Monday, May 23, 2016

RANDOM MONDAY MUSINGS

The tragic Freddie Gray case in Baltimore will go on and on.  It has already surpassed OJ in one area, race-based blather that has nothing to do with the merits of the case.  Somebody explain the standard of proof in criminal cases to these people! I'm all for racial grievances being aired but "red-lined" neighborhoods don't have a Hell of a lot to do with the evidence in any particular case.

Draymond Green didn't do anything that requires suspension.  It's obvious to me he was trying to jump again, while falling backwards.

SCOTUS has developed a strategy for dealing with just 8 members. As a body, they are sending clear signals to the Senate that "You're not gonna like what you see as long as we're set up like this."

Good News for local folks:  The applicants for Judge Vahle's spot are so good, the administration of justice can't lose.  Going to get a decent person and good legal mind, no matter who is selected.  But Judge Vahle's gonna be missed.

Jorge Soler is going to be a fine big league player but he is struggling now.  Next five or six games, makes sense to platoon Baez and LaStella at 3B and let Bryant play LF.

Been reading about how Google is going to swamp Apple in the application of Artificial Intelligence.  The tech writers make a lot of sense with this argument.  Yet Warren Buffett finally bought some Apple Stock.  Doctor, I get these terrible headaches.......


Saturday, May 07, 2016

LOVELACE II: A TIME FOR CIVILITY

Today I would like to discuss the community impact of the Lovelace case and issue a caution.

Under the "6° of Kevin Bacon" theory, no one has more ties to this case than I do. No need to list them here.

Naturally, as a veteran trial lawyer, I have opinions about what I know of the evidence, the performance and decisions of the attorneys for both sides in the last trial and even the verity of some of the comments of the discharged jurors. None of that matters. I keep those opinions to myself.  The only opinions that are going to matter are the collective conclusions of the jury that is impaneled when the next iteration of this case goes forward.

All of which gets me to the basic point. In all manner of public places and social media, local people, good people, solid, respectable people chose to take all kinds of positions as to the guilt or innocence of the defendant or even as whether the case should have been charged. There were even opinions about the ability or credibility of certain out-of-town experts and the performance of some of our local policeman. There were plenty of rumors about the motivation for the case going forward.

Folks, none of that is worth a pitcher of warm spit. 

Could we all agree on this much?: The process, brutal though it may be, is going to have to run itself out. It doesn't matter what we think of the merits of the case or the wisdom and using resources on these particular facts or what we think of the decedent's personality or what we think of the defendant's personality. It does not even matter how sympathetic and heartrending the impact is on the defendant's four children or the decedent's mother. The only thing that matters in the final analysis is the evidence that is admitted in the court case and the conclusions this next Jury will reach about that evidence.

So, how about this? Let's not fight with each other about this case. I have two friends who are also friends of one another. They are on opposite sides of the "guilt or innocence" question and their positions have strained their friendship. I know of other examples of the exact same thing. This is as unnecessary as it is sad. Our opinions don't matter. There is not going to be a public plebiscite on this, ever. There is going to be, at some point, an orderly the trial and a duly rendered jury verdict. Our opinions are without effect on that process.  This is true whether they comments are on web boards, letters to the editor or bar arguments.

Since our opinions are completely superfluous to the process, why should we let them disrupt our community, our friendships and our goodwill, one to another? For those who give support and comfort to Mrs. Lovelace, keep doing that. That does not require arguing with or debating anyone else. For those who believe that Cory's survivors deserve the vindication a conviction might deliver, comfort those survivors in your own way. That does not make you an enemy of Mrs. Lovelace or her supporters.

In short, I saw the first trial of this case tear at the fabric of our community. There was bitterness in the wake of that trial and there was disharmony in our town. There is no need for that. The process is the process. Illinois Law and the Constitution dictate that. You do not get a vote on this and neither do I and that is as it should be. 

I respectfully suggest we celebrate the inalienable right of an accused to be judged by a jury of his peers and avoid debate or argumentation on the merits, one with another. That debate gains us nothing and puts at risk a quality of life that we've all built together in our fine community. 


Under all circumstances, be good to one another.

Tuesday, February 16, 2016

SO, WE BREAK UP THE BIG BANKS--THEN WHAT, BUNKY?

"Big" is bad.

"Small" is good.

Why?

When we are taught to all be good little capitalists, the purpose of the drill is to build our enterprise to dominating size, success and stated capital account. Those crafty enough, energetic enough and visionary enough to actually get there and become a huge success are rewarded with serial antitrust investigations penalties and injunctions. For the most part, their fault is having pursued the American dream too freaking successfully.

This has become so stylish that it is no longer confined to the United States of America. A basic legal search for EU antitrust and monopolization prosecutions will yield many more Microsoft contacts than for the United States Department of Justice. Old Billy might have started in a garage or in his mother's basement, or whatever the folklore is, but when he got to be a financial juggernaut, he was officially assigned to the Axis of Evil.

All of which circles me back to the current level of white noise about breaking up the "big banks."

If you haven't already done so, do yourself a favor and read "Too Big to Fail" and "The Big Short". (The big short film will not tell you what you need to know).

While it is very nuanced, the essential ingredient in one third of the world economy being vaporized over a period of about two months is not "greedy people taking out mortgages they could not afford…" That is a very nice, Puritan, blameworthy explanation for the economic downturn and it is also a little bit like blaming heroin addicts for the violent behavior of the Mexican drug cartels.

No, the essential ingredient for the collapse of the economy was the activity of brokerage firms (now, try to follow this) SELLING WORTHLESS DEBT IN THE SECURITIES MARKET AS A "FUTURE."

Please understand that this kind of market-making is not a banking function at all. It's a securities function, a brokerage function, if you will.

Until late 1980s traditional banking, that is "technically fractional reserve banking", such as making loans and  managing accounts, perhaps even overseeing trusts, was completely separate from brokerage, no matter the size of the bank. After the change in the law allowing the banking function and the brokerage function to occur, essentially under the same roof, bank size naturally grew. This is an obvious outcome because the bank was simply doing more tasks. As the demand for gambling propositions and hedging increased, the market-making function for new investment vehicles increased and, frankly, the maturing bank/brokerages became more aggressive.

But the important thing to understand is that the devil in all this was not SIZE. It was that the same people were creating markets for this junk who were deciding what junk to fund.

In short, simply breaking up the banks and making them smaller accomplishes nothing except inconvenience for the banks' hopefully successful and honorable customers. The mischief in "securities banking" is the blend of the function of marketer and financier of the market.

Literally from about 2006 to about 2008 major brokerages, linked to banks were able to cover up the weakness in all the deliciously named securities vehicles that were involved in what are generically called "credit default swaps." There were literally about 50 people in the United States who recognized that the debt market related to real estate was going to crash, taking real wealth with it, while the rest of us utterly lacked the sophistication to get in front of such a path.

Lives were ruined by ridiculously irresponsible brokerage practices and access to literally trillions of dollars to cover up those failures as the securities wheezed. None of that had anything to do with size. It had everything to do with the merger of two functions which are inherently separate, one from the other, and intended to be part of an often effective system of "checks and balances."

Trust me when I tell you that this is a grossly oversimplified version of the meltdown in 2008 but it is also essentially truthful.

When anybody tells you: "I intend to break up the big banks!," Please ask them the following two questions:

"What are you going to do next?"

"How will you divide their assets, divisions and departments?"

It is in those two questions that the rubber meets the road. A mere reduction in size is a silly, destructive and futile gesture

Sunday, February 14, 2016

RANDOM MUSINGS ON A BLEAK SUNDAY

Golf announcers must all have skipped basic physics.  "How much does this putt break, Joe?"  

"Maybe half a ball, right to left."

(Guy in tower) "Depends on the Speed"

Ya Think???


God Rest Justice Scalia.  I will not out them but he had some friends from here in Quincy whose names would surprise you.  He was known to sneak into town on occasion.

Interesting turn of events in the GOP Debate Last night.  Rubio throws out the challenge that Cruz doesn't speak Spanish.  Cruz offers up a few words of Sophomore Spanish.  The best Spanish speaker on the stage smartly and purposely remains silent.  Bush may be wheezing, but he's not stupid.

Illinois has a strong concentration of the most skilled child care/child welfare workers in the Nation.  For years they have been employed by system which defeats their undeniable skill and dedication.  Now, a year into Rauner, more or less, we have not only a screwed up system but a comprehensively underfunded, screwed up system.  Warning:  If you're going to be a child in Illinois, be a rich one with two doting parents.  Otherwise, you're pretty much screwed.

This Sam McGann advertising is interesting.  He is blasted as "Madigan's favorite Senator".  So, If I have this correct, it is OK for him to have lied about being, not only a veteran at all, but a COMBAT VETERAN, but it's disqualifying to be in favor with Mike Madigan (which is probably a crock anyhow).  My brain is clearly out of the mainstream.

Thursday, February 11, 2016

SOMETIMES THE RUSH TO JUDGMENT IS CORRECT: AND I AM NOT

I was wrong.

I said I believed that a certain candidate in the Republican Party had the character and integrity to admit her mistake in running a scurilous, disreputable and, in at least three respects, inaccurate television ad

In my own way, although I have no involvement in Republican politics, I vouched for her decency and excused the placement of this ad by assuming her better judgment had been overwhelmed by campaign staff and consultants. I argued that she would likely promptly issue the apology which was due for this conduct.

In writing what I wrote earlier I was well aware that very balanced and decent brothers of the bar had written that the placement of the ad, itself, was, for want of a better term, "disqualifying."

Because every human makes mistakes and because I believe firmly in redemption I held out not only the hope but the expectation that this person I know to be good and decent, would make the situation right. Several of my friends, quite publicly, told me, each in their own way, that I was being either naïve or stupid.

To explain myself,  I am more than just an old guy who practices law just for a living. I am a committed member of the brotherhood and sisterhood that makes up the national bar, the folks who function in this country every day as, if you will, "ministers of Justice".  This is as much of me as my other roles, husband, father, grandfather, veteran, any  of them.

As I noted, I'm also an old human. In the modern age we have, as applied to lawyers, "disciplinary rules." When I began practicing our guide star was not disciplinary rules, which only describe minimally acceptable conduct, our guide star was document known as the "Canons of Ethics". Two of the canons which of always stuck with me were open parents and I will paraphrase):

"Look kindly upon the needs and travails of brother lawyers, their widows and families."

"Avoid any conduct or expression which would negatively impact the public's perception of the administration of justice."

Again, because I am old, I remember when the members of the local bar quietly and privately dug deep into pockets for a brother facing an emergency situation. I also remember a number of us taking turns stopping by the office of a lawyer who was quietly going blind to read his mail to him in order that he did not miss any obligations. I remember more than once setting up a schedule for evening visit with a homebound colleague fighting a dread disease so that he had some company every day.

Yes, everybody loves to bash lawyers and talk about how they are inquisitive, money loving, self – centered sharks.

But that is not the bar I know. The general bar in Western Illinois is charitable, kind, involved, concerned and conscious that the whole of us is far greater than the sum of its parts.  Folks, the geist of our group is extend kindness and courtesy to one another, wherever possible.

It is certainly true that the younger lawyers, those with 20 or fewer years of service, have not witnessed as much of that collegiality as us old guys. Still, we can't read our monthly magazines and weekly updates without being reminded that we are called to increased civility and humanity.Understandably, your reality may be different from mine. When you witness us fighting like cats and dogs in court or when a lawyer tells you that you have no case because your boss spoke disrespectfully to you, that may inform your reality that we are a cold, cruel heartless bunch. For now, you'll have to take it on faith that the history of the bar in Western Illinois is one of enormous civility and humane treatment of our brothers and sisters.

But, you say, "what does that have to do with a political ad."

In my world and in my view the rule of civility and humane treatment proscribes any and all exploitation of human frailty. The law, just for an example, does not permit a job seeker to be examined about prior bankruptcies. Some subject matters are just so personal as to be unavailable as an employment credential. Certainly, politics involves drawing distinctions. This is an area where I am not naïve I have been the author of and the victim of ample "contrast" ads. But the "contrast" ad must be fundamentally true and must bear some rational relationship to the position sought by the parties. If it does not pass both of these litmus tests, then it is just a gratuitous, personal attack and, in my view, substandard and regrettable conduct.

Now, I have said rather boldly that folks make mistakes and that retraction and apology could wash this one out. I even said that I believe strongly in the character of the offending advertiser to do exactly that. Having run for office in the past, I understand the pressures on a given candidate and I can hypothesize how this would happen against the candidates better judgment.   Corrected early, it would have been, in my view, a very exusable error.  Until now, I considered myself a reasonable judge of character.

For an apology and a withdrawal to be effective, there was a very short window of time. When a piece of the type we are discussing is being broadcast on prearranged electronic rota, there comes a time when the information has metastasized to the point where the apology and withdrawal are without effect. In my judgment we have reached that time.

I have seen the letters and social media comments to the effect that the initial decision to run this ad was a "disqualifying event." I have resisted that view. I have held up for the integrity of the person who made the original mistake. I had dreamed on the notion of Abraham Lincoln that "better angels" would prevail.

I like to think I am not stupid. I am often intentionally naïve and hopeful. In this case, my belief in "better angels" has become unsustainable.

My colleagues who took the "disqualifying event" position immediately appear to have been correct. I am not sorry that I am slow to this position. When it comes to my brother and sister lawyers I will continue to look for reasons to view them as high integrity individuals but, in the final analyisis, I got this one wrong. There are a minimum of three lies in the offending piece… And those are just the ones about which I have personal knowledge. There may be more. There's a price to be paid for lying generally and, particularly, for lying about a brother.

As I made clear on social media, I am not involved in either campaign and I do not vote in that primary. Thus, my only interest here is in the behavior of lawyers, one to another, particularly here in Western Illinois.

Having said that, I do know a little bit about what it takes operate the State's Attorney's office from the position of State's Attorney. The holder of that office, to be effective, must be trusted by police, grand juries, the judiciary, other states attorneys, the defense bar and the Atty. Gen.'s office, the county board and the other county officeholders, not to mention the general public who are often asked to testify or provide information in  investigations when I say "trusted" I mean not just in terms of truthfulness but in terms of judgment, soundness of character, if you will. The performance of the office fails without that aspect.

It is with great regret and disappointment that I say a person who would run the subject ad and not quickly recant is unlikely to capture the trust I referenced in the preceding paragraph. It should be obvious I am trying very hard to avoid using the severe words that some other commentators on this issue have chosen.   Still, I can no longer argue with those who have stated this is, indeed, a disqualifying event.

Friday, January 22, 2016

RANDOM MUSINGS ON A FRIDAY AFTERNOON

Monday, trial starts in People v. Lovelace.  There will be NO WINNERS.

Good friend of mine, whom I admire very much, had TKR surgery in Chicago today with his sweet wife by his side.  He will rehab like a Banshee and be back on the golf course in no time but prayers for my friend would be appreciated anyhow.

If the Governor of Michigan has one ounce of empathy left for the people in Flint he screwed with his Emergency Bean Counter, he will seek out the "Secret Weapon" to fix bad water: David Kent.

I understand there was a forum for the two Republican Candidates for State's Attorney Last Night.  I cannot understand how they got through that without addressing: the Uniform Adoption of the Designated Hitter; The proper application of the NFL's end zone catch rule and the expansion of the NCAAF playoffs to Eight.

Recently, I read where someone feared that "all the lawyers" would move out of the Historic District if the Jail was placed out on the East Side of Town.  Some folks watch too much television.  There are about 90 lawyers in town.  Maybe 20 do a good bit of criminal work.  Another ten WILL TAKE a criminal case as an accommodation to good civil client but they'd be happy never taking another one.  Of those 20 private practice lawyers who do a good bit of criminal work, all will tell you it is rare that a paying client is in jail for want of bail.  I think it's safe to keep the restaurants downtown for another week, anyway.


Tuesday, January 19, 2016

MATT HUTMACHER: A HELLUVA RUN


    I am sorry this didn't photo better.  A very good man topped off a very good career recently.  

     50 years of faithfully serving the law, his clients and his community.  He saw combat as a leader.  He helped write the constitution under which we live in this state and he stayed active in local government right up until his retirement.

     Matt is a highly principled, talented guy who would always come straight at you with whatever was on his mind.  

     A great achievement by a great guy...and the best part:  He's still around so his friends can give him grief. ....and we will. 

     Congratulations and GodSpeed, soldier.