Stat Counter

View My Stats

Sunday, January 13, 2013


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.  

Saturday, January 12, 2013

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!

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.