JULY 2020

JULY   2020
Everything Old Is New Again!


Friday, November 30, 2012


“We have the greatest opportunity the world has ever seen, as long as we remain honest -- which will be as long as we can keep the attention of our people alive. If they once become inattentive to public affairs, you and I, and Congress and Assemblies, judges and governors would all become wolves.”
Thomas Jefferson
I know few things with certainty, but first among the truths I do know is that greed makes you stupid. And as Oklahoma's path reached the middle of the twentieth century, the ruling class had become so insatiable and idiotic they used the “dangerous cliff” warning signs as a ramp to get more altitude. And as they gained height, their lies even took flight.. Some would even believe that all would have been well if the old man had just not gotten sick. Except - old men always get sick. And if the judges hadn't been so venal – but greed is a trait shared by all predators, and common to humans. And if the prosecutors just hadn't pursued the old man so diligently - but there is a Javert driving the soul of every prosecutor in the world. It is their nature.
But the first fault belongs to the citizens of Oklahoma, who treated their public servants with suspicion and disrespect. Law makers in the state legislature met only once every other year, and received a stipend of only $15 a day while in session. And to discourage them from being too dutiful, that generous endowment expired after 75 days, when it was reduced to a mere $3 a day. It was a Tea Party small-government paradise, in which even the veteran justices of the state Supreme Court did not receive a pension. And at least one state employee, Nelson Smith Corn, starting thinking about his retirement at the age of fifty, just when he was elected to the Oklahoma State Supreme Court.
Nelson Corn had been born on March 25, 1884 in tiny Tahlequah, Oklahoma, which was also capital of the Cherokee Nation. He became a lawyer, married at twenty, and began raising three sons and one daughter. And beginning in 1931, the Great Depression had squeezed his hard-fought for middle class world between a collapsed economy and a decade of unrelenting drought. Over the next decade half a million Okies abandoned the Dust Bowl state. So the 50 year old was receptive in 1934, when, almost immediately after taking his oath as a justice of the State Supreme Court, he was approached by senior Justice Otto “O.A.” Cargill, one time mayor of Oklahoma City, a Baptist deacon and a religious author, with a way to hold onto at least the veneer of his pride.
The deal Justice Cargill offered seemed almost too good to be true for a poorly paid Justice. In return for voting as the “sixth man” (meaning, not the deciding vote) on any cases as requested, Nelson Corn would receive a small weekly stipend and during election years, campaign funds. And for the next 23 years, week after week, and bribe after bribe, Justice Nelson Corn took the money, eventually even dropping the requirement that his vote not be the deciding one. It was part of a system of graft which permeated every political fiber in Oklahoma.
Corn disguised his bribes by using the cash to buy cashiers checks, which he then left in a safety deposit box until he needed the money to make home repairs or pay for his childrens' education. Like the crooked politicians who played the same game in the legislature, Justice Corn was a most pedestrian criminal, except he and his fellow conspirators were the arbitrators of justices in the state of Oklahoma. And eventually it was inevitable that a man like Nelson Corn would encounter a real crook like Hugh Carroll.
Carroll had been president of the Security National Bank of Norman, Oklahoma in December of 1930, when he formed Selected Investments Corporation and its sister trust fund. He and his wife Julia,owned 85% of the stock in both. By 1950 Selected was a successful investment company and had investor assets of almost $29 million. But in reality, Hugh Carroll had used the corporation as a personal piggy bank, with inflated salaries to himself, family and friends, and excessive bonuses, and loans that were never paid back. In 1956 this financial house of cards was threatened when the Oklahoma Tax Commission ruled that Selected owed almost $500,000 in back taxes because the trust fund, set up to be tax exempt, did not meet the requirements. A district court had agreed, and Selected had appealed, which is how the case ended up on the docket of the State Supreme Court, and how Carroll came to have a conversation with his old friend, Justice Corn
Carroll told his friend that if the the ruling stood the firm would go bankrupt. Justice Corn asked how much it was worth to avoid that, and Carroll offered $150,000. Corn then offered fellow Justices Napoleon "Nap" Bonaparte Johnson and Earl Welch $7,500 apiece for deciding the case in Selected's favor. They both agreed. The godfather of the system, Justice Cargill, received $2,500 for his part. On March 2, 1957, the day before the court's decision was to be announced, Justice Corn drove to Carroll's office. “He got in my car and put $25, 000 in my glove compartment,” Corn said. “I drove around a block or two and then let him out.” Corn then went to Johnson's office and gave him his cut, asking him to count it. “He counted it out. That's all there was to it. I stood there while he counted it.” Corn repeated this with Justice Welch, and Cargill. The next day, by a vote of 6 to 3, the Supreme Court overturned the district court, and Selected continued defrauding its investors. Ten days later Carroll delivered the remaining $125,000 to Justice Corn. And the deal was done.
Having come so close to capture, it was Carroll's nature to be emboldened to expand his schemes, and just a year later, and in spectacular fashion, both Selected Investments and Selected Trust Company collapsed under $40 million in debts, and sought the protections of chapter ten bankruptcy. Justice Corn felt so sorry for Carroll, that he returned $35,000 of his bribe. But the bankruptcy court found “gross misconduct...for the personal benefit of Carroll and other Selected Officers.” In March of 1959 the Federal Securities and Exchange Commission convicted Hugh Carroll of obtaining money under false pretenses. And once the prosecutors smelled blood in the water, they followed it, slowly and methodically, until, in the early spring of 1964 they indicted Hugh Carroll and his wife, their son-in-law and Selected's chief salesman, all for tax evasion and perjury. On April 6, Carroll again appeared before a Federal grand jury, this time with partial immunity, and spilled his guts. Justice Corn was quickly indicted as well as Justices Johnson, Welch and Cargill.
The grand jury had also investigated the legislature, but failed to indict any politicians. However their final public report was blunt. “In many segments of our business community the payment of money to secure the passage or defeat of legislation apparently has come to be considered a normal business expense.” Republican Governor Harry Bellmon, presaging more recent Supreme Court rulings, called the report irresponsible. But 71 year old Democratic Chief Justice Harry Halley, who had not been indicted, chose this moment to retire. In July, 80 year old still serving Justice Nelson Corn, pleaded 'nolo contendere' (not contested) to similar charges as his old friend Carroll was fighting.
It was while serving his 18 month sentence in the prison ward of a Federal hospital in Springfield, Missouri, on December 9, 1964,  that the old man gave into his guilty conscious and pressure and dictated a “voluntary” statement of the entire Selected Investments affair. Federal prosecutors already knew that on 19 separate occasions Corn had paid debts in cash, immediately after visiting his safety deposit box. Now they had proof of where the money in that box had come from. And still the conspirators expected to keep their secret. The powerful three term Democratic Speaker of the Oklahoma House, J.D. “King” McCarthy, convened an investigation into “rumors” of a scandal on the state Supreme Court.  And despite the released grand jury report, and the indictment of four Justices, his investigators were unable to find any evidence of wrong doing. Which is when one of the few Republicans in the House called for a point of order and read out the details of Justice Corn's confession. Speaker McCarthy admitted later he felt like a telephone pole had just been shoved up his rear end.
Justice Welch resigned just before he was impeached. But even while the impeachment trial of Justice “Nap” Johnson was being held in the legislature, the conspirators still assumed they could contain the scandal. The now 81 year old Corn was called as a witness, and grilled by the conspirators. The turning point may have come when Republican Senator Dewey Bartlett demanded of Justice Corn, “Why didn't you divide up the $150,000 equally?”. Corn paused before replying, “I didn't quite get the question”, and the crooks in the chamber exploded in laughter.
After 3 hours of closed door debate, the legislators public vote to impeach Justice Nelson Corn was 90 to 5, and 88 – 8 against Johnson. And then the prosecutors moved in to dispose of the wreckage. Justice Cargill was sentenced to five years for perjury. Justice Earl Welch was sentenced to three years for tax evasion and perjury. Hugh Carroll, and his wife were convicted of 108 counts of fraud. At the next election, Speaker J.D. McCarthy was defeated, appropriately enough, by an undertaker. He even did six months of a 3 year sentence for tax fraud. But, on leaving jail, he could still boast, “I got a cow herd, but they convicted me for stealing a calf.”
In April of 1965 the Oklahoma legislature created a special court to remove corrupt judges. But that May the voters rejected a one penny sales tax for new roads and building construction. They were still trying to run government on the cheap. At least, in 1968, the legislature became an annual affair, which it remains. By then former Justice Nelson Smith Corn had died in his Oklahoma City home, at the age of 83, disgraced, and still a public pariah, barely mentioned in Oklahoma history. 
“Let no young man choosing the law for a calling for a moment yield to the popular belief -- resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.”
Abraham Lincoln
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Wednesday, November 28, 2012


I used to think I was pretty smart. Well, I figured I was at least in the upper fifty percent of the population as far as intelligence goes. Part of that, I know was a function of youth, when I didn't yet know what I didn't know. But age has brought humility, and more knowledge, such as the recent discovery of the world's first filling. The owner of this cracked left canine was a 24 to 30 year old man living in southeastern Europe 6,500 years ago. This poor neolithic denticle sufferer must have been in agony. Then some shaman pressed beeswax into the crack in his tooth's enamel (above), and the pain ceased. And the filling lasted 6,500 years, until an Italian scientist noticed it under a microscope. Obviously this stone age dentist was not using the generic version of beeswax.
Anyway, that got me to thinking about two other things. First - beeswax seems have been the stone age gaffer tape. Ancient humans also used beeswax to hold their arrow heads to their arrows. Maybe we should re-label the Stone Age. But, secondly, according to South African archaeologists, other neolithic hungry humans with sticks well on their way to being evolutionary dead ends, improved their odds of finding dinner by using chemical warfare. We know this because of the little sharp sticks recently found in a cave the humans occupied. They are identical to the sticks still used by the San people of the Kalahari desert, to apply poison to their arrows, poison made from a pest of the diamphidia beetle. Modern archaeologists have carbon dated these notched sticks to 44,000 years ago. Now, how did the ancient shaman figure this one out?
First they had to notice the diamphidia (above) out of the thousands of other bugs crawling around them, and then they had to notice the even smaller carabid Lebistina beetle, which preys on the diamphidia beetle while both are in the larval stage. Evidently, during the beeswax age, etymologists were as important as computer techs are today – an analogy which got me to thinking about the computer techs who failed to get my wireless working between our office and my wife's lap top in the kitchen. Are modern computer techs that much dumber than ancient shaman?
It is hard to imagine an ancient shaman claiming to produce a magic potion which would bring down a gazelle, but didn't. In the hand to mouth existence of hunter-gatherers; one ineffective spell would be grounds for termination. Those that survived must have been pretty savvy. Except – I firmly believe that people have not changed in at least 10,000 years. We have not acquired any original emotional responses to stimuli, and considering the Republican economic proposals, we have clearly not gotten smarter. This means that there must have been as high a percentage of doofus shaman 44,000 years ago as there are doofus computer techs today. And that large percentage of doofuses would explain why it has taken us 10,000 years to get from the invention of agriculture to Birdseye Frozen Peas. The idea of very cold peas took that long to occur to somebody? Individually we may occasionally be geniuses, But collectively, most of the time, we just aren't that smart.
Part of the limit to human progress has to do with the combination of talent and available technologies. Can you imagine, before numbers were invented about 35,000 years ago, how many Albert Eisensteins must have been lousy shamans? And how sad to be born into a 21st century advanced society, with the skills needed to be a good shaman. Is that even listed on any of the career placement exams anymore?
Of course, any modern shaman could still have a very successful career in televised religion. But would it be of any comfort to know you have a talent, but were born 44,000 years too late to reach your full potential?   What became of all those born in the 14th century with the talents required to be a really good electrical engineer?
Another part of what is holding us back is that most of us follow the rules, we do things the way they have always been done, because most of the time that is what works. But some don't follow the rules, and I think I may have figured out why they do that.  I call it my “pigeons on a wire” theory. Ever notice them on a telephone line, usually in a tight line, and close together. Pigeons group that way mostly because of hawks. A hawk, looking for their dinner needs to isolate an individual pigeon. And a flock, even one sitting on a line, does not offer an individual target. So the hawk swoops, hoping to startle the pigeons into scattering, where they can be isolated. And that is why pigeons on a wire group together – to make it harder for the hawks.
But look again at the pigeons on the wire. No matter how many there are, a couple are always sitting away from the main flock. Now why are they doing that? Since they are making it easier for the hawks, these “loners” are usually evolutionary dead ends, a gift to hungry hawks with chicks. But, what if some human shows up with a spear or a gun? Will this human aim at the isolated pigeons, or at the flock? If the human shoots at the flock, and misses the one he is aiming at, he might hit another. So the isolated pigeons have an advantage in the unlikely event of a hungry human showing up with a taste for squab.
I suspect this is how personality became a factor in evolution. Being a loner myself, I like this theory. Perhaps you have your own, which displays the evolutionary advantages of someone with your personality. That would be a very human way of looking at the world. Albert Eisenstein, it is said, came up with the idea for relativity in physics, while riding on a street car in Vienna. How many hundreds of thousands of passengers had ridden those same street cars and not come up with that insight, just because they did not know enough about physics? Right there, on a telephone wire or a Viennese street car, is evolution explained. Very unlikely does not mean impossible. Given enough time, in fact, very unlikely means inevitable.
We know from the bones in the ground that humans evolved about 2 million years ago. And, it seems, it took us 1, 935,000 years to figure out beeswax would make a good tooth filling. And it took us 1,966,000 years to figure out that grounding up a particular beetle would help bring home a fresh gazelle for dinner.And, it seems, it took us 2 million years to figure out that gravity bends space and time  Does that sound unlikely to you? Because, as a loner, I don't find it that unusual at all. And I just ain't that smart.
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Sunday, November 25, 2012


I don't think anybody had any doubts that the court case of Fletcher v Peck was a “set-up”, a fixed game, a legal farce intended to provide a justification to pick the tax payers' pocket. If you are feeling sympathetic towards Chief Justice John Marshall, you can compare it to making sausages. It you are not feeling so generous, you might compare it to slaughtering the hog. But which ever analogy you are drawn to, the story has no happy ending for the pig.
The story goes (and it is fiction), that on May 14, 1803, 75 year old John Peck sold to 43 year old Robert Fletcher 15,000 acres of Yazoo land around the Tombigby River, in exchange for $3,000. Fletcher, according to the story, was concerned about receiving a clear title to his purchase, because in 1796 the state of Georgia had repudiated the original 1795 sale, passing “The Rescinding Act”. So, in order to reassure him, Peck had included in the deed of transfer, the following addendum; “The title to the premises as conveyed by the state of Georgia (in 1795)...has been in no way constitutionally or legally impaired by virtue of any subsequent act of any subsequent legislature of the...state of Georgia.”
The addendum was important because of the 1603 English case of Chandler v Lopus, which established the legal doctrine of Caveat Emptor, or buyer beware. Without a written contract stating the stone was magical, the buyer had no legal reason to believe it was magical, no matter what the seller might promise in his sales pitch. Well, now Peck had guaranteed in writing that the 1796 Rescinding Act did not apply, even though Georgia had returned the money and in 1802 had resold the Yazoo Swamp-Land to the Government of the United States for $1,400,000. Well, discovering that was not the case (so the story went), Fletcher sued Peck to get his money back.
Because Fletcher was a resident of New Hampshire and Peck resided in Massachusetts, the case moved directly into the federal court system – what a lucky break that was. Additionally it was heard at the circuit court level by the cranky, craggy 74 year old New Englander, William Cushing, who was also a Supreme – another lucky break. In fact, President Washington had nominated Cushing to be Chief Justice - not his first choice, but at least his second - and the Senate had approved. But Cushing had turned them both down, apparently because Washington had not asked before nominating him. Like I said - he was a cranky old man. Cushing was also a strict law and order judge, and it seems likely he had no doubt about the purpose of this set-up case. He did his part, deciding the case for Peck, which allowed Fletcher to appeal to the Supreme Court.
And it is now that the final character in our farce, John Marshal, steps on the stage. He was a cousin to Thomas Jefferson, and a close friend to George Washington. As a last minute appointment as Chief Justice, Marshall became the turd that outgoing President John Adams left behind on the high court for incoming President Thomas Jefferson. And the way the new Chief Justice chose to stink up Jefferson's presidency, showed that the Sage of Monticello had met his match. When another last minute Federalist appointee William Maybury complained that new President Jefferson's Secretary of State had not delivered his appointment as a new Justice of the Peace for the District of Columbia, Marshal had guided the Supremes into finding that, yes, legally the appointment should have been delivered, but then again the law establishing the new office violated Article III of the Constitution, so it did not count.
The decision left Jefferson fuming. On the one hand he was thrilled because a Federalist would not become a new JP for the district. But on the other hand, here were five Federalist judges daring to tell him how to interpret the constitution – and Jefferson never liked admiting that anybody was as smart as he was, let alone five Federalists. But by denying Maybury the post, Marshall had left Jefferson with no good reason to complain. The decision proved that Marshall was a far better politician than Jefferson, which made Jefferson even more unhappy.
When the case of Fletcher v Peck reached the high court in March of 1806, Marshall decided to drag the case out, probably to give him time to build an unanimous decision. He decided that the arguments made by Peck's team of lawyers had been “incorrect”, and so the case was “continued by consent”,  held over for the next term, to be re-argued in October of 1807. And even then, Marshall did not issue the final ruling until March 16, 1810. But at least when it was finally released, it was unanimous. And it had to be that, because for the first time ever, the Supreme Court was declaring a state's law violated an article of the Federal Constitution – in this case, section 10 of Article One.
As usual, Marshall wrote the court's opinion. He acknowledged that the actions of the 1795 Georgia legislature were reprehensible. However, he reasoned, “The grant, when issued, conveyed an estate...(and) This estate was transferable; and those who purchased parts of it were not stained by that guilt which infected the original transaction.” Thus was born the legal fiction of the “innocent third party” in the Yazoo land fraud. The innocent parties in this case, were the ones who had bribed the legislature. Marshall argued that if a concealed defect in a contract could be held against the victim of that concealment, then “All titles would be insecure”. That might be true in the abstract, but referring to the members of the New England Mississippi Company as “innocent” was almost as much a legal fiction as insisting that only written guarantees protected buyers in an age when only 3% of the population could read or write.
Oddly, the only member of the court to disagree with Marshall to any degree at all, was Jefferson's only appointee on the court to this point in time, William Johnson, from South Carolina. And his only objection was that he thought the Indians had a better claim to the land than did the state of Georgia. Still, he managed, at the end of his argument, to state the obvious. “I have been very unwilling to proceed to the decision of this cause at all,” he wrote, because, “It appears to me to bear strong evidence, upon the face of it, of being a mere feigned case.” But having stated that, Johnson then folded his tent and concurred with Marshall's decision. And so the court had decided in favor of the New England Mississippi Company and all the other speculators in the Yazoo land sales.
The cost of that decision became clear in 1814, when the Federal government reached a settlement with all the “innocent third parties” in the Yazoo land fraud. Having already paid Georgia in 1802 $4,300,000 for the land, (the modern equivalent of $63.5 million) they now paid the speculators in the various companies another $5 million for the same land (the modern equivalent of $50.5 million).
By comparison, it made Patrick Henry's scheme to cheat the tax payers of Georgia seem small potatoes. This would be far from the last time the Federal courts and the government colluded in assisting thieves in robbing the public. And such behavior, as you have seen,  started with the very birth of our Republic.
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