Thursday, December 31, 2015

I Cried When I Wrote This Song, Sue Me If I Play Too Long

Bear Emoji
As of tomorrow, the Bear will no longer be a lawyer, at least not one licensed to practice. He had his run, and got to do a lot of things most people don't, especially in the JAG Corps. Now he's being scrapped.

This article reminds me of the Steely Dan song, Deacon Blues. "I cried when I wrote this song, sue me if I play too long." The Bear doesn't expect anyone to read it, but he's in a self-indugent, if not melancholy, mood.

The Navy Adventure

The Bear got to land on the tiny helo deck of a small ship -- at least it looked tiny from the Bear's seat -- and "take the con" of an Aegis cruiser, USS Mobile Bay, in the Caribbean. (Although the Bear is pretty sure that was a fun little courtesy afforded to visiting officers. The Bear didn't try to take evasive action or go to to flank speed. But he considered it.)

USS Mobile Bay -- "Lieutenant Bear has the con."

USS Saratoga -- a floating good-sized town. Scrapped.

Bear's Ships Obsolete, Overage, Scrapped

The Bear was a visitor to more ships than he can remember, from a humble LST in Valencia to USS Saratoga in Trieste, an aircraft carrier that deserved its own zip code. Like USS Samuel Gompers the Bear recently wrote about -- blown up in an exercise -- the "Super Sara" is being scrapped. So is the USS Forestal, a carrier the Bear spotted near the Strait of Bonifacio between Corsica and Sardinia. We called her "USS Forest Fire" due to a 1967 fire that killed 134 sailors. (Military humor can be pretty dark.)

The Bear can't help but notice that the ships he visited are mostly being scrapped. It makes the Bear sad. And feel ready for the scrapyard himself.

Substantial pieces of his past, mighty warships, used up, declared obsolete and ignominiously scrapped. Once they were glorious, because of all the branches of service, the Navy retains the most traditions. The Bear can remember sitting in the officer's wardroom making polite conversation with the captain and other officers, with enlisted men in white jackets standing behind us, ready to serve. He can remember changes of command, a rare occasion to wear choker whites and white gloves.

Tears in the rain.
I've seen things you people wouldn't believe. Attack ships on fire off the shoulder of Orion. I watched C-beams glitter in the dark near the Tannhäuser Gate. All those moments will be lost in time, like

Actually, that's from Bladerunner. But you can't end a career without feeling a bit like replicant Roy Batty at the end of that movie. You're sitting on the rain slick ledge of the 32nd floor holding a pigeon and it's your expiration date. Driving off into an uncertain future with Sean Young sitting next to you just isn't going to happen for you.

What to do When a Bear Shows Up on Your Ship?

They never seemed to know what to do with a Lieutenant lawyer on a MOJAG to their ship. Usually, the Bear was treated very well, sometimes even like a VIP. Once they gave him the Commodore's suite. Above the Bear's rack was a display that showed pertinent data about the ship's course and speed. Now that was cool.

Mostly, though, the best they could do was squeeze him into a tiny space occupied by two junior officers, and the Bear would have to clamber up into the top rack, three up. The Bear recalls four up once, but that's just crazy. (Brown bears are not climbers.) Sometimes the Bear would be drunk, if we were in port.

The Bear had a hard time finding his way around on ships in any condition. At least he never showed up at the wrong ship. Maybe the wrong end of the right ship a few times.

Getting Kicked Off USS Wasp

The only ship that became the Bear's enemy is USS Wasp. Most of the Bear's time actually underway was on Wasp, which gave him a great deal of time to be annoying. (This was the same case in which the Bear annoyed Israel.)

A chance encounter with the Commodore ashore in Marseilles, when all parties had enjoyed their fill of French wine, gave the Bear an unexpected opportunity to explain what was illegal about Wasp's liberty policy. The contretemps caused the Bear to be sent home on a helicopter the very next day, without any of his gear.

USS Wasp, who kicked the Bear off
The Prosecutor Gets Cute and it Backfires

The Bear had the last laugh. The prosecutor decided to hold the Article 32 in Spain for a case originating in Israel. (An Article 32 is a preliminary hearing, like a grand jury.) Of course, all the Bear's witness requests were denied because there is a mileage limit. That was a strategic error on his part.

Eventually, after several months and seven countries, we arrived in Naples for trial. (Bear had to be the chaser for his own client! Guess how hard he would have chased him, even with a top speed of 30 MPH in those days?)

The Bear pointed out that the prosecution chose to have an Article 32 where he knew all the Bear's witness requests would be denied. The military judge found the Bear's argument persuasive and told the prosecutor that we could come to a deal or go back to Israel for another Article 32, i.e. start from scratch. That would have been unspeakably humiliating. And there was another problem: the Bear was banned from Israel for annoying an entire country. With that kind of leverage we were able to obtain a ridiculously good deal for a Marine who had committed a pretty heinous crime while drunk in Haifa.

Wow. The Bear is making a connection for the first time between all the stupid things everybody in the Navy does on liberty, and alcohol. Think he'll fire off an email to the CNO and warn him.

Fast Draw, and the Girl With the Dragon Tattoo

Sometimes the Bear would either prosecute or defend "fast draw" cases. They're exactly what they sound like. Bored Marines on guard duty would see who could outdraw the other. It's all fun and games until somebody gets shot. Marines made the best clients. Very respectful and compliant to counsel's advice.

The Bear lost a case at trial where a girl clearly invited his client to touch her dragon tattoo on or near her chestal area while in a bar. The Bear immediately went to the convening authority. (All military courts are specially convened; there are no standing courts like we're used to). The Bear explained the situation, to the officer, who concluded that, heck, anybody would have touched the dragon under those circumstances. (He may have been a pilot. That would explain it.) He agreed not to sign off on the verdict. Thus, the trial meant nothing and we turned a loss into a win! Try that in the civilian world!

If the Bear had to be tried for a crime, he would choose a military court over a civilian court. Military courts give defendants more rights, and there are more "pressure points" for clever defense counsel to exploit.

Civilian Practice

The Bear has saved the innocent, prosecuted the guilty, and mainly held defendants' hands as the 6th Amendment lubricant to a Constitutionally safe slide into prison. However, defense lawyers hardly ever lose. We employ a sliding scale based on the worst outcome versus what actually happens. So a 20 year sentence for murder is a huge accomplishment, compared to 40, or 60 or even LWOP. (The Bear's limit was 30 on non-death-qualified cases, and everyone knew it.)

The Bear never shared his methods of scorekeeping with his clients. They might have seen things differently if the Bear explained to them how we had actually won, although they were going to prison for 30 years.

Prosecuting a Death Penalty Case

The Bear prosecuted one death penalty case, and secured the death penalty. His Chicago trial partner cut the Bear's tie, and it was displayed with the order in a frame. That's the way they do things in Chicago, apparently. The Bear does not know where the trophy is now, but he did proudly display it on his wall when he was a prosecutor. Niels Nielsen's Murderpedia entry.

Bear's thinking he needs a swastika.
Niels Nielsen was about the worst and most incompetent human being the Bear has ever seen. Neilsen shot his ex-wife and her 13-year-old daughter to death, put their bodies in the trunk of his car, and tried to sink the whole thing in a pond. Unfortunately, the dimwit left the back of his car sticking up out of the pond. It was too shallow. Then he attempted to burn their bodies, put them large gym bag, and dumped them in the pond. Without going into details, that didn't work, either, and the remains were recovered. We had one tooth to identify the mother, but it was sufficient.

Nielsen was disruptive after the death sentence was returned by the jury. The legendary transcript of his obscenity-laced colloquy with the judge circulates among lawyers in the Bear's neck of the woods to this day. Finally (after he spit into the Bear's furry, round ear) the judge had him removed. Nielsen was to meet his end by lethal injection, but his sentence was commuted to LWOP during the Illinois death penalty moratorium. (Secretly, the Bear would not have been sorry to see him go.)

On the Defense

The Bear never lost a death penalty case, i.e. none of his clients were sentenced to death. His prosecution of Nielsen made him the local death penalty expert, and it kind of became his thing. If "kind of" means by heavy self-promotion.

You never really win a death penalty case by a plea bargain. The Bear's death penalty defendants will all still come out of prison in a box someday. It took a lot of persuasion to get a defendant to plead to LWOP rather than face a death-qualified jury. Most of them have the Patrick Henry syndrome: "Give me liberty or give me death." It was nearly always easier to get the prosecutor to come off of death than to sell the defendant on life without possibility of parole.

Playing the mama card never failed though. (At least your poor old mama will know you're alive. You don't want to leave her with a cold stone marker instead of a son to visit, do you?)

It's a cynical business.

The Bear Wins a Big Case

The Bear did win one death penalty case outright in front of a jury. The defendant was innocent, or at least the Bear thought so. More importantly, so did the jury. The Bear made such a lengthy closing argument, he was permitted to remove his suit coat and proceed in suspenders like something from Inherit the Wind. It was also the only closing argument the Bear knows of that had a lunch break. That success ruined the Bear. Forever after his closings were too long. (Kind of like his blog entries.)

A Mind-Numbing Parade of Federal Meth Cases

Once out of the Navy, jury trials were all too rare. Nearly all cases ended in a plea bargain. The stick the state has, not to mention the feds, is just too big to risk. And there's the awkward fact that your clients are all guilty (with a few exceptions).

Occasionally, an addled meth defendant would insist on a federal jury trial, otherwise known as a "slow motion guilty plea." The federal prosecutor would parade as many well-coached mopes as required to place the necessary amount of dope on the defendant. It was a doomed and frustrating exercise, especially since the defendant forfeited all of the sentencing benefits he would have otherwise have had.

The Bear has done many federal meth cases, but the funny thing is, he has never seen so much as a quarter ounce of the stuff. It's called "rolling up." Start with one suspect, and roll up the rest. I like to think of these "conspiracies" as "meth cooperatives." That hasn't caught on yet, but is accurate, and sounds so much nicer.

Everybody talks. It's impossible to win a meth case.

The Bear did a six-week Medicaid fraud trial for a dentist. At the end, the jury returned alternating guilty and not guilty verdicts on 26 counts. Obviously a compromise verdict, but my client still went to prison. The Bear has seldom felt so robbed.

The Bear will not miss federal court. But he'll miss dressing up, and standing on his hind legs to interpose a futile objection.

The Last Word... Is a Picture

The Bear had a ridiculous state job supposedly providing death penalty trial assistance for a couple of years until the state abolished the death penalty. Imagine the Bear in a cage for two and a half years. He was allowed to do almost nothing, for one bureaucratic reason or another, but then had to meticulously report his activities, accounting for a full eight hours, every day. Sadly, you will imagine the mendacity this encouraged.

Still, the salmon was reasonably plentiful.

In private practice, the Bear somehow developed a reputation for the most disreputable types of offenses. He won't miss those, either. A criminal lawyer has to see everything. The Bear would not begin to describe the images that have lit up his retinas.

If the Bear had to summarize it all, it's a game played with human beings. No one played harder than the Bear.

The biggest burden lifted, however, is not having to walk into an office every day with files containing pictures of people like nobody should ever see them.

Not the way the Bear
remembers her.


  1. I have tremendous empathy for you, Bear. Life goes on and often upon reflection there is humour that can be extracted even from the darkest moments.

    There's a book in it somewhere for you Bear. Your style, wit, and insight are remarkable.

    Before I jumped out of the plane for good (or so I thought) I had presided over child abuse and elder abuse hearings for nigh on twenty years.

    During a recess in one extraordinarily contentious hearing the subject child knocked on my door and presented me with a paper bird, a sort of primitive origami, the child had fashioned while quietly sitting in the witness room as the white hot heat of his parents raged throughout my hearing.

    I still have that little origami bird thirty years later.

    This too shall pass, Bear. God bless you and yours and have a Joyous New Year...and don't forget the book.

  2. I think that WAS a book.

    And what a wonderful story.

    And I don't even have to think of a way to turn it to my side's advantage.

    1. A word of advice, Bear. Don't leave any rough chapters or ideas for your book hanging out there in cyber-space lest someone pinch it, work it, publish it, sell it to Hollywood and there's Tom Cruise playing the Bear in A Few Good Men II without attribution to the Bear. (You've seen how that sort of stuff works.)

  3. Of making many books there is no end, and much study is a weariness of the flesh. (Ecclesiastes 12:12 RSV) Already got one book and can't bring myself to get the manuscript published.

    Maybe my legal exploits could make a good children's book, complete with winsome illustrations.

  4. Thank you for sharing your legal adventures. Time for a fresh start in 2016, Bear! Happy New Year and all of God's blessing to you and your family.

  5. Suffering through interacting with the darker side of life can make an attorney appreciate his blessings. At least it does for me...

    The areas of law I practice have less violence, but break my heart at times regardless. I see it as an opportunity to pray for people who often seem to have no one to pray for them. I see the dark side of family life.

    Thank you for sharing your excursions in the law!

  6. You forgot to add your blogging adventures under an "Into the Future" section! :-)

  7. Retired paramedic here. I understand about the images that are stored in your brain. I'm an instructor now and I warn my young charges to make room for those images.

  8. The one thing I will not miss from the retirement of the Bear is finding myself in danger in the No Man's Land between the Bear and the closest television camera. -- FB comment from colleague.

  9. Another comment from FB -- "Your phrase, which yours truly has used many times, 'I'm not here to pump sunshine up your ***' is enough of a worthy legacy."


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