Month: September 2017

War and Emergency Powers

War and Emergency Powers

The prospect of war abroad and insurrection at home are not thoughts we welcome. However, I’m not sure they can much longer be avoided.

 

Abroad North Korea, ruled by a fat little despot with a bad haircut, has nuclear bombs, is developing missiles to deliver them and threatens to use the weapons against the United States and its allies.

 

In the Mid-East, Iran is also developing nuclear weapons and missiles and also repeatedly engages in provocations against United States forces in the region.

 

A miscalculation in either theatre could lead to a wider war.

 

At home, scenes from City streets like Saint Louis, Baltimore and Berkeley are cause for concern.   Police authorities, public institutions and even private homes of public officials are subjected to pre-planned violent attacks. The burning, looting and lawlessness resemble riots and insurrections more than protests.

 

It is worthwhile to pause a few moments and consider whether under the Constitution the powers of the Federal Government expand and individual rights shrink in time of war and insurrection?

 

It’s an important question because if there is a time when Constitutional restraints on the exercise of power by the Government are stretched to the outer limits it is in times of war. It is in times of national emergencies. Abraham Lincoln, like many of our leaders, had to ponder the ultimate question: “Is it possible to lose the nation,” he asked, “yet preserve the Constitution?”

 

The Framers of our Constitution were not fools. While they took pains to limit the powers of the federal government in order to avoid tyranny, they also knew there could be wars, rebellions, even insurrections and that if the government didn’t have the power to deal with such challenges, the country could be lost.

 

What are some of those powers?

 

Congress, as we know, has power to declare war by a simple majority vote of both houses. But what they also have the power to do is prepare the nation for war. They may pass Conscription laws, drafting private citizens to serve in the armed services. Congress may authorize the seizure of private property to aid in a war effort. And they may impose price controls as well as rationing of food, fuel and other materials.

 

Additionally, the Constitution guarantees the individual States a republican form of government and “protection against invasion.” And the Constitution empowers Congress to federalize militias and units of the National Guards to suppress insurrections that threaten republican forms of government and repel such invasions.

 

Congress also has the power under the Constitution to suspend the writ of Habeas Corpus in times of rebellion or invasion “or when the public safety requires it.” That has obvious implications for individual citizens detained by the government who wish to challenge the legality of their detention.

 

And While the Constitution has no express provision for the imposition of Marital Law, in fact it has been used numerous times in our history.

 

Additionally, by Executive order, the President may order the killing of American Citizens who wage war against the United States, both on foreign soil and actually within the jurisdictional borders of the United States. He may establish military tribunals to try and punish enemies of the United States. By Executive order and with the support of Congress, the President may establish internment camps for entire classes of citizens if it is deemed in the interest of National Security in times of war.

 

And lest there be any doubt about these powers, each of them has been used at some point in our history, and the Supreme Court has upheld the actions as Constitutional.

 

It is unknown if all those rulings would be the same to day, but if history teaches us anything it teaches us war is different, emergencies are different and what in peace time one believes would never happen can happen. And does happen.

 

 

 

 

 

 

The General, a poem by Phil Cline

The General, a poem by Phil Cline

My General

 

Up along the hill

On worn and weathered knees

He strived headlong, stubborn,

Leading us to our destiny.

 

Our Captain shouted No! to him,

Warning of shocks and shoals,

Of arrows, pins, shards and blades,

Of bent, broken flags and escutcheons.

 

And all us foolish boys

Who marked his words,

Respected his histories,

Who stepped from platform to train

 

And left our fair loves

Huddled down against the rain,

Who laughed cadence to each other

Loud, hearty and brave,

 

Only to be vanquished

On this foreign hill,

To lie red in the mud, to stretch crooked

Across these rocks in death and misery.

 

 

 

 

The Intercession, a short story by Phil Cline

The Intercession, a short story by Phil Cline

Intercession

 

Miles to the north another man was just arriving at the peak of the coastal mountain Range. He, like Jeff Davalos back at Dorn’s restaurant, also knew the identity of the man killed on Morro Rock. The victim was his brother.

 

The man was tired from the drive. He had been fast asleep at his apartment in Sacramento when the phone rang at four in the morning.

 

After the long drive, the ocean was a welcome sight. The crest presented a panoramic view of the entire coastline. From there the road began its descent toward Highway One, the Pacific Coast Highway. Keeping his eye on the winding mountain road, he hazarded a glance south. Morro Rock, emerging out of the ocean in the early morning sun, was visible to him even at that great distance,

 

Like Nick Easley, Wayne Caster was a lawyer. Unlike Nick he was a very ambitious and wealthy.

 

He knew his brother was dead. It had been Jeff Davalos who had called him. Jeff was an old acquaintance.   As a child Wayne, along with the rest of the family, part of the dust bowl migration from the Oklahoma, worked on the Davalos farm in the central valley. It was obvious during the call that Jeff had been drinking. He had handed the phone to his housekeeper, Maria, who explained to Wayne what she knew. She had a name of a police officer from the Morro Bay police department. Wayne had called the officer. Although the officer had been evasive about what had happened, the words, “possible homicide” did slip out. Wayne had gotten dressed, packed a bag, got in his car and now he was at the coast to see why his brother had died.

 

He had known this day was coming for a long time. Ever since the intercession.

 

In the 1950s, Wayne, his brother Andy, his sister Kathyrn, and the rest of their family lived in a small wooden house in the crossroads migrant town of Farmersville. A family of farm workers had originally occupied the house. They had abandoned the shack and followed the seasonal fruit picking on up the coast to Oregon.

 

His father had watched the house for 2 weeks after the farm worker family left. He had a plan. One day the house was picked up, balanced between two flat bed trailers and moved to an open dirt lot by their father and some of his mother’s brothers. No one ever said anything outside the family, but there was plenty of joking among his uncles about the Caster house being stolen property.

 

Purloined or not, the house sat on concrete blocks about a foot off the bare ground. There was no indoor plumbing, no running water. It had two bedrooms, a kitchen, and a living room. Their father and mother slept in one of the bedrooms; he and his older brother Andy, shared the other bedroom. His younger sister, Kathyrn, slept on a fold out couch in the living room.

 

When Andy, was twelve, he contracted the measles. In the Fifties it was a serious disease. It could scar and cripple and even kill. Large pink welts started first on his back and shoulder, spreading up his neck and on to his face where they became red and angry. He was miserable and demanding. And he and his mother, who could do nothing to make him comfortable, became combative.

 

They were at war from morning until night. He was insulting and demanding and she was cutting and pitiless. They fought over everything. Their words were harsh and unforgiving. But then, as the days passed with no respite from the sickness, Andy weakened. He became less combative. He became more compliant. And somehow that was scarier, more serious. But still the days were filled with plenty of noise from their arguments and his complaints. But he couldn’t keep it up.

 

At the end of the day as the dusk turned to darkness, silence and an uneasy peace finally, thankfully descended on the house.

 

And that is when his brother, Andy, normally, the most self-assured, the bravest of the family was at his weakest. His usual singular determination was always just below the surface during the day, However, when the darkness came, his brother whimpered and cried in his sleep, other times cowering down in his blankets, fully awake. He would whisper “they are here” and Wayne, would reluctantly look to where Andy pointed. He didn’t want to look. But when he did nothing was there.

 

“They are trying to steal something from me.”

 

“Huh, what? And what’s trying to get it?”

 

“Please stay over here.”

 

And Wayne would crawl in bed beside Andy, scared too, but not seeing anything at all at the place, the corner, where Andy’s eyes were focused. Wayne was kept to his own side of the bed. He didn’t want to touch his brother. He was also afraid of the red bumps and welts.

 

And then there were times Andy would scream out, like he was being stung and trying to fight off something.

 

That’s when his mother, so tired from lack of sleep at night and mentally warring with Andy during the day, would call their grandmother and knowing it was on the party line whisper, “Please come,” without saying more.

 

Wayne’s grandmother lived just up the street. She was a full-blooded Cherokee Indian. Or so people said. Wayne use to be skeptical, but the pictures he found of her as a young girl and which Wayne kept in a plastic box on the top shelf of his closet, seemed to verify her lineage. They showed a firm, stocky woman with a dark, ruddy complexion. She had stern, slanted, Mongolian eyes.

 

His grandmother maintained she was a devout Christian. She enthusiastically shouted her testimony in church on Sunday mornings and Wednesday nights. She quoted the Bible copiously, if a little inaccurately. None of that mattered since her beliefs and superstitions were of such variety that Wayne, looking back, wondered if her true religion was something other than Christianity.

 

The night before the intercession, Wayne’s mother had called. And thirty minutes later, their grandmother was walking through the front door, carrying bags and her Bible. She stayed the night, sitting next to Andy’s bed, holding a cool cloth to his forehead.

 

The next morning, she sat at the kitchen table as Wayne’s mother bustled around making coffee and cleaning the breakfast dishes.

 

“The Nightgoers want his days”, she quietly told his mother.

 

Neither knew Wayne was behind the door, listening

 

“You need to protect him from them. Only you can do it. I lost the power. It never lasts to my age.”

 

“I can’t.   It still scares me. I can’t move. I hear him whine and still I can’t move. I don’t want to see them again. I saw them when I was little. Never all of them, just shadows. I closed my eyes. I wouldn’t look. Your vision, yours’ to see. I never wanted the sight. I never wanted to look. I never wanted to see. I wouldn’t look; I hid under the covers and kept my eyes closed. I still want to hide.”

 

“It’s in you. Only you,” the grandmother said. Then she paused, thinking. “And one other besides. Among all the children. One other. You know this. One other. But, not yet. She’s not ready. I don’t think so anyway. But you need to do this. You know you can do this.”

 

“No. I’ve never seen like you. To me they are just shadows, mists, half there.I hate it. All of it. I won’t do it. I can’t.”

 

“You can. You never did as I tell you. Talk them verses I gave you. You have to sing the verses. The devils must obey. They have always obeyed when we are say the words.”

 

“Then let her do it.   She’s old enough. Teach her the words. I’m not going to do it.”

 

Out grandmother didn’t say anything for a few moments.

 

“Maybe you’re right. The power must be passed on to others in line. It could die out if we don’t give it over.”

 

“I was the wrong one. It shouldn’t have fallen to me. They scare me. I hate them. I don’t want to see. I saw. I saw plenty and I don’t want to see ever again.”

 

“Someone must. They are here now. In the next room. You son suffers. He is tortured. It happens. Men sometimes see what we see. They can’t handle it. We have to make them believe the things are gone. If we don’t they end up in the crazy house, the asylum. It falls to us. It’s our lot. Tonight they will be here to take more of his days. His life is already shortened.”

 

A movement caught Wayne’s eye. His sister, Kathryn was on the other side of the door, hiding and listening. He glared at her and stiffly shook his head and mouthed “NO!”   She just sneered her upper lip at him and pointed outside.

 

He quietly, stealthy, followed her. The conversation Wayne was eavesdropping on fell to a murmur as he moved father away and eventually through the screen door, it slamming shut behind him. He walked into the yard where his sister stood, a hand on her hip, still sneering.

 

“Sneaky. You sneak! I’m going to tell.” she called out.

 

He was about to punch her, but she laughed suddenly out loud and slapped him hard on the side of his head, knocking off his ball cap and fled. Wayne followed in hot pursuit.

 

Fast on her feet, she was easily fleeing out of his reach, but as he always did, he spotted something in her gate, her pace, something that told him which way she would veer off. He never figured out what it was that always told him such a thing about Kathryn, but he knew all right and he went that way, cutting the angle before she made her turn and was suddenly on her grabbing her waist and taking her to the ground, she flailing at him with both fists and him knowing which hand was coming first, He seized her wrists and held her and pinned her back on the ground. Straddling her, he continued holding her until the fight and the struggle went out of her.

 

“Stop it. Let me up. I’m telling.   What were you doing? What were they talking about? What’s a Nightgoer?”

 

So she had heard.

 

“Do you see those things?”, she asked, “I’ve never seen those things. Sarah says grandma is just a crazy old Indian coot and Mom’s crazy just like here. She said that’s what her mother said.”

 

“Just you never mind. Andy is sick. Real sick. He could die. He sees things. Things that aren’t there. Maybe grandma can help him.”

 

“She is crazy.”

 

“Huh?”

 

“She calls me names and tells me, if I let boys play with me I will get rot sickness and die with boils and sores all over me. And no one will come to my funeral because I will be so disgusting, so ugly, and they will leave me out for the owls and wolves to eat. She’s crazy.”

 

“Kathryn, you just make that shit up. Grandma always treated you special. You know that. She’s got something special in her mind about you. Besides you really are already ugly and disgusting.”

 

“Do you think Andy will die?” she asked, no longer interested in continuing a conversation where she was the disgusting subject.

 

“Are those things going to eat him? Do you see them? What are they?”

 

“I don’t see them. Sometimes Andy will start talking about them before he does see. I don’t know how, I just know he will and then he starts whispering and whimpering like when the dog’s alone and afraid locked in the chicken coop back of the lot.”

 

“I want to see them. Can I see them? Tonight. I will sneak in you guy’s room tonight.”

“No! We will get in trouble. Mom will yell at us. Besides, Andy doesn’t want anyone to know he’s scared of ‘em. He won’t talk about it during the day, but he dreads the nighttime. I know he does.”

 

“Okay”, she said, but Wayne could tell she did not mean it. He knew right then, she would come that night and there was nothing he could say to keep her from doing so. Kathryn did what she wanted to do. Always. And usually she managed to figure out how to escape punishment. Even though she was the youngest of the three, she was the smartest when it came to avoiding consequences. She seemed to know most times what other people would do, even grown ups. She didn’t care, she did exactly what she wanted.

 

That night he and his father went next door to watch the fights on Television. The neighbors were a Mexican family. They were also the first on the street to get a T.V.

 

The family was friendly, gracious and he and his Dad appreciated being asked over to watch the Tube. Wayne’s mother didn’t like “foreigners” as she called them and would always say No. But not his Dad. He liked the Friday Night Fights.

 

He would sit on the edge of a chair and flinch like he was taking the punches himself as he watched the blows of the Heavy Weights land to ribcage, forehead and sometimes below the belt. Between rounds, the Gillette commercials would play. Snappy jingles that stayed with you, bouncing around in your head. During the commercials the fathers would talk of work, cars, and sometimes, if the wife wasn’t within earshot, of women.

 

After the fights, Wayne would watch Disneyland with Margie, the 12-year-old girl. She was his girlfriend sometimes. Once, sitting on a blanket playing canasta, she undid the top of her swimsuit and let him see, furtively glancing around to make sure no one was watching. On fight night, she sat at the kitchen table as his father and him and the Mexican man and his wife watched the fights. Margie glanced at him often. While his Dad flinched and simulated a punch or two Wayne smiled back at her. He never forgot that little secret smile. It warmed him to this day like no other woman’s smile had ever warmed him.

 

After Disneyland was over, after Tinkerbelle made her last sprinkle of fairy dust from her magic wand, he and his father went back to their house. It was time for bed and Wayne went to the bedroom. Andy, his brother was there, quiet, lying facing the wall, the blanket lying lightly over his shoulders. Wayne couldn’t tell if he was asleep. He doubted he was.

 

As usual, Wayne faded off into a sleep, but came awake, knowing it was about to begin. He felt a presence next to him in the bed; it was Kathyrn lying there beside him, watching Andy. She had crawled into Wayne’s bed and under the covers, her back toward Wayne. He could feel the bare skin of her legs. She was watching Andy intensely.

 

Andy’s breathing had started getting deeper like he was trying to catch his breath and then his legs began moving under the bed, like he was running. He was sighing. Suddenly, he sat straight up and looked to the furthest corner of the room. Wayne noticed Kathryn was already looking at the same spot. He looked too. It was hidden in the shadows. He couldn’t tell if anything was there.

 

Kathryn slowly pushed the covers back and got off his bed and walked toward the corner with a small box of some kind in her hand. She was naked. Andy saw her and watched her, but didn’t say anything. She looked over at him once without expression and moved on to the corner.

 

She opened the box and Wayne could hear her mumbling, chanting singsong indistinguishable words. He couldn’t make out what they were.

 

Andy looked, his eyes wide, wild, the whites showing, flicking back and forth between Kathryn and the corner. She took something out of the box and held up her hand. He couldn’t make out what was in her hand. All the while, she was still mumbling words. The moonlight through the uncovered window was reflecting off her skin. It didn’t look like the skin of a little girl. More translucent. After a few moments she became still. Then all was quiet and the moments passed without any sound or movement.

 

Finally, Kathryn turned away from the corner walked back across the middle of the room and stood next to Andy’s bed.

 

She said quietly to Andy, “They are gone.”

 

“For good?”

 

“Gone. They took some from you.”

 

“What?”

 

“It’s okay. You have many. If it had gone on longer that would have been bad. Burning years. The next deep is many years. Some is gone and that’s too bad, but it’s not so many and you have many left. Many years left.”

 

“Okay.” He nodded. “It’s better. I feel smaller somehow. Less. But it’s not too bad. They won’t come back? You sure, they won’t be back?”

 

“I don’t think so; they are gone. They’ve gone hunting someone else.”

 

Kathryn’s eyes found Wayne’s. He was still sitting there on the side of the bed in his underwear. She looked at him, but the way she looked at him, he thought, was different. She was more serious now. She was more distant. She had changed. He looked at her body. He had seen her naked before, but even that was different now. Her body was that of a kid, but wasn’t. He knew then there would never be anymore times when they chased each other and wrestled and fought and made up for no other reason, than that they were kids. She didn’t smile. She didn’t frown. She just looked at him. Like there was regret there, a missing, already a longing for a happy innocence they just had that afternoon, but which for her was gone now. Gone forever.

 

She turned then and walked through the door and just as she crossed the threshold, Wayne saw his grandmother. He hadn’t realized the Grandma had been there in the hallway watching the whole time. She looked at him, smiled and turned to follow his sister into the other room. She was carrying Kathryn’s nightgown. She paused in the doorway for just a moment. Her head turned slightly as she looked back over her shoulder at Wayne before she gently closed the door. The latch clicked.

As he drove down the mountain and on toward the Pacific, Wayne was thinking of how, as a kid one looked across the endless time of youth, when the decades stretch out before you, time lost at the end, even years never seem too many. If you’re young, brief decades are forever. But now that Wayne was older and his brother was dead, those long years from the time when he was twelve until now had passed like a snap of one’s fingers. He thought of his brother, who he had been told might have had his life taken from him on Morro Rock, and he thought of the many miles and years they had traveled from the house where his sister Kathryn had interceded with whatever was tormenting him.

 

The last time he had seen Andy, he was composed but sad; he seemed to often stare elsewhere at something unseen. He wore a look of resignation. Like something was coming he wished to avoid; something inevitable he couldn’t stop. When he questioned Kathryn about it, she had shrugged her shoulders. She looked off in the distance, but Wayne had the feeling she was seeing something much closer. Something internal. Her only comment was, “Andy has been troubled for a long time now.”

 

He thought back to that night Kathryn had opened the mysterious little box and mumbled her incantation. And he remembered after it was over, what was said. Kathryn had used the words. She had said the words to Andy “not so many”.

 

Back when they were kids it didn’t seem like so much. But now his brother was dead. And yes, the years taken from him were not so much in the arc of a life. Unless you were at the end. Unless you had none left. Unless some evil had, at an appointed hour, come to take you. And all along you knew it would happen. What would you do then? If you knew?

 

 

 

Just Once, a poem by Phil Cline

Just Once, a poem by Phil Cline

Just Once

 

Just once watching the tides at play

A wave cut fiercely left to right,

Never topping nor breaking to white,

 

A green watery blade it was

Rising and rending the wind,

Scattering the screaming gulls,

 

Then calmed to mere swell,

It withdrew seaward

Never crashing to shore.

 

I did not know oceans could do that.

I do not know if it’s something

I need to fear.

 

 

The Leaving, A Short Story by Phil Cline

The Leaving, A Short Story by Phil Cline

A Leaving

 

When he called, the investigator from the District Attorney’s office gave Wayne directions to a small private mortuary. He found it just off the coastal highway in San Simeon. The investigator met him in the parking lot and led him to a side door. The investigator stayed outside as Wayne walked into the quiet little chapel.

 

The lights in the chapel were dim, as one would expect, an adjustment after the bright morning sunlight that greeted him as he had driven north from Morro Bay. There were no windows in the chapel, but rather little fake stained glass triangles high up on the walls with a Christmas bulb of some kind behind them. They gave the false impression of heavenly light passing through the walls.

 

Sitting at the front of the chapel, fit tightly between a podium and the empty seven rows of pews, a casket sat on an uncovered aluminum cart. The wheels of the cart were oversized. Wayne supposed one just didn’t usually notice them during funerals. He would be sitting some distance away and the casket would frequently covered with a drape or, maybe a flag. The casket was dark wood and clashed with the shiny metal of the cart. The metal and wood didn’t go together.

 

Wayne sat down in the middle of the front pew and looked around the cramped Chapel. His knees were almost touching the cart. He studied all the little incongruities in the room because he was reluctant to think about the implications of the body in the casket.

 

Looking at your brother’s casket brings to mind all the deaths that have gone before, the funerals, the “celebrations of life”, the parades past the caskets, the songs, the remembrance books, the flower arrangements, the family room to the side of the sanctuary behind the wispy curtains or the empty roped off front benches as the church fills up, then the twitching and waiting until there is a stir and the deceased’s family is lead down the aisle and directed to their seats by like a bride’s family by the ushers. They were the last to be seated in the honored place so that finally the burying ceremony could begin.

 

When Wayne was a kid, a funeral was a time to dress up in slacks and bow tie, and his one pair of dress shoes. They didn’t fit. Weddings and funerals he supposed were places where such dress was still expected of the poor. Even in a casual Friday society, there were still expectations concerning dress at weddings and funerals. And courts.

 

The last funeral he had attended with his brother Andy was his grandmother’s funeral. That was so many years ago now.

 

She died in1960 and her funeral had all the trappings of poor “Free Will” Baptists. The whole family and most of their neighbors were “Free Will” back then.

 

As the family arrived at the funeral home, they were directed to park their cars in a line along the driveway that circled around the back of the mortuary. The cars were lined up behind a long white Cadillac, stretched out like a station wagon. It was fancy. Later in life, one of his first clients had been a pimp. The first time Wayne saw the pimp’s car it reminded him of the white Cadillac, all the chrome, shining paint and curved darkened windows engraved with white curls at the edges.

 

There was a protocol for the order of the procession of cars though none of them knew to call it that back then. After the service and on the trip to the graveyard, his family would be allowed to ride in the great white car. There would be room only for immediate family, no more than four, one by the driver, and three in the back seat just ahead of the casket.

 

Driving the car behind the Cadillac would be his brother, Andy. Since Andy was the oldest, the plan was he would drive the family Chevrolet to the graveyard. It would be the car his mother and father as well as Wayne and his sister, Kathryn, would ride home in after the internment was complete. The White Cadillac would return to the mortuary empty of its burden and its passengers as soon as the casket was unloaded and wheeled to the gravesite.

 

On the way to the cemetery the luxurious white Cadillac would be the first in line. Next would come Andy in the family Chevrolet and after him the preacher’s car and his wife. Then Wayne’s uncles and their families would follow as the cars pulled away in a stately pace their lights on in the middle of the day. Other cars using the roads would pull to the side to allow the procession to pass out of respect for the grieving family.

 

Wayne mused it was something that would not happened today without some impatient traveller pulling out right through the procession and speeding ahead impatient to get on with their journey. Or someone would shout an obscenity or honk their horn. Little in life or death was devoid of vulgarity anymore.

 

Waiting for his grandmother’s funeral to begin, the family and guests all sat in their assigned places. As the clock ticked toward 10 a.m., the crowd of onlookers gradually became quieter. Upon arriving they had respectfully greeted each other and squeezed over to allow the next person to be seated. Courtesies were observed. A slight smile and a greeting could be made, but it was always discrete. There were no full smiles. It would not be fit for the serious occasion of burying the dead. But a handshake, a half smile, and then a saddened turning down at the corners of the mouth were appropriate.

 

The attendees took their seats and respectfully gazed forward toward the casket and flower arrangements even as they continued to quietly exchange pleasantries while they waited. They spoke quietly, but kept their eyes to the front where their concern and interest should lie.

 

The flowers at his Grandmother’s funeral were extensive and artfully arranged. Each of her children’s families, after they were seated, first examined the overall placements of the wreaths, the flower stands and the ribbons across the hearts made of roses, a particular favorite and the specialty of the local flower shop. Each family would first locate then consider the look and placement of the flower display they couldn’t afford, but had ordered and paid for anyway. None of the families had seen the flowers they purchased before arriving the day of the funeral so they were naturally curious. The flowers were way too expensive, but such things had to be done.

 

Wayne disapproved of the modern custom of announcing, “in lieu of flowers, donations are welcome” to this or that favorite non-profit or charity. The front of churches or funeral homes could, nowadays, be downright bare. And worse, the perfume of real flowers was lost, a perfume he remembered as being so overwhelming that it would cover the smell of the dead and, thankfully, the formaldehyde that emanated from the back rooms where the embalming took place and which seeped through the air conditioners into the carpet and fabric of every mortuary.

 

Back in those times, the smell of the dead was there when one arrived at the funeral home the evening after the death for “Visitation.” But as time passed leading to the day of burial, the delivery of flowers gradually subdued the odor and replaced it with the thick smell of lilacs and roses.

 

Wayne’s mother was the first child born of the family. Ostensibly, that was the reason they were first in the line for the funeral procession, and in the front of the viewing room during the funeral. His grandfather had passed a couple of years before so the place of honor was his mother’s.

 

Wayne knew there were other reasons. In his youth, as the first generation among the displaced Midwesterners began dying away, the old ways of Oklahoma, Texas, Arkansas, Missouri still had life. They had all come “Out West” in the great migration after the Depression of the 1930s. Traditions were brought with them. And funerals were something that folks in the South and Mid-West thought through.

 

Though a hardy people, the work they did in the factories and fields was arduous and dangerous. Most of them didn’t live long lives. Many died as infants, others as young men and women in their prime. There had been plenty of funerals to attend and, as one watched a friend or relative buried, you couldn’t help but think of how to arrange one’s own funeral. What hymns would they select, what clothes would they be dressed in, who would give the invocation, what Bible verses would be read?

 

And with families like Wayne’s, there would be notes somewhere, usually written out long hand. Education levels were primitive but the effort was made. The wishes of the deceased would be Block printed laboriously on pages of the cheap lined tablets. They would be set down in writing, months, sometimes years before.

 

His grandmother couldn’t read or write. But Wayne could. And over a period of time it became her habit when he visited her alone, to ask him to get out her tablet and pen. She repeatedly admonished him to remember where it was when she passed on. It was never “if”, it was always “when”. She would point him to the big rough walnut hutch and he would undo the small delicate hasp binding the glass doors, and reach up to the top shelf and withdraw the tablet. He would sit down with her at the Formica topped kitchen table. Wayne could still remember the quite pride he felt at being able to do this important task. As a little boy he felt adult serious as he bent over the table to print it all out long hand as she dictated how she wanted matters arranged for her funeral. Some times she made changes. Other times there were additions to be made.

 

The day she died the whole family had gone to her house. She had been taken away in the hearse, but the family members all stood around quietly talking or sat on the worn couches and chairs, the thin crocheted coverings dusty and smelling of mildew. Wayne went to the hutch and retrieved the tablet from where his grandmother kept it wrapped in a delicate lace doily. He handed it to his mother who, recognizing what it was, unwrapped it, flipped it open and began reading.

 

There would be no question that the instructions scrawled on the pages of the tablet in a child’s handwriting would be followed precisely and without variation. And it contained every detail; from the hymms to be played at the service to the dress in which she would be laid out and which she had wrapped in plastic and hung in the back of her bedroom closet. She had even envisioned where everyone would sit. She also dictated the coffin she wanted and the color of the lining and where she would be buried. In the front of the tablet was a carefully folded receipt for the burial plot she had purchased. She meant to spend eternity at rest in a grave next to Wayne’s grandpa under a tall and shady pine tree at the cemetery north of town.

 

The tablet was all there was. In that time and place, one didn’t write a will. There was little to pass along to survivors anyway. And certainly there was no need and no money for lawyers to contest or challenge a probate. The families worked it out themselves. Occasionally they fought over a few sentimental or prized possessions, which seldom had any intrinsic worth. Sometimes those battles caused resentment. And those resentments could last lifetimes. But it was worked out (or not), without the intervention of a remote justice system of little practical use to poor people.

 

That part hadn’t really changed much, thought Wayne.

 

But his grandmother’s burial notes did contain a few simple bequests. Her dishes were to go to Uncle Joe’s wife. He was the second oldest. Her ring, a simple gold band, would go to Wayne’s mother. Everyone suspected that funeral directors were thieves. Which meant there were always clear instructions for disposing of anything valuable or sentimental before the funeral so there would be nothing for the embalmers to steal from the dead.

 

Wayne had sat next to his sister at the funeral. He thought of the bequest his grandma had made to her. He knew where it had been hidden as did his mother. His grandma had told him, reminded him a number of times. She had twice showed it to him, even let him touch the little delicate box.

 

The sides looked slick like dark enamel. It was so polished it felt wet. It had gold embossed designs, curls and swirls with little spike like leaves, but harsher; delicate yet sharp like thorns. It was locked. He imagined it could be forced open but not without breaking the fastener and Wayne had been told many times not to open or look inside. There were clear unstated threats that went with those admonitions. There was a serious tone in her warnings. There was no kidding around or smiling when she told him not to examine the box too closely.

 

He had held the box in his hands and turned it over, looked at all its sides, but he obeyed and never shook it to see if he could hear anything rattle inside, nor did he put it near his face. Instead he handled it gently. It just felt like inside the box there was something dangerous, like if you touched the contents, it could burn you.

 

Wayne had known the relationship his sister, Kathryn, had developed with his grandmother had changed since the days of his brother’s sickness. The day Kathryn had intervened.

 

Since then the young girl and the elderly lady had spent many hours together at his grandmother’s house. Ironically, Wayne still felt he was the grandchild closest to his grandma. There was something special between his sister and his grandmother, but it was not born of affection. There was a relationship, but it was not a loving one. It always seemed like they were working instead of visiting. They were teacher and student, journeyman and apprentice.

 

Wayne was still the one that received the hugs, the prized little sugar pastries she made. They had often engaged in a giggling conspiracy to deprive others in the family those little treats. Including his grandfather. She made them all for Wayne. He never had to share them with the other kids. And she and he would eat them alone at her kitchen table and they were all the more delicious because neither his brother nor sister got any. Not even his mother.

 

The gulf between his mother and grandmother had grown over the years dating from the night of his sisters’ intercession in his brother’s illness. Wayne never heard the two of them speak of his grandma’s superstitions again, nor any of his mother’s Christian beliefs.

 

It was right after that time that his mother had fled to religion. She became a born again Christian. She frequented the little Baptist church held Sundays in the back of the Freeman’s grocery store, where the small congregation sat at long pine tables on folding chairs. She even began going to Wednesday night “singings”, where many of the ladies and a few of the men sang lustily the old time hymns.

 

His grandmother ever more frequently missed church altogether. She still talked about Jesus and the angels, but she also, just as often, spoke of the Devil and demons. The context was usually biblical, but it was the only time Wayne would hear the Devil and his doings discussed. The tales were scary. They frightened him. Even as an adult some of his nightmares could be traced to those stories.

 

His grandmother would speak to him about such things when they were alone, but it was not like she was speaking directly to him, It was more like she was reciting, chanting incantations, and he was inanimate, like a piece of her furniture. In her way, it seemed to him now, it was a means for her to articulate, turn over in her mind, study and analyze mysteries and conundrums. As a boy, he never listened too closely. Not because he didn’t believe her. He did. But he didn’t listen because he felt reluctant to consider his grandmother’s musings too closely. It was frightening. Such matters scared him.

 

In many of those discussions his Grandmother would reference her own upbringing. She spoke of those long ago times when she was a girl back in Oklahoma on the Reservation. She spoke of the brief years when she was young until she was considered an old maid at eighteen and her grandfather had married her to a man who took her off the Reservation.

 

She had talked of her own brothers and how they hunted and tested themselves as young men, but had succumbed to drink and despair over the years and eventually migrated off the Reservation and away from those bad lands in Oklahoma. They were scattered now. The diaspora of the entire tribe was complete. It had started before the Depression and was accelerated by the famine most histories of the Dust Bowl forgot had rolled through Reservation land and ended with the abject poverty and hopelessness of life where a culture finally died.

 

Those left behind on the Reservation were not the strong ones, the ones’ with spirit. Only the weak were left. Leaderless, idle, on welfare, on drugs or drink, they let the days and years pass and the memories of better days fade or become, at heart, unbelievable. No plantings were made; no animals captured, or killed or bred, raised and traded. The Indians of Oklahoma were ashamed of their lives and their shame caused them to hide on the Reservation, away from the world they stared at and admired on the little black and white televisions in the unkempt living rooms of their government houses.

 

Wayne could remember sitting in the funeral home and looking at his grandmother’s casket as he now looked at another in which his brother lay. From the perspective of the years that had passed since then, it seemed that with his grandmother’s death, and with the death of her generation, the last real links to the culture of the Cherokee Indian had died. His brother had wanted to reestablish at least one link to the Indian past, even if it was with a different tribe. But now he too was dead.

 

All that remained of Indian culture was a representation. It had the signs, the symbols, the words and dances, like a child’s dress up game, but always the symbols were a little too exaggerated, defensive. Now it was all a television commercial, not real. What had come after the diaspora was a fraudulent imitation of a people who once had faiths and beliefs. The magic of the Cherokee had been lost forever, the way all things are lost: with death and the grave.

 

Wayne had sat next to his sister, Kathryn, as their grandmother’s funeral began. Hymns were sung and the entire gathering participated. The songs were familiar enough: “Bringing in the Sheaves”, “Amazing Grace”, others. And they watched from the side room through the opaque curtain and studied the family members and the friends of the family who packed the small funeral home. The women were attired in modest dresses and, uncomfortably, in hose. The men were clad in slacks, white shirts and ties, also uncomfortably tight at the neck. The fingers of the men and women sitting on the hard wooden pews made frequent pulls and adjustments at the neck, the thighs, and the hips.

 

The friends there were not all friends of his grandma. Many of her contemporaries had been called away, in the words of the song, “called up yonder”, before her demise. She had in her final years withdrawn from most of the one’s who lived as long as she. Instead the attendees at the funeral were friends of her children’s family, there to show their respects to the lady they still referenced as Mrs. Caster.

 

The preacher had his turn at the podium. His readings of the bible were given as he held the bible open in his hand like a delicate fruit that must not be squeezed too hard lest it be bruised or damaged and a rotting process started. His sermon, with its promises and mysteries, went on much too long as the shifting and tugging at the uncomfortable clothes increased. Everyone there was itching to be released.

 

Wayne, his brother, Andy, and his sister, Kathryn, listened and watched. They unaccountably had a set of giggles descend on them at one point in the service. The giggles were brought on by an especially bad rendition of “Bringing in the Sheaves”, joined in a little too enthusiastically by the Preachers’ wife who had a truly screechy voice and no sense of tone. Her off-key singing was incongruous to the seriousness of the event and, therefore, terribly funny.

 

Wayne smiled to himself as he remembered how the giggles were welling up into all out laughter, but were swallowed back down in the face of their mother’s wilting glare.

 

Laughter was possible but not tears. Neither he nor Kathryn had been moved to sadness with their grandmother’s passing. Certainly Andy would not have cried. He would not have felt any sorrow. His trepidation toward their grandmother had never abated. He stayed away from her.

 

But Wayne wondered why he, personally, never felt her loss more profoundly. He would miss her he guessed. There would be an empty place in his life, which she had filled. She was mysterious. He took pleasure in even the fearsome creatures and occurrences she related as part of her existence. He was like a kid at a Halloween party. But now she lay dead. He would think about all the rest later.

 

He knew that Kathryn, upon being told of her grandmother’s dearth had nodded her head in understanding and then gone and sat by the front window of the house. For the next couple of hours she just sat and stared up the road to where their grandmother lived and where she could see the uncles and family members were gathering. She never made any effort to rouse herself and walk the three blocks to the house. She didn’t look sad. There were no tears. She was focused on thoughts Wayne didn’t care to inquire about.

 

Kathryn’s outward expression of emotions had for some time been controlled. Wayne, who used to be the target of some of her outbursts, knew the difference. She could still work up an angry fit if she was in the mood, but it seemed to Wayne that now she was conscious of what she was doing and could stop, change instantly if she chose to or realized it would be better for her.

 

Finally, it was time for the parade by the casket. One last hymn was played, this time on a recorder, and projected through speakers in the top corners of the funeral home. The assistant funeral directors starting in the back of the parlor released the rows of attendees one row at a time to walk down the middle aisle, past the casket and then back down the side aisles to the sunshine outside. Some people would dutifully look on the face of the dead woman, certainly all kids looked, if nothing else, out of curiosity. Others, the squeamish or superstitious, would pass by the casket but not look. A few would pat the side of the coffin as if giving solace and reassurance to the dead.

 

Gradually the funeral home emptied and it was time for Wayne and his family to come out of the side viewing room and pass by the coffin themselves after which the lid would be closed and the coffin rolled out the back door to be loaded into the back of the long white Cadillac limousine.

 

Wayne and Kathryn were behind his mother in the line. As she passed the casket she reached in and rested her hand on the forehead of his grandmother. Wayne had expected her to do the touching. He had overheard his mother and other women talk from time to time about death and how the forehead of the dead always felt like cold wood. His mother had said this a number of times. He never knew why. But because she had, he figured, his mother almost was compelled to touch his dead grandmother.

 

It was one of those inexplicable acts of courage she evinced over her life, while in other actions she obeyed the dictates of her fears. As she felt the forehead, her knees weakened and she almost fell, Wayne’s father grabbed her under the arms to prop her up. She quickly regained her balance and weeping, for the first time since the death, she shuffled away. Wayne’s father and his brother, Andy, walked by the casket after her without looking down at the body.

 

Wayne stopped in front of the casket to take a last look at his grandma. His sister, who had been following him in line, stopped next to him. They both looked at her face. The lines of her mouth, jaw, nose seemed unnaturally straight, too bitter. And the thick, too thick, make up and powder spread on her face gave a whitish blue hue to her naturally dark Indian skin tone. Lipstick had been applied to her lips and, while it was discreet enough, he and Kathryn knew she never wore lipstick so on her it looked unnatural. Her dress was light and airy and the folds were tucked in around her so that the outline of her bony frame was visible.

 

Their Grandmother had been bigger and stronger in life. This small body wasn’t her. It was something else in that casket. Their grandmother was elsewhere or, maybe, nowhere, but she wasn’t in that disintegrating coil. Wayne didn’t feel her presence. There was no sign, no hovering, and no smell of her, no feeling of her being there. There was only a thing in the coffin, composed and made up, and the odor of death, not from her, but from the work of death, other deaths, many deaths, in the mortuary itself. Maybe that was why he never felt anything at her funeral. She was gone already.

 

“I’m leaving”, Kathryn said.

 

“Huh, what, what do you mean?” Wayne asked.

 

“I’m going now. I don’t want to be here anymore.”

 

“I thought you were starting at the J.C. College, you applied, you did the application.”

 

“Yes, but I applied somewhere else too. I didn’t tell anyone. Except her.” She nodded toward their grandmother’s body. “She knew. She knew I was going. She died two days later. After I told her.”

 

“Where, where are you going? Why?”

 

“It’s over at the coast. Cuesta Community College. It’s by Morro Bay. My friend told me about it. She’s going there. We are going over there together.”

 

“But why? How come?”

 

“We visited there. And there is a special place. It is a big rock, like a mountain, in the middle of a bay. I walked on the sand around it and I touched it. I didn’t want to leave. I felt it was where I belonged.”

 

“But this is home. Don’t you feel you belong here?”

 

But they both knew the answer to that question already and she just continued to look at the dead body that had been their Grandmother and didn’t answer. Wayne looked up and saw that his brother Andy had returned to the door and was watching them. He didn’t say anything.

 

It was time to go. Wayne turned away from his grandmother’s casket to leave. He felt movement behind him and turned back. Kathryn had her hand on their Grandma’s forehead. Kathryn nodded as if in confirmation of the cold wood feeling. Wayne and Andy watched her. She pulled her hand out of the casket and unconsciously wiped it on the side of her skirt. She looked up and away from what had been their grandma and followed Wayne to where Andy was waiting for them. The three of them walked out of the funeral home to the waiting cars. The only sound was the engines idling. None of them looked back.

 

It was time for Wayne to leave again. This time he was leaving a dead brother. But he knew over the next several weeks there would be many times he would need to look back.

 

 

 

The intercession

 

Chapter 10 – The Intercession

 

Miles to the north another man was just arriving at the peak of the coastal mountain Range. He, like Jeff Davalos back at Dorn’s restaurant, also knew the identity of the man killed on Morro Rock. The victim, Andy Caster, was his brother.

 

He was tired from the drive. He had been at his apartment in Sacramento when the phone rang at 4 a.m. And now here he was.

 

The ocean was a welcome sight. From there the road began its descent toward Highway One, the Pacific Coast Highway. The crest presented a panoramic view of the entire coastline. Keeping his eye on the winding mountain road, he hazarded a glance south. Morro Rock, emerging out of the ocean in the early morning sun, was visible to him even at that great distance,

 

Like Nick Wayne Caster was a lawyer. Unlike Nick he was a very ambitious and wealthy.

 

He knew his brother was dead. It had been Jeff Davalos who had called him at 4 a.m. Jeff was an old acquaintance.   As a child Wayne, along with the rest of the family, worked on the Davalos farm in the central valley. It was obvious during the call that Jeff had been drinking. He had handed the phone to his housekeeper, Maria, who explained to Wayne what she knew. She had a name of a police officer from the Morro Bay police department. Wayne had called the officer. Although the officer had been evasive about what had happened, the words, “possible homicide” did slip out. Wayne had gotten dressed, packed a bag, got in his car and now he was at the coast to see why his brother had died.

He had known this day was coming for a long time. Ever since the intercession.

 

In the 1950s, Wayne, his brother Andy, his sister Kathyrn, and the rest of their family lived in a small wooden house in the crossroads migrant town of Farmersville. A family of farm workers had originally occupied the house. They had abandoned the shack and followed the seasonal fruit picking on up the coast to Oregon.

 

His father had watched the house for 2 weeks after the farm worker family left. He had a plan. One day the house was picked up, balanced between two flat bed trailers and moved to an open dirt lot by their father and some of his mother’s brothers. No one ever said anything outside the family, but there was plenty of joking among his uncles about the Caster house being stolen property.

 

Purloined or not, the house sat on concrete blocks about a foot off the bare ground. There was no indoor plumbing, no running water. It had two bedrooms, a kitchen, and a living room. His younger sister, Kathyrn, had one of the bedrooms; he and his older brother Andy, shared the other bedroom. Their father and mother slept on a fold out bed in the living room.

 

When his bother, Andy, was twelve he contracted the measles. In those days it was a serious disease. It could scar and cripple and even kill. Large pink welts started first on his back and shoulder, migrating up his neck and on to his face where they became red and angry and stinging. He was miserable and demanding and his mother, from whom he inherited his personality, and he became combative.

 

They were at war from morning until night. He was insulting and demanding and she was cutting and pitiless. They fought over everything. Their words were harsh and unforgiving. But then, as the days passed with no respite from the sickness, Andy weakened. He became less combative. He became more compliant. And somehow that was scarier, more serious. But still the days were filled with plenty of noise from their arguments and his complaints. But he couldn’t keep it up.

 

At the end of the day as the dusk turned to darkness, silence and an uneasy truce finally, thankfully descended on the house.

 

And that is when his brother, Andy, normally, the most self-assured, the bravest of the family was at his weakest. His usual singular determination was always just below the surface during the day, However, when the darkness came, his brother whimpered and cried often in his sleep, other times cowering under his covers, fully awake. He would whisper “they are here” and Wayne, who shared his room, would reluctantly look to where Andy pointed. He didn’t want to look lest he see something that he didn’t want to see, but when he did look, nothing was there.

 

“They are trying to steal something from me.”

 

“Huh, what? And what’s trying to get it?”

 

“The little ones, they are. They burn me, they drag at me, and scratch at my skin. I hate their black nails. And the burns hurt. Please stay over here.”

 

And Wayne would crawl in bed beside Andy, scared too, but not seeing anything at all in the corner, where Andy’s eyes were focused. And Wayne was careful to keep to his own side of the bed, not wanting to touch his brother, also afraid of the red bumps and welts.

 

And then there were times Andy would scream out, like he was being stung and trying to fight off something. Well, who knows what.

 

That’s when his mother, so tired from lack of sleep at night and mentally warring with Andy during the day, would call their grandmother and knowing it was on the party line whisper, “Please come,” without saying more.

 

Wayne’s grandmother lived up the street. She was a full-blooded Cherokee Indian, or so people said.

 

The pictures Wayne kept in a plastic box on the top shelf of his closet and which he pulled off ever so often seemed to verify her lineage. They showed a firm, stocky woman with a dark, ruddy complexion. She had stern, slanted, Mongolian eyes.

 

His grandmother maintained she was a devout Christian. She enthusiastically shouted her testimony in church on Sunday mornings and Wednesday nights. She quoted the Bible copiously, if a little inaccurately. But that little mattered since her beliefs and superstitions were of such variety that Wayne sometimes wondered if her true religion was something other than Christianity.

 

His mother would not explain over the phone why she wanted the grandmother to come, knowing someone, either Mrs. Ellison or her little nosy daughter, Sarah, would be listening in on the party line, and would spread rumors.

 

But the grandmother needed no explanation. She knew already.

 

The night before the intercession, Wayne’s mother had called. And thirty minutes later, she was walking through the front door, carrying bags and her Bible. She stayed the night, sitting next to Andy’s bed, holding a cool cloth to his forehead, until he finally drifted off to sleep.

 

The next morning, she sat at the kitchen table as Wayne’s mother bustled around making coffee and cleaning the breakfast dishes.

 

“The Nightgoers want his days”, she quietly told his mother. “They want to steal his life days so they can build the strength of the other’s years.”

 

Neither knew Wayne was behind the door, listening

 

“Worry at the sick is what they do.” The grandmother said, “ You need to protect him from them. Only you can do it.”

 

“I can’t.   It still scares me. I can’t move. I hear him whine and scream and still I can’t move. His father just sleeps on. No one hears. I don’t want to see them again. I saw them when I was little. Never all of them, just shadows and little half bodies, fading in and out. I closed my eyes. I wouldn’t look. It was your vision, yours’ to see. I never wanted the sight. I never wanted to look. I never wanted to see. I wouldn’t look; I hid under the covers and kept my eyes closed. I still want to.”

 

“It’s in you. Only you,” the grandmother said. Then she paused, thinking. “And one other besides. Among all the children of you and your brothers. One other you know. You know this. One other. But not now. Not yet. She’s not ready. I don’t think so anyway. But you should do this. You know you can do this.”

 

“But I’ve never seen like you. To me they are just shadows, mists, half there. Unless they open their mouths. The fire patches. Sure as hell, can see those clearly enough. I hate it. All of it. I won’t do it. Can’t.”

 

“You never did as I tell you. Talk them verses I gave you. Those Nighters won’t hurt you. You are special like I said. They don’t want the days of the blessed ones. You have to sing the verses. The devils must obey as they have always obeyed when one like we are say the words. The words passed to us by others. The Nighters will obey. And we must take our next in line, the girl, the one girl, and teach the words of our power over them or the power will be no more. It will go. Be gone from the world forever. And they will win. The power must be passed on to others in line. It could die out if we don’t.”

 

“I was the wrong one. It shouldn’t have fallen to me. They scare me. I hate them. I don’t want to see. I saw. I saw plenty and I don’t want to see ever again.”

 

“You must. They are here now. In the next room. You son suffers. He is tortured. It happens. Men sometimes see what we see. They can’t handle it. We have to make them believe the Nighters are gone. If we don’t they end up in the crazy house, the asylum. It’s our lot. Tonight they will be here to take his days. So that the grave will take him before his number of years are up. His life shortened. They will steal his life days.”

 

A movement caught Wayne’s eye. His sister, Kathryn was on the other side of the door, hiding and listening. He glared at her and stiffly shook his head and mouthed “NO!”   She just sneered her upper lip at him and pointed outside.

 

He quietly, stealthy, followed her. The conversation Wayne was eavesdropping on fell to a murmur as he moved father away and eventually through the screen door, it slamming shut behind him, into the yard where his sister stood, a hand on her hip, still sneering.

 

“Sneaky. You sneak! I’m going to tell.” she called out.

 

He was about to punch her, but she laughed suddenly out loud and slapped him hard on the side of his head, knocking off his ball cap and fled. Wayne followed in hot pursuit.

 

Fast on her feet, she was easily fleeing out of his reach, but as he always did, he spotted something in her gate, her pace, something that told him which way she would veer off. He never figured out what it was that always told him such a thing about Kathryn, but he knew all right and he went that way, cutting the angle before she made her turn and was suddenly on her grabbing her waist and taking her to the ground, she flailing at him with both fists and him knowing which hand was coming first, He seized her wrists and held her and pinned her back on the ground. Straddling her, he continued holding her until the fight and the struggle went out of her.

 

“Stop it. Let me up. I’m telling.   What were you doing? What were they talking about? What’s a Nightgoer”?

 

So she had heard.

 

“Do you see those things?”, she asked, “I’ve never seen those things. Sarah says grandma is just a crazy old Indian coot and Mom’s crazy just like here. She said that’s what her mother said.”

 

“Just you never mind. Andy is sick. Real sick. He could die. He sees things. Things that aren’t there. Maybe grandma can help him.”

 

“She is crazy. She touches me sometimes.”

 

“Huh?”

 

“She touches me rough. Not nice. Grabs me. Calls me names and tells me, if I let boys play with me I will get rot sickness and die with boils and sores all over me. And no one will come to my funeral because I will be so disgusting, so ugly, and they will leave me out for the owls and wolves to eat. She’s crazy.”

 

“Kathryn, you just make that shit up. Grandma always treated you special. You know that. She’s got something special in her mind about you. Besides you really are already ugly and disgusting.”

 

“Do you think Andy will die?” she asked, no longer interested in continuing a conversation where she was the disgusting subject.

 

“Are those things with the teeth going to eat him? Do you see them? What are they?”

 

“I don’t see them. Sometimes Andy will start talking about them before he does see. I don’t know how, I just know he will and then he starts whispering and whimpering like when the dog’s alone and afraid locked in the chicken coop at the back of the lot.”

 

“I want to see them. Can I see them? Tonight. I will sneak in you guy’s room tonight.”

“No! We will get in trouble. Mom will yell at us. Besides, Andy doesn’t want anyone to know he’s scared of ‘em. He won’t talk about it during the day, but he dreads the nighttime. I know he does.”

 

“Okay”, she said, but Wayne could tell she did not mean it. He knew right then, she would come that night and there was nothing he could say to keep her from doing so. Kathryn did what she wanted to do. Always. And usually she managed to figure out how to escape punishment. Even though she was the youngest she was the smartest when it came to avoiding consequences. She seemed to know most times what other people would do, even grown ups, but regardless she did exactly what she wanted.

 

That night he and his father went next door to watch the fights on Television. The neighbors were a Mexican family. They were also the first on the street to get a T.V.

 

The family was friendly, gracious and he and his Dad appreciated being asked over to watch the Tube. Wayne’s mother didn’t like “foreigners” as she called them and would always say No. But not his Dad. He liked the Friday Night Fights.

 

He would sit on the edge of a chair and flinch like he was taking the punches himself as he watched the blows of the Heavy Weights land to ribcage, forehead and sometimes below the belt. Between rounds, the Gillette commercials would play. Snappy jingles that stayed with you, bouncing around in your head. During the commercials the fathers would talk of work, cars, and sometimes, if the wife wasn’t within earshot, of women.

 

After the fights, Wayne would watch Disneyland with Margie, the 12-year-old girl. She was his girlfriend sometimes. Once, sitting on a blanket playing canasta, she undid the top of her swimsuit and let him see, furtively glancing around to make sure no one was watching. On fight night, she sat at the kitchen table as his father and him and the Mexican man and his wife watched the fights. Margie glanced at him often. While his Dad flinched and simulated a punch or two Wayne smiled back at her. He never forgot that little secret smile. It warmed him to this day like no other woman’s smile had ever warmed him.

 

After Disneyland was over, after Tinkerbelle made her last sprinkle of fairy dust from her magic wand, he and his father went back to their house. It was time for bed and Wayne went to the bedroom. Andy, his brother was there, quiet, lying facing the wall, the blanket lying lightly over his shoulders. Wayne couldn’t tell if he was asleep. He doubted he was.

 

As usual, Wayne faded off into a sleep, but came awake, knowing it was about to begin. He felt a presence next to him in the bed; it was Kathyrn lying there beside him, watching Andy. She had crawled into Wayne’s bed and under the covers, her back toward Wayne. He could feel the bare skin of her legs. She was watching Andy intensely.

 

Andy’s breathing had started getting deeper like he was trying to catch his breath and then his legs began moving under the bed, like he was running. He was sighing. Suddenly, he sat straight up and looked to the furthest corner of the room. Wayne noticed Kathryn was already looking at the same spot. He looked too. It was hidden in the shadows. He couldn’t tell if anything was there.

 

Kathryn slowly pushed the covers back and got off his bed and walked toward the corner with a small box of some kind in her hand. She was naked. Andy saw her and watched her, but didn’t say anything. She looked over at him once without expression and moved on to the corner.

 

She opened the box and Wayne could hear her mumbling, chanting singsong indistinguishable words. He couldn’t make out what they were.

 

Andy looked, his eyes wide, wild, the whites showing, back and forth between Kathryn and the corner. She took something out of the box and held up her hand. He couldn’t make out what was in her hand. All the while, she was still mumbling her words. The moonlight through the uncovered window was reflecting off her skin. It didn’t like the skin of a little girl. After a few moments she became still. Then all was quiet and the moments passed without any sound or movement.

 

Finally, Kathryn turned away from the corner walked back into the middle of the room and said quietly to Andy.

 

“They are gone.”

 

“For good?”

 

“Gone. They took some from you.”

 

“What?”

 

“It’s okay. You have many. If it had gone on longer that would have been bad. Burning years. The next deep is many years. Some is gone and that’s too bad, but it’s not so many and you have many left. Many years left.”

 

“Okay.” He nodded. “It’s better. I feel smaller somehow. Less. But it’s not too bad. They won’t come back? You sure, they won’t be back?”

 

“I don’t think so; they are gone. They’ve gone hunting someone else.”

 

Kathryn’s eyes found Wayne’s. He was still sitting there on the side of the bed in his underwear. She looked at him, but the way she looked at him, he thought, was different. She was more serious now. She was more distant. She had changed. He looked at her body. He had seen her naked before, but even that was different now. Her body was not that of a kid. He knew then there would never be anymore times when they chased each other and wrestled and fought and made up for no other reason, than that they were kids. She didn’t smile. She didn’t frown. She just looked at him. Like there was regret there, a missing, already a longing for a happy innocence they just had that afternoon, but which for her was gone now. Gone forever.

 

She turned then and walked through the door toward her own bedroom and just as she crossed the threshold, Wayne saw his grandmother. He hadn’t realized the Grandma had been there in the hallway watching the whole time. She looked at him, smiled and turned to follow his sister into her room. She was carrying Kathryn’s nightgown. She paused in the doorway for just a moment. Her head turned slightly as she looked back over her shoulder at Wayne before she gently closed the door. The latch clicked.

As he drove down the mountain and on toward the Pacific, Wayne was thinking of how, as a kid one looked across the endless time of youth, when the decades stretch out before you, time lost at the end, even years never seem too many. If you’re young, brief decades are forever. But now that Wayne was older and his brother was dead, those long years from the time when he was twelve until now had passed like a snap of one’s fingers. He thought of his brother, who he had been told might have had his life taken from him on Morro Rock, and he thought of the many miles and years they had traveled from the house where his sister Kathryn had interceded with whatever was tormenting him.

 

The last time he had seen Andy, his manly face was composed but sad; he seemed to often stare elsewhere at something unseen. He wore a look of resignation. Like something was coming he wished to avoid; something inevitable he couldn’t stop. When he questioned Kathryn about it, she had shrugged her shoulders. She looked off in the distance, but Wayne had the feeling she was seeing something much closer. Something internal. Her only comment was, “Andy has been troubled for a long time now.”

 

He thought back to that night Kathryn had opened the mysterious little box and mumbled her incantation. And he remembered after it was over, what was said. Kathryn had used the words. She had said the words to Andy “not so many”.

 

Back when they were kids it didn’t seem like so much. But now his brother was dead. And yes, the years taken from him were not so much in the arc of a life. Unless you were at the end. Unless you had none left. Unless some evil had, at an appointed hour, come to take you. And all along you knew it would happen. What would you do then? If you knew?

 

 

 

 

 

 

 

 

Speech at San Joaquin College of Law

Hall of Fame Induction.

When Diane asked me to be MASTER OF CEREMONIES tonight, as you might expect, it got me to thinking about the school, the memories, what it means to all of us, and all in light of the honor and pride tonight’s inductees brings to the school.

 

I have to admit, when I did the math, I was a little shocked. To realize that next year it will have been 40 years since I graduated from San Joaquin.

 

After I caught my breath, what struck me was the connection between now, tonight, our outstanding inductees, and SJ 40 years ago.

 

When I showed up as a first year law student and found my seat in that classroom in that large round building over on the Pacific College campus, the school was new. It had graduated its first class, but that was about it. It wasn’t crystal clear the school would survive.

 

I have to pause here to mention my classmates. One made friends quickly in that situation. My study group included the likes of Paul Hinkley, John Suhr, Tim Magill and a dear friend we lost a couple of years ago, Steve Sefton.

 

We were all different, we all went different ways in our legal careers, but we all fell in love with the law at SJ, a love affair that never left any of us.

 

And in each of our careers SJ and the legal education it provided meant something special.

 

 

 

 

When, I attended, some of our professors were founders.

 

Dean Dan Eymann taught Torts. A classy guy. You knew you were in the presence of someone for which leadership was a characteristic come by naturally.

 

Mr. Loomis taught us Contracts. It was always MISTER Loomis. The man was universally respected. His hypotheticals were legend, still are, and in our study groups we all found ourselves imitating how he would propound them.

 

Then there was Oliver Wanger, who we called “Ollie” behind his back. This was well before he became a federal judge.   He drove a big shiny black car, I think it was Lincoln, Lots of Chrome, and shoes so polished I always assumed they were patent leather. I like my bling so l thought the man stylish and cool. We all figured as a lawyer he was very expensive. And we also quickly found out the man’s intellectual gifts were staggering. And that lighting quick wit could be intimidating, oh so very intimidating.

 

We had Judge, later Justice, Hollis Best for Evidence. And I can remember him stalking around the classroom, up and down the aisles, making eye contact with students with which he was engaging.   I remember seeing in my mind’s eye what he must have been like trying cases in the courtroom before he became a judge. I always thought he missed being a trail lawyer and the classroom gave him a chance to relive some of those moments. And, boy, could he teach evidence. He knew how to make us see how it actually worked everyday in the courtroom.

His teaching made a lot of us want to be trial lawyers. What we learned from him made us good ones.

 

SJ has a long history of having professors who were not just good at teaching, but the students could tell they were good at what they did outside the classroom. They were good at their profession. And you wondered sometimes if you could ever measure up.

 

But then after class there they would be, our teachers, up at the front of the classroom, surrounded by students, answering questions and laughing with them, sharing a moment of their busy, meaningful lives with us.

 

And of course that is the key. That is the connection from then – over the decades – to here, right now.

 

SJ and the culture passed down from the individuals who founded the school, and those practicing legal professionals who took the time to share their knowledge.

 

A culture of Caring about the students. Carrying about their success.

 

Because at SJ it has always been about the students.

 

SJ wanted the students to do good. They wanted them to pass the Bar, They wanted them to get a good legal job.

 

And not just that, they wanted them to be good lawyers, lawyers who respect the law, respect their role in a functioning democracy, who understood the importance of the legal profession to their community.

 

 

 

Yes, The staff, and the instructors were excellent, and they still are, but the bottom line for the school, in my estimation, was about developing good, reputable lawyers, those who would enhance the legal profession, make each of us proud to be called attorneys at law, make each of us proud to be called SJ graduates.

 

That is the ultimate accolade for the school.

 

And tonight’s inductees, in your career, connect back to all that, you exceeded that high bar of excellence the school expected of you and the school knew you could achieve.

 

You are the connection back to Dean Eymann, Mr. Loomis and all the rest. How proud they would be to know the school produced such excellent men and women of the law.

 

What hard work you did in your careers. What pride your loved ones and family must have in your demonstrated excellence, your outstanding careers in the law.

 

You were selected by your peers from lists of distinguished members of the profession. You have distinction among the most distinguished.

 

Your school is so very proud of you, every alumnus is proud of you and we are proud to induct you to the San Joaquin College of Law, Hall of Fame.

 

 

 

 

 

 

 

Lecture to Students in Correction’s Officers Program

Insights into Voir Dire and the Role of Prosecutor

 

Voir Dire

 

From French, “To see, To speak”

 

Last skill mastered as trial lawyer, because most difficult to do correctly.

 

i.e. Stumbling to find juror’s name in notes vs. memorizing names while defense questioned.

 

“Unpicking” a jury – Group Psychology.

 

How you, as investigating officer, can help the prosecutor. You know community and families. What you notice in the courtroom, in the neighborhood where they live.

 

Questioning: Done by Judge/Attorneys

 

Challenges

 

For Cause

Peremptory

 

Officer/Prosecutor Credibility with them more important than with any other person in court, including the judge.

 

Being yourself

Your language/dialect vs. “police speak.” getting out of car vs. “exiting vehicle”.

 

Trials take place in courthouse not just courtroom – be on guard about how you conduct yourself, what you say out loud, don’t want to be embarrassed or run into potential juror who heard you on elevator. You are at work, on the job, while on courthouse grounds.

 

Role of Prosecutor

 

Evolution of Prosecutor Elective thanks to Jacksonian democracy. 1828 until Civil War- no longer arm of judiciary – Independently elected. No city managers, no supervisors, etc., have to answer to.

 

Whether to charge, what to charge, the level of charge AND

 

The “Power of No”/Prosecutorial Discretion

 

Executive Branch

 

Rivers of cases flow from islands of Law Enforcement agencies to one place and Only One place, The District Attorney.

 

Filing cases

 

Uniform Crime Charging Manual

 

“Reasonable probability of conviction by an impartial fact finder

 

Note: This is more than probable cause

 

Not fooling anybody by arresting too soon. Premature arrest vs. getting warrant. (review and validation by prosecution agency)

 

Lazy officers think going to get statement then don’t, then have a person in custody with no evidence. Undermines credibility of police power, and public’ confidence in Justice System.

 

Police Reports

 

Collection of Evidence

 

Real Reason you complete and collect – to be used in court for prosecution. Secondary is to provide stats for studies, a reason one can sometimes bemoan because if stat driven then lose important element of the real life regarding criminal, victim, and police.

 

Trials AND suppression hearings, insanity pleas etc. Special proceedings need evidence too.

 

Talking to witnesses —You must talk to All — if don’t they will be defense witnesses by the time Trial roles around.

 

“You lie, you die”. Just the facts: just the actual, known facts. Lie on a police report and you are useless to the prosecution in the future. And most departments will fire you-as they should.

 

Real People – Real Situations. – Little old lady vs. homeless, “Stinky Alice” example.

 

Juries want real people, not a sanitized version of a witness.

More examples: Alcoholic. Told jury got him a drink. – Panhandler and Bum – I called him that before defense or jury could.

 

Role of Prosecutor – Continued

 

County wide jurisdictionProjection of power per investigation bureau– police the police – representing people also means also representing the defendant as a citizen or member of society. Delivering justice.

 

Immunity

 

Absolute vs. Qualified (Conclusive presumptions vs. Rebuttable presumptions)

 

Justified by “Chilling effect.”

 

Clear ethical duty is to do justice. May strike hard blows, but not unfair ones.

 

 

 

 

 

 

 

Religious Tests Under the Constitution

Religious Tests Under the Constitution

Religious Tests Under the Constitution

 

California Senator, Dianne Feinstein, abetted by Senate Colleagues recently demeaned the Catholic faith of a nominee to the Seventh Circuit Court of Appeal.

 

The nominee, Amy Barrett, is a professor of law from Norte Dame. She has impeccable legal, intellectual and educational credentials and once clerked for Supreme Court Justice Antonin Scalia. At her confirmation hearing, she was subjected to an aggressive line of questioning concerning her religious beliefs as a practicing Catholic. In one particularly offensive exchange, Senator Feinstein scolded her and said, “When you read your speeches the conclusion one draws is that the dogma lives loudly within you.”

 

U.S. Bishops condemned the comments as “anti-Catholic bigotry” that reveal “a thinly veiled anti-Christian bias.” The President of Norte Dame, John Jenkins, said it was “chilling” to hear from a United States Senator that one’s religion might disqualify them from service as a federal judge.

 

Senator Feinstein’s motivation in examining a nominee’s religious views is no secret. She wants to know if the nominee agrees with the religious teachings of her church regarding the morality of abortion or homosexual activity. She wants to know if the candidate would uphold or overturn Roe v Wade (abortion) or Lawrence v. Texas (gay sexual activity) because of her religious beliefs. And if the nominee does not answer by expressly rejecting such religious teaching she risks having her nomination voted down and being denied the public office she seeks.

 

This is not the first instance in our modern history that the faith of individuals wishing to serve in public office has been attacked by Senators.

 

At one time not so long ago the questioning of judicial nominees by Chuck Schumer, Dick Durbin and others, became so egregious that a public information campaign was launched under the title “Catholics need not apply!” In reaction a coterie of Catholic Senators, led by Pat Leahy, proposed a Senate rule prohibiting inquiry into a person’s religious beliefs. The rule failed to come to a vote. Even, John Roberts, our current Chief Justice, at his confirmation hearing, was aggressively examined under oath about his Catholic faith. And only recently, Socialist Senator Bernie Sanders attacked Russell Vought, a nominee to the post of budget deputy director over his Christian faith.

 

Does such questioning of a nominee’s religious beliefs violate the Constitution?

 

Article VI, Clause 3 states, inter-alia, “. . . . all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to Support this Constitution, but no religious Test shall be required as a Qualification to any Office, or public Trust under the United States.”

 

While Senators may question any nominee on any subject outside the committee room, it is different when the person is placed under oath before being questioned. Placing them under oath moves the examination of their religious beliefs into the realm of a religious test which the Constitution forbids.

 

The founders were very familiar with religious oaths and tests. Oaths confirming or rejecting selected religious views were required of anyone seeking public office in merry old England as well as in many of the states at the time the Constitution was written. Those tests were used to protect state favored churches. For example in England an act of Parliament passed in 1672 required all persons who wished to hold public office to take an oath concerning the sacrament that effectively precluded Catholics from serving. Many of the States in pre-revolutionary America had similar provisions. For example the state of New York required an oath disavowing allegiance to a foreign prince, to wit, the Pope.

 

And Oaths meant something to the founders. To be bound by an oath was a solemn undertaking. The promise to keep one’s word had real meaning. To break a covenant either with God or the State was a serious breach of morality.

 

The inclusion of the “no religious test” phrase in the same sentence in Article VI as the requirement of an oath or affirmation to support or defend the constitution is significant. Because the phrases are separated by the conjunction “but” means that the “no religious test” clause is an exception to the oath to defend and support the constitution. It means government may not require an oath concerning religious beliefs as a condition of taking a public office or judgeship. And placing someone under oath and attempting to force them into making a choice of rejecting the teachings of their church or forfeiting the opportunity to take a public office or judgeship is a religious test and violates Article VI of the U.S. Constitution.

 

 

 

 

 

 

Cline on the Constitution – Presidential Pardons

Cline on the Constitution – Presidential Pardons

Presidential Pardons

 

Last week, President Trump issued a pardon to the famous Sheriff Joe Arpaio of Maricopa County, Arizona. The Eighty Five year old Sheriff had been found guilty of Contempt for defying orders of a Federal Court. The orders had banned his staff from targeting individuals suspected of being illegal immigrants without legal cause.

 

The power of a President to issue Pardons derives from Article II of the Constitution which states: “The President . . . shall have Power to grant Reprieves and Pardons for offenses against the United States, except in cases of impeachment.”

 

The effect of a Pardon is that it totally erases both the conviction and the punishment. As has been stated by the Supreme Court, “(I)n the eyes of the law the offender is as innocent as if he had never committed the offense.”

 

A fully pardoned offender has all his rights restored. He can practice a profession. And he can run for office. Something Sheriff Joe has implied he just might do.

 

The concept of Executive Pardon came to us from England where the Crown had absolute power to issue Pardons and alter sentences.

 

As stated in the Constitution, it applies only to offenses against the United States. It does not apply to State Law. For example, a presidential pardon could not be issued for a murder conviction obtained in state court.

 

It is noteworthy, however, that Governors have similar powers and they use them in the same way. For example, Governor Schwarzenegger, on his last day in office, infamously commuted the sentence of the son of the Speaker of the Assembly, a political ally. The son had been convicted of being an accessory to murder.

 

Although, President Trump has been roundly criticized for issuing a Pardon to Sheriff Joe because he is a political ally, his actions are not without historical precedent.

 

In 1798 President John Adams, an ardent Federalist, used the Alien and Sedition Acts to persecute those who opposed Federalist policies. Many of those convicted were political allies of Thomas Jefferson, an Anti-Federalist. Jefferson went on to defeat Adams for re-election. The Sedition Acts were repealed and Jefferson pardoned all his political friends who had been convicted under the acts.

 

Modern examples include President Bush pardoning Scooter Libby for leaking a name of a CIA operative for political reasons. President Clinton pardoned his friend Susan McDougal who was convicted of contempt for refusing to testify concerning his involvement in a financial scandal. Famously President Ford pardoned his ally, President Richard Nixon, for any crimes he may have committed while in office.

 

In more general terms, Presidents have pardoned whole classes of individuals. Those Include deserters during the Civil War by President Lincoln; Ex-Confederates were pardoned by President Andrew Johnson; draft evaders during the Viet Nam war were pardoned by President Jimmy Carter and a legion of individuals convicted of drug crimes were pardoned by President Obama.

 

And of course, President Obama also issued the infamous pardon of Chelsea Manning, someone accused of committing treason against the United States.

 

Sheriff Joe’s toughness as a Sheriff made him famous. He once put all prisoners in pink underwear and housed convicts in a tent city in the intense Arizona heat. He was popular and routinely re-elected, despite his department’s spotty record of effectiveness in the investigation of major crimes in his county. Controversy dogged him for years and the voters eventually turned him out of office.

 

He was also a lighting rod for civil rights lawsuits and federal investigations for his policies regarding illegal immigration. Those policies led him to become one of President Trump’s earliest supporters. President Obama’s Justice department, however, continued to aggressively pursue Sheriff Joe. And he was eventually convicted. Then President Trump was elected and pardoned him.

 

Was the pardon controversial? You bet. Was the pardon within the President’s constitutional power to do so? Undoubtedly. Was the pardon of a political ally unprecedented? Well, . . . not really.

 

 

 

Dry Grass at the Beach, a poem by Phil Cline

Dry Grass at the Beach, a poem by Phil Cline

Dry Grass at the Beach

 

Dry grass at the beach house

Beneath rainless clouds,

Thirsting next to eternal acres of sea,

The drought remains, piteous, aloof.

 

The fog’s damp mist wet insufficient

To reach down, nourish, resurrect

Dead roots and parched strands

Of sun burned grass.

 

The retired captain peered outward

At an ocean of wavering memories.

He watched their white caps peak, glance, roll under,

Returning to their watery depths forever.

 

Gone now, those Wet years of Plenty,

A Frolic of time expended freely,

The Loud discordant Songs,

The Drinks, The Dances, The One Regret.

 

The Captain cupped his callused hands,

Against the warm wind, lit his cigarette,

Deeply inhaled, swallowed really,

The cancer didn’t matter now anyway.

 

He dropped the smoldering match

On the dry grass.

And ground the final ember to death

Under his boot.

 

He resolved

There would be no more tears.

She was right not to wait for the rain.

It won’t return.