The King’s Terms

There is a scene in Mel Gibson’s Braveheart where the British and Scottish armies mass at a battlefield, ready to wage war.  Before the actual battle ensues, the head of the British army speaks with an underling who urges his superior to offer the Scottish army the “king’s terms” as a way to defuse the conflict without bloodshed.  The superior officer scoffs at the suggestion and questions the Scots’ ability to meet these terms.  The underling insists, and the superior officer grudgingly agrees, riding off to meet his Scottish counterparts mid-field to deliver to them the “king’s terms”.  The Scots, through their recently (self-) anointed commander, William Wallace, reject these terms and, under Wallace’s leadership, proceed to slaughter the British army despite being heavily outnumbered and under-equipped.

The arrogance and ineptitude of the Brits, as portrayed in this scene, is reminiscent of how the United States has conducted its foreign policy during this administration and ones that have preceded it in years past.  And no other person better embodies these traits than the current U.S. Secretary of State, John Kerry.

When the Syrian government started gassing its own people to death, the United States, with Kerry as its representative on the world stage, rightly condemned the practice.  Obama himself drew the now infamous “red line” which he warned the Syrian government not to cross when it came to snuffing out its antagonists.  But once the Syrian government crossed this line, which almost everyone surely knew it would do, the United States had no meaningful response.  It engaged in a half-hearted effort to punish the Syrian regime with threats of missile strikes.

Then came the “king’s terms”.  As the deadline approached for what might have been a U.S.-led military strike, Kerry publicly dismissed the notion of an alternative non-military approach, pushed by the Russians, in which Syria would turn over all its chemical weapons to international authorities.

In Kerry’s words: ”Sure, he [Syrian President al-Assad] could turn over every single bit of his chemical weapons to the international community in the next week — turn it over, all of it without delay and allow the full and total accounting [of it]. But he isn’t about to do it, and it can’t be done.”

What is significant about all this is not that the Syrians ultimately agreed to a disarmament plan or how they have gone about complying with the terms of the plan or even the instrumental role played by Russia in making the plan a reality, but that such a high level official of the U.S. government would publicly cast judgment on what another government could or could not do without even a moment’s reflection as to the appropriateness of his remarks.  [Immediately after Kerry's ill-fated statement, the State Department, in another foolish move, went into damage-control mode, describing it as a "rhetorical argument" rather than an actual proposal.]

The “shoot first, ask questions later” approach of U.S. foreign policy can also be seen in the events that have been unfolding in Ukraine and more recently the Middle East “peace process”, another brainchild of Kerry’s.  The Israeli government, which knows a thing or two about zealotry, called Kerry “messianic” in his determination to force an agreement between the Israelis and the Palestinians.  As the Israeli defense minister put it, “The only thing that can save us is if Kerry wins the Nobel prize and leaves us alone.”  The Israelis may have gotten their wish now that the peace talks are in shambles, but at the expense of the credibility of the United States, and Kerry specifically, who foolishly waded into the minefield that is Middle East politics without any kind of exit strategy.

It should be clear by now that when it comes to engaging nations abroad the U.S. has no coherent plan or vision.  It’s vision is that of the individuals who make up its foreign policy establishment, whose massive egos and petty political point-scoring blind them to the true interests of the people to whom they are sworn to serve.

And who could blame them?  Having made of mess of country after country for years on end, maybe the U.S. is finally coming to its senses: that the way to exert its moral authority abroad is with what Obama has called a “light footprint”.  Or maybe that is just another way of saying, we have no clue what to do next, and whatever it might be, just make sure it doesn’t look like another Iraq or Afghanistan.

 

 

 

Opening Day 2014

Today is Opening Day for the 2014 big league baseball season.  If there’s one change I’d like to see in the way baseball games are played and broadcast it is in the length and pace of the game.  Hitters as well as pitchers today take way too much time between pitches.  Hitters adjust their gloves, helmets, pants, belts and anything else you could think of before deciding to step back into the batter box.  Pitchers, meanwhile, fiddle with their caps, pace the mound, and make pointless pickoff moves before delivering a pitch.  It is unclear whether all these extraneous movements are product of “mind games” that pitchers and hitters are known to play on each other or if they are just a form of procrastination.  Either way, the fan is left to endure all these time-wasting movements and will be lucky if he or she can muster the patience to watch or listen to all nine innings.  Games today are also jam packed with commercials, ads and tie-ins so that sometimes it is unclear whether baseball is the main focus or the car that is being peddled by the announcer for the thirtieth time in the broadcast.

My hope for this season is to be able to score at least one game live (i.e., at the field) which is harder than it sounds if, like me,  you also have an infant and toddler to look after during the game.  With that in mind, I will simply settle for a hot dog, a cold beer, and making it to the seventh-inning stretch, scorecard be damned.   

 

Almost a “One Man Terror”

In my library is a compilation of Hemingway’s works as a journalist, entitled “By-Line: Ernest Hemingway” (Scribners 1967).  I came across it in a used bookstore in lower Manhattan years ago, although I suspect the bookstore is no longer there, as is the case with most independent book proprietors nowadays.  The compilation cost $8.50 and bore the following inscription circa 1967: “love and kisses always”, from Ann to Dad.

I pulled the book off the shelf the other day and flipped to no article in particular.  The one on which I landed turned out to be a dispatch from Hemingway’s days covering  the Spanish Civil War.  The piece is illuminating not only because of what it says but also how it is said.  It gives the reader the feeling that Hemingway conveyed to him or her what was in his mind at the moment, and that he did not have to, or at least chose not to, censor his thoughts out of fear, an exercise that is almost non-existent with most of today’s journalists.  The article, in substance, is classic Hemingway: a how-to for those who want to be real, i.e., manly, do-right, wartime correspondents, bubbling with an undercurrent of violence.  Whether Hemingway’s own journalism in this piece, by which he describes what he claims to be the true state of affairs in Madrid as of Sept. 1938, is credible or just a way for him to make his point against the weasel-y journalist and subject of his ire is another story that is beyond the scope of this post.  Suffice it to say that Orwell, through his own encounter with Hemingway during the Spanish Civil War, had his doubts about Hemingway’s tough-guy image with which he is famously associated.

The piece is entitled Fresh Air on an Inside Story, published in Ken magazine on September 23, 1938.  Here it is in full:

I met this citizen in the Florida Hotel in Madrid in the end of April of last year.  It was a late afternoon and he had arrived from Valencia the evening before.  He had spent the day in his room writing an article.  This man was tall, with watery eyes, and strips of blond hair pasted carefully across a flat-topped bald head.

“How does Madrid seem?” I asked him.

“There is a terror here,” said this journalist.  “There is evidence of it wherever you go.  Thousands of bodies are being found.”

“When did you get here?” I asked him.

“Last night.”

“Where did you see the bodies?”

“They are around everywhere,” he said.  “You see them in the early morning.”

“Were you out early this morning?”

“No.”

“Did you see any bodies?”

“No,” he said.  “But I know they are there.”

“What evidence of terror have you seen?”

“Oh, it’s there,” he said.  “You can’t deny it’s there.”

“What evidence have you seen yourself?”

“I haven’t had time to see it myself but I know it is there.”

“Listen,” I said.  “You get in here last night.  You haven’t even been out in the town and you tell us who are living here and working here that there is terror.”

“You can’t deny there is a terror,” said this expert.  “Everywhere you see evidence of it.”

“I thought you said you hadn’t seen any evidence.”

“They are everywhere,” said the great man.

I then told him that there were half a dozen of us newspaper men who were living and working in Madrid whose business it was, if there was a terror, to discover it and report it.  That I had friends in Seguridad that I had known from the old days and could trust, and that I knew that three people had been shot for espionage that month.  I had been invited to witness an execution but had been away at the front and had waited four weeks for there to be another.  That people had been shot during the early days of the rebellion by the so-called “uncontrollables” but that for months Madrid had been as safe and well policed and free from any terror as any capital in Europe.  Any people shot or taken for rides were turned in at the morgue and he could check for himself as all journalists had done.

“Don’t try to deny there is a terror,” he said.  “You know there is a terror.”

Now he was a correspondent for a truly great newspaper and I had a lot of respect for it so I did not sock him.  Besides if one should take a poke at a guy like that it would only furnish evidence that there was a terror.  Also the meeting was in the room of an American woman journalist and I think, but cannot be positive on this, that he was wearing glasses.

The American woman journalist was leaving the country and, that same day, he gave her a sealed envelope to take out.  You do not give people sealed envelopes to take out of a country in wartime, but this stout fellow assured the American girl the envelope contained only a carbon of an already censored dispatch of his from the Teruel front which he was mailing to his office as a duplicate in order to make sure of its safe arrival.

Next day the American girl mentioned that she was taking out this letter for him.

“It isn’t sealed, is it?” I asked her.

“Yes.”

“Better let me take it over to  Censorship for you as I go by, then, so you won’t get in any trouble over it.”

“What trouble could I get into?  It’s only a carbon of a dispatch that’s already censored.”

“Did he show it to you?”

“No.  But he told me.”

“Never trust a man who slicks hair over a bald head,” I said.

“The Nazis have a price of 20,000 [pounds] on his head,” she said.  “He must be all right.”

Well, at Censorship it tuned out that the alleged carbon of a dispatch from Teruel was not a carbon of a dispatch but an article which stated, “There is terror here in Madrid.  Thousands of bodies are found, etc.”. It was a dandy.  It made liars out of every honest correspondent in Madrid.  And this guy had written it without stirring from his hotel the first day he arrived.  The only ugly thing was that the girl to whom he had entrusted it could, under the rules of war, have been shot as a spy if it had been found among her papers when she was leaving the country.  The dispatch was a lie and he had given it to a girl who trusted him to take out of the country.

That night at the Gran Via restaurant I told the story  to a number of hard-working, non-political, straight-shooting correspondents who risked their lives daily working in Madrid and who had been denying there was terror in Madrid ever since the government had taken control of the situation and stopped all terror.

They were pretty sore about this outsider who was going to come into Madrid, make liars out of all of them, and expose one of the most popular correspondents to an espionage charge for carrying out his faked dispatch.

“Let’s go over and ask him if the Nazis really put a price of 20,000 [pounds] on his head,” someone said.  “Somebody should denounce him for what he has done.  He ought to be shot and if we knew where to send the head it could be shipped in dry ice.”

“It wouldn’t be a nice looking head but I’d be glad to carry it myself in a rucksack,” I offered.  “I haven’t seen 20,000 [pounds] since 1929.”

“I’ll ask him,” said a well-known Chicago reporter.

He went over to the man’s table, spoke to him very quietly and then came back.

We all kept looking at the man.  He was white as the under half of an unsold flounder at 11 o’clock in the morning just before the fish market shuts.

“He says there isn’t any reward for his head,” said the Chicago reporter in his faintly rhythmical voice.  “He says that was just something one of his editors made up.”

So that is how one journalist escaped starting a one man terror in Madrid.

If a censorship does not permit a newspaper man to write the truth, the correspondent can try to beat the censorship under penalty of expulsion if caught.  Or he can go outside the country and write uncensored dispatches.  But this citizen on a flying trip was going to let someone else take all his risk while he received credit as a fearless exposer.  The remarkable story at that time was that there was no terror in Madrid.  But that was too dull for him.

It would have interested his newspaper though because oddly enough it happened to be a newspaper that has been interested for a long time in the truth.

 

Another post-Chaidez case: Chavarria v. United States

For those of you who are still following the Supreme Court’s decision in Padilla and its treatment by the lower courts, the Seventh Circuit recently issued a notable decision in which it might have put the final nail in the coffin of pre-Padilla claims.

The case is Chavarria v. United States, No. 11-3549 (7th Cir. decided Jan. 9, 2014).  There petitioner there relied mainly on pre-Padilla law as the reason why he should be entitled to post conviction relief.  His argument, which resembles one I have used, without success, in the past, was that even before Padilla, courts recognized ineffective assistance counsel claims for cases where a lawyer had affirmatively misadvised a client on the immigration consequences of a conviction; as opposed to when a lawyer gave no advice at all, which, everyone seems to agree, did not give rise to a claim of ineffective assistance until Padilla.

The Seventh Circuit made short work of this argument, however, and not in a way that benefitted the petitioner.  It noted that the distinction between affirmative misadvice and no advice was irrelevant because, until Padilla, the courts never recognized a Sixth Amendment, ineffective assistance claim based on a collateral consequence of a conviction like deportation.

The Seventh Circuit relied, ironically, on Padilla itself in arriving at this conclusion.  I say that because the petitioner sought relief on the exclusive basis of pre-Padilla law, which went entirely unaddressed by the Seventh Circuit.  Therefore, unless the Seventh Circuit was implying that Padilla, in essence, overruled all past precedent in which courts gave post conviction relief to individuals who had been deported in violation of their Sixth Amendment rights — and there are such cases out there, as even the Seventh Circuit acknowledged — I am not sure how I see the Seventh Circuit reached the result it did.  Nor can I see how Padilla could have overruled the decisions which preceded it which held in one form or fashion that an attorney can be liable for giving his client wrong advice about a conviction’s impact on his immigration status.  That would be a truly perverse result where the Supreme Court in Padilla came down on the side of post conviction relief.  The implied message of the decision in Chavarria, then, seems to be that in order to expand the universe of rights for one set of folks (those whose convictions became final after Padilla), the Supreme Court had to contract the universe of rights for another (those with  convictions that became final pre-Padilla).  That can’t be right, can it?  Or am I missing something?

I have copied and pasted the decision below since its fairly short.

JULIO CESAR CHAVARRIA, Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, Respondent-Appellee.

No. 11-3549.United States Court of Appeals, Seventh Circuit.

Argued October 1, 2013.Decided January 9, 2014.Before CUDAHY, RIPPLE, and HAMILTON, Circuit Judges.

CUDAHY, Circuit Judge.

This case involves an ineffective assistance of counsel claim concerning the effect of Chavarria’s guilty plea on his immigration status. Defendant Julio Cesar Chavarria, born in Mexico, became a legal permanent resident of the United States in 1982. In 2009, Chavarria was charged with, and pleaded guilty to, four counts of distributing cocaine.

One year later, the United States Supreme Court decided Padilla v. Kentucky, 559 U.S. 356 (2010). Padilla imposed a duty on criminal attorneys to inform noncitizen clients of deportation risks stemming from plea agreements, and for the first time held that the Sixth Amendment supported ineffective assistance of counsel claims arising from legal advice, or the lack thereof, involving the prospect of deportation resulting from guilty pleas. See Chaidez v. United States, 132 S. Ct. 1103, 1110 (2012)(explaining the new Padilla rule). Chavarria then filed a pro se motion involving such a claim, pursuant to 28 U.S.C. § 2255.

Chavarria alleged that his criminal trial counsel responded to his deportation queries by indicating that Chavarria need not worry about deportation—specifically that “the attorney had checked with the Bureau of Immigration and Customs Enforcement . . . and they said they were not interested” in deporting him. Chavarria also alleged that his attorney had counseled him to defer to the cues of his attorney during questioning by the district court. In connection with his § 2255 motion, Chavarria filed a Petition to Stay Deportation Proceedings, but by the time counsel had been appointed for these motions, he had already been deported. The government subsequently sought to dismiss Chavarria’s § 2255 motion based, in part, on the contention that Padillaannounced a new rule not to be applied retroactively. The district court denied the government’s motion for dismissal, holding that the Padilla rule could be applied retroactively.

Shortly thereafter, we issued our opinion in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011). The Chaidez majority concluded that Padilla was a new rule and not retroactive. In light of Chaidez, the district court vacated its ruling based on the retroactivity of Padilla, and dismissed Chavarria’s § 2255 motion.

Chavarria appealed, challenging both our decision in Chaidez, and the district court’s application of it here. After the government filed its response brief, the Supreme Court granted certiorari in Chaidez and subsequently affirmed. After Chaidez thus foreclosed Chavarria’s argument that Padilla was retroactive, he now argues thatChaidez distinguished between providing no advice (actionable under the Padillarule) and providing bad advice (actionable under pre-Padilla law).

 

I.

 

At the outset we briefly note that Chaidez foreclosed any argument that Padilla was retroactive, the original basis of Chavarria’s appeal. On collateral review, lacking retroactivity, we will look only to the state of the law at the time the conviction became final. For that reason, Chavarria originally argued that Padilla did not propound a new rule, but that it was merely another step in the evolution of ineffective assistance claims. However, the Supreme Court decided definitively that Padillaannounced a new rule, which was not retroactive, when it affirmed our decision inChaidez. Chaidez, 133 S. Ct. at 1105.

II.

His retroactivity argument gone, Chavarria now argues that under Padilla only failure to advise of immigration consequences constitutes ineffective assistance under the Sixth Amendment, but affirmative misadvice provides an alternative basis for a constitutional claim under pre-Padilla law.

This argument about affirmative misadvice is based on certain Chaidez language, which recognized precedent from three circuits holding that, pre-Padilla,misstatements about deportation could support an ineffective assistance claim.Chaidez, 133 S. Ct. at 1112 (“Those decisions [in three circuits] reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution.”). Thus, Chavarria argues that Padilla is irrelevant to Chavarria’s situation—because affirmative misrepresentations have long been subject to challenge under the test ofStrickland v. Washington, 466 U.S. 668 (1984).

Chavarria’s argument fails, first, because the distinction between affirmative misadvice and non-advice was not a relevant factor in Padilla. Second, the precedent, pre-Padilla, supporting the application of Strickland in this context is insufficient to satisfy Teague v. Lane. 489 U.S. 288, 301 (1989)(holding that to impart retroactivity, a rule must be supported by ample existing precedent).

A lawyer’s advice about matters not involving the “direct” consequences of a criminal conviction—collateral matters—is, in fact, irrelevant under the Sixth Amendment; such advice is categorically excluded from analysis as professionally incompetent, as measured by Strickland. Padilla departed from this direct-collateral distinction because of the “unique” nature of deportation. Padilla, 559 U.S. at 366. That case determined that “a lawyer’s advice (or non-advice)” should not be exempt from Sixth Amendment scrutiny without reference to the traditional distinction between direct and collateral consequences. Chaidez, 133 S. Ct. at 1110. Therefore, in its analysis, the Padilla majority was unconcerned with any distinction between affirmative misadvice and non-advice; because, until Padilla was decided, the Sixth Amendment did not apply to deportation matters at all. Id. (“It was Padilla that first rejected the categorical approach— and so made the Strickland test operative—when a criminal lawyer gives (or fails to give) advice about immigration consequences.”). Thus, regardless of how egregious the failure of counsel was if it dealt with immigration consequences, pre-Padilla, both the Sixth Amendment and the Strickland test were irrelevant.

The Chaidez majority jointly referred to both misadvice and non-advice throughout its opinion. There is no question that the majority understood that Padilla announced a new rule for all advice, or lack thereof, with respect to the consequences of a criminal conviction for immigration status. If taken out of context, language inChaidez offers some support for Chavarria’s argument, but that language is contradicted by a substantial amount of more specific language in the same opinion.See e.g., Chaidez, 133 S. Ct. at 1110 (referring jointly to scrutiny of a lawyer’s misadvice and “nonadvice”).

Ironically, Chavarria asks us to recognize a distinction between misadvice and non-advice, even though Padilla was itself about an affirmative misrepresentation. In fact, this distinction, which is thin on its own terms, fails on Padilla’s facts. Thus, Chavarria is essentially asking us to hold that Chaidez held that the Padilla rule is not retroactive except on Padilla’s own facts (which involved misadvice). In fact, thePadilla majority, in responding to the government’s argument to limit its holding, specifically discussed limiting its holding to only affirmative misadvice, but did not because of the posible absurd results. Padilla, 559 U.S. at 370-71. This discussion signals that the Padilla majority had no intent to exclude either affirmative misadvice or non-advice from the new rule it announced.

Finally, Chavarria relies on cases from three federal circuits to prove that the distinction between affirmative misadvice and the failure to advise, and a constitutional rule based on that distinction constitutes pre-Padilla precedent. Yet, under Teague, the rule sought by Chavarria must be dictated by existing precedent.Teague, 489 U.S. at 301. Chavarria cannot simply show the existence of such a distinction, but instead he must show that the distinction was so evident “that all reasonable judges, prior to Padilla, thought they were living in a Padilla-like world.”Chaidez, 133 S. Ct. 1112.

The Court supported this conclusion by reiterating the trend among the lower courts, which viewed such collateral deportation matters as beyond the reach of the Sixth Amendment. Id. at 1113. The Court stated, “[o]n those courts’ view, the Sixth Amendment no more demanded competent advice about a plea’s deportation consequences than it demanded competent representation in the deportation process itself. Padilla decided that view was wrong. But to repeat: it was Padilla that did so.” Id. The material misrepresentations that were upheld by those three circuits cannot support a constitutional rule to be applied retroactively, since an old rule is one “limited to those holdings so compelled by precedent that any contrary conclusion must be deemed unreasonable.” See Lambrix v. Singletary, 520 U.S. 518, 538 (1997). At the time Chavarria’s case became final, precedent did not dictate that preclusion of an ineffective assistance claim was unreasonable when it arose from an attorney’s material misrepresentation of a deportation risk. Thus, even if this Court were to find the misadvice/nonadvice distinction relevant to this analysis, it does not have the clear precedential weight to be considered a pre-Padilla rule.

The district court correctly concluded that it was bound by Chaidez and that Padillahad no retroactive effect on Chavarria’s case. Having determined that the distinction between affirmative misadvice and failure to advise does not somehow evade the non-retroactivity of Padilla, we AFFIRM.

Dr. King and His Ideals in 2014

This year’s tribute to Dr. King has to do with this country’s economic well-being.  When a person talks about his own well-being it is often in the context of how he is feeling physically, mentally and emotionally.  When disease, injury or trauma occurs, then the saying generally is “I’m not feeling well”.  The same kind of self-assessment can and should be made for the country as a whole.  Indeed, our current president seems to know this well and will often make observations of the country’s poor economic health as a way to advance his political agenda.  His carefully prepared diagnosis is generally: too much inequality and not enough shared sacrifice.  And he will give this assessment the same way a doctor today would give his patient a diagnosis: mechanically and patronizingly.  But for something that is akin to cancer in its potential to disrupt and destroy, that is no way to motivate a populace to change its way, to say nothing of whether he even believes change is needed at all.

For years now, the country has been gripped by an increasing sense of economic insecurity.  One that says to a person if I don’t do this now, I will never be able to do it at all.  The thing that must be done, of course, is “make money”.  This mentality I think we can all agree has led to a lower quality of life than that which existed thirty, forty years ago.  Because, for all the additional material goods and technology that we now have that we didn’t have before, they do nothing to compensate for the time that one has to spend to make that extra dollar that he cannot spend with his family, his friends his community, and even himself (in the sense of self-reflection and self-improvement).

It is the kind of insecurity that has led to the creation of thousands of meaningless yet high-paying jobs where the only skill that is required is the skill to bullshit your way through meeting after meeting, and client after client, while doing everything you possibly can to protect your own turf.  It is meant to employ the un-employable, and in the process, give them a sense of self-worth, while doing nothing to teach them a skill which might make a difference when the government is on the brink of collapse or the next nuclear bomb hits.  Make no mistake, this is not a swipe at the so-called financial industry whose dispensability and frivolousness are already well-known to the general public.  It is directed to some of the most revered institutions, like higher education and public service, that have at one time made this country — even with its many moral failings – a symbol of hope for many around the world.

This sense of insecurity is not entirely irrational.  The growing gap between rich and poor, educated and uneducated, healthy and unhealthy has been thoroughly documented.  It isn’t news that the country is in ill-health and likely to get worse in the coming years.  And it is entirely predictable that people today have an almost messianic attitude about money and its healing properties: “get as much of it as you can now because soon there won’t be any left.  And if we can’t take care of ourselves, no one is going to do it for us.”.

The problem, of course, is that this just makes the problem worse.  The “me first” mentality further entrenches the rich at the expense of the poor.  That is because the ones who are most able to make it on their own are the ones who already have the means to do so.  What the current climate of insecurity has done is turn what were once blinders which the rich wore vis a vis the poor to full-blown hazmat suits.  See no evil, hear no evil, speak no evil, or so the saying goes.  In cities, this can be seen in “gentrification” which allow the rich to enjoy all the benefits of the city without the costs that necessarily come with living in close proximity to others.  In the suburbs, this can be seen in the proliferation of gated communities and private police forces.  The common theme of all this change is the rejection of the idea that we all provide for each other as well as for ourselves, rather than simply ourselves, an idea that led many to embrace Dr. King and the civil rights movement.

Few if any public figures mention these things.  To do so would make them a prime target for the “socialist” label and doom their careers.  But the ideals at issue are ones that need to be revived if the country is to heal itself from the economic and moral malaise with which it has been inflicted.  Dr. King recognized that, and history has proven his work valuable even if its effects have been limited (not through any fault of his own).  And we must as well, for the alternative is at once unfathomable but all too familiar.

Sandy Hook, Newtown: One Year Later

Saturday will be the one year anniversary of the school shooting in Newtown, Connecticut.  I am often confused as to how this country can tolerate the kind of violence and loss of life that makes the United States unique among all other advanced, industrialized countries.  This goes beyond tragedies like Newtown to everyday occurrences like for-profit healthcare and  mass incarceration.  Newtown is just the culmination of everything that, at times, makes living in this country a traumatic experience.

There isn’t much that I can say or write that would make any kind of positive contribution to what happened in Newtown.  I wrote letters to the senators of this State on the subject of gun control and they both responded with form letters proclaiming their allegiance to the Second Amendment.  I have a young child and cannot even begin to envision what I would have done or felt had I learned that he was shot to death in school along with 20 of his classmates.  It is beyond comprehension for me.  But it’s also very much a reality.  Parents share a bond just like soldiers on a combat mission share a bond — one of mutual experience, trauma and direction.

In 2003, the late Roger Ebert reviewed “Elephant”, a movie about the Columbine  school shooting.  In his review, Ebert shared an encounter he had had with a news reporter the day after the shooting occurred:

Let me tell you a story. The day after Columbine, I was interviewed for the Tom Brokaw news program. The reporter had been assigned a theory and was seeking sound bites to support it. “Wouldn’t you say,” she asked, “that killings like this are influenced by violent movies?” No, I said, I wouldn’t say that. “But what about ‘Basketball Diaries’?” she asked. “Doesn’t that have a scene of a boy walking into a school with a machine gun?” The obscure 1995 Leonardo Di Caprio movie did indeed have a brief fantasy scene of that nature, I said, but the movie failed at the box office (it grossed only $2.5 million), and it’s unlikely the Columbine killers saw it.

The reporter looked disappointed, so I offered her my theory. “Events like this,” I said, “if they are influenced by anything, are influenced by news programs like your own. When an unbalanced kid walks into a school and starts shooting, it becomes a major media event. Cable news drops ordinary programming and goes around the clock with it. The story is assigned a logo and a theme song; these two kids were packaged as the Trench Coat Mafia. The message is clear to other disturbed kids around the country: If I shoot up my school, I can be famous. The TV will talk about nothing else but me. Experts will try to figure out what I was thinking. The kids and teachers at school will see they shouldn’t have messed with me. I’ll go out in a blaze of glory.”

In short, I said, events like Columbine are influenced far less by violent movies than by CNN, the NBC Nightly News and all the other news media, who glorify the killers in the guise of “explaining” them. I commended the policy at the Sun-Times, where our editor said the paper would no longer feature school killings on Page 1. The reporter thanked me and turned off the camera. Of course the interview was never used. They found plenty of talking heads to condemn violent movies, and everybody was happy.

Here is someone who is neither an “expert” in school shootings or a reporter to whom the public generally turns for “news”.  Certainly, he isn’t someone who  had his “report” blaming violent media for school shootings piped through the television sets of millions of Americans.  He is simply someone who has a clear understanding of humanity and is not afraid to express his views on the subject.

Judge Martin and the Eleventh Circuit

The Eleventh Circuit Court of Appeals has issued some noteworthy decisions in the last few weeks concerning the rights of foreign nationals in both criminal and civil proceedings.  One case, Gupta v. McGahey, No. 11-1420, concerned the right of an immigrant to sue immigration officers for civil rights violations; the Eleventh Circuit ultimately decided he had no such right.  Another case,  United States v. Garza-Mendez, No. 12-13643, involved an effort by an immigrant to reduce his sentence for a federal conviction of unlawful entry by obtaining a “clarification” order from a state court judge for a prior domestic violence conviction which had been used by federal prosecutors to enhance his sentence; the Eleventh Circuit turned aside this effort, as did the lower court, finding that the order was just a belated effort by the immigrant party to influence the outcome of his federal case.  In the last case, Donawa v. U.S. Att’y General, No. 12-13526, a foreign national of Antigua tried to avoid deportation by arguing that two prior Florida convictions for drug-related offenses which immigration authorities had used to initiate deportations proceedings against him were not deportable offenses; the Eleventh Circuit agreed in part and sent the case back to the immigration judge for a second look.

In each of these three cases, Judge Martin ended up on the side of the immigrant.  She was alone in that regard in two of the cases where she issued strong dissents and took her colleagues to task for what she believed was their “astonishing” and “cursory” legal reasoning.  As someone who spent most of her legal career prosecuting individuals, one might find Judge Martin’s positions surprising.  But one’s past experience is not always a reliable predictor of future action.  In fact, the two sometimes have no discernible correlation; Obama is a good example of that.

It will be interesting to see how Judge Martin develops as a jurist and to what extent she is able to influence other members of the Eleventh Circuit, or instead  alienates them.  If the court’s recent decisions are any indication, Judge Wilson has signaled that he too may be prepared to speak out when his colleagues reach an unjust result.