana Marrero, Milwaukee Journal-Sentinel). Kudos to Sensenbrenner.]

The usual suspects, uppity-black-civil rights organizations like the NAACP and the Leadership Conference on Civil Rights , liberals like the the Brennan Center and the Obama administration are trying to convince us that racism still exists in America, that we still need the Voting Rights Act.

Orals are on April 29, and a five-four decision either way looks possible, though the case could be decided on a question of Congressional authority with votes scattered about.

Perhaps we can take solace in 2012: General Petraeus, please save us from this socialist black man!
Covered jurisdictions under the Fannie Lou Hamer, Rosa Parks and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 are as follows (from the NAACP):

Section 5 applies to any state or county where a literacy test was used as of November 1, 1964, and where less than 50% of the voting age residents of the jurisdiction were registered to vote, or actually voted, in the presidential election of 1964, 1968, or 1972. Currently, Section 5 affects all or part of 16 states: All of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, and Texas. Most of Virginia, 4 counties in California, 5 counties in Florida, 2 townships in Michigan, 10 towns in New Hampshire, 3 counties in New York, 40 counties in North Carolina, and three counties in South Dakota.

Apr 15, 2009

Highlanders Should Win in Liability Case

"Sued for living on a hill," said attorney Patricia (Patti) J. Epstein this afternoon in oral argument before the Wisconsin Supreme Court.

Suppose you live in a house uphill from another house downhill.

Subsequently, the City installs curbs, gutters and a sub-division around the downhill house.

Then the downhill house (the plaintiff) sues the uphill house's current and previous owner (and the City, Dodgeville) (the defendants) claiming damages sustained from water flow (a damaging nuisance) though the uphill homeowner did nothing to alter their property.

Summary judgement for the defendants, right? Correct. That's the ruling in the circuit court in August 2006.

This case, Glen D. Hocking v. City of Dodgeville, et al was argued before Wisconsin Supreme Court today to clarify a question of liability in such situations.

By the way, if you have not visited the WisconsinEye site, you ought to, it's amazing. True democracy; the video of the oral arguments is already on the web.

Look for a victory for the defendants here.

One knows that skeptical-sounding questions asked of the plaintiff do not necessarily imply hostility but it sure sounded that way. Justices Roggensack, Bradley, Abrahamson and Gableman all seemed hostile to the plaintiff's arguments that the uphill homeowner is negligent. Justice Crooks was absent, having recused himself.

Plaintiff Hocking did nothing resembling a self-help action out of concern for water flowing downhill to his home, such as installing berms and so on, and the uphill homeowner (defendant) did nothing to alter their property to cause water flow. But that doesn't matter, the plaintiff says, defendants have a duty anyway to stop the water flow.

So if the uphill owner has a duty to know about and abate the nuisance that he did not create (by a standard of reasonable diligence), the standard ought to apply and hold for the downhill owner, right? [Some attorneys feel that case law could conceivably support an absurd result that an uphill owner is in fact liable for water flowing downhill, which is why the case is being heard by the Supreme Court.]

Likely, but anyway the defendant didn't do anything wrong, was not negligent, did nothing unreasonable, did nothing intentionally harmful and so is not liable. That's my lay opinion.

And this is a case all Supreme Court justices might just agree on and it will be a victory for the protection of innocent homeowners, and specifically the highlanders living on hills.