Haliburton on the hot seat?

News reports yesterday and today indicate that Haliburton is about to catch its share of the liability for this summer's Gulf of Mexico oil-spill disaster. Faulty materials supplied by the giant firm may have been at fault in the blow-out, these reports suggest. Perhaps Haliburton ultimately will have to give back to us taxpayers some of the billions it made in Iraq.

And how did it get to make all those billions, often through no-bid government contracts? Who knows? I guess it is only a coincidence that Dick Cheney, between his stints as Secretary of Defense under George I and VP under George II,worked for Haliburton and received millions in compensation.

See:

A review of "The Social Network"

Here's a review of "The Social Network," written by my daughter Claire and me for The History Place.

Ned McAddo and the Molly Maguires now available from Amazon

Other of my books available on Amazon:

The Prosecution of George W. Bush for Murder (Redux)

Well, I finished off Bugliosi's book on the way in to work this morning.
Here's what Wikipedia says about it:
"The Prosecution of George W. Bush for Murder is a 2008 book by former prosecutor Vincent Bugliosi. It argues that George W. Bush took the United States into the invasion of Iraq under false pretenses and should be tried for murder for the deaths of American soldiers in Iraq. The book was virtually ignored by the mainstream media but sold over 130,000 copies within its first three months of its release.
Content and themes
Bugliosi argues that Bush intentionally misled Congress and the American people about the evidence that he said mandated going into Iraq and overthrowing Saddam Hussein. Therefore, Bugliosi argues, the deaths of over 4,000 American soldiers and 100,000 Iraqi civilians (as of spring 2008) since hostilities began amount at the very least to second-degree murder. He further states that any of the 50 state attorneys general, as well as any district attorney in the United States, has ample grounds to indict Bush for the murder of any soldier or soldiers who live in their state or county.[2] Bugliosi says that if he were prosecuting the case, he would seek imposition of the death penalty, and that impeachment alone would be "a joke", considering the magnitude of Bush's alleged crimes.[3]
The strongest evidence against Bush, Bugliosi says, is a speech on October 7, 2002 claiming that Iraq posed an imminent threat to the security of the United States and was capable of attacking America at any time with his stockpile of weapons of mass destruction. A National Intelligence Estimate of less than a week earlier stated that while Iraq did have WMD capabilities, it had no plans to use its weapons except in the capacity of self-defense, or if the United States threatened to attack Iraq. Moreover, according to Bugliosi, the president and his administration edited the 'White Paper', or declassified version of the NIE released to Congress and the public, censored in a way that made the Iraqi threat seem more ominous than it actually was.
In addition, Bugliosi asserts that the Manning Memo shows that, far from making serious efforts to avoid war, Bush considered the possibility of provoking Saddam into starting a war by sending U2 reconnaissance aircraft, falsely painted in UN colors, on flights over Iraq along with fighter escorts, and if Saddam ordered them shot down, it would constitute war.
He also argues that Bush pressured intelligence agencies to find proof that Saddam helped al-Qaeda plan the September 11, 2001 attacks.[4]"
And here's what the author says about his book in a video clip.
To get some balance into my reading, I've just begun John Yoo's newest book, Crisis and Command
Yoo, who is now a law professor at Berkeley, was a Bush Administration apologist for some of the abuses to civil liberties sanctioned and/or engaged in, during the Bush presidency. By the way,Yoo is currently being sued by Jose Padilla for his role in Padilla's long incarceration without legal counsel. See Padilla v. Yoo, 633 F.Supp.2d 1005 (N.D.Cal. 2009)(which held with regard to Yoo's motion to dismiss, "The motion is denied as to all claims with the exception of the claim for violation of Padilla's rights under the Fifth Amendment against compelled self-incrimination.... The remainder of the motion to dismiss is DENIED.")

Youngest Guantanamo detainee pleads guilty

Omar Khadr --- a 24-year-old Canadian citizen and the last person holding Western citizenship among the detainees --- plead guilty to five charges, including the murder of a Special Forces medic in Afghanistan. Khadr was 15 when he was captured there.

Under the plea agreement, Khadr will serve one year in Guantanamo, and then can apply to be relocated to a Canadian facility. If the Canadian government accepts him, he will be eligible for parole under Canadian law after serving a third of his sentence.

The deal, several weeks into his trial before a military tribunal, saves him from the possibility of a life sentence, if he had been found guilty.

Khadr was born in Canada but soon moved with his family to Afghanistan. His father, said to have been an associate of Bin Laden and a radical jihadist, was killed in a gun battle with Pakistani forces, when Khadr was 10.

Combatting terror from above

I mentioned that my audiobook of the moment is THE PROSECUTION OF GEORGE W. BUSH FOR MURDER by Vincent Bugliosi.
Bugliosi's book is perhaps at its most disturbing when he shows how the Bush administration blatantly lied to us about the existence of WMD in Iraq... the stated reason we went to war there. Why did we buy that lie?

This question causes me to wonder what people like me --- educators --- ought to be teaching our kids? What should higher ed be expected to accomplish with them? What outcomes ought we to be assessing?

I have long argued that, rather than assessing learning outcomes --- a circular process we lawyers liken to putting the rabbit in the hat, then pulling it out --- we should be doing the more difficult task of assessing our alumni's achievements. Whether they have achieved gainful employment certainly is a major piece of any such assessment, as I've said in a recent blog piece here.

However, an equally important part --- here's where this relates to the Bush Administration's Big Lie about Iraq --- is what the great Brazilian educator Paulo Friere labelled critical pedagogy. As Henry Giroux complains in the 10/22 Chronicle Review, "There is little interest in understanding the pedagogical foundation of higher education as a deeply civic and political project that provides the conditions for autonomy an takes liberation and the practices of freedom as a collective goal." He goes on, "According to Friere, critical pedagogy affords students the opportunity to read, write, and learn for themselves --- to engage in a culture of questioning that demands far ore comeptence than rote learning and the applciation of acquired skills."

Doing this is tough enough. Assessing its impact five, ten twenty years after graduation will be even more challenging. But if we aren't willing to do this, how do we justify our enterprise? Public and non-profit universities enjoy their status because they should a public trust. I fear we have largely lost sight of what that trust really is.

The Prosecution of George W. Bush For Murder

I've just begun this morning the audio version of this 2008 book by Vincent Bugliosi, the prosecutor who tried Charles Manson and wrote HELTER SKELTER about that case in the 1960s.

In this new book, Bugliosi contends that the former president should be tried for the murder of hundreds of thousands in a needless Iraqi war.

The book brings to my mind the movie "W" by Director Oliver Stone.
Here's my review of that film.

VANITY FAIR is a great magazine

It's the magazine that sent Sabastian Junger on assignment to Afghanistan... te assignment that resulted in Junger's new book, WAR

and his new film, RESTREPO

and here's my review of them.

Who did us more harm... the 9/11 terrorists... or the Wall Street tycoons?

"It seems to me that such swine were and are my enemies even more plainly than the Communists, not only because they devoted themselves to robbing me, but also and more importantly because their intolerable hoggishness raised the boobery in revolt, and the ensuing revolt threatened to ruin me even more certainly." --- Journalist H.L. Mencken in 1941, referring to the big businessmen of his day... the days of the Great Deprression.... quoted from:

His words ring equally true today... our days of the Great Recession and the boobs of the Tea Party.

I just read "The Blundering Herd," the story of Merrill Lynch's crash-and-burn, in the November issue of VANITY FAIR. As the sub-prime meltdown loomed, the firm's CEO played golf... by himself! Despite all the harm done, he still walked away into retirement with $161 million, according to the article.

Fortunately, terrorists are not the only culprits put on trial. Consider for example,
In re MERRILL LYNCH & CO., INC., SECURITIES, DERIVATIVE AND ERISA LITIGATION
Derivative Action, 07 Civ. 9696 and Lambrecht v. O'Neal, 09 Civ. 8259, currently pending in federal court in Manhattan. In a March 9, 2010, opinion issued by the federal judge in the case ---692 F. Supp.2d 370--- His Honor writes:

MEMORANDUM ORDER
JED S. RAKOFF, District Judge.

In this massive litigation, arising from the huge losses experienced by Merrill Lynch & Co. (“Merrill”) in the period prior to its acquisition by Bank of America (“BofA”), two of the lawsuits-a consolidated action known as the Derivative Action, 07 Civ. 9696, and a later-filed action, Lambrecht v. O'Neal, originally filed as 08 Civ. 6582 but now refiled as 09 Civ. 8259-raise important and unresolved issues of Delaware corporate law as to which this Court seeks the guidance of the Delaware Supreme Court. In both actions, the plaintiffs were originally shareholders of Merrill at the time of Merrill's allegedly profligate investments of which they complain, and the purpose of the derivative actions was to force Merrill to sue various officers and directors allegedly responsible for wasting corporate assets and other wrongdoing. However, after BofA acquired Merrill in a stock-for-stock swap, the defendants moved to dismiss both actions on the ground that the plaintiffs, who were now BofA shareholders, lacked standing to pursue actions against Merrill, given the requirements of Delaware law that a plaintiff bringing a derivative action not only be a shareholder of the defendant company at the time of the transactions complained of, but also remain a shareholder of that company throughout the litigation. See *372 Lewis v. Anderson, 477 A.2d 1040, 1046 (Del.1984). The Court agreed and dismissed the actions, see In re Merrill Lynch & Co., Inc., Sec., Derivative & ERISA Litig., 597 F.Supp.2d 427 (S.D.N.Y.2009), but without prejudice to plaintiffs' repleading their actions as so-called “double derivative” actions, whereby they would seek to force the board of BofA, as 100% owner of the stock in BofA's Merrill subsidiary, to force the Merrill board to bring the action that the plaintiffs had originally sought to have Merrill bring.

Accordingly, on July 27, 2009, plaintiff in the Derivative Action filed a third amended complaint that repleaded her claim as a double derivative action, and, similarly, on September 29, 2009, plaintiff Lambrecht filed a new, double derivative action known as 09 Civ. 8259. Defendants, however, once again moved to dismiss for lack of standing, claiming that plaintiffs still lacked standing unless they could show (a) that they were shareholders of BofA, not just now but at the time of the underlying Merrill transactions complained of, and (b) that BofA itself was a shareholder of Merrill at the time of the underlying Merrill transactions complained of.FN1

FN1. Plaintiff Lambrecht concedes that she was not a shareholder of BofA prior to the merger of BofA and Merrill. The plaintiff in the Derivative Action alleges that she was a shareholder of BofA (as well as of Merrill) at the time of the underlying Merrill transactions complained of, but concedes that she presently has no proof that BofA was a shareholder of Merrill at that time, although she has received permission from this Court to conduct limited discovery on this issue.


To this Court, these new arguments by the defendants make no sense. What possible policy would be served by requiring that at the time of the underlying Merrill transactions complained of, the plaintiffs be shareholders in Bank of America, which at that time was a total stranger to the transactions? Likewise, what possible policy would be served by requiring that Bank of America, which did not acquire the ability to force Merrill to pursue its “chose in action” against its former officers and directors until the time of the merger, be a shareholder in Merrill at the time of the underlying transactions complained of? FN2 Yet there is at least one decision of the Delaware Chancery Court that seems to hold that just such requirements are part of Delaware law, namely, Saito v. McCall, No. Civ. A. 17132-NC, 2004 WL 3029876 (Del.Ch. Dec.20, 2004), where the Chancellor, with little discussion or explanation, held that “plaintiffs ... were not [the parent company's] shareholders before [the date of the merger], so they cannot bring a derivative suit, double or otherwise,” id. at *9, and that the “claim must also fail because plaintiffs have failed to allege that [the parent company] was a shareholder of [the subsidiary] at the time the alleged harm occurred,” id. at *9 n. 82.

FN2. To be sure, if Bank of America had been a shareholder of Merrill at the time of the underlying transactions, it could have theoretically brought its own derivative action against Merrill. But this is a totally different situation from one in which Bank of America, having acquired 100% of the shares of Merrill as a result of the merger, can force Merrill to realize the value of the chose in action that BofA acquired through the merger by forcing Merrill to sue its former officers and directors. Conversely, no one supposes that BofA acquired Merrill for the purpose of bringing strike suits, or that such a danger would ever be realistically presented by such mergers.


This Court is thus left with unsatisfactory guidance as to what Delaware law requires. Delaware's well-established requirement of continuous ownership to maintain a derivative suit seeks to avoid abuses, such as strike suits, associated with such actions. See, e.g., Lewis, 477 A.2d at 1046; see also 8 Del. C. § 327. However, this policy against interlopers *373 has no force in the double derivative context facing this Court. The plaintiffs' proffered interpretation of the requirements of the double derivative standing-that they be Merrill shareholders pre-merger and BofA shareholders post-merger-is seemingly sufficient to satisfy the rationale underlying the continuous ownership requirement, and, as noted, this Court perceives no additional purpose that is served, or protection afforded, by requiring plaintiffs to have been shareholders of BofA at the time of the alleged wrongdoing by Merrill, let alone by requiring that BofA have been a Merrill shareholder at that time. Such requirements would render double derivative lawsuits virtually impossible to bring except in bizarrely happenstance circumstances.

Nonetheless, this Court cannot ignore Saito, which appears to be the only Delaware state court decision directly confronting this issue. Therefore, pursuant to Rule 41 of the Delaware Supreme Court, the Court hereby certifies to the Delaware Supreme Court the question of whether a plaintiff seeking to bring a double derivative suit under Delaware law in the kind of circumstances here presented (i.e., where the plaintiff was a pre-merger shareholder in the acquired company at the time of the alleged wrongdoing at that company and, because of a stock-for-stock merger, thereafter becomes and remains a shareholder in the acquiring company) must also demonstrate to establish standing that, at the time of the alleged wrongdoing at the acquired company, (a) the plaintiff owned stock in the acquiring company, and (b) the acquiring company owned stock in the acquired company. In order to allow the Delaware Supreme Court time to address-or to indicate that it will address-this question, if it so chooses, but so as not to delay indefinitely these ongoing actions in federal court, the Court hereby stays all proceedings in these actions, unless otherwise explicitly ordered by the Court, until July 19, 2010.

SO ORDERED.

In other words, the defendants, including the former CEO, are seeking to weasel out of the lawsuit on the basis of legal technicalities. Let's hope that they fail in this effort and ultimately get what they deserve. i.e., a massive judgment that claws back all the money they pocketed while we watched our pension assets go up in smoke.

I don't know how you feel. I myself think it is sufficiently unfair that these Wall Street bankers pocket obscene amounts of money when they perform well. That they ran off with hundreds of millions while their sacred trusts --- our pension funds --- tanked is a mortal sin deserving of eternal fire and brimstone.

But enough of this hand-wringing. While awaiting the courts' decisions, enjoy "Wall Street: Money Never Sleeps."

Here's my recent review of same:



Wall Street: Money Never Sleeps

By Jim Castagnera
Special to The History Place
10/4/10

Director Oliver Stone is Hollywood’s king of conspiracy theories. In JFK he posited a coup d’etat, engineered by the military-industrial establishment, which wanted a war in Vietnam. In W he has Dick Cheney tell Colin Powell, who wonders about America’s exit strategy prior to the 2003 Iraq invasion, “You just don’t get it, Colin. We’re never leaving.”

Resurrecting Gordon Gecko after 23 years, Stone writes his version of the history of the Great Recession of 2008: “The greatest transfer of wealth from main street to Wall Street in history.” The thing about Wall Street: Money Never Sleeps, as with JFK and W, is that Stone just might be right.

In engineering the greatest financial bailout of all time–some $800 billion of taxpayer’s money–President Obama played down Wall Street’s culpability for the debacle, which gobbled up half of Middle America’s pension assets. But I think all us common folk felt more than a little foolish, as executives at AIG and other bailout beneficiaries rewarded their own ineptitude with massive bonuses from the bailout bucks. Stone’s sequel to his 1987 saga of insider trading plays to our anger and frustration.
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The principal villain in the sequel is played by Josh Brolin, who brilliantly portrayed Bush the Younger in W. In contrast to his Bretton James, Michael Douglas’s Gordon Gecko appears almost benign. The film opens with Gecko emerging from prison, having done eight years of hard time for the insider shenanigans for which he got busted in the finale of Stone’s 1987 film.

This time around, Shia LeBeouf is the young upstart, who falls under Gordon’s spell–but only after first falling for his daughter, Winnie, a campaigner for green energy. The story proceeds on two levels. The Great Recession from which we are still reeling drives the larger drama. Brolin’s Bretton leads an AIG-like financial juggernaut, too big to be allowed to fail. If the financial jargon and Byzantine plot lines are at times a bit hard to follow, well, wasn’t that just how the whole financial-market meltdown appeared to all us main-streeters?

The lesser drama involves Gecko’s efforts at reconciliation with his estranged daughter, played by Carey Mulligan. A little matter of a $100-million trust fund, salted away by Gordon for Winnie in Geneva, overshadows dad’s maudlin machinations to win back Winnie. Does he want her love or her money–or maybe both? LeBeouf’s Jake Moore won’t know for certain until the film’s final scene.

In between Gecko’s release from the slammer and his closing encounter with Winnie and Jake, Stone indulges in some mild acts of nostalgia. Charlie Sheen does a cameo, as the middle-aged rendition of the Gecko protégé who wore a wire and entrapped Gecko two decades ago in the climax of the original Wall Street. Other, minor characters from the first film also make brief appearances, as does Stone himself. Taking a page from Alfred Hitchcock’s repertoire, he pops briefly in and out of several scenes as an unnamed investor.

And, not to ignore the housing market’s collapse, Stone gives us Susan Sarandon, as Jake’s hopelessly leveraged, real estate developing mama. After mom taps out Jake’s last $30,000 and complains that “it’s not enough” to save her properties from foreclosure, her son tells her it’s time for her to go back to work. “You mean a real job?” she blurts incredulously. (A little later, we see her in a nurse’s uniform. Stone suggests she is a whole lot better back as the nurse she once was than as the realtor she had hoped to be.)

Wall Street: Money Never Sleeps is nowhere near Stone’s best film. No great performances stick in the mind while driving home from the theater. And for once, his conspiracy theory probably falls short of the conniving and manipulations that actually went into and came out of the meltdown.

On balance, though, Stone fans and students of economic history alike should find the film to be two hours and 13 minutes well spent. The recent revelation that Michael Douglas is battling what may be a fatal malignancy adds to the nostalgic aspects of the movie. It’s also a pretty good take on the history of our immediate past and a worthwhile sequel not only to its 1987 namesake, but also to the early years of Bush’s presidency at the start of this first, tumultuous decade of the 21st century ala W (which I reviewed for The History Place in October 2008, just as the Great Recession was getting up steam).

Rated PG-13 for brief strong language and thematic elements.

Jim Castagnera, a Philadelphia journalist and lawyer, is the author of "Al Qaeda Goes to College: Impact of the War on Terror on American Higher Education" (Praeger 2009) and Handbook for Student Law (Peter Lang 2010).

Eric Hoffer's THE TRUE BELIEVER (1951)

Nearly 60 years ago, Eric Hoffer, a former longshoreman, wrote a little book about mass movements, entitled THE TRUE BELIEVER.


As you can see, it's still in print, as are other of his works.

The book opens like this:
"All mass movements generate in their adherents a readiness to die and a proclivity for united action; all of them, irrespective of the doctrine they preach and the program they project, breed fanaticism, enthusiasm, fervent hope, hatred and intolerance; all of them are capable of releasing a powerful flow of activity in certain departments of life; all of them demand blind faith and single-hearted allegiance."

Certainly, he could be talking about radical Islam. Could he also be talking about the Tea Party?

Re-reading him after decades, I am amazed at how fresh and contemporary he seems.

The Obama Administration is attempting to revolutionize American education

Today's Campus Magazine's October issue features my article on the Administration's assault on the for-profit sector of higher education. The article focuses on the Department of Education's emphasis on "gainful employment" and its announced intent to link this key statutory concept to graduates' ability to repay their student loans.

Unfortunately, the October 15th issue of the Chronicle of Higher Education reports that Obama has already "faced significant pushback on his plan to tie federal aid to graduates' debt levels and employment. While the administration is unlikely to abandon the proposal, it is under intense pressure from for-profit colleges to soften the so-called gainful-employment rule, and it recently postponed putting out the regulation until after the mid-term elections."

I for one am not too surprised. The for-profits have their own trade association, plus plenty of other lobbyists, on the ground in Washington. Without the ability to take in federal loan money as tuition from their students, many of these entities would probably stop doing business. Read "for subsidy" instead of "for profit."

In my view, not only should the for-profits (aka for-subsidies) colleges be held to a "gainful employment" standard... as I have said before (see below), the accrediting agencies, the not-for-profits, and the public universities should also de-emphasize so-called "learning outcomes" assessment in favor of a gainful-employment assessment approach.

Are accrediting organizations in tune with their times?

Jim Castagnera

The Middle States Commission on Higher Education is making the rounds with a series of regional meetings. I recently attended one conducted at the College of New Jersey (formerly known as Trenton State). The unabashed motive of this road show is to stave off efforts by higher education’s critics to shift accreditation standards into the clutches of a Washington bureaucracy.

Photo of Jim Castagnera
Jim Castagnera
The 100-plus attendees from numerous regional institutions were told that standards will be grounded in “student learning outcomes” assessment. The accreditors said that they seek to demonstrate the “value added” aspects of a college education, but the also contended that measuring student achievement in terms of subsequent employment and earnings should be resisted as “too hard to prove.”
Does recently released data support the Middle States contention? On February 1st UCLA’s Higher Education Research Institute released the results of its 35th annual college student survey. (Greentree Gazette editor Tom Robinson discussed this survey in an e-Series recently.)

Fifty-two percent of the respondents listed “graduates get good jobs” as a top reason for choosing the college they are attending. This data point suggests two things. First, the information about where alumni are working must not be “too hard to prove.” Second, our industry’s undergraduate consumers care very much about this piece of intelligence.

Proponents of measuring student learning outcomes in lieu of tracking subsequent student achievement may counter that 63 percent of the freshmen surveyed cited “a very good academic reputation” as a leading motive for choosing their respective schools.

Meanwhile, the substitution of a school's financial viability as a proxy for academic quality is a questionable practice. Senior Fellow Jon Fuller of the National Association of Independent Colleges and Universities points out that “both federal government and accreditation standards use financial stability as a place-holder for quality education, perhaps because the latter is difficult to measure.” Directly addressing the tiny, religiously affiliated colleges that dot the Deep South, Fuller added, “Many of these schools have been around 100 or 150 years. I doubt that they were ever any less [financially] fragile than they are today. Yet they always have a hard time meeting such standards.”

So student learning outcomes are a clear improvement over at least one other measure - financial stability. But aren't they merely a halfway house between financial stability and subsequent student achievement?

Is there not considerable overlap among the 63 percent of freshman respondents who cited “good academic reputation” and the 52 percent who ticked off “good jobs?”

Is it not logical - and inevitable - that accrediting agencies will be measuring alumni employment and earnings data?

Herewith, some sources of further reading on accrediting and on the for-profit higher education sector:

The latest on the Fort Hood Massacre trial

Associated Press Featured Article
October 16, 2010
Delay considered for Fort Hood shooting hearing
By Associated Press ,

FORT HOOD, Texas (AP) — Testimony to determine if an Army psychiatrist accused in last year's deadly Fort Hood shootings should go to trial could be delayed until after the anniversary of the attack if an investigating officer agrees with a request from defense attorneys.
Major Nidal Malik Hasan: an officer and a jihadist: since 9/11, numerous Muslims living in america have taken the path of violent jihadism, a path also ... An article from: The New American

California, here I come

I'll be attending the Fall 2010 University and Agency Partnership Initiative Conference at the U.S. Naval Postgraduate School Center for Homeland Defense and Security in Monterey.

Global War Studies books available now

This from Dr. Greg Urwin, Associate Director of the Center for the Study of Force and Diplomacy at Temple University:

From: Global War Studies [mailto:pacwar@gmail.com]
Sent: Friday, October 08, 2010 2:48 PM
To: Global War Studies
Subject: Global War Studies...Book News for Fall 2010



From: Global War Studies
Re: Book News for Fall 2010

Please find attached PDFs for several new or forthcoming titles that will be of interest to Global War Studies readers.

If you are an author or publisher and would like to have your titles considered for future Book News e-mailings, please send a message to the address below.

Sincerely,

Lars Grønlund,
Editorial Assistant
Global War Studies
pacwar@gmail.com

Global War Studies: The Journal for the Study of Warfare and Weapons, 1919-1945
The flagship peer-reviewed publication for the community of Second World War scholars, Global War Studies is published in hard copy (print edition) and electronically (PDF edition) 2-3 times annually. To request a subscription application, please send an email to the address listed above.

*********************************************************************************************
Also, here are some of Greg's own books:

My review of "Wall Street: Money Never Sleeps"

Who are the real terrorists in this country?

Ned McAdoo and The Molly Maguires, Chapter Seven

CHAPTER SEVEN (1987)
My nightmare visit by Black Jack Kehoe that morning, followed hotly on its heals by the equally nightmarish events which had just occurred, culminating in my visit to the Montgomery County Jail --- an antiquarian structure, like so many county jails in Pennsylvania, not much changed on its outside since the days of the Mollies --- all conspired to throw my mind back upon memories of our western trip a decade earlier. Perhaps, as I waited anxiously in the anteroom of the court administrator, hoping that Charlie Anderson would see fit to see me, I needed the comfort of pleasant old memories as a shield against the fiery emotions that were blazing in my poor brain on this disastrous Monday morning.
As I camped uncomfortably in Anderson's cramped waiting room, his aged secretary making a point of ignoring me while exchanging pleasantries with everyone else who stopped by with a piece of business for the administrator, I conjured up again the face of that Celtic beauty, Maggie Mulhearn, the chief benefactor of our famous (within the McAdoo family at least, and maybe within the Mulhearn clan for all I knew) journey into the West.
The way it happened was that, throughout the late winter and early spring of '87, Archie researched the Molly Maguires. He recruited me to help out. My task took me to various local libraries, which I was old enough to reach by car. The work was pretty appealing to me, especially after having seen the movie. And I was glad to earn the four bucks an hour that Archie was paying me as what he termed his "research assistant." But the real appeal for me was the (otherwise rather rare) opportunity to drive the Old Man's Caddy around.
Additionally, after getting my first look at Maggie Mulhearn, when I was working in Archie's little law library, which doubled as a conference room (discounting the reception area where he had Ruthy crammed, this and his office comprised the entire suite), where he brought her for one of their periodic progress assessments, my enthusiasm soared.
"Ned, I'd like you to meet Ms Mulhearn, our client," he had announced, startling me from my perusal of some trial transcripts which we had obtained in Xerox form from the Schuylkill County Historical Society just a day or two before.
I remember looking up from the papers before me and going speechless when my own rather limpid blue eyes met her startling emerald green orbs. Obviously having had that effect on callow young men before, Maggie Mulhearn recognized my mooning expression immediately and flashed me a sympathetic and appreciative smile. From that day to this, that look is the way I have chosen --- aw, come on, what choice do I have? --- to remember the most attractive woman I have yet to meet in the flesh.
Anyway, during another progress meeting after that, Archie advised "Ms Mulhearn" that he had concluded that our research required a trip to Idaho, where a sequel to the Mollies' story had occurred some 25 years later. By that time --- mid May --- our research had brought together all the surviving trial transcripts and most if not all the extant published materials, available regarding the Mollies and the Pinkerton agents who had brought them to book. These extensive materials now filled the desk and much of the floor in Archie's office.
"Have you found anything that proves my great grandfather's innocence?" Maggie Mulhearn had asked him in her earnest manner, which he noted never seemed to vary from meeting to meeting.
Archie shuffled some of the historical documents on his roll-top desk. I sat off to one side and waited to contribute something if asked.
"Maggie," he began, "there's plenty here that supports a decision to pardon your great granddad. The trial transcripts, the jury lists, the newspaper accounts... they all point to the denial of a fair trial for him and the other nineteen Mollies who were hanged. But a 'due process' argument based on unfair procedures isn't as compelling as some proof of innocence."
Archie cleared his throat, as was his habit before delivering any sort of disappointing news or an unhelpful legal opinion.
"A pardon is justified where, due to bias or prejudice or some other miscarriage of justice, the defendant was denied a fair trial. The pardon points out in effect that the state was never forced to prove its case beyond a reasonable doubt, because the prosecutor was given an unfair advantage over opposing counsel. Obviously that's what happened here: jurors carefully chosen to exclude all Irish Catholics, testimony from informants who probably had been bribed, the lead witness a Pinkerton agent who likely had functioned in the coal towns as an agent provocateur who incited and even participated in some of the killings personally."
Maggie Mulhearn's magnificent green eyes had grown even larger than normal, sparkling I thought in my adolescent adoration with the intensity of... of... of.... Suddenly all the research materials that had been stacked in my lap spilled onto my corner of Archie's Oriental carpet. He and his client turned to look at me. To my blushing embarrassment I realized I had been unconsciously leaning forward, craning to get a better look at those beautiful eyes, and had become oblivious to the angle of my legs, allowing everything to tumble to the
floor.
Archie looked annoyed by the interruption of his discourse. Maggie Mulhearn looked quietly amused, as if once again, being used to causing such helpless reactions from men and boys, she sensed immediately that she had been the cause of my minor (no pun intended) disaster.
My father resumed, swiveling his chair to an angle at which he could show his broad, disdainful back to his son and still manage to face his client.
"As I've said, all this supports a gubernatorial decision to grant a pardon. Not only the victims of the miscarriage of justice, but also the perpetrators --- such a Franklin Gowen, who left his presidency of the Reading Railroad to personally prosecute your granddad --- are long since dead and buried. A retrial is of course out of the question. Only a pardon will suffice to right the wrong the Commonwealth committed."
"But...", Maggie Mulhearn prompted my Father to continue, while she lit up another of those tiny, unfiltered cigarettes she smoked.
"But," Archie said, "since John Kehoe was never retried and actually acquitted, and since we've done no better than anybody else in our search for a piece of evidence that proves his innocence, the pardon will not really attest to his innocence, but only to the state's wrongdoing at his trial."
Maggie Mulhearn was disappointed but resigned. After all, for more than a century this had been how the historical record stood.
"Is there then no hope?" she finally asked. Though still exiled to the land behind my Father's broad back, I readily imagined his full, pink lips spreading, almost seeming to inflate, into that sly smile he usually reserved for opposing counsel or a hostile witness, the smile that said, "I'm glad you said that. I'm ready for that one."
Archie made a bit of a show of searching around on his desk top before handing over to Maggie Mulhearn a short memorandum I could proudly claim to have written concerning the 1907 trial of Big Bill Haywood, president of the Western Federation of Miners. The bedazzling "Ms Mulhearn" took my humble memo in her delicate white hands and quickly skimmed over it, turning the pages with her long, artistic-looking fingers.
When she looked up from the brief document without comment, my Dad continued, "I believe that if I were to travel out to Idaho and Wyoming and research this Haywood trial, the effort might provide the 'smoking gun' evidence we need to establish inferentially the high likelihood of John Kehoe's innocence. If so, then not only would the governor be more likely to consider a pardon, but the basis of the pardon would go to the substance of the charges and not just to the state's procedural errors. In other words your great granddad wouldn't just be forgiven his sins due to technicalities."
Maggie Mulhearn drew on her cigarette and exhaled through her slightly flared nostrils. My adolescent heart pounded. Had my memorandum proved convincing? Did she like it?
"I believe I see," she said at last. "Since James McParlan was the Pinkerton detective who built both cases, and since Clarence Darrow unmasked McParlan's chicanery in the second case by expressly drawing the parallel to McParlan's tactics in the Molly trials, the record in the second case might..." Her voice trailed off and suddenly she seemed puzzled. "Might what, Mr. McAdoo?"
"Well," replied my Pop. "Darrow, as everybody knows, was a great trial attorney... smart enough to have drawn the inference and made the case without a smoking gun from the Mollies' trials to do it. Certainly if the Haywood trial transcripts reflected any physical or documentary evidence concerning John Kehoe, historians would have brought that out a long time ago."
"So then why go way out there?'
"I believe," replied Archie, "that there may be a number of sources of documentation that haven't been sufficiently explored with the precise purpose of proving the innocence of the Mollies. Ned has attached a list, as you can see. Union records, Pinkerton records, perhaps personal papers of McParlan himself. I think nobody has really looked, since the Haywood trial isn't all that significant in the grand scheme of things, even to labor historians. And the Mollies have been even less so.
"Of course," he continued, "frankly, my efforts to date have amassed time and expenses totaling almost five thousand dollars. So I'll certainly understand if you wish to terminate this engagement and have the remainder of your retainer returned."
Archie and I held our breath. Maggie Mulhearn finisher her cigarette and tamped it out in the "Ocean City, N.J. -- the Family-Friendly Shore Resort" ashtray Archie had provided.
"No, Mr. McAdoo. In for a penny, in for a pound. If you think there's a chance." We both exhaled.
And so about a month later, there the four of us were in our new minivan, cruising along U.S. highway 90, Katy trying to entertain us with her dramatic readings of weird state statutes, and Mom continually coaching my driving.
We'd left Minnesota and hadn't been in South Dakota long when looming up ahead off to the left of the highway was one of the strangest collections of buildings and billboards we had ever encountered along an interstate highway. The billboard shouted, "Buffalo Ridge: Ghost Town and Gold Mine."
Consulting her half-comic, half-serious guidebook, Katy quickly declared that the Black Hills, where discovery of gold in the 1870s led to Custer's Last Stand a couple of hundred miles away in southeastern Montana, were "way over on the other end of the state." But we were tired, our bladders were full, and we were hungry. So a quick poll of my three passengers made my vote to visit Buffalo Ridge unanimous.
I piloted our minivan up the exit ramp.
"You should have used your turn signal," Mom muttered, not missing one last chance to criticize my driving before the end of my current shift.
"Mom...," I began to say there wasn't a car in sight behind us, just one trailer truck maybe half a mile or more away in the rearview mirror. But I stopped myself, and just let it go... then quietly, smugly congratulated myself for my mature self-restraint. For once I hadn't gotten into a sniping contest with my Mother.
The exit ended at a blacktopped road. No cars were coming from either direction. But I came to a complete stop and used my signal to avoid colliding with another one of Momma Karen's crisp little comments. Then turning left I cruised casually down to the collection of shacks and fences which collectively called themselves Buffalo Ridge. Two gas pumps, vending something called Dakota Blend, stood in front of signs saying "Restaurant" and "Fireworks."
I pulled up to the pumps, and true to the travel rules laid down by my Dad, I completed my shift behind the wheel by filling the tank in anticipation of the next leg of our long journey. We had left Philly at four A.M. the day before. The first day's run had taken us through Pennsylvania, Ohio, past Gary, Indiana, and Chicago, Illinois, and dumped us --- dog tired, except for Katy, our only non-driver --- in a dingy Holiday Inn near Madison, Wisconsin. This morning had moved us through the lower reaches of Wisconsin and Minnesota and placed us at Buffalo Ridge in the eastern Dakotas for a late lunch at around two PM on this cool June day.
The family climbed one by one out of the van, stretched and sauntered into the peeling, white plaster building. I pumped 16 gallons of gas into our van's tank, pulled the van into a parking spot directly in front of the "Fireworks" entrance and went in myself. At a lunch counter, beside a cash register, stood a man of about Archie's age, smoking a filterless cigarette that dangled from a sour looking mouth. He hadn't shaved in a couple of days, judging from the black stubble on his tan, leathery cheeks. His thinning black hair was uncombed.
I walked over to him and proffered Dad's Visa card. "Twenty one sixty two," I said.
"All righty," he replied, looking at me as if I had just been beamed down and materialized in front of him at that instant. I imagined what Mom would have said to him: "Which planet was your mind on?"
As he rang up the gas sale, I studied the bill of fare hanging on the wall above an ancient looking grill. The restaurant offered the usual selection of fat-filled, greasy treats: burgers, dogs, fries, onion rings. But also buffalo burgers. "Oh, yeah," I thought. "Now we're out West. Cool."
I was the one who had to be brought back to reality this time. "Want to sign right here?" asked the man behind the counter, his voice deep and resonant, his tone halfway between friendly and indifferent.
"Oh... sure, " I responded, taking the pen he proffered and signing my name to the credit card chit. "Uh, how are the buffalo burgers?" I inquired.
"Come here," he said, walking out from behind his Formica lunch counter and leading the way through the tiny dining area to a screen door at the rear of the building. Swinging the screen door open he pointed to the hillside beyond. The first thing I noted were my parents and Claire walking along the path between two parallel barbed wire fences. Then I spotted the buffalo lounging and grazing in the pens on both sides of the path.
"We raise 'em, butcher 'em and serve 'em right here on the premises," he promised rather proudly, yet with that mushy indifference in his voice, reflecting the nonchalance I found was affected by many Westerners we were to meet during our month out there.
"I guess I'll try one," I said. Then feeling the burning vacuum in my belly, I added, "Better make it two."
Without another word my host sauntered back to his "kitchen" and, as I perused the items scattered around the dining area I soon heard the happy sizzle of burgers on the griddle. I studied with a growing sense of adventure, even excitement, the buffalo and elk heads hanging stuffed on the restaurant walls, as the small room filled with the spicy aromas of the burgers. The operator of this eccentric hostelry had actually begun to whistle a merry little tune as he pressed and flipped the twin buffalo burgers with his spatula. I began softly to whistle the tune myself.
On one side of the dining room was a glass pane behind which a dozen or so human figures sat and stood in deep shadow. A device, just like the gadget that collects your quarters on the front of a pinball machine, demanded fifty cents to see what was masked in the gloom behind the glass. I fished in my pockets and came up with a couple of quarters. I fed them into the two round slots and pushed the slide firmly home. As I released the pressure and the slide snapped back toward me, the world behind the glass leaped to life.
The lights came up so fast and bright they practically blinded me. Simultaneously, a player piano began banging out the Beer Barrel Polka. The shadowy figures turned out to be cowboys, some huddled around a table playing poker, the rest bellied up to the bar. I hardly had time to take in this classic western scene when the dialog began.
"You cheated," said one of the figures, the head shifting jerkily toward the figure next to him.
"I didn't neither," retorted the other, a Bart Maverick-looking professional gambler type.
"Yeh, you did," came the reply. "You had that fourth ace up your sleeve."
"Nobody calls me a cheat."
"No? Well ah'm callin' you a cheat and a lier!"
Guns were drawn. The two other figures seated at the table jerked back as if to avoid being hit in the coming crossfire. The restaurant resounded with loud bangs, four or five of them, and as the Maverick figure tipped backwards toward the floor, chair and all, the tableau went suddenly black once again. I was smiling.
"I kind of like that one myself," said the low, mellow voice from behind the lunch counter. I turned to see him grinning back at me. In his mouth was another Lucky Strike, in his right hand a paper plate with two burgers on big, sesame buns bursting with lettuce and tomato. I walked over and took the plate from him.
"What do I owe you?" I asked.
"Get on over there to the reefer and pick yourself out a cold Dr. Pepper," he replied. "Pay when your finished."
I got my soda from the big cooler and covered my burgers with lots of ketchup before sitting down at a small, Formica-topped table, seating myself opposite a John Wayne dummy decked out in ten gallon hat, six shooters and bandana.
As I bent low to stuff the first bite of a bulging burger into my wide open mouth, Katy led our parents back into the restaurant.
Half walking, half skipping over to my table, she said, "Whatcha’ eating? Smells great." Without a 'by your leave' she picked up the other buffalo burger and stuffed a surprisingly large amount of it into her mouth, biting off what seemed to my horrified eyes to be the better half of it.
"Hey, get your own food," I mumbled, my own mouth now filled with hot, spicy meat, bread and lettuce.
"Oh, Ned, you can order another, if you're still hungry," said Mom, never one to miss a trick.
Archie for his part ignored us all, making a beeline for the lunch bar, where he promptly discovered the house specialty and ordered up two buffalo burgers all his own. Mom followed, having given me her two-cents worth. Katy sat down with me and the Duke and took a long pull from my bottle of Dr. Pepper. I stifled the urge to repeat my admonition, knowing Mom still had one ear cocked in our direction, though she appeared to be intently studying the menu on the wall.
Swallowing the soda, Katy said, "You should see the gold mine, Neddy. It's really cool. There's this dead Indian floating in a barrel or a well or something. Red Cloud. And all these buffaloes and prairie dogs and antelopes."
She gobbled more of what had been my number two burger as she awaited my reaction to this description of Buffalo Ridge.
With all that help from Katy, I was done eating well before my folks even had their food. I was all for ordering another burger to replace what I had lost to "My Sister the Black Hole." But...
"Aw, come on, Nedster. Let's go check out the fireworks." So I satisfied myself with the purchase of a couple of Snickers bars before we went into the retail area of the building to see the instruments of death which were strictly verboten by state law back home in Pennsylvania.
Once there I had to admit to myself (if not out loud to my sister) that some of the colorful cartons, stacked high all up and down two long series of tables lining the walls, were pretty enticing. Katy for her part was a live wire filled with high voltage excitement.
"Ooh, look at this one," she would call to me again and again as she flitted up and down the aisle, fondling this rocket and that Roman candle, as if she were some sort of Mid-Eastern arms merchant on a petrodollar spending spree.
Finally, her heart settled on "Johnny Reb," which I had to agree appeared to be the best buy in the place... an awesome assortment of skyrockets and Roman candles, flower pots and fountains, plus lots of little stuff such as bottle rockets and firecrackers. The whole melange could be ours, the sign tacked to the plaster wall behind the two dozen or so Johnny Rebs piled there said, for the sale price of just $49.99.
"Come on, Ned, let's take one," pleaded Katy.
"I don't think Mom and Dad are going to go for this," I replied skeptically.
Katy gave me a look that, if there were any real justice for men in this world, wouldn't be learned by women until they were at least past thirty. How she could know at fourteen exactly how to use those beautiful green eyes of hers... yes, I admit it, not unlike Maggie Mulhearn's beautiful green eyes... well, it had to be some sort of female instinct handed down over eons of evolution. Besides, she wasn't suggesting anything I hadn't thought of myself, when she said, "We could make it a surprise for them on the Fourth of July."
She added enticingly, "They'll thank us for it."
I didn't believe that for a minute. But there was Johnny Reb in all its four-color, shrink wrapped glory, and here was Archie's Visa card practically burning a hole in my pocket.
"Neddy," Katy pleaded, cocking her head to one side and faking a pout with her lips.
"Okay," I shrugged.
"Goody." She grabbed one of the topmost boxes on the display and hustled up to the counter beside the register. I joined her and once again presented the Visa, furtively craning my neck around the counter to see what our parents were doing. Archie was communing very seriously with his second buffalo burger while Mom was nowhere in sight.
Always a faster thinker then her brother, Katy said, "Mom's probably in the ladies' room. I'll go make sure she doesn't come out too quickly. You get this thing under the back seat in the van."
And, so, that's how the Civil War in a cardboard, shrink-wrapped box wound up under the back seat of our minivan. Black Jack Kehoe, if he really was a terrorist despite all our efforts to exonerate him, would have been mighty proud, I thought as I secreted the Johnny Reb selection before Katy and our folks emerged from the home of the buffalo burger.
While Karen and Archie bickered quietly about which of them was on deck to drive the next leg of our journey, and Katy snuck a peak under the van's back bench to insure that I had packed our new pal Johnny Reb, I grabbed another glance at the back acres of Buffalo Ridge. If you called on all the powers of your imagination, working real hard to suspend belief, the grazing buffaloes and the weathered clapboard exteriors of the fake gold mine and its out buildings actually gave you the funny feeling of being back in the West of around a hundred years ago. I felt a little chill course up my spine, ending in a slight tingle among the hairs at the back of my skinny neck.
"Hey, Ned, let's go," my Old Man called. His voice snapped me out of it. I turned to see Archie squeezing his fat frame behind the wheel, obviously having lost yet another argument with my Mother. I took one last glance over my shoulder at the buffalo-burgers-to-be as I walked to the van, climbed onto the back bench (above you-know-what) and settled in for a nap.