"MEMORIES OF THE GREAT DEPRESSION: A Time Remembered — My new (third) book — Released December 13, 2022

 

"The Stuffed Animal" — My illustrated children's Christmas Book — My second book — Released November 12, 2021

 

MEMORIES OF THE GREAT DEPRESSION: A Time Forgotten — My First Book! Released — October 5, 2021

 

Merry Christmas to All

Something is missing in my neighborhood this year. There are few outdoor Christmas lights and decorations. In other neighborhoods, many houses are still brightly decorated, but not in mine.

It wasn’t terribly long ago that most homes in my neighborhood were decorated. But not anymore.

As I drove down a dark street near my home the other evening, my thoughts recurred to a Christmas in a suburb just North of Chicago. We moved there in December of 1948. I was in second-grade at the time.

I can still vividly recall my mother’s younger brother, Dan, coming to our home, at mom’s request about a week before Christmas. He came to put up multi-colored outdoor lights on the evergreens in front of our front bay window, and up the trellis that supported the roof over our front porch — in the zero-degree weather. Mom had noticed that our home was the only home on our block without lights. She loved the lights. It was her way of saying “Merry Christmas!” to our neighbors, including those down the block that we had yet to meet.

A couple nights later, the weather grew milder and mom decided we should all see the lights in the more affluent section of our village, on the other side of Cicero Avenue. I can still recall the avenues with bumper-to-bumper traffic. It looked as if everybody on the northside of Chicago had the same idea. Some homes seemed to have 1000 of the old 9-volt colored lights.

The streets of “the Towers” were vibrant and beautiful.

Near the end of our tour, we came upon the Allgauer Home — the home of Gustav “Gus” Allgauer of restaurant fame. His home was ablaze with lights. The large two-car garage had been converted into a living Nativity set. Mary and Joseph and the shepherds were neighbors in costume. Sheep and a donkey, if I recall correctly, and a camel played themselves. Christmas carols played softly in background.

In the years that followed, my brother Tom and I replace Uncle Dan as mom’s outdoor Christmas light putter-uppers. I loved putting the lights up and seeing the house and our neighborhood homes decorated for Christmas. We did it every year as long as we lived there.

And so did the neighbors. I can still recall colored lights shining through the 18-inches of snow, dumped by the “Great Christmas Eve blizzard” of 1950.

The Allgauers also continued to decorate, but a bit more modestly. The animals made no return appearance. It seems there were complaints from the various neighbors — or perhaps the Grinch — about the animals partying and celebrating into the wee hours of the night, and even until the dawn.

Since buying my first home in the Quad Cities, I have maintained mom’s custom of outdoor Christmas decoration. It’s been our way of saying, “Merry Christmas” to the neighbors I know, as well as those whom I have never met.

May our lights, and the others, remind you of the real reason we celebrate Christmas.

First Published in the Moline Dispatch and Rock Island Argus on December 18, 2022. 

Copyright 2022, John Donald O'Shea

The Mainstream American Press — a Press Unworthy of its Name

I always trusted that American newspapers, radio and TV would be our foremost and staunchest defenders of our First Amendment’s guarantees of Freedom of Speech and Freedom of the Press. It appears that I was terribly naïve.


I always thought that American press hated the thought of government censorship and prior restraints. Here again, I was dead wrong!


I always thought that the American press would scream “bloody murder” at any government attempt to suppress coverage of news unfavorable to the government or a particular political party. It appears, I was a fool.


Instead, a huge segment of the American press — including this newspaper — seems to be operating on the premise that “If it’s not reported, it didn’t happen!”


By way of background, in 2020, Twitter admittedly, and Facebook and Google, in all probability, at the urgings of agents of the U.S. Government conspired and colluded to deny the American people information about the “Hunter Biden laptop story” — information that could possibly have changed the results of the 2020 Presidential election. Had that now admittedly truthful information been made public, and further and fully investigated by an honest and vigilant press worthy of its name, a few thousand voters in three key states might have voted for Trump instead of Biden. Sadly, we will never know.

Would it have made a difference to the voters had they known that in Hunter Biden’s dealings with Communist China, that Hunter was demanding 10% for the “Big Guy?” Who else other than candidate Joe Biden could the “Big Guy” have been. What else could “10 held by H for the big guy” have meant?


The New York Post reported on the story. Whether the New York Post’s story was truthful was for the American people to decide; not for political operatives in the U.S. government to decide.


This information was suppressed on numerous dishonest, make-weight premises: it was hacked, it was “Russian election meddling,” “it was disinformation,” “it was misinformation,” “it was false,” etc.


The problem with all these justifications,” is that the First Amendment provides that Congress shall make no law abridging freedom of speech or freedom of the press. The determination of whether a story is “hacked, Russian meddling, disinformation, misinformation or false” is left exclusively to the American people — not to the U.S. government!


The government of the United States has no power to censor political speech. Censorship is not one of the “express powers” granted to any of the three branches of the U.S. Government.


Indeed, the U.S. Supreme Court has long ago held that all three branches of the government are expressly prohibited by the 1st Amendment from abridging freedom of speech or the press.


In the 1857 Dred Scott case, the U. S. Supreme Court held that if Congress lacked constitutional power to do something, it could not delegate that non-existent power to any creature of government., such as a territorial government or agency.


I know of no federal court case that states that where the U.S. government is expressly forbidden to do something under the 1st Amendment — such as abridging free speech or free press — that it can evade that 1st Amendment’s prohibition by acting through private individuals or private corporations. If that’s the law, the 1st Amendment is a dead letter.


And that brings me to the crux of this op ed — the refusal of the mainstream media — including this newspaper — to report on the release of Twitter’s internal emails by Elon Musk — emails that Musk has given an independent journalist, Matt Taibbi, relative to the Hunter Biden laptop.


Remember, that at this point in time, even the NY Times has conceded that the Hunter Biden laptop story it true.

On December 2, 2022, Taibbi released the first thread of Twitter emails. You can read them yourselves — but sadly not in this newspaper.


The First Amendment grants the government no power whatsoever to impose a ”prior restraint” to prevent the American people from seeing a story, and from forming their own judgment as it’s truth or falsity. It is for the American people, and not the government, to decide whether the account is Russian meddling, disinformation, misinformation, or utter falsehood. In America, given our First Amendment, whether the information is meddling, disinformation, etc., is a question to be determine in the “public forum” — the “marketplace of ideas.” The premise of the First Amendment is that if the people hear all sides of the issue, they will come to the correct judgment. There is no other rule consistent with the operation of a democratic republic.


The suppression of speech — especially political speech — is the hallmark of totalitarian government — of Hitler, Stalin, the Castro brothers, the Chinese Communists ….


The mainstream media has a duty to let the American people see what their government and its agents have done to emasculate the 1st Amendment. So does this newspaper.


And what is more chilling, is that this may be but the “tip of the iceberg.”

First Published in the Moline Dispatch and Rock Island Argus on December 11, 2022. 

Copyright 2022, John Donald O'Shea

The appearance of impropriety causes polarization of the parties

Tuesday, November 8, 2022, was “mid-term election day.” On November 17, the Republicans finally won seat number 218 to give them control of the U.S. House of Representatives, when Mike Garcia was finally declared the winner of a seat in Northern Los Angeles County.

As I write this piece, 10 days after the election, five House seats are still undecided. 25% of the ballots unbelievably still remain uncounted in California District 22!

The Rules of Ethics, governing the conduct of judges, mandate that it is not enough that a judge acts with “propriety.” The judge’s action must also be free from the “appearance of impropriety.” Judges have been sanctioned, even though they committed no wrong, in cases where their actions have given rise to an “appearance of impropriety.”

If our elections are to have the confidence of the American people, that same rule must be equally applicable to our national elections — they must be free of the appearance of impropriety.

When an election takes place on November 8, and when the “counting” of ballots continues on into November 18, it gives the appearance that whoever is counting ballots is committed to continue counting until he “finds” enough ballots for his candidate to win.

When an Arizona Secretary of State, charged with the duty of conducting the election and counting the ballots, continues to count ballots a week after the election, there is an “appearance,” even if not a “reality,” that she is continuing to count until she finds enough ballots to guarantee her own election as governor.

When an operative of either political party goes to a nursing home, provides the residents with blank ballots, assists the residents in filling them out, “harvests” them, and then delivers them to a “drop off box,” that also creates an appearance of impropriety.


In 2004, the Commission on Federal Election Reform was created by former President Jimmy Carter, a Democrat, and former Secretary of State James Baker III, a Republican, in the aftermath of the 2000 presidential election. The Commission’s Report began, 

"Elections are the heart of democracy. They are the instruments for the people to choose leaders and hold them accountable. At the same time, elections are a core public function upon which all other government responsibilities depend. If elections are defective, the entire democratic system is at risk.

"Americans are losing confidence in the fairness of elections, and while we do not face a crisis today, we need to address the problems of our electoral system."

Sadly, since that date, we have had three major crises.

1. After the 2016 election, when the Democrats and Mueller investigated President Trump, culminating in Trump’s first impeachment for “Russian Collusion.”

2. Stacey Abrams claimed she was the winner of the 2018 Georgia Gubernatorial election, and that the election was stolen from her.

3. President Trump still claims that he won the 2020 election, and that Democrats stole the it from him.

The result of the “major crises” is that a great many people do not trust the results of our elections. Even worse, the country daily grows increasingly divided.

All three of these “major crises” are premised on the belief that our elections are/were not secure.

You’ve heard the claims: “There was Russian tampering!” “The ballots were filled in by the ballot harvesters!” “The voting machines are programmed to undercount Republican/Democrat (take your pick) ballots!”


The CFER proposed the following reforms, which still make sense:

• A universal system of voter registration in which the states, and not local governmental units, would be responsible for accurate voter lists. Voters would register only once during their lifetimes. The lists would be inter-connected to allow for easy removal of duplicate registrations and for easy updating.

• To ensure that a person arriving at a polling site is the same one who is named on the list, states would provide free photo IDs. To make acquisition of the free ID easy, States would increase the number of registration sites.

• Provisional ballots would be provided for voters without a photo ID during a transitional period, which would be counted upon signature verification.

• Voting machines and the software would be pre-tested by independent testing-providers.

• An auditable paper backup system would be used to give confidence to voters using electronic voting machines that their votes will be counted accurately.

• State election management bodies would be reconstituted on a nonpartisan basis to seek to insure independence and effectiveness.

Florida and Georgia required photo IDs in the 2022 election. Have you heard a single claim the requirement disenfranchised voters? Minorities? Caused long lines? What important thing can you do in your life without a photo ID?

The CFER made no recommendation concerning “ballot harvesting.” It didn’t exist in those days. But the solution is simple. Permit ballot harvesting only where a representative of each major party is present to ensure that there is no undue influence by the other party, and that the vote harvested is really the voter’s, not the harvester’s, and video the “harvesting party.”

The appearance that elections are entirely fair eliminates one major justification for the polarization of the two political parties.

First Published in the Moline Dispatch and Rock Island Argus on November 27, 2022. 

Copyright 2022, John Donald O'Shea

Legislatures cannot tell judges to ignore the most material facts in setting bail

Beginning in 2023, Illinois will have a new law governing pretrial release on bond. Prosecutors are decrying the new law, labeling it “cashless bail.”

While the new law is hardly a model of clarity, I am not sure that it mandates “cashless bail.”

As a starting point, let’s look at the bail law that was in effect during my judgeship.

In the 26 years when I was on the bench, bail in Illinois criminal cases was governed by the Illinois Code of Criminal Procedure, Chapter 38, Sections 110-1 thru 110-17.

While other forms of bail were provided for, the two forms that were almost exclusively used were 10% bonds and Recognizance Bonds. The two most important conditions of those two bonds were (1) that the defendant should appear for trial and for all court hearings and (2) that the defendant should not violate any criminal laws while released on bond.

The difference between the 10% bond and the recognizance bond was simple. If the judge set a cash bail for the pre-trial release of the accused, if the bond was set at $5,000, the defendant had to post $500 to be released. If the judge allowed the defendant to be released on a $5,000 Recognizance Bond, the defendant merely signed his name and was not required to post any money. Regardless of the form of the bond, if the defendant violated his bond, the bond could be forfeited and a judgment entered against the defendant for the full amount of the bond (in this example, $5,000).

In those days, the legislature provided in 110 §2:

“When from all the circumstances the court is of the opinion that the accused will appear as required …, the accused may be release on his own recognizance. 

 

“This Section shall be liberally construed to effectuate the purpose of relying on criminal sanctions instead of financial loss to assure the appearance of the accused.”

Between 1990 and 2000 when I was Presiding Judge in Criminal, release on recognizance, as shown above, was the expressed legislative preference. For a Class 4 felony cannabis offense, if the defendant had no prior record, the state would almost always agree to the defendant’s bond being a recognizance.

On the other hand, if the defendant was already on bond, probation or parole when the new felony offence was committed, or if the defendant’s record suggested that he was unlikely to appear for trial, or likely to commit additional offenses if released on bond, the 10% bond was used. That was also true in more serious felonies such as burglary, robbery and larger thefts.

My rule of thumb as a judge was to release the accused on recognizance if asked to do so, unless his record suggested that he (a) was likely to jump bond, or (2) his pre-trial release would create a danger to law-abiding citizens and/or their property.


The new Senate bill, begins by stating:

The General Assembly recognizes that the promotion of public safety and protection of crime victim rights are two of the main focuses of our State's criminal justice system; it further acknowledges that protecting the rights of the accused is central to the integrity of our State's criminal justice system.

“… bail but shall instead focus on a person's threat to public safety or risk of failure to appear before a court of appropriate jurisdiction.

The new section 110-5 provides:

“In determining the amount of monetary bail or conditions of release, if any, which will reasonably assure the appearance of a defendant as required or the safety of any other person or the community and the likelihood of compliance by the defendant with all the conditions of bail, the court shall, on the basis of available information, take into account such matters as (some 20 factors are listed).

“There shall be a presumption that any conditions of release imposed shall be non-monetary in nature and the court shall impose the least restrictive conditions or combination of conditions necessary to reasonably assure the appearance of the defendant for further court proceedings and protect the integrity of the judicial proceedings from a specific threat to a witness or participant. Conditions of release may include ….”

I read the paragraph immediately above as doing nothing more (a) that creating a presumption or 

preference for “non-monetary” bail, and (b) providing that whether the release is monetary or non-

monetary, that the court shall impose “the least restrictive conditions … necessary.” In short, I read it, just as I read the applicable statute during my years on the bench.

What is bizarre about the paragraph is that legislature inexplicably ignores what it just said earlier in the introductory paragraph to the legislation:

“The General Assembly recognizes that the promotion of public safety and protection of crime victim rights are two of the main focuses of our State's criminal justice system….”

If in weighing the evidence whether to release the accused on “non-monetary” bail, the court cannot consider one of the two legislatively stated “main focuses of the State’s Criminal Justice System,” then the legislation is absurd. But where one interpretation of the law renders it absurd, and a second makes sense, courts opt for the latter result. An absurd process falls short of due process.

Imagine a statute that provided in imposing a sentence for murder, the court could not consider the danger the murderer posed to the public.

The courts of Illinois have jurisdiction over all “justiciable matters.” The legislature cannot tell a court how a case must be decided, or that clearly relevant evidence isn’t.

A statute that tells a court it can’t consider evidence that any reasonable judge would find material, and which the legislature itself says is a “main focus” in the matter, is an unconstitutional as an interference with the “inherent powers of the court” to provide a just result in the matter before the court.

For that reason, to avoid declaring the statute unconstitutional, it must be construed to allow judges to consider evidence that has been found by the legislature itself to be a “main focus,” and to set a mone-tary or non-monetary bond as the obviously material evidence dictates.



First Published in the Moline Dispatch and Rock Island Argus on November 13, 2022
Copyright 2022, John Donald O'Shea