The Democratic National Convention Was a Farce -- and so is the Impeachment

Hunter S. Thompson once said Democrats don't learn. Today, Congress apparently finished Day 2 of an impeachment trial against a president no longer in office. I say "apparently," because no one sane is voluntarily watching the trial, nor does anyone believe enough votes exist to convict. Democrats seem unable to comprehend Republicans voting for a trial did so the same way an apiarist pretends to befriend bees in order to take their honey. (The analogy isn't perfect, because unlike the Democratic Party, professional apiarists understand danger and wear protection before walking into a hive.) In any case, the Democrats, having won Congress by less than a 1% margin and the presidency only because too many people voted for the Libertarian Party, are approaching a second impeachment as if Donald Trump is Richard Nixon reincarnated. An American history lesson is warranted, and we'll start from last year.

Not until after the 2020 Democratic Convention did I realize uninvited Representative Tulsi Gabbard was, like VP pick Kamala Harris, a mixed Desi. The popular media had hit us so many times with stories of Harris's ethnic background--visions of Obama and sugar plums dancing in their heads--they ignored the fact that the Democrats' messages of unity and diversity were contradicted by a single absent person. 

As an immigrant with an American passport--I no longer call myself American, preferring a more distended designation--everything indicates I stand to reach the upper echelons of political power only if I conform and agree with one of two sides. In elevating a mismatched duo of prosecutor and public defender to the top of the Democratic Party while literally shutting out anti-war dissenters, the only difference between the Democrats and the Republicans is now on the issue of abortion. Decades of unchecked military spending since Archbishop Ngô Đình Thục and Catholic Joseph McCarthy dragged Americans into Vietnam have given the military-industrial complex a holy victory: total control of America's political structure with an obedient Catholic leading the way. 

Conventions were not always this way in America, that alleged land of the free. At the 1968 Democratic Convention, reporter Dan Rather was attacked by security personnel as he attempted to question a delegate being removed, and Senator Andrew Ribicoff dared go off-script, criticizing Mayor Daley's Gestapo-like tactics. (Catholic Richard Daley responded by insulting Ribicoff's Jewish background.)

Each generation doubtless feels called upon to reform the world. Mine knows that it will not reform it, but its task is perhaps even greater. It consists in preventing the world from destroying itself. Heir to a corrupt history, in which are mingled fallen revolutions, technology gone mad, dead gods, and worn-out ideologies, where mediocre powers can destroy all yet no longer know how to convince, where intelligence has debased itself to become the servant of hatred and oppression, this generation starting from its own negations has had to re-establish, both within and without, a little of that which constitutes the dignity of life and death. -- Albert Camus (1957)

The conflict's genesis? The Vietnam War aka the American War of Aggression. One faction of the Democratic Party, led by George McGovern and Eugene McCarthy (not to be confused with pro-war Joseph McCarthy), was anti-war, and another, led by Hubert Humphrey, favored continued military action with the objective of forcing a negotiated settlement. The unpopularity--and infeasibility--of the war was underscored by VP Humphrey in 1965, who wrote, "American wars have to be politically understandable by the American public."

American wars have to be politically understandable by the American public. There has to be a cogent, convincing case if we are to have sustained public support. In World Wars I and II we had this. In Korea we were moving under UN auspices to defend South Korea against dramatic, across-the-border conventional aggression. Yet even with those advantages, we could not sustain American political support for fighting the Chinese in Korea in 1952. Today in Vietnam we lack the very advantages we had in Korea. The public is worried and confused. -- VP Hubert Humphrey, in 1965, ten years before the last USA serviceman left Vietnam

As part of the generation that grew up under multiple Iraq invasions--not just for oil, but natural gas--Humphrey's words sound quaint. It was against this conflicted backdrop and a mandatory military draft that the 1968 Democratic National Convention occurred, ensuring a volatile event. Policemen beat anti-war protesters using batons, knowing they had the full support of Chicago's leadership. Consequently, for at least one day, Americans couldn't tell the difference between the Chicago mob and their own government. How did the Democratic Party go from being so concerned about anti-war sentiment that it was willing to beat protesters in broad daylight to barring anti-war politicians from their own Convention? The answer is gerrymandering, aka political segregation. Put simply, if you divide enough factions into their own districts, you can easily govern any group not already in power by ensuring conflicting opinions never meet in a public forum, thus sputtering and stalling out. Post-WWII, though the prevailing framework internationally and domestically has been more "divide and govern" than "divide and conquer," American students are taught Western democracies promote optimal communication between conflicting groups.

[G]errymanders will only get worse (or depending on your perspective, better) as time goes on—as data becomes ever more fine-grained and data analysis techniques continue to improve. What was possible with paper and pen—or even with Windows 95—doesn’t hold a candle (or an LED bulb?) to what will become possible with developments like machine learning. And someplace along this road, “we the people” become sovereign no longer. -- Justice Kagan, dissenting, Rucho v. Common Cause (2019) 

In 1992, when Americans lacked conflicting viewpoints about the supremacy of their political system, Francis Fukuyama talked about the end of history. A mere decade later, General Colin Powell would cheerlead America into Iraq, another Vietnam, proving history was very much alive and continued to repeat itself. From that debacle arose Abu Ghraib and the destruction of America's credibility, which included the Democratic Obama/Biden administration assassinating an American citizen without due process. "The dumb are never with us for long, and there is a lot of evidence to suggest that Republicans learn faster than Democrats..." 

We now arrive at 2021, when the Democratic Party is impeaching a president already out of office, repeating the same highfalutin bullying that made Trump so popular in the first place. I've heard of security theater, in which the government takes actions that "make people feel more secure without doing anything to actually improve their security," so perhaps this impeachment falls under the category of "political theater." Why, then, does it seem so much more pernicious than any Shakespearean tragedy? 

© Matthew Mehdi Rafat (February 2021)

If it weren't for this constant struggle on the part of the few creative types to expand the sense of reality in man, the world would literally die out. We are not kept alive by legislators and militarists, that's fairly obvious. We are kept alive by men of faith, men of vision. They are like vital germs in the endless process of becoming. -- Arthur Miller (USA)

2021 Wall Street Quotations

In February 2021, I decided to start a collection of quotes from Wall Street executives and pundits. 

February 9, 2021: "Now there are, with very few exceptions, no sectors that are cheap. [Yet] I think the market will gradually grind up during the year. I don’t see a correction anytime soon, unless the situation changes dramatically." -- JP Morgan's co-president Daniel Pinto (source: CNBC) [Shiller P/E Ratio 35.62]

February 10, 2021: "If there is a bubble anywhere, it is not in the equity market, it is in the fixed-income market." -- Cathie Wood, chief executive of ARK Invest (source: CNBC) [Shiller P/E Ratio: 35.59]   

February 17, 2021: from Eddy Elfenbein's blog:

Mark Hulbert has an interesting column at MarketWatch. It’s about a trio of academics who have devised a bubble-spotting formula. 

"Applying the formula the researchers derive, I calculate there is an 80% chance that the Technology Hardware, Storage & Peripherals index will be 40% lower than today at some point in the next two years... Though no other industries satisfy the researchers’ definition of a bubble, two others come close. They are also in the technology arena: Semiconductors and Semiconductor Equipment, and Software. Why focus on an industry that may be in a bubble, rather than the market as a whole? Prof. Greenwood told Barron’s that he and his fellow researchers learned from their study of the history of bubbles that they 'rarely are marketwide' events. Far more common, he said, is for a bubble to manifest in certain pockets of the market even as other sectors remain undervalued."

March 26, 2021: from Barron's, by Andrew Bary, headline: "Higher Taxes? Deficit Spending? Why the Stock Market Isn't Worried." [Shiller P/E Ratio: 35.75] 

March 27, 2021: from Bloomberg, by Ishika Mookerjee, Albertina Torsoli, and Lisa Pham, headline: "Funds Bet on a Consumer Boom to Rival 'Roaring Twenties.'" [Shiller P/E Ratio: 35.75] 

[Note: The Great Depression--and stock market crash in 1929--occurred after the excesses of the Roaring Twenties, as well as indications Germany would not honor WWI reparations.] 

April 8, 2021: from CNBC, by Kevin Stankiewicz, quoting Wharton School finance professor Jeremy Siegel: "It isn’t until the Fed leans really hard then you have to worry. I mean, we could have the market go up 30% or 40% before it goes down that 20%... We’re not in the ninth inning here. We’re more like in the third inning of the boom." [Shiller P/E Ratio: 36.81] 

April 11, 2021: "The path of least resistance for US equities remains higher." -- Bill Miller, CFA (S&P 500 4128.60)

April 15, 2021: "From a traditional perspective, the market is fractured and possibly in the process of breaking completely." -- David Einhorn 

May 23, 2021: "In real terms, the home prices have never been so high. My data goes back over 100 years... I don’t think that the whole thing is explained by central bank policy. There is something about the sociology of markets that’s happening." -- Robert Shiller, CNBC.com [Shiller P/E Ratio: 36.86] 

Guns and Butter

People who think power comes from the barrel of a gun are mistaken. Real power comes from controlling the conduits, both legal and technological, of the currency that buys the gun. The more power involved, the more entities can buy protection, whether domestic or international, fueling further expansion and thus influence. In short, guns are the result, not the cause of stability, which makes sense once you realize a village with nothing valuable has no need for advanced weaponry.

There is another component most people miss when discussing protection, and we can re-use the undeveloped village as an example. Such a village exists not only because of internal factors, but external ones. Its lack of development means it has not attracted foreign direct investment or cannot do so. Were it part of a larger economic unit, the larger economic unit would be interested in maintaining as little a gap as possible between its most developed areas and its least developed ones--assuming a cohesive system. (An empire merely makes the same mistake as a successful country, misapplying domestic lessons to international ones.) Though degrees vary, power is always connected somewhere so it can extend influence, the strong seeking out the weak. The absence of a need for a gun connotes not only a lack of influence but a lack of connectivity to neighbors and thus a failure to build sufficient conduits to exchange information. Now ask yourself: would you rather have a gun and a midnight sentry, or information that tells you when you will be attacked? 

I realized this morning though the United States has a strong military, it continues to decline because it attempts to overuse its influence overseas. If I am a small village, and a superpower approaches to offer its technology, which of course requires me to use its currency, I may be flattered, especially if I do not understand debt and currency arbitrage. Yet, even a naive villager realizes the same superpower that approaches and demands a rider requiring the village not to use another country's technology--thus inhibiting more diverse development--is not a true superpower, no matter the quantity or quality of its guns. The villager may even, after some deliberation, realize such a superpower does not see his community as an opportunity to exchange information but a way to block competitors. Now ask yourself: if you had a choice, would you rather buy guns from someone demanding an exclusive contract, or someone allowing you to diversify your economic contacts? 

The path from kampong to city to respected state may be long, uncertain, and arduous--and Singapore, which took this path successfully, makes its own guns--but the road from superpower to failed state is straightforward: when credibility goes, so does your empire. One wonders if USA President Biden, who is promoting unity, comprehends he is looking too far ahead in the dictionary. 

© Matthew Mehdi Rafat (January 2021) 

Slavery, Democracy, and the Jesuits

Though JFK preceded him, Joseph Biden, Jr. is set to become a Catholic president in the United States during a time of unprecedented Catholic power. Remarkably, most Americans do not know the Catholic Church was banned in America's founding colonies, notably New York City:

For most of the colonial period Roman Catholic worship in New York City was clandestine or nonexistent, because the Protestant Dutch and then the English enforced laws prohibiting the organization and maintenance of Roman Catholic churches. (From Encyclopedia of New York City) 

In 1816, Thomas Jefferson warned of the conflicts between Catholicism and republican governance: 

The first shade from this pure element, which, like that of pure vital air, cannot sustain life of itself, would be where the powers of the government, being divided, should be exercised each by representatives chosen either pro hac vice, or for such short terms as should render secure the duty of expressing the will of their constituents. This I should consider as the nearest approach to a pure republic, which is practicable on a large scale of country or population. And we have examples of it in some of our State constitutions, which, if not poisoned by priest-craft, would prove its excellence over all mixtures with other elements; and, with only equal doses of poison, would still be the best. [Emphasis mine] 

I must confess I did not know the "Republican" in Republican Party referred to republican governance, i.e., a republic, because my American teachers and professors glossed over Christian religious differences. Reading Jefferson's words, it is easier to understand a republic is the opposite of a monarchy, and America's founders discriminated against the Catholic Church because they were anti-monarchy (aka anti-papist). Unlike American students today, our founders would have had no problem connecting the structure of the Catholic Church and its doctrine of papal supremacy with European monarchs and Catholic collusion. Once Catholic, monarchs regularly expelled non-Catholics, eventually inducing Germany's Protestant Reformation. Discrimination begets discrimination, and the history of America can be best understood as a country founded on discrimination and its discontents. 

In the most recent Christian Science Monitor Weekly publication, I came across the following tidbit: 

Q: How did the Jesuits, a Roman Catholic religious order, become involved in slavery? 

They began to buy, sell, and hold slaves in South America. When they came to Maryland to start missions in the 17th century, they quickly became slaveholders. Other churches came to be slaveholders, too, but the Jesuits were among the largest slaveholders in Maryland during this period. (William G. Thomas III, author of A Question of Freedom, January 4 & 11, 2021)

Were Catholics and Protestants in America able to set aside their differences by shifting their discrimination towards African slaves rather than against each other? If unity is the goal, perhaps we ought to discuss whether America's chattel slavery and the racism that followed resulted from a transference of religious antipathy into a different-colored bucket. Such historical interpretation would align with our current political climate, where segregation is the norm and Catholics are considered Christians, even though all Christian offshoots, whether Christian Science or Seventh Day Adventist, exist because of splintering within the Protestant Church, which itself exists as a result of anti-Catholicism. 

Will President Biden assist his fellow citizens in reforming history lessons so more Americans can heal from four years of division? I doubt it. The only way American Catholicism could have succeeded so spectacularly is if Biden himself, along with most Christians, lack an understanding of both European and American history. Unfortunately for us, Europeans do not suffer similar educational handicaps, meaning Biden's presidency may come to represent not unity, but the ascension of the European Union. As of today, it appears we are continuing the pattern of modern American political negligence, where leaders focused on the Soviet Union only to see increased Middle Eastern threats, then focused on the Middle East only to see increased Asian threats, and are now focusing on Asia. History, it seems, may not repeat itself, but it often rhymes. 

© Matthew Mehdi Rafat (January 2021)

Book Review: William O. Douglas and The Anatomy of Liberty (1963)

While reading Supreme Court Justice William Douglas's The Anatomy of Liberty, I was struck by the little progress we've made since 1963. Almost sixty years later, American politicians, judges, and lawyers have made a liar out of Justice Douglas, who used his book to explain America's legal and political system to the rest of the world. 

I won't belabor you with exact quotes proven overly optimistic; it serves us better to understand differences between then and now. First and foremost, the spectre of nuclear extermination loomed larger for earlier generations. Students today read about WWII in history books, but Douglas lived Hiroshima and Nagasaki as real-time events. Like many of his peers, he realized nuclear proliferation meant every country in the world--including his own--was in danger. Regarding his generation's realization of foreseeable injury, Douglas wrote, "Whatever all the reasons may be, we walk the brink every hour of every day." (pp. 114)

Such fear--based on a reasonable assumption of ever-increasing risk--left politicians with no choice but to cooperate--at least so Douglas thought: "Now the sheer necessity to avoid the nuclear holocaust makes it necessary for us to build unity in common goals of an international character." (pp. 107) Douglas firmly believed technology's destructive potential would require greater cooperation, and he was not alone. One of Diego Rivera's most striking murals, "Man, Controller of the Universe," places the nuclear atom at the center with Vladimir Ilyich Ulyanov observing.

Mexico's Rivera believed scientific mastery of nature would lead to less drudgery for workers, creating a world without exploitation in which (socialist) governments would favor cooperation. Examples abound of intellectuals linking technology with greater collaboration out of necessity or natural progression; yet, as I sit in a Mexico City hotel in December 2020, it appears time has made fools of them all.

Douglas was a libertarian and Rivera a socialist, but despite contrasting political views, both men took it for granted that by 2020--if not earlier--cross-country cooperation would be optimized in favor of peace. By 1984, however, millions sang along to Alphaville's "Forever Young,"expressing a desire to stay childlike so as to avoid contemplating nuclear war. (In one performance, the lead singer salutes military-style during the lyrics, "Are you gonna drop the bomb or not?") If the Soviet-American conflict was caused by Western powers failing to include the also-WWII-victorious Russians within NATO, thus splitting the world in two spheres, by 1991, optimism emerged as the Soviet Union's economic fall produced a unipolar world. The very next year, Yoshihiro Francis Fukuyama, an American-born Harvard political scientist, authored The End of History and the Last Man (1992), declaring Western values the endpoint of human cultural evolution.

Time humbles us all, and in 2020, no reasonable person believes Western values or Western politics are universally appealing or even workable. The only inevitability accepted is the rise of The People's Republic of China, which has been quietly promoting a post-colonization, de-Westernized world after its 1950 invasion of Tibet to secure freshwater reserves. And so, despite Douglas's and Rivera's exhortations, we are experiencing déjà vu, where the threat of nuclear extermination continues but with different players using international institutions to gain advantages within increasingly splintered financial, technological, and content-distribution systems. In the past, only two hostile superpowers were in contention, which allowed us to focus on specific problems emanating from their friction. Today, the rise of regional powers asserting themselves will either destroy the idea of universal values and thus prospects for consensus, or make us yearn again for the greater simplicity of a bipolar world. 

And what of global cooperation? Sadly, except for the decade between 1991 and 2001, the picture looks bleak. Our current COVID19 pandemic is producing vastly different domestic outcomes and thus increased inequality and potential conflict. Furthermore, as most individuals worldwide suffer from economic uncertainty and greater dependence on governmental action, entities with the most secure digital infrastructure have gained influence while exposing globalization's indigestion of multiple technological standards. The old adage,"He who has the gold (and the military to protect it) makes the rules," has seemingly morphed into "That which provides your digital experience (and the best online security) is crucial to economic dominance and therefore unregulatable." As for diplomacy, I remember studying South China Sea maritime issues at Singapore's National University in 2001. Two decades later, the same issues exist, meaning exporting countries have been unable to resolve something as straightforward as shipping routes. I suppose I do not need to tell you that more countries possess nuclear weapons than ever before.

Perhaps global cooperation was doomed once governments used digital backdoors to spy on allies and competitors while private corporations tracked consumer behavior in order to maximize profits. Human beings may be willing to sacrifice some privacy for greater security, but a paradigm in which governments and corporations conceal technological vulnerabilities in order to peddle propaganda and gather data cannot succeed. As our earlier generation's worst fears are realized, their words might be heard asking for whom the bell tolls: 

[T]oday the young writer's characters must function not in individuality but in isolation, not to pursue in myriad company the anguishes and hopes of all human hearts in a world of a few simple, comprehensible truths and moral principles, but to exist alone inside a vacuum of facts which he did not choose and cannot cope with and cannot escape from like a fly inside an inverted tumbler. -- William Faulkner (1958)

A world lacking integrity or diplomacy necessarily reverts to "might makes right," which carries all the burrs and hooks one ought to expect. Listen to Douglas's prescient warning: 

So apart from the problems of nuclear war, disarmament is the world's number one concern... For it is only through disarmament that war can be prevented and adequate resources released for raising the world's standard of living. Prevention of war may be well-nigh impossible if the race to get bigger and better stockpiles of bombs continues... 

The vast gulfs that exist between various world cultures mean that the common ground will be narrow and selective... [and] only limited areas where a common ground can be found. Yet they are important, indeed critical, ones; and they will expand as the peoples of the world work with their newly emerging institutions and gain confidence in them... The problem of survival is to widen [currently limited] areas of consensus [aka the basis of law]. 

Pray tell, which institutions do the people of the world agree deserve our confidence? Can most people within a single country point to a single institution they wholly trust? Here I must quote Faulkner again: 

[There is a] belief that there is no place anymore where individual man can speak quietly to individual man of such simple things as honesty to oneself and responsibility toward others and protection for the weak and compassion and pity for all, because such individual things as honesty and pity and responsibility and compassion no longer exist, and man himself can hope to continue only by relinquishing and denying his individuality into a regimented group of his arbitrary, factional kind, arrayed against an opposite opposed arbitrary, factional, regimented group, both filling the same air at the same time with the same double-barreled abstractions of "peoples' democracy" and "minority rights" and "equal justice" and "social welfare"—all the synonyms which take all the shame out of irresponsibility by not merely inviting but even compelling everyone to participate in it.

That was 1958. Take a look at this sign in my hotel's restaurant: 

We don't need to know Spanish to know the intent of the sign-maker, nor the fact that it is easier to make a sign than to effectuate its lofty goals. I don't doubt this particular hotel sincerely believes in anti-discrimination, but it happens to be located in the most affluent district in the entire country, a country with vast income inequality, which is precisely why it is so confident signaling progressive values--and precisely why it shouldn't be. Rather than providing optimism based on greater understanding of each other, globalization's benefits have covered up cracks in the human dynamic, cracks most of us know are bound to swallow us whole unless seen and fixed. Are good intentions all we have to offer Donne, Faulkner, and Douglas? If so, then we have failed, and we don't deserve to survive and probably won't. 

© Matthew Mehdi Rafat (December 2020)

“The Constitution is paper. The bayonet is steel.” -- Haitian proverb 

Bonus: "When will we and the Russians (not to mention the Chinese) awaken to the realization that each can no longer go it alone, that, like it or not, we are in the same fragile boat and desperately interdependent?" -- William O. Douglas (1963), pp. 123-4

"Today all humanity is tied irrevocably together in an effort to escape the nuclear holocaust, to survive, to make technology the servant." -- William O. Douglas (1963), pp. 167 

The More Things Change, the More They Stay the Same, Part 1836352

With all the positivity surrounding 2020's successful marijuana legalization initiatives, you'd think people were experiencing a new phenomenon. Take a look at this Playboy July 1973 page, which demonstrates American lawyers and legislators have failed to accomplish their objectives for almost fifty years. 

And so it goes. 

© Matthew Mehdi Rafat (2020) 

Good Journalist Hunting, Part 3: Criminal Justice

"I am not educated, nor am I an expert in any particular field--but I am sincere, and my sincerity is my credentials." -- Malcolm X 

My Credentials

In the spirit of Brother Malcolm, here are my credentials regarding America's legal system: 

Sanctioned 11,000 USD by Northern District judge Samuel Conti (the party seeking sanctions later declared bankruptcy); 

Sanctioned 1,000 USD by Santa Clara Superior Court judge Socrates Manoukian, who reversed the sanctions verbally at a subsequent appearance once he realized a written order was required;

Flipped off an FBI recruiter at Levi Strauss & Co.'s HQ in San Francisco, California after I criticized the agency and he demanded my name. Fired by Levi's the same day, took a trip around the world shortly thereafter. (Fun fact: the company likes to shorten its name to LS&Co.);

Voluntarily resigned from D.C. Bar in protest against Trump v. Hawaii (2018) and mailed my admission certificates to Supreme Court Justice Sonia Sotomayor;  

Arrested by police in 2016, sent to jail for several hours, accused of being under a controlled substance, released without charge due to "LACK OF SUF EVID." (Though I have advocated legalization of most drugs, I do not drink alcohol, nor do I smoke.) 

Arrested by police in 2019, sent to jail for several hours, accused of intimidation and obstruction. On the same day I sent trial briefs to the Santa Clara County District Attorney's Office, the deputy district attorney said he would dismiss the case. At the next court hearing, the judge granted the prosecutor's request to dismiss my case in the "interests of justice." 

As of December 2020, I remain in good standing with the California State Bar since 2002 and have never had a client submit a complaint against me. 

Not All Government Agencies Believe in Transparency and Public Access

"I had a good working system of paying off policemen. It was here that I learned that vice and crime can only exist, at least the kind and level that I was in, to the degree the police cooperate with it." -- Malcolm X, referring to his pre-Islamic days as a numbers runner, bootlegger, and pimp. 

From Paul Krassner's The Realist, when abortion was illegal throughout America.

When dealing with American government, an honest man learns his experience varies based on which neighborhood he happens to visit, rendering all positive and negative stories equally true, and guaranteeing substantial private sector involvement. In fact, the more the government fails, the more the private sector enters with proposed solutions. Without balance, we shall live in a country with as many technological and regulatory standards as municipalities and also one where national leaders offer increasingly harsher promises of reform and efficiency.

Today, Americans find it fashionable to bash local cops but not the national military, which lacks sense until you realize most of America's GDP is manufactured, shipped, and protected by the military and its virtually unlimited spending--including marketing--whereas police departments cannot run annual deficits. 

Kurt Vonnegut Jr. Interview, Playboy Magazine, July 1973

Though most African-Americans do not trust the police, their complaint has to do with competence, i.e., poor training, otherwise known as poor formal education. Subjected to constant examples of abuse of discretion, few Americans realize cops are only one piece of the legal ecosystem and its most easily derided. A landscape prioritizing mobile footage of police officers failing at their jobs while prosecutors and judges enjoy intransparency tilts toward instability. Consequently, the typical American voter has no qualms voting lawyers into political office despite the fact that incompetent police officers cannot exist without corrupt lawyers, and corrupt lawyers cannot exist without indolent judges. (It is worth noting most judges are merely lawyers with more political connections than other lawyers.). 

Part of the problem is that California judges deem themselves masters of their courtrooms and set their own rules, which include banning recording devices. Santa Clara County, California has notices throughout courtrooms citing Nixon v. Warner, 435 U.S. 589 (1978) and Marin Independent v. Municipal Court, 12 Cal.App.4th 1712 (1993) as authorities against transparency. The result? Unwarranted prestige of one governmental branch over another, with disproportionate respect gained from deliberate opaqueness. It is not until we actually look up the aforementioned cases that we realize the extent to which judges have gone to bar public access and thus public scrutiny. Incredibly, the "Nixon" in Nixon v. Warner refers to impeached President Richard Nixon, meaning California's judicial branch is using a criminal executive as protection against public access. As for Marin Independent, the court cited Nixon and used circular reasoning, holding that media can attend and report on judicial proceedings but has no absolute right to record proceedings because courts can set their own rules. Stated more simply, people can't record court proceedings because the king, er, court says so. 

Counterpoint from libertarian Justice William O. Douglas's book, Anatomy of Liberty (1963)

In California, I have civil law experience, but while practicing, had never seen criminal court proceedings other than assisting a colleague with a routine DUI--incidentally, an ample cash cow for local law enforcement when fines are paid as part of a negotiated plea. What I saw when wrongfully arrested would shock any professor, journalist, or academic who has ever praised the American justice system or who believes in robust checks and balances. Despite my legal education, I had no practical knowledge of criminal courts until my two arrests. Lawyers work either on civil or criminal cases, and even the courthouses are different depending on whether a case is criminal or civil.

Relevant Statistics

First, five statistics:

1. "74% of people in American jails have not been convicted of a crime. Sometimes this is because they’re considered a flight risk or danger to society, but the majority of individuals in jail are there because they can’t afford bail." -- Christian Science Monitor, August 3, 2020 

2. "[M]ore than half of Brazil’s prison population is eventually released without a conviction." -- Christian Science Monitor, August 27, 2020 [I include this statistic because astute readers will notice a connection between USA and Brasil, two countries that share disproportionate Catholic legal influence and a non-coincidental history of chattel slavery.] 

3. "One in three U.S. adults has been arrested by age 23. Communities of color; lesbian, gay, bisexual, and transgender individuals; and people with histories of abuse or mental illness are disproportionately affected. As a result, between 70 million and 100 million—or as many as one in three Americans—have some type of criminal record." -- from The Sentencing Project (2015) 

4. "Usually missing from the conversation about mass incarceration, however, is any recognition that imprisoned or detained Americans currently represent barely one-tenth of the total population of felony convicts. As a ballpark estimate, over 20 million Americans in society at large currently have a felony in their past, and this immense population is effectively statistically invisible." -- Dr. Nicholas Eberstadt (2019) 

5. "The countries with the highest estimated pretrial detention populations on an average day are, not surprisingly, those with the largest general populations. The United States heads the list with 487,000, followed by Brazil (190,000), Mexico (98,000)... As a result of these high pretrial detention rates, 10 to 40 percent of the entire incarcerated population is behind bars without a conviction in most countries in the Americas." -- Richard Aborn and Ashley D. Cannon (2013) 

6. "Misdemeanors... [low-level criminal offenses] account for about 80% of all arrests and 80% of state criminal dockets, says Alexandra Natapoff, a law professor at the University of California at Irvine and author of Punishment Without Crime." -- from NPR (2020) 

I had four thoughts when evaluating the above statistics. First, American police possess virtually untrammeled discretion--which means judges, city councils, and unions have failed in their presumed oversight function. Second, it follows from the aforementioned that police unions must have substantial power over city councils as well as judges and prosecutors. Third, prosecutors have little say in day-to-day police work and appear to operate in totally separate spheres than police--despite the teamwork one would assume in their symbiotic relationship. (Using an American football analogy, America's criminal justice system is like a QB attempting passes to a WR that drops the ball 3/4 times and doesn't know the play beforehand.) Fourth, prosecutors and police departments use misdemeanors to justify maintaining or increasing funding. After evaluating the above information and spending allocations, you may decide the military controls America's national government and police unions control local governments while politicians rotate every four years to provide the appearance of choice. The overall picture is more complex.

When anyone is arrested, police have an option to take the person to a holding cell-- typically a county jail--or "cite and release." The former requires fingerprinting, a health questionnaire, a mug shot, and other steps commonly referred to as a "booking." The latter is a written citation sent to the county district attorney's office, which then decides whether to file charges. Only if charges are issued are you required to take further action, including checking in at the local police station. Right away, you can see every single cop, whether rookie or veteran, has the power to make your life easier or harder. 

You may also notice we are dealing with two different government agencies: the police work for a city, whereas the jail and district attorney's office are run by a county. Both answer to separate government boards and sometimes sue each other to establish their required scope of duties, indicating a potentially adversarial relationship. (Imagine the American football game we described in the previous paragraph, and now add separate assistant coaches who don't always get along and who are paid from different sources.) 

Arrest Number One

In my first arrest, the government accused me of taking illegal drugs and arrested me while I was walking. (Again, I do not drink alcohol, nor do I smoke. I am a middling but dedicated former athlete and coach.) After my arrest, I was given a blood test, fingerprinted, questioned by a nurse, offered a Pop Tart, then put into a temporary cell with two other people. (I was also photographed, but I can't remember where in the process this step occurred. It may be that the steps are done based on whomever happens to be in front of a counter rather than in the back.) While I stayed in the cell for several hours, pacing back and forth out of boredom, four to five other people cycled through the same cell, most of them drunk. It dawned on me that even a lowly county jail is an expensive economic ecosystem. My arrest alone bolstered numbers used to justify taxpayer dollars to a lab technician; a nurse; several police officers; the district attorney's office; and private companies selling snacks. 

After my release, my personal items were returned, and I used my mobile phone to book a ride-hailing service back to my residence. Other arrestees pay substantial towing fees because they are unable to move their parked cars in a timely manner. If released, they are returned a key to a car that is often fifteen to twenty miles away, because most homeowners don't want to be anywhere near a jail or prison.

Arrest Number Two

My second arrest was at a sporting event. A drunk fan had the audacity to complain to private security about me, even though he was the one causing problems. Long story short, he was with three other people, I was alone, and I suppose four tickets are worth more than one. Unbeknownst to most patrons, sporting arenas are staffed by private sector workers but at least partly owned by cities. Police departments love professional sports because an insurance policy or the law requires a certain number of officers at events, and strapped local governments view sports as a way to boost officer pay and morale off-budget. In my incident, arena police didn't do any work or independent investigation. They simply carried out the wishes of the low-level private security guard and made an arrest. 

If you've been reading closely, then you've already extracted the unsteady and variable relationship between the following factors: annually balanced budgets; union negotiations; automatic cost of living increases (aka COLA); voter antipathy towards higher taxes; and competing government agencies. Such interplay provides perverse incentives in favor of arrests--especially considering most arrestees do not have enough out-of-pocket damages to justify a lawsuit. In cases where cities have paid substantial sums to arrestees, serious death or physical injury was part of the arrest, such as in NBA star Thabo Sefolosha's case. Seen another way, an arrest that doesn't lead to a conviction or even a charge still requires the same work as a legitimate arrest, and come budget time, no one is penalized for an arrest that doesn't generate a lawsuit and payout. 

After my second arrest, I was taken to the same jail as before and released after several hours. This time, the Santa Clara County District Attorney's Office decided to charge me, which meant they issued a warrant. Unfortunately, they issued the warrant (aka notice to appear) to my residence months after the incident and when I was out of the country and thus had no way of checking in. I later discovered the government is not required to personally serve notice of a misdemeanor warrant/charge. I am unsure if the same latitude apples to felonies, but compare such discretion with a civil case: when I file a civil lawsuit, I must effect personal service of the complaint unless I swear to the court I have tried every means of personal service and failed, a process that requires hiring a third party and/or using a specialized database. It doesn't matter if the case is worth 250,000 dollars or 8,000 dollars--I have to effect personal service, which means I have to do everything humanly possible to ensure you receive the complaint in your hands. (Note: in California, restraining orders utilize a less rigorous process than civil complaints, leading to potentially widespread abuse--and more work for police.) If the court later decides I was not forthcoming about my diligence in locating the defendant, the judge can sanction me and/or refer me for disciplinary action, which could result in the loss of my license to practice law. 

Moreover, as a civil lawyer, I cannot sit on a complaint for months as the district attorney did in my case. I am required to serve the complaint within a short period of time and appear at a status conference regularly to tell the court I am actively pursuing the case. If I appear months after I file a complaint and tell a civil court judge that I have done nothing, the judge will likely dismiss the case sua sponte. Suffice to say, I was more than a little stunned at the gap in required diligence: work for an individual or business trying to get money, and you better cross your "i"s and dot your "t"s, or you can't get past the first stage of litigation; work for a government that can imprison you for failing to appear at a police station, and you can jail someone for 11 months without a reasonable person ever receiving or knowing about a warrant. 

Here we may be tempted to judge government more harshly than the private sector, but what we're actually seeing is government exempting itself from rules in order to avoid unnecessary costs or the potential for employee discipline. Since most governments are self-insured, any litigation, whether employee mistreatment or police brutality, impacts innocent taxpayers. In short, when the government "turtles," its shell is designed to protect the innocent. What's the catch? "Turtling" protects taxpayers but destroys the ability to see defects in governance, ensuring long-term decline. On corruption, George Carlin once remarked, "It's a club, and you ain't in it." When threatened, the "club"--any club, really--binds together more tightly, preferring jurisdictional carveouts as defectors sprout like statutory subsections from an original statute. The outsiders, aka the "others," leave because they are ignored or poorly treated, and they leave because the main body of law has failed to institute effective procedures alerting them to dissatisfaction. Even if you don't know Goodhart's Law, you know incentives matter, and incentives drafted in response to creeping corruption require plain eyesight, not rose-colored glasses or blindness. 

Predictably, as voters raise complaints, city councils--staffed mostly by lawyers and de facto union representatives--increase regulation. Yet, because the regulation is like an NFL front office demanding changes to the strange QB to WR scenario discussed earlier, we have the additional obstacle of the blind inserting themselves into a game they do not fully understand. Faced with miscommunication and mixed signals, the QB, the WR, and the coaching staff all form their own clubs to insulate themselves from further regulation. More arrests are made or not made to placate the front office (aka city council), and regulation intended to reform has merely decreased morale: "These arrests are based almost entirely on the word of cops, who say they are incentivized to round up as many 'bodies' as they can." 

Meanwhile, in criminal court, the district attorney runs the show. The judge, being structurally independent, has no pre-trial contact with the police or the accused, and thus relies on the integrity of the district attorney, who in turn depends on the integrity of the police. At the hearing where my charge was dismissed, about thirty other cases were present, and the judge didn't know any facts of my case, not even my arrest date--even though I could have been sent to jail for months. The judge brushed aside my comment that California's de facto one-party state had seemingly produced an outcome where life and liberty are treated with less respect than property and money. (Later, I realized civil courts function better than criminal courts because businesses, especially cost-conscious insurance companies, regularly use civil courts, whereas poor people and government employees regularly use criminal courts. Stated another way, each civil court filing provides hundreds to thousands of dollars for the government as well as the private sector, but each criminal court case is a negative taxpayer cost because criminal courts do not charge the accused fees or costs.) 

When Americans think of respected American judges, they are thinking of appellate courts with limited dockets, not busy trial courts. The United States has a few judges who will be remembered as bucking the tide of totalitarianism, namely Judge James Robertson, Robert Takasugi, Roger L. Gregory, and of course Justice Sonia Sotomayor. None of them are now trial court judges, which means you, an ordinary citizen, could never be heard by them. At the first level of litigation are mostly judges who do not understand much, who specialized in only one area of legal practice, and who are at the mercy of information given to them by lawyers. Were tragedy not certain, one might marvel at the fact that American courts depend on the integrity of lawyers in a country where most people do not trust lawyers and most lawyers do not trust each other. 

Conclusion

As of 2020, I am not actively practicing law, and I've enjoyed not wearing a suit in five-plus years. Abraham Lincoln once said, "Let no young man choosing the law for a calling for a moment yield to the popular belief -- resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer." When I realized I could not give my clients reasonably predictable outcomes based on the evidence, I resolved to quit practicing law as soon as possible. To the extent Americans cannot find an honest lawyer, judges may realize too late they have relegated American courts to the realm of the rich and the overinsured. 

It is tempting to say the United States should become like India, a country with perhaps an even more complex legal system. After all, post-colonial India excels at technology within a large, multicultural, and diverse land once colonized by the British, and no less a visionary than Jeff Bezos has said, "I want to make a prediction... I predict that the 21st century is going to be the Indian century." Realistically, we should strive to be exactly like ourselves, no better and no worse, and accept that growing pains are a normal part of a young nation's growth. One day, we will realize the foundation of globalization was built on an inherently insecure technological standard, and we will understand our devolution from civilization to fragmented security state. For now, until diplomacy and global cooperation improve, all we can do is hope our lonely betters survive to tell our stories as we stumble along in open darkness. 

© Matthew Mehdi Rafat (December 2020)

Dedicated to David Simon, creator of The Wire (2002-2008) 

Disclaimer: Nothing herein is legal advice. As of December 2020, I am not accepting new clients. I am writing solely in my capacity as an observer, and your experience with police and/or the criminal system may differ substantially from mine. 

Bonus: Good Journalist Hunting, Part 1 is HERE. Part 2 is HERE. 

Update: I don't mean to imply civil courts are perfect or more conducive to justice than criminal courts. Most civil court motion judges don't read all of the parties' briefs, but their law clerks prepare memorandums for them, which provide summaries of relevant law and facts. Civil court is procedurally intensive and geared towards creating a record of everything, which delays justice but also tends to soften both parties' original demands. In state criminal court, the district attorney functions as the judge's de facto law clerk until trial, blurring the lines between independent judiciary and executive branch (i.e., the district attorney acting on behalf of the state, mayor, and police). Compared to civil cases alleging over 25,000 USD in damages, most criminal cases lack bespoke dispositive motions because the system assumes a trial will take place, even though most civil and criminal cases settle or plead. 

Since lawyers know most cases settle, they are incentivized to overcharge or to allege every possible violation, but with an important difference: if a district attorney overcharges, s/he can usually drop the unnecessary charges before trial without consequences, whereas a civil lawyer, upon opposing counsel's request, must spend hours matching all of the facts and evidence to each element in each claim early in the case. This is another way of saying criminal statutes are extremely broad, whereas civil statutes at least attempt to restrict both parties. At the end of the day, civil lawyers not working for insurance companies have to show their clients results to get paid, and if a civil lawyer files too many claims or motions, at some point, the civil lawyer's own availability or client becomes a check and balance on excessive behavior. 

Finally, some civil lawyers do get default judgments against individuals by publication or by serving the complaint at an old address, but they still have to declare under penalty of perjury that 1) the address they used is the one given to them by a third-party investigator or specialized database (Lexis-Nexis, etc.); and 2) they attempted personal service at known addresses, including work. Any defendant not personally served can also file a straightforward motion to remove a default judgment if plaintiff failed to exercise proper due diligence. 

Update: regarding court transparency, the following opinion from federal Judge Davila in USA vs. Elizabeth Holmes (2021) is useful: 

The United States Supreme Court has held that the right to attend criminal proceedings “is implicit in the guarantees of the First Amendment.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 556 (1980). The First Amendment right of public access extends to pretrial proceedings as well as documents filed in connection with those proceedings. Associated Press v. U.S. Dist. Court for Cent. Dist. of Cal., 705 F.2d 1143, 1145 (9th Cir. 1983); see also Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178–79 (9th Cir. 2006) (“Historically, courts have recognized a ‘general right to inspect and copy public records and documents, including judicial records and documents.’” (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & n.7 (1978))). Access to judicial records, however, is “not absolute.” Kamakana, 447 F.3d at 1178. The Supreme Court “has made clear that the right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” Waller v. Georgia, 467 U.S. 39, 45 (1984).