Taking a Con-Law Bridge-Walk is a Saturday morning activity that gets us out in the fresh air along San Francisco Bay with students, family, and other friends.
There's always plenty to see and think about along the way. We start at the north end of the Marina Green and walk along the beach promenade down to the Golden Gate Bridge. With the Bay to starboard and the Crissy Field marsh to port on the way out, there are all sorts of birds and boats to hold our attention.
Birds and boats are, of course, subjects of Con-law, from the Pilot Boat case (Cooley vs. Bd. of Wardens, Port of Philadelphia (1852)) to Missouri v. Holland (1920, Holmes) on the Migratory Bird Treaty with Great Britain.
We were happy to have noted bird-lovers Leonard and Patti Blumin join in Saturday's walk with Conlaw scholars Leland Lee and Kathie Ritchie. Len and I go way back, having grown up together on the same block in Four Corners, Staten Island. We speak the same language.
Len's father, Arthur Blumin, was my teacher at PS 29, and our relationship is thicker than that. As head of the Emergency Service at Children's Hospital, and Board Certified in Nuclear Medicine, Len was instrumental in clueing me in to the science and math (statistical inferencing) needed to understand, and win, the hard-fought, twelve year, Foxglove case.
Foxglove is a plant that produces the heart stimulant and regulator commonly known as digitalis (a cardiac glycoside), a by-product of which is digoxin, a medicine which my client was accused of using to murder elderly men for their estates, according to the San Francisco Medical Examiner (ME), District Attorney, and Grand Jury, which returned a 96-count indictment. She said it weren't so.
I asked the question that the ancients (the Romans, in particular) asked: Cui bono? or, "Who benefits"? Not my client, a young woman with no schooling (she was Gypsy, which added to the adverse inferences, unwarranted in this case, except by association).
There was no will or other legal instrument that would have done her any good had any of her old, really old, friends kicked off, with or without her assistance. It was doubtful that she was going to outsmart the Medical Examiner at his own game. However, he may have outsmarted himself, and cost her two unnecessary years in jail.
In fact she had married one really old guy (she was 17, he was 89, and he died three weeks after the rites, which caused a certain amount of suspicion). The ME did the autopsy and necropsy but found no foul play, and my client thus inherited a bundle.
However (there's always a however) the ME failed to check for digoxin. So, years later, the same ME, called upon again to look into my clients' relationship with a number of elderly men (not just one, this time) was not going to overlook the possibility of digoxin poisoning. This time the ME looked for it, hard, to the extent that he found it where it didn't exist. It's funny how that works. When your only tool is a hammer, everything looks like a nail. This is the sort of stuff you couldn't make up, and it drives perfectly good attorneys to distraction.
Just when you think the world is supposed to behave rationally you find that the ME, our chief scientist, the guy who is supposed to keep the medical-legal criminal justice system rational and on track, has himself gone down the wrong the track and is now leading the DA, the Grand Jury, the whole court system, the newspapers, TV, and the public along with him. Trying to derail this mighty train is one guy, backed by a doctor who is teaching him how to manufacture dynamite.
This was a fascinating story of poison and murder that lacked only two things, poison and murder.
Len pointed out how the Medical Examiner, a 25-year veteran, made a few mistakes, which the ME, under cross-examination by Yours Truly, kindly admitted on the witness stand under oath, not always with alacrity. That was my job, placing the dynamite when and where the train crested the grade, ready to roar downhill. I derailed it. It felt wonderful. And when the DA tried to get even, three times, I beat him back each time, which made me feel even better.
Having successfully performed a Foxglove-ectomy on the Foxglove case, I oversaw its collapse, freeing my client after she spent two years in jail for a crime that not only didn't she commit, but a crime that was never committed by anyone, as in Salem, 1692. I often felt as though my demonized (in the press) client were a witch. Defending witches is an interesting chore for an attorney to have to do at the turn of the 20th-21st Century. I never had more fun de-railing a train. That and winning Professor of the Year award from the Student Bar Association are the two greatest pride-inducing things I've managed to accomplish in recent years. Naturally I'm humbled by this, when I'm not too busy being proud. And once a week I try to be modest, too.
How did the ME screw up in causing the indictment and then the dismissal of such a notorious case?
The ME did the work himself, failed to brush up on his failure to understand statistics, and relied on his own failed memory as to how the test worked, thus violating a handful of Society of Forensic Toxicologist guidelines, each of which was put there to prevent causing just such false conclusions and accusations as we dealt with in Foxglove.
Since our Bridge Walk turned into a Bird Walk last trip, kindly excuse the crowing.
Leonard likes spotting wild birds and bobcats using his powerful (and heavy) Swarovski tripod-mounted monoscope, which he lugs on his shoulder for the trek. He and Patti had hiked 12 miles on Mt. Tam shortly before, so our two-mile trip was a piece of cake for him.
As we walked along the newly rebuilt marsh in the Golden Gate Recreational Area, Len and Patti identified birds and plants along the way. We saw loons, terns (good and bad), hummingbirds, ducks, gulls, starlings, cormorants, sparrows, egrets, and a red-shouldered hawk.
Len spots the bird with the scope, focuses, then attaches a small digital camera to the eyepiece to capture the image. You need patient birds, and a patient photographer to succeed in obtaining a bird image. Some fly off just as the preparations are almost complete and the shutter about to snap, as though they know the game. "Look, he's watching us...," Len will say, just before the subject hops off into the air and we wonder whether it will return to the same branch, which it rarely seems to want to do.
Below is a portrait that Len made of a magnificent young
Red-Shouldered Hawk that one of us spotted perched high on a branch.
He apparently lives, or at least hunts, atop the cliff overlooking the cattails alongside
the trail behind the Warming Hut that leads to the top of the bluff and the Bridge.
Click photo to enlarge, please.
Regarding this not-so-little guy, according to Len:
The accepted common name is: Red-shouldered Hawk. Latin is Buteo lineatus. It is common in coastal California and found all over the eastern and central U.S.
Here's a shot of a tricolored heron that Len sent:
How many colors do you see?
Very good; I knew you'd get that one.
Inviting Len and Patti to join the walk, I wrote:
Part of what I do is to relate the subject (of Con-Law) to daily life, and vice-versa.
The name of the international migratory bird treaty case, fyi, is Missouri v. Holland (1920), and I'm going to provide you the link, below, which will bring it up on-line, to show how birds are treated in international and conlaw, which you might find of interest, particularly the rationale of Holmes as to why birds deserve protection sufficient to make federal power trump states rights, always an issue. It's only a page or so and you can gloss over the legalese to get to the meat, unless you want a challenge. I wonder whether you could add to the rationale.
Len responded:
Interesting piece by Holmes. I like some of the flowery touches in his writing.
Nothing really to add, except that it sounds like the basis for the treaty (to protect birds because they are a source of food, and because they eat insects that could threaten crops, etc.) is rather narrowly drawn when compared to our current understanding of birds and their function in maintaining healthy ecosystems.
What would impress people more is that birds like hawks eat millions of rodents, and without the hawks we would be overrun with mice and rats, and the diseases they carry.
I believe we have since signed treaties with Mexico and perhaps other Latin American countries.
Many of our songbirds are "neotropcial", meaning they migrate to the tropics during winter and return to the US to breed each spring.
RS:
Relating things that come up on the walks to cases is a way of keeping the cases in active memory and relating them to facts, which is always the challenge in law.
Here's the cite: http://tinyurl.com/cah9w
[See, I put Len to work, and he came up with a broader rationale than the celebrated Oliver Wendell Holmes, Jr., who I hope would be delighted with the expansion of his effort. Of course, OWH, Jr. may not have been an experienced bird-watcher.]
Len and Patti are associated with the Audobon Canyon Ranch near Stinson Beach in Marin, which is a major rookery for great egrets. If you haven't visited, this is a nice drive from San Francisco and a wonderful place for a picnic lunch with family or friends. You make a short hike up one side of a valley to an overlook where you'll see large birds nesting in the tree-tops on the other side. Guides are there helping visitors to use the scopes provided by the ranch. In the ranch house is a museum-like exhibit of the area and the birds.
As people build homes and shopping centers in new areas, bird habitat shrinks. There aren't too many places left for flocks of migrating birds to land, rest, find food, and sanctuary as they enter the next phase in their life-cycle.
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