"If any have offended against thee?" Marcus Aurelius

Consider whence each thing is come, and of what it consists, and into what it changes, and what kind of a thing it will be when it has changed, and that it will sustain no harm. If any have offended against thee, consider first: What is my relation to men, and that we are made for one another; and in another respect, I was made to be set over them, as a ram over the flock or a bull over the herd. But examine the matter from first principles, from this: If all things are not mere atoms, it is nature which orders all things: if this is so, the inferior things exist for the sake of the superior, and these for the sake of one another.

Second, consider what kind of men they are at table, in bed, and so forth: and particularly, under what compulsions in respect of opinions they are; and as to their acts, consider with what pride they do what they do.

Third, that if men do rightly what they do, we ought not to be displeased; but if they do not right, it is plain that they do so involuntarily and in ignorance. For as every soul is unwillingly deprived of the truth, so also is it unwillingly deprived of the power of behaving to each man according to his deserts. Accordingly men are pained when they are called unjust, ungrateful, and greedy, and in a word wrong-doers to their neighbours.

Fourth, consider that thou also doest many things wrong, and that thou art a man like others; and even if thou dost abstain from certain faults, still thou hast the disposition to commit them, though either through cowardice, or concern about reputation, or some such mean motive, thou dost abstain from such faults.

Fifth, consider that thou dost not even understand whether men are doing wrong or not, for many things are done with a certain reference to circumstances. And in short, a man must learn a great deal to enable him to pass a correct judgement on another man's acts.

Sixth, consider when thou art much vexed or grieved, that man's life is only a moment, and after a short time we are all laid out dead.

Seventh, that it is not men's acts which disturb us, for those acts have their foundation in men's ruling principles, but it is our own opinions which disturb us. Take away these opinions then, and resolve to dismiss thy judgement about an act as if it were something grievous, and thy anger is gone. How then shall I take away these opinions? By reflecting that no wrongful act of another brings shame on thee: for unless that which is shameful is alone bad, thou also must of necessity do many things wrong, and become a robber and everything else.

Eighth, consider how much more pain is brought on us by the anger and vexation caused by such acts than by the acts themselves, at which we are angry and vexed.

Ninth, consider that a good disposition is invincible, if it be genuine, and not an affected smile and acting a part. For what will the most violent man do to thee, if thou continuest to be of a kind disposition towards him, and if, as opportunity offers, thou gently admonishest him and calmly correctest his errors at the very time when he is trying to do thee harm, saying, Not so, my child: we are constituted by nature for something else: I shall certainly not be injured, but thou art injuring thyself, my child.- And show him with gentle tact and by general principles that this is so, and that even bees do not do as he does, nor any animals which are formed by nature to be gregarious. And thou must do this neither with any double meaning nor in the way of reproach, but affectionately and without any rancour in thy soul; and not as if thou wert lecturing him, nor yet that any bystander may admire, but either when he is alone, and if others are present...

Remember these nine rules, as if thou hadst received them as a gift from the Muses, and begin at last to be a man while thou livest. But thou must equally avoid flattering men and being vexed at them, for both are unsocial and lead to harm. And let this truth be present to thee in the excitement of anger, that to be moved by passion is not manly, but that mildness and gentleness, as they are more agreeable to human nature, so also are they more manly; and he who possesses these qualities possesses strength, nerves and courage, and not the man who is subject to fits of passion and discontent. For in the same degree in which a man's mind is nearer to freedom from all passion, in the same degree also is it nearer to strength: and as the sense of pain is a characteristic of weakness, so also is anger. For he who yields to pain and he who yields to anger, both are wounded and both submit.

But if thou wilt, receive also a tenth present from the leader of the Muses (Apollo), and it is this- that to expect bad men not to do wrong is madness, for he who expects this desires an impossibility. But to allow men to behave so to others, and to expect them not to do thee any wrong, is irrational and tyrannical.

Marcus Arelius, Meditations, Book XI [Emphasis added.]

Dogs on a Lake

The topic of this site is a hard one. Men are being put in jail. Their lives are changing in ways not one of us who has not ever experienced what they are going through could begin to understand. Perhaps though, with some imagination and remembrance of hard times in our own lives, we might get an idea of what it must be like.

Some of us would like to avoid an existential understanding what these "others" are going through by saying they are guilty and they deserve punishment.

So be it, but let us face the truth. Not one of us is innocent. No, not one. If one would look closely he or she would see a truth -- not one of us is innocent. And, one way or another we deserve punishment.

So, why the picture of dogs on a frozen lake in Eastern Washington just below a place where people who are not like us are, in essence, incarcerated in a hospital -- Medical Lake, Washington? Why not?

Earwigging: Financing Judicial Campaigns

The financing of judicial campaigns is a form of earwigging. Political forces, whether they be individuals or groups, seek the election of judicial candidates who will decide cases in certain favorable ways to the individual or group. In our electoral process money is speech. Political forces therefore spend money to get certain people elected. These forces do not spend speech money out of the goodness of their hearts. They expect a certain form of "speech" from the people they get elected. The speech they expect is speech from the benches of our judicial system -- the super-legislatures of today's "democracies." It is just human nature.

Judicial campaign financing is a form of earwigging.

Judge Bobby DeLaughter and Earwigging

The government is going to have a tough row to hoe to convict Judge Bobby DeLaughter.

It is going to have to show that DeLaughter knew he was being bribed, knew that he was actually knowingly involved in the efforts of Richard Scruggs and his cast of characters (at the time well thought of by the community and the sub-community of lawyers) to influence him.

My guess is DeLaughter will show he was being "earwigged." Earwigging has a rich tradition in Mississippi. It is the only state that has specific rules devoted to trying to minimize earwigging. The Mississippi judicial conduct commission proceedings are replete with conduct involving ex parte contact between judges and litigants and others – earwigging.

The evidence at the DeLaughter trial will include all sorts of facts about the extent earwigging takes place in Mississippi. We will learn judicial cases are, in essence, political events whereby the judge treated like a composite of individuals making up a legislature. We will learn that lawyers and litigants and their friends have routinely contacted judges about cases and have done so in a host of imaginative ways. That is, that judges are routinely lobbied about the cases before them. We will learn that money does not have to change hands. We will learn that judges dearly like to be loved and thought well of by members of the community, members of the community they respect.

We may even learn what P. L. Blake was doing for his $50 million and what the hell Patterson was doing for his $80,000 per month.

Another Guilty Plea and Two More Years on His Sentence

Richard Scruggs pled guilty to more crimes yesterday in Aberdeen, Mississippi. He will serve 7 years but the time will be concurrent so his total prison time will be 7 years. Maybe he will qualif for some sort of parole. Maybe not. If he serves the full 7 years he will be out when he is about 69 years old.

The pictures of Mr. Scruggs yesterday seemed to show that prison had brought about great changes in him. He was thin. Gaunt even, a person who had obviously been going through dramatic changes. Yet, in a way, it seemed as though he was a man in process, a man who was evolving from something he was into something new. Looking close one could tell prison and the changes he was undergoing, the punishment he was experiencing, was having a positive effect.

Perhaps for the first time he was beginning to see something he had only seen from afar. Was it the look of defeat that I saw? Maybe, but only in a worldly sense. Instead, I think I saw a person for whom a light was beginning to shine and was going to light up his soul.

Law and lawyering in America today is a sad business. The success some think they experience is not real.

Personal Success In America

In America as elsewhere we like to think people who break the law and go to jail are not like us. We like to think we are different, we are better citizens, not prone to bad or illegal behavior. The judges whom we respect without question look kindly upon us. We write about those who have failed, who have gotten caught, have caused harm and think -- they are bad and I am good we silently say to ourselves. We say, "they are subject to reproach, but not me."

Plea Bargains

The news from Mississippi tells of another plea bargain in the offing between Richard Scruggs and the US Attorney. There will be more such bargains perhaps. The trouble with these plea bargains is that we do not get to know all of the facts surrounding the wrongdoing. There will be some sort of admission of guilt as to a particular crime by the person reaching the bargain, but there will not be an exposition of the facts, in any great degree, in and about the wrong doing.

One supposes that the wrongdoing in Mississippi between judges and lawyers is pervasive. To what extent we will never know.

Prison: Wondering What It Must Be Like

Living into your 60's gives one the chance to to know and have known people who have found themselves punished by establishment. Some of these acquaintences have been jailed or will be jailed. Some have been ordered to pay substantial sums of money for conduct determined to have been committed and determined to have been wrong. Some are caught in the system are waiting for the system to set out their worldly fate or waiting for the system to start a round of prosecution.

For the most part we do not think much about these people once they have been punished, once they have been sent to jail or made to pay. In fact, sometimes we stop thinking about them when a case is filed against them or a prosecutor commences a prosecution. Though we do not come ou and say it, we think they deserve what happened to them and therefore no longer need to be thought about, cared about. They have been sent away, exiled, sent to Siberia, sent to a relocation camp for future disposition by the authorities. Or they are about to be sent away.

For the most part, we think of these people as generally evil. And, since they "evil" there is no reason to have much regard for them. We say, "they are not like us." We view them as objects which we can forget.

One function of this exclusion is to protect ourselves from having to acknowledge our own many errors, our own wrongs. We were not punished or excluded. We know our secrets, and hope to be able to get away with what we have done.

If we were to think of those who have become involved in the establishment's powers of punishment or imprisonment in a humane way we would have to think of ourselves as wrongdoers. Our illusions about our innocence and perfection would be put at risk.

Our lack of honesty about ourselves and our humanity keeps us from being human to those our establishment punishes and imprisons.

P.L. Blake

The Tobacco Litigation produced millions in attorney's fees. But, it also produced billions in programs for states to combat smoking or billions to compensate states for the costs of dealing with the health problems of those who smoked cigarettes.

The primary person pursuing such objectives saw fit to hire a political operative originally from Greenville, Mississippi to assist in the effort. An agreement was reached for his services -- $50 million.

His name is P. L. Blake. It would be interesting to know what, exactly, his role was in the process of the Tobacco Litigation.

Carl Orff and Betrayal

We learn this week that Carl Orff the composer of the famed Carmina Burana was a man who betrayed a friend. One could say he really did not betray is friend, merely did not come to his aid. The friend, Kurt Huber was a found of the Munich unit of an anti-Nazi resistance group during he war called "The White Rose." Kurt Huber was arrested by the Gestapo. His wife asked Orff to intervene. He refused choosing to protect himself. Huber was later hung by the Gestapo.

After the war, in order to establish himself as a candidate for de-nazification, Orff told a United States intelligence officer, a man named "Jenkins that he had co-founded Die Weisse Rose with his friend, Kurt Huber." Richard Morrison, Carl Orff, the composer who lived a monstrous lie, The Times on Line, December 19, 2008

Joey Langston and John Dean

From what I read, many are saying what a good guy Joey Langston is. They say he has done a lot of good. They say in his sentencing coming up, the judge should be lenient. Not only because he is a good guy but because he has gone out of his way to help the prosecution in the conviction of those he worked with when he and Steve Balducci tried to bribe Judge Bobby DeLaughter.

I do not know what to make of this. But, it reminds me of my opinions of John Dean and the part he played in Watergate and the part he played bringing those he had worked with to justice. His efforts seemed opportunistic. He seemed to be the same person I had dinner with one night at Egil "Bud" Krogh's house in Chevy Chase. A person I thought of at the time as "just a bit too slick."

While it is good that we have such people concerned for justice following their own injustices. It seems just bit untoward (sleazy) . however, that they seem to step forward with relish in making themselves into "good guys" as they use the opportunity to bring down friends so as to gain easy and light sentences. Seems everything is relative. Seems everything is "for sale" so to speak.

As I recall, Bud Krogh asked to be sentenced before he cooperated with the prosecution. Now that's a person with good sense and good ethics.

Speculation: New Indictments

Some are speculating that new indictments will issue soon from a federal grand jury sitting in northern Mississippi. The speculation has to do with Richard Scruggs and the alleged bribery of Judge "Bobby" Delaughter in a fee case involving a number of players. One thing about this Mississippi situation is that it will come to us with the bark on, so to speak, if there is a situation to come to us.

One suspects lawyer-judge shenanigans go on all the time but in a much more subtle way in other jurisdictions. Indeed, in some jurisdictions it is not necessary to promise anything to the judge. All one has to do is to ensure that the judge understands that friends and others will think highly of him or her if he or she "does the right thing." In Mississippi people still do such things for money, or so it seems. At least, in Mississippi, there is a certain honesty, even
"transparency" as they say.

Elk in a clearing.

This is a picture of a herd of elk in a clearing in a forest in northeastern Washington. I say not where to protect the herd. I find it hard to understand why anyone would gain pleasure from killing one of these creatures. But, I suppose I find it hard to understand why anyone would gain pleasure from harming any living thing.

The Basic Truth

This painting troubles me. It has something to say about the motivations of the people in the Scruggs Matter, all of the people, and at every stage and aspect. From the desire to win, the desire to capture, the desire to escape punishment by helping the prosecutors inflict punishment on others, the desire for fame and professional approval, the desire to be a part of treachery. When one thinks of it, one is hard-pressed to find real proof of the assurance of a single laudable motive at work in the hearts of any one of the players in this sordid drama -- Dick Scruggs, Steve Balducci, Joey Langston, Edward Peters, Bobby DeLaughter, Judge Henry Lackey, Judge Biggers, the whole lot.

We like to think there are good guys and bad guys, but I wonder. I wonder if in the heart of things, in the heart of all of the people who played a part, there is not something pervasive and sad, something corrupt. We will only know if the heart of each is honest and dares to express the subtlety of human motivations. Were he to do so, it would be up to each of us to understand, to express grace and forgiveness if it is in our power to forgive.

More Treachery in Mississippi

News is coming from Mississippi telling of the efforts of Joey Langston to help the U.S. Attorney in his efforts regarding the Judge Bobby Delaughter influence matter. Seems Langston and Steve Balducci were engaged in some effort to influence Judge Delaughter using his old friend and mentor Edward Peters. Peters apparently got $1 million. Langston and Balducci pled guilty to some relatively minor charges. Now they are helping the U.S. Attorney gain new indictments against Dick Scruggs, the lawyer, Langston and Balducci were working for.

The matter is a real sorry mess. But, the truly frightening thing for me is this: The legal system uses treachery to gain indictments and convictions. What is the treachery here? It is the apparent fact that Langston using his involvement and perhaps instigation of a wrong of judicial influence and bribery to put his friend and client in jail. The common excuse for this is that government has to make bargains with the devil to bring other devils to justice. This is commonly accepted within our system of "justice."

The principles at work are expressed by the aphorisms used -- law is not about justice, it is war and in war there are no principles, you can only get the bad guy by using the same techniques bad guys use, the guy the government is going after is really a "bad guy," and he deserves no fairness, life is tough, get over it, -- and so it goes.

The real principle at work is this -- the end justifies the means.

So where do we go when this principle reaches into every part of our civilization, our culture. Our culture becomes one based only on the principle of expediency as determined by those in power from time to time.

Do we have to become evil in order to control evil?

Lerach -- Lessons for those in Prison

William Lerach is serving time at Lompoc near Santa Barbara for doing bad things as a lawyer.

Now he is in more trouble and may have to serve harder time for his wrongdoing. Seems he suggested to a guard who likes sports that the guard could use his season tickets to the games of some professional sports team. Here is a story about Mr. Lerach's current predicament.

You are not supposed to say such things, suggest you might do such things. It makes sense. for sure.

There is a lesson to be learned for those under the microscope of others: Do not presume anyone on the prison staff is or should be your friend. Withdraw into yourself. Keep your distance. Do no indulge in your motivations of good will. Certainly, do not indulge in your motivations of ill will. Detach yourself. Pursue more meaningful things. Become an observer, cease to be a participant. Try to understand. Have compassion which does not attach. Let your compassion float over to yourself and try to understand something of yourself that you never had time to attempt to understand. Give yourself a break. Let yourself alone for a while.

This morning I sent a comment to Folo asking Observer to expand on a statement he made. So far no response from Observer or anyone else for that matter. Maybe the thread has been closed, maybe people just got bored with the questions I was raising. Here is what I said and asked:

Observer - In the past you said “In the post-Paul Minor world, Judge Lackey apparently was afraid someone was trying to set him (i.e., Judge Lackey) up. The people that were hunting for Dickie Scruggs was the FBI. Judge Lackey found himself in an awful position.”

Do you think he (Judge Lackey) may have thought someone was working with Tim Balducci to set him up?

Do you think he knew anything about, or had heard rumors about, the Wilson Case in Judge DeLaughter’s court?

Do you think he thought there was surveillance of him independent of Balducci?
I think the judge even said somewhere he was concerned that someone might be looking at him back in March of 2007.

The entry and the thread can be found here at Folo.

Judge Lackey: Questions, Something Does Not Ring True

I am still confused and suspicious of how the FBI got to Dick Scruggs. The agent for the FBI was a Mississippi Circuit Judge, Henry Lackey.

Judge Lackey was assigned the Jones v. Scruggs case. The day of the assignment he entered an ex parte order sealing the case file. Common law makes case records public records. He signed the order because the lawyer for Jones, a man named Tollison asked to sign the order.

Next, a Tim Balducci calls Judge Lackey. He contends the case should be sent to arbitration. Balducci is a friend of Dick Scruggs.

Here is where it gets interesting. On more than one occasion on the Folo Blog commentators have said that Judge Lackey thought he his actions might be under surveillance. Supposedly, he waited about two weeks before he said he went to the United States Attorney who then put him in contact with the FBI.

One commentor said that Judge Lackey became physically ill after his meeting with Mr. Balducci.

What I am struggling with is why Judge Lackey would become physically ill or, if not physically ill, emotionally distraught. I wonder? Did Judge Lackey really think that he might be under surveillance? Why would he have thought that? Was he aware of what was happening or possibly happening regarding Judge DeLaughter in the Wilson case?

Why would the judge think that he might be under surveillance? Did the judge have a reason to think his conduct, in the past, and as a judge might have caused someone to become suspicious of him?

From the judge's testimony and public statements it does not seem that he was troubled very much by what Tim Balducci had asked him to do, if he had really ask him anything. He did not seem to be the type of guy who would be come physically ill because a lawyer may have earwigged him.

That he became ill because Balducci approached him is, well, it its beyond reason.

So, why did Judge Lackey become ill? Why did he think the FBI may have been surveiling him? Was it because he was talking to Balducci and he thought the FBI may have been surveiling Balducci? But if that was the case why did he wait so long to go to the US Attorney. Was it because he had been the situation before? Was talking to judges "out of school" a common practice everywhere, in Calhoun County? Did the judge know something about the Peters, Langston, Balducci, Judge DeLaughter situation in the Wilson case?

Does the out of court politics of law in Mississippi have a much deeper significance that anyone is willing to admit to?

Something is not quite right. And, it also seems of interest that Judge Lackey is being lauded for his efforts and that the Mississippi Bar association is giving him awards. Why is all this happening so fast?

Much more is to be unravelled.

A Justice for American Judges and Lawyers Today

The other day, I listened to one of our Supreme Court justices, Anton Scalia, talk about a book --Making Your Case: The Art of Persuading Judges -- he had written with another, a writer employed to write by one of the larger law book publishers, a "household name" in the legal profession. There was not much to listen too.

The judge was using the heights of his position to team up with a name one sees on significant publications of the law book publisher to tell lawyers how to make the lawyer's case to judges. And, to make your case, how to dress, how to write a brief, how to make oral argument, how to, how to, etc.

Lawyers with some spare change have many such books on their bookshelves (if they really have bookshelves outside of the bookshelves of their law firms). Such books not about the law, the history of law, the purposes of law, the major concerns of law over time. No, such books are books about how to "trick the law."

What I mean by "trick the law" is how to control the system of law and judges so that it works in one’s favor, so that it is possible for a lawyer to win. Tricking the law is about how a lawyer would go about getting his or her success in the law. Tricking the law books are all about how to conform so one can win – gain material success and favorable public opinion in the profession of the law.

Justice Scalia, a man lionized by many within and without the profession of the law, went on to say lawyers are merely "facilitators", that they do not contribute anything real or substantial to the process of life. They just help things along. I think I remember that as the essence of what the justice said, but I am also sure he would say I am simplifying it too much though.

I had never really thought about lawyers in this way before -- as facilitators. Or, if I had, I denied the truth of the characterization. The lawyer of my imagination has always been a person who, acting with courage and conviction and intelligence as best God gave it to him, would do more than just facilitate, he would lead and he would try to help the law evolve. I have naively assumed that a good lawyer would use his effort to help the filial sense of being evolve into finer thing.

I have had lofty thoughts about the law and lawyers and still do. But the justice’s remarks lead me to think I am out of step with the times.

Maybe a lawyer is just that, a facilitator. That a lawyer should be just that, and should aspire to be only that – a facilitator helping himself and his client trick the law for success and profit.

Does not seem much to aspire to.

Maybe we will be saved from this pecuniary view of the legal profession and the judiciary by a book, after the fashion of Babbitt by Sinclair Lewis. A Babbitt book about a lawyer rather than a realtor (trademark).

Earwigging for Some but Not Others in Federal Courts?

In Richard Sobol’s book Bending the Law: The Story of the Dalkon Shield Bankruptcy , a rather momentous example of earwigging of a federal district court judge is described.

In the Preface to the book, Mr. Sobol describes how A. H. Robins Company, the manufacturer of the Dalkon Shield, sought to consolidate the Dalkon Shield Litigation in the federal court in Richmond, Virginia before District Judge Robert R. Merhige, Jr., a local law school graduate of the University of Richmond, and an "enthusiastic booster of both the city and the university."

The efforts to consolidate had been opposed. Robins "finally achieved the consolidation of the Dalkon Shield litigation in Richmond before Judge Merhige by filing for bankruptcy." Mr. Sobol reported Judge Merhige "is a neighbor of E. Claiborne Robins, Sr., who is a celebrated figure in Richmond. Three weeks before the bankruptcy filing, Merhige met in his home with Robins, Sr., and E. Claiborne Robins, Jr., the president of A.H. Robins, to discuss the company’s plans with respect to bankruptcy."

The rest is history. The liabilities of the company and its officers, directors, attorneys and insurer were transferred "to a trust with limited funding, and to allow the Robin’s shareholders to be paid the value of the company in excess of the fund before it could be determined whether the individual entitlements of the women injured by the Dalkon Shield exceeded the amount of the fund, or indeed, the total value of the company."

Thus, it might be contended there there are differing standards regarding earwigging and its progeny from case to case in federal court.

One would have had a different view, maybe a more enlightened view, of the Scruggs sentencings had Judge Biggers made some mention of the A. H. Robins - Merhige earwigging. I wonder if he would have found a difference between it and the initial earwigging of Judge Lackey by Timothy Balducci to get the Jones case sent to arbitration?