Book Idea page 2

The devil, of course, is always in the details, and the pertinent one is always waiting, to do its damnedest at the most perfect possible moment.   As my mother drank coffee in Queens and waited for me to take her to lunch there was one devil waiting to emit a sulphurous “kitchy koo!”.  In hindsight I should have been expecting it, although ‘should’ has always been a dodgy word in the courthouse and hindsight is hindsight.   I tell mother and son something to this effect as I describe the court’s intention in creating the Guardian ad Litem program.   A little history can be found here.  

The short version is that the right to counsel is only guaranteed in criminal cases where you face the jeopardy of imprisonment for  a year or more if convicted.   The right of an indigent to have a court-appointed lawyer was an innovation of our Constitution, but it covered only those threatened with prison time.  The Framers, who some hold in the same reverence religious Christians reserve for the authors of the Gospels, did not foresee a time when millions of Americans would live in rented homes that could be taken from them for a variety of infractions, forcing them to join the vast invisible army of the homeless.  The law, in its majestic equality, regards as a trifle the right of rich and poor alike to be defended against homelessness, to echo Anatole France.

I described how New York City paid a lot of money to the family of Eleanor Bumpurs, a woman who was killed, in effect, for being mentally ill and owing less than four hundred dollars in subsidized rent for her public housing apartment.  She was riddled with bullets at her front door when she reacted to armed NYC officials by raising a large kitchen knife.   The tragedy got a lot of media play.  The new Housing Court, bastard step-child of the New York City Civil Court,  decided that protection was needed for tenants like Ms. Bumpurs.  It was an excellent decision.    In the early years, lawyers did most of the Guardian ad Litem work.   This had the effect of providing capable court-appointed lawyers for indigent, vulnerable tenants facing eviction.  

I see the college kid nodding earnestly, like he’s acknowledging this is God’s work. His mother raises her eyebrows and nods encouragingly too. I quickly disabuse them of this God’s work business.   I explain that the reason I call it Piss Boy work is because some Housing Court judges, hearing officers really, with jurisdiction only over who has the right to possess disputed parcels of rental property and enforcing certain codes about the conditions in that property, view the court-appointed lawyers on the list who stand in the shoes of tenants as hamstrung losers lacking ambition.  Those judges sometimes treat the Guardian ad Litem accordingly.

Any lawyer making a decent living would not put himself on the list, certainly not for more than a case or two a year.   Anybody with any ambition would not appear regularly to stand in the filthy, worn shoes of New York City’s most vulnerable tenants, and the canny grifters who sometimes pose as those tenants.  What could be said of a subsistence lawyer appearing exclusively in this low and ill-paid role?   Whatever one might say about Housing Court judges, most of whom are fine people, each had demonstrated determination and ambition or they would not be on the bench.  

Civil Court Judges in New York City are chosen by the Democratic party machine, like in the days of Tammany Hall.   A certain political background is required, and making connections of a certain kind.   I carried the piss bucket long enough to see several court attorneys, and even a Legal Aid lawyer I’d shot the shit with a few times, suddenly attired in robes, sitting on the bench, smiling graciously as I said “congratulations, your Honor,” the first time I saw them as judges.  

Once in a while one of these smiling political appointees would show another side, the dog kicker side mentioned earlier.  A judge can’t generally get away with openly kicking an attorney appearing in front of him in his role as an attorney.  Attorneys are careful not to cross the line where they can be kicked.  There is no such line for the Guardian ad Litem (GAL), one learns belatedly.   Cross a line or not, for the GAL a cranky judge gets a free kick.  Just part of the game.

So, anyway, Josh and I finish writing up the stipulation.  It provides that the landlord will wait thirty days to serve the eviction notice, and will inform the GAL before he does, and the landlord will not contest an Order to Show Cause, meaning more time will automatically be granted, if needed, for APS to take the only action available, while the GAL serves the marshal with papers halting the eviction.  The terms were generous, Josh was a decent guy very familiar with the drill.  

It was the best deal anyone could hope for in the situation.  The aged tenant in question didn’t have much of a leg to stand on.  To put it more accurately, he had no leg to stand on.  He was an illegal alien who lived in the apartment with several adult family members, all indigent, none of them able to get any kind of public assistance.  They owed the landlord something like $13,000 at that point.  APS was going to apply for a guardian of the person to figure out how to relocate the old man.   The application for the guardian under Article 81 of the New York Mental Hygiene Law….

“You’re shitting me, there’s a New York State Mental Hygiene Law?” said the woman.

I shit you not, ma’am, a clean mind is a good mind in New York State.  Anyway, the Article 81 filing in Supreme Court would stay the eviction proceeding in Housing Court for up to a year, put it in a deep freeze, while they determined if the old man was legally incapacitated under New York State law, appointed a guardian of the person and that person, or agency, figured out the details of the impossible.  Josh was consenting to all this instead of pressing the judge to get justice for his client the landlord.  It was 11:15 and my mother was waiting for me in Queens.  I was glad to be almost done in court, it was well-worth agreeing to petition the court for more time for the inept APS to act.    

Except that on this early summer day the young judge in this particular courtroom, an ambitious former court attorney who had jumped several more senior candidates on the list, was performing for several law students who were with him on the bench.   The stip Josh and I had signed gave him the chance to demonstrate how a judge went about his business in a GAL case.  His court attorney informed Josh and me that the judge intended to allocute the stip. Meaning we’d have to wait to be called so he could read aloud on the record, allocute, what we had written and signed.  

Generally allocution is only done in a case where one party needs the agreement explained to them by the judge so that everybody’s ass is legally covered against the charge that the unrepresented party had been tricked by the other party’s lawyer into signing a deal they did not understand, an agreement against their best interests.  No matter that this agreement was written and signed by two attorneys, and that it was the only possible deal, outside of immediate eviction, the judge was doing it the way it should, technically, be done, since one of the lawyers was playing the part of a non-lawyer.  The Court Attorney asked us to take a seat and brought the file up to the judge.  

I later had the occasion to learn that this young judge had been admitted to practice law the same day that I had been, April Fool’s Day eight or nine years earlier.   We’d taken the oath in unison in the impressive old Appellate courthouse off Madison Avenue, then headed in opposite directions, him to court attorney and judge, me the other way.  

I was also informed that he’d been one of “Shelly’s boys”, a protege or personal friend of Sheldon Silver, then Speaker of the New York Assembly, a powerful New York Democrat who a few years later would fall steeply from his powerful position as kingmaker in New York State politics and wind up disbarred for his multiple felony convictions.  As far as I know the disgraced Silver is still free on bail waiting to appeal his long jail sentence, as befits a powerful corrupt man convicted of using his position to steal millions.  Silver’s fall was a dramatic one, well worth a footnote [1].  

All I knew at the time was that this seemingly mild-mannered and bespectacled young judge was seemingly mild-mannered and wore glasses.  I had no idea, as I sat next to Josh on that long wooden bench, how much shit was poised to hit the fan, nor how hard and far flung that shit would spatter for the humble Piss Boy.

(stay tuned for part 3)

[1]  from Wikipedia:

Silver’s trial lasted for much of November 2015.[43][44] On November 30, 2015, a unanimous jury found Silver guilty on all seven counts, triggering automatic expulsion from the Assembly.[45] The New York Supreme Court, Appellate Division, which handles judicial and attorney misconduct, affirmed his automatic disbarment for felony conviction.[46]

On May 3, 2016, federal judge Valerie E. Caproni of the United States District Court for the Southern District of New York sentenced Silver to 12 years in jail, and ordered him to pay $5.3 million in ill-gotten gains and $1.75 million in additional fines. Silver received two prison terms: 12 years for six criminal counts against him and 10 years on the seventh, to run concurrently.[47][48] As of January 2017,[49] he remained free on bail, pending an appeal based on the U.S. Supreme Court‘s decision in McDonnell v. United States that reversed the corruption conviction of a former Virginia Governor.[50]

Personal life

Silver and his wife Rosa, a former special needs schoolteacher, have four adult children.[51][52] According to court papers unsealed during the sentencing phase of his trial, Silver was alleged to have had two extra-marital affairs, both of which were connected to his Albany position.[53]

By the time he became Speaker of the Assembly, he was known to play basketball with other high-ranking officials, including former Governor Mario Cuomo and former Comptroller Alan G. Hevesi.[54]

Two weeks after Silver’s criminal conviction, his son-in-law Marcello Trebitsch was sentenced to prison for a separate multimillion-dollar crime, also prosecuted by Bharara’s office.[55]

 

Book Idea

You don’t sell the biography of an unknown man, part scholarly idealist, part monster, as a first book.  Complicated book, complicated story.   How do you give the elevator pitch?  It’s about how much a person can change, how much a person can take, what finally breaks a person, how much we can truly forgive.  It’s about history, and the constant, maddening spinning of what children think of as fact.  It’s about taking a year, or a decade, or several decades, to digest something that is indigestible, although experienced in some form by millions.

We’d better be going to a very high floor in this elevator if I’m going to finish the pitch.  If it takes more than twenty words to summarize, you lose the sale.  If you can’t sell it you don’t get paid.  Simple.  Keep it simple.   The man was a monster who never gained monetizable notoriety for it, died recanting his monstrousness to the son who forgave him.  Fuck it, too simple.  So here’s a book idea for a first book, the better to sell what would become the second book:

Man trying to take care of his dying mother long distance, speaking to her daily from New York.   She hates it in Florida, especially now that she’s a widow.   The man works as a Piss Boy in the New York City Housing Court, carrying the piss bucket for judges, who are actually, technically, hearing officers in black robes.    Death is taking its time with the old woman, has been toying with her for decades.  A million cancer cells when they opened her up, the remission, unfortunately, not as complete as they assured her it was when they gave her the five year clean bill of health a few months earlier.  It is now two decades after they found those million cancer cells, husband and nineteen year-old poodle both gone, the mother’s death the leisurely hobby of an inconstant cancer.  

I am walking up the long hill from the train station by the river, in a river town ten miles north of New York City.  It is a warm late June day, in fact it is a hot, sunny day, the sky perfect for a picture postcard of the town.  I am walking to the home of old friends for a party celebrating their oldest son’s graduation from college.  I talk to my mother on the Motorola Razr as I climb.  I do not notice my Hawaiian shirt becoming wet with sweat, or that my cargo shorts are also getting wet, as are my socks.  I amuse my mother a few times, and as it is a long walk up the steep, winding hill, and this conversation is the highlight of her day, I am not in a hurry as I make my way up the vertical sidewalk. 

Arriving at the party I bid my mother goodbye, snap the phone shut and am greeted in the yard by an old friend who hugs and kisses me before recoiling.  “Oh, God, all the make-up just ran off the side of my face!” she says, her face dripping on one side, and I notice, for the first time, that I am soaking wet.  It is like I’ve just emerged from long swim in an ocean of sweat.   I am soaked to the skin, down to my socks.  My host hands me an icy mixed drink in a tall glass, tells me to drink.  I do, it’s delicious.  I shake the graduate’s hand with a wet hand, probably hand him a damp card with a check inside.  I head inside out of the sun, a second tall, iced mixed drink in my hand, and within a minute, everyone in the room is gone, suddenly excusing themselves.  

Two people remain, a woman in a chair and her college aged son, on the couch.  The woman asks me how I’m doing, and as my host hands me a plate of food and a third drink, I begin, in a  twisting torrent, to tell the woman and her son exactly how I’m doing.  The intertwined stories come out in a flood, my mother’s slow wasting death, my many trips to Florida, my mother’s recent two week stay in New York, during which I had to tend to a backlog of my cases in the court.  How, in hindsight, it had been a mistake to bring her back to New York with me after a two week trip to Florida, how I should have taken a break as all my friends suggested, the call from my mother shortly after my birthday, a few days after our month together, complaining bitterly that I don’t love her because I sent her away just before my birthday.  I took a fork full of food, and described my work as a Piss Boy, and the recent, infuriating threat to even that livelihood.  The woman and her son found this funny.

Well, obviously, I said, I don’t find as much mirth in it as you seem to.  Most of these judges are OK, but from time to time, always at the worst possible moment, one of them will insist on pissing into a bucket that is already gleaming right along the line of the brim with the collected urine of a dozen other jurists.  “Your Honor,” you will say, “give me just a moment to dump the bucket, I’ll be right back.”  Making this request is not really an option, of course, for someone designated piss boy.  Then I explain about the designation.  

“I thought you were a lawyer,” says the college boy with a smile.

I tell the boy that I am, and then recount the story my mother tells of a man she had some business with.  She’d asked my legal advice, and I’d given it to her firmly and simply as I could.  I told her exactly what she needed to tell him.  She somehow told him exactly the opposite of what I’d coached her to say.   She protested that her son the lawyer had told her to say exactly what she had said.   “Your son must be the dumbest lawyer in New York,” said the man, not unreasonably.   Now, in the context of that story it’s up for debate, in the context of my life story, he has a pretty strong case.

I described how virtually all of my work is standing in the shoes of tenants deemed unable to adequately defend themselves against eviction.  I am in court not as their lawyer, but as them.  They have already appeared in court and the judge has decided, or an inept agency called Adult Protective Services has moved the court, in the manner of an implausibly costive bowel movement, that the tenant cannot effectively advocate for themself.   It may be because of some mental problem, or a strong personality quirk, or physical infirmity, advanced age– it just has to be an articulable suspicion that the person needs someone else to play the part of them for the legal proceeding that could render them homeless.

So, at any given time, I am standing in the broken backed, smelly, perforated shoes of twenty or thirty such poor devils.  I’d say 75% truly need the help, and appreciate it, and the other 25% are professional grifters who get thousands in back rent paid on their behalf every few years so they can spend all their money on booze, or prostitutes, or whatever it is that makes their lives worth living.  One crazy old guy lived with a crack addicted hooker and the two of them, for whatever reason, moved their bowels into plastic bags that were left all over the vermin infested apartment.  In court, the part of this insane bastard, who was not required to show up in court at all, was played by me, over the course of many months.   My pay for this court-appointed role play was a flat $600, whether I appeared once or a dozen times.  Most often I had to show up at least four or five times.   

As a result of this quirky system that required me to do an ongoing tap dance while the overwhelmed agency dithered, and the interminable delays in Adult Protective Services providing services, which caused me to appear month after month after month on most of these sad cases, some judges regarded me with a certain distaste.  Articulate, capable and despicable.  In the way that certain bitter people come home after a bitter day and kick their cringing dog, lawyers that were in my line of court-appointed work were available for booting, whenever the pressure mounted on certain of these judges, those least endowed with what we think of as judicial temperament.  

“Why would you kick a talking dog?” I wondered, slowly shaking my head as I finished my plate of food and polished off that third strong drink.

The college lad, a bright and engaging young man, was waiting eagerly for the rest of the story.  The woman also looked with a bright and interested expression, and so I continued, describing my mother waiting for me for lunch, as I rushed to Manhattan Housing Court to tend to a half dozen cases.  In the ordinary course of things I’d find the landlord’s attorney, we’d scrawl an agreement called a stip, short for ‘stipulation’, setting forth the reason we needed to come back four weeks later, and one of us would file the stip in the courtroom where the expedited special proceeding was making its snail-like progress, complete with slime trail.  

I’d put all my Bronx cases off for the same date, all of the Manhattan ones, all of the Brooklyn ones.  On a good day, I could find everyone I was looking for, get the stips filed, and be out of the courthouse in an hour or two.  On a bad day, I’d encounter some asshole who would not agree to my reasonable terms and demand a hearing in front of a judge.  There was rarely a time the judge did not agree to postpone the case again for Adult Protective Services (APS) to complete its laggardly work.   In cases where the judge’s impatience for maddening APS got the best of her, I’d be forced, a week or a month later, to write and serve an emergency motion to the court to stop the marshall from proceeding with the eviction.  I wrote dozens of these over the years.  

My mother was waiting in Queens as I dashed into the city to take care of my cases. It was on something like day 25 of my 29 straight days with mom.  My mother was needy, she was dying, she was lonely.  She would be dead less than a year later.  I was the light of her life, if such could be said.  She was waiting for me to take her for lunch.  I had two more cases to adjourn and I could head back out to Queens.  It was around 11:00.  

Things were looking good, no tenants were in the picture and I’d disposed of the first four cases quickly.    I didn’t have to wrangle with the Giant Squid, the brilliantly insane tenant in the Bronx who hadn’t paid rent in a decade and who would eventually sue me personally.  I wouldn’t be accosted by the carping, annoying Paul Small or bellicose retarded George who insisted on his right to smoke crack and enjoy the company of prostitutes in the apartment at his deceased mother’s nursing home, and who would file a blank disciplinary complaint against me with the First Department after I prevented his eviction and settled his case. The First Department takes such complaints seriously, even if blank.  

It was around 11:15, Josh, my friendly adversary, and I were signing the stip and one of us would hand it in.  I just had to run down to the NYCHA part on the first floor and that would be quick.  Then, out the closest door, a dash to the train and I’d be on my way back to Queens and my impatiently waiting mother.

(to be continued)

Medical Care American Style

At the risk of coming off like Lenny Bruce obsessively reading from his trial transcripts, as his legal ordeal continued and his heroin use spiked, I have one more, hopefully quick, take on the crisis in American health care.  Tying health insurance to a full-time job with a reasonable wage (and creating as many loopholes as needed to avoid offering health insurance at all) is part of American Exceptionalism, like the wonderfully acronymed COBRA that can be purchased by those fired from jobs to continue to have full-priced health insurance.  Tying health insurance to full-time work guarantees America a fairly docile work force since, if you lose your job you can’t afford COBRA and you’d better not have any health problems.  It also allows the nation’s largest private employer, Walmart, to employ a vast non full-time workforce it does not have to offer health insurance to.  Luckily for those employees, many are so minimally paid they qualify for Medicaid, a government plan for poor people paid for by all other taxpayers.  

While the zealots of the majority Freedom and Liberty party vote on party lines to gang bang and strangle Obamacare, with a much better, if very hastily drawn, plan that ensures the rich will get richer and the weak, ill and lazy will no longer be able to exploit the Kenyan Muslim’s overly generous health care plan, I am beginning to try to straighten out hospital bills for a brief mid-November stay, bills I began receiving between Christmas and New Years.  As the bills came in I was still wrestling with the giant anaconda of the New York State of Health Marketplace and its mandate to reapply for insurance between the week before Christmas and two weeks after New Years.  If you have never experienced that ‘marketplace’, God bless you, and be extra nice to your boss.

Last summer my new Obamacare doctor flexed his muscles to show me what a healthy heart muscle was like and then let his arms droop to show me what my dilated left atrium, one of the four chambers of my heart, was like.   He promised to refer me to the cardiologist who was to set up a practice in his office in the next few weeks and told me not to worry as long as I had no chest pain or shortness of breath.  Not long after that I had chest pains while riding the bike up a hill and decided to wait to see the cardiologist before staying in shape with biking.  

In fairness to my doctor, I only followed up about the new cardiologist a handful of times over the next few months so he is not 100% to blame for the escalating untreated concern about my heart that I was having.  Following Sekhnet’s alarm and this doctor’s advice, one November night I checked into the nearest Emergency Room with enough symptoms and risk factors that they admitted me to the hospital.  

Of course, because the ACA allows doctors, hospitals and insurance companies to opt in and out of the plan, the hospital I went to, and the doctors I saw there, were under no obligation to accept my insurance.  As far I knew, under the PPACA, Emergency Room visits were covered, then again, my fully covered colonoscopy a few years earlier had left me with hundreds of dollars in medical bills– lab fees, they insisted, were not covered, nor the almost $200 for the mandated pre-visit to the provider who performed the colonoscopy, according to the lawyers letters I received.  

After a brief overnight hospital stay and a stress test the following afternoon I was cleared for strenuous exercise and have been working myself back into some kind of cardio health so I can do the 40 mile Bike NY ride with friends in May.  

My follow-up with the cardiologist on December 15th was abruptly cancelled mid-exam.  There was some question, the unethical cardiologist explained, about his getting paid by my insurance carrier for the visit.  Walking back home on that frigid day I stopped by the hospital to let them photocopy front and back of my insurance card.  I wanted to be sure they had the current insurance information correctly in their system, since I’d been obliged to change insurance, and doctors, multiple times in recent years.   I followed up with the hospital’s offsite billing department and was told there were no charges pending.   A week later a blizzard of bills began arriving.    

I’d estimate there are now more than two dozen bills, some explaining what they are charging for, others less exact, others threatening me with legal action for unheeded second and third notices.   I finally called yesterday about a bill for $810, the cost of the stress test.  At the bottom of the bill was printed BCBS Health Plus, the name of my insurance carrier and plan.  The woman at billing asked for my ID number in that plan, a plan I no longer have.  I read it to her.  

She checked her computer and told me no bill had ever been submitted to the plan typed at the bottom of the bill I was holding.  She told me she had just submitted it and that it would take four to six weeks to hear back from the insurance company.  She also informed me that her office did not deal with Emergency Room or other hospital bills, only physician’s services, and gave me the number for another office.   In the meantime there was nothing she could do to keep the automatically generated doctor’s bills from being sent to me.   She suggested I just ignore them until I heard what BCBS had to say.  

I will do that, as I will ignore the letters from the hospital’s lawyers informing me of their collection efforts.

While I wait to see what these lock-stepping bullies in Congress decide to do to give the very best health insurance to our nation’s most vulnerable citizens.

God bless these exceptional United States!  God bless us a lot.

New York Minute

It was a Friday,  late afternoon.  I’d struck out signing up to get a tax transcript online for my eventual appeal of NY State of Health Marketplace’s mistake, which is currently costing me $220 a month.  “Incorrect phone number” the moronic IRS robot told me before shutting down the session for the fourth time.  I finally gave up and went out for a walk.

Heading up crowded Sixth Avenue in a foul mood it didn’t escape my notice that everyone was out of step.  Three or four across, staring at tiny screens, stopping suddenly, veering, lurching.  After a half mile of this I burst around a small crowd of lollygaggers, hit my foot on an uncommonly high curb cut, and fell loudly on to the sidewalk, on to my palms.   The sudden loud noise was exacerbated by my heavy coat, which I’d been carrying, slamming loudly next to me, books and metal phone chargers slapping the ground.

I was surprised, and embarrassed, but otherwise unhurt.  I saw the feet and legs of people who’d stopped to help.  “I’m OK, I just tripped, I’m fine,” I said calmly as I started to stand.  The woman who’d begun to scream as I went down kept screaming.  “I’m not hurt, I’m all right,” I continued, as the woman continued to scream. 

She screamed like a woman in a horror movie, screamed for all she was worth.  At the time I was thinking “what an asshole…” but now, a week or two later, I realize she was screaming for all of us.

History and the Serenity Prayer

Watching the Ken Burns masterpiece The Civil War fills the curious mind with questions.   Brave men, pawning their own lives in the cause of bravery, charging against superior numbers in hopes of taking a hill.   Is this the greatest use of courage?  We are told it is, over and over, the ultimate sacrifice under inhuman conditions.  They may have been fighting for a despicable cause, people on both sides concluded, but you have to admire their courage.   You follow the details of one futile slaughter after another and, horrible as each detail is, you actually do have to admire their courage.  

Once black soldiers were allowed into the Union Army, after, midway through, the war was rebranded into a war to end slavery, the tide of the war began slowly, inexorably turning toward the Union.  Black soldiers fought for freedom, literally.  Eventually the Confederate side offered blacks freedom in exchange for military service.  

The Confederate army never stopped slaughtering the black troops at the end of a battle when the Union men who were not black were allowed to surrender.  Picture the bravery of a black soldier, facing death in battle and then certain death if the battle was lost.   Other Americans, captured as prisoners of war, were subjected to an American Auschwitz.  In the starving South the care and feeding of Yankee prisoners, men the Union stubbornly refused to exchange for Rebel prisoners as long as surrendering black soldiers were butchered, was an afterthought.  

After the war Henry Wirz, commandant of Andersonville prison, became the first American (though Wirz was born in Zurich) tried and executed by America for war crimes.  Almost a third of the 32,000 prisoners of war in the unsanitary open air prison died in a little over a year of the prison’s operation.  Wirz reportedly complained about the deadly conditions at the camp, but then did his duty.  Ken Burns’s narrator adds this after a shot of Wirz hanging by the neck until dead:  he pleaded he had only followed orders.  

Wirz was tried and executed, Wikipedia informs us, at the federal prison that later was demolished to build the present day Supreme Court.

We look at history with some hope of learning from its tragedies. One pretty good working definition of insanity, after all, is doing the same thing over and over and hoping for a different outcome.

I read this just now, on the second page of an introduction entitled Roots of Empire: “War is a Racket”, and it speaks as well for me as it did for the authors of The Untold History of the United States, Oliver Stone and Peter Kuznick.  The most obvious questions remain unasked much of the time. I will now practice my transcribing skills:

Why do such a tiny number of people– whether the figure is currently 300 or 500, or 2,000– control more wealth than the world’s poorest 3 billion?  Why are a tiny minority of wealthy Americans allowed to exert so much control of U.S. domestic politics, foreign policy and media while the great masses see a diminution of their real power and standards of living?  Why have Americans submitted to levels of surveillance, government intrusion, abuse of civil liberties and loss of privacy that would have appalled the Founding Fathers and earlier generations?  Why does the United States have a lower percentage of unionized workers than any other advanced industrial democracy?  Why, in our country, are those who are driven by personal greed and narrow self-interest empowered over those who extol social values like kindness, generosity, compassion, sharing, empathy and community building?  And why has it become so hard for the great majority of Americans to imagine a different, we would say a better, future than the one defined by current policy initiatives and social values?  These are only a few of the questions we will address in these pages.  Although we can’t hope to answer all of them, we hope to present the historical background that will enable readers to explore these topics more deeply on their own.

Well asked!

Let us briefly tickle, if not tackle, just these last two.

Why, in our country, are those who are driven by personal greed and narrow self-interest empowered over those who extol social values like kindness, generosity, compassion, sharing, empathy and community building?  

This is a fairly easy one, our country defines people in the first category, if they, or their ancestors, have succeeded in acquiring enough wealth, as winners.  The second category, very nice people though they well might be, are mostly losers who did not inherit and cannot amass great fortunes and therefore often engage in dewy-eyed class warfare against the winners.  The American Dream is about winning, not losing, asshole.  Check out the giant winner we have in the White House now, if you doubt that.

Now we come to their thorniest question, and one that underlies many of the others:

And why has it become so hard for the great majority of Americans to imagine a different, we would say a better, future than the one defined by current policy initiatives and social values?   

I think this great failure of collective imagination is the direct result of the other values and practices cited above.  American society is organized to put winners on pedestals and to keep the tens of millions of losers invisible, or, if they insist on trying to make themselves visible, vilified.  After all, the real problem is not that we can spend trillions to prosecute faraway wars that fly in the face of evolving international law while so many in our country are in want, but that we have a savage class of human predators stalking the streets of our impoverished ‘inner cities’ and making things unsafe for the rest of us.  You see how easy that sleight of hand is?  

History, it is said, is written by the winners.  It is hard to imagine the alternative to the official story and what we cannot imagine we cannot aspire to.  We are sold the crippling myth that there are but two ideologies in the world — Free Market Capitalism and Communism.  Communism, it was proved over and over, does not work, particularly if the Free World declares unending war against it.  The Commies who flourished were as corrupt and ruthless as the Captains of Industry here, men who sometimes became great philanthropists at the end of lifetimes of ruthlessness.  The fucking Koch brothers are patrons of the arts and science, in addition to shrewdly buying political influence coast to coast to increase their already beyond obscene wealth.  

By creating this false dichotomy of Freedom vs. Totalitarianism our elites have been able to convince us of our exceptionalism in a way that forecloses the bigger argument: is this really how we want to be exceptional?  For having the most people on earth in prison for nonviolent crimes?   For having more children in poverty than any comparably wealthy nation?  For electing a man who is making America a laughing stock, if also a terrifying one?

The oversimplification of reality presented in the consolidated, corporate mass media would make a very stupid person blush, but we are exceptional that way too.

Saddam Hussein was Hitler, we had a moral duty to liberate his people from him, even if it cost millions of Iraqis homelessness and forced migration, and countless thousands of Iraqis their limbs and lives.  We are just that kind of exceptional nation.  Don’t forget to tip your veteran on the way out.

Memory– Vishnevitz

The surprisingly thin canvas of the large painting eventually had a triangular rip where a long nail had pierced it.  It was a framed painting that hung in the basement of our house in Queens, by a wire attached to its back.   The walls of the basement were wood, installed in vertical strips, by a guy named Hymie in the years before I had any memories.  I was told Hymie did the work, though I have no idea who Hymie was.  The painting hung on a large nail driven into the wood.  It was no doubt this nail that gouged the painting toward the end.  I may, as a teenager, have had something to do with that inadvertent rip.   

The painting had belonged to my grandmother, had hung over the couch in her living room in Kew Gardens, Queens.  When she and my grandfather moved to Miami Beach, the large painting was moved to our basement.   I remember my grandmother once smiling at the painting, already in our basement, and looking at me and saying that’s exactly what her home looked like, the painting was exactly Vishnevitz.   I  can picture that smile today.   

The painting was of a wide dirt road, surrounded by huge, lush trees.   There may have been a wagon traveling through it, I think there was.  What I remember are the lush, leafy trees, painted toward the glorious end of an early summer day.  It was an idyllic painting, an idealized homage to nature and the goodness of the universe.  I didn’t particularly care for the sentimental painting, but my grandmother clearly loved it.    Though it was painted, sold and purchased in New York, it was the best, and to my experience, only, souvenir of her home town, Vishnevitz in the Ukraine.    

The letters from Vishnevitz stopped coming some time in 1942, when Einsatzgruppen and local anti-Semites began collecting the local Jews in towns like Vishnevitz.   All I was ever told was that the letters had stopped coming, those unanswered letters stood in for the rest of the untellable story.  It would be fifty years before I stumbled on the Vishnevitz Yizkor book, on-line, page after page of narratives from survivors of the torture and destruction of the writers of those letters that stopped coming.  The details are horrible, every one of them.    

Watching Ken Burns’s documentary on the Civil War, a 1990 masterpiece, I learned of the massacres of surrendering black soldiers.   Ulysses S. Grant demanded this practice stop, that the Confederates treat black prisoners of war as both sides treated white prisoners of war.  Confederate president Jefferson Davis refused.  Grant stopped prisoner exchanges with the South.   As a result, prisons began overflowing with American prisoners on both sides.  One notorious Confederate prison camp, Andersonville, designed to hold 10,000 prisoners, soon had more than 30,000.   The commandant, a German-Swiss fellow, turned the place into an early version of Auschwitz.  More than 10,000 died of starvation and disease in a short time, the rest only wished for death. 

Ken Burns does the Ken Burns pan up a photograph of the skeletal body of a survivor of Andersonville.   Every moment of the pan is horrible.  A narrator reads an account by a southern woman.  She is sure of God’s terrible vengeance against the Confederacy for this crime of reducing humans to living skeletons.   Americans did this to Americans.  

Down that idyllic dirt road, through the lush, beautiful forest, we are just outside Vishenevitz in 1920, when Yetta, my grandmother was an idealistic, ambitious young woman.  In the war after the Russian Revolution Yetta’s family had housed cossacks, Bolshevik cossacks, men who had behaved like perfect gentlemen, according to her.  They hung blankets down the middle of the house to leave the family some privacy.  Perfect gentlemen, of course, do not rape the young women, or the older ones either, as many other cossacks were known to do.  These gentlemen cossacks were idealists, they inspired Yetta and her generation to envision a world of brotherhood among workers who threw off the yoke of oppression that keeps everyone killing each other for the war profits of a few cynical rich people.

“Why are you writing this, man?” asks a disembodied voice, possibly the driver of the wagon in the lost painting.  “Why don’t you call friends, make a plan, enjoy this bracing, sunny Sunday of your life?”    

I have no good answer, except that I saw the painting in my mind, with its triangular rip.   Through that rip the rest followed, as naturally as overturned Jewish gravestones followed the election of a presidential candidate endorsed by the Ku Klux Klan.   The founder of the Klan, a self-made millionaire who made his fortune in land speculation and slaves, was also a self-made general of undeniable military genius.   He led small bands of men against large armies and inflicted terrible damage as thirty horses were shot out from under him during the course of countless battles.   He killed 31 men in hand to hand combat and figured he came out ahead in that count of killed horses and killed men.  

“Why are you writing this, man?”  

One day the letters from Vishnevitz just stopped.

Legislative Fix

We often complain about problems, with little ability to do anything about them.   This is particularly true in the area of politics, which while always local, is increasingly controlled by psychopaths, many of them not even persons, except in a convoluted legal sense, thousands of miles away.  I don’t want to get started on this issue of local sovereignty, because I have a large fish to try to figure out how to fry (proposing needed legislation for the publicity hungry AG to propose), but just a toe-dip into it before I begin.    

When the slave states seceded from the Union in the months before Lincoln was inaugurated, their issue was “states rights”.   In many areas; criminal law, family law, business law, each state is its own sovereign, by the design of our republican government.   Under our law community standards govern many things, like what is or isn’t pornographic. [1]   This is why the federal government had to step in after the Civil War to ensure community standards weren’t imposed on people who had been slaves a year or two earlier.

The “states rights” argument has most often been used by right wing types to claim exemption from federal meddling.   “We know best how to handle our own damn Negroes and don’t need you meddling liberal troublemakers coming down here telling us how to treat them,” as indignant southern states rights advocates said for decades, while standing on the same principle to prevent debate on federal anti-lynching laws.   

Of course, now that we are living in an open corporatocracy, certain universal rules are required for maximum profit.   The doctrine here is called “federal pre-emption”– on certain extremely important issues where a uniform national law is necessary, federal law preempts the wishes of the state and locality.  

Organic farmers in local communities, for example, had better shut up about pesticides and pesticide-resistant genetically modified crops, because the Supreme Court is about to sign off on Monsanto/Bayers’ right to sell their products everywhere with no interference from local bigmouths.  Same goes for marijuana, your local preference for a moderately harmless drug of choice has nothing to do with Nixon’s 1969 federal classification of the drug as a dangerous narcotic with no medicinal uses in his infamous Controlled Substances Act (“CSA”).  The CSA allows federal prosecution of pot smokers and the arguably arbitrary imprisonment of countless Americans in a decades’ long war against “Drugs”.   Same goes for anything we say it goes for, ass wipe.

One right-wing, states’ rights objection to the conservative private industry-protecting Patient Protection and Affordable Care Act is that the federal law mandates the purchase of health insurance by millions of newly eligible citizens.   Takes away the right of the local government to decide how best to protect its disposable class of asshole citizens too stupid to have corporate jobs, or public sector ones, that provide health care.  

But enough of the critique of the easy to ridicule right-wing, I’m here to propose legislation to fix a specific problem: 

that NYS insurance companies routinely deny healthcare services to mandated low-income health insurance buyers utterly unprotected by New York State law, in spite of the fig leaf of administrative supervision by the Department of Financial Services.

Just before New York State adopted the Patient Protection and Affordable Care Act (“PPACA”) it abolished the New York State Insurance Department and removed all traces of oversight from the New York State Department of Health.  The functions of these agencies were merged into the New York State Department of Financial Services.  This agency has sole responsibility in New York State for oversight of health insurance companies, as well as all fraud investigations related to consumer fraud against insurance companies, and all complaints about the practices of financial institutions, banks and brokers.  

Everything but, according to a fraud investigator for the Department of Financial Services, who referred me to a non-responsive phone tree number, investigations into colorable fraud committed by insurance companies against mandated health-care “consumers” in New York State.

Granted, the PPACA was written by health industry insider Liz Fowler.  It is only sensible that it tilts toward protecting industry profits over the rights of individual patients.   In light of this, it is a grave oversight, and a direct threat to the health of its most vulnerable citizens, that New York State does not have an independent agency dedicated to resolving the countless daily denials of purchased health care services. The need for this agency is particularly acute now that we have a president determined to eliminate most government regulation of private industry.

A health insurance consumer in New York State looks in vain for a forum where these complaints can be adjudicated.   At minimum a well-staffed Ombudsperson’s office should be created– and the 800 number prominently displayed on the New York State of Health Marketplace homepage.  Consumers of mandated health insurance in New York State should not be subjected to the arbitrary abuse of power by unaccountable private corporations whose primary business is increasing their profit margins.  

Proposal: create an agency dedicated solely to enforcing the rights of defrauded health insurance consumers in New York State.  

I mean, seriously, dude, how hard would that be, in the looming age of Trumpcare?

 

[1]  The Supreme Court recognizes that what is titilatingly pornographic to a hipster from Brooklyn might actually induce vomiting in someone from Kenosha, Wisconsin.

Note on Son of Letter to etc.

Interesting to notice how the unconscious mind grapples with a seemingly unsolvable problem.  When you are under ongoing stress from a difficult to bear psychological torment the brain struggles against it in the background, I suppose.  Objectively, your situation might scream for relief– anybody in your position would be ready to start shouting, particularly if there is no possibility of relief.  

The way things are set up here in the Free Market, you’d better have a lot of money to buy influence if you are burnt by something that desperately needs changing.  I have been banging my head against repeated drafts of a letter that has, at best, a small chance to influence even NY State’s publicity hungry AG to take action.  First a bit from the trenches:

My Obamacare navigator (the “in-person assister” who helps consumers find their way on the opaque New York State of Health website) was on the line with me Monday when I called to get my subsidy reinstated.  The quickest way to resolve this situation is to simply run my numbers again and calculate the subsidy the law entitles me to.  

This, I learned, will be impossible to do, according to the New York State of “Health”, without jeopardizing my current coverage– they can’t grant me a special extension to refile while they examine their clear error in denying me the subsidy the law entitles me to now.  I snarled a bit then preserved my right to appeal the removal of my subsidy.

My navigator heard that I am unable to refrain from snarling at the NYS rep Clint Eastwood-like but at length, whenever my low threshold for frustration is exceeded.  Now, no doubt, she understands that this Patient Protection Act shit has driven me a bit crazy.

The first time I exploded was when they rejected my appeal request because my scanned tax return with my signature did not have a handwritten date next to my signature, only a typed one by the paid preparer, a filing date verified by the official IRS tax transcript which was sent with it…

My navigator, a lawyer who works for a busy nonprofit assisting some of the thousands fucked by the Patient Protection Act, looked over a previous draft of my letter to the AG.  She emailed that I needed to focus on what I was really asking the AG to do– in the mode of “question asked”.  At law, you can’t complain without requesting specific relief within the power of the person you are petitioning to grant — well you can, but it won’t get you anything. 

It’s like that dilemma described in “Standing on a Phantom Leg” — part of my unconscious grapple with this very issue of being fucked without a remedy at law.  The complaint can be irresistibly well-drawn, but for legal purposes, it has to state a “cause of action” and request specific relief the court can provide.  The letter as written, and posted the other day as Son of Letter, in addition to being bloated and senselessly recursive, really doesn’t state exactly what I am asking the AG to do.

Reading a skillful litigator friend’s critique I realized the most recent draft of the letter was a long foul ball.   If I wrote it to the chief of the legislature, and my congress person, and everyone else in the New York State legislature, maybe a reasonable letter– since they are the ones to write the laws.  But all the AG can do is enforce existing laws.  I have to convince him that NYS insurance companies routinely commit widespread fraud against mandated low-income health insurance buyers utterly unprotected by New York State law, in spite of the fig leaf of administrative supervision by the Department of Financial Services.

Will it persuade the AG to rush off for a news conference (he’s a progressive and a publicity hound)?  That is the only question to be asked of the letter.  Written well but not hitting the mark?  Who cares? I have no time for that kind of writing.  I need this letter to be a clean base hit if I have any hope of it spurring the AG to action.

THIS JUST IN:

The New York State Attorney General has the power to, and does, propose legislation.   Yee fucking hah!  Back to the drafting table.

Son of To Whom It May Go Fuck Yourself

The Honorable Eric Schneiderman
Attorney General of New York
The Capitol
Albany, NY 12224-0341

Dear Mr. Attorney General,

I am writing to alert you to a massive consumer protection failure in New York State and to seek your help in correcting it. There is currently no state agency meaningfully overseeing the practices of private corporations providing health care insurance in the state of New York.   This letter lays out the current non-functional administrative apparatus, such as it is.  

I urge your office to launch an investigation into this administrative vacuum.   Patients faced with denial of needed health care services have no government forum in which corporate abuses, oversights and fraud can be remedied.   An investigative report would recommend legislation to redress the literally life-threatening menace of corporate denials of health care without any recourse under the law.  At minimum we need something like a State Ombudsman’s office to oversee health insurance in our state.

As our new president forcefully carries out his announced intention to dismantle the apparatus of government regulation, the need for state oversight of health industry corporations in New York State has become urgent. The promised replacement for the Patient Protection and Affordable Care Act (“PPACA”), whatever it might be, won’t eliminate the need for protection of vulnerable older and low-income healthcare consumers.   It is unlikely that the need for these protections will become less pronounced under a completely deregulated health insurance system.

The administrative ‘remedies’ that currently exist in New York State allow no timely or meaningful process to resolve adverse healthcare-related decisions. That there is no state agency empowered to supervise this crucial sector of our state’s welfare is a terrible oversight.

I’ve admired the courageous and proactive steps your office has taken against the powerful perpetrators of various frauds and urge you to consider this letter in the context of systemic healthcare-related fraud against a large class of vulnerable low-income and senior citizens of New York State.

Uncertainty about health care, lack of information about high surprise costs and the denial of prescribed medical services without explanation are all stressful. They negatively affect the health and quality of life of those mandated to purchase their health insurance plans in New York State.   As detailed below, health insurance buyers in our state are denied any state protection against the practices of private health insurance companies, even when the denial of necessary service appears to be fraudulent.    

This consumer protection emergency transcends the current health care scheme under the PPACA.   The president’s threatened repeal of the PPACA makes it all the more essential for New York State to regulate private health insurance companies.  

In googling your mailing address to mail this letter I came across the New York State Health Care Bureau, under services at the bottom of your office’s home page. That bureau informed me they can help me resolve a billing dispute with a provider or insurance company. The citizens of New York State sorely need a regulatory apparatus that can make expedited, binding determinations on when insurance companies cross the line into actual fraud against their mandated customers.  

 Of course, the creation of a regulatory agency is a matter for the legislature. A fraud investigation by your office into practices such as the ones described below would highlight the need for state regulation; a report would give momentum to legislation to create a bureau where life and death health decisions could be expeditiously heard and resolved.  

As stated, defrauded health insurance consumers (patients) in New York State have no forum where complaints can be resolved, outside of the New York State Department of Financial Services, which, it turns out, does not hear such complaints.

The fraud investigator I spoke to there could not find a word other than ‘fraud’ to describe the facts I set forth, but urged me to call the NY State Department of Financial Services Consumer Services Hotline. He assured me that they were the specialists in the area of health insurance. The recorded menu at the hotline, which I recognized from my first call many hours earlier, offers no option for resolving issues with insurance companies of any kind.  

On my original call to the Department of Financial Services, a long wait to speak to a representative yielded the number of the proper federal agency to contact.   Calls to the U.S Department of Health and Human Services are robotically routed to a NY State number that is, sadly, the office of Temporary and Disability Assistance, where a helpful party connects you to a fraud hotline, which turns out to be at the office of the Medicaid Inspector General, where the office of legal affairs is also sympathetic, but unable to help, and so forth.

As for the PPACA, I understand that it was drafted by Liz Fowler, a career health industry insider who went on to a senior executive position with Johnson & Johnson immediately after her work on the PPACA was done. I‘ve witnessed the many attempts to repeal the law and thwart its implementation, rather than fix any of its original flaws, as other complicated laws affecting millions are tweaked and improved over time. Even so, the lack of any provision for oversight of corporations participating in the PPACA by New York State is grotesque. To a sixty year-old cardiac patient unable to see a cardiologist now for many months, the lack of oversight may also be deadly.

Although the situation I’m complaining of is personal and extremely aggravating, it is sadly typical.   I’ve commiserated with many others who suffer under similar insurance coverage.  Erroneous bills are a common, if relatively innocuous, theme.

I receive bills that there is no way to resolve, most recently an invoice for $1,324 for a fully covered sonogram I had in August. The x-ray and kidney sonogram I also had that day were fully covered, the sonogram of another body part was not.   The billing issue was resolved with the insurance company (Anthem/Empire Blue Cross) and the provider to a zero balance in October. Two months later, the full bill for $1,342 was sent to me again in a Third Notice.  

Nobody at Empire could give me the reason the provider had sent that bill, although the representative, who checked my account and called the provider again, informed me that, this time, it was my responsibility to pay it in full.   She offered to send a consumer handbook for my plan that would fully explain the reason, which she claimed was clearly set forth there, though she could not state it.

There is nobody in New York State to adjudicate something as small as a billing dispute, let alone fraud, outside of a judge on some court one must file an actual lawsuit to appear before, assuming one could find a cause of action to get in the door of the courthouse.

Empire recently sent me an email warning of termination of my insurance for non-payment of December’s premium. This warning arrived two weeks after their email confirmation of my payment for December and January.

More ominously, a patient can be denied medical service without explanation (site-specific provider NPI numbers and proper CPT pre-authorization codes notwithstanding), and there is nobody in New York State you can appeal to, except to the insurance company itself.   Empire Blue Cross “Health Plus” recently sent me to two providers for needed medical services, a cardiologist and a physical therapy facility.  Neither provided me with any service. 

I received the site-specific NPI number for the cardiologist, scanned and emailed the back and front of my insurance card, got pre-approval from his office. The consultation was halted ten minutes in and I was informed that my insurance would not cover the visit.   When I arrived at the ‘physical therapy facility’ Empire had referred me to, it was a nursing home.  The director told me the facility offers PT, but only to residents.

The circuit of government agencies I have contacted in vain came full circle with the “consumer help line” the NYS Department of Financial Services Fraud Unit investigator had me call, which I immediately recognized as the very first number I’d called.   Here is a summary of that cul du sac:

NYS Department of Financial Services referred me initially to the US Dept of Health and Human Services which, supposedly, connected me to NYS Health and Human Services, although to an incorrect branch of that agency, the pertinent branch apparently having been merged into the NYS Department of Financial Services which took over all functions of the former NYS Insurance Department as well as oversight of banking and several other discrete and seemingly unrelated areas.  

The NYS Department of Financial Services, one learns, has sole responsibility for oversight of health insurance companies, as well as all fraud investigations related to consumer fraud against insurance companies, and complaints about the practices of banks and brokers.   Everything but, according to a fraud investigator for the Department of Financial Services, investigations of colorable fraud committed by insurance companies against mandated health-care “consumers” in New York State.

My political and legal conclusions are beside the point. Whatever the reasons, the fact remains that in New York State in 2017, even under the PPACA, citizens whose health is menaced by private insurance company denials are denied any legal process to have these vexing, sometimes life-threatening situations resolved.   

Outside of a possible Article 78 (which government agency would you sue for relief, the Department of Financial Services? The New York State of Health Marketplace cannot be sued, even over their own clear error, until exhausting their slow and inadequate ‘administrative remedies’) or a class action under a private attorney general or qui tam statute, what is a patient trying to get an appointment to see a cardiologist since August to do under the PPACA in New York State?   At minimum an ombudsperson, or a few hundred of them, would be a good start.

I’ve followed your career from the start and have admired your principled engagement in the fight against injustice.   To have a legal right that cannot be enforced is to have no legal right.   The mere existence of an ‘administrative process’ (four to six month wait for an appeal of a clearly erroneous adverse NYSOH determination) does not mean there is anything like due process. Widespread injustice is accounted by some as a kind of ‘externality’, a cost of private industry doing business. The lack of legal recourse for denial of purchased health care must not be allowed to stand in New York State.

I have attached the specific grievances I was until the other day unable to submit directly to Anthem/Empire.   I have forwarded them to the organization indicated in Anthem/Empire’s internal directive. I have since learned from an attorney at that non-profit that they do not play this role in the complaint process. She provided me with an online version of Empire’s Handbook, I quickly found the mailing address for complaints on page 15.

I will be glad to do what I can to help your office take steps towards sorely needed due process for denial of health care for some of the State’s most vulnerable citizens.  If needed, I can assist in researching and drafting the report. I am open to being a plaintiff in any lawsuit the State might want to bring and to testifying in any proceeding, in any forum.

I look forward to hearing from your office and stand ready to give any other details or assistance your office might require.

 

Yours sincerely,

 

 

 

 

What good is history?

“You remember I told you about my brother and I taking Uncle Peter to the zoo?” said the skeleton of my father from his grave on the side of Cortlandt Road.

You showed him the giraffes.  

“Yeah, we said ‘look, Uncle Peter!  Those are giraffes, from Africa –aren’t they amazing?’  Uncle Peter said ‘what good are they?’.   My brother and I looked at each other, took him to see the crocodile, one of the world’s most impressive reptiles.   Do you remember what Uncle Peter said?”  

“Who needs it?”

“Well, the same goes for history.   To some people it is an empty abstraction full of ambiguity and threatening, unresolvable nightmares better forgotten.   Why think about what our forefathers did to Africans, to Native Americans including the Mexicans?    We committed some horrible genocides, wrote laws to protect the most vile occupations man has ever engaged in, protected those practices for almost a hundred years under the world’s most revolutionary blueprint for democracy, our U.S. Constitution.  

“Of course, you’d have to be a lawyer to find the discreet little phrases where the Constitution protects those hideous practices, but to a lawyer and a judge, no matter could be more cut and dried.  ‘ ‘Other such persons,’ Yaw Honuh, what could be more clear cut and precisely, perfectly dried, suh?’   

“The learned Chief Justice, a man a hundred years ahead of his time, is compelled to write: ‘Whatever the constraints of our individual conscience, the law requires a faithful interpretation of the intent of the Framers. It was clearly intended by our founding fathers that this genocidal practice be authorized under our law, at least until the year 1807.’     

“What American wants to hear that shit?  What, we are no better than the Nazis?  Who wants to hear that Americans, many times in our history, have celebrated mass murder as enthusiastically as the fervent mobs at Nazi rallies?   There was never an anti-lynching law, and those lynch mobs used to be quite enthusiastic, bring a picnic, the whole family, buy souvenirs afterwards to recall the amazing day.   There were no protests when Truman insisted we had to drop those atomic bombs on Hiroshima and Nagasaki.  There was dancing in the street when Japan surrendered.    

“With Hitler, you had, for the first time in the history of warfare, a ruthless maniac with the modern means of killing civilians on a mass scale and no hesitation to use the new technologies.  The blitzkreig in the skies over London, for example, a continuous, nightly bombardment of civilians, was designed to terrorize the populace and demoralize support for the war effort.  So the Allies responded in kind, we killed untold hundreds of thousands of civilians during World War Two.  The historic city of Dresden was wiped out with incendiary bombs, the massive firebombings of Tokoyo killed many more Japanese women and children than both atomic bomb blasts combined.  So, of course, in a time when everyone is filled with dread and fear, it’s no surprise that many people turn away from history.”  

“Add to that the notion many people have that history is generally written by rascals, in the pay of other, sometimes pernicious, rascals.   Which is often true, you have to look at who the person was who wrote the history, who paid for the book, what the hidden agenda is, why the story is told this way, certain facts highlighted, others left out completely.  You know first-hand that it’s possible, by the way you tell a story, to convincingly describe something completely alien to those who actually lived through and survived it.”

It’s fascinating to me that you had such a keen, lifelong interest in history, and bending the moral arc of history and all that, and at the same time you always insisted that people can’t change themselves in any fundamental way.   That optimistic impulse, to read history and learn lessons in hopes of avoiding the worst stupidities of the past,  set against the pessimistic belief that people’s lives are laid out for them immutably by the age of three.

“Well, look, Elie, you can hold up history to support either proposition, or both of them.  Did America change for its black citizens?  You now have a black middle class, much larger than it was sixty years ago.  You have black millionaires, even a black billionaire or two.  Certain changes toward equal rights have been made, as a result of a titanic, organized struggle and sometimes unbearable sacrifices.  You can say a lot has changed.  The power company in Georgia has a policy of firing employees if they say the word ‘nigger’, you know, what is now universally, in mixed company, pronounced as the ‘n-word’.  

“On the other hand, you have, for the vast majority of blacks in America, the same eternal charnel house.  Brown v. Board of Ed was decided in 1954, segregation in education was unconstitutional, it imposed inferior education on black students.  States were ordered to de-segregate schools ‘with all deliberate speed.’ Now, going on 63 years later, longer than your lifetime so far, schools are as segregated as they were the day before Brown was decided.  So you tell me how much has changed for the average Negro in America.”    

I’ll tell you one thing that has changed, with a president who cunningly positioned himself with the White Supremacists, hate crimes are up.   Every other day we see a scene in a Jewish cemetery, grave stones knocked over; a mosque set on fire.  The anger of the master race is quite palpable, and we have a guy who is stoking it in a cynical attempt… well, you just have to listen to the political pronouncements of each side to get a pretty good idea what is going on.  

“History, what good is it?  I can hear my Uncle Peter, an uncurious man with only practical concerns related to life on his farm.   I guess I’m with Howard Zinn on the constructive use of history– taking courage from those rare moments when people have organized and triumphed over evil things like slavery, child labor, denial of basic rights to women.    We have to take courage from these things or we could not act.  We’d be in despair with a destructive narcissist like this one in power, appointing people who are dedicated to destroying the agencies he’s putting them in charge of.  

“We have seen this before, seen the mistakes a divided opposition makes in opposing each other as the far worse evil takes root.  I grant you it makes little sense, looking toward society wide change for the better while denying a person can do it in his own life– but there we are, Elie.  People are not consistent, or logical, or, in most cases, very brave.”    

The skeleton looked over his shoulder to Cortlandt Road and we both pictured the line of cars, traveling slowly past after being energized by Pete Seeger and Paul Robeson, and their message of brotherhood and positive social change, at the moment the fist sized rocks began pelting down on their windshields.    

“The power of hatred, Elie, one of the big ones in human affairs,” said the skeleton.  

No shit, Shylock.