Not So Fast?

I once heard Arundati Roy say that when she wants to know what is truly going on in America she turns to people like Noam Chomsky. Whether you agree with his politics or not, the following excerpt (and prediction) from a recent interview with Alternet, is both scary and insightful:

My assumption all along is that McCain will probably win. Now that he has picked Sarah Palin as his vice president, I think those probabilities have increased, for reasons that are understood by party managers and have been expressed very well by McCain's campaign manager. He said the election is not about issues, it is about character and personality, and so on. Meaning, it is not a serious election. That is the way U.S. elections are run. Issues are marginalized. They don't talk about them and the media coverage is about Rev. Jeremiah Wright's sermons or Sarah Palin's pregnant daughter.

It was reported today that Obama will respond to McCain's announced new aggressiveness with "political jiu jitsu," that is, by going after McCain as undependable in a crisis as shown by his choice of attack over leadership. While such tactics strike me as effective both in trial and in politics, Chomsky believes the Republicans still have an advantage:

...These elections are run by the public relations industry. The intellectual community goes along. Issues are marginalized. The focus is on personalities, on Jeremiah Wright's sermons, Sarah Palin's pregnant daughter, or whatever it may be. In that terrain, the Republicans have a big advantage. They also have a formidable slander and vilification machine which has yet to go into full operation.
They can appeal to latent racism, as they are already doing. They can construct a class issue. Obama is the elite Harvard liberal; McCain is the down to earth ordinary American, and it so happens that he is one of the richest people in the Senate. Same thing they pulled for Bush. You have to vote for Bush because he is the kind of guy you would like to meet in a bar and have a beer with.

While I don't share Chomsky's skepticism that, at least in this election, personalities will trump issues enough to win, his point about the "two factions of the business party" seems more appropriate in the wake of the bailout, I mean "rescue."

These are games run by the public relations industry, which is a huge industry. It spends enormous resources manipulating attitudes and opinions. They design and control elections so that public in effect is marginalized. They keep away from issues for a very good reason. We know a lot about American public opinion. It is a very heavily polled country, mainly because business wants to keep its finger on the public pulse. So there is a ton of information, valid information. On a host of major issues, domestic and international, both political parties are well to the right of the population. So therefore, you don't want to talk about issues, not if you want to keep the business parties in power. Further, the population is aware of this, but the press won't publish it; 80 percent of the population says the country is run by a few big interests, looking out for themselves, not the benefit of the people, By about 3 to one, people object to the fact that issues are not at the center of the campaigns. They want issues to be discussed, not personalities. Party managers know that, but they won't go along with it; it is too dangerous. They have got to make sure that the two factions of the business party, Republicans and Democrats, stay in power.

Obviously there are enormous differences between these "two factions" that are at stake in this election. The biggest, in my view, lies in the areas of Supreme Court appointments, as we will be rid of either Obama or McCain in less than a decade but dealing with their appointed Justices for generations.

But Chomsky's descriptions ring true and thus worry me about whether a man who has shown an inability to manage a campaign or choose a running mate will end up winning despite these errors. In fact, two articles which were not widely reported over the last week worry me even more. They both concern whether an "October Surprise" is coming soon.

First, Robert Baer, a former CIA Agent and the inspiration for George Clooney's character in Syriana asks, in this article, "Are we going to have an October surprise, an attack on Iran by either the Bush administration or by Israel to stop the regime from becoming a nuclear power?" answering that:

It could happen - and alter the dynamics of the presidential race in the blink of an eye - but only if Israel pulls the trigger. Don't expect the United States to drop bombs anytime soon. The reason: Iran has us over a barrel.
According to Britain's Guardian newspaper, Bush earlier this year nixed an Israeli plan to attack Iran's nuclear facilities. Reportedly, the President said no because we couldn't afford Iranian retaliation against our troops in Iraq and Afghanistan or Iran closing down Persian Gulf shipping. Nonetheless, cynical speculation is now swirling in some quarters that with the financial collapse working against McCain - and Bush's legacy coming into focus - the President might reconsider. Could that tail really wag the dog?

Second, former "terrorism czar" Richard Clarke
asks "Why Osama bin Laden and al Qaeda Might Try to Affect the Election Between Barack Obama and John McCain."

What would be the purpose of any attempted manipulation of the U.S. election? It could just be to use the election to magnify the media coverage of their terrorist activities, make al Qaeda look even more capable than it is, and remind everyone they are still around. Such a media-amplified attack might help them with recruitment and fundraising. Even more likely is the possibility that al Qaeda would hope the attack would benefit John McCain. Opinion polls, which, as noted above, al Qaeda reads closely, suggest that an attack would help McCain. Polls in Europe and the Middle East also suggest an overwhelming popular support there for Barack Obama. Al Qaeda would not like it if there were a popular American president again.

I have no idea whether Chomsky is correct about McCain or whether Baer and Clarke are correct to anticipate either a U.S. approved Israeli attack on Iran or an Al Queda attack on the U.S., but I know this guy's analysis is always spot on: "It ain't over 'til it's over."

Follow-Up Questions

I’ve found it harder to write about criminal defense or other legal issues lately as I’m a little mesmerized by the election and the financial bailout. But in watching Katie Couric interview Sarah Palin, it seems her technique has something to teach lawyers about cross examination. I don’t mean to imply that Katie is cross examining Sarah the way a lawyer would “cross” a witness in court, but maybe her technique would work for us.

Katie’s best weapon is the follow up question. Palin, much like an expert witness, can say nothing very well and has memorized the talking points well. But she can’t deal with a simple follow up question that forces her to get into specifics beyond the platitudes.

For example, in this exchange, Couric has just asked Palin why, in her view, is Roe v Wade a bad decision and Palin has replied that it “should be a states' issue.” Watch how Couric asks a simple follow up to delve into her understanding of the foundations of the decision;

COURIC (to Palin): Do you think there's an inherent right to privacy in the Constitution?
PALIN: I do. Yeah, I do.
COURIC: the cornerstone of Roe v Wade
PALIN: I do. And I believe that...individual states can handle what the people within the different constituencies in the 50 states would like to see their will ushered in in an issue like that.
COURIC: What other Supreme Court decisions do you disagree with?
PALIN: Well, let's see. There's..of course...in the great history of America rulings there have been rulings, that's never going to be absolute consensus by every American. And there are..those issues, again, like Roe v Wade where I believe are best held on a state level and addressed there. So you know..going through the history of America, there would be others but..
COURIC: Can you think of any?
PALIN: Well, I could think of...of any again, that could be best dealt with on a more local level. Maybe I would take issue with. But you know, as mayor, and then as governor and even as a Vice President, if I'm so privileged to serve, wouldn't be in a position of changing those things but in supporting the law of the land as it reads today.

Couric certainly could have pressed her harder, asked again if she could, please, just name one decision or at least admit that she doesn’t know one. But she, probably wisely, moves on, knowing that it will be a long “cross” and that the truth about Palin’s knowledge on Supreme Court decisions has been sufficiently uncovered.
It’s easy to build a “house” that looks pretty solid when you can build it using a candidate who reads from teleprompters and then is interviewed by people like Hugh Hewitt who asks such tough questions "Now Governor, the Gibson and the Couric interview struck many as sort of pop quizzes designed to embarrass you as opposed to interviews. Do you share that opinion? 

Hewitt later (seemingly on redirect after cross by Couric) asks her if she and her husband “ever faced tough economic times where [they] had to sit around a kitchen table and make tough choices?” Palin, being thrown a softball, says that she “know[s] what Americans are going through.”
But then, in what must have made Hugh cringe, made an admission that won’t sit well with McCain. She said:

[T]here’s been a lot of times that Todd and I have had to figure out how we were going to pay for health insurance. We’ve gone through periods of our life here with paying out of pocket for health coverage until Todd and I both landed a couple of good union jobs. Early on in our marriage, we didn’t have health insurance, and we had to either make the choice of paying out of pocket for catastrophic coverage or just crossing our fingers, hoping that nobody would get hurt, nobody would get sick.

Ouch. She did just fine until she admitted it was a “union” job that pulled them up.
To return to the “House” analogy, it’s easy to build one that appears strong when its strength is only tested by people like Hewitt and by speeches in front of screened augiences with a teleprompter clearly showing what another person previously wrote and that your candidate has practiced.
But Couric “blew the house down” with simple follow up questions. Remember the question about which publications Palin reads? Watch how the follow up question dooms her and shows the audience that the person being questioned, who eloquently spouts generalities, cannot survive being asked about specifics:

COURIC: And when it comes to establishing your world view, I was curious, what newspapers and magazines did you regularly read before you were tapped for this — to stay informed and to understand the world?
PALIN: I’ve read most of them again with a great appreciation for the press, for the media —
COURIC: But what ones specifically? I’m curious.
PALIN: Um, all of them, any of them that have been in front of me over all these years.
COURIC: Can you name any of them?
PALIN: I have a vast variety of sources where we get our news.

Once again, ouch. The seemingly solid “house” gets blown down when asked for simple specifics.
It will be interesting to see how Palin does tomorrow night and the stakes for her career will be incredibly high. She will likely either turn into a footnote (if she performs like she did in these Couric interviews) or perhaps create a future for herself even if McCain loses if she can prepare and perform on a national level so quickly after such a shaky start.

Of course, hardcore supporters and detractors will see what they expect to see, but if Palin can somehow win over those who aren’t so polarized, she might pick McCain, and perhaps herself, up off the canvas the Couric interviews clearly put her on.
Couric also deserves credit for effective use of the “soft cross,” or at least the journalistic version of it. I saw Couric, before this interview, perhaps as Palin’s handlers likely characterized her, as a sweet, competent, but not hard-hitting reporter. I expected a friendly chat, with no real cross examination, but Couric showed that she can use these personality traits to her advantage. She, softly and nicely, kept asking follow up questions, not being afraid of the silent, awkward moments between question and answer. Couric brought out the truth about the person she was interviewing without resorting to the type of confrontation that would have turned the audience against the interviewer and towards feeling sympathy for the “questionee.”
Gerry Spence describes a moment when a jury member approached him, obviously upset at having just denied justice for his client. The woman asked Spence “Why did you make us hate you so?” He learned that he’d gone too far in tearing up the witnesses on cross, his anger having not only skewered the witnesses but alienated his audience. His hatred spread throughout the courtroom and doomed his client’s case.
Having seen how competent and effective Couric was in bringing out the truth about Palin without once raising her voice, I am reminded of another of Spence’s phrases: “Love is always the winning argument.”
I don’t mean to imply that Katie showed love to Palin, only that she didn’t show hate, didn’t go too far, knew when to stop, and seemed to sense when to simply let her “witness” hang herself.
Couric’s “soft cross” of Palin might be the breath that blew her house down, revealing it to be a mere facade that couldn’t withstand even a simple follow up question.

More Like This

A couple weeks ago Scott Greenfield wrote about a Ninth Circuit case, Garcia-Aguilar v. U.S. Dist. Court, (link to opinion).

I remembered the judge's bold description that the case "show[s] why the ten most terrifying words in the English language may be, “I’m from the government and I’m here to help you.” In fact, I find myself repeating the phrase out of frustration often, so often, in fact, that I went back to read the case. Since there's no way to improve on Judge Kozinski's introduction, here it is in full:

We consider the district court’s refusal to accept defendants’ unconditional guilty pleas.

These consolidated cases show again why the ten most ter-
rifying words in the English language may be, “I’m from the government and I’m here to help you.” Defendants pled guilty to re-entering the country illegally after having been previously removed, in violation of 8 U.S.C. § 1326. Their guilty
pleas were taken by magistrate judges, who conducted the plea colloquies required by Rule 11(b) of the Federal Rules of
Criminal Procedure, and who thereafter recommended that the district court accept the pleas.

When the cases came before the district court for acceptance of the pleas, the U.S. Attorney objected on the ground
that the magistrate judges had erred in conducting the Rule 11(b) colloquies. The district judges agreed and refused to
accept any of the defendants’ guilty pleas.

We consider the district court’s refusal to accept defendants’ unconditional guilty pleas.

Rule 11(b) is there for the defendant’s benefit, so it seems quite noble at first for the U.S. Attorney to stick up for defendants’ rights. But this generosity comes at a steep price: The
U.S. Attorney has already arraigned defendants on superseding indictments that specifically charge a violation of 8 U.S.C. § 1326(b)(2), which is punishable by twenty years in prison.

This is eighteen years more than the two-year maximum sentence available under defendants’ original indictments, which
did not charge any conduct that could increase the maximum penalty above two years. Defendants reject the government’s help and petition for writs of mandamus directing the district court to accept their unconditional guilty pleas.

After that excellent introduction, the opinion ends like this;

Due to the U.S. Attorney’s oversight, defendants may well avoid the enhanced sentences to which they may have been subject under section 1326(b)(2). “So be it.” United States v. Velasco-Heredia, 319 F.3d 1080, 1087 (9th Cir. 2003). The district court shall accept defendants’ unconditional guilty pleas to the original indictments.

One role of the defense lawyer is to educate the judge about the necessity of ensuring that the law is applied to the government as it prosecutes people for breaking it. It's much easier when judges grasp the necessity of this role and so much more enjoyable when they demonstrate it so eloquently.

One other phrase I often think of is that bureaucracy and justice are like oil and vinegar: If not constantly agitated, they naturally separate.

A DUI Defender's "Perry Mason Moment"

On Friday I was able to attend an excellent seminar on Cross Examination put on by the NCDAA which featured Terry and Terry MacCarthy of Chicago. Terry, Jr., was my instructor at the National Criminal Defense College and is both an excellent teacher and lawyer. Terry, Sr., is the nation's leading expert on cross examination. I'll write more on the seminar later, but thought at the end of it that I love to go to these things both for the information and the opportunity to meet with other criminal defense attorneys from across the state and nation.

Bell Island, an excellent criminal defense lawyer from Scottsbluff, NE, described learning a lot about defending DUI cases after joining the NCDD (I know, there are a lot of similar acronyms!) which stands for the National College of DUI Defense. I first heard of the college after attending a seminar that Troy McKinney conducted a few years ago. Since then, I've intended to join but haven't yet. Bell, as well as five or six other Nebraska attorneys, joined the College after hearing Troy's presentation, which was fortunate as just a few years ago there were no members from Nebraska.

Bell told me how much he learned from the college, but it was a story he told that brought this home. He described being in trial, cross examining the State's expert on the Datamaster breath testing device. During the cross, the expert, in front of the jury, blurted out a statement criminal defense lawyers aim for but rarely hear. He said:

"I don't know. You know that machine better than I do."

Guess who the jury listened to? They listened to the expert, who told them to listen to Bell, who later heard two other words: "Not Guilty."

Troy McKinney's presentation a few years ago made me want to join the NCDD, but Bell's story made me finally write out the check. Hopefully I'll know that machine better than their experts in the future.

When you look for a DUI lawyer, ask yourself if they know the machine this well. If they do, you're in good hands.

Switching Hats

Today I appeared in court in a new role for me: Guardian Ad Litem for a "Child" in a child neglect case. A child in Nebraska is a person under 18 and this case involves two teenagers. I won't go into a lot of details as it's both on-going and personal for the family involved. Like most of my cases, it's meth-related but I look at it differently as I'm wearing a "different hat."

When the attorney for the father turned in court and asked the kids whether they were afraid of their father, I didn't object because I knew both what they would say and what I would say later. What would you have said if you hadn't seen your dad in a couple months, had been pulled from your home and were now living in a relative foster care placement?

They said what I would have said, what almost all of us would have said: "No, I'm not afraid."

But there are plenty of reasons to be skeptical of this, none of which I list have anything to do with this particular case but with all meth related cases in general. One reason is that even if you combine a reasonable person with a lack of sleep for a few days, they quickly devolve into unpredictability. Another is that it's easy to fake sobriety when there are no "UA's" to verify that a person is staying "clean." A third is that, at least in my experience, even a few weeks away from meth doesn't eliminate the "tweaking" behavior and irrational decision making that tend to accompany an active user.

Just yesterday a client of mine graduated from Adult Felony Drug Court, earning a dismissal of his felony charges. A month or so ago, a former hard-core user client of mine graduated, along with his wife, successfully from a Juvenile Court Drug Court Program for parents.

I got a chance to speak and I told a story. It wasn't very uplifting but I thought it was appropriate. I told how I got a call from my favorite client, who successfully broke away from heroine, whose appearance changed so much it would bring tears to the eyes of people who saw how great she looked after looking so close to death as she came to court. I told about meeting this client at the jail and watching her collapse on the floor there, of her then falling on the floor of the "arraignment courtroom" a few days later, screaming out the name of the last person who could help her, her public defender.

And then I told about getting a call from her a few years later and her wanting to say thank you. It wasn't the content of the call that got me down, it was the background noise that made the thank you not be very welcome. You know the sound. The universal jail background noise.

So my story wasn't to uplift but to remind these people, who were graduating after less than a year of being clean and sober, that they weren't out of the woods yet. I almost invoked a story from "Deep Survival" in which Laurence Gonzales describes telling people who were setting out to climb mountains that their goal wasn't to reach the summit but to reach the car again. This would remind them that the work wasn't done once you started back down as most accidents seemed to happen not when your guard and senses were up but when you let them down, thinking your work was over and your goal achieved.

It didn't go over very well, but I didn't care. I was sick of seeing "frequent flyers" come back to see me on new charges shortly after their other case ended. I was a little disheartened that after having about 30 trial on termination of parental rights cases and losing about 29, the one client whose case I "won" or who rather cleaned herself up enough that the judge was convinced she deserved another chance, ended up, a few years later being my first case involving possession of meth with intent to distribute.

As depressing as that story is, it's not over as she just entered inpatient treatment and will, if everything goes well, enter Adult Felony Drug Court in a month or so. Maybe this will her "bottom." This time if it isn't, she'll go to prison. But if it is, her first felony will later be dismissed.

So I enjoyed my new role as Guardian Ad Litem. I've heard so much b.s. over the years from active addicts that I just consider if symptomatic and ignore it, believing my eyes and not my ears.

I'm grateful for this past experience, however, because it helps me in this role. I know that asking the kids if they were afraid of their actively-using dad right in front of him and the judge may have convinced the father that his kids have forgiven him but it didn't convince me of anything. It's what Seinfeld would call a "must lie situation": only the most scared or most manipulative teenager would have said "yes."

It's interesting though, to wear a different hat, to have to think of what's in the best interests of two teenagers who are mature enough to take care of things like feeding and cleaning up after themselves but who really need their parents to be both sober and there for them in their teenage years.

I spoke to a judge once who described requiring parties in Juvenile Neglect cases to "switch hats" periodically. He said it was good for them to think of the cases differently, to walk in the shoes of a different party once in awhile.

Great idea as I do see things differently, wearing this hat and having to look out for these kids.

Now That's A Sports Fan!

Tony Romo needed 13 stitches in his chin after the Cowboys 28-10 win over Cleveland last Sunday. Then, on his way home to Dallas:

A couple says Romo helped them patch a flat tire on the side of a busy street last weekend after the Dallas Cowboys star returned home from a season-opening win at Cleveland.

Bill and Sharon White told the Fort Worth Star-Telegram that at least 100 drivers ignored their broken-down Mercury before someone stopped late Sunday. Sharon White said a well-dressed man "with something strange on his chin" walked up and offered a hand.

Sharon White said she asked twice before Romo told her who he was and then "screamed real loud, and then jumped up and hugged him."

But the husband had a different reaction as he told Romo:

"Don't tell me how you guys did," he said he told Romo. "I'm going home to watch it."

The "Reality Based Community"

What scares me about Sarah Palin is her willingness to lie and the media’s attention to “how she did” as opposed to “what she said” and whether it was true. Reminds me of a former Texas governor who was portrayed as “someone you’d like to have a beer with” and who ended up pissing all over the Constitution the next morning. Forget Hockey moms, the only difference between Palin and Bush is lipstick and that's likely what attracted Dick and Karl to her!

There is a difference between Palin’s words and the truth, however. Consider what she said about the “Bridge to Nowhere.” She claimed to have said “thanks but no thanks” to the money but the NYTimes reported in Nov. ’05 that “ House and Senate negotiators... eliminat[ed] a requirement that $442 million be spent to build the two bridges... [and it] will be turned over to the state with no strings attached.”

Notice the date: Nov. 2005. She wasn’t elected Governor until one year later, in Nov. 2006! She didn’t say no to anything but just did what Congress told her to do: spend the money on something else. Congress said “no thanks” to the remote bridge. She said “thanks” to the cash and “no” to the truth.

So what scares me isn’t Sarah Palin so much her as the people who picked her and who write the lies she delivers, and the fact that the press isn’t pressing anymore. As Twain said, “a lie is halfway around the world before the truth gets its boots on.” With the election so close, it better hurry.

Consider how well these people use propaganda and how bad the press is at cutting through it: Just two years ago a Harris poll showed that 64% of Americans still thought Saddam Hussein had “strong” links to Al Qaeda. WTF?

I agree that Obama has momentum, and that’s something to be encouraged about and fight for. But let’s not misunderestimate these Machiavellian Mayberrys.

That’s why they play the games, I guess.

With that in mind. I was reminded of the quote below that Ron Suskind reported in the New York Times magazine back in 2004:

The aide said that guys like me were ''in what we call the reality-based community,'' which he defined as people who ''believe that solutions emerge from your judicious study of discernible reality.'' I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ''That's not the way the world really works anymore,'' he continued. ''We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do.'

'

Doesn't this quote tell us not only about Bush's "faith based" Presidency but also about Sarah Palin's Vice and possible presidency? She, or whoever wrote the speech she delivered, could have honestly pointed out that she didn't actually sell the former Governor's jet on ebay or that she wasn't in office when the "Bridge to Nowhere" funds were given to the state, but it's better for them to "create their own reality" by allowing this half-truth to continue its bullshit-fueled journey. "Truthiness" is what Stephen Colbert calls it.

It's not "lying"see; it's "creating their own reality." And it's pretty terrifying actually, with a "shock and awe" quality. It's like they're carrying out a disinformation campaign not in enemy territory but in their own country. Or maybe, seeing themselves as "history's actors" and "us" as the sheep who are left to study what they do, they see voters as livestock to be tended but not respected.

Laws and morality are for suckers who haven't figured out how to obtain immunity, who still believe in "quaint" laws like the Geneva Conventions and, in doing so, show that they're not "history's actors."

I'm excited about Obama's rise but don't know what we'll do if their tactics work this time. The stakes are very high and the empire knows how to strike back. Just look at the way they dress a wolf up in sheep's clothing.