Jan 3, 2023
A New Way to Find a Job
Today’s job hunt should start with careful invention following the example of Congressman George Santos (R.NY) and the preparation of a resumé that need not carefully align with facts.
In this post-truth, Santos Protocol, Inventing Anna world, a fact is whatever you claim it to be.
Disagreement can be shrugged off as opinion and fact-checkers mere haters.
A good legend avoids mentioning licenses that might be verified. A refutation can be met with the rejoinder that typos, mis-spellings and apostrophe’s often lead to confusion, whether this has applicability to your name or not.
Contractors are never employees and NDA’s can cover as much time as you like.The former status can be used to claim a wide range of affiliations, the latter provides cover for time periods spent unemployed.
The Santos Protocol: you can be anyone. You are anyone. Fiction is narrative and you are entitled to your own truth. And moreover:
A good lie is better than the truth.
Jan 2, 2023
John Delorean
I feel for those whose surnames include a ‘de, di, la’, an ‘al-’, ‘el’, ‘ben’ or ‘ibn.’ Or ‘von’. And of course, anyone who has the misfortune to have an apostrophe in their name. I feel for you.
John DeLorean (not De Lorean, which would put him in this select group) was on trial in federal court in the Eastern District of Michigan during a time when I had several cases in the same building. Every now and then I’d stick my head into the DeLorean trial—you didn’t get a sense of how tall DeLorean was when you saw him on television, but in the courtroom with his height and shock of prematurely white hair he was perhaps the most distinguished looking defendant I had ever seen.
He had a car company in Ireland—no stranger to the apostrophe, he—and I couldn’t help thinking that the Michigan venue was chosen to punish DeLorean as much for having the gall to compete with American car companies as anything else.
DeLorean was acquitted, an extremely rare occurrence in federal court during the past half-century. The criminal rules of procedure are slanted heavily towards the prosecution in federal court, but this is not the time to write about that unfairness. This is about an apostrophe.
BCCI
Few know that the many-tentacled criminal case against the Bank of Credit and Commerce International first went to trial in Detroit. I represented one of the defendants. BCCI was a bank founded by a Pakistani mystic and had branches in America, Europe and Asia.
The bank did not have a license to do business in Saudi Arabia, but an expert witness later noted the fact that despite this deficiency, many members of the Saudi royal family had accounts at the branch in Riyadh. At that time, he said, Saudi banking laws were mostly cosmetic.
The main allegation in the American criminal prosecution of BCCI was that the bank laundered drug money. My case involved the owner of a truck that allegedly was the vehicle used to deliver ten kilos of cocaine to a group of Chaldeans (the term then used for Iraqi Christians in Detroit) who sold it from their bodegas. The money was then collected and transferred to the American branch of BCCI in Tampa.
The first criminal prosecution then, took place in Detroit, where DEA agents had tracked my client’s truck and seized it when it arrived to offload its Colombian merchandise.
Most people don’t realize how local the practice of law is. Lawyers in every state, and sometimes even within the same state, raise barriers to lawyers from out of state. I was coming from Miami, a snowless city three hours away by airplane. I was suspect.
These not-so-warm feelings extended to the local judges, who were promoted from the same pool of suspicious lawyers. It is only when judges join the multi-state federal courts of appeal that these ill feelings start, only start, to dissipate. They never disappear entirely.
Whenever I can be admitted to practice locally, I’ll always fill out the paperwork and pay the fee in an attempt to avoid the local prejudice. Sometimes this works, but more often than not, it doesn’t.
The Clerk’s office in Detroit would admit me to practice for a ten dollar bill and I would get a pretty engraved certificate that I could put up on the wall in my office, the one with the picture of the red jeep I brought from Panama, the one with the DoT safety exemption, though they did make me get rid of the split rim tires.
When I returned to Miami, I put the beautiful new certificate of my eligibility to practice law before the judges of the Eastern District of Michigan in a glass frame and hung the frame on the wall. Were most of my clients not already in jail, they surely would have been impressed by this official document. Every now and then I would clean the dust off the glass if the accumulation made it hard to read.
The Broken Frame
The criminal justice system is a process. Arrests are the intake, then the poor accused journey through the federal system until they are convicted and sent to federal prison. The system waits for no one. A client, arrested in Detroit on another case, asked me to represent him.
I prepared a document of representation, called a Notice of Appearance and sent it by Federal Express to the Detroit courthouse on West Lafayette Boulevard, to the attention of the same Clerk’s office that a few months before had been happy to receive my ten dollars.
A few days later, I received a call from the judge’s clerk. He told me that the judge had prepared a Rule to Show Cause and wanted it read to me personally, so that I could not claim that I had not received it.
The Clerk started reading. “This Cause having come before the Court sua sponte (that is, at its own initiative) in the matter of Michael O’Kane’s filing of a Notice of Appearance in this matter, a rule to show cause is hereby issued why he should not be held in contempt of court for attempting to file a Notice of Appearance while not a member of the bar of this court, a full and thorough inquiry into the books and records of the Office of Clerk of Court having been conducted which show that he has never been admitted to practice in this court. Done and ordered in chambers, in Detroit, Michigan, this 10th day of September, 19XX.”
I tried to tell the judge’s clerk that I was admitted but he cut me off. “There’s no point in arguing,” he said, “you will have to make a formal application to the court.” Federal judges can put you in jail and in a criminal case—which this technically was—they can send the Marshals to pick you up anywhere in the country, even in Guam.
I imagined the 30 hour bus ride to Michigan, sitting with shackles around my ankles behind an iron grate behind the driver and two men with shotguns. Prosecutors call this “diesel therapy,” a form of torture. I had made no more enemies in Detroit than I had in other new cities, so I had no illusions: the judge would be happy to send me to jail as a warning to others.
What stood between me and a stint in federal prison—there’s one near the University of Michigan at Ann Arbor—was a pretty certificate behind a glass frame on the wall. I had no other proof.
The Burden of Proof
The certificate eventually came out from behind the glass only partially defaced, because a corner had fused to the glass. The solution was to break the glass, like you might do to get an axe in case of a fire. I have always wondered what you would do with an axe, standing in the middle of a burning building. Start vandalizing burning walls? What good would that do? What good is an axe against metal doors, anyway?
But break the glass I did, in an effort to put out this judicial fire. I had to make a photocopy of the certificate; bits of glass reflected the light while on the glass platen giving the effect of glitter. I tried to send a fax to the clerk’s office but they informed me they did not take faxes from out-of-state attorneys.
I explained that I was a locally-admitted attorney who was out of state and they simply repeated that out of state attorneys were not allowed to send faxes. They did offer the helpful suggestion that I call the judge’s chambers; but the helpful suggestion turned out to be less than useful when I reached an answering machine.
I thought that all I needed to do was send a copy of the certificate to the judge, but I was not to get off so easy. The clerk might misfile the certificate or not know what to do with it. After all, the Office of the Clerk had already reported, after thorough search no less, that the pretty certificate did not exist. Given that there was an official finding that the certificate did not exist, the fact that I held it in my hand was irrelevant. The judicial finding controls.
Pleading
To file the a copy of the certificate, with its glitter and all, I had to prepare a pleading describing what had happened. As I didn’t know what happened except that the certificate in my hand was deemed not to exist, I had to argue that it did exist after all.
But I had to do so in a polite way, apologize for any inconvenience that I had caused the court and opposing counsel—the fact that I had made no mistake did not excuse me from the need for an apology for the lack of an apology would weigh heavily on appeal given the presumption of correctness of a lower court’s findings, especially after thorough inquiry.
I made five copies, included a self-addressed stamped envelope to receive a stamped copy of the pleading and went to the Federal Express office at the quiosque on 27th Avenue and US 1, just across the street from the Shell gas station.
We Don’t Make Mistakes
Officially, I never heard the end of it. There was no ruling from the judge finding that the pretty certificate in fact existed, nor an order quashing the Rule to Show Cause.
I wasn’t satisfied. I asked a friend to visit the Clerk’s office on my behalf in an effort to try to figure out what had happened. A few days later, he called.
“It’s the apostrophe in your name,” he said. They alphabetized it as if it were a letter, so that O’K comes before OK. But the clerk that searched went right to the K’s and didn’t look at the apostrophes. Your name didn’t come up, so they told the judge who had asked if a certain Miami lawyer was admitted.
They couldn’t admit their mistake because if they did; then every time the Clerk’s office made thorough inquiry lawyers could claim that a mistake had been made, “just like in the O’Kane apostrophe case.” So the best course was to say nothing more, do nothing more and hope that the matter would be forgotten.
Yes, I was out of pocket the cost of Fedex and long distance calls and I had spent a worried afternoon drafting the pleading, but so what? I should be happy I wasn’t dragged to Michigan by the U.S. Marshal and forced to sit shackled behind the two marshals with shotguns.
There was no order, so there was nothing to appeal. And no, I shouldn’t expect an apology. “We don’t make mistakes.“
Dec 12, 2022
Britney Griner was benefited in more ways than one by the extraordinary prisoner exchange with Russia. Russia and the US do not have a prisoner transfer treaty. The US does have such a treaty with 11 countries and is a signatory to two multilateral international conventions. The terms of these treaties are all the same: upon transfer, a prisoner is not automatically freed. Instead, the prisoner is to serve the remainder of his sentence in the prisons of the receiving country. The receiving country’s parole rules, however, would apply.
When these treaties were negotiated, federal parole still existed, but parole was abolished under the Sentencing Reform Act of 1984. Since then, federal prisoners must serve their complete sentence, with 55 days granted each year for good behavior. A transferred federal prisoner still has to serve 85% of his sentence upon return to the United States.
If there had been a prisoner exchange treaty between the US and Russia, Griner would still have the bulk of her sentence to serve in the custody of the Bureau of Prisons. Assuming good behavior, she would be freed in 7 ½ years.
A life sentence imposed overseas means life in America. For many prisoners, the idea of returning to the US for confinement is unthinkable: with permitted conjugal visits, in many cases foreign prisons are more humane than American ones. Parole eligibility, amnesty and more frequent pardons are all reasons not to come home.
Despite the existence of a valid prisoner exchange treaty between the United States and Peru, that treaty was never invoked in favor of Lori Berenson, convicted in 1996 of terrorist offenses and originally sentenced to life. Although her sentence was later reduced to twenty years, Berenson did not seek transfer to the United States under the treaty. Instead she remained in Peru and had a child with her husband. Returning to the United States would have meant incarceration without parole. Berenson thus remained in Peru.
Britney Griner got special treatment indeed. I’m not sure she realizes just how special her treatment was.
Nov 29, 2022
I came across a reference, in a new biography of Colette, to the “Duke of Sodom,” a French dandy, contemporary of Oscar Wilde, named Robert de Montesquiou. I thought I’d look him up, for after all, anyone who has earned the sobriquet “Duke of Sodom” must be a memorable character.
I was surprised to find on his (English language) Wikipedia page a reference to time travel and one of the great mysteries that has intrigued me for so many of these years and in a small way, was the seed for my El pueblo (The Settlement, serialized here) though to be fair, it was the juxtaposition of contemporary and 15th century architecture in San Miguel de Allende that suggested the possibility that there might be a place out of time.
Two English ladies were visiting Versailles around the turn of the century, turned a corner and found themselves in the 1700’s. They believed they had crossed the threshold of some kind of time portal and had traveled in time.
Their story was mentioned, if I recall, in the People’s Almanac in the 1980’s as well as in other books. The tale suggested that while time travel may be exceedingly uncommon, visiting the past nevertheless was possible.
They wrote about their adventure, never realizing that there was a simple explanation for their shared experience and the Duke of Sodom was responsible for their confusion:
An Adventure
In his biography, Philippe Jullian proposes that the Moberly–Jourdain incident in 1901, in which Charlotte Anne Moberly and Eleanor Jourdain claimed to experience time travel in the grounds of the Petit Trianon, is explained by their stumbling into a rehearsal of one of Montesquiou’s Tableaux Vivants, with his friends (one possibly transvestite) dressed in period costume. Joan Evans, who owned the copyright to An Adventure (1911), Moberly and Jourdain’s account of their experiences, accepted this solution and forbade any further editions.
A mystery solved, methinks.
Nov 25, 2022
While the arresting officers’ body cams have not been released, at least one journalist has seen the footage. The recording shows that Paul Pelosi indeed opened the door to the officers, did not say that he was in danger, and then retreated back into the house away from the officers and towards his assailant. It is not clear how long Pelosi stood near DePape before the assault started.
The federal indictment states that it was the officers who opened the door, not Pelosi. Who opened the door is neither an element of the offense that DePape is charged with, nor is it exculpatory. However, it does show that at least some of the now-retracted NBC reports were accurate then and are accurate now.
In a run of the mill case, detail fuzziness could simply be explained by time pressures or sloppiness in not correcting a draft. It is hard to believe that either of these excuses were present in a crime involving the husband of the Speaker of the House of Representatives.
The bodycam footage remains unreleased. Worse, the 911 call has not yet been released.
