|
 |
Saturday, August 06, 2005
"BECOMING JUSTICE BLACKMUN" BY LINDA GREENHOUSE
Reviewed by Harold Reynolds
Becoming Justice Blackmun
By Linda Greenhouse
Henry Holt and Company, New York, N.Y. 268 pages $25
In June, 1970, President Nixon appointed Harry Blackmun to the Supreme Court having been assured by Chief Justice Burger of Blackmun’s strict constructionist credentials. Independently of his right wing glow, Blackmun had had the foresight to attend kindergarten, Sunday school, and grammar school with Burger, capping it with Blackmun’s role as best man at Burger’s wedding. It mattered little in any case. The Court had become "the apotheosis of mediocrity", a condition assured by the politicization of the appointing and confirmation process (Bernard Schwartz, Decision:How the Supreme Court Decides Cases, 256 (1996)).
Linda Greenhouse, the New York Times’ Supreme Court reporter, after having trawled the 530,800 papers that Blackmun gave to the Library of Congress, among which he thoughtfully included his honeymoon receipts, has written Becoming Justice Blackmun. In prose of the finest style, she sketches in her initial pages the essentials of Blackmun’s persona - a small man arisen out of a family of modest means, himself restive, insular, religious, intense, painstaking, melancholic, a worldclass note writer and chronic list keeper destined to become the slowest worker on the bench, a risk avoider, honest and sensitive to slights made or imagined - she takes these facts and, illuminating them through the scrim of Blackmun’s twenty-four years on the Court, produces the illusion of a life created, a penetration of a personality, all of which she would not have done but for Blackmun’s writing of the Court’s opinion in Roe v. Wade, 410 U.S. 113 (1973).
In January, 1973, the Court decided Roe upon Blackmun’s lengthy opinion holding that a Texas statute that criminalized abortion, except in the case of the saving of the mother’s life, violated a woman’s right to abortion assured to her by her right to privacy under the Due Process Clause of the Fourteenth Amendment. The right to abortion was "fundamental" and could be regulated only on the basis of a "compelling" state interest. The abortion decision during the first trimester was left to the mother and her physician. In the subsequent stage of the pregnancy, the state was allowed to regulate the abortion procedure in order to promote the health of the mother. After viability, the state could regulate and even proscribe abortion, except to preserve the life or health of the mother.
Several months after Roe, John Hart Ely, gifted scholar and pro-abortionist, published his famous article, The Wages of Crying Wolf: A Comment on Roe v. Wade (82 Yale L.J. 920 (1973)) in which he eviscerated Blackmun’s reasoning to the satisfaction of virtually the entire pro-abortion academic world. In sum, Ely stated that "Roe lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine."
Roe, though broadsided in the elite legal world, nevertheless became the most controversial Supreme Court case of the last century. It changed the last thirty years of American life and politics. By drawing lines at trimesters and viability it acted like a legislature. Ironically, Blackmun, though but one of a majority of seven, was instantly and until his death in 1999 beatified by the pro-choice camp and vilified, cursed, picketed, and denounced by the pro-life movement. Few knew that, in his first draft opinion, Blackmun had nearly led the Court into a blunder by declaring the Texas statute unconstitutional for vagueness, having sidestepped the Court’s opinion in United States v. Uvitch that upheld an essentially similar District of Columbia statute against a claim of vagueness. In that first draft, Blackmun struck down the Texas statute not because it violated a woman’s right to abortion but because the statute’s meaning was vague and hence exposed physicians to criminal prosecutions. Upon seeing his error, he withdrew vagueness as a ground and there then ensued exchanges among the bench that provide entertainment for lawyers who relish watching the drama,
chess moves, shadow boxing, political conniving and theory shopping that are sometimes hidden behind the assembling of a judicial construct bound to set off a
national political and social explosion. In his second draft, Blackmun substantially wrote the Roe opinion as we have it, an opinion that seemed, at times, a cut and paste job more concerned with protecting physicians performing abortions than with women undergoing them.
As in war, so in law. If you can’t kill, maim. Over the hedge came Missouri in a failed, bizarre attempt to require a husband’s consent for an abortion except when necessary to save his wife’s life. Then a trio of high minded cases succeeded in upholding a state’s decision not to finance abortions for poor women. Ohio hopped aboard requiring grown women to make multiple trips to clinics or physicians’ offices there to enjoy informed consent procedures in which their doctors were compelled to show them pictures of fetuses in various stages of development. The husband whose consent was not required? Now he had to be notified before an abortion could take place, presumably to cheer his wife on. Denial of federal funding, except for life saving abortions, was held constitutional. If federal money was used, family planning clinics were barred from counselling patients on abortion. Missouri successfully barred abortion in public facilities and required public employees to perform extensive prenatal testing for viability. Notice to a teenager’s parent who did not have veto power was upheld, but a statute requiring notice to two parents was struck. Finally, when Roe in Planned Parenthood v. Casey, 505 U.S. 833 (1992) had a near death experience, abortion was held no longer a right to privacy but a liberty protected by the Fourteenth Amendment. Gone was the strict scrutiny of abortion regulations now made reviewable by an "undue burden" standard. Gone was Roe’s rigid trimester scheme, an unwise incursion in any event by Roe into science. Forbidden were spousal notices, but justified were informed consent, waiting period and, for teenagers, one-parent consent requirements, the latter tied to judicial bypass procedures.
Unfortunately, Ms Greenhouse does not report the startling fact, learned by this reviewer, that within forty-eight hours after Casey was decided, John Hart Ely, who famously flayed Roe as constitutionally indefensible, supra, sent off a letter to Justices Kennedy, O’Connor, and Souter heartily congratulating them for refusing to overrule Roe. Ely wrote that "society has indeed built up expectations on the basis of [Roe], particularly as regards the aspirations of women. And falling into a pattern whereby presidents appoint justices with the essential promise that they will overrule particular cases, and then having them dutifully proceed to do so, would weaken the Court’s authority immeasurably". Ely, On Constitutional Ground, 304 (1996).
Though Roe is the center of her book, Ms Greenhouse skillfully describes the sad deterioration of the once intimate friendship between Blackmun and Burger; Blackmun’s striking out at the death penalty ("From this day forward, I no longer shall tinker with the machinery of death."); and the beginning of the development in his thinking, triggered by sex discrimination cases, of a central core of women’s rights in which Roe is an essential but not exclusive right. It was not until I read her book that I saw and felt in a pointedly human way the dilemma of women in their struggle for their identity as persons and their equality as citizens. The mind numbing journalese that for long had glossed news reports about women’s rights, the repetitive photo and television shots of women in protest, all of our insensibility to their suffering, was stirred up by this book whose singular literary character justifies Ms Greenhouse for consideration for a Pulitzer Prize. She received one in 1998, but it is not written that one cannot have two.
Posted at 10:10 pm by chekhov
Sunday, May 01, 2005
SCARSDALE DOGS DROP 253,310 LOADS A YEAR
Published: Scarsdale Inquirer April 29, 2005
Dogs can help finance school wing replacement
To the Editor:
As of September, 2004, there were 694 registered dogs in Scarsdale.
Every day, 694 guilty looking men and women leave their homes with 694 gaily expectant dogs who trot to nearby, favoured roads where they drop their loads. Thereupon 694 refreshed looking men and women fly back to their home bases which are never located near the dumping sites. By an intuited calculus, the principle of dumping on someone else's road is executed peacefully every day, a not inconsiderable feat when one realises that 694 dogs, at the end of each calendar year, have dropped 253, 310 loads or, rounded out, more than one-quarter million dumps. No one doubts the sacred value of the power of a Scarsadale dog owner to have his Rex or Mimi dump daily in the village . It is a power more immediately meaningful to him than any of his civil liberties he so infrequently uses.
I own a German Shepherd dog. She is a hearty eater, probably better fed than the average commuting adult Scarsdale male. I pay $12 a year for the license granted me to possess that dog in Scarsdale. I would be willing to pay $100 a year for that dog license and its implicit dumping rights, on condition that the excess sum of $88 be used to replace, and not to repair, the conditions that exist at the Quaker Ridge school. 694 dumping dogs times $88 for 20 years is the sum of $1, 221,440 which when discounted amounts to a lesser sum but one that certainly reduces to an insignificant amount the $900 thousand difference between the $12.6 million cost for the repair option and the $13.5 million cost for the superior replacement option. All that is required of the Village is that it rake in, so to speak, the money from the dogs. We will thus avoid, among other things, the repellant use of portable classrooms, to say nothing of the estimated security cost of $100 thousand if those portable classrooms are used under the repair option. Surely, no one favours compelling grade school children to spend their early years in portable classrooms. Indeed, if I were considering the purchase of a Scarsdale home, and learned of the use of those portable classrooms near the edge of an interstate highway system, I wouldn't stop my car to look at Scarsdale. I would wonder why Scarsdale had to go to the dogs in order to fix a modest tax increase spread over 20 years for just one of its grammar schools. I wouldn't want my children or my dog in that district.
Harry Reynolds
April 21, 2005
Posted at 06:18 pm by chekhov
Sunday, April 03, 2005
NEW YORK STATE PUNISHES FAMILIES OF STATE PRISONERS
ATTORNEY GENERAL SPITZER WHERE ARE YOU?
New York State Punishes Families of State Prisoners
I am a member of the New York State Association of Criminal Defense Lawyers.
Inmates of state prisons in New York may make only collect telephone calls. It is a privilege much valued by families and prisoners alike. These families are poor. Many scrape and save to pay monthly phone bills, some of hundreds of dollars, in order to speak to a son, a husband, a father, or a wife or daughter, who are in distant prisons.
I have been informed by the Center for Constitutional Rights that a contract between MCI and the New York State Department of Correctional Services imposes a grossly immoral burden on the mothers, fathers, wives and children of prisoners by charging outrageous rates for collect calls from prison. The Center for Constitutional Rights states that, on average, these phone rates are 630% above the price of a regular phone call, that the New York State Department of Correctional Services receives 57.5% of the profits, and that the Department of Correctional services has thus received over $175 million since 1996.
It is a grave moral offense to make families of prisoners suffer in this way.
If these facts are true, the Attorney General should inquire into how it is that a contract immoral on its face was entered into by the Department of Correctional Services.
HARRY REYNOLDS
Posted at 02:12 pm by chekhov
Friday, January 28, 2005
HIS EXCELLENCY:GEORGE WASHINGTON, BY JOSEPH J. ELLIS
Reviewed by Harold Reynolds
His Excellency: George Washington
By Joseph J. Ellis, Alfred A. Knopf, New York, 320 pages, $26.95
In May, 1754, the twenty-two year old George Washington, leading a party of forty, together with warriors led by Seneca chief Half-King, attacked French soldiers in the Ohio Country. As their wounded commander, Jumonville, tried in French to explain that he was on a peace mission, Half-King, fluent in French but favoring brevity, with one blow hatcheted the Frenchman’s skull in two, pulled out his brain and washed his hands in it, shocking Washington. There followed in July a bloody battle at Fort Necessity where the French and Indians, led by the brother of Jumonville, administered a world class beating to Washington. In his formal surrender, Washington admitted responsibility for the assassination of Jumonville, thus triggering the French and Indian War.
In 1755, Washington, as aide to General Braddock, saw nine hundred British and Americans savagely killed by the French and Indians. Braddock, hastily buried by Washington, had warred against the Indians as if he were in the suburbs of Paris. Upon returning from the battle, Washington became "the hero of Monongahela" for rallying the survivors in retreat.
Several years followed in which Washington created an elite colonial unit having the discipline of British regulars and the proficiency of Indian warriors. His discipline was simple: he hanged deserters and gave up to a thousand strokes to the drunk and the lewd. At twenty-six, he fell in love with Sally Fairfax but married instead Martha Custis, Virginia’s wealthiest widow, who at twenty-seven had eighteen thousand acres that Sally didn’t have, a decision that should warm the heart of any managing partner. The acreage positioned Washington at the top of Viginia’s planter class. For his soldiering, he received royal land grants that at his death would constitute the core of his great wealth.
Little is known about Washington’s youth. His father died when Washington was eleven. His mother, from whom in later life he was estranged, never praised him. Unfortunately, she lived into his second term as President, publicly deriding and harrassing him. James Thomas Flexner, Washington’s distinguished historian, thought her a shrew. Washington, with only the equivalent of a grammar school education, always felt inferior to those who had managed college degrees . As a young man, he was six feet three, one hundred seventy-five pounds, athletically built, and had gray, blue eyes. He was emotionally restrained and mentally enigmatic. Those who knew him noted the imperial effect of his height and silence. He was markedly fearless, had great integrity, and was profoundly ambitious. Obsessive about his property, he thought slavery wrong, but not wrong enough to move him in life to free his slaves. He was not an intellectual, and he was not religious, fixing his eye more to the earth than to the heavens.
Angered in 1774 by Britain’s punitive reaction to the Boston Tea Party, Washington, at forty-three, found himself in 1775 commander in chief of the Continental Army, sitting in a custom made chariot, escorted into Philadelphia by five hundred horsemen, and addressed as "His Excellency". If he failed, he would hang and his extensive property would be confiscated. He could not have foreseen the embattled dead at Long Island, Fort Washington, Trenton, Princeton, Brandywine Germantown, and Saratoga; his depleted army, one-third shoeless, at Valley Forge, the snow red with the bloody feet of his men; the Continental Congress, useless as teats on a bull, without power to supply men or money; the hanging of unpaid soldiers in mutiny; soldiers eating their horses; the pillaging of farmers by starving soldiers; a hell sustained by his steel will.
Yet, at Valley Forge the war turned. The bread we eat in freedom was earned there by poor immigrants, fifteen to twenty-five years old, recently arrived from Ireland and England, identured servants, former slaves, the landless, the castoffs, who, in their long hair, laughed as they decorated their uniforms with feathers and furs. They were so poor they didn’t have betweem them the price of the shovel that would bury them.
The unknown god of perfect conjunctions suddenly appeared in October, 1781, when Cornwallis was marooned in Yorktown, Virginia. With the essential help of the French fleet and French army engineers, Washington, after six years of hell, delivered a blow so decisive that he didn’t realize at the time that the war was over. In 1783, the peace treaty having been signed, he dismissed offers of a kingship, surrendered his commission, and rode off in what Ellis, in his Pulitzer worthy book, wittily describes as "the greatest exit in American history".
Unfortunately for Washington, he rode back. He chaired the constitutional convention and unanimously was selected president, not for his mind but for what he was in the public mind. No longer in the field, he was not prepared for the slophouse of politics where the hypocrite, the devious, the envious, the greedy, and the intellectually pretentious constantly dine. In the struggle between Federalists and Republicans, he suffered reports that he was senile, naturally slow in mind, a dupe in a Federalist conspiracy, a British bribe taker, and a puppet of Hamilton. Jefferson dismayed him by secretly paying newspapers to libel him. In the rage over the Jay Treaty, he observed, in ear shot of shouted threats and insults, the principle of avoiding foreign alliances in the absence of the nation’s selfinterest.
The unyielding political strife drove the retired Washington into the great blunders of his life. He endorsed the idea of a provisional army in order to crush a perceived threat of Republican subversion and he gave his blessing to the infamous Alien and Sedition Acts.
Hamilton, Adams, Jefferson, Madison, and Franklin, all agreed that Washington was by far their superior. If so, it was because there was conjoined in him an ordinary man and an iron willed leader who had marched into the mouth of hell with a ragbag army and then out of it with a nation. Who among them could have led those poor, young men whose bloody footprints were in the snow at Valley Forge?
[Wordcount 999]
Posted at 06:47 pm by chekhov
SCARSDALE INQUIRER JANUARY 28, 2005
Letter to the Editor
Let’s come out for Bush, but with strength! Let’s come out for war, not mealy mouth pre-emptive war, but true, straight forward war in the name of virtuous democracy. Let’s have a "War Party" with litle kids at rallies calling out for war while going back and forth on their scooters. Let’s write a war song and sing it in churches, hum it in museums, whistle it in men’s and ladies’ rooms, and show it in movies for the sad eyed mom and pop audiences as they wait, at reduced prices, for their 90 minutes of relief from the news.
Let’s get down to it! Let’s have war clothing for everyday wear. Let’s have war hair cuts for the women and the men. Let’s have war babies! We had those babies in World War II, fattened them, and used them in the Vietnam War. Let’s put a G.I. helmet on Jesus. How can we lose? The President tells us that he is a "messenger of God’s will". We can’t lose with a connection like that. If we really believe in Jesus, let’s kill for Jesus, and shout his name in glory as we do it.
Harry Reynolds
Posted at 06:36 pm by chekhov
Monday, January 17, 2005
Pataki New York's Executioner Journal News 12-23-04
Posted at 03:13 pm by chekhov
AMERICAN MAFIA REVIEWED BY HARRY REYNOLDS
REVIEWED BY HARRY REYNOLDS
AMERICAN MAFIA
Thomas Repppetto, Henry Holt and Company, New York, N.Y. 318 pages $26
There was a time when a working man heavy with dinner could sit in his cold water flat and savor his evening paper’s reports of criminals like Kit Burns, given to biting off the heads of live rats, or Monk Eastman, leader of a gang of twelve hundred, to say nothing of misunderstood fraternal associations like the Gophers, Dead Rabbits, Bowery Boys, and the Five Pointers. That time is long gone. We live in the age of the dull criminal, twin to the dull politician. In this dark period, we have only the occasional book by a boring writer about boring bumblers who have managed, from the viewpoint of the bored working man, to bring crime into disrepute. Today, criminal defendants look like accountants.
Thomas Reppetto’s American Mafia, however, is not such a book, nor are the criminals in it the slack jawed specimens in yesterday’s Daily News. His fact-driven narrative, written in a gentlemanly prose, detached, sometimes whimsical, quietly intellectual, always temperate, never judgmental, is pitched to that tension that draws the hand to turn the page. The book, notwithstanding its perhaps sardonic title, proves that there was no Sicilian based Mafia in this country, except the one created by potbellied reporters who, lacking style, dug into the deep pockets of fiction.
Reppetto’s book opens in October, 1890 in New Orleans with the sound of a shotgun blast that kills the police chief as he reaches home. His dying words are,"The dagos did it", a foreshadowing of the chapters that follow. Mayor Joseph Shakespeare orders the arrest of every Italian in sight. After a jury acquits six and disagrees as to three, a crowd of 6,000 attacks the jail and murders eight of the defendants. The New York Times deplores the event but can find no one who "deplored it very much". Today, the Times would give its entire thirty pound Sunday issue to the attack.
Turning north, Reppetto begins his central theme, the alliance of criminals with corrupt politicians, judges, prosecutors, and police. In detail, he renders the reign of the Morello clan, the protection by Tammany’s Big Tim Sullivan of the Jewish gang led by Monk Eastman and the hundreds of thugs led by Paul "Kelly" (née Vaccarelli). He describes Detective Giuseppe Petrosino, a squat, solitary figure, given to playing the violin in his small tenement room, the pursuer of Italian criminals who prey upon their own. He is sent to Italy on a suicide mission to investigate the backgrounds of Italian criminals in America, and is shot to death in Palermo. He lays in state in St Patrick where 250,000 attend his funeral.
As New York descends into criminal control, Chicago dives head first into overwhelming crime and official corruption. Prostitution there was so open that its master pimp, Calabria born "Diamond Jim" Colosimo, oversaw about 200 cathouses,one named "Everleigh". Reppetto makes Sodom and Gomorrah look like adjoining convents compared to Chicago. It was as nothing for Anthony D’Andrea, a savage, defrocked Sicilian priest, to set out directly for Chicago to engage in counterfeiting and prostitution. It was there that Johnny Torrio actually organized crime. It was Torrio who, by way of a favor to Brooklyn’s Frankie Yale, gave a job to a fat face, thick lipped twenty-two year old from Brooklyn, Al Capone, who had hot footed it out of New York where Irish gangsters wanted to give him something. It was Torrio who arranged for Yale to shoot poor, big hearted Colosimo in whose funeral judges and politicians, snapping their fingers at public criticism, marched in mourning for the loss of their pimp.
Meanwhile, crime was doing its usual tango in New York. Partners change, but the music is constant. Police lieutenant Charles Becker waved goodbye from the electric chair for murdering an informer of police payoffs. A police commissioner was fired. Reform administrations appeared in New York and Albany. Tammany’s Big Tim Sullivan became insane, escaped his keeper, and was found dead under a train. Tom Foley, allied with Arnold Rothstein, overseer of bootlegging, drugs, and bookmaking, was annointed Tammany’s overlord of organized crime. The Sicilians (Manhattan) battled with the Camorra ( Brooklyn). Politicians ran the criminal justice system in the service of crime. All this during Prohibition, that deranged legislative act that would corrupt not persons but an entire society. In Chicago, the city administration made Johnny Torrio the controller of bootlegging, and controlled it was: between 1919 and 1934 there were 765 gangland murders. Capone’s gunmen patrolled Cicero’s polling places and seized that town and its election. A bullet turned out Arnold Rothstein’s lights in 1928, but by the 1930's Chicago and New York gangsters had put together a national syndicate. The daunting stench of crime caused a United States senator to ask President Hoover to send the marines to Chicago. Did I omit the 1929 St Valentine’s Day massacre, the usual journalistic pit stop, in which Capone had seven men machine gunned against a Chicago garage wall? Two of his gunmen bragged of their work, were invited by Capone to a banquet, and there had their heads bashed by a baseball bat wielded by Capone. In reward, Capone was given a federal investigation, a multipage tax evasion and Volstead Act indictment, and a sentence of 11 years to reflect upon his syphillis as it progressed towards his ultimate reduction to an addlebrained 48 year old corpse.
The next figure in Reppetto’s diorama is Charlie Luciano who at 14 arrived from Sicily and settled in this reviewer’s silk stocking neighborhood south of 14th Street and First Avenue. He enrolled as a Five Points member and later took the well dressed Arnold Rothstein as his mentor. When Rothstein advised Luciano to stop dressing like a hoodlum and get a "genteel" tailor, Luciano replied, "What do you mean? My tailor is a Catholic". Though Luciano was secretly mocked by many for his reply, he died a natural death in 1962, a leader in international crime, while Rothstein, having lesser intuitive instincts, walked into a death trap in 1928, proving that clothes do not always make the man.
In the 20's, an honest to God, so to speak, Sicilian capo, Salvatore Maranzano, arrived. He became the leader of younger Sicilians, among them Joe Bonanno, Tommy Luchese, Carlo Gambino, and Joe Profacio. Joe Masseria, the bloody boss of bosses in 1931, went on an April day to lunch with Luciano at a favorite Italian restaurant of Masseria. Luciano, apparently with the script of the God Father in hand, excused himself and went to the men’s room. Enter Joe Adonis, Bugsey Siegel, Vito Genovese, and Albert Anastasio. Exit Masseria with five bullets in him that he did not have when he sat down to eat. Enter from stage right Maranzano, the new boss of bosses. Maranzano soon decides to kill Luciano. Enter from stage left and into Maranzano’s office men claiming to be "federal agents", but who in fact were Jewish gunmen hired by Meyer Lansky. With considerable labor they shoot and stab Maranzano to death. Luciano, having long ago changed his tailor, convenes a meeting of gang leaders and declares the end of the boss of bosses style of governance. New York is amicably divided, like a pizza pie, among the leaders. Tammany’s Tom Foley is succeeded by district leader Jimmy Hines, and Adonis represents Brooklyn politics. In 1932, Luciano and Frank Costello are powerful influences at the Democratic convention. Adonis supports LaGuardia for mayor. By the mid-thirties, there is an alliance of interstate crime, with Italian gangs controlling organized crime locations. Indeed, such is the opportunity offered by this country to all who would but work for it, that Frank Costello, with an IQ of 97, would name New York’s mayor in 1945.
As racketeering seeped through New York’s labor unions, the clothing, trucking, and other industries, Tammany leader Jimmy Hines, by controlling judges and prosecutors like prostitutes, protects Dutch Schultz and Luciano. Joe Adonis in Brooklyn had similar power over the Kings County District Attorney. No one foresaw in 1935 that a New York County grand jury would on its own investigate industrial racketeering, fending off the countervailing help of what must have been the anxiety stricken district attorney. Governor Lehman appoints, as special prosecutor, 33-year old , 5 foot 6 Thomas Dewey who promptly suits up to pursue Luciano. If you were Luciano, Dutch Schultz’s partner, and you knew Schultz had decided to kill Dewey, would you kill Schultz? What did Meyer Lansky advise Luciano to do? Read Reppetto’s book. Flying high from the beginning in narrative skill, Reppetto revs it up at this point and maintains that altitude to the end. How did Dewey get Luciano? Did Dewey as District Attorney fire 61 of the 64 assistant district attorneys? What happened to Tammany leader Hines? Who succeeded Hines? Would you cry if it was Frank Costello? Start crying.
American Mafia is not only a body count of the corrupt. Reppetto rewards the reader with surprising facts concerning the FBI’s origin, J. Edgar Hoover’s history of slouching away from organized crime, the infiltration of the movie industry by the mob, the criminal corruption in the political machine that produced President Truman and, for contrast, the striking figure of Henry Morgenthau, Jr., using among other things, Treasury to fight crime. Reppetto offers an example of political arithmetic. If Costello controlled New York County (+1), and Adonis controlled Kings County (+1), what did that add up to in controlling Bronx boss Ed Flynn who had to answer to Governor Lehman and President Roosevelt should New York County and Kings County fall out of their baskets in configuring the Democrat control of New York State? If your answer is 2, leave the room and while out there reflect on the fact that, according to Reppetto, when Flynn was Bronx County sheriff Dutch Schultz was issued a deputy sheriff’s badge.
Putting aside Reppetto’s sound rejection of the Kefauver Committee’s conclusion that this country’s crime syndicate was controlled by the Italian Mafia, we turn to Coney Island and an open hotel window for a view of all that is contained in Reppetto’s study of fifty years in the rise of American, home grown organized crime.
Sidney Hillman, political intimate of President Roosevelt, was the powerful head of a clothing workers union. He used the murderous Lepke Buchalter to repel union rivals. In 1939, Abe Reles was accused of murder and offered the corruptible Kings County District Attorney, William O’Dwyer, proof of 85 murders. In consequence, 8 were executed and 50 imprisoned. Reles implicated Anastasia and Buchalter, thus fingering Hillman. Reles was kept in room 623 of the Half Moon Hotel in Coney Island guarded by 18 police officers who worked out of O’Dwyer’s office. The scene suggests Dracula in charge of a blood bank. Notwithstanding that 5 police officers were on guard, Reles’s body managed to leave room 623 at night at an angle that suggested that he had been thrown through its window without the alerting of the five policemen. In dubious sorrow, the mob recalled Reles as "the canary who could sing but not fly". From O’Dwyer’s point of view, when Reles went out the window he took with him the case against Anastasia and, in effect, the entire Brooklyn political organization. At the Kefauver hearings, O’Dwyer, who with the aid of President Truman had fled the mayoralty for Mexico, testified under a grant of immunity, appearing to many, writes Reppetto, "like nothing more than a gangster’s stooge".
As we leave the Half Moon Hotel, consider the play of chance in our having Robert Morgenthau as our District Attorney. When he graduated from law school, he became an assistant of Robert Patterson, former secretary of the army, at Patterson’s law firm. As Patterson and Morgenthau were heading for LaGuardia Airport on a business trip, Patterson saw that he had left important documents at the office. Deciding to emplane, he asked Morgenthau to return to the office for them and take a later flight. Patterson died that afternoon when his plane crashed. When one considers the powers ever quick to corrupt the office of District Attorney one might ponder whether, in the absence of Robert Morgenthau, they might well have done so. Think whether you would sleep well if today we had William O’Dwyer in the place of Robert Morgenthau.
Posted at 02:10 pm by chekhov
PROPERTY AND FREEDOM by RICHARD PIPES
REVIEWED BY HAROLD J. REYNOLDS
PROPERTY AND FREEDOM
By Richard Pipes, Alfred A. Knopf, New York, N.Y. 328 pp. $30
Richard Pipes’s Property and Freedom, offered by him as the work of a “dilettante”, is professor emeritus of Russian and Soviet history at Harvard. He is the author of at least twelve other books, including A Concise History of the Russian Revolution (1995) and The Unknown Lenin (1996). His books are written in an agreeable prose, a passport across any boundary, but one. In conscience, Property and Freedom cannot be recommended except, perhaps, to someone who is dying of incurable boredom and needs a dose of it to go over the side, for rare is the person who can read this book without slumping over it, and wise is the person who does not read it in front of an open fire. As the great 19th century historian Jacob Burckhardt wrote, it is good for a specialist to be a dilettante in other fields, but he should be one “privately” (Burckhardt, Weltgeschichtliche Betrachtungen (Munich, 1978), 16). Pipes instead chose to write a book.
Pipes wrote Poverty and Freedom to prove that liberty and the right to property are “connected”, an idea that emerged in the seventeenth century and that no one contests. He claims, however, that though the idea is old, the historical evidence for this uncontested idea has not been gathered, and hence his book. It is doubtful that, after reading it, the reader will learn what he did not know at the beginning, and that is that rights have not “evolved” in a Darwinian garden, they are not sociobiological specimens, and they are not the result of theological epiphanies. They are powers that have been granted or seized because those who would deny them would suffer. All else - tracts, scrolls, philosophies, testaments, beliefs religious or pagan, all of the scenery and scripts that we call history, are as nothing compared with the central fact of power and its location. Magna Carta, for example, benefitted English barons, not Englishmen at large, and freedom of speech originated not in the mouth of an English divine or philosopher but in the grant of the English crown driven by the need of money to grant them to the House of Commons.
For the history of the idea of property, Pipes recounts the thinking of Western philosophers, theologians, and political theorists. We are treated to the differing views of Plato and Aristotle, the influence of Stoicism on Christianity, the immense contribution of Roman jurists, the radical opinions of St Thomas Aquinas, the inspiriting of capitalism by Calvin, the derisable ideas of the “noble savage” and “Utopia”, and on and on through the Law of Nature, Grotius, Hobbes, Harrington, Locke, Rousseau, and the calling in, of all people, Wordsworth and Coleridge, all of this and one has reached only page 49, with last-page 328 a rumored oasis in the distance, reachable after one has run barefoot over 907 footnotes in which one’s closing eyes may find six languages to feast upon. If this book has one constant flaw, it is its daunting incantation of facts and opinions that fly by like freight trains, all to prove that the right to property is essential to liberty. The flaw may be forgivable on the ground that Pipes, a Polish Jew who fled Poland in 1940 at the age of ten, has for decades lived intellectually with the murderous sweep of Marxist Communism, fixed at 20,000,000 under Stalin, and 120,000,000 throughout the earth (See, Stephane Courtois et al., Le livre noir du communisme (Paris: Laffont, 1997)).
For property as an institution, Pipes examines history, psychology, anthropology, and sociobiology, to prove to us, a people consecrated to materialism, that acquisitiveness is universal among humans as well as animals. He covers
possessiveness in animals, including insects, from protozoa to primates, careful to include dragonflies and the beloved three-spined stickleback. At one point he writes, “Such examples can be multiplied ad infinitum”, causing this reviewer to reflexively drop his book. Nor does the acquisitive behavior of children escape Pipes’s cascade of what must be thousands of 4 by 6 index cards. Following children, presumably in logical progression, are “possession among primitive peoples” and “societies of hunters and gatherers”. The myth of a primitive communism is bound and taken to the scaffold, while private property in antiquity, feudal and mediaeval times, is reported, together with the creation of the state as the guarantor of ownership.
Pipe points to England as the classic illustration of how private wealth came to restrain public authority. Parliament, the servant of the crown from the 11th to the 15th century, then its partner from the 16th to the early 17th century, became the crown’s master in the 1640's. The secret, described by Pipe in habitual detail, was simple. The crown needed money. The “people” had it or controlled it and demanded freedoms and reforms for it. He traces English history from pre-Norman times through the development of the common law, the crucial history of English taxation, the history of the Tudors, Stuarts, the Commonwealth, and the Revolution of 1688.
By way of comparison to England’s history, the story of patrimonial Russia, including two and a half centuries of serfdom and seventy years of Communist rule during the latter of which Russians were deprived of liberties to a degree hitherto unknown on earth, is painstakingly set forth in proof of how the absence of the right of property makes tyrannical government possible. Like its predecessors, this chapter sorely needed surgery. It is overloaded with historical material that satisfies only a narrow scholarly interest. Still, there are matters that might engage the reader, particularly Pipes’s development of the idea that Russians historically saw sovereign power as the source out of which property issued, and the fact that Russian liberals under the Tsar saw law as the cornerstone of liberty but did not see the connection between law and private property.
In Pipes’s last chapter, he tours our welfare capitalist state, complaining that entitlements create dependence, environmental laws are oppressive, minimum wage laws interfere with freedom of contract, banks are pressured into minority loans, rent control is bad economics, administrative agencies are governmental islands broken away from the continental shelf, taxation of personal income unjustly redistributes wealth, affirmative action in employment is the most egregious form of governmental interference, the government takes property by regulating its use, and so on, providing a communal table at which readers of this review at this moment are selecting their favorite complaints.
Pipes’s book invites criticism, but there is in this his last chapter a sudden, disarming admission. A way, he writes, must be found to preserve property as a fundamental human right while, at the same time, “ensuring fundamental social justice”. Had Pipes but written a slim, creative volume on social justice in a capitalist state, he might have given us something worth fifty books on the connection between property and freedom. The way to preserve the right to property and to assure social justice, he argues, is mainly “by attitudes which determine how laws and institutions are employed.” This reviewer would put it another way. On the one hand, welfare capitalism offers the best opportunity for realizing freedom and achieving productivity while assuring minimum benefits to those least fortunate. On the other hand, working and middle class majorities may demand too much equality with the rich, thus impairing the prospect of long term economic productivity and giving too little equality to the underprivileged to satisfy their right to human development. Thus, the justice of welfare capitalism depends on the virtue of moderation by all classes for the sake of the common good. Imperfect as the analogy may be, it is somewhat like one ship towing another at sea. The knack is to keep both ships “in step” by using a tow line of such a length that the ships meet the waves and ride over them together, otherwise one vessel might be in a trough while the other is on a crest, causing the line to slacken and then tauten with sudden violence, doing neither much good. So too in welfare capitalism. The expectations of the classes must be such that one does not destroy the other, otherwise they will all go down.
Posted at 01:11 pm by chekhov
Tuesday, November 23, 2004
PALESTINIAN ART EXHIBITION
PALESTINIAN ART EXHIBITION
It was startling to read of Assemblywoman’s Amy Paulin's attack upon the "Made in Palestine" art exhibition held at the County Center on November 20th, to say nothing of the laughably ignorant attacks of Assemblyman Ryan Karben of Rockland County and Westchester Board of Legislators James Maisano and George Oros.
Paulin had not seen the art work at the time of her attacks. Indeed, regardless of whether she had or had not seen the art work, her ignorant attack was an attempted violation of the constitutional rights of the exhibitors to free speech, for she, like her bumbling colleagues, had tried unsuccessfully to persuade County Executive Andrew Spano to cancel the contract underlying the exhibition, an act that would have given him the distinction of becoming a defendant in a federal action. Instead, Spano, much to his credit, raised the First Amendment in protection of the exhibitors.
The next time this quartet suits up as night riders into the art world, they should inquire into the facts and, before they dash for their horses, reflect upon the legality of their conduct. If, as it appeared, they acted in protection of Israel, a motive with which I empathize, they owed it to Israel to act prudently. Instead, their hysteria drew the reproval of the New York Times and the Journal News, and gave to this initially obscure exhibition a national coverage for which the Palestinian artists will forever be grateful, a fact that I can verifiy having acted as counsel to WESPAC, the peace and justice organization that sponsored the exhibition. On the other hand, should these Palestinian artists ever plan another obscure exhibition, I trust that Paulin, Karben, Maisano, and Oros will have their horses ready. After all, one should never look a gift horse in the mouth.
HARRY REYNOLDS
Posted at 11:39 am by chekhov
Tuesday, September 07, 2004
THE JAPANESE WAY OF JUSTICE: PROSECUTING CRIME IN JAPAN
The Japanese Way of Justice: Prosecuting Crime in Japan
The Japanese Way of Justice :Prosecuting Crime in Japan
David T Johnson Oxford University Press, New York
327pp, $49.95 ISBN 019511986X
"Where does a District Attorney go when he dies, grandpa?
He goes to Japan, Max.
Why, grandpa?
Because Japan is prosecutors' heaven, Max."
David T Johnson's 'The Japanese Way of Justice' is the first systemic examination of the Japanese prosecutorial system, the most powerful governmental institution in Japan. The book, written in a prose mercifully free of academic aridity, has been virtually deemed a classic in sociolegal scholarship. So variegated in detail and close in analysis, it warrants treatment beyond the summary reach of a book review. Every prosecutor in the USA should read it. Every American intent on crime in Japan should keep a copy under his pillow. He will not find there the cat and mouse game of our failed criminal justice system. There, plea bargaining and immunity grants are forbidden, 92% confess, acquittals are 1 in 800, and razzle-dazzle lawyers are not seen running down courthouse steps with their laughing clients.
A suspect drawn by arrest or invitation to meet with a Japanese prosecutor must be prepared to be questioned for the 23 days that he may be lawfully detained without the filing of a charge. The nicety of arraignment is unknown to Japanese law. He will not be assigned counsel until he is formally charged, and in any event his attorney will not have the right to be present during his interrogation. As for bail, there is no right to it during the detention period, which may be lengthened by the creative filing of another charge and the tacking to it of another 23 days, an illegality, but nevertheless usually effective. He has the right to be silent and may even declare his unwillingness to talk, but he has the duty to endure the interrogation that may extend for many hours, day after day. He may meet with counsel, but only when, for so long, and at the places determined by the prosecutor.
The reader may be tempted to think this impairment of counsel a grave loss. Not at all. Those who may be said with some hilarity to practice defense law in Japan are elderly men in their seventies languishing at the end of the feed line. They advise their clients to cooperate with the prosecutor as they themselves do, for they believe it their duty to disclose the facts to the prosecutor and the court. As one ungrateful defendant said of his counsel, he was "as useless as tits on a bull", a mixed metaphor perhaps but precisely correct, for that old lawyer, like the hedgehog, knew one over-arching truth: he and his client are standing in what is the appearance of an adversarial judicial process that in fact does not exist. The suspect is the target of an inquisition. He has no right to pre-trial discovery, the interrogation is actually the trial, the trial is a ritual, the judge is present to conduct the ritual by receiving evidence, and the evidence is the dossier, compiled and written by the prosecutor, signed by the suspect, and received by a compliant court under numerous hearsay exceptions. Indeed, the dossier will contain not only police reports and the statement of witnesses but the defendant's confession as well, a confession reported not verbatim but in the form of the prosecutor's statement of what he believes the defendant in reality confessed. The prosecutor is not required to disclose exculpatory evidence. The judge takes the dossier to his chambers there to ponder it and render a decision very close, some may say too close, to that had in mind by the prosecutor when he made his recommendation. If there is that rare derangement, an acquittal or sentence that does not satisfy the prosecutor, the prosecutor may appeal.
Where was the jury? There is none in Japan, nor are there grand juries or preliminary hearings. The media? They are the prosecutor's lapdog. "Writing critical investigative articles is not a press custom", said a reporter of Japan's largest daily. "Prosecutors", he said, "are our superiors and we are their supplicants." In Japan's media, prosecutors are virtually anonymous; no ecstatics for publicity are among them. They are appointed, may not be fired, do not play whore to political powers, and very rarely leave for elective office.
The iron-willed purpose of the Japanese prosecutor is the suspect's confession which, if he is wise, he will accompany with genuine remorse, repentance, and a property settlement with his victim, in the absence of any of which he will be given a cell unheated throughout the year. Anyone familiar with Hiroshige woodcuts knows that in winter Japan looks like Vermont.
After six years of research, including 33 months in the field, and after discovering that investigations are sometimes coercive, that truth is fabricated, corrupted and concealed, that prosecutors are unaccountable, that defense lawyers are all but impotent, and that the system is hostile to external scrutiny, Johnson concludes that "it is worth considering that American criminal justice works worse than criminal justice in Japan". He gives higher marks to Japanese prosecutors for refraining from charging in the absence of a belief in the defendant's guilt, for being markedly more respectful of defendants, for obsessively learning the facts, for taking into account the needs and circumstances of individuals, and for promoting healing and not just punishment. He finds Japanese prosecutors actively involved with rehabilitation and reintegration, and fearfully preoccupied with error, notwithstanding that their decisions are made after two or three levels of thorough reviews with superiors. He points to their substantial rate of suspending prosecutions, contrary to American practice, and he cites the fact that Japanese sanctions are less severe than our own. Johnson may have reservations about the Japanese system, but they are insufficient "to change the bottom line: the Japanese way of justice is uncommonly just."
In 'The Best Defense' (xv, 1982), Alan Dershowitz wrote: "I have only one agenda: I want to win... It is the job of the defense attorney - especially when representing the guilty - to prevent, by all lawful means, the 'whole truth' from coming out". An American lawyer who made that statement in a Japanese interrogation room would probably be last seen, so to speak, in a Japanese memorial urn.
For myself, if I were poor and innocent, give me that Japanese obsessive prosecutorial fact seeker and let the Charlie Chaplin defense counsel tag along, but if I were poor and guilty, give me that harried, underpaid American prosecutor and, though I cannot have the original, find me a Legal Aid Alan Dershowitz look-alike.
Posted at 01:00 am by chekhov
|
|
|
