Category Archives: courts

If I Were a Lawyer–

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—in the District of Columbia, I would have been at work for a more than a month signing up as clients Capitol and District police officers and their families for a gigantic personal injury lawsuit against Donald J. Trump. I imagine there have been some pretty busy attorneys already.

I also might be signing up the families of the men and women now in custody and facing prison time because they believed Trump summoned them to Washington to do his bidding and upend the 2020 election results by stopping the certification of the Electoral College votes.  These families are facing economic damage caused by the loss of a wage-earner and might face a certain level of social ostracism because a family member took part in January 6th (there is no need to say “the January 6th insurrection” or “riot,” because this is a specific date that will mean something, as 9-11 means something without further definition). A massive class action civil lawsuit featuring dozens of hours of powerful witness-stand testimony will be difficult to counter by defense counsel saying, “He didn’t really mean it to turn out that way” or calling the damage lawsuits violations of his First Amendment free speech rights.

One might be able to say many things and escape penalty for saying them. But there is a penalty for the damage those words produce.

The creativity of the legal profession is likely to produce other clients with other claims of other kinds.  It would not be surprising that Mr. Trump’s financial empire, such as it is, to be placed in incredible jeopardy.  It will take legal representation of epic brilliance to defend him from devastating financial liability.

In every lawsuit, in every argument, Trump’s involvement in the worst assault on our system of government since the secession of southern states if not in all national history will be recalled. Every case will batter him personally as well as financially and likely will undermine his political credibility further.

But civil court proceedings are not the only difficulty facing the former president. Criminal investigations of the financial dealings of Trump and his family as well as investigations into his efforts to change election results—and who knows what other possibilities exist—appear to be lurking in the offices of federal and state prosecutors.

The chutzpah displayed in his post-trial claim that he will be a significant influence in the 2022 elections or a viable presidential candidate for 2024 will become more questionable as each of these possible civil and criminal cases moves forward.

The aftermath of his second impeachment trial could be worse for him than the week just past.

Senate Minority Leader Mitch McConnell’s post-trial speech scathingly rejecting Trump’s presidency can be seen, might be seen, by many as the first significant step by the Republican Party to be a party it used to be—a party greater than Donald Trump.

Some see McConnell’s speech as duplicitous, pointing to his former role as Majority Leader when he suggested the House impeachment charges should not be delivered to the Senate while Trump was still in office and then claiming the Senate could not convict Trump because the charges had not been filed before Trump left Washington.

Although McConnell’s statement is unlikely to lessen public cynicism toward government, his direct post-trial attack on Trump is something on which the party can build—if it will.

In his own post-trial statement, Trump never mentioned January 6.  He never mentioned the assault on the capitol.  He never mentioned any regrets that his mob imperiled the people who voted to acquit him. He never extended any sympathies to the people injured in the assault or who died that day and in succeeding days because of those events. He still has not admitted that he lost the election, continuing to emphasize his 75-million votes, still refusing to acknowledge that somebody else got seven-million more through the same processes that gave him 75-million. He promised to reveal a new “vision” soon for American greatness. Let us hope his new definition is better than his old one.

Having survived the latest political questions about his actions that day, perhaps he should spend some time developing a vision for dealing with the legal problems likely to come.  No beautiful wall around Mar-A-Lago will keep the lawyers out.

It has to be FRAUD, I tell you!

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I’ve been studying the Missouri results of the November 3 election and I believe we need some judges to declare there were fraudulent votes cast.  Thousands of them.

One need only look at the winning percentages of statewide Republican candidates to see evidence of illegal activity.

Missouri abolished straight-ticket voting in 2006.  But look at the winning percentages of top-of-the-ticket Republicans:

Trump 58.26%

Parson  57.17%

Kehoe  58.5%

Secretary of State 60.6%

Treasurer 59.2%

Attorney General 59.5%

Clearly, there’s something fishy here.  It’s impossible to have percentages this uniform unless there wasn’t illegal straight-ticket voting going on.  I’m not sure how it was done but it’s time to hire a lawyer, file a lawsuit, and accuse voters and local election authorities of plotting to assure a Republican sweep.

These votes should not have been counted because the percentages show there was clear tampering going on at the ballot box.  Chances are that a check of thousands of ballots will show remarkable similarities in the way the little ovals next to candidates’ names were filled in by reputed voters.

Furthermore, poll watchers were kept so far away from the tabulations that they could not closely examine the way the ballots were marked, thus being unable to challenge each ballot before it was processed.

All of the votes cast in the election of 2020 in Missouri should be voided because the uniformity of markings clearly shows extensive violation of the state election law against straight-ticket voting.

An investigation must be launched at the highest level to find the actual ballots that were removed so these fake ballots could be substituted and elections officials throughout Missouri should be jailed for their parts in this massive voter fraud that resulted in obvious straight-ticket voting ban.

Maybe the Democratic Attorney General of Pennsylvania, Josh Shapiro, and nine other Democratic Attorneys General who have no business sticking their noses into a Missouri election should file a petition asking the United States Supreme Court to throw out all of the ballots showing near-uniform voting for President Trump and the five Republican statewide officers.

Note to Nicole Galloway:  This election is not over!

The whole election was a record-breaking fraud, I say.  FRAUD!!!  FRAUD!!!

A presidential favor

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Our president refuses to admit he’s a loser..

But that’s okay—although his personal behavior and his political attitude suggest he should be sent to his room without supper

—because he might be doing the country a big political favor with his stubbornness. .

Mind you, this is being written by a voter who didn’t cover the campaign or the national election returns with the intensity of the national media, whether friendly or fake in the eyes of the president.

The election was unique beyond the combatants.  It was unique in the process by which it was held, a process that is likely to continue in many parts of the country.  Early voting in one form or another is here to stay. Processing of those votes in this election seems to have satisfied most people, but not our president and his loyal supporters. The president is filing lawsuits right and left alleging various kinds of fraudulent actions that have denied him a second term. The complaints appear to lack evidence but our legal system does not require proof before a citizen files a complaint.

Critics have little good to say about all of this even though they are not surprised President Trump is being a poor sport about losing.

Our president is also a citizen and as with all of us, he has a right to ask the courts to remedy what he asserts is a wrong that has been done to him. It would be nice if he had firm proof to back up his attacks on the elections system and the people of both parties who administered it in this terrible time.

That aside, let us look at the positives he might be providing the country rather than dwell on the negative aspects of his personal behavior.

Your obedient servant sees at least two benefits to his actions.

First, in filing all of his lawsuits claiming the process was badly flawed, he is giving the courts multitudinous chances to confirm it was not.  He is giving the courts—perhaps ultimately including many judges that he appointed—an opportunity to confirm our elections system worked even under one of the most severe tests it ever has faced.

As this is written, he and his lawyers haven’t won a single case. His efforts to de-legitimize the election and the election process are, in fact, legitimizing them, thanks to his losses in the courts.  So cut him a little slack. So far he has proven the process he seeks to disprove.  Let him keep going.  In the end, the establishment of a 21st Century system of voting might be one of his biggest legacies, much as he might dislike the result.

Second, he is proving something upon which he has at times cast doubt—the concept that no one is above the law.  Not even the president.  In filing his lawsuits he is admitting that he does not have the power as President of the United States to void an election.  He has the same authority you or I have, the authority as a citizen to seek redress of perceived wrongs through the court system.  He’s not above us.  He is still just a citizen regardless of his title.

So let him go, even though his accusations and his lawsuits and his lack of cooperation with the president-elect’s transition effort is not good for the nation.  Let’s appreciate that he’s proving—although he doesn’t seem to want to—that two essential parts of our democracy are true—that no one is above or beneath the law including a president, and the election system not only works, it is capable of working under the greatest of strains.  It might need some fine-tuning after this, but once again, this latest use of the system given to us by our founders has continued to work.

Tinkering with the court 

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Talk by Democrats about increasing the numbers of Supreme Court Justices after the confirmation of Amy Coney Barrett—IF they gain control of the Senate—is nothing new.  The court membership has fluctuated from five to ten and the changes often have been for political reasons, not because of concerns that the court would not dispense justice.

The concern by liberals that the Court will be 6-3 for years to come is based in part on the ages of the present members of the Supreme Court.  If Joe Biden is elected president, he might have a chance to hold the court at 6-3.  A loss exposes the court to the possibility of slipping to 7-2. If Democrats hold onto the White House, for another four years after Biden (assuming Biden keeps to his early statement that he would not seek a second term) his successor could flip it back to a 5-4 court. But some things would have to happen and it is not wise to count on them falling into place.

Justice Stephen Breyer, appointed by President Clinton, is 82.  We are not aware that he has said anything about hanging on until a Democrat takes office but at 82, he might think about whether he wants to still be on the court at 86.  Clarence Thomas, the senior justice, is 72, a Republican appointee. He also hasn’t said anything about leaving—in fact it is rare for him to say anything at all publicly, and nothing says he must—but he soon will have thirty years on the court, becoming the fifteenth justice to reach that tenure.

Depending on this presidential election and the next, Breyer and Thomas might be where Justice Ginsberg was—trying to hang on until a new president of an acceptable party is elected before retiring.

Here are the ages of the present and likely future U.S. Supreme Court:

Stephen Breyer   82 (Clinton)

Clarence Thomas 72 (Geo. H. W. Bush)

Samuel Alito  70 (GWB)

John Roberts 65 (George W. Bush)

Sonia Sotomayor 66 (Obama)

Elena Kagan 60 (Obama)

Neil Gorsuch 53 (Trump)

Brett Kavanaugh 55 (Trump)

Amy Coney Barrett  48 (Trump)????

All of this is assuming everyone remains in good health.

If Democrats have the White House for the next eight years, Justice Thomas will be 80 and he will be approaching the tenure record of 36 years and 7 months set by William O. Douglas (1939-1975), the only Justice to serve more than 35 years. Would Thomas want to set a new record and in the process wait for a Republican President and a Republican Senate again?

But how about just adding new seats on the court while the Democrats are in power to neutralize the current conservative leaning or to offset it?

There is nothing sacred about the number nine in determining the size of the court. The Judiciary Act of 1789, the legislation that enabled to Constitutional provision creating the court system, established the first U.S. Supreme Court with six members—a Chief Justice and five Associate Justices.

The National Constitution Center says President John Adams and a lame-duck Congress passed a law in 1801 to reduce the court to five members. That was done to limit incoming President Jefferson from making appointments. Jefferson’s Republicans overturned that act and put the membership back to six. A seventh judge was added during Jefferson’s term when a Seventh Judicial Circuit was created.

For some time, the number of justices was tied to the number of federal court circuits. When Congress expanded the number of districts, President Jackson added two more members of the court. When the Tenth Judicial Circuit was created in 1863, Congress added a tenth Justice.

Congress did not want President Andrew Johnson, soon to be impeached, to appoint any new Justices, so the Judicial Circuits Act of 1866 reduced the membership from ten to seven with the decrease taking place as vacancies occurred. Two years later, with Johnson gone and Grant in the presidency, only two vacancies had occurred, leaving the court with eight members. The Judiciary Act of 1869 added one seat back, setting the membership at nine and there it has stayed to this day.

The number withstood President Franklin D. Roosevelt’s threat to enlarge the court because it leaned conservative and wasn’t as supportive of his New Deal policies as he wanted the court to be. His Judicial Reform Act of 1937 would have expanded the court to fifteen. The court took the unusual step of engaging in the political process when Chief Justice Charles Evans Hughes, a conservative, and liberal Justice Louis Brandeis came out against the plan. Not long afterwards, changing voting patterns on the Court and vacancies that Roosevelt could fill took care of the situation as far as he was concerned. Roosevelt’s packing proposal had gained little traction anyway.

So that is how we got to having nine members of the U.S. Supreme Court.

Here’s another interesting tidbit about the selection of new Justices. If you read the original Constitutional language in last week’s entry, you might have noticed there are no qualifications listed for becoming a member of the U. S. Supreme Court. Nothing says a Justice must be a lawyer or have previous experience on the bench. Should a President want to appoint a White House janitor to the court, he or she could do that.  The Senate with its confirmation powers presumably would not confirm a janitor. But how about—-

Justice-nominee Sean Hannity, a house painter before he started talking on the radio. Never finished college.  But under the Constitution, he could be appointed to the U. S. Supreme court.

Would Senator McConnell fast track that one?

-0-

Just doing his duty

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A warning:  When we composed this examination of current events, we did not realize it would generate a second chapter.  Today, chapter one.

A lot of people are getting all hot and sweaty about President Trump’s push to get his Supreme Court nominee confirmed by the Senate before the election so she can rule on any lawsuits about the legitimacy of the election that reaches it. He is convinced the only way he can lose is if there is massive voter fraud and he has lawyered-up to file a lot of lawsuits. Addressing that demagoguery is not our purpose here today.

Let’s talk about the process a little bit because it’s been a while for most of us since our political science classes in high school or college and with all of the shouting and finger-pointing going on, a bit of a refresher course might be in order.

First, the president said last week, “I have a constitutional obligation to put in nine judges—justices.”

Well, yes and no. Article two, section two of the United States Constitution says the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint….judges of the Supreme Court.” Note that it does not say how soon after a vacancy occurs the President must act.  It also does not say an incumbent President must act.

Article three, section one says, “The Judicial Power of the United States shall be vested in one supreme court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme court and inferior courts shall hold their offices during good behavior and shall at all times receive for their services a compensation which shall not be diminished during their continuance in office.”

Now, there’s something we don’t hear discussed often.  These judges shall hold their offices “during good behavior.”  We went to Congress.gov to see what that means because most of us, your faithful observer included, who had not observed that qualification before and wonder what that means.

For those of you who think the only thing we have to do is read the Constitution to solve all of our problems, this is an example of the flaw in that argument.  One of many.

Congress.gov says, “This standard, borrowed from English law, ensures that federal judges hold their seats for life, rather than set terms or at the will of a superior. The applicability of the Good Behavior Clause to the removal of federal judges has been the subject of debate; in particular, whether the phrase elucidates a distinct standard for removal apart from the high crimes and misdemeanors standard applicable to the impeachment of other federal officers. While this question has not been definitively resolved, historical practice indicates an understanding that the Good Behavior Clause protects federal judges from removal for congressional disagreement with legal or political opinions.”

If you think the noise we are hearing about the president’s appointment is loud, imagine what would happen if Congress had the power to remove Supreme Court Justices with whom the majority of Congress disagreed? Why would it have to be the whole Congress, even?  The Senate is the chamber that confirms nominees to these offices.   The Senate giveth; the Senate taketh away.

Nothing is written that prohibits Congress from doing that. What is written is the power of the House to impeach federal public officials (Article one, section two, clause 5).  As we know, after the House files charges (impeachment), the trial is held by the Senate (Article one, section 3, clause seven). Not all federal officials can be impeached (Article two, section four, which also defines the misconduct that can lead to impeachment).

But impeachment is not expressly mentioned in Article three, the judicial article. Instead of listing specific causes for impeachment of Supreme Court Justices, the Constitution speaks of “good behavior,” and that, says Congress.gov, “is widely understood to provide the unique nature of judicial tenure.”

One interpreter of that standard said in 1983, “The nation’s founders so insulated the job against political pressures because they believed the mission of the federal courts requires a high degree of independence in the third branch. The security of life tenure, the Constitution’s framers thought, would encourage resistance by the federal branch to popular moods of the moment not properly expressed in laws, and would promote the fidelity of federal judges to the enduring values embodied in our fundamental instrument of government.”  The observation was given in the John R. Coen Lecture Series at the University of Colorado School of Law by United States Circuit Judge Ruth Bader Ginsberg.

Your observer has diverted himself from the theme of our discussion but the diversion, we hope, has helped understand the special nature of the third arm of our government.

Back to the president’s statement that he has a Constitutional responsibility to “put” nine judges on the U. S. Supreme Court.

Not really.  The word “immediate” is not in the Constitution. The words “without delay” also are not in it.

He can only do it if the Senate agrees to let him do it.  That’s where the Advice and Consent language kicks in.  He also is not required to make sure the court has nine justices. The number nine is not mentioned in the Constitution and the president’s fellow Republicans a few years ago had no qualms about leaving the court with eight judges for fourteen months so that the next president could make the appointment.  Did that hamstring our judicial system?

No, it did not. In fact we have found eight cases dating to 1973 in which the court tied, sometimes because of a vacancy but most often because one of the Justices did not take part in the decision for one reason or another.  Eight cases in 47 years hardly hamstrung the judicial system.  So there is no Constitutional requirement that the president appoint a ninth Justice.  He is not prohibited from doing so a few weeks before an election, either.  Nor is he prohibited from leaving a vacancy indefinitely.   But when he does suggest someone, the Senate is mandated to provide its blessing before that person can put on the robe.

In fact, there is nothing in the constitution requiring nine members of the U.S. Supreme Court, as you could see by reading the provisions at the top of this offering. We will get to that next week.  We will mention that the number of members of the U. S. Supreme Court is set by Congress, which is why we’re hearing Democrats say they’ll try to expand the court to keep it from swinging unacceptably (to them) to the right.

“Packing” the court, as it’s called, has its perils.  What happens if Congress decides a 9-3 court is too radical?  Would it raise the number of 19?  Lower it back to 9, kicking some judges off the bench in the process?

It is obvious that the contemporary situation is a dangerous one—not in terms of whether the potential new court member swings the court far to the right but whether the handling of the nomination by the president and his party will lead the Democrats to do something that spreads the chaos of the Legislative and Executive branches to the judicial branch, where calmness in determining the validity of our laws should prevail.

—at least, in a more perfect world.

We conclude by submitting that the arguments made in the Merritt Garland case are specious and do not apply in the current case. The public’s decision in 2016 to have a president and both houses of the Congress represented by one party does not give that party a license to act with impunity in the current instance, especially since that party has seen a reduction in its overall congressional numbers in the intervening election although gaining two seats in the Senate in 2018. The argument is a red herring.

The issue, created in the Garland case, is whether one party can act one way prior to an election and then four years later, act another way even closer to an election. Any discussion beyond that is political gymnastics. The people’s will seems to be changing, as seen in the change of party power in the House and concerns by Republicans that their control of the Senate after November is in jeopardy. The surveys indicating the public mood continues to change this year further weakens the argument that what was sauce for the goose in 2016 should not be sauce for the gander because of 2018.

But, let’s face it.  Senate Republicans don’t give a tinker’s dam what one old man on a quiet street in Middle America thinks.

Next week we’ll be back with some more history and a look at the court’s future, which could become worse for liberals and might not get back to 5-4 for a decade or more.

After RGB 

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Ruth Bader Ginsburg didn’t make it to the end of the Trump administration as she had hoped.  Her dying wish reportedly dictated to her granddaughter was that she not be replaced before the election.  It appears that’s not going to be realized either.  Our president has belittled her last opinion, in fact, claiming without evidence that it was something composed by Adam Schiff or Nancy Pelosi, or Chuck Schumer, three of his favorite Democratic punching bags.

Your observer of the three branches of government for most of his life fears a 6-3 U. S. Supreme Court, regardless of any perceived partisan tilt, and thinks a 5-4 court is best regardless of any such tilt.  The law is a matter of constant fine-tuning, often on small points of difference. Progress under the law is best accomplished with a surgical instrument rather than with a hammer.  The length of time members of the court are allowed to serve is a crucial factor in whether equality under the law is balanced for the long-term welfare of the country. Rulings from a 5-4 court seem more likely to represent arguments based on law rather than decisions based on ideology.  And when ideology shapes the legal standards under which we all much live, the opportunity for Inequality seems more likely to grow.

It is clear that Senate leader Mitch McConnell’s desire for an immediate vote on an immediate appointment is more focused on ideology than on the law, more focused on power than on principle.  Our nation is best served when the differences between conservative and liberal are narrow, forcing participants to focus on principle rather than power, more on law than on ideology.  It is as true in our appellate court system as it should be true in our legislative halls.

Super-majorities breed arrogance, distract from the principle of service, and place value on power.  And unchallenged power is inimicable to a republic.

Senator McConnell, who argued in February, 2016 that President Obama’s choice for the U.S. Supreme Court, Merritt Garland, should not get a hearing, let alone a vote, because court vacancies should not be filled during an election year, now has constructed some gymnastics to justify contradicting his argument against Garland.

Whether the process can be rushed to completion before the election is held is unclear. The process usually takes longer than the time between now and voting day. But it appears Senator McConnell will push that process.

The filling of this vacancy has instantly changed the presidential campaign and can instantly change campaigns for the U. S. Senate, including McConnell’s.  When the confirmation vote nears, we’ll see if some senators facing close contests might want to wait until after the election rather than rush to a vote before.

As if we voters don’t have enough to think about.

“May you live in interesting times” is a supposedly ancient Chinese curse—although scholars have found no such expression in Chinese.  There is, however, a Chinese phrase from a 1627 collection of short stories: “Better to be a dog in times of tranquility than a human in times of chaos.”

It appears we’re going to have a 6-3 court.  That doesn’t guarantee that the most conservative issues will be rubber-stamped, as we have seen from time to time when the court has surprised us with a ruling when a swing judge develops. Now, however, it’s going to take TWO swing judges when the court’s liberals prevail, a mountain too steep to climb most of the time. But the court’s own history indicates 6-3 is not always going to be a given.

Sometimes, however, being a dog, especially in times of chaos, is appealing, too.

Us vs. It—part III, Re-opening Day

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This is the third or fourth version of this entry from your faithful observer as he has struggled to keep up with our President and his ping-pong positions on the pandemic.

We started with the anticipation that President Trump would be convening a task force to look at when he can proclaim the country re-opened for business. He called it the biggest decision of his life. Within seventy-two hours he had amplified his position, asserting that he and he alone could order the lifting of social distancing and other policies put in place by the nation’s governors.

Now, after several governors have suggested rather clearly that he didn’t know what he was talking about, he has decided he’s going to “authorize” each governor to reopen states as the governors see fit. This is a big CYA effort (or if you prefer a more elevated phrase, a face-saving effort) and governors are likely to maintain that they don’t need his “authorization” either.

The way things are going, this entry could be out of date before sundown. But we’re going ahead anyway.

The President is under a lot of pressure to get the economy moving again. Some of that pressure is coming from Wall Street, which is highly-important to him personally as well as politically.

The Washington Post reported a few days ago that the Trump Organization had laid off 1,500 people and closed seventeen of its twenty-four properties in various parts of the world because of the virus. Based on previous Trump financial disclosures, says the newspaper, the closed properties generate about $650,000 a day. The organization’s payments on leases and property taxes are coming due or are past-due.

Some of this is increasingly political. He needs a big economic turnaround before the Republican National Convention opens in Charlotte, North Carolina on August 27. He needs the virus to be gone and a major economic resurgence to talk about at the convention and in the weeks before the election. He can continue deflecting criticism of his handling of the epidemic to someone else—as he already has in pointing a finger at China, Congress, Democrats, the Obama Administration, governors, and the World Health Organization. But by late August, he’ll have a hard time generating enough other boogeymen to deflect enough blame away from an administration that had taken exclusive credit for the growing economy and now wants no criticism for its sharp decline.

While he now seems willing to let governors decide what is best for their states, we’ll be watching to see if this new attitude also includes better assistance to the states in the recovery. As we have heard, he has blamed governors for their lack of protective equipment for healthcare workers.

Actually, we were looking forward to a possible legal donnybrook between the governors and the President if he had maintained his position that he has the exclusive power to reopen state economies. We do wonder if his new position still includes part of his previous statement that if he disagrees with a governor’s actions or lack of them, “I would overrule a governor, and I have a right to do it.”

We all know what could happen if he tries to overrule a governor, don’t we? What will the President do if a governor refuses to be overruled? Will he withhold federal disaster aid? That won’t win many friends or votes. Will he sue the states or the governors? Will the states and their governors sue him?

Our Governor Parson, asked on Monday about the President’s remarks about exclusive powers, said the President “well-knows the authority of the states.”  He said he’s not worried.” We might have to go back to the early days of World War II to find a governor who suddenly has so many things on his plate.

The President still hopes something good for him can happen on May 1. He seems to be one of the few who thinks that date is realistic.

Here’s an outlook for Missouri is concerned:

Leaders of the Missouri legislature hope to re-convene the General Assembly on April 27. Governor Parson said yesterday that would be okay with him as long as they maintain social distancing—as they did last week when they passed the supplemental budget bill. Some projections underline the governor’s cautionary note.

The University of Washington’s Institute for Health Metrics and Evaluation, which has been cited in several White House Coronavirus briefings, a few days ago lowered the anticipated death toll from the virus at 61,545, quite a drop from a possible 240,000 suggested earlier. It says social distancing is the key to the lower number. But while the 61,545 was the hard number we read about and heard about, the institute admitted it was only an estimate, somewhere between 26,487 and 155,311 in its modeling.

We checked the projection graphs a few hours before posting this entry. The institute has increased its projected death total to 68,841 with the 68,841st death coming on June 28. The hard number falls in a bracket of 30,188 and 175,961.

The forecast estimated that on May 1, the nation’s hospitals will need 49,891 beds, 10,937 in intensive care, and 8,953 invasive ventilators. It suggests 976 people will die that day.

Not a good day to reopen the country. We expect the modeling will changes from day to day as new statistics are fed into the system.

The IHME’s latest forecast is for Missouri’s peak day is April 29, just one day before May 1, two days after the legislature convenes. The good news is that no bed shortages or ICU space shortages are forecast. But we will need 313 ventilators. The institute forecasts that we’ll be averaging 50 deaths per day by then, part of an anticipated total of 1,712 with the 1,712th death coming on June 16. That’s the hard number forecast so far. The institute model says that’s within a range of 420 and 5,557.

Governor Parson has said more than once that he’s making decisions about re-starting the economy based on Missouri-specific data. He needs a lot more of it. Our testing numbers, although growing, are not impressive and Missouri as well as other states are going to have to have large improvements in testing to make a safe determination of when stay-at-home orders should be lifted and social distancing standards should be eased.

The President realizes that the opposition gains more ammunition each day the virus creates a new hot spot, each day that first responders are overwhelmed, every day that doctors and nurses are exposed to the virus because they lack the personal protective equipment they need. He knows, or should know, that declaring the company open is a great risk if the virus is still killing significant numbers of people each day.

Governors also must be aware that easing the protective steps they have ordered could backfire on them, many of them facing re-election this year. The autumn flu season will have started by the election in November. The autumn sports seasons will draw thousands of people to distances far less than six feet, elevating the danger of a new virus surge. The last thing the President or the governors need is a flare-up of COVID-19 ten days or fewer before the election.

A popular song during World War I proclaimed, “We won’t come back ‘till it’s over, over there.” The lyric can change to fit our times: “We won’t come back ‘till it’s over, over here,” with a new definition of “come back” and another new definition for “it.”

 

 

Innocent

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A brief observation about the vote on President Trump’s impeachment:

One of the things we journalists were taught early in our careers is that a “not guilty” verdict in a criminal court case does not mean the accused person is innocent. It only means the prosecution failed to convince the jury “beyond a reasonable doubt” of the guilt of the accused.

Another word sometimes erroneously used after such trials: “exoneration.” Finding someone “not guilty” does not absolve someone from blame, which is what “exoneration” means.

The partisan nature of the vote on the impeachment articles aside, the outcome in no way bestows innocence on President Trump. If the results would have been identical but reversed they would not have bestowed guilt.

To use a tired phrase, it is what it is. Claiming it is more is dishonest.

Of course, all of this is lost in today’s world of “Forever Trumpers” vs. “Never Trumpers,” a world in which reason, perspective, and understanding of a process are lost in the shouting.

But somebody had to mention this and it might as well have been mentioned here.

There is a third word that is appropriate: acquit.

The word “acquit” seems to be a better fit. The Senate vote discharged the president from the accusations against him, which is one meaning of the word.   There is a second meaning: to conduct oneself in a proper way, particularly in stressful situations

So now that the president has been acquitted, we shall see how he acquits himself, to use both definitions in the same sentence.

 

A good time for a critical review

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As we have researched issues related to funding for construction of a National Steamboat Museum and a State Museum building, we have come to the conclusion that somebody should empanel a commission, task force, or committee to see if the laws and regulations on casino gambling in Missouri are best serving the interests of the six-million people who live here or are best serving the interests of the owners of thirteen businesses, all of which are headquartered in other states.

Frankly, we think things have evolved to the advantage of the latter and to the disadvantage of the best interests of the people of Missouri.

We don’t know if there has developed some kind of mysterious mental vortex on this matter, but it’s good to see that Speaker of the House Elijah Haahr has established an interim committee on gaming headed by Representative Dan Shaul of Imperial.

The committee already has held a hearing on Video Lottery Terminals. Efforts are being made to legalize them. Some people in the casino industry see them as illegal competition and folks in the home-dock cities of our casino boats are concerned those terminals will further erode patronage at casinos and the steadily-eroding financial support those cities draw from casino admission fees.

About two months ago, Platte County Prosecutor Eric Zahnd sued a company that provides VLTs. He says the company has put a couple of the illegal machines in stores in Parkville, where police seized five of the machines last year. The company says the machines are not “betting devices” because lottery results already are determined before the player uses the machine. The case apparently is set for hearing in December.

We understand from talking to Rep. Shaul that the committee also will examine issues such as proposed sports wagering and other things.

We’ve had casinos in Missouri since the spring of 1994. There is ample evidence that at least one part of casino law is badly outdated, allowing the casinos to make large profits at the expense of their home dock cities, veterans, and others. And there are some serious questions about proposed sports wagering legislation.

Speaker Haahr has taken an important initiative and members of the committee and members of the legislature next year might be asked to exhibit courage during an election season in the face of a politically-powerful industry to tilt the tables back to a more fair level for the all of the people of Missouri rather than thirteen businesses.

There is nothing wrong with casinos making a lot of money. The problem is how they keep it. And after a quarter-century, it’s time for a fair but critical look at an industry that seems (from this perspective at least) to have only one goal: to take as much money out of Missouri as possible—by obeying the law. But are laws passed in the early 90s valid a quarter-century later?

They are to the casinos, who correctly note they are obeying laws and regulations. But are they fair to the people who elect members of the legislature to watch out for the welfare of all of the people of Missouri?

Speaker Haahr has appointed the committee to answer that important question.

Sometimes you miss a turn

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—and you wind up in part of a long-ago Missouri political embarrassment.

I was headed back to my Illinois home town of Sullivan for a brief visit a few weeks ago when I missed the entrance to I-72 from Highway 54 and wound up in Griggsville, Illinois, a small town of about fifteen-hundred people that fifty years ago, or so, was linked to Jefferson City because of an event that some people in Griggsville and elsewhere thought was a major scandal.

Whatever you want to call it, the incident made national headlines—even in the New York Times. The incident/scandal came to mind as I saw the big sign painted on the wall of a downtown Griggsville tavern, just around the corner from city hall. The incident was known in Jefferson City—and Griggsville— as the Great Purple Martin Massacre. Griggsville had started calling itself the “Purple Martin Capital of the Nation” just two years earlier. At the time it was the home of Trio Manufacturing Co, the nation’s leading producer of Purple Martin bird houses.

This is the story, then, of how a little Illinois town and Missouri’s capital city suddenly had a lot in common.

It was the summer of 1967, a usual hot and muggy Monday night in the heart of downtown Jefferson City when five men armed with shotguns invaded the grounds of the Executive Mansion, ready to kill. It was August 21, fifty-two years ago today.

Governor Hearnes had been bothered for a month or more by smelly, noisy, roosting birds in the trees around the mansion, His spokesman told New York Times reporter Douglas Kneeland (whose career later included coverage of somewhat larger stories such as Charles Manson’s murders, Patty Hearst’s kidnapping, the Kent State shootings, Richard Nixon’s “Saturday night massacre,” the firing of special Watergate prosecutor Archibald Cox, and four presidential campaigns), that Hearnes “said to a sergeant in the State Highway Patrol who was on duty at the mansion on Monday, ‘Let’s try to do something about these birds.’”

The sergeant apparently took that to mean the governor had ordered a “hit” on the thousands of noisy starlings, maybe as many as ten-thousand, around the old white-painted mansion (Betty Hearnes later led the effort to wash off decades of paint so the beautiful brick could be seen). The word was passed along to Stan Diemler, the assistant to the director of the Department of Planning and Construction, who recruited two other employees, Roy Renn and Earl Campbell. They invited two other state workers, Ed Plogsted and Larry Jarrett to go starling hunting. This wasn’t the first time shotguns had been used to encourage starlings to find other roosting places. Diemler had consulted with the Conservation Commission on previous occasions and had been encouraged to poison the birds.

“Last time we tried poisoning them we didn’t kill any birds and just killed six pet squirrels,” he said later.

The shooting started about 9 p.m. Street lights provided limited visibility of the clusters of birds on the limbs above the men. About one-hundred shots were fired into the trees and about 2,000 birds dropped to the ground. But, said the spokesman, “In the course of the shooting, a little old lady called a state biologist who was a neighbor of hers and said someone was shooting those lovely birds.” The biologist showed up, got the killers to stop shooting, and started looking at the carcasses.

Not a single starling was found. The birds were Purple Martins, most of which were hauled away to be cremated. But some were turned over to the Missouri Department of Conservation, which confirmed that the five men had murdered birds protected by state and federal law and international compacts.

“It’s a sad story. I just wish to hell we could redo the whole thing,” the spokesman told Kneeland. “We made a mistake and we’re sorry. The Governor regrets this thing more than anyone else at the present time. He never would have condoned the shooting of Purple Martins. Nobody is his right mind would, particularly since we had a wet spring and there are a lot of mosquitoes around here.

You know, this has been done for several years previous to this. It has been S.O.P., standard operating procedure. Now the question has arisen in our minds as to whether we have been killing starlings all these years or Purple Martins.”

National umbrage made itself felt almost immediately. The National Audubon Society Executive Director Charlie Callison, a former director of the Conservation Federation of Missouri, admitted the birds do migrate in large flocks about that time of year. But, “If their droppings are offensive to anyone, all they have to do is call upon the local fire department to chase them out of the local trees with water from a hose line.”

Truth to tell, Purple Martins and Starlings can be easily confused, particularly in the dark, especially by amateur bird observers (as opposed to the more serious bird-watchers). Purple Martin Place, an internet site that advocates for the Martins, says they’re sometimes confused with Tree and Barn Swallows and European Starlings.

The European Starlings are darkly colored with some feathers of iridescent green or purple. Purple Martins are “blackish” colored. Males are “blueish-blackish” while females have chests that are creamy colored or grayish. The most distinguishing feature is the beak.

The European Starling beak is “long pointy and deadly…designed to unearth ground dwelling insects…bright yellow in color in both males and females. The shape of the head is more narrow and longer.”   The Purple Martin beak is “ALWAYS dark colored and much shorter with a downward curve…much wider at the base as it is designed to catch insects while flying.”

Within twenty-four hours the incident had gained national attention. Federal Game Management Agent John Hague, who lived in St. Joseph, was ordered to start a federal investigation.

Letters began to pour into Jefferson City from individual bird lovers and bird advocacy organizations demanding the heads of the shotgun five.

“Yes,” said Cole County Prosecutor Byron Kinder, “I’ll file charges,” a statement that quickly put long-time Magistrate Judge O. Lee Munger in the spotlight. “Let’s have a hearing,” he said.

The hearing November 15 was, as you might expect, a colorful event, highlighted by testimony from M. D. Anglin of Berryville, Arkansas, who once described Berryville as being “about eight miles, as the crow flies, to the Missouri line,” an interesting observation for the President of the National Association for the Protection and Propagation of Purple Martins and Bluebirds (NAPPPM&B), who claimed he had “fooled around with Purple Martins and Bluebirds” for 56 of his 62 years. He disagreed with the defense that Purple Martins had been known to break tree limbs. “Never heard of it before in my life,” he said. He maintained the only way to keep Purple Martins from flocking into a tree was to “cut the tree down,” a comment that prompted Kinder to protest, “But, Mr. Anglin, only God can make a tree!”

Anglin complained that man had spoiled nature with pesticides, insecticides, and even birth control pills for birds. He charged that most people won’t know anything about birds except that they have feathers and can fly. Personally, he said, he would rather clean up after Purple Martins and do without the mosquitoes they eat. As for Starlings—they’re so bad that even cats wouldn’t eat them.

“I don’t want to cut their throats,” he said referring to the five defendants. “Or I don’t want to see them shot because they didn’t know the difference between a Purple Martin and a Starling. If you shot everyone who didn’t know the difference, you’d have one big funeral.”

Munger and defense attorney Bud Wilbers hoped to keep any mention of Governor Hearnes out of the proceedings. But Anglin, who called himself “a fellow Democrat,” said he’s heard all kinds of reports about the killings, even that the governor——

But shouts from the dozen spectators, the two lawyers, and the judge cut that part of his testimony short.

Wilbers withdrew the earlier “not guilty” plea from the five shooters, who pleaded “guilty,” although Wilbers doubted Kinder could have made much of a case because it could not be determined which of the five men actually killed or wounded all those birds. Besides, “the defendants felt a moral obligation” not to “hide behind the law.”

Kinder, who had a bit of a flamboyant side at times, argued that the honest intentions of the men made no difference and that they should have looked into “what species they were dealing with” before they started shooting.

Munger wanted to know three things “for my own conscience” from the accused killers. Had the men been acting on their own or at the request of “someone else,” if they knew the birds were Purple Martins, and whether they would have shot them even if they had known it.

Diemler said “someone else’ had made the request. He said he decided to use shotguns because “this is the way it was done in the past” in getting rid of starlings. And, no, he wouldn’t have shot the birds if he’d know they were protected by law.

The five threw themselves on the mercy of the court. Munger find each of them fifty dollars plus $12.10 in court costs.

Among the onlookers were Thomas Coulson, the editor of the Purple Martin Capital News, published in Griggsville, who brought with him Wayne Bradshaw and George Mobus, a photographer and writer for the paper. They described themselves as representatives of the Griggsville Wild Bird Society, which had a membership of 12,000. He described the organization as having a “Madison Avenue approach” to selling the concept of protecting wildlife.

“We thought by this time in the Midwest everyone knew the difference between a Purple Martin and a Starling either by sight or sound,” he lamented. “It will take years again to build the martin bird society in this area.”

He found Munger’s judgment unsatisfactory. “If I went out and shot a duck that wasn’t in season I’d be fined $25 or $50 for each duck I shot. But here we had 2,000 federally protected species slaughter and all it cost them was $50 for the whole lot.” He considered the possibility the case could be prosecuted by federal authorities (it wasn’t). And, in noting that the birds are protected by compacts with other nations, “It could go as far as the United Nations.” It didn’t.

Retired Presbyterian minister A. B. Jackson, in his weekly column in the Jefferson City Sunday News and Tribune, observed a couple of weeks later that various groups were demonstrating for their rights in those days and “I suppose the purple martins would have liked to have some rights, but somehow they didn’t seem to have. The ‘purple martin incident’ is over, and a lot of folks would like it to be forgotten, but it leaves some unanswered questions. Such as, who ordered the shooting and why didn’t he come forward and take the blame? When someone said at the trial that the only way to get rid of the birds was to cut down the trees, someone remarked, ‘But only God can make a tree.’ True, but it is also true that only God can make a purple martin and it will take him some time to replace the 2,000 which were killed.”

For months after the trial, Governor Hearnes’ office received The Purple Martin Capital News, which had covered the massacre as most newspapers cover major wars. Prosecutor Kinder, who once opined that his knowledge of birds was not very extensive although he felt he could tell the difference between an ostrich and a hummingbird, also received gifts for several months, including a stuffed bird.

The incident appears not to have caused lasting damage to the major participants. Hearnes was elected to a second term as governor. Kinder became a widely-known circuit judge. Diemler later was a deputy sheriff and then Cole County Clerk. The incident is remembered, if it is remembered at all, as one of life’s embarrassing moments, although Purple Martin lovers would never dismiss it that lightly.

And Griggsville, Illinois, remains a small town about sixty miles west of Springfield, a town whose streets are lined with Purple Martin houses including a 70-foot tall, 562-apartment complex for the birds. Trio Manufacturing, founded in 1947, was a leading maker of television antennas until founder J. L. Wade started building Purple Martin houses and selling them throughout the nation. Wade, by then 93, sold his company—then known as Nature House and Nature Society, in 2006 to Erva Tool and Manufacturing Co., of Chicago. Production of Purple Martin houses ended in Griggsville in March of 2007 and the twenty-two employees were laid off. Erva today makes a lot of metal lawn and garden equipment, still makes metal Purple Martin Houses, and “the World’s Greatest Squirrel Baffles” (that’s the real name) to keep squirrels out of bird houses. And the company ships directly from its factory. No Amazon involved.

When I told the folks at the Griggsville City Hall I was from Jefferson City, Missouri it didn’t cause a stir. They hadn’t heard about the connection between Griggsville and the big state government scandal in Jefferson City so long ago.

It’s a nice, clean, little town just off I-72. You’d like it. And I bet if somebody says Griggsville is for the birds, the folks there would smile and say, “It sure is.”

Governor Mike and First Lady Teresa Parson have moved to temporary quarters while a much-needed extensive renovation and repair is made to the Governor’s Mansion. One nice touch during that effort might be to add a Purple Martin house to the place.   Have a little dedication ceremony for it. Invite the mayor of Griggsville. I bet he’d enjoy it.

(Photo credits: Griggsville—Bob Priddy; Mansion—Missouri Secretary of State; Purple Martin—Audubon.com)