Talk, Talk, Talk: Federal Criminal Discovery

Posted on January 16, 2015 by Jack Sharman

Nice tie.

Two different audiences — CJA criminal defense lawyers and Birmingham corporate and non-profit leaders — heard my thoughts, hopefully helpful ones, about white-collar crime and federal criminal discovery.

As part of an annual continuing legal education event sponsored by the Office of the Federal Public Defender for the Northern District of Alabama on December 12 , 2014, we discussed “Discovery In Complex Criminal Cases.” Kevin Butler heads up the Northern District’s FPD office and does a great job. (We interviewed Kevin here). Read more about the Federal Public Defender’s Office here.

This week, I participated in a white-collar crime panel for the 2014-2015 class of Leadership Birmingham, a worthwhile organization. The panel was moderated by John Carroll, former United States Magistrate Judge, former Dean of Cumberland Law School and current Director of the Alabama Ethics Commission. White-collar lawyers Anthony Joseph and John Lentine joined me on the panel. Read more about Leadership Birmingham here.

Here’s the press release: white collar crime

Naughty? Nice? “Reasonable doubt at a reasonable price.”

Posted on December 24, 2014 by Jack Sharman

Why Innocent People Plead Guilty: Judge Rakoff, Eddie Coyle, Albert Camus and Sweet Dreams of Oppression

Posted on December 7, 2014 by Jack Sharman

If they give awards for “Best White-Collar Article of The Year,” I wish to nominate one. And it’s not even, strictly speaking, an article only about white-collar crime.

Judge Jed Rakoff

Jed Rakoff is a federal district judge in the Southern District of New York (in other words, in Manhattan). We have mentioned Judge Rakoff before, here and here. He also famously criticized DOJ’s failure, as he perceived it, to prosecute individual executives in the financial crisis.

Here, he has a thoughtful article on Why Innocent People Plead Guilty.

Portions bear quoting at some length:

The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes.

To the Founding Fathers, the critical element in the system was the jury trial, which served not only as a truth-seeking mechanism and a means of achieving fairness, but also as a shield against tyranny. As Thomas Jefferson famously said, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. He may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict.

The drama inherent in these guarantees is regularly portrayed in movies and television programs as an open battle played out in public before a judge and jury. But this is all a mirage. In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone.

Judge Rakoff explains why it is really the prosecutor, rather than the judge, who sets the sentence:

[T]he information-deprived defense lawyer, typically within a few days after the arrest, meets with the overconfident prosecutor, who makes clear that, unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove. Indeed, until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved—unless, of course, the defendant was willing to enter into a plea bargain. If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge—but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources). Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.

In this typical situation, the prosecutor has all the advantages. He knows a lot about the case (and, as noted, probably feels more confident about it than he should, since he has only heard from one side), whereas the defense lawyer knows very little. Furthermore, the prosecutor controls the decision to charge the defendant with a crime. Indeed, the law of every US jurisdiction leaves this to the prosecutor’s unfettered discretion; and both the prosecutor and the defense lawyer know that the grand jury, which typically will hear from one side only, is highly likely to approve any charge the prosecutor recommends.

But what really puts the prosecutor in the driver’s seat is the fact that he—because of mandatory minimums, sentencing guidelines (which, though no longer mandatory in the federal system, are still widely followed by most judges), and simply his ability to shape whatever charges are brought—can effectively dictate the sentence by how he publicly describes the offense. For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.

Why should you care about any of this? You haven’t tried heroin since the 1970s, much less sold it.

You should care because you likely do not consider yourself a criminal and would be be offended if someone in authority charged you publicly with being one. As Judge Rakoff puts it:

A cynic might ask: What’s wrong with that? After all, crime rates have declined over the past twenty years to levels not seen since the early 1960s, and it is difficult to escape the conclusion that our criminal justice system, by giving prosecutors the power to force criminals to accept significant jail terms, has played a major part in this reduction. Most Americans feel a lot safer today than they did just a few decades ago, and that feeling has contributed substantially to their enjoyment of life. Why should we cavil at the empowering of prosecutors that has brought us this result?

* * * *

First, it is one-sided. Our criminal justice system is premised on the notion that, before we deprive a person of his liberty, he will have his “day in court,” i.e., he will be able to put the government to its proof and present his own facts and arguments, following which a jury of his peers will determine whether or not he is guilty of a crime and a neutral judge will, if he is found guilty, determine his sentence. As noted, numerous guarantees of this fair-minded approach are embodied in our Constitution, and were put there because of the Founding Fathers’ experience with the rigged British system of colonial justice. Is not the plea bargain system we have now substituted for our constitutional ideal similarly rigged?

Second, and closely related, the system of plea bargains dictated by prosecutors is the product of largely secret negotiations behind closed doors in the prosecutor’s office, and is subject to almost no review, either internally or by the courts. Such a secretive system inevitably invites arbitrary results. Indeed, there is a great irony in the fact that legislative measures that were designed to rectify the perceived evils of disparity and arbitrariness in sentencing have empowered prosecutors to preside over a plea-bargaining system that is so secretive and without rules that we do not even know whether or not it operates in an arbitrary manner.

Third, and possibly the gravest objection of all, the prosecutor-dictated plea bargain system, by creating such inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed. . . . . [T]his self-protective psychology operates in noncapital cases as well, and recent studies suggest that this is a widespread problem. For example, the National Registry of Exonerations (a joint project of Michigan Law School and Northwestern Law School) records that of 1,428 legally acknowledged exonerations that have occurred since 1989 involving the full range of felony charges, 151 (or, again, about 10 percent) involved false guilty pleas.

When a defendant enters a plea in federal court, the judge asks him or her questions about the defendant’s acknowledgment of guilt. This process is called a “colloquy” under Rule 11 of the Federal Rules of Criminal Procedure. The court must assure itself that “there is a factual basis for the plea” and that “the plea is voluntary and did not result from force, threats, or promises (other than promises in the plea agreement).”

“Now, you’re sure this is voluntary and everything?”

But in a system where, as Judge Rakoff puts it, “it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision,” what constitutes “force”? Who defines “threats”?

Usually, Rule 11 colloquies are perfunctory, although occasionally the pleading defendant balks entirely, and the plea goes out the window.

Rarely, though, you get some actual discussion, as with a former Bechtel executive, accused of taking millions of dollars in kickbacks from energy companies, who entered a guilty plea last week:

During the hearing, Judge Deborah K. Chasanow asked Mr. Elgawhary if he was entering the plea because of threats against him or his family. Mr. Elgawhary laughed. “Not at all,” he said.

“Tell me why that caused that reaction?” the judge asked.

“I just want to…ease the life of my family.” he responded

“So you are pleading guilty because you are acknowledging your responsibility and this is the best you think you are going to do for minimizing impact on other people you care about?”

But had anyone threatened him with harm, the judge asked, or was the pressure he felt just from the charges themselves?

“It’s the fact that the charges are there and I don’t want to pay something more,” he said. “Let us stop here and deal with it”

Pressing further, the judge asked: “The pressure you feel comes from the charges themselves, is that correct, and not because someone else is putting any pressure on you to plead guilty?”

“Most likely, you honor,” Mr. Elgawhary said.

A plea often comes with a Government price-tag known as “cooperation.” The Economist makes a similar point about prosecutors-on-steroids and “cooperating” witnesses in The kings of the courtroom: How prosecutors came to dominate the criminal-justice system:

Another change that empowers prosecutors is the proliferation of incomprehensible new laws. This gives prosecutors more room for interpretation and encourages them to overcharge defendants in order to bully them into plea deals, says Harvey Silverglate, a defence lawyer. Since the financial crisis, says Alex Kozinski, a judge, prosecutors have been more tempted to pore over statutes looking for ways to stretch them so that this or that activity can be construed as illegal. “That’s not how criminal law is supposed to work. It should be clear what is illegal,” he says.

The same threats and incentives that push the innocent to plead guilty also drive many suspects to testify against others. Deals with “co-operating witnesses”, once rare, have grown common. In federal cases an estimated 25-30% of defendants offer some form of co-operation, and around half of those receive some credit for it. The proportion is double that in drug cases. Most federal cases are resolved using the actual or anticipated testimony of co-operating defendants.

Co-operator testimony often sways juries because snitches are seen as having first-hand knowledge of the pattern of criminal activity. But snitches hoping to avoid draconian jail terms may sometimes be tempted to compose rather than merely to sing.

As Robert Mitchum said in The Friends Of Eddie Coyle (1973): “If I give you this, I can’t do no time.”

Here is an excerpt from our earlier take on all things Eddie Coyle, the worn-out cooperator (or snitch): George V. Higgins and the Archeology of White-Collar Crime:

In popular culture, business-crime is presented cartoon-fashion. In movies, on television or in novels, businesspeople who are corporate targets of government investigations come across as Snidely Whiplashes with French cuffs. This practice is predictable, its results boring. Not so with the work of the late Boston-based novelist and one-time Assistant United States Attorney George V. Higgins (1939 – 1999).

(Read the rest of the post here).

A grubby world, plea-bargaining.

If plea-bargaining and press-ganged cooperation are two legs of the devil’s stool for white-collar defendants, the third leg is the evaporation of the presumption of innocence, a point we made in a post about Independence Day:

[T]he “presumption of innocence” about which we all learned (or, at least, used to learn) in civics class has been translated into a presumption of guilt. Most citizens, most of the time, believe that when a person or company is charged with a criminal offense, they are guilty (or perhaps guilty of something pretty close to the charged offense). (We have discussed presumption problems here and here).

In real life, how do I tell a client to not put very many eggs in the presumption-of-innocence basket?

To a businessperson or a professional, I say something like this:

“Imagine that you’re at breakfast one morning and see a news item. The news item says that someone has been arrested and charged with running a meth lab. To the extent you think about it at all, what do you think? You think the guy’s most likely guilty and was in fact running a meth lab, or do you think that he’s most likely innocent and is being falsely charged?”

I pause, watch it sink in and go on:

“Now, consider the guy who runs the meth lab. He sees a news item at breakfast that a banker has been charged with fraud; or a doctor has been charged with taking kickbacks; or a defense contractor has been charged with false billing. To the extent he thinks about it all, does he think that the banker or the doctor or the defense contractor is most likely innocent or most likely guilty?”

I realize that “most likely” is, technically speaking, not the standard in a criminal case. A discussion about the presumption of innocence cannot meaningfully proceed, however, without an appreciation of what I’ve come to realize over the years: jurors did not really apply (and sometimes do not even understand) the “beyond a reasonable doubt” standard.

Rather, jurors apply what I call “preponderance plus.” By “preponderance plus,” I mean that they apply the “more likely than not” standard used in civil cases, and then they tighten it. In everyday conversation, we and they use “most likely” constantly, and the words mean something. When was the last time you used the phrase “beyond a reasonable doubt” outside of a legal discussion?

So what, if anything, is to be done?

I love Judge Rakoff’s proposal to involve judges in the plea-bargaining process, but that is unlikely to happen.

The Fall

Perhaps the tonic needed is the self-knowledge articulated by Clamence, the protagonist of Albert Camus’s The Fall (1956): “I was a lawyer before coming here. Now, I am a judge-penitent.”

The truth is that every intelligent man, as you know, dreams of being a gangster and of ruling over society by force alone. As it is not so easy as the detective novels might lead one to believe, one generally relies on politics and joins the cruelest party. What does it matter, after all, if by humiliating one’s mind one succeeds in dominating every one? I discovered in myself sweet dreams of oppression.

Title IX, University Discipline, Sexual Assault and Parallel Proceedings

Posted on November 25, 2014 by Jack Sharman

A short — 140 seconds — note on the thickets of Title IX, sexual assault, university discipline and parallel procedures:

University Discipline, Sexual Assault and Parallel Proceedings from LFW on Vimeo.

It’s the new campus thing.

Here’s a longer written piece: Dear Colleagues All: University Discipline, Sexual Assault and The Department of Education

And, should anyone doubt the human costs involved in the mishandling of such investigations, one only need to recall disgraced prosecutor Mike Nifong and the Duke lacrosse case, as highlighted by Ed Bradley and 60 Minutes:

Get Out of Jail Free? Not Without The Attorney-Client Privilege

Posted on November 14, 2014 by Jack Sharman

We have talked about attorney-client privilege, internal investigations and the GM ignition recall: Privilege, Corporate Silence and Saul Goodman, How To Avoid Being GM’ed: The Wrongs and Rights of Clients and Lawyers and It’s Okay To Smell A Rat: Internal Investigations, Attorney-Client Privilege and the KBR Decision.

There was even a quote in Forbes.com: Of Snitches and Privileges.

And if you can’t get enough, now a short (16 minute) presentation to the Network of Trial Law Firms meeting in October:

How To Avoid Being GM’d from LFW on Vimeo.

Of Snitches and Privileges

Posted on September 4, 2014 by Jack Sharman

500 Pearl Street and white-collar crime

White-collar writer Walt Pavlo of @Forbes and 500 Pearl Street quotes us this morning in his insightful @Forbes article about the attorney-client privilege. In particular:

Federal prosecutors want to know who knew what, and when [about the GM ignition-switch problem]. However, GM’s lawyers and former lawyers are bound, like all lawyers, to uphold the attorney-client privilege. A privilege clients enjoy with their lawyer to openly discuss matters with the assurance that their comments will not be disclosed to others. While the media, Congress and the general public may want an individual(s) held accountable, that information should not come from GM’s lawyers who have been intrusted with confidential information.

Every defense attorney knows more than any judge, jury or prosecutor will ever know about their client. That is a cornerstone of how our adversarial justice system works. We have a right to an attorney and we disclose everything to that attorney trusting that we will be treated fairly by justice. Can you imagine a trial where an attorney testifies against her own client? Neither can I. Corporate lawyers charged with compliance have a client also, the company.

“The purpose of the attorney-client privilege is to find out the truth, to openly discuss truth, to encourage the client to openly discuss the truth with his or or her lawyer,” according to white-collar defense attorney Jack Sharman of Lightfoot, Franklin, White LLC. “At the back end of our justice system, at trial,” he continued, “there’s no doubt that the privilege restricts the availability of some information, some of which is important, but the privilege encourages candor at the front end.”

Having covered a few white-collar trials I can tell you that legal motions by both prosecution and defense lawyers to suppress trial evidence are as common as moths around a porch light. In those cases, getting to the truth at trial is a bit tougher since the incentive is to win, not necessarily to discover the truth. So what good is truth at the front end?

“Your duty as a lawyer is to the client only, whether that is a company or an individual.” Sharman, who also has more of his own views on the GM fallout, said. “When a lawyer tells the client that the information they are disclosing is protected, then that provides an environment, an incentive, for the person to speak the truth.” While that “truth” may not be disclosed, it may be acted upon. “If an employee tells a company lawyer that they have seen something inappropriate or unlawful, that does not prevent the lawyer from speaking up within the organization,” Sharman said. Perhaps this did or did not happen in the GM case but the internal report by Anton Valukas found no intentional cover-up at the company and the release of that information disclosed more truth about the case than had been previously disclosed. So truth has its place and the privilege of confidentiality promotes speaking up rather than hindering it.

Read the full Forbes article here: The Role Of Lawyers In Compliance Should Not Include Snitching.

Privilege, Corporate Silence and Saul Goodman

Posted on September 2, 2014 by Jack Sharman

"This attorney-client privilege issue gives me a headache."

“This whole attorney-client privilege issue gives me a headache.”

We are past Labor Day, and just as well. Marked by the GM internal-investigation report’s criticism of some of the company’s internal lawyers, the summer was not kind to internal lawyers generally and to the attorney-client privilege particularly. Consider, for example, the FCPA Blog‘s note on how life is tough for internal counsel.

Even more notably, there is apparently a federal criminal investigation of GM that includes the conduct of the lawyers:

Prosecutors could try to charge current and former GM lawyers and others with mail and wire fraud, the same charges Toyota faced, said a former official who worked on the Toyota case. But, they would need to have clear proof that the employees knew the cars were faulty and then deliberately withheld that, the former official said.

The investigation could be hindered by attorney-client privilege, according to legal experts, but that privilege can be waived by GM or pierced by a “crime-fraud” exception that allows disclosure of information intended to commit or cover up a crime or fraud.

The notion of privilege has taken a beating in recent weeks, as shown in a New York Times “Dealbook” article (Keeping Corporate Lawyers Silent Can Shelter Wrongdoing) by Steven Davidoff Solomon, a professor of law at the University of California, Berkeley:

[U]nless a whistle-blower steps forward, the [attorney-client privilege] principle remains strong. Despite the widespread involvement of its legal staff, General Motors successfully invoked the privilege to help keep silent on the ignition scandal it eventually faced. Even the Justice Department changed its guidelines in 2008 to remove a provision that penalized companies for invoking the privilege.

The result is that companies have a great incentive to shift anything hinting at legal trouble to their in-house counsel to ensure that it is protected from disclosure. The in-house legal department thus becomes the “cover-up and damage control” arm of the company.

. . . .

Is it time to cut back privilege or even end it to prevent companies from hiding corporate crimes?

And, here’s further commentary from Lucian E. Dervan at the White Collar Crime Prof blog, focusing on the Delaware Supreme Court opinion in Wal-Mart Stores, Inc. v. Indiana Electrical Workers Pension Trust Fund IBEW,Del. Supr., No. 614, 2013 (July 23, 2014): Privilege, Corporate Wrongdoing, and the Wal-Mart FCPA Investigation.

It’s enough to make a law-abiding internal lawyer (and even the supporting-cast outside counsel) feel like Walter White’s lawyer, Saul Goodman, in Breaking Bad:

What’s to be done?

Here are my thoughts in 140 seconds:

We have written on GM and the privilege before: How To Avoid Being GM’ed: The Wrongs and Rights of Clients and Lawyers. In particular:

It is by no means inconceivable that bills will be introduced seeking to impose, in GM-like situations, a Sarbanes-Oxley style “reporting” requirement on internal lawyers (or outside counsel, or both), coupled with a “private attorney general” concept and whistleblower bounties. As in the SOX, internal-investigation world, if the matter is sufficiently serious, you may need two law firms: one firm that does an investigation and prepares a report that we all know will end up in the hands of the Government, and one firm that provides advice to the company (or the board, or a committee of the board) and over whose work we hope to maintain privilege. We have addressed internal investigations and related problems before.

Indeed, it is instructive to compare the anti-privilege sentiment in its most pitchfork version with the recent decision of the D.C. Circuit in the KBR matter, which was a resounding reaffirmation of privilege in the internal-investigation context. As we pointed out in It’s Okay To Smell A Rat: Internal Investigations, Attorney-Client Privilege and the KBR Decision:

It is noteworthy that the D.C. Circuit clarifies the rule such that it applies in all contexts: civil, criminal and administrative. The attorney-client privilege is, to some degree, in derogation of the search for the truth, at least in the first instance. Yet, lawyers learn things from clients that the lawyers then do not have to reveal because we believe that, on balance, “truth” is ultimately best served in an adversarial system by a tool that encourages clients to tell their lawyers the truth.

This is an often overlooked point. Frequently, clients do not tell lawyers the whole truth, at least the first time a discussion arises. This is particularly the case in criminal representations, but it is not uncommon in the civil arena. Sometimes, this reticence arises from a client’s knowledge of his, her or its wrongdoing, and a concomitant desire to hide or destroy evidence.

More often, however, that initial reticence arises from much more innocuous sources: embarrassment, shame, misunderstanding, fear of losing a job or worry about how superiors or colleagues might react. In those contexts, it is the privilege itself that is most solicitous of the truth, and allows the truth to eventually out.

In fact, if you do smell a rat, sometimes there is all the greater need to speak in confidence:

The attorney-client privilege has engendered debate ever since its first articulation, and that debate is healthy. We should not let the urgency of news items, however, obscure the broader good that the privilege can serve. There are many things that, in our adversarial system, the Government does not get to know about my clients. We could change the system to a more inquisitorial structure, but such a move goes against a host of cultural and constitutional mindsets that, however imperfectly, have preserved individual liberties, property rights and the rule of law for a long time. There are few professional prospects more pleasant for a prosecutor or a regulator than an opportunity to strip you of the ability to speak in confidence to your lawyer.

As well-stated by Saul Goodman:

Weekend: cocktails, World War I, Alexandr Solzhenitsyn and Marvin Gaye

Posted on August 29, 2014 by Jack Sharman

For this weekend: cocktails, World War I, Alexandr Solzhenitsyn and Marvin Gaye.

From Saveur, warm-weather whiskey cocktails. Some of the drinks sound good. All of the photos are cool:

Bordeaux Sour (via Saveur)

From the folks at Garden & Gun magazine, Ten New Southern Beers and a bourbon root beer float not far down the road from us:

Rob McDaniel met Will Abner for the first time in a field in southwestern Virginia. They were both at Lambstock, shepherd Craig Rogers’s bacchanalian annual gathering of farmers, chefs, bartenders, and other food-and-beverage types. “I was finding wood sorrel and wild shiso in the fields up there. Will just started making cocktails with it. I thought, ‘That’s pretty cool,’” says McDaniel, who runs the kitchen at SpringHouse in Alexander City, Alabama. “When I went back to the restaurant, I said to our front-of-house manager, ‘We’ve really got to talk to this guy.’ He was just slinging drinks then, you know, at some bar that closed at three a.m.”

From our friends at Gastronomista, an article on honey solera aged daiquiris, plus more cool photos:

The Honey Daiquiri (via Gastronomista)

From The Guardian in London, a piece on the science of mixing mind-blowing cocktails:

Likewise for Thomas Aske, one of the pair behind the Worship Street Whistling Shop in Shoreditch, east London, who regularly lectures on multi-sensory drinks, a cocktail always starts with a story. “It could be derived from anything but often it’s the brand of spirit you’re using,” he says. For instance, a barrel-aged cocktail based around Clynelish highland whisky was cooled with a frozen pebble from the coast of Scotland. “It could add a bit of minerality,” says Aske (unsure whether that effect would be physiological or purely psychological), “but it also can hold its temperature without offering the dilution that ice does, so you’ve still got the intensity of flavour.”

It was the frozen stone.

I prefer my cocktails without frozen stones, an impulse that may have inspired this rant about when the martini went off the rails:

Step into a trendy restaurant and look at the liquor menu. A whole section will be devoted to martinis of every hue and taste – strawberry, watermelon, jalapeno and (for all I know) bubblegum. These alleged martinis are the equivalent of the drinks you used to get in Jamaica or at Harry’s Glass Bar: crowned with paper umbrellas, stuffed with sliced of tropical fruit or celery or cucumber, they declared themselves sui generis, though no one could say of what genre they were “sui.” These are drinks for people who do not like the taste of drinks, martinis for martini haters.

Walker Percy is one of the great post-war 20th century American novelists. He also drank bourbon until his doctor forbade it. In an essay from Signposts In A Strange Land,Percy notes (in Bourbon):

Not only should connoisseurs of bourbon not read this article, neither should persons preoccupied with the perils of alcoholism, cirrhosis, esophageal hemorrhage, cancer of the palate, and so forth—all real enough dangers. I, too, deplore these afflictions. But, as between these evils and the aesthetic of bourbon drinking, that is, the use of bourbon to warm the heart, to reduce the anomie of the late twentieth century, to cure the cold phlegm of Wednesday afternoons, I choose the aesthetic. What, after all, is the use of not having cancer, cirrhosis, and such, if a man comes home from work every day at five-thirty to the exurbs of Montclair or Memphis and there is the grass growing and the little family looking not quite at him but just past the side of his head, and there’s Cronkite on the tube and the smell of pot roast in the living room, and inside the house and outside in the pretty exurb has settled the noxious particles and the sadness of the old dying Western world, and him thinking: “Jesus, is this it? Listening to Cronkite and the grass growing?”

A superb question, here in late middle-age.

British soldiers in a trench.

We are a little late to the commemorative party, but World War I started one hundred years ago this month.

First, from your schooldays, John McCrae’s “In Flanders Fields”:

In Flanders fields the poppies blow

Between the crosses, row on row,

That mark our place; and in the sky

The larks, still bravely singing, fly

Scarce heard amid the guns below.

We are the Dead. Short days ago

We lived, felt dawn, saw sunset glow,

Loved and were loved, and now we lie,

In Flanders fields.

Take up our quarrel with the foe:

To you from failing hands we throw

The torch; be yours to hold it high.

If ye break faith with us who die

We shall not sleep, though poppies grow

In Flanders fields.

John McCrae lived from 1872 to 1918. He died from pneumonia and is buried in France.

Isaac Rosenberg (1890-1918)

I was less familiar with Isaac Rosenberg‘s “August 1914″:

What in our lives is burnt

In the fire of this?

The heart’s dear granary?

The much we shall miss?

Three lives hath one life—

Iron, honey, gold.

The gold, the honey gone—

Left is the hard and cold.

Iron are our lives

Molten right through our youth.

A burnt space through ripe fields,

A fair mouth’s broken tooth.

Alexandr Solzhenitsyn and The Red Wheel

As a young man, I was much taken with Russian dissident Alexandr Solzhenitsyn, not least his novel August 1914. Here is the New York Times book review from 1972:

Barred by the government from doing research in archives and libraries, expelled from the Writers’ Union, deprived of all income from abroad, constantly harassed by the authorities, repeatedly vilified and slandered in the Soviet press and at party indoctrination meetings (which try to discredit him with his countrymen by spreading rumors that he is a nobleman, a Jew and a German agent), Solzhenitsyn continues writing under conditions that would drive most of us to madness or suicide. Very few living writers can match his artistic achievement; in human and moral stature he is in a class by himself on the literary landscape of our age.

That verdict remains unchanged. We would do better to heed him more often, here in the 21st century. His commencement address at Harvard on June 8, 1978, caused a sensation:

If (like me) you can’t understand Russian, here is a translation. In part:

Western society has given itself the organization best suited to its purposes based, I would say, one the letter of the law. The limits of human rights and righteousness are determined by a system of laws; such limits are very broad. People in the West have acquired considerable skill in interpreting and manipulating law. Any conflict is solved according to the letter of the law and this is considered to be the supreme solution. If one is right from a legal point of view, nothing more is required. Nobody will mention that one could still not be entirely right, and urge self-restraint, a willingness to renounce such legal rights, sacrifice and selfless risk. It would sound simply absurd. One almost never sees voluntary self-restraint. Everybody operates at the extreme limit of those legal frames.

I have spent all my life under a Communist regime and I will tell you that a society without any objective legal scale is a terrible one indeed. But a society with no other scale than the legal one is not quite worthy of man either. A society which is based on the letter of the law and never reaches any higher is taking very scarce advantage of the high level of human possibilities. The letter of the law is too cold and formal to have a beneficial influence on society. Whenever the tissue of life is woven of legalistic relations, there is an atmosphere of moral mediocrity, paralyzing man’s noblest impulses. And it will be simply impossible to stand through the trials of this threatening century with only the support of a legalistic structure.

In today’s Western society the inequality has been revealed [in] freedom for good deeds and freedom for evil deeds. A statesman who wants to achieve something important and highly constructive for his country has to move cautiously and even timidly. There are thousands of hasty and irresponsible critics around him; parliament and the press keep rebuffing him. As he moves ahead, he has to prove that each single step of his is well-founded and absolutely flawless. Actually, an outstanding and particularly gifted person who has unusual and unexpected initiatives in mind hardly gets a chance to assert himself. From the very beginning, dozens of traps will be set out for him. Thus, mediocrity triumphs with the excuse of restrictions imposed by democracy.

Finally, just because we can, here’s Marvin Gaye and “Ain’t That Peculiar”:

Lauren Bacall and The Big Sleep: Noir Film, White Collar, Cocktail

Posted on August 15, 2014 by Jack Sharman

Lauren Bacall

The recent outpouring of remembrances of and praise for the late comedian and actor Robin Williams is understandable and commendable, but the deluge seems to have somewhat submerged most thoughtful notice of the passing of Lauren Bacall this week. This is a shame.

To the extent that it reflected crime, Bacall’s work was noir, not white-collar; black, not white; guns, not accounting fraud. Yet, there was an elegance and a fierceness about her films – especially those with Humphrey Bogart – that are familiar to those who work in a white-collar crime landscape.

David Brooks, writing in the New York Times, reflects on The Bacall Standard. In particular:

[Raymond] Chandler was not particularly kind to women, though. It was up to the director Howard Hawks and his star, Lauren Bacall — who died this week — to give that era a counterpart female ideal, a hero both tough and tender, urbane and fast-talking, but also vulnerable and amusing.

Vivian Rutledge, the lead female character in the movie version of Chandler’s “The Big Sleep,” is stuck in a classic film noir world. Every situation is confusing, shadowed and ambiguous. Every person is dappled with virtue and vice. Society rewards the wrong things, so the ruthless often get rich while the innocent get it in the neck.

The lead character, played by Bacall, emerges from an ambiguous past, but rises aristocratically above it. She has her foibles; she’s manipulative and spoiled. But she’s strong. She seems physically towering, with broad shoulders and a rich, mature voice that is astounding, given that Bacall was all of 20 years old when she made the picture.

We’ve written about Chandler before: Browning (The Poet, Not The Automatic). Speaking of Chandler’s dialogue in The Big Sleep (both the book and the film), Brooks notes:

The heiress greets Marlowe with a put-down: “So you’re a private detective. I didn’t know they existed, except in books, or else they were greasy little men snooping around hotel corridors.”

But he’s self-sufficient enough to stand up to her. He wins her over with a series of small rejections. And he can match her verbal pyrotechnics. When she says she doesn’t like his manners, he comes straight back at her: “I’m not crazy about yours. … I don’t mind if you don’t like my manners. I don’t like them myself. They’re pretty bad. I grieve over them long winter evenings.”

Here is a detailed Becall piece from The Rap Sheet, an excellent crime-fiction blog. An excerpt:

A former theater usher and fashion model, Bacall first came to prominence in 1944, when, at age 19, she starred with 44-year-old Humphrey Bogart in To Have and Have Not, a film based loosely on Ernest Hemingway’s 1937 novel of the same name. Her famous double entendre-laced line, delivered to a smoking, reclining Bogie–“You know how to whistle, don’t you, Steve? You just put your lips together and … blow”–knocked out movie-going audiences everywhere, and had no less impact on Bogart himself. At the time he was already on his third marriage, to actress Mayo Methot, but he divorced her the next year to wed Bacall, or “Baby” as he called her. The pair were together only until his death in 1957, but if Bogie’s ghost is still anywhere around today, he’s whistling for her to join him today.

Ghosts. Noir fiction and films worked on many levels, not least the theological (as we discussed in Red Harvest: Crime Fiction and Gospel Conviction). And, at their best, they are art, as Chandler wrote in The Simple Art of Murder:

In everything that can be called art there is a quality of redemption. It may be pure tragedy, if it is high tragedy, and it may be pity and irony, and it may be the raucous laughter of the strong man. But down these mean streets a man must go who is not himself mean, who is neither tarnished nor afraid. The detective in this kind of story must be such a man. He is the hero, he is everything. He must be a complete man and a common man and yet an unusual man. He must be, to use a rather weathered phrase, a man of honor, by instinct, by inevitability, without thought of it, and certainly without saying it. He must be the best man in his world and a good enough man for any world. I do not care much about his private life; he is neither a eunuch nor a satyr; I think he might seduce a duchess and I am quite sure he would not spoil a virgin; if he is a man of honor in one thing, he is that in all things. He is a relatively poor man, or he would not be a detective at all. He is a common man or he could not go among common people. He has a sense of character, or he would not know his job. He will take no man’s money dishonestly and no man’s insolence without a due and dispassionate revenge. He is a lonely man and his pride is that you will treat him as a proud man or be very sorry you ever saw him. He talks as the man of his age talks, that is, with rude wit, a lively sense of the grotesque, a disgust for sham, and a contempt for pettiness. The story is his adventure in search of a hidden truth, and it would be no adventure if it did not happen to a man fit for adventure. He has a range of awareness that startles you, but it belongs to him by right, because it belongs to the world he lives in.

David Brooks gets the next-to-last word:

The feminine ideal in “The Big Sleep” is, of course, dated now. But what’s lasting is a way of being in a time of disillusion. At a cynical moment when many had come to distrust institutions, and when the world seemed incoherent, Bacall and Bogart created a non-self-righteous way to care about virtue. Their characters weren’t prissy or snobbish in the slightest. They were redeemed by their own honor code, which they kept up, cocktail after cocktail.