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Sunday, June 26, 2005

Journal / Calcutta / 22 Aug 1974

Thirty years ago Bijou and I traveled around the world for almost a year. I kept a journal in a 5" by 8" 26 line daily reminder book, vowing to keep each day to one page. This day, however, required inserts of 7 flimsy onionskin pages of folded hotel paper. I taped them into the proper page as best I could at the time, and now, so many years later, the tiny print has faded. It took all of my concentration, memory, and patience to read my printing and unfold without tearing the worn pages.

Calcutta street, Aug. 1974

While in Bangkok, our companions on a tour of the Floating Market had been a Canadian doctor, his wife and two children. When we remarked to them how drab, grey and poor the streets and Klongs of Bangkok seemed to us, they exclaimed that to them it seemed quite prosperous after India from where they had just come.

After only a 1/2 hour ride in from the Calcutta airport I understand and agree with everything they said. The airport is modern and relatively efficient. But soon we are riding in a ramshackle taxi down a dusty highway, past fields, a river, cows and water buffaloes.

As we approach the city, the people begin to be more numerous and soon the streets— including every inch of sidewalks and gutters— are filled with hundreds of thin, often emaciated faces, horsecarts, bicycles, a few smoky cars, and occasional rickshaws carrying fat and thus apparently rich women in colorful saris.

A bus goes by, more rickety and spewing more black smoke than any in Bangkok, tilting with people hanging to its sides like those to a lifeboat. There is a streetcar jammed to the gunnels. And of course, the people of whom we have read and prepared ourselves for; they unimaginatively poor, who live and die in the street by the hundreds of thousands. There they are on every block, in the precious shade under the overhangs of decaying buildings. Children lay limp on mothers’ robes, old men stare blankly. Men dodge traffic fatalistically and no one smiles.

I choke down the feeling of guilt as we ride by like Maharajas in our junky taxi. I’ve promised myself I would not feel this way, but here it is, overwhelming me.

Our taxi goes down a main thoroughfare where there were government buildings, hotels, and a large park (The Maidan). Honking his horn all the way, our driver turns into a side street which is a narrower version of the many poor ones we’ve passed. A way up we see the Lytton Hotel, which our guide book states is next door to our destination.

Our driver slows, and points. The sign tacked onto the wall says:

“FAIRLAWN HOTEL — >”

I’m thinking that we’ll have to get out and drag our bags the rest of the way, through the gauntlet of people who I can see are drying their palms for outstretching. But, no, he turns into a driveway.

“It certainly does have a pretty garden,” Bijou says, referring to the hotel’s description in our trusty guidebook. And it is calming to the eyes after what we have coursed through in the past half hour.

We get out. A porter snatches our bags. It begins to rain. It’s been sunny and white hot on the drive in. I had noticed tumultuous thunderheads at the airport. I’d also seen puddles near the runway as we taxied. As it has all during our travels in Asia during the rainy season, I fully expect a downpour. And here it is, a steamy, violent outburst.

We sign the register and follow the porter. Near the desk, in the garden of green plants and palms are chairs around white metal painted tables with umbrellas. On the other side is a dining room with tablecloths neatly spread and big fans overhead. We climb a marble, carpeted staircase and walk through what we would call a lounge. I suppose the English would call it a salon or parlour. There are black lacquered cases with knick-knacks: china dolls, plates, Buddhas, other statues. Four padded rattan chairs surround a round glass topped table. To the right is a veranda, sun-drenched, with more chairs, tables and brass pieces. I’m looking for Somerset Maugham with a gin sling.

We walk to the left and are in a large marble floored room. Large black statues in wood stand near more display cases. Punkah fans droop from the high ceiling. We walk by a large desk which stands at the far end of the room. A man sits behind the desk like a librarian. We cross a short stretch in the rain and are at the door to our room which fronts on a motel-like exterior walkway.

The porter opens the door.

“No air conditioning,” I blurt in a panic, noticing the ceiling fan turning slowly. But as soon as I say it, I see the machine set into the window.

The room is larger than most of those we have had on the trip. Two single beds face the door on either side of the room. Between them is a red and black painted table and two smaller ones on either side of it. Two upholstered chairs face the tables, their backs to the door. The windows back each bed, curtained neatly. There is no view, the windows are locked. There are wardrobes painted a dull yellow as are the walls.

The porters (another had walked alongside the one who bore our luggage) wait. I give the one who had carried the luggage two rupee notes. He looks at his palm, scratches the crisp bills together and eyes me impatiently. I thank him and turn away. He walks to the door, mutters something to his mate, shows his palm to prove the point, and stalks out.

“Myra says to give the porter one per bag,” Bijou says.
“I did, but you saw his look.”
“The hell with him.” Bijou is as as angry and tired as I am with the hustling we have endured so often in Asia.
“Smell!”
I did as Bijou instructed and was met by the strong odor of turpentine.
“Well, in Hong Kong we complained that the paint was peeling off the walls. Now we’ve got fresh paint.”

We sniff about the room. A writing desk stands next to the door. On the other side is a curtain and through it the bathroom; barely western. An old chipped porcelain tub over which hangs a pipe connected to a painted shower head. A sink in the corner. As if to cater to the expected tender tummies of its users, the john sits right next to the doorway. Its wooden seat is painted putrid green. A pull chain hangs like a hanging rope from a gallows. All the fixtures are like the atmosphere of the entire hotel — as if preserved from a distant age.

We sit on the bed and look about cautiously. Slowly we go through the mental process of acclimatization that has now become a familiar pattern in our travels. The drive in from the airport had been, to say the least, breathtaking. We had often grasped each other’s hand in the way a child comes back and hugs its mother from time to time. More than once, our eyes turned from the “sights” toward one another; our eyes met, and rolled to indicate “Wow!” or “Oy vey!”

Now we look at each other from across our new home. Bijou says: “The hotel is fabulous.”
I say: “Let’s rest and wait for the rain to stop. Then we can walk around the place a bit.”
“Okay,” she agrees, “then let’s walk to American Express and collect any mail.”
The plan and the prospects of word from home cheer us.

We retrace our steps, through the lounges which are cheerful and amusing, and go downstairs. We get a map and I walk over to a man who is poring over the register book. I ask him for directions. He is a spare, dark little man, with black wavy hair sprinkled gray, and a Ronald Coleman mustache. He wears a white shirt, sleeves rolled to the elbows and a handkerchief knotted around his neck. His eyes sparkle amiably. He speaks English in an attractive, clipped Indian accent. He shows us on the map where we are in relation to the monuments, restaurants, etc.

I introduce Bijou and myself.
He says: “I am Ali Baba, the Muslim.”
Okay.

We walk through the garden and driveway and turn at the wall which fronts the street. As we reach it, a shine boy pesters me, a taxi driver hoots his horn and beckons. A young boys begs, sad faced and empty palmed, walks apace with us, not threateningly—at least not intending to threaten, at least not yet. Soon, he is joined by other boys, who match my increasingly rapid New York-bred walking pace, a few steps behind, palms upraised, offering help for rupees.

The temperature must be over 100, and the air is sluggish. We walk in what seems the right direction, though I could not be sure, still unfamiliar with the map. As we trod the cracked pavement, threading between puddles, we pass people in rags sleeping on the sidewalk.

Our companions who continue their insistent pleas are joined by a young man who gets in step with me and asks confidentially, “You want anything, anything for the lady? Change money, student card? Buy anything?”

My answer to all offers is a head shake, then a “No, I’m sorry,” then “No thanks,” then “No!” Nothing fazes them: ignoring them seems the only way but it is like ignoring a swarm of bees around your head.

For once, Bijou does not complain of my rapid pace. She grips my arm tightly and breathlessly keeps up. We both want to run and hide.

We turn up a main street, through crowds. There are shops, each keeper beckoning — vendors of books, toys, fruit, nuts — all arrayed on the wide sidewalk. And massive Brahma cows just sitting on the sidewalk. People walk around the beasts as though they are pieces of furniture in a living room. And always the eyes and palms often alongside us for a block or more, seeming interminable and to us, unbearable in their insistent reminder of our relative wealth.

The buildings are in varying states of disrepair. All look old, none of the granite, steel and glass of modern cities. Paint is tired looking, chipped and faded and grimy. Here and there underlying bricks show through cracks in plaster facades.

The street is hectic; trams, busses, taxis, people rushing every way, threading recklessly across the jammed street. Here and there cows stand on curbs and in the traffic lanes, like stalled cars and are treated similarly.

We walk almost silently, speaking only to each other about whether we are going in the right direction, or to say “Ignore him,” or “Don’t look” at some particularly heart-wrenching specter. But constantly, to the pleas and nagging, we spout ever more insistent and less polite “No’s.”

Finally we enter the Am Ex office. It is blessedly air conditioned. We take stock of ourselves. Bijou’s face is sunburn red; she looked near to fainting.

“I’ve never sweated so much,” she says.

I can see the beads on her forehead. I am concerned; Bijou is pigment deprived, her skin defenseless against the searing sun. Her complexion registers heat like a cheap thermometer — pink to red to magenta, then steam. She never sweats in L.A. I give her my handkerchief.

My darker skin sweats with far less provocation. Now, my dashiki hangs from my shoulders, filled with water and heavy. Sweat pours from under my hair, down my neck, my back, into my shorts, down each leg and into my socks.

We catch our breaths and light cigarettes. We’re directed to a desk and we ask for mail. A stack is brought out and gone through one by one. Nothing. Bea’s shoulders slump. I try to look sympathetic.

“The mails here are probably slow.”

But we’re both dejected, not only from the disappointment usual in such situations, but also because we feel we have gone through so much to get there, driving ourselves through terrors with the goal of getting a word from home.

After the cigarettes, we’re ready to run the gauntlet again. I crack that it’s a good thing we both have good strong Polish peasant blood — we just plod on, pulling our plows behind us.

When we return to the hotel, we are greeted by a smallish European woman who stands behind the front desk. She asks us our first impressions of the city. She speaks with a distinct English accent. She can tell more from our excitement, exhaustion and sweat than our words: “Incredible” and “Overwhelming.”

“Yes,” she says. “Calcutta has that effect. We once had an Englishwoman from New Zealand. You know, we used to get the Sundowners and such. She checked in, went out for a walk and returned after just a few minutes. Fainted dead away. Spent the rest of her stay in her room. Really, she wouldn’t leave her room!”

She begins a prepared speech. “I’m Mrs. Smith, the proprietress. I hope you’ll enjoy your stay here. The place has been in my family for forty years. Father was a major in the army. He bought it. Used to be called Canada House.”

“I’m dying for a drink,” Bijou says.

“Of course. Try some Limca. It’s quite nice. Refreshing.” She calls a crisp order in Hindi. In a moment, bottles of a cloudy soft drink with straws are set on a table near us. It is cold and refreshing, not as sweet as Coke, lime-flavored.

Mrs. Smith wears an absurd jet black wig styled in a flip. Her moon shaped face is a little too made up for the scene. Her cylindrical torso is wrapped in a sheath dress. Of course, she wears spiked heels. The effect is a bit unsettling. She doesn’t look like a proprietress of a charming, eccentric hotel in the middle of Calcutta, more like a Jewish lady from Miami Beach on her way to a Bar Mitzvah. [Years later, I compare her to Mrs Fawlty of Fawlty Towers.]

“I think you’ll like the food. We have full board, meals, morning and afternoon tea. I’m sorry you missed breakfast, but lunch is at one. Many of the servants have been with us for 40 years; our chef is quite good; he’s been with us a long time.”

We tell her we think the hotel is lovely.

“I’ve collected all the little things myself from all parts of the world,” she says proudly. “I’ve been everywhere, you know. Where have you been?”

We tell her about Japan, Hong Kong and Bangkok, and of our plans.

“Charming! Hong Kong is lovely. My daughter is there. Not what it once was, but not as bad as this place.” She nods her ample chins in the general direction of India. “Gone to hell in twenty years.” Then remembering her place in the tourist business: “It is fascinating, though, isn’t it. We’ve got very friendly guests. From all over the world. Couple of Americans, too.”

In a lull, we excuse ourselves. Bijou says: “So long.”

“Yes, so long,” Mrs. Smith laughs, apparently easily amused. “See you later, alligator,” she intones in mock-American.

“After ‘while, crocodile,” Bijou tosses back.

“What? After while, crocodile. Ha-ha. That’s jolly good. Yes, I must remember that.”

After showering and relaxation, we anxiously and hungrily pad through the lounges to the dining room. We’ve read that the fare is western food and speaking to Mrs. Smith, expect boiled beef and Yorkshire pudding. We’re placed at our table by a waiter dressed in Indian whites. Another wearing a red turban pours ice water into our glasses. The table is formally set with linen. A third waiter brings a tray of food to Bijou, then to me.

There are fried egg roll type things and boiled potatoes. Since I am famished and have not seen a potato for three weeks, I heap my plate with as much as seems decent. The potatoes are marvelous and the egg rolls turn out to be just that: an egg paste lightly spiced, and quite good.

We’re afraid to drink the water, so order Limca and drink them quickly. We’re quite satisfied, no longer famished.

A servant removes our plates and replaces them with another. The red turban waiter, who I now notice is badly cross-eyed, stands by Bijou with another tray. This one contains a large dish of rice, another of red vegetables, and a boat of curry.

“Not too hot?” Bijou asks timidly.
“No.”

I fill my plate. A servant with yet another tray arrives, with bowls of a variety of chutneys: mint, potato, onion and pepper. We sample each. We’re greatly impressed: two courses, one western and very tasty; the second Indian and non-threatening. We find our appetites renewed.

We also find that in its insidious way, the curry begins to bite. Like Mexican chili, it burns the lips, tongue and palate, makes the eyes water and in a particularly strong dose, clears the sinuses. But unlike Mexican food, the Indian curry continues to singe all the way down. And after the initial fire, comes the afterburner, way down like a slug of Uzo or Slivovitz thrown down your throat into the pit of your stomach.

We quickly sip the last of our soft drink and look longingly at our cold glasses of water. Other diners are guzzling their water, the servants at their elbows with chilled pitchers. But we don’t dare. It is our first day in India; too soon to be sick. Soon, a bowl of grapefruit type thing appears before us and we suck those dry.

Feeling renewed, we decide to brave the horror of the streets again. We strike off in the opposite direction, toward a shopping area called the “New Market.” Bijou is desperately in need of a sun hat. On the way, we witness again the “realities of life in Calcutta,” which, even as we view them and try at times to avoid viewing them, seem unbelievable. Again, the beggars, the taggers-along, the hustlers.

I clutch Bijou’s oversize carry-all and Bijou clutches me. After a few blocks that seem to take years, we reach the New Market. It is a block long brick building fronting on a wide pot-holed street. We cross the street and enter a maze of shops and walkways. Shops selling clothes, foul and sweet smelling food, toys, books, fabrics.

But no hats.

As we walk aimlessly the shopkeepers in entrances beckon us insistently.
Of course, we are never alone. Our guidebook, in its authoress’ lady-like way, describes the “Pengalis” as boys who are not beggars, but people who make their pitifully meager livelihood running errands, carrying packages or guiding tourists. At night, they sleep in the streets. Her description is an annoying understatement. These men who might have once been boys nag and pursue us from the moment we cross the street. Many carry wicker baskets. “Carry your things, sir?” “Want to buy something?” “Something for the lady?” “Some silk?” “A dress?” On and on, the voices.

“We only want to buy a hat to wear, not to carry.” “We are sorry, but we do not need anyone to help.”

It is no use. The chorus continues. I’m polite. I’m firm. I’m insistent. I’m rude. I’m angry. “No.” Again and again.

Bijou verges on tears or flight.

I angle us into a book shop and we try to browse. The proprietor is at our side in a moment.

“You want a book? We have many kinds. What would you like?”

I say we’re just looking and I try to read the titles of the worn covers.

He hovers; there is no fun in it.

We leave by another doorway around the corner. We’re met by new faces with baskets and voices.

“We are only looking, not buying.” “Please, no thanks.”
Others take up the pursuit as we continue.
“Please leave us alone.” Bijou has stopped, and pleads, her voice near panic.
I try calm reason. “Please, my wife is not well. You are bothering her. Please go away.”
Still, the voices.

At last, we see some hats in a window and duck into the store. We bargain with an insistent old man and make the sale. Bijou wears the hat as we leave.

The droning begins again. We search for a way out. We are in a maze and it seems like the nightmare might go on forever. But we see a light and soon are in the street.

We find our way back to the oasis of our hotel, again through the gauntlet of decaying misery and pleading voices. We rush through the gate and fall into wicker chairs, exhausted and soaked again to the skin.

We are just in time for tea.

In the evening, after another ample and varied meal, we meet some of the other guests. One is a blond haired guy in his mid twenties. He’s been raised in Kentucky and has a mild drawl. He’s worked on fishing boats in California, Canada and Alaska and worked his way over here on a merchant ship. He’s been to Bombay and come east to Calcutta about six days ago.

“Blew my mind.” He’s been sick. Tonight’s is the first meal he’s been able to digest in a few days. He chuckles when he talks about it and doesn’t seem too troubled by the experience.

“Went to a store and bought some of this,” he says. He takes two bottles from a newspaper wrapping. “This one’s paregoric, made of opium. Can’t get it in the States, even with a prescription,” he laughs. “Here you can get anything. A guy in the street offered me a jar of cocaine yesterday. The other one is ampicillin.”

He shrugs. “I just walked in an plopped down the rupees. A slug of paregoric settled my stomach — a bit too much will really set you straight!”

Bijou asks him how he knew where to go.

He chuckles. “My guide, a little guy who hangs around here. He’s been showin’ me around. Knows the city real good. I give him a couple of rupees a day. All he wants is my jeans when I leave.” He pats the thighs of jeans that are perfectly faded, streaked, and worn.

Bijou notes what a prize they are.
“Yeah, I love ‘em. I think I’ll give ‘em to him,” he says kindly.

He’s leaving for Kathmandu the next day, he hopes, by train. It will take 24 hours and he has to bribe the guy at the station. The plane flight we’ve booked for the next week takes an hour and a half.

“Then to California,” he says. “I have a boat hull in Seattle. If I can get a ship back I can start putting some money together and build it. Then I’m gonna get a crew and sail the islands of the Pacific. I’ve been through some of ‘em.” He rattles off some exotic names. “But there’s thousands. Nobody goes there. I know a guy who does it all the time. He gets girls to pay to be the crew.”

He laces his hands behind his head. “I been traveling for 10 years and I could do it forever. No sweat. I love it.”

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.