December, 2008

It’s A Question Of History

martin-luther-king2hitlerIf you were given the opportunity to meet ten historical figures of interest either living or dead and could only ask one or two questions  about present day knowing you would get truthful answers, who would you want to meet and what would you ask? I am not speaking of a  top ten list of the most important historical figures.  I am speaking of figures whose beliefs and actions have somehow influenced your personal space.  Questions you consider personally important regardless of what anyone else thinks.  Here is my list and the questions I would ask in no particular order.  They may or may not be questions you would ask but it’s my space.

1. Adolph Hitler.  Why do you really hate me as a Jew?

Susan B. Anthony:  Is there gender equality ?

3. Thomas Jefferson:  When you drafted the Declaration of Independence did you have visions of the democracy of the distant future?  Is democracy  what you envisioned in 1776?

4.   Jesus Christ:  What really happened?

5.   Franklin Delano Roosevelt:  How much did you really know about the Holocaust?  Would you have handled it differently?

6.  Martin Luther King:  Is racial equality where you dreamed it would be?’

7.   Samuel Morse(the inventor of the telegraph):  What do you think of cell phones?   Is the internet a positive influence on society?

8.   All authors Of The Bible:  If you were not there, who told you?

9.   John F. Kennedy:  How would you address the terrorist threat and Iran?

10.   Albert Einstein:  How much further can we go?

Who and what would you ask?

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Enemies Of The State

Does the  the president  have the power to order the indefinite military detention of American born ,U.S. naturalized citizens  or other legal U.S residents seized on domestic soil?   Joe The Plumber terrorized the Democratic party with his economic theories.  If he were have deemed to have committed an actual terrorist act on domestic soil, could he be stripped of the constitutional rights that our children hopefully read about in civics classes and we adults learn about by watching endless  Law and Order re-runs?  We are about to find out.   The answer will have dramatic effects on the upcoming Obama Administration which no doubt views such rights differently than the Bush administration.  Bush’s policy has been for all practical purposes that such people have no rights at all other than international basic human rights.   The “Bushanzied”  Justice Department has fought tooth and nail to keep it that way. There is no one better to attest to that than U.S citizen Ali Saleh Kahlah al-Marr.

Ali Saleh Kahlah al-Marr, a A legal resident alien and student at Bradley University arrived in the United States the day before the 2001 terrorist attack. Weeks later, he was arrested after authorities found in his home hundreds of credit card numbers belonging to others.  As the investigation into him progressed, alleged ties to al Queda were uncovered.  In 2003 President Bush formally declared him an “enemy combatant” under the “Authorization For Use of Military Force Act”  He was transferred from civilian custody to military custody.  President Bush alleges that:

“al-Marri engaged in “hostile and warlike acts” working as an “al Qaeda sleeper agent” who was planning to “hack into the computer systems of U.S. banks” for a possible follow-up to the 9/11 attacks.”

This is not the first time the Bush administration has branded someone in this country legally an enemy combatant. Louisiana-born Yaser Esam Hamdi, another former ”enemy combatant” held in this country without charges, was eventually sent home to Saudi Arabia after renouncing his right to U.S. citizenship.  He was an American born, United States citizen.

This is not as clear cut as the captured Germans who landed on U.S soil by Submarine during World War II.  They were  immediately declared enemy combatants. They were tried in a military setting.  Most were executed .  This was an easy call. We had a Congressional declaration of War against Germany.  Germany had one against us. The enemy was easy to spot.   The eight German saboteurs (one of whom claimed U.S. citizenship) were tried by military commission for entering the United States clandestinely by submarine, shedding their military uniforms.  President Franklin D. Roosevelt convened a secret military tribunal which sentenced the eight men to death. The President later commuted the death sentences of two to life in prison for helping in the capture of the others. quirincourt

Today we have post 9-11 legislation that makes it relatively easy for a President to hang a combatant tag on someone, stripping that person of practically all constitutional rights.  Today we have 200+ detainees at Guantanamo Bay which President-elect Obama has vowed to close.  If they are moved to American soil what rights will inure to them if they are not declared enemy combatants?   If they are charged with federal crimes, they will have federal rights.  Secrets may be exposed. Evidence obtained by unorthodox means may be excluded. There is no easy answer.  To come up with one, we have to accept that the concept of war as our parents knew it has changed.  This philosophy has been the backbone of every move the Bush administration has made in this arena.  In the terrorist millennium, the true “declaration of war”  enemy combatant scenario has arguably become obsolete. Does this mean our Constitution has become obsolete in this area requiring the use of executive authority  and knee-jerk legislation to make up for any shortcomings?   I would hope not.  It has withstood  220 years military conflicts and incursions.  The Constitution is supposed to be bigger than any moment in time.

So what about Ali Saleh Kahlah al-Marri?  Can he, a resident alien in this country legally be  arrested and held indefinitely on U.S soil with only the rights of an enemy combatant?   Earlier this year, the Fourth Court of Appeals ruled that additional hearings are necessary in U.S. District Court to allow al-Marri to challenge whether he was properly designated an “enemy combatant.”   The Supreme Court in what is surely to be its most watched decision of this term has agreed take the al-Marri case to either restrain or leave unchecked presidential executive authority to order the indefinite military detention of U.S Citizens arrested on U.S soil.   The Supreme Court will not decide whether Marri is an agent of Al Qaeda but will decide whether the Bush administration had the legal authority to bypass the nation’s civilian judicial process and to hold a person in military custody.

I am in agreement that the traditional concept of war is obsolete in today’s world.  I am agreement that a person can committ an act of war without their being a declaration of war.  I agree that the executive branch should be able to classify acts of war. That’s where my agreement ends. Our Constution is bigger than our passage through history.  United States citizens either naturalized  or U.S born  have rights that can not be stripped without judicial process.  If an act is comitted by as U.S. citizen that is deemd by the adminstration as  “an act of war” without a Congressional declaration, such a designation must be subject to judicial scrutiny  and habeus corpus.  Like the death penalty, an enemy combatant designation of a U.S. citizen  should carry an automatic appeal to the federal court system to review the designation.  If the designation is upheld so be it.   If it is not, the person must be charged in the criminal system or released pursuant to all constitutionally afforded guarantees.

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My Favorite Courtroom Movies

Being an attorney, I have an attraction to movies that revolve around lawyers or courtrooms. It is often entertaining to watch how the realities of litigation and law are blurred,butchered and disregarded altogether in the name of entertainment or dramatic license.

Here is the list of my personal favorite courtroom movies. It is not meant to be a definitive list of all-time great courtroom movies. For a movie to be on my list  it has to be something I have seen within the last 5 years.   If the movie predates that and I have not seen it in the last five years, then it was not entertaining enough for me to see it again.  There are also movies that revolve around lawyers but I do not view as courtroom movies such as Twelve Angry MenThe Firm, The Client The Pelican Brief and Michael Clayton.   If I say a movie is technically good from a courtroom perspective I am judging the overall portrayal to the layman and not passing judgment on every little evidentiary/trial fau paux.

Movies like Liar Liar, My Cousin Vinny and Legally Blonde are hilarious. I did not include comedies. The reason is that no matter how funny the movie may be, there is really no character or individuality. They all basically revolving around making courtroom dialogue humorous

To Kill A Mockingbird:   On every top ten list there is.  It is an especially interesting movie in light of the recent Supreme Court ruling re-affirming the bar of capital punishment rape cases.  Atticus Finch, a depression era, small town Alabama lawyer agrees to defend a young black man who is accused of raping a white woman.  His friends and others in the community try to get Atticus to pull out of the trial, but he decides to go ahead.  If you have seen this movie, you should also watch Ghosts Of Mississippi. There are some interesting parallels and comparisons to be made.

Fracture:  It took me a while to see Fracture. When I finally saw it I found it fascinating.  The great performance of Anthony Hopkins aside, the movie had me more engrossed in the legal issues presented than the plot drama.  Would double jeopardy prevent a person from being tried for murder after being found not-guilty for the attempted murder of the same person?  Would the various confessions given by Anthony Hopkin’s character been excluded?  Fracture is an amalgamation of about ten different Law And Order episodes. This is one of the few movies where the legal issues in themselves kept my attention.  If interested here is a great summary of how these legal issues might play out in real life.

The Verdict: This is my favorite courtroom movie of all time. I can watch it over and over. Paul Newman in my opinion gives his greatest acting performance. What lawyer out there cannot identify with getting that one big case that will cure what ails the human condition?  A case that that not only redeems society but redeems the down and out alcoholic attorney played by Newman.   He battles a crappy case, biased judge, reluctant witnesses and a crooked law firm defending the Catholic Church. Not great technically from a courtroom perspective but you get so sucked into Paul Newman’s character that you completely disregard any tactics that would be questionable in real life. David vs. Goliath courtroom movies are a dime a dozen and only work if they bring you into the story so you become David. Watch this movie and you will be David for two hours.

The Rainmaker. Based on the book of the same title by John Grisham.   Same David and Goliath script but with a much more technically correct courtroom feel. This is one of the few Grisham books that translates well to the big screen. This time the young inexperienced attorney representing the poor family unable to speak for themselves up against the big bad insurance company. How do you not get sucked into Matt Damon’s character? The young attorney with no money trying his first case again up again the big time corrupt defense firm. Are there any courtroom movies out there that put defense firms in a positive light? The only people in this country who do not want to put a whop ass on a big bad insurance company are the people who work for the insurance company. One of the better courtroom movies from a technical perspective, great storyline. By the time the movie is over you want to go hire a lawyer to sue an insurance company, any insurance company….

A Few Good Men. You have to get past the fact that the whole movie hinges on the star witness, a Marine Corps General played by Jack Nicholson suddenly collapsing like a used air bag under cross examination,handing the defense its’ case. The odds of this happening in real life?   Play the Powerball Lottery this week.   You have a better shot.  Jack had to give it up under cross to make the movie work and boy does his performance make it work!  It’s a great movie.  One of those movies worth watching just to watch every scene with Jack Nicholson.  A serviceable performance by Tom Cruise as the under-dog unappreciated and initially apathetic military defense attorney.  Watch it for Jack though.

A Civil Action: Based on the book “A Civil Action”.  It is a true story. The underdog attorney, real life attorney Jan Schlichtmann up against the big bad corporate giants who are spilling toxic substances into the drinking water of Woburn, Massachusetts causing cancer clusters in the children.  I don’t want to give away the entire story but you have an attorney coming to understand himself at the cost of everything he once was, morally, financially, emotionally. I warn you that this is a SLOW movie. It is very deliberate as is the very long book. It needs to be to work. It works in that it is deliberate but never boring. You will come away from this movie with a better understanding of the frustrations that many attorneys face in trying to do the right thing and getting so sucked into to trying to do the right thing that you lose sight of what the right thing really is.  John Travolta gives a great performance as Jan Schlichtmann He brings you right into his character to such a degree that you hang on each work and move quickly through any slow parts of the movie. Interesting paradox here. Robert Duvall is portrayed as an honest defense attorney for the corporate giant when in reality the defense firm involved destroyed and hid evidence.

Amistad: This movie is not for everyone. It is slow. It is hard to follow. It involves a mutiny on a slave ship traveling towards the coast of the United States. The story revolves around the trial of the slaves who led the revolt. I can sum up my review this way: Did watch the HBO mini-series John Adams? Then watch this movie. Why? John Quincy Adams, the son of Second President John Adams Jr. was the lawyer who defended the slaves who had revolted and killed their captors.  Good performances by Matthew McConaughey and Anthony Hopkins as John Quincy Adams. This slave controversy in this case became a prelude to The Civil War.

Philadelphia. This is the first big star motion picture that I am aware of that addresses AIDS discrimination.  Great performance by Tom Hanks as a big city Philadelphia lawyer with AIDS. His law firm discovers his condition and cans him.   Denzel Washington is great as the stereotypical ambulance chaser who finds a conscience and a cause. I don’t think this is a very good movie from a technical standpoint.  Both lawyers make too many speeches The court testimony about Hank’s characters sexual orientation and sexual habits would never come into evidence as not being relevant. They put it in the movie for dramatic purposes and it works for that purpose It can however give the laymen the impression that if you make such a claim your sex life will be put out there for all to see and that’s just not true.

Miracle on Thirty Fourth Street (The 1947 Original) The existence of Santa Clause on trial? How could this not be on my list?

Ghosts of Mississippi:  A movie about the 1994 trial of  Byron De La Beckwith for the 1963 assassination of the 60s civil rights leader Medgar Evers.  De La Beckwith had been tried twice with each trial(with all white juries) ending in a mistrial.  He is tried for the third and final time 30 years later.  He was convicted and sentenced to life in prison. De La Beckwith died in prison in 2001. He was 80 years old. The trial made national news as one of the longest delays between arrest and final trial in United States history. It is also widely regarded as historically symbolic of the transition of Mississippi to more progressive views on racial equality.  This is an unappreciated movie with an under-appreciated performance by Alec Baldwin as the district attorney determined to get justice but facing huge evidentiary obstacles and  initial resistance by Medger’s widow, Myrlie Evers, played by Whoopie Goldberg. Evers later went on to become the national head of the NAACP.

Judgment at Nuremberg: The first film to address the trial of the Nazi’s accused of war crimes after World War II otherwise known as The Nuremberg Trials. I am frankly surprised this has not been re-done with a current day all star cast. I think it would do well.

Primal Fear This movie has absolutely absurd courtroom dialogue but the story line and performances by Edward Norton and Richard Gere are so good that you really don’t care.

Music Box This is one of the few movies dealing with the issues of aging former Nazis and Nazi sympathizers who committed war crimes living in the United States.  Jessica Lange and Armin Mueller-Stah give great performances. The movie is based on the true story of John Demjanjuk.   While the premise of a daughter representing her father on trial with such high stakes is a stretch, it works well here.  Jessica’s emotional opening statement is also unrealistic and inadmissible. The movie is incredibly moving on all levels. You are torn between her father as a loving grandfather and a brutal murderer guilty of terrible war crimes. In an interesting twist of life imitating art, the father of Joe Eszterhas who wrote the screenplay, was accused of writing anti-Semitic propaganda before and during World War II. Like the character in Music Box, his father denied being the person who wrote these materials. Mr. Ezterhas denies knowing anything about his father’s past at the time he wrote the screenplay. There is a great article about this that can be read here.

Class Action This movie is based on the Ford Pinto Rear End End Explosion cases. Gene Hackman is great as the both idealistic and cynical plaintiff’s attorney going after the huge car maker. Once again a defense firm is portrayed as as unethical. They hide then destroy key evidence in the case. The conduct of the character played by Mary Elizabeth Mastrantonio, while portrayed as noble in the movie would have probably resulted in her disbarment in real life. She knows a partner in her firm has destroyed evidence. She tells the other side(who happens to be her father) about it. She also gives them a corroborating witness not previously known about.  Noble maybe but career ending absolutely.

Presumed Innocent This is one of the great courtroom movies of the last 20 years both in style and drama. Great performances by both Harrison Ford and Brian Dennehy. A show stealing supporting performance is turned in by the late  Raul Julia. The movie also does fairly well on a courtroom technical basis. One dramatic license taken is the hammer which needed to be taken. The statement that the police wouldn’t look for it because if they don’t find it , that would be brought up in court is just silly. They don’t look for something because they might not find it?   Search warrants are executed to find evidence, not to leave it.

And Justice For All. Al Pacino’s great courtroom flick. (I refuse to put The Devil’s Advocate on there) The movie is technically ludicrous and it is supposed to be!  That is the whole point. The point is that the legal system is ludicrous and often forces attorneys to choice between morality and victory. While the drama is exaggerated the message is right on. The below video says it all.

Inherit The Wind: As strange as it would seem today, at one time it was illegal in many states to teach the theory of  evolution in the class room. Today with the separation of church and state we have come 180 degrees.  It can be argued that there is a similar controversy present day regarding the  teaching of  Intelligent Design in public schools.  Inherit The Wind is a dramatization of the real life Scopes Money Trial. Great performance if not over the top by Spencer Tracy.

That’s my list. Are there other good courtroom movies?  Of course. These were the ones that I can watch over and over. Some other courtroom movies I found entertaining but didn’t make my watch over and over list are,

Rules of Engagement

Hart’s War.

Red Corner.

Please feel free to comment and make your case for your favorite courtroom movies and why they are great.

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My Solution To Athletes Carrying Guns

I can immediately solve the problem of athletes who for one reason or another feel the need to carry firearms. I have the solution for Plaxico Burress and every other professional athlete who feels a sense of entitlement and necessity to pack heat while out and about because they feel unsafe, targets of opportunity, put upon, or just simply irritated by us non-recognizable types who are only packing a credit card and some bullshit lines to try on women when we hit the clubs.  If you are a professional athlete and  listen to my advice, you will never feel the need to “go heavy” into the night again. We will all be safer for it.  Here it is.  Pay close attention.

Immediately quit your job with your NFL team, NBA team, MLB team etc.  Immediately take a job digging ditches or working at Jack In The Box.  You will no longer have the famous name. You will no longer have the millions of dollars. You will no longer have the wads of cash.  You will no longer have the blingy bling. You will no longer be walked passed the line into the hot night clubs with that sense of entitlement to pack heat, break the law and endanger the rest of us every day anonymous schmos who dont know you from adam. Every reason you had for packing will disappear overnight. You will now be one of us anonymous schmos who expect the only people packing arounds are those who are doing so legally.  Do all of this and your problems will be solved.  I can even help you out right now.  The Jack down the street from me is hiring.

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