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US  Civil Rights Commission Observes its 60th year Anniversary

In September 1957, Congress passed the first civil rights bill since Reconstruction and it was signed into law by President Eisenhower.  Although it fell short of effecting sweeping change, it laid the groundwork for the landmark legislation to come in the 1960s.  One provision of the legislation included the establishment of a new independent agency in the United States government, based on recommendations made by an advisory panel to President Eisenhower, to be called the United States Commission on Civil Rights.  

The new agency, meant to be a bipartisan investigative and policy body, was given a broad charge to investigate allegations of civil rights violations anywhere in the United States.  Almost immediately, the Commission were asked to investigate voting rights allegations in the South and ran headlong into the die-hard segregationists that dominated state and local politics -- all of whom refused to cooperate with the Commission.  Armed with the congressionally-granted power of subpoena -- a power that few independent agencies wield -- the Commission was able to compel local officials to open up their voter registration lists and gain access to poll officials, workers, and disenfranchised voters.  The Commission also investigated allegations that  school districts were ignoring Brown v. Board  school desegregation, and the difficulties faced by minorities in finding affordable and safe housing in the nation’s cities.

The Commission’s first report, released in 1959, spanned over 500 pages, and the findings and recommendations were so important that the Commission -- which in the 1957 Act was given a life of only two years -- was given a mandate to continue its mission.  Its investigation later that year on the rampant denial of voting rights for blacks in Louisiana resulted in the state (which demanded to know who was complaining to the Commission so the local magistrate could charge them with perjury) taking the Commission to the Supreme Court -- and losing. Ultimately, the Commission’s reports on voting rights, public accommodations, employment, and education became the foundation of the landmark 1964 Civil Rights Act, and it gained the moniker “the nation’s watchdog” on the issue of civil rights.

The early years of the Commission were led by giants like George M. Johnson, one of the first African Americans to head a federal agency and a contributor to the NAACP Brown v. Board legal team; Father Theodore Hesburgh, the long-time President of Notre Dame, and a recipient of the Presidential Medal of Freedom and Congressional Gold Medal for his progressive civic works; and Spottswood Robinson, who after his service on the Commission became the first African-American appointed to the U.S. Court of Appeals for the D.C. Circuit.  Mary Frances Berry led the resistance on the Commission to the Reagan years and ended up serving over two decades (at the end of my tenure, I will have served a mere 17 years), including 11 as Chair.  And, of course, the Commission itself would not have existed without the courage, strength, and leadership of people like Rosa Parks, Martin Luther King, Jr., John Lewis, and so many others who stood up to racism, regardless the cost.

Over the decades, the Commission has led the way in pushing for equal treatment for women, for the disabled, for immigrant communities.  Ironically the one area that the Commission did not lead -- due in no small part to a statutory change by Congress during the Reagan years that, for the first time, put restrictions on our mandate  -- was the struggle for civil rights by the LGTB community.  It is with some bittersweet pride that the first report by the Commission on our investigation into discrimination in employment against the LGTB community will be released shortly.

But as time has passed and our nation has changed, so has the Commission.  Once a body that had a staff of over 200, we now employ barely a quarter of that number today.  Hostile Congresses and indifferent Administrations have slashed funding and personnel for the Commission.  We no longer have the funds to travel to places in this country that need the spotlight of the Commission.  What began as a bipartisan ideal has devolved, at times, into a bitter partisan and politicized divide.  I know. I was in the middle of one of the most contentious times at the Commission when the conservative super-majority in power at the time futilely tried to paint President Obama’s Justice Department as a tool of voter intimidation.   

Nevertheless, the Commission continues its work. We have issued reports on the police response and tactics in situations like Ferguson, and gone behind the unrest in Ferguson and other communities to shed light on the practice of using traffic fines to fund local governments and its disproportionate impact on minority populations.  We investigated the brutal conditions of immigrants held in detention centers, and issued a widely-cited report on how the EPA has abdicated its responsibilities to prevent corporations from dumping their toxic waste in minority communities.

Now, in the time of Trump, the Commission’s work may be more important than ever.  As one of the few agencies left in the United States held by liberals, we are one of the few governmental voices that can disagree with the policies of the Administration.  We have already authorized investigations into the civil rights enforcement policies of the Trump Administration and the enforcement of voting rights since the conservative-controlled Supreme Court gutted one of the most important provisions of the Voting Rights Act -- an investigation in stark contrast to the Trump-initiated commission that is hell-bent on legitimizing voter suppression and validating Trump’s unfounded (and impossible) claim that he somehow should have won the popular vote.  

It has been my privilege to have been on the Commission for over 12 years, nearly a fifth of the lifespan of the Commission.  In that time I’ve initiated investigations on anti-Muslim bias, environmental justice, and most recently, the voting rights investigation.  For my first six years I was often the Commission’s lone voice in favor of affirmative action and the extension of the Voting Rights Act -- and fought against the continuing attempts to create false narratives to undermine the civil rights laws and policies in place for the past half-century.  Now I am on a Commission whose orientation hews to its traditional mission, and we’re getting great work done, and it is wonderful to work with colleagues where I don’t have to shoulder the heavy load.  It’s freeing, and I’ve never enjoyed it more.

So happy 60th anniversary to the United States Commission on Civil Rights.  While it is impossible to ignore the poignancy in its existence six decades after its founding, in practice and in policy its continued mission is a positive and constant reminder of our collective purpose to live up to our founders’ creed to establish a more perfect union.

In preparing to write this, I began reading through the older Commission reports, which are archived in the University of Maryland’s Thurgood Marshall Law Library.  They are accessible here.  It is fascinating history of our nation, and in some ways, a poignant reminder of how far we have yet to go.

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They don’t make’em like that anymore:  The late, great, Hadley Roff

Dateline February 16, 2016:  Today, the press of life took me away from something that I dearly wanted to attend -- the memorial service for a dear friend and a greater human being, the late, great, incomparable Hadley Roff.  I had the privilege of working with him as a colleague in two separate capacities -- first, when we both served two of the most powerful women in the country, and second, when we co-taught a class on urban politics at San Francisco State University under the supervised guidance of Brian Murphy.

I remember first hearing of this legendary “Hadley” when I started working for Nancy Pelosi.   He was already in emeritus status by then, having been the fixer/advisor/chief of staff to the former Mayor.  To a then-brash and young political newcomer, Hadley seemed so old school.  Even his appearance was old school (and remained ever so) from the first day I saw him.  He seemed from a generation gone by, of smoke-filled rooms, rumpled suits, a living embodiment of Tammany.

Then I got to know him and, if anything, those perceptions were reinforced, but only in the positive attributes of a time long since past -- fierce loyalty, self-sacrifice, unselfish and generous, and totally devoted to an inner cause of justice that was devoid of personal ambition.  

It’s late here on the east coast, and I have meetings in the morning -- again,life intervening --  but I wanted to at least say a few words in remembrance of this man whose heart was bigger than his belly, whose laugh sounded like afternoon thunder on a late summer day, whose kindness enveloped all those within his gravitational pull.  

Yes, he was an amazing political operative.  A writer of gift and wit.  A strategist as cool and cunning as Atilla.  But he was, first and foremost, a man of great character and countenance.  I was honored to work with him, but even more honored to be his friend.  

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How I’d like to see “Mad Men” end.  Well, actually not.  End, that is.

It’s just under 24 hours until the final, final episode of “Mad Men.”  Like millions of others, once I saw “Smoke Gets in Your Eyes” I was truly and deeply hooked, like all those cigarette wielding masters of the universe were to their Lucky Stripes or their Old Gold.  And like millions of fans, I have engaged in endless speculation with my wife, friends, and strangers in train stations on what Matthew Weiner’s magnum opus will bring.

I’m not going to psychoanalyze 8 years and 7 seasons of the characters.  There are plenty of opportunities floating in cyberspace, some good, some bad, some truly outstanding and some so far out in left field it makes the “Megan is Sharon Tate” theory seem almost sane.  

Instead, I’m going to indulge in my own fantasy of how Matthew Weiner could (not should) bring the series to a conclusion, based on various clues (or false leads) thrown by Matthew and his writers over the years including an ode to the pilot episode.

Don has spent the last few episodes on the road.  Since he left, pursuing the freedom represented by the airplane wheeling out the window of the McCann boardroom, the world has changed.  Joan has quit – or been thrown out – not simply hitting the glass window, but having it literally sent crashing into her by the rampant sexism and venality of her new employers.  In the face of unlimited power, Roger has given up.  Pete has returned to Trudy (one of the truly good persons on a show where moral ambiguity is the norm).  And Betty, one of the most underrated (and overly despised) characters on the show, has terminal cancer.  And Peggy – well, she figures in my ending.

And this is how I want it to end.

Don returns to New York, after learning from Sally that Betty does not have long to live. Realizing that the hobo code is inconsistent with parenting three motherless children, and that his newfound carefree lifestyle will not work with the financial realities of fatherhood, Don returns to McCann Erickson, though not without having to beg Jim Hobart for one last chance to show why he shouldn’t remain “retired.”  Hobart relents, but only on the condition that he see that “Don Draper magic” he paid dearly for in a pitch meeting with Coca Cola.

In a scene reminiscent of the magic of “Smoke Gets in Your Eyes,” Don is sitting there, listening to futile and puerile pitch and pitch (much like Pete Campbell’s desperate “smoke – it kills ya, but it’s fun living the danger” presentation to Lee Garners Sr. and Jr.).    Finally, after all have fallen flat, Jim looks to Don, who until then has become increasingly nervous as each creative goes down in flames.  Don looks at Jim, and then at Roger, who nods.

And then, it happens. Don, hesitantly, and then with increasing confidence starts to weave a story about his journeys in middle America, about a young waitress who tried to find meaning in meaningless encounters with men, of an actress trying to find work in Los Angeles, of veterans of wars bound together only by the certainty that they made it back and are still alive.

“We live in a world where a generation fought to end evil on earth, and now has soared to the moon, a planet so unlike our own it doesn’t seem real.  We are fighting an unpopular war half a world away in a jungle that doesn’t seem real to people living in the comfort of their urban apartments on Madison Avenue.  LSD and psychedelic music are supposed to take you to a completely different reality.   There are draft riots, student protests. The world is moving so fast, the world is falling apart, life is changing, our culture, our way of life seems to be racing by at a thousand miles an hour, and we feel as untethered as an astronaut free floating in space.  

“It’s as if nothing is as it should be.  But there is. The simplicity, the honesty of a bottle of Coca-Cola.  In a world of disharmony, Coke is the simple, perfect melody.  It’s there for the hot and thirsty soldier in Vietnam, for the tired hippie at Woodstock, for the vet in the VFW hall in Wichita, for the nervous actress waiting for her next audition, for the young ad exec in New Yrk who only wants to create the catch phrase (glance at Peggy) to make her famous. Cold. Refreshing.  Real.  Always there, even in a broken down machine on a dusty road in the middle of nowhere.  In a world that seems out of control, in a world that doesn’t seem real anymore, it’s there.  

(Camera closes in on the back of Don’s head)  “Coke. It’s the real thing.”  (Fade to black)

However it unfolds, Matthew Weiner, a deep “thank you” for 7 seasons of magnificent storytelling.  And curse you Matthew Weiner, for bringing to an end one of the great stories of the 21st century.

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State of the Union 2015: Obama 2008, redux

While maintaining my veneer of impartiality for KRON4 news last night, I could not help but be inspired and moved by the performance of President Obama in his State of the Union address.  I admit, sitting at the anchor desk, I whispered a few "Yes we can" chants during parts of his speech.

This was the Obama I campaigned for in 2008.  This was the State of the Union he wanted to give before Bear Stearns, Lehman Brothers, and AIG, and the entire Wall Street banking system brought down the American economy and sent us plunging into a financial abyss.   A State of the Union that highlighted the role of the middle class, of working families, of organized labor, the struggles that continue on the issue of abortion and choice, and the progress of the LGTB community.   A State of the Union that sought to close the already obscene wealth gap that existed in America, a gap that would have been a priority of an Obama and Democratic-led Congress in 2009, but which was derailed as the President took control of a runaway train headed towards the proverbial cliff.

It was heartening to hear the President talk about values, about our moral center, about civil rights, because these were all the reasons why so many of us sweat blood and tears 7 years ago.  For me, the 2015 State of the Union validated the work that we did on the National Platform in 2008; indeed, there were direct phrases taken from that document being presented at the podium last night, including (I say modestly) some that came from my hand.

Whatever the history books say about President Obama, this fact is irrefutable: he was President at a time when our nation was in its deepest economic crisis since the Great Depression.   During that time as President, he presided over policies that halted the progress of that crisis, made it recede, and slowly, but surely, brought the economy back to life.  There are many critics out who refuse to give him any credit for what has happened, but that is both short-sighted and ignorant.  The fact is, as President, through policies he advanced -- whether it was the bail-out of Detroit, the American Recovery Act, tougher deficit policies than all his predecessors -- that brought him to a well-deserved victory lap last night.

For many of us, though, it was bittersweet.  We are proud of what he has done.   But because of circumstance, we will never know what he could have truly accomplished.  Last night, he laid out his vision for what American could be, and should have been, 8 years ago.  Were it not for the economic collapse, I wonder where we would be today, and how much farther our country, our society, would be in fulfilling the goals he laid out last night.  But it is a different country, a different time, and a decidedly different Congress, and they will remain dreams unfulfilled for the next two years..  It will be up to the next Democratic nominee to attempt to fulfill the promises of 2008.

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Whales Weep Not for the New Year

We mark the solar revolution with fireworks, loud music, and simultaneous vows of restraint and overindulgence. 

To one of the largest mammals on the planet, the gray whale, it's just another day of its annual migration from the feeding grounds of the Arctic to the shallow seas of Cortez.   Once, not too long ago, the migrants and their kin numbered in the millions, unchallenged rulers of the high seas. Once, while Drake roamed the Channel in search of the Armada, the coastal waters of northern California were marked by the spouts so numerous that to the native Americans wandering the shore it must have seemed to be continuous puffs of smoke from campfires on the sea.  The seas echoed with their roars, their spouts, the clicks of their sonar so dense that it must have rivaled the summer cicadas.

But no more.  What nature took millions of years to build, man destroyed in a hundred years. Can you imagine a blue whale population that once numbered a quarter million, now reduced to perhaps a tenth, maybe a hundredth, cut down by harpoons and greed and wanton need for slaughter?  The right whale -- so named because it floated after death, and was therefore the "right" kind of whale to hunt -- can be enumerated today, maybe in the few hundreds. 

Today, despite the best efforts of many in the international community, particularly Sea Shepherd, these sea-bound creatures are still targeted for death in waters far and wide, under the ostensible agency of "research," most infamously by the outlaw whaling fleets of Japan, Iceland and Norway.  Despite the deserved opprobrium heaped on Japan, less attention is paid to Iceland and Norway,which continue to illegally prey upon one of the most endangered species, the fin whale. Even in American waters, the once decimated bowhead whale is hunted for subsistence purposes by Native Alaskans. 

Just a few years ago, one bowhead fell victim to a shower of native harpoons -- and, without irony, was announced to be well over 100 years old, dating made possible by the discovery of an old embedded harpoon head of ancient vintage buried deep within its blubber. (I especially loved one witless headline that read "100 year old harpoon found in living whale" )  It was a whale who had for over a century managed to evade the Eskimos, the New Englanders, the industrialized fleets of both East and West, sired countless spawn to see them many, if not most, die at the hands of these same invaders, only to succumb -- perhaps in old age, perhaps, for his species, only middle age -- to a hunt that resulted in his drowning in his own blood, his body pierced by steel after steel bolt, a slow, agonizing, ugly end to this magnificent cetacean, this time machine.

I thought of this as I scanned the horizon this New Year's Day for the solitary puffs of vapor, sometimes two or three abreast, but scattered, isolated, and few.   Here, on the scarcely populated north coast of California, free of the deafening blast of freight and cruises ship screws, far from the effluent of industry and city populations, gray whales venture close to shore.  

If you're lucky, you can see them sound, their tail slowly rising, then sinking, as they begin their next plunge into the deep.  If you're really lucky, they will cruise to within a few hundred feet of shore, their wet, gleaming backs visible as they rise to the surface.  Yesterday, I spotted a strange object in the ocean from a distance and realized it was a spyhop, a whale literally standing on its tail to take in the view, looking, perhaps for stray family members, signs of an orca pack, or maybe just sightseeing.  In the not-too-distant past, the spyhop would have been used to pinpoint the whaling ships, to redirect the vast pods away from danger.  Now, I suppose, they are also looking to make sure some ignorant and inebriated weekend captain doesn't run them over.

If genes can contain memory, I wonder what is passed on in the collective thoughts of whales.  Do they, in those magnificent, complex brains, retain imagery of the seas as they used to be before man desecrated, devoured, and despoiled the deep?  Are there faint echoes of their millions of brethren, under the roiling Arctic seas, as packs of blue and beluga, fin and humpback pursued incomprehensibly vast shoals of krill,  with a wary eye and ear turned for the ever present orca?  And is there now a resonant sadness, a sense of loss and emptiness at the vast silences and distant echoes that now greet their songs thrummed throughout the deep?    

As I began, many celebrate the New Year with thunderous explosions, noisemakers, and revelry, warmed by the presence of thousands around us.  For the whales, it is passed peacefully in the cold blue water, with their few remaining of their kind.  But if we do not work to arrest climate change, if we do not prevent the destruction of the ecology of the ocean that provides sustenance for the great whales, how long before the sight of spouts and the thunderclap of breaches disappear completely?

All we will have left, then, is memory and imagination. D.H. Lawrence wrote in Whales Weep Not of whales "dreaming with strange whale eyes wide open in the waters of the beginning and the end." Who knows what ancient underwater ballets -- pirouetting while breaking the surface, their massive bodies tracing a glorious pas de deux through watery clouds of phosphoresence -- might these levianthans, blessed with intelligence and self-awareness, have danced under the deep Arctic skies in the millenia before the Age of Man?

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Eric Holder Should File Federal Criminal Civil Rights Charges: McCulloch Unwittingly Provides the Facts

There is one chance -- one -- of finding justice for the killing of Michael Brown.  One chance to give his family, and the African-American community in Ferguson, their day in court.

And it rests on the shoulders of Attorney General Eric Holder.

Let's be honest.  Bob McCulloch, the elected Prosecuting Attorney in St. Louis County, had no intention of using his office to indict Darren Wilson for the killing of an unarmed Michael Brown.  His rambling, blame-the-media and all-the-witnesses-were-liars press conference communicated his contempt for the entire process.  

But the real indication comes from the very grand jury transcripts that McCulloch is using as his shield against accusations that the process was a predestined to a foregone conclusion.  Because, as you delve into the details, it becomes very evident that the process was completely driven so that the grand jury could not fulfill its obligations.

A grand jury is an important part of the criminal charging process.  They are there to act as a sword and a shield in finding probable cause to bring a suspect to trial.  This is an important point -- they are there to find probable cause, not to act as a jury.  

That is the function of a trial jury, and the function of the trial is for both sides, prosecution and defense, to put on their best cases and allow twelve people to make a decision.  Each side chooses their best witnesses, tries to discredit the other side, and otherwise allows the jury to choose what facts are important and which witness is most credible.

What McCulloch did was put the grand jury in the position of a trial jury to find evidence of guilt, not probable cause.  It began with having Darren Wilson testify to the grand jury,  On its face, it would seem fair, to give a defendant a chance to defend themselves against an indictment.  But a defendant, by their very nature, will provide self-serving and exculpatory testimony.  That's a defense.  A defense for trial.  It is not critical in determining probable cause.

But McCulloch's team bent over backwards to ensure that the process would never come close to determining probable cause.  Darren Wilson's testimony was presented unvarnished.  There was no cross-examination.  They did not question the inconsistencies between his statements and the physical evidence.  For me -- and I have tweeted about this ad nauseum -- is that his description of the shot that finally stopped (and killed) Michael Brown was taken from a bad  B action movie, where the killer, finally dealt the fatal shot, goes blank, and then topples forward.

Which completely contradicts the physical evidence that shows that Michael Brown was killed by a shot that entered the top of his skull and penetrated down through his head an into this shoulder area -- a trajectory that could only have happened if Brown's torso and head were tilted almost 90 degrees to Wilson.    How could Wilson have seen Michael Brown's "blank" expression with his head tilted down and where the fatal shot would have resulted in his falling (if he was not already falling from the other wounds) forward to the street?

There are others who are parsing the grand jury transcripts, and I urge you to review those.  But this is all a long way of stating that the process in Ferguson was so inept, that it was a complete abdication of the traditional prosecutorial process, that it was such an abject abuse of the grand jury system as to render it meaningless.  There was no indictment of Michael Brown by design.  It is just another in a long line of Bob McCulloch's legacy of letting police kills black civilians with impunity.

That brings us to the Attorney General.  A former federal prosecutor. lamenting the difficulties of bringing police shootings to trial, wrote in the Washington Post that an alternative remedy of a federal civil rights lawsuit to fundamentally reform the St. Louise County and cities' police forces can be just as effective at eliminating or reducing the root causes of police action that results in a Michael Brown tragedy.

And, in fact, the Civil Rights division of the Justice Department is doing exactly that, investigating the racial disparities in arrests, detentions, and even the composition of the police forces themselves.  And we hope that they proceed with a case that forces structural changes in law enforcement.

But that doesn't bring justice to Michael Brown and his family.

Unlike the Trayvon Martin case, this did not end in a struggle on a sidewalk between two individuals, one of whom used a gun.

This was an arguable struggle (there is plenty of skepticism over the alleged beating that Wilson testified he took from Michael Brown), then separation, a chase, and then fatal shooting from a distance of 35-50 feet of an unarmed youth.

Broken down into its component parts, there is considerable contradictory evidence between the testimony of Dorian Johnson and Darren Wilson about the confrontation at the police car.  Based on Dorian Johnson's testimony, Wilson's bruises could have been sustained a number of different way, not just from "deadly" punches from Michael Brown, but from the push/pull through an open car window between Brown and Wilson.  Wilson could have easily sustained bruising and abrasions from banging his own head against the car window, steering wheel, or any other object as he was trying to pull Brown towards the police SUV.  

And, by way, despite McCulloch's attempt to portray all the eye-witnesses as pants-on-fire-liars, Dorian Johnson never substantially deviates from his testimony and the statements he gave to the media in the immediate aftermath of the shooting.

Johnson's statement shows a much more aggressive Wilson -- a Wilson consistent with his own statements that he didn't like the neighborhood he patrolled.  He gave details about the confrontation that clearly showed Wilson had not made any connection between the convenience story robbery and Brown and Johnson.  And his evidence about the shooting is very consistent with the physical evidence -- much more so than Wilson.  Only one witness, as artfully dissected by Lawrence O'Donnell the other night, saw Brown "charge" at Wilson.  All other witnesses (obviously, according to McCulloch, discredited) showed Brown turned towards Wilson in various descriptions of surrender.

At some point, Wilson may have determined he was going to shoot Brown with deadly force.  If that determination was without merit, if Michael Brown had given up, the chase over, then Eric Holder has a case to make that Wilson had made a conscious determination to deprive Michael Brown of his life, and by extension his civil rights.

Before I read the testimony -- in other words, relying on the selective leaks of the supposedly secret grand jury proceedings that could only have come from McCulloch's office -- I was inclined to think this was a tougher case from a federal perspective.  Now, after seeing the utter travesty and weakness of McCulloch's presentation, and perhaps most damning of all, Darren Wilson's own testimony, I have changed my mind.

The Attorney General may only have a few weeks or months left in his tenure, but I think a perfect Christmas gift to the Ferguson community, and to the nation, would be a federal civil rights criminal indictment of Darren Wilson.   More than enough probable cause exists.  And a community, and a nation, deserves its day in court.

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Justice, American style: do Black Americans ever have a chance? The case of Buddy Fletcher versus the New York elite.

The recent events in Ferguson have finally scraped the scab off the sore of racism that has been festering in this country for years. In a transformative moment when a white officer shot and killed an unarmed Michael Brown, the explosions of frustration in the black community of Ferguson have reverberated throughout the nation, captured by a media finally awoken from its slumber on covering race issues, and seen for consecutive nights by a populace fighting to comprehend the fact that so much is left undone in 50 years after the Civil Rights Act.

It made me think how much, even in the 21st century, the odds still remain stacked against justice for a black man in America? And it brought to my mind a situation involving a former client -- who has had his life, his business, his finances ruined -- all because he wanted to buy a home.

Alphonse "Buddy" Fletcher was, by all accounts, a typical America success story. That is, until 2011, when his entire life and livelihood were torn apart with the casual destruction of a F4 tornado.

Buddy Fletcher did not take a traditional route to the marbled conference rooms of Wall Street. He was a young math prodigy, who went to public school, qualified for Harvard, and graduated with a degree in applied mathematics.

He went to Kidder Peabody as a young trader and shortly thereafter began his own small financial investment firm, Fletcher Asset Management, and then registered his private investment funds with the SEC. As private funds go, it was not very large. Assets did not exceed, at its height, a half-billion dollars. By contrast, the largest hedge funds have assets under management ranging from $25 to over $75 billion. Still, as an African-American-owned fund, its modest size belied the enormous significance it played simply by existing and succeeding.

Fletcher's investment strategy worked to all observers -- and worked well, for two decades. His legal counsel included Skadden Arps, who had been with him since the he struck out on his own in 1991. Many companies and company managers who worked with him on deals ended up joining him at Fletcher Asset Management, the controlling entity which managed the various funds. Harvard University was the fortunate recipient of Fletcher's investment strategy in the mid to late 90's, doubling a $10 million investment it made with Fletcher. Fletcher soon was managing multiple hedge funds and making a name for himself.

And, as final confirmation of his arrival in the echelons of finance, Fletcher bought an apartment in The Dakota, the Central Park residence for the ultra-rich that would probably, to this day, remain semi-anonymous had it not had John Lennon as a resident and been the site of this shooting in 1980. Fletcher had lived in New York City's swanky locale since the early '90s. For years, he was one of only two African-American residents at the legendary co-op (the other being legendary singer Roberta Flack. The board of The Dakota had, over recent years, become almost notorious in New York real estate circles for being amongst the most discriminating/selective in terms of their approval process. Among the many well-heeled who were excluded were Billy Joel, Cher, Antonio Banderas and Melanie Griffith -- all felt the wrath of The Dakota's self-defined Darwinian selection process. Yet Fletcher not only managed entrance into the exclusive club, he served on the co-op board of directors, including past service as the board president.

But in his role as a director, Fletcher apparently committed the cardinal sin of actually applying his experiences as a black man into being an advocate for applying the principles of the Fair Housing Act -- a federal law protecting minorities from discrimination in housing - to the actions of The Dakota board. He served notice during one meeting that a fellow director's remarks against a couple of prospective applicants were anti-Semitic. He pursued efforts on behalf of Ms. Flack when apparently routine requests for modifying her apartment were met with a barrage of bureaucratic roadblocks -- roadblocks, he believed, that white owners never encountered.

Despite all this, Fletcher believed that his time served on the board made him a part of The Dakota community. Nothing could be further from the truth.

In 2010, the apartment adjacent to Fletcher's unit became vacant, opening up prized real estate in the storied building. Fletcher made an all-cash bid of several millions, and thought it would be a slam dunk. Instead, the blowback from this would cost him nearly everything.

To his surprise, Fletcher said The Dakota board requested his consent for a background check and supplemental financial information from him about his funds. Fletcher had provided proof of funds -- now they wanted to see the proof behind the proof, as it were. Fletcher complied. They then rejected his all-cash bid, Fletcher alleges, before they had sufficient time to analyze the material.

Fletcher was stunned. He had sat through similar approval processes and this seemed a slam-dunk. As he began to ask his friends and neighbors what had gone wrong, he began to hear whispers of what may have gone on behind the closed doors of the board room. His lawsuit alleges that one of the former presidents that clashed with him in 2007 was going to make Fletcher's application a "war." Fletcher also alleges that The Dakota board president changed the criteria for approval specifically for Fletcher's application, and openly questioned his financial statements. There were other rumors that another director wanted the units and but that Buddy had beat him to the punch.

And then Fletcher committed his second cardinal sin and his fatal error. He stood up for himself. He sued. He filed a lawsuit against The Dakota claiming retaliation, breach of fiduciary duty, tortious interference with contract and business relations, defamation, and housing discrimination. Perhaps Fletcher overreacted. Perhaps he should have just let it slide. But for an African-American man, who felt that he was being treated differently, who knew the history of the treatment of his people, who saw what he thought was almost casual racism by the board, there was almost no other alternative but to avail himself of the protection of the law. In 1990, Kidder had denied him a bonus despite a record-setting year. Fletcher had sued and emerged victorious with a million dollar settlement. The legal system, in his mind, was fair. And fairness was all he sought.

In return, The Dakota banded together and, with all the subtlety of a nuclear bomb, prepared a legal response that claimed that it had rejected Fletcher's application because it had allegedly "discovered" that his financial books were cooked. The response -- which had all the hallmarks of a very costly investigation -- was also emailed at the same time it was filed with the court to a slew of news organizations, including the New York Times, the New York Post and the Wall Street Journal. Included in the emails was a copy of Fletcher's unredacted and confidential financial records provided to The Dakota in good faith as part of his application -- an outrageous violation of Fletcher's privacy and expectations of confidentiality. But The Dakota was going to team him a lesson.

The press jumped on the salacious details immediately, led a Journal and the Post and even the Times. In the post-2008 crash world, it caused a stampede that caused a run on Fletcher's funds. Now, in the aftermath, his various portfolios and companies are in a shambles, he is being sued by multiple entities, and the internet is rife with accusations that have yet to be proven. No one questioned, or even noted, why Fletcher, a very smart man, would provide financial records to a coop board proving himself to be a financial fraud.

I thought of Fletcher's story again when I was reviewing the prospects of Michael Brown's family receiving justice in Ferguson. As noted by many, including myself, the disparity between the racial composition of the police force and the black population is stark and inexcusable, so much so that the Department of Justice launched a civil rights investigation. There, the county prosecutor has an abundance of reasons to disqualify himself from the proceedings, not the least of which he has consistently involved himself in race-dividing political races, and most notably refused to prosecute two police officers who shot two unarmed African Americans 21 times and whose self-defense story did not check out forensically. On its face, the odds did not seem in favor of the Brown family.  And in the end, in a defensive, rambling press conference where he cherry-picked evidence and attacked the media, the result was almost anti-climatic.

At least in Ferguson, however, the media has awoken to the fact that there is a racial divide in St. Louis County that will and must be addressed. For Buddy Fletcher, the very make-up of The Dakota board of directors would indicate a degree of bias and access to media that makes all the negative press coverage almost a foregone conclusion. As almost the sole black man in The Dakota, the odds were very much stacked against him -- and even more so given the almost incestuous relationships amongst his fellow owners.

At The Dakota, owners are investors in each other's companies, sit on each other's boards, are each other's bankers and lawyers, or each other's favorite clients and customers. The links between The Dakota board of director and News Corp, the Murdoch-owned empire that includes the New York Post and the Wall Street Journal, are many, both direct and indirect. The publisher of the Post, Jesse Angelo, is the son of one of The Dakota's largest shareholders, John Angelo, Jesse Angelo is a close friend with James Murdoch (he was his best man), Rupert's son. John Angelo also owned a lot of Tribune company debt, which was one of News Corp's prized acquisition targets. The pipeline between the one percenters at The Dakota and major media outlets was something that Fletcher never counted on, or considered. When Goldman, or Bank of America, or J.P. Morgan makes a business decision that costs its investors, shareholders, and taxpayers billions of dollars, it's often chalked up to a "bad bet," or a serious miscalculation, or a matter of taking on too high a risk. Even when it was revealed that these captains of our nation's financial Titanic, with their private jets and multiple homes, actually bet against their own clients, they are still walking scot-free of any personal responsibility for the devastation they caused to untold millions of Americans. What you don't see are story after story making reference to the most intimate details of their personal lives splashed across the pages of Vanity Fair or Fortune magazine, as Fletcher has had to endure.

Again, I thought of Ferguson, where the police leaked out details of Michael Brown's behavior -- the fact that marijuana may have been in his system, of the altercation/alleged shoplifting at the convenience store, the fact that he supposedly liked and practiced "gangsta rap" and, most notably, the New York Times "no angel" story that received widespread criticism.  And as I read the grand jury testimony, and saw how prosecutors allowed the grand jurors to go off on tangents unrelated to the charges at issue, and I see how justice can go off the rails through deliberate negligence.

And it made me think: how relevant is Fletcher's taste in real estate, clothes, or cars, except to create negative inferences about the source of his wealth? Why is more attention devoted to his personal life than to the very complex financial instruments he worked with that -- as we have seen since 2008 -- can succeed or crash in equally spectacular fashion. What role has race played in the disproportionate media attention he and his life have received? Would a story about a white manager of a small hedge fund, who made allegedly bad bets in the market, find the continued traction that Fletcher's story seems to hold?

In January of this year, the bankruptcy judge spearheading the Chapter 11 proceedings wrote that, thus far, he did not find that Fletcher acted fraudulently or incompetently. Last October during a hearing it was revealed that the SEC had earlier made a finding of "no wrongdoing." Which is of small, but significant, consolation to Fletcher. Small, because it existed in a media blackout. There were no screaming headlines. No stories. No blog posts in any of the major papers or publications. Just silence. Which may just underscore the tilted deck on which Fletcher stands.  Unlike Michael Brown, there will not be scores of reporters reading the transcripts of court proceedings and court filings to see Fletcher's side of the story or or to speculate where the justice system went wrong in its assessment of Fletcher's situation.

I'm not saying that Fletcher is innocent of all the allegations made against him. Nor am I alleging that I have any knowledge to prove Fletcher's contention that The Dakota board of directors and News Corp are conspirators in a vast and complex game of whack-a-Buddy. But there appears to be a serious matter of degree and proportionality in the coverage of Buddy Fletcher's legal travails.

Buddy Fletcher may not be the test case one would use to demonstrate the imbalance of justice that still exists in this country if you are black. But Ferguson, and its seismic shock waves, must force us to confront the possibility. And it makes you wonder if Fletcher would have made the same decision to sue The Dakota if he knew he was walking into a situation with a target on his back -- and what that decision, if taken, says about the state of our justice system today.

[yakiblog]

Why Obama's Executive Action on Immigration may make him the Great Emancipator, Part II

I've said on air on KRON4, and on Twitter, and to anyone who will listen, that the executive order that President Obama is set to unleash tomorrow is the 21st century analog to the Emancipation Proclamation.

It is hard to understand the life of someone who is undocumented in this country.  Fear of discovery and deportation pervades every sense of their being, every action that they take.  The New York Times and other even parochial newsletters recount the stress that families fear, especially "blended" families where children may be legal residents but their parents, the breadwinners, are not.  

The executive order that President Obama will unveil tomorrow does not create a pathway to citizenship, doesn't create permanent resident or bestow green card status to millions of undocumented persons.  It will, however, lift the shadow of deportation and the spectre of broken families from these same millions.

In 1863, in the midst of the civil war, President Lincoln issued the Emancipation Proclamation.  It was a singular action -- an executive order of the President, without any act by Congress.  And it was extremely limited in scope.  It only freed slaves in Confederate states still controlled by the Confederacy.  In fact, it did not even end slavery in the United States, as many loyal border states were not affected by the order.  Nor did it grant the full rights of citizenship to any African American, north or south.

But what the Emancipation Proclamation did do was make a statement to the nation and to the world that the United States was beginning the process of ending the ugly institution.  It gave hope to millions of African Americans.  It marked, to paraphrase the words of Churchill nearly four-score years later, the end of the beginning of the eradication of the national nightmare of racial inequality in America.

For millions of Latinos in this country, President Obama's executive order is also the end of the beginning of a long struggle for recognition in America.  But the action will give hope, and motivation, to millions of Latinos, legal and undocumented, to carry through to its logical end the ideals behind Obama's mandate -- a pathway to citizenship and eventual coverage for those who appear toy be left out of the order, such as the parents of DREAMER act children.  That struggle may take years, and more than one Administration.  But it is the inevitable end.

On a practical note, I am tired of the arguments made by critics of undocumented immigrants.  One of the most repeated saws involves the notion that legalizing undocumented immigrants will depress the wages of black Americans.  I have heard this cynical, race-on-race argument at, of all places, the U.S. Commission on Civil Rights.  It is the favorite strawman of the right.

When you think about it -- really think about it -- depressed wages is a function of two things.  One, a minimum-wage that hasn't kept pace with inflation and CPI for decades.  And second, if an employer has a workforce that it knows is comprised of undocumented people, that employer has instant labor force security and the ability to exploit that workforce.  It may be in certain instances or industries that lower-wage undocumented Latinos have replaced black workers.  But even assuming that is true, if you legalize the ability of those Latinos to work, without fear of a quick call to la migra as a cudgel, you have transformed the workplace overnight.   Now, without the prospect of deportation, and now, as persons with color of law behind them, all the laws protecting workers, workers' rights, workers' ability to organize, suddenly and automatically vest.  That fundamental reshaping of the balance of force in capital cannot be underestimated.

President Obama has given the Congress every chance to deal with the plight of the undocumented problem.  It has gone beyond a legal question, and into the realm of human rights and human dignity, just as the Emancipation Proclamation recognized that the War of States' Rights was now a War of Emancipation and Freedom.  It is more than about fences, and about how we treat the people inside our fence.

Once the order is given, our nation changes, for the better.  Once the order is given, for all practical purposes it cannot and will not be undone.  The Republicans would be committing political suicide to block funding for the order.  This genie can't be put back in the bottle, and they know it, which is why they are unleashing all the putrid rhetoric and blatant threats to the President to stop him from doing it.

Tomorrow, America changes.  For the better.

[yakiblog]

Why Chris Matthews is Wrong (sometimes)

On election night and the morning after, Chris Matthews of MSNBC continued to flog his theory of government, predicated on the observations in his book Tip and the Gipper: When Politics Worked. --  that no matter how right or left you are, you should get over it and engage in transactional government to get the important things in government done.

With all due respect to Chris, whose show and views I generally agree with, I'm not sure that transactional government works in the highly polarized political atmosphere in which we now live.  During the time of President Reagan, the extreme wing was represented by people like Phyllis Schlafly, people who rode the one-term horse into the sunset, and whom people like Bob Michel and Howard Baker dismissed as looney-tunes.  Now we have Ted Cruz and Darryl Issa and Steve King, and depending on the time of day, Marco Rubio,, just to name a few.  And in the era of social media and the 24/7 news cycle, they are omnipresent.

These are not people for whom "deals" work.  Any deal they want, as evidenced by their record to date, has to be extremely one-sided because it not only has to appeal to bedrock conservatives but to the far right.  There is a lot of speculation that John Boehner's new majority will give him more room to maneuver, but that completely ignores the fact that Ted Cruz walks down the hallway separating the two bodies and has acted as de factor majority leader for the House GOP for the last year.

And let's not forget -- the Democrats had a firewall in Tip O'Neill controlling a very cohesive Democratic-controlled House of Representatives.  And beginning in 1986, the Democrats regained control of the Senate for the final 2 years of Reagan's term, which had been in GOP control in the Reagan landslide of 1980 and was an important counterweight to the Democratic House.

If President Obama engages in deal-making with the 2015 version of the GOP-controlled Congress, it will come at a steep cost and even steeper price to the ideals and programs that are dear to Democrats, the middle-class, the working poor, and the least of our nation.  The only firewalls the President possesses are the veto and a shaky Democratic minority in the Senate which needs to hold 6 votes to keep its filibuster leverage in play.

The Republicans are already saying they will trade hiking the minimum wage for significant fiscal and tax concessions.  That is a fool's trade.  The reason why the minimum wage ballot measures did little for vulnerable Democrats in the mid-terms is because Republican candidates, faced with overwhelmingly favorable poll numbers for the measures, simply endorsed them.  The President should reject any trade and, if pushed, launch a nationwide, state-buy-state effort to increase the minimum wage through his surrogate entity, Organizing for America.  

And for those who point to the cooperation between President Clinton and the Newt Gingrich-led Republican Congress during his second term? I say good luck.  Gingrich lost tremendous leverage during the government shutdowns, and the GOP brand suffered tremendously during the impeachment hearings.  It gave Clinton enough maneuvering room to pass one significant piece of financial legislation -- the repeal of the Glass-Steagal laws, a long-time Holy Grail of the Republicans, which freed up the nations banks to engage in the rampant speculation that led to the Economic Debacle and Great Recession of 2008.

So Chris, I admire you and enjoy your shows, your commentary and your writings.  But I would strongly advise the President to stay the Democratic course and bait the Republicans into overreaction and agitate the right-wing into rebellion against their own leadership as stalemate frustrates their agenda.

There's a long-game we're playing here that goes beyond 2016, a long game that can create a legacy of leadership and foresight that can define an Obama presidency.  Executive orders on immigration reform that create a legalized path to citizenship for millions of undocumented persons, using the veto power to defend environmental protection, and the aggressive action of the Justice Department to remove barriers to the franchise for minorities and the poor and elderly are all within his control.  And through this, he can create what was a seeming impossibility until his groundbreaking election in 2008 -- the establishment of a new, and possibly permanent Democratic voting majority.  When you think of how this plays out with regard to appointments to the Supreme Court, the long game becomes not just important -- it becomes critical.

We're playing the Game of Thrones, not "Let's Make a Deal."

[yakiblog]

Why Obama should have enacted Immigration Reform in 2013

As all the sturm, drang, and 20/20 hindsight begins for the 2014 mid-term election, I thought I'd add mine BEFORE the polls close.

It was clear that the divided Congress -- specifically, the Republican-controlled House and the Tea Party zealots in the Senate -- were not going let any legislation go forward before the 2014 elections.  And it became equally clear as the march towards 2014 began, that vulnerable Democrats, primarily in the South, were going to beg the President to hold off on enacting reform.  This reached a crescendo in the summer, when the President announced he would hold off on issuing executive orders until after the elections but before the end of the year.  Now, with the possible control of the Senate hanging in doubt through the New Year because of the majority-win requirements in Louisiana and Georgia, that becomes an even more dubious prospect.

Sometimes the best medicine is to take it early, swallow hard, and move on.  That should have been the message of the President and the Democratic party in 2013.  Rather than wait until after primary season to begin this messy two-step, the President should have acted the year before, the summer of 2013, by using his executive power to protect and create a pathway for citizenship for the millions of undocumented persons, primarily from Central and South America, already here and already productive members of the economy and society.

In so doing, he would have created the very conditions that could have undermined the GOP efforts to put forth viable candidates against vulnerable Democrats and created a surge of energy in the Latino community for these very same candidates.

[yakiblog]

Thoughts on Serra's Shrimpboy Press Conference and some interesting implications for Leland Yee

As a Yale law student I was among those who worshiped at the altar of the great trial lawyer. Names like Darrow, Kunstler, Spence, our own Melvin Belli. Even better if they defended the Great Constitutional Principles and the downtrodden, the marginalized, the powerless.

Great trial lawyers have an innate ability to sense the weakness in their opponent’s case, and a sixth sense about what will make a particular jury see things as they want them to see them.

Tony Serra was someone I heard about when I moved to San Francisco. Not rich and flamboyant as Belli, Serra seemed like the West Coast version of William Kunstler. His defense of Chol Soo Lee, a Korean immigrant wrongfully convicted of a murder in San Francisco’s Chinatown, was headlines news during my final years at Berkeley. He’s defended Black Panthers, White Panthers, Hell’s Angels, and fought the government tooth and nail at every opportunity, including (and losing to) the IRS.

So it was more than with a little curiosity that I attended his press conference Thursday as he began his public defense of Raymond “Shrimpboy” Chow, indicted last week on 10 different counts of conspiracy and money laundering.

It is a well-worn (and profitable) maxim among many lawyers that you don’t reveal your strategy. Corporations spend zillions of dollars hiring battalions of lawyers to protect information, lock down documents, and create a uniform, bland, slate-gray wall around them. And there are plenty of lawyers, good ones, who do exactly that. Except for trial lawyers. Especially trial lawyers going up against the full might of the government and their legions of GS-13 legal counsel with unlimited budgets, as in U.S. vs. Leland “rocketlauncher” Yee, Keith “middleman” Jackson, and Shrimpboy. In this instance, Serra's client has faced a two-week pummeling in the media.

So Tony Serra began trotting out the counterstory to the career faux-reformed criminal portrayed in the press by the FBI: a different, kinder, gentler Shrimpboy, the reformed ex-con who had gone straight for 10 years, lived (as Tony has lived) a life of poverty and self-denial, a man of community service and leadership.  A "mentor" and "role model" for young people who might otherwise take the path previously traveled by Chow.  And a man who accepted “gratuities” from undercover FBI agents as tokens of appreciation and respect (at this point I was waiting for Serra to say that Chow wore orange monk robes and held a beggar’s bowl when the FBI handed him cash), not the rank payouts described in the FBI affidavit. Serra’s partner, Curtis Briggs, began reciting (and trust me, you will hear this reported over and over again) that Chow had explicitly refused, like Buddha under the Bodhi tree or Christ in the desert, the temptations of the FBI over 25 times. 

This story is essential to Serra’s defense. Entrapment requires that the defendant prove, by a preponderance of the evidence, that the defendant had no predisposition to commit the crime, and but for the outrageous acts of the government, the defendant wouldn’t have committed the crime. Chow’s prior conviction and statements when convicted are per se evidence of predisposition, so Serra conceded Shrimpboy's prior (and violent) history, but instead will play upon the notion of rehabilitation and redemption as means of washing away the taint and stain of his prior crimes. In other words, he wants to reset the clock for the jury to begin in 2003, when Chow was released from jail for being a cooperating witness.  

Entrapment also requires proving that the government overstepped and overreached in attempting to persuade an innocent man to commit a crime.  And Serra is an old hand at proving the case for an out-of-control government, as he did most recently ten years ago in the Judi Bari/Earthfirst lawsuit. Undercover agents, he intoned, were professional perjurers. If they didn’t lie for a living, he said, they’d be dead. Everything they did, he implied, was a lie, a fiction, including the case against his client.  He also swore to unearth every single piece of dirt on each undercover agent’s history and background and use it against them in court.

There is another, more subtle defense hinted at by Serra – the innocent CEO. That Chow, as head of the Ghee Hung Tong, couldn’t be responsible for the illegal actions of his underlings. And, indeed, Chow did not get his hands dirty throughout the multi-year investigation. According to the FBI, he let others do it for him, and he acted as facilitator and handler. According to Serra, he was a cooperative guy who introduced his friends to each other and what they did on their own time was not his business or responsibility.  Kinda like all the CEO's who crashed our economy in 2008.  

Another part of Serra's strategy was the reverse-English-in-the-pike-position-with-a-double-twist, or in legal terms, chumming the jury pool.  All trial lawyers understand the rule of one – that it only takes one juror to hang a jury, or force an acquittal by attrition. And so Serra trotted out two more lines of attack that will likely never see the inside of a courtroom – that this is direct FBI racism aimed at the Chinese American community, and implied racism against the African American community. And while the demographics of most juries do not favor minority defendants, the likelihood of at least one Asian or one African American juror is extremely high, and playing the race card early and often in communities with a justified history of oppression by the government could work, or at least work to untaint a jury pool exposed to nonstop coverage of Shrimpboy and Yee.

What was far more interesting to me, however, was Serra’s thought process as it pertained to the "celebrity” defendant, State Senator (suspended, but still drawing salary and benefits) Leland Yee. In his opening remarks, Serra noted that were it not for the FBI ensnaring Yee, he thought it highly likely that his client wouldn’t have been indicted. That somehow, the big fish swept all the little fish, like Chow (no pun intended, fyi) in his wake.

A reporter asked whether there was any connection between Yee and Chow. Serra said there was very little nexus between the two, prompting me to ask, in that case, whether he would ask to sever his trial rather than be linked to Yee. Serra turned to me, and said, very pointedly, and with great care, that this was a careful and “profound” decision that he would have to make. He pointed out that he thought that Yee had an entrapment defense, but he went on in the same breath to make the following point: that the decision to sever (having Chow’s trial separated from the others, with a different jury) is one that he would make only after seeing how many defendants were left standing. He noted that only 10% of cases ever went to trial, but among those who were left, sometimes he would weigh the evidence and decide whether any of those had a good chance of being found guilty. Although he noted it was counterintuitive, sometimes you wanted to go to trial with a “guilty” defendant because your own client looked good by comparison. In other words, in response to my question whether he would go to trial with Yee, he didn’t say yes, and he didn’t say no. And I wonder, given his earlier statements that his client was dragged in by Yee’s arrest, and his subsequent statement about going to trial with a clearly “guilty” party, whether Serra had made up his own mind about Yee’s guilt or innocence, as much as he had made up his mind about Chow.

I was among the first in the media to characterize this whole sordid affair as “American Hustle comes to Chinatown.” (You can check the timing of the twitter feeds if you want) With the injection of Serra, and to only a slightly lesser degree, Jim Brosnahan (representing Jackson), we are looking more and more like a shootout at the OK Corral. The reader can decide who are the Earps and who are the Clancys.

If I'm the US Attorney, looking at Serra, knowing that he is a true believer, I'd be worried about what he could do to my case.  And without knowing more, but just going on observations as a lawyer these past years, I'd put money that the person the US government would most like to flip is Jackson.  Jackson is the key -- as a pre-existing friend of Shrimpboy who may know more about Shrimpboy's actual dealings with criminal activities, and as the bagman for Leland Yee.  Jackson, and Jackson alone, is the link between Shrimpbboy and the Rocketlauncher.  And I know Jim Brosnahan knows that as well, and is probably seeking to leverage it in the best way possible for his client, who is facing a murder-for-hire charge that could send his client away for life.

Stay tuned. 

[yakiblog]

Reflections on Martin Luther King Jr. Day: Zero Tolerance in our Classrooms and Stand Your Ground.

As a member of the U.S. Commission on Civil Rights, practically every day is, in some way, Martin Luther King Jr. Day.  It is because of his efforts, and the efforts of countless others standing up for racial justice and equality, that President Eisenhower established the Commission in 1957.  As the nation's watchdog for civil rights, every month we work to take actions that invoke the words of Dr. King: to advocate on behalf of a society where we are judged on the content of our character, not on the color of our skin or the place of our ancestry.   Not on our gender, our sexual orientation, or our religion.  It is a position I have held for now going on 9 years, and it is one that I regard with deep honor.   And so, practically every day, my thoughts turn to these issues, and how best to advance the life and legacy of Dr. King.

Last week, the Justice Department issued new guidance over zero-tolerance discipline rules in public schools.  All of us, I am sure, have seen or read examples of how public schools have turned well-founded well-justified fears of the next Columbine or Newton, as well as conern about lawsuits and liability due to teacher or staff misconduct, malfeasance, or neglect into policies that seem, at times, excessive.  If you google "elementary school suspended zero tolerance" you'll find some examples that will make you, at best, scratch your head and at worst, make you think our nation has gone a little around the bend.

But what the Justice Department guidance zeroed in on (no pun intended) was not the silly examples of a  seven year old child being suspended because he had a butter knife in his pocket.  It is that zero tolerance policies, like so many laws in this country, are being disproportionately enforced against African American children.

Statistics in 2011-2012 complied by the Department of Education and the Justice Department showed that black students without disabilities were more than three times as likely as whites to be expelled or suspended. Although black students made up 15 percent of students in the data collection, they made up more than a third of students suspended once, 44 percent of those suspended more than once and more than a third of students expelled.  More than half of students involved in school-related arrests or referred to law enforcement were Hispanic or black, according to the data.

In many of these jurisdictions, these punishments can become part of a student's criminal record,as referrals to police become more prevalent than the principal's office.  In fact, the statistics show that of the 3 million students who were suspended or expelled during the 2010-11 school year, a 250,000 were referred to law enforcement, even though 95 percent were for nonviolent behavior. And of these children, 70% were black, Latino, or had a disability.

As much as we want to prevent the next Columbine, as much as we should be protecting our students and school teachers, these statistics give one pause as to whether the ends justify the means.  If you are a black or hispanic parents with kids in public school, this has to give you pause.

On another note, things are gearing up for the Commission having a  hearing in Florida this Spring on "Stand your Ground" laws.  At my request, the Commission has launched in investigtaion into whether their enforcement and application has a racial bias or is disproportionately enforced againstminorities.  And even though Florida has a symbolic importance because of the Trayvon Martin tragedy, our inquiry goes beyond Florida and into a broader inquiry across the nation.  Stay tuned.

[yakiblog]

Call the Boehner's Bluff: Schedule a Vote to Repeal Obamacare

If the Tea Party-dominated GOP continues to insist that the majority of the American people don't want Obamacare, and if they continue to insist that their puerile tactics of holding the government, and possibly the debt ceiling, hostage to their demands are the only means to make that point, then let's set up a civics lesson they won't forget.

If you want to repeal a law, you have to introduce the repeal, debate the repeal, and then vote on the repeal.  If you lose, you lose. Game over, and you go back to your corner and pout while the Health Exchanges open and people continue to enroll.

Senate Leader Reid and House Minority Leader Pelosi should both announce they are open to yet another (remember, this will be about the 30th) vote to repeal Obamacare.  Quite frankly, I doubt the American people have paid attention to the previous 30.  But now, with a gun pointed to their proverbial heads, the American people might understand how our democracy does (or in this case, doesn't) work.   Both Reid and Pelosi should announce that in exchange for the House GOP dropping the demand of tying the repeal or delay to the CR or debt-ceiling, that Congress will debate and vote on the question of Obamacare in October.  That is a simple exchange that the American people would understand.

Understandably, this does not come without some risk to Democrats.  There are a number of Senate Democrats up for re-election in 2014 in reddish-tinted states --Kay Hagan in North Carolina, Mark Pryor in Arkansaw to name a few -- for whom a vote this year could be risky.  But if the extremists refuse to accede to the request, then they can say they wanted a vote, but the GOP was too intent on shutting down the government or wrecking the economy to take them up on their offer. 

It also comes at some risk to the White House.  The repeal of the medical device tax has some Democrats in both houses rather nervous, because some states, such as Massachusetts and California, have substantial investments of medical device manufacturing in blue-districts.  It is possible that Obamacare could survive but without the $20 billion in revenue that the medical device tax is supposed to provide to fund the system.

In all likelihood, the Tea Partiers would reject the offer out of hand, saying that nothing has changed, and that the Senate would block the legislation.  Reid could promise to schedule it for floor debate.  And then the ultimate irony is that Senator "Green Eggs and Ham" Cruz would be faced with not finding enough votes for cloture on the bill and it could die for lack of a vote.  Which, procedurally, is par for the course and would spare the red-state Dems from having to walk the plank, because there are enough blue-state Senators to make the magic number of 41.

But even then, if Reid were smart, he could stage-manage the bill so that it failed 51-49, keeping red-state Dems out of trouble and still killing the bill.  Or he could even allow it to pass -- probably, just barely, and let the President veto it, and know that 2/3 vote is mathematically impossible to achieve in either the House or the Senate.

The President has said he would veto it.  He can take the heat on the veto.  He's in his second term.

Democracy is fulfilled, everyone can go back to work, and the economy is no longer a hostage.  The Tea Party can make it an issue in 2014, and we're back to status quo.

But I'm betting that the Tea Party refuses.  That they will force Boehner down this suicidal course of action.  Part of me, the Democrat in me, wants to see them take it to its ultimate conclusion, because it will mean the end of the Republican majority in 2014 as the world economy implodes.  But the person who wants good public policy, the American in me, wants this silly drama to end, now, because an implosion means rocking a fragile economy, even more people out of work, and, as always, the least fortunate amongst us will bear its frightful burden.

[yakiblog]

The Founders had it figured out -- so why can't Boehner?

One of the sometimes maddening aspects of our constitutional democracy is the notion, preserved in Articles I, II, and III of the Constitution, that we have three co-equal branches of government, with checks and balances on each other's ability to run rampant.  So great was the fear of our Founders of a monarchy or tyranny that they bestowed upon their new republic a set of limitations on action that were, and are, unlike many that nations experience today.

We do not have a unilateral King who governs by divine right.   Nor do we have a unicameral parliamentary system that can literally run the table on policy by gaining a simple majority.  

Yet the Tea Party -- they who fashion themselves as the supposed political descendants of the Sons of Liberty -- are behaving exactly as if they are entitled, by divine right, to demand exactly how the table should be set for their single-minded, and equally simple-minded, objectives.   Their actions, couched in Revolutionary War era quotations, have no semblance to the actual document that has governed our nation, for better much more than worse, for over two hundred years.  

The House majority -- I cannot call them Republicans any more -- seek, through the usage of a continuing funding resolution for the federal government (the use of which, by the way, shows an utter lack of ability to get out the regular appropriations bills, something this majority is uniquely known for in the 200 plus years of House of Representatives history), to require the repeal of Obamacare

Let's review the record, shall we?

In 2010, the Patient Protection and Affordable Care Act -- now commonly known as Obamacare -- passed the House and the Senate and was signed into law by the President.  At the time, the House and Senate had Democratic majorities.  

Later, in the mid-term elections of 2010, the majority of the House changed hands from Democratic to Republican.  And thus began a series of 40 votes in the House, all of which failed, trying to repeal Obamacare.  

Why did it fail?  Because to pass a law you require BOTH the House and Senate, and except in the unusual case of a veto override, the consent of the President.  

So the right-wing begins to challenge Obamacare in the courts -- the third branch of government -- and there, in the Supreme Court, they are handed a shocking defeat.

Later, in 2012, the guy who wanted Obamacare beat the guy who wanted to repeal Obamacare for President.  And the Senate and House did not change hands.

Now the right-wing Tea Parties are left with a President who will veto any legislation repealing Obamacare, a Senate which has no intention of repealing Obamacare, and a House majority.

The Founders would, I believe say to the Tea Parties:  in this case, you are ---- out of luck, guys.  And this is the way we planned it.

But the Tea Parties have decided to use the only power they have -- the power of the purse -- to try to force the Executive Branch and the other half of the Legislative Branch -- to bend to their will.  To upset the system of checks and balances by stubbornly using the threat of a total government shutdown to get their way.

This is the legislative equivalent of holding your breath until your parents/teachers/guardians/parole officers give in.  

Thomas Jefferson, Ben Franklin, and Alexander Hamilton are all probably blowing gaskets in the cosmos right now if they were reading the news stories about the House GOP.  Because what Boehner, Cantor, and their mewling hordes are doing does not comport with the principles of our Founders.  Of our constitutional government. They lost.  They lost on the Obamacare vote.  They lost on getting back the Presidency.  They lost on winning control of the Senate.  

That means you try again in the next election.  Because that's how a constitutional democracy creates change.  You want to repeal a law?  Get the votes to do it.  Don't deliberately sabotage the government, jeopardize our national security, cut off assistance to the neediest.

It's unpatriotic.  It's un-American.  And there are other "t"words I would associate with the behavior of the House majority and the Tea Party, but you get my drift.

[yakiblog]

Sequestration: Are Frequent Flyers Too Big to Fail?

A bipartisan group of Senators are talking up legislation to give the FAA the flexibility to ensure a full complement of air traffic controllers on the job.  Why? It seems that one of the dire warnings that President Obama gave before the sequester deadline -- that there would be furloughs and cutbacks in the ATC ranks -- has not only come true, but resulted in inconveniences to thousands of air travelers across the country.

I know this first hand, since my flight this week from the East Coast resulted in us idling on the tarmac for 35 minutes on an otherwise ideal day for flying coast-to-coast.  

But the real inconvenience, at least the one that has caused the introduction of the FAA fix-it legislation, seems to be echoing from the smartphones of those can most afford it.  There are delays of up to 90 minutes for the "banker's shuttle" (aka the New York - DC route), and the well-heeled are apparently using their down time to call the personal lines of the many politicians whose careers they have funded and screaming that cooling the heels of their Lobbs or Louboutins for an hour or so is costing them time, money, and happy hour at the Plaza or the Willard.  Even private jets are having to wait their turn because of the controller cutbacks.

Of course, prior to the implementation of the sequester, the Republicans in the Senate and the House called all threats, including the FAA cutbacks, a "bluff."  Given the record of the GOP recently, this gross miscalculation was pretty much a given.

Pain is exactly what the sequester is about.  Pain is exactly what everyone with half a brain knew would result.  Not just the pain of living in a world of artificial light, overpriced food, and $4 dollar bottles of water we call airports.  But real pain.  Like the thousands of children who are being turned down at Head Start.  Like the thousands of veterans who, despite having their VA programs and benefits protected (and rightly so), are finding that that housing and job training programs run by agencies other than the VA are starting to dry up.  Like victims of sexual assault finding that money for victims' programs has disappeared.

For thousands of Americans who can't afford flying to the Maldives or the Serengeti for vacation, the impact of sequestration will be felt this summer in National Parks where, lacking full-staffing, Parks officials will have to limit capacity at campgrounds.  The Smithsonian will have to eliminate its educational programs aimed at broadcasting to inner-city kids.  

But what does it matter compared to the Titans of Wall Street who can't stand having to wait with the great unwashed to get to their private limos, presidential suites, and hard-to-get reservations for dinner?  

What is especially galling -- what is infuriating -- are the Democrats who have decided that they might "exempt" the FAA in order to placate their biggest contributors.  And there are signals being sent by the Obama Administration that they might be willing to accept it.

This was a problem legislated by and caused by the Republicans.  It was predicted by the Obama and the Democrats, flogged mercilessly by them in the press and in public appearances.  To cave is to say to poor children, to veterans, to victims of domestic and sexual violence, to the visitors of our national parks:  you are not important enough.  You don't matter.  And that is a terrible, terrible message to send.

I'm not trying to trivialize the FAA issue.  The fact is, air travel is a huge component of our economy -- not just for airlines and its employees, but for the destinations, such as San Francisco, who are the disembarkation points for many middle-class families exploring our great country.  But that it exactly why the cuts should be allowed to continue -- because the pressure from airlines, travelers, businesses is the type of pressure that should make Congress realize the idiocy of this self-inflicted wound and reach an agreement.

At the very least, any FAA deal should include the same flexibility to restore cuts in all other domestic programs.  The across-the-board cuts legislated by the GOP in the sequester forbids that type of transfer, notwithstanding all the lies perpetrated by Republicans in the House and Senate who are declaiming the exact opposite.  Give flexibility to all other programs, and ensure that funding for Head Start is assured.  Or just reach an agreement, as highly unlikely as that is, and move on.

Otherwise, all we are saying is that frequent flyer miles are more important than a child's education.

[yakiblog]

Flee or Rescue in a Terrorist Attack: What would Darwin say?

Amidst the carnage of Boylston Street, a new meme has emerged in the post 9-11 era -- the image of people first, fleeing the immediate explosion, and then, just as quickly turning towards ground zero and running to the rescue of those who were injured, notwithstanding or in spite of the fact that two bombs had just exploded within seconds of each other and with every reason to believe that more detonations could occur.

If you remember your basic biology text on natural selection, it seems counter-intuitive that evolution would favor the instinct to run towards danger.  Nature usually rewards the fleetest of foot, the keenest of hearing, the sharpest of claw.  The common denominator among these and other traits is that it helped certain species survive in whatever ecological niche it had been placed.  Nature also selects out those traits that are not additive to the survival of a species.  Nature, it seems, would punish harshly the gazelle which, when confronted with a pride of charging lions, turned towards a wounded member of the herd to extricate it from the carnivore's jaws.  

And, of course, if you've ever read the Darwin Awards, you know exactly the meaning of "Nature is a bitch" as it applies to Homo Sapiens.

I'm not talking about the natural instinct to care for the wounded, or the maternal or paternal instinct to protect a child at risk.  I'm not talking about soldiers, or field medics, for firefighters or police officers who are trained or by instinct have made a career of willingly going into dangerous situations to save people.  I'm talking about average Americans, who go to work every day, who laugh at the idiocies of reality television, who take their children to school or enjoy their retirement years or are working two jobs just to get by.  

These were Americans, who have watched their fellow countrymen perish in the Twin Towers, who may have loved ones who made the ultimate sacrifice in a foreign land, or who may have up to April 15, 2013, lived relatively unscathed and innocent lives.  They were AmerIcans, some of whom had just accomplished a personal miracle of  running twenty six point two miles, or who were there cheering those who were.  They were neighbors, tourists, friends, relatives.  And in the blink of an eye and a flash of powder and the sound of thunder, they were Americans who deliberately chose, even when the smoke was still heavy, to wade into twisted metal, broken glass, and shattered bodies to save total strangers.

Why?  Why deliberately foreshorten your odds of protecting your gene pool to save a person who you do not know?  Why risk your life, not to mention the happiness of friends and loved ones present and future, for people who may, in the grand scheme of Life, have no material relation or benefit to your life ever?  Wait for the smoke to clear, volunteer at a hospital, donate to the Red Cross.  That's the traditional way to fulfill the need to assist in a post-crisis situation.  

But in the midst of an attack?  It makes no sense according to the pure laws of natural selection.  Darwin, it would seem, would not approve.  

But perhaps something has changed in human evolution.  Perhaps we have, in the millennia since we descended from the trees, evolved in a way that selects a meta-trait in the human character.  That bravery, compassion, the need to rise above the baser traits of the killer ape in order to continue to ascend the evolutionary ladder, is part of the ultimate destiny of humankind.

Perhaps we need to demonstrate to the genetic pool that spawns hate, the deformation of DNA that has produced the Hitlers, the Pol Pots, the Bin Ladens and Bundys and Mansons of our history, that there is an even strong and resilient chain of amino acids that produce in humanity a desire to unite against horror and vanquish evil.  Perhaps, somewhere buried beneath our need for job security, or a warm chocolate chip cookie, is also a need to demonstrate an ability to rise above self in preservation of others, regardless of the cost to self, because the act alone triggers in others the latent desire to stand up for good.  In that way, Darwin might say, we are selecting for these higher traits of consciousness, even at the cost of individual lives -- including our own.  

It is, in the most basic terms, the very act of losing the notion of self.  Because self begets selfishness, a term at its root without connotation, without denigration.  Saving your own life is selfish, and instinctual, and, in strict Darwinian terms, perfectly natural. 

Millions of Christians just celebrated Easter, where -- if you strip away all religious references -- two thousand years ago a pious man of peace died to show that violence cannot kill the human spirit.  History is replete with examples of these selfless acts. It is not uniquely American -- not close.  Raoul Wallenberg risked his life to save Hungarian Jews from the SS death squads.  Gandhi (and later, King) preached nonviolence, even as they were victims of violence.  Nameless Buddhist monks set themselves ablaze to protest violence in Vietnam and now, Tibet.

But what is extraordinary now is how, without reference to a religious or historical text or download of an Oscar-winning epic, or even a clever or inspiring tweet, the normal human instinct in Boston, and in many other places where evil has sought to wreak havoc -- call it Warsaw, Tienanmen, or Tahrir, was to save, to preserve, to react in a way to immediately counter the chaos.  That in that uttermost moment of truth, in the face of death, they acted to stand up to be counted against the darkness, even as the darkness closed in around them.

Because even in our death, if we choose to save someone else, there is meaning.  Because even in our death, even if evil triumphs on that day, the spark of life that chose to help others before it was extinguished creates a flame of hope for the rest of humanity.

In the Darwinian order, choosing acts of courage and good and sacrifice for others over deliberate or random actions of hate and destruction would seem perfectly natural.  And for the human species, if those traits prevail, perhaps we have a future after all.

[yakiblog]

First Thoughts on the Bombings in Boston

Like millions of other Americans, I was alerted to the bombing on Twitter and quickly jumped onto the news and stayed glued for hours, constantly channel-switching to see if someone had another scoop, another morsel of information that would help make sense of something senseless.  

And as our hearts go out to the victims and their families, we turn, as we would do, to questions of who perpetrated this attack and why.

There are 2 easy culprits to think of who may be responsible for the bombings.  The first, of course, is Al Qaeda, who may have decided to use a crowded international sporting event, full of news crews and attended by hundreds of thousands of cheering men, women, and children, to perpetrate another act of terrorism on American soil.  We know from the notes captured during the raid on Bin Laden that Al Qaeda was contemplating smaller, more improvised attacks on major American cities -- a campaign of constant, smaller terror (if terror can be quantified as such).  The size and scope of the coordinating bombings during the Boston Marathon, a uniquely American event, occurring on a state holiday honoring the patriots of the American Revolution, would seem to be a likely target for anti-American terrorists.

The second group of likely terrorists are of the right-wing, anti-government home-grown variety.  The kind that spawned Timothy McVeigh and Oklahoma City.  Here, again, the smaller scope of the bombings (meaning home-made), the choosing of a venue honoring the heroes of the Revolution (these nuts always love to quote Jefferson's quote about "the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants"), and the fact that it also coincides with Tax Day -- to these hatemongers, the supreme example of government tyranny -- also gives credence to their culpability.  

And, of course, both theories could be totally, completely, wrong.

We may not know answers for days, weeks, perhaps months.  The lack of any group immediately claiming responsibility means that any claims coming over the transom in the next 24 to 48 hours are probably headline-grabbing losers who have no connection to the horror of today.    Patience may not be a virtue, but is certainly required even with the modern technologies of forensic science today.

It means we, the American people, have to have patience and let law enforcement do its job.  It would be rare for those responsible not to be found or, at least, identified.  We shouldn't jump to conclusions as we wait for answers, even though we can't resist analyzing each and every lead, rumor, and scrap of maybe-maybe not evidence.  We can't allow ourselves to be swayed or biased by color, religion, or political affiliation.  It denigrates and diminishes our democracy to engage in stereotyping even as we demand answers in our instant media age yesterday, and not tomorrow.

And whoever is found to be responsible -- whether right or left, Christian or Muslim, foreign or domestic -- we must restrain ourselves from condemning everyone and anyone who shares any of their surface characteristics, because what is not shared, and what is unique to those responsible for today's terror is a shadow of evil and utter, callous, contemptuous disregard for innocent life that condemns them and their conspirators to a special hell reserved for them here, or the hereafter.