A Fair Criminal Trial

 A Fair Criminal Trial

 

After almost 40 years defending citizens accused of crimes in multiple states and federal courts, I offer some insights to those who think the former president was treated unfairly in his New York criminal case.

 

The criminal case charged the former president with violations of New York state criminal laws aimed at business owners who falsify important business records to cover up other crimes. These laws are not unique to the state of New York and can be found in other jurisdictions which passed them to deal with organized criminal enterprises that tried to hide their illegal activities by passing them through legitimate businesses. They were not passed to get former presidents.

 

The procedures used in the former president’s criminal prosecution were not put in place to get him but followed long established criminal trial procedure applicable to everyone accused of criminal law violations.

 

The charges were not made up out of whole cloth by Manhattan District Attorney Alvin Bragg. His investigators found the facts necessary to support the charges by interviewing witnesses employed by or allied with the former president and collecting corroborating documentary evidence. After being convinced that he had facts sufficient to convince a jury of the former president’s guilt beyond a reasonable doubt, Mr. Bragg’s office had to and did present the evidence and witness statements to a Grand Jury made up of everyday people, selected at random from Manhattan residents.

 

The Grand Jury was instructed on the law applicable to the evidence and deliberated in secret to reach a decision as to whether the evidence established probable cause to believe that the crimes were committed and that the former president probably committed them, either alone or in a conspiracy with others. The Grand Jury decided that the case should move forward, and the criminal charges were issued. There is nothing to suggest that the Grand Jury was manipulated in anyway by outside political influence.

 

After the charges were approved by the Grand Jury, the former president’s legal team was notified and an Initial Appearance before the court was scheduled. The defendant then made his first court appearance, bond to assure his presence at trial was set and pre-trial schedules for motions and other proceedings were established,

 

The District Attorney’s office then disclosed to the defense team all the evidence they had collected and named the witnesses it intended to call at trial. The District Attorney was required to turn over to the defense any evidence it had collected that might establish the defendant’s innocence or which might impact the credibility of the state’s witnesses. There is no indication that these procedures were not followed in this case.

 

Next, the defense team had the opportunity to file pre-trial motions. These could raise legal challenges and defenses to the charges, questions of the admissibility of the evidence or witnesses, whether pre-trial publicity or other factors might make it difficult or impossible for the defendant to receive a fair trial, challenges to the impartiality of the judge and anything else they wanted to bring to the court’s attention. The defense team filed numerous motions with supporting legal memoranda followed by responsive briefs by the prosecution and hearings where witnesses could testify, if needed. The trial judge ruled on each of those motions. Again, there is no indication that the defendant was treated unfairly in this process or that outside political influences dictated the court’s decisions.

 

Much was made about the so-called gag orders imposed on the defendant by the court. Again, these kinds of orders are not unusual. Defendants who threaten witnesses or try to influence prospective jurors by public statements are routinely instructed not to do so to preserve the integrity of the proceedings. The defendant’s violations of those orders brought multiple fines and further warnings from the judge not to continue his out of court statements and social media postings. The trial judge was extremely lenient with the defendant in this case. I had clients who said a whole lot less and ended up in jail awaiting trial.

 

After all the pre-trial issues were resolved, a jury needed to be selected. Both the prosecutors and defense lawyers helped craft a questionnaire sent to prospective jurors that was designed to root out any bias or opinions about the case or the parties which might deprive either side of a fair trial based upon the evidence. Those not excused due to their answers to the questionnaire, were then questioned by the judge, the prosecutors and the defense lawyers, to see if they harbored bias or had prejudged the case. Those who the defense or prosecution thought might not serve fairly were excused. Both sides agreed upon the final set of jurors selected to hear the evidence and decide the case. Again, there is no suggestion that the jurors were biased or influenced by political interference.

 

The trial consisted of opening statements by both the prosecution and defense outlining what they believe the evidence would show. The judge then gave opening instructions to the jurors on how they were to conduct themselves. The prosecution then called the witnesses to establish the facts of the case. After each witness testified for the prosecution, the defense was allowed to cross-examine the witness to test their recollection, discredit their credibility or expose their bias against the defendant.

 

The credibility of the witnesses was left up to the jurors. They are the sole determiners of who is to be believed. In this case, the prosecution corroborated the key parts of Michael Cohen’s testimony with that of other witnesses and documents. The jury believed that the defendant knew and was part of the conspiracy to falsify the business records to cover up the payment to Stormy Daniels to keep the story of her sexual encounter with the defendant from the public leading up to the 2016 presidential election.

 

After the prosecution was finished calling all its witnesses, the defense was able to call witnesses to establish whatever relevant contradictory evidence they had to offer. The defendant was permitted to testify in his own behalf but was not required to do so. The former president decided not to testify under oath to dispute any of the prosecution’s witnesses.

 

The prosecution was then afforded the opportunity to call rebuttal witnesses to contradict the proffered defense.

 

Once both sides were done calling witnesses, the prosecution and defense had one last opportunity to weigh in on the instructions the court was to give to the jury about the relevant legal principles that would govern their deliberations and decisions. There is no suggestion that the instructions were influenced by political considerations or pressure.

 

The trial court then gave each side the opportunity to make closing arguments. Both the defense and prosecution lawyers explained to the jury why they believed the evidence supported the defendant’s guilt or why it did not establish guilt beyond a reasonable doubt. The judge then read his instructions to the jurors, excused any alternates, and the jury retired to deliberate and reach its decisions.

 

The burden of proof rests with the prosecution which is required to convince the jury beyond a reasonable doubt that the defendant committed the charged violations. The defense did not have to prove the defendant was innocent. The jury was required to make its decisions unanimously, either guilty or not guilty. If the jurors could not reach a unanimous decision as to any charge, that charge could be the subject of another trial.

 

As we now know, the defendant former president was found guilty of all 34 charges brought against him. He is set to be sentenced on July 11th. At sentencing, the judge will consider the report prepared by the probation department, the defendant’s character and prior record, his remorse, his acceptance of responsibility and other factors. Clearly, the former president has not done himself any favors with his attacks on the court, the judge and his family, his disrespect for the rule of law and his unfounded claims of political interference by President Biden.  He could be sentenced to probation, house arrest or incarceration for up to four years on each of the 34 charges. Sentences of incarceration can be imposed consecutively or concurrently.

 

The defendant then has the right to appeal to the intermediate appellate court in New York and, should he lose there, to the New York Court of Appeals. Appeals do not relitigate the credibility of the witnesses but are confined to the legal issues decided by the trial court. If the defendant’s appeal is successful, he can be retried, unless the appellate court determines the charges were not legally correct and should not have been brought in the first place.

 

The former president’s trial was just like any other criminal trial in state or federal court. All his protestations to the contrary, there is not one shred of evidence that it was unfair or influenced by outside forces orchestrated by President Biden or Democrats. Being held accountable for breaking the law hurts when one’s own behavior finally catches up with them.

Celebrate Memorial Day

 Celebrate Memorial Day

Preserve Democracy

 

On Monday, we celebrate Memorial Day, a federal holiday, to honor those who died while serving in the United States Armed Forces to preserve our Democratic experiment.

 

The first national Memorial Day was celebrated in May 1868. Then known as Decoration Day, it was started by the commanding general of the Grand Army of the Republic to honor Union Army soldiers who died in the Civil War. The states aligned with the Union had all adopted the holiday by 1890. Congress finally made the day a national holiday, Memorial Day, in 1971 and designated the last Monday in May for the observance. Southern states, aligned with the Confederacy, marked their own versions of the day on differing days trying to preserve the memory of a defeated alternative that depended upon the exploitation of slavery for its existence.

 

Across the nation, the holiday is marked by parades, the decoration of fallen soldiers’ graves with flags and flowers, speeches and gatherings to honor those who died in service.

 

I choose to honor my maternal uncle and namesake, Lt. Waring Roberts, who died while flying weather reconnaissance in Hawaii in 1944. Lt. Roberts left a promising legal career in New York City to enlist in the Navy in 1943. He went to flight school in Florida and was assigned to a unit in Hawaii that flew PBY Catalinas used for anti-submarine and search and rescue operations. He enlisted to join the fight against fascism and imperialism rampant leading up to the United States’ entry into World War II. I was named after him by my mother when I was born a year after his death.

 

He was not my only ancestor to serve in our country’s military. The earliest was Maj. Andrew Finck, an upstate New York farmer, who fought in the Revolutionary War serving as a Quartermaster. He too volunteered to fight so that a fledgling democracy had a chance to succeed in this country. While he outlived the conflict and returned to civilian life, his service is noted as an integral part of our grand experiment in Democracy.

 

Memorial Day must be celebrated not only to honor those who fought and died in service of Democracy, but to remember that Democracy is the only political system that stands between us and the tyranny of fascism and totalitarian authoritarianism.

 

We Americans occasionally fall prey to the lure of the authoritarian who offers simplistic solutions to complex problems. We become enamored of the snake oil salesman with the pitch that solves all our problems. We are drawn to the cult of the “me firsters” with promise of a brighter future that excludes those put up as the scapegoat causes of all that ails our society.

 

America is in the throws of another one of those eras that our ancestors stood up against. We must resist the siren’s call and insist once more that we fight problems with facts, science, and the rule of law, not platitudes and snake oil. Democracy takes vigilance and hard work. It is not easy nor formulaic. Each new hurdle requires that we work together to overcome the obstacle. We cannot do it in isolation from each other.

 

We do not have to agree on every issue, or every solution proposed to solve a problem. We do have to agree that we are all in this together and must work together to resolve our differences to solve them.

 

Right now, the threat to our Democracy is not external. No one is threatening to invade our borders, including those who want the better life a democratic society offers. The biggest threat to our Democracy is internal caused by the divisive, polarizing nationalism promoted by an extreme faction following and guiding a former resident of the White House.

 

Just as our ancestors fought and died to preserve our Democracy, we need to honor their service and sacrifice by standing up for the Democratic ideals that make America great. We are a nation of many races, creeds, national origins, and religions. Unless you descend from the indigenous first residents of these shores, we all descend from immigrant stock. We need to recognize that we all have contributions to make for the greater good.

 

Lt. Waring Roberts and Maj. Andrew Finck, I honor your service and sacrifices. I pledge to continue to fight for what you stood up for, preserving our Democratic experiment by working together so we can all do better.

 

It’s the Economy

 It’s the Economy

Yes, it is!

 

It is nice when predictions come true.

 

In August of 2017, I wrote on this page about the pending Foxconn deal cooked up by then Governor Scott Walker, Assembly Leader Robin Vos, and Senate Majority Leader Scott Fitzgerald to spend lots of our money to lure Foxconn to Vos’ district for the promise of 13,000 jobs and millions in construction expenditures. They approved a $3 Billion dollar subsidy and tax incentive package, ten times larger than any in state history, to cement the deal.

 

In February of 2019, I wrote here about the failure of the Foxconn “con,” including the lack of support from and the complicity of then President Trump in selling the deal. The “con” left taxpayers on the hook for millions of dollars for road improvements, a sewer system and other utility costs, not to mention the forced relocation of many farmers and permanent residents who lost their homes to eminent domain actions. Very few of the promised jobs ever showed up and the new LED screens Foxconn promised got built someplace else.

 

This past Wednesday, President Biden traveled to Racine to announce not only that the original Foxconn deal was indeed a “con,” but that we are about to rectify it with help from Microsoft which purchased a bunch of the vacant Foxconn land and plans to build a huge artificial intelligence data center on that property at a cost of $3.3 Billion dollars.

 

This deal will be one of the Biden administration’s largest economic accomplishments which Biden was proud to note was also one of his predecessor’s most significant economic failures. It is part of Biden’s “Investing in America” agenda and will create 2,300 union construction jobs and 2,000 permanent Microsoft jobs.

 

In addition, Microsoft will be working with Gateway Technical College to start a “Datacenter Academy” which will train 1,000 Wisconsin workers to work with large data. It will also expand its “Girls in STEM” program in two additional local middle schools and develop new programs in science in local high schools.

 

As President Biden noted in his remarks at Gateway, this project accomplishes what the former president promised, but never materialized. It marks the continued resurgence of American manufacturing and infrastructure jobs that has been running full steam since Biden’s election.

 

Biden commented that the former president’s policies cost Racine 1,000 manufacturing jobs and more than 83,000 statewide. In contrast, Racine has added nearly 4,000 new jobs in the past three years while enjoying record low unemployment rates. Wisconsin gained 178,000 new jobs in the same period thanks to the Bipartisan Infrastructure Law, the CHIPS and Science Act and the Inflation Reduction Act.

 

It is not surprising that the bulk of the federal money appropriated to fund these projects is being spent in Republican districts showing that Biden is working to fulfill his promise to be president for all Americans, not just Democrat Americans. Bringing jobs to these areas, Biden hopes to address the malaise some feel having lost those opportunities in the first place.

 

It is not lost on Wisconsin Progressives that President Biden made his announcements at a local technical college. Economic and social development with educators, scientists and business leaders working together is a hallmark of the “Wisconsin Idea.” That progressive notion was championed by our own “Fighting Bob” Lafollette to develop projects and solve problems in ways fair to both working people and those who employed them. Biden echoed the idea, noting that, “We’re the United States of America, and there is nothing beyond our capacity when we work together.”

 

If the true measure of political prowess is following the mantra, “it’s the economy, stupid,” then President Biden is an accomplished master. In his first term, he has started the largest economic recovery program since the New Deal and post WWII. The signs of help from our federal government are even seen in West Bend as you drive north on Main Street.

 

For too long. we have neglected our infrastructure and sent local good paying union jobs overseas. The Biden administration is bringing those jobs home and rebuilding America and deserves the opportunity of a second term to continue the efforts.

Labor Reborn

 Organized Labor Reborn

“We all do better when we all do better.”

 

We had a celebration during the TV national news the other night when David Muir reported on the unionization of a Volkswagen auto assembly plant in Tennessee. The plant workers voted overwhelmingly to join the United Auto Workers in the face of fierce opposition by management and six governors from the surrounding red states who attacked the union as a threat to “liberty and freedoms.”

 

The mainstream media reporting on the vote was fleeting and they missed a major part of the story which is that this was the first successful union organizing drive in the auto industry outside of Detroit and the first major union victory in the South in decades.

 

This win is historic and signals the continued rebirth of the American Labor Movement.

 

My family has been part of the Labor Movement since my grandfather, Rev. William Mann Fincke worked to support labor in New York City’s Labor Temple and Pennsylvania coal miners in the 1920s. He went on to found progressive boarding schools for the children of labor organizers and unionized workers. Two of his sons, my uncles, continued working in labor supporting and labor supported progressive schools in the 1940s and 50s. One of those sons, my Uncle Ben, continued that work at Buxton School which I attended from 1959 to 1964. I picked up the history and worked my way through the University of Wisconsin-Madison as a proud member of the union behind entertainment, IATSE Local 251, in the early 1970s. I took UW-Madison journalism classes from proud members of the Newspaper Guild.

 

When former Governor Scott Walker “dropped the bomb” of Act 10, drastically curtailing the rights of public sector union workers, I organized the first of several demonstrations on the corner of Paradise and Main to support those recently disenfranchised. We were supported by local professional firefighters, teachers, unionized public health workers, public sector laborers and several unionized members of law enforcement. I continued working with local public-school teachers and their union leaders to combat the draconian aftereffects imposed by local school boards. We organized supporters to help elect school board members open to honest converstations with school staff about working conditions and wages.

 

Our local struggles mirrored a decline in union power and influence that started in the late 1970s. Because organized labor helped build a worker led middle class, supported civil rights, voting rights, Medicare and Medicaid, family and medical leave laws and other progressive measures, GOP governors and presidents targeted unions and their leadership.  Their successes led to wage cuts, reduced pension benefits and reduced job security. The result has been more than 40 years of near flat wages while our national economy has grown threefold over the same period.

 

As union power waned, so did the middle class while those at the top accumulated more and more wealth.

 

That has slowly changed. Unions have sprung up in new places and won fair contracts. Look to the Hollywood writers and other behind the scenes unions like IATSE, UPS workers, healthcare workers in California and even university employees who have negotiated significant pay increases and increased job security.  Public school teachers in several states have gone out on strike, ignoring state laws prohibiting public sector strikes, and won new contracts. New Union contracts have averaged pay increases over 7% while Union membership increased by 191,000 in 2023. Public approval of organized labor is on the rise. It is up to 70%, the highest in 50 years.

 

Several factors have contributed to the rebirth of the Labor Movement.

 

Covid showed us that rich Americans had an easier time surviving and that we all depend upon working folks just doing their jobs. Those everyday workers quickly learned that the system is rigged against them. Union wins at the bargaining table showed that change and improvement are possible through collective action and bargaining. The post pandemic economy is growing rapidly, and employers are having trouble holding on to the workers they need to keep up.

 

Finally, we have the most pro-union President in recent history. Joe Biden joined a UAW picket line in support of striking auto workers. Biden issued a statement congratulating the Tennessee auto workers on their historic vote to unionize. He reshaped the National Labor Relations Board into the most pro-union one in decades.

 

All these things are driving the rebirth of organized labor as a positive progressive force in America and will help shape an American future that supports working people as the backbone of a growing economy. With this rebirth, the hoarding of wealth at the top of the food chain will stop as more sit at a longer table to enjoy the fruits of their labor.

Vote Empathy, Not Conspiracy

 Vote for Empathy, Not Conspiracy

I became a sentient political being when John F. Kennedy was President, and his brother Robert F. “Bobby” Kennedy was his attorney general. Together these Kennedys brought empathy to governance. JFK started the Peace Corps, RFK led the way for the government to restore the unfettered right of Black folks to vote and championed other civil rights initiatives. Bobby convinced his brother to take on these challenges as well. I remember well when both were assassinated.

Fast forward to the present and we find Robert F. Kennedy, Jr., Bobby’s son, claiming the Kennedy mantle and running for President, first as a Democrat and, after that imploded, as an Independent. Aside from RFK, Jr’s commendable work as an environmental lawyer, he is the anthesis of all that his Kennedy predecessors stood for. They would have been appalled at what RFK, Jr. has embraced and how he has become a pawn for the MAGA crowd’s pursuit of power.

Former President Trump first saw RFK, Jr’s potential as a foil to President Biden’s re-election bid when Junior embraced some of the same anti-vaccination conspiracy theories Trump did.  RFK, Jr. started making unsupported claims that vaccines cause autism and that Covid was cooked up by the Chinese to target Blacks and Caucasians. He went further claiming that the Covid vaccines killed more people that they saved.

RFK, Jr’s 2021 book, “The Real Anthony Fauci,” accused Dr.  Fauci of all manner of abuses with respect to the Covid pandemic and the vaccines developed to combat it, echoing claims by the former president.

Some in the MAGA conspiracy have rallied to RFK, Jr’s flag and pumped large sums into his SuperPac in hopes that the Kennedy name will draw votes away from President Biden come November.

Timothy Mellon, heir to the Mellon Bank family fortune and a top Trump donor, donated $20 million to RFK, Jr’s PAC. The same PAC that supports MAGA sycophant Marjorie Taylor Green is supporting RFK, Jr’s campaign.

If one needs further proof that the MAGA crowd is in bed with RFK,Jr., look at the recent speech by his self-proclaimed New York campaign director, Rita Palmer, to local Republicans. She told them that Kennedy needed to get on the ballot in New York to take votes from Biden so Trump could win the historically Democratic state. She stated her number one priority was to get rid of Biden. She urged the GOP to help get signatures to get Kennedy on the ballot there and in Pennsylvania.

If this unholy alliance does not convince you to stay away from RFK, Jr’s campaign, consider that most of the current Kennedy clan supports President Biden’s re-election and they have specifically and forcefully condemned RFK, Jr’s candidacy. 50 Kennedys took part in a White House photo on St. Patrick’s Day showing their support for Biden.

There is more to RFK, Jr’s unhinged world. He issued statements claiming that those who participated in the January 6th insurrection at the US Capitol were merely “activists” who had been “stripped of their constitutional liberties” and their prosecutions may have been “politically motivated.” He questioned the clear evidence that Sirhan Sirhan killed his father and claimed that the CIA was involved in the JFK assassination. Without offering significant support, RFK, Jr.  has opined that environmental chemicals are responsible for gender dysphoria leading to transgender people.

Even if you are disaffected by President Biden, Robert F. Kennedy, Jr. has no place in American political life given his conspiracy theory driven positions and his delusional beliefs. Trading on his famous family name should not convince voters to cast ballots for him and take votes away from President Biden. Those of us who lived with his famous father and brother in public life know RFK, Jr.  is no true Kennedy.

A Bit of Perspective

 A Bit of Perspective

Because I cannot opine on matters political that appear on the current election ballot this close to Election Day, I offer some personal reflections.

This year, I hit two milestones on the same day, March 28th.

The most important of those is my marriage on that date to my spouse, Gretchen, in 1972. Fifty-two years living with the same person, through thick and thin, is an accomplishment to be celebrated for sure. Along the way we raised three kids and helped countless more. We are lucky and proud that they have all grown up and become successful in their work and personal lives. We’ve been blessed with four wonderful granddaughters. We’ve supported each other’s careers, and both worked to try and make the world a better place. Now that we’re elderly the pace has slowed but the caring for each other and the planet we live on has not. 

The second milestone for March 28th happened in 2014 when I underwent quadruple heart artery by-pass surgery at Froedtert Hospital in Milwaukee. I have many healthcare providers in the Froedtert system to thank for being alive and able to get up each day and take care of what needs caring. Our healthcare system has its flaws to be sure, but I am still kicking thanks to the one we have. The fact that my surgery took place on our anniversary is not lost on Gretchen and me and, having survived, made it all the more special.

Thinking back on the milestones helped put me in touch with more of my history. One of the most important parts of that history was the five years I spent living in a private co-ed progressive high school in the Berkshire mountains of western Massachusetts. I grew up in Southern California and was spiraling into delinquency as my teens approached. My Eastern bred parents thought it best to send me away to high school and picked one led by my paternal uncle. Buxton School changed my world view from one of California republicans to the more pluralistic socialist view of Eastern progressives. The values and world view I took on in those five years charted a life-long pursuit for social justice and equality. Buxton hit a rough patch during Covid and almost closed. I am helping from a distance by putting together a formal alum association to help the school survive so it can continue to provide a progressive start to kids needing direction.

The final piece of my formative years that helped me get launched was the five years I spent working in the War on Poverty from 1966 to 1971. I joined VISTA after dropping out of a college that I never should have entered. I got trained at the Columbia University of Social Work in New York City with a field placement in Harlem. I learned the basics of community organizing laid out in “Rules for Radicals” by Saul Alinsky. VISTA sent me to Houston, Texas to work for the Houston Council on Human Relations where I joined another 8 volunteers from around the country. We lived in the several African American wards in the city organizing new political movements, registering voters, tutoring kids, and learning about race and injustice. After that year I worked for the local Community Action agency and then for a group of Black ministers as a grant writer. Speaking truth to power learned then became part of who I am today. I continued anti-poverty work after taking a job at CUNA International in Madison providing support to VISTA volunteers working in low-income credit unions across the country and then training new VISTAs for the Jane Addams Training Center in Chicago.

 The experiences I had working with and in impoverished and powerless minority communities helped cement my commitment to pursue equality and social justice in my professional and personal life.

Now you might understand a little better the slant I bring to the opinions I share every other week on this page. I’ll keep it up as long as I can think and type and hopefully continue to offer a different perspective on our world than you get anyplace else.