Thursday, July 26, 2012

GAZETTE COLUMN: Final Destination by John P. Flannery

Jessica Ghawi

There’s a popular flick where one person’s clairvoyant vision spares several individuals from an imminent disaster only to have them die afterwards – as they had “unfairly” cheated an inescapable death, their final destination.  Jessica Ghawi had a feeling that she escaped death.

Jessica visited Toronto for vacation last month and experienced an “odd feeling,” an “almost sickening feeling,” as she described it in her blog, that wouldn’t “go away,” prompting her “to go outside” the Eaton Center into an early evening rain, rather than stay and shop at Sportcheck.

She went there for sushi, but “changed” her mind and had instead “a greasy burger and poutine.”  When she paid, her sales receipt bore the time stamp, 6:20 pm.

Only three minutes later, at 6:23 pm, Christopher Husbands, 23, stood about where Jessica had her burger, and shot several rounds, sounding “like balloons popping,” wounding Nixon Nirmalendran, at the Sushi restaurant where Jessica first thought to eat.

Jessica wrote, “I never imagined I’d experience a violent crime first hand.”

She saw the lifeless victim afterwards, the “[n]umerous gaping holes, as if his skin was putty and someone stuck their fingers in it.  Except these wounds were caused by bullets.  Bullets shot out of hatred.” 

Jessica had been spared but couldn’t shake that “odd feeling.”

Jessica returned to the United States where you can get assault rifles, large ammunition magazines and countless rounds of ammunition easier than a driver’s license.

In 1994 Congress passed a 10-year ban on assault weapons and large ammunition magazines (more than 10 rounds).  But that ban was not renewed in 2004.

After the bans lapsed, a gun man in Tucson fired more than 30 shots in 15 seconds from one large capacity magazine, hitting 19 people including Congresswoman Gabrielle Giffords, and killing 6 including a 9-year old girl, and a federal judge.

Afterwards, Congresswoman Carolyn McCarthy and Senator Frank Lautenberg offered legislation to ban the possession or transfer of these military style magazines.  But the bill has been stalled in Committee since early 2011.

That’s how James Holmes, 24, was able to buy an assault rifle, a 100 round drum magazine, and 6,000 rounds of ammunition.  Holmes amassed these weapons while Jessica was on vacation in Toronto.

Holmes reportedly modeled himself after “the Joker” in the Batman trilogy.  Perhaps, like the Joker, Holmes want to show “how pathetic” are our “attempts to control things” and his objective was to “[u]pset the established order” so that everything becomes “chaos.”   

Holmes chose the final episode in the Superhero Batman trilogy, “Dark Knight Rises,” and it’s midnight opening on Friday, July 20, 2012 at the Century 16 Multiplex in Aurora, Colorado. 

Holmes stood in an open side doorway, wearing heavy body armor and helmet, back lit, light flooding into the theater, visible to an unsuspecting audience.

Jessica was there with her friend, Brent, when Holmes rolled a smoking hissing tear gas canister into the theater.  Then Holmes opened fire.  With his assault rifle and large magazine, his attack would last only 90 horrific seconds.

Jessica and Brent were in the middle of the theater when the smoke spread and they lay on the floor, hoping to escape harm.  Holmes shot her in the leg.  Jessica screamed.  Brent put pressure on her gaping wound.  Holmes shot Brent in the lower extremities.  Holmes shot Jessica again – this time in the head.  Jessica stopped screaming.  Holmes killed Jessica and 11 others, and injured another 58.  When Holmes’ magazine jammed, he surrendered unharmed to the police.

If we hadn’t lifted the ban on assault weapons and large ammunition magazines, Holmes might not have killed anyone or killed as many; Jessica might be alive.

Elected officials are complicit in these deaths because they have failed to contain these murderous assault rifles and these large ammunition magazines.

Some apologists suggest we need do nothing because Holmes would have found a way to commit this carnage no matter what legislative safeguard we had.  I prefer that Holmes and his kind have to manufacture unlawfully their own assault rifle and ammunition magazine.

The context of this violence is a society reeling from economic recession and war.  We openly seek truth through torture.  We’ll kill a citizen with drones without trying him.  Our young return from an uncertain war often dead or damaged.  This “war” on terror has lasted more than a decade.  That takes its toll.

We know the final destination of Jessica.  We must protect everyone else from weapons and magazines you don’t use to hunt or for target practice.  You use them only to kill – and we’ve had our fill of that.

Thursday, July 19, 2012


John Flannery with Russell Baker
When word got around that Russell Baker, who twice won the Pulitzer Prize for his writing, for commentary and then biography, was going to speak at St James Church in Lovettsville, neighbors reached for their book shelf copies of “Growing Up,” Baker’s memoir, hoping to get his autograph and to hear from the man who wrote how three strong women helped him “amount to something.”
Charles Kaiser, an author, former New York Times reporter, Wall St. Journal columnist, and close friend, said of Russell, “he’s a national treasure.” 
Tom Bullock, President of the Lovettsville Historical Society, said he wished “the media today would allow people to be creative and write a good and thorough story.”
After serving as a police reporter for the Baltimore Sun, Russell joined the Washington Bureau of the New York Times to cover Washington, the White House and presidential politics.  His by-line appeared over more than 4,000 “Observer” columns (three a week for the New York Times) with his signature brand of humor (one collection of columns is titled, “No Cause for Panic.”)  Russell wrote marvelous “treatments” of noteworthy books (for the New York Review of Books) (refusing to say they were “reviews” -- as he thought it unseemly to dispose critically of an author’s long hard work at writing in a 4,000-word review) ( “Looking Back – Heroes, Rascals, and Other Icons of the American Imagination,” contains several of his outstanding “reviews”).  Not to be outdone by Benjamin Franklin, there is a “Poor Russell’s Almanac” with many marvelous observations such as, “The dirty work at political conventions is almost always done in the grim hours between midnight and dawn.  Hangmen and politicians work best when the human spirit is at its lowest ebb.” 
A close friend, Art Buchwald, wrote a tongue-in-cheek blurb for one of Russell’s books: “I refuse to say a nice thing about Russ Baker.  I have no intention of helping him get ahead in this world.”
Baker once described Murray Kempton as a “writer” and “not a plain reporter,” and a “man learned in history, acrobatic in grammar, skilled in irony and willing to use it” and able to “laugh at the pretensions of his own trade.”  Baker could have been writing about himself although Kaiser said, “the difference is you always knew what Baker meant.”
Russell got to comment on British mores as the host of Masterpiece Theater (succeeding Alistair Cook); he confesses, however, that he thought some friend was playing a joke when he was first invited to take on the assignment.
The golden thread weaving through what Russell has said and done is an elegant and honest telling of the stories that make a life.
In his memoir, “Growing Up,” Russell describes how his mother was after him to decide what he’d become. 
When he was 11, he showed her a composition he’d written and she said, “maybe you could be a writer?” 
Russell recalled: “I clasped the idea to my heart.  I had never met a writer, had shown no previous urge to write, and hadn’t a notion how to become a writer, but I loved stories and thought that making up stories must surely be almost as much fun as reading them.  Best of all, though, and what really gladdened my heart, was the ease of the writer’s life.  Writers did not have to trudge through the town peddling from canvas bags, defending themselves against angry dogs, being rejected by surly strangers.  Writers did not have to ring doorbells.  So far as I could make out, what writers did couldn’t even be classified as work.”
Ed Spannaus, the Secretary of the Lovettsville Historical Society, introduced Russell to the 150 people at St. James Church.  Russell explained how, when he left Morrisonville for Lovettsville, “it was like going to Washington, DC.”  When a cloud of dust was spotted, you could hear the screen doors slamming, he said, everyone gawking, to see the passing car.  There was no electricity.  No running water.  You went to sleep when it was dark.  You arose when it was light.
Russell read from his writings in a soft, clear voice, standing upright, tall, his hair falling light on his forehead, his arms on either side of the rostrum, animated, not so much reading it seemed as talking while remembering fresh once again, like it was yesterday, what it had been like to live a few miles south of Lovettsville when his mother insisted he had to make something of himself. 
He signed copies of his memoirs after his talk.
You just know his mother always knew Russell would make something of himself.

Thursday, July 12, 2012


U.S. Attorney Paul Curran swearing in Mr. Flannery
When I was a kid in the South Bronx, if the cop on the beat was your uncle, you wouldn’t have spoken to him.  That may seem harsh to some despite the fact that you have a right to remain silent.  But the fabric of a street culture is fragile and cautious.
When I was studying criminal law at Columbia, I spent years in the stacks (before Lexis) reading Supreme Court cases of corrupt law enforcement officials breaking into houses, putting taps on phones without court orders,  and tricking and coercing confessions without advising the Accused .
When I became a federal prosecutor and was confronted with the first phalanx of agents from the various federal law enforcement services, seeking to arrest, charge or indict someone, I was suspicious whether I could trust them.
I found, however, that there were exemplary public servants who struggled as much as I did to get it right, to follow the facts where they led, to guilt or exoneration.
In my days in what Main Justice in DC called the “sovereign district of New York, “ we accepted the constitutional rules elaborated upon by the Warren Supreme Court, protecting individual rights and liberties, as they were the righteous rules of the road.
In truth, I couldn’t believe I was being paid to chase bad guys while my friends sat at home broadening their posteriors watching phony cop shows while we got to do the real thing.
Sometime between my young career as a federal prosecutor and today we have lost our way.
The Chief Assistant prosecutor in the Southern District of New York, Sylvio J. Mollo, a legend, literally wrapped himself in the flag, at a corner of his office, the day I was sworn in by the U.S. Attorney, Paul Curran; pointing to the flag, he said that our client was mute, that when we stood up in court for the government, that winning a case meant getting it right, doing justice, what was right and fair.
There are good people in the system but not all are so good and the current system is compromising those who are good and upright with careless and corrupt practices that compromise a system that wasn’t perfect to begin with.
The worst thing about the state of our criminal justice system today is that the general public doesn’t get to know how it’s broken until they are in the system themselves – and they suffer it themselves.
We daily prosecute the innocent or charge them for more than they actually did and impose sentences that are disproportionate to whatever they did wrong – and prosecutors have fewer restraints, constitutional and otherwise, than when I cut my teeth as a prosecutor.
When you make a decision, do you want advocates exaggerating their positions, as arguably occurs in a system that favors zealous advocacy by all parties?
Can one fairly reach the truth when witnesses lie, especially those cooperating witnesses who seek to save themselves, and jail house snitches who claim to overhear things helpful to the government they may have never heard, and then there is the evidence that is withheld by prosecutors and investigators that proves or tends to prove the accused is innocent?
We know from DNA evidence that innocent people have been sentenced to death - though absolutely innocent.
Junk science permeates our court system.  One good example is eye witness identification that is of proven unreliability but we use it as if it’s trustworthy – even when studies and DNA have proven otherwise.  Fingerprinting is hardly as conclusive as CSI TV shows would mislead you to believe.  In your own experience, would you consider you were drunk because you could not walk on a straight line, heal, toe?  Do you really trust waving a pencil in front of your eyes to see how your eyes move can determine impairment?  We now use statistics to “predict” guilt under some statutes  (for predatory behavior) – although guilt is supposed to be “individual” and not amenable to calculations by statistical averages, medians, or standard deviations.
For those who are interested in hearing more about the flaws in our “system” of “justice,” I’m hosting a FREE discussion titled, “Injustice in America – the Raw Deal,” at the Balch Library, at 208 West Market Street, Leesburg on July 17, 2012, Tuesday, from 630 PM to 8 PM and, get this, in addition, Palio’s Ristorante Italiano, 2 West Market Street, just down the street, has offered a 20% discount on any food you might like to eat after the lecture (I’ll tell you how to get the discount at the lecture)(they serve until 10 PM).
We are squandering the rights that our forbears died to create and that generations fought to preserve; we must decide as a people how we may reassert our rights and liberties before they’re lost.

Tuesday, July 3, 2012


Flag waving (photo – J. Flannery)

We declared our independence of a foreign nation and succeeded because we were united.

But not as a confederation, as a re-constituted United States lest our revolution in 1776 be quickly overrun by foreign nation states taking advantage of a government lacking the resolve to resist foreign intervention and to provide for its citizens' general welfare.  Thus, we wrote a Constitution in 1787 that enumerated powers we thought a central government needed to execute on our behalf.

We fought a civil war among ourselves between factions favoring union under that constitution and nullifiers who wanted to go it on their own as separated states.  We haven't stopped having that fight.

This past week the United States Supreme Court decided that Congress has the power to insure that it's citizens have health care.  Virginia's Governor resents the federal government telling any State what to do, preferring instead that some of our friends and neighbors go without medical treatment and even die.

We didn't fight to form an independent nation to fail each other.

We didn't fight and kill each other in a civil war to reaffirm the character of our nation, as united, so that we could reverse field, and argue anew that the states should decide independently, separate from each other, what is best for the nation, thus dividing and weakening the nation once more, ironically advocated this go-round by the political party that originally fought and argued for union during our civil war.

We insist we are an "exceptional" nation but for most of my life, we have failed to take care of many of our sick and dying if they couldn't afford care.  We have been "exceptional" in that other nations have long provided for the health of their citizens while we have not.  We have Medicare if you are over 65.  We have health care for Veterans.  Same for our elected officials.  This health care program, the Affordable Care Act, was long overdue and the proof of this is how it has already given hope to young adults and saved lives and has such great potential to save many other lives including a parent, sibling or child you may know and love.

Chief Justice John Roberts has been roundly criticized by the state nullifiers for upholding the affordable care act's insistence that there be no freeloaders who get health care without participating or paying a penalty if they opt out.  But what Justice Roberts really did was say that Congress had the power under the constitution to make that call.

The Chief Justice affirmed the rule of law over whatever personal political bias some may have ascribed to him because of his nomination by a conservative Republican President.  The Chief Justice also restored some lost dignity to a Supreme Court seen as political in a past presidential campaign when it decided the election of our chief executive by a court decision and, in a separate decision, when the Supreme Court unleashed wealthy "fat cat" contributors to buy elections.

When upholding the Affordable Care Act, the Chief Justice did seek to limit congressional authority when invoking the commerce power.  Other Justices disagreed.  This judicial approach hearkens back to Chief Justice John Marshall in Marbury v. Madison where restraint in one decision strengthened the Court's hand ever afterwards.  It has empowered the Court to say what law is constitutional or not, a power you won't find stated anywhere in the Constitution, that a co-equal branch, the Supreme Court, has the last word on whether Congress wrote a law that was constitutional or not and why.

Justice Roberts may have sought to limit the power of Congress when it invokes the commerce clause in the future.  Judicial economy would have suggested he need only say why the Affordable Care Act was constitutional.  But it is refreshing to have a national dialogue about something that really matters for a change - the health of the nation and how our government may make a difference for the better.

Our nation has been hard pressed in recent years to show the advances in policy and practice that we insist are so peculiarly American, reflecting our independence in favor of freedom.

This Health Care Act and the judicial dialogue that sustained it advanced our nation's  promise to give hope by what we have accomplished, and hope that, if we remain united, resist the impulse to divide and separate, we can achieve so much as a nation in the name of our independence in favor of the freedom and well being of our own people and as a standard for how other nations treat their own.