THE ODD LEGALESE OF WINNING AND LOSING – BY ELLIN CURLEY

My ex-husband, Larry Kaiser, was a young litigation attorney in New York City in 1979. His law firm assigned Pro Bono Appeals cases to junior associates as part of a public service program.

Larry was given the appeal of a defendant, Eric Michaels, who had been convicted, in a second trial, of rape, sodomy, robbery and burglary. His first trial had been declared a mistrial. It was clear that the defendant was rightfully convicted. He had definitely done it. So Larry had to look for a procedural irregularity that he could exploit to try to get the conviction overturned on appeal. That was his job, unsavory as it was.

Larry discovered that the trial judge, Judge Arnold Fraiman, had declared a mistrial for a questionable reason – he and several jurors were scheduled to leave on vacations. I believe the judge even had his wife and his packed suitcases in the courtroom. If this was seen as an abuse of discretion by the appellate court, it would invalidate the guilty verdict of the second trial. The entire second trial would be considered invalid as a violation of double jeopardy. You can only be tried once for any crime or crimes.

Larry was drowning in work so I helped him write this Pro Bono brief. It was very much a joint effort. I was practicing law at a small New York City law firm at the time. We won the appeals case and Eric Michaels was released from prison.

One morning shortly after the appellate verdict was rendered, I was getting out of bed and I heard Larry yelling from the living room. He had just opened the New York Times and found his case on the front page! The misconduct of Judge Fraiman was considered a big enough deal to warrant a prominent story. This was particularly true because his misconduct resulted in the release of a convicted rapist. The District Attorney of New York had described Eric Michaels’ crimes as some of the more vicious crimes prosecuted by the state in years.

Judge Fraiman was now in the spotlight. Larry was interviewed by several newspapers. Over the next few days, reporters dug into the Judge’s prior cases. And they discovered that the exact same thing had happened before. Judge Fraiman had previously declared a mistrial for the same reason – he was due to leave on vacation. His prior mistrial declaration had also been considered inappropriate by an appellate court. And again, an appellate court had released another guilty defendant back onto the streets because of Judge Fraiman’s actions in court.

This was now a really big judicial scandal. The story stayed in the news for a while and destroyed Judge Fraiman’s reputation. I think he may have been censured by the judiciary or by the Bar Association.

Larry always had mixed feelings about this case. He had won a major legal success and got his name in the New York Times.

On the other hand, he also helped get a rapist released from jail. This is often the plight of lawyers in the criminal field. It was also a prime reason I didn’t go into criminal law. Winning isn’t everything.

THE UNIMPEACHMENT NON-EVENT – Marilyn Armstrong

I keep reading about how Trump is going to be impeached. Or at least, SHOULD be impeached. Needs to be impeached. On this, I tend to side with Nancy Pelosi: I don’t want to see him impeached. I want to see him in prison. For life.

Two presidents have been impeached: Andrew Johnson and William J. Clinton. Neither was removed from office. It was more like a bad mark on their permanent record than getting expelled. They were harder on Harry Potter than either impeached President.

This doesn’t mean I had or have anything against Bill Clinton. I liked him a lot except the thing about men and their zippers and how come they can’t keep them zipped. He could at least have kept it zipped until he left office. That’s not too much to ask, is it?

Would it really kill men to not screw someone inappropriate for a few years? Men can be such pigs.

I do not think Trump will be impeached. “Why not?” you ask.

The Senate doesn’t want to do it and even the House isn’t sure about it. Also, why does everyone assume impeachment would unseat Trump? It didn’t unseat the two presidents who were impeached.

The only things that can unseat a president are high crimes and misdemeanors for which there exists no clear, modern definition. Although if any president has committed them, I’m sure Trump is The Man.

Moreover, a GOP-dominated — or even a Senate with a substantial percentage of them — does not have to act on impeachment. Regardless of the outcome of any investigation, now or in the future, there is no mandate to do anything about it. Yet, despite the ineffectiveness of previous impeachment procedures, everyone is convinced that this time, it will be different.

It won’t be different. It will be exactly the same.

What would make this time different than before? What new law is on the books? What new interpretation of “crimes the president can/can’t commit” exists? As far as I know, we have made zero legislative progress in Congress and we seem unlikely to see any before 2020.

And also, please note that no matter WHAT the House of Representatives does or tries to do if the Senate (McConnell) refuses to bring the issue to the floor, it’s not even a slap on the wrist. All it will do is raise the ratings on late-night television and miscellaneous news outlets.

ARE THE ANTICHRISTS RULING OUR WORLD? – Marilyn Armstrong

In the course of visiting Tom and Ellin, Tom and I decided one night that Donald Trump is the antichrist. Now since neither of us is religious or even tangentially Christian, this might be considered a rather odd conclusion for two effective atheists to reach.

But the thing is, if there is an antichrist, Trump has to be it. I spent some time looking up who and what the antichrist is and it has to be him. Because this is his time. He is alive and busy destroying the world, just like he is supposed to.

In Christian eschatology, the antichrist is someone recognized as fulfilling the Biblical prophecies about one who will oppose Christ and substitute himself in Christ’s place. The term is found five times in the New Testament, solely in the First and Second Epistle of John. Or anyway, that’s what Wikipedia has to say, but biblical study groups have a lot more to say and none of it is good.

This is the man who will bring the end-times. He is definitely working on it. Full time, too. I don’t even think he takes out time to sleep. He’s too busy wrecking the world.

Revelation in the New Testament and the books Daniel, Ezekiel, and Isaiah in the Torah — provide ample fodder for end-time speculation.

From the “beasts” in Daniel and Revelation to the epic battle in Ezekiel, the use of symbolism and metaphor has made practicing prophecy a struggle yet also, a bizarre form of entertainment for some of the more demented among us.

Why not? Every time I watch the news, I feel slightly more demented than I did before. Sometimes I also feel nauseated, but mostly, insane.

The following is a quote, but I honestly couldn’t figure out where it came from. I think it’s a blog, but I couldn’t find a title for it. This is its link and if you are into this stuff, you probably will enjoy reading more of it. It’s not long, but I don’t know who wrote it. If you recognize it as yours, please let me know!

“Trump does fit several of the criteria attached to popular perceptions of the Antichrist. Many earnest sources of apocalyptic speculation, including the best-selling Left Behind series by the late Tim LaHaye and Jerry B. Jenkins, imagine the Antichrist as a truly modern figure. Although the wildly popular 17-book series, which was published between 1995 and 2007 and has sold over 65 million copies, is fictional, the vision embraced by LaHaye and Jenkins portrays the coming apocalypse as an event where non-believers are forced to reckon with the damage wrought by the Antichrist. Here, the Antichrist is a worldly, charismatic man, often of Eastern European and Jewish heritage, who embraces modern technology and institutions for his own sinister ends. This interpretation, which is common among a large subset of American Evangelicals, believes the Antichrist’s reign — a period known as the “tribulation” — will follow the rapture of true followers of Christ.

It’s easy to extrapolate this to Trump. He’s vainglorious, charismatic (at least in the eyes of some Americans), and obsessed with wealth.


Kushner Companies, a real estate company jointly owned by Jared Kushner, Trump’s son-in-law, and Trump, is headquartered at 666 5th Avenue.

Trump, while not Eastern European himself, has a proclivity for Eastern European women and promises better relations with Russia, a country that figures prominently in 20th and 21st-century apocalyptic tales. And while Trump says that his favorite book is the Bible, he did once note that he’s “not sure” as to whether he’s asked God for forgiveness of his sins.”

If he starts asking for forgiveness now, he might never finish the request. There’s so much for which he needs to apologize and ask forgiveness. Since he keeps doing more and more terrible things, he’ll never run out of sins.

There’s a lot of antichrist stuff on the Internet and all you have to do it type “antichrist” into Google and the world of end-times will open up to you.

It doesn’t matter what you believe. Something, nothing, something else, even something no one has yet heard of. It’s pretty easy to fit our prez into the antichrist format. You could actually as easily add Putin or Boris Johnson. They could, in fact, all be in it together. Why not? How bad does it have to get before we believe the real Satan from Hell is running our world? I swear I’ve seen his hoof prints wherever I look. How about you?

I have always been a bit dubious about God … but the King of Evil? He’s easy peasy. About every 50 years, some evil bastard rises up and decides to destroy as much of the world as he can before he is eventually quashed by the rest of the world. But this time, he and they have weapons that literally can end the world and if they don’t do it with weaponry, they can do it by allowing climate change to take the planet and make it unliveable.

One way or the other, it’s not looking good for humans. Oh please, give me a ray of hope. I need one!

VIOLENCE OF THE SENSIBLE KIND – Marilyn Armstrong

The thing about “senseless violence” is that it implies there’s some other kind. The sensible kind.

Everybody talks about senseless violence … but what about the other kind of violence? How come no one talks about sensible violence?

sensible violence

Sensible Violence: Good reasons to kill


“He needed killing” is still accepted in some American courtrooms as a defense against a charge of murder. If he needed killing and you kill him, you have committed an act of sensible violence.

“No one was supposed to get hurt.” You found yourself short of money, so you held up the bank. Using automatic weapons. You had a perfect plan which went unaccountably wrong. “But your Honor, no one was supposed to get hurt!”

“I had no choice.” You could have gotten a divorce, but you were put off by all the paperwork, lawyers, and courts. Not to mention having to share your stuff. So, you killed your husband and shoved his body in the wood chipper and use his remains as fertilizer. Sensible. tidy, and green.  “Your Honor, he really pissed me off. And it wasn’t easy getting him into the machine. He was being really mean to me, so what choice did I have?”

“Anyone would have done the same thing.” Really, no kidding. Anyone. It was the only sensible response. “Your Honor, she burned the roast. I had to kill her. Anyone would have done the same thing.”

“I lost my temper.” You said I wouldn’t like you when you were angry. You were right.

So you see? Not all violence is senseless. If you didn’t mean it, you had no choice, anyone would have done the same thing, or your plan went awry … it’s sensible violence. The good kind.

WHAT HAPPENS IF NO ONE CARES ABOUT LAW OR ORDER? – Marilyn Armstrong

We make laws. We enforce laws or try to enforce them, anyway.

We’ve done such a great job trying to enforce stupid, meaningless laws while doing such a poor job enforcing more important laws, we’ve got millions of people in prison for doing nothing much — while corporate killers laugh among themselves.

Laws don’t apply to them.

In fact, we do not and could not actually enforce every law we make. The only way a nation can exist is when the population — which is to say most of its citizens — have a fundamental regard for law and carry with them the belief that order is a good thing.

Without a citizenry who respect the law, you have chaos, disorder, disunion and ultimately, the worst kind of tyranny. No country can maintain a police force to make everyone do the right thing. Most people do the right thing because they understand it’s right. That’s all the reason they need.

I don’t need enforcement. I get it. I understand. Probably, so do you. That’s the basis of a free society.

We should be crying out for mature, educated, reasonable men and women who can work together even when their parties utterly disagree about pretty much everything. We need people who care about the people they represent. When governments don’t care for people and stop believing the good of the nation supersedes their personal squabbles, it’s the end of democracy and freedom.

After that, the only way to maintain order is for everyone to be afraid, which is the definition of a police state.

If we can’t find bridges to cross, we have no government. We can make all the laws we want, but unless people believe in law and for the most part, live within it, life as we know it is over. The reason this — or any country — works is that most citizens do “the right thing.” They don’t need a gun pointed at them. There aren’t enough cops, guns, or prisons to make everyone obey if no one cares.

We either learn to behave like civilized people or it’s back to the dark ages — a world where only “might makes right.” But this time, we’ll have mobile phones!

I’m sure that will change everything.

YOU CAN’T MAKE THIS STUFF UP – Marilyn Armstrong

When in 2012, Rob Reid wrote Year Zero, a science fiction novel about the music business and its impact on the universe, many people sat up and took notice. Who better to write about the Byzantine complexities of the music business than Rob Reid?

The author of Year Zero, Rob Reid doesn’t have the kind of bio one would expect of a science fiction author. In fact, he was and is an entrepreneur and multi-millionaire, the kind of self-made multi-millionaire who makes many of us realize what failures we truly are.

Born in New York City, raised in Darien, Connecticut, got his undergraduate degree at Stanford University in Arabic and International Relations. Earned an MBA from Harvard. In 1994 he moved to Silicon Valley where he managed Silicon Graphic’s relations with Netscape. In 1999 he became a founding member of IGN Entertainment which went public in 2000. IGN was acquired by News Corp in 2005 for $650 million.

File:RobReid.jpgReid was the sole founder of Listen.com for which he served as CEO and Executive Chairman. Listen.com launched Rhapsody, a music streaming service, the first legal service of its kind. Rhapsody was bought by RealNetworks in 2003 and Reid continued to serve as one of its vice presidents until MTV purchased it for $230 million.

Year Zero is one of the funniest, scariest, weirdest science fiction novels I’ve ever read — up there with Jasper Fforde and the great Douglas Adams and certainly the only book of its kind that includes footnotes. Which are hilarious too.

The scary part of the novel is not the story but how it mirrors the realities of the music business.

The music business is very scary.

It turns out that Earth is the only planet in the universe that can create music worth listening to. It is not merely the best music in the universe. For all practical purpose, it is the only music.

Other worlds have made something that had been called music, until the discovery of Earth’s music. From the moment our music was heard by the highly advanced sentient cosmos, there was no turning back. The year of the discovery of Earth’s music was Year Zero, the dawn of a new era for every planet in every galaxy everywhere. It also signaled the probable end of life on Earth unless some legal loophole could be found in our insanely punitive copyright laws.

If not, the combined amount of money owed to Earth’s music corporations would be so monumental it would bankrupt the universe. Unable to pay the bill yet obligated by inter-galactic law to pay it, the easier choice would be to destroy Earth, eliminating the problem and de facto, canceling the debt.

Whether or not you will find the book as fascinating and funny as I did is probably a matter of what you find funny, but it totally killed me. No one knows the intricacies of the law and the music biz better than Rob Reid.

Did I mention the footnotes? They are even funnier than the text.

Humans are oddly heroic, each in his or her own way. People rise to the occasion. The aliens are deliciously bizarre and some of them also rise … or fall … to the occasion. The combination of real law and the idiocy of the situation is the stuff that makes you read and laugh, then read and laugh some more.

Although Year Zero is every bit as weird as any of Douglas Adams’ books to which it has been compared, the strangeness of the story is based on real facts. The “facts” are so odd, you have to sit there and let your jaw flap a bit.

Taking into consideration the world in which we are living, this book makes more sense than it used to … if anything makes sense at all.

Douglas Adams created the Improbability Drive from his imagination. Rob Reid only has to quote laws that exist which are as crazy as whatever you might imagine. Right now, nothing seems as scary as life. But I digress.

I loved this book. I have read it half a dozen times and I think maybe I’ll read it again. Like, today maybe. I bought the audiobook too and listened to it a few times. I’ll probably read that more also. Some books are worth memorizing.

There is no sequel. It’s the only novel Rob Reid wrote (well, he recently wrote something else, but it was awful and I try not to mention it). He has written other non-fiction books including Architects of the Web about Silicon Valley, and Year One about life as a student at Harvard Business School.

This is a great, fun, science fiction book. Give it a read.

If nothing else, you’ll learn everything you never wanted to know about the music business. Right now, reading about music seems a great idea to me. A million percent better than the news.

TO IMPEACH OR NOT? IS THAT EVEN A QUESTION? – By TOM CURLEY

RDP-Sunday– ROAD

Ever since the Mueller report came out, sort of, the topic on most people’s mind (or at least all the pundits on cable news) is whether or not to start impeachment hearings against the Twittler-in-chief.

In the last few weeks, with the addition of Attorney General William (I’m Trump’s Roy Cohn) Barr it has become clear that this administration has thrown any and all respect for the constitution out the window.

Then they went outside, peed on it, shit on it, let it dry out and peed and shit on it again. They are refusing all subpoenas issued by Congress. They are not allowing anyone to testify in front of any Congressional Committee. Even though many of those people don’t even work for the government anymore. The AG has lied to Congress and then refused to show up for a House Committee hearing because he didn’t want to be questioned by an actual lawyer!

The administration has said to Congress “FUCK YOU!” We don’t care if we’re breaking the law. What are you going to do about it?

Here’s the thing. No administration has ever done this before. Yet another “political norm” bites the dust.

What has become abundantly clear in the last two years is that our government has lasted for over 200 years because the people in it had some sense of civility. Some sense of decency. Some sense of shame. We never realized how much of government relied on everybody “doing the right thing.” We all just did it. It wasn’t written “black letter law.”

Then along came Cheesy McCheese Head.

A man with no civility. No sense of decency. No sense of shame. No regard for “Political Norms.” And as far as anyone can tell, no conscience.

If it isn’t written down as being illegal, fuck you, he’ll do it. And his and the whole Republican Party’s attitude is “even if it is written down, even if it is against the law, fuck you, we don’t care. What are you going to do about it?”

Here’s the most depressing thing. It turns out that Congress may not have much they can do about it. They can issue a subpoena, which in our previous reality was a really big deal. But this administration has just said “Fuck you, we don’t care. What are you going to do about it?”

Turns out they can hold a person who ignores a subpoena with a Contempt of Congress citation. Oh, that’s bad, right? What happens then? Congress sends the contempt citation to the Department of Justice, who then brings the cited individual up on criminal charges.

What if the person under the contempt citation is the HEAD OF THE JUSTICE DEPARTMENT? What does he do?

Nothing. He ignores it. Fuck you. What are you going to do about it?

Congress requests the President’s tax returns be made available under an ironclad law written in the 1920s after the Tea Pot Dome scandals. They were intended to make sure no President or administration can hide corruption.

It was written to leave no wiggle room for a President or member of his cabinet to weasel out of providing those returns. So what does the Secretary of the Treasury, a person who has no right to interfere, do?

You guessed it. He says “Fuck you, I’m not going to allow that to happen. What are you going to do about it?

Theoretically, Congress can take all these issues to court, where they are on solid ground and will probably win. They always have in the past. What the current Supreme Court would do is questionable.

All the lower courts are going to say is, “Are you fucking kidding me? This is illegal as hell. Honor the subpoenas and turn over his friggin’ tax returns.”

Okay, they probably wouldn’t say friggin’. I’m just making a point. I like to speak in the vernacular. Okay, that’s not true either. I just wanted to use vernacular in that sentence.

The problem is, all of that would take a lot of time and we need speed. There is a good chance even if Congress wins, the administration will still say, “Fuck you. We’re not going to do it. What are you going to do about it?”

What can Congress do at this point? They have a thing called “Inherent Contempt” which allows them to actually jail someone they hold in contempt and fine them.

But their “jail” is merely a room in Congress’s basement. The Sargent-at-Arms of the House of Representatives doesn’t have a large force of well-armed troops.

That option is iffy.

You want me to do what? Are you kidding me? All I’ve got is this old sword! WTF!

So the only thing left that Congress can do is Impeach the mother-fucker. Not my quote, but a quote from a member of the House, the Speaker of the House, and many top Democrats are resisting this.

Their reason? They know the Senate will never convict, so why bother?

Because they have to do something. They simply cannot allow all of this to happen and do absolutely nothing, even if the end result isn’t an actual conviction.

Their reasoning is badly flawed but I understand why they think this way. When the Republicans impeached Clinton the majority of the country didn’t want them to do it. They did it anyway. On their own. On a party-line vote.

The result? The House Republicans impeached. The Senate didn’t convict. They knew the Senate wouldn’t convict when they impeached him. They did it anyway.

When it was all over? Clinton’s approval ratings were in the ’70s.

So what? The Republicans won the next election. Granted the won because the Supreme Court appointed Bush as President, but nonetheless, they ultimately won.

Why were Clinton’s approval ratings so high? Because the MAJORITY of Americans thought getting impeached because you lied about getting a BJ from a consenting adult was bad, but NOT AN IMPEACHABLE OFFENSE!

The group MoveOn.org was created because most Americans wanted to “Move On” from this silly impeachment bullshit. Back then, I was working for CBS News Up To The Minute news.

Every night, we would air a three-minute piece about how the latest polls showed most Americans didn’t give a crap about Clinton’s affairs. No one wanted more stories about Monica Lewinsky.

The very next piece was inevitably about Monica Lewinsky.

After months of this, one night I asked the line producer if he actually watched the news block he just produced. He replied, “What do you mean?”

I replied, “You just aired the umpteenth poll showing how nobody cares about Monica Lewinsky and the Clinton scandal and your next piece is about Monica Lewinsky.”

His reply? “What’s your point?”

To this day, after 40 years of working in Network News, I still don’t exactly know what a news producer does. Now that I’m retired, I’m not sure I care.

The difference between then and now is simple. Back then, the majority of the country thought to impeach Clinton was silly. He got a blow job.

This president is under 14 CRIMINAL investigations — not counting the Mueller report — which documents at least 10 instances of provable obstruction of justice.

Now he is obstructing Congress daily — in plain sight! The overwhelming victory for the Democrats in 2018 was due to the majority of Americans wanting this President to be reined in.

To be impeached. Speedily. Then sent forth to a place of imprisonment, clapped in irons at least until his political string runs out forever and we know he can’t come back.

It looks bleak. The checks and balances of this country and our Constitution contained some serious hidden flaws. Mainly, the Founding Fathers assumedand we all know what assumed means — that the members of Congress would do their jobs.

Which is checking and balancing and keeping the country on an even keel.

The Republicans are not doing that. The current administration isn’t following the Constitution. Essentially, they are spitting on it with the result that our system is falling apart.

The reason we are not impeaching is that the House of Representatives know they can’t get a conviction in the Senate. This is totally stupid.

Only two and a half Presidents have been impeached. Nixon only counts as a half because he was never impeached. Congress was going to impeach him, but he quit before they could do it. In the other two cases, Clinton and Lincoln’s Vice President Andrew Johnson were impeached, but neither was convicted, although Johnson came close.

He won by only one vote. And that guy had to be brought into the Senate on a stretcher. He was near death. Nobody’s ever been convicted by the Senate. So that’s not an excuse to not impeach.

Here’s my argument. No, sorry, it’s not my argument. It’s from a far more reputable source than me. Who?

Otter.

Who’s Otter? I’m talking about Otter, the character from the movie Animal House played by Tim Matheson.

Specifically, the scene where Dean Wormer has closed down Delta House and the whole fraternity was getting thrown out of their frat house. Otter comes into their living room after just having the crap beaten out of him by the bad guy Frat house Omega Theta Pi.

And here Otter gives the speech that drives the rest of the movie. And this speech should drive all of us now.

“Now we could do it with conventional weapons, but that could take years and cost millions of lives. No, I think we have to go all out. I think that this situation absolutely requires a really futile and stupid gesture be done on somebody’s part!”

And there you have it. It appears to be a futile gesture and thus stupid. But this situation absolutely requires a stupid gesture to be done on somebody’s part. We’re the only ones who can do it.

It will most likely fail, but we have to try. Hell, it can be the Democrats campaign slogan. “We Tried to Impeach the Mother Fucker. What Do You Want From Us?”

The only problem is WTTITMFWDYWFU doesn’t fit on a hat.

We’re going to need a bigger hat.

FOWC with Fandango — Speed