My favorite hobbies involve creating things. I bake sourdough breads, and have been creating my own recipes since long before coronavirus hit. I build things out of wood. That’s a more recent hobby, and one of the first things I ever built is what I call the “Proofer Beyond a Reasonable Doubt™,” which (obviously) I built because of my breadmaking hobby, and named it what I did because of my work here.
But by far my favorite hobby, which has been lifelong, is photography. I periodically exhibit my work, both in group exhibits at various studios, and on my own. Renaissance-period art inspires most of my work. And one of my favorite Renaissance artists is Hieronymous Bosch.
Bosch created one of my favorite art pieces ever, known these days as The Garden of Earthly Delights.
Hieronymous Bosch and the Garden of Earthly Delights
The Works of Hieronymous Bosch
Bosch’s work, to put it mildly, is not your typical Renaissance fare. In fact,
The artist’s work has been influential in the development of artistic movements decades and, in some cases, centuries later; Bosch really was ahead of his time. Most notably Bosch’s work is seen as a vital precursor to surrealism and, 400 years on from his death, some have gone so far as to crown him the first surrealist. In a period where the artistic consensus was one of realism, Bosch put together pictures that were positively dreamlike.
I use the word “nightmarish,” rather than “dreamlike.” There’s a reason one of Bosch’s nicknames is “the creator of devils.” The Art Story website says:
Hieronymus Bosch is most celebrated for his detail-drenched and symbolic narrative renditions of the dance between heaven and hell through biblical-themed landscapes upon which play a revolving cast of fantastical, and often macabre humans, animals, monsters, and make-believe creatures.
And, as the article also notes,
Bosch is noted for his profuse imagery of hell — as metaphor of our greatest fears and deepest desires; making him the preeminent image-maker of the absurdity and terror in our on-going human search for balance between the natural and spiritual worlds.
Almost nothing is known of Bosch, the man, except that he was a member of a particular religious order, and appears to have been obsessed with the idea of sin. Most of his works, including the Garden of Earthly Delights, focus on this.
The Garden of Earthly Delights
Coronavirus forces me to work more often these days in my home office. And that’s where my favorite Hieronymous Bosch hangs.
In addition to the copy of Hieronymous Bosch’s “The Garden of Earthly Delights,” I have a figure of the Tree Man from the “Hell” panel of the triptych. (Mine doesn’t actually have all the other parts in it, but you can get that one here for a higher price.)
The Garden of Earthly Delights is, as mentioned, a triptych. Three panels combine in such a way that the two outer panels can close in on themselves. Bosch’s triptych tells a story, albeit one many art historians say we can’t really understand. (But I think this documentary certainly seems to make sense of it.)
The outer panels of The Garden of Earthly Delights, when closed, start the story. The story, by many accounts, tells of the creation of the world, of mankind, and of the development, and end of, sin.
Bosch-like images often invade my
dreams nightmares. But last night the sins of man, and Bosch’s demons, meshed perfectly with my work as a lawyer during the time of coronavirus.
No doubt I should have made better notes about my nightmare. Writing this section, it’s been two days past. No doubt, my memory has already started playing with me, maybe even making more sense of the nightmare than necessary. But it doesn’t really matter, because the post isn’t so much about the details of my nightmare. It’s my thoughts on the connection between coronavirus, The Garden of Earthly Delights, and my work as a lawyer.
Lockdown, Stay-At-Home, and Literal Deadlock
But it’s not just the details of that night’s nightmare that slips away. Details regarding my past two, or two-and-a-half month’s (or more?) work as a lawyer, and particularly keeping up with the courts are muddled, as well. Stay-at-home, I find, makes it harder to remember what happened when. It gives a taste of what it must be like to be a prisoner, particularly a prisoner before conviction—as I have not yet suffered a visit from coronavirus.
I mean only a taste, of course. A hint. Something more to think about when thinking about my clients.
The first real victims of coronavirus who had not actually caught the disease yet were prisoners. Some of whom are my clients. Almost immediately upon realizing that coronavirus was a real problem, Governor Newsom suspended the Constitutions of the United States, and of California.
Authority for deciding exactly how to ignore the Constitution, as relates to people caught up in the legal system, was handed over to the Chief Justice of the California Supreme Court. She responded by immediately denying speedy trial rights, among other things, to everyone who might want one. She also expanded the time period for holding people without probable cause from 48 hours to seven days.
Locked up on a bogus charge, and eager to show that in court? Too bad. Got a strong argument for a possible bail reduction? Fuggedaboutit.
Stay-At-Home Necessary, Stay-In-Jail a Potential Death Sentence
I feel conflicted about this whole thing. It is my opinion that stay-at-home, limited operations—including court operations—and other measures to control the spread of the coronavirus, are temporarily necessary.
On the other hand, in Fresno, where my office is located, as well as in Madera, Kings, Tulare, Merced, and Mariposa counties, where I defend people against accusations—both true and false—the shutdown has left a lot of people in legal limbo, and far too many in jail. In places around the nation, jails and even prisons are releasing people to reduce their exposure to coronavirus.
Not so Fresno, nor most of the counties just mentioned.
It helps to be a friend of the President, of course, but thousands of others have been released, as well. But for many, confined in spaces where “social distancing” is impossible, imprisonment on crimes large, small, or not yet found true, became a death sentence.
Conviction is in the Offing
Worse yet is the knowledge that I am almost certainly going to eventually have my own fight with coronavirus. After having taken away the rights of prisoners on the front-end. Fresno courts are preparing to take them away on the back.
Coronavirus has made a shambles of my ability to clear cases, resolve cases, or prepare for trials. Cases need investigating. I need to meet with witnesses, potential witnesses, and clients. Sure, I can talk to people on the phone. But it’s more difficult to gauge people over the phone. You have to fire without seeing the whites of their eyes.
In addition, I frequently collaborate with others—colleagues, experts, etc. Meetings increase exposure to coronavirus. Stay-at-home, and cancelled conferences, reduce exposure to collaborators.
Return to Court, Full Speed Ahead, Damn the Poor Prisoners
So now comes the order—too early in my opinion—to restart trials in Fresno, apparently beginning June 15, or as soon thereafter as possible.
Last week, over my objection, Judge Skiles set one of my most complicated sex cases for trial in July. I already have another complicated sex case set for trial in July, for which coronavirus has made preparation nearly impossible. In addition, when it suited the court, judges in four counties in which I currently have open cases just willy-nilly continued them for anywhere from two to three months, based on the aforementioned suspension of rights. And they did so without consulting with me, or any other attorney. In one case, which was then set for trial, my office has been trying unsuccessfully ever since to find out what the new dates are! Consequently, my calendar for June and July is an absolute mess. I’ve no room to do a trial in those months even if I wanted to, which I don’t.
Speedy trial rights can be waived by prisoners, of course. And when necessary, they do it. Both my clients in the aforementioned cases did it.
In the case Judge Skiles set for trial, I didn’t even have the majority of the discovery. Tuesday, almost a week after Judge Skiles’ order, I finally received a memory stick with 12 gigabytes of data. This includes video interviews of alleged victims. It contains PDF files of logs, and reports. G-d only knows what I am going to find there, and what that means for further investigation, or finding and hiring of experts.
In the Jungle, the Courtroom Jungle, The Jury Weeps Tonight
Well, not tonight, obviously. But I figured in this metaphorical post, I might as well mix as many as possible.
I frankly see no way that jury trials are going to be possible in July. Not safely, anyway.
Sure, California is allegedly past its coronavirus peak. But we are not yet ready for a return to The Garden of Earthly Delights, unless our aim is for the Hell panel.
There are a number of problems in believing that we are ready, not the least of which any historian could tell you about. In particular, there was a second (and then a third) wave of infection that spread around the world during the misnamed “Spanish flu” of 1917-1919. Note that time period, by the way. Two years!
But the majority of deaths from Spanish flu occurred in 1918, during the second wave. And part of the reason for the deaths in the second wave was a failure of public health officials to endorse—and of authorities to enforce—quarantines. Or at least a reduction in gathering people together in groups.
Guess what we do during trials? Bingo! We gather people together in groups. You might be thinking “12 jurors, not such a large group.” Haha! You still have to pick the jury. This is usually done by having a courtroom full of potential jurors, which is slowly whittled down until you end up with your 12, plus one or three or whatever number of alternates. The rest will go home to be whittled down by coronavirus.
Unmasking the Danger
I don’t want to be in a courtroom with a group of people right now. Not now. Not in the next two or three months. It is bad enough having to go to the grocery store, which I try to do at off-hours. Too many people are ignoring so-called social distancing guidelines. One way aisles at the grocery? Screw that! Too complicated! Masks? Freedom! You can’t make me wear no steenkink mask!
Forget the fact that we make people wear seatbelts. You can’t ride a motorcycle without a helmet in many states, including California. You aren’t allowed to smoke in public buildings. And so on.
Why? Safety concerns. And that last, about smoking, is particularly aimed at protecting other people from smokers’ bad life choices.
You don’t want to wear a mask? Fine. Stay home. Don’t go out in public. Pretend it’s like smoking in a grocery store. You want to smoke, you stay out of the store to do it. You go in the store, you put out your cigarette before entering.
And, I realize some shelves at the stores are empty, but the sandwich shop isn’t going to refuse to sell to you just because you leave the rocket launcher at home.
Yeah, like the analogy, masks are not perfect. But if you’re going to come to court to sit on a jury for a too-early trial that I’m forced to be part of, I would rather you not bring potential death with you. That means that even before ever getting a jury summons, you have to have been practicing safe social practices.
If you want to galavant like the sinners in the central panel of The Garden of Earthly Delights, fine. But I don’t want you dragging me to the Hell panel with you.
Careful Consideration of Evidence
Aside from the other constitutional concerns I have about lifting the courtroom barriers, and rushing to trials too quickly to prepare, I’m concerned about the impact on the trial process itself.
First, there is the problem of picking juries. What will we do about people who—like me—think it’s too soon, and don’t want to serve? Are we going to end up with juries comprised only of people who are cool with it? Guess what that means?
[F]ace masks are tied to the political conflict over our response to the coronavirus. Those who lean left politically tend to see the virus as a more dire threat; those on the right are more likely to downplay its seriousness or compare it to less deadly strains like the flu, often following the lead of conservative politicians.
So much for cross-section of the community.
Second, suppose we do somehow end up with a mix of juror types. Does that mean we’re going to have jurors, who are like me, who don’t want to be there, and just want to get it over with?
[One] report recognizes that needs, resources and facilities — not to mention attitudes about the need for precautions — will vary widely around the state and says each county should tailor its own plan after consulting with stakeholders ranging from lawyers and clerks to sheriffs and facilities managers.
What about jurors? We give them a say on the front-end, and we warp our already-warped system for selection of a cross-section of the community. We don’t give them a way on the front-end, and we end up with jurors having a say in how long it takes them to “carefully consider” the evidence before a decision.
Mistrials, Quarantines, and Juror Deaths?
Third, what about that coronavirus rearing its ugly head in the midst of our surreal Garden of Earthly Delights trial? Do we get a mistrial, along with the possibility of quarantine for everyone, and maybe a couple of dead jurors? So we do our trials in July and August, generate a second wave—moving it from the jails to the courts—and then have to do it all over again anyway?
We Aren’t Ready for Jury Trials
The simple fact is, we are not ready for jury trials being forced over the objections of any party. From where I sit, though, it looks to me like the defense side of the table will suffer more—and therefore should be objecting more. Prosecutors, and their “teams” of police officers, experts, etc., typically believe they have enough evidence to convict at the moment of arrest. Or at least at the moment a Complaint has been filed with the court.
We don’t need the jury problems noted above—and, by the way, this already-too-long article hasn’t even considered proposals for barring the public from courthouses, and the potential for “Zoom trials.” We don’t need even more unfairness than already leads to bad convictions on contrived and poorly-considered evidence.
We don’t need our courts to epitomize the Hell panel in The Garden of Earthly Delights.
What happens to accused person’s rights in the courtroom is bad enough without having the courts emulating the birdman from The Garden of Earthly Delights Hell panel. Nor do I want jurors “deliberating” faster than you can sing the Butt Song from that same panel.
Without a careful consideration of, and plan for, the issues discussed above, we are simply not ready to resume trials in the midst of a pandemic—temporarily waning, or not.