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Monday, June 20, 2005

Intro to Borenstein's Law

I write today as one who has spent 35 years as a criminal defense lawyer -- almost 20 as a public defender, and the rest in private practice. Ive spent most of my adult life doing this. I’ve been in it since the Manson case, in which I had a small role as a law clerk for the LA Public Defender. I’ve done misdemeanors, juvenile, appeals, felony trials approaching 100, including fifteen murder and four capital trials, three through penalty. I wrote the appellate briefs, argued and represented Celestino Carlos in his capital case; Mitch Sims, for the Domino pizza murders; and William Wang, who killed two DEA agents, which inadvertanetly helped elect George Bush The First.

For almost all that time I have been forced to think about the BIG issues: I’m not talking about the morality of capital punishment, or racial and social injustice here. I am talking about more important issues — rather, more immediate concerns and certainly, more readily soluble — well, at least I’ve solved them and I’m now going to give you the benefit of all my years of deep thinking.

The most important problem I’ve pondered is why our clients act the way they do?

Why do they drop the dope on the street right in front of the oncoming Black and White?
Why do they drop the rest in the back seat after they are arrested?

Why 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?

Why 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”?

Why do they wear a ski mask, gloves, Raiders jacket, but leave their wallets at the scene of the crime?

Why keep credit cards and wallets of the victims in the trunk of the stolen car in which they have just had an accident?

Why to they turn down the terrific plea bargain we’ve labored so hard to wangle?
Why 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?

Why do they insist on testifying when it is the worst strategy?
Why do they testify that they have “never even seen drugs” after we successfully suppressed impeachment on 6 prior possession convictions?

We have all had these experiences of frustrated wonderment, over and over, and they have driven many a good lawyer into premature maternity, or civil life. Ironically, civil lawyers will tell you similar (though usually with not as disastrous consequences) tales of clients who act stupidly, ruining their good cases, turning down the best settlement for a certain loss.

I remember a story told by a renowned acquaintance, Charlie Gessler. His client was accused of a robbery. After jury selection, on the day the victim was to testify, his mother appeared with the clothes her son asked her to bring for him to wear in court: a purple jumpsuit which perfectly matched the description given by the victim to police on the night of the crime.

If we can understand this behavior, maybe we can hope to change it. At the very least, maybe in understanding the reasons for it, we can have some peace of mind when our clients screw up our cases.

Off the bat, I want to get one thing out of the way: I reject the explanation that they do dumb things because they are stupid. First, no one can be so stupid so consistently. Second, “stupid” is too vague a word, and often too mild to apply to the way our clients often act to hurt their cases. Third, my experience is that even “smart” people hurt themselves by doing dumb things. So it is not a useful conclusion. It doesn’t answer “Why?”

I figured out why. But it is not going to be easy to explain such a complex behavior.

Start this way. On the imaginary highway of life, our clients have been driving as we all have, toward a vague destination of happiness. There are many turnoffs, alternate routes on this highway. They see the signs warning State Prison, bear left” or “Death Row 395 miles”, or “Straight Life next three exits”.

Usually, they mean to go the good way; but you know how sometimes we see signs and get an impulsive feeling. We would like to take the road that says “Beach Cities” or “Lush Life”, but realize we’d better stay on the road or we will be late for dinner or for work?

Well, for our clients, no matter what their good intentions, every time they take a turn, it is one that leads them in the wrong direction, into trouble. No matter which turn they take, it inexorably leads them to jail, court, state prison, and for a chosen few, death row.

In other words, they are bound to make the wrong choices in life, too often give in to the impulse for immediate pleasure or simply, “drama.” Looked at this way, a greater puzzle is why some of our clients do make the right choice once they get to court. Many do take the good deal, take our advice.

It boils down to what I have called Borenstein’s Law: our clients are more likely than others to act in ways contrary to their best interests. That is how they have become our clients and that is why they often lose their cases, and come to a bitter end.

And in reality, most of us have acted impulsively against our best interests at one time or another. Mostly, we get away with it. Drink and drive, unsafe sex, cheat on exams. Adolescence would not be worthy of the name without these “experiments.” An athlete endangers career and the millions that he dreamed of and worked for all his life in order to get high with the homies. A man risks love, family, security for a fling. He might even lose the presidency over it.

Which brings us to a deeper question: why don’t our clients learn from their bad experiences with the law? Why aren’t they deterred by terrible consequences they know or should know are to come from misbehavior?

To understand this profound question, one needs patience; the patience to follow my reasoning a while until it makes sense.

When I was in college I took Psych I, the survey course. In my textbook there were many experiments done by the behavioral scientists, trying to use scientific method to plumb the depths of human behavior. There was one experiment in the book that has stuck with me as revealing a great Truth of Life. It was called “The Executive Monkey”. There was a picture of one of those poor scrawny Rhesus monkeys, with electrodes attached to his brain, strapped to a sterile metal existence in front of a devilish machine. He faced a green button and a red button. If he pressed the green button within a few seconds after it lit up, he received food. If he failed to press the red button in time he received a mild, but annoying shock. He learned rather quickly to do the right thing and managed to eat often and avoid pain. Then, his Gods began to torture him. Sometimes when he pressed the green button, he got no food. Other times, despite pressing the red button in time, he still got a shock. Sometimes he got a shock instead of food when he pressed the green button. Sometimes he got food even if the green button did not light. All combinations in random were applied. The monkey got an ulcer and died.

The lesson, of course, was obvious. In life, sometimes you press all the right buttons and all the wrong things happen. Sometimes it doesn’t work that way. (One of my favorite movie lines was spoken by the wise old Chief in Little Big Man who one day prepared his death bed, uttered encantations and prayers, and laid down to die. After some hours, it began to rain. He rose and walked away, muttering, “Sometimes, the magic works; sometimes it doesn’t.”)

Usually, you can’t figure out what the difference is, not enough to predict whether and when it will happen again. It is what causes anxiety and uncertainty in all of modern humans; it accounts for cynicism about all of our institutions. But it also has an application to explain the behavior — or more accurately, misbehavior — of our clients.

I am talking about “behavior modification.” This was the bright idea of those behavioral scientists who had read all those monkey studies in my textbooks. They concluded that human behavior could be corrected, channeled toward right behavior by a system of consistent and appropriate positive reinforcement for good behavior and negative reinforcement for bad behavior. It has been applied to child rearing: kisses and hugs when Susie uses the potty, and immediate, firm and appropriate expressions of disapproval when Susie clouts Bobby with the Tonka truck.

I knew a judge who was legendary in LA for his attempts at applying this doctrine with probationers. He took an active role in supervising probation conditions. He demanded that DPO’s immediately report violations. Never hold them “in abeyance,” he ordered. He carefully considered the seriousness of each violation and meted “appropriate” sanctions for every one: a missed drug test, a dirty test, a failed visit, a misdemeanor arrest, all dealt with by the judge after considering the probationer, the crime and the transgression. He was despised by DPO’s, SDPO’s and the attorneys assigned to his court because every day was filled with petty PV’s and he took every one seriously. He kept people on probation for many years, imposed creative but absurd sounding conditions: a shoplifter ordered to wear mittens, a juvenile to report to his PO’s office every day after school to do his homework after showing his PO his book which every teacher had autographed to prove class attendance. When one juvy client protested that the route to his PO’s office led through rival gang territory which he was ordered to avoid, the judge examined his Thomas Guide, devised an alternative route and made it a condition of probation that he take it -- every day.

My conclusion was that, as exasperating as this judge was to all of us, he was on the right track. If every judge took the same pains of attention to detail with every probationer, and the probation office had the resources to provide the necessary enthusiastic supervision, probation would have worked in much higher numbers than it did, even in days before it was essentially scrapped as a tool of rehabilitation and redesignated as a collection agency.

But of course, that was never done. The cost and commitment of the system would have been too high; higher than the society was willing to pay. It seems the costs of crime are more tolerable: more police, courts, jails.

So how does this help us to understand why our clients act in conformance with Borenstein’s Law?

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 were our monkey: you did wrong and got away with it. The next time you might have gotten a ticket for going 32 in a 30 zone, or not making a full stop.

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.”

Sound familiar? In a real sense, our clients are adolescents at 25.

So the first corollary to Borenstein’s Law is that our clients do not fear the adverse consequences of their actions; they either do not believe such consequences will occur or they crave the danger. The risk of punishment for bad behavior does not outweigh the rush.

In another sense, we all take risks in life. Risk taking is a good and necessary thing. It is what we do when we fall in love, give ourselves emotionally to a mate, have a child, or in our cases, choose a career with responsibilities for another’s life. There are many who act impulsively in making these choices; they usually wind up in divorce court, bankruptcy court, dependency court rather than criminal court. They often land on a therapist’s couch, sometimes over and over again. They often do other things our clients do: they abuse self-medicating substances, abuse themselves and those they are trapped with.

Self-destructive behavior is not exclusive with our clients, but it is a hallmark of their actions.

I represented a client charged with a capital offense who was a classic example. His crime spree was the culmination of a ruined life of self-hatred. He was classified by the shrink I had appointed as “antisocial” meaning that he had no conscience and concern for the value of human life. It was inaccurate. He had too much conscience, which caused him to hate himself, and to devalue his own life and to try to throw it away along with other meaningless lives. Nonetheless, he allowed me to persuade him to permit me to present a defense in both guilt and penalty phase, though it was embarrassingly revealing of his horrible past.

While we picked the jury — it was under the Bird court rules of endless individual voir dire so we knew each juror intimately. When the panel was all sitting together in the later stages of selection, after we had eliminated all the clearly pro and anti death prospects, during a recess I asked him for his thoughts about the jurors. He had not taken an active part in voir dire, taking few notes and not reading any of the questionnaires. But I was curious about his instincts about the panel in the box at the time. Based on only their looks, his occasional eye contact with them from his place at the table, and their answers in court, he gave the numbers of those he liked and those he did not. Later, I compared his choices with my gradings. As you would expect, he had unerringly preferred all those who would certainly vote for death, and disliked those who would vote for life. His instincts were true and unerring as an expression of his death wish.

So is there a way to correct this behavior?

I often think that it is unfair that we, unlike other lawyers, are prohibited from advising our clients about how to enter into a transaction of their choice without incurring liability. I imagine the following phone conversation:

(Whisper): “Hello, Mr. Borenstein. This is your client? Got a minute for some advice?”
“Sure. What’s the problem?”
“Uh, I’m outside the bank and I want to rob it? What do I do?”
“Don’t go in the bank. Is there a 7-11 nearby?”
“OK.”
“Got the mask, gloves, Raiders jacket, sunglasses, toy plastic gun?”
“Uh-huh.”
“Don’t hurt anybody, say very little except ‘I’m not going to hurt anybody’ and be polite, don’t take much, run, don’t drive away, and leave the toy gun there and nothing else.”
“OK, anything else?”
“Yeah. Don’t tell anyone what you did. And when you’re caught, assert your rights politely and take the deal that’s offered.”
“OK, thanks. Bill me.”
“Sure, ‘Bye.”

Well, its only a dream.

1 comment:

  1. Dear Mr. Borenstain,

    Just to let you know that I enjoyed your introduction immensely! I look forward to reading more and possibly engaging in some debate.

    ReplyDelete