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Saturday, December 19, 2009

While I Sit On The Sidelines ...

During my forced hiatus from the practice of law, I have tried to keep up with the news that always swirls around the courthouses which have been my milieu for almost forty years. One way to keep up is simply to read the daily newspaper. Today, for instance, three articles referenced cases involving lawyers I’ve known for many years.

The first of these is an article which notes the unusual fact that Los Angeles County, in the past year, has bucked the national trend of reduced death verdicts. In L.A., thirteen death penalties were ordered by juries. This seems to be a statewide trend. California death verdicts have also risen.

The reasons for the data are debated. Steve Cooley, LA DA, thinks it is a partially a fluke, considering the fact that these cases take many years to come to trial. But he did claim that his office has been more "selective" in choosing which cases to pursue, which may account for the higher percentage of death sentences meted out.

My good friend, Robert Schwartz, an experienced defense lawyer, pointed out that jurors have become hardened to mitigation evidence about abused and deprived childhoods of violent criminals. The article also speculates that judges have tightened procedures to encourage more severe verdicts.

I’ve found that there is truth to all of these points. And there is another, that the article doesn’t underline. Jurors are well aware of the fact that California has a moratorium on executions, and has performed ONLY thirteen executions, while almost seven hundred rot on death row. Just as the existence of a credible alternative of ‘life imprisonment without possibility of parole’ has been shown to reduce the number of death verdicts, as was recently reported in Texas of all places, the suspicion that a death verdict will never be enforced is conducive to more of them being issued.

One of the judges who is often cited as having an agenda that includes a preference for death verdicts made the news in another case, non-capital case. Mark Overland, a former public defender, and one of the best lawyers anywhere, is representing Ms. Lazarus, the LAPD officer accused of killing a romantic rival more than twenty years ago. After the pro forma ruling that ordered that she be brought to trial, the judge set bail at $10 million dollars in cash, an extraordinarily high amount, tantamount to a denial of any bail. This is higher, as Overland observed, than the bail set for Phil Spector. The judge justified this act by citing her accessibility to guns, because she is married to a cop, and his subjective belief that she would probably flee the jurisdiction to avoid prosecution.

In another article, a second degee murder conviction is reported. The case, defended by my friend Dave Houchin, had resulted in two mistrials due to hung juries when tried in the Central L.A. courthouse. Once transferred back to the Antelope Valley where the crime occurred and the where extremely vocal victim’s family members lived, a compromise verdict of 2nd degree was achieved after three weeks of deliberation, in a case which relied on circumstantial evidence and the defendant had steadfastly asserted his innocence.


Those who cannot understand why Tiger Woods, a man with so much to lose, would risk it all by committing risky sexual behavior are ignorant of Borenstein’s Law.

But after all, the head scratchers say, Woods is one athlete whose reputation for good character was squeaky clean. His trademark as a golfer is his intelligent approach to the sport. He is the most physically fit and the smartest golfer on the course, whose preparation and discipline are unparalleled.

So what? Bill Clinton was the smartest guy in any room. He was the freakin’ president of the U.S., dude.

Borenstein’s Law holds that decisions and conduct which are against an individual’s best interests and therefore by common sense would seem to be unlikely, are actually within the normal range of human behavior, no matter the stature of the individual in society. This kind of apparently irrational risky behavior accounts for most of the annoying things teens do, most crimes of impulse, and most philandering in the upper crust.

More interesting is that the Woods case seems to illustrate a corollary to Borenstein’s Law: Goodness (i.e., high moral character) and Greatness (i.e., exceptional achievement) are often mutually exclusive, that is to say people of great accomplishments in their chosen field usually would not qualify for sainthood if the standard is morality in their private lives.

The examples proving this point are too numerous to mention, but I will mention one prominent example. Albert Einstein, perhaps the greatest thinker of the 20th Century and one of the greatest of all time, was a self acknowledged failure as husband and father.

He was a selfish man, discarded his first wife (herself a trained physicist whose ideas may have contributed to his early work) and their three children without a second thought after years of surreptitious affairs, including one with his cousin, who became his second wife. He then proceeded to be unfaithful to her as often as the opportunities arose. He admitted his personal failings, attributing them to his nature, and his need for concentration on his work.

One other point worth mentioning. When the subject arises, the conclusion is often criticized as chauvinistic, seen as a weak argument justifying male prerogatives relating to monogamy. I don’t believe the propensity for risky behavior is limited to one sex.

I.e.: Catherine THE GREAT. Q.E.D.