March 30

The seriousness of the pandemic became more evident yesterday, with hospital ships floating into New York and LA to take on excess patients. Staying inside on another rainy day, there was not much difference between Sunday and Monday, but habits formed by 25 years of lawyering had me typing early.  By the end of the day, I had filed four motions asking federal judges to release defendants from prison as they await trial, based on the fast-growing risk that the pandemic will hit prisons with a vengeance because social distancing is not possible in that setting.  Not one member of judicial staff responded to my correspondence sending the filed motions. There was no response from “chambers” to schedule a hearing or even acknowledge receipt of the written submissions. This tells me that judicial staff are not reporting to work at the federal courthouse, despite its reopening on March 30, because they correctly perceive a massive risk to their health from doing so.

Another odd circumstance was the complete lack of similar motions by other lawyers in the other cases I am involved in. Three of the four cases where my clients are in custody involve multiple defendants. In a newer case, the Superseding Indictment alleges that the defendants took part in various drug and sex trafficking-related criminal activities at a rooming house in the City of Reading, thereby conspiring to participate in a racketeering enterprise in violation of 18 U.S.C. § 1962 (d). I don’t write this way, but that’s what the Indictment says. There are 14 other defendants in this case, all in custody, all in massive amounts of trouble, but to date nobody else has filed a motion seeking their release from prison. I am not self-promoting here, just wondering what was happening on the same day the President announced the continuation of pandemic-containing guidelines to April 30. Have people given up, are they so distracted by seamless iPhone access to bad news that they cannot focus, has the unlikely prospect of payment anytime soon for lawyer work led them to do nothing. I don’t know which it is, but I suppose the last excuse for inactivity makes sense.

No pay, no work. A basic rule, one would think, from landscapers to lawyers. But not in the strange world of classical music. It may be my background in this pursuit that leads me to work without assurance of compensation. Learning the cello repertoire involved no pay and all work. It did not even come with the promise of pay in the distant future – what a medical resident can hold on to during the brutal years of sleep-deprived training.  After a decade largely spent in a practice room, attending Juilliard and winning a cello competition, I was still broke. Thirty years later, making money and playing cello are those two ships that pass in the night. Proof can be found in the two months spent preparing for a major recital on February 29. When the applause (a standing ovation, actually) subsided, there were three things to show for it: (1) we got our fingers back, which means we were in performance shape again; (2) neighbors were glad to attend a quality public event without the need to go to Center City; and (3) the Church where we played happily collected a larger donation from those who attended than for a typical Sunday service. There was no economic argument to justify this recital, but still I practice, especially now with closure of my office building and no good reason to enter Center City anyway. Thanks to self-quarantine, I have gotten back the entire Haydn C Major concerto, a piece I played frequently in the mid-1980s but have not touched since then. Is this an accomplishment or a bad habit that cannot be broken? Logic, which I am about to talk about, supports the latter conclusion.

Going back to the motions, there’s not much to disagree with in the opening statement of the one that I filed for a young defendant stuck in an Allentown prison for the past two months: “The neighboring states of New Jersey and New York are now an epicenter of the pandemic in the United States, and it is only a matter of time before the numbers of severely ill Coronavirus patients in Philadelphia, Allentown, and the surrounding cities of Southeastern Pennsylvania drastically increase.” However, I doubt the judge will terminate J’s custody, based on a conclusion that if this is a sufficient reason to release someone from prison, then the entire facility will need to be emptied. Affirmative, Captain. That is the basic approach here, that some problems are so severe that novel measures should be applied to them, especially since this culture reputedly values life above all else. I am not arguing for the release of a homicidal maniac, but that does not matter to devotees of the Socratic Method.

I have been amazed since law school days how professors and other authorities could construct a “logic” argument based on something that is not at issue. Stated otherwise – since my argument, if taken to its ultimate conclusion, would empty the jail, then it must be rejected for a non-violent offender who has every reason to stay inside and out of trouble if he is sent home to his mother (praying every day to saints of the Dominican Republic) during the pandemic. The logic that our judge will likely use to deny my motion has nothing to do with exigent circumstances or even reality, but for reasons I don’t understand much of the legal profession and especially judges are committed to the rule of logic. Taking logic to its own ultimate outcome generally results in doing things as they have always been done. This pandemic may ultimately change that stasis.

I advised the families that I had filed motions seeking the release of their sons from prison, and they responded with thanks, prayers for a good outcome, and questions about when the judge would decide. These filings brought hope, an intangible that improves any situation while it prevails. For this alone, they were worth doing.

March 25

Christmas was three months ago. That morning, my youngest daughter led the congregation in song for the two morning masses at St. Bridget’s. Away at Columbia for Fall semester, it had been months since she worked with Bill, our parish musician. But having done so many masses together since high school years, the services came together easily. The live acoustic of this stone floor Catholic Church just up the hill from the Schuylkill River favors high frequencies, making a lower register the best contribution the cello can bring to Mass. So I covered the bass line. It was a cold, clear day, and doing two masses in a row was a welcome form of service. Home by noon, we opened a few modest presents and started to prepare Christmas dinner while tending a fire in the living room hearth.

A few days before, I received notice that a federal judge had approved my compensation request for a Court-appointed case that had dragged on for three years, but in the process had accumulated enough hours of legal work to pay the upcoming semester of college tuition.  Money has always been uncertain since I left White and Williams in Philadelphia nearly ten years ago. In fact, paydays back then as a junior partner were fewer and farther between than they are now.  I am no entrepreneur, and it has been the curse of my careers in law (and previously in music) that I prefer to get the job done than think about how much I can publicize or charge for it. An enduring naivete, that if I won the case both money and firm recognition would follow, led to a sad end at White and Williams, where I did not realize the overriding importance of office politics until too late. But last Christmas, financial concerns took a temporary back seat to the holidays. We went to mass at the Basilica in Center City on New Year’s Day and started in with 2020.  The name of this year is the most futuristic yet. Until writing this, I had forgotten how odd “2000” looked when the 20th Century came to an end. But so much was going on, raising babies, getting them through school, finding a house and trying to make money, that I did not realize how fast time was passing. The teen years of the new century coincided with our daughters’ same phase, and now they are almost adults, living at home only because it is the plague time.

Two months ago, the year had made a promising start. With my office back in Center City I was doing a lot more walking, mainly 22-block round trips to federal court. Out of a car and on the street, I was surprised to see how miserable most people looked up close during the first week of January. I was able to resolve several criminal cases that month, and in February added two new cases for private clients. We ended the second month of 2020 with a Leap Day recital at the Presbyterian Church next door. The program went well, the sanctuary was filled and our decision to donate the freewill offering to the Church gave it a bigger collection than usual. Then came March, with Columbia dorms closing on March 13, my oldest daughter getting one of the last flights out of the UK on March 18, and the Pennsylvania Governor issuing an Order closing most non-essential to life businesses on Friday, March 20. Many people in Philadelphia were slow to take the pandemic seriously, and I joined those ranks by making a last trip to the state liquor store on March 14, before they all closed three days later.

From stop signs merely advisory to the fast food packaging thrown out of cars when they do stop, there is a high rate of background illegality in Philly. In the virus context, this shows in the frequent groups of more than six people I tried to avoid yesterday on the Kelly Drive running trail. It also surfaced at my turnaround point, the crew race reviewing stand half-way to Center City. The adjoining parking lot was filled with cars at 2 pm on a weekday, the occupants engaged in strolling conversation while a strong scent of weed lingered, dense enough to resist the breeze from the river. I wondered as jogging home if smoke would accelerate the virus by drying the throat, or if a belief had formed that weed conferred virus immunity by making one sufficiently “chill” to not worry about it. I have no doubt that at large law firms, people are still trying to outdo each other through face time at the office, in hopes that the compensation committee will remember their bravery when the time comes. Over the last quarter century in this City, I have learned that the Philadelphia status quo is extremely durable. Those who reaped the rewards of being part of the ruling class don’t change their ways. At this point, the virus has still not convinced them that this time, more than 9/11 and the near-death experience of big law in 2009, things are changing at a pace previously unimagined.

After climbing the steep rise of Midvale Avenue at a pace that was probably slower than walking, I arrived home to blossoms opening about two weeks ahead of schedule due to that other multinational problem, global warming. Although it was only 3 pm, I mixed a medicinal shot of rum with cranberry juice to celebrate covering two miles more than on Sunday. The rest of the day passed with normal, some would say compulsive, activities. I practiced cello yet again, then did my normal 30 minutes of German on Duolingo, a language learning app that actually helped me speak it in Leipzig last summer. Duolingo is perfect for those of us with obsessive compulsive disorder, because it keeps track of how many consecutive days you have studied.  This week, I could not resist the lure of 100 consecutive days, and then breaking the 16,000 level for “gems,” which one accumulates as completed lessons stack up. The earliest notice in late February that the virus was actually a huge problem came from German news sites, which I review in the morning as a real-world compliment to grammar drills on Duolingo. With cello and language studies done, I overheard the evening news, and it was bad. The reports of bodies being kept in tractor trailers outside major New York hospitals moved me to thank Columbia University for getting it right and closing the dorms 12 days earlier. It took less than two weeks for the business as usual vibe I noted in Manhattan during the March 13 move-out to vanish completely. When complacency eaves Philadelphia remains to be seen.

Plague Time Journal

The Leap Day cello/piano recital took all of February to prepare. I planned the recital during the Christmas holiday, guessing that two months, starting in earnest on January 1, would be enough time to get ready, and so it was, although the last two weeks were five, six, sometimes even seven hours each day. We played the pieces over and over again, slow practice as taught in music school, first thing in the morning and then late into the night after work. When I could no longer stand the repetition, I added the George Crumb solo sonata to the practice list, a technical workout too modern for our expected audience, but perfect to build hand strength, like gymnastics. An upcoming public performance awakens lingering doubts – what if I forget, my bow shakes, or the last movement of the Brahms e minor sonata falls apart because I can’t keep up with the racing piano. The only remedy for lingering doubts about a performance is excessive practice, and again it worked. The Church was full, tempos faster than planned but still manageable, a standing ovation with plenty to drink at the reception that followed. As with each recital I have done since going to law school after Juilliard, the process confirmed that I would gladly play cello all day, every day. It could be the Blue Danube waltz or a Shostakovich concerto – I started the process early enough, as a child in 1975, that the X-Y axis of the fingerboard and the different challenges of bow control remain unending sources of fascination. If only this pursuit made real money.

While learning to do it in the 1980s, it seemed possible to make a living. But by 1989 the odds of finding a steady pay orchestra job were similar to being struck by lightning, since it was generally necessary for someone in the cello section to die first. Things changed quickly, as the core audience able to follow the development section of a Brahms sonata fell away. Knowing the additional damage that cellphones have done to attention spans, we structured the recital to provide interesting pieces that came in, without intermission, at just over one hour. This did not prevent an audience member from sitting about four feet away from me, in a forward pew I assumed people would stay away from, and knit (clickity-clack, clickity-clack) for the duration of the Boris Chaikovsky solo suite. Maintaining concentration was a battle that worked, and the Knitter made a good war story for the neighbors I could still talk to during the first two weeks of March.

There was none of that this past weekend, and after one last legal filing on Saturday morning, I set up a chair that afternoon and played solo Bach in the front yard. In a scene impossible pre-pandemic, cars stopped, people got out and filmed, a few couples sat far away to listen, people I did not recognize actually thanked me, saying “this is what we need now.” I will do it again next weekend, but now it’s a cold rainy Monday. At this time last month Judy and I were in the final stages of recital preparation, with Coronavirus something safely contained in Europe. Now, there is no legal work to do because Courts are closed and filing deadlines suspended. In a massive irony, there is at the moment no money to be made in law either. Some fast research into plague indicates that it was a frequent visitor to Tudor England, where “outbreaks were particularly bad in London, in 1603, 1625 and 1636, doubtless due to growing congestion.” See Brewer’s Dictionary of Phrase and Fable (17th ed. 2005) at 611. Until now, I had never experienced a plague. The media prefers the more clinical term, pandemic, but plague speaks more strongly to the lives, work and economy that the virus is destroying.

Ten days ago, on March 13 when Columbia University shut down, the situation in New York felt normal. The directive to empty dorms by noontime meant nothing to parking police, who ticketed me and every other vehicle filling up off Broadway with the remnants of a school year that was ending two months early. I argued with the enforcer (as did Columbia security), so he wrote another ticket for the plastic cover on my suspiciously Pennsylvania license plate. The collegiate rowing season had canceled that morning, and my daughter suspected that graduation would be the next victim of overreaction. She did not believe the danger, nor did I while waiting for Sabina to say her goodbyes.

I crossed Amsterdam to get away from the enforcer (arrest seemed the next logical step for him) and found a spot of doubtful legality just up from Mt. Sinai Hospital on W. 114th. It was probably doctors-only parking, but a helpful vandal had removed the sign, and surely the metal post alone was insufficient evidence for another violation. Still, I stayed close to our aging CR-V, pretending to await a patient pickup while doctors, nurses and patients streamed in and out of the hospital doors, none wearing masks, most in close proximity to other people. By 12:30 it was lunchtime, and a sequence of New York types still recognizable from when I lived there 30 years ago streamed by. Construction workers, still smoking, still profane but now wearing Hi-Viz. Orthodox Jews, still in black with yarmulkes, but somehow more fashionable than before. It was Friday in Manhattan, spring was in the air and it seemed pointless to leave. I briefly considered stopping at Bierstrasse, a German-themed beer bar at the foot of the on-ramp to the Henry Hudson parkway, but there was nothing to celebrate. I took the upper level of the George Washington Bridge, so Bina could better see the dark expanse of the Hudson, where her crew team sometimes practiced in the shadow of ocean-going vessels. We got back to Philadelphia in less than two hours, because the NJ Turnpike was empty, the eight lanes in each direction looking like overkill, which is what the media seemed to be doing with the virus that day. In Pennsylvania we still have state liquor stores, and as a precaution I purchased vodka, rum and two boxes of wine that evening. A festival atmosphere prevailed at the checkout counter, with workers predicting imminent closure. It seemed impossible but came to pass five days later.

Sabina held her parents responsible for enabling the exaggerators until it was time to go to Newark International, to meet her older sister’s flight from London Heathrow. Kate started a Ph.D. in Physics at Oxford this past October. Her college hall was founded in 1610, early in the reign of James I, and the great age of Oxford led me to assume it would stand like a fortress, professors and students hunkering down among medieval towers with candles and wine cellars until the crisis passed. I was wrong, and during the weekend of March 14 Kate got increasingly spooked as the town emptied out, and flights back to the United States became harder to find. By the time we bought a ticket, there were only a few remaining exits, to Dulles and Newark. Contrasting with the bedlam scenes from the second week of March, Heathrow was deserted by the time Kate arrived hours early for her flight out on March 18, and there were 17 people on the plane.

After four years as an undergraduate in Scotland, Kate knew to run towards US customs immediately after exiting the plane, and this time it would be a health risk to land at the back of a long slow line of incoming passengers. They took Kate’s temperature, found nothing, and reminded her of the 14-day voluntary quarantine for UK arrivals. Outside Terminal C where we waited, there was plenty of room to park, among signs warning of catastrophic fines and circling tow trucks. Similar to the week before outside Mt. Sinai, I paced around the CR-V to reinforce the impression that our passenger would arrive at any moment. A few Port Authority police vans stopped in front of the terminal as we waited. I expected at least a warning, but instead the officers got out, looked around, piled back in and then sped off without a glance in our direction. The quiet reminded me of the late 1970s, when my father regularly flew in and out of Newark to work at chemical plants out west. The economies of the Carter administration had shuttered one of the terminals, and I am certain we never spent any money on parking as we waited for Dad’s plane to arrive. Kate soon emerged, from a different terminal that was likewise deserted. Traffic on the Turnpike was even lighter than the Friday before, and the entire round trip, waiting included, took less than four hours. I went for a run to shake off the drive, only to see many others still driving. Traffic on Kelly Drive leaving the City was heavy, stretching nearly one mile south to the statue of Ulysses Grant across from the river. It looked like the aftermath of a fatal car accident, the type that texting behind the wheel has made a daily occurrence in the area. But there was no accident, and it was only 3 pm on a Wednesday. People were getting out.

I had a conference with a federal judge that morning, to resolve the extent to which the Government needed to provide me with discovery (witness statements, surveillance, covert audio recordings, etc.) that preceded the arrest in the Philippines of a sex-trafficking defendant I had been asked to represent by his cousin, another lawyer. The defendant had been indicted, but the Government had still refused to provide discovery information on grounds the defendant had not yet been extradited to the United States. My response was that nobody knew when extradition would finally happen given the virus, and that under the circumstances there was every reason for me to at least get started with reviewing what would likely amount to stacks of evidence against my client. I expected the District Judge to make a ruling during the phone call, but he retreated, saying he had received both sides’ written submissions, understood the issues and would issue a written decision “shortly.” That was five days ago, and in the meantime, the entire legal economy of Philadelphia has shut down. Law is a deadline-driven profession, but with Courts closed and filing deadlines indefinitely suspended by judicial fiat, there is nothing left to do now. I suspect that former colleagues at large law firms are still going in to facetime senior partners, perhaps believing that the perceived importance of their work takes precedence over the Governor’s Order of last Friday closing all but “life-essential” businesses. I gathered a few things from my office this past Saturday and have no plans to return anytime soon.

It is now March 23, ten days after a Friday the 13th that delivered with a vengeance, including the Columbia dormitory shutdown, permanent migration of classes online, the looming and now realized cancellation of graduation, and the pair of parking violations that I received as a parting gift from the City. No doubt the narrative and supporting photos I sent in to contest the violations will sit in an electronic queue, awaiting review indefinitely. Two federal hearings scheduled for today were moved to mid-May, and it is by no means clear that the need for self-quarantine and social distancing will be finished by then. It’s cold and raining outside and I’m glad to have run yesterday. I join in the hopeful theory that regular strenuous exercise may help prevent contracting the virus. With this journal finally started, it’s now time to practice. Since I can’t do that all day, stories about things I experienced in school and on stage will hopefully follow.