Steven Harrell Blog

THE HIGH WATER MARK

JUL 11, 2013

On July 2, 1863, the Federal Army position at Gettysburg was disposed in the shape of a fishhook, with the curved part of the hook anchored on the right on Culp’s Hill. From Culp’s Hill, the lines ran west by south around Cemetery Hill, where the XI Corps was posted, then in a southerly direction along Cemetery Ridge, which was anchored by Hancock’s II Corps.

General Dan Sickle’s III Corps was deployed in a precarious position near a peach orchard and wheat field near the Emmitsburg Road. General Sedgwick’s VI Corps and General Sykes’ V Corps were in the process of coming up the Baltimore Pike when General Robert E. Lee ordered an attack on the Federal lines.

General Longstreet ordered his First Corps to attack the Union lines in an echelon attack up the Emmitsburg Road. General McLaw’s Division smashed General Sickle’s exposed III Corps in the Peach Orchard and the Wheat Field, totally destroying that unit as a fighting force, once they went on the attack at 5:30 p.m. General Hood ordered his division on the attack at four p.m. into an area of rocky hills known as the Devil’s Den, and a small mountain known as Little Round Top. The Confederates would have achieved a major victory on Little Round Top, but men from Evander Law’s brigade were repulsed by the 20^th Maine Regiment at the extreme left of the Union line.

At six p.m., General Anderson’s division was ordered to attack the center of the Union line at Cemetery Ridge. Anderson’s Division consisted of brigades commanded by Generals Wilcox, Lang, Posey, Mahone, and General Ambrose Ransome Wright of Georgia. Wilcox and Lang’s Brigades of Anderson’s Division attacked in concert with McLaw’s Division at the Wheat Field and the Peach Orchard. The remaining brigades of Anderson’s Division attacked Cemetery Ridge at 6:30 p.m.

Wright’s Brigade consisted of 1600 Georgians, and they attacked the Federal position across a mile wide open field. His brigade consisted of the 3^rd Georgia, the 48^th Georgia, and the 22^nd and 2^nd Georgia Regiments. The Second Georgia regiment led the attack as skirmishers. As they came past the Cordori House, the brigade came under Federal artillery fire. As the smoke cleared, General Wright noticed that neither Posey nor Mahone’s Virginia troops had advanced, and his left flank was totally unprotected. Wright sent a note to General Anderson, asking for support. General Anderson replied that Posey and Mahone were ordered in on the attack, and he would repeat the order. Only a portion of Posey’s Mississippi Brigade came to Wright’s support, however.

Wright’s men furiously overwhelmed several regiments of Gibbon’s Division, and forced Gibbon’s men back toward Cemetery Ridge. Their attack was soon directed toward a clump of trees, where they came under fire from Brown’s Rhode Island Battery. Gibbon’s men were forced behind their second line of defense one hundred yards back on the ridge, behind a stone wall. This wall became immortalized as the high water mark of the Confederacy.

The 48^th Georgia Regiment under General Wright attacked Gibbon’s men in hand to hand combat. Wright’s men shot the artillerymen down at the battery, and captured the 12 pound Napoleon Guns. They were then taken under fire by General Hancock’s troops on Cemetery Ridge. Wright’s Brigade crossed the fence and rushed up the ridge, planting the Confederate and regimental colors on its crest. Wright requested support, but Lang and Wilcox had been forced to the south, and Posey was stuck north of his position. Mahone would not move his command from Seminary Ridge. Taken under fire in three different directions by the 69^th and 106^th Pennsylvania, and the 13^th Vermont Regiments, Wright’s command was in danger of being completely surrounded. Wright’s men abandoned their captured guns, and began to cut their way out. They made it back to Confederate lines near Seminary Ridge, but General Wright had lost nearly half of his brigade in battle that afternoon.

The next day, fooled by the fog of war, and emboldened by Wright’s success, General Robert E. Lee ordered an attack on the same position at Cemetery Ridge by no less than 15,000 Confederate troops consisting of three divisions, Pickett’s Division from Longstreet’s Corps, and two divisions from A.P. Hill’s Corps. The frontal attack the next day, known as Pickett’s Charge, failed to break Hancock’s lines on Cemetery Ridge. General Lee, without the eyes of his cavalry, failed to realize the real reason behind Wright’s success on July 2^nd. Meade had fewer troops to begin with then, and he was hard pressed by attacks on both ends of his line. Wright’s men struck at one of the most thinly held portions of the Union line, and the courage and dash of his attack emboldened General Lee to hit the same place the following day with more men. The day of Pickett’s Charge, Confederate troops were not applying simultaneous pressure to both sides of the Federal lines as they had the day before. Hancock’s men alone repulsed Pickett’s Charge, with help from the Union artillery from both ends of the Federal lines.

The 48^th Georgia Regiment of Wright’s Brigade suffered the heaviest casualties in Wright’s attack on July 2^nd. The 48^th Regiment lost 54 killed, 65 wounded, 38 men were wounded and captured. Company “G” of the 48^th Georgia was known as the Slappey Guards, and hailed from Twiggs County, Georgia. These brave men were one of the elite units to plant their flags at the high water mark of the Confederacy at Gettysburg. A monument to this company and two other Twiggs County Companies can be seen today beside Robinson Fried Chicken in Jeffersonville.

RECENT ENTRIES

FORECLOSURE NEWS

MAY 24, 2013

Chae Yi You and Chur K. Bak purchased a home in Suwanee, Georgia. They financed their home through Excel Home Loans, Inc. The gave a promissory note and a deed to secure debt to Excel to finance the purchase of their home. Excel transferred the note to an unnamed legal entity, and the deed to secure debt was assigned to Chase Mortgage.

The buyers defaulted on their loan, and Chase initiated non-judicial foreclosure proceedings on their real property. Chase sent written notice to the buyers that their property would be sold on the courthouse steps of Gwinnett County on August 2, 2011. Their house was sold at the foreclosure sale on that date, and Chase executed a deed under power of sale conveying the real property to Chase. Chase then quitclaimed the property to Fannie Mae. (Federal National Mortgage Association). Fannie Mae filed an eviction action against the debtors in the Gwinnett County Magistrate Court, and obtained a writ of possession in November of 2011.

The debtors filed a lawsuit in Gwinnett Superior Court for declaratory relief, wrongful foreclosure, and wrongful eviction, naming Fannie Mae and Chase as defendants. The lawsuit was removed to the U.S. District Court in Atlanta. In the course of the federal court litigation, the District Court certified three questions to the Georgia Supreme Court for review and for a definitive ruling on the state of Georgia foreclosure law:

1. Can the holder of a security deed be considered a secured creditor, such that the deed holder can initiate foreclosure proceedings on residential property even if it does not also hold the note or otherwise have any beneficial interest in the debt obligation underlying the deed?

2. Does OCGA § 44-14-162.2 (a) require that the secured creditor be identified in the notice described by that statute?

3. If the answer to [question 2] is “yes,” (a) will substantial compliance with this requirement suffice, and (b) did defendant Chase substantially comply in the notice it provided in this case?

On May 20, 2013, in a lengthy opinion, the Georgia Supreme Court ruled: (1) the holder of a deed to secure debt is authorized to exercise the power of sale in accordance with the terms of the security deed even if it does not hold the note or have any beneficial interest in the note. Question one was answered in the affirmative.

The court also ruled that the second question was answered in the negative. Because the second certified question was answered in the negative, the Supreme Court was not required to answer the third certified question. In answering the second certified question, the court ruled that the only entity that must be listed in the foreclosure notice is the entity with full authority to negotiate, amend, and modify all terms of the mortgage with the debtor. In today’s market, it is now common practice for a lender to assign the deed to another entity, and sell the note to a separate company. As long as the owner or holder of the debt obligation gives notice of the foreclosure to the debtor, the non-judicial foreclosure is legal in Georgia.

What does this recent court ruling mean? It means that in the State of Georgia, there is no legal way to stop a non-judicial foreclosure once proper notice is given to a debtor by the lender, other than through the timely filing of a petition for relief in the U.S. Bankruptcy Court. A new corps of attorneys in Atlanta had been recently organized to attack foreclosure on the grounds that the note holder and the deed holder of the security deed may be two separate companies, thus making the notice of foreclosure defective as a matter of law.

In one ruling, the Supreme Court of Georgia crushed the hopes of those attorneys that had been seeking new ways of stopping foreclosures in this state. The only method of stopping a non-judicial foreclosure in Georgia is through a timely bankruptcy court filing. Debtors must also keep in mind that the bankruptcy courts have case law that says the bankruptcy filing must occur before the foreclosure sale, or the debtor will have no interest left in the property to protect through the bankruptcy filing.

CLASH AT CHANCELLORSVILLE

MAY 1, 2013

By May of 1863, General Ambrose Burnside had been replaced by Major General Joseph Hooker as commander of the Army of the Potomac. Hooker reorganized the Union cavalry into a full division, and gave his men a better supply situation. He further issued corps badges to his soldiers, to give them unit pride. In reviewing his troops in April of 1863, he designated the Army of the Potomac the “finest army on the planet.”

Hooker had a plan for the invasion of central Virginia. He would send Major General John Sedgwick’s corps to Fredericksburg to threaten the Confederate rear. He would then take around 88,000 Union troops across the Rappahannock River, and attack Confederate forces west of Chancellorsville. Hooker also planned to send his cavalry division, under the command of Major General George Stoneman, off in a raid deep into the interior of Virginia, behind the Confederate lines.

Hooker began his attack on May 1, 1863. After federal troops began crossing the river at the U.S. Ford, General Robert E. Lee knew his army was in serious trouble. The First Corps under General James Longstreet had been sent into North Carolina to forage for food. Lee only had around 45,000 men to face Hooker’s invasion. Desperate times called for desperate measures. Lee summoned General Thomas J. “Stonewall” Jackson, and devised a plan which involved a flanking march by 25,000 troops under Jackson around to the west side of the federal lines. Guided by local residents familiar with the terrain, Jackson’s men marched around the unprotected right flank of the Eleventh Corps of the Union Army.

Jackson’s men then attacked that evening east, toward the Chancellor Mansion. They gave the rebel yell, and began driving federal troops before them through the dense forest in their reckless attack. General Howard’s lines began to collapse, and federal troops began streaming to the rear. No effort was made to rally and organize men until they began to concentrate around the Chancellor mansion.

Jackson’s devastating flank attack lost steam after dark, and he rode down a dirt road to scout an enemy position. In the process of scouting the enemy on horseback, General Jackson and his officers were fired on by a North Carolina regiment that thought they were being attacked by Union cavalry. General Jackson was badly wounded, and he was carried to the rear for medical attention. General J.E.B. Stuart was given command of Jackson’s troops, and he led them very well on the next day of the battle. General Joseph Hooker himself was wounded by a piece of exploding shell at the mansion. He began to act as if he were stunned by the concussion of the shell burst, and he lost his nerve. He began to order the retreat of the army, even though the federal army greatly outnumbered the Confederate forces.

General Winfield S. Hancock was ordered to cover the retreat of the U.S. Army of the Potomac across the Rappahannock River. Confederate troops began to close in on the Union forces as they crossed back over to the northern side of the Rappahannock River. Joseph Hooker had been evicted from the Wilderness, the heavily wooded area where the two armies had fought. He was defeated because he had sent his cavalry away, and did not understand the strength and disposition of the Confederate forces. He was also defeated because he had lost his nerve during the climax of the battle, when good decision making could have brought him victory. Instead, the Army of the Potomac tasted another defeat.

Robert E. Lee and his Army of Northern Virginia had won a victory, but the victory came at a very high price. Stonewall Jackson underwent surgery to amputate his injured arm, and later died of pneumonia. The great Stonewall Jackson would fight no more, and his able replacement, J.E.B. Stuart, was sent back to the cavalry after Chancellorsville. Jackson’s loss, and the choice of the general to replace him would later haunt General Robert E. Lee as Confederate troops began the critical fight in July around Gettysburg.

ENOUGH IS ENOUGH

DEC 17, 2012

We have a serious problem in this country with persons who have no regard for the sanctity of human life. The terrible school shootings at Sandy Hook Elementary School in Connecticut remind us once again that America is no longer safe from gun violence. Last July, a gunman murdered several individuals in a movie theater in Aurora, Colorado. Several weeks ago, a gunman opened fire at a shopping mall in Oregon, killing innocent victims there as well.

No spot in the United States is safe from the gun violence of extremists and the mentally disturbed. The profile of most of these shooters shows a lonely person with a deviant personality and a disturbed mind, picking up a weapon or collection of weapons, and taking human life to prove a sick point.

How much is enough? How many innocent children and adults will die in gun related violence before Congress acts? Many of the naysayers say that guns do not kill people, people kill people. If the shooter at Sandy Hook Elementary did not have ready access to an AR-15 rifle with a high capacity magazine, many of his victims that were killed would be alive today. That is an absolute fact. The status quo is no longer acceptable.

I am a life long hunter for over 42 years, and I own several firearms. I do not believe any assault weapon is needed in this country for any type of legitimate hunting. Congress should reimpose a ban on assault weapons and high capacity ammunition clips at once. Other areas scream for reform as well. The movie and video game industry produces horribly violent games that reward players who tally up the highest body counts. These games need to be regulated in the market place. They should be restricted to adult use only, and all violent games should have warning labels for parents in easy to understand language and codes.

States should be allowed to apply for federal grants and other funds that will allow local school districts to take extraordinary measures to protect students. The time for metal detectors in our public schools is now. Americans and their children are no longer safe from random acts of gun violence. The odds on the roulette wheel of death have shifted too far on the side of the killers. The time for action has come. Our leaders can no longer wring their hands, and pretend that they can do nothing about this problem.

THE WAKE OF ANTIETAM

OCT 19, 2012

Antietam is the most fascinating battle of the Civil War. Here in Maryland, Robert E. Lee was the most reckless with his forces. His small army was rendered even smaller when they crossed the Potomac River into Maryland for the invasion. Some Confederate soldiers did not believe they should invade the Union states, and they stayed in Virginia. Other men lacked shoes, and could not keep up the march with bloody feet on the stone turnpikes. The wretched Confederate commissary system failed to feed these troops. Many veterans called this campaign the “Green Corn Campaign,” because soldiers got their rations out of standing cornfields.

Lee’s forces only numbered around 35,255 men when they were all together, but on the march north, he split his army into five sections. Other officers, including Colonel Edward P. Alexander, thought Lee was mad to offer battle to McClellan’s army at Sharpsburg. Alexander indicated in his memoir that the only ford across the Potomac in their rear was rocky, and could not have been used under fire. That would have been the only way out of Sharpsburg if the Federals had overrun their positions.

At the climax of the battle, if General McClellan had ordered in 10,000 or 12,000 men to attack the Confederate center, the Confederate forces would have been cut in two. Green Union regiments from Connecticut saw blue clad soldiers marching north from Harper’s Ferry, and thought they were Union troops. When the soldiers fired upon them, the Connecticut troops ran and broke for the rear. The firing troops were Confederate troops under General A.P. Hill that were wearing captured Union uniforms they had obtained in Harper’s Ferry. This confusion bought General Hill more time to put his troops into position, and it saved the day for the Confederacy at Antietam.

The night of the second day following the battle, General Lee withdrew his shattered army across the Potomac. He left his dead on the field for the federal troops to bury. After burying the dead, General McClellan learned that the Confederates lost 1,546 killed. Over 9,000 Confederate soldiers were wounded in battle, and otherwise put out of action. After the battle, General McClellan’s army was reinforced, and had over 70,000 men fit for duty.

General McClellan should have put his army across the Potomac, and closely pursued the Army of Northern Virginia. McClellan refused to move, even after being repeatedly ordered by the War Department. President Lincoln went to Antietam with a friend from Illinois to interview General McClellan on September 22, 1862. Early the next morning, President Lincoln arose, and observed the thousands of cook fires of the Army of the Potomac in the fields around Sharpsburg. When his friend arose to greet him, Lincoln pointed to the army, and asked him “Do you know what this is?’

The friend answered, “It is the Army of the Potomac.” President Lincoln responded: “So it is called but that is a mistake; it is only McClellan’s bodyguard.”

On November 7, 1862, after refusing to move the army in accordance with orders from the War Department, George B. McClellan was relieved of command of the Army of the Potomac. Major General Ambrose Burnside was appointed in McClellan’s place. Burnside’s next date with the army of General Robert E. Lee would be at a sleepy Virginia village known as Fredericksburg.

THE EMANCIPATION PROCLAMATION

SEP 21, 2012

When the Founding Fathers under the Congress of the Confederation passed the Northwest Ordinance of 1787, the ordinance outlawed slavery in each of the sections that would later become Ohio, Indiana, Michigan, Illinois, Wisconsin, and Minnesota. In post-Revolutionary America, the institution of involuntary servitude divided the sections of the country in an explosive way. President Abraham Lincoln successfully obtained the Republican nomination for the presidency by arguing that our Founding Fathers intended to limit and later outlaw slavery in America.

In the United Kingdom, the Slavery Abolition Act of 1833 abolished slavery throughout the British Empire. Twenty million pounds sterling was appropriated by Parliament to pay slave owners in the West Indies to emancipate the servants on British possessions. The United States was the lone civilized country in the world that continued to legalize the institution of slavery.

After the Civil War began, Congress began a process of emancipation in areas within federal jurisdiction. Slaves in the District of Columbia were freed by Congressional Act on April 16, 1862, and their owners were compensated by the U.S. Government. Congress banned slavery in all U.S. territories on June 19, 1862, and President Lincoln signed this legislation as well.

President Lincoln flirted with the idea of stopping the Civil War by having the U.S. Congress appropriate funds to pay slave owners in the Confederacy. On March 14, 1862, he estimated that there were 432,622 slaves in the country. At $400 per slave, it would cost an estimated $173 million to emancipate them with direct payment to their owners. Lincoln argued that the war cost the U.S. Government $174 million every 87 days, so compensated emancipation would make more sense than fighting the war. This concept was rejected by border state senators and governors, but President Lincoln reminded them that they should pay attention to the changing times.

During the Peninsular Campaign, at Harrison’s Landing, General George McClellan handed President Lincoln a letter which criticized his prosecution of the war. McClellan indicated in the letter that he opposed any taking of property (slaves) from their owners, the southern planters. His letter argued that the war should be confined to military organizations and against political institutions in the south, and not against private planters. President Lincoln pocketed McClellan’s letter, because he was contemplating a measure that would penalize Confederate states from continuing the war, and would free the slaves held in those states. After the battle of Antietam, President Lincoln found his opportunity to announce his change of policy.

On September 22, 1862 a preliminary proclamation was issued by President Abraham Lincoln to all Confederate states that did not return to the Union on or before January 1, 1863. The proclamation was issued under the president’s authority as “Commander-in-Chief of the Army and Navy” under Article II, Section 2 of the United States Constitution. The proclamation did not apply to the border states of Missouri, Kentucky, Maryland, and Delaware. It proclaimed the freedom of the slaves in the ten states remaining in rebellion.

The Emancipation Proclamation would have an economic impact throughout the Confederacy. In areas visited by Union forces, slaves would escape their masters and seek assistance from the Union Army. As news of the Emancipation Proclamation got out into areas of the south, slaves began to escape to areas held by Union forces. One exodus route for escaped slaves would be from northern Alabama and Mississippi into Union held areas of western Tennessee.

In the next few years, over 175,000 former slaves joined the Union Army, supplying the federal government with additional sources of manpower to fight the Civil War. Lincoln’s Emancipation Proclamation also served as a mighty weapon to turn public opinion in Europe away from the Confederacy, and in favor of the Union. The United Kingdom and France, mostly on account of public opinion influenced by Lincoln’s policy, declined to recognize the Confederacy as an independent nation. The war would go on in 1863, but now the U.S. Government had an additional purpose to fight the Civil War. Union forces were now fighting for the freedom of those who were being held in involuntary servitude. This struggle would transform the American South, as well as the rest of the Union, in the next three years.

Steven Harrell has practiced law in Perry, Georgia since 1989.

He is the author of The Unionist, A Novel of the Civil War and The Rifle Captain, A Novel of World War I. Both are available at Amazon.com.

TRYING TIMES

SEP 14, 2012

This past week a Coptic Christian from Southern California, Nakoula Basseley Nakoula, released a film here in the United States entitled Innocence of Muslims. The film portrays the prophet Mohammad as a philanderer and as a child abuser. Muslims around the world have regarded the film as blasphemy, and they are up in arms about the film and the country where it was produced.

On Tuesday night, September 11th, al Qaeda operatives and protestors in Libya attacked, shot up, and burned the U.S. Consulate in Benghazi, killing U.S Ambassador Mark Stevens, another diplomat, and two members of the U.S. State Department Security Affairs team. The operatives and protestors then burned the U.S. consulate in Benghazi to the ground.

Other protestors tore down the U.S. flag, and attacked the U.S. embassy in Cairo, Egypt, and in Yemen. In exercising his right of free speech and free expression, it appears that Nakoula Basseley Nakoula got the U.S. ambassador and three others killed.

Under international law, the host nation for embassies and consulates is charged with the responsibility of keeping the embassies and consulates safe from attackers of every stripe and religion. Embassies cannot adequately function as fortresses in host countries, as they truly must remain open to visitors in order to function properly. President Obama has vowed to strike back at those responsible for these embassy attacks. He has also sent additional U.S. Marines to each of these embassies to strengthen security there.

The problem here is that a few Marines armed with M-60 machine guns and rocket launchers are simply not sufficient a force to keep out thousands of foreign thugs out of an embassy. What the Obama Administration should do is inform these host countries that they cannot keep our embassies and consulates safe there. We should temporarily close these embassies, until such time as they can reopen and conduct their business in relative safety. Embassies are not fortresses in foreign nations, and the civilized world has the right to expect that embassies will not be attacked or overrun. Diplomats and foreign service officers have the right under U.S. and under international law to conduct their business in an atmosphere of relative safety.

If Egypt, Yemen and Libya cannot control their people enough to provide adequate security for our diplomatic personnel, then maybe we need to conduct foreign relations with these countries through nations such as Turkey or Cyprus. President Obama and Presidential candidate Mitt Romney had a decent opportunity to speak out about this foreign policy crisis, and to date, they have failed to develop a real understanding of the scope and depth of the foreign policy problems this movie now presents to U.S. personnel overseas.

A strong message also needs to be sent to those in the world that see fit to harm Americans on account of the release of a movie. If any other Americans are harmed by militants, our President should respond by ordering bombing attacks on the responsible parties by U.S. military aircraft. We really need to examine a number of relationships that we have in the Middle East, and it is high time that our lengthy involvement with some nations there come to a close.

THE BLOODIEST DAY

SEP 14, 2012

In September of 1862, General Robert E. Lee’s Army of Northern Virginia crossed the

Potomac River at White’s Ferry, and marched into western Maryland. The objective of the army was the Pennsylvania Central Railroad bridge and viaduct over the Susquehanna River. As the tattered and dusty veterans of Lee’s army marched through Frederick, Maryland, Lee issued Special Orders 191, which detailed the army’s campaign and plan of march into Pennsylvania.

A careless North Carolina colonel used his copy of Lee’s Orders 191 as a cigar wrapper, and he dropped it as he mounted his horse outside of Frederick. The Special Orders No. 191 were later discovered by an Indiana sergeant, who forwarded them up through the chain of command to his commanding general, General George B. McClellan. McClellan, with uncharacteristic celerity, began to March the Army of the Potomac out the National Road, and toward the gap in South Mountain, Maryland.

The Army of the Potomac was over 87,000 men strong, and now, McClellan believed he had the jump on Bobby Lee, and he intended to end the rebellion in one decisive movement. General Lee was soon warned that his divided command was in danger, and he sent a division under General Daniel Harvey Hill to Turner’s Gap, to hold McClelland’s army in check until the Confederate forces could concentrate. After a day long battle at Turner’s Gap, General Hill and General Longstreet reported to General Lee that the gap could not be held past daylight.

General Lee then ordered the Army of Northen Virginia to concentrate on the south side of Antietam Creek near Sharpsburg, Maryland. As Lee’s engineers laid out the battle lines opposite the creek, the entire Army of the Potomac began to form for battle on the opposite side. The Army of the Potomac on September 16, 1862, numbered 87,164 present for duty.

By noon on September 16 ^th, the Army of Northern Virginia had 26,000 troops available for duty in the battle lines opposite Antietam Creek. A.P. Hill’s Corps was still across the Potomac at Harper’s Ferry, Virginia, and would not be available to help reinforce Lee’s army until the end of the following day. If McClellan would order an advance with crushing force, the rebellion could be ended that day.

What followed was one of the most curious orders of battle executed in the annals of the Civil War. McClellan waited until the following morning to attack Lee’s lines, and the order of battle as he planned it was most advantageous to the Confederate side. McClellan ordered General Joe Hooker to take command of the right wing of his army, and to attack Stonewall Jackson’s Corps with his corps, and the Union corps of Mansfield, Summer, and Franklin. Instead of attacking en masse with the full power of their numbers, the Federal troops attacked piecemeal, in brigades.

That allowed the veteran Confederate troops the time needed to chew the Union units up one at a time. The close packed Federal brigades marched into heavy well directed fire, where they fell in windrows. Many of the Union troops were too tightly packed to maneuver as a unit, and thousands of Union troops died in a short period of time. Because the Union attacks were not well coordinated, the Confederates could shift men from one side of their lines to the other side, allowing the line to reinforce itself at its most critical points during the course of the day.

At the center of the battlefield, General Ambrose Burnside was given the task of crossing Antietam Creek over a large stone bridge with his 14,000 man corps. He was held in check by three Georgia regiments under the command of General Robert Toombs. Burnside’s men charged the bridge time and time again, only to be repulsed. They finally found a ford upstream on the creek, and began to outflank Toomb’s men. As Union troops began attacking the center of Lee’s line, two Union divisions under Burnside’s command began to hit the place where Lee’s troops were the thinnest.

Lee’s troops had shifted from one beleaguered side of the line to the other to stave off disaster that day, and Lee just did not have sufficient troops in his center at that moment to do it again. At the last moment, A.P. Hill’s corps came up from the Potomac River crossings, and they filed into position on the Confederate lines. Their stout defense that afternoon saved the day in the face of attacks by Burnside’s corps.

General McClellan across the way, had one more reserve of Federal troops he could have thrown into the fight, in an effort to break Lee’s lines. Four divisions, totaling 20,000 men were idle that day. Utterly convinced that Lee’s army outnumbered his own, McClelland lost his nerve. He failed to send in the fresh 20,000 Union troops, which would have tipped the tide of the battle. The Battle of Antietam thus ended as a stalemate, and it was by far the bloodiest day of the war.

Nearly 11,000 Confederate soldiers, and 12,000 Union soldiers fell at Antietam, and the dead numbered about 5,000 on each side. If you count the action around South Mountain, the butcher’s bill for the entire Maryland Campaign totaled 13,609 Confederate, and 14,756 Union casualties. Because of McClelland’s temerity at the end of the day, the Army of Northern Virginia slipped back over to the south side of the Potomac River, and the Civil War would continue. The bloodiest day of the war failed to end the war on September 17, 1862, and the bloodiest war in U.S. history would continue on. In the wake of the battle, President Abraham Lincoln declared Antietam a victory, and he announced his Emancipation Proclamation to the world. The South thus had a mighty political weapon to fight in addition to the military might of the United States. The war would wind on.

Steven Harrell has practiced law in Perry, Georgia since 1989.

He is the author of The Unionist, A Novel of the Civil War and The Rifle Captain, A Novel of World War I. You may view his weekly column at www.StevenHarrell.com. You may email him at [email protected].

SUPREME COURT WATCH

JUL 9, 2012

On June 25, 2012, the U.S. Supreme Court handed down its ruling in the case of American Tradition Partnership vs. Bullock. This case involved a Montana state statute which read as follows: a “corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.”

The Court struck down this law, and ruled that it violates the First Amendment of the U.S. Constitution, as per its recent decision in Citizens United vs. FEC, 558 U.S. ____ (2010). In that case, the Court struck down federal regulations that limited the dollar amounts spent by corporations and political action committees on campaigns for federal offices. The Court in Citizens United held that “political speech does not lose First Amendment protection simply because its source is a corporation.”

What the Bullock holding does is apply the rule of law in Citizens United to the states. Corporations are now free to buy elections in both Congressional races, as well as state and local elections. These decisions guarantee that corporations will flood our airwaves with attack ads, and all the TV and radio advertising that money can buy. All it takes to influence Congressional and now state elections is for a corporate officer to write a check and purchase advertising.

When we think of what corporate America has done for Americans over the past twenty five years, we need to note that corporations are generally interested in turning a profit, and in turning a profit immediately. Look at what Fortune 500 companies have done in affecting our national political system, and how elections operate in this country.

Corporations fund and pay over 60,00 lobbyists who hang around the Beltway in Washington D.C. They are constantly influencing our Senators and Congressmen, by taking them on trips, out to expensive dinners, and over to lavish parties and sporting events. They donate substantial sums of money to their reelection campaigns, and they provide jobs to the staffers and the sons and daughters of our elected officials.

Congressmen and Senators routinely engage in insider trading, by receiving tips from corporations that have a vested interest in potential legislation. Congressmen enrich themselves by engaging in the insider trading of stocks and bonds, and by enacting earmarks that enrich themselves and their friends. They spend much of their time raising money for their reelection campaigns, and they must please donors and pressure groups in order to keep these funds rolling in. In the process, they make promises to donors and groups that must be kept. The rights of the common citizen in this process get overlooked, and mostly squashed. The donors, lobbyists, and pressure groups drown John Q. Public out of the legislative process altogether.

We get a Congress that does not legislate, does not govern, and is stymied and accomplishes nothing for the people it is elected to represent. Thanks to these recent U.S. Supreme Court rulings, Americans have one hope and one weapon left to stop the madness with their Congress. Term limits are an idea whose time has come. The people of the various states should form conventions, and draft and adopt an amendment to our Constitution that could read as follows:

“Members of the United States House of Representatives may only serve four consecutive two year terms of office.

Members of the United States Senate may only serve two consecutive six year terms of office.”

REVIEW OF RECENT INJURY SETTLEMENTS

JUN 15, 2012

The following is a summary of recent and significant personal injury settlements from my law practice:

Houston State Court

2000-$90,000 Client was staying in a Perry hotel, when he slipped and fell across the bathtub and the toilet tank in the hotel room after slipping in the hotel room bathtub on Defendant’s slippery and invisible cleaning fluid. Client’s injuries required a double fusion surgery for his lower back. This case settled at mediation.

Bleckley Superior Court

2007-$125,000 Client was duck hunting with a friend when they were separated in a swamp. Ducks flew up between them, and the friend opened fire in client’s direction. Steel shot pellets became embedded in client’s eye. Client required three different eye surgeries, and lost vision as a result. This case settled at mediation after we showed client’s actual loss of vision with visual field tests that were done before and after the shooting.

Bleckley Superior Court

2010-$52,500.00 Client was seated in the front passenger seat of a pickup truck that was parked on a Cochran street. A delivery truck of the Defendant, which was a tractor-trailer truck, turned the corner, and the right rear wheel of the trailer lifted the back of the pickup truck. The pickup was lifted up and slammed down violently. Client required a cervical fusion surgery after the collision. This case settled at mediation after suit was filed.

Peach Superior Court

2006-$50,000 Plaintiff was a youth that was a rear seat passenger in an automobile. An affray occurred at a residence in Crawford County. As client was leaving the residence of a youth there with his friends, the father of one of the youths fired a handgun in the direction of their automobile. A .38 caliber bullet entered the vehicle and struck client in the head, causing him serious and severe injuries. This case settled after suit was filed against the shooter and his homeowner’s carrier was served with the lawsuit. The carrier paid their policy limits to settle the case.

Houston State Court

2011-$25,000 Client was a patron in Defendant’s restaurant when she went to the restroom. In the restroom, she slipped and fell on Defendant’s floor after Defendant’s employee mopped the floor with a greasy mop from the kitchen. No signs were posted in the restroom that would have warned others of a wet or slippery floor. Client sustained a whiplash injury from her fall. This case settled after written discovery was completed.

Washington Superior

Court 2006-$72,500 Clients were lawfully driving down U.S. Highway 80 to Dublin, when their pickup truck was struck from behind by a Ford F-350 fueling vehicle owned by Defendant logging company. The F-350 truck was being driven by an employee of the logging company in the course of his employment. The impact of the collision knocked the clients’ vehicle on its side. Client husband received cuts, bruises, and a whiplash injury in the collision. Client wife broke a vertebrae in her lower spine in this collision. The driver of the fueling truck was under the influence of alcohol, and his blood alcohol level was over .18 grams percent at the time of the collision. This case settled after suit was filed against the defendant logging company.

Bibb Superior Court

2010-$60,000 Client had a medical device inserted into his back to control his lower back pain. Client met the representative of the medical device company in his doctor’s office for the purpose of activating the anti-pain device in his lower back. Another rep had already preset the device when client was in the recovery room after it was implanted. When the second rep powered up the device, it turned on at full power, throwing client into excruciating pain for over 15 minutes. Client sustained a mild heart attack during this period. This case settled after depositions were taken.

Bibb Superior Court

2010-$105,000 Client was a U.S. Postal employee delivering mail on the side of a roadway in Bibb County. Defendant was operating his father’s sport car in excess of the posted speed limit. Defendant ran his vehicle into the rear of another vehicle, which then rear ended Plaintiff’s postal truck. Client received a low back injury which required a spinal fusion surgery. This case settled at mediation after completion of discovery. Eyewitness testimony was especially useful in helping us to establish the speed of the

CLASH AT MECHANICSVILLE

JUN 15, 2012

After the battle of Seven Pines, the wounded Confederate General Joseph E. Johnston was replaced by General Robert E. Lee. Immediately upon the change in command, when asked about the fortitude of their new commanding general, Captain Joseph Ives made these comments about General Lee: “. .[I]if there is one man in either army. . .who is, head and shoulders, far above every other one in either army in audacity that man is General Lee, and you will very soon have lived to see it. He is audacity personified. . .”

General George McClellan was the exact opposite of General Lee in fortitude. He was always overly cautious, never attacking until the time or circumstances were right. The Army of the Potomac had crept up near the town limits of Richmond, and some federal soldiers could hear the clocks of Richmond chime in the distance. The U.S. Fifth Corps under General Fitz John Porter was situated across the Chickahominy River, northeast of Richmond. Four other federal corps were situated south of the Chickahominy, due east of Richmond.

Heavy Spring rains that year proceeded to flood the Chickahominy over its banks, creating a natural obstruction between Fitz John Porter’s corps and the rest of the federal army. General Lee saw an opportunity to attack the federal army in detail, and to launch an attack despite being outnumbered by 100,00 troops to 60,000.

General Lee summoned General Stonewall Jackson and his forces east from the Shenandoah Valley. They arrived in the area with the force of four divisions on June 25, 1862. Lee’s battle plan involved A.P. Hill and D.H. Hill attacking the left side of Porter’s corps with their divisions, and Stonewall Jackson assaulting Porter’s right flank with his four divisions. Under pressure from Jackson on his right, Porter would be forced to withdraw his entire corps.

Jackson’s men were fatigued from their march from the valley, and Jackson was seriously delayed in attacking the federal troops for several hours. A.P. Hill did not wait for Jackson to attack, and he ordered his light division to assault the federal works without orders. His 11,00 men attacked over a heavily wooded front near Beaver Dam Creek. Porter selected an excellent defensive position near the creek, supported by 32 artillery pieces. When Hill’s green troops got to within 200 yards of Porter’s lines, the federals opened up with their artillery. The Confederate dead there were described as “laying like flies in a bowl of sugar.”

While a hot and a murderous battle was raging nearly three miles in his front, Stonewall Jackson and his 20,000 men did nothing but bivouac for the evening. An immediate advance by Jackson and his troops of around three miles would have made the situation for Porter’s Corps untenable, yet Jackson did not move, and an opportunity to crush one federal corps slipped away.

General McClellan did detect the presence of Jackson’s men, and he ordered Porter to advance five miles east into a more defensible position near Gaines Mill, on Powhite Creek. General Lee had lost 1484 men compared to federal losses of 361, but the aggressive display of the Confederate attacks began to make General McClellan lose his nerve. McClellan would remain on the defensive in the Peninsula, as Robert E. Lee ordered more and more aggressive attacks in the seven days to come.

JUDICIAL PROBLEMS

JUN 4, 2012

The Georgia Judicial Qualifications Commission has aggressively moved to resolve attorney and citizen ethics complaints against Superior Court judges over the past 18 months. Here are some of the high profile cases that have resulted in resignations over that past 18 months:

1. Judge John Lee Parrott of the Ocmulgee Judicial Circuit. He resigned on Friday, May 18, 2012, as part of a deal cut with the JQC. The JQC accused him of “allowing the prestige of his office to advance his private interests.” Judge Parrott was appointed to the bench by Governor Joe Frank Harris in 1987.

2. Chief Judge William Lee of the Coweta Judicial Circuit. Judge Lee had been on the bench for 32 years. The JQC accused him of allegedly making improper communications with attorneys and with entering orders in cases without notifying the parties or their attorneys. Judge Lee resigned effective May 1, 2012, as part of a deal worked out with the JQC.

3. Chief Judge Amanda Williams of the Brunswick Judicial Circuit. She resigned effective January 2, 2012. She was first elected to the bench in 1990. She also ran the state’s largest drug court. She was accused by the JQC of : (a) Giving special treatment to relatives of her friends in court; (b) Allowing her personal attorney to represent clients in her court; (c) Behaving in a “tyrannical” manner; (4) Indefinitely jailing defendants in her court. Judge Williams resigned before her trial could begin before the JQC on these charges. Her resignation deal required her to never seek judicial office again.

4. Chief Judge David Barrett of the Enotah Judicial Circuit. During a recent court hearing on a domestic assault case, he pulled his hand gun out and handed it to a female witness on the stand, and told her the following: “You are killing your case. . .You may as well shoot your lawyer.” Judge Barrett resigned effective March 1, 2012, after reaching an agreement with the JQC.

5. Chief Judge Lynn Akeley-Alderman of the Enotah Judicial Circuit. Judge Alderman resigned effective March 30, 2012. The JQC investigated her for contacting another judge about a politically connected Dahlonega resident who had been convicted in her circuit and in Forsyth County on drug trafficking charges.

These recent resignations are indicative of a state wide problem with our judiciary. Superior Court judges are selected as part of a politically charged process that often has little to do with ability, merit, or personal integrity. A so-called Judicial Nominating Commission is appointed by the governor to screen and nominate attorneys for judicial offices around the state.

As you can see from the spate of recent Superior Court resignations, these commissions are not finding the best and the brightest and the most ethical candidates for Superior Court judgeships in our state. Oftentimes, the most politically oriented attorneys get appointed to judicial offices.

A strong case can be made for legislation in this area. The Judicial Nominating Commission should by legislation consist of a panel appointed by members of the Georgia Supreme Court, the Speaker of the House, and the Lieutenant Governor. Applicants for judicial office should be required to furnish two letters containing character references to the Commission, and the nominations from the commission to the governor should only consist of attorneys with outstanding legal ability. Politics should be cooked out of the judicial selection process completely. The governor’s appointment to judicial office should not revolve around the most politically connected candidate, but on the most qualified candidate for any judicial office.

In order to give Superior Court judges more tools to help with their busy case loads, Alternative Dispute Resolution programs should be set up in every judicial circuit. Judges that have business or personal interests that cause them to get distracted from their judicial duties should either retire or resign, period.

Unless the judicial nominating and appointment system is overhauled by the Georgia General Assembly, we will have more and more unpleasant judicial stories to report in the months and years to come.

BLOODY SHILOH

MAR 23, 2012

General Grant’s troops had gathered on a defensive line near Pittsburg Landing, guarded by the artillery of the Army of the Tennessee, and by the gunboats in the Tennessee River. A solid line three miles long extended from this location. The guns of the gunboats USS Lexington and the USS Tyler along with 50 artillery pieces protected the Union troops along the fortified front.

General Lew Wallace (later the author of Ben Hur) arrived via the Snake Creek bridge with an entire division that had been lost the entire first day of the battle. Troops from General Don Carlos Buel’s Army of the Ohio began to ferry across the river from Savannah via the gunboats. By dawn of the second day, 20,000 men of Buel’s army had ferried across the river, and were put in position to attack the Confederate lines.

At dawn on April 7th, Grant had around 45,000 effective troops, compared to around 28,000 men for General Beauregard. Confederate General Nathan Bedford Forrest took it upon himself to scout the Union lines near the bluffs close to the Tennessee River. All evening long, he saw General Buel’s men ferrying over to the south side of the river. He spread the word through the Confederate camps that they would be attacked the following morning. Not one Confederate officer listened to him that night.

General Prentiss, captured when he surrendered at the Hornet’s Nest, occupied a tent of one of Beauregard’s staff officers. He told his captors that the Confederates had their way during the day, but that the tables would be turned on them in the morning once Buel’s troops arrived on the field. At dawn, Grant’s men attacked along a three mile front. The peach orchard was recaptured, and Grant’s men pressed hard toward Shiloh Church.

General Beauregard’s Army of Mississippi was steadily forced back south in the general direction of the Corinth Road. Beauregard realized his army was outnumbered, and he ordered a withdrawal of the entire army south along the muddy Corinth Road. The Union troops had claimed the field following the Battle of Shiloh.

The reports of the casualties from the two day battle of Shiloh shocked commanders and civilians on both sides. General Grant lost 13,047 men, and General Beauregard lost 10,699 Confederate casualties. There were calls for General Grant’s removal from command. When these reports got to President Lincoln, he stated: “I can’t spare this man; he fights.” Grant was temporarily demoted, and command of the Army of the Tennessee was handed to Major General Henry Halleck. General Beauregard also eventually lost command of the Army of Mississippi to General Braxton Bragg.

The officers of both armies were schooled and instructed in the tactics of Napoleon in the handling of their troops. The tactics of the men involved the presentation of massed ranks to the enemy, with no concern for concealment from enemy fire. The technology of the day had superseded the technology of weapons from the time of Napoleon. Rifled percussion muskets were simply more accurate at greater distances than smoothbore weapons, and the casualty count of Shiloh would resemble the casualty count of other large battles through the war until 1865. Up to that time, though, Shiloh was the bloodiest battle of the Civil War. The bloodier battles of the Seven Days, Antietam, Fredericksburg, Stone’s River and Gettysburg were yet to come.

MARCHING TO SHILOH

MAR 16, 2012

On April 5, 1862, around 44,600 Confederate troops under the command of General Albert Sidney Johnston and P.G.T. Beauregard marched north from Corinth, Mississippi into Hardin County, Tennessee. Johnston’s army was divided into four corps, commanded by Major Generals Leonidas Polk, Braxton Bragg, William J. Hardee, and Brigadier General John C. Breckenridge. The Confederate troops were poorly armed with flintlock rifles, shotguns, and antiquated muskets from the Mexican War. Some regiments were armed with more modern Enfield rifles, and most of the soldiers were inexperienced in combat.

The opposing Union forces were encamped near Pittsburg Landing on the Tennessee River, just across the river from Savannah, Tennessee. Major General U.S. Grant had around 49,000 men in the Army of the Tennessee, which consisted of six divisions. Two divisions were commanded by Major Generals John McClernand and Lew Wallace, and four divisions were commanded by Brigadier Generals Stephen Hurlbut, William T. Sherman, Benjamin Prentiss, and W.H.L. Wallace.

Grant’s men were scattered in camps from Owl Creek to the Savannah River Road. There were no cavalry patrols set out to screen the infantry, or to give warning of any Confederate attack. Grant’s infantrymen had not posted strong pickets, and they had not entrenched their positions, even though the entire army was exposed to Confederate attack.

Peach and pear trees were in full bloom on April 6, 1862, when the Confederate attack commenced on the Union lines. Hardee and Polk hit Sherman and McClernand hard on the left, while Bragg and Breckenridge smashed Hurlbut and Prentiss on the Union right. The Confederate attack was supposed to have been made in an effort to prevent Grant from retreating back to Pittsburg Landing. The actual attack was made in a disorganized way, on a front around three miles wide.

The Confederate troops attacked in a heavily wooded area almost in a constant long line, without any depth needed to exploit breakthroughs in the Union lines. The assault was tremendous, and many Union troops were driven back to the area of Pittsburg Landing. Sherman’s troops and McClernand’s troops slowly retreated back to an area around Shiloh Church. Confederate forces there proceeded to roll up Union units one by one, and began to push Union forces back toward Pittsburg Landing.

As negligent as General Sherman had been before the battle, he was invaluable during the battle. He was everywhere on the battlefield, encouraging his troops to stand and fight. He had three horses shot out from under him that day. Sherman’s men gave ground stubbornly. Confederate troops on the advance threw down their antiquated weapons, and picked up Springfield rifles dropped by retreating Union soldiers.

Heavy fighting occurred around an area on a sunken road known as the “Hornet’s Nest,” where Benjamin Prentiss and W.H.L. Wallace and their Union divisions were surrounded on three sides by Confederate troops. Confederate troops brought up 50 artillery pieces, and blasted the Union troops in the “Hornet’s Nest” with close range artillery fire. General Wallace fell, mortally wounded. The Hornet’s Nest finally fell after seven hours of hard fighting, and Benjamin Prentiss and around 2400 surviving Union troops were captured there. Their sacrifice, though, allowed Grant the time he needed to establish a second line of defense near Pittsburgh Landing. The War Department had previously ordered General Don Carlos Buell and his Army of the Ohio to join Grant’s forces at Pittsburg Landing. These men began to cross over from Savannah on steamboats that afternoon, and Union reinforcements continued to ferry over throughout the night.

On this bloody first day of the Battle of Shiloh, Grant had lost at least 7,000 men, and Confederate casualties totaled over 10,000 men in the attack. The most critical loss of all for the Confederacy was General Albert Sidney Johnston, who fell with a mortal wound in his left popliteal artery in an attack at the Peach Orchard. This put General Beauregard in command, and he would have to deal with a reinforced General Grant the following morning. Grant had been reinforced, and he ordered his troops to attack the Confederates the following day.

BATTLE OF IRONCLADS

MAR 6, 2012

On the morning of March 9, 1862, the USS Monitor had taken station next to the USSMinnesota, the steam frigate that had run aground the day before. Captain Buchanan was wounded the previous day in his attempt to take possession of the Congress, so Lieutenant Catesby Roger Jones took command of the CSS Virginia, and began his attack on the USS Minnesota. Upon approaching the Minnesota, Jones noticed a strange craft that “looked like a cheese box on a raft.” He soon realized that this was a commissioned U.S. vessel, and he fired the first shot at the Monitor.

This shot struck the Minnesota, who answered the shot with a broadside of her own. The Virginia did not carry any armor piercing shells. The heavy Dahlgren guns of theMonitor were not charged with as heavy a powder charge as they could have carried, either.

The Virginia attempted on several occasions to ram the Monitor, but the Union ship was more nimble, and faster than her larger opponent. The Monitor had at least five inches of armor, and in many places more than nine inches of armor, so she was more heavily protected than the Virginia. The Monitor drew less water than the Virginia, who needed at least 24 feet of draft to make way. The Monitor could move off into the shallow water of Hampton Roads when her 66 man crew needed a breather in the battle.

After two hours of hard firing, the crews of the aft guns of the Virginia were bleeding out their noses and ears from the percussion of the hits from the federal ship. TheMonitor hauled off into the shallow water to draw up shot and powder into her turret about two hours into the battle. The Virginia, noticing that the Minnesota was unprotected, began to approach her. The Minnesota then fired a broadside into theVirginia that would have blown any wooden ship out of the water, but the rounds bounced off the sides of the Confederate ironclad ship.

The crew of the Virginia attempted to get her close to the Monitor so that she could be boarded, but the Monitor nimbly escaped each attempt of the Virginia to close with her. The Monitor blasted the Virginia time and time again with her heavy guns, cracking armor plate, but failing to penetrate the Virginia’s oak and pine decking. A shot from the Virginia did explode near the pilot house of the Monitor, which temporarily blinded Lieutenant Worden. The Virginia’s smoke stack was hit so many times, that her boilers drew little heat and pressure, and her speed was reduced by half.

The fight ended in a draw after four hours of battle. The Virginia drew off across to the Elizabeth River, and the Monitor had saved the Minnesota from the same fate as her sister ship, the USS Congress. From that day on, the wooden navies of the world were now obsolete, and ironclad ships would be built for use in future wars. The little ironclad invention of John Ericsson had prevented the Virginia from breaking the federal blockade of Hampton Roads, and a naval stalemate resulted from what could have been an outright Confederate victory. The federal blockade on Virginia would continue, and the U.S. Navy was now free to transport troops for the invasion of Virginia.

THE BATTLE OF HAMPTON ROADS

MAR 6, 2012

On March 8, 1862, Commodore Franklin Buchanan took the CSS Virginia on a trip down the Elizabeth River, and out into Hampton Roads. This was meant to be a shake down cruise, but Buchanan saw the blockading ships of the Union Navy anchored near Fortress Monroe in Hampton Roads, and decided to immediately attack them.

Union soldiers at Fort Monroe across the bay saw the Virginia coming at them, and described the ironclad as “a house submerged to the eaves, borne onward by a flood.” The USS Congress and the USS Cumberland cleared for action, and when theVirginia came into range, the Congress fired a broadside at her. Any normal wooden ship would have been blown out of the water, but the iron shot bounced off the sloping sides of the Virginia like tennis balls.

Coastal batteries from Fortress Monroe opened fire on the Virginia, and the shot bounced off her sides harmlessly into the bay. The Virginia raised her iron gun ports, and fired a starboard broadside into the Congress. She then poured on steam, and rammed the Cumberland with her iron ram, punching a horse cart sized hole under the forerigging of the Cumberland. The Virginia broke off the beak of her iron ram into theCumberlandin the process of sinking her. The Cumberland continued firing at theVirginia until she sank, with Old Glory still flying at the mainmast.

The Congress slipped her cable and tried to get away from the ram of the Virginia, but she soon ran aground in shallow water. The Virginia, because of her weight, drew a full 22 feet of water, and could not pursue the Congress more closely. She ran out her guns from 200 yards away, and opened fire, deliberately raking the Congress from stem to stern. The scuppers of the Congress soon ran red with blood, and the captain of the ship was killed. A lieutenant aboard the Congress struck her colors, and Buchanan had the Virginia stand by to take prisoners.

Union army officers were not familiar with the customs of the naval service, and they began firing their coastal batteries at the Virginia even after the Congress had surrendered. Two Confederate officers were killed by the fire, and Buchanan was wounded in the leg. The Virginia then steamed back, and began firing hot shot into the Congress. The Congress caught fire and blew up, killing many of her crew, including a lieutenant on board who was Franklin Buchanan’s brother.

Other Union ships slipped their cables and attempted to fight the ironclad, but soon ran aground in the shallow waters. The USS St. Lawrence, the USS Roanoke, and the USS Minnesota all ran aground, and appeared to be likely victims for the Confederate ironclad. However, the Virginia was ponderously slow on account of her weak engines, and she drew 22 feet of water. She could not get into effective range to engage the other Union ships. Buchanan was content to go back up the Elizabeth River, and to survey his damage, and return the next morning to finish off the three Union warships.

The Confederates had lost 21 men killed and wounded. The Virginia was shot over 100 times by enemy fire, but the ship had no damage inside her iron shell. All of her boat davits and railings were shot away, and her smokestack was holed several times. She had lost her iron beak when she rammed the Cumberland, and two gun muzzles had been shot away.

The Union had lost the Cumberland and the Congress, and as the Congress burned, its fire lit the entire bay. Confederates across the bay in Norfolk were cheering that a way had been found to lift the blockade of Hampton Roads. The Virginia would do that by sinking every wooden vessel in range of her guns.

President Lincoln received the news from Fortress Monroe via telegram, and he met with his cabinet at 6:00 a.m. the following morning. A panic had spread in Washington City that the Virginia would destroy every Union warship in Chesapeake Bay. Secretary of the Navy Gideon Wells reminded the president that he had sent his own new ironclad down to Hampton Roads two days before. The cabinet adjourned to go to church that Sunday morning and to pray for a miracle. That same morning, the USSMonitor took her station near the Minnesota, and waited for a fateful battle with the ironclad CSS Virginia.

AFGHANISTAN AND PAKISTAN-TIME TO GET OUT

SEP 2, 2011

We have had military forces in Afghanistan since 2001, when al Qaeda bases were found there after the 911 attacks here in the U.S. We overthrew the Taliban government in Afghanistan in 2001, and U.S. forces have been fighting al Qaeda and Taliban forces inside various sectors of the country ever since. Most of the U.S. activity in Afghanistan has been directed at building and defending air bases in the southern region of the country. From these air bases, the Central Intelligence Agency (CIA) has flown drone strike missions into Pakistan using Predator drone aircraft. These attacks have been largely successful, as many officers and important Taliban and al Qaeda leaders have been killed in Pakistan and Afghanistan with attacks from U.S. controlled drone aircraft.

Shortly after the Obama Administration took office, a so called surge of troops was sent to Afghanistan, in an effort to pacify the country by covering the country with over 100,000 U.S. troops. A concerted effort was made to win the hearts and minds of the Afghan people by having U.S. forces build schools, hospitals, and other infrastructure there.

However, the government of Afghanistan under President Karzai has been notoriously corrupt. Much of the U.S. aid monies in the country have been embezzled and wasted. President Karzai’s own brother was one of the largest drug dealers and drug distributors in Afghanistan, until he was murdered by the Taliban this year. The level of corruption in the country is amazing, and the corruption is so bad there that any decent amount of funds spent on aid to the people probably never trickles down to the regions where the funds were earmarked.

I understand the reason or reasons for continuing to occupy Afghanistan while Osama bin Laden was at large in Pakistan. The Navy Seal Team Six raid into Pakistan earlier this year that killed Osama bin Laden originated from an airbase in southern Afghanistan. Now that bin Laden and much of his al Qaeda leadership have been killed, it just makes no sense to continue to spend U.S. tax dollars on a military occupation of Afghanistan. Afghanistan has been occupied by foreign powers off and on since 1839. We are not going to make card carrying democrats out of the Afghan people. We are not going to win their hearts and minds, either. What we are doing, and what we have been doing is spending millions upon millions of U.S. taxpayer dollars while trying to engage in nation building in this God-forsaken country. Nation building did not work in Vietnam, and it will not work either in Afghanistan. It is high time we got out.

Speaking of nation building, the U.S. State Department has pushed a project which would have the U.S. build and pay for a hydroelectric power dam in Pakistan. Keep in mind that Osama bin Laden was found hiding in Pakistan earlier this year, after that country was supposed to be one of our friendly partners in the war on terror. I say that with “friends” such as Pakistan, we have little need of enemies. Pakistan contains many people that are friendly to militant Muslims and to al Qaeda operatives. Many of the 9/11/2001 bombers were Pakistani citizens. It was clear at the time of the raid against Osama bin Laden that he was hiding in the bosom of friendly Pakistani nationals, as these people hate the U.S. and western culture just as badly as al Qaeda. The American people have no business funding anything in this fickle, terrorist filled nation of Pakistan. We should look to our founding father, George Washington for advice in matters such as these. He advised our Congress to avoid foreign entanglements in the affairs of other nations. We are having a tough time with our own infrastructure. We need to get out of the Middle East in general, and focus our efforts on developing a workable hydrogen fuel cell technology here in the U.S. The Middle East has sucked in our young people in unnecessary wars for far too long. It is time to declare victory in Afghanistan and bring the troops home. It costs millions upon millions of U.S. dollars per day to house, victual, supply, and move the large numbers of U.S. forces in Afghanistan. There are at present no real military or tactical reasons to continue to maintain high numbers of U.S. troops in Afghanistan at this time. The military budget should be cut, and it cannot be cut if we continue to maintain a very large military presence in that part of the world.

FIRST BULL RUN

JUL 8, 2011

The Confederate Congress was scheduled to meet around the 25 ^th of July, 1861, in Richmond. Pressure mounted on the commander of the Union Army in Virginia, General Irvin McDowell, to launch an attack on Confederate forces in the area. Two small armies defended northern Virginia at the time. General P.T. Beauregard had command of 20,000 Confederate troops near Manassas. General Joe Johnston had command of 12,000 Confederate troops near Winchester, Virginia.

On July 20, 1861, General McDowell’s army of 30,000 men marched to Centreville, Virginia. Alarmed that superior Union forces were gathering at his front, General Beauregard sent for help from General Johnston. General Johnston loaded his men onto the cars of the Manassas Gap Railroad, and his men arrived on the night of the 20 ^th to reinforce Beauregard’s men.

On the morning of the 21 ^st, 20,000 Union soldiers began a flank attack on the Confederate left flank. Captain Edward P. Alexander, from his wig-wag station, sent Colonel Nathan “Shanks” Evans a wig wag message that his left flank was about to be turned. This was the first use of the new wig-wag system in combat. Steady attacks by the troops of Colonel William T. Sherman and Major George Sykes forced the Confederate troops back, where they gathered in defense of Henry House Hill.

Confederate General Bernard Bee saw the Virginia brigade of Colonel Thomas J. Jackson standing at the crest of Henry House Hill. He then uttered the words that would immortalize Jackson. “There is Jackson standing like a stone wall. . .Rally behind the Virginians.” Bee soon received a mortal wound, but his brigade and other Confederate troops rallied around T.J. Jackson’s brigade. Jackson’s men soon fixed their bayonets and charged down the slope of the hill, yelling like furies.

As the Union troops were pushed off Henry House Hill, they began a disorganized retreat that turned into a panic. Guns and wagons were abandoned in the Federal flight back to Washington. Members of the U.S. Congress and their wives and ladies had traveled with the army to view a Union victory. They were also caught up in the disorganized retreat, and the confusion and panic of the Union soldiers that were fleeing north.

The only unit left on the field that retreated in any order was the regular army brigade of Colonel William T. Sherman. The day was lost for the Union. Union casualties totaled 460 killed, 1124 wounded, and 1312 missing or captured. The Confederates lost 387 killed, 1582 wounded, and 13 missing. This Confederate victory guaranteed a protracted war and a bloody struggle with larger numbers of troops over battlefields around the South.

WHY THEY FOUGHT

APR 29, 2011

Much has been said in newspaper editorials of late as to why the different sides and the soldiers fought in the Civil War. A much more accurate term other than Civil War is War Between the States, as individual states raised regiments to fight one another, and even different regions located inside states sent troops to fight one another.

A review of the political papers and speeches of the politicians of the time will tell you the reasons different states recruited and sent troops to fight in the conflict. After Fort Sumter was shelled, an outpouring of patriotism set up in the Union states, with President Lincoln’s call for volunteer soldiers. Governors of many Union states sent volunteer regiments to Washington. They did so by giving a colonel’s commission to prominent community leaders, experienced soldiers, or politicians in their state. The newly commissioned colonels would then raise a volunteer regiment for service in the U.S. Army, and these regiments would receive clothing and equipment, and then would be shipped by train down to Washington, D.C.

The reasons for their enlistment at that time was a fear that if the rebellion was not controlled, that the Union would break up into many different republics. Preservation of the Union was the primary reason that men in the North enlisted to fight the war. Soldiers from states in the old Northwest Territory held somewhat different views. They fought for the main reason of opening up the Mississippi River to commerce. They did not want New Orleans, Louisiana to remain a foreign port city. For this reason, they fought in the war to open up the Mississippi River to Union navigation and commerce.

Troops from the Northeastern U.S. primarily fell under the influence of abolitionist groups, and they fought mainly to free the slaves. Their prime motivation in serving in the Union Army was to free the slaves in the South.

Down South, most of the regiments on the Confederate muster books the first two years of the war were volunteer regiments. The men at that point in the war volunteered because of their patriotism at the time the Southern states seceded. Demands on army manpower soon required the Confederacy to enact a conscription law. In 1862, the Confederacy began conscription, and conscription continued in the South throughout the duration of the war. If you were male and able bodied, and if you were not a local sheriff, or were not in the local militia, you were required to serve in the Confederate army, or you would be thrown into prison.

One of the most significant reasons that southern men fought in the army or the militia was because their state had been invaded by Union forces. After invasions were made in various states, militia units were called up, and Confederate forces were deployed to meet the invasion threats posed. Even those men that enlisted in local militia units down South to avoid military service in the Confederacy often ended up on the front lines, fighting Union troops in Georgia and in Virginia. A significant reason for Confederate troops and militia to fight was because the Union Army had invaded Confederate held territory. McClelland’s invasion of the Peninsula in 1862 prompted the enactment of the Confederate conscription law. Many soldiers that would probably have stayed out of conflict altogether ended up fighting, because the Union Army had invaded their home state. This was especially true in Tennessee and in Georgia during Sherman’s Atlanta Campaign.

Different sections of states even had different allegiances during the war. In upstate Alabama, where corn was raised instead of cotton, there was a strong pro-union element. Winston County even went so far as to secede from the state of Alabama, and to call itself “the Free State of Winston.” Tennessee sent over 55 regiments to fight in the Union Army, despite the fact that it was a Confederate state. West Virginia broke away from Virginia in 1861, and later was admitted into the Union as West Virginia in 1863.

Eastern Maryland raised several regiments to fight in the Confederate service. Western Maryland remained loyal to the Union. Maryland did not secede from the Union because President Lincoln sent troops into Annapolis to prevent the Maryland Assembly from voting in an ordinance of secession. Kentucky remained loyal to the Union, but furnished many regiments that fought on both sides during the war.

In 1863, the Union enacted a conscription law, because of the horrific losses suffered by the Army of the Potomac on the battlefield. A male subject to the draft in 1863 could avoid the draft by paying the sum of $300.00, or by recruiting a substitute to take his place. This lead to the draft riots in New York City in July of 1863, and the complaint that it was a rich man’s war, but a poor man’s fight.

Steven Harrell has practiced law in Perry, Georgia since 1989.

He is the author of The Unionist, A Novel of the Civil War and The Rifle Captain, A Novel of World War I. Both are available at Amazon.com, and Barnes&Noble.com. You may email him at [email protected].

AGAINST LONG ODDS

APR 15, 2011

In 1861, the Confederacy faced an uphill fight against the forces of the Union. The population of the seceding states was around eight million, with three million of those persons being slaves at the time. The population of the Union states was around 20 million. The Confederacy had no standing army, no navy, and only two mills that could mill and process iron and steel. Machine shops, coal mines and factories for the production of war resources were mostly located in the Union states. Rhett Butler’s comments about the South being unequipped and ill prepared for war in 1861 in the movie Gone With The Wind were very accurate.

The South was traversed by flat coastal plains and broad rivers that could be navigated, and would allow invasion by the navy and marine forces of the Union. Southern forts and installations were not fully prepared to defend against Union attack. Masonry constructed coastal forts that were formidable during the age of smoothbore cannon, would be proven to be obsolete against more modern rifled weapons.

There were few skilled mechanics and inventors in the South that could build and maintain factories for the production of guns and other war materials. There were few facilities in the South that could mill cotton into cloth for the production of uniforms, sails, or tents. The South had no uniform system of currency. There was no unified banking system to regulate currency in the South.

There were weapons available from armories that belonged to the U.S. that were seized at the time various states seceded, such as at Harper’s Ferry and Fayetteville, North Carolina. However, there was no ready supply of raw materials needed to mass produce firearms in the South at the time the war broke out. Many firearms available to some Confederate regiments at the outset of the war were old style smoothbore muskets that had limited range on a modern battlefield. Other firearms available were of the older flintlock type, that had to be modified later for use by the troops.

The Confederacy depended on volunteer soldiers from state regiments early on in the war. Conscription was not enacted into law until the spring of 1862. After casualties began to mount up into the war, a lack of manpower haunted Confederate authorities up until the conclusion of the war. Many letters written to Jefferson Davis praying for reinforcements during the war often went answered with the words “no other resource remains.”

The Confederacy had no navy to speak of. The Union acquired and built a vast array of freshwater and seagoing vessels to enforce a blockade of southern ports, and to seal off southern rivers. Many areas were effectively sealed off from the outside world after the blockade became more effective in 1863. The Confederacy was forced to rely on blockade runners to get weapons, uniforms, and medicines into the country.

Most of the miles of completed railroad track were laid in the Union states. The railroads in the Confederacy were poorly constructed, and were not well connected with one another. Some railroad lines in the South were even laid with different gauges of track, which prohibited trains from running off one line and onto another. The Union repeatedly took advantage of its far superior transportation system in its movement of troops during the war. The movement of troops during the siege of Chattanooga in 1863 was at that time the largest and fastest movement of troops by railroads in history.

Artillery in the Confederate states was vastly inferior to the artillery deployed by the Union armies during the war. Confederate guns were often imported from England, or captured from Union forces. Confederate ordinance was vastly inferior to Union shells. The quality of gunpowder in the charges was poor. Confederate shells often misfired, exploded prematurely, or spun over and did not strike its intended targets.

Confederate supply services were abominable. Confederate troops were not supplied with anything close to the basic amount of daily rations that would prevent soldiers from starving. They were also poorly supplied with equipment, uniforms, and most important of all, shoes. Confederate soldiers were required to march, campaign, and fight without being properly fed or properly supplied with clothing in all types of weather conditions. In contrast, the Union armies were the best fed and best equipped armies in the world at that time. The commissary command structure in the Confederacy was criminal at best, as the soldiers were underfed, ill clothed, and ill cared for, all during the war.

Union and Confederate forces occupied much of the same areas of Northern Virginia for prolonged periods during the Civil War. These occupations caused a severe shortage of food, supplies, and forage for the draft animals that pulled Confederate supply wagons and artillery. The Confederate invasions of the North in 1862 and in 1863 were mostly because Virginia was being scraped bare of forage for the animals, and food for the soldiers, and shoes for the Confederate soldiers. The battle of Gettysburg itself started when Harry Heth’s Confederate troops entered the town looking for shoes.

Yet in spite of all the inadequate supplies and hardships, the troops of the Confederacy managed to astonish the world by thwarting repeated Union invasions in Virginia, Mississippi, Louisiana, and Tennessee for several years. The Army of the Potomac failed in seven invasion attempts to capture Richmond or to defeat the Army of Northern Virginia. The South could win the war by resisting invasion from the North. It also had the opportunity to win the war by simply holding its army together, and by outlasting the will of the U.S. Government to continue the conflict more than four years. The war was the bloodiest conflict in U.S. history. It was bloody because of disease and because of the primitive nature of battlefield triage at the time. It was also bloody because the commanders in the field did not fully understand the effect of modern rifled weapons. The war was also bloody because great generals such Robert E. Lee became determined early on in the war to conquer a peace through a decisive victory on the battlefield. It was against these long odds that the Confederacy began its struggle with the Union in 1861. Yet in spite of these odds, the outcome of the Civil War was a near run thing. When the South failed to conquer a peace on the battlefield, the Confederacy made the war last long enough to make significant numbers of citizens in the North demand a peace, and make efforts to put an end to the struggle.

ADR WORKS

MAR 22, 2011

In these days of state budget cuts, the court systems around the state have put civil cases on the back burner to accommodate the criminal dockets. That means additional delays in civil cases getting put on trial calendars, and getting reached for trial. For plaintiffs with legitimate civil suits, that means that justice delayed is also justice denied. In the early 1990s, a new concept in civil litigation took root in Georgia. Alternative Dispute Resolution (ADR) was mandated and implemented in court systems around the state.

ADR allows civil court cases to be resolved without trials in the courts or with juries. Instead, the case resolved by ADR can be settled either through mediation, or through arbitration. I will describe both processes to you, as I have mediated hundreds of cases, and I have tried cases before arbitrators as well. Arbitration is similar to a non-jury trial in the court system, or a hearing before an administrative law judge. The parties or their counsel select an arbitrator to hear evidence in the case, and to make a written arbitration award after the evidence is heard. The rules of evidence normally apply in arbitration proceedings, and witnesses are called, and evidence is presented in a way similar to a court hearing.

After the arbitrator hears the evidence, an award is entered that could be dispositive of the case, and completely resolves the parties’ dispute. This process is known as binding arbitration. Once a binding arbitration award is filed with the clerk of the court in this state, it becomes as binding as a civil judgment.

Mediation is a somewhat different ADR process. The parties select a mediator, who then schedules a mediation. The parties appear with their counsel before the mediator, and the attorneys outline their client’s position in a way similar to an opening statement in a civil trial or hearing. The parties then break off into separate rooms for a caucus session, and the mediator meets with the parties separately to solicit settlement offers from each side. As the plaintiff makes a settlement offer, the defendant then makes a counter offer, until the parties reach a settlement, or reach an impasse. The process actually becomes similar to old fashioned horse trading during the mediation, as numbers get swapped back and forth in the form of offers and counteroffers to settle, until a settlement is reached. You must remember that no matter what type of emotional dispute the parties have in a case, most cases can be resolved through the payment of a sum of money. Once a figure is agreed upon, the parties then reach a settlement of the plaintiff’s claim. The settlement, if achieved, is nothing less than a compromise. The plaintiff is going down from his earlier settlement demand, and the defendant is paying more than he or she wanted to pay the plaintiff originally to settle the case.

Interesting enough, a fair settlement after mediation therefore becomes the product of a compromise, but it also is the product of offers that were made and generated as part of a fair and systematic process. If the parties reach an impasse, the mediator terminates the mediation, and reports that fact to the court, and the case is normally tried in the traditional later on.

If the parties reach a settlement of the case after the mediation, the mediator drafts a written settlement agreement, and the parties sign it. The attorneys then prepare a formal agreement for the parties to sign later that is filed with the court, but the case is actually settled and resolved at the mediation.

I have participated as an attorney in hundreds of mediations, and over ninety five percent of the cases that I have mediated have settled. I have participated in this process for the past twenty years, and I believe it truly works. It is an excellent way to conclude a civil case in a cost effective manner. There are several attorneys in the Middle Georgia area that work as skilled and trained mediators. If you have a civil case that you want to file and promptly get resolved, you should give mediation a chance. Many court systems in Georgia order mediation within so many days of the lawsuit being filed, so mediation is now a mandatory part of our legal system. In cases involving more than just the payment of a sum of money, mediation offers a means for the parties to fashion a settlement that is tailored to fit the parties’ needs. Your settlement revolves around your demands, which are fashioned to fit your particular situation. If the parties reach a settlement through a fair negotiation and bargaining process, that settlement is easier to implement than a jury verdict that may dissatisfy both parties in a case.

In short, ADR is a great and cost effective way to resolve a case without the time consuming and expensive route of a civil trial by jury.

Steven Harrell has practiced law in Perry, Georgia since 1989.

He is the author of The Unionist, A Novel of the Civil War and The Rifle Captain, A Novel of World War I. You may view his weekly column at stevenharrell.com. You may email him at [email protected].

EMPLOYMENT TERRITORY AGREEMENTS

MAR 4, 2011

Let’s say you work for a medical supply company, selling specialty medical supplies to certain physicians in a Middle Georgia territory. You have a written employment contract. The contract limits or prevents you from soliciting business from the company’s customers should your employment terminate there.

Suppose the employer decides to terminate you after you have built up a customer base, and you decide to go into business for yourself, and form an independent company, and work the same customer accounts for the same customers you were working for with the old company. Can you do this? What happens if the old employer that has just terminated you files suit against you to seek an injunction to stop you from soliciting their old accounts? Who wins? Well, it depends.

The first issue to be addressed is whether such agreements are enforceable if the employer fires the employee, as opposed to the employee resigning his employment. Because the operative word here is “terminate,” it does not matter that the employee has been fired, laid off, or resigns. These contracts apply to all situations once the employee separates employment from the employer.

Georgia courts have traditionally applied close scrutiny to employment contracts containing restrictive covenants, and have upheld them only when the covenant is strictly limited in time, territorial effect, and activities prohibited. Beckman vs. Cox Broadcasting Corp., 250 Ga. 127 (1982).

Traditionally, Georgia courts divide restrictive covenants into two categories for purposes of review: covenants that are part of employment contracts, and covenants that are part of the contracts for the sale of a business. Employment contracts receive strict scrutiny by the courts, and are not blue penciled. That is, if a court is called to review the validity of the restrictive covenants in an employment agreement, the court will either uphold the entire contract, or the court will strike it down totally.

In order to have the restrictive covenant upheld in court later, the restricted activity must be reasonably related to the business interests the employer seeks to protect. Moore v. Preferred Research, 191 Ga. App. 26 (1989). Upon terminating employment, an employee has the right to take with him all the knowledge he obtained from the former employer so long as no property of the employer is taken. Under Georgia law, customers are not trade secrets. Textile Rubber & Co. v. Shook, 243 Ga. 587 (1979).

In order for the restrictive covenant to be enforceable against the employee, the contract must be drawn in such a way as to allow the employee to determine with some degree of certainty the extent of his prohibition at the time he executes the employment contract. Britt vs. Davis, 239 Ga. 747 (1977). In our example, if the employee was selling medical supplies in a seven county area in Georgia, the restrictive covenant, to be enforceable, should prohibit the employee from selling medical supplies for a competing company for a reasonable period of time in the same seven county area, after the employment terminates.

If the employment restrictions are found to be overbroad and unreasonable, they will not be enforced, as their enforcement by the courts would be contrary to the Georgia Constitution. McNease v. National Motor Club, 238 Ga. 53 (1976).

Another issue that frequently is raised in these types of contracts is a choice of law issue. Many contracts purport to state that they will be governed by the law of a foreign state. Because this type of contract, containing covenants against competition and disclosure, does affect the interests of this state in the flow of information needed to support business competition, the validity of such agreements is determined by the public policy of this state. Wolff v. Protégé Systems, Inc., 234 Ga. App. 251 (1998). Georgia courts will consistently apply Georgia law to these types of agreements, and the rules that allow these agreements to be enforced or rejected is the common of law of the State of Georgia.

It does not matter if the contract states it will apply the law of a foreign state. If the contract is to be enforced against a former employee that worked a Georgia territory, the Georgia rules of law shall be applied.

So to summarize from our example, the territorial agreement must prohibit a stated activity, and must conform its prohibition to a specific area for a reasonable period of time. If the agreement as drawn were to state that the employee would be barred from selling that company’s type of medical supplies in a seven county area of Middle Georgia for two years after separation of employment, the contract would probably be enforced against the former employee. If the agreement does not prohibit a specific activity over a stated area for a reasonable period of time, it will not be enforced against the former employee. Employees that work these types of jobs with written employment contracts should have these contracts reviewed by an attorney before they leave their jobs and decide to compete against their former employers.

It would be most unfortunate to leave a work situation, and to invest in a new business, only to get hauled into court and slapped with an injunction by a former employer.

Steven Harrell has practiced law in Perry, Georgia since 1989.

He is the author of The Unionist, A Novel of the Civil War and The Rifle Captain, A Novel of World War I. Both are available at Amazon.com, and Barnes&Noble.com. You may email him at [email protected].

LINCOLN AT COOPER UNION

JAN 5, 2011

As we approach the 150 ^th anniversary of the American Civil War, I will cover topics dealing with that conflict, and the explosive political issues that lead to the war. In October of 1859, Abraham Lincoln accepted an invitation to speak at Henry Ward Beecher’s church in Brooklyn, New York. He chose to speak on a question of great public importance, and he chose this speech as a method of outlining the national platform for the Republican Party in the upcoming Presidential Election of 1860. The speech was later sponsored by the Young Men’s Republican Union, and it was moved to the Cooper Institute. The board of the Cooper Institute included many prominent citizens of New York, including William Cullen Bryant. The prevailing and explosive national issue of the day was whether the Congress of the United States possessed the power to restrict or to prohibit the spread of slavery into new territories.

Lincoln carefully researched the background material for this speech, and he delivered the speech in the same manner as a legal brief. Abraham Lincoln was self taught. He supported himself in his young adulthood by keeping a store, splitting rails, and working as a day laborer. When he acquired the literary knowledge needed as a young man, he read law in a law office in Springfield, Illinois, and became a practicing attorney there. He rode the circuits of Illinois for years, and later acquired an impressive array of clients that included some of the largest banks and railroads of his day.

After weeks of careful legal research, this home grown product of the American Dream made his finest legal argument in the speech that he gave at the Cooper Institute on February 27, 1860. In the speech, he directly addresses the prevailing question concerning the spread of slavery into U.S. territories. Lincoln cuts to the heart of the issue at the beginning: “What is the form of government under which we live?

The answer must be: ‘The Constitution of the United States’ That Constitution consists of the original, framed in 1787, and under which the present government first went into operation, and twelve subsequently framed amendments, the first ten of which were framed in 1789.

Who were our fathers that framed the Constitution? I suppose the ‘thirty-nine’ who signed the original instrument may be fairly called our fathers who framed that part of the present Government.”

Lincoln then brilliantly refers to the Northwest Ordinance of 1787, which governed the settlement of the first U.S. territory, the Northwest Territory, out of which Illinois was later made a state. He later refers to a bill which was reported out of the Congress in 1789 which passed enabling legislation that enforced the Northwest Ordinance of 1787. Part of this legislation prohibited the institution of slavery in the Northwest Territory. “By 1789, . . .an act was passed to enforce the Ordinance of ’87, including the prohibition of slavery in the Northwestern Territory. . . It went through all its stages without a word of opposition, and finally passed both branches without yeas and nays, which is equivalent to a unanimous passage. . . This shows that, in their understanding, no dividing line dividing local from federal authority, nor anything in the Constitution, properly forbade Congress to prohibit slavery in the federal territory; else both their fidelity to correct principle, and their oath to support the Constitution, would have constrained them to oppose the prohibition.”

Lincoln pointed out that in 1789, of the Congress that passed the Northwest Ordinance, there were 16 sitting members that were part of the original 39 Founding Fathers of 1787. Their unanimous vote to prohibit slavery in the Northwest Territory demonstrated that Congress did have the power to exclude slavery in U.S. territories. Lincoln later refers to the territories that Congress obtained from Georgia and North Carolina. In these territories, Congress prohibited the importation of slaves from outside areas. Lincoln also mentions the Territory of Louisiana that was acquired by the Federal Government in 1803. In 1804, when Congress made that area a territory, it restricted the importation of slaves into the area from foreign powers, and from other points within the U.S.

When once again addressing the issue of whether Congress could prohibit the spread of slavery into the territories, Lincoln answers that question in the affirmative: “And then it is to be remembered that ‘our fathers, who framed the Government under which we live’ – the men who made the Constitution-decided this question in our favor, long ago-decided it without division among themselves, when making the decision; without division among themselves about the meaning of it after it was made, and so far as any evidence is left, without basing it upon any mistaken statement of facts.”

Lincoln then ends his impressive speech with forceful words that greatly impressed his audience: “Neither let us be slandered from our duty by false accusations against us, nor frightened from it by menaces of destruction to the Government nor of dungeons to ourselves. LET US HAVE FAITH THAT RIGHT MAKES MIGHT, AND IN THAT FAITH, LET US TO THE END, DARE TO DO OUR DUTY AS WE UNDERSTAND IT.”

A number of influential Republicans attended the Cooper Union speech in New York in February of 1860. They were greatly impressed by the well researched and forceful legal arguments Abraham Lincoln made there. William Seward at that time was the overwhelming favorite to win the Republican nomination for the Presidency of the United States. After the Cooper Union speech, Lincoln won many of Seward’s supporters over. Later that summer, in Chicago, in Lincoln’s home state of Illinois, many of the Republican delegates and their associates that were impressed by the Cooper Union Address would vote to nominate him as the Republican nominee for President of the United States.

Steven Harrell has practiced law in Perry, Georgia since 1989.

He is the author of The Unionist, A Novel of the Civil War and The Rifle Captain, A Novel of World War I. Both are available at Amazon.com, and Barnes&Noble.com. You may email him at [email protected].

CUTTING THE DEFENSE BUDGET

NOV 19, 2010

When we talk about the budget cuts that need to be made to help Congress balance the federal budget, the Department of Defense has many expensive programs that could and should go on the chopping block. You must remember that because of acquisition and procurement costs of weapons systems, the Department of Defense budget is set and mapped out years in advance. This month, the National Commission on Fiscal Responsibility and Reform released a multipage report which will radically cut many items from the present defense budget. Because many of their recommendations are wise and sensible, I will include them here:

(1) Reduce military personnel stationed at foreign bases in Europe and Asia by one third. This sensible move would save $8.5 billion per year, commencing in FY 2015.

(2) Replace military personnel performing commercial activities with civilians. This includes installation support functions such as trash collection, fire prevention, supply and transportation, and communications services. This would save $5.4 billion per year in FY 2015.

(3) Reduce spending on research and development by 10%. This would save $7 billion per year by FY 2015.

(4) Reduce spending on facilities maintenance. This would save around $1.4 billion per year by FY 2015.

(5) Consolidate the DOD’s retail and commissary activities with the various services worldwide. This would save around $1.7 billion per year by FY 2015.

(6) Cancel procurement of the F-35B Joint Strike Fighter which was planned for the US Marine Corps; cut the planned orders in half for the F-35A and the F-35C ordered for the USAF and the US Navy. The F-35 Lightning II is the most advanced fighter plane in the world. It is also the most expensive to develop and produce. The U.S. plans to purchase 2443 aircraft for $32.3 billion. This makes this program the most expensive defense program ever. To date, Lockheed Martin has built 13 test aircraft, and 15 aircraft are now under order, at a cost of $96 million per unit.

On March 11, 2010, the General Accounting Office (GAO) projected the overall cost of one F-35A to be around $112 million per aircraft. In today’s budgetary environment, that cost is unacceptable. The Commission recommends canceling procurement of the F-35B aircraft altogether. This was a fighter that was planned for the US Marine Corps. That would save $3.9 billion in FY 2015, and $17.6 billion from FY 2012-FY 2015. It also recommends halving the order of 369 F-35A aircraft planned for the US Air Force, and halving the planned order of 311 F-35C aircraft planned for the US Navy. The Commission further recommends that half of the monies used to acquire the expensive F-35 aircraft be spent to acquire other aircraft instead. In lieu of 185 F-35A models, the Air Force could instead acquire 185 F-16 aircraft at one third of the cost of 185 F-35A model aircraft. Instead of buying 155 F-35C aircraft, the Navy could acquire 155 F/A-18 E/F Super Hornet aircraft at two thirds of the cost of the F-35C aircraft. Production lines are currently open for production of the F-16 and the F/A-18 E/F Super Hornet aircraft, as opposed to the F-35 aircraft. This allows for the acquisition of the older aircraft at a decreased cost to the taxpayors.

This move would save $2.3 billion in FY 2015, and $9.5 billion from FY 2011 to FY 2015.

(7) Cancel the V-22 Osprey program. The V-22 Osprey aircraft is a multimission, tiltrotor aircraft with short takeoff and landing (STOL) capability and vertical takeoff and landing (VTOL) capability. It has had a long and storied history of failures, crashes, and cost overruns. The 4 ^th and 5 ^th prototypes of this aircraft crashed in 1991 and 1992. In 2000, there were two fatal crashes that killed 19 US Marines. The developmental budget for this aircraft was $2.5 billion in 1986, and increased to $30 billion in 1988. By FY 2008, $27 billion has been spent on the acquisition of the Osprey aircraft.

In 2001, Lt. Colonel Odin Lieberman was relieved from command at a naval air station in Maryland after falsifying maintenance records to make the Osprey appear to be more reliable than it actually was. The aircraft is incapable of autorotation, and is unable to safely land in helicopter mode if both engines fail. There is currently an order pending for 458 Ospreys, with 300 going to the USMC, and 48 to the US Navy, and 50 to the US Air Force. The unit cost is $110 million per aircraft.

A recent study by the GAO (General Accounting Office) in January of 2009 from deployments in Iraq yields the following data: A mission capable rating of 57% to 68%, with an overall mission capable rate of only 6%. This program should have been killed years ago, and it is nothing short of unbelievable that the DOD ever agreed to acquire any of these unsafe and unreliable aircraft in any significant numbers, period. Canceling this program will save at least $2.8 billion per year from the DOD budget.

Cumulative savings. These cuts recommended by the Commission as indicated above would save around $33 billion from the DOD budget in FY 2015. That is a significant savings of taxpayer dollars. These common sense proposals by the Commission should be lauded and embraced by the American public, in a time of budget crisis.

CUTTING THE BUDGET

NOV 19, 2010

Now that a Republican majority has been elected in the U.S. House of Representatives, a new priority will be implemented concerning the federal budget. We must remember that under our Constitution, all appropriations bills must originate in the House of Representatives. The newly elected GOP members have pledged, when seated, to repeal Obamacare, and to not enact any new taxes to balance the federal budget. They also believe they have a mandate to scale back the size and the outreach of the federal government. The Bush era income tax cuts will in all likelihood, remain intact.

If you cannot enact any new taxes, and you have interest in balancing the federal budget, what can you do? Well, your next priority will be to look for ways that you can make cuts in the existing federal budget. Here is a list of some cuts that could be made to the federal budget:

1. Do away with Earned Income Credit. Earned Income Credit began under the Nixon Administration as the Family Assistance Plan. It is basically a reverse income tax for some low income wage earners. In essence, some individuals that pay little or no federal income tax anyway, are allowed to file a federal income tax return and receive an income tax refund, even though they did not pay income tax into the system. It is a form of income tax redistribution by the IRS. The IRS is essentially taking away income tax monies from medium and high income wage earners, and giving money back to low income wage earners, even though they did not pay that amount of tax into the system. This would save $54.1 billion from the budget each year.

1. Repeal No Child Left Behind Act. This feel good piece of federal legislation was enacted in 2001. It places onerous reporting requirements and other requirements on the states and local school systems, yet the federal government only pays for around 9% of the costs for the implementation of NCLB. This law is essentially an unfunded and an underfunded federal mandate that is hypocrisy writ large. Uncle Sam basically tells local school systems and the states what they must do to implement different programs in local schools, yet sends out little funding from Washington to help implement those same programs. Local school systems are forced to teach students to perform well on standardized tests as a result of this NCLB Act. Instead of teaching school subjects in a traditional way, local schools are forced to teach students how to pass a test. That has the effect of warping the main reasons why children are sent to school in the first place, which is to learn in accordance with their grade level. This would save about $23.4 billion per year from the federal budget, and at least $161 million per year from the budgets of the states and local school systems.

1. Eliminate the U.S. Department of Education. This federal agency has an annual budget of over $77 billion, 787 million dollars. I need to break down this budget for you, to show the programs administered by this agency:

Grants to college students constitute over $6 billion, 597 million dollars each year. This particular program could be handled by the U.S. Treasury if the Department of Education is abolished by statute. Over $4.6 billion is for so-called concentration grants and targeted grants. Over $545 million is for school turnaround grants to local school districts. Over $394 million is for migrant student education, and over $50 million is for education for delinquent children. Over $10 billion is for grants for education for the disadvantaged. Over $1.2 billion is for impact aid to local school districts in areas with military bases. $308 million is for education improvement programs, and over $178 million is for math and science programs. $222.2 million is for programs for effective teaching at the local level. The implementation of local educational programs is not a federal function in our country. Local school programs are paid for by local property taxes, and by the state governments. The elimination of this agency altogether would chop at least $67 billion per year from the federal budget. Considering the fact that this agency performs no essential governmental function at a national level, the Congress should put this agency on the budget chopping block.

4. Greatly Reduce Funding to the Bureau of Indian Affairs. This bureau of the U.S. Department of the Interior administers U.S. Government programs to Native Americans. These programs are left over relics from the federal policies of the 1880s and the 1870s. The policy of Uncle Sam in those days was to get the nomadic Plains Indians off of buffalo hunting, and onto reservations, where the government wanted them to become ranchers and farmers. These programs were originally designed to transition Native Americans into a new way of life, but they have become high maintenance welfare programs that have lasted for many years. The original recognition of the Native American tribes by the U.S. Government was one of dealing with the tribes as separate nations, rather than the assimilation of Native Americans into our own culture. These programs goals are now outdated.

If the Native Americans want to have a separate and secure status as independent tribes, they should get off the payroll of the U.S. Government. The annual budget for the BOIA is $2.2 billion. In terms of annual appropriations, welfare assistance takes $151.3 million; tribal government programs takes $374.7 million, tribal education services takes $637.7 million, tribal law enforcement takes $199 million, economic development takes $52.7 million, and administrative and personnel services takes $224.5 million each year.

Many of these tribes, such as the Crow and Blackfeet, control vast amounts of western lands, where they could issue hunting and big game licenses and fishing permits. Many tribes also have their own gambling casinos. What Congress should do is enact legislation similar to the Northwest Ordinance of 1787, which would be directed at the various Indian Tribes. The act should be used as a template for the formation of tribal governments and the establishment of tribal courts and law enforcement systems. Who can do a better job of taking care of Native Americans than Native Americans? If the tribes could raise their own revenue and implement their own law enforcement systems and governments, the amount of federal assistance could be drastically reduced.

President Obama has also appointed a budget commission to study ways to reduce the federal deficit. They have released a report this past week, which I am reviewing. I will comment on their findings next week.

A NEW MANDATE

NOV 4, 2010

The people of the United States have spoken in this mid-term election, and the GOP has picked up a number of seats in the next U.S. Congress. MSNBC reports that the GOP now has 46 seats in the Senate, compared to 52 Democratic seats and 2 Independents who caucus with the Democrats. In the House, the GOP now has 239 seats, compared to 185 Democratic seats. Rep. John Boehner of Ohio (R ), will become the next Speaker of the House. Democrat Harry Reid won reelection in Nevada, and he will continue as Senate Majority Leader.

Most of the GOP and Tea Party candidates were swept into office by a mandate of less government. What does this mean? Well, it means that we do not need to have U.S. forces stationed in over 120 countries around the world. It means that we do not need to fight open ended Wilsonian type wars in the Middle East. It means that the Obama health care law will probably be scaled back, or repealed and replaced with a series of smaller bills by the new Congress. It also means that there will probably be another round of base closures, and several weapons systems will be scrapped. Less government also means that things that the government is doing today, may not be done by the government in the future.

Less government also means that we will probably have to work longer before we can draw Social Security retirement benefits. It means that the Congress must now get by without enacting any new taxes, but must also figure out a way to bring a multitrillion dollar federal budget into balance.

If you can’t enact any new taxes into the mix, then less government must mean that substantial cuts must be made to the federal budget. There is a dirty word that has been spoken in the halls of the Congress, and in the federal agencies for the past 50 years. That word is incrementalism. Over the past fifty years, once an item makes its way into the federal budget, it stays there. As each budget cycle proceeds, most of time, that particular appropriation never gets chopped out of the budget, but instead the line item appropriation grows and grows in increments with each budget cycle. Agencies don’t want their budgets cut, and they don’t want to kill specific programs, so Uncle Sam throws more money at a particular problem that cannot be solved by throwing money at it. Congress and the federal government have become a giant money sucking vacuum cleaner that robs us of our hard earned money in the form of income taxes and excise taxes. They then throw our hard earned money at various problems, at their discretion.

I once heard that if someone had the power to take all of the money in the world way from the rich and the poor alike, and then redistribute the funds in equal installments to all people, that everyone would end up with around $2200.00. That means beyond all doubt, there is a finite supply of money in the world, and in this country. Our Congress and the federal government, though, have been operating as if there is an infinite amount of money in this country that they can obtain through taxation. In reality, that is not the case at all, and this recent election has been a wake up call to the Obama Administration and to the Congress that the federal government must live within its means.

One of the first pledges of Rep. John Boehner and the Tea Party candidates is the repeal of Obamacare. They will probably have to override several presidential vetoes to make this happen, but they now have the votes to get it done. I believe they can get enough Democrats to vote with them, to get Obamacare overhauled or at least partially repealed. President Obama got this legislation passed without decent and sufficient input from the people, and the process he used to ram the bill through the Congress has cost him all of the political capital he brought with him in 2008. What this mid-term election tells me is that Obama was not elected president because of things he himself had done, but he was elected because his predecessor had angered the American people by leaving this country in one mess after another.

The people now say through this last election that they want less government, and they want relief from the high levels of taxation they receive from the federal, state, and local governments.

The thinking in Washington must change, and whole programs inside the various agencies should be put on the chopping block come budget making time. Over the next few weeks, I will actually pull up some line-item budget numbers for the federal agencies, and show you where the federal budget could be cut to save the taxpayers substantial money. Instead of throwing out general information, I will get specific and show you specific examples of how the federal budget can be cut, and cut selectively.

Steven Harrell has practiced law in Perry, Georgia since 1989.

He is the author of The Unionist, A Novel of the Civil War and The Rifle Captain, A Novel of World War I. Both are available at Amazon.com, and Barnes&Noble.com. You may email him at [email protected].

ELECTION SPECIAL

NOV 4, 2010

Earlier this year, the U.S. Supreme Court handed down an opinion that struck down part of the McCain Feingold Act that would have regulated campaign finance. This bone headed ruling by the judicial branch of our government has opened up the floodgates for insurance companies and other special interest groups to air wave after wave of attack ads on the electronic media before elections.

This mid-term election has seen more than its fair share of negative and vitriolic attack ads. The only groups that really like these ads are the local TV and radio stations, and they are laughing all the way to the bank. Ever since political attack ads were perfected by Lee Atwater in the 1988 Presidential election, attack ads have grown more venomous and more frequent. They have become the primary means of running a campaign, and that in and of itself is shameful.

We must learn to communicate our platforms and our vision for America more positively and more effectively to get elected to public offices. We should do that without having to throw stones at our brothers and sisters. A campaign should be more about what a candidate is willing to do to be successful in office, not so much about how our brother or sister has failed in the past.

I did not support Austin Scott for the U.S. Congress. When he was divorced around six years ago in Tift County, a Superior Court judge sealed his divorce file. A Democratic activist, Amy Morton, has retained Macon attorney Carmel Sanders to file suit to reopen Austin Scott’s divorce file, and to make it a public matter. Honestly, the contents of Austin Scott’s divorce file are really not related to public business.

I could care less if he put on a pink leopard suit at 2 A.M., and rode around on a striped zebra in Piedmont Park six years ago. (I am not saying that he did!) His private life is none of my business. Jim Marshall should have had the moral and the political courage to disavow any connection with Amy Morton’s fishing expedition into Austin Scott’s divorce file. He should also condemn her actions as well.

Such venomous tactics are a primary reason why talented and well qualified individuals never seek office or serve in high profile posts. One of the primary reasons that Sam Nunn left the U.S. Senate revolved around the uncivil nature of elective politics, and because Washington had become too polarized.

We can disagree about policies and theories for the implementation of public programs without engaging in name calling, hateful behavior, or low life carping. This nation is the most divided it has been since Kansas petitioned for admission into the Union in 1856. If we continue down the same path of divisiveness that our nation went down in 1856, we are looking at major civil unrest, and maybe civil war.

Winning an election at any cost makes the victor nothing more than a pretender at best. After you get elected to public office, you must lead and lead effectively, or you may be voted out of office the next election cycle. We can do better. We can and we should initiate reforms to reform our election system on a statewide level. The people of this great state and nation should demand more than they are getting from their elected leaders. Some serious changes need to be made in the way candidates qualify and pursue elected offices in this country. If it means that we need to vote out all of the incumbents and start over to change the process, then maybe that is what we should do. There are too many sacred cows in our primary and general election system. Changes should be made. Our children deserve better.

Steven Harrell has practiced law in Perry, Georgia since 1989.

He is the author of The Unionist, A Novel of the Civil War and The Rifle Captain, A Novel of World War I. Both are available at Amazon.com, and Barnes&Noble.com. You may email him at [email protected].

SCHOOL DISTRICT WOES

OCT 22, 2010

This past week, the Bibb County School Board received another jolt of bad news. A handgun was found in a child’s backpack at a middle school. In addition, a school bus driver for the Howard High School was caught pimping out female students, and encouraging them to have sex on the back of his school bus with male students at the Hutchings Career center. This was happening while he was driving on a bus route that deviated from the route he was supposed to be driving.

It seems that a female student from Howard High School went to her mother, and she complained about all of the illicit happenings on the bus. Her mother then complained to school officials, who pulled the security tapes from the bus camera, and who also reviewed GPS data which showed that the driver had been deviating from his assigned route. Some questions concerning this incident should be raised here. How long has this type of conduct been happening with this school bus driver? Why haven’t school officials been reviewing these security tapes and GPS tracking data on their own anyway? If they had been doing their jobs, why did it take a complaint from a student and her mother for this miscreant bus driver to be found out? It seems that the one thing that Bibb County school officials can do is cover up wrongdoing in their system. This type of institutional behavior needs to be changed, and in a hurry.

The school bus driver was immediately terminated. However, he should also be prosecuted and charged with the felony offenses of enticing a child for indecent purposes. The Macon Telegraph recently ran a series of articles that outlined many of the problems with violence and discipline in the Bibb County public schools. Some students say that they bring weapons to school for protection, because they do not feel safe. Some students bring weapons to school to intimidate other students.

The Bibb County Board of Education can and should adopt a zero tolerance policy for weapons in the schools. The school district can and should make student safety a top priority for all students in the county. If schools are not safe, then a proper atmosphere cannot be created to allow students to get any type of decent education. What can be done to make the schools safer? I believe that the school system should install metal detectors in every school building, no matter what it will cost. If the Board of Education needs to put a SPLOST on the ballot for a referendum to get the funding to place metal detectors into the schools, then they need to make that happen. If you catch a child at the door at a metal detector while trying to enter school with a loaded weapon, that metal detector just paid for itself in that once instance.

School security officials should also use drug dogs and random searches in the schools as well. When it comes to school and student safety, there really is little interest in protecting privacy rights, as opposed to the interest of safety for the students and the faculty members.

The Bibb Board of Education should hire a strong School Superintendent that will not tolerate some of the institutional behavior that allowed wrong doing to happen there. That person should accept nothing less than the best of behavior from all students and from all school officials. Wrongdoers should be caught and prosecuted, if their behavior violates the criminal laws. A new approach should be taken for student offenders. Once students are caught bring weapons to school, they should be expelled from the regular school system, but should be allowed the opportunity to learn a trade such as carpentry or HVAC installation, for example. A student that has engaged in conduct serious enough to warrant expulsion from regular classes, should be put into a more closely supervised and structured environment. Those students should not be allowed to reenter the regular campus with the law abiding students, where they can generate additional trouble.

If the Bibb County school officials fail to correct these type of problems within their system, potential employers and industries will eliminate Macon and Bibb County from their lists of places to expand. This problem is not just a social and a school problem, it is an economic problem when criminal behavior in the schools is reported in the state wide news outlets. Macon is declining for many reasons, but a leading reason that affluent citizens are leaving the county is the school system. A leading reason why some businesses will not expand or relocate there is the school system. If these problems are not addressed and resolved in a through and efficient way, Macon and Bibb County will continue to decline. These issues will be on the plate when the Board of Education hires a new superintendent this coming month.

Steven Harrell has practiced law in Perry, Georgia since 1989.

He is the author of The Unionist, A Novel of the Civil War and The Rifle Captain, A Novel of World War I. Both are available at Amazon.com, and Barnes&Noble.com. You may email him at [email protected].

BANKRUPTCY NEWS

OCT 8, 2010

This past week, the U.S. Bankruptcy Court in Atlanta approved a settlement between former Georgia Department of Education head Kathy Cox, and her Chapter 7 Trustee. She had previously won over $1 million on a TV game show, “Are You Smarter Than A Fifth Grader?”. The problem was that she and her husband had filed a petition for relief under Chapter 7 of the Bankruptcy Code around the time that she won the $1 million prize. She had planned to donate that money to three different schools, but the Chapter 7 Interim Trustee had other plans for the funds. He filed an adversary proceeding against her, which alleged that the winnings should go to her creditors. A settlement was reached which will allow the Trustee in bankruptcy to receive $500,000, and for three Georgia schools to divide the sum of $500,000. This is great news for each of the schools, one of which is the Georgia Academy For The Blind in Macon.

On other fronts, a U.S. Bankruptcy judge in Gainesville has signed an order reopening the Chapter 7 case filed by Nathan Deal’s daughter and son-in-law last year. Clint Wilder had previously filed a petition for relief under Chapter 7 of the Bankruptcy Code in 2001, and he received a discharge in that case. He and his wife, Carrie Deal Wilder, filed a petition for relief under Chapter 7 of the Bankruptcy Code last year. On their new filing, they did not disclose that Clint had filed a previous Chapter 7 petition in 2001. Federal bankruptcy law requires disclosure of a previous filing on a debtor’s petition. That was not done in this case.

In addition, the Wilders did not list Nathan Deal and his wife as creditors and guarantors of their debts on their Chapter 7 petition, even though the law required them to do so. Nathan Deal and his wife were guarantors and co-signers on millions of dollars worth of bank loans made to the Wilders for the financing of an outfitting business in Habersham County that later failed.

After the Wilders received a discharge in their Chapter 7 case, the U.S. Trustee in Atlanta found out that Clint Wilder was not eligible for a discharge under 11 U.S.C. § 727, because he had received a discharge in a prior Chapter 7 that was filed less than eights years prior to the 2009 filing. A motion to reopen the 2009 Chapter 7 case was fled by the U.S. Trustee, and Judge Robert Brizendine ordered the case reopened this past week.

What does this mean? Well, first, Clint Wilder’s discharge from 2009 will be revoked, because he was not eligible for a discharge last year. Carrie Deal Wilder’s discharge may be reentered, because she has not filed a previous Chapter 7 case. However, new issues have arisen concerning the bank loans that Nathan Deal and his wife co-signed and guaranteed before the Wilder filing. When these substantial bank loans were being made to fund the outfitting business several years ago, Clint Wilder had already filed a Chapter 7 case. What banker in his right mind would loan money to a person that has already sought relief under Chapter 7? In my estimation, Mr. Wilder should not have been able to obtain any type of business loan anywhere, much less the multimillion dollar loans that he ended up obtaining.

Did the bankers involved loan the Wilders money for their business just because Nathan Deal was co-signing their loans with them? Were the loans made because a U.S. Congressman was guaranteeing their payment? If a non Congressman wanted such a loan made to his son-in-law, would the banks have made them? I don’t think so.

Was Clint Wilder’s previous Chapter 7 filing properly disclosed on his loan applications that he completed with the various banks? If it was not listed, then the banks could file an adversary proceeding in the pending Chapter 7 case under 11 U.S.C. § 523, and have their debts excepted from discharge by U.S. Bankruptcy Judge Robert Brizendine. This means that both Carrie Wilder and Clint Wilder could both be required to pay these bank loans, regardless of the Chapter 7 filing. This would be under some type of fraud theory, on the grounds that Clint’s prior Chapter 7 filing should have been disclosed on his loan applications.

In any event, Nathan Deal and his wife remain jointly liable to pay these debts, totaling over $2 million, while the U.S. Bankruptcy Court sorts out the relief that can be obtained by their daughter and son-in-law.

Steven Harrell has practiced law in Perry, Georgia since 1989.

He is the author of The Unionist, A Novel of the Civil War and The Rifle Captain, A Novel of World War I. Both are available at Amazon.com, and Barnes&Noble.com. You may email him at [email protected].

CAMP LAWTON

AUG 19, 2010

In July of 1864, Union General George Stoneman set out with around 6500 cavalry troopers from Sherman’s lines around Atlanta, on a mission south to free the Union prisoners held at Andersonville in Sumter County. Stoneman’s column reached the outskirts of Macon, where his men fought an artillery duel with militia at the Dunlop House at what is now the Ocmulgee National Monument. Stoneman’s troopers withdrew north into Jones County, where the bulk of his command was surrounded by three brigades of Confederate cavalry commanded by General Alfred Iverson.

Two thirds of Stoneman’s troopers cut their way out and escaped to Gwinnett County, while Stoneman and the rest of his command became Confederate prisoners of war at Sunshine Church. Upon learning the reason for Stoneman’s cavalry raid, a decision was made to move the Federal prisoners at Andersonville. In October of 1864, a new prison was constructed off the Georgia Central Railroad above Millen, Georgia. The prison camp was named Camp Lawton after the Georgia born Confederate General Alexander Lawton, who was the quartermaster general of the Confederacy.

In early December of 1864, General William T. Sherman’s Army of Georgia marched from Tennille and Sandersville along the Georgia Central Railroad to Millen, where they liberated the prisoners, and then destroyed this prison camp. Major George Ward Nichols, in his book, The Story of the Great March, described the prison camp as a “hideous prison-pen”, which consisted of a “space of ground about three hundred feet square, enclosed by a stockade, without any covering whatsoever.” The compound held around 10,000 Union prisoners of war. The prisoners there were exposed to the elements without any covering whatsoever. The prisoners were exposed to heavy dews, biting frosts, and pelting rains without any form of shelter.

Nichols stated that there was not so much as a board or a tent in the entire enclosed stockade. He also stated that several prisoners had dug holes in the ground for their shelter. He also stated that Sherman’s soldiers found evidence that over 750 Union prisoners had died there, on account of the wretched living conditions. The prison camp was destroyed by Sherman’s troops after the prisoners were liberated.

In Major Henry Hitchcock’s book, Marching With Sherman, Major Hitchcock describes a scene at the hotel in Millen, where recently liberated Union prisoners of war from Camp Lawton attempted to purchase food at the dining room of the hotel, but were refused service by the proprietor. These same soldiers then promptly set fire to the hotel, and burned it down.

In 2009, a 36 year old graduate student from Georgia Southern University named Kevin Chapman was offered a chance to find the exact location of Camp Lawton. He conducted a controlled dig with state archaeologists at Magnolia Springs State Park above Millen. In December of 2009, Chapman and his professor dug up stained soil which indicated the location of the 15 foot high pine posts used to form the walls of the prison. They then found where the walls joined, and then excavated ground inside the walls of the stockade location, where they found artifacts such as horseshoes, uniform buttons, pipes, and eating utensils. This discovery has stunned most state archaeologists, who had concluded that because Camp Lawton had not been in existence long before it was destroyed, that there would be little archaeological evidence left to find.

Now the prison site has been discovered and excavated, and the physical evidence of this prison can now be viewed by visitors at the Magnolia State Park near Millen. The Associated Press and the Atlanta Journal Constitution have recently reported the success of Mr. Chapman’s archaeological find in east Georgia. This was just another stop along General William T. Sherman’s historic March to the Sea.

Steven Harrell has practiced law in Perry, Georgia since 1989.

He is the author of The Unionist, A Novel of the Civil War and The Rifle Captain, A Novel of World War I. Both are available at Amazon.com, and Barnes&Noble.com. You may email him at [email protected].

REPEALING THE 14TH AMENDMENT?

AUG 11, 2010

Repealing the 14 ^th Amendment?

A group of so-called conservative U.S. Senators, including Jon Kyl of Arizona, and Lindsey Graham of South Carolina, have joined with some U.S. Congressmen, including John Boehner, to call for a repeal of the 14 ^th Amendment to the U.S. Constitution. These politicians are pimping themselves out to pander to a select group of voters. As a student of constitutional law, I am appalled by this suggestion, and believe that such talk should be squashed at once.

The 14 ^th Amendment to the U.S. Constitution was adopted by the Congress on July 9, 1868. It is one of the post-Civil War Reconstruction Amendments. The 14 ^thAmendment contains several important clauses. The Citizenship Clause provides a broad definition of citizenship that overruled the Supreme Court decision of Dred Scott vs. Sandford (1857), which held that black slaves could not become citizens of the United States.

Its Due Process Clause prohibits state and local governments from depriving people of life, liberty, and property without due process of law. Its Equal Protection Clause requires each state to provide equal protection under the law to all persons within its jurisdiction.

Section 1 {the Citizenship Clause} states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The late U.S. Supreme Court Justice Hugo L. Black was considered by many to be the only “strict constructionist” to ever sit on the U.S. Supreme Court. He argued that the 14 ^th Amendment of the U.S. Constitution “incorporated” all of the rights contained in the Bill of Rights of the U.S. Constitution, and made those rights apply to state and local governments. This man was no judicial activist, in any sense of that word. He instead believed in a strict interpretation of the U.S. Constitution and its amendments. In reviewing this issue, we should defer to the wisdom of Justice Hugo Black, considered by many to be one of the great Supreme Court Justices of the 20 ^thCentury.

His view of the constitution was recently reinforced in the recent U.S. Supreme Court case involving the Second Amendment. Justice Alito, writing for the court in McDonald vs. City of Chicago, 08-1521, specifically held that the 14 ^th Amendment makes the Second Amendment right to bear arms fully applicable to the states. In other words, our rights under the Second Amendment apply on a state level, because they are incorporated by the rights granted under the 14 ^th Amendment, as it applies to each of the states.

Where would we be without the 14 ^th Amendment? Well, cities and states could ban the possession of handguns within their jurisdictions. State and local governments could make public safety personnel work extra hours without paying them one dime of overtime pay. State and local governments could rezone property using arbitrary or capricious procedures, and pay little or nothing to homeowners for the value of the land. We would still have the county unit system in statewide elections in Georgia if the 14 ^th Amendment did not exist. Public employees working for state or local governments could be terminated without cause if the 14 ^th Amendment did not exist. Without the 14 ^th Amendment, prosecutors could violate a defendant’s right against self incrimination, and a defendant’s other rights in state criminal trials. Without the 14 ^th Amendment, a private citizen’s property can be garnished or seized by a creditor before trial without a legal and fair hearing on the question of seizure. These are some of the hundreds of examples I can give you on this topic.

Do we really want to repeal the 14 ^th Amendment, and turn back the clock on over 100 years of progress in our society? I don’t believe so.

If these so-called conservative politicians want to really do something about illegal immigration in this country, they should get off their backsides and draft an immigration bill that actually works for America. They should stop taking money from all of the fat cat contractors, poultry and meat packing companies, and agribusiness people that routinely employ undocumented workers. They take campaign money from the groups that routinely exploit undocumented labor, and yet they squawk the most about illegal immigration in this country. These guys are nothing less than hypocrites.

Instead of repealing the one single constitutional amendment that touches the very lives of every person in the U.S., these misguided politicians should roll up their sleeves and draft an immigration bill with teeth in it. They need to stop the pandering, and stop misleading the public about the one document that guarantees that every person in this country will be treated fairly and equally, and that is our U.S. Constitution.

Steven Harrell has practiced law in Perry, Georgia since 1989.

He is the author of The Unionist, A Novel of the Civil War and The Rifle Captain, A Novel of World War I. Both are available at Amazon.com, and Barnes&Noble.com. You may email him at [email protected].

PRIMARY WOES

AUG 11, 2010

Primary Woes

The voter turnout in recent primary elections in Georgia was miserable, at less than 20% of the registered voters. Some really qualified candidates got shut out of runoff elections because many of their supporters stayed home, or voted in the opposite party primary. Max Wood, running for attorney general, and Terry Coleman, running for labor commissioner, are two of the candidates that got shut out of runoff elections.

Our primary system is a relic of the old white Democratic primary of over 100 years ago. In 1917, the State of Georgia introduced the county unit system, which awarded statewide elections to a candidate that got a majority of county unit votes, as opposed to the popular vote. It diluted the voting strength of city voters, and counties such as Fulton County. The county unit system allowed candidates such as Gene Talmadge to be elected governor without winning the statewide popular vote. This system was declared unconstitutional by the U.S. Supreme Court 1963 in the case ofGray vs. Sanders.

That ruling held that the county unit system violated the 14 ^th Amendment and the Equal Protection Clause of the U.S. Constitution, because the system violated the principle of “one man, one vote.”.

We have a closed primary system in Georgia. In order to vote in the primary, you must first declare a party affiliation. You then declare a party affiliation, and then you are locked off on your ballot from voting for candidates affiliated with the other party. That keeps many voters at home. Who wants to venture out in 100 degree weather to vote on a ballot when you are offered a choice of a small slate of candidates? This primary system is set up wrong, and it is broken. Year after year, politicos and the printed news media blame Georgia voters for the low turnout in primary elections. What you hear over and over again is voter apathy. They are looking at a symptom of a problem, as opposed to understanding what the problem is, and fixing it. The voters are not turning out to vote in primary elections because the current system locks them off from making a choice from the entire array of candidates available. Instead of blaming voters for the low turnout, maybe the news media should blame the sorry system Georgia has in place for primary elections.

What can be done to make the system better? Well first, the primaries should be moved to September, when the weather is cooler. Secondly, Georgia should abolish its closed primary system, and allow voters to vote for any candidate in any party, no matter what. We now have electronic voting machines in this state, and the machines can tally votes for each candidate regardless of party affiliation. Our voting equipment is in the 21 ^st Century, and our primary system should be updated to match the equipment the voters are currently using. These two changes alone will boost voter turnout. If runoff elections are required, they should be held in October, just ahead of the general elections in November.

In addition, all local races for county offices, executive, legislative, and judicial, should be non-partisan. There is no Democratic way to pave a street, and there is no Republican way to collect the trash. Local races should never be decided on party affiliation, but on the personal ability of each candidate for local office. If local candidates were required to run on their qualifications and ability rather than their party affiliation, the election system would weed out the poor candidates up front. Our General Assembly should pass the legislation needed to make these changes in our primary system. The system is beyond broken, and it is in dire need of repair. Will the General Assembly make these changes? Probably not, because the political parties enjoy running the show, while their candidates only answer to a small number of registered voters. Maybe it is also time to get some new blood with new ideas into the General Assembly, and fix many of the things that are wrong with our voting system.

Steven Harrell has practiced law in Perry, Georgia since 1989.

He is the author of The Unionist, A Novel of the Civil War and The Rifle Captain, A Novel of World War I. Both are available at Amazon.com, and Barnes&Noble.com. You may email him at [email protected].

A BELATED HONOR

AUG 11, 2010

A Belated Honor

On July 3, 1863, at 1.07 p.m., seventy five guns of the Army of Northern Virginia opened fire on the Union Army lines on Cemetery Ridge at Gettysburg. Colonel E. Porter Alexander was given the task of directly a deadly fire against that portion of the Union lines as a prelude to the attack now known as Pickett’s charge.

Battery A, 4 ^th U.S. Artillery was situated over on Cemetery Ridge. It consisted of 6 guns, and 110 men. It was commanded by 22 year old First Lt. Alonzo Cushing of Wisconsin. The bulk of the Confederate artillery fire began to land on the hill behind Lt. Cushing’s battery. Some of the shots from a mile away rained hell, iron and death on Lt. Cushing’s battery, for over two long hours. The incoming rounds blew up artillery limbers, knocked wheels off guns, and disemboweled horses, mules and men on the hill.

Only two guns in the six gun battery were capable of firing at the 15,000 Confederate troops that were advancing toward them from the Emittsburg Pike. Most of their horses and mules had been wounded and killed in the two hour Confederate cannonade. Lt. Cushing gave his sergeant the order, “By hand to the front,” and the guns were wheeled into position by hand. There at the fence, they poured their deadly fire into the attacking Confederate infantry. Lt. Cushing was subsequently wounded by Confederate artillery fire. His first wound was a shell fragment that went through his shoulder. He was then horribly wounded by a shell fragment which tore into his abdomen and groin. Lt. Cushing held his intestines in place while begging his superior officer to allow him to stand in place and work his guns against the approaching enemy.

He was held in place by Sgt. Frederick Fuger, who passed on Lt. Cushing’s commands to the cannoneers. As General Lewis Armistead’s Virginia soldiers closed into the Bloody Angle at Cemetery Ridge, their attack reached a critical climax. Cushing’s battery poured canister fire into the attacking Confederate columns. Cushing’s battery had run out of long range ammunition earlier, so all he had left was canister, which threw one inch balls at the soldiers like a giant shotgun.

A soldier who witnessed the battle told the following: “Lt. Cushing, of Battery A, 4 ^thU.S. Artillery, challenged the admiration of all who saw him. Three of his limbers were blown up and changed with the caisson limbers under fire. Several wheels were shot off his guns and replaced, till at last, severely wounded himself, his officers all killed or wounded, and with but cannoneers enough to man a section, he pushed his guns to the fence in front, and was killed while serving his last canister into the ranks of the advancing enemy.”

While yelling an order to his battery, Lt. Cushing sustained a rifle wound through his open mouth. He fell to his knees, and died in his sergeant’s arms. His body was collected by his brother, and he was interred at the United States Military Academy at West Point. The U.S. Army awarded him a brevet promotion to the rank of Lt. Colonel.

His mother had a headstone erected which denoted his brevet rank, and which was inscribed with the words, “Faithful Unto Death.”

This faithful soldier of the Civil War gave his last full measure of devotion to his country on July 3, 1863. Margaret Zerwekh, a 90 year old woman that lives on land in Delafield Wisconsin, where Lt. Cushing was born, began a campaign in 1987 to have Lt. Alonzo Cushing awarded the Congressional Medal of Honor. She wrote to then U.S. Senator William Proxmire, lobbying for the award. This petition was later picked up and joined by Air Force Captain Phil Shapiro of Cabot, Arkansas. They met with U.S. Senator Russ Feingold, who later petitioned the U.S. Army to have the honor awarded to Lt. Alonzo Cushing. Captain Shapiro even created a Facebook web site for the purpose.

After a detailed review of historical accounts and the Official Records of the War of the Rebellion, Secretary of the Army John McHugh has recently approved their request. This award will be submitted by the Army to the Congress for approval. This summer, Brevet Lt. Colonel Alonzo Cushing will be awarded the Congressional Medal of Honor for his conspicuous gallantry and bravery in action at Gettysburg on July 3, 1863.

A group of modern day supporters from around the country have succeeded in having a little known Civil War hero recognized for his valor and his devotion. These days, when we see and hear the word “hero”, overused and abused, it is wonderful that someone like Lt. Alonzo Cushing receive the honor and recognition he so richly deserved.

Steven Harrell has practiced law in Perry, Georgia since 1989.

He is the author of The Unionist, A Novel of the Civil War and The Rifle Captain, A Novel of World War I. Both are available at Amazon.com, and Barnes&Noble.com. You may email him at [email protected].