Zen and Hardwood Floors

I have been regaling my friends on Facebook for the last few days with pictures and updates on a project my wife and I undertook to put a hardwood floor down in our den. As of about midnight last night, the construction was complete (a small piece of quarter round and a threshold cap have to be tacked down, but why quibble). As I was falling asleep last night, I kept coming back to something I had said to my wife earlier in the evening: "There's nothing like finish carpentry to keep you humble". I had said that after screwing up a miter cut on a piece of baseboard and having to re-do the entire piece. But I could have said it about construction as a whole. And the project reinforced and reminded me of some of the things that it is easy to forget in your day-to-day life. At least I forget them all the time.

Construction mandates precision. Or, should I say, good construction mandates precision. If you are off on your measurement, your cut, or any step along the way, your end product looks like hell. Or doesn't work at all. I remember one of my first ironworking jobs as a kid. We'd put up the girders and I-beams for a floor, and bolted them into place. Then, we strung heavy cables between the spans and used turnbuckles to crank the huge pieces of metal into plum. It ain't easy and takes a lot of muscle. I remember us being about a half -inch off on one and saying that that seemed close enough. The journeyman I was working with said (I'll excise the incredible profanity every sentence by an ironworker contains) "@#$(# kid, if every floor is half a #*@&$ing inch off, by the time we get to the top we'll be two @#*ing feet off).

So it was on this project. Every time my attention would wander, there would be a mistake. Sometimes that mistake would not reveal itself until it messed something up further along. Then you have to go back, find the mistake, and fix it. You have to stay in the moment and sweat the details. Cursing doesn't help, whining doesn't help, getting angry at your partner doesn't help. Trust me, I tried all of those. You have to pull it back, center, and focus on the task at hand and nothing else. Zen. There is a classic Zen aphorism, "before Enlightenment, chop wood and carry water; after Enlightenment, chop wood and carry water". In other words, the path (or the Way as some Zen philosophers term it) lies in paying attention to what is in front of you, and being fully in it. Doing it as well as you can, no matter its simplicity. If you are a fan of the old TV show M*A*S*H, in one episode someone asked the arrogant but brilliant surgeon, Dr. Charles Emerson Winchester, why he was such a great surgeon. His reply was "I do one thing at a time, I do it very, very well, and then I move on." In "The Book of Five Rings", a classic of martial arts literature, Miyamoto Musashi lays out nine precepts that the warrior should follow. One of those is: "Pay attention, even to the simple things."

Every job is like that, or can be. In my law practice, when I focus on the details, the big picture is always clearer. The police reports and witness statements have to be read again and again, because just because a cop says someone "confessed" does not make it so when you read it or listen to it. The pictures have to be looked at carefully and completely. I saw evidence of rigor in a picture once that I thought I had looked at three times before, and it changed the whole defense. And, at the most basic, you have to read the statute and see what it actually says, not what you "know" it says because you've been doing this so long. Focus, stay in the moment, pay attention to each step along the way. The end result will take care of itself. Good things to remember. And I got a pretty nice new den floor out of it, too.

Kaci Hickox--American

I have watched with fascination and, more and more frequently, outrage at the way Kaci Hickox, the nurse who had ventured to Sierra Leone to help treat Ebola patients and has now returned to the U.S., has been treated by the governments of New Jersey and Maine and by what appears to be a majority of the American public. At the risk of sounding like the stereotypical crotchety old guy (which I guess I am at this point of my life), what the hell has happened to America and Americans? When did we let fear shrivel us to this point? Kaci Hickox has demonstrated, and continues to demonstrate, the traits that I grew up believing embodied the best of America, and is being pilloried for it.

What makes an ideal American? What are the attributes that go into why the vast majority of our citizens, if you ask them, consider America "exceptional"? Consider just a few: courage, compassion for others, independence, a refusal to be bullied by the state (or anyone else). Kaci Hickox voluntarily went to one of the most dangerous places in the world right now, where health care workers like her are dying at alarming rates. I don't know what she got paid to do so, but I guarantee you it wasn't enough to convince me or most of you to do the same. She did so to help other people--to help them live. The word "hero" gets thrown around far too often these days. Well, Kaci Hickox and the people who are putting their lives on the line in order to try and stop Ebola from becoming a pandemic are heroes. So, courage? Check. Compassion for others? Check.

After doing all this, Kaci Hickox returns home. You know, to "the land of the free and the home of the brave". And didn't find much of either. She did the responsible thing, and told authorities that she was returning from West Africa and had been there helping treat Ebola patients. And the freakout commenced. Despite being completely asymptomatic, she was immediately treated as one of the unclean. Let's pause here for a second. If you are unwilling to accept the opinions of the experts that Ebola is not airborne and that a person with Ebola is only contagious when they are exhibiting symptoms, then just stop reading. It is better that you and I don't waste each other's time. The current American penchant for ignoring science is equally disturbing, but you cannot have a rational discussion of Ebola and ignore the doctors because you're scared. Professional bully Chris Christie then tried to make himself look like a man of action (don't get me started on Andrew Cuomo) and locked Hickox up. No, that is not an overstatement. That's what a quarantine is. Your 1st Amendment rights to assemble and travel, your 4th Amendment right to due process, arguably your 8th Amendment right to be free of excessive bail and cruel and unusual punishment are all summarily taken away. But, but, the public health,you say! I repeat, she is completely asymptomatic. There is not a shred of evidence that she has the disease, even in latent form. But Chris Christie being Chris Christie, bullied forward. And Kaci Hickox called him out. As Hickox's boyfriend said, "he messed with the wrong redhead". She contacted Norm Siegel, one of the better civil rights lawyers in the country and said she was going to sue. And, in the true way of all bullies, Christie caved while maintaining that he hadn't. Hickox then returned home to rural Maine, where she was met with more bullying by the equally blustering governor of that state, Paul LePage, who has threatened her with men with guns if she doesn't kowtow. But she hasn't, and I suspect she won't.

Now, I fully expect the Chris Christies and Paul LePages of the world to try and score cheap political points by being posturing blowhards at every opportunity. What I didn't expect was the public response. What I didn't expect was the vitriol being spewed at Hickox. What I didn't expect was the immediate willingness of what seems to be the majority of the American public to  give in to unsubstantiated and groundless fear. But maybe I should have. In response to 9/11, we allowed the Patriot Act, and continue to allow its renewal. We allowed people to be locked up indefinitely, with no charges, no lawyer, and no hope of ever getting out. We tortured people. America seems to be afraid of everything and everyone anymore, and we don't care what we do as long as it makes that fear go away for a little bit. We let Chris Christies (and, yes, Andrew Cuomos, this is not intended to be a partisan rant) ignore the basic rights that, in fact, are what DOES make America exceptional. And we say and write hateful things about someone who should be a shining example of what America is supposed to be about.

Slippery Slopes--Redux

Talk about instant gratification. I write one simple blog post and immediately 28 Harvard Law professors publish an Op-Ed in The Boston Globe saying "What that Trobich guy said? Ditto!" Well, maybe that's not exactly what they said, and I am quite sure not a one of them read my blog, but that's my story and I'm sticking to it. Regrettably, almost simultaneously, Ezra Klein of Vox.com, a journalist whose work I generally think highly of, wrote a piece demonstrating that the concerns I (and the Harvard profs and others) am expressing are true.

The entire Op-Ed by the Harvard profs can be found here, but the bottom-line is that they are very concerned that these new policies overreach, and that the due process rights of the accused are getting trampled-upon in the process. Now, again, let's be precise here. The only entity that you have a "right" to due process from is the government. I have made the point in another post that most people mistakenly believe that Constitutional guarantees like free speech (and due process) means that you get that right anywhere and everywhere. You don't. Let's be clear, there is nothing "Unconstitutional" about these policies. But while an allegation of sexual assault to a university is not the same as being charged with that crime, the seriousness of the allegation (and the likely life-changing result of the allegation alone) warrants every bit the amount of due process that the Constitution guarantees you in a criminal court venue.

So far, so good, right? The various Harvard profs have awakened from their academic slumber and seen fit to take a stand. Yay. But almost at the same time, Klein was writing a piece that, I submit, should scare the crap out of you. Put simply, Klein acknowledges that the "Yes means Yes" law just enacted in California is "a terrible bill", but in his opinion "a necessary one". As I said in my earlier post, I am as staunch a defender of feminism as you will find. My two daughters are the pride and joy of my life, and if anyone ever hurt them in any way well, there's a reason why one of my daughters' friends said that when they saw "Taken" with Liam Neeson they thought of me (see below). When Klein speaks of "a culture of sexual entitlement" that is "built on [women's] fear", I agree with him completely. But this is not the remedy. Klein says, approvingly, that to work, "Yes means Yes" has to "create a world where men are afraid". And, most disturbingly, the cases where men are "convicted" from a truly ambiguous situation or, worse, completely concocted allegations, well, according to Klein, "that's necessary for the law's success". He's willing for some (in his assertion "very, very few") to be ruined for the greater good.

No. That can't be. If that's the solution, then we need to keep the disease. Surely there is a better way to tear down the very real issues of sexual entitlement/harassment/assault. There has to be.


[If you somehow don't know the movie "Taken" with Liam Neeson (heck, they're about to come out with "Taken 3") here is the near-iconic scene of Neeson assuring those who have kidnapped his daughter of their fate]

The Slipperiest of Slopes

This is a hard one. Any one who knows me even a little knows I am an ardent backer of feminism. Few things provoke a more visceral hatred in me than men mistreating women. I abhor "guys being guys" and talking about women as if they are simply a sum of their physical attributes, making sexist and derogatory remarks when faced with women who are smart, strong, and accomplished. I tried to raise my daughters to be such smart, strong, and accomplished women (in part, by marrying one) and trying to teach them that they take a back seat to no one. They were never to worry about being too smart in school or too tough on the athletic field. They could wear what they wanted and say what they wanted, and any male who had a problem with any of that wasn't much of a man and was certainly not worth their time. And, most importantly, no male (I purposely do not use the word "man" here) had any right to put their hand on them if they did want him to, and that if he persisted, to use whatever force or tactic they saw fit to stop it. So, when discussions turn to sexual harassment and assault, my first inclination is to assume some guy is being an ass (or worse). BUT..........

I am also a criminal defense lawyer. The concept of "innocent until proven guilty" is so ingrained in me as to be almost organic. There are few things worse than the prospect of an innocent person being punished for something they did not do. And, yes, false allegations of harassment, assault, and rape do occur. I've been a part of several cases where they were. BUT.....

In response (at least partially) to demands from feminists and their allies to do more about sexual assault, especially in the military and on college campuses, the noxious "Men's Rights" movement has gathered steam. Most of those who write on such topics are clearly misogynists, or simply those hoping to gain some extra print columns by making provocative but inane arguments (i.e. James Taranto of the Wall St. Journal). Many of the arguments fall back on the pseudo "guys being guys" type of argument and assert that it's essential for males to act like boors in order to be good soldiers, or not feel emasculated somehow. I chalk those up under the heading of "bullshit arguments by losers". BUT.....

There is a movement, which the Obama administration has supported, to attempt to assist alleged victims of sexual assault on campuses to seek redress. And here's where the slope has started to get pretty slippery. First, this movement purports to address the assertion that 1 in 5 women will be sexually assaulted while in college. The problem is that the basis for that assertion is shaky. But even if the numbers are correct, the proposals are still pretty troubling. The most troubling for me is that it starts backwards--that is, it assumes that the allegations of assault are true, and shifts the burden of proof to the accused. Secondly, it is beginning to chip away at what constitutes "rape". When you are talking about prohibited conduct, definitions are important....real important. California recently passed an "affirmative consent" law, which means that in investigating sexual assault on campus, universities are supposed to determine if there was "an affirmative, conscious, and voluntary agreement to engage in sexual activity". How exactly does one prove or disprove such a standard? It is hard enough in "traditional" rape cases, where force and intimidation often don't leave any outward signs, yet the lack of such outward signs are brushed off as even beginning to constitute a defense. And, even if not a court of law, do you want someone to wear the stigma of being a "rapist" with such a vague standard?

As I said at the start, I hold few persons in more contempt than males who abuse women, in whatever form that abuse may take. But this new direction is fraught with peril. And I think it's a bad idea.

It's Not About You

A lesson that I learned long ago, but which is easily forgotten, was brought back to me the other day. A young man I represent is charged with several very serious crimes. If convicted at trial, he faces the likelihood of spending most, if not all, of the rest of his life in prison. He just turned 19. The State has what appears to be substantial evidence. Last week, at the last moment, he balked at accepting a plea offer. It was not a remarkably generous plea offer, but it would have resulted in him getting out of prison while still being a few years younger than I am as I write this (and, contrary, to my son's opinion, I ain't old). The offer is now off the table. We go to trial next week.

My immediate reaction was a mixture of frustration and anger. Couldn't he see the choice he was making? Couldn't he see the logical, rational decision was to take the plea that I had fought long and hard to get? What am I going to do now? I'm going to get killed at trial. Several people came up to me afterward, all murmuring consoling phrases. After a bit, though, I stopped and thought about it. What the hell was I frustrated and angry about? This is not about me. It's about my client. He's made a choice. Whether I agree with it or not is no longer the point. He made it. And my job is to fight for him as hard as I possibly can. So there's no time to wallow about, criticizing my client's choices, bemoaning the task I have facing me. It's certainly  not the time to go through the motions, put in a perfunctory performance, knowing the realities of what may likely happen. If you do that, everyone will pat you on the back and say, "hey, you had nothing to work with".  Pardon the language: Bullshit. What it is time for is to focus on the fact that a young man has only me between him and perhaps a lifetime in prison. It's about him at this point, and it's my job to do everything I possibly can to help him.

So let's go. We're coming out, guns blazing. Every issue is going to be a fight, no matter what. No concessions, no quarter sought or given. Because I'm all he's got left.

Hope Solo, Ray Rice, Adrian Peterson: Same Thing, Only Different

By now I am sure you have heard (and seen) quite a bit about both the Ray Rice and Adrian Peterson situations. Roger Goodell, The NFL, and the Baltimore Ravens have all performed like craven and inept buffoons in the Rice matter. The Minnesota Vikings' vacillations on Peterson would be comical if the topic were not so serious. But this is not a post about them. Nor is it about the ways a large part of our culture is premised on misogyny (another day, perhaps). Nor is it a discussion of the nature and scope of parental discipline (although, as a caveat, I will note that the protestations of those such as Sean Hannity, Charles Barkley, and others that "my mother/father beat me and I turned out fine" suffers not only from defects of logic, but from faulty premises).

No, this is about those situations in the NFL and the comparisons some are making to the situation of Hope Solo, the goalkeeper for the Seattle Reign of the NWSL and, more importantly, for the U.S. Women's National Team, which is in the midst of preparations for the Women's World Cup next year. To say that Solo, who many (myself included) consider the greatest women's keeper of all time, is important to the U.S. team's chances is an understatement

But, there is a complication. Solo is a mercurial and volatile talent who, frankly, does not care one whit what others think of her, including her team. It is my opinion that this trait is part of what makes her great. She plays with an arrogance and swagger that intimidates opponents and seems to make her immune to big game pressure. But it often leads her to trouble off the field. There were allegations of domestic violence by her against her then-fiancee, now-husband, ex-NFL player Jerramy Stephens (who has his own demons). Nothing came of that incident and Solo did not pursue it. But earlier this year, Solo was charged with assaulting her half-sister and 17 year-old nephew at a birthday party at her house. There was alcohol involved (shocking, I know) and by all accounts it was quite a scene. Solo has plead not guilty and is awaiting trial. U.S. Soccer has allowed her to keep training and playing with the team while the legal situation plays out.

You are now hearing calls for Solo to be taken off the team and/or not be permitted to play, a la Rice and Peterson. There are cries of a "double standard". I even saw one particularly unhinged commenter state that the fact that Solo was being permitted to play and Rice and Peterson were not was evidence of a "leftist, feminist attack on the NFL".(Because nothing says free-market masculinity like beating women and children, am I right? But I digress.) But are the situations comparable? I would argue not. Not unless your position is that any athlete charged with any crime must sit until their legal situation is resolved. Yes, the alleged victims are family members of Solo's, so technically this falls under the heading of "domestic violence". I even heard one commentator, who I generally like, refer to it as "child abuse", since the nephew is 17. But this is not domestic violence, and it is not child abuse. The sister and nephew do not live with Solo. They are not financially dependent on her, and there are obviously not issues of emotional/romantic/sexual dependency.

Domestic violence and child abuse are real, they are far more prevalent than the public realizes, they are often covered-up, minimized, and rationalized, and they are a significant precursor to a startling percentage of the homicides and sexual assaults in the U.S. But it is the unique and intimate nature of those relationships that makes them so fraught with peril. Solo's situation is not the same. To call her situation "domestic violence" and "child abuse" is to cheapen those terms. Again, if your position is that any athlete facing any criminal charge should not be permitted to play, well, that's another discussion for another day. But don't try to sell the false equivalency of Hope Solo, Ray Rice, and Adrian Peterson

As Long As I Got My Suit and Tie.....

No, this is not a blog about the Justin Timberlake song ,as much as I think it's great (well, I could do without Jay-Z's part, but I quibble). It's about dressing--more specifically, dressing appropriately. If you know me, or have ready any of this blog, you know that I'm a criminal defense trial lawyer. So, a suit and tie is my normal dress. In a world of "business casual", criminal law is about the last bastion of "business formal". I prefer what I refer to as an "East Coast Big City" style--dark suit (sometimes pinstripe), nice dress shirt (color is not a bad thing, sometimes French cuffs, but never button-down with a suit), tie with some color and/or pattern (not regimental stripe, and silk not wool), silk pocket square (coordinates with, but does not "match" the tie), wingtips. When I first moved to the South, I saw lots of seersucker--sorry, not me. Also saw lots of blazers and khakis. For court? Nope. Again, not me.

But this is not really a fashion post either. What you wear and how you look MATTERS. Sorry, it does. Always has. Probably always will. When I walk into a courtroom, I am sending a message. To the judge, to the prosecutor, to the other lawyers in the room, and most importantly, to my client and the jury. I am here, I am ready, I am the big league. This is business. I am here to win and if you think you can beat me, think again. Should it matter? In a perfect world, perhaps not. Your intellect and brilliance should shine through. But, in case you hadn't noticed, the world is not perfect. And if you don't send the message with your appearance, many will never give your intellect and brilliance the chance to shine. Now don't get me wrong. You can look impeccable, and if you are unprepared the perfect knot in your tie won't help. But it is the setting on the table.

Now, this brings me to an interesting juncture. I am pretty far left politically. Not what you would think about a guy who just spent two paragraphs telling you about suits and ties and how important they are. Although (actually, I would contend because) I am quite far left, I am not a huge fan of President Obama. But I find a lot of the criticism of him by the far right fairly juvenile. There is one area where he has been criticized recently that I think does have some merit, and it is precisely this topic. When the situation between Russia and Ukraine was beginning to heat up earlier this year, there was a photo that the White House put out of the President speaking to Vladimir Putin from the Oval Office on a Saturday. It was characterized as a very serious call, and the President was warning of sanctions. He was wearing jeans and a button-down shirt with no tie. He appears at a lot of speeches and press conferences with no tie (now, I am not knocking the tan suit. It may not have been my style, but I thought it was fine). Sorry, that's a mistake. If you don't think those "optics" (the current word for it) matter, you're kidding yourself. As I said before, the message is "I am here, I am ready, I am the big league. This is business. I am here to win and if you think you can beat me, think again".

And on top of conveying a sense of seriousness and purpose, dressing nice has other benefits. Just ask ZZ Top: