Only the Small are Cruel--But Have We Conditioned Them to be Cruel?
Sorry, I always use cop examples, but that is where my background lays; therefore, I am not picking on this particular class of persons in our society, but using them to make a point, about certain professions, and the nature of their jobs, that at times, makes it hard to separate their line of work from, their homes, their normal everyday interactions, and I am not making excuses for them, just laying the foundation for what a jury of a citizen, under investigation for a crime might be, has that notion morphed over time, since the founding fathers set it up, to now, and is it critical to cases like the three just mentioned to get the right resolution to the case, or apply the average man standard, which, while not gods by any means, we have put them on a pedestal and knocking them off is easier, and the bigger they are the harder they fall! Our system, should be about justice, not making a public statement, or using it as a platform for social change, but really dealing with the issue at hand, and the laws that apply, not the ideal we want to happen, but dealing with the reality of sports, crimes, and setting a precedent that is predictable and rational.
But, I was once speaking to a group of cops, of all sizes, shapes, and color of uniform, about the evils of domestic violence, and told these alleged group of distinguished officers, that it was their duty to make it a point in their communities, that men, know it is not okay to beat their wives . . . there was not a second pause, and some officer, totally unabashed, piped up and said, we all beat our wives! I was shocked by the truthfulness, boldness, and straightforward unscripted shockingly honest statement. WHAT? And at that point, I realized, that this was not going to be as easy, nor were these guys going to be as receptive to my message, nor were they raised, like I had, with a father who would not allow my younger brother, who had six sister, three flanking him on both sides, to hit us, due to the fact that he better get his temper under control now, because one day he was likely to stand 6'4" and tower over this wife, so get some practice in, and not only that, but you have to open the car door for your mother and all 6 sisters, each time we, as a family get in the car . . . in my humble opinion, he never was physically abusive to his wife, but he appeared to be, to me, psychologically, financially and emotionally abusive to his wife, just like my father had been to my mother.
Back in the Day . . . We Haven't Come A Long Way Baby
Now, you have to remember, this took place 20 years ago, but, after attending a meeting in Missoula, on domestic violence, it didn't sound as if we had progressed one bit, since I was involved as an assistant attorney general, and staff attorney for the Utah Prosecution Council, in the Criminal Enforcement Division for the Utah Attorney Generals Office, when I first became involved with the fight to stop domestic violence. I still remember, my boss, Attorney General, Jan Graham, who to her credit started to expose the public on a broad basis through community programs, the horrors of domestic violence, through video presentations and brochures. But, once she asked me if she could take my place, on TV, due to her upcoming election, with one of the old time investigative reporters, Ted, can't even remember his name right now, but she did, I prepped her for the interview, and the reporter even accused her of creating domestic violence! They were literally screaming at each other, behind the closed doors in the inner sanctums of the AGs office, thank God, and I really thought, standing listening through the door at the interview, she was going to start taking law books off her selves, and plastering this obnoxious reporter with the heavy books! The interview, never aired.
It was definitely an emotionally charged hot topic, and I often was called to go to a particular part of the state, and protect victims, who had been abused, and were further abused by the cops who took the side of the abuser, so I came in to even the score and add some pressure to get the cops under control, even to the point of having the perp with an ankle bracelet on his ankle, drive up in his big red neck truck, and threaten me, with warnings immediately being supported by my boss, former prosecutor, chief deputy attorney general, later director of the sheriff's association, that I was stepping out of line, pushing cops and their buddy, the abuser around. So, this is an issue, as is child abuse, if that is truly what it is, because parents are allowed to use corporal punishment to control their kids . . . it is their job to train them in the home, so they don't terrorize us on the streets, so there is a fine line, between abuse and discipline!
No Excuses, Zero Tolerance for Abuse, But Where is the Line?
Jay Rice, NFL Football Player, Lands a Left Hook to His Wife's Face--Knock Out!
No doubt about it, that is domestic violence at its ugliest, and that should never, never, ever, be okay. From all accounts, from friends, this guy is a nice guy, and that was totally out of character for him. If that is the case, then I would guess, from my experience, that alcohol was involved, in fact I believe that the first reports of what I heard, was that the couple, engaged at the time, were out partying, drinking and gambling, unless, I just made that up in my mind, but that is what I recall, They got in an elevator at the hotel, or casino, there must have already been something, going on, because it seems that before the door even shuts, Rice's wife, pushes him back against the wall of the elevator, and with lightning speed, he responds, hitting her in the face, knocking her out cold . . . then a second video that the world saw first, shows him dragging her limp body out of the elevator, and into the hall, as caught on camera, which has become an American way of life, which, I in fact hate, with all kinds of issues, arising, from right to privacy to unreasonable searches and seizures, of my image on camera, when there is not probably cause to say, smile, you are on candid camera! But, in this case, the camera did catch a crime, but I don't know if that justifies it in my mind.
The sad thing about this case, in my opinion, is we have an alleged cover-up, which always makes things worse, and just a slap on the wrist, making the player sit out two games. Then, Rice is tried in the press, the judge of public opinion, that is quick, not trained in the crime nor the complexities of domestic violence, the cycle, the dynamics, and public outrage, as it should, for society at large, jumps in and makes a statement, and rightly so, the beauty of a made for TV story, that brings to light, a critical issues, that needs to be addressed, brought into the public light, for the ugly crime it is . . . but, then, due to the pressure of the fans, NFL management, jumps to the other extreme, and kicks Jay Rice out of the NFL; I don't think the punishment fits the crime . . . that starts to infringe on his 8th amendment rights to be free from, cruel and unusual punishment, going beyond the mark, and beyond the law, destroying his whole career, hurting his family, his wife, and the league, rather than just applying the law, the way it is written, and if he has to go to jail, as the law dictates, the natural consequences of the law, will take him out of the game, for the right amount of time! Whatever the jury, the judge, and the system would do to any other person, regardless of status in society!
The Law Is About Definitions & Hair Splitting--It All Boils Down to What the Word "Is" Means
Yesterday, here in Kalispell, Montana, a current Justice on the Montana Supreme Court, visited the Flathead County Republican Pachyderm--that is an elephant, and symbolic of the party mascot, Club met, and invited Justice Rice to speak to the crowd, gathered at the Red Lion Hotel, to present a little of his background, not a partisan race, so he has to walk the tight rope, without showing bias, toward one party or the other, but also, be able to present who he is to the public, to garner the votes necessary to get re-elected. But I loved his very, down to earth, practical, back to the basics, approach to the law, leaving activism and law making by activist judges, behind and fighting for change in the system . . . you know me by now, the law, is the law, is the law . . . and that applies to super star athletes, movie stars, politicians, and police officers.
Through an act of defiance, civil disobedience, if you will, I refused to practice law in the state of Utah, due to prostitution of the law, obliterating the U.S. Constitution, refusing to separate church and state, and the fact that they tried to kill me since before, trying to stop me from being sworn in to the high court bar, even before I got their, aiding and abetting in crimes, fraud on the court, and on we the people, with access, abuse of power, using criminal practices to further the crimes! So to here this Judge, actually using the bench to interpret and defend the Constitution, relying on the legislative branch of the government to make the laws, rather than one man or woman on the bench, interpreting the law in such a way, as to turn the law in a totally different direction, departing from the acts of the law making body, he worked tirelessly, and I am sure not alone, but with the help of less passionate and calmer attorneys, helping return the law to its proper perspective, rightful law makers, and the bench to using well established interpretative measures, to determine, not only the meaning of the law, but the application of the law, as applied to this particular set of facts . . . thanks Justice Rice, you are healing some of the anger I have toward, not only activist judges, but judges, who don 't even understand the law, tainted by their state of birth or origin of religion, departing so far from standard measures of effective jurispurdance, and court conduct, that their actions, rulings, and judgments are shockingly unconstitutional, in the only job they have, to interpret, analyse and apply the rule of law, as it stands, not what they think, through personal bias it either ought to be, or ought to be for this particular defendant, or with preferential treatment of this party!
In both of the football player's cases, regardless of status, public outrage, fan disappointment, or sponsor disapproval, the courts should take the rule of law, as presented, codified, and preserved on the record, from the law making body of the state they are residing in, and look at the plain language of the laws on domestic violence, child abuse, allowing the prosecutor to do his job, either declining or proceeding with prosecution, depending on what the state legislature, with elected representatives of the people, who vote to preserve the politics, values, mores, morals, and standards of that community or state, then with regards to the facts of the case, proceed to charge as the law, not the press, dictates!
The Adkins Whoop Ass on His Child . . . What Defines Child Abuse in his State?
State legislatures, with cultural, religious, political differences, will write and create laws that differ state to state . . . so what does the law, actually say, regardless of a modern, helicopter parent press, society, or football league say, child abuse constitutes, or is he, legally within his right to discipline his child, being, none other than his parent, who knows the kid, exercising his right as a parent to discipline, the way he sees the child needs! In Utah, which is the only law I am familiar with, the parent, is first in being the deciding agent on how to discipline a child, with the right to use corporal punishment, as he/she sees fit. Back in the day, neighbors could spank a child, and perfectly within the norm of not only what was expected, but understanding that children with short memory spans, especially in the Sesame Street generations, last less than a few seconds, need immediate consequences of their actions, and waiting until a person could contact a parent, would take away the corrective measures that might benefit a child.
Spare the rod, spoil the child . . . have we created a society of BRATS? Little girls play with Bratz dolls, so there is something in our culture, that promotes the notion, that it is okay to be a brat, a mean girl, or an entitled boy, putting others in society sexually at risk, with little consequences for actions, either in the home, in the schools, in neighborhoods, being raised by parents who hover, cover, and ignore aberrant behavior in their children, sending them into a penal, or legal world that is cruel at best, on wonder over 34% of the adult population in America has been in jail . . . in Plato's essay, the Republic, he says if parents fail to train their children, the society, through the law will, so are we being derilect as parents, failing in our duties, not only to the child, but to society, in not, within reason, allowing parents, who know their children, with not magical formula, to do the best they can, as long as they don't, as in the Utah statutes, put the child in harm of life or limb, will exercising the right as a parent to discipline a child. In ancient Rome, which our founding fathers, looked to the Greek and Roman city states, to pattern some of their ideas after, under Roman law, a parent could kill a child up to the age of 21 . . . bet they had obedient children . . . honor your father and mother!
I only needed to spank my daughters once, after they cut each other's hair, the second time, risking loss of an eye, or something . . . crying about my bald beautiful little girls, who looked like babies out of a concentration camp, didn't help, so calmly after the second time, got a book on How to Make Your Child a Winner, which recommended that parents get a point across to a child, so they get it, so I remembered a neighbor who used a spoon or paddle to spank her six, very good kids, and I chose a brush as my tool of discipline, and put both of them over my knees, and spanked them so they got the point. They walked like little tin soldiers for a day or two, and asked me what the red marks on their little butts were . . . a reminder, that you could have lost an eye, cutting each other's hair, eyelashes, and playing beauty parlor! That got me through their entire young lives . . . all I had to say, was, do you want the brush? Well, no . . . my son's who were young, never even tested that one, and I never once spanked them. All are good children!
THERE IS NOT MAGIC FORMULA FOR RAISING A GREAT KID!
My father had a idea, due to the Mormon Church, seeing kids of age of accountability, at 8, when they are responsible for their own sins, and in some states, crimes, when a child was old enough to understand the consequences of their actions, when they are baptized in the Church, as a new member, understanding the ramification of that act, so he would spank a child, when needed, up to that age, then after that he would talk to them, and sometimes that was more cutting, getting straight to the point, and making his message real, raw and relevant, no matter how the child would take it . . . he was, over all a very effective parent, and had a good rule of law established, he may or may not agree that he raised, me well, but, that is beside the point, he in no longer responsible for my actions of rebellion against my family, the church, nor society. I will take it from 18 on . . .
I had a doctor and his wife, who lived in my neighborhood, who had trouble with all of their three children. And they were lamenting the fact, that they thought they would have done better are parents, of kids with legal and criminal problems, drugs, teen pregnancy, and bad marriages, that they had done everything right, according to Dr. Spock, who later said he recommended all the wrong ideas, as the children of his era, turned out badly, with modern pop psychology, and the Mormon Church, doing scripture reading, family home evening, a loving atmosphere, etc., and said, I should have gotten drunk, kicked my kids and wife around, like my dad did every Friday night, my kids may have turned out better! So there you have it, straight from the horse's mouth. There are kids from great homes that turn out terrible, and from terrible homes that turn out great, so it is a crap shoot anyway, like Russian roulette, we have no way of knowing, and some kids are just difficult kids, I happened to get great kids, God knew I was a tough customer as a mother, and he sent me the best . . . I was firm, but fair!
Oh, the doc in the above story, also had a brother who was a doctor, and both were in leadership in the Mormon Church, with great careers, so, his literally abusive father, manged to have the right amount of anger to have raised to very good men, but the good men, may not have had enough anger, to in turn, maybe in not wanting to be like their father, spared the rod and spoiled the child, doing for them all that his, military father did to both him and his brother! I would recommend, following advice that has stood the test of time, proven to be sound, and discipline a child, when they get out of line, with a few guidelines: (1) never discipline in the heat of anger . . . cool down; (2) be firm but fair, in your discipline, carrying through with limits, family rules, and accepted behaviors . . . better a fence at the top of the hill, than an ambulance at the bottom; and (3) don't be afraid to take corrective measures with your kids, don't be afraid to allow them to hate you; you are their parent, not their best friend! And I still have that philosophy, and apply it to their spouses . . . they may not like me, and I would rather be respected, than loved! They at least know where they stand with me, the same, yesterday, today and forever, in guiding principles, standards of behavior, and stance on things like honesty, loyalty, family values, and being consistent, regardless of either their changing views, or standards, I am who I am! They can rely on that, and they have to live with a spouse, I don't; therefore, I don't have to like them, and they don't have to like me, and undercover cops, don't like me, and work their poison when they can!
Once I saw, Silence of the Lamb, based on a true story, and with a mother who was ridged, to the point of cruelty, and very religious, as I remember, I decided that I didn't want my sons, growing up to be serial killers, killing victims for their skin, to make butterfly outfits, and wearing make-up, and having studied, family and human development at a master degree level, before going to law school, and realizing that children's personalities are formed by the age of 5, I had done either all the damage or good, that I could to this point, and decided, that I had done the day to day training, eat your vegetables, clean your room, brush your teeth, with a focus on intelligent parenting, but frankly, this movie scared the hell out of me, with my boys starting to buck religion and church attendance, and I decided, I would not force them to do Boy Scouts, they might get molested, I didn't care about missions, they might turn out gay, having to suppress the natural feelings for girls, and spend 24/7 with guys, at the height of their sexual drive . . . I studied and read books, and found that a father's influence grows, while the mother's diminishes with age; therefore, it is dad's turn, and I am going to law school! I think it was the right decision.
The Tony Stewart Case is Going to Have to be Very Fact Specific
You have a death, taking place, within the abnormal and dangerous world of race car driving . . . the death was neither premeditated, planned, nor expected. Now, if Stewart, was in total disregard for human life, and the goal to win, took place of sacrifice for life, then, I would charge him with negligent homicide, or manslaughter . . . most good defense attorneys, will not put the defendant on the stand, nor allow them to testify, and none of the witnesses, can know the mindset of the driver, in a race, with egos, money, pressure, sponsors, and split seconds to make a decision, going at speeds that place both drivers, and fans at risk, if there is an accident, on the narrow track, that leaves little room for error, and may have had a driver, who was disoriented, walking straight in harms way, leaving Stewart, watching not only himself, other drivers, the possibility of choosing the lesser of two evils . . . one man, as opposed to killing or possibly killing himself and other drivers on the course, which is the nature of the game, at these speeds, with sponsors and others driving the race.
It is a sad and tragic case, that might have had no other way of turning out, depending on the facts of the case . . . it is definitely not within the realm of normal, every day driving, nor risk. So, is a jury of Stewart's peers, the average Joe, driving on a freeway, or should there be special consideration for the sport, itself? That will be the prosecutor, the defense attorney and the judge's call, once the results of the grand jury, come back, more will be known, well, these are held in secret, or in camera, in chambers, without the press, to determine, wisely, if their is merit in proceeding with the charges, if there, in deed should be. There are a million things happening on a race track at the same time. Stewart has a reputation that proceeds him, but it is part of his personal, and may have nothing to do with this case. So, all previous records and thoughts of the bad boy of racing, need to be suspended, and the case needs, to start from A to Z of only that day!
Stewart seems totally cooperative, saddened, sorry, as anyone would have been, but that would be natural. That standard of review for this case, ought not be what the reasonable man or woman would have done, but what the reasonable race car driver, given the speeds, the totality of the circumstances, risking of a pile up, it, while unfortunate, may have been the best decision, to just continue to course, kind of like, facing a deer, with danger on all sides, and just hitting it . . . with survival in mind, where applying breaks, swerving, or changing directions, may in fact, do more damage!
Conclusion
The American legal system is amazing, if it is allowed to work the way it is intended to do, with the focus on following the law, applying that to the facts, and doing what it takes to reach a just result, with fairness, uniform operation of law, due process and equal protection. When all the right stuff is followed, usually, I have found, that even if there are penalties, jail time, community service, or whatever, all sides are satisfied, that the defendant's story was properly presented, the right rule of law applied, the jury rightly instructed, the procedures, without prejudice or favors, applied, something really magical happens, justice happens!
The legal system is not to make a name for either prosecutors or defense attorneys, not for a power trip of a judge, in a high profile case, but a very serious situation, with the American public, if not the world, watching several very public figures, being brought into a court of law, and tried. There should be no preconceived notions of the outcome, until all the facts are in, and the law is well known, then you have witnesses to shed some light on the gaps in the knowledge, evidence to presented, either working for the players or racer, and then left to being controlled by the judge, and with both sides attorneys, well prepared, without grand standing, and presenting the side of the state, and the side of the defendant, and juries have been found to do a pretty good job, if all of that happens.
Some states, juries are to be both finders of facts, and to determine the law, in other states, the judge is the one who determines the law, or both, depending on what the law makers, elected by the people have decided in their state . . . the state constitutions, not local practice will dictate what roles those players in the system take, and that should be followed. Costly appeals, are not necessary, if all this is done . . . appeals deal with the possible error of the court, or the judge, in the case . . . make sure there are not errors in due process and procedure, and proceed with the law on your side, with the rules of criminal procedure covered, and the trial court will be the final determiner of the outcome of the case, without years of litigation . . . all parties, know, while not liking the outcome, that the law was applied, and while angry at themselves or the circumstances that brought about the very public incident, was handled by all, and one well.
