Four Dead in Ohio

Certain moments in our lives are underlined in our memory. People my age clearly remember where they were and what they were doing on the day that President Kennedy was killed. September 11, 2001, is similarly etched into our memory. And, at least for me, May 4, 1970, is such an unforgettable date.

It was our last year of law school, and graduation was approaching. Our Spring Quarter classes were almost completed and final exams appeared to be the last hurdle to obtaining our Juris Doctor degrees and our confrontation with the Bar Exam. But events were about to throw a monkey wrench into our anticipated pathways.

The nation was embroiled in conflict over the seemingly unending war in Vietnam. The draft was in full force and nearly 50,000 young American men had already lost their lives in the bloody confrontation. Students on campuses all over the country were protesting the war, the draft, and the failure of Richard Nixon to fulfill his promise, made during his 1968 campaign for President, to end the war.

I was completing my term as Editor-in-Chief of the Ohio State Law Journal that Spring, and I was in my office in the basement of the OSU Law School building on that day in May. About 1:00 that afternoon, one of my classmates burst in and said, "The National Guard killed a bunch of students at Kent State. It was a bloodbath." At first, I didn't believe him. How could this happen? I experienced the same optimistic skepticism I had felt when I was first told that Kennedy had been shot.

But the radio in my office soon confirmed that the shootings had occurred. Four students were killed; others were wounded. The war had come home.

The OSU campus exploded. Students took to the Oval, the great, green space in the center of the campus, in anger. It was impossible to move around the campus as thousands protested and called for the end of the war and the restoration of peace. Classes were disrupted; the Ohio Highway Patrol chased protesters from one part of the campus to another. The mood was ugly. A rock was thrown through a window at the Law School.

Word spread throughout the Law School that a meeting of the students would be held in one of the large classrooms. Mike Schwarzwalder (later to be elected as a member of the Ohio Senate), who was President of the OSU Student Bar Association, asked me, as Editor-in-Chief, to co-chair the meeting. The atmosphere was dominated by fear and anger. The law students voted overwhelmingly that Mike and I should approach the faculty and request that the Law School be closed in the interests of safety, and, for many of us, as a demonstration of our anger over the events at Kent State.

The law faculty was meeting at the same time the law students were assembled. Mike and I went to the faculty meeting room and asked to speak. We reported the wishes and concerns of the law students. We were thanked and then ushered out. We learned that a couple of hours later, representatives of the law faculty met with university officials and the decision was made to shut down the campus.

The Law School was closed for ten days. We ended up taking all our last quarter classes "pass/fail." The Ohio Supreme Court waived its required class hours rule so we could take the Bar Exam. Our lives went on, but for four unarmed Kent State students it all ended on that day in May. I will never forget.

To Tell the Truth

During the time I was a judge, I attended a number of Judicial College seminars during which an "expert" or two discussed with the attending jurists the problem of ascertaining whether or not a witness was testifying truthfully. The discussions centered on body language, word and speech patterns, eye movements, and other human quirks and tricks that were supposed to aid in the determination of truthfulness.

Still, every judge will tell you that there are situations in which it is very difficult to tell fact from fiction in testimony. I am not talking about differences in perception or in memory. The topic here is identifying the flat-out lie that a witness wishes the trier of fact to perceive as a true recounting of some past event.

Fortunately, there are not a lot of situations arising in Domestic Relations proceedings that lend themselves to prevarication. However, in certain cases, notably those involving allegations of domestic violence or conflicts involving children, the facts as related by the parties are simply too inconsistent to reconcile. Someone is not telling the truth.

Sometimes, a witness' version of an event simply is too far-fetched and inconsistent with human experience to be believable. For example, in a case in which marital infidelity was at issue, Wife testified that, although she met her alleged paramour in a local drinking establishment, had a few drinks, went with him to a nearby hotel where they spent the night, and was seen in a passionate embrace with him as the two of them were leaving the motel the next morning, the fact was that they were "just friends" who had too much to drink and decided to sleep it off together. There was, she swore under oath, no sex involved.

Sorry, I was not buying it.

The more difficult case is the "he said, she said" situation where the stories clearly conflict and only one could be true. In a dispute over custody of two very young children, the issue arose concerning Dad's allegation that Mom repeatedly denied him time with the children. He testified that, notwithstanding the court order that granted him parenting time, he would show up at Mom's residence to get the children and she would not be present. She testified, however, that he would repeatedly fail to come to her home at the appointed time to pick them up.

In the absence of any third party witnesses, it was extremely difficult to determine what really happened. I always felt it was too bad that people do not have a little red light in the middle of their foreheads that illuminated when they were lying.

My Rabbi recently asked me if I thought that the administration of an oath had any influence on a witness' truthfulness. I told him that I had often considered changing the wording of the traditional oath to: "Do you swear to tell some of the truth, part of the time, as it may serve your purposes." At least the level of perjury would be reduced.

Married and Divorced on the Same Day!

Common law marriages served laudable functions, legitimizing relationships (and the resulting children) and permitting third parties to rely upon what appeared to be a marriage in dealing with the putative husband and wife. However, the concept is often misunderstood and the subject of confusion.

To create a common law marriage, certain legal requirements must have been met. First, both parties were required to have the capacity to marry, that is, to be single adults not too closely related to one another as required by state law. Each member of the couple was required to state to the other that they were married in terms of present tense. "We are married" was acceptable. "We will be married" was not. The couple had to cohabit (no specific time period was required) and hold themselves out to their community as husband and wife.

Once a common law marriage was established, the union was legally indistinguishable from a ceremonial marriage -- one performed after the couple obtained a marriage license, and presided over by a licensed clergy member or civil authority. In order to terminate a common law marriage, a divorce was required.

Common law marriage was not unusual in the United States particularly during the period of western expansion. Often marriage licensing procedures were difficult or non-existent, as were clergy or civil officers to perform a ceremony. However, as the West was settled, the necessity to maintain the institution of common law marriage became less and less.

Ohio abolished common law marriage effective in October, 1991. However, common law marriages entered into prior to that date in Ohio are recognized, as well as common law marriages which were valid in the states in which they came into being.

During my eight years on the Domestic Relations Court bench, I only had one common law marriage case to deal with. "Wife" had sued "Husband" for divorce, alleging that the parties had been married by common law. Procedurally, the case came before me to consider Husband's Motion to Dismiss the divorce, claiming the parties had never been married. The parties had already agreed on a settlement; however, it was only to go into effect if I determined they had been married. Otherwise, there would be no division of the assets accumulated while the parties were together, the most significant of which was the business established by Husband.

Wife admitted that no marriage license had been obtained, and that the two of them had never had a legal, ceremonial marriage. However, her counsel set about proving the elements of a common law union. It seems that the parties had purchased rings together, and had presented each other with a ring and declared that they were now married. In addition, they had lived together for many years, their friends and neighbors believed them to be married, and they had filed their federal tax returns jointly.

Throughout the hearing, Husband's mother sat in the back of the courtroom, dressed entirely in black, as though in mourning over the possibility that her beloved son was married to "that woman." In her hand she held a rosary and her lips moved constantly in silent prayer.

After hearing the evidence, I held that Wife had in fact established that the parties were married by common law. We immediately proceeded with a final hearing to adopt the agreement the parties had conditionally arrived at, and their divorce was granted.

Husband turned to the back of the courtroom and declared: "How 'bout that, Mama? Married and divorced on the same day!" Mama's sobs could be heard by everyone in the room.