“There will be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.”

– Elie Wiesel

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Robert H Jackson

Justice, Supreme Court of the United States of America

Chief Prosecutor, Nuremburg Trials

In 1950, this was a new idea for Germany, and an example to the new Germany, rebuilding from World War II.

Are we the country we were then, in 1950? The generation that won World War II? Would we say this today? To one another, and not just when lecturing other nations?

Can the words of a former generation be new to this  generation? These words can. These words will always be strange and new, to every generation. In them, and not in wealth or technology, is the American contribution to history.

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Yes, Family Court steals coins. Yes, from children:

True, Family Court is no place for families. But we don’t want to sound like this:

Most of the harm at Family Court comes from simple overwork, not diabolical conspiracy.

Yes, Family Court follows laws that are whipsawed by political crosswinds, culture wars, gender wars, generational differences, honest superstitions, and lawmakers more interested in their future than yours. Yet count yourself lucky to hear any reference to any law in Family Court.

Family Court is desperately overbooked and underfunded by the economic downturn. In its beginnings, Family Court took upon itself a task that Solomon in all his wisdom would not. By now Family Court just wants you to go away and never come back. Do that, as fast as you can.

If you stay too long, you will begin to sound like this woman:

You can sound like that after three months of Family Court (if three months of Family Court adds up to an hour, you’re doing well).

Maybe she was counting to ten, and then a hundred, instead of kicking the machine. Good for her.

People who saw her comments left comments on her, and not in her favor.

Yep, she’ll flunk. She’ll write “most multiple choice answers are C, as everyone knows, but not on your test…”

Don’t be this person in Family Court. Even when you are made to answer first, and hear the question after. Even when you know the right answer is person P, and you are person R.

If you met the President of the United States of America tomorrow, he would not be wearing a floor length black robe, he would not pretend to know you and your children better than you know yourselves, he would not scowl and hammer on something to silence you, and if you began “With all due respect, Your Honor…”, he and everyone else would laugh. But courts date back to a time before kings took notice of parliament or populace, so think of the court as a Renaissance Faire and play along. Give careful answers though no one is listening. Kick instead and they will awaken long enough to cart you away. At this Faire the blood is real, and some visitors never return.

Worst of all, someone noted, in this note she insulted the people whose help she wanted: the people who make coffee. Don’t make this mistake in Family Court. True, even in the best of times Family Court does not … how shall we say it?  … draw the best legal talent. Maybe your judge would not last a day where you work, if she ran a meeting this way, and banged and barked and growled, and told people what they thought, before they could answer. But look around the room at her heavily armed guards. Imagine you are being held for ransom by a rebel militia in the jungles of Borneo. You would not lecture the guerrilla chief on efficient meetings or sound decision-making, would you? No, you would try to escape and never go back. Do likewise at Family Court.

You sounded like this when you tried to speak the language of Family Court:

Family Court speaks Latin for the purpose of making your first language a second language, and warning you that your country cannot help you now, not here. You may be tempted to smuggle a note to the nearest American consulate. Don’t, except as a way to count to a hundred, before you kick something.

When you leave Family Court you will love such a sign, outstanding among others. You will feel great love for such people, for trying to speak your language, and trying to bring you good news. It make you refresh.

I heard someone boast that he could jam a vending machine and return later, unjam it, and collect the goods and money both. He does not complain of vending machines that jam. He turns them to his own purpose. What would he say to a new generation of vending machines, better and more reliable, and harder to jam? He would be furious.

If a generation or two had learned to jam Family Court, and turn it to their own purposes, what would they say to reform? They would be furious. We would hear from them.

Would we also hear from two generations of parents and children stolen from out of one another’s lives?

You are hearing from one now, from across two generations, from the child then and the parent now.

But where are the others? Is freedom forever disorganized against unfreedom, by its nature as freedom? No, I know that to be untrue. As hate can be no more than tortured love, and cannot begin and end except by love; as hate is smoke from the fires of love; so unfreedom is smoke from the fires of freedom. Let me show you. Let us show them. Let us organize.

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Where? Afghanistan?

No, Texas.

In the frontier era, before the coming of the sheriff and the circuit-riding judge?

No, in 1989. Children born that year are in their 20s now.

Why is this such big news? Wouldn’t we guess as much? The parking garage sometimes brings out the wrong car, or your car with a crushed fender, or loses your car to theft. The surgeon sometimes amputates the wrong leg, or from the wrong person. Why should courts be any different? They have a harder challenge than bringing out the correct car or cutting off the correct leg. They ought to get it wrong more often.

But no, this is big news to Supreme Court Justice Antonin Scalia, who has loudly proclaimed that we as a nation have never executed an innocent man. Or executed the wrong man, in case there is no such thing as an innocent man.

Most of us get our idea of courts and prosecutors from television. Just where we got this news today. I did, for most of my life. Where does Justice Scalia get his idea of courts and prosecutors? From another planet? From voices in his head? Maybe he should watch more television. He could do worse.

Television has far more money than courts and prosecutors do. Television does better trials. Television spends big money researching exactly what we want to hear, we in the most lucrative demographic segments. I would deny it if I could, but television knows how I will vote for President long before I do. OK, not me, but you, now that the lucrative demographic segments have moved on and I have fallen behind.

Television knows just how we want to feel about courts and police and trials, and television supplies that feeling. Television gives us Criminal Minds, for example, where a team of astonishingly talented young men and women fly all over the country and spare no expense to see that no question goes unanswered and no question is answered wrong. How could you ever pay these detectives enough? Where could you ever replace them? Any one them could have gone to Hollywood instead, to be a star and make pictures, but No, they risk their lives around the clock for you and me, for everyday television viewers, and against the twisted low-lifes who live in shadows and raid the light.

Millions watch television. Criminal Minds. CSI. Law and Order. Almost no one was watching this Carlos, this wrong man executed. Not in life, not his trial, not his death. Almost no one is watching a thousand thousand others. How many of those thousand thousands have the wrong guy? No one knows. It’s not the kind of thing we like to know, is it?

In this case, the entire investigation has been laid out for us on the Internet, if you want to know. You can hear the emergency phone calls and police transmissions. You can read the report of the detective, with her crime scene photographs.

We have not seen this before. We think we have seen this before, from the decades of the television era, from Criminal Minds and CSI and Law and Order. But no, only the Internet could give us this, and only now. Almost no one has seen such things until now, in this case or a thousand thousand more.

Something must be done, everyone is saying. But what?

End the death penalty? Wrong problem. Should we imprison the wrong guy for life? On that chance that we would get his case right years later, when we got it wrong at the time? That someday we will care more about the aging lifer than for we did for the young man with a family?

If the death penalty is dying, it’s dying over money, not injustice. Capital cases are expensive. The day will come when only Hollywood can afford capital cases. Maybe that day has already come, and we just don’t know it.

Capital cases are the legal system at its best. Second-best, actually. Best of course are cases between wealthy companies. Best is where the money is best, company money. Second best are capital cases, with someone on trial for his life.

The investigation costs too much, preparing for court in a capital case; even the slapdash investigation that ends at the first opportunity, and clears the murderer to take more victims, and murders a second victim in his place. Even those, the death penalties that multiply the death toll and raise the murder rate. When the voters won’t vote the money, a governor kills the death penalty to save his own neck.

As for justice, if you have a moment ….

If you know anything about courts first-hand — if you were there with something to lose — there for more than a day — then you know: As a punishment, life in prison is worse, not better; better as a savings for the taxpayer, but worse as a punishment. Are we calling out against injustice, for Carlos? Or against our tax bill?

Follow the money, Deep Throat told Woodward and Bernstein as they uncovered the Watergate story. Deep Throat, we now know, was number two at the FBI. He was passed over for the top spot when J Edgar Hoover died, and he was aggrieved. He didn’t like newspapers, he said. Their investigations were sloppy. He would know all about sloppy investigations, wouldn’t he? When the top guys wanted a sloppy investigation, and wanted the slop to slop on someone else?

So follow the money now, to see what happened to Carlos, and to a thousand more we will never know.

Follow The Rosewood Rule: Earn High or Die. We say to Carlos: If you don’t pull your own weight, don’t give more than you take, and don’t earn more than you cost, then why should we waste our expensive justice on you? You don’t deserve our justice. You haven’t earned our justice. We do just as well without you, whether you did this crime or not.

Then what does the Justice System deliver, if not justice? What one thing does the Justice System do well? Better now than ever in its history? Better now than ever in human history?

Eugenics. Cleansing the gene-pool of the population. The Justice System rids the population of bad genes, not bad deeds; deadbeats and do-nothings, not wrong-doers; poor performers and poor specimens, not perpetrators.

We no longer ask to doctors to sterilize incompetents, not since 1977 and the last of the state Eugenics Boards. Doctors can be difficult, if they insist on their oath, insist on healing, insist on science, insist on finding truth. No, this is a job for lawyers and the legal system. The law is no science. The law is a club, a stick. Instead of sterilizing incompetents and undesirables, the Justice System  incarcerates them where they cannot pollute the gene pool of the next generation; and insults them with charges along the way, in Latin, to cover its tracks; and never breathes the word Eugenics, perish the thought.

Even so, Los Tocayos Carlos  saw our Justice System at nearly its best. Had Carlos seen Family Court he might have been warned that the Justice System would soon turn one murder into two, and throw open the back door to more.

You will probably never see a capital case from the defendant’s table, with your life at risk. Worse for you, you may well see Family Court from the respondent’s table. Millions have, and millions more at one remove. Millions of fatherless children, with a one-legged childhood, and a one-legged life. My sister, and me, and now my young daughter.

Have you seen Family Court not as a spectator, but from the table where you plead for the right to raise your own children? Where you search for the right words for a desperately overworked judge? Where the judge has two thousand cases like yours and 200  days to do them? Where she has not the staff and the budget of a capital case, nor the staff and the budget of the DMV down the block? Where your children can lose their future faster than you can get a drivers license? Where you are never charged with anything, and thus cannot begin to answer the charges against you? Where you can lose everything you own? Where you can be jailed at any time, again and again for a decade or more, and are thereby disqualified from buying or renting a home, or taking a contract or job? Where you may be defamed so badly that you disappear from your children’s lives to spare them the shame? A court you enter in a suit and leave in your underwear, on the back dock, in an orange jump suit like a hot air balloon, in chains heavier than your arms. With still never a charge against you, and no way to answer.

But there is an unspoken charge, like the charge against any cat or dog at the animal shelter two blocks away: You are no longer wanted. Your food and medicine cost too much. You are unfit to reproduce. You are not worth your keep.

And one more: You are unfit to raise your young. We trust house pets and farm animals to raise their young, but not people at Family Court; not people feckless enough to leave the fate of children and families to a Family Court.

Family Court cleans the gene-pool on an industrial scale, like the waste-water treatment plant down the hill, by the river. Family Court disposes of children and parents by the hundreds every day, in three thousand counties. Some lose more than Carlos lost: a child younger than Carlos, more surely innocent, with more of her life before her; and her father in his last years, who loves her more than his life. They lose more than Carlos lost, and for less reason, in less time, and with less chance to save themselves.

Yes, we’re heartsick to hear the story of Los Tocayos Carlos. But down the block at Family Court, where every week a hundred stories are worse, the heart goes numb, the eyes cloud over, and we cannot bear to know.

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A friend always knew she was pregnant, before any tests, when suddenly she could not bear the smell of coffee, a smell she eagerly inhaled every other day of her life.

It’s like that for me now. Two of my long-favorite movies suddenly taste bitter, for example. The Insider. I have always cheered the Attorney General against the tobacco CEOs. Now we know how the State of Mississippi used the billions extracted from the tobacco companies. Not for The Higher Good. The State of Mississippi provided the public with services arguably less satisfying, arguably more toxic, and arguably more habit-forming. You could always choose Kent or Marlboro or Camel, or say No, None of the Above; but when the State of Mississippi summons you to receive its services, there is only one brand for sale, and you cannot say No.

[G]overnment is a broker in pillage, and every election is a sort of advance auction sale of stolen goods.

H L Mencken
On Politics: A Carnival of Buncombe

I have been such a fool, such a dupe. A highly articulate fool though. I could out-talk all the people who were trying to tell me something. I wish I had listened. For my young daughter’s sake, I wish I had listened.

Everything looks different to me now. I turn on the TV and see a silly movie, for example. A firetruck idles at a sidewalk market in Manhattan, and the Asians throw up their hands in surrender. Relax, says the fireman through a loudspeaker, we aren’t the police. That’s not so funny to me now. The Asians came to this country for freedom, to escape murderous tyrannies. Their new country is more advanced in every way. Their new country now has the technology and wealth to be the least free nation in the history of humankind, if it chooses. Pol Pot may have had bloodier intentions, but his technology was limited. He worked in blood, and could not hide the blood. We work electronically. We can hide the electrons. What’s to stop us?

Same movie: A kid hacks into county records and marries his angry uncle to a local talk show host, for revenge. That’s not so funny to me now. If a kid can do it, authorities can do it, and not always for better reasons. Remember when the CIA drugged the water of columnist Jack Anderson just before he went onstage to speak (as I recall) to the Washington Press Corps? In those days only world class spies could attempt such a thing (and they failed). Now anyone can do that and more, electronically. What happens when the local dogcatcher appoints himself Defender of The Higher Good? Who will stop him? The authorities? He is the authorities.

A 1-2-3 Whammy Quiz:

1. The Chip

We now have the technology to implant an electronic ID chip into every child born on American soil. Shall we? We already do that for expensive puppies. Every vet has a scanner to instantly identify a puppy in a national database. Shall we give every baby that chip and give every official that scanner? Make it illegal to tamper with or disable the chip (like the smoke detector in an airplane lavatory)?

a) yes, why not?   b) no, not for now

2. The Chip

We now have the technology to implant a continuously-powered GPS transmitter in every car operating on American soil. Air traffic controllers now monitor every flight in American airspace. In a similar way, officials could monitor the movements of every car on American soil, on or off the road. We are wealthy enough to fund that. Shall we?

a) yes, why not?   b) no, not for now

3. The Chip

One day soon your ID chip will also transmit GPS location from under the skin near the shoulder blade. Then we can track every American anywhere in the world, flying or driving or walking or sitting or lying down, alone or together. Officials can match Who with Who at every minute, around the clock, waking or sleeping. Shall we?

a) yes, why not?   b) no, not for now

Maybe you have nothing to hide. Maybe you could explain your every movement and every moment to the satisfaction of local officials. Wanna try? Wanna bet everything you care about in life? Wanna bet your children?

What happens when your local dogcatcher puts on a black robe, raises his desk four feet above everyone else, puts a bronze seal on the wall behind him, fills his word-processor with phrases of synthetic Latin, and begins to round up and kennel stray parents whose spouse or kids are through with them? What happens when he decides you aren’t qualified to take home a puppy or a child? Your own puppy, or your own child?

This Dogcatcher King knows no Magna Carta. When authorities can take your children, they can take anything. They can take everything. The walls of your house are down, and all the protections of all the laws are void.

Crazy, you think? I would have said the same myself, two years ago. Before you speak of this again, visit your local Family Court, even for an hour. Family Court is open every day, in all three thousand counties, processing hundreds of children a day.

Expect to stand. The lobby is jammed like the hold of a ship of The Middle Passage. Expect to journey back in time. They auction families in pieces there. They pull open your lips to count your teeth, and put a price on you. They throw Jonahs into the deep, cart deadbeats and undesirables to the dump, and cleanse the population for the generation just ahead.

Go see Family Court before Family Court comes to see you. Family Court is a journey back in time and forwards, into history and the future. Your future, ready or not.

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1.

If someone took your child from you, is there anything you would not do to get her back?

a) yes

b) no

2.

Can a court take your child from you without charging you with a violation of any law?

a) no

b) yes

3.

Can a court jail you without charging you with a violation of any law?

a) no

b) yes

4.

Can a court take everything you own without charging you with a violation of any law?

a) no

b) yes

5.

Where is this?

a) a dark corner of the world, in a dark time

b) down the road from you now

6.

Is this a safe place to build a home and family?

a) yes

b) no

Answers: (b) in every case

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a) Three feet?

b) Three inches?

c) Three millimeters?

To cut the line of a life, how long would you need to imprison* someone?

a) Thirty years?

b) Thirty months?

c) Thirty days?

*  Include the time we imprison someone in the legal system, before trial or conviction or even charges.

Answers:

(c) The light goes out if you cut a millimeter from the cord.

(c) A life goes out if the legal system cuts a month or a week or day from it.

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In 2010, Marissa Alexander, a mother of three, tried to keep her abusive husband away from her. She fired a warning shot—into the kitchen ceiling. No one was hurt, but she now faces up to twenty years in prison.

“If a survivor of domestic violence uses a gun to warn an attacker, not kill him, and that survivor now faces a prison term of twenty years, then what purpose does Stand Your Ground serve?” asks Melissa Harris-Perry on her show this Sunday. She gathers an expert panel, including a survivor of domestic violence, to discuss the controversial law and other legal double standards that apply to women, especially those in abusive relationships.

The Nation

Marissa Alexander did not know how badly broken our legal system is. We broke it with the best of intentions.

Did you ever fix something and make it worse? I have. So has the legal sytem. So have lawmakers.

The Little Lindbergh Law was an example (see The Onion Field). The law raced in with a fix, and a fast fix broke things worse. Even the lowly Onion Field burglars figured out what the lawmakers had not: If The Little Lindbergh Law treats kidnapping as a capital offense, then kill your hostages and leave no witnesses. If the legal system cannot or will not sift true from false, more from less, better from worse, or this from that, then avoid the legal system at all costs. Leave no witnesses. Just that fast we make the small-time burglar a killer.

1. Most fixes break things worse.

What if every fix to the legal system breaks it worse?

That includes the next fix; the fix in your mind at this moment; the fix you will demand from lawmakers an hour from now; the fix now frothing on your lips.

2. A broken product breaks you.

A broken heater or hair dryer can kill you if you don’t know it’s broken. That broken heater or hair dryer is the perfect weapon, as the fans of murder mysteries know. So is a broken legal system.

3. A broken product is an undetectable weapon.

Example (from the movie Changing Lanes): Someone tampers with your car, loosens the bolts on one wheel or drains the brake fluid, and when you die on the expressway no one suspects murder. Just one more defective product, everyone thinks.

4. A broken legal system is the least-detectable weapon.

When caught, one of the Onion Field burglars turned on the other. The smarter one saw what prosecutors wanted, and gave them his not-so-bright partner. The worse of the two did better, the better of the two did worse. This works only where the legal system cannot tell the difference, or does not care to, or is not allowed to.

Small time crooks use a broken legal system on one another. A broken legal system is the perfect weapon. You can hide the weapon where no one in the legal system would ever look: in the legal system. If the legal system weren’t broken, these guys would try to break it, for the perfect weapon.

5. Your perfect weapon can turn on you.

What if our Marissa Alexander had known the legal system was broken? Would she have fired a warning shot into the ceiling, then offered her explanation to the police?

Would Marissa Alexander be in jail if she had shot her husband six times in the head? If she had known what the Onion Field burglars knew? If she had decided to leave no witnesses?

If, when the police needed a perp, she gave them her husband, lifeless on the floor, and he offered no objection? If VAWA or Stand Your Ground required police to believe her, the only surviving witness, whatever she might say? If she told police he tried to strangle her? If she told police she feared for her life?

When the legal system is not permitted to distinguish a better witness from a worse, what altercation will want to leave witnesses? Won’t every altercation escalate in the direction of murder? Every roadside quarrel, every sidewalk quarrel, every parking lot quarrel, every kitchen quarrel?

The Little Lindbergh Law was a blunder. Was Stand Your Ground a blunder? Was VAWA?

Or are some laws intended to break the legal system? To make a broken legal system the perfect weapon? Laws like Stand Your Ground, requiring police to believe a sole-surviving witness without evidence? Or VAWA, requiring police to believe an accuser without evidence, and make an arrest without evidence? Laws that don’t allow the legal system to distinguish true from false, better from worse, less from more, or this from that?

Be careful what you wish, Stand Your Ground. Be careful what you wish, VAWA. When your perfect weapon is a broken system, it’s not perfect, it’s broken. It may explode in your hand, or carry off a friend. A Marissa Alexander ….

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I’m old enough to remember when girls couldn’t play sports in school. They were too delicate, we were told. They broke easily, and if they lost they would cry.

You lament that “women are charged more for the same or virtually the same products, from health insurance to dry cleaning.” But doesn’t your entire article [Women: Occupy the Left] say women are vulnerable and have special needs? Marking them Fragile, Handle With Care?

Wouldn’t that put my young daughter back in The Dollhouse if I taught her that?

And wouldn’t that make everything cost more for women, from health care to dry cleaning?

Aren’t you trying to have it both ways? Either women are equal, or they are needy and costly. Which is it to be? Hard choice, as Steinem said in Revolution Within.

As for me, I won’t tell my daughter her gender is a disability of some kind.

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Dying Harvard Law professor Willim Stuntz wrote:

More and more, I’ve come to see my cancer’s natural progression as containing within it great gifts. Cancer steals life, but the theft is slow and happens in stages. None of it catches me by surprise, for which I’m thankful. I’m even more thankful to have the opportunity to finish some work and, especially, to do things for my spouse and our kids that I might not have done had I expected to live a long time yet. Life feels more precious than it did before, yet I don’t feel the need to cling to it as much as I did before. Whatever happens with the course of my treatment—maybe the next set of films will be better; maybe not—I’ll be fine. God is good.

By “finish some work” he meant, with characteristic humility, one last book. A masterwork, say his colleagues on the nation’s highest courts.

He begins:

Among the great untold stories of our time is this one: the last half of the twentieth century saw America’s criminal justice system unravel.

Says Michael O’Donnell of The Nation:

The imprisonment rate in the United States, at 506 per 100,000 in 2007, is much higher than it has historically been, and is closer to Russia’s rate (513) than Western Europe’s (Germany’s is seventy-four and France’s seventy-two).

That figure, Stuntz writes, “exceeds by one-fourth the imprisonment rate in the Soviet Union in 1950—near the end of Stalin’s reign, the time when the population of Soviet prison camps peaked.”

Crime and Punishment: On William Stuntz

Are we still The Land of the Free? What went wrong with our justice system, at the heart of our democratic nation?

Some questions are hard because we are not smart enough, or well-enough educated. Other questions are hard because they ask courage of us. This question demands courage.

Says Stuntz in his opening paragraph:

… the criminal justice system is doing none of its jobs well …

What if the justice system is doing another job, and doing it well, with great success? Not justice, but different job? A job no one talks about? A job about which no one breathes a word?

Eugenics.

Population Cleansing.

People in prison cannot make more of their kind:

The black inmate population was seven times higher in 2000 than in 1970, reaching a rate of 1,830 incarcerated per 100,000.

1977 is when the Eugenics Board in thirty-one states closed down. Or did it?

Did that Eugenics program migrate from the welfare department to the court system? And there, under a new cover of respectability, expand as never before in any nation in history?

Is that behind The War on Crime and The War on Drugs? Eugenics? We can’t send blacks back to Africa, but we can see that they don’t immigrate with us to the America of the next generation.

This is not ethnic cleansing, though, which would cleanse our population of one race or ethnicity. This is population cleansing instead, if it winnows out those who don’t pull their own weight, or earn enough, or produce enough, whatever their color. Are we looking for Jonahs who might sink us, blow us off course, slow us down?

But Mr. Stuntz said the legislatures neglected to appropriate enough money to deal with the added arrests, particularly for public defenders and others paid by the government to defend the indigent.

Adding to the focus on the poor, he said, was prosecutors’ reluctance to bring to trial people who could afford lawyers and who could employ the new court-ordered constitutional protections.

Obituary, New York Times

Remember, parents, how the whole softball team groans when the worst pee-wee is sent to the plate in a big game, on the theory that everyone gets their turn to play? Why doesn’t she just quit if she’s no good? mumbles one of the kids. Is that what we said to our prison population of almost 3 million?

Only a tiny sliver of people in prison ever got a trial. By way of Family Court, many of them were never so much as charged with anything. So the question: Are they held for crimes, or because they do not earn enough? For justice, or for population cleansing? Are they Jonahs? Does The Rosewood Rule tell us we don’t want poor performers multiplying and making more of their kind, and dragging the rest of us down? Do we incarcerate them instead of sterilizing them, so we never again have to breathe the word eugenics?

Maybe the American Criminal Justice System is growing so fast and failing so badly because it’s no longer a Justice System, it’s a Eugenics System, and at that it succeeds admirably.

That is the sand your house is built upon. Yours, mine, and every house in the country. If you think it’s not your problem, listen for the rumble of thunder on the horizon:

And the rain descended, and the floods came, and the winds blew, and beat upon that house …

Work Makes Free, read the sign over a prison gate. With that deception the prison hoped to get better behavior from the inmates, and make the work of the prison easier. But no one went free from that prison unless the prison failed in some way.

And that prison wasn’t a prison. Are ours?

###

But like the Ancient Mariner I must croak out a warning. Having been three years in Family Court, fighting to restore my daughter her father, her father’s family, and half her future, I must warn you: Only step into Family Court, any of three thousand Family Courts across the country, and you will see how little you have won with your right to marry.

How hard will it be, do you suppose, to portray you as an unfit parent, harmful to your child? You’ll repeat this right-to-marry struggle again there, this time with no David Boies or Ted Olson, with no opening or closing statements, with no expert witnesses or evidence, with no laws or precedents. Family Court operates like a Department of Motor Vehicles in black robes and Latin. Family Court says the same thing to everyone (“next!”) and doesn’t much care to hear how your driver’s license differs from the next, unless yours is “off” in some way, and the court can make short work of you and your children, and speed up their long long lines. Family Court is a gas-passing contest; an exchange of bad odors; decided with a sniff. How well do you like those odds, with all that you have built through the years at stake, your marriage and your children?

And VAWA? Sorry, VAWA only gives innuendo and falsehood more power over you, and over everything you have built your life around.

The Mariner, whose eye is bright,
Whose beard with age is hoar,
Is gone; and now the Wedding-Guest
Turned from the bridegroom’s door.

He went like one that hath been stunned,
And is of sense forlorn:
A sadder and a wiser man
He rose the morrow morn.

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The dangers of parenting.

Parenting is more dangerous than being a doctor. You’ve heard of doctors who retire early because a single medical malpractice suit could ruin the family, or malpractice insurance slowly bleeds their life away?

No form of parental malpractice insurance would protect the parents you read about in The Criminalization of Bad Mothers (NY Times).

It was a palatial house in an upscale community with an 18-hole golf course. Ankrom was one of the first women to be prosecuted under Alabama’s chemical-endangerment law.

Her three children (Bryson, now 3; Aubree, 4; and Paige, 5) raced around the living room in a blur of curly dark hair and sippy cups. She yelled at Bryson to come back from the open front door and helped Paige change from flip-flops to sneakers, then shooed all three children out the door to accompany their grandfather to McDonald’s.

“Listen: silence,” she said with a smile. Bryson, she told me, was born weighing almost six pounds. He was healthy but tested positive for marijuana and cocaine. Ankrom admits smoking pot but denies cocaine use. She said that she quit smoking pot for her first two pregnancies, but that during the third, her morning sickness was relentless. Marijuana kept her functional, she said, and so she continued in spite of her gynecologist’s warning that she faced prosecution if she did not stop. She planned to quit a few weeks before her due date, assuming that she would then test negative. But Bryson came six weeks early.

When Bryson’s drug-test results came back, the hospital called the Department of Human Resources, Alabama’s child-protection service, which placed her children in the custody of her parents. “The first night without my children, I thought I was just going to die,” Ankrom said. She moved in with her parents so she could be around her children, but she was not allowed to be alone with them.

Two weeks later, the police came to the door with a warrant.

“Since I was breast-feeding, they let me pump a few times before they took me to jail,” Ankrom said. They handcuffed her [and] walked her to the car in front of her parents’ neighbors….

For several months [ while out on bail ] Ankrom received regular, unannounced spot checks to make sure she wasn’t alone with any of her children. A friend moved in to supervise her when her parents weren’t home. Ankrom pleaded guilty to chemical endangerment and was given a suspended sentence with one year’s probation.

“What’s killing me is I had a bright future,” said Ankrom, who was studying to be a physical-therapy assistant. “When you want to work with children or the elderly, they see that abuse charge and they’re like: ‘Whoa, no, thank you, ma’am. You’re not going to work here.’ ”

Same thing when she volunteers at school or at Girl Scouts, I would wager.

Said one legal commentator:

… once the woman becomes pregnant, she has a second-class status in which she loses virtually every constitutional right, including a right to medical privacy.

What next?

Monitor her intake of red wine and chocolate? Her calories?

Her work schedule and commute?

Her tennis, running, bowling, visits to the gym? Too much? Not enough?

Or monitor her for unhealthy political views? No joke. See the movies Cautiva and The Official Story, true stories of a kind that happened by the hundreds in modern Argentina.

And why stop at pregnancy? Why not monitor mom the same way for two decades, throughout that childhood?

Authorities from the county Child Protective Services kept coming to this mother’s door:

I don’t know what to do. At first I thought it was the school. But after reading my daughters Facebook posts. I found out its been her. Everytime she gets in trouble, this time it was grounded 1 week from the playstation, playing after school with her friends, 3 days no phone, no computer. For her grades, her attitude, and lying. She goes to school and tells her friends I hit her. Her friends are going to the guidance office. And they are calling child protective services. I don’t know what to do. She is getting very hard to deal with. I need some advise.

Cafe Mom

That post got 38 pages of comments from other moms, many with similar stories. One example:

I’ve worked in law for close to 20 years dealing as a child advocate and voice for kids who really come from abuse and neglect. Sit your daughter down and explain to her they can take her away and she will bounce from house to house the life of a family trapped in the system is a horrible one.

You’ve heard worse, haven’t you, from men in Family Court? A judge and two lawyers asked me why I ordered my daughter a salad for lunch, and why I ate part of it myself. A court reporter, two court clerks, and two heavily-armed security guards assisted in this inquiry at taxpayer expense. It was a giant dinner salad, I explained. Her favorite. They call it a BLT salad on the menu. But it was too big. She couldn’t eat it all.

Maybe you tuned out, when you heard this from men? Men who lost everything when their wives took them to Family Court?

When the child does likewise to the mother, the child and the child’s school and the child’s friends and the hospital where the child is born, then it’s everyone’s problem, and we can begin to do something about it.

What can you do?

First: Don’t use police against your family inside your home. They may come for you next time. And where authorities can take you from your children, they can take anything and everything  you love in life, from that first knock on the door.

Second: Write your Senators about VAWA. Tell them No Thanks. Don’t wait for VAWA to monitor women, or put pregnancy on probation, or make parenting so dangerous no malpractice insurance will touch it. Don’t wait a day. Next week could be too late.

###

I have seven tatoos. No one knows. I had forgotten them myself until this week, when I walked my mother through two days of hospital tests.

When doctors treat cancer with lasers, they aim carefully. They aim at a spot inside the body, not on the surface. Multiple laser beams cross at that spot. Each beam hits the body surface at a different place, doing minor damage there.  The lasers do major damage only where they combine, inside the body at the spot of the cancer. They need to hit the exact spot. A bad aim would destroy my voice or my throat, not the cancer. Then they need to hit the same spot every two weeks.

As I recall, the nurse took ten or fifteen minutes to nudge me into position on the table in the laser room. The laser shot itself was done in seconds. The room was huge to give them room to aim. Instead of moving the giant lasers, they moved me. Beams of red light crossed from high on the walls, and the nurse told me to scoot up a little, over a little, back a little…. She was aligning each red beam with one of those seven tiny tatoos. One is on my chin, but my beard hides it. Two more are under each armpit.  Two are high on my chest where an open collar shows them. They all look the same: like the leak from a fountain pen. If anyone notices, they don’t say.

Medicine advances at a dizzying pace. That was fifteen years ago. A hundred years ago I would have died instead.

How about law? Does law advance? Yes, it seems. Consider the law under debate this week in the US Senate: VAWA, or the Violence Against Women Act.

What kind of violence? What does this law aim to cure?

… throwing objects, punching walls, calling each other names and insults, controlling other people’s behavior, and committing physical violence, their actions all fall under the umbrella of what constitutes domestic violence and abuse.

When cast members on Teen Mom 2 call each other “dumb bitch,” “stretch mark whore,” “slut” or accuse them of being a worthless mother, there is no acknowledgement before or after the program that the viewers have witnessed a form of abuse that can be just as, if not more damaging, than physical abuse. No help line or educational resources are put forth.

Amanda Espitia, Huffington Post

That sounds like dizzying progress to me. I never expected the US Senate to cure teenagers of calling names and slamming things. Didn’t Oscar the sportswriter throw a plate of spaghetti against the wall in The Odd Couple, to horrify Felix Unger the neat freak? They demeaned one another as well, if I recall, in hateful language. I have lived long enough to see the US Senate outlaw such horrors.

But wait, there’s more.

Remember the police officer who was murdered in The Onion Field, the true story retold by Joseph Wambaugh, retired Los Angeles police sergeant, in a 1974 novel and 1979 movie? Police stopped the car of two small time burglars near midnight. The driver seized a gun from one policeman and then demanded the other policeman’s gun. The burglars drove the policemen to a dark onion field outside Bakersfield, thinking to tie them up and escape across state lines while the policemen got free and went for help.

Then one burglar remembered the Little Lindbergh Law. The whole world had known it when someone kidnapped and killed the toddler son of Charles Lindbergh, first man to fly the Atlantic. The law responded with the Little Lindbergh Law, named for the toddler. Sometimes law advances faster than medicine. Does medicine ever announce a new cure that fast, in a flurry of headlines at the death of a celebrity child, and name the new cure after the toddler?

The Little Lindbergh Law had been used to send another burglar to the California gas chamber just three years earlier, and our Onion Field burglars knew it. The Caryl Chessman case had drawn worldwide attention. Imitating a policeman, Chessman stopped a car and ordered the driver out. He ordered the driver to the side of the road in case another car came. He pulled his victim by the elbow, said the prosecutor, which counts as kidnapping, a capital crime punishable by death.

Chessman died in the California gas chamber, and our Onion Field burglars knew why.

We put the police in our car and drove them somewhere, the smart one said. That’s kidnapping. We’ll get the gas chamber now. There ‘s only one way out, he told the other burglar. Instead of tying them up, he shot them.

The law does not aim with quite the care medicine does. Medicine advances at a dizzying pace, while law advances like this dizzy fellow:

Imagine now a drunkard walking randomly in an idealized city. The city is effectively infinite and arranged in a square grid, and at every intersection, the drunkard chooses one of the four possible routes (including the one he came from) with equal probability. Formally, this is a random walk on the set of all points in the plane with integer coordinates. Will the drunkard ever get back to his home from the bar?

The Random Walk

If this drunk seems to be navigating a maze, it’s a maze of his own making, that no one else sees. This is not one step forward, two steps back. That would at least stay on course. This drunk never gets lost the same way twice.

Well, what’s the harm in the drunk’s random walk, or in trying to outlaw name-calling and broken crockery?

Let’s consult our Onion Field burglar again, the not-so-smart one. One night he and his wife are arguing at the dinner table. He shouts “Tarnation!” and throws his plate of spaghetti at the wall behind him.

His wife jumps up. She has heard about VAWA and calls the police. You can keep the plate, she laughs, the rest is mine now.

He knows VAWA too, or thinks he does. VAWA says every accusation of domestic violence must be considered true, with or without evidence. His wife can tell them whatever she likes, and the police will report it as true.

He thinks fast. Twenty minutes from now he will be taken away and forbidden to return to his house, tonight or tomorrow or ever. He will be jailed. He will lose his job. He will lose everything. He may never see his daughter again; and if he does, he will have nothing for her, only disgrace. Twenty minutes from now his life is over. What do you suppose he thinks in those last seconds, as his wife heads for the phone?

The Onion Field, maybe?

Domestic violence offenders … are using deadly force more frequently, Broward County officials said Thursday during a “call to action” news conference. “In the last year, there is a marked increase in lethality.”

Orlando Sentinel

If these cases have been turning more deadly for a year or more, why the news conference and call to action this week, while the Senate debates the VAWA law? Right, elections. Whatever else VAWA does or does not protect, VAWA protects the lawmaker from defeat, from name-calling by his opponent, and from being thrown out of office. Does it also throw husbands and wives and children into the onion field?

Now which was the more dangerous weapon that night, the plate or the telephone?

The law does not aim with the care medicine does, when medicine aims a crossfire of lasers at a tiny spot of cancer deep inside the body, trying to kill the cancer without killing the patient. Nor does the law hold itself to account as medicine does, in morbidity and mortality reviews. The law shoots in the dark, on the run, not stopping to count the bodies. I don’t mean police on the street, in a shootout. I mean lawmakers in their marble halls, at their mahogony desks, firing at shadows and hitting people they will never see. I mean the sponsors of VAWA in the US Senate. They don’t smell the onion field from there, but the onion field smells them.

###

1. Which do you prefer?

a) a quick answer
b) a right answer

2. Which do you prefer?

a) a faster answer
b) a closer answer

3. You have two or three months to live. Your doctor can give you a closer estimate if he does another month of operations and tests on you. Which do you prefer?

a) the faster answer
b) the closer answer

4. Family Court is keeping your daughter from you at the request of your spouse. For six years you watched her around the clock while your spouse traveled. Your spouse made a lot of money and has an expensive lawyer. You have neither money nor lawyer. It isn’t fair. You can press the judge for fairness over the next twelve months, or you can take the deal your spouse offers: You will see your daughter one night every two weeks, you cannot travel outside one rural county with her, and you will send your spouse three hundred dollars every week. Which do you prefer?

a) the faster answer?
b) the fairer answer?

Let’s give Family Court credit. Your Family Court judge will never know enough to make a fair arrangement; not in six weeks, not in six months, not in six years, and not if the judge had lived with you from the morning you brought your first child home. Your Family Court judge has nothing more to give, only the fast answer. Your Family Court judge will give you a run-around of any length you insist upon, until at last you surrender to the fast answer months or years too late, and let  your daughter’s hand slip from yours. Until then Family Court dispenses patronage that would make Tweed and Tammany Hall blush; patronage to a swarm of social workers who live upon the sorrow of seized children and fees squeezed from frantic parents; social workers who might otherwise have gone extinct decades ago.

If half your life is before you (and all the life of your child), then flee Family Court as you would flee underworld of the dead, while you can still taste the air and light of this world; while your heart might come back to life; while your trust in a workable world might come back to you.

Not for me. Alice was my late life baby. Most of my life is behind me. I am sixty this year. I will not turn from her to another future in another family. Today is 365 days since we last saw one another, waving as she disappeared into the dark on a Thursday night in Spring, late in her sixth grade year. Family Court has nothing better than the fast answer, and nothing less than the right answer leaves Alice and me a future together. Then against all odds, I stay to win or die trying.

###

More laws, more lawyers.

Lawyers who make laws send more work to lawyers. One governor begged his lawmakers not to make any more laws until they could pay for prisons to hold the new wave of lawbreakers. Persuade voters and taxpayers to pay, he meant.

I asked a rich friend how he made his money.

I supply beauty salons with disinfectants, he said.

I was surprised. How do you stay ahead of competitors who make disinfectants cheaper overseas, I asked.

Oh, most of my work is done in state legislatures, he said, making stricter requirements for beauty salons. Disinfectants hardly advance from decade to decade, he said; but disinfectant laws advance every year, if I have done my job.

Which makes me wonder: Why lure customers with better solutions if the government will bring you customers at the point of a gun? Is that the back door to wealth? Make problems for your customers, not solutions?

Lawyers have made a tsunami of new laws in recent years. Here is Harvard Law Professor Jeannie Suk:

Criminal law is ever expanding. It tends to seek new frontiers of liability [or accountability] and to bring into its ambit areas of life not previously regulated by it. Whether in the creation of new crimes, or … the ratcheting upwards of criminal penalties, today the inclination of lawmakers and prosecutors is to make criminal law reach further and cover more terrain.

Jeannie Suk
Yale Law Review

( more: Judges at Risk )

Whether we pay for more prisons or not, we pay for more lawyers. If the lawyers in the legislature make wimmydiddles illegal in various ways and in various circumstances, whimmydiddlers who have never said two words to a lawyer will now negotiate terms with one, to keep on the right side of the new whimmydiddle laws. If irresponsible whimmydiddling is a misdemeanor, some reckless whimmydiddlers may go on whimmydiddling without the assistance of a lawyer; in which case the lawyers who ascend to lawmaking in the legislature would do well to elevate whimmydiddle offenses to felonies, which would elevate whimmydiddle law to a specialty, and supply it a wave of whimmydiddlers.

In much the same way, the number of disorders known to Psychology has exploded:

In 1952 the first edition of the DSM (Diagnostic and Statistical Manual) listed 106 disorders in 130 pages. The current (fourth) edition lists 297 disorders in 886 pages.

– You Won’t Think Me Grandiose, I Trust …

We can explain this one of two ways:

1) As a nation we are sinking rapidly into madness and criminality.

2) Laws, like DSM diagnoses, are also billing codes, and more billing codes make for more billing.

Which brings us to the knights of Domestic Violence and their VAWA (violence against women) laws that are now up for renewal in Congress. Who could object to Violence Against Women? Remedies and preventions, I mean. Who could oppose safety for women? Did the name of a pet law ever leave anyone room to differ? Anyone this side of a Neanderthal?

The knights of Domestic Violence are lawyers, let us not forget, and Domestic Violence is yet another diagnosis and billing code in an explosion of diagnoses and billing codes. It sends a great many more customers to lawyers at the point of a gun. Like my Disinfectant friend who tells women their beauty salon would breed plague but for the vigilance of lawmakers.

Didn’t most Family Court judges start their own families in the Mad Men era, when Listerine told women they smelled bad in a way that men could smell and women could not? When women couldn’t get their own credit cards? When women were fair game in the office, for all comers? In the era of John Cheever’s The Five Forty-Eight? The era of Tennessee Williams and The Streetcar Named Desire?

VAWA cries “Wolf! and tells women they aren’t safe except in the arms of lawyers. VAWA declares as a matter of law that women cannot be trusted to look out for themselves, any more than your middle schooler could, or your Pomeranian. VAWA sends women off to huddle with the children and the pets, the way the aristocracy would once send the women from the room when the gentlemen brought out cigars and port and rough talk that would surely bruise the tender ears of the ladies. VAWA puts women back fifty years, or a hundred and fifty.

If VAWA were a novel, it would be a romance, a bodice-ripper, and a horror thriller in period costume.

For my young daughter, and for a generation of women who refused to be locked away in safekeeping, I am not only opposed, I am outraged. Maybe the Violence Against Women Act was well named after all, and VAWA is an act of violence against women.

###

… one dark night in his life, George Mordaunt, 44, said he nearly became a statistic. For three years, until 2007, he helped to build up his family’s 30-year-old automobile business in Clonmel, in southern Ireland, adding three new dealerships. Then, in 2008, the crisis struck. Now all that remains is the original family dealership.

¶ Mr. Mordaunt said he considered suicide after a tough-talking banker threatened to seize his home if he did not repay his loans: “Save the sob story. We want our money. If that means taking your family home, we’ll do it,” he recalled being told.

¶ That night, he said, he wandered into his sleeping son’s room, dwelling on the fate of another man he knew who had committed suicide and imagining his own funeral with his children marching behind a hearse.

¶ “How many other people lie awake at night with the same fears?” he asked. “How many people are on the verge of losing everything? Everyone in Ireland must become active in our rescue.

¶ “We don’t communicate and don’t share because we are laced with unreal pride. My view is you become active and stand up to the banks.”

¶ Mr. Mordaunt ultimately founded a counseling service, Insight, offering advice to people seeking to renegotiate bank debt.

NY Times 

These are not weak men, these are men who carry many others. When they stumble, many fall. Most men work for someone else to feed their families. Business owners feed their own families and the families of their employees. When they fall, they see with horror how many others fall with them. Most gas stations near Mr Mordaunt advertise suicide prevention lines. Mr Mordaunt would be thinking of many more children that night, in many more houses. If he went under, so would they.

¶ “Work became the religion here, and over time it has weakened the family — because if all you do is work, work, work, you have little else to fall on when that fails,” said the Rev. Davide Schiavon, who … recently inaugurated a program to assist businesspeople facing financial difficulties.

We do things differently in America. I know. I am one of those middle-aged men who started a business at the start of our biggest decade and the biggest bust in living memory. When I was late getting money for the payroll, my family was not the only one that could not pay its bills.

At the start of my marriage I sold my apartment in Manhattan and bought a business for my new wife to operate. Two companies where she worked had gone out of business in the months before and after we married. I should have seen that as a warning.

I think I must be one of the strong ones. In this country we don’t get help of the kind Mr Mordaunt got. We built our country on The Rosewood Rule (Earn High or Die). Men don’t get suicide prevention lines when their businesses fail. Here we are always looking for the Jonah to throw overboard to keep our boat from sinking, or make it go faster.

Walking in the Shadows

Theology should be done with the Bible in one hand

and the newspaper in the other. ~~Karl Barth

For years I have been cleaning up my business failure, the failed business I bought for my wife. Meanwhile she has gone on to another life of her own. The courts let her take my daughter from me, and keep my daughter from me. So many men cannot continue even with the help of their society. I continue in a society that wants only to dispose of me.

Family Court operates a no-kill animal shelter for such men, the Jonahs. Their families drop unwanted men at Family Court, and Family Court kennels the ones who cannot produce thousands of dollars for release. That was ten thousand men in the year 2000, before the biggest bust in living memory. The numbers are far higher now. So that’s at least ten thousand children with a parent who has been taken away to jail by Family Court. More likely twice or three times that many children. For these children, Family Court does not provide, Family Court deprives. Couldn’t this be cheaper? Couldn’t this be more merciful? For parents and children both? If Family Court revoked the no-kill policy, I mean, and instead of jailing us, offered us a suicide assistance line? That’s the American way, Jonah my friend.

###

Is Family Court that barber shop? Pathetic as a barber shop, thriving as a brothel?

Are we unfair to Family Court, measuring its performance against its name? What fails as Child Support works well as a eugenics program, with incarceration in place of sterilization. Our prison population of 2.7 million is unlikely to breed more of their kind, now or later. Of course Family Court can’t say as much, or speak out for eugenics or population cleansing, on the theory that people who can’t feed their kids should not have more. We no longer (since 1977) have state eugenics boards within our welfare programs, performing medical sterilizations. We now incarcerate the parents we once sterilized, and no longer say the word eugenics anywhere. Where Family Court fails at helping children, Family Court succeeds at eliminating children by the millions. Doesn’t that make Family Court a success unprecedented in the long history of eugenics and population cleansing?

###

In the bad old days, before the law could determine who was a witch in the service of Satan, we dunked the suspect in water. If she came up breathing, Satan had saved her, and she was proven a witch. She would then be sentenced for witchcraft. The sentence? Dunking until drowned.

If on the other hand the suspect drowned, God had forsaken her for wickedness, and she was proven a witch. No need to carry out the sentence, however. God had already seen to it.

To give them their due, such justice was swift: the trial and the sentence were a single step, carried out concurrently.

The law showed a kind of humility. It did not know, the law admitted, so it left the question to God. I remember hearing something similar from soldiers of fortune in a dirty war where guerrillas and civilians disappeared into mass graves and were never counted: “Kill them all. Let God sort them out.”

The law has come far since then, right?

Family Court Lawyer One:

“One of my former clients worked at the Piggly Wiggly (supermarket) and they were taking 65 percent of her paycheck,” she said. “It left her in a position where there was simply no way that she could survive on the amount that she had left.

”No one can say how many parents are jailed each year for failing to pay child support, because states typically do not track such cases.

But an analysis of U.S. Bureau of Justice statistics in 2002 by the Urban Institute’s Sorensen found that approximately 10,000 parents were in jail for non-payment of child support, representing 1.7 percent of the overall U.S. jail population.

Family Court Lawyer Two:

Seth Harp, a retired Georgia state senator and former member of the state’s Child Support Guidelines Commission, said the state’s judges use incarceration sparingly.

“The methodology to put someone in jail requires that the person be taken to court before a judge and there they have to be found in willful contempt — someone who actively refuses to seek work or is hiding assets, something like that,” he said. “Judges don’t want to put people in jail. The whole purpose is to get these people to support their children.”

Harp said he’s seen the tactic work repeatedly in his long career as a family law attorney.

“You can’t get blood out of a turnip, but you can put the turnip in the cooler,” he said. “And in 34 years of doing this, it’s amazing, you put someone in the cooler and the money seems to come.”

And if the money doesn’t come, Senator Harp? If you don’t get blood from the turnip? Does anyone go back looking for turnips that cannot be made to bleed? Does anyone ever hear from them again?

I don’t know, is this the best we can do? When someone does not get a job during their six month jail term, what does that tell us? Are they willfully poor, or involuntarily poor? When no one wants to hire them because at any time they might go to jail for six months, what does that tell us? Beats me.

No, I think we need a better approach. Look at their tax returns, maybe. Or dunk them. Dunk them all, and let God sort them out.

###

You tell them to share.

They don’t like the idea.

Twin One grumbles “Ok.”

Twin Two snarls “No way!”

You give the toy to

a) Twin One who said “Ok”

b) Twin Two who said “No way”

That’s easy, right? Every parent knows the answer: (a). You ask Twin Two “Are you sure? Because Twin One gets the toy, and if you won’t share, you leave yourself nothing.”

But now you are a Family Court judge, and you are to endow the parents of the county with the benefit of your wisdom on parenting.

You want two parents to share the care for their child.

Parent One grumbles “Ok.”

Parent Two grumbles “No way!”

You award sole custody of the child to

a) Parent One who agreed to share;

b) Parent Two who refused to share;

Now the answer is (b). If the parents cannot share, you award sole custody to one of them and visitation (ha! a joke) to the other. The one who refuses to share gets sole custody.

Why? You tell me. I’m only a parent. I’ve raised two children of my own, a boy and a girl, and two stepchildren, a boy and a girl. I don’t see how the parent who refuses to share is the better parent, but then I don’t have a law degree or training in Family Law, and I am in no way qualified to tell all the parents in the county their mistakes and defects as parents.

If you asked me, the parent who signed her child over to Family Court would already have one strike against her.

The Nobel-winning economist Daniel Kahneman has just published a retrospective of his life’s work. In the preface he cites his mother. Kahneman studied all the ways we make bad decisions and drive sensible economists to despair. You would have to study economics for many many years, says Kahneman, to be surprised by anything I discovered. Nothing here surprised my mother.

Kahneman credits his mother:

It must have been late 1941 or early 1942. Jews were required to wear the Star of David and to obey a 6 p.m. curfew.

I had gone to play with a Christian friend and had stayed too late. I turned my brown sweater inside out to walk the few blocks home.

As I was walking down an empty street, I saw a German soldier approaching. He was wearing the black uniform that I had been told to fear more than others – the one worn by specially recruited SS soldiers.

As I came closer to him, trying to walk fast, I noticed that he was looking at me intently. Then he beckoned me over, picked me up, and hugged me. I was terrified that he would notice the star inside my sweater.

He was speaking to me with great emotion, in German. When he put me down, he opened his wallet, showed me a picture of a boy, and gave me some money. I went home more certain than ever that my mother was right: people were endlessly complicated and interesting.

(Kahneman, 2003, p. 417).

I am thankful that Kahneman’s mother was never seized by an American Family Court and required to plead for the right to raise her own children. We might never have had Kahneman or his work. She might have despaired of our species there. You would have to study Family Law for many many years to stomach a day in Family Court and come away with any hope for our kind.

###

Put right the harm and injustice done to my daughter, Alice Elizabeth Harris, age 12, by an error of your court.

You have dismissed some other appeal, strictly speaking, not hers. For her I appeal an order dated May 12th, not June 2nd. See the RADI.

Do not ask a layman and father to thread the maze of your paperwork without the slightest error, yet excuse your own court an error more grievous by far.

An extraordinary court error left us no ordinary remedy.

A judge and his wife, family friends, attached an ex parte statement to the petition in this case. No counsel dared represent the respondent and question that judge for misconduct. The petition could not be heard or decided without error.

Grant whatever exceptions you must, please, to put right the harm done to my Alice Elizabeth and her future, and to your court and its honor.

You cannot rightly do less.

Signed

The Trayvon Martin case is not about the Castle Doctrine, the Stand Your Ground Law, or gun control. The Trayvon Martin case is not about race. Worse. The Trayvon Martin case is about The Rosewood Rule.

What business had you to come quarreling here, with a gentleman who has 1500 a year?

– Barry Lyndon

William Makepeace Thackeray (or Stanley Kubrick)

We hear The Rosewood Rule, as we have called it, everywhere, said many different ways. Earn high or die. Jane Austen says it on every other page. She says it much the way Thackeray did.

The Rosewood Rule explains the Citizens United case too, and a thousand more.

It might be easier to ask the opposite: What can The Rosewood Rule not explain?

The gun lobby isn’t lobbying for guns. The gun lobby is lobbying for free-market law enforcement. The police force is single-payer law enforcement. The police force is socialized law enforcement. The Stand Your Ground crowd is lobbying for the right to buy their own law enforcement at market rates, with premium law enforcement for premium payers.

Let’s back up one step.

What is a person? As seen by the law, I mean; by the authorities in the Trayvon Martin case, or the courts in Citizens United? In the simplest of all senses, what does law protect?

Well, a person is his person to begin with. Her body, her health ….

Anything else? What more is a person, beyond his person?

You, for instance. What are you, as seen by the law? Are you your property? Your family? Your home? Your community? Your career? Your country? Your home? Your children? Your car? Your corner office? Your beliefs? Your causes? Your commitments? The trophy date you’re seen with this weekend … ?

We would have to ask  you, wouldn’t we? Each of you? And get as many answers as persons?

Then that is your person: your own way of saying what a person is. Your choices. Your right to answer that question your own way. Right, did I say? No, a capacity first, or a need, and only later a right. You had that choice long before authorities invented courts or laws. Long before anyone schemed to take it from you, you had that choice and could not escape it.

Hence:

Life, liberty, and the pursuit of happiness.

Lofty words, right, with that triple lilt? But other words would do just as well or better? Another three phrases?

No. These are three for a reason; these three for a reason.

This, under our law, is the person.

Life: Your person. Your living body.

Pursuit of happiness: What you live for. Your choice. Your own answer to the question, What is a person?

Liberty: Authorities may not take from you that choice.

Without liberty our life and our property are nothing, said Jefferson in this document for the ages. Even in the days of Thomas Jefferson and Inalienable Rights, though, only men of property could vote. At the end of day, when Thom turned out the lamp and walked from his writing desk to his bed, he returned to the world of The Rosewood Rule, where only those with property have choices, or life, or personhood, or liberty.

Then let us try some test cases:

You are comatose and vegetative in a mechanical bed for thirty years. You are your living body and health, such as they are, but beyond that? Unless and until you can answer questions and make choices? Choose what to live for, and what to be for the people you love and left behind? What do you have when you have life? Choices. Only choices. Without those choices you have nothing; without those choices or the remote prospect of such choices somewhere ahead.

You are run down and killed in the road. Is your dead body your property? What do you have when you have property? Choices about that property. In what other sense could a thousand acres ever be yours? You choose for those acres, and only the choices, not the acres, are yours. Likewise your two yards of flesh on the road. You can no longer chose for those two yards of early acreage. Being dead, you no longer have property. Life and property give us choices. Only the choices are ours.

Now for the third and last of these: liberty.

You come under suspicion of filing a false income tax return. Income is like the coast of Connecticut. How long is the coast of Connecticut? If you trace along the coast from an aerial photo you get one answer. If you drive it you get another answer. If you boat into every little bay at high tide you get another answer. If you walk it you get another answer. If you trace along the edges of every pier that sticks out into every bay, you get another answer. There is no right answer. Every answer is wrong in some way. Likewise every tax return is false and illegal in some way. The authorities don’t just want your revenues, you know? They want something on you, whoever you are, in the unlikely event that one day you come between them and the end of a workday, or the start of a pension.

Or you are accused of embezzling money. You didn’t do it. It’s a mistake. Or maybe this mistake is no accident. Who makes such a mistake by accident? Maybe the embezzler covered his tracks by setting an overworked prosecutor on you. You’re an easy mark because you’re so innocent you have to look up embezzlement and how to spell it. Anyhow you face 18 months minimum security if you plead guilty and 18 years if you go to trial and lose. The difference? The trouble you make for your overworked prosecutor. Evidently he has no idea who did it. He thinks you did, but he cannot have any good reason to think so. Because you are innocent, you are more work for your prosecutor, and you will pay dearly for troubling him. Should you go to trial? Should you bet that the court is less overworked than the prosecutor, and makes fewer mistakes? That the court cares one punctilio or rat fart more than this prosecutor does? Should you bet the next eighteen years of your life? The school years of your children? Their summer camps, first loves, graduations, weddings, babies? No, you can’t take that chance. You plead guilty to something you didn’t do, and serve 18 months. But you began serving a sentence of some kind the moment the eye of the law fell upon you thirty months ago.

You had almost no choices in those thirty months, and hardly more choices thereafter.

What’s thirty months in a life of sixty years, an innocent might ask. What’s one eye, when you have two? What’s one foot, when you have two? What’s one break in the wiring in the wall, when these walls have yards of wiring? What’s a single break in single artery in the brain? Your life is broken from the first moment the eye of the law falls on you, whether the break is thirty days or thirty months or thirty years.

Life, liberty, and choices (the pursuit of happiness). You have all three or you have nothing. The Rosewood Rule adds property to Jefferson’s equation; without property, your life, liberty, and choices are all forfeit on a moment’s notice.

What does The Rosewood Rule say of Trayvon Martin? Earn high or die. Where the only witnesses to a dispute are the disputants, the one with more property wins. In the Trayvon Martin case, one man had a five thousand pound SUV, the other had sneakers. One had a 9 mm pistol, the other had a paper cup of cola. Those guns are expensive. The gun lobby isn’t lobbying for guns. The gun lobby is lobbying for free-market law enforcement. The police force is single-payer law enforcement. The police force is socialized law enforcement. George Zimmerman would no sooner turn to the police force than turn to a public defender or a court appointed attorney. George Zimmerman and the Stand Your Ground crowd are lobbying for the right to buy their own law enforcement at market rates, with premium law enforcement for premium payers. Care to guess where they are on single-payer healthcare?

Finally, let us consult William Makepeace Thakeray and The Rosewood Rule on Citizens United. Citizens United ain’t citizens, to begin with. In the Citizens United decision, SCOTUS sold our elections to multi-national corporations whose numbers reduce mere voters and citizens to motes of dust levitating in the dying light of late day. In Citizens United, SCOTUS wrung its handkerchief and wept over robots of its own invention. What are corporations? Robots devised by law. In corporations the law invented artificial and stunted approximations of persons, pseudo-persons that could operate with limited liability, unencumbered by the responsibilities of actual persons, from the circuitry of the sociopath, from behind dead eyes. These robots have no life or health, only property. We speak of their health, but their health is the health of their property. As pre-teen girls compare themselves unfavorably to the shape of Barbie, in ads we imagine ourselves to be poor cousins of corporations, devoid of their wealth, talent, and charms. These robots are nothing if not earnings. Earn high or die? Where the court must bury you or bury a robot of its own making, put your papers in order and say your goodbyes.

If Thomas Jefferson says nothing of The Rosewood Rule, maybe The Rosewood Rule was the air everyone breathed in that era and every other. I long imagined that Gandhi beat the British Empire by holding them to the standard of their own honor. No, Gandhi beat Britain with The Rosewood Rule. Britain had been broken by two world wars. Britian could no longer afford to police all of India. Gandhi embarrassed them by running up bills Britain could hardly pay, and Britain went home the better to hide its new poverty. Poverty and shame Gandhi knew better than anyone, and better than he knew love and truth. Gandhi was yet another master of The Rosewood Rule.

What would public servants do best, would you guess, in or out of blue uniforms or black robes? Tally liberty? Tally justice? Tally choice? Tally happiness? Tally personhood? Or tally property? Right. Property. They tend to property. Like you and me, they do the easy thing. They sidestep trouble. They take the nearest exit from the day, and the shortest path to retirement.

There was your mistake, Trayvon.

What business had you to come quarreling here, with a gentleman who has 1500 a year?

– Barry Lyndon

###

And Em, I add.

###

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION OF THE HARRUMPH JUDICIAL DEPARTMENT

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 2 of 38

Table of Contents

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 3 of 38

Table of Authorities

1. The New York State Bar Association Code of Judicial Conduct Canon 2 (§100.2) c.

A judge must not testify voluntarily as a character witness because to do so may lend the prestige of the judicial office in support of the party for whom the judge testifies. Moreover, when a judge testifies as a witness, a lawyer who regularly appears before the judge may be placed in the awkward position of cross-examining the judge.

2. The New York State Bar Association Code of Judicial Conduct Canon 3 (§100.3) (6) (a)

Ex parte communications … are authorized, provided the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and … allows an opportunity to respond.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 4 of 38

Procedural History of the Case

Statement Pursuant to CPLR 5531:

1. Index Number:

The File Number in the trial court was 46388. The docket number was V-23456-09 (Lisa Harris, petitioner; Josh Harris, respondent).

2. Full Names:

The full names of the parties are set forth above. There have been no changes.

3. Court:

The action was commenced in the Family Court, Apple County.

4. Date:

The petition was submitted on May 12, 2009. The order granting ex parte relief was entered that same day and hour.

 

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 5 of 38

5. Object of the Action:

Order the trial court, please, to

(a) reject the petition as improper for including a third party statement or ex parte statement that prejudices the matter;

(b) vacate the ex parte relief and order of temporary custody entered in response to that improper petition, and any and all orders derived from and compounding that error;

(c) dismiss the case entirely;

6. Paper Appealed:

The appeal is from an order granting ex parte relief entered in Family Court, Apple County, dated May 12, 2009, made by The Honorable Judge Jane Potter.

7. Record by which Perfected:

With your permission, I perfect the appeal on the original record method, including only the initial petition and the order granting ex parte relief. Such a petition, if improper, cannot properly make further record.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 6 of 38

Questions Presented for Review

1. Did an extraordinary court error leave this appellant no ordinary remedy?

2. Did a local judge attach an improper ex parte communication to the petition in this case?

3. Could such a petition be heard and decided without error?

4. Could that ex parte communication by a local judge deter counsel and representation for the respondent?

5. Was the petition in this case ever challenged by counsel for the respondent? Were its claims of fact or claims of law ever challenged?

6. Could counsel for the respondent have protected the court from error, and the child in this case from harm?

7. Does the harm to appellant and child continue, increase, and compound even now?

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 7 of 38

8. Does the court error threaten this child with imminent and irreparable harm because of the advanced age and poor health of her father, the appellant?

9. Allow this appeal beyond the ordinary time limit?

10. Allow appellant to perfect this appeal with only that improper petition as record?

11. Allow appellant to appeal as a poor person?

12. May a judge intervene for a petitioner in another court?

13. May a judge make a third-party or ex-parte communication to the court in favor of one party in a matter?

14. May a judge intervene as a third party in favor of a petitioner who is a personal friend?

15. May a judge intervene as a third party in favor of a petitioner if as a business partner the judge collects a percentage of the petitioner’s business revenues?

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 8 of 38

16. Could a third-party intervention by a judge for a petitioner prejudice the matter, and shield petition and petitioner from proper scrutiny, and render the court vulnerable to error?

17. Could a third-party intervention by a judge for a petitioner constitute improper judicial conduct?

18. Would a third-party intervention by a judge for a petitioner, if improper, require counsel for the respondent to raise that issue?

19. Would counsel be reluctant to raise the question of improper judicial conduct against a local judge?

20. Would counsel be reluctant to take up the cause of the respondent if that required her to challenge the judicial ethics of a local judge?

21. Does a Family Court judge err to accept a petition that refers to and includes a third-party statement in support of the petitioner from a longtime member of the Family Court Law Guardian Panel?

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 9 of 38

22. Does the court err to accept a petition that

a) calls for challenge by a well-trained legal professional,

b) intimidates and deters any such counsel or representation for the respondent?

23. Can an intricate and expensive court system deliver justice to a layman of modest means and his young daughter?

###

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 10 of 38

Summary of the Facts

1999 (May 1):

Marriage:

Josh Harris (respondent, appellant):

then age 47, now age 60

Masters degree from Columbia University

former IBM Systems Engineer

former database consultant at J P Morgan and other Wall Street companies

18-month treatment for a recurrence of non-Hodgkins lymphoma in 1996-1997

as contractor working from home 1997-1999, builds some of the first commercial Internet databases in NYC area

 

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 11 of 38

 

Lisa Harris (petitioner):

then age 38, now age 50

psychiatric nurse, clinical specialist

(then) on disability for severe head injury inflicted by psychiatric inmate

(then) a recent bankruptcy and divorce

 

1999 (September 22, Wednesday):

Birth of only daughter, Alice Elizabeth.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 12 of 38

2001

Josh Harris sells his apartment on Central Park West in Manhattan; buys womens fitness franchise location for new wife Lisa to operate.

2001-2009

Josh does Internet billing for own and another 200 fitness franchise locations in the US and Canada.

He works from home while wife Lisa travels for business.

He watches daughter Alice Elizabeth, and is the parent closest to her.

2007

Fitness franchise fails nationwide.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 13 of 38

2008 (November 12)

The couple file Chapter 13 bankruptcy plan to repay business liens against home.

Wife Lisa threatens: “Josh, if you cannot save this house, there will be no more Alice for you.”

2009 (May 10, Sunday)

Josh and Alice rehearse their parts in a family wedding out of state. Wife Lisa declines her invitation and stays behind.

2009 (May 12, Tuesday)

Wife Lisa petitions Family Court with no warning to Josh and Alice.

Ten-year friends Paul and Toni Banner advise and assist petitioner.

Toni Banner attaches to the petition a signed statement of her own, citing the advice of Judge Paul Banner.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 14 of 38

2009 (May 16, Saturday)

Petitioner Lisa brings a policeman and a process server to the house of the bride at dawn on the day of the wedding, wakes Alice, pulls her sobbing to a curbside rental car, locks her inside, and hurries her away.

All that day two hundred wedding guests ask about the suddenly-missing Alice.

 

2009 (June 2, Tuesday)

First hearing, Apple County Family Court, Judge Jane Potter.

Carefully-chosen attorney for respondent returns her retainer upon reviewing the file and finding a statement from Judge Paul Banner and wife Toni attached to the petition.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 15 of 38

Wife Lisa is given custody of Alice and allowed to remove her from the family home of ten years.

Tropea guidelines are ignored. Wife Lisa is allowed to take Alice to a remote town without asking whether Alice can still have two parents there. The court has unwittingly helped one parent complete a threat to exclude the other parent from the child’s life.

###

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 16 of 38

ARGUMENT

Arranged under the points urged and questions raised for review:

1. Did an extraordinary court error leave this appellant no ordinary remedy?

 

Yes.

Though I argue Pro Se, I sense what an extraordinary appeal I make to the Appellate Division.

I learned this from a ten-year family friendship with a local judge.

That judge and family friend contrived this error. At heart this error was no error.

This was no ordinary court error.

This error left me no ordinary remedy.

2. Did a local judge attach an improper ex parte communication to the petition in this case?

 

Yes. That judge and family friend directed my then-wife to a new judge in Family Court, and sent his own wife with mine to attach an ex parte communication to the petition.
An old judge lured a new judge into error. The older judge lists himself as a member since 1983 of the Family Court Law Guardian Panel. The Family Court judge was new to her position.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 17 of 38

3. Could such a petition be heard and decided without error?

 

No. That judge and family friend once explained to me why judicial ethics prohibit any such thing by a judge. A court cannot hear such a case without error, he explained. He was right.

4. Could that ex parte communication by a local judge discourage counsel and representation for the respondent?

 

Yes. My carefully-chosen attorney withdrew upon reading this petition. She returned a retainer and signed agreement just ahead of the fateful first hearing, too late for me to replace her. She gave as her reason the statement attached to the petition by the wife of a local judge and longtime member of the Family Court Law Guardian Panel.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 18 of 38

In that statement the wife of the judge cited advice the judge had given the petitioner. The judge is a family friend and a business partner of the petitioner, and collects a percentage of the petitioner’s business revenue.

Through his wife the judge signaled a personal interest in the case and an opinion favoring the petitioner.

If I am mistaken to think so, so might others in the case be mistaken, and think this or fear this to my real and unmistakable disadvantage as respondent.

5. Was the petition in this case ever challenged by counsel for the respondent? Were its claims of fact or claims of law ever challenged?

 

No. To date this petition has never been challenged by counsel for the respondent. Neither its claims of fact nor it claims of law have been challenged.
In this form the improper petition

a) calls for challenge by a well-trained legal professional;

b) discourages any such counsel or representation for the respondent.

 

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 19 of 38

 

6. Could counsel for the respondent have protected the court from error, and the child in this case from harm?

 

Yes. Counsel for the respondent also protects a busy court from error.

Counsel for the respondent would demonstrate that

a) the petitioner lacks credibility;

b) the petitioner won disability payments for a head injury;

c) psychological testing found in the petitioner an alarming psychological profile;

c) the petition makes only vague and false allegations that do not in any case fall within the jurisdiction of Family Court;

d) the petitioner filed this petition shortly after solemnly vowing to exclude father and child from one another;

e) the petitioner abuses the trust of the court for purposes to which the court would never knowingly lend itself.

 

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 20 of 38

 

7. Does the harm to appellant and child continue, increase, and compound even now?

 

Yes. Alice has just five more years of school and five more years at home. These years will set a direction for her life.

The order of the court deprives Alice of her father’s family in these years. The order of the court prohibits me from leaving a single rural county with her. She cannot visit my family with me.

The order of the court ignored Tropea guidelines, and did not ask whether the child could still have two parents if removed from the family home by her mother.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 21 of 38

8. Does the court error threaten this child with imminent and irreparable harm because of the advanced age and poor health of her father, the appellant?

 

Yes. I am sixty years of age this year. Having twice survived treatment for the same cancer, I cannot know how many more years I have for Alice. Those treatments have left me with poor walking balance and poor control of my left
hand. The child’s mother threatens me with jail unless I somehow come by amounts of money I may never again see in this lifetime.

9. Allow this appeal beyond the ordinary time limit?

 

Please.

This appeal asks exceptions of your court, I know.

This case began with an improper petition, I argue; a petition improper by design; a petition that by design left me no ordinary remedy.

Permit me the exceptions required, please.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 22 of 38

10. Allow appellant to perfect this appeal with only that improper petition as record?

 

Please.

With your permission, I perfect this appeal with original papers:

1. The petition submitted in an ex-parte hearing, with an ex parte statement of support from a judge.

2. The order granting ex parte relief that same hour of that same day.

The petition refers to and includes a third-party or ex parte statement of support signed by the wife of a local judge and longtime member of the Family Court Law Guardian Panel.

If such petition is improper, or cannot be heard and decided without error, then no proper record can come from it, I argue.

If  that third-party or ex parte communication is improper,

… or the intervention and conduct of that judge is improper,

… or the trial court judge (a new judge) erred in granting ex parte relief to such a petition,

… or anyone might reasonably suspect any of these possibilities to be true,

… or prospective counsel for the respondent might reasonably suspect or dread any of these possibilities,

then this petition could not be heard or decided without error, I argue, and no proper record can come from it.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 23 of 38

11. Allow appellant to appeal as a poor person?

 

Please.

With your permission I appeal as a poor person. I will be sixty years of age this year. I have survived two bouts with non-Hodgkins lymphoma. I receive SNAPS (food stamp) aid.

Alice was my late-life baby. I love her more than my life. I don’t know how many more years I have for her. That time limit not even the Appellate Division can waive.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 24 of 38

12. May a judge intervene for a petitioner in another court?

 

No, I argue. From my Table of Authorities:

The New York State Bar Association Code of Judicial Conduct Canon 2 (§100.2) c.

A judge must not testify voluntarily as a character witness because to do so may lend the prestige of the judicial office in support of the party for whom the judge testifies. Moreover, when a judge testifies as a witness, a lawyer who regularly appears before the judge may be placed in the awkward position of cross-examining the judge.

This, I argue, includes testimony by deposition or written statement, and testimony through a surrogate or spouse.

13. May a judge make a third-party or ex-parte communication to the court in favor of one party in a matter?

No, I argue. The proscription against ex parte communications concerning a proceeding includes communications with lawyers, law teachers, and other persons who are not participants in the proceeding.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 25 of 38

14. May a judge intervene as a third party in favor of a petitioner who is a personal friend?

No, I argue.

Again the New York State Bar Association Code of Judicial Conduct:

Canon 2 (§100.2) b.

A judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment.

My then-wife and I and the judge and his wife were friends from the beginning of our ten-year marriage.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 26 of 38

15. May a judge intervene as a third party in favor of a petitioner if as a business partner the judge collects a percentage of the petitioner’s business revenues?

No, I argue.

The judge and his wife collect a percentage of my then-wife’s business revenue. He and his wife many times urged me to make a similar arrangement with him and each time I declined. The judge was burdened with a garage-full of expensive air filters, for instance, and hoped that I might sell some for him; or, as he had, buy some to sell.

16. Could a third-party intervention by a judge for a petitioner prejudice the matter, and shield petition and petitioner from proper scrutiny, and render the court vulnerable to error?

Yes, I argue, if anyone in the proceeding might reasonably take his view as a foregone conclusion to the case, or might reasonably think that the wife of the judge speaks for the judge, and carries his inside knowledge of the court, its judges, and the petition process.

17. Could a third-party intervention by a judge for a petitioner constitute improper judicial conduct?

Yes, I argue.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 27 of 38

18. Would a third-party intervention by a judge for a petitioner, if improper, require counsel for the respondent to raise that issue?

 

Yes, I argue. Counsel for the respondent would have that duty to her client if she took up his cause.

As an officer of the court, “commissioned to uphold the moral grandeur of the law,” she would have that duty to the court as well, to protect the integrity and credibility of the process.

Says The New York State Bar Association Code of Judicial Conduct:

Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges. The integrity and independence of judges depends in turn upon their acting without fear or favor. Although judges should be independent, they must comply with the law, including the provisions of this Code. Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violation of this Code diminishes public confidence in the judiciary and thereby does injury to the system of government under law.

19. Would counsel be reluctant to raise the question of  improper judicial conduct against a local judge?

Yes, I argue. Such a challenge might have grim consequences for her, the judge, or both.

20. Would counsel be reluctant to take up the cause of the respondent if that required her to challenge the judicial ethics of a local judge?

Yes, I argue. So hinted my carefully-chosen attorney when she read this petition. She then returned my retainer and withdrew just ahead of the fateful first hearing, too late for me to replace her.

21. Does a Family Court judge err to accept a petition that refers to and includes a third-party statement in support of the petitioner from a longtime Family Court Law Guardian Panel Member?

Yes, I argue, whether she erred in deference to a senior judge and longtime member of the Family Court Law Guardian Panel, or failed to consider that others might feel such deference and be swayed by it.

22. Does the court err to accept a petition that

a) calls for challenge by a well-trained legal professional and

b) intimidates and deters any such counsel or representation for the respondent?

 

Yes, I argue. Such an extraordinary error leaves me no ordinary remedy.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 30 of 38

23. Can an intricate and expensive court system deliver justice to a layman of modest means and his young daughter?

Yes, I hope.

Now only the judges of the Appellate Division can answer this.

###

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 31 of 38

ORIGINAL RECORD

Bound under separate cover as Record on Appeal:

1. Petition by Lisa Harris

Dated May 12, 2009

Petition includes a second signed statement by the wife of a judge and longtime Family Court Law Guardian Panel Member, in which she cites the advice of the judge to the petitioner and suggests his opinion in favor of the petitioner.

2. Order of Temporary Custody

Relief granted ex parte and entered that same hour of that same day by The Honorable Judge Jane Potter.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 32 of 38

Conclusion

In this case a local judge fast-tracked a Family Court petition for a family friend and business partner of his wife and himself.

A thirty-year member of the Law Guardian Panel for Family Court, he directed the petitioner to an ex parte hearing before a new judge at Family Court.

Through his wife he attached an ex parte statement to the petition that declared a personal interest in the case and an opinion favoring one party.

If I am mistaken about any or all of this, then so might others in the case be mistaken, and the petition could not then be heard or decided without error.

Here a long-time judge lured a new judge into error.

He raised a question of judicial misconduct that intimidated and deterred counsel and represention for the respondent. Counsel for the respondent returned a retainer and withdrew from the case upon finding that ex parte statement in the file on the eve of the fateful first hearing.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 33 of 38

Counsel for the respondent protects not only the respondent. Counsel for the respondent also protects a busy court from error.

Counsel for the respondent might have protected this new judge from error.

By means of an ex parte statement from a long-time local judge, this petition evaded proper scrutiny.

Neither the petitioner nor the petition nor its claims of law nor its claims of fact were ever challenged or properly heard.

By design this petition could not be decided without error.

Your judge had other options, many other and better options.

The petitioner, Alice’s mother, petitioned Family Court while my daughter Alice and I were away rehearsing our parts in a family wedding. The petitioner had declined her own invitation to that wedding. She petitioned the court without warning of any kind to Alice or me.

Your judge might have suggested that the petitioner return with a properly amended petition, with no meddling by another judge; or return after the wedding; or return after speaking with me, the other parent; or all of these.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 34 of 38

Instead the petitioner brought a policeman and process server to the house of the bride at dawn on the day of the wedding, woke our Alice, and pulled her away sobbing. All that day two hundred wedding guests asked about the suddenly-missing Alice.

This petitioner abused the trust of a new judge for purposes to which no judge would never knowingly lend herself.

Without your intervention, an over-busy lower court does not reverse or correct such an error, but only compounds it.

My Alice Elizabeth has lost her father, her father’s family, and half her future. I am outraged for her. So should we all be.

This is no way to decide the future of a child.

An authority that takes my child outreaches any capital case, and takes more.

An authority that takes my child may then take anything.

An authority that takes my child may then take everything.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 35 of 38

An authority that takes my child without process and protection of law may then take from me any and every other process and protection of law; may, and has already; from me, and from all other persons: all who have a child, all who may ever have a child, and all who ever were a child.

Through a single hole may all the dignity of the law drain away; all its dignity, meaning, and power.

In August of 2011 a special task force of the ABA warned that a budget crisis threatened the capacity of the courts to deliver justice. Nowhere is that crisis worse than in Family Court.

Desperately overworked, Family Court menaces children and families.

Family Court is an overcrowded and understaffed parking garage where children and families are run down in the crush.

In the crush Family Court favors one parent over two, the high-conflict parent over the co-operative parent, and the worse parent over the better.

The one-parent solution costs the overworked court less time. Malicious petitioners know and exploit this. The worse parent petitions first.

Family Court compounds the harm it was meant to counter. Where the law lends itself to harm, we lose more to law than to lawlessness.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 36 of 38

Family Court is that hole at the bottom of our legal system through which all the purpose of the law leaks away.

If the law is your life’s work, Family Court is the hole through which all your purpose leaks away.

If Family Court touches lives earlier than any other, what regard for law does Family Court teach a new generation?

I told my Alice Elizabeth to trust this process. Now her last school years tick away. Her last years at home tick away. Her father’s last years tick away. I turn sixty this year. I have twice survived months of cancer treatment. Unless you act, she might never again see her father alive. Make good my promise to her, please, while you can. Give her back two parents and two families in these difficult years that will set a direction for her life.

Send out this witness that our system works.

Order that the trial court reject this improper petition, please, and vacate any and all orders derived from and compounding that error.

Let this girl begin again while there is time.

###

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 37 of 38

Certificate of Compliance
I hereby certify pursuant to 22 NYCRR § 670.10.3(f) that the foregoing brief was prepared on a computer. A monospaced typface was used, as follows:

Name of typeface: Courier

Point Size: 12

Line spacing: double

Approximate number of words in this brief: 3900, including

Procedural History of the Case (230),

Questions Presented for Review (430),

Summary of the Facts (440),

Argument (1930), and

Conclusion (880),

but excluding Table of Contents, Table of Authorities, Statement Pursuant to CPLR 5531, Original Record, and this Certificate of Compliance.

Harris v Harris for Alice Elizabeth Harris | 29 March 2012 | page 38 of 38

Dated March 29, 2012

 

Josh Harris

Appellant Pro Se

 

###

So, now you give the Devil the benefit of law!

Sir Thomas More (his father-in-law):

Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper:

Yes, I’d cut down every law in England to do that!

Sir Thomas More:

Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat?

This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then?

Yes, I’d give the Devil benefit of law, for my own safety’s sake!

Robert Bolt
A Man For All Seasons

Emily Bazelon of Slate wonders why a killer has not been arrested:

The story of Trayvon Martin’s death is heartbreaking. If you have missed the facts: The 17-year-old, who is black, was walking to a friend’s home in a gated community in Sanford, Fla., when a neighborhood-watch volunteer*, 28-year-old George Zimmerman, spotted him. Zimmerman, whose father says identifies as Hispanic, called the cops to report a suspicious person. They told him not to follow. “They always get away,” Zimmerman told dispatch in a 911 call released Friday, and he kept tracking Martin. Zimmerman had a gun. Martin was carrying only an ice tea and the Skittles he’d just bought at the store. The two had a struggle that no one saw. Hearing shots, neighbors called 911. In one call that’s hard to listen to, a woman anxiously says she can hear someone calling for help while in the background, a terrified, wailing voice pleads, “No! No!”

Zimmerman shot and killed Martin, but he said he did so in self-defense.

Emily Bazelon, Slate

Why has the killer not been arrested, then, to tell his story to a jury?

Ms Bazelon wrestles with that question:

It involves the intersection between the fight against domestic violence and the agenda of the National Rifle Association.

Let’s back up, with the help of Jeannie Suk, a Harvard law professor who wrote an article in 2008 that I’ll rely on for the next few paragraphs.

Yes, but it’s simpler than that, Ms Bazelon. The Man for All Seasons gave us the answer long ago, however often we may turn from the sight of it. The answer does not call for the best of our education or the best of our intelligence. It calls for courage, and our courage fails.

Like son-in-law Roper, we were aflame to fight evil.

We were aflame to protect women.

We were aflame to ride like white knights to the rescue of damsels in distress.

We were aflame to catch the rogues and villains and cads and curs who had carried them off.

Our chase cut a great road through the law.

Our chase knocked flat the walls of our homes, in our land planted thick with homes and their walls.

Is a man’s home his castle? No more, we decided, after three centuries.

Now a man is an intruder in his own home, we decided, if his wife shoots him there and leaves no witness to dispute her.

Now the home is our greatest danger. Our last refuge of safety is now our first and worst danger.

The latest victim of Domestic Violence, then:

Yes, Trayvon Martin, victim of Domestic Violence. Not the first, and not the last, just  one in a thousand who somehow made the news. A thousand more are down since then, a thousand more after Trayvon Martin, down in 3000 counties and 3000 Family Courts across the land. The next thousand die silently though, and slowly, and we don’t see. Thomas Ball was one in a thousand. A soldier, he set himself alight on the steps of Family Court, not to die in darkness if the signal might save others.

But who can stand upright in the winds that blow now?

###

I never imagined I would agree with Phyllis Schafly about anything, even the weather,, or side with her against Senator Diane Feinstein of California and Senator Maria Cantwell of Washington State, but the VAWA (Violence Against Women Act) is itself violence against women and their interests, and demeaning to women.

Don’t tell my daughter her gender is a disability, thank you.

The Domestic Violence lobbyist is a sub-species of Personal Injury lawyer, and my daughter’s gender is not an injury or a defective product, thank you. I wouldn’t mind if you never made a nickel staging her as a victim.

Women are not children, and don’t need the special protections we extend to children, thank you all the same.  Don’t do my daughter any of your favors, VAWA. We won’t be needing anything from you.

I’m the father of a daughter now, and I find myself with Phyllis Schafly on this one.

###

We Americans Love Our Myths

His examples:

We Americans cherish our myths. One myth is that there is more social mobility in the United States than in Europe. That’s false.

Another myth is that the government is smaller here than in Europe. That’s largely false, too.

The U.S. does not have a significantly smaller welfare state than the European nations. We’re just better at hiding it. The Europeans provide welfare provisions through direct government payments. We do it through the back door via tax breaks.

Our government is 20% larger than we think, once you count the hidden costs:

Suppose the Pentagon wanted to buy a new fighter plane. But instead of writing a $10 billion check to the manufacturer, the government just issued a $10 billion “weapons supply tax credit.” The plane would still get made. The company would get its money through the tax credit. And politicians would get to brag that they had cut taxes and reduced the size of government!

We also call ourselves The Land of the Free and imprison five to twelve times as many of our people as any other industrialized nation.

So maybe for ten minutes we could take a hard look at ourselves? At what we do, not what we say?

Let me introduce Stan. Stan is my invention. As I see him, he’s a retired detective and prosecutor. He gives you bad news with a sad and kindly look, however horrifying the bad news. He tells you hard things because he doesn’t like to see you beat your head against an even harder brick wall.

Stan:

If we couldn’t get the bad guys for one thing, we got them for another. They do something we can’t prove and we put them away for something they didn’t do. Nobody’s happy but it could be worse. It’s justice of a kind. It’s a rough approximation.

It makes sense once you see there’s only one crime in this country, and every crime is just another variation of that one.

I call this the Rosewood Hypothesis, after the town of Rosewood, Florida, a ghost town since the Rosewood massacre of 1923. Don’t stop to smell the roses. They smell of hidden bodies.

Rosewood and Sumner were the black and white halves of a single voter precinct:

Although residents of Rosewood probably did not vote because voter registration requirements in Florida had effectively disfranchised blacks since the turn of the century, both Sumner and Rosewood were part of a single voting precinct counted by the U.S. Census. In 1920, the combined population of both towns was 344 blacks and 294 whites.

In the massacre of 1923, Sumner eliminated Rosewood:

Spurred by unsupported accusations that a white woman in nearby Sumner had been beaten and possibly raped by a black drifter, white men from nearby towns lynched a Rosewood resident. When black citizens defended themselves against further attack, several hundred whites combed the countryside hunting for black people and burned almost every structure in Rosewood. Survivors hid for several days in nearby swamps and were evacuated by train and car to larger towns. Although state and local authorities were aware of the violence, they made no arrests for the activities in Rosewood. The town was abandoned by black residents during the attacks. None ever returned.

We don’t do such things anymore, do we? asks Stan, with a sly gleam in his eye.

Or maybe we do this bigger and better, and we cover our tracks better. That’s my Rosewood Hypothesis.

How would we clear out Rosewood today? Some prosecutor would be ordered to “drain that swamp” or some such language. He would stage a drug raid and round up as many breeding-age residents as his staff could process. Not too old and not too young, just people of breeding age.

Everyone would plead guilty to felony charges or sit in jail six months waiting for a court date and get their felony then. Felony now or felony later, that’s your choice. Either way you start serving your sentence as soon as you are arrested.

Now why would I as prosecutor go to all that trouble and expense? Well, felons can’t vote. Remember the stats? 344 blacks and 294 whites? After a drug raid, white voters outnumber black in that precinct.

Felons don’t get welfare benefits either. If Sumner figures Rosewood has been pulling it down, the drug raid cuts Rosewood loose to sink.

Once upon a time the local Eugenics Board would raid Rosewood and sterilize the people deemed unfit to reproduce and raise young. Sometimes the Eugenics Board offered cash bonuses and sometimes not. Sometimes the Eugenics Board sterilized people involuntarily, out of public health concerns. Public financial health, that is. Who were the unfit specimens? The ones who couldn’t feed their young. The ones who took welfare money. The poor. The poor were the poor specimens.

Now a drug raid does the work of the bygone Eugenics Board. People in prison don’t reproduce. After prison they don’t reproduce. On probation, they can be sent back to prison for sneezing too loud. They don’t get work. Would you hire one? They don’t get health care. They don’t get housing. They don’t get food stamps. They die young. When a drug raid leaves Rosewood a ghost town, no one counts the bodies, puts up a historical marker, or calls it a massacre. We’re eliminating crime, we say. We’re eliminating drugs, we say. No, we’re eliminating Rosewood and covering our tracks, says The Rosewood Hypothesis.

There’s only one offense in this country, if the Rosewood Hypothesis is right. Every other offense is that same offense in a new form. The offense? Costing the community money. Costing more than you contribute. The Rosewood Offense, call it. Don’t pull us down, says The Rosewood Offense. Earn high or die.

Doesn’t The Rosewood Hypothesis explain a lot?

Why forty million American’s don’t have health care, for instance? They are guilty of The Rosewood Offense. They don’t earn enough.

Why Claus von Bulow and O J Simpson get away with murder? Though guilty of murder, they are not guilty of The Rosewood Offense.

Stan gives me that look again, both hard and sad. That’s also why Family Court sends so many men to prison without charging them with any crime. Why Family Court leaves so many children fatherless. They are guilty of The Rosewood Offense. They don’t earn enough.

Family Court is the Eugenics Board of old with a new look and a big new budget, says The Rosewood Hypothesis. Family Court is that Eugenics Board expanded to every county in the country, and to the parents of 17 million American children.

The Rosewood Massacre took at most 300 people, parents and children, though no one kept the count. Somewhere between 300 and 17 million we lost count again. Somewhere between 1923 and now we lost count again. We long since left behind the word massacre. The word could not keep up with us.

###

In telling Susan that she was right, I found myself uneasy. “As a mother myself, I don’t think there’s anything I wouldn’t plead guilty to if a prosecutor told me that accepting a plea was the only way to get home to my children,” I said.

Michelle Alexander, author of  The New Jim Crow: Mass Incarceration in the Age of Colorblindness

Former Supreme Court Justice Sandra Day O’Connor sponsors a video game series to teach children about courts and the justice system. I don’t doubt her good intentions, but Sandra Day O’Connor is leading lambs to slaughter. Not to worry, though. Most of those children know more about courts than Sandra Day O’Connor ever will. Most of those children came through Family Court. 17 million of them. Don’t tell them about due process and the right to a trial before a jury of your peers and the Magna Carta and habeus corpus and the right to confront your accuser and innocence until proven guilty. Tell them about Hercules and the Minotaur and the seven-headed hydra instead. Same difference. They are as likely to ride on Pegasus the Winged Horse as get a due process or justice and they know it, whether Sandra Day O’Connor knows it or not.

Why? Trials are expensive. States can’t afford trials. Only four in a hundred cases go to trial now, and that number is falling fast, as fast as lawmakers and prosecutors can push it down.

Only television and movies can afford trials now. If you want a trial, just pick up the remote. Click from Harry Potter and the Sorcerer’s Stone to The Good Wife, two fantasies equally remote from our lives. Sandra Day O’Connor would do just as well to people her video games with munchkins and witches.

“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute.

In Turner v Rogers the Supreme Court admitted the Family Court system was broken. For just that reason they declined to rule beyond Turner himself. They ruled on one case, not the system. The problem, they said, was too big to fix. The Supreme Court feels no urgency because the Supreme Court is Mount Olympus. Mortals are fly specks from there. Did Sandra Day O’Connor commute to work on a twinkling cloud?

Here’s an example, and don’t say Not Me or Not My Problem and tune out. You know how that story ends:

They came for the fathers and I said nothing because I wasn’t a father. They came for black mothers and I said nothing because I wasn’t black. When they came for my children there was no one left to speak out.

Who said that? Any one of forgotten thousands. That’s just the point. They gave up their right to speak out and go on record. Don’t go where they went.

So, Erma Faye Stewart:

Take the case of Erma Faye Stewart, a single African-American mother of two who was arrested at age 30 in a drug sweep in Hearne, Tex., in 2000. In jail, with no one to care for her two young children, she began to panic. Though she maintained her innocence, her court-appointed lawyer told her to plead guilty, since the prosecutor offered probation. Ms. Stewart spent a month in jail, and then relented to a plea. She was sentenced to 10 years’ probation and ordered to pay a $1,000 fine. Then her real punishment began: upon her release, Ms. Stewart was saddled with a felony record; she was destitute, barred from food stamps and evicted from public housing. Once they were homeless, Ms. Stewart’s children were taken away and placed in foster care. In the end, she lost everything even though she took the deal.

Where authorities can take your children, they can take anything:

… with no one to care for her children, she began to panic.

So she took the deal, confessed to a crime she didn’t do, and lost her children anyhow:

… Ms. Stewart’s children were taken away and place in foster care.

If the criminal justice system is poor at crime and justice, what does it do well? Yes, poor at fighting crime, unless you count as progress a five-fold increase in crimes, criminals, penalties, prisoners, and probationers. Unless you nod in silence while The Land of the Free slides into The Nation on Probation.

If the criminal justice system is poor at crime and justice, what does it do well?

1. Voter Registration

Keep voters from voting? Purge the voter rolls of blacks, single mothers, the poor? Repeal the Voting Rights Act?

Ms. Stewart was saddled with a felony record.

Right. Felons can’t vote.

2. Welfare

Cut welfare costs?

Ms. Stewart was … barred from food stamps and evicted from public housing.

Let’s look closer and say that another way:

Ms. Stewart’s young children were barred from food stamps and evicted from public housing.

3. Eugenics

Sterilize undesirables? Cleanse the population of poor specimens?

People in prison don’t reproduce. People leaving prison are unlikely to reproduce. If they are unlikely to eat, they are unlikely to reproduce. They die in prison or die young. Is the court system the old Eugenics Board with a new name and a new look?

Who are these poor specimens? The poor, meaning anyone who for any reason at any time takes more than she gives, or costs more than she makes. A sick child. A sick mother. A well child. A single mother. You when you’re sick, or home with a sick child. At such times you are costing more than you make, and taking more than you give. Yes, even you, at the right time. At the wrong time.

So, the court system is poor at delivering justice and reducing crime, but good at purging the voting population, the welfare rolls, and the gene pool.

The report card on the court system:

Justice

[  ]  good

[  ]  satisfactory

[x]  unsatisfactory

Crime

[  ]  good

[  ]  satisfactory

[x]  unsatisfactory

Eugenics: Purging the Gene Pool

[x]  good

[  ]  satisfactory

[  ]  unsatisfactory

Voter Registration: Purging the Voter Population

[x]  good

[  ]  satisfactory

[  ]  unsatisfactory

Welfare: Purging the Welfare Population

[x]  good

[  ]  satisfactory

[  ]  unsatisfactory

Is this OK with you? Is tomorrow business as usual for you? Are you sure courts of this kind will never come for you or yours, or anyone you care about?

Would you like to hear what you can do?

Don’t answer so fast. You would not and will not like what you hear.

Click away now, if you think courts of this kind will never come for you or your children.

They came for me and mine.

They came for my daughter, my Alice.

They came for my father’s son and my mother’s daughter. Long ago, though I did not know until now.

They have come for 17 million children who may never know what happened to them.

Are you sure they won’t come for yours?

OK, two things you can do. Three, if you count writing a letter to your newspaper or Congressperson. That counts. That’s a start. Use that freedom you sing about. Put that freedom of yours to the test. Make public servants serve the public. Risk making someone angry, someone in authority, someone powerful. Remind them who serves whom. Write about that judge before she holds your children and their future under her hammer. If that’s all you do, I salute you. No one wants to hear anything hard. Like your teenage son when you ask him to vacuum the stairs, neither you nor the judge want want to hear more work. Like your teenage son when you ask him to write to the school board, neither you nor the judge want your courage called upon.

Yes, this calls for courage, and no, not everyone can answer the call.

The first thing you can do: Stop.

Do you in any way work for the court system? Family Court in particular? Stop.

Lawyer, judge, guard, janitor? Stop.

Yes, it’s hard. The hardest thing you will ever do. Harder than getting into such work in the beginning, and building your life around it. But you could.

Do you in any way work for the prison system? Even as a nurse? Even as a supplier? Stop.

Yes, it’s hard. The hardest thing you will ever do. Unless the courts come for your children. Then that’s the hardest thing you ever do.

Is your profession on life support and sustained only by the court system? Do you offer talk therapy? For better or worse, talk therapy is dead or dying except through court patronage. This is not what called to you in the beginning, and called you into a caring profession, a healing profession. It’s hard, I know, but Stop. Save your soul. Don’t come to the end of your life’s work and remember telling judges whatever they wanted to hear, whatever DSM code would flush a clogged case the fastest, whatever DSM billing code would pay you the longest. Stop.

If you have young children, you may be excused. I understand. Just remember: If you have young children, you are most at risk. Where authorities can take your children, they can take anything. Remember also: If you have young children, your voice would count twelve-fold for us.

The last thing you can do: Go to trial.

If ever you are suspected of anything, insist on procedure, insist on due process, go the distance. Don’t deal. Don’t bargain. Don’t plea out. Tell them:

Try me.

Go to trial. If one more person in a hundred insisted on a trial, this broken system would crash so loud even The Supreme Court and Mount Olympus would hear.

A veteran once shook his head at me and made me feel cowardly. A policeman had asked us a question he can’t ask, and I, afraid to annoy him, had smiled and answered anyway. You aren’t a veteran, so maybe you don’t know, the veteran told me. Maybe you don’t know how many people gave up years of their lives to win these rights, and what they went through. The least you could do, he said, is use them, and not toss them away like nothing here in the comfort and safety of your home town.

So tell them:

Try me.

Think I won’t? Think I can’t? Try me.

Just you try me.

###

It’s a mistake of course. But watch what difference that makes. Not much.

I try to explain this to my sister. This means you, I say, but she can’t fathom it. She’s less than a year from retirement after twenty-five years on the job. All five daughters are all married and doing well at work and at home. She has six grandchildren and more to come.

Watch, I tell her:

Monday morning you are accused of embezzling money at work.

Your manager has come in ahead of you. You have an urgent message to see him immediately.

Three women are watching you and whispering as you walk to his door.

He is standing behind his desk. He has an odd look on his face, a sick look. He says nothing.

A detective in a suit and a policewoman in uniform step forward and recite some words and cuff you.

Your manager says nothing. He is looking down, avoiding your eyes.

The detective and policewoman lead you down the hall to the front door, past everyone else who is arriving now.

It’s a mistake of course. But what’s the difference?

You begin to serve your sentence as soon as you come under suspicion.

Will anything ever take back that walk down the hall in cuffs, past everyone you have worked with for years?

Mistake or not, you begin to serve your sentence as soon as you come under suspicion.

On TV last night an interviewer had two people arguing, and one shouted “Then why are you under investigation in two states?”

The interviewer shook his head and cut them off. That was the end of that, he thought.

You weren’t listening, but from now on you will notice: No one distinguishes suspicion from conviction any more. No one will remember whether you were questioned or charged. No one will remember whether you were convicted or cleared of all charges. Why should they? What’s the difference? You begin serving your sentence as soon as you come under suspicion.

The prosecutor and the courts are desperately overworked.The worst recession in living memory has swamped them with new cases and, at the same time, slashed their budgets. The ABA has called it a crisis for the country. Why?

Watch.

The prosecutor meets with you and offers you a deal, a plea bargain. He’s in a hurry. Only two in a hundred of his cases go to trial now, but already that stretches his office to its limit. If another one person in a hundred insisted on trial, the prosecutor would quit or go on medical leave for a nervous breakdown. It wasn’t always this way. Forty years ago six times as many cases went to trial. What happened? It’s not just the recession. We charge far more people with far more things now. In the resulting flood we can’t begin to sort out guilty from innocent.

The War on Drugs, the War on Crime… We have declared war on ourselves. Maybe it’s television. We tune into a world of horror on television. We devour serial killers and tortilla chips on our couches. In between are commercials from candidates who promise to save us from all such horrors. We call them lawmakers and they live up to the name. They make more laws. They make more crimes. They make more criminals. They make more work for prosecutors and courts.

Congress shall make no law… Our founders wrote laws telling lawmakers what they could and could not do. No one makes laws like that anymore. Now you can no more tell a lawmaker not to make laws than tell a bagel maker not to make bagels.

Back to you, arrested for embezzlement. Sure, it’s a mistake. But what’s the difference?

Your overworked prosecutor offers you a deal. A plea bargain. If you plead guilty to something less you can go home now. Otherwise he charges you with something worse, something extra, and you wait six months for a trial date. What do you choose?

You begin to serve your sentence as soon as you come under suspicion.

Your overworked prosecutor is calculating how much work you could make for him. How much work it would be to convict you. He is charging you with two things: 1. embezzling 2. making his life difficult.

Worse for you if you are innocent.

It’s worse for you if you’re innocent. It’s worse for you if he’s wrong, if his suspicions are false, if the charges are a mistake.

How?

Watch:

Your overworked prosecutor doesn’t know who embezzled this money, if anyone. Why else would he suspect you when you’re innocent (as you know but he doesn’t)? Maybe the embezzler covered his tracks by charging you. Your overworked prosecutor gets a headache just thinking about that. If you’re guilty, your prosecutor is soon done with you and this case. If you’re innocent he’s lost, he’s nowhere, he has to backtrack just to get to square one, and this one case could eat up more of his time than another three dozen cases put together.

So here’s the deal he offers you:

1. You plead guilty to embezzlement minor and serve 18 months minimum security for a first offense. You’ll be home Christmas after next.

2. You insist on trial and he charges you with embezzlement major three times over. If convicted you serve five-to-seven years medium security upstate, far from your home and family.

Why five to seven years instead of 18 months? You’re already guilty of making extra work for your overworked prosecutor.

He has one other embezzlement case, and open-and-shut case, the kind an overworked prosecutor loves, the kind that makes him look good. He finished in half a day. He made a different offer because the guy was so clearly guilty.

1. Plead guilty and get 18 months minimum security.

2. Go to trial and get 36 months if you lose.

Wait, you say? This guy is clearly guilty and gets 36 months at worst, and I who am innocent get five-to-seven? How can that be?

You are harder to convict. You are guilty of being hard to convict. You are guilty of sentencing your overworked prosecutor to weeks of extra work, and missing Christmas with his family.

So yes…

Worse for you if you are innocent.

But no way would you plead guilty if you’re innocent, you say? Not in a thousand years would you plead guilty to something you didn’t do?

Well, let’s see …

The court is just as overworked as your overworked prosecutor, and the court makes just as many mistakes. If the prosecutor is wrong to think you guilty, why wouldn’t the court make the same mistake?

If the overworked court makes the same mistake your overworked prosecutor made, you will die in prison, my sister almost sixty years old.

Want to bet your life on that?

Think courts don’t make mistakes?

Want to bet your life?

Think truth will prevail?

Want to bet your life?

Lose the bet and you won’t see your grandchildren again. Most of them won’t know you. The family won’t tell them. The family will believe in your innocence, but they won’t talk about it ever again, with anyone.

Yes, courts make mistakes. Even courts at their best.

Almost 300 death row cases have been reversed by advances in DNA science. Those are capital cases. If ever the law could avoid mistakes, it would avoid them in capital cases.

You, my sister, won’t see courts at their best. What’s the error rate in your court?

Confess and you go home in 18 months. Starting to sound better, isn’t it?

Think no one would ever confess to something they didn’t do?

In those 300 death row cases, one in four confessed to a murder they did not do. They made a plea bargain. They took the deal. Think maybe they knew something about overworked prosecutors and overworked courts?

How do you suppose your overworked prosecutor feels about revisiting death row convictions with DNA evidence? Right, he hates it like death. Otherwise maybe that 300 would be 3000 or 30,000. Who knows? With any luck, thinks your overworked prosecutor, no one will ever know. I will squeak through to retirement and a pension, he thinks, and those people will go to their deaths with no one listening.

Confess or not? Take as long as you like to decide. Your overworked prosecutor doesn’t care now. Your earliest possible trial date is six months away. Meanwhile you’re out on bail and out of work and restricted to home and you can’t sleep.

You begin to serve your sentence as soon as you come under suspicion.

You would be lucky even so, my sister, to be in criminal court. I lost my daughter, and I lost everything I owned, and I went to jail, and no one offered me any deal. Why should they? It was Family Court. I was never charged with anything. No one had to prove anything. Give me criminal court any day. Charge me with something and you have to prove it. Charge me with something and I can try to disprove it. If you’re charged with embezzlement you have choices and chances, however bad they may be. In two years of Family Court my daughter and I had none.

No charges, no chance.

Don’t believe me? I’m just some sorehead loser?

Then take it from the deathbed of a Harvard Law professor:

The book was written in a hurry. It had to be, because William Stuntz was dying, and the story he wanted to tell was long and complicated. It would be the Harvard Law School professor’s final major work, a sweeping indictment of the system he had been studying for 25 years.

Stuntz was 49 when he found out he had stage four colon cancer. For the remaining three years of his life, he worked on the book whenever he could … Stuntz passed up pain medication so he could think more clearly. In the final days, after he entered hospice care, he had his assistant mail him a draft of his manuscript so he could go over any last minute changes.

Stuntz, an evangelical Christian and an avowed conservative, wanted people to grasp

The Collapse of the American Criminal Justice System

As Stuntz saw it, the Warren Court reforms … changed the way defense lawyers and prosecutors did their jobs. Stuntz described it as a chain reaction, set off by the fact that the court had focused all its efforts on procedure, and had failed to impose any substantive limits on what legislators could criminalize and the punishments they could impose. The result was that defense attorneys–especially overworked public defenders–realized they could score easy victories for their clients by getting charges dismissed on procedural grounds; legislators, in turn, reacted by criminalizing a much broader range of activities and imposing harsh minimum sentencing requirements, which prosecutors could use as leverage to win guilty pleas.

Give me enough new charges and enough new penalties, thinks our overworked prosecutor, and no one will ever again risk trial. Swamp the court with enough cases and no one will ever again trust the court to find the truth. They’ll take my deal every time, and I’ll coast to my pension without trying a case or winning a conviction …

Stunzt again:

95 percent of people sent to prison never had their guilt or innocence deliberated in court.

And you out there, reading this. Listen up.

You could be next.

You and your children could be next.

No? You want to tell me why not? Why in the world not?

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