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We who live west of the Mississippi are familiar with ghost towns. Just in the northern Great Plains, hundreds of small towns were abandoned when a railroad line wasn’t built. More disappeared when highways and air travel led railroads to abandon lines to and through small communities. Farther west is a multitude of abandoned mining communities. Most of these ghost towns date back no more than 150 years. In Europe, though, abandoned villages and town sites can be centuries old. Such is the case with Miedzianka, Poland, a mountain-top town in Lower Silesia literally obliterated in the 1970s after seven centuries of existence.
The town wasn’t always Miedzianka or part of Poland. It began life in the 14th century as a small mining community surrounded by forest. Initially called Cuprifodina, it spent hundreds of years known as Kupferberg (German for “Copper Mountain”). The mountain area changed hands among various noblemen over the next 100 years, during which some 160 shafts and drifts were dug to mine copper and silver. Mining ceased in 1579 because it wasn’t profitable enough but it would resume, only to cease again, several times over the ensuing centuries. In History of a Disappearance: The Story of a Forgotten Polish Town, Polish photojournalist Filip Springer explores how the town was battered by fate. He suggests that to its inhabitants “history seemed like a beast that knew only how to sow chaos and destruction, though it never found [the town] in its path.”
 Each century took its toll on Kupferberg. Before the 20th century, decades of war brought Croatian, Swedish, Austrian and Prussian troops, who often marauded through and killed its residents. The plague made an appearance in the 15th century, killing nearly half the town. In addition to being put to the torch at least twice during the Thirty Years War, Kupferberg was decimated by fires in 1728 and 1824. Yet the town and its inhabitants survived as part of Prussia or Germany, the site of a renowned brewery and with the occasional resumption of mining and a growth of tourism.
The 20th century was even harsher. While its location meant Kupferberg escaped World War I essentially unscathed, its economic aftereffects were devastating. But the Second World War categorically changed the town. In the last year of the war, those of German ancestry begin fleeing with the advance of the Red Army. After the war, Kuperferberg becomes part of Poland and is renamed Miedzianka (“miedz” is Polish for copper). The ethnic Germans are expelled by Polish Communists who want an ethnically homogeneous Poland. Miedzianka and the surrounding area would be repopulated by ethnic Poles who move into the furnished homes the Germans were forced to abandon.
But history was not done with Miedzianka. The Soviet Union discovered it was home to a prized post-war commodity, uranium. Using existing tunnels and shafts and heedlessly creating more, it began mining the ore. In official documents, the mine was a paper factory. In fact, it employed nearly 1,500 people with little regard for their safety. The amount of uranium in the ore meant huge quantities of rock had to be mined. In four years, 25 miles of tunnels were dug. Subsidence had been an issue in some parts of the town for years but the new mine drifts and shafts brought increased numbers of sinkholes, collapsed basements and cracked foundations. So many buildings begin to collapse that by 1969 the Soviets decided it was cheaper to raze the town, relocating residents to cramped housing projects some 30 miles away.
Released in English for the first time in a translation by Sean Gasper Bye, History of a Disappearance traces this lengthy history through the stories of a variety of individuals and families, memoirs, interviews and archival documents. This allows readers to see “the beast” and its toll through the eyes of the town’s inhabitants. Springer blends this history with literary elements using a reportage style. The result of this approach to a unique and sad tale is a small history shaped by the vagaries of much grander history.
The reportage style may be off-putting to some, particularly as Springer has a tendency to eschew attribution. For example, one chapter consists entirely of quotes of residents about events before and during World War II. A footnote advises that four of the quotes are from an unpublished manuscript and the balance are from interviews Springer conducted — but we don’t know who any of the people are. Likewise, two chapters later is a recounting of the expulsion of the Germans and Poles moving into their homes by an unidentified Pole. Still, the story of Miedzianka is one that deserves to be told. Through it, we learn that being far from the center of history does not eliminate its consequences.
And what of Kupferberg-Miedzianka today? Prior to Springer’s book being released in Poland in 2011, a plaque about the size of a cigarette package was mailed to an overgrown plum tree. Erinner die Leute von Kupferberg, it read, German for “Remember the People of Kupferberg.” Springer notes in an epilogue that two years later the plaque was barely hanging on to the tree and later was taken away after falling off. But in its place were informational signs showing how the town looked when it existed. And there’s even talk of a new brewery.
History never well and truly arrived here, but instead roamed around in the vicinity.
Filip Springer, History of a Disappearance
Ask any trial attorney and they’ll likely tell you that the trial is the easiest part of a case. That’s because all the investigation, research, and preparation is complete. Equally important, the issues to be presented have been narrowed as motions and hearings before trial shaped and settled often significant procedural and substantive legal questions. Add in the bench conferences and in chambers hearings that occur during trial and some of what may most affect a trial’s outcome occurs out of sight and hearing of the jury.
In pointing out that this occurred in the Steven Avery case, the subject of Netflix’s popular Making a Murderer documentary series, Wisconsin criminal defense attorney Michael D. Cicchini examines various substantive and procedural laws, rules and court rulings that shaped the case long before the jury heard any testimony. While not part of the defense or appellate teams, his book, Convicting Avery: The Bizarre Laws and Broken System behind ‘Making a Murderer’ looks at the legal landscape of the Avery case. And while it necessarily is limited to Wisconsin law, where the trial occurred, its critique applies to almost all court systems.
Some of what Convicting Avery examines is already a subject of debate and discussion; other items have a much lower profile, if any. In the former category is the eyewitness identification that sent Avery to prison for 18 years for a rape DNA later established he didn’t commit. At that trial, the victim pointed out Avery as the perpetrator. Yet the jury heard 16 witnesses who said he was nowhere near the crime. The book traces the law enforcement actions that contributed to his erroneous identification in court. Even the Wisconsin Supreme Court would later call eyewitness testimony “often hopelessly unreliable” and say erroneous eyewitness identification is “the single greatest source of wrongful convictions in the United States, and responsible for more wrongful convictions than all other causes combined.”
 Arguably more pertinent and much less known is the case law courts apply during a case. The examples in Convicting Avery have two different, yet often related, themes. One is the language used by statutes, rules and courts. Another is that once a jury reaches a decision, courts make it difficult to overturn a conviction.
A prime example of language issues is a word that permeates the law, “reasonable.” Many criminal statutes consider whether a person’s actions were reasonable or unreasonable. Trial courts assess whether law enforcement’s actions were reasonable. Appellate courts often evaluate whether what a trial court did was reasonable or the reasonable effects of the actions. And the Wisconsin and federal constitutions ban only “unreasonable” searches and seizures.
Cicchini believes reasonable is the “most dreaded word” for criminal defense attorneys. “When the defense lawyer sees this word as part of a legal test or standard, he knows his client’s ship is sunk,” he writes. “The word reasonable is so vague and flexible that, when placed in even the most inept judicial hands, any law enforcement action can be justified after the fact.” Avery saw the malleability of the word more than once.
When new DNA evidence was obtained after his rape conviction, Avery sought a new trial so a jury could hear that evidence. Exculpatory DNA results certainly appear to fulfill the requirement that it must be “reasonably probable” the new evidence would produce a different result. Yet in affirming the denial of Avery’s motion, the Wisconsin Court of Appeals said reasonableness must be shown by “clear and convincing evidence,” a legal standard considerably higher than “reasonable.” And reasonableness played a major factor in his murder trial when the judge allowed items seized in the sixth search of Avery’s home, a search that on its face seemed to violate the rules governing reasonable searches and seizures, to go into evidence.
Other court-made rules played roles in Avery’s murder trial. Avery wanted to present a third-party defense; in other words, that some other person(s) killed Teresa Halbach. Yet to do so, he had to show the third party’s motive, even though that is not an element of a murder charge, and their opportunity to commit the crime. Moreover, defendants are required to present evidence “to directly connect” the third person to the crime. Thus, while the state can convict someone on circumstantial evidence, the bar is much higher for a defendant who believes someone else committed the crime for which they are charged.
A similar situation can arise in the context of Wisconsin’s preliminary hearings, the proceeding in which a judge determines if there is sufficient evidence to bind a defendant over for trial. Yet the prosecutor need not even show that its evidence meets the lesser preponderance of the evidence standard used in civil cases. Instead, the state need only show “probable cause,” all that is needed to obtain a search warrant. Moreover, under Wisconsin case law, the truthfulness of witnesses at a preliminary hearing isn’t relevant, only whether the evidence the state puts on shows its theory of the case is “plausible.” That also means a defendant can’t call a witness at the hearing to contradict facts presented by a prosecution witness because such testimony goes to credibility, not plausibility.
Convicting Avery examines several other elements of procedural and substantive criminal law that impact trials behind the scenes, from allowing the introduction of junk science to manipulation of interrogations to the ethical obligations of both prosecutors and defense counsel. Yet Cicchini doesn’t just take pot shots at the Avery case or Wisconsin’s legal system. He suggests substantive reforms regarding the third-party defense and Miranda warnings. Still, Cicchini recognizes the difficulty of substantive reform, noting that it “rarely happens because it is the rational or right thing to do.”. Rather,it tends to occur only when lawmakers “are motivated to ride the emotional wave of a single, high-profile injustice that has captured the public’s attention.”
While built around a particular case, the issues raised in Convicting Avery apply to the criminal justice system as a whole. Opposing arguments certainly exist but Cicchini makes clear he is viewing this from the perspective of a criminal defense attorney. Regardless of one’s personal opinions, the book provides a considered insider’s view of parts of the criminal justice system the public rarely sees.
While the [legal] ethics system can be incredibly suffocating when it comes to things that don’t matter … [it] is toothless and ineffective when it comes to what really matters: ensuring fair trials for clients accused of crimes.
Michael Cicchini, Convicting Avery
“We are going to have insurance for everybody,” Trump said less than two months ago. Moreover, it would be “[m]uch less expensive and much better” than under the ACA.
In an op-ed timed to the release of the GOP health care plan, House Speaker Paul Ryan said the bill would “give every American access to quality, affordable health care” and “lower costs.” Trump, meanwhile, said it was “a great bill” that “will lower costs.”
I’ve read the bill (obtained via a GOP-provided link). At least as to my wife and me, they’re liars.
We bought a Marketplace health plan in 2014. I was still practicing law and the marketplace premium was several thousand dollars less than our law firm’s group health insurance policy — and provided better coverage. (I could choose between the group and private coverage because I was legally considered self-employed.) We’ve kept the policy ever since, although we’ve seen the recent premium increases.
The GOP bill’s reduction in tax credits alone will increase our cost more than $5,000 a year — without regard for any premium increases. But premium increases are virtually guaranteed. Subtitle D allows insurers to charge people in their 50s and early 60s up to five times more than younger policy holders. Currently, that ratio is capped at three-to-one. Does anyone believe insurance companies won’t take advantage of this provision? If our current premium uses the 3:1 ratio, I estimate that with the tax credit changes and a 5:1 ratio health insurance would consume 75% of our annual income.
That means our only affordable “choice” is to go uninsured and hope neither of us gets cancer or other life-threatening condition before becoming eligible for Medicare in 2021. As an estimated 24,000+ South Dakotans have ACA plans and 89 percent get tax credits, there’s no question this legislation will endanger their health — and that of millions of other Americans.
So if you hear Trump or any Senator or Representative — or anyone — tell you the GOP plan will bring lower costs and make affordable health care available to everyone, you can be sure of one thing. For us, it’s a lie.
We must have universal healthcare.
Donald Trump, The America We Deserve
I know we’re only 60 days into the year. But last night I read one of the most important books of 2017.
Timothy Snyder’s On Tyranny: Twenty Lessons from the Twentieth Century is a slim yet essential volume using history to outline methods of protecting American democracy. Even prior to the election “fascism” became a buzzword for Trump and Trumpism. Tyranny, though, is a broader and more conceptually correct term. Snyder is quite familiar with the subject, teaching East European political history at Yale University. He’s written extensively about that and related subjects, including the multiple award-winning Bloodlands: Europe Between Hitler and Stalin, an examination of the impact of those two tyrants on the peoples of modern-day Poland, Ukraine, Belarus, Russia and the Baltic states.
Snyder’s 20 lessons began life as a November Facebook post. Neither that nor the fact the book is less than 150 pages diminishes its importance. On Tyranny looks to European history because, he says, “Americans today are no wiser than the Europeans who saw democracy yield to fascism, Nazism, or communism. Our one advantage is that we might learn from their experience.” In doing so, Snyder adapts his analysis to elements of American culture not present in the European situations.
 What are his 20 lessons? His first is “Do not obey in advance.” At first, one might disagree with his assertion that “[m]ost of the power of authoritarianism is freely given.” But his analysis speaks to the various efforts at normalizing Trump. “At the very beginning,” he writes, “anticipatory obedience means adapting instinctively, without reflecting, to a new situation.” How many of us are doing that or being urged to do so? That, Snyder argues, is what happened under both Nazism and communism.
“Defend institutions,” Snyder urges. He argues that we, like Germans and eastern Europeans, believe that our institutional structures will protect erosion of our liberties and rights. That assumption is unwarranted. Institutions are inanimate entities incapable of defending themselves. As a result, he says, “Do not speak of ‘institutions’ unless you make them yours by acting on their behalf,”
On Tyranny also suggests “Be kind to our language.” It’s easy to see why this is one of my favorite rules. Among other things, Snyder urges we understand the risks of electronic media, including the internet. These windows on current events tend to reiterate the meanings politicians try to give words. How do we combat becoming entranced?
Staring at screens is perhaps unavoidable, but the two-dimensional world makes little sense unless we can draw upon a mental armory that we have developed somewhere else. When we repeat the same words and phrases that appear in the daily media, we accept the absence of a larger framework. To have such a framework requires more concepts, and having more concepts requires reading. So get the screens out of your room and surround yourself with books.
Two other rules are somewhat related. “Listen for dangerous words,” Snyder warns. We need to be careful of cries of extremism and terrorism. Equally important is “Be calm when the unthinkable arrives.” We will see patriotism and fear of terrorism exploited when a national disaster occurs. Tyranny exploits terror and fear to consolidate power. “Courage does not mean not fearing, or not grieving,” Snyder writes. “It does mean recognizing and resisting terror management right away, from the moment of the attack, when it seems most difficult to do so.”
Snyder addresses today’s “post-truth” and fake news era with two rules. One, “Believe in truth,” argues that one way tyranny prevails is by attempting to change/create reality with lies and people accept those lies on blind faith. Snyder is correct when he says, “To abandon facts is to abandon freedom.” He, in fact, defines post-truth as pre-fascism. The other is simply “Investigate.” We all need to take responsibility for figuring things out for ourselves. We all need to realize that some of what is on the internet is false or, even if it has a smidgen of truth, tailored diatribe. Snyder points to an observation by one of those who battled tyranny in Eastern Europe, Václav Havel, who wrote, “If the main pillar of the system is living a lie, then it is not surprising that the fundamental threat to it is living in truth.”
Personal commitment is also key. “Stand out,” On Tyranny urges. “The moment you set an example, the spell of the status quo is broken, and others will follow.” Similar, it is incumbent upon us to not ignore symbols of hate. We should remove them and set an example in doing so. After all, “[i]n the politics of the everyday, our words and gestures, or their absence, count very much.”
Ultimately, that is the bottom line of Snyder’s “rules.” Twentieth Century Europe teaches that individual integrity, ethics and action are key. On Tyranny teaches that we must be our best selves if we want to protect America and enable it to live up to its ideals. There is no more important message in this moment of history.
Human nature is such that American democracy must be defended from Americans who would exploit its freedoms to bring about its end.
Timothy Snyder, On Tyranny: Twenty Lessons from the Twentieth Century
Both before and after I quit working, people suggested I consider teaching a university level class or two as a way to stay busy. It sounded okay but while I’ve spoken at numerous legal and other seminars and helped train young associates in our firm, I’d never taught what would be considered a class. As a result, I decided to offer to teach a class during the winter session of the Osher Lifelong Learning Institute (OLLI).
Not wanting to jump in too deep, I proposed a class called “Can I Trust this Website?”, based on the various elements I’ve used over the years when evaluating whether a website is trustworthy enough to be cited in an administrative, trial court or appellate brief. Additionally, I proposed just two class sessions of 90 minutes each with a class size of 25-30.
The second session was yesterday. About 45 people enrolled so attendance exceeded my proposal. Based on the classes, I think it went well. But what I learned is just how much work it is to be a teacher. The skills I addressed are things I learned over the years and did automatically. I don’t think I’m far off the mark in estimating that figuring out each of the steps, doing research and preparing course materials took me 80 hours. Now it wouldn’t be unusual for me to spend that much time preparing for an hour-long Supreme Court argument, of which I’d have no more than 30 minutes. But here I was just trying to relate steps that had become secondhand for me.
Granted, it I taught this course on a regular basis, my time ROI would improve as I’d nearly need to update and revise the material. But I learned just how much work and talent is involved in being a teacher. I think it’s something I’d taken for granted for years, often being among those joking that it would be nice to only have to work nine months a year and have Christmas vacation each year.
So to teachers at any level — and my friends who are or were teachers — I’m impressed by how talented you have to be.
UNSOLICITED PLUG: If you’ve never taken a course offered by OLLI. It offers fall, winter and spring sessions each year in Sioux Falls, Vermillion and Brookings and the vast majority of classes aren’t just repeats from the previous session. In Sioux Falls, it costs $70 to be a member for one term or $170 for a year. You can then take any and as many of the courses as you want (some have enrollment limits). The vast majority cost nothing more, although there are exceptions for those that might involve travel or tours. In literature classes, you can check out the book(s) from a library, buy new or used wherever you want or share them with a friend. Not a better bargain around for those with inquiring minds.
To teach is to learn twice.
Joseph Joubert, Pensées
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Disclaimer 
Additionally, some links on this blog go to Amazon.com. As an Amazon Associate I earn from qualifying purchases. There is no additional cost to you. Contact me You can e-mail me at prairieprogressive at gmaildotcom.
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