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‘Tis the Season to Talk about Religion – Believe It or Not

I just had an interesting conversation about religion with a guy working at my house.

He overheard my end of a phone call with another secular activist about a church-state violation. When I hung up he asked if those were the kinds of cases I take. He knows I’m a lawyer.

“Tis the season for violations of the separation of church and state,” I said lightly, not sure how much he might want to explore the subject or what his feelings might be on it. I’m wary when people I don’t know well bring up the topic of religion. The conversation could go well or it could get very uncomfortable very fast.

“Church and state ought to be completely separate,” he said, “especially in schools when kids are pretty much forced to go along with whatever the class is doing.”

jefferson-separation-of-church-and-state - no religion

 

I couldn’t agree more. It’s not fair to non-Christian schoolchildren to be told by their teachers what to believe about Christmas, which they may or may not celebrate for any number of reasons. For that matter, there are Christian children who don’t celebrate Christmas. There are non-Christians who do celebrate Christmas for reasons other than religion. If a child is doing religion “wrong,” the proper place for correction is home or their place of worship, not a public school.

secular christmas - religion comes in different guises this season

 

One thing led to another, and as the conversation developed he told me he had lots of questions, because the whole “god” thing just didn’t make sense to him. I told him about a certain hissy fit I threw over religion when I was a kid. It has never made sense to me, either.

Then he said that he goes to church, but he doesn’t buy everything the preacher says. Who does? I wonder.

We talked about the notion of a prime mover. I strongly suspect that Aristotle was not the first person to wrestle with the notion of what it was that tipped the first domino and set the whole universe into motion. My response to the prime mover concept is, “Okay, but what made the first mover move? Even St. Thomas Aquinas, one of the greatest philosophers Christendom ever produced, ultimately said that God’s existence had to be taken on faith because there was no proof.

My new friend said he thought it was safer to believe, because what if he’s wrong?

Calvin's wager about Santa. It's the same as Pascal's.

 

“You’ve just described Pascal’s Wager,” I told him. If his preferred deity is omniscient, omnipotent, and omnipresent, why won’t his god know about his doubts? If what he outwardly professed conflicted with what his logical processes and his gut told him, wouldn’t that sort of god-the god our culture is typically familiar with-have a clue?

And furthermore, what if the religion he placed his bet on wasn’t the right one? What if there is some other god that really controls it all? What if there are a lot of gods who control by committee? What if those gods really couldn’t care less what people do – isn’t that the more likely scenario?

Then we talked about using the scientific method to explain things that were only explained in the past by “God did it.” I explained the concept of the God of the Gaps, and how that God keeps getting smaller and smaller with every new discovery and addition to scientific knowledge.

 

god of the gaps - religion plugs holes

 

Finally he confided that he didn’t believe in the Abrahamic god, but he would never admit that to his wife. And, ultimately, that’s why he goes to church.

There are so many of us out there, closeted and questioning.

Come out, come out, wherever you are.

Enlightened Ancestor: Dr. Benjamin West

I can thank my migraines for Dr. Benjamin West.

When I am anxious or don’t feel well, I often do genealogy research to take my mind off things. I have always enjoyed learning about family history, but really got bitten hard by the bug the first time I had cancer, in 1994. I was at home recuperating, on painkillers and other drugs that made concentrating difficult, and I found message boards on AOL that were all about genealogy. And my ancestors were there! I connected with some very distant cousins and compared notes. I started learning more and more about my origins.

It occurs to me that we are all the products of our parents, who are the products of their parents, who were the products of theirs, and so on. Our parents don’t just pass genetics on to us. Even when we disagree about things like politics or religion or how to raise our children, the values of our parents are distilled into us, just like the values of their parents were distilled into them. We find that professions tend to run in families -a  certain branch of the family may tend to be lawyers, writers, preachers, doctors, architects, artists, military, etc.

An obituary notice in a newspaper from 1822 led me to him. He was named as the father of one of my 5th great-grandmothers, a woman whose origins were completely unknown to me before that moment.  The man was phenomenal, and I don’t understand why every generation after him hasn’t continued to hold him up as the pinnacle of the Enlightenment. This guy’s brain was so huge and active I don’t know how it managed to stay confined in his skull.

benj-west

Benjamin West, from the Brown University Portrait Collection

Benjamin West was born in Bristol, Massachusetts in March 1730. I think of him as the Stephen Hawking of his day. His accomplishments in math and science are truly remarkable because he was an autodidact – his formal schooling lasted a whopping three months of his childhood. He was poor and had to borrow every book he read until about 1758, when he managed to find some backers to open a dry goods store. A couple of years later, he opened the first bookstore ever to grace the commercial avenues of Providence, Rhode Island. He managed to pay for the books he so desperately wanted by selling them to other people.

He married Elizabeth Smith, daughter of Benjamin Smith, in 1753 when he was 23.  They were married for 53 years and had eight children, only three of whom survived Benjamin. The 1822 death notice for his daughter, Mary Smith West (wife of Oliver Pearce), in a Providence newspaper, alerted me to him. The death notice that mentioned her father was “Dr. Benjamin West of Providence.” Mary West Pearce died in Fayetteville, NC. Her daughter, Eliza West Pearce, married Dr. Benjamin Robinson, that guy from Vermont who tested out that newfangled smallpox vaccine on his little brother and his brother’s friends and basically got run out of Bennington for his efforts. The science is strong in my family!

Benjamin West was a brilliant mathematician and astronomer. His buddies were the founders of Rhode Island College, which later became Brown University. He loved mathematics and astronomy, and conferred with some truly fantastic minds of his day. He published annual almanacs for Halifax, Nova Scotia and Providence, Rhode Island for nearly 40 years. He didn’t have the formal schooling necessary for good academic chops, though, and before he opened that dry goods and book store, he failed at operating a school. He tutored students privately for all of his adult life.

Astronomical Genius

In 1766, something would happen that ultimately would reverse his fortunes and open some gilded doors for him. A comet appeared in the constellation of Taurus on the evening of April 9. Being a good astronomer, Benjamin took careful measurements. The next day wrote a letter to an astronomer named John Winthrop who was at Cambridge College (now known as Harvard University). He had never met or corresponded with Winthrop, but was so excited about his observation he simply had to share it.

Providence, April 10, 1766

Dear Sir:

For the improvement of science, I now acquaint you, that the last evening, I saw in the West, a comet, which I judged to be about the middle of the sign of Taurus; with about 7 degrees North latitude. It set half after 8 o’clock by my watch; and its amplitude was about 29 or 30 degrees. Nothing, Sir, could have induced me to this freedom of writing to you, but the love I have for the sciences; and I flatter myself that you will, on that account, the more readily overlook it.

I am, Sir, yours,

Benjamin West

He and Winthrop became great friends and continued to write each other. For the rest of their lives they would share observations about the night sky.

1769 Transit of the Planets

Johannes Kepler and Edmund Halley figured out how to apply the theory of parallax to determine the distances between astronomical bodies.  With both Mercury and Vanus predicted to pass between the Earth and the Sun in 1769, astronomers world-wide were anxious to test the theory . Since this was the first really good opportunity to view the transits of both inner planets since Kepler’s original accurate prediction in 1627 of the 1631 transit, everyone in the field of astronomy was excited. Captain Cook would famously observe the 1769 transit of Venus from Tahiti while on his ill-fated circumnavigation and while bringing European diseases and disharmony to the South Pacific. At the time of the last transit of Venus in 1761, Charles Mason and Jeremiah Dixon, who had just finished their survey of the boundary between Pennsylvania and Maryland, had traveled to the Cape of Good Hope to observe it. All of these men used astronomy as an important part of their lives – navigating the oceans and surveying the land required precise measurements, and measurements started with the stars.

benjamin-wests-1769-telescope

Telescope used by Benjamin West, at Providence, Rhode Island, to observe the 1769 transit of Venus. Ladd Observatory, Brown University

There was no telescope in Providence in 1769. Benjamin West, Stephen Hopkins (the signer of the Declaration and great-grandson of the Mayflower passenger) and the Brown brothers – founders of Rhode Island College, later known as Brown University – were determined to see the phenomenon, though, so they managed to import a telescope from England at the incredible expense of 500 pounds.  They set up on the outskirts of Providence. Transit Street in Providence is named after the spot where they viewed the transit on June 3, 1769. There are photos of the telescope on the Brown University website – the school still has it.

benjamin-wests-diagram-of-the-1769-transit-of-venus

Benjamin West’s diagram of the transit of Venus, 1769, from the Ladd Observatory, Brown University

As was his habit, Benjamin West made careful measurements of the transit. He published a tract (and dedicated it to his friend Stephen Hopkins) about the event. A copy of the tract made its way to John Winthrop at Harvard, and on July 18, 1770, Benjamin West – the man with only three months of formal education – was awarded an honorary Master of Arts from Harvard. Here’s the text of the notification letter from John Winthrop:

Cambridge, July 19, 1770

Sir —

I have the pleasure to acquaint you that the government of this college were pleased, yesterday, to confer upon you the Honorary degree of Master of Arts; upon which I sincerely congratulate you. I acknowledge the receipt of your favour, and shall be glad to compare any observations of the satellites.

Yours, &c.

John Winthrop

 

American Academy of Arts and Sciences: the American Philosophical Society

That same year, Benjamin West was unanimously elected to membership in the American Philosophical Society in Philadelphia – the American colonial version of Great Britain’s Royal Society. He would meet another author and publisher of almanacs there: a fellow named Benjamin Franklin.

Benjamin West was still primarily a merchant at this time, and the Revolution was on its way. When full-blown war finally arrived, commerce dried up. He went to work manufacturing clothing for the American troops. He continued his studies and his correspondence with the other great minds, though.

Mathematics was Benjamin’s first love. In 1773 he wrote to a friend in Boston of a theorem he had developed to extract “the roots of odd powers” that was probably his greatest contribution to the field of mathematics. That’s right – he discovered a math formula that I can’t even begin to hope to understand, but other really smart people who could math really well understood it and lauded him for it. When he finally explained his theorem to other math geniuses in 1781, the American Academy of Arts and Sciences not only published it in one of their earliest journals, but unanimously elected him to membership and awarded him a diploma. It was his second honorary academic degree, and he still supported by only three months of formal education. The theorem caught the attention of the European mathematical geniuses, who, giddy with discovery, also published it. Benjamin West, already pretty cool, became seriously hot stuff.

He didn’t stop at math and astronomical observations, though. One of the biographies I found explained a physics problem he cogitated upon for more than two years in conjunction with John Winthrop and a Mr. Oliver. It had to do with the properties of air in a copper tube that was then put into an otherwise airless container. The qualities of invisible gases – basically, the scientific understanding of the very concept of the physical nature and properties of “air” – was in its infancy. Our ancestor speculated about the attractive and repulsive nature of the tiny particles that made up the matter of air – what we now call its molecules – and how they would behave under different conditions. Gravity, matter, magnetism, and ultimately the behavior of the tails of comets played into his understanding of the question. This is stuff my brain simply isn’t big enough to handle.

Benjamin West’s mind was at the peak of its illuminating brilliance as the world around him heaved. His most important discoveries and writings happened as the American Revolution was about to explode.  By the end of the Revolution he had returned to academic pursuits. He tutored students in math and astronomy. He still wasn’t rich; despite his prominence in academics he never became particularly wealthy. The well-endowed founders of what would become Brown University had not forgotten their friend, though. In 1786, he was elected to a full professorship there.

For some reason he did not begin teaching at Brown for a couple of years. Probably because of his honors and his friendship with Ben Franklin and the rest of the gang at the American Philosophical Society in Philadelphia, Benjamin West was invited to teach at the illustrious Protestant Episcopal Academy there. The name of that school is familiar to members of my father’s family.  Although Benjamin West was the direct ancestor of my Arkansas-born mother, my dad, an Irish-Italian kid who grew up in the Philly suburb of Gladwyne, went to school at Philadelphia’s Episcopal Academy while his dad coached its sports teams. (Insert refrain from “Circle of Life” here.)

Brown University awarded Dr. West his first non-honorary degree, his Doctor of Laws, in 1792. He taught mathematics and astronomy there from 1788 until 1799. Then he opened a school of navigation and taught astronomy to seafaring men. Like Carl Sagan and Neil deGrasse Tyson, this man loved to teach other people the wonders of the universe.

I’m proud of him for another reason, too: Benjamin West was a member of an active abolitionist group in Providence.

I’ve found several contemporary biographical accounts for Benjamin West. They are typical of their time: purple prose and flowery metaphors abound. They all reach one conclusion: Benjamin West was a genius. He was a determinedly self-educated man who contributed considerably to the arts of science and mathematics during his lifetime. He was truly a product of the Age of Enlightenment: a self-educated, self-made man whose gifts and prominence considerably exceeded his bank account.

This discovery of my ancestor Benjamin West is exactly why genealogy research is so rewarding. And given the anxiety-provoking events of November 8, I expect to be doing a lot more of it – in between my stepped-up schedule of political activities, that is.

______

Bibliography:

American Academy of Arts and Sciences, Book of Members  (2016 edition), p. 252. Entry for Benjamin West, elected 1781, Fellow. Residence and Affiliation at election: Providence, RI. Career description: Astronomer, Educator, Businessperson, Book of Members; American Academy of Arts & Sciences, American Academy of Arts and Sciences.

Leonard Bliss, The History of Rehoboth, Bristol County, Massachusetts:  Comprising a History of the Present Towns of Rehoboth, Seekonk, and Pawtucket, From Their Settlement to the Present Time (Boston:  Otis, Broaders, and Company, 1836). Google Books

Bloomsbury Encyclopedia of the American Enlightenment, Entry for Benjamin West (1730-1813), pp. 1096-1097. https://books.google.com/books?id=qZ2yBwAAQBAJ&lpg=PA1096&dq

Louise Hall, “Family Records: Newby Bible”, New England Historical and Genealogical Register 122 (Apr 1968):  125-128, 125.

Martha Mitchell, “Benjamin West”, Encyclopedia Brunoniana (1993). https://www.brown.edu/Administration/News_Bureau/Databases/Encyclopedia/search.php?serial=W0170

John Chauncey Pease, John Milton Niles, A Gazetteer of the States of Connecticut and Rhode-Island:   (Hartford:  William S. Marsh, 1819), 331-333. Biographical entry for Dr. Benjamin West.  Google Books.

Unattributed, “Biography of Benjamin West, L.L.D.  A.A.S.:  Professor of Mathematicks, Astronomy and Natural Philosophy, in Rhode Island College – and Fellow of the Philosophical Society of Philadelphia, &c.”, The Rhode Island Literary Repository Vol I, No. 7 (October 1814):  137-160 (337-360), http://books.google.com/books?id=HLQRAAAAYAAJ.  Google Books.

Benjamin West Papers; Rhode Island Historical Society Library, 121 Hope Street
Providence, RI 02906. http://www.rihs.org/mssinv/Mss794.htm.

The Crime of Mental Illness

Arkansas’s insanity defense (Ark. Code. Ann. 5-2-312) has two prongs. A person can claim that he was (1) unable to conform his conduct to the requirements of law due to a mental disease or defect, or (2) unable to appreciate the criminality of his conduct because of his mental disease or defect. Not every mental illness will qualify for the insanity defense. In fact, most will not.

“Not guilty by reason of insanity” is a wholly separate issue from the mentally incompetent defendant who is medicated to the point that he is able to stand trial and participate in his defense in the first place. Likewise, the state is supposed to medicate insane death row inmates so they can appreciate why they are being killed by the government.

The prosecution gets to pay for the psychiatrist, and it only pays for one – generally, the same one who regularly testifies in cases where the insanity defense is raised.

While everyone has a right to counsel under the constitution, everyone does not have a right to independent expert testimony. That’s reserved for the wealthy or the defendants who have a dedicated, persuasive lawyer.

We can generally guess what a psychiatrist called regularly as a witness by the state and paid regularly by the state is most likely to report. Even the most professional and unbiased experts in such a situation will be tainted by the appearance of impropriety.  Consider the correlation: police officers who know exactly how to phrase their testimony so that the facts – whether or not the officer actually witnessed them – appear most damning. It happens this was in child abuse and neglect cases, too. Case workers are taught to phrase their testimony so that the parent appears in the worst possible light, regardless of actual facts.

If he’s wealthy or lucky, the defendant will be able to find the funds to pay for another mental evaluation – if he’s capable of cooperating with such an evaluation and capable of realizing that a second opinion would be in his best interest. Sometimes – again if the defendant is lucky – a judge will agree to allow state funds to pay for that second expert opinion. IF the judge permits a second expert, the defendant’s funds are limited. The state’s funds, on the other hand, are not. This is yet another situation where poverty means a fair trial may be out of the reach of the ordinary criminal defendant.

American law treats insanity as though it’s an either/or condition. If the defendant was insane at the time the act was committed, he is supposed to be found not guilty and sent to a mental institution. He can only get out by proving he is no longer a danger to anyone.

(Of course, when a person who is acquitted by reason of insanity gets out of the mental institution, his mental health treatment is controlled by the tender mercies of the insurance companies unless he qualifies for Medicaid.) To be acquitted, his insanity has to prevent the defendant from being able to appreciate the criminal nature of his conduct.

Since someone who is psychotic or delusional may have believed that he needed to kill or seriously injure another person, this measure of culpability falls short of what it needs to be. The notion of “personal responsibility’ gets triggered. If the defendant knew he was killing or injuring someone, no matter how his delusion played into his decision to act, he is considered capable of forming “culpable intent.”

In Clark v. Arizona (2006), the U.S. Supreme Court addressed this issue to the great detriment of the mentally ill. The bottom line was that the paranoid schizophrenic who shot a police officer was held criminally responsible, and was not allowed to submit evidence of his overall mental state. This defendant in that case believed that aliens had taken over his town. He shot an alien that turned out to be a police officer, but since he knew shooting a REAL police officer was wrong, he got a 70 year prison sentence instead of mental health treatment.

And we call that justice.

The United States has a habit of incarcerating the mentally ill. The reasons for this are complex, but boil down to a lack of understanding in the population at large combined with a serious lack of mental health care for many people who need it.

My family is typical. I have mental illness in my family, and despite the love other family members have for the person afflicted, they don’t educate themselves about depression, bipolar, delusions, or psychosis. They consider the mentally ill person’s actions to be a matter of personal responsibility.

This attitude is not unique to my family. It is the norm, not the exception. We are all responsible for our own actions, right? And if we can appreciate the fact that X conduct is criminal, but we engage in that conduct (no matter how our psychosis or delusions may have convinced us that such conduct was necessary), then we should be punished for it – right?

Someone who is actively experiencing psychosis is not responding to the stimuli the rest of the world responds to. Sure, there’s the normal stimuli, but because of the psychosis the person’s judgment is severely impaired, and he may well be experiencing more stimulation than a person who is not psychotic. Now let’s add delusional thinking to the mix. Not only is he responding psychotically to his environment, he can’t interpret what he sees appropriately.

Delusions can be mild and relatively harmless, or they can be severe and pervasive to the point that they control everything the mentally ill person says or does, including his personal interactions and his crisis response. (Delusion and psychosis are not the only severely crippling mental conditions.)

It’s not always apparent that someone is psychotic or delusional. The person may be able to carry on a reasonably coherent conversation, dress himself, drive a car, go out in public. One wrong response to his environment may be laughed off as “quirky” or “nutty,” people witnessing it may roll their eyes or cross the street to get away from him. But a series of wrong responses to his surroundings may result in disaster for him and for everyone around him. The time between that first wrong response and that series of wrong responses may be a disastrously short crescendo.

Now, couple the “personal responsibility” attitude of the ignorant general public with someone who appears to be rational but is actually psychotic and/or delusional. “He was just fine a moment ago” is something we hear a lot, but that is not true in the case of someone suffering from severe mental illness. He may have appeared to be just fine, but in fact his brain wasn’t working any better a moment ago than it was when he made that mistake in responding to something that happened.

When the mistake that results in harm to someone else, American society’s response is to take revenge. That’s what our prison system is – a system of revenge, not of correction or rehabilitation. There is no more mental health treatment in prison than there is in the public at large – in fact, there may be less. A series of lawsuits 40 years ago closed most of the mental institutions in this country, and insurance companies won’t pay for long-term in-patient care for the most part. Historically, very few insurance policies have paid for treatment of mental illnesses. Unless they qualify for Medicaid, patients’ families often must pay out of pocket or their loved ones go untreated.

Consider this: prior to the Affordable Care Act, most health insurance policies did not cover mental health at all. Anyone with one of those policies not covering mental health treatment had to pay out of pocket or get assistance from Medicaid if they had a mental illness, even if it was situational depression.

What treatment insurance companies were willing to pay for was laughably inadequate. Even now, insurance companies may approve a series of ten visits to a therapist, but a prescription and ten visits to a mental health counselor aren’t going to “cure” mental illness.

That’s because mental illness is not an infection – it’s a chronic condition. Even under the Affordable Care Act, insurance companies are still in the driver’s seat when it comes to mental health treatment. That means a for-profit corporation is making the decision of whether or not to pay these bills. Which leads me to my next rant in favor of a single-payer system…

Drug Testing: the Wrong Results

Slowly She Dissolves, by Melinda Green Harvey

Slowly She Dissolves, by Melinda Green Harvey

When I was a law student, I took a class on environmental law. One of the subjects I was interested in was contamination by secondary exposure. Direct exposure is obvious and often quantifiable. Indirect or secondary exposure – in the form of things like acid rain or second-hand smoke – was more complex and harder to quantify and prove. I was also fascinated by the possibility of false positive and false negative results from the testing methods available at the time. These tests were being used to fight coal-fired power plants and to hold cigarette manufacturers liable for the lung cancer of non-smokers. They were also being used to ferret out pot smokers and recreational users of certain prescription medications.

It was 1988. The Reagans were in the White House. Nancy’s “Just Say No” campaign was wildly popular among people who had no clue about how teenagers test boundaries. That year saw a wave of employers demanding that their employees take drug tests either before beginning employment, after an accident, or randomly. Aside from the 4th Amendment issues (which only applied to the government employers), dissenters raised objections to false positive test results that could damage not only someone’s career but their reputations and future employability. Being a child of the 70’s and 80’s, I was at least passingly familiar with the concept of the “contact high.” Could a person’s off-duty social associations cause him to lose his job? I decided to investigate the matter.

I researched the science, not just the law. I learned that something as ordinary as a poppy seed bagel or over-the-counter antihistamines could skew test results. There was no way to differentiate between someone who had ingested the substance illicitly or simply gone to a concert and been assigned a seat near people who were smoking weed. The science could test for the presence of the chemicals, but could not say how they had gotten into the person’s body or whether the person was feeling the effects of the substance at the time of testing.

Five years later I had a very active family law practice. I handled quite a few employment law cases, too. Drug testing came up over and over again. Knowing what I did, I discouraged clients from attacking each other for drug use unless it was seriously interfering with parenting responsibilities – and not just because of the false positives and false negatives. Usually if one parent partakes, the other parent will have been exposed, if they didn’t themselves indulge. The employment cases were the worst, though.

All it took was an accident that was someone else’s fault to trigger a drug test under most employers’ policies. I remember a truck driver who hired me who said yes, for the first time in 20 years he had smoked a joint at his college reunion a few days before the accident. He wasn’t high when it happened, but lost a $70,000/year job when a woman driving another vehicle ran a stop sign. He swerved to miss her and ended up in a ditch. He was fired because of the drug test, not because of the accident.

I remember the 60+ year old woman who was told she had failed a pre-employment drug test. This woman had been out of work for more than a year because the plant where she had worked closed. She had had to give up her home of 40 years and move in with her daughter. She was looking forward to independence again. Our investigation revealed that the test samples had probably been switched accidently, either at the lab or by whoever had collected the samples. A long-haired hippie-type person had the job she had applied for, and in a fit of profiling she just knew he was actually the one with the drugs in his system. Her preacher, though, in whom she had confided the devastating test results, had condemned her and was counseling her to get help for her non-existent addiction. She was humiliated and literally sick over it.

By 2000, there were lots of products on the market specifically marketed to people who needed to beat a drug test. Substance abuse was an issue in at least half of the custody cases I tried, and maybe more. Every single client – and every single opposing party – knew about these products. They weren’t 100% reliable, but I didn’t have any clients who submitted to a drug test without using the products if there was time for them to do so. Those who I knew used drugs were made aware that in-court testing was a possibility. While I couldn’t tell them to destroy the evidence, I could tell them to be ready to be tested. With a few exceptions, they were all smart enough to take steps.

drug testing - hair follicle collectionThen there was the grandmother who was suing for custody of her badly neglected grandchildren. She didn’t use drugs. She was asking for custody because her daughter and son in law did, and because of their drug use they didn’t take care of their children adequately. She had asked for drug testing knowing that she would pass easily and that the parents would fail any drug test they were ordered to take. The judge ordered everyone to be tested. The grandmother had gone to a James Taylor concert at Alltell Arena and breathed in that second-hand marijuana smoke. Her grandchildren ended up in foster care.

Then came hair follicle testing. Follicle testing was more foolproof and harder to beat, the testing centers and manufacturers claimed. It wasn’t long before the shampoos and rinses were marketed in the same places as those flushing solutions. “You cannot beat a hair test,” one site still boasts. It’s wrong. Even if the test shows positive, it doesn’t explain how the substance got there.

It made me think of the rumor I had heard back in the 1980’s when cocaine use was rampant in the United States. It was said that traces of cocaine could be found on nearly every American $100 in circulation. Partiers would roll the bill into a straw and snort the powder through it. This level of contamination is still the case, and the bills don’t even have to be used directly with the cocaine. They can get contaminated inside currency-counting machines at the bank. Imagine handling one of those bank-contaminated bills that you just withdrew to pay your lawyer, them smoothing a stray strand of hair. Then imagine that you are sent directly for a drug test, and despite the fact that you have never in your life even seen cocaine, much less used it, your drug test comes back positive for the drug. It doesn’t have to be in your system to count. It just has to be in your hair. And once again, you are placed in the position of having to explain how it got there, and proving the negative of the drug use that you are now presumed to engage in.

With the announcement from the American Chemical Society last week that steps taken to remove secondary contamination from hair being drug tested actually washes cocaine into the hair shaft, the most reliable of these unreliable tests just became even less reliable.

Science gives us a lot, but it is not a panacea and never will be. It answers some questions, but answering those tends to lead to more that need to be asked. Whether in the courtroom or just in everyday life, we need to remember to ask those questions that logically come next. Science can then begin investigating them and working to find the answers.

Drug testing is too fallible to be reliable. A positive drug test tells us virtually nothing. It doesn’t prove frequent use or addiction. It doesn’t prove use at all – and it never has.

Rehoming Troubled Children

This week, the Arkansas Times broke a tragic story about a sexually abused 6-year-old girl. The most horrifying element of this story is how the girl came to be living with the man who molested her, rather than with the family of the three-term Arkansas state legislator who had legally adopted her.

The facts, as we know them:

The girl and her sisters, who were 8 and 3, were wards of the state of Arkansas. They were in foster care when their natural parents’ parental rights were terminated. In September 2012, the Department of Human Services (DHS) placed the three girls in the home of Justin and Marsha Harris for adoption. Justin Harris is a third-term Republican state representative here in Arkansas. He sits on multiple legislative committees that oversee matters pertaining to children. He also runs an overtly Christian preschool that is unconstitutionally funded with government money.

The oldest girl stayed in the Harrises’ home for just a few weeks before DHS moved her elsewhere. It was obvious that the Harrises’ home was not the right placement for her. The Harrises did eventually adopted the two younger girls.

Then, around October 2013 – just a year after the girls had come to live with them – the Harrises “rehomed” the girls, who they claim were a danger to their family. Eventually, in March 2014, someone called in an anonymous complaint to the Child Abuse Hotline to report that the the girls were no longer in the Harris home. During DHS’s investigation of that complaint, the Harrises’ adopted 6-year-old daughter, by then living with yet another family, revealed that she was touched inappropriately by the man the Harrises had given her to.

When the perpetrator was arrested, Justin Harris made public statements about how tragic it was that any child had gone through such trauma. He never admitted that the victim was his own daughter, or that Harris himself had given her to the man who abused her. Until the anonymous complaint, no one had notified DHS that these little girls were no longer living with the Harrises, who, as their adoptive parents, were receiving a cash subsidy for their support.

Because they were foster children, we can assume that these girls were removed from their biological parents by the state because of neglect or abuse. According to the Arkansas Times story, the 6-year-old had been sexually abused by someone before she was ever placed in the Harris home. The story doesn’t reveal whether this sexual abuse was the reason for the children’s natural parents losing custody, or whether it might have happened while she was in foster care. In all likelihood, that information was not available or ascertainable by the Times reporter, because the records of juvenile courts pertaining to child abuse and neglect cases and adoption records are sealed.

When children are placed for adoption, Arkansas law requires that the adoption not be finalized until the children have been in the adoptive home for at least six months. Typically, if there is no guardianship in place, the court issues a temporary order of adoption when the children are first placed in the adoptive home.

The state might never have known but for a call to the Arkansas Child Abuse Hotline in March 2014. DHS apparently investigated the abandonment by going to the older child’s school and interviewing her. The child revealed that the caller had told the truth, and that Eric Francis, the man the Harrises had given her to, had molested her. Francis confessed. The molestation had happened in January 2014.

It’s sickening that this little girl was abused, spent time in foster care, was adopted, was abandoned by her adoptive parents, was again molested by the man her adoptive parents gave her to, and was then put in yet another home. It’s horrifying that the abandonment and sexual abuse and second rehoming happened without the knowledge of DHS.

This triggers the juvenile lawyer in me.

I practiced juvenile law for more than 15 years. I saw a lot of abused and chronically neglected kids get adopted into new families. When their existing foster parents adopted them, I wasn’t worried about them nearly as much as when new families adopted them.

In defense of families who give up on children

Children who have been abused have so many emotional and behavioral problems that it takes a special family to take them in. It takes really special – and dedicated – adoptive parents to deal with all the therapy appointments, crises, acting out, insecurities, and everything else that goes along with the trauma of severe child abuse and neglect. And face it: if the abuse and neglect weren’t severe and chronic, those kids wouldn’t be in a position to be adopted.

It’s hard enough if the parent has bonded with an abused child since birth and has shared the joys of the child’s development and personality as well as the despair of something this devastating. It’s much harder to remain committed to a child with whom the parent does not have a strong bond. And it’s harder still when, because of a serious case of reactive attachment disorder, any bond between the parent and child is tenuous and volatile. In my experience, attachment disorder is tragically common in foster children and abused children.

New adoptive parents who think they can manage when they’ve only known a child for a few months have no idea what they’re getting into. The honeymoon period is real; problems may be ignored or minimized because they think the child “just needs time to adjust.” Nope. Those problems aren’t going anywhere, at least not without a lot of seriously intensive help. And truthfully, no matter how young the child was at the time of the abuse or neglect, the trauma from it lingers for a lifetime.

What’s worse, when that six month period between the court orders for the temporary and final adoption nears its end, the new adoptive parents are completely stressed out and exhausted. They don’t have an attachment disorder so they feel committed to the child, who they may not ever be able to handle. Saying no to a clearly troubled child is devastating for well-meaning and deeply compassionate people, especially when there’s an encouraging DHS caseworker standing in the wings, promising that things will improve.

There comes a point at which foster parents and adoptive parents break. Maybe it comes when their natural child is abused by the adoptee. Maybe it comes when the child sets a fire or when the parent wakes up to find the adoptee wielding a knife in a darkened bedroom with mayhem clearly on her mind. Maybe it’s when the family dog is bludgeoned to death. Maybe it’s when feces get smeared all over the walls and furniture. In the worst cases, these kids are so disturbed that they end up institutionalized. (Newsflash: There’s not a lot of love or nurture in a long-term mental institution. They don’t come out “fixed.”)  In his prepared statement yesterday, Rep. Harris said that his family was in danger from these two little girls. Even at the ages of 4 and 6, that might well have been true.

What to do when adoptions go wrong

I have no doubt that the Harrises meant well when they adopted these children. The problem isn’t that they wanted to adopt. I’m sure they had every intention of giving these children their “forever” home. The problem is that when the adoption went south, they passed already-traumatized children off to non-professionals who had not been vetted. The Harrises had no way of knowing whether the new home would meet the needs of children whose needs the Harrises apparently could not meet. Without the help of the state, it’s highly unlikely that the severe emotional issues of these children – issues that caused the Harris adoption to fail – could get addressed adequately.

I won’t condemn the Harrises for giving up on a pair of seriously troubled children. I’ve worked with these kinds of kids and their natural, foster, and adoptive families. I’ve seen how tough it can be to live with a deeply disturbed child. It’s can be emotionally and physically draining for the parents and completely disruptive to other children already in the home. Not everyone can or should take on such a situation. When they realize the situation is beyond them, the potential adoptive parents should throw in the towel – it’s best for the child and for themselves. So, no, I don’t condemn the Harrises for deciding that these children shouldn’t live in their home.

When a situation with a child gets that bad, though, there are avenues for relief. The first thing parents can do is seek medical intervention for the child. This kind of help includes mental health treatment, therapy, and even institutional treatment. If the parents can’t afford the medical or mental health treatment, they can tap the resources of the state.

Arkansas juvenile law allows parents of troubled children to file a petition with the court to claim status as a “Family in Need of Services” (FINS). Even with no resources of their own or only modest ones, families can ask the state for assistance with therapy, treatment, and even temporary foster care for their troubled children. By saying formally that they can’t cope with their child’s problems alone, they are not deemed bad parents. Parents who avail themselves of the state’s resources are not abandoning their children, even if a judge decides that the child should be removed from their home – and even if the parent asks the court to remove the child from the home for the safety of one or more other family members. When parents have to choose which of their children to protect, they need the help of the system.

With a FINS action, the parent can ask that the state take custody of the child. There are special foster homes that are specifically trained to provide therapeutic foster care to seriously troubled children who disrupt from regular homes. The Harrises could have availed themselves of such training had they been serious about keeping the girls in their home, too.

When problems arise with adopted children, adoptive parents are encouraged to get help directly from DHS.  “[I]f you’re having difficulties or troubles with a child you adopted from us, reach out to us, we have resources that can help families,” said DHS spokesperson Amy Webb when asked about the situation.

There were services the Harrises could have tapped to get help, and when all else failed, the children could have gone back into the foster care system. While they might have had more disruptions and uncertainty there, as wards of the state they at least would have had a caseworker who was ultimately responsible for seeing that they were safe and had the treatment, education, and basic requirements of living in a non-abusive environment.

If it looks like abuse, sounds like abuse, and smells like abuse

Children aren’t pets. Responsible parents – natural or adoptive – don’t just give them away when they become inconvenient, and parents don’t surrender their parental rights or responsibilities when they park their troubled kids with someone else.

According to the statement the Harrises’ attorney issued yesterday, they apparently felt that they could not seek any help for the children:

Due to threats of possible abandonment charges, they were unable to reach out to [the Arkansas Department of Human Services] for help with children who presented a serious risk of harm to other children in their home. Upon the advice of both a psychiatrist and a pediatrician, they were forced to move the children to the home of trusted friends, who had a lot of experience with children with reactive attachment disorder. Rep. and Mrs. Harris are devastated about the outcome of that decision, but faced with no good option, they did the best that they knew how.

This statement raised more questions than it answered.

Presumably Rep. Harris had some clue as to how the law in this area works – he is vice-chairman of the state House Committee that oversees matters pertaining to youth and children, after all.

Why didn’t the Harrises make sure that these children, at least one of whom had already been severely abused, were able to get the services they needed in a stable and loving home? Giving them away to another family – one that had not been vetted and made perfectly aware of the needs of these children by professionals and not merely by a pair of frustrated and overwrought adoptive parents – is abuse and neglect in and of itself. They packed one trauma on top of another when they gave these kids away to be rehomed. They set the children up for the abuse that was to follow.

Furthermore, what they did clearly constitutes child abandonment. “Rehoming” happens a lot, even to children who aren’t adopted. Think of the children who live with grandparents or other relatives because their parents are not able or willing to take care of them. There is no state involvement unless the new custodian goes to court to get guardianship.

Rehoming is often very informal. The people who acquire possession of a child this way don’t have legal rights. Without legal guardianship, they have at most a power of attorney from the legal parents or guardians, and they don’t usually even have that. This means the person who the child lives with is not legally able to consent to medical care, can’t enroll the children in school, and can’t apply for government benefits for the children.

Questions needing straight answers

But these aren’t the only questions that demand answers. Michael Cook at Talk Business and Politics has a long list. I agree with each and every question he’s asked, and want to add a few more:

  1. Were Justin and Marsha Harris trained as a therapeutic placement for seriously disturbed children?
  2. Did the Harrises ever consider residential treatment for these girls? If so, why didn’t it happen? If not, why not?
  3. Who was the “head of DHS” who told the Harrises that abandonment charges would be pursued against them if they tried to dissolve the adoption?
  4. Were Eric and Stacey Francis trained as therapeutic foster parents?
  5. Did the Harrises give the Francises power of attorney to take care of the girls’ medical, financial, and educational needs?
  6. Did anyone ever talk to the Harrises about a FINS petition?

When he spoke briefly with the press without making a statement yesterday, Harris understandably looked strained and upset. I have no doubt that he and his wife are heartbroken over the way the adoption unfolded, not to mention traumatized the negative publicity swirling around them now.

Justin Harris

Screen grab from video posted on KATV

At his press conference this afternoon, a clearly emotional Harris described a hellish situation. If pets are being tortured and killed and the rest of the family has to sleep barricaded away from the adopted children, there are obviously very serious problems. The Harrises’ home may not have been a suitable placement for those children.

But I find it difficult to believe that the “head of DHS” threatened to file abandonment charges against him and his wife if they gave the children back, despite the fact that the therapist, psychiatrist and pediatrician all recommended that the children be removed. DHS definitely does ask the courts to dissolve adoptions when all else fails.

I practiced juvenile law for 15 years before I threw in the towel myself, burned out and discouraged at the horrible things people did to their children and the unresponsiveness of the state agency tasked with protecting children. I know that DHS caseworkers routinely dole out threats and misinformation to people who need help. DHS is rarely held accountable for failing the people it is supposed to protect and serve.

There is more to this story. It all needs to come out. It’s not going to be easy for the Harrises. It may not make them look very good, but my guess is that DHS won’t look very clean, either. No one is going to “win” this investigation.

But wait – there’s more

For abandoning troubled children into the questionable care of others, both Harrises should investigated for child neglect – and that investigation should not be done by DHS. No agency is capable of policing itself.

If Justin and Marsha Harris neglected and abandoned their adopted daughters, they should be listed in the Child Maltreatment Central Registry, which lists people who have been found to have committed child abuse and/or child neglect. I’ve represented parents who have been listed in the registry and had their other children removed from their custody for less.

Listing them in that registry would disqualify them from operating a daycare or preschool. No more state funds would go to support that patently religious institution run by a state legislator, something that is entirely unconstitutional to begin with. Another problem solved.

Furthermore, Justin and Marsha Harris must be forthcoming with proof that they forwarded the adoption subsidy to the girls’ actual caretakers. The subsidy is taxpayer money intended to get treatment and assistance for children whose natural parents have already abused and/or neglected them to the point of getting their parental rights terminated. If someone other than their caretakers was getting the government assistance intended to address these children’s emotional, physical, developmental, and medical needs, that’s fraud.

I’m no fan of Justin Harris. He’s a hyper-religious Republican who ignores separation of church and state with great abandon, something that deeply offends me. But in this situation, I’m not ready to condemn him or his wife. I’ve seen the ugly side of an uncooperative DHS too many times over the years to disbelieve their version of events entirely.

Investigative journalism is the bedrock of democracy

Investigative journalism is an important and necessary way to get things like this addressed properly. Benji Hardy, with help from Leslie Newell Peacock, has done a fantastic job of exposing this rot. Had Justin and Marsha Harris been more forthcoming about the situation when the press asked, there might be a bellowing call for investigation of DHS right now instead of the pillorying the Harrises are getting in the national press. DHS’s shortcomings are in dire need of exposure, because they are outrageous. DHS has more power to ruin lives than just about any other state agency, and they do it regularly.

When we allow the decline of print media, we forget that excellent journalists like Benji Hardy keep our government and our elected officials accountable. If you live in Arkansas but don’t subscribe to the Arkansas Times, change that. This weekly paper has some of the best, most astute, and well-seasoned serious journalists in the state working for it. Don’t ever dismiss it as just restaurant reviews and a calendar of community events.

And about that First Amendment – without it, articles like this one might never see the light of day. I maintain it is the best, most essential, and most humane of all the amendments that make up the Bill of Rights. All of the others flow from it.

 

Better Grammar for Better Lives

I get teased a lot for my grammar compulsion. Misplaced apostrophes distract me from the content of written communication, and double negatives instantly downgrade my estimation of the person speaking. I have tried, but these things bother me. It’s no secret: I think grammar is important.

I participate in two critique groups for writers. A new writer came to one of those groups recently. His story featured a dystopian society with teenage protagonists, and something significant was about to happen. Dystopias are popular especially among young adult readers, and his premise was interesting, but reading his submission with an eye critical to style was painful. It took me nearly an hour to agonize my way through his ten double-spaced pages. The biggest problem was not his story. It was his grammar.

He committed the usual subject-verb agreement crimes. He butchered his sentences with improper punctuation. Malapropisms peppered every page. Sentence fragments. Ridiculous imagery completed the ghastly picture he painted with his words. He probably has a good story to tell, but until he learns to tell it in plain – and correct – language, he won’t be telling it to much of an audience.

I suggested that he use a grammar checker. Grammarly’s free online grammar checker is a good one. It’s fun to play with, and it’s educational to boot. Anyone who seriously wants to write well can benefit from a grammar checker.

Plain, understandable language lets us communicate succinctly and clearly. The better people communicate, the more likely they are to get what they want and to understand what others want from them. Skilled communicators are more likely to persuade others. Good, clear language reduces misunderstandings.

GRAMMAR-INFOGRAPHIC-570

 

Jargon-filled vernacular and pretentious verbiage are every bit as off-putting as double negatives. As a practicing lawyer, I have spent huge amounts of time rewriting contracts and legal precedents that other lawyers have written in “legalese.” If the people bound by the contract or the court order or the contract can’t understand it, the document is not worth the expense of drafting it.

Bad grammar and poor usage leave a bad impression. While job interviews and sales meetings obviously require concise communication, so do ordinary daily tasks. Understanding how to assemble a new purchase, how to troubleshoot a technical problem, directions for using medication, information transmitted to and from police and ambulance services – some of these communications make life easier, but others mean the difference between life and death. When careful communication becomes a habit, everyone wins.

Let’s practice good grammar – for all of us.

Zimmerman, Trayvon, and Justice

Trayvon-Zimmerman-diptych

Good Trayvon, Bad George

Yesterday, some friends of mine – all of whom have Big Brains and Big Compassion, argued intensely and passionately about George Zimmerman and Trayvon Martin. Because my friends are passionate, compassionate, intelligent people, they are more likely to disagree very strongly when they disagree. Yesterday, tempers flared. Folks got defriended and blocked. “Fuck yous” were tossed about. Names were called. It was decidedly unpleasant all the way around.

I’m very glad they don’t disagree more often.

I haven’t said anything about this case because what I have to say won’t be popular: the American system of justice worked in the George Zimmerman/Trayvon Martin case.

Does it piss me off that a 17 year old kid died for no apparent reason? You bet it does. Do I think Zimmerman acted wrongly? You bet I do. Should he have been convicted of murder for his conduct? Not based on the evidence.

The jury did not have enough evidence to convict Zimmerman of murder. The evidence was ambiguous at best, and tended to exonerate him. In order to convict someone of a crime, there can’t be any reasonable doubt as to the criminality of his conduct. When evidence is not clear, when it can be interpreted more than one way by reasonable minds based on the totality of the circumstances, the evidence doesn’t rise to the level of “beyond reasonable doubt.” Therefore, the jury had no choice but to find Zimmerman not guilty. They did not find him “innocent,” mind you. They found that there was insufficient evidence to say he was guilty beyond a reasonable doubt.

It’s true that had Zimmerman not followed Trayvon, both would have their lives today. He was told by the police dispatcher not to follow the suspicious person and he ignored that instruction. He probably ignored it because he knew police were on their way and he wanted not to lose sight of the person he deemed to be suspicious. George Zimmerman should never have followed Trayvon Martin. Period. But once he did, the facts become much murkier, and the most important question becomes whether he was justified in using deadly force after the situation escalated. And that’s where reasonable minds may differ.

A terrible thing we do as a society is second-guess juries based on media hype. What happened was awful, tragic, and ultimately pointless. Zimmerman was probably the aggressor in that he scared a kid who was just walking home. That kid probably made a mistake when he decided to lash out at a guy who was scaring him by following him. The situation escalated out of control, until ultimately a gun was fired. Whose fault was it? Both Zimmerman and Martin screwed up their engagement, and one of them died as a result.

Don’t get me started on the unreliability of eyewitness testimony. I’m not going to rehash the evidence. Wikipedia and about ten million news stories do that for us, and they are all available on the Google for anyone who wants to look for them. What we absolutely cannot do is armchair quarterback the conflict and the trial.

I’m not defending George Zimmerman. What he did was stupid, ill-advised, and ultimately cost a child his life. I’m also not persecuting Trayvon Martin. Based on the evidence presented, Trayvon acted in self-defense himself. And when two people reasonably believe they are acting only in self-defense, and one of them dies, there should not be a murder conviction. If reasonable minds can differ in the heat of the moment, they can certainly differ as to whether, in hindsight, the actions of one of those parties rose to the level of criminal conduct.

The bottom line is that based on the evidence it was presented, the jury did the right thing – just like they did in the original OJ Simpson case, and just like they did in the Casey Anthony case. Personally, I would rather have a guilty person walking the streets than an innocent person rotting in jail. All too often, juries seem to convict defendants on less evidence than “beyond a reasonable doubt.” When there is room for doubt, and that doubt is reasonable given the known facts and circumstances, juries should never convict. Even if, in the guts of each and every one of them, they think the defendant is most likely guilty. “Most likely” isn’t the standard of proof. “Beyond a reasonable doubt” is.

What Zimmerman did was wrong. Had he not disregarded the dispatcher’s advice not to follow a person he deemed suspicious, we would not know his name and Trayvon would be a freshman in college somewhere. Had there been no “stand your ground” law, the case may well have turned out very differently. Had George Zimmerman not been armed when he and Trayvon confronted each other – whichever of them initiated the confrontation – the entire situation may well have turned out differently. Zimmerman, not Martin, might be the dead person, and Trayvon Martin might have been acquitted after a national media circus. Or he might have been convicted.

I haven’t practiced criminal law since 1991, but as I recall, the person who initiates the conflict is generally at fault if he has reason to believe that things will escalate to the point of physical violence. In Zimmerman’s mind, he was following a probable criminal. It would not have been unreasonable for him to think that criminal was armed – yet he engaged him anyway. At least, we think he did. No one actually knows whether Zimmerman or Trayvon initiated contact. And that’s why the jury couldn’t convict him.

I’m not going to call for Zimmerman to be persecuted, lynched, chased off a beach, or otherwise harassed. I would like to see his concealed-carry permit revoked, because I firmly believe that his gun probably made him braver and less cautious than he might have been had he been unarmed that fateful night. However, I admit to an extreme distaste for guns and the inflated bravado they inspire. (If I had a dollar for every time someone had remarked that a gun would have taken care of the men who robbed me last year, I’d be rich. And if I’d had a gun handy that night I might be dead. Or in intensive psychotherapy because omigod I shot someone.) What I take away from the Zimmerman-Martin situation is that we need realistic gun control laws, and we as a society absolutely must stop romanticizing how handguns protect us. They don’t. They endanger us, whether or not we are the person wielding them.

I want justice for Trayvon Martin, but I don’t think the criminal conviction of his killer is the justice that will prevent this situation from happening again. It certainly won’t bring Trayvon back. Responsible laws and public education about the use of force and weapons will make a difference. Warehousing George Zimmerman in a prison won’t. And if Zimmerman is going to commit crimes, he, like any other criminal, ought to be judged on the merits of his conduct in that circumstance.

I can’t imagine being George Zimmerman right now. He’s a pariah in the media, which delights in scrutinizing every mistake and case of bad judgment the man makes. Is Zimmerman a shitty person? Maybe. Some of the things reported about him sure paint that picture. He’s also under incredible stress – he HAS to be, given the microscope the national press uses to follow him. No one acts completely rationally under intense, chronic stress. The media scrutiny on Zimmerman’s every move is horrific. If someone followed me around and reported everything I said and did for months on end, and then only reported the negative stuff and not the good or boring stuff, I’d probably be suicidal.

If I were George Zimmerman, I’d move, get plastic surgery, change my hair, and change my name.

Trayvon-Zimmerman-2-600x300

Bad Trayvon, Good George

It’s Really Not OK to Pray in Public Schools

Graduation seems to be one of those times during the school year when religion rears its head and wants to elbow its way into the public square, disseminating itself messily all over unwilling captive audiences. This year is no exception.

The Freedom From Religion Foundation (FFRF) got involved in an Arkansas case recently, writing a letter to tell the Riverside School District in Lake City, Arkansas, that plans to pray and sing hymns at its sixth grade graduation were unconstitutional. Variations of two different versions of what happened next have made their rounds. In the first story, the school board, possibly at the behest of the superintendent, decided simply to cancel graduation rather than bow to the law. In the second story, the school board voted to abide by the law, but the parents organizing the graduation said that if they couldn’t pray, then graduation at the school would be cancelled. The upshot was that the sixth grade graduation was indeed cancelled, and the organizing parents decided to hold graduation exercises at a local church instead. More uproar has ensued.

Because apparently we’re the only advocates of separation of church and state to be found in Arkansas, the Arkansas Society of Freethinkers was invited to participate in a radio talk show about the kerfuffle. When Alice Stewart, Mike Huckabee’s former spokesperson and the host of the program, told me that her other guest would be the evangelical preacher who enjoyed the spotlight at our fair state’s National Day of Prayer event at the state capitol, I asked her if she had considered asking a representative of a more progressive variety of Christian – one that supports separation of church and state. She said she didn’t know any.  Right then and there I probably should have directed her to the Episcopalians, Presbyterians, or Jews, but I didn’t. I agreed to go on the show.

Here’s the TL; DL version of the hosts’s and pastor’s points:

  1. There’s a war on religion.
  2. They’ve done it this way forever, so there’s no harm in allowing them to continue praying at public school events.
  3. The Constitution says we are entitled to the free exercise of religion.
  4. God is the foundation of our founding documents.
  5. Many of our founding fathers went to seminary with certainly the intent that God would be incorporated on our money and in our system and society.
  6. We’ve tried, and we just can’t ever take God, guns, sex, violence, drugs out of school.
  7. God is everywhere in school forever.
  8. Our country is built on the principles of God.
  9. The pledge is a prayer.
  10.  By insisting on leaving religion out of school functions, atheists impose their views on everyone else.
  11. It’s more important to keep faith in schools than anywhere.
  12. It’s impossible to take God out of schools because too many religious people are in the schools, and god is in the songs that the school choir sings, plays that the school theater performs, civics and history books, and because there is a federal holiday honoring Rev. Martin Luther King, Jr. who taught the nation about the Bible.
  13. We shouldn’t have to wait for another bombing or mass shooting before a school assembly prays again.
  14. We should not have to care about the rights of minorities in public schools.
  15. FFRF wanted graduation stopped.
  16. Public prayer in school isn’t illegal.
  17. God calls the light day and the darkness night and no one can change that because it’s an order from god. (If you listen closely you can detect that I nearly busted out laughing here. Sorry.)
  18. If the Constitution allows the pledge, which contains a prayer, then it is resolved that all prayer should be allowed in schools.
  19. Religion never changes.
  20. Jesus said always to pray and not to think.
  21. The word that God gives Christians is in Psalms 1.
  22. God’s law is higher than Constitutional law.
  23. If we say “under God” in the pledge at school, we are obligated to continue praying in schools so as not to be hypocritical.

I know, I know. Our first response is “What? They actually believe this tripe?” followed immediately by a facepalm and “Oh, boy. They really believe this tripe.”

So…

1. The War on Religion

Evidently I burned my draft card on this one. Personally, I couldn’t care less what religion someone else practices, as long as they do no harm with it. (Yeah, I know. That’s impossible, unless they keep it totally to themselves, which they never do.) They can have all the fantasies they like about what happens after death, and no one else is affected. We are, however, affected by their dogmatic attempts to indoctrinate our children, deny freedom of conscience to our children and to us, and to curtail the rights of other people based on their fantasies and what someone said their invisible friend wanted more than two millennia ago. So, practice religion all you want – just keep it strictly to yourself.

2.  They’ve done it this way forever, so why make them change?

Ah, yes, the appeal to tradition. As logical fallacies go, this one is pretty easy to dismantle. It is also symptomatic of the traditional conservative state of mind, which holds that progress is bad.

Let’s say you’ve got an employee who regularly steals from the till. You’ve warned him time and time again that if he doesn’t stop, you’re going to take legal action. He doesn’t stop. You call the cops. Do we seriously expect the police to say that since you never called them before, you can’t call them now?

Or, let’s say your neighbor is a wife-beater (the POS, not the shirt). He’s beaten his wife at least weekly for all 40 years of their marriage, and your long-suffering family has witnessed it. One day, you’ve finally had enough. The wife has two black eyes and a bloody nose after one of their little tiffs, and you call the cops. Do you want to live in a society where the police say, “I’m sorry, ma’am, but she let him beat her up for 40 years, so she has to keep letting him beat her up. Just use ear plugs and avert your eyes if you don’t want to be aware of it”?

I didn’t think so.

Illegal is illegal. Period.

3. The Constitution says we are entitled to the free exercise of religion.

It sure does. And then it says that the state can’t tell us how to practice our religions. This is the part the religious right loves to forget as they strive to use government-sponsored events to impose their version of God on the rest of us. And impose it they do – at public invocations, in schools, in the laws they pass, and on billboards across the country.  Only one of those instances is actually legal. (Hint: it’s the one that has nothing to do with government.)

4. God is the foundation of our founding documents.

The only foundational document that mentions anything about a God is the Declaration of Independence, which wouldn’t have been a founding document if the rebellion had not been successful. In its introduction, it mentions “Nature’s God” and which in the famous second sentence of its preamble says: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” One of those unalienable rights, which was added to the Constitution 15 years after the Declaration (it wasn’t there to begin with), says that Americans are free to practice whatever religion they choose, and that the state cannot tell them what religion to practice.

It’s the second part that people like Rev. Hunt and Ms. Stewart and their fundamentalist friends have so much trouble with. In fact, they prefer to ignore it, under the short-sighted and arrogant assumption that their version of religion would naturally be the one established by the government.

5. Many of our founding fathers went to seminary with certainly the intent that God would be incorporated on our money and in our system and society.

Sometimes when religious people say idiotic things, we have to graciously understand that they are grasping at straws. I certainly hope that Ms. Stewart knows the facts don’t support this assertion of hers. I hope she has a better grasp of history than what this particular assertion indicated.

First, let’s look at the education opportunities in the late colonial period. Actual colleges were not easy to find – or, maybe they were, since there were so few of them. New College (now Harvard), the College of William and Mary, the Collegiate School (now Yale), the College of New Jersey (Princeton), the College of Philadelphia (now the University of Pennsylvania), King’s College (now Columbia), Rhode Island College (now Brown), Queen’s College (now Rutgers), and Dartmouth College were the only choices for formal higher education, and the last three in that list were founded after 1760, so it’s unlikely the founders attended them. Without exception, all were associated with religious institutions. However, like the colleges and universities sponsored by religious institutions in the 21st century, none of them was strictly a seminary. Since the founding fathers all obtained what formal education they got prior to the Revolution, these nine schools – and probably actually only six schools – were their only choices unless they opted to go abroad. A number of them whose families had money did indeed send their sons abroad for education at places like Cambridge, London’s Middle Temple (one of the famous Inns of Court where British barristers were – and are – formally trained, not a religious institution), and various schools on the European continent.

So, let’s take a closer look at the oldest six. By 1750, the era when the founding fathers who went there would have been enrolled, only 15% of Harvard graduates were seminarians. William and Mary, the second oldest institution, was founded with only one-third of its resources dedicated to a college of divinity, and separation of church and state was already a thing in Virginia prior to the end of the Revolution thanks to the work of George Mason and James Madison on the Virginia Declaration of Rights. Yale was not founded as a seminary, but as a college of the arts and sciences. Princeton was founded primarily to train Presbyterian ministers, but by the 1760’s was focused on the disciplines valued by the Enlightenment: philosophy, science, and the arts, and by the 1780’s no longer housed a seminary at all. Penn was never a seminary, but was founded, mostly on the advocacy of atheist Philadelphian Benjamin Franklin, as a liberal arts institution. Columbia, also, was founded as a liberal arts school. According to its website, “various groups compet[ed] to determine its location and religious affiliation. Advocates of New York City met with success on the first point, while the Anglicans prevailed on the latter. However, all constituencies agreed to commit themselves to principles of religious liberty in establishing the policies of the College.”  Brown University was founded as a Baptist college – not Southern Baptist, but traditional, original, New England Baptist – although Congregationalists, Quakers, and Anglicans all had significant representation on its original board of trustees. Its Charter, granted by George III in 1764, declared its purpose was to prepare students “for discharging the Offices of Life with usefulness & reputation” by providing instruction “in the Vernacular and Learned Languages, and in the liberal Arts and Sciences.” It was not a seminary. Rather, the charter specified specifically that “into this liberal and catholic institution shall never be admitted any religious tests, but on the contrary, all the members hereof shall forever enjoy full, free, absolute, and uninterrupted liberty of conscience.”

But easily half or more of the founding fathers of the United States of America had no formal education at what we would now consider a secondary level. The state of education in colonial America was such that most people were taught to read and write at home, and additional education was often sought with private tutors. For the most part, our founding fathers were autodidacts – self-taught, widely read, and definitely products of the Enlightenment. They never stopped questioning their world, reading, debating topics as diverse as philosophy, agriculture, and astronomy, and most importantly, they never stopped learning.

I think it is extremely safe to assume that not a single founding father decided to go to a seminary so he could foment a revolution and put his god on the money of a new nation, much less so he could violently rebel against his sovereign specifically to get more religion.

 6. We’ve tried, and we just can’t ever take God, guns, sex, violence, drugs out of school.

Maybe it’s just me, but when the good Reverend Hunt said this, I couldn’t help but notice that his deity was lumped in with all the other bad things we don’t want in schools. The clear implication of his statement was that we can try, but we ought to just give up. Sorry, Rev. Hunt, but no can do – not as to any of these things.

7. God is everywhere in school forever.

Indeed, our imaginary friends can be wherever we choose for them to be. Inflicting them on other people is unacceptable, though.

8. Our country is built on the principles of God.

The principles of God that I see when I read the Bible are intolerance, caprice, narcissism, homophobia, misogyny, and violence. Are these the principles upon which our country is built? If so, it’s beyond time for reform.

Rev. Hunt probably meant the Ten Commandments, though, because before they were written down about 500 BCE, people just went around killing, coveting, disrespecting their elders, stealing, and bearing false witness all harum-scarum and willy-nilly. Never mind that Egypt’s laws (3000 BCE), Mesopotamia’s Lagash Code (2400 BCE), Sumeria’s laws (2200 BCE), and Hammurabi’s Code (1795 BCE) predate Leviticus by much more than a millennium, and Sparta’s laws (800 BCE) predate it by 400-500 years. Other codes of law from roughly the same time period as Leviticus are well documented, including the Dharmasutras of the Hindu tradition and the evolved versions of all those laws that went before, as well as Roman law (550 BCE), the Zoroastrian Avesta (600 BCE), China’s Zheng laws (500 BCE),  and Draco’s Greek law (620 BCE). It is worth mentioning that our trade and maritime laws originated with ancient Phoenicia (~1200 BCE).

Don’t pretend to know legal or social history if you look at it only through the opaque lenses of your Mosaic blinders.

9. The pledge is a prayer.

In the 1962 case of Engel v. Vitalethe Supreme Court held that prayer led by government officials was not permitted in schools, but did not address whether the inclusion of the words “under God” in the Pledge of Allegiance rendered it a prayer. Justice Douglas, in his concurring opinion, said that he believed the religion “honeycombed” throughout our federal laws was not permissible, and that the words “under God” should not stand – and that, yes, the pledge was indeed a prayer.

A 2004 case, Elk Grove Unified School District v. Newdow  challenged the pledge directly, but was dismissed because the plaintiff, a noncustodial parent of the school child in question, lacked standing.

Therefore, I sincerely hope the good Reverend will be willing to repeat this assertion that it is resolved that the Pledge is a prayer the next time some godless heathen decides to file suit to challenge the inclusion of the words “under God” in the Pledge of Allegiance, because it get us one step closer to getting the words stricken.

10.  By insisting on leaving religion out of school functions, atheists impose their views on everyone else.

There’s a difference between religious neutrality and forced atheism. If we were forcing our atheism on the impressionable little school children, we’d be hosting “There is No God” as the cool after-school activity to go to instead of tolerating the insidious presence of “Good News Clubs” that indoctrinate children. We’d be demanding that the school choirs sing Tim Minchin songs instead of classical choruses. We’d start every event with an announcement that there is no god, and repeatedly remind any believers out there that they are stupid to still have an imaginary friend. As it is, we may think those things, but we don’t say them in government settings and we certainly don’t try to scare the shit out of their children to ensure the little darlings will come around to our way of thinking.

Religious neutrality means no one says anything one way or another about deities, religions, or the way those imaginary beings think we should conduct ourselves, much less what they plan to do with us when we die.

11. It’s more important to keep faith in schools than anywhere.

On the contrary, school is exactly the place where things should be questioned and not taken on faith. School is the place where facts should be tested, experiments performed, empirical evidence gathered and assessed, and ideas debated. Critical thinking skills need to be emphasized much, much more. Our children should be taught never to take anything on faith, but to investigate and find truth for themselves. Otherwise, all we are doing is drilling information into their heads without giving them the skills to apply it to reality and to the betterment of the world. I don’t know about you, but I want more for my child than for him to be an automaton  that dully repeats whatever he’s been told. Faith is the last thing we need to teach our children in school.

12. It’s impossible to take God out of schools because too many religious people are in the schools, and god is in the songs that the school choir sings, plays that the school theater performs, civics and history books, and because there is a federal holiday honoring Rev. Martin Luther King, Jr. who taught the nation about the Bible.

Where do I even begin?

Okay, so, there are religious people in schools. Sure. There are religious people everywhere. It does not necessarily follow that everything that comes out of the mouths of those religious people is religious. In a school setting, they need to keep their religion to themselves and teach kids how to think critically, how to solve problems, and what a logical fallacy is. (Maybe by teaching logical fallacies, they will recognize the ones they use on themselves to keep religion alive.)

God is in the songs that the choir sings. Because ecclesiastical patronage is responsible for a considerable chunk of the greatest art and music in history, we neither can nor should avoid some religious songs or art. There is plenty of secular art and music out there, though, and it also should be taught. And if the public school is performing a religious play, someone needs to let the ACLU, Americans United, and FFRF know so a lawsuit can be filed – because it’s illegal. Period.

Religious history is part of human history. The history of the Catholic Church’s political maneuverings is valid study – it has had great effect on the politics of medieval Europe, and despite its lack of stature as an official religion for governments now, it still wields a mighty sword. Its complicity in the Holocaust, for example, should not be downplayed, nor should its interference in human rights issues in places like Africa, where it has helped to spread the HIV/AIDS pandemic by preaching against condom use, and Ireland, where women die because their lives are considered less valuable than the fetuses they carry, sometimes against their will. Religion has a great deal to do with the denial of women’s rights in the Middle East and Central Asia. So, yes, study religion’s effect of world history and current events.

Do not ever make the mistake of teaching public school children which religion is “better” or “correct.” That is establishment of religion, and in this country it is illegal.

And now for Martin Luther King, Jr., who apparently taught us all about the Bible so now we honor him with his very own holiday. I hardly know how to begin to address this idiotic statement, so I’ll just heave a huge sigh and delve in.

Dr. King was indeed a minister. He did indeed connect his faith to his fervent advocacy for civil rights, and frequently invoked his deity and the teachings of the Bible. He wasn’t assassinated for being a minister, though. He died because he was an extremely effective advocate for civil rights and for peace. Dr. King was much more than a minister, and his civil rights and anti-war activism is the reason for that holiday, not his messages from any pulpit. He pioneered peaceful civil disobedience to a degree this country had never before seen. He worked for racial parity and desegregation, something the Bible definitely does not advocate. He worked tirelessly to end an unjust war. The war he wanted to fight was against poverty and the disparate treatment of human beings in American society. That war, at least, was a noble one.

Dr. Martin Luther King, Jr. was one of the greatest orators of the 20th century, if not one of the greatest orators in all of American history. His work was rewarded with international acclaim and he was the recipient of the Nobel Peace Prize because of it. He was posthumously awarded the Presidential Medal of Freedom and the Congressional Gold Medal. Four people have federal holidays in their honor: two of them were presidents, one is popularly credited with “discovering” the continent, and the fourth is Dr. King. Could he have done this work without being a minister? Absolutely. Unequivocally. Does he deserve the acclaim he has received? Without a doubt, yes. But not for being a minister. He deserves every accolade he has ever received because of what he did for race relations in the United States 100 years after the Civil War, and for using his popularity and influence to end a horrifically unjust war and to advocate for human rights.

Dr. King didn’t teach Americans the Bible. He taught us something much more important: that all men must be treated equally and fairly. We would certainly appreciate it if the religious right would demonstrate that they understand that lesson.

13. We shouldn’t have to wait for another bombing or mass shooting before a school assembly prays again.

When that next bombing or mass school shooting happens, we still shouldn’t pray – at least, not in school and not as part of a government-sponsored event. Prayer won’t undo it, prayer won’t prevent it, and prayer won’t stop it mid-horror.

Do we really lack so much creativity as a society that we cannot devise another way to honor the dead or mark a tragedy without thanking God for it? Do we really think a prayer will stop malicious and crazy people from socially aberrant behavior? If so, church shootings wouldn’t happen, and legislatures wouldn’t have to make church-goers feel safer by allowing them to carry weapons to Sunday services. And isn’t it ironic that we thank a god for such monstrous atrocities and celebrate the deaths of those killed by saying they’ve been “called home” to that deity? How screwed up is that, anyway?

And this leads us back to good old Epicurus (341 BCE – 270 BCE), another philosopher roughly contemporaneous with the scribes of Leviticus:

Is God willing to prevent evil, but not able?
Then he is not omnipotent.
Is he able, but not willing?
Then he is malevolent.
Is he both able and willing?
Then why is there evil?
Is he neither able nor willing?
Then why call him God?

14. We should not have to care about the rights of minorities in public schools.

There is so much insensitivity in this statement that my mind nearly boggled. The majority rules when votes are counted for candidates. When the candidate elected by the majority takes his oath of office, though, he represents everyone, not just those who elected him, and he owes a duty to everyone, not just those who elected him.

We do not operate our society by doing what the majority of people want to do just because the majority want it done. We also look at the public policy behind doing things, the ramifications of doing them, and the overall effect on society.

We also don’t squash the little guy under our heels just because he is poor, speaks a different language, is mentally handicapped, physically challenged, from another country, homosexual, short, illiterate, fat, old, sick, red-haired, of a different racial derivation than we are, of a different religious persuasion, or for any other reason. It’s just plain wrong. When will the Christian right get this through their thick skulls? Seriously, what jackasses!

15. FFRF wanted graduation stopped.

One of the reasons the uber-conservative media is so good at persuading its watchers and listeners that the boogeyman is at the door is because when the truth doesn’t suit them, they change the facts to fit their narrative.

Benghazi. Obama was a foreign college student. Planned Parenthood exists to provide abortions. Shirley Sherrod is a racist. FFRF’s intent.

They make us refute their fake facts, and thereby deprive us of the time to make our points. To borrow a phrase from Christopher Moore, this is heinous fuckery most foul. If you have to lie to make your point, you obviously have a crappy argument to begin with. Go home. You’ve forfeited the game.

16. Public prayer in school isn’t illegal.

The hell it isn’t. See  Engel v. Vitale, supra.

17. God calls the light day and the darkness night and no one can change that because it’s an order from god.

If you listen closely at this point in the segment, you can detect that I nearly laughed out loud here. I apologize for the audible derisive snort. I couldn’t help it. I did, however, have considerable empathy at that moment with David Silverman’s conversation with Bill O’Reilly about the reason for tidal forces. Evidently the good Reverend Hunt is a flat-earther who does not understand the earth’s rotation or heliocentrism. He thinks it gets light and dark because God says so. We’ll just ignore the fact that we have night and day for the same basic reason as we have high and low tides: gravity.

After all, gravity is just a theory.

18. It is resolved, that if the Constitution allows the pledge, which contains a prayer, then it is resolved that all prayer should be allowed in schools.

Well, he was almost right. It is definitely resolved that prayer is not permitted in schools. Engel v. Vitaleremember? But what isn’t resolved is whether or not the words “under God” make the pledge tantamount to a prayer. The atheist that is me thinks it does, and the religious guy that is Reverend Hunt thinks it does. Therefore, the pledge is a prayer and pursuant to the precedent set by Engel v. Vitale and pursuant to the Establishment Clause of the First Amendment to the United States Constitution, the pledge shouldn’t be recited any more than the Lord’s Prayer should be.

Resolved.

19. Religion never changes.

The delegates to Vatican II would be interested to learn of this.

So would Martin Luther, who kicked off a pretty serious change in Christianity by tacking those 95 theses to the door of that Wittenberg Church back in 1517. (Okay, fine, so the church door thing may be a bit of a myth. But the invention of the printing press did a heck of a lot to change Christianity because that’s how word of the 95 theses got liberally sprinkled throughout Germany and the rest of Europe.)

In fact, I think the attendees of the Council of Nicea – you know, the meeting at which the books of scripture were either included or jettisoned from what we now call the Bible and the meeting at which the Jesus character was determined to be a god – would find the Rev. Hunt’s assertion patently ludicrous, as would those who attended the other thirteen major ecumenical councils of the last two millennia.

I wonder if Rev. Hunt has a Christmas tree? My money says he is clueless about its pagan roots or somehow thinks no religion changed to accommodate that tradition.

20. Jesus said always to pray and not to think.

Herein lies the biggest problem with religion. “Don’t think,” religious leaders tell us. “Just believe what you’re told.” A gullible, uneducated, ignorant populace is all too willing to accept any popular authority that purports to explain their world.

“You’ve got to have faith,” they say.

I have plenty of faith. I have faith that the sun will rise, because every morning it does, and because scientists have provided a reasonable, testable, consistently provable reason for it happening. I have faith that gravity won’t stop working, for the same reason. I even have faith that my computer will post this little rant when I hit a certain combination of keys – because it’s happened before, because it happens consistently and reliably when I hit those keys, and because there is some computer scientist person who knows how and why it happens. I don’t know how or why, and I don’t pretend to understand it, but because it works reliably and consistently with predictable results, I am satisfied that there is a reasonable explanation for it. It might feel like magic to me, because I just say (type) my incantation and poke my fingers at the right buttons and watch it happen – again and again. But I know people who not only understand why it works, but can tell me why it has stopped working, fix it, and make it work again. Reliably and consistently.

That’s the kind of thing I can have faith in.

21. The word that God gives Christians is in Psalms 1.

Wait wait wait wait wait. Wasn’t the Book of Psalms compiled a long time before the guy who started the whole Christianity thing? Hasn’t the god of the Christians failed to utter one single word to them since that dude’s alleged death in the early first century CE? (Well, except for like, the Book of Mormon, but those people are in a cult and not really Christians, right?) I mean, I thought most of the Psalms were attributed to King David, who lived a full millenium before the Jesus character.

Of course, Christians use the Old Testament, too. But since Christianity hadn’t been invented at the time of the composition of the first Psalm (there’s that old religion changing thing again), it would seem that the Christian god might – just might – not have been talking to Christians back then.

Just sayin’.

22. God’s law is higher than Constitutional law.

Not in the United States of America, it isn’t.

In fact, the original language of the Constitution never once mentions or even refers to any deity or creator. The only time religion is mentioned at all is in the First Amendment, which says government is to keep its hands off religion. The government can’t tell us how to practice religion and can’t tell us not to practice religion. It also can’t tell us that we must practice religion.

This is not Indonesia, Iran, or Saudi Arabia. We do not have to believe in any gods at all, and no one can tell us what version of which of the 3500+ gods man has ever worshipped that we should worship.

And just to make sure that foreign governments were aware of this, John Adams, this country’s second president, included in the Treaty of Tripoli an affirmation of the secular nature of the American government with the following language in the Treaty of Tripoli, which was duly ratified – unanimously – by Congress in 1797:

As the Government of the United States of America is not, in any sense, founded on the Christian religion,—as it has in itself no character of enmity against the laws, religion, or tranquility, of [Muslims],—and as the said States never entered into any war or act of hostility against any  [Mohammedan] nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.

23. If we say “under God” in the pledge at school, we are obligated to continue praying in schools so as not to be hypocritical.

Fine. I won’t say the Pledge, either. Not that I have since I was in elementary school and thought I had to. Actually, I stopped saying the pledge before I was out of elementary school, because by about 5th grade I had had it with religion and with the “because I said so” reasons that I was given for really just about anything. Plus, I thought it was stupid and meaningless to pledge my undying devotion to a piece of cloth. If any piece of cloth could be that important, it would have been the old pink blanket I used to drag around the house when I was a little kid. At least that ratty old thing gave me some comfort and kept me warm.

Rev. Hunt should keep in mind that Jehovah’s Witnesses don’t have to say the pledge, either, because doing so violates the rules of their religion.  Neither does anyone else who doesn’t want to, thanks to the Supreme Court’s 1943 ruling in West Virginia State Board of Education v. Barnette.

We’re back to that “free exercise” thing that necessarily goes hand-in-hand with the “disestablishment” thing, and the “freedom of speech” thing that necessarily implies freedom of conscience.

We are free to reject religion, to follow our own consciences, and we are free not to have to submit to someone else’s religion.

Even the religious right’s.

 

An earlier version of this entry was posted to What Would JT Do?

West of Memphis and the West Memphis Three

Last week I went to the Market Street Cinema to see the free screening of West of Memphis, the newest offering among the documentaries about the West Memphis Three. (It’s offered again later this month for anyone interested, and will be back again later in the fall.)

West of Memphis, Sundance Film Festival, West Memphis Three

In the event that anyone reading this has lived under a rock for the last couple of decades and isn’t aware of the case, the West Memphis Three are Damien Echols, Jason Baldwin, and Jessie Misskelley. They were teenagers when they were convicted of the capital murder of three eight-year-old boys in West Memphis, Arkansas.

In 1993 and 1994, there was a media circus surrounding the arrests and the trials. The West Memphis police, ignorant and superstitious, claimed that Echols, who was a weird kid who dressed funny, liked magic, and listened to heavy metal music, was the leader of a Satanic cult that ritualistically killed the little boys. After a nine hour interrogation, the West Memphis Police coached a confession out of Misskelley, a mentally handicapped high school dropout. All three were convicted. Echols was sentenced to death; Misskelley and Baldwin were sentenced to life without parole.

After nearly two decades of legal wrangling, the WM3 were freed from prison about a year ago, when, rather than go through a new trial, they entered pleas pursuant to North Carolina v. Alford, pleading guilty but simultaneously declaring their innocence. It was a long road getting there – 18 years long. That’s half again as long as the Millennium Falcon’s Kessel Run. They took the whole 18 parsecs to get there.

Scott Ellington

Prosecuting Attorney Scott Ellington (source)

In the film, Prosecutor Scott Ellington repeated his assertion that, despite not having reviewed the evidence in the case, he believes the West Memphis Three are guilty. He was not the original prosecutor. That dubious honor went to John Fogelman and Brent Davis, a pair to whom I have no problem assigning contempt.

Likewise, the judge was not the one who had presided over the case for 18 years. Judge David Burnett repeatedly ruled against the defense at the pretrial, trial, and post-trial proceedings. Had he still been on the bench when this offer was extended, we cannot be assured of the same outcome.

A week before the murders happened, I hung out my shingle and opened my solo law practice. Even though I had been out of law school for five years, I felt like a neophyte when it came to actually practicing law. Oh, there are stories, some of which I’ve told and some of which I will never tell, about how I groped my way to a successful practice. But in 1993 I was uncertain and confused about the practice of law. And like most of the rest of the state, I was riveted by the unfolding case. By the time of the trials eight months later, I was appalled at the travesty of justice I saw. I felt completely impotent. I had no idea that I might have helped, and boy, I wanted to help. I had gotten into the business of law to help the underdogs of the world, and the West Memphis Three defendants were underdogs from the day they were conceived.

When the first appeals were being pursued, Arkansas’s Death Penalty Resource Center, a state agency that provided litigation support and appellate representation in death penalty cases, was defunded and disbanded. One of its attorneys, Al Schay, sublet office space from me. The day he trundled in the boxes that held the transcripts of the Echols-Baldwin trial, he said I could read them. I had read countless transcripts as a law clerk for an appellate judge, and was undaunted by the thousands of pages of testimony and exhibits. I sat on the floor of Al’s office after hours and I read. And read. And became enraged at the prosecutors and the judge who presided over the cases. The fact that those three young men were convicted of capital murder on such flimsy evidence was appalling.  What’s worse, I don’t remember a single motion that went in the defense’s favor – except one. That one favorable ruling was ultimately undermined by juror misconduct. The ruling should have prevented Jessie Miskelley’s coached confession from coming into evidence against his co-defendants. However, the jury foreman in the Baldwin-Echols trial made a special effort to ensure that the jurors were aware of it.

Courtroom Rotunda, Arkansas Justice Building

Courtroom Rotunda at the Arkansas Justice Building (source)

The day the Arkansas Supreme Court upheld the convictions, I realized that the court was nothing more than a calculating political beast. The majority reached its conclusion because that was the conclusion they felt they politically had to make. Three devil-worshipping teenagers had ritually murdered three little cub scouts. It was sensationalism that sold papers. It was sensationalism that provided job security even in the august halls of the Supreme Court, where I had been so proud to work not long before. It sickened me.

Jason Baldwin and Damien Echols should never have been convicted. They did not receive a fair trial. Did Jessie Miskelley? I don’t know. I’ve never read the transcript of his trial. My guess is that with the same people in positions of power, and the same facts, he did not. I know that Dan Stidham, Misskelley’s lawyer, believes he did not.

Dan Stidham

Dan Stidham, Legal Hero (source)

I met Dan Stidham at a seminar recently. For fifteen years, Dan Stidham was an active hero in the West Memphis Three case.  He was appointed to serve as Jessie Misskelley’s attorney at trial, and was the only attorney who stuck with his client after the trials, even to the point of preparing Jason Baldwin’s appellate paperwork when Jason had no lawyer. Stidham is now a circuit judge, but he was Jessie Misskelley’s lawyer throughout the trial and appellate process until 2008, when he assumed the bench. I told him that I wished I had reached out back in those days. I didn’t because I thought I had nothing to contribute. I realize now that I could have offered my time. I told him that when the trials were ongoing, I had wanted to do something – anything – because I saw what a miscarriage of justice was happening. He gave me a look that said, “Why didn’t you?” and I felt more impotent than ever. I regret not doing something back then, even though I didn’t think I was competent to do anything.

In the years between their convictions and their release, I was peripherally aware of the movement to free the West Memphis Three. I had seen the billboard in West Memphis with its tipline phone number. I read each court’s decision denying any relief at all to the convicted men. I never forgot them, but I believed their case was hopeless. A results-oriented judicial process was at work, one I knew intimately from the inside. It didn’t matter how the judges reached their decision, only that they reached the one most politically appropriate. They had constituents to answer to each election cycle. A case as notorious as the West Memphis Three had to be controlled with an iron fist.

I never saw Paradise Lost: The Child Murders at Robin Hood Hills  or Paradise Lost 2: Revelations, the HBO documentaries about the West Memphis Three. I never read Devil’s Knot, investigative reporter Mara Leveritt’s book about the case. I had read news articles about the case, though, and read each judicial opinion at every level, both state and federal, as the fruitless appellate process lumbered on over the years.

Then, in the spring of 2011 I heard from Ken Swindle, an attorney in the northwest part of the state, whose contributions to a listserv for trial lawyers I had admired for several years. Would I sign a petition asking for a new trial for the West Memphis Three? I didn’t have to think about it. Hell, yes, I would! The West Memphis Three case exemplifies for me what is wrong with the criminal justice system on so many levels: cronyism among law enforcement officials and the State Crime Lab, results-oriented judicial decision-making, religious bigotry, a lack of critical thinking skills among the population at large (which make up our juries), prejudice, bad science, superstitious ignorance, the lack of resources available to all but the wealthiest criminal defendants, and the complete failure of standards of reasonable doubt and the assumption of innocence.

There’s no way I could ever practice criminal law. I would stroke out in very short order from the stress caused by the rampant injustice. The assembly-line attitudes I have encountered in family court and in juvenile court are bad enough without compounding it with the inequities of the adult criminal justice system.

But finally, the Arkansas Supreme Court did the right thing. Finally, it agreed that DNA evidence had to be considered in light of all the rest of the evidence – including evidence that at least four trial witnesses had recanted in the intervening years, and possibly including evidence that the Echols-Baldwin jury was tainted by the published confession they were never supposed to consider – and which the jury foreman made sure they did. And when the Arkansas Supreme Court sent the case back to the trial court this time, there was a new judge in town.

Judge David Laser acknowledged in open court that the release of the West Memphis Three pursuant to the Alford pleas wasn’t justice for anyone – not for the defendants, and not for the victims – because innocent men remained convicted, and were robbed by the State of nearly two decades of their lives.  The terms of the plea agreement allowed three victims of a miscarriage of justice to finally go free, albeit under the burden and stigma of probation. Judge Laser said,

I don’t think it will make the pain go away to the victim families. I don’t think it will make the pain go away to the defendant families. I don’t think it will take away a minute of the eighteen years that these three young men served in the Arkansas Department of Corrections.

West Memphis Three Press Conference

WM3 at the Press Conference After Their Release Hearing (source)

Since their release, I have seen the first two Paradise Lost documentaries as well as the third one, Paradise Lost 3: Purgatory, which was being made just as the WM3 were freed. I have read Devil’s Knot. The thing is, it didn’t take any of these efforts to convince me that justice was not served. While they told me more than I knew before, I knew when I read the transcripts and looked at the evidence on the first appeal that the West Memphis Three were innocent. Not just “not guilty,” which can mean that they probably did it but the state didn’t prove the case, but innocent. 

And that leads us to the real question: who killed Chris Byers, Stevie Branch, and Michael Moore?

West Memphis Three Victims

West of Memphis left me with more questions than ever before. In December 2011, three new witnesses came forward with hearsay evidence that Terry Hobbs, Stevie Branch’s stepfather, has admitted guilt to members of his family. It’s my understanding that, despite his strong assertion that he would look into anything the defense brought him, Ellington has not done a single thing in the last nine months to look into those allegations. Hearsay is plenty good enough for investigators to launch investigations in much less serious crimes. If it is true that the “Hobbs Family Secret” is that Terry killed those boys, Arkansas is denying justice not only to the WM3, but to the victims and their families.

That having been said, West of Memphis did not show conclusive evidence of Terry Hobbs’s guilt. I don’t think it intended to. It raised serious, valid questions that need investigation, though. Someone killed those kids, and that someone has never done a single day’s worth of prison time for their murders.

Also disconcerting to me were David Jacoby’s on-camera statements and his willingness to allow recordings of his telephone conversations with Terry Hobbs about the night the boys disappeared. Jacoby is a friend of Terry Hobbs, and was with Hobbs for part of the evening and night when the families and police searched for the missing children.  He stopped short of saying outright that he wasn’t with Hobbs during the time Hobbs claims. Since he is Hobbs’ alibi, I wish Jacoby had been asked that tough question directly, and I wish he had given a straight answer. The implied answer is there, but the lawyer in me wants it airtight.

I don’t know if Terry Hobbs did it. I don’t know if there was someone else in those woods who killed the children. But “beyond a reasonable doubt” and “innocent until proven guilty” have to mean something. They just HAVE to. And despite two juries, and despite the affirmed decisions of the appellate courts, the West Memphis Three were not proven guilty.

 

As a postscript, my hat goes off to Ken Swindle, who didn’t stop working on the case when the West Memphis Three walked out of that courtroom last August. Ken has filed requests for disclosure of evidence under the Freedom of Information Act on behalf of two of the victims’ parents. The West Memphis Police Department maintains that the case is closed, so the information is fair game under FOIA. The problem is, they won’t deliver. The plaintiff parents, Pam Hobbs, ex-wife of Terry Hobbs and mother of Stevie Branch, and Mark Byers, adoptive father of Chris Byers, are both very outspoken supporters of the West Memphis Three. Today, Ken requested a hearing on the FOIA request, which has been resisted by both the West Memphis PD and Scott Ellington, the current prosecuting attorney.

You go, Ken. Call me if you want help.

 

Hot Coffee and Tort Reform

Over the weekend, I hosted a movie night for a group I belong to. Usually our movie nights are casual, frivolous affairs. We watch a comedy or something. Monty Python and Kevin Smith are perennial favorites. Not this time, though. On occasion, our movie nights are used to educate ourselves. Our group is composed of politically-minded, intellectual, highly intelligent people, most of whom have humanist tendencies, and all of whom have strong opinions.

Last year at the Sundance Film Festival, Hot Coffee, a documentary about tort reform and its effects on ordinary people premiered to very positive reviews. I decided to show it to my politically-minded friends. The rhetoric spewing from the tort reformers, whose voices seem to be the only ones I ever hear, doesn’t even begin to treat the problem with any sense of even-handedness.

Because of the way it’s being pushed on an unsuspecting public, tort reform makes my heart pound. Its wrongness takes my breath away. The idea of capping the amount someone can recover for wrongs done to them simply cannot be set at an arbitrary amount. An amount of damages that is fair in one case is not fair in another. Putting an arbitrary amount on how much someone should be compensated for serious injuries flies in the face of the very purpose of our civil justice system. The way the current reform movement wants to change how people are compensated makes no sense at all.

Each state’s tort reform law is different, but the idea behind them tend to be the same. Most famously, these reform laws want to limit punitive damages. They also want to put limits on who can file suit, and when.

I should make a disclosure here. I am a lawyer. I’ve had a civil practice for 24 years. I am not now, nor have I ever been, a tort lawyer. Oh, sure, I’ve handled a minor car accident here and there over the years, but never when much money was involved and never when I thought the case would not settle.

 

What about all those frivolous lawsuits?

No one likes the notion that there are people out there working “the system” and being rewarded financially for filing frivolous lawsuits. The truth is, though, that frivolous lawsuits rarely get off the ground. There are several reasons why.

One reason is that tort lawyers tend to finance tort claims. Unless there is a very good chance of a pay day at the end of the line, no lawyer is going to invest his own money into someone else’s case. That’s just simply a bad business decision. The discovery process, through which the lawyer prepares for trial, costs thousands of dollars. Expert witnesses cost thousands of dollars. Court reporters cost hundreds, if not thousands, depending on how many depositions are taken. Unless the case has a good chance of being won, no lawyer is going to accept it. Furthermore, the case has to be worth enough money that the settlement or judgment will cover the plaintiff’s actual damages, the costs of litigation, and an attorney’s fee. If it won’t compensate the lawyer for his time and expenses, the lawyer won’t take the case.

Another reason is that sanctions against an attorney who files frivolous suits are harsh. Fines, disciplinary actions, public censure by the courts, and damage to the lawyer’s reputation deter frivolous filings. I have heard the objections to this line of reasoning. Within the last month a young lawyer reported to me that he was told that the way to earn good money was to file frivolous suits and settle for “nuisance money,” or any amount of money that the insurance company will pay just to make the case go away. While I was appalled at the thought that there are people in my profession who operate this way as a matter of course, I won’t say that suits are never resolved this way. At times, they are. But if they are completely frivolous, I’ve never known an insurance company yet that would pay a single dime to a litigant.  Defense attorneys do not hesitate to file motions for sanctions when they believe sanctions are warranted.

 

What is a tort, anyway?

Many Americans do not even know what a tort is.

My torts professor in law school told us that a tort is a civil wrong. Very simply put, people commit torts when they injure someone else. Automobile accidents and medical malpractice are the  torts that most quickly come to mind. We suffer torts when the neighbor’s dog bites us or when the guy at the bar takes a drunken swing at us. The defamatory conduct that makes up libel and slander is tortious. Poorly designed products that hurt us are the subject of tort actions, including drugs, toys, tires, and automobiles.  Interfering with someone’s business is a tort.

Many crimes are also torts. While the state has an interest in prosecuting someone who physically injures another person, the injured person gets nothing from the criminal prosecution. To redress the wrong done to him, the injured person sues the perpetrator in a court of law. There, the court can award damages to compensate the injured person for his injuries.

 

What is the point of a jury?

 

The very same people who say they are behind tort reform make up the juries that award damages to injured people. They are the same people who, when they have been grievously injured, demand the right to sue so that the person responsible pays for the harm. And then they are shocked when they can’t be compensated fully, because, after all, theirs was not one of the “frivolous” lawsuits that caps on damages was supposed to guard against.

Why are there large awards? Because in a court of law, with both sides being represented by able counsel, the jury decides that proof demands such an award. That is the amount it takes to make someone whole after a grievous harm.

When we allow our legislatures to put arbitrary caps on damages, we are giving up a constitutionally-guaranteed right to be made whole. Furthermore, we are tying the hands of the jury system.

 

But what about those multimillion dollar awards?

Most people object to large awards of punitive damages. Punitive damages are meant to punish especially egregious conduct. They are not awarded in every tort case; they are the exceptions that make the headlines. Punitive damages don’t beggar the perpetrators of torts. They are, however, intended to be felt. Remember the “excessive” punitive damages award in the McDonald’s coffee case? McDonald’s offered the victim, who had undergone months of skin grafts because of the extent of her burns, $800 – not even a drop in the bucket toward her medical bills. The punitive damages award represented two days of McDonald’s coffee sales. Just two days of profits. Just on coffee.

 

So, what should we do?

It is shocking that we should be talking about depriving people of just compensation. If we don’t like that punitive damages “enrich” victims of torts, then the conversation should be about what else to do with the money – because especially egregious conduct deserves to be punished.

One suggestion: How about a fund to improve access to justice for people who can’t afford lawyers? Currently in Arkansas, our legal services agencies are spread so thin that poor people can only get divorce lawyers if they are also physically abused.

 

 

 

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