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Monday, August 29, 2005

What goes around ... keeps going around ...

I don’t believe in Kharma. Coincidence, sure. And notions about evil houses - that's for Stephen King. But then again, listen to this one.

It’s around 1983 and we’re ready to sign the escrow papers to the new house, our 3rd in around 10 years after we “settled down.” We’re living in Stu City, a rare LA / Valley walking ‘hood - S. of the B’vard, almost not even TheValley. Then the baby comes and so do cars, screeching ‘round the corner and, like comets once a year or so end up in our front yard. Two fences later, we look to move. It’s okay, Bijou’s done what she can with the place: she’s like a mad nomad decorator - takes about 4 years to finish. Then its time for the next move, next project.

So we look-y-loo with brokers, and after seeing every house listed on the west coast, find a kid friendly place: pool, bigger back yard, most of all quiet, no traffic. Bijou’s excited, sees “possibilities” despite the painted peacock, stone planter with plastic flowers, red carpets. Mostly, I see no cars careening onto the lawn, imagine my kid on a bike, and playing catch in the road.

So here we are. Inspections done, loans approved. Ready to sign and move in asap. “Uh, there is one little item,” the broker mumbles. “A small disclosure.” “Oh? What, like earthquake damage?” “Not exactly. See, there was a murder in the house.” Silence.

Okay, I’m a public defender at the time - always taking my work home with me, but this is ridiculous. I pack up. Bijou huddles, "at least check it out. It might not be so bad." Okay, I “investigate,” make calls. Here’s what I find.

The lady’s bloody body is found near the planter by her adopted son, who’s arrested for it. Police don’t believe he found her that way - he’s 17, druggie, needs cash. I talk to the I/O, the DA, the defense lawyer. He’s going down for at least a 2nd, I’m told. Maybe a 1st, there’s money missing.

So I’m thinking, so much for the quiet street theory. Drunk drivers on the lawn beat dope fiends in the bedroom any night. But Bijou really really likes the place. We’re doing everything over anyway. The crime’s solved, right?

Slow fade to about 17 years later and I’m sitting in my office and I get a call from a PI. He’s working on a habeas for the son, who’s been in all this time. He has one question: “Did you ever tell the I/O that money was found in the attic?”

This is the first time I’ve heard this question, but not the last. A couple of years later I get a call from LAPD, Internal Affairs. A couple more years and the LA Times want to know. Then I get a visit from a different IA guy and a call from the DA who tried the case. They all have a lot of questions about the issue, and they don’t tell me everything they know — see, for once, I’m not the advocate, only a “witness” and they don’t tell witnesses what they know.

I tell them all the same thing. Over the years, we had a lot of work done in the house, including the roof. Bijou died in April, ‘92, after sixteen agonizing and terrifying months of illness. I moved away in ‘95. I don’t remember ever finding any money in the attic, or being told by Bijou that workmen found any, or telling the I/O that any money was found. Considering my experience I think I would remember if any of that happened. So I don’t think it did.

My interrogators don’t tell me all they know, but over time I piece together some details. The motive of the killing was money, and some money was “missing” from the lady’s purse. Around $150. The son denied stealing it, and it wasn’t found on him when the cops came. He was convicted, sentenced to 15 to life and when he came up for parole, the I/O sent letters to the Board. In one letter, he said that he was told by the new owners of the house that workmen had found the money in the attic, which is where he believed the son had hidden it before calling. More evidence, he points out, to counter continuing protestations of innocence.

Now, I begin to wonder. Still don’t remember such a conversation and still can’t imagine I would forget that. Except for one thing. If all this happened while Bijou was going through her hell. There’s lots of things I can’t remember during that nightmare period, whole days went by in a blur, and events are jumbled in my memory. It was a dark time when we were spiraling into an abyss.

And wouldn’t the cop’s memory be better than mine? I can’t call him a liar, just that I don’t remember it. Still ...

So now the LA Times article appears. And there’s plenty of details I didn’t know. The time sequence of the I/O’s letters to the Board suggest that the supposed “conversation” about the money happened between late in ‘91 and April, ‘92. I don’t think Bijou was in any condition at that time to have been casually conversing with neighbors and I don’t remember having any work done at that time.

Then they report a shocker. A notation of an inventory of the contents of the purse found near the body ... it includes around $150 in cash.

And there’s more. There was another suspect, a friend of the son. A phone number was dialed from within the house that might have connected this other guy, and a second person’s shoeprint was found, now connected by DNA to a second person. And an I/A investigator apparently had his own doubts. So does the DA who got the conviction. The I/O has now “retired,” if not under fire, at least amid mounting doubts by many concerned with the case that the right person was convicted.

And now, apparently, the judge hearing the habeas petition has questions. So do I. Two women died tragically in that house, and the mysteries continue.

Monday, August 22, 2005

"How can you defend those people?"

I am a criminal defense lawyer. I have been asked that question for thirty-four years. Each time I answered it, I had to think about it. Now, I am going to give the definitive answer.

For my first twenty years of lawyering, I was a public defender in L.A. When I entered private criminal defense practice, fewer people asked the question, and there is a subtly different tone to those who still do. Obviously, some people now give their own answer before they ask it:

"For the money."

Their perspective is revealed by a knowing and cynical leer. For these questioners, I sometimes wink back, rather than launch into the muddy waters of self-justification.

Others accompany the question with an unstated corollary:

"... when you could make more money with less aggravation in civil law?"

This form of the question is most often asked by civil lawyers, their wives, or doctors. It was often asked by my relatives, after talking with civil lawyers or their wives. For these questioners (including my relatives), my answer is:

"I enjoy the excitement and the money is enough for me."

Or sometimes I wisecrack:

"Which people?"

You see, I defend petty thieves, prostitutes, drug users, kids in trouble, and forgers. No one ever wants to know how I can defend these people. I also defend rapists, child molesters, drunk driver/killers, multiple murderers. These are the people everyone is curious about.

That leads me to answer that the more serious crimes provide the greater degree of excitement and challenge.

If that does not satisfy, I drag out the first of my "doctor analogies:"

A doctor's greatest aspiration should be to treat the most seriously ill patient: the greater the risk to life, the greater the skill required, the greater the challenge and the greater the satisfaction when you do your job right.

If you're serious about your profession -- and if I were ill, I would want the doctor who is most serious -- you should aspire to the greatest challenge. If I were a doctor, I would want to be a brain surgeon rather than a dermatologist.

When I defend in a capital case, I am like a doctor whose patient has a life-threatening illness. If I save the life, I am doing the greatest good my profession has to offer -- even if that life I save is one which many may say is not worth saving.

The analogy also works with the corollary common questions:

"How can you defend someone who you know is guilty?"

My answer:

If I were a doctor with a terminally ill patient, I would not make judgments on the worthiness of the life I was trying to save.

Next question:

"How can you sleep with the heavy responsibility of a capital case?"

Same analogy, same answer:

A doctor learns to detach himself from the weight of his life and death duty; he relies on his preparation, his skill, his conscientiousness. If the patient dies, he wants to be sure he did everything in his power to prevent or forestall it; if he has, he sleeps -- perhaps fitfully at first, but he sleeps and awakes to the next case.

The answer, I admit, is not wholly satisfactory to me. The analogy is not exact. The law deals with moral guilt as its subject matter; medicine does not. But the answer satisfies most people. Once a doctor caught the problem.

For him, I had a question:

"Suppose you were asked to treat a death row inmate, a mass murderer who was scheduled to die; would you use your best efforts to save him?"

The doctor smiled and said, "I wouldn't recommend long-term treatment."

I have not always answered the question so straightforwardly. At first, in the flush of righteous belief that I was fighting The Good Fight for The Constitution and The Bill of Rights, I was offended.

I answered:

"How can I not defend these people?"

In the Sixties, when I began, this answer made me something of a hero in my circle.

Later, while my back was turned, my circle dissolved. My acquaintances -- who had been quickly "radicalized" in the Sixties -- just as quickly became "centralized" in the Seventies and "neutralized" in the Eighties. They became horrified by crimes -- first, by rape when their feminist consciences were raised; then by child molestation; then by "mass murderers" and "serial killers"; now by drug dealers -- forgetting their Sixties poses, a result I presume of all the dope they smoked back then.

When I seemed not to have moved from "the Sixties mentality," the renewed question, now became more strident:

"How can you still defend those people?"

I see now that my seeming unreconstructed liberalism made my old friends squirm. Sensing that, my answers became defensive.

I joked about it, mumbled about keeping the system honest, focused on my distaste for `hustling for a buck' in private practice, and later on, talked vaguely about the security of my county paycheck and eventual early retirement. These were acceptable answers.

But not true. In truth, I had moved a long way from the righteousness of my youth, into a new righteousness of middle age. As a public defender, I began to see the dangers of false liberalism. I had seen liberal judges pay lip service to the law, find my clients guilty on less than convincing evidence and then "not hurt them" in sentencing.

I became a true “conservative.”

The liberal trusts in the benign power of government to restrain the individual for the common good. He deals in big numbers. If a few individuals must be sacrificed for the good of the many, so be it.

The true conservative is skeptical of governmental power over the individual and seeks to restrain its use. The most power a government wields, short of the ability to wage war, is the police power to incarcerate and execute individuals. I fight for the rights of the individual against the power of the government. That makes me a conservative.

In the 70's, when feminists and their fellow travelers, reading accounts of rape trials and TV "docudramas", attacked rape laws which, in their view made it too difficult to convict rapists, they were uneasy when I reminded them about the lesson of history, as reflected in such “right-thinking” morality tales as "To Kill a Mockingbird". Their response: "That was about a Black guy in the South." My liberal friends forgot that such laws so easily led to abuse.

I still believe that it is better to acquit many guilty people than to wrongly convict one innocent person. No one else believes this anymore.

When an increasing crime rate brought cries for longer sentences, reinstatement of the death penalty, elimination of "technicalities" such as constitutional rights and defenses, no one wanted to hear my answer:

It is dangerous to urge both more harsh sentences and easier convictions. The more severe the sentence, the more certain should be the system of proving guilt. If you are going to put someone in jail and throw away the key, it should not be done on the uncorroborated claim of one witness, which history has shown us is unreliable.

Don't get me wrong. I feel the victim's rage. I have been a father, a husband, a homeowner. I worry about rape, child molestation, burglary. I would kill to defend my home.

I believe that some people deserve to die for their crimes.

But when asked about the death penalty, I cannot answer glibly. Most people don't like my answer; it is not what they want to hear. It is not simple. They expect me to say I am opposed to it. I am, but not for the reasons they think; not for abstract reasons.

I repeat: I believe that some people deserve to die for their crimes.

But I have seen the way the system works and conclude that it is fatally flawed. I have watched it, studied it, participated in it for more than twenty years. The defect is basic:

It does not rationally distinguish between people who deserve to die from those who do not.

While my erstwhile liberal acquaintances, like everyone else, are untroubled by this, I can't live with it. I find that people do not care about that answer. It disturbs them. They want their issues chopped with a butcher knife, not carved with a scalpel. They are angry and anger compels stupidity.

Monday, August 15, 2005

My Uncle Sammy

I guess every family has its mysteries. We had a big one. I mean a big family. And to a kid there were a lot of mysteries. For example, my father’s dad was called “Harry” (who lived with “Aunt Ida”); and so was my mom’s brother Harry (whose wife was “Aunt Hanna”), and her father, “Harry” lived with “Aunt Laura,” but she also had a Papa Hymie who lived with “Aunt Ethel.” We had an “Aunt Ida” who sometimes lived with us.

It was complicated. But a kid picks up clues during family gatherings where stories are re-told. Hints about dramas and comedies emerge. Some names you hear whispered with different emotions that a kid has a harder time with, a choked tear. "Sammy" was one of those. He was never at the family gatherings, not one of the pinchers of cheeks. My mother, who was the keeper of family lore, talked most about him, her brother-in-law who “died in the war.”

This phrase stuck with me, a kid raised on TV war movies. We had some snapshots and some “effects” that were all there was of “Sammy.” A Purple Heart, silver wings pin, lieutenant’s bar shoulder pin. A kid’s curiosity about war led to questions and I pieced together a story.

He was the fourth of six kids. Alex (in the suit), Edna (the ballet dancer), Milton and Sam. Two more came later (Alvin and Fran). Milt and Sam wanted to be doctors, "experimented" on unfortunate stray cats in their basement "lab" which included a chemistry kit, with which they also stunk up the neighborhood.

Sam graduated college but World War II interrupted his plans for medical school. He enlisted in the Army Air Corps. He wanted to be a flyer, but was declared too short. With his chemistry degree, he was assigned to the quartermaster corps, the cushiest duty possible. So, of course, when the height limit was lowered because of the increasing need for flyers, he asked to be transferred to flight school.

Lieutenant Samuel Borenstein became a navigator / bombadier on B-24's. He came home on leave and spent time with his girlfriend, Gerry. He took my brother, then 8 or 9, on the parachute jump in Coney Island, near where we lived. And then he went “overseas” and, in the specific words I remember, “was shot down over the Bay Of Biscay” and was reported “missing in action and presumed dead.” Gerry remained close to our family for several years but eventually drifted away into her own life.

And that was all I knew.

Fifty years later, I found the old photos in a box and got the idea to try the internet. Sent a message in a bottle with the few facts I had from stories and notes on snapshots “Idaho” “Bay of Biscay.” It didn’t take long. A guy named Don Olds, a veteran who was keeper of the flame about such things, answered me with far more than I could have dreamed.

“Received your email pertaining to your uncle Samuel Borenstein. I do have some material covering his last flight 27 Mar 44. I have the MACR (Missing Air Crew Report) from the aircraft he was aboard when shot down. I may have some other papers as well. He was in the 733rd Squadron of the 453rd Bomb Group stationed at Old Buckingham, Norfolk County, England. The 453rd did their early training at Gower Field in Idaho. So I’m sure we’re talking about the same man.

“Your uncle was a member of a B-24 named “Cabin In The Sky” which was piloted by Lt. Alvin Lien. On this particular mission the 733rd Sq. Commanding Officer Major Curtis Cofield was the Command Pilot and the plane was hit by flak and broke into flames and went into the Bay of Biscay. Unfortunately there were no survivors.

"The 433rd had four squadrons, 732nd, 733rd, 734th, 735th. Your uncle was designated as Command Navigator for this mission. The plane and crew were from the 735th, and apparently your uncle was assigned to this mission as a ‘one time thing.’ Being this plane was the Lead Plane in the entire group formation of four squadrons speaks well of the confidence Group Headquarters had in his ability to lead.

“... I have a good picture of ‘Cabin In The Sky’ in flight on the day it was shot down. It is unusual to have such a view of a plane with the waist gunner clearly visible in the window that would soon be blown out of the sky killing eleven men.”

I was amazed and immediately answered back, requesting copies of the photos. Mr. Olds not only sent me the photos, but also many documents, which shocked me. The “MACR” contains eyewitness statements from other crews. Some saw “eight or nine chutes” open after the plane was hit. Might Sam have escaped? Other reports showed that the Army Air Corps tried to trace the fate of the crew.

On 28 March 1945, the chief of “Casualty Branch” filed a report stating that “... nine parachutes were seen to open ... five, who landed in the water, were picked up immediately, presumably by enemy surface craft. Five other crew members have been reported as KIA.” None of the crew had turned up in POW files.

Then, in 1947, a report from “Headquarters, American Graves Registration Command.” Sam and four others are listed as the “missing” subjects.

“SYNOPSIS OF CASE: The above were part of a crew of 11 men A/C #42-6744, which, on 27 March 1944 participated in a bombing mission to Pau, France. At a point over the Bay of Biscay at coordinates 46° 3' N/01° 29'E the subject plane received extensive flak damage and crashed in flames into the sea approximately five miles from shore. Several parachutes were seen. The enemy recovered remains of S/Sgt. Clinton W. CALDWELL, but after all papers were recovered from his clothes, the remains were interred at sea. The remains of crew members LIEN, WATSON, COFIELD, WARD, KAPLAN and LAYSER washed ashore at places adjacent to La Rochelle, France, and are now interred in the USMC Champigneul. A field investigation conducted for the recovery of the remains of the unaccounted for crew members proved negative. In view of the above and the time that has elapsed since the missing flyers have neither been seen or heard from, it can be concluded that they were lost at sea.”

I received another, final note from Mr. Olds. “I remembered the American Cemetary at Cambridge, England and the fact that your Uncle Samuel is indeed honored there. Enclosed is a list of 453rd men who are buried there. Also, there is a ten foot wall running the length of the cemetery with a small chapel at the end of the wall. Into this wall the names of those whose bodies were never recovered are carved. It is called “Wall Of Missing.” On this list the grave location or WOM notation. Didn’t know if you knew this existed. It is a beautiful place and very serene.”

I showed the results at a family gathering. My mom was tearful, and Aunt Fran was touched. He was the first of her now dead four brothers to have gone away.

Links: American Cemetery Cambridge
453rd Bomb Group (H)

Sunday, August 14, 2005

Bijou at 60

When a person is murdered, the victim’s family is luckier than those whose deaths can’t be blamed on anyone. In a capital trial, the “impact” of the murder on loved ones can be used to support a death sentence for the culprit. In other than capital killings, victims get to speak their hearts at sentencing. Even in civil trials, deaths caused by negligence can be vindicated by money judgments.

Any sort of vengeance can be satisfying, I suppose, and provide a form of “closure,” which is one of the buzzwords of our society, more sought after than “love.”

If the person who died caused her own death by self-destructiveness or negligence or unnecessary risk taking, there is some explanation for the event and therefore some symmetry. And when someone dies in old age after a completed life there is acceptance.

All of that is denied when there is no one to blame for a “premature” death caused, say, by an insidious incurable illness.

When someone dies that way, there is nothing to do but feel lousy. Family and friends, mostly out of guilt because they are alive, promise never to forget.

We “celebrate” the lost life, the good times, the silly youthful girl, the wife, mom, friend, daughter, sister, the soulmate.

We remember hr laughter, her capacity to make us laugh ... and ... feel loved. We remember her courage in the face of misery, joke about her love for food, her joie de vivre,
and the way she had of fun at her own cost, and we miss her dreadfully because of the huge hole in our lives that her absence leaves.

For a while we keep our promise, but life is such that we eventually do forget, at least most of the time. We keep the pictures around the house, but don't look at them often anymore. They are part of the furnishings, taken for granted. That each was a moment, a precious instant now gone forever is too painful a thought to dwell on.

I guess it is “healthy” and necessary not to dwell on that kind of pain.

Over time, we think about her less and less. The reality of her existence begins to fade, and remains out of our thoughts for long chunks of time. We forget the way her voice sounded when she laughed or cried, how she looked in the morning or the fragrance of her hair.

We find other ways to laugh, and others who might help us forget. Eventually, the time may come when we find that if someone reminds us of her, it is slightly embarrassing, makes us feel faintly uneasy. And one day she may cease to exist, even in memory, unless strenuous conscious efforts are made to recall the fact that she did live and affected our lives.

The cruel fact is that fame insures immortality for only a few, while most lives are forgotten, even those lives who touched many other lives. The dead live only sporadically in the memories of people who loved them, but when these few die, will it be as if they never lived at all?

Religions tease us with the myth that the dying person’s ‘spirit’ lives on — in heaven, or returning in another form, as part of the "earth" or even in a new living being.

Recurring wisps of movies offer wish fulfillment: ghosts ... dreams ... fantasies of lovers returning to help the living. But you have to be soft headed and hopelessly sentimental to believe such things.
And, really, none of it really helps very much.

She used to tell her students that life isn't fair.

She was right. It goes by so fast.

She was a seven year old refugee lost in l'ecole ... and then an adored teacher.

A lonely "displaced person" became an awkward, lonely girl ... moving from Russia, then to France, and then to L.A., each time feeling different from the others and not understanding enough, not feeling smart enough or pretty enough or good enough ...
feeliing too tall, too Jewish, too Polish, or was it French, or Russian?

She once wrote to me: "I have always felt an outsider. All my life I have searched to fit in..."

But when she began to travel on her own, she began to find what she was looking for: freedom ... a sense of excitement in discovering ... what? ... her power .... taking risks ... seeking adventure ...
... and her independent spirit ... and some found her ... and that was ... well, exciting, too.

She wrote: "... Traveling alone has taught me —first and most obvious—that I can rely on myself—a fact I suspected but was not sure of ..."

She made her mistakes without regret ... chose her life ... then saved mine by taking me along . She took me to places I never dreamed of ... showed me a world I would never have dared to risk alone. We traveled together and she held my hand and pushed me toward life against my timid judgment

... and then she was gone...

She was born into this world on this date sixty years ago and has been out of it for thirteen.

... how can that be?

Je t'aime toujours, Bijou.

These and other memories of Bijou will be posted on flickr.

Saturday, August 06, 2005

Adventures In Crime / Cuddle Or Die

More proof that unprotected sex is dangerous business ... even after marriage.

LA Times, Friday, Aug. 5, 2005:

"A man who got angry with his wife because she wanted to cuddle after sex when what he really wanted to do was watch sports on television was sentenced to death in Panama City for killing her with a claw hammer.

"[The judge said that] the brutality of the crime outweighed any mental problems [the defendant] may have had. '[He] had struck his wife approximately 70 individual blows after spending a happy interlude with her,' the judge said. 'Her desire to cuddle did not justify the extremely violent, brutal response by the defendant.'"

Oops! Award: 8 eyewits proved wrong. Innocent man freed after 26 years. So sorry!

L.A. Times Friday, Aug. 5, 2005, p.A-16, reported that Luis Diaz, described in the story as "a Cuban born fry cook," who had been convicted in 1980 of 7 rapes has now been released based on a combination of recanted identifications by victims and DNA evidence pursued by Barry Scheck and The Innocence Project.

In the Miami area between 1977 and 1979, there were 25 rapes by the so-called "Bird Road Rapist." A spokesman for the state attorney's office stated that "it was fruitless to second guess the processes that had put Diaz behind bars since his arrest in 1979. 'Eyewitnesses at the time gave strong tesimony,' [he] said. 'The jury convicted based on evidence.'"

Scheck said, "This case had 8 mistaken eyewitnesses." The previous high [his Project uncovered] was 5. "There are a million ways where, unintentionally or not so unintentionally, you indicate to people who you want them to identify."

The State Attorney thought it was proper to free Diaz because "...there is no time limit to justice." Former Miami Police Chief Kenneth Harms said, "I know from time to time the wrong person is put in jail. That's simply the way the system functions."

NOTE: Florida, along with Texas, has been at the vanguard of demands for speedier executions.

Monday, August 01, 2005

Reality Show Pitch: "The Execution"

Although this idea is worth millions, I air it as a public service. Hear me, Oh, Fox! An idea whose time has come. The current reality cycle is running its course and needs new, uh, blood.

Televising executions could be great drama, qualifies as news, and the buzz around the water coolers of the nation would be deafening.

Incidentally, both advocates and opponents of capital punishment would benefit from the show. It would test the assumptions of both The Right and The Left.

Pro deathists have three arguments supporting capital punishment. First, the families of murder victims are entitled to certain, final and rapid justice; second, respect for law and order requires the same; and third, the first step to solving the "crime problem" is the deterrent effect of the death penalty.

Televising executions would provide a test for all three assumptions. Would the execution finally provide peace of mind to the families of murder victims? Would it encourage respect for the law? Would executions result in fewer murders?

It might work. Criminals do not read newspapers, but do watch television. The impact of seeing the retribution society exacts for the worst crimes would be worth a thousand words in a newspaper article. In fact, in some states, executions are so ho-hum that the the events are relegated to inside pages.

But there is reason to believe that none of the assumptions are correct. When executions were conducted in the town square -- as for most of human history -- pickpockets and cutpurses worked the crowds, even when a thief was being hanged. Statistics show that murders increase after executions. Why, because they somehow lessen respect for law? Do they stir up the blood lust too much?

Would murder rates go down in the states which execute the most? Texas, Florida and Georgia have "terminated" dozens of murderers. Are murder rates in those states "better" than in other states? If not, Why?

Victims Rights Organizations have opposed televising executions. They fear that sympathy for the person executed would replace sympathy for the victim.

Hardly likely, especially in the reality world of T.V. journalism. The segment showing the execution would surely be preceded by dramatized details of the crime, including all the lurid violence that stirs the urge for vengeance which execution theoretically satisfies. Watch Bill Kurtis' "American Justice" for clues.

What better "closure" could there be? What better trigger for public debate? What better entertainment?