Tuesday, February 03, 2015

Never Skin a Cat



"There is more than one way to skin a cat."  How I despise that detestable aphorism.  There are more genteel ways to express that there is more than one way to accomplish a task.  Is the adage even apt?  It is hard for me to imagine one, let alone two or more ways to accomplish this abhorrent act.  Nevertheless, I draw upon this pitiless yet familiar proverb because everyone knows in an instant what it means.  It is my opening to discuss the au courant practice of avoiding traditional avenues to seek justice.  Some call it alternative dispute resolution.  It is one thing in the area of civil law, but something quite different in criminal law.
          I am not talking about creative or new methods of dispensing justice in the traditional forums.  A goal of the Realignment Act is to reduce the prison population.  (See Pen. Code, §§ 17.5, subd. (a)(4) & (5), 1170, subds. (h).)  Some judges employed novel sentencing techniques to accomplish this goal long before the Realignment Act became law.  Shaming defendants because of their wrongdoing is an example. 
In the old days people could endure just about anything but shame.  If you felt ashamed, it would be unbearable to look others in the eye.  That’s why Oedipus switched to Braille.  His “shameful” act has become a popular expression of derision, more frequently used by those who have never heard of Sophocles.  Like substantial evidence questions, the expression occurs with “rhythmic regularity” in the transcripts of criminal cases. 
Does anyone feel humiliation or shame nowadays?  If “reality” shows are an indication, the answer is obvious.  People eat live bugs and snails, reveal their most vulgar traits, plot against their friends, have sex with strangers, and suffer innumerable humiliations witnessed by millions of enthusiastic viewers.  If Hester Prynne were here, she would be doing commercials for the Auto Club. 
In United States v. Gementera 379 F.3d 596 (2004), defendant was convicted of stealing mail.  As part of his punishment, he was ordered to stand in front of a post office for a day wearing a sandwich board sign that said, "I stole mail.  This is my punishment."  On appeal, Gementera argued that the sentence was not legitimate because it violated contemporary standards of decency and humiliated him.  The Ninth Circuit saw it differently and affirmed the sentence.  The majority acknowledged that the sign condition likely will cause Gementera humiliation or shame, but the condition is reasonably related to rehabilitation, a goal of the federal Sentencing Reform Act.  Apparently it did not occur to Gementera that his pilfering letters violated contemporary standards of decency. 
In Demery v. Arpaio 378 F.3d 1020 (2004), the sheriff used "web‑cams" to stream on the Internet live images of pretrial detainees in county jail.  The Ninth Circuit affirmed the district court's grant of a preliminary injunction prohibiting this practice.  The appellate court failed to see how turning pretrial detainees into unwilling objects of a kind of reality show served any legitimate goal.  The practice amounted to unlawful punishment of pretrial detainees.  There were dissents in both Gementera and Demery proving that notions of justice can depend on perception and the right panel. 
If shame is an anachronism, why did Gementera and Arpaio appeal?  I think there is a world of difference between choosing to act in humiliating and shameful ways in front of a jaded public, and quite another to be forced to do it. 
One California judge, since retired, ordered a beer thief to wear for one year a T-shirt on which was boldly written, "I am on felony probation," and "My record plus two six packs equals four years."  The Court of Appeal in People v. Hackler 13 Cal.App.4th 1049 (1993) disallowed the order reasoning that the T-shirt just might not favorably impress prospective employers, thus defeating defendant's rehabilitation.  In another case, unpublished, the same judge sentenced a woman convicted of beating her children to wear a contraceptive Norplant device as a condition of probation.  The judge’s rationale for the sentence was that the defendant was a drug addict and the dependency court had terminated her parental rights to her five children.  The judge reasoned that he was trying to protect a child not yet conceived from brutality and neglect.  No surprise that on appeal this sentence was reversed as unconstitutional. 
          Many years ago Los Angeles Superior Court Judge Veronica Simmons McBeth made international headlines when she sentenced a slum landlord who refused to bring his apartment house up to code to live in the squalor of his own dilapidated tenement for a few months.
          In appropriate criminal cases, creative sentencing that avoids incarceration is beneficial to society and to defendants.  But it is quite another story when alternative dispute resolution is used to avoid prosecution in criminal cases.
          We reject the notion that gangs may exact retribution against one another for perceived criminal acts.  We should also reject the notion that those who belong to religious, social or ethnic groups that break the law may bypass society's law enforcement system for their own internal system of justice.  It has been reported that some in the hierarchy of the Catholic Church thought it best that priests accused of molestation be dealt with within the church rather than through the police department, the district attorney and the criminal courts.   
          In an article in The New Yorker (Nov. 2014) entitled "The Outcast," Rachel Aviv wrote a compelling piece about a man's teenage son who was allegedly molested by a man who prayed at the synagogue to which they belonged.  Aviv wrote about the Hasidic community of Borough Park, Brooklyn where these alleged acts occurred.  A "modesty committee" enforces standards of sexual propriety among Borough Park's hundred thousand ultra-Orthodox Jews according to Talmudic law.  Aviv reports that "[w]hen children complain about being molested, the council almost never notifies the police. Instead, it devises its own punishments for offenders: sometimes they are compelled to apologize, pay restitution, or move to Israel."  The article raises questions that apply to all groups whether they be religious or not.  Is it ever appropriate to keep matters involving the criminal "in house"? 
          Less serious alleged criminal violations may not always be amenable to adjudication in traditional courts.  Penal Code section 383b states in part:  "Every person who with intent to defraud, sells or exposes for sale any meat or meat preparations, and falsely represents the same to be kosher, … is guilty of a misdemeanor…."  Many decades ago, when I was a young deputy city attorney for the City of Los Angeles, I was assigned a case in which a violation of section 383b was alleged.  I leave for another column my adventure with the kosher chicken case. 
          The California Supreme Court in Erlich v. Municipal Court of Beverly Hills Judicial Dist. 55 Cal.2d 553 (1961) held that the statute was constitutional and not void for uncertainty.  But Korn v. Rabbinical Council of California, a civil case originally cited as 148 Cal.App.3d 491 (1983), held that the determination of whether a meat company's food is kosher is an ecclesiastical question best left to an ecclesiastical court when rabbinic authority is in disagreement over whether the meat is kosher.  This holding could have a profound effect on criminal cases or maybe not.  The California Supreme Court ordered that the "opinion be not officially published."
          Except in the most exceptional criminal case, I draw upon what is reputed to be an old Spanish proverb:  "There are more ways of drawing a cat out of a well than by the bucket."  I prefer my own version:  "There is no better way of drawing a cat out of a well than by a bucket."

A Personal Letter



In the past couple of weeks I have received a plethora of deeply personal, generic "holiday letters."  The adjective "holiday" is a euphemism for "Christmas" to avoid offending Jews, Muslims, atheists, Druids, and other nonsubscribers.  Oh dear, I fear the preceding sentence may offend my many Christian friends.  To you, please substitute the word "substitute" for the word "euphemism."  And if that preceding sentence is confusing (two "substitutes" in the same sentence), we could substitute the first "substitute" with the word "replace."  But then we have to recast the sentence.  "To you, please replace the word "euphemism" with the word "substitute."
         There now, I think that is a bit clearer. Yes, I quite understand.  It would have been easier to simply edit the original sentence and substitute or replace it with the new sentence; also delete the word "quite."  But because (not "since"; "since" should not be used to mean "because") most of you who read this column must write (or is it draft?) letters, proposals, contracts, briefs, and resumes occasioned by partnership dissolutions, I thought the foregoing would be useful, despite the ungainly length of the sentence.
In the beginning of the New Year, we writers can take a moment to commiserate with one another over the pain that accompanies our endeavors.  Our New Year's resolution is to do what we must to acknowledge that we are good writers only if we acknowledge that we are re-writers.
         And that takes us back to the writing of the oxymoronic "personal, generic" holiday letter.  These letters, particularly those from family members of lawyers, if not the lawyers themselves, are posted to hundreds of their intimate friends.  I have been a recipient of many such letters from people I am not sure I know.  They relate in self-congratulatory detail the wondrous events that have happened to them and their families and firms during the past year.
         Here are some passages from one I received last month from attorney Frank's wife, Gladys:
     "In June, our son, the genius Marvin, graduated top of his class at Harvard and has been made managing partner of an international tax firm at a starting salary of $2 million bitcoins.  
     Our daughter, the Yale physics professor, just published her fourth award winning book in which she describes her discovery of the unified field theory.  And, can you believe it, in February, she ran her 46th marathon and, in September, climbed Mount Everest where she saved five Sherpa guides from an avalanche and was awarded the Medal of Freedom. 
     Frank just landed two major clients for the firm, China and The European Union.  
     The villa in Paris is not quite finished so the kids joined us for a family reunion at the Palace Versailles.  I had quite a dilemma.  How many heads of state could we invite for our family holiday dinner?  Frank said '"the more the merrier,'" but I wanted something more intimate.  The Obamas couldn't make it, so we just invited the premier of Poland.  He is a kick with a wicked sense of humor.
     On a sad note, in November, our beloved Cocker Spaniel Corky died peacefully in his sleep and now is in dog heaven.  But he lived for 34 years and is in the Guinness Book of Records as the longest living Cocker Spaniel in recorded history.  Frank's client, an internationally famous veterinarian, was able to extract blood cells from Corky a month before his passing (Corky's passing, not the veterinarian).  He developed a formula that allows dogs to double their life expectancy.  We are so proud of Corky's contribution.  
     As for me, I intend to continue my work as financial consultant to the top ten firms on the New York Stock Exchange.  Whether or not I will accept the offer of Chair of Alibaba remains to be seen.  
     We wish you all a Joyful and Happy Holiday season and urge you to join us in prayer for the betterment of those who have not had the drive or connections to be as fortunate as we have."
         Are there generic holiday letters that speak of the misery of the past year?  You are not likely to read:  "Tom was disbarred last year.  Pete went AWOL in drug rehab.  Flossie choked 'till she was blue in the face on profiteroles at Starbucks last month."  Holiday letters are smug advertisements touting the accomplishments of the sender and her or his family to a mass audience.  I admit my response runs the gamut from envy to resentment.
         So no generic holiday letter to you, my readers.  You will not receive a self-congratulatory holiday missive reporting my monumental accomplishments this past year.  That there are not any to report is beside the point.  And you will not read from me saccharine, cloying, paeans of hope for your happiness and good fortune in the coming year.  You are in charge of that.  My good wishes will not make an iota of difference.
         I write letters directly to a particular person.  So if you will permit a change in tone, I write to my friend Judge Ruggero Aldisert, who passed away last week.  I was about to scuttle the column and write a eulogy, but he spoke to me and said, "I will permit a paragraph or two about me, but stay with the column.  Perhaps someone's writing will improve."  I think he was referring to me.  He does not mind my sharing this letter with you. 
         "Dear Rugi, We established a personal relationship a mere five or six years ago, but during that short period of time you enriched me for years to come.  I did not imagine that at my age I could have a mentor, but in fact you had been my mentor for years before we met.  Your articles and books on judging and the legal profession showed me and others in our profession how to analyze issues, how to structure and write our opinions with clarity and insight, how to do our job in the best possible way.  There they are on my shelf:  The Judicial Process: Text, Materials and Cases (2d ed. 1996) West Publishing Co.; Logic for Lawyers: A Guide to Clear Legal Thinking (3d ed. 1997) National Institute for Trial Advocacy; Winning on Appeal: Better Briefs and Oral Argument (2d ed. 2003) National Institute for Trial Advocacy; Road to the Robes: A Federal Judge Recollects Young Years & Early Times (2005) AuthorHouse; A Judge’s Advice: 50 Years on the Bench (2011) Carolina Academic Press; Opinion Writing (3d ed. 2012) Carolina Academic Press; and your novel Almost the Truth, A Novel of the Forties and the Sixties, published last year.  Unfortunately, my shelf could not hold the more than 50 law review articles you authored.
         After your retirement, following a mere 52 years as judge, you and I had planned on having some extended visits with our spouses.  What a profound disappointment these meetings will not happen.  But we will continue to have our conversations and you will always be my mentor.  Goodbye dear friend."

Wednesday, November 12, 2014

Pardon the Interruption-Part II



This marks the 100th birthday of the great Welsh poet Dylan Thomas.  So let us begin with a few lines from his poem Fern Hill.

And fire green as grass,

 And nightly under the simple stars

As I rode to sleep the owls were bearing the farm away,

All the moon long I heard, blessed among stables, the nightjars

Flying with the ricks, and the horses

Flashing into the dark.” 

When I first read this poem in high school, I did not know what he was talking about.  Yet, I loved the lilting sound of the words, their unexpected, startling juxtaposition, the rhythm of the language that carried the reader or the listener forward on a captivating journey.  But when I thought more about the poem I came to realize Thomas was recalling his childhood in Wales.

         In college I read T.S. Eliot’s The Love Song of J. Alfred Prufrock, a far more intellectual poem.  The extraordinary opening line grabbed me by the throat and would not let go:  "Let us go now you and I where the evening is spread out against the sky like a patient etherized upon a table."  I liked the poem, but why I could not say.  But because I had to write a paper analyzing the poem, I had to understand it as best as I could.  This forced me to dig beneath its surface to gain insight into its meaning.  I also considered the analysis of critics and scholars.

         Most critics agreed that Prufrock spoke to the corrosive and emasculating effect of modern society on humankind.  Some thought “you” and “I” in the opening stanza reflected a dialog between Prufrock and an imaginary woman he did not have the courage to meet.  I posited that "you" and "I" were two aspects of the psyche within the same person. 

         At the time I could not have realized that my approach to the poem would be similar to what I and my colleagues do as judges.  The big difference is that what we read is not as inspiring, nor as enduring as poetry.  We analyze briefs and write about them.  But, like literary critics, we do not always come to the same conclusion and often see issues differently.  Our opinions that reflect our diverse analyses and interpretations can be equally convincing and valid.

         But in another respect, I never expected that my analysis of T.S. Eliot’s famous poem would visit me with a vengeance some 47 years later.  And this takes us back to my last month’s October column.  “Pardon the Interruption.”  You may recall I wrote about Martine Rothblatt's book "Virtually Human."  He wrote about modern technology allowing us to create cyber-conscious digital replicas of ourselves.  He has created one of his wife, called Bina48. 

         It is one thing for a column to engender discussion and debate, but I never expected to be confronted with what resulted from this column.  It stems from talented and resourceful lawyers.  Many are musicians, writers, and artists.  And some are scientists.  The staff at my court, under the coordination of research attorney Katy Graham, created a virtual replica of myself.

         I was thrilled and looked forward to a warm, enduring and beneficial partnership.  But if I had thought back to a peculiar concert at the Shrine Auditorium in Los Angeles I attended a few years ago, I would not have had such high expectations.  It featured the great jazz pianist Art Tatum.  Tatum’s prodigious technique and harmonic inventions were so awesome that even the great piano virtuoso Vladimir Horowitz listened to him.  When I was around 10 years old, my Dad took me to hear Tatum at Sardis, a club in Hollywood. I recall standing next to the piano and watching the blur of Tatum's fingers over the keyboard.

         But how could I attend this concert when Tatum had been dead for over 40 years?  This was a virtual concert.  Technicians had reproduced Tatum’s solo concert at the Shrine Auditorium in 1939 on a concert grand Steinway.  My wife and I were among the few people who showed up for the concert.  Sitting in the cavernous Shrine Auditorium watching a Steinway piano play without a player was creepy.  After a few numbers we had to get out of there.

         Interruption for advertisement.  Speaking of the Shrine Auditorium, and a piano player named Art, I will be playing the piano there for a Veterans Day Concert with the award winning Big Band of Barristers conducted by Gary Greene, Esq. on Sunday, November 9th, at 3:00 p.m.  Doors open at 1:00 p.m.  Guest artists and the great singing group Singers-In-Law will be performing.  Free tickets are available if you click on www.BigBandGig.eventbrite.com.  You will find that lawyers swing.  End of advertisement.  

         But getting back to my virtual self.  I had such high hopes.  It's a long drive to Ventura.  I thought it would allow me to work at home more often.  My cyberself Arthur 2 could take care of routine cases and sign orders.  But to be perfectly frank, I don’t trust him.  We seldom see eye to eye on anything.  He wants to do the hard cases.  That’s fine with me, but he gets the wrong results.  He is much tougher than I am on continuances.  Now I have to drive up more often to keep an eye on him.  And get this, he objects to the name Arthur 2.  What?  He should be Arthur 1?   No way. And he constantly interrupts me.  He is a pain in the ass.

         I want to get rid of him.  But like Prufrock he is a part of me.  Let’s face it, we can’t get away from ourselves.  And at least Arthur 2 and I have some things in common.  For example we both love Dylan Thomas.  Of course, I cannot know how many years I have left, and Arthur 2 could be around years after I am gone.  But Arthur 2 knows that “forever” is a dream.  We have told each other:



Do not go gentle into that good night,

Old age should burn and rave at close of day;

Rage, rage against the dying of the light.”

Thursday, October 23, 2014

Pardon The Interruption



     A few months ago I was at a "bar event."  They are all the same.  Lawyers and judges schmooze over h 'oeuvres and drinks.  (Will not stoop to "schmooze over booze.")  So here I am talking to retired Superior Court Judge Burt Pines.  In mid-sentence, a well-known lawyer comes by and says, "Hello Justice Gilbert," and, before I can respond, he begins talking to Burt Pines.  Halfway into his sentence I interrupt him and say, "Nice ploy.  Here I am talking to Burt and you also want to talk to him.  You interrupt our conversation, acknowledge me with a salutation, and then quickly take over the conversation by speaking to Burt." 
         The lawyer is now embarrassed and apologizes all over the place.  I tell him not to worry, that I am glad he interrupted us.  It will make a good subject for my column.  He is now sick with worry.  I try to assuage his distress with the assurance that I will probably not use his name.
         In the middle of this discussion, two other lawyers come by and begin talking to the now-sweating attorney.  "It must be contagious," I remark.  "These two lawyers are doing to us what you did moments ago to me."  Burt Pines takes all this in with a bemused expression on his face. 
         The two new interrupting lawyers look puzzled.  I explain to them, as I had to the first interrupting lawyer, that they had interrupted us, much to the relief of the first interrupting lawyer.  They, like the first interrupting lawyer, begin falling over themselves with apologies.  I tell them not to worry.  In fact, I thank them.  "This will be good material for my column."  Now they too are sweating… profusely.  Just then a server with a tray of shrimp comes by and interrupts us.  "Would you like some shrimp?"  I love shrimp, probably because I am short.  I decide not to chastise the server.  As I reach for the shrimp, the three lawyers I have been talking to, all of whom tower over me, leave.  I turn to Burt Pines, who is also much taller than I.  He is nowhere to be found.
         Of course judges, including yours truly, have from time to time interrupted lawyers arguing a case in court.  So it's only fair that they get to do the same thing to a judge when out of the courtroom.  And I did interrupt them when they interrupted me.  So I was not in the least offended by their interruptions, even though the private detective I hired to follow them overheard them express the hope I would retire soon.  Perhaps in the next few years, it could happen.  The law in California has recently been clarified concerning post-employment options for retired judges.   See Gilbert v. Chiang 2014 LEXIS 6391. 
But retirees, like old soldiers, fade away.  I was speaking with some young lawyers and mentioned Malcolm Lucas.  "Who?"  They asked.  "Are you kidding?"  I replied.  "He was only the Chief Justice of California."  Their reply, "But when?  If it's over a decade, it's ancient history."  That they were entertainment lawyers is beside the point.  The point is "when you are gone, you are gone." 
Perhaps that is why some people are loath to retire.  But to forestall retirement from one's work or profession does not offer refuge from the ultimate retirement.  I learned this when I was a mere five years old. 
         To this day, I recall an elderly lady who was a family friend.  Her beloved Pomeranian had died and, in the parlance of a five year old, she had it "stuffed."  My mother used the euphemism "preserved."  On a visit to the elderly lady one afternoon (you think I remember her name?), she asked me if I would like to see her dog "Cookie."  I said that would be O.K.  At that time, I did not know all that much about death.    
         The elderly lady went to "fetch" Cookie.  She took him off a shelf in her closet and brought him out to "meet the guests."  She put Cookie on the floor in front of me.  I had a little rubber ball which I threw for Cooke to retrieve.  Cookie did not move.  Being the precocious five year old that I was, I determined that neither Cookie nor the elderly lady were all there.  At that moment it became apparent to me that death was my enemy and that in the end it would defeat me just as it did Cookie and in due time the elderly lady. 
         This takes me to Jeremy Bentham, the founder of the Utilitarian School of Philosophy.  He had a unique solution to the predicament of losing control after he died.
         Bentham was the inspiration for the creation of the University College London which opened in 1826.  University College London was open to all regardless of race, creed or political belief.  Bentham left his estate as an endowment to the university, along with his papers, on condition that his body be preserved "in a chair usually occupied by me when living, in the attitude in which I am sitting when engaged in thought in the course of time employed in writing."  The writing style of philosophers has not changed much in the last few hundred years.
         Bentham's wishes were carried out when his embalmed body was placed in a cabinet called the "Auto-Icon" in the hallway of the university.  The Auto-Icon has been wheeled in for important meetings of the college council.  Rumor has it that when the vote is tied, Bentham breaks the tie by a vote in "favour" of the pending motion.
         My wife Barbara and I had the pleasure of meeting Mr. Bentham many years ago when a professor friend of ours at University College opened the Auto-Icon and introduced me to the good philosopher.  Mr. Bentham was most congenial and we got along famously.  In fact, I wrote a column about our meeting.  I considered following Mr. Bentham's suit and, after my demise, being wheeled into conferences in my Division 6 of the Court of Appeal.
         But that would be as silly as the Chinese empress who had her husband's embalmed corpse accompany her on her peregrinations throughout the kingdom.  The only advantage was that she got to do all the talking.  But technology may provide a better answer.
         In his new book "Virtually Human," Martine Rothblatt, the brilliant transgender scientist, philosopher, business tycoon, argues that the day of the mind clone is just around the corner.  Technology is close to producing digital copies of ourselves.  Yes, "cyberconscious" digital entities are separate conscious entities who paradoxically are us.  Rothblatt has created such an entity of his wife called Bina48.  She talks and has views about things.  I think she wants to vote in the next presidential election.
         Alive or dead I may be able to retire and leave my virtual self at the court.  I could go into private or public practice and yet still be on the bench.  I would have two jobs.  Not to worry.  I would not appear in front of myself.  Aside from the conflict of interest, I hate to be interrupted.