Miles's blog

This blog is NOT about Tim Tebow or Peyton Manning.

I spent a few days in Orlando watching spring training baseball.  My brother has a house there and his son and daughter-in-law live nearby.  They bought these homes when the market was its most depressed, and they scored incredible deals.  

The baseball was fun, but very much different than watching a regular-season game.  The teams are not playing to win, only a few regulars played at all, and most of them not the entire game.  The teams change pitchers all the time, so by the end of the game the field is filled with minor leaguers, has-beens, and never-will-be’s.  During one game the Astros batted numbers 90, 91, and 95 in order.  

There were a few things I took away from watching spring training:

·        Can we please start the season?  I am already sick of watching games that don’t count between players who aren’t regulars in situations where neither team is trying to win and they will just settle for a tie.

·        Baseball players are big.  I knew this, but standing close to them one cannot help but be impressed with their size and strength.

·        But you don’t have to be big to play baseball.  Houston’s starting second baseman is Jose Altuve.  He is listed at 5’5”, but my brother swears he is 5’2”.  Before you laugh, he hit .380 in the minors last season, and 12 home runs altogether.  Ironically enough, he rarely walks.

·        The game is too great to ruin.  The commissioner and the owners in their never-ending search for the last possible penny to wring out of a great sport, have installed many new features (expanded playoffs, games on foreign soil, replay, World Series games ending after midnight) which sorely test my love for the sport.  And yet, when I sit in the stands everything good about the game (see, James Earl Jones in Field of Dreams) comes roaring back. 

·        People who think baseball is boring are missing the beauty of the game.  Most have not been properly trained to appreciate the game, and people confuse how baseball is played from the essence of the game.  Today’s game is often played boringly, but the game itself is rarely boring (only when the pitchers cannot throw strikes).  But no matter what you think of baseball, sitting in the shade on a sunny afternoon, eating shaved ice, while watching a baseball game unfold is the closest to heaven I will ever come. 

·        Children today have been raised to be selfish mercenaries.  They scream to get baseballs and autographs and express their entitlement to these rewards.  Almost none of them actually watch the game itself and they seem disinterested in what is taking place on the field.  The majesty of a home run, the excitement of a blazing fastball, and the beauty of a double play are meaningless to them as long as somebody gives them a ball.

·        That last is an outgrowth of the current culture of baseball, which is about “me” at all times.  Baseball fans these days are more concerned with the temperature of their beer than the ability of their teams.  They spend more time seeking out a vendor or standing in line at a concession stand than checking the scoreboard.  I am willing to bet that 75 percent of the people in the stands do not know the score in most stadiums.  Many, many people watch baseball only to keep track of their fantasy teams so they understand little about the playing of the game despite voluminous knowledge of statistics which have no context for them.  They go to work, I think, not to revel in the success of “their” Rockies, Diamondbacks or White Sox, but to crow about their fantasy team’s pitcher who threw eight shutout innings in a loss.

·        Keeping score is a sublime art, practiced by a few cultists like myself.  We are becoming more like people who wind watches or write letters.  Sure, ESPN sells an app for keeping score, you will never see me use it.  Seeing my scorebook in my handwriting is my hobby and is just as precious to me as the creations of those who hand-make jewelry or stain glass. 

·        Don’t underestimate the pleasures of good concessions.  The prices are outrageous, the lines frustrating, and the nutritional value nonexistent, but hotdogs, beer, ice cream, and shaved ice are gourmet food in a baseball stadium.

·        The prices have gotten egregious.  Over $30 for spring training, plus $7 to park.  Is there no end to what baby boomers will pay for entertainment?

I feel sorry for Norm Wolfinger.  I don’t know him personally, but right now he is perhaps the most put-upon man in America.  Norm is the State Attorney who has jurisdiction over the death of Trayvon Martin.  Martin, as most of you know, was killed by a local neighborhood watch volunteer, George Zimmerman, who claimed self-defense.  The local police chose not to jail Zimmerman and have turned the case over to Wolfinger’s office for a decision. 

Martin was African-American and 17 years old.  Zimmerman, 28, has alternately been described as white and Hispanic.  Zimmerman used a 9mm semi-automatic; Martin was carrying nothing more dangerous than a bag of Skittles and a can of iced tea.  I have not seen any description of the relative sizes of these individuals, nor any indication of whether Zimmerman was injured.  I assume not.  Much has been made of Zimmerman’s decision to follow Martin after the 911 dispatcher told him not to.  Many people see racial motivations on behalf of both Zimmerman, and the police department who chose not to arrest him.  I guess there have been questions along these lines before about that department.

Wolfinger now has to deal with college student protests, a Facebook movement, and the always-blustery Al Sharpton.  The State Attorney has made the intelligent and professional choice to take this to a grand jury. 

Whatever the grand jury decides will not end Wolfinger’s discomfort.  Should they choose to indict he will be forced to prosecute a case for which, apparently, a minimal amount of independent evidence exists, and which will be very difficult to plea bargain.  Should the grand jury choose not to indict, Wolfinger will be faced with calls that his presentation was flawed, either as a result of racism or incompetence, and I expect his employment will be questioned come election time.  (I think this is an elected position.  If not, his employment would be questioned immediately.)

I am sure the satellite trucks are parked on every available inch of land near his office, and media vultures have descended on him.  His public information officer is now feeling like he is facing a press tsunami, and probably members of his office are questioned on their way in and out of work.

I do not speak from experience.  I personally was never involved in a charging decision of this magnitude.  I was on the fringes of some pretty big cases, and even worked for some offices that faced some media scrutiny, but I never actually was involved in anything like this.  From seeing friends and colleagues of mine who were I can only say I feel for Mr. Wolfinger.

Self-defense cases are extremely tough to evaluate because the law turns on whether the suspect’s actions were “reasonable” under the circumstances.  In situations like this no witness can directly contradict Zimmerman.  Often circumstantial evidence can be shown to be contrary to a professed claim of self-defense, but DNA will not solve this one.  Any jury looking at this, grand or petit, will be forced to fill in some blanks.  Strike one for the government unless their circumstantial evidence is strong or Zimmerman’s statement is just plain full of shit.

Law school problems often use the iconic “reasonable man” to evaluate behavior, but such a man does not exist.  To each person evaluating the actions of another, the only “reasonable man” is himself or herself.  We can only think like ourselves, even trying the mental exercise of putting yourself in Zimmerman’s shoes.  How many of us can truly say another’s actions, while contrary to what we would have done, were reasonable?  As prosecutors we develope the skills to utilize not just our personal experiences but our knowledge of how others have acted in similar situations to develop a barometer of reasonableness, but even for those of us with experience, such a measure is hard to apply.  I have never faced down another person while holding a gun in my hand.  Can I truly know how I would react with my finger on the trigger and fear in my heart?  And yet, Wolfinger’s grand jurors will need to decide just that.

Finally, the law of self-defense is seriously misunderstood, even by the so-called “experts” I have seen on television.  Most of them seem to have little familiarity with the concepts involved, focusing in on Florida’s recently-passed law eliminating the requirement to “retreat to the wall” but failing to truly think through the entirety of the law.  Colorado has always had no requirement to retreat to the way.  The killer has the right to act based upon what he knew or believed, or what he reasonably should have known or believed, based upon the circumstances at the time of the killing act.  Just because Zimmerman could have used his weapon perhaps to facilitate his escape, does not mean he had to run.  If a reasonable man in his situation would have believed he was in imminent danger of death or serious bodily injury at the moment Zimmerman pulled the trigger, the law provides protection, even if another course was available.  Only if the reasonable man would have run rather than fired does Zimmerman fail to have the legal right to kill.

Finally, everything Zimmerman did prior to pulling the trigger is not necessarily relevant.  In other words, putting yourself, through a series of bad decisions, into a situation where you are now faced with imminent death or serious bodily injury, does not remove your right of self defense.  Otherwise, victims who stroll though bad neighborhoods with pocketfuls of visible bills could not defend themselves from a gang of robbers.  Zimmerman clearly made a lot of very bad decisions, the change of any one of which would have prevented this tragedy.  But if the grand jury is properly instructed, they will consider those decisions only in the context of whether Zimmerman’s decision to kill was reasonable.  Police shootings often have the same context.  Often the officer has put himself, advisedly or otherwise, into a situation where he or another person, faces a real risk of death.  His decision to kill is justified, even if his actions were unprofessional. 

This last point I believe will be lost on those who want to see Zimmerman face the music.  Don’t get me wrong, I am not saying Zimmerman should not be prosecuted.  I have no idea what the facts are, and I have trouble envisioning a scenario where Zimmerman reasonably believed killing was required.  I once faced a jury evaluating the same question.  Defense counsel posed the question in his closing argument.  “What was my client supposed to do?”  I presented the jury the option in my closing.

“If your answer to that question is ‘kill’ then let him go.  If you believe that what he was supposed to do was kill the victim then let him walk out that door.  But if you think that a reasonable person would not have pulled the trigger, then find him guilty.”  

I suggest Wolfinger pose the question similarly.

Watching a lot of basketball this weekend has required me to see way too many commercials. So I have seen former dancer Amanda Schull (Center Stage) loving her shamrock shake and two guys dancing in the stands, and all kinds of Dennis Haysbert.  I was shocked, however, to see DirecTV using Charlie Sheen.  I mean really, they think the best way to get people to switch to satellite is to use commercials with Charlie Sheen?  This guy is the poster boy for proof that too much fame, fortune and success can turn people into someone you couldn’t possibly like.  And then a few commercials later, there was Charlie again, partying on behalf of Fiat.

You might think Charlie only appeals to a certain frat boy type who reveres partying to excess, and who aspires to the life of drinking, drugs and sex that Charlie has perfected.  But satellite TV is for homeowners and the Fiat Abarth starts at $22,000, so these commercials must be targeting an older demographic—I assume former frat boys who hanker for their degenerate youth while keeping track of their multiple tournament brackets as the wife demands they pay attention to their children until they go off to work at a job where they spend more time surfing the internet and flirting with support staff than actually doing what they are paid for.

Seeing Charlie back in the good graces of major corporations reminded me that the concept of “shame” is no longer part of American culture.  This was reinforced when CBS played a commercial for their upcoming Masters golf tournament highlighting Tiger Woods. 

Charlie and Tiger represent the epitome of qualities which should be reviled, not revered.  After what these two have done—and in the not-so-distant past—most people should be disgusted by them.  And yet, seemingly, neither seems to suffer from the kind of disapproval which was common in prior generations.  Hester Prynne’s adultery resulted in her being forced to wear a scarlett “A” as a sign of societal disapproval.  Her punishment was public humiliation.  Elliott Spitzer, on the other hand, was given his own show on CNN following the discovery of his adulterous behavior.

Mike and Mike the other morning were praising Kobe Bryant, nary was heard a discouraging word about his character.  Even accepting that he was never convicted of sexual assault, he admitted to, at a minimum, cheating on his wife with a young hotel hostess.  Apparently such behavior is not a factor in whether Mike Greenberg thinks you are a good guy. 

A felony conviction in and of itself does not seem to be an impediment to post-incarceration success.  Martha Stewart went right back to all her business success, while Michael Milken became a speaker heavily in demand.  Michael Vick jerseys abound in Philadelphia, and Robert Downey, Jr. is more popular than ever.  Lindsay Lohan appears on Saturday Night Live, although that might be because she is such a train wreck people want to see if she can complete a performance.

Rush Limbaugh maintains both his popularity and holier-than-thou bluster despite his admitted addiction to prescription drugs.  Bill Clinton’s memoirs, which I never read, were wildly popular, despite whatever he did with Monica Lewinsky (and Gennifer Flowers, Paula Jones, etc.).  I expect presidents of prior eras would have resigned in disgrace.  But disgrace is not part of the American lexicon anymore. 

Florida must be the most litigious state in the nation.  They have more TV commercials, newspaper ads, and billboards for lawyers than any place I have ever seen.   It is so bad here that even a former governor (Charlie Crist) appears in one of these tacky commercials.  

These lawyers get on TV with their most sincere faces, which I assume they practice in front of magnifying mirrors, and claim that they will work for you, the victim.  Their empathy is palpable while their competence is demonstrated by the number of law books visible behind them. Mostly they wear suits and ties, but there are the folksy lawyers who are more casual.  They speak in slow, measured tones, using words like “rights,” “justice,” and “hold them responsible.”  More lawyerly terms like “contingent fee,” “escrow account,” and “exorbitant costs” are never uttered.  One the website is “forthepeople.com.”  I mean, really.  They equate themselves with Thomas Jefferson and their fee agreement with the Declaration of Independence?

There is one firm dedicated to fighting for men’s rights in divorces, most others seems to be seeking the once-in-a-career tort where a some poor working schlub claims his debilitating knee problems are the result of the poorly-designed bus stairs he had to walk up and down for 40 years or that his myriad of health ailments are related to the now-defunct chemical plant which once sat on the land where his public housing development now stands, and not the alcohol, drugs, and cheetos he imbibed from the couch his entire life.  (See, Brockovich, Erin.) 

Lots of these firms seem to be comprised of related lawyers.  There’s Farah & Farah, Morgan & Morgan, and Harrell & Harrell.  The last seems to be almost like a cult.  Their commercial has two older attorneys, who seem to be a married couple, and a slew of younger lawyers, several also named Harrell.  I guess leaving the family business was not allowed.  It is as if the Lozows had a commercial.  (Can you imagine?)

These guys on the commercials say some of the most insipid things. One of them claims that “being a trial lawyer is all I ever wanted to be.”  Seriously!  That is either a lie or pathetic.  Is this guy telling me that when he was hanging around the neighborhood and other boys were saying how they wanted to be an astronaut, or a ballplayer, or a cop, that he told them he wanted to be a trial lawyer?  That would have gotten his ass kicked in my neighborhood.  I mean really, what kid even knows what a trial lawyer is (unless one of his parents is one), and who aspires at age eight to spend all their life groveling in front of an excessively-egoed narcissist.  Heck if you wanted to do that you would aspire to be an NBA coach.  (I am just kidding, a lot of my friends are judges, and some of them are not narcissists.)

I have no idea, of course, what kind of lawyers these advertisers are.  It is entirely possible that the best lawyers in Florida need to advertise to maintain their client base.  This was not my experience in Colorado.  One never saw Boogie Lewis or Craig Truman touting their experience.  Most of those who advertised extensively were not too impressive when they actually showed up on a criminal case.  They just wanted a quick deal.

I liked it better in the olden days when lawyers were prohibited from advertising.  Then the incompetent quiet ones had just as much of a chance to get clients as the incompetent loud ones.  Now we have lawyers peddling their services on television just like plumbers or used car salesmen.  How on earth can anyone needing a lawyer sort out which of these schlockmeisters will give them the best representation?  Heck, if I needed a lawyer to sue somebody I would have no idea who to go to and I worked in the field for 30 years.  I have a hard time believing that every client of a firm which pushes for clients with extensive advertising is treated with any more personal care than other consumers of businesses which extensively advertise.  Maybe I am wrong.  After all, they promise “justice” and who doesn’t want to believe in that?

I am not much of a basketball fan.  Well, actually I am not a basketball fan at all.  So I generally don’t participate in the annual national gambling event called March Madness.  I used to take part, but my chance of picking the winners in the tournament was no better than my chance of winning the lottery so I have in recent years stuck to buying Poweball tickets.  However, this year I think I will enter some contests.

Mostly this is because I have so much time on my hands.  I am going to have time to really research this.  I heard an expert on Mike and Mike this morning tout Marquette.  I don’t know a damn thing about Marquette, except they are a Jesuit school in Wisconsin and that Al McGuire once coached them to a national championship (in 1977 which was about when I stopped watching basketball).  But now I can research whether their tough defense will be enough to propel them past the winner of the BYU/Iona play-in game and then the winner of Colorado State and Murray State into the Sweet Sixteen.  I will be able to figure out if this past weekend’s losses by Kentucky, Syracuse and North Carolina were signs of declining performance or just speed bumps on the way to a national title.

The key to winning any contest of this kind is to discern the surprising upsets.   Will a number 12 seed like Harvard be able to spring a surprise on Vanderbilt?  How about something even more shocking, maybe number 13 Montana taking out Wisconsin, or even number 14 San Diego State beating Baylor?  Maybe even a startling prediction like number 15 Norfolk State beating second-seeded Missouri.  (I won’t pick a number 16 to beat a top seed since that has never happened.)

It is always the small and unknown schools which pull off these kinds of surprises.   Perhaps number 14 Belmont can win.  Belmont is the largest Christian University in Tennessee according to Wikipedia and is located in Nashville.  Apparently, the Bruins have won 14 straight games, triumphing over Florida Gulf Coast in the Atlantic Sun Conference tournament final.  They also whipped up on East Tennessee State and Jacksonville, so perhaps they are ready to wipe Georgetown out of the tournament.

Noel texted me to tell me that his two schools, Colorado and Vermont are both in the tournament.  He should enjoy this while it lasts.  Vermont has to beat Lamar for the right to be a number 16 seed and a chance to lose by 30 against North Carolina.  CU, on the other hand, arrives as the winner of the Pacific 10 Conference, a league so bad one ESPN commentator said it does not deserve its status as a major conference.

At any rate, I have found lots of contests online which are free.  Most of the networks have one, as does ESPN.  Yahoo Sports is offering $5 million for a perfect bracket. I plan to enter all of them. 

One of the nice things about retirement is all the time I have to waste of fruitless pursuits.  I think there is even free wifi at St. Augustine beach, so I can do all the necessary research while watching the waves and enjoying today’s 79 degree heat.  Please do not send me texts or e-mails telling me how jealous you are. I already know.

So I looked in the mirror today and saw some old guy looking back.  This was not a great surprise as the old guy has been intruding upon my self-indulgent gaze for years, but for some reason today he really got on my nerves.  I mean, that guy cannot be me.  I don’t have completely gray hair, my hair is brown.  And really, that guy has a lot less hair than I do.  

I know the solution to this problem.  I watch lots of sports on TV and I have seen lots of commercials starring New York icons Keith Hernandez and Walt Frazier for Just for Men.  The guy on the commercial is a total loser when he looks old and tries to hit on some blonde babe clearly a couple of decades younger.  “No play for Mr. Gray” intones Hernandez, possibly the finest fielding first baseman in baseball history, while Frazier, a member of the NBA Hall of Fame chuckles at the old man’s futility.  However, after using Just for Men, Mr. Gray is now Mr. Stud, and that same young blonde fairly mounts him at the end of the spot.  What guy would not want to have the radiated masculinity?

Of course, I need no blonde bimbos from bars, as I am with Susan, but heck, she deserves a break.  Why should she have to put up with some old guy, when she can be with a guy who young blondes throw themselves at?  

The reason this stuff is just for men, is that I guess it is quick and easy.  The new version is Just for Men Autostop, where you just comb it into your hair, wait 10 minutes and rinse it out.  According to the website this stuff is “foolproof” in that it automatically adjusts to your target color.  That is what I need, as I am not totally proficient at things like this.  Without their help I would probably end up with hair completely black, which would be unfavorable to my fair coloring.  This way, I can set it for just the shade of brown which favored my gentle curl.  (Well maybe, “gentle” is not a completely accurate description as it was more Brillo than Clairol.)

I am sure that once I have restored my youthful appearance for my hair, I will feel and act younger.  My knees will stop hurting every time I look at a set of stairs and I will have a renewed burst of energy.  No more 5 o’clock dinners and lights out at 9.  I will hit the clubs in New York with Meg, who will not be ashamed to be partying with her old man.  People will think I am just one of her cool friends as I Move Like Jagger until 4 a.m.

Maybe I can use Just for Men for Beards and Mustaches to grow some trendy facial hair.  Young men these days favor goatees or maybe just the unshaven for a week look.  I can turn my snow white, santa clause beard into a hip look.  This would spark a Renaissance for my long-lost youth.  Tattoos will be next.  I can see myself with some barbed wire around my bicep (which will grow exponentially after I hit the gym) and maybe some obscure Etruscan symbol across my back.

Like all young men I will need some piercings.  Ears are de rigeur but I doubt I will stop there.  To feel young again I need to act young.  

Retirement will be out of the question.  Although I will not return my pension, I will seek work in a trendy area.  Maybe work for some internet magazine or catch on with the music industry.  I am well familiar with popular music like “Forget You” by that fat guy from The Voice, and that popular country singer Lady Antebellum.

I can hardly wait to get my hair brown again.  I am going to grow it out like I did when I looked like Mr. Kotter.  Those were the good old days.

On the last day of this month, Judge Elizabeth Senterfitt will have to decide whether David Sparre should die.  There are lots of reasons to think that he should.  Twelve jurors who heard his murder trial have recommended that Sparre should be executed.  And I am willing to bet that if you polled the readers of the leadarticle in today’s Florida Times-Union, a majority would agree.

Sparre did not merely plan to meet a woman for sex and then kill her.  He stabbed poor Tiara Pool 89 times, finally slitting her throat when she stopped resisting.  Why did Sparre kill Tiara Pool?  For the sheer joy of it.  “I wanted to try something just to see how it felt,” he wrote in a letter intercepted by the authorities.  “I did it for the rush.  I enjoyed it and I hope to do it again.”

Shakes you up, doesn’t it?  All of us in prosecution have seen our share of psychopaths who kill for little or no motivation—from malevolent types like Francisco Martinez, for whom little Brandy DuVall represented a threat of punishment, to just plain evil Nathan Dunlap, whose plans to rob a Chuck E. Cheese’s included the murder of four employees—but rarely have we seen murderers who kill just for the sport, and who are brazen or crazy enough to brag about it and announce their intentions to do it again.  That a human being could be this twisted and barbarous is chilling. 

 

Sparre had the poor sense to commit this murder in Florida which actually carries out the death penalty.  Of course, he will sit on death row for a decade or more while the legal maneuvering to save his worthless life makes its way through the courts.  I have no doubt tons of paper will be submitted claiming this or that aspect of a sad life led to his unfortunate condition and that executing him is unnecessary and just as wrongful as his act of murder.  Sparre, by the way is 20 years old.  Do you think the courts will be forced to listen to drivel about young, unformed brains being incapable of fully appreciating the severity of stabbing someone 89 times?

Life without parole is not the same.  People kill in prison, both other inmates and guards.  Sometimes they escape.  Sometimes they get pardoned.  Is there any circumstance in which you think this guy should ever see the light of day?  Can anyone claim he can be rehabilitated?  The kind of mentality that kills for fun can never be changed.  He is hard-wired to be dangerous.  Society need to execute him in its own defense.  As long as he lives he is a risk to others around him.

Had this happened in many states, including perhaps in Colorado, the prosecution would not or could not have sought the death penalty.  For most prosecution offices the extreme expense and demand on resources of a death penalty case, coupled with the unsure result, rules out any attempt to seek execution.  Having talked to many prosecutors of death penalty cases, most say they want to never have another one.  The strategy of the defense bar to make a death verdict as costly as possible as a deterrent to its use has been spectacularly successful.  It’s just not worth it, most D.A.’s think.  For any jurisdiction outside a metropolitan area, the mere dollar cost makes the death penalty a practical impossibility, but even for major offices, committing the resources it takes in both time and dollars, has meant that for most murders, a discussion of the death penalty never takes place, even at a preliminary level.  

Of course, the potential of facing a death penalty has resulted in some murderers pleading guilty and agreeing to a life sentence, sparing everyone the trauma of a trial.  But when you read about the David Sparres of the world it gives you pause.