Persuasion

Hundreds of times I improvised haunting and sometimes sad versions of Gershwin's "Summertime" on the trumpet that for over twenty years has not touched my lips, and now sits in my garage. The song continues moving me as much today as ever.

"Summertime" comes from Gershwin's earth-moving Porgy and Bess, which premiered in 1935 after Gershwin spent several weeks on an island off Charleston, South Carolina, to hear and join in the rhythms of life, music and speaking that he would incorporate into this opera with signature Gershwin music, rather than the typical classical music that ordinarily accompanied operas at the time and usually still does.

First performed during the height of rabid and unabashed racism in the United States, the opera would be overwhelmingly cast with Black actors, as provided by Gershwin's brother Ira, who worked with George as lyricist. Among the many concerned about the opera's portrayal of Black people were Paul Robeson and Duke Ellington. Although the Socialist Worker is not ordinarily my preferred source for reliable information, the paper's likely decidedly anti-racist approach makes it particularly noteworthy that one of its writers wrote in 2005: "Some black artists criticised the work, believing it to portray black communities in too negative a light. Duke Ellington stated 'no Negro could possibly be fooled by Porgy and Bess'. Paul Robeson, who Gershwin asked to play the roll of Porgy, having written the part with his voice in mind, refused the role... In later years however both Ellington and Robeson recorded Gershwin’s music because he had played a role in putting black artists in the mainstream theatres."

A 2006 BBC article says Porgy and Bess "was revived after the war in the United States and attracted performers like Maya Angelou and Todd Duncan.   A filmed version starring Sidney Poitier (after Harry Belafonte turned it down because it demeaned black people) was produced by Samuel Goldwyn in 1959. After that the work encountered the civil rights and black power era." The rest of the brief article is worth a read. In any event, when local public radio covered the opera's current run at the Kennedy Center, I remained curious and concerned about such issues, starting with grammar errors in such song lines as "I loves you Porgy" and "Bess, you is my woman now." 

What prompted me to write today's blog was Gershwin's surprise that he had been able to reach such heights in creating the music to Porgy and Bess. What a wonderful way to exit the planet; he died two years after the opera's premiere.

Similarly, criminal defense lawyers are challenged every day to surmount the often seemingly insurmountable obstacles of reality and would-be reality. How many times do my fellow criminal defense lawyers and I say "Oh sh-t" in the face of apparently insurmountable odds to win a case and, if there is a conviction, to get the most favorable sentence rather than an utterly draconian one? The amazing SunWolf proclaims that "Reality is no obstacle," which at first blush might seem fanciful, but when examined more closely makes perfect sense when considering that many competing would-be realities are usually involved in a criminal case, and jurors and judges have various ways of deciding what is reality and how to handle that reality, sometimes including convicting the utterly innocent and acquitting the clearly guilty. It reminds me of a story from my trial law guru Steve Rench, about a woman he successfully defended in a theft trial. His client was arrested for allegedly pickpocketing a man she danced with in a bar; perhaps the jury got the idea that the would-be victim was there with unwholesome intentions. At one point while the jury was present but the proceedings were on hold, Steve went to a sheriff's deputy and pointed towards his client (held on bond during trial but in civilian clothes) during the conversation. Although his client was caught redhanded, the jury acquitted. Steve later saw one of the jurors at a bus stop, and asked the him if he had any comments about the trial. The juror merely said "Your client is okay," meaning to Steve that the jury disregarded the judges' jury instructions out of a belief that she had served enough time in the pokey while waiting for trial. In Steve's view, jurors are results-oriented, seeking to fix problems, which can put a real damper on the commands of jury instructions.

Again and again, I encounter staff members, clients, and witnesses (even an expert witness recently) who are fearful of doing something because it takes them out of their comfort or experience zone. Sometimes the fear is as basic as fearing to testify for the first time, or, with staffmembers, to tackle an assignment they have never done before. When I believe the person is capable of rising to the occasion, I encourage the person, sometimes by sharing some of my own trepidations along the path, including the fear of doing anything to let a client down and thus causing a conviction or a worse sentence than otherwise; it might be less fearful for me to draft wills and contracts, but certainly less meaningful and fulfilling. I remind them that it is okay to be fearful, but that the fear should not prevent them from proceeding forward. The idea is not to ignore the fear, but to know the fear and to send it on its way, similarly to the t'ai chi posture of embrace tiger/return [the tiger] to mountain.

Ordinarily, a musician or composer might not be seen as having a fearful occupation. Then again, George Gershwin broke radically new ground and entered new frontiers without knowing how audiences and critics would receive Porgy and Bess -- or even how he might rise to the occasion in creating the opera -- when he easily could have rested on the laurels of such preceding masterpieces as "Rhapsody in Blue" and "An American in Paris".

Of course, storytelling is central to persuading jurors and judges. Gershwin was a masterful storyteller, even when only doing it to music, before adding any lyrics. At least with "Rhapsody in Blue", "An American in Paris" and Porgy and Bess, Gershwin's music takes the listener on a storied journey that takes unexpected turns and captures the five senses and deep feelings along the way.

I stopped playing the trumpet that brought forth my versions of "Summertime" in the fall of 1985, when I moved to a shoebox one-room/no-kitchen ten-foot by ten-foot single resident occupancy apartment in Manhattan when working in the belly of the capitalist beast. Rather than scout out a place to play that would not disturb my neighbors where before I would play at my college's music practice rooms and at my parents' home, I stopped playing, and that carried on to law school, even though I probably could have found music practice space at the university; I was not ready to re-learn to get my mouth muscles back to where they were needed to be to play the way I wanted to play.

Not playing a musical instrument has left a creative and musical void in me. It is time to pick the horn back up, regardless of the state of my lip muscles. As a quote on the door of my ethnomusicology professor Jeff Todd Titon said, loosely remembered: "Music does not expect excellence. It welcomes being surprised by it, but does not require it." Consequently, in writing this blog entry, Gershwin has not only continued to inspire me to treat reality as no obstacle in my law practice, but also to open my trumpet case, to see if the valves are not beyond repair to oil them to working function, to vaseline the slides to move them into tuned performance, and to play and play and play, lost in the sheer enjoyment of the music.  Jon Katz.

ADDENDUM:

Here are some additional excellent Gershwin links, in addition to those above, which include YouTube performances of "Summertime", "Rhapsody in Blue", and "An American in Paris":

- Dubose Heyward's Porgy, which led to Gershwin's opera.

- PBS on Porgy and Bess. Be bowled over by Maya Angelou's discussion of the opera and her role as Ruby in a mid-1950's European tour.

- Film excerpt from Porgy and Bess.

- 2006 NPR coverage of the first time Porgy and Bess's premiere version was re-presented.

- Sarah Vaughan singing "Summertime", and Janis Joplin substantially altering it.

- Claudia Pierpont on "Why We Still Listen to Gershwin." 

At first blush, a criminal defense colleague whom I admire very much comes across as laid back in a powerful and relaxed way. I remarked how I find this inspiring in my lifetime movement towards harmony and away from the imbalance of intensity and much disharmony. My friend quickly dispelled the notion that he always is fully laid back; it takes him much work to get there from many of the same frustrations I often feel when some clients remain in stratospheric left field just one day before trial, and when so much of the criminal justice system is so unjust. 

Daily, I work to bridge the gap between the harmony that is essential to being powerful and feeling fulfilled on the one hand, and the turmoil that surrounds me in the form of war, inhumanity, indifference towards the plight of other humans and non-humans, an excessively unjust criminal justice system, and opposing lawyers and witnesses who would think nothing of stabbing me in the back if there were no countervailing repercussions for doing so.

I write more here about achieving a more harmonized approach to life, not out of embracing any new age concept, but out of necessity. Applying this approach to the practice of criminal defense, I think of the below-described imperfect parallel to Freud's id, ego, and superego, where the ego balances the id and superego. I call it the trio of Zappa, my above-described laidback friend, and the man with the flies.

Frank Zappa inspires me tremendously, not only as a creative genius, but also as an important example of how it is possible to be a caring and nurturing parent -- including requiring that a minor child's homework be finished before going to the movies with a friend -- without surrendering to mainstream society, American Idol, America's Top 40, and Barney. Zappa was passionate against the mediocrity that permeates society, said CNN confirmed the correctness of his not liking people very much, and told Alan Thicke he was ready to tell a bunch of academic composers to stop in their tracks and get real estate licenses. (See Zappa's Thicke interview covering his foregoing views, with his being civil with Casey Kasem, the very instigator of America's Top 40.)

As the great Daniel Schorr eulogized Zappa: "He was also contrary. Talk about his success, and he would say he was a failure. Talk about his popularity, and he said he was lonely. Maybe he was. Maybe the world around him was too crass, too mediocre, too homogenized. So he cursed it with dirty words, and went back to his music synthesizer, searching for new musical meanings. And ways of serving kids. His own, and the world's."

Zappa's very critical and cynical approach to life, music and art may have served him well as a musician, but does not serve me in shedding concerns about the extent of mediocrity and fallibility while trying to inspire, motivate and persuade a jury to my client's side, particularly when my jury might include fans of American Idol, America's Top 40, and Barney.

The other end of the Zappa spectrum is the above-displayed video of a meditating man battling flies with his sword, and somehow ultimately experiencing the flies as beautiful flower petals, where the video begins with Norman Vincent Peale's quote "Change your thoughts and you change your world."

For me, an important balance of Zappa's cynicism and intensity on the one hand and the above Norman Vincent Peale-inspired video is found in trial lawyer colleagues who -- like I -- know how unjustly brutal the criminal justice system is, but refuse to turn their backs on the system lest they are left to seek justice only from outside that system. My above-described laidback criminal defense lawyer friend is one of those inspirations. Gerry Spence is another. It goes without saying that SunWolf is on the top of that list.

I have not included my trial practice guru Steve Rench in the above list, because he seems to have transcended long ago feeling any tension with the injustices of the criminal justice system as he focuses on victory. Steve applies the basic, and effective, lesson of the magic mirror. If a judge knows s/he has a poor reputation with lawyers, that presents all the more a reason for the lawyer to empty the mind of any such thoughts, and to give the judge a clean slate that day. Oversimplistically, it is like trying to find the thorn in the lion's sole and to pull it out, rather than trying to slay the lion. I aspire ultimately to reach Steve's level of optimism.

What do you do to reach power by balancing between healthy (and even unhealthy) cynicism and overoptimism? Jon Katz. 

ADDENDUM I: Thanks to karmatube for posting the above-displayed video.

ADDENDUM II: Off topic: Who was Frank Zappa if he was willing, even momentarily, to trade places with the Monkees' Mike Nesmith? 

At first I was going to blog today about some recent key appellate decisions. One of the reasons I started this blog was to have extra motivation to read and index such opinions.

At the same time, this blog has motivated me to write about and to get closer to greater strength through total calmness, so that will be my detour for today's blog entry.

Although I have far to go in reaching total calmness, I keep getting closer to it day by day, kind of like a recovering ball of intensity for whom each day of calmness is an achievement. In many ways, I had to discover calmness. Calmness did not appear to be a priority commodity as I grew up, except when public school teachers told me and other students to stay seated, still, and quiet (and often bored). In grade school, I focused on having a quick mind when my ballfield prowess often left much to be desired (although I took quickly to lacrosse, and did alright in tennis and basketball when I focused on them). My peers often played the dozens in one way or another, which was made popular by George Carlin (I send him all good karma on his departure from the planet). Playing the dozens is not calmness.

Life progressed, and for years I did not feel I could let my guard down, when considering all the shysters, bigots, bullies and violent people that I was convinced surrounded me, without even needing to smoke marijuana for paranoia value.

Interspersed in all this was an increased interest by many people in calmness -- something that has been highly valued for centuries in much of Asia, but which perhaps got too forsaken in plenty other parts of the world as the industrial revolution and communications revolution shrunk the globe and made many people demand more and more ever more quickly, with many willing to fulfill such demands (enter FedEx, for instance).

The Beatles dabbled in calm during their time with the Maharishi Mahesh Yogi of transcendental meditation fame; John Lennon, though, eventually panned him as but a mere mortal, at best. George Harrison continued focusing on a spiritual journey. That journey need not be religious; as the Dalai Lama agrees, atheists, too, can reach calm.

Regardless of the Maharishi Mahesh Yogi's strengths and weaknesses, the transcendental meditation rage reached full bloom in the 1970's, which decade finished when I was sixteen. I learned meditation through Herbert Benson's Relaxation Response book; meditation is best done regularly than dabbled into, and I dabbled, until finding the moving meditation of t'ai chi.

Ironically, I met my best teacher for relaxation and peacefulness -- Jun Yasuda, whom I write more about here and in many other parts of this blog -- during a time of war in 1991, when countless people were suffering their heads being blown off and all other sorts of violence to them, their children, and others close to them, the levels of which continue today in Iraq, Afghanistan, and throughout the rest of the world. 

One night in the middle of last week, I got a phone call from Jun-san, speaking with her for the first time in about a year. She is on the Longest Walk with Dennis Banks, and will arrive in the Washington, D.C., area around two Mondays from now. Jun-san remains calmness and peacefulness personified. I might have gone decades without meeting Jun-san, or never meeting her, which would have required me to work all the harder at reaching the levels of peace and calmness that I now feel. 

Still a block to my achieving greater peace and calmness is my struggle to see and internalize everyone as part of the peaceful Buddha, without seeing some of them as carbuncles on the Buddha's backside. Maybe it would be easier to take this view if I were a Buddhist and grew up a Buddhist, neither of which apply to me, and figured out how to see all of us as interconnected without my seeing the carbuncles. Maybe it would be easier if I placed less value on joking about carbuncles and less fear about being bored when just being calm and peaceful rather than out and about in my thinking and experiencing.

Now, I try all the more to see and summon the Buddha nature in others. Because it sometimes can be a challenge to do that with the driver of an eighteen wheeler tailgating me and wildly flashing headlights when already I am in the righthand lane if the highway, I also turn to doing that with people who do not come across as immediate threats to my staying alive for one more day. Then, I move to the level of trying to do it with cops and prosecutors and opposing witnesses and judges when I feel disappointed in the lack of justice being dispensed by the judge. Critically, of course, I must do that with my jurors.

Of course, the trucker tailgating me and blasting the horn at me is not calm, either, and seeks peace in some way. Also seeking peace are the cop who plants evidence, the prosecutor who thinks nothing of letting a presumed innocent defendant rot in a jail cell for months until the trial goes forward, and a judge who renders a guilty verdict when reasonable doubt spills over the courtroom floors. Will these folks contribute more towards harmony if we bare our fangs at them, or if we offer them gestures of peace?