Defending The Usual Suspect

"A Fair Lineup" according to D.A.

I have a current case in which my client is charged with a number of robberies. The judge, at my request, ordered a pre-preliminary hearing lineup to see if the witnesses could identify my client as the culprit. So, after   several months of motions and haggling over details, the time came to conduct the lineup a couple of nights ago. 

I went with my investigator to the LASD Men's Central Jail to meet with the D.A., a couple of LAPD detectives and five witnesses. While the witnesses were briefed on the procedure and seated in the front row facing the stage where the "suspects" would be arrayed, we stood at the rear with the deputy D.A. who has been assigned to this case. 

Following the protocol, the sheriff had found five inmates to join my client in the lineup. Each was dressed in similar jail attire, were close in height, ethnic appearance, hair, clean shaven, and each were instructed to stand and walk without bringing undue attention to themselves. 

The D.A. was appalled. "Damn, they look so much alike! How can you expect people to pick the right one?!"

I said, "You've got a great argument there. 'No wonder they couldn't identify the defendant. The lineup was too fair!"  

The Day The Government Stood Still

The argument about the sequester may be solved by the President using a little Hollywood magic.

In The Day The Earth Stood Still, Klaatu, the benign visitor provided a demonstration of his power by causing all movement in the world to stop temporarily at noon. 

The sequester may be the medicine we need to do see why we need to fund our government.

Unfortunately, Klaatu's demonstration failed to convince the conservatives of his era. He had to unleash Gort.

Oh, Gort, where are you now?

The newspaper funnies

The demise of newspapers may impact a part of pop culture not thought of. Mort Sahl was famous for using a newspaper as a prop in his stand-up act that relied on topical political humor. Late night talk show monologue writers fill time with reference to news items. Blogs and online newspapers just don’t have the same feel. Here’s two examples from today’s L.A. Times that I read while sitting on the john.

Front page of the “LATE EXTRA’ section, underneath a provocative headline: “Woman’s body found in hotel’s water tank.” 

The body (of the article, not the woman) reports that residents of the Cecil, a rather seedy skid row downtown L.A. hotel, had been complaining of low water pressure. A check of the water tank turned up the decomposing body of a 21 year old visitor from Canada, who has been missing since mid-January. 

The hotel had been notorious as a haunt of Richard Ramirez, serial killer of the 1990's. Even since its renovation it has been a source of police calls for occasional violence of the domestic and drug induced varieties. 

Other elements of a t.v. cop show plot are introduced. 

A surveillance camera in an elevator showed the woman frantically pushing buttons and waving her arms, then she disappears. 

And “a locked door equipped with an alarm that only employees have access to and a fire escape are the only ways to get to the roof.

Here’s the funny part: “‘We’re not ruling out foul play,’ said LAPD spokesman Sgt. Rudy Lopez, noting that the location of the remains ‘makes it suspicious.’” [!!!] 

To Jimmy Kimmel, et al., I submit a second article for your consideration. 

“A federal appeals court revived a lawsuit by female prisoners in California prisons for violating their rights by refusing to hire a Wiccan chaplain. . .  Wicca is a pagan religion that involves witchcraft.”

CRIMES OF THE FATHERS

Recent news has exposed a truth about religion that we sometimes forget. Churches act like any organic institution. They deem the most important goal as the survival of the institution. Expedience overcomes ethical considerations if the threat is perceived to be to the institution. In this, churches are no different than dictatorships, police departments, armies, corporations, or any other bureaucracy. 

Cover-ups of misdeeds are justified by institutional logic. The church is needed and therefore is good. If someone within the organization, especially acting under the color of organizational authority, does wrong, the impulse of the hierarchy is to protect the image of the organization. If that goal is perceived to be best served by concealment of the wrongdoing, so be it.  

This was the motivation of the French army’s deceit in the Dreyfuss Affair, Chevrolet’s concealment of the Corvair’s defects, tobacco companies denial of medical evidence, and the Nixon administration’s crimes in Watergate, among innumerable examples throughout history.  

In New York, the Hasidic community recently has been shaken by exposure of the practice of deterrence and punishment of those who complain of abuses by rabbis and other men upon girls and women. Claiming the right to self-correction which all religious institutions have defended, the organization has protected the culprits and harassed accusers, contrary to secular law. “Abuse Verdict Topples a Hasidic Wall of Secrecy” New York Times, December 10, 2012.

The ongoing saga of sexual abuse cases by Catholic priests is marked by the long time policy of concealment of the abuses by church officials which compounded the crimes. The asserted rationale given for the cover-ups is interesting, if not completely credible, given the self-serving nature of the reasoning. Priest pedophiles were provided counseling and treatment in the belief that religious re-education and prayer could “cure” the moral failing perceived as inherent in “conditions” such as homosexuality. The claim was undercut by the frequent practice of repeated re-assignments of offending priests to different parishes despite reports of continuing abuses.  

California’s law mandating reporting of child sexual abuse claims by clergy as well as psychotherapists and school officials went into effect in 1974, forty years ago. Churches were thus on notice that their cover-ups were serious criminal acts. Because it is accepted that recidivism among pederasts is very high, knowingly risking exposure of children to known abusers is considered as serious a crime as child molestation itself. 

Statutes of limitations may have run on many of the abuses revealed recently because they go back even beyond forty years. (However, recent laws have extended the statute to certain abuse cases.) The Catholic Church seems more concerned with the financial ramifications of the scandals. Several dioceses in the United States have declared bankruptcy in efforts to limit their liability for law suits arising from claims by victims.  

Like many of my criminal clients, Cardinal Mahoney’s defense is to mitigate by pointing to his many good works. Fine, I am all for considering mitigation, which does not excuse or justify or even explain, but puts a whole life of a wrongdoer in perspective. 

Unlike the Church, I would not condemn, excommunicate, torture, or burn at the stake a sinner or deviant from the faith. However, nor would I excuse the sins merely because the sinner confessed or repented or claimed to have “found religion” after his crimes.    

AKRASIA

From the very beginning of this blog, in fact the generating idea behind its creation, I wanted to explore the phenomenon that I noticed all during my career as a criminal defense lawyer . . . the propensity for my clients to act contrary to their own self interest. 

At the start, I explained that I was talking about the many irritating actions my clients and those of my colleagues (as related in innumerable war stories, accompanied by shrugs, curses and laughter) committed to ruin their lives.  I asked: Why . . .

. . . do they drop the dope on the street right in front of the oncoming Black and White? 
. . . do they drop the rest in the back seat after they are arrested?
. . . do they waive their Miranda rights and cop to the cops, brag to the jailhouse snitches, admit to their homies, and then indignantly deny all to us?
. . . do they keep the murder weapon so it can be found in a search, or sell it to someone who they warn: “There’s a murder on it”?
. . . do they wear a ski mask, gloves, Raiders jacket, but leave their wallets at the scene of the crime?
. . . keep credit cards and wallets of the victims in the trunk of the stolen car in which they have just had an accident?
. . . do they turn down the terrific plea bargain we’ve labored so hard to wangle? 
. . . do they insist on the “story” or defense which is guaranteed to lose, even when a better version or defense is readily available, fits with the same facts, and would provide a greater chance or even a certainty of victory?
. . . do they insist on testifying when it is the worst strategy? 
. . . do they testify that they have “never even seen drugs” after we successfully suppressed impeachment on 6 prior possession convictions?

I pointed out that civil lawyers have similar complaints about their clients who ruin their good cases, turning down the best settlement and end up getting screwed in court.

I observed that the phenomenon was not attributed to stupidity, noting that many supposedly intelligent, rational people were guilty: Bill Clinton and Dick Nixon being famous examples. 

In later posts, the news provided many other examples.  Tiger Woods, Governor Mark Sanford, and many other men who have been caught in sexual scandals that have followed the Clinton model of self-immolation.  

Sexual appetite doesn’t account for every instance.  I related Alan Greenspan’s reaction to the financial shenanigans revealed in 2008. He claimed to be shocked that financiers, bankers, and other conservative participants in the “free market” had acted so recklessly, against their rational best interests, and that the free market controls failed to prevent the disaster.

The recent presidential campaign provided many examples of behavior that insured bad results for the candidate.  How many “what was he (she) thinking?” moments were there in the primary and general elections.  Although the election proved the disastrous consequences of such stances, Republicans blinked and continued to act the same way as in Congress, insuring, in the opinion of many, that they would continue their party’s slide into ridicule and minority status.

In my posts I have tried to explain the conduct.  In the Sanford post, above, I referred to a news article in which psychologists called him an example of the “Type T” personality, the thrill -seeking, risk-taking person who is common in politics (and crime).  The intoxicating mix of adrenaline, testosterone and dopamine is irresistible to many of these (usually) men.  

Parenthetically, most of the news items, and opinions of these shrinks is that the phenomenon is most common in males — similar to serial killers, who are almost all male.  However, women are certainly not immune from risky self-destructive, impulsive behavior: look up Mary Kay Letourneu, and think of Diane Lane’s Oscar winning performance in “Unfaithful.” 

Now, I find that there is a name for it: AKRASIA, defined as the status of acting against one’s own self-interest.  It is a Greek word, of course, apparently first noted by Plato, in a dialogue in which his mentor Socrates tried to account for it. Later, Aristotle tried his hand, too.  

The name the Greeks gave it makes it sound like a disease.  You can understand why — they were all about REASON being the answer to all problems.  Like Spock, they deemed “illogic” to be bad.  They attributed akrasia to the appetites — giving in to desire, passion, that is, the impulses of the body overcoming the rational judgments of the mind.     

A related idea, called “hyperbolic discounting,” which sounds like something John Nash's twisted mind might have devised, describes the human tendency to take the first path even though reason suggests waiting for a future opportunity. Economic mathematicians have devised models and equations to predict what percent of people will jump now, and how many will wait.  

Moralists have also coped with the problem, ascribing it to a failure of will power.  This view sees it as a weakness, exemplified by addictive behavior — alcohol, smoking, drugs, sex, gambling — actions people continue despite knowing the self-destructive consequences.  

This view seems to ignore human nature, relying far too much on assumptions about reason and morality.  In my earliest post on the subject, I noted that my experience was that the tendency to act contrary to one’s own best interests is NORMAL, not perverse.  It is our expectations that are skewed.  We have been educated (by the Greeks and their students, who became our teachers) to accept that the rational, moral way is normative.  We punish deviation and are shocked by its appearance.  

The reality seems to be that we are hard-wired to take illogical, risky chances, even after we “know right from wrong”, and even after we have calculated the consequences of doing so.  

Just as the addict is trapped by chemicals in his brain, so too are the “Type T’s”.  I would argue that we all have “Type T” and addictive tendencies.  In my first post of this blog, I asked the reader to remember their first temptations to transgress:

“ . . . Think about it. Remember when you first looked down to your speedometer and saw “80.” You took your foot from the accelerator, your heart raced, you looked quickly in your mirrors. Seeing no CHP cruiser, what did you do? Breathe a sigh, get back to 65 or 55? Or smile slyly and speed up again? . . . you did wrong and got away with it. . . . 

“Remember when you were in school and you were warned that if you violated the rules you would be punished? But you did it anyway -- at least once: you didn’t do your homework one day and nothing happened. You told a joke at the back of the class, chewed gum, passed a note, listened to the radio, smoked ( a cigarette or a joint) in the bathroom, ditched a class, cheated on a test, brought a gun to school (well, probably none of you did that). Sometimes you were punished for things that others instigated or joined in.

“Remember the thrill of the feeling of dizziness at the fear of being caught?

“It actually began earlier. Your sibling got you into trouble or vice versa. Admit it, you got away with it more often than your parent knew. What did you think the next time you heard a parent say: “You better not stay up after 11, or else!”

“All these experiences affected your view of justice and success. 

But most of us didn’t like that terror we felt when our hearts raced, or we felt the dizziness of being sent to the principal’s office. We usually avoided the feeling when we sensed its onset. This is what the psychiatrist we have appointed for our clients call “Impulse control.” It is what our clients lack. They feel the thrill and want it again.

I think it is significant that criminal misbehavior is most extreme during adolescence. 

It is “normal” for teenagers to rebel against adult authority, test the limits, take unreasonable risks, act impulsively, feel alternately depressed and elated for no reason apparent to adults. They act impulsively, often self-destructively, do things that are “stupid” and not in their self-interest while acting inconsiderately and selfishly. They avoid responsibility and deny obvious facts. And they are adamantly assertive of their perception that life and all rules are “unfair.”  Adolescence would not be worthy of the name without these “experiments.” 

Yet, it continues into “normal” adulthood.  Some still drink and drive, others have unsafe sex, almost everyone buy impulsively --- consider EBay, or the Home Shopping Network.  It is not unusual but common for humans to act irrationally, against their better judgments.  

It is only a matter of degree to go from the “norm” to the excessive: the athlete who endangers career and the millions that he dreamed of and worked for all his life --- in order to get high with the homies; the woman who risks love, family, security --- for a fling with a delivery boy or student; the brilliant policy wonk who loses the presidency over an impulse to use the Oval Office as a bedroom.  

Capital Punishment - by W. S, Gilbert

“A Tale of Two Cities” by Charles Dickens: 

“. . . [T]he hangman, ever busy and ever worse than useless, was in constant requisition; now, stringing up long rows of miscellaneous criminals; now, hanging a housebreaker on Saturday who had been taken on Tuesday; now, burning people in the hand at Newgate by the dozen, and now burning pamphlets at the door of Westminster Hall; to-day, taking the life of an atrocious murderer, and to-morrow of a wretched pilferer who had robbed a farmer's boy of sixpence.”

Dickens wrote those words in mid 19th century, looking back on his country’s bloody history.  

The death penalty generates controversy in our time, but in other civilized societies, it has been the subject of satire as well as polemics.  Perhaps none have struck the nail on the head better than W. S, Gilbert, the librettist, who with his composer, Sir Arthur Sullivan, successfully skewered pomposity and hypocrisy and manners in a series of comic operas more than a hundred years ago.

As an example, perhaps their most famous operetta, "The Mikado," first performed in 1885, considers the subject of capital punishment as its central theme and holds the entire concept to joyful derision.  

In the mythical Japanese city of TitiPu, there is a law decreed by the ruler, the Mikado, which generates the action of the play.  The “stern decree” makes flirting a capital offense.  
As a nobleman, sings:

Our great Mikado, virtuous man, 
When he to rule our land began,
Resolved to try
A plan whereby
Young men might best be steadied.
So he decreed, in words succinct,
That all who flirted, leered or winked
(Unless connubially linked),
Should forthwith be beheaded,
  
This stem decree, you'll understand,
Caused great dismay throughout the land!
For young and old
And shy and bold
Were equally affected.
The youth who winked a roving eye,
Or breathed a non-connubial sigh,
Was thereupon condemned to die —
He usually objected,
Objected, objected,
He usually objected. 
And you'll allow, as I expect,
That he was right to so object.
And I am right,
And you are right,
And everything is quite correct! 

Realizing the severity of this law, however, a culprit who had been found guilty of the offense of flirting, a tailor called Ko-ko, is appointed to be the Lord High Executioner.  This remedies the problem for the time being, because it creates a legal anomaly — the executioner would have to slice off his own head first, which, as Ko-ko explains, would be inconvenient.
Ko-ko, having lucked into this exalted post, dreams of those who might merit the punishment more than he.

As some day it may happen that a victim must be found,
I've got a little list — I've got a little list
Of society offenders who might well be underground,
And who never would be missed — who never would be missed!
There's the pestilential nuisances who write for autographs — 
All people who have flabby hands and irritating laughs — 
All children who are up in dates, and floor you with 'em flat — 
All persons who in shaking hands, shake hands with you like that — 
And all third persons who on spoiling tête-á-têtes insist — 
They'd none of 'em be missed — they'd none of 'em be missed! 

There's the banjo serenader, and the others of his race,
And the piano-organist — I've got him on the list!
And the people who eat peppermint and puff it in your face,
They never would be missed — they never would be missed!
Then the idiot who praises, with enthusiastic tone,
All centuries but this, and every country but his own;
And the lady from the provinces, who dresses like a guy,
And who "doesn't think she dances, but would rather like to try";
And that singular anomaly, the lady novelist — 
I don't think she'd be missed — I'm sure she'd not he missed! 

And that Nisi Prius nuisance, who just now is rather rife,
The Judicial humorist — I've got him on the list!
All funny fellows, comic men, and clowns of private life — 
They'd none of 'em be missed — they'd none of 'em be missed.
And apologetic statesmen of a compromising kind,
Such as — What d'ye call him — Thing'em-bob, and likewise — Never-mind,
And 'St— 'st— 'st— and What's-his-name, and also You-know-who — 
The task of filling up the blanks I'd rather leave to you.
But it really doesn't matter whom you put upon the list,
For they'd none of 'em be missed — they'd none of 'em be missed! 

(For Jonathan Miller’s 1987 production, the “list” was updated, written and performed by Eric Idle, as Ko-ko:

There's weightlifters and bodybuilders
People of that sort
Bank robbers who retire to spend
The minute they get caught
Bishops who don't believe in God
Chief constables who do
All people who host chat shows
And the guests who's on them too
And customs men who fumbling through your underwear insist
I don't think they'd be missed
I'm sure they'd not be missed

There's the people with pretentious names
Like Justin, Trish, and Rob
And the gynaecologist
I've got him on the list
All muggers, joggers, buggers, floggers
People who play golf
They never would be missed
They never would be missed
   
All waitresses who make you wait
Accountants of all kinds
And actresses who kiss and tell
And wiggle their behinds
And pouncy little singers who to entertain us try
By dressing up like women and by singing far too high
And who on close observance must be either stoned or pissed
I don't think they'd be missed
I'm sure they not be missed
    
There's the beggars who write letters
From the inland revenue
And the gossip columnist
I've got him on the list
All critics and comedians and opera singers too
And none of them be missed
And none of them be missed
    
All traffic wardens, bankers,
Men who sell Venetian blinds
All advertising chappies
And Australians of all kinds
And nasty little editors whose papers are the pits
Who fill their rags with gossip
And huge and floppy... ritz.
And girls who sell the stories
Of the Tories they have kissed
But you must have got the gist
'Cause none of them be missed

(Original song by: Gilbert and Sullivan, New lyrics by: Eric Idle)

A crisis arises when Ko-ko receives a letter from the Mikado demanding to know why no executions have been carried out.  He insists that one be done before he arrives in a month.  
Ko-ko fears being the victim, imagines the result:

To sit in solemn silence in a dull, dark dock,
In a pestilential prison, with a life-long lock,
Awaiting the sensation of a short, sharp shock,
From a cheap and chippy chopper on a big black block!

The plot, as always, thickens:
Fortunately, he finds a willing substitute, Nanki-Poo, (a “wandering minstrel” - playing "second trombone") who is insistently suicidal due to losing his true love, Yum-Yum, who is betrothed to none other than Ko-ko, himself.  Seeing a reprieve for himself, Ko-ko persuades Nanki-Poo to be the first to be executed, pointing out that suicide is also a capital crime.  Offered thirty days of marriage to Yum-Yum before his beheading, Nanki-Poo is overjoyed.  
A glitch in the plan is later revealed when Ko-ko discovers a forgotten law that requires that the wife of anyone beheaded for flirting must be buried alive with her husband’s decapitated body. This law, we are told, had never been applied because Victorian husbands never flirt!
Told that she is faced with being doomed to a “stuffy death,” Yum-Yum sings,

Here’s a how-de-do!
If I marry you,
When your time has come to perish,
Then the maiden whom you cherish
Must be slaughtered, too!
Here’s a how-de-do!
    
To save his lover from such fate, Nanki-Poo reverts to his initial plan of imminent suicide, to which Ko-ko desperately protests: 

“Why, hang it all, you’re under contract to die by the hand of the Public Executioner in a month’s time! If you kill yourself, what’s to become of me? Why, I shall have to be executed in your place!”  He continues, “Now look here, you know—this is getting serious—a bargain’s a bargain, and you really mustn’t frustrate the ends of justice by committing suicide. As a man of honour and a gentleman, you are bound to die ignominiously by the hands of the Public Executioner.”

Ko-ko, however, is unable to go through with it.  He has never killed a “blue-bottle,” was hoping the position of High Executioner was merely “nominal”.  Thinking he had a month to prepare – beginning with small animals and “working my way through the animal kingdom,” he finally weeps: “I can’t kill you—I can’t kill anything! I can’t kill anybody!

The dilemma is alleviated when Pooh-Bah, who holds every other office in the city, agrees (for a hefty bribe) to create a death certificate certifying that Nanki-Poo has been executed.  Meanwhile the happy couple run off to be married and flee to England.

When the Mikado arrives, he claims to have designed more appropriate punishments for wrong-doers for the entertainment of his subjects:

A more humane Mikado never
Did in Japan exist,
To nobody second,
I’m certainly reckoned
A true philanthropist.
It is my very humane endeavour
To make, to some extent,
Each evil liver
A running river
Of harmless merriment.

My object all sublime
I shall achieve in time—
To let the punishment fit the crime—
The punishment fit the crime;
And make each prisoner pent
Unwillingly represent
A source of innocent merriment!
Of innocent merriment!

All prosy dull society sinners,
Who chatter and bleat and bore,
Are sent to hear sermons
From mystical Germans
Who preach from ten till four.
The amateur tenor, whose vocal villainies
All desire to shirk,
Shall, during off-hours,
Exhibit his powers
To Madame Tussaud’s waxwork.

The lady who dyes a chemical yellow
Or stains her grey hair puce,
Or pinches her figure,
Is painted with vigour
With permanent walnut juice.
The idiot who, in railway carriages,
Scribbles on window-panes,
We only suffer
To ride on a buffer
In Parliamentary trains.

The advertising quack who wearies
With tales of countless cures,
His teeth, I’ve enacted,
Shall all be extracted
By terrified amateurs.
The music-hall singer attends a series
Of masses and fugues and “ops”
By Bach, interwoven
With Spohr and Beethoven,
At classical Monday Pops.

The billiard sharp who any one catches,
His doom’s extremely hard—
He’s made to dwell—
In a dungeon cell
On a spot that’s always barred.
And there he plays extravagant matches
In fitless finger-stalls
On a cloth untrue
With a twisted cue
And elliptical billiard balls!

When presenting the Mikado with proof of the completed execution, Ko-ko is forced to describe in detail the performance, which he does, with excessive imagination:

The criminal cried, as he dropped him down,
In a state of wild alarm—
With a frightful, frantic, fearful frown,
I bared my big right arm.

I seized him by his little pig-tail,
And on his knees fell he,
As he squirmed and struggled,
And gurgled and guggled,
I drew my snickersnee!
Oh, never shall I
Forget the cry,
Or the shriek that shriekèd he,

As I gnashed my teeth,
When from its sheath
I drew my snickersnee!

CHORUS.
We know him well,
He cannot tell
Untrue or groundless tales—
He always tries
To utter lies,
And every time he fails.

The exaggerated descriptions become more elaborate.  Pooh-Bah elaborates with a grisly tale:

Now though you’d have said that head was dead
(For its owner dead was he),
It stood on its neck, with a smile well-bred,
And bowed three times to me!

It was none of your impudent off-hand nods,
But as humble as could be;
For it clearly knew
The deference due
To a man of pedigree!

And it’s oh, I vow,
This deathly bow
Was a touching sight to see;
Though trunkless, yet
It couldn’t forget
The deference due to me!

The Mikado is quite pleased with the accounts, until he discovers that the victim was in fact, his only son and heir to the throne, who had fled the prospect of marrying a Margaret Dumont-like contralto (the dreaded “daughter-in-law elect”).  Now, he reluctantly informs Ko-ko and his “corroborative” companions, that they must be executed as well — after lunch.  

When the new victims assert claim in mitigation that they had been ignorant of the identity of the supposedly executed person, the Mikado is distressed, agrees to change the unjust law — at the next session!

Meanwhile, he decries the injustice of having to excuse the guilty “A” while punishing  the innocent “B”. 

See how the Fates their gifts allot,
For A is happy—B is not.
Yet B is worthy, I dare say,
Of more prosperity than A!
Is B more worthy?
I should say
He’s worth a great deal more than A.

Yet A is happy!
Oh, so happy!
Laughing, Ha! ha!
Chaffing, Ha! ha!
Nectar quaffing, Ha! ha! ha!
Ever joyous, ever gay,
Happy, undeserving A!

If I were Fortune—which I’m not—
B should enjoy A’s happy lot,
And A should die in miserie—
That is, assuming I am B.

But should A perish?
That should be
(Of course, assuming I am B).
B should be happy!

Oh, so happy!
Laughing, Ha! ha!
Chaffing, Ha! ha!
Nectar quaffing, Ha! ha! ha!
But condemned to die is he,
Wretched meritorious B!

Ko-ko, as any great defense lawyer, solves the problem.  First, he agrees to marry the jilted and fearsome “daughter-law-elect,” then devises a brilliant defense that persuades the Mikado:

“It’s like this: When your Majesty says, ‘Let a thing be done,’ it’s as good as done—practically, it is done—because your Majesty’s will is law. Your Majesty says, ‘Kill a gentleman,’ and a gentleman is told off to be killed. Consequently, that gentleman is as good as dead—practically, he is dead—and if he is dead, why not say so?”

The opponents of capital punishment could take lessons from Gilbert and Sullivan.

Georgia Death Penalty Shame

The following editorial appeared this morning in the New York Times.:


"Robert Wayne Holsey, on death row in Georgia for killing a police officer, is seeking a new sentencing hearing because he received ineffective counsel. He should get one. His own lawyer told a Georgia trial court reviewing the case that he “probably shouldn’t have been allowed to represent anybody” while he was ostensibly providing a defense.

"The lawyer said that he drank a quart of vodka every night during the trial and that he was also preparing to defend himself against possible disbarment for stealing client funds. Not surprisingly, the trial court ordered a new sentencing hearing, saying that “no one can seriously believe that the petitioner received the constitutional guarantees of the Sixth Amendment right to effective assistance of counsel.”

"Astonishingly, two other courts have since disagreed in rulings that seem equally contemptuous of defendants’ rights to effective counsel. The State Supreme Court said that Mr. Holsey failed to show that the trial would have come out differently if his lawyer had done his job properly. A three-judge panel of the United States Court of Appeals for the 11th Circuit ruled 2 to 1 that Mr. Holsey failed to prove the State Supreme Court’s decision was “unreasonable.”

"The dissent from that decision explains why both rulings are wrong. At Mr. Holsey’s trial, the defense made only cursory mention of the beatings he suffered as a child and the fact that he had been judged mentally retarded — mitigating circumstances that could have changed the outcome. Georgia requires a unanimous vote to impose the death penalty; given the evidence, one or more jurors might have voted otherwise.

"At the review hearing in the Georgia trial court, a new defense team presented evidence that neighbors called Mr. Holsey’s home the “Torture Chamber” and that his mother beat him as a boy so badly with belts, extension cords and broom handles that he sometimes slept outside to avoid her. His mental retardation (his I.Q. has been measured around 70) was “a catastrophic disability” and his “social adaptation” as an adult was judged to be equivalent to that of an 8-year-old.

"To the state and federal judges who ruled against Mr. Holsey, this powerful additional evidence was simply redundant: It would not have changed the case’s outcome even if his lawyer had been competent enough to present it at the initial trial. The dissent rightly disagreed; Mr. Holsey must be allowed a new hearing so a jury with all of the evidence can decide as the law and justice require."

THE TRUTH ABOUT HEALTH CARE

You do not have to be a member to take advantage of AARP's expertise about heath care. They have published many docs explaining the Affordable Health Care Act and how it affects or does not affect virtually every American. 

Here is what I found out. 

First, for current seniors, Medicare benefits are the same.  Second, you can keep your current doctor if you wish. Third, many preventive screenings, like colonoscopies and mammograms are FREE.  Fourth, prescription drugs costs will be gradually reduced as the gap known as the "doughnut hole" of Part D is closed by 2020. 

Taken together, the cumulative measures of the law will SAVE the average Medicare beneficiary $4,181 over 10 years, those with high drug costs even more, up to $16,000.

There will be more FOLLOW UP CARE post hospitalization. Hospitals will be monitored for excessive re-admissions which indicate incompetence or "churning" for profits. Post op follow ups with home nursing care will be increased.  (This is the provision that stirred the scare talk about "death panels" that decide to kill your grannie.) 

The costly  Medicare Advantage plan will be more costly and doctors and hospitals will have adjustments to their payments under that plan. Higher income beneficiaries will continue to have higher premiums. 

EMPLOYER COVERAGE PLANS stay the same. But consumers will have a choice to go to a different plan provided through an EXCHANGE set up in each state where companies will compete for participants, reducing costs. 

Low and middle income ($44, 680) people can receive SUBSIDIES as refundable tax credits to join an exchange. 

For people not covered by medicare, medicaid or other insurance plan, Failure to buy insurance by Jan. 1, 2014 means a tax imposed on tax return. EXEMPT are people with low income. The penalty in 2014 is $95 or 1% of income. It will increase over time, affecting tax refunds BUT NOT A CRIME. 

MEDICAID which is for low income people will depend on the states which defines eligibility rules. The intent was to add 16 million to the rolls but the Supreme Court ruled that states may opt out and at least 12 Republican governors have refused to join. 

State health insurance exchanges set up to provide cheaper plans plus refundable tax credits will help some low and middle income people get covered. 

If a state fails to set up an EXCHANGE the federal government may do so.

Insurance companies will no longer be permitted to deny coverage or charge more or reduce benefits for people with PRE-EXISTING CONDITIONS. This will affect an estimated 129 million people.  They cannot any longer charge women with higher premiums than men. Premiums charged by  Insurance companies will be closely monitored and rebates will be required for excessive charges. 

High income people ($200,000 for one or $250,000for couple) will pay higher Medicare hospital insurance on income and earnings. 

Giving America The Business

President Obama recently noted:

"Gov. Romney's main calling card for why he thinks he should be president is his business experience. He's not going out there touting his experience in Massachusetts. He's saying, 'I'm a business guy. I know how to fix it.' And this is his business.

And when you're president, as opposed to the head of a private equity firm, then your job is simply not to maximize profits. Your job is to figure out how everybody in the country has a fair shot.  If your main argument for how to grow the economy is 'I knew how to make a lot of money for investors,' then you're missing what this job is about."

I have been reading "Freedom From Fear", historian David M. Kennedy' volume about the era between 1929 and 1945. He begins with the almost tragic figure of Herbert Hoover, who by his résumé as miner, engineer, millionaire, philanthropist, administrator of post WW I relief that was credited with saving many thousands of Europeans from starvation, as well as respected tenure as Secretary of Commerce, should have been a lock to deal with the economic crisis that eventually cost him his reelection in 1932. Hoover's failure was due in no small measure to his stubborn faith that the "free market" would self-correct. Businessmen knew best. As his predecessor, Calvin Coolidge, confidently said, the business of America is business. But by November, 1932 the country was nearly out of business. And so was the Republican party. 

For the next eight years, FDR fought to reignite the economy, reduce the disastrous unemployment which ran higher than 25% at the beginning and remained high despite the increasing optimism that caused his sturdy popularity. 

In 1940, FDR sought an unprecedented third term. He was thought to be politically vulnerable, not just for arrogantly challenging George Washington's two term limit precedent, but also because the New Deal had lost much of its glamour. The unemployment rate, though almost cut in half from its disastrous high in March, 1933, was still a horrible 14.5% having risen again midway through FDR's second term during the double dip known as the Roosevelt Recession. 

In foreign affairs, things were, if possible, even worse for FDR's prospects. Public opinion was still solidly isolationist, most Americans  reacting to the rise of Fascist Dictators in Europe with studied indifference. (Polls showed apathy or actual opposition to proposals to allow increased immigration from Europe - especially German Jews who were in grave danger from the Nazis). 

For years as Germany became overtly aggressive, FDR had made feeble attempts to educate the public to the threat, but had failed miserably. The issue tore apart his famous coalition that had carried him to his great wins. Progressives had turned so far inward after the disillusionment of WW I that they allied with the nationalistic Right to tie FDR's hands and prevent any attempts to join with other democracies to challenge Germany or Italy. A series of Neutrality Acts prevented the Government or private businesses from selling arms to any warring party.

But by the summer of 1940, The public was shifting. Poland had fallen, blitzkrieg in the west had lost Norway, Holland, Belgium, then France, and it looked like Britain would be next. The Atlantic suddenly didn't look wide enough after all. And the Pacific, too, was shrinking. Japan controlled most of China, and the newsreels vividly showed "the rape of Nanking" which was not a metaphor, but literally, reports of widespread vicious rapes and slaughter of civilians by Japanese troops. 

The leading Republican candidates, Robert Taft and Arthur Vandenberg, were rigid isolationists. The powerful king makers of the party, who in those days were mostly eastern establishment types, worried that the times had passed them by. Sensing a real chance to finally get rid of FDR and to halt the New Deal, they turned to Wendell Willkie. 

Willkie, educated as a corporate lawyer, had been president of Commonwealth & Southern, a holding company that controlled electric power utilities around the country. He had fought the TVA, the government power project that directly affected his investors, arguing strenuously, and to many, convincingly that private enterprise was preferable to government involvement. He was pushed by powerful publishers, including Henry Luce, whose Time magazine was influential. In those days, the national and local media was definitely not "liberal". Hearst, McCormick, and other media moguls (they owned radio stations too) were ardent anti-New Dealers, isolationist, Republican in editorials and biased reporting. The movie moguls, led by the most powerful, Louis B. Meyer of MGM, were also conservative Republicans. 

Willkie had his own problems that may sound familiar in 2012. In his past he had supported many New Deal programs, had been a vocal "internationalist" and was therefore viewed skeptically by the right wing of his party. 

In the campaign, Willkie moved to the right, accepting an isolationist stance forced by radicals of his party  FDR also denied any desire for involvement in the European war, promising never to send American boys overseas (neglecting to add the reasonable condition: "unless we are attacked"). Willkie did not oppose the conscription law that instituted a draft, for "preparedness". 

Both candidates suffered from an enthusiasm gap from traditional supporters. FDR pulled out the victory, but by a much smaller margin  than his wins in '32 and '36.  Political observers ascribed the vote to Willkie's weakness as a candidate and the tendency of voters to stick with the experienced avuncular leader with a probable world war looming. 

In his third term, FDR was able to persuade the country to prepare for the war, to provide aid to the allies, to activate American industry.  It was the federal government that financed and regulated the greatest economy the world had ever seen, won the war, secured the peace with the Marshall Plan, and produced the longest period of sustained prosperity ever. 

This year the Republican Party wants to reverse history, to bring us back into the Dark Ages.

"Stand Your Ground": Prevent Injustice in Florida

Guest Post by Bill Collins:                            I tried to ignore it but when I heard  Chief of Police Billy Lee of the Sanford Police Department explain why no arrest had been made of Mr. Zimmerman, the shooter of Trayvon Martin I could no longer resist.

So I called his office and spoke with a woman who claimed to be his assistant. She asked me if I had read the legislation involved, (Florida Statute Title XLVI chapter 776 et. al.)

I said I had,  and that it was more than the chief had apparently done, and that I had a question for the chief. She took my contact information, but I guess
he is busy with other matters.

It is unfortunate that the news media, including such liberal and progressive outlets like MSNBC that prides itself on accuracy has also presented so called experts , who have made matters worse. Their explanations make me wonder have they read the statute ? Their focus has been on what they call "stand your ground" provision of section 776.012 (which is not unique or unusual except for its reference to
section 776.013): 
"... However, a person is justified in using deadly force and has no duty to retreat if : (1.) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily injury to himself or herself or another,or to prevent the imminent commission of a forcible felony; or (2.)
Under those circumstances permitted pursuant to sec. 776.013 For clarification Chapter 776 of the Florida Statutes is entitled "Justifiable Use of Force".

The chapter contains 11 subsections. Two are pertinent here. The above referenced section and  776.013 entitled " Home Protection; use of deadly force; presumption of fear of death or great bodily harm."

This is where the Florida statute  deviates from traditional criminal law. When self defense is used, traditionally it is raised by the accused or defendant in a criminal proceeding. The question of whether the shooter, as in this case Mr. Zimmerman had a reasonable fear of imminent death or great bodily injury would be raised by him in the trial, and ultimately would be a question for the jury to decide.

Section 776.013 requires that the prosecution negate the existence of  self defense  in his presentation of the case.

Section 776.013 Home Protection; use of deadly force; presumption of fear of death or great bodily harm.

Unfortunately there is no short cut , you must read the statute to understand why there is so much confusion.
(1,) A person is presumed to have held a reasonable fear of death or great bodily harm to himself ... when using defensive force that is intended or likely to cause death or great bodily harm to another if: (a.) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered a dwelling or residence ...

The irony here is that section 776.013 (Home Protection) has no application at all since the foundational elements are missing, to wit: the person against whom deadly force was used had to have been in the commission of a burglary. Not only is there no evidence that Trayvon Martin had committed any crime; there are no facts which support a reasonable belief that Trayvon was committing or had committed a burglary.

This case should be governed by the normal rules of self defense as contained in section 776.012 referenced above. Further, self-defense is not available to Zimmerman if he was the aggressor. By all accounts he does appear to be just that.

As for Billy Lee, his misapplication of the law to the facts of this case and his failure to arrest Mr. Zimmerman can only be attributed to massive incompetence or dishonesty. I was hoping for the former but I fear it is the latter.

William Collins

The Politics of Pogo Possum

Some news items gave me a nagging itch.

One, some segments of the "Occupy Movement" declared for Ron Paul, exposing the anti-government at all costs attitude that lies beneath much populist fuzzy thinking. They proudly quote the mad "Network" rant, "we're mad as hell and we're not gonna take it any more!".

A second article quoted some Hispanic leaders as warning that their voters were angry about the deportation policy of the the administration.

Another item noted that emails which had been exposed which fueled doubts about man made global warming were not put out by deniers, but rather by activists on the well meaning left who feared that third world economic progress would be stalled by climate change policies.

Remember Ralph Nader.

"I'm not a member of any organized political party. I'm a Democrat." Will Rogers

That accurately describe a problem for liberals in any political season and now poses obstacles for our candidate, the now and (hopefully) future president.

No one can be elected by hewing to strict ideologically pure liberal (or progressive, if you prefer) rhetoric or programs. Even FDR, who is seen by the right as the epitome of a dangerously liberal president, wasn't deemed radical enough for many on the left of his own party.

The Democratic Leadership Council was formed by the right wing of the party to correct the perceived failure of tired left ideas that led to losses by McGovern, Dukakis, and Mondale. Clinton and Gore rescued the so-called Reagan Democrats by triangulating, co-opting conservative talking points: welfare reform, balanced budgets, free trade, tough on crime, pro death penalty, strong defense.

Obama has done as well as he could with the tools at his disposal and given the obstacles thrown in his path. Like FDR, he had to salvage a corrupt capitalist system from itself. As in the 1930's rapid and complete recovery of the economy is not within his power to achieve.

His problem is that as a scruples moderate, he is dealing from a tepid ideology that doesn't fit with our angry and polarized public's notion of the "passion" they want, either from the left or right.

His solution may be that his opposition quotes Pogo: "We have met the enemy and he is us." Walt Kelly (Pogo).

My First Death

Almost a quarter of a century ago I lost a death penalty trial. It was to be the only such loss in my career. I was to defend in many more cases in which the prosecution sought to execute my client, but none would result in death verdicts, although many would be deemed more "deserving" of punishment by death than the one who had been condemned to die.

The client in the one case I lost was named Mitchell Sims. He was accused of killing a Domino Pizza delivery man and robbing the store. He had come from South Carolina with his accomplice, Ruby. At the time of his California trial, he had yet to be tried for killing two Domino employees there. Eventually, he would be convicted there too, sentenced to death as well.

Although the crimes Sims was convicted of committing were horrible, they were by no means the worst crimes which my capital clients have committed.

One killed two undercover DEA agents in the course of a drug deal / robbery.

Another executed four "innocent" witnesses during another robbery of a drug dealer.

Yet another beat to death a middle aged woman who had MS and a few months later stomped to death a seventy-year old man who was thought to be wealthy.

Possibly the worst was a young man who, with his fellow gang members went on a summer rampage, killing eleven people.

In all of these cases, juries voted for life sentences instead of death.

Mitch Sims has been on death row in San Quentin since 1987 and all of his appeals have been exhausted of the issues surrounding "whether" he should be killed. What remains are arguments about "how" it should be accomplished.

Thirteen people have been executed since then, the last in 2006. At that time a moratorium (ironic) was declared when judges objected to the details of the manner of execution by lethal injection, which is deemed to violate the Eighth Amendment’s prohibition against punishments that knowingly cause pain. Sims’ habeas counsel has now (December 16, 2011) succeeded in obtaining another judge’s halt to the proceedings by questioning the drugs which should be used to kill him.

A week later, California Supreme Court Chief Justice Tani Cantil-Sakauye stated her opinion that the system of capital punishment in this state is not working. It is "ineffective" and "costly," imposing an enormous burden on the justice system that outweighs the benefits.

Within days, The L.A. Times published letters from outraged death penalty proponents, attacking the Chief Justice. "Endless appeals" are to blame, the writer complains.

This reaction is a typical argument. It ignores the enormous number of convictions which have been overturned after DNA or recanting witnesses or other new evidence was uncovered which proved that the original guilt / death verdicts had been faulty. It is now clear that innocent people in this country have been executed.

Well, Mitch Sims is not "innocent" in the sense of guiltless. But the capital law in this country doesn’t stop with the crime. In every state, the jury is required to consider not just the facts of the crimes, but also the life of the accused as well as the lives of the victims. In other words, no matter how horrible (or "heinous") the crimes appear to be, no juror is supposed to vote for death without considering "mitigating factors" most of which relate to the life of the killer.

In the cases I mentioned, all of the defendants had troubled lives. Broken homes, abusive parents, poverty, mental issues. 

But none was as bad as Mitch Sims’ life. It was like a Dickens southern gothic nightmare. His drunken stepfather serially raped Mitch’s sister and forced Mitch to have sex with his mother. Mitch medicated his clinical depression with booze, and his self-hatred in self-destructive actions.

So why was Mitch Sims sentenced to death while the others were not?

After the verdict a juror sought me out. She felt guilty about her death verdict and wanted to set up a trust fund for Mitch’s son, "to stop the cycle of damage". She told me that she voted for death because, although she sympathized with his horrible background, she couldn’t relate it to the cold blooded manner of his crimes. If he had killed his stepfather, or even if he had committed sex crimes, or his family, she and others on the jury would have spared his life.

That was my failure. The law and reason doesn’t demand a nexus between the background and the crime for it to be mitigating enough to vote against death. It is not a cause and effect relationship. It represents our society’s judgment that lives should be measured in their entirety rather than the moments of criminal acts.

In all of the other cases, the jurors "got it". I was able to present facts, experts, arguments, or something else that even the jurors couldn't explain, to justify a non-death verdict.

There is also a concept that the courts have given lip service to but which has been ignored in practice. It is the notion of "proportionality". This means three things. First, it means that the sentence should be proportionate to the crime. For instance, should someone be executed for crimes other than murder? The second idea relates to consistency in enforcement. Crimes committed in Los Angeles should be prosecuted and punished the same way as in Riverside. Even within L.A. County, the results vary. Jurors in Pasadena (where Sims was tried) and the central L.A. are different and prosecutors know it.

Although the appellate courts promised to consider these factors, in practice they have not faced the issue with integrity.

When it comes to non-capital crimes, the courts have been inconsistent. The Three strikes law, which permits life sentences for petty crimes, has been upheld.

But death is different, the courts have repeatedly claimed. The Supreme Court keeps saying: "There is no question that death as a punishment is unique in its severity and irrevocability."

And: "When a defendant's life is at stake, the Court has been particularly sensitive to insure that every safeguard is observed."

Another issue that lends doubt about the fairness of the death penalty is its racial bias. Statistically, it is clear that African Americans are more likely than whites to be executed, especially where their victims are not black.

All of these issues complicate the process that is supposed to be rational, rather than "arbitrary and capricious." 

And that is not all. The random luck of the skill and ethics of the detectives, experts, prosecutors, defense lawyers, judges, and many other unknown variables bear on the result.

California, which clings to its claims of diversity, is an equal opportunity state, fearful of executing only minorities. Mitchell Sims is white and therefore is a leading candidate for immediate execution as soon as the moratorium is lifted and the governor yields to the inevitable pressure to go forward into hell.

Does Jerry Brown have the guts to do the right thing and stop it? 

He could send Mitch Sims back to South Carolina. That state has a tradition of law and order, except when it is seceding from the Union. Other governors (as in Illinois and Oregon) have acted on doubts about the system by courageously stopping it, at least temporarily.

I hold my breath.