You Breathed My Name Aloud

Think What You Will of What Goes on in Mormon Temples: How Many Hundreds of Years Has it Been Since the Names of So Many Have Been Breathed Aloud? 

By Ken K. Gourdin

Mormons take literally Christ’s injunction to Nicodemus that, “Except a man be born of water and of the Spirit, he cannot enter into the kingdom of God” (John 3:5, KJV).  We also believe that baptism is an earthly ordinance (one reason is purely practical: how, exactly, does one baptize a spirit?), and take literally the observation of the Apostle Paul to the Corinthians: “Else what shall they do which are baptized for the dead, if the dead rise not at all?  Why are they then baptized for the dead?” (1 Corinthians 15:29, KJV).

Mormons believe that other ordinances, in addition to baptism, are necessary for one to receive the full measure of blessings God wishes to give His children in the life to come, and that the ordinances whereby these blessings are bestowed, like baptism of the dead, are received by proxy in Mormon temples.  It was while serving as proxy in one such ordinance at a just-completed Temple of the Church of Jesus Christ of Latter-day Saints in Gilbert, Ariz., that Brother Peterson had what I think is a very keen insight.  The ordinances are performed by name, “for and in behalf of” the deceased, whose name is then spoken.

I last visited this post on his blog today.  See the following address:  http://www.patheos.com/blogs/danpeterson/2014/11/arizona-report.html.  In that post, he writes, “[While performing the ordinance], I pondered the fact that, for many of the people for whom temple ordinance work is performed, this may be the first time that their names have been spoken aloud on the earth for many years — sometimes for centuries — since they died.”  I replied:

Beautiful.  It behooves us all to remember that these ordinances are being performed for and in behalf of real people.  That’s easiest, of course, when they’re our own relatives, which is one reason why we’re asked to search out our own kindred who have departed.  But we should do it every time we visit the temple.

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Beating The Odds

Beating The Odds: The Story of My Life 

By Ken K. Gourdin

Author’s Note:  I wrote this by hand in about early January of 1984 for a class assignment.  Unfortunately, I don’t recall which class it was for, and it has only my name on it.  While I think it was for an English class, it may have been for a History class.  Near the end, I mention that I’m about to go in for surgery “on the 24th,” and I had surgery on January 24th of 1984.  Some minor edits have been made.  More extensive parenthetical explanations, which are necessary for context in hindsight, are included in brackets, and headings also have been added.  However, as an original, contemporaneous source that talks about some of the innermost feelings of my then-eighth-grade self during a very pivotal, very dramatic (and yet very optimistic) time in my life, I felt very little need to make major changes.  I felt to say then (and still feel to say, whenever I ponder these events), as Elisha told his young servant, “Fear not, for they that be with [me] are more than [any] that be [against me]” (see 2 Kings 6:17).

Whatever confusion and ambivalence I might feel about some events that have taken place (and about some events that have not taken place) in my life in the interim, like the Book of Mormon prophet, Nephi, I can only say, “I know not the meaning of all things; nevertheless, I know that [God] loveth His children” (1 Nephi 11:17). Even today, I feel much the same way about these events as I felt then.  To do otherwise would be to doubt the obvious Hand of God in my life.  As Nephi also said, “I know in whom I have trusted.  My God hath been my support” (See 2 Nephi 4:19-20).

* * *

My Struggle to Survive

From the beginning, my life has clearly been a story of beating the odds, and it all began with my struggle for survival.  I was born on October 30, 1969, at 2:03 p.m., weighing a mere 3 lbs. 5 oz., and only 16 inches long.  I was given a 50/50 chance of survival.  [Actually, Dad recounted to me the conversation he had with Dr. Joseph Mayo, who delivered me.]  The first words out of his mouth were, “It’s a boy.”  The next words out of his mouth were, “Don’t expect him to live throughout the night.  As I have written elsewhere, fortunately, the doctor proved to be better at medicine than he was at prophecy.]

A Diagnosis, and Further Treatment

Placed before me was my first hurdle.  7 ½ weeks later, on December 19, 1969, I was released from the hospital, having cleared only the first of many such obstacles.  On January 19, 1971, 13 months later, I was diagnosed as having a “mild” case of Cerebral Palsy by Dr. Robert H. Lamb.  Clearer became the picture of what I had to overcome.  In April of 1973, surgery was performed on my left Achilles tendon to correct the shortness and tightness of it, which caused me to walk on my toes.  [I don’t remember this, but apparently I was placed into a body cast for six weeks, one which probably covered my left leg, extended to my right knee, and had a cross bar separating the two; that was Dr. Lamb’s postoperative regimen of choice.]

Another Challenge

In May of 1976, I had my first taste of what many consider to be “minor” surgery.  I was in the first grade and doing quite well . . . except when it came to penmanship.  The letters were copied on the blackboard, but they never seemed to flow as easily off of my fingertips as they do now.  [There is some irony in this statement, as I am typing from a handwritten account, and my writing hand tends to get really tired when I write longhand for long periods of time; typing is much easier.]

I recall one particular instance in which I used the excuse, “I can’t see the blackboard.”  Mrs. Horrocks, my first grade teacher, replied, “You can’t see the board my eye.”  The problem was that the muscles in my left eye were weaker than those in my right.  Both eyes should provide different angle views of the object one is looking at.  However, because of the weaker eye, I had vision problems.  The surgery to correct them was performed by Dr. Kim Y. Taylor.  Thanks to him, all I had to show for it was a bloody eye and double vision.  [That seems harsh; after all, he did correct the problem.]  I did, however, have him to thank for better penmanship.

Even More Challenges

Only nine months later, in February of 1977, Dr. Lamb performed surgery on my left hip to correct the fact that my abductor was turned inward, causing me to walk with that leg turned inward on a 45-degree angle.  Following the operation, I was again  placed in a body cast, which again covered my left leg,, half of my right leg to the knee, and came all the way up to the middle of my abdomen, with a cross bar separating the two legs.  I was placed in this cast for six weeks, TOTALLY IMMOBILIZED.

After this operation, I was given a cart to push before me as an aid to help me walk.  Thanks, once again, to Dr. Lamb, I am able to walk fairly normally today, and hopefully, someday soon, I wll be able to run, play basketball, and do all the things which are pleasing to myself and to my Lord.

Things eventually settled down for the four year period between 1977 and 1981.  However, in October of 1981, began experiencing pain in my left hip.  After having it x-rayed, we discovered that I had an inflammation in the lining of my left hip; something more serious, however, was also discovered, something that neither the doctors, nor my parents, nor I liked.

Because of the way I walked [with a limp, favoring my left side] my left hip gradually had become dislocated over a period of years.  The operation Dr. Lamb performed to correct the problem, known as an innominate osteotomy, or hip shelf, occurred on October 23, 1981 [one week before my twelfth birthday].  I was again placed into a body cast (for the third time), for six weeks, and again, my leg muscles atrophied because of underuse.  It was at this time that I met Jan Hurst.

Jan was (and is) the stereotype of a “typical” physical therapist – uncompromising, stubborn, and as Curt Brinkman [one of my idols, who won the 1980 Boston Marathon in a wheelchair with a time of 1:55 – you might say that’s easy enough in a wheelchair because of the speed he could pick up going downhill; in response, I would ask, “Have you ever tried to push a wheelchair uphill?”] put it, “You can’t tell a physical therapist what you will do and what you won’t.  They’re too noble for that.”

And all of this was only the beginning.

In July of 1982, at an appointment with Dr. Lamb, an x-ray was taken.  He examined it and said that he “wasn’t pleased with the spacing” between ball and socket but that he “would have to do some really serious thinking before going back in.”  However, on August 21, 1982, he performed a modified hip shelf, and again, he placed me into a body cast that was the same as all of the others I had worn.  After I got out of the cast, I continued therapy.

I started taking life day by day, moment by moment, up one moment and down the next.  But deep inside me, a question lay unanswered.  I wasn’t ready to commit myself to months of physical therapy with no clear view of my goal in mind.  Then, the turning point came.  Last summer my dad sat me down and had a pep talk with me.  (You know, the “You can be anything you want to be!” kind.)

And the funny thing is, it worked!  That talk started a fire in me that has yet to burn out.  I worked hard over the summer and progressed.

More Recent Events

Upon the recommendation of my physical therapist, on December 12, 1983, we went to see Dr. Peter M. Stevens, who recommended the following:

  • A Chiari Osteotomy. [From what I understand, from my decidedly-limited, layperson point of view, the Chiari Osteotomy is a procedure of last resort, only opted for when extensive hip revision surgery that has not been successful has already been done.  The Chiari osteotomy is a pelvic, as opposed to a femoral, osteotomy, involving reconstruction of the hip socket rather than reconstruction of the femoral head in an effort to provide the latter with better coverage by the former.]
  • In a separate procedure, one of my groin muscles also would be lengthened in order to provide better outward rotation and motion, or abduction, in my left leg and hip. I’m not sure which exact muscle this procedure was performed on even after all of these years; it might have been the Sartorius muscle.  See here, last accessed October 8, 2014 (scroll down to the third row of muscles; the Sartorius is second from the left):

http://www.sportsinjuryclinic.net/anatomy/human-muscles/hip-pelvis.]

[These procedures are to be done at Primary Children’s Hospital.]  I go in on [January] 24th, [1984], and will have the [first] procedure done on that day.  [I went back into the hospital on February 14th, 1984, and had the second procedure done on that day.]

The good news is, “Dr. Peter” doesn’t want to put me in one of those “shells,” and I will miss only two weeks (maximum) of school.  I’m cautiously but jubilantly optimistic about this.  [Caution and jubilation aren’t usually mentioned together, but with even the benefit of more than 30 intervening years, I cannot think of a better description of the way I felt.]  Let’s hope number six [the number of surgeries I would have had by the time I had the first of these two] is my lucky number.  Some unlucky statistics were quoted to me by other doctors, but they are now going to be tossed aside; as another chapter unfolds in the saga, I will rely on the great mental strength and physical courage that my Lord gave me.

In closing, I would like to quote a saying I read recently:

“Some people are crippled by adversity.

“Some are destroyed by it.

“Others are made by it!”

Afterword:  The instructor who made the assignment comments, in her proverbial red pen (I achieved a score of 290 oof 300 points possible), “Great job – I truly admire your courage & faith – good luck on the 24th – let’s hope this is the lucky one!”  I recently commented elsewhere about the events in this period of my life, including additional information on childhood struggles with bullying and the unsuccessful operations that led up to the events described here.  I believe the respective accounts provide useful context for one another.  That account, written in July of 2013 in response to a query at Mormon Dialogue & Discussion – “Does hope work?” – and also posted on this blog, is located here (last accessed November 15, 2014:

http://greatgourdini.wordpress.com/2013/07/09/maintaining-hope-against-all-odds/

 

 

 

 

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Harry Reid’s Mormonism

Harry Reid, His Politics, and His Standing in the Mormon Church

By Ken K. Gourdin

There is, unfortunately, a strain of thought among certain members of The Church of Jesus Christ of Latter-day Saints that Senator Harry Reid (D – Nev.) cannot/should not be considered a faithful member of the Church because of his political leanings, actions he has taken as majority leader, et cetera. (And what makes it worse is that apparently, this time the pronouncement came from an LDS bishop (lay pastor) in Los Angeles.) See here for the story in The Salt Lake Tribune, last accessed November 7, 2014: http://www.sltrib.com/lifestyle/faith/1797370-155/church-mormon-lds-political-reid-democratic.

This strain of thought persists, notwithstanding the fact that the Church routinely issues a letter each election season reminding members that principles consistent with the Restored Gospel of Jesus Christ can be found in all political parties. (This bishop is seriously misguided, and I say that as someone who leans in a rather conservative direction; I’m tempted to use stronger language to describe him, such as a word that begins with “i” and ends with “diot,” but . . . I will forbear.) Not a few of the Brethren in the highest leadership councils of the Church of Jesus Christ have been, and are, Democrats: President James E. Faust, formerly of the Church’s governing First Presidency; and former Church Historian Elder Marlin K. Jensen come immediately to mind, and they’re far from alone. (In fact, see Elder Jensen’s call for more political diversity here, last accessed November 7, 2014: http://www.ldsliving.com/story/61176-lds-official-calls-for-more-political-diversity/print.

Candidly, I think Harry Reid has been, in many ways, President Obama’s lackey and flunky, providing President Obama political cover by sparing him the unpleasant prospect of being seen as obstructionist for vetoing legislation that passed through both houses of Congress. Rather, Senator Reid has declared numerous measures passed by the House as “dead on arrival” in the Senate. Perhaps all of these measures were truly abominable legislation, but, if so, one wonders why Senator Reid seemingly was so afraid to allow the Senate to vote on them: surely, a majority of Senators know abominable legislation when they see it, and would not be afraid to act accordingly.

That said, here’s the comment I posted at SLTrib.com about the article:

While I’m afraid I would be tempted to disagree with most every word that comes out of Harry Reid’s mouth with respect to politics or policy, his standing in the Church of Jesus Christ of Latter-day Saints is between him, his Heavenly Father, his Savior, and his leaders.  If the latter three have concluded he’s in good standing, who am I to disagree?  As for any disagreements we might have politically or policy-wise, I’m reminded of the old saying that if two people are of exactly the same opinion on absolutely everything, one of them is unnecessary.  As strongly as I might hold the opinions I hold, don’t have enough hubris to say that Brother Reid is unnecessary simply because we disagree. And I would hope we could disagree, without being disagreeable.

And, while I didn’t add this sentiment to my comment because I would have been flamed for it mercilessly, the Trib’s comment Board being the cesspool/fire swamp that it often is, however strongly we might cling to our respective political and policy positions, to quote an old song, Harry Reid ain’t heavy; he’s my brother, and I love him.  And the ideal government isn’t one that’s run by Republicans, nor is it one that’s run by Democrats. The ideal government will be the one that’s run by God Himself. 

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Strange Goings on in Racist, Sexist Utah

Stop the Presses! Hold the Phones! GOP Elects Its First Black Woman to Congress . . . From Utah?!!

By Ken K. Gourdin

Everyone knows that most Utahns are racist; further, everyone knows that most Mormons (especially Utah Mormons) are racist; and further still, everyone also knows that rural Utah Mormons, especially, are racist.  Thus, “everyone” is scratching their heads this morning, wondering how one particularly-inexplicable result could have occurred in last night’s election.

Mia Love will be the first black Republican woman in Congress. And she’ll have been sent there from Utah – backward, provincial, racist, sexist, unenlightened Utah.  (If only we – full disclosure; I’m using the “royal” we here; I’m not in Ms. Love’s district, so, alas, I didn’t vote for her, but I would have if I could have, even though I’m backward, provincial, et cetera – had been more enlightened, we wouldn’t have passed up  the chance to send another white guy to Congress!  (Sigh!)  I can’t figure out why more of Utah’s backward, provincial, et cetera, voters weren’t positively salivating at that very prospect!

Racism, sexism, and other backward traits notwithstanding, Representative-Elect Love somehow overcame so many strikes against her to convince a majority of voters in her district to vote for her. It seems that party loyalty combined with commonality of religion really do trump all.  After all, it’s not like Representative-Elect Love has anything else going for her.  I mean, if, somehow, she were only more articulate, intelligent, and likeable, this election result would make much more sense; alas . . .  I can’t wait for the trolls to come out of the woodwork to explain how, although Representative Elect Love somehow convinced a majority of voters in her district to vote for her, all of the backward, provincial, racist sexists who did so actually held their noses while casting their votes!

With all due deference to whomever it was that coined the saying that there are at least three kinds of lies, “lies, damn lies, and statistics,” voter tallies from the Love-Owens race are revealing nonetheless.  Love’s district takes in four counties: Juab, Sanpete, Salt Lake, and Utah. Salt Lake County, notwithstanding its status as the seat of the headquarters of the Mormon Church (aka Church of Jesus Christ of Latter-day Saints, or LDS), has the lowest concentration of Mormons of any county in the state (and hence, presumably, its inhabitants are more enlightened, egalitarian, unbigoted, et cetera).

Notwithstanding its status as Utah’s very Seat of Enlightenment (and hence, the one county – in contrast to the rest of benighted Utah – in which a black woman might be expected to do well), however, Salt Lake County is the only county in which Representative-Elect Love lost.  She carried the other three counties – all which one might expect to have greater proportions of un-egalitarian, unenlightened, bigoted voters than Salt Lake County – by large margins. As reported in The Deseret News of November 6, 2014, here are the numbers:

County Love Owens
Juab 1,943     791
Sanpete 1,884     682
Utah 9,753  3,220
Salt Lake* 50,810 55,472

*Seat of progressive enlightenment in Utah, notwithstanding the fact that it’s also the site of the headquarters of the backward, unenlightened, et cetera, Mormon Church.

I suppose the takeaway from Democrat voters the Love-Owens race is that it’s OK to be a white, male, Mormon office-seeker in the state of Utah – as long as you’re our white, Mormon office-seeker.  Conversely, no matter how egalitarian, progressive, and enlightened we are, if your politics and/or your religion are wrong, we still won’t vote for you, even if you’re a black woman.  (Either that, or Representative-Elect Love somehow still managed to advertise her campaign effectively, even while concealing her race and her gender from the voters she was attempting to persuade.)

And, as a side note, what makes last night’s election results all the more inexplicable is that, although a vast majority of Utahns (aka a Vast Right-Wing Conspiracy) are known for never passing up an opportunity to vote for a policy that will favor their own party (regardless of the policy’s soundness), they soundly defeated Constitutional Amendment A, which would have changed the current bipartisan setup of the state’s Tax Commission by allowing the governor to appoint more members of his own party.

(Sigh!) What is the world coming to?  Surely, Jesus’ Second Advent is nigh!

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Law School Transparency

On The Bright Side: My Law School “Misadventure” Viewed Through the Law School Transparency Lens 

Ken K. Gourdin

This isn’t a blog, nor is this a blog post, dedicated to bitc—Er, I mean, to whining and moaning—about how worthless a law degree is.  In what I will admit was an episode of foolish, he-peacock fan-spreading pride (though it was really inexplicable pride, given the myriad difficulties I’ve had securing employment of any kind, let alone the difficulties I’ve had securing law-related employment, since graduation), I paid an outrageous sum (which was all the more outrageous, given the fact that it was borrowed money) for the most ostentatious frame imaginable for my degree. (The degree, along with the inexplicably-ostentatious frame in which it is housed, now sits in the nondescript corner of a nondescript closet of my nondescript room, gathering dust.)

I admit, I have since given serious thought to listing my degree on e-Bay, if for no other reason than to satisfy my curiosity over what the going rate is on e-Bay for gently-used law degrees from second-tier law schools these days. That said, I don’t care if I’m never licensed; I don’t care if I never work a day of law-related employment in my life; I don’t care if my address ends up being, “Down the alley, third cardboard box on the left”; this blog will never devolve into a mere place in cyberspace to bit—Er, I mean, to whine and moan—about the uselessness of my law degree (even though I would have to post to it from the public library if I ever took up residence in that alley).  (Now, there’s an untapped market in the blogosphere if I’ve ever thought of one: the search terms “useless JD” and “useless law degree” combined to return a mere 30,000 hits in Google.  No doubt, other perhaps-more-emphatic descriptors would return similar results, probably in similar (if not higher) numbers.)

Given everything that has happened (and not happened) in the interim, it’s easy for me to conclude that getting a law degree wasn’t the smartest decision I’ve ever made: far harder is coming to any definitive conclusion about what I should have done instead.  While I won’t say that the kind of jobs I was able to get before I went to law school – not to mention getting a similar job after I enrolled, lost my nerve, and withdrew without receiving any credit before I swallowed my pride and went back – was the pivotal factor in my decision to go to law school, nor was it irrelevant.  It will come as a shock to no one who knows me well that – after a short time as an on-call, non-benefited emergency dispatcher; six months as a telephone solicitor for a family film company; nearly 2 ½ years in telephone customer service for UPS; and short stints answering phones for American Express and JC Penney (the last-named post being the position I took during my leave of absence from law school – I decided that I didn’t want to answer phones for the rest of my life.  (I have excellent telephone etiquette and a kind, empathetic “phone-side manner”: I don’t mind if it is part of my job description, but I’d rather it not be my job description in its entirety.)

Just as there is no shortage of people who complain about the uselessness of law degrees, the subset of those who lodge such complaints who would, nonetheless, turn their noses up at the pay offered for law-related (or other) employment for which attorney licensure is not required – employment as, e.g., a legal support professional – is not small.  Notwithstanding the size of that group, I’m not one of those people.  Given the chance, I would welcome the opportunity to disregard the fact that my law degree makes me “overqualified” for such a position, and the number of such positions for which I have applied (especially counting the time after I got my bachelor’s degree but before I got my law degree – that is, before I became “overqualified”) is not small.  Given the glut of people with J.D.s (many of whom have academic – not to mention professional – credentials I can only dream of), the automatic disqualification of this segment by hiring authorities from the applicant pool of those in this group is, frankly, mystifying.  While I don’t regret my law degree, I often do wonder if I should regret it.

Briefly speaking, the U.S.’s overabundance (putting it mildly!) of attorneys is traceable partly to the fact that the American Bar Association (ABA) – the body responsible for accrediting law schools, and without whose accreditation law degrees would have limited utility since one who receives a law degree from a school not accredited by the ABA is limited to practicing in the state where that law school is located – refuses to cap the number of accredited law schools because such action reportedly would stifle competition and, thus, would violate antitrust law.  Arguably, ABA accreditation itself needlessly makes legal education more expensive.  There is a certain school of thought that (according to the law of diminishing returns) the more “bells and whistles” the ABA requires a school to have in order to achieve accreditation, the lesser the benefit conferred by any given bell or whistle is.  Institutions that attempt to rein in the runaway cost of legal education by bucking the ABA’s various mandates have not met with great success.

Having said all of this, I still don’t understand the point of hanging out in cyberspace in places where the uselessness of law degrees is trumpeted and where the un- and underemployment of those with such degrees is lamented.  While I don’t have any solutions (and while, even if I found a solution to my own employment woes, I would be reluctant to offer it as any kind of a panacea for the general problem), no problem is so bad that complaining about it won’t make it worse.  As I recently said on another forum (and reposted elsewhere on this blog):

I write a blog and publish occasional Op-Eds that nobody reads.  (It’s funny; whenever my friends see those Op-Eds and then see me afterward, they say, “Hey, Ken.  That was a great Op-Ed,” and I just want to say, “Thanks, but the idea was for somebody who DOESN’T know me to take note of it, yet it seems like the only people who do notice them are those who DO know me.” (I bite my tongue … after the “Thanks,” at least!) Yes. OK. Things definitely could be worse. I don’t want to b****. There are no shortage of people out there who have entire blogs dedicated to the single pursuit of bemoaning the particular degree that I (perhaps was unfortunate that I) got. Many of them have better academic and professional credentials than I do.

There is a certain school of thought which says that if the degree I worked so hard (and paid [am paying] so dearly) to get isn’t going to pay off for me, if push comes to shove and worse comes to worst, since student loans cannot be discharged even in bankruptcy, just default.  Just stop paying.  But, see, here’s the thing: nearly everyone who suggests that course of action is, at least from the standpoint of earning power, in a better position than I am.  If nothing else, they can at least get a job doing manual labor, if necessary.  Meanwhile, I live at poverty level and yet (while, admittedly, I couldn’t do this without a good deal of family support), I have paid every single cent due on my student loans the last ten years.  Just for fun, I went to a site that purports to calculate what my payment would be under the income-sensitive repayment plan my lender offers.  It asked for my Adjusted Gross Income.  I don’t know what that is, so I simply took my monthly SSDI payment, multiplied it by 12 (Thanks . . . , Uncle Barry!  [President Obama is akin to the rich uncle I don’t have, since he paid – albeit indirectly – for me to go to law school]), and entered that figure.  Do you know what it says my payment would be under an income-sensitive plan? Zip. Zilch. Nada! Yet I’ve paid every cent due in the last ten years. Heck, they’re in deferment now because I’m taking a class, and I’m still making payments! [I have since completed the class; I got an “A,” but sometimes I think that I’d trade every such mark I’ve ever gotten for a halfway decent (or even simply bearable) job.]1

Few and far between though they may be, there are, however, corners of cyberspace that are dedicated to something more than whining about the uselessness of law degrees or about the plight of the glut of unemployed would-be lawyers. I recently ran across one such corner after being directed to it by “Above The Law” (“ATL”), a site which, while it has a good share of whining and moaning about these things, is at least worthwhile for its satire (among other things).  The site is lawschooltransparency.com.

The Law School Transparency (LST) site lists S.J. Quinney College of Law at the University of Utah’s debt at repayment (DAR) for residents, which I was (and am), at $179,435.  The DAR figures for other schools to which I was accepted and whose offers I briefly considered accepting are even more eye-popping.  San Diego’s Thomas Jefferson School of Law and California Western School of Law have DARs of $250,028 and $249,598, respectively.2  Conversely, I graduated with just over $60,000 in debt, and that figure includes the cost of classes (not to mention an entire semester or two) that I did not complete, a program in which I enrolled but did not complete (the Master of Public Administration), and various other fits, starts, and missteps.

I’m not sure what methodology is employed to arrive at these figures.  I’m sure tuition has gone up, probably considerably, since I graduated in 2005.  (What else is new?  The sun rises, taxes come due, the Chicago Cubs instill hope in their fans annually only to dash it as the postseason approaches, and law school tuition goes up.)  I don’t think, however, that a rise in tuition exhausts the possibilities for the vast difference in LST’s DAR figures and the total of my final bill for law school.  Housing is one possibility.   The nicest (not to mention probably most expensive) apartment I lived in during my legal education was in Graduate and Honors Housing at Fort Douglas on the University of Utah Campus during the 2003-04 academic year.  The other apartments I lived in were, respectively, a relatively nice one (although I had problems with noisy neighbors) and (to be blunt but frank) a craphole basement apartment in what, ironically, is reputed to be one of Salt Lake City’s nicer neighborhoods (in the Avenues).  It’s possible, even quite likely, that I saved considerable money on housing over what I would have spent if I had opted for tonier digs.

My visit to Law School Transparency verifies one conclusion I long have held about my law school experience.  As bad as my current debt load is, I’m grateful it isn’t worse.  In an effort to put my law school experience in perspective, I recently posted the following at another venue (again reposting it elsewhere on this blog, as well):

There are a lot of less-than-ideal circumstances in my life. I stuck it out in school to earn a post-bachelor’s, professional degree even though I pretty regularly felt like quitting. (The thing was, I didn’t know what I would do instead: mostly, what I’d done up to that point in my working life is to answer phones for somewhere between $7-10 an hour. I knew I didn’t want to spend the rest of my life doing that, but it seemed like the only alternative to continuing my schooling: in fact, when I first enrolled, I lost my nerve and I dropped out before getting any credit … and ended up taking a job answering phones for $9 an hour—again!)

So I went back. I still felt like quitting in the middle of every semester until, perhaps, my final year: everybody there was smarter than I was, they “got it” more easily than I did, they could compete in the dog-eat-dog competition for jobs when I had no idea how I was going to do that, and so on. I felt like I knew what [Latter-day Saint pioneer] Francis Webster was talking about when he spoke of crossing the plains with a handcart, picking a spot in the distance, and telling himself he could go only that far and no further, only to reach the spot and look behind him, wondering who was pushing his handcart, but seeing no one: as I said, my “spot in the distance” usually was the end of the semester. But somehow, I always found a “second wind.”

I graduated, then I was denied licensure in my “would-be chosen profession” because of a psychiatric history and (at the risk of oversimplifying) problems stemming therefrom. That’s not “an easy bell to unring.” In this particular field, once someone has been tarred with that brush, it’s hard for one to rehabilitate his image. Now, I can either list my degree on my resume with no accompanying license, and people won’t hire me for one of two reasons: (1) they wonder why I’m not licensed; or (2) they wonder why I want to work there when I have the degree I listed; or, I can forego listing my degree and not have to worry about confessing my lack of licensure, but that simply leads people to wonder what I was doing with those (in my case) five years of my life.

But could things be worse? Absolutely, they could! I could’ve gone to a different school, out of state, and paid three or four times what I ended up paying for my degree. There are people with far better credentials than mine who can’t find a job in the field. Yes, with respect to my own income, I live at poverty level. But (although, admittedly, I wouldn’t be able to do this without a good deal of help from family), I’ve still been able to pay down (and in one case, to pay off) – albeit modestly – my loans. Try as I might, I don’t regret getting this particular degree (although candidly, I do often wonder if I should regret it). In the end, even though this field, as yet, has been nothing more than an expensive hobby of mine, not very many people can say they successfully met the kind of challenges I faced in getting the degree.3

The bottom line is this: As much as I love the San Diego area (an affection I developed after having had the chance to do two years’ worth of volunteer work there in the late ’80s and early ’90s), I have long thanked my lucky stars (not to mention The Good Lord Above) that I did not incur more than four times the debt I wound up with by going to law school there.  Even as it was, I wasn’t very frugal about going to law school on borrowed money.  Still, while, as I said, I’m unsure what accounts for the difference between LST’s DAR figures for my alma mater and my final debt, I’m certainly glad I didn’t incur even more debt when I went there.

END NOTES

  1. Ken K. Gourdin (September 4, 2014), “Mormons and the ‘Prosperity Gospel’” (Blog post), http://greatgourdini.wordpress.com/2014/09/04/2890/, last accessed November 4, 2014.
  2. These Debt At Repayment (DAR) figures come from Law School Transparency’s Web site, last accessed at the following address, on November 4, 2014: http://www.lawschooltransparency.com/reform/projects/Non-Discounted-Cost/
  3. Ken K. Gourdin (June 9, 2014), “As Good As It Gets?” (Blog post), http://greatgourdini.wordpress.com/2014/06/09/as-good-as-it-gets/, last accessed November 4, 2014.
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Officer simulator training increases

My Call for More Officer Training That Mimics Real-Life Events is Heeded 

By Ken K. Gourdin

First, some useful background.  (Or perhaps it really isn’t all that useful; if you think so, skip to the paragraph that begins, “None of the foregoing, however, is the real point of this post.” ;-D)  Salt Lake Tribune editorialist George Pyle wrote a piece that can be found here criticizing the view that a better-armed citizenry makes for a safer society and commenting on the incident in which New York City Police shot sixteen times at an armed suspect, hitting him only twice while hitting bystanders nine times.  Some New York Times coverage of the incident can be found here (last accessed today): http://www.nytimes.com/2012/08/26/nyregion/bystanders-shooting-wounds-caused-by-the-police.html?pagewanted=all&_r=0.  Mr. Pyle’s piece can be found here (last accessed today): http://www.sltrib.com/sltrib/mobile/54797389-68/gun-guy-com-bad.html.csp.  I replied to Mr. Pyle’s piece in a letter to the editor in which I opined, in part, as follows:

Pyle’s commentary verifies one conclusion of my op-ed column “Officers sometimes forced to shoot armed suspects” (Opinion, Jan. 1 [2011]), in which I defended officers who killed an armed man outside the LDS Church’s Oquirrh Mountain Temple. Officers are trained to shoot at center mass because adrenaline makes them less accurate: Better to shoot at center mass and hit an extremity than to shoot at an extremity and miss entirely.

I would rather not be shot. But if I am, I prefer to be shot by police officers who are not aiming at me, rather than by a criminal who is.

My letter in response, in its entirety, can be found here (last accessed today):

http://www.sltrib.com/sltrib/opinion/54842581-82/officers-shoot-armed-opinion.html.csp.

Perhaps this deduction is merely the result of the ineffective workings of my simple mind, but it seems entirely uncontroversial to me to suggest that I’m more likely to be seriously injured or killed by someone who is aiming at me than I am to be seriously injured or killed by someone who is not aiming at me, but who happens to hit me anyway.  Alas, not so, according to the superior minds who opined on my letter in on line comments.

One commenter said, “If those nine bystanders all had guns, none of this would have happened, right?  Wrong.”  I replied, “I don’t recall making any arguments for a better-armed citizenry [in my letter].  Perhaps you could point out to me where I did so?”  Alas (and shockingly, at that) he was silent in response.

In snide derision, another commenter wrote, “[E]veryone knows that ‘accidental bullets’ hurt a lot less than intentional ones.”  I replied, “My argument isn’t that “‘accidental bullets’ hurt a lot less than intentional ones.”  It’s simply that I’m more likely to suffer a serious injury or death from someone who is aiming at me than I am from someone who is not.”

He responded, “My point [emphasis in original, meant, no doubt, not-so-subtly to convey the message that his point is, ipso facto and res ipsa loquitur, superior to my argument] is: a bullet doesn’t give a **** [asterisks in original] who it hits.”  I responded, “A bullet may not give a you-know-what who it hits, but a criminal who fires it does. If s/he’s not aiming at me but hits me anyway, s/he’s more likely to hit me in a less critical area than someone who is aiming at me.”

Another commenter wrote, “Please explain what the difference [between being hit by someone who is aiming at you and being hit by someone who is not] is.  Does it hurt less? Will your family miss you less? Will you get to heaven faster that way? It’s obvious that you couldn’t be educated less.”

I responded:

Thank you for the compliment!  If you honestly believe you stand a better chance of being seriously hurt or killed being shot by someone who isn’t aiming at you than by someone who is aiming at you, then your dig at my education speaks volumes … I don’t think it says what you think it says, but it does speak volumes.  Even if I’m hit by someone who isn’t aiming at me, yes, it probably would hurt less, since the likelihood is that I wouldn’t be hit in a critical area.  I also stand a better chance of sticking around to enjoy more time with my family,  and of not taking a premature trip to “heaven” … or wherever I go after this life (assuming I go anywhere).  [All ellipses in original].

In perhaps the best response of all to my letter, another commenter wrote simply, “What a stupid letter”—Res ipsa loquitur, ipso facto, and quod erat demonstrandum.  What more needs to be said?  Alas, since I’m (self-evidently!) slow on the uptake, I responded:

Thanks for the substantive response, [screen name redacted].  In the unlikely event that you DO wish to engage me substantively rather than simply hurling empty insults, I’ll ask, with which of the following do you disagree?

  • That the fight-or-flight adrenaline response which occurs when someone is under fire makes that person less accurate?
  • That a shooter is more likely to seriously injure or kill someone when that shooter is aiming at the person hit rather than when the shooter is not aiming at the person hit?
  • That officers need more than simple occasional range practice with stationary targets to improve their response to under-fire situations?

Which of those points do you think is the stupidest, or are they all equally stupid?  (If you don’t agree with any of those points, I’ll be quite surprised: the only one which is even remotely debatable is the second one.)  I made all of these points in my letter. Do you still think I’m stupid?

His response?  “Yes.  Very much so.”  I replied, “Thanks again for the substantive response!  Have a great day! ;-D”

None of the foregoing, however, is the real point of this post.  (“But you made us read it anyway?” you ask.  Yeah; I’m just funny that way.)  My letter to the editor concluded as follows: “The New York incident also illustrates why occasional range practice using stationary targets may be insufficient. Officers should get more simulation time that mimics real-life events.”  (Another poster, a former law enforcement officer, said that his agency had its officers run ½ mile before range practice to simulate the adrenaline fight-or-flight response that officers experience when they are genuinely under fire.) Fortunately for both officers and for the public they “protect and serve,” as was the case with the former officer I quote above (and consistent with my recommendation), officers are getting more training that mimics real-life live-fire situations.

To avoid a lackadaisical, “Who cares if I get ‘killed’?  This is only a simulator anyway” response, perhaps, consistent with the point made by the former officer in the preceding paragraph, officers should be required to undergo physical exertion before using the simulator, as well, although one officer quoted in the Deseret News story I link to below (last accessed today) notes that simulator action, too, provokes a fight-or-flight response:

http://www.deseretnews.com/article/865613019/Virtual-training-facility-helps-officers-make-split-second-decisions.html?pg=all.

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Defense Ethics & “The Judge”

Shyster Lawyers? Reflections on Legal Ethics in Light of the Movie, The Judge, and on How Lawyers Can Defend Obviously-Guilty Clients and Still Sleep at Night 

By Ken K. Gourdin

At the outset, full disclosure is in order: I am not a lawyer.  I will gladly defer to any lawyer who disagrees with me about the points raised herein, and anyone with questions about legal ethics should contact a licensed attorney.  Now, with that out of the way, I recently saw the movie The Judge.  Robert Downey Jr. plays Henry “Hank” Palmer, a high-profile Chicago white-collar defense lawyer.  Hank is summoned back to his small, Indiana hometown when he receives news of his mother’s death.  His return forces him to confront the question of whether he has been true to the values with which he was raised and whether, in fact, he should have allowed his outsized ego and aspirations lure him away from those values.  While he is home for his mother’s funeral, his father, Judge Joseph Palmer (the movie’s title character, played by Robert Duvall), is accused of a hit-and-run, and Hank struggles to convince his father to put up a vigorous defense.

As often is the case, audiences have liked this movie better than critics.  While many of the latter have dismissed the film as sentimental, either audiences must prefer such sentimentality, or they must disagree that the movie falls prey to it.  As of October 16, 2014, it has a score of 7.8 on a scale of ten based on 3,990 user reviews at imdb.com.1  At rottentomatoes.com, it has only a 47% “fresh” rating from critics, while it has an 82% favorable score from audiences and an average rating of 4.1 out of five based on 23,677 user reviews.2

My purpose in writing, however, rather than providing a review of the movie as a whole, is to focus on its portrayal of defense lawyer Hank.  At one point in the film, Hank is asked the proverbial question asked of almost every defense lawyer in any legal drama, “How can you defend people you know are guilty?”  My purpose is not to analyze Hank’s answer to that question; anyone who sees the movie can do that for himself.  Rather, my purpose in writing is to provide my own answer to that question, and to explore the implications of that answer from the standpoint of legal ethics.

Near the beginning of the movie, during a court recess, a prosecutor comes in to the men’s restroom as Hank is relieving himself to question why Hank won’t accept the prosecutor’s reasonable plea offer on behalf of Hank’s client.  Before Hank is finished relieving himself, he turns and “accidentally” sprays the trousers of the prosecutor’s (no doubt expensive) suit with his bodily fluid.  (“You startled me,” Hank deadpans as an excuse.)  It’s conceivable (even likely, one would think) that the prosecutor would lodge a complaint against Hank for this behavior, and that Hank would face discipline as a result.  However, with respect to Hank’s refusal to accept a plea, it should be remembered that while strategies and tactics (including those relating to trial) usually are the province of the lawyer, and while decisions that will affect defendants’ substantive rights no doubt often are made with a good deal of input from the lawyer, according to the Model Rules of Professional Conduct, whether to accept or reject a plea offer is the province of the client.3

To begin our analysis of the movie’s portrayal of Hank, I’ll offer the uncontroversial, axiomatic view that I don’t think defense lawyers (or prosecutors, for that matter) should strive to win at all costs.  Integrity matters.  If I were to do something illegal or unethical in order to win a case, I think (and I hope) that I would have a hard time looking myself in the eye in the mirror, and a hard time sleeping at night.  In fact, I should have a hard time doing those things.  If I didn’t people would have the right to wonder whether I’m a sociopath.

I’ve heard people claim that prosecutors have unlimited resources, while their opponents at the defense bar have unfairly limited resources.  While whether lawyers who defend indigent clients in any given jurisdiction should be given more resources to do so certainly is a debate worth having, and while prosecutors do have considerable resources, I don’t believe those resources are unlimited (and not simply because speaking in such absolute terms is a logical fallacy).  If prosecutors truly did have unlimited resources, they would have nothing to lose by taking every case to trial rather than engaging in plea bargaining and other pretrial diversion options.

I offer the above to reassure my reader that I don’t expect anyone to feel sorry for prosecutors.  Still, although I don’t expect anyone to feel sorry for them, the fact remains that they do have obligations that defense attorneys do not.  For example, if I were a defense attorney, and if my client confessed that he actually did what he is charged with doing, I would have no obligation to report that confession to the prosecutor, and if I did so, I could be disciplined for violating the ethics of my profession.  Conversely, if I were a prosecutor, and if I encountered evidence tending to show that the accused in reality did not do what he has been charged with, I would have an ethical duty to turn that evidence over to the defense; if I did not do so, I could be disciplined.

As the conflict in the movie between Hank and his father about defense tactics indicates, defense attorneys have a duty to defend their clients zealously and vigorously.  Regarding that duty, I wrote the following elsewhere:

How does anyone sleep at night knowing that he defended (perhaps successfully) someone who actually was guilty by exploiting one or more “loopholes” in the law, such as the exclusionary rule [which mandates that evidence obtained in violation of constitutional rights cannot be used in prosecuting the accused]?  The simple answer (provided he acted ethically in doing so) is, because the Constitution and the law say he can.  That is not to say that anything that is legal also is right, but a lawyer’s first duty, provided no other ethical considerations rightfully intrude, is to his client, and his next duty is to the ethics of his profession—even if those ethics produce what some [perhaps many] might consider an undesirable result.4

Expanding further on an attorney’s duty of zeal, I also wrote the following:

I might tell a jury (at least if I were defending a “hopeless” client with a lousy reputation in the community), “Ladies and gentlemen of the jury, don’t convict my client simply because he’s an S.O.B., and because everyone who knows him thinks that what he stands accused of seems exactly like something he would do.  If you’re going to convict him, convict him because you’re convinced beyond a reasonable doubt that he actually did what he’s been accused of.  Make the prosecution carry its burden of successfully proving every single element of the crime or crimes with which my client has been charged.  And if you were my client, you would have every right to expect me to do for you exactly what I’m going to do for him.  In fact, the ethics of my profession demand it.  And not only do the ethics of my profession demand it, the Constitution does, as well.5

The case of the State of Florida v. George Zimmerman provides a useful illustration of how an attorney’s duties of zeal and vigorousness in defense of his client work in practice, given the fact that many people felt that George Zimmerman should have been convicted (and some, it seems, felt that way despite the quality of evidence against him).  Regarding the case, I wrote:

[I]f the situation had been reversed [i.e., if Martin had been put on trial for killing George Zimmerman], Martin would have wanted the most vigorous, zealous defense possible within the bounds of law and legal ethics. He would have wanted his attorneys to cross-examine the state’s witnesses vigorously, just as Zimmerman’s attorneys did. He would have wanted them to elicit as much mitigating, exculpatory evidence from those witnesses (as well as from his own witnesses) as possible, just as Zimmerman’s attorneys did. In short, he would have wanted exactly what George Zimmerman got. And nobody would be rioting (or even protesting) in the streets if he had gotten it.6

In commenting further on the Zimmerman case, I pointed out elsewhere that as much as we might disagree with any given verdict, “justice by mobocracy” based on the weight of public opinion would replace the current regime of “rule of law” in the United States with “rule of men.”  I wrote:

While we might say that we believe it’s better for a hundred guilty people to go free than for one innocent person to be convicted, too many of us want to have our cake and eat it, too: if a jury reaches a verdict with which we disagree, many of us blame the very system whose protection we would demand if we were falsely accused (or if we believe there is insufficient evidence to convict us).

Many then take to the streets chanting such slogans as “No justice, no peace!”  What is justice?  It is what we say it is.  What is peace?  Peace may be achieved by using the system to further whatever ends will keep us from rioting in the streets.

That sounds an awful lot like “rule of men” and not a whole lot like “rule of law” to me.  As much as I understand why those who don’t believe that a just result was achieved in the Zimmerman case are frustrated, that’s not a country in which I think most of us would want to live.7

Another case in which the sympathy of many for the victim (in this case, combined with the antipathy of many toward law enforcement) seemingly colored their view of what a proper result is has been the case of the State of Utah v. Shawn Cowley.  Former West Valley City Police Detective Cowley and his partner, Kevin Salmons, shot and killed Danielle Willard after Willard allegedly tried to run Cowley over with her vehicle.  Regarding that case, in a recent Deseret News Op-Ed, I wrote:

We often form opinions based on what we, a priori, “know,” then we become upset when charges are dismissed or an acquittal is returned against someone we “know” is guilty, or when someone we “know” is innocent gets convicted.

It’s ironic that if someone we “know” is guilty is acquitted or has charges against him dismissed, we decry the system’s ineffectiveness. Conversely, when someone we “know” is innocent is convicted, that once-ineffective system suddenly becomes heavy-handed and oppressive.

In a court of law (unlike in the court of public opinion) it doesn’t matter what anybody “knows,” or how sympathetic a victim is: it only matters what they can prove. Whatever anyone’s opinion of the justness of a given case, rulings and verdicts should be based on the law and on the evidence.

Either everyone accused of a crime is entitled to the most vigorous defense within the bounds of law and legal ethics, and to a zealous advocate who will hold the prosecution’s feet to the fire by demanding that it prove every element of the crimes charged, or no one is.

If we were accused of a crime, we would want (indeed, we would be constitutionally entitled to) the same thing Cowley got: a vigorous defense by a zealous advocate and weighing of the evidence by a neutral arbiter.8

In summary, how, in good conscience and good faith, do defense attorneys defend those of whom it often can be said that the weight of public opinion (if not the weight of the evidence) is against them, and still sleep at night?  Because the Constitution, legal ethics, and other laws say they can.  Whether this will change the often-stereotypical view of defense attorneys portrayed in movies anytime soon is doubtful, but such portrayals are simply another reason in a long list of reasons why knowledgeable viewers will be required to suspend disbelief in order to watch Hollywood portrayals of the law.

END NOTES

  1. See http://www.imdb.com/title/tt1872194/?ref_=nv_sr_1, last accessed October 16, 2014.
  2. See http://www.rottentomatoes.com/m/the_judge_2014/, last accessed October 16, 2014.
  3. The American Bar Association’s Model Rules of Professional Conduct Rule 1.2, “Scope of Representation and Allocation of Authority Between Client and Lawyer,” states, in relevant part, “In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered[.]”  See the following address, last accessed October 17, 2014:

    http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_2_scope_of_representation_allocation_of_authority_between_client_lawyer.html.

    The Utah Rules are in accord. Utah Rule of Professional Conduct 1.2(a) states, “In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, … as to a plea …” (emphasis added).  The rule is available at the following address, last accessed October 16, 2014:

    https://www.utcourts.gov/resources/rules/ucja/ch13/1_2.htm.

    Even some prosecutors appear to have lost sight of this rule.  See, e.g., Ken K. Gourdin (September 28, 2014) “In Defense of Defense” (Letter to the editor), City Weekly 4.

  4. Ken K. Gourdin (March 25, 2013), “The Ethics of Zealous Defense” (Blog post), http://www.greatgourdini.wordpress.com/2013/03/25/the-ethics-of-zealous-defense/, last accessed October 16, 2014.
  5. Ken K. Gourdin (July 31, 2013), “The Ethics of Zealous Defense II” (Blog post), http://www.greatgourdini.wordpress.com/2013/07/31/ethics-of-zealous-defense-ii/, last accessed October 16, 2014.
  6. Ken K. Gourdin (July 16, 2014), “Living With Unlikeable Verdicts” (Blog post), http://www.greatgourdini.wordpress.com/2013/07/16/living-with-unlikeable-verdicts/, last accessed October 16, 2014.
  7. Ken K. Gourdin (July 30, 2013) “Zimmerman acquittal tests faith in U.S. legal system,” Tooele Transcript-Bulletin (Utah), A4.
  8. Ken K. Gourdin (October 15, 2014) “Justice system: Same for everyone,” Deseret News, http://www.deseretnews.com/article/865613139/Justice-system-Same-for-everyone.html?pg=all
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