John Grisham, are you paying attention?

It occurs to me now that quite a few lawyers in this country write books. One would expect such authors to care a great deal about copyrights. But apparently they are too busy with their law careers to see writing as a profession, too.

John Grisham was once a lawyer who now makes a living from writing. Maybe Mr. Grisham cares about copyrights.

Lawyer-authors, I beg you to stop and think about who really controls your books.

I’m not a copyright lawyer, but I am a copyright holder.

I have many, many years of experience with copyright law. Even my graduate-school education included studying the origins of English and American copyright law. So, I am qualified to state unequivocally that all copyright law is designed to protect publishers, not authors.

Once any author, including a lawyer who writes a thriller, signs away a portion of his copyrights to a publisher he might as well kiss his sweet book goodbye.

Google Book Settlement

If you are a lawyer and if you are also an author you must be aware of the Google Book Settlement. If not, you should immediately “Google” it.

Briefly:

As a result of a contract between the University of Michigan Library and Google several years ago, almost every book that has ever been published (and, as I know from personal experience, every thesis and dissertation) has been scanned as images by Google for posting on the web. When the Authors Guild (of which I am a member) found out, they sued Google supposedly on the behalf of the authors.

A court decided that what Google did is OK (!) so long as Google pays authors and publishers about 35% of their proceeds, because 35% is so much higher than the measly royalties authors usually get. Of course, the court did not say what price Google must charge their customers. Nor did the court say that Google must guarantee the quality and accuracy of their scans. Nor did the court say that the original scans constituted an unauthorized copy of copyrighted works.

The sole right an author has under the settlement is to “opt out.” And, believe me, you really have no choice, because you would be an idiot to opt out of anything Google promotes. The only reason you would opt out is that you are so ashamed of what you wrote that you do not want anyone to read it in the future.

Recently the Library of Congress Copyright Office called on Congress to hold hearings on this settlement, stating that they believed the settlement was a fundamental assault on U.S. Copyright law.

Last week the House Committee on the Judiciary heard from the LOC lawyer, Marybeth Peters.

But yesterday I received an email bulletin from the Authors Guild stating:

Judge Denny Chin granted the motion of authors and publishers to adjourn the fairness hearing scheduled for October 7th. While noting that the current settlement raises significant issues, Judge Chin says that ‘the proposed settlement would offer many benefits to society, as recognized by supporters of the settlement as well as DOJ. … It would appear that if a fair and reasonable settlement can be struck, the public would benefit.’"

I cannot find the words to express my horror.

OK, so since when could a court tell Congress not to hold hearings?

“Benefits to Society”

Huh? So now society has a right to read what I write simply because at some time in the past I signed a contract with a publisher who subsequently let the book go out of print and, consequently, let the contract expire and let my copyrights return to me. But now that I own the copyrights, the publisher can still permit a third party to copy my book in their typeset form and sell it—so long as the publisher gets a cut of the proceeds?

It’s called “copy” rights for a reason, folks.

To paraphrase Adlai Stevenson, I propose the following as the Authors Guild’s new slogan:

“Writers of the world unite! You have nothing to lose but your rights!”

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Andy Galek Murder Trial—Privacy of innocent bystanders

People really ought to try simple thinking occasionally. Most educated people these days seem to think wisdom is to be found in precedents, in the expressed “deep thoughts” of authorities. As a person who admires historical writers and philosophers, I myself often quote them and wonder what these wise people would have had to say about contemporary American society. Unfortunately, when you rely entirely on precedent, you often miss the contemporary truth.

Exegesis

American criminal law is exegetical. It relies on precedent. But precedents are ancient history. And, as James Joyce wrote 100 years ago, “History is a nightmare from which I am trying to awake.”

American law, though, is steeped in historical nightmares, and I do not mean the U.S. Constitution and Bill of Rights (which broke radically with the past); I mean the nightmare of English common law and appeals court precedents.

Privacy Rights

History does not provide us with precedents for the invasion of privacy by technological means.

It is a mistake to search for historical precedents for commercially broadcast trials in the past. It is also a mistake to assume that the Constitution’s “right to a public trial” is the same as the American public’s right to observe every trial conducted in every state court. And this Constitutional right certainly cannot be construed to mean that a private corporation has the right to exploit a personal tragedy or state criminal trial for profit.

TruTV is broadcasting a six-week-old Colorado murder trial. An 18-year-old named Andy Galek was tried in July, 2009, for the 2008 stabbing murder of a friend’s father. For those of you who found this blog by searching for the “Galek verdict,” here’s the TruTV “spoiler”: Found Guilty.

Galek claimed he was under the influence of alcohol and could not remember committing the crime. His attorney attempted to show “reasonable doubt” by pointing to the absence of physical evidence linking the young Galek to the crime and even by attempting to smear the good reputation of the victim’s wife and son.

  • Sidebar: I know I can be accused of hypocrisy here. To date, this blog has relied on TruTV’s broadcasts to exemplify the issues that interest me. I have also argued for live broadcasts of trials (civil, as well as criminal) as a way of exposing the justice system’s inherent flaws. My only excuse is that writers have no choice but to exploit reality every time they put fingertips to keyboard.

Let’s step back a moment from the sensationalism and “entertainment” aspects of this murder.

Ask yourself this:

  • If you woke up one night when your husband shouted, “Andy! Why did you hit me?” and then you jumped out of bed and followed “Andy” to the basement room where he was spending the night, how would you cope with having your tearful testimony broadcast nationwide, including a cruel cross-examination in which the murderer’s lawyer hinted that you were lying?
  • If you got drunk with a friend one night and when you sobered up discovered that your friend had murdered your father, how would you cope with having your unwilling testimony dissected by paid legal commentators on national, cable TV? (I found the criticism of the witness’s hair style particularly inappropriate.)

Witnesses to a crime are compelled to testify in open court. But should they be compelled to appear on commercial TV?

If you think about this—without searching for wisdom between the lines of an ancient text like a Medieval monk—you have to conclude that innocent bystanders should not be exposed to character defamation in public like this. (The defendant certainly has a right to cast doubt on every witness’s testimony, but that isn’t the same thing as becoming an accidental TruTV reality-show guest.)

How Did the Galek Jury Respond?

“Guilty of first-degree murder.”

Galek’s attorney surely would have served him better if he had fought for the “lesser and included charge” of second-degree murder or sought “jury nullification” by emphasizing the lack of motive and lack of premeditation.

  • Sidebar: TruTV’s legal commentators seem to be sincerely devoted to justice. Like writers, lawyers have no choice but to exploit tragedy in order to practice their profession, even on TV.

 

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The Garrido Nation – Who really knows where the bodies are buried?

Last month the San Francisco Chronicle published an article by staff writer Jaxon Van Derbeken that really should be read by every law enforcement official in the country, “Cops searched home, but didn’t see . . . .”

Briefly, Van Derbeken explains that Philip Garrido was fairly continuously in contact with authorities from at least 1976 until his arrest last month. He was a known, violent, sex offender. He was on parole when arrested and regularly saw a parole officer. Neighbors made several complaints against him. As a registered sex offender, in July of 2008 county authorities searched his home and property, saw a wall in the backyard, and didn’t bother to ask him what was behind the wall.

So, what are we to make of this?

I can’t believe that all of the law enforcement officials with whom Garrido dealt for three decades were remarkably stupid or poorly trained. Clearly, the law functioned as it was designed to do: for some of his crimes he was apprehended, convicted, paroled, registered, and monitored. At every turn, Garrido was afforded his Constitutional rights, as well.

But, the cops “didn’t see” anything wrong in the household. They saw an orderly household with an elderly mother and a respectable-looking wife – even after neighbors told them there was something very wrong with it.

Garrido’s wife apparently posed as the 11 and 15-year-olds’ mother: no one wondered why they were blond but she is brunette and in her mid fifties. I suppose it’s fairly common these days for women in their forties to have children, but this didn’t even raise an eyebrow although the woman was married to a registered sex offender.

Garrido frequently took his young daughters out of the house with him to distribute “religious” literature. “Reasonable people” such as customers of the Garrido printing business, thought the girls were “cute” and behaved quite normally. Then there’s the way Garrido is said to have heard God speak to him from a box and the way he rambled incoherently in public: did these witnesses who saw nothing ever wonder why the girls were cheerful even though their dad was obviously insane?

One woman even went so far as to tell the CBS Early Show that she thought Garrido’s victims should “step forward” and clear both Garrido’s name and hers (she apparently visited in the Garrido home and knew the children). This woman’s reaction is so inappropriate it boggles the mind, doesn’t it?

I’d really like to know how something like this could happen in an era when no one has any privacy any more.

My credit card records document most of what I buy and where I travel; my grocery store “discount” cards record everything I buy to clean my house, groom myself, and eat. My DMV records – well – they know everything about my auto purchases and movements. Each time I pass through a tollbooth, my car is identified. Amazon.com knows what I read and consequently most of what I think. Google knows everything else there is to know about me. IRS … Social Security … passport … Do I have any secrets?

But Philip Garrido – a convicted felon and known violent sex offender was permitted to keep everything he did secret – even when he did it in plain sight and out in his back yard.

Reprise of Worthington trial — Are parents guilty of manslaughter if a child dies in their care?

This week TruTV is reprising the 2008 Oregon trial of Carl and Raylene Worthington for criminal negligence in the death of their 22-month-old daughter (from pneumonia). The Worthingtons are “Followers of Christ,” a religious sect that practices faith-healing and eschews medical treatment.

TruTV is covering this as a “religious-freedom vs. child welfare” issue. I, however, see it as another case of our twisted family law system.

Oregon Laws

Apparently, in the late 1990s an Oregon law protecting people’s right to practice faith-healing when it comes to children was struck down. I understand the impulse: the state wanted to protect children, who by definition cannot make their own medical-treatment choices.

What troubles me about the Worthington prosecution isn’t the religious-freedom implications, though. Clearly, society cannot let a person justify all sorts of bad behavior under the guise of religious practices. We can’t permit female circumcision, for example. Freedom of religion, like freedom of speech, is not absolute.

Before I proceed, I would also like to point out that Oregon is one of the few states permitting assisted suicide (under its Death with Dignity Act). (I will return to this in a moment.)

I would also ask you to keep in mind the ongoing Garrido investigation near San Francisco, California – a situation in which a man enslaved and murdered children with impunity for about 20 years. Since “a man’s home is his castle” in California, as in most states, I assume Oregon’s laws concerning privacy and domesticity also respect a family’s privacy to this extent. And if one of the Worthingtons themselves had died at home for lack of medical treatment, no charges would have been brought (or would they?).

Death with Dignity

In one way I suppose I agree with TruTV about the religious-freedom implications of the Worthington case:  I do not want the government to tell me what to think or believe. The Worthingtons ought to have the right to believe they must trust God and demonstrate that trust by refusing medicine. Death comes to us all – most of us can’t choose the time of our death.

In Oregon, the Death with Dignity law attempts to enable some people to choose the time of their deaths. Apparently the legislature there concluded that the relationship between doctor and patient is a private one in which the state should not interfere. If a patient and a doctor agree that an illness is terminal, the patient should be able to end the suffering.

I wonder: Would the Worthingtons have been charged with crimes if they had found a pediatrician who would examine their child and then tell them the prognosis for recovery with and without medical treatment – but then who respected their right to choose no treatment? Would this consultation have been privileged? Would the physician have lost his or her license?

How is this different from assisted suicide? Well, first of all it was a child whose life was at stake, someone who could not make a decision for herself.

But how many seriously ill people also seek suicide when their judgment is clouded by pain or pain-killers? How often do family members ask doctors to “pull the plug” on comatose people who also cannot make a decision for themselves?

A Child’s Death

Who is ultimately responsible when a child dies, either in a home or in a hospital? Is it the parents?

Had the Worthingtons hospitalized their child for pneumonia treatment, would they have been guaranteed that the child would survive? According to the World Health Organization, the answer is NO. Even in the US, the CDC reports the infant mortality rate is increasing, apparently due to poor prenatal care and low birth weight. (Surely no one is going to mandate prenatal care for pregnant women. Some women don’t even know when they’re pregnant. I think I even saw a TruTV show about young women who gave birth without realizing they were pregnant – girls who gave birth in the high school restroom, for example.)

Given the Worthington’s beliefs concerning doctors, I’m guessing they used the services of a midwife in their home to birth the child. And apparently midwives do not require licenses in Oregon. So, I also assume they used the services of a midwife from their congregation, in other words, a midwife who did not have training in issues of prenatal care and nourishment. Consequently, I suspect that the child was very small at birth, a contributing factor to her inability to survive the pneumonia. (The lump on her throat did not apparently kill her, and the photos TruTV broadcast of this smiling child do not show a large lump; instead it looks like fat. While the lump may have constricted her trachea, it isn’t clear that the lump’s size was completely observable.)

So, what I don’t understand is how the State of Oregon can permit unlicensed midwives to practice but still hold parents responsible for children’s deaths. What happens when a midwife presides over a stillbirth or a “blue baby?” Is someone prosecuted then?

The sad fact is that children die, even when they are loved and cared for to the best of their parents’ ability. Children run into the street and are hit by cars. Children fall from tree branches and break their necks. Children die of the flu. Children even die in hospitals while under a doctor’s care.

The State of Oregon must have been aware of the Followers of Christ. It must have known there were children among the congregation. It must have issued a birth certificate when the Worthingtons’ baby was born. But, instead of intervening in the family in advance of the illness, the state waited until the child died and then charged the parents with manslaughter.

This is my mantra: American authorities always fail to intervene in high-risk family situations.

When tragedies occur the state’s attorneys swoop down – but only after the fact, even when there’s clear evidence that vulnerable people are being mistreated by their putative caregivers.

The problem is the law.

Privacy Rights

Above all other rights, Americans value their privacy rights. It doesn’t matter where you stand in the spectrum of political opinion, every citizen understands that privacy is fundamental to all the rights in the Bill of Rights (thanks again to Cornell University’s excellent website). (BTW: There is no expressed right to privacy in the Constitution.) BTW: Oregon’s Dept. of Human Services also has a very strict policy concerning privacy of their “clients.”

I am no different. I value my privacy. The problem I have – and we all have – is balancing respect for privacy with justice.

How many times do we have to see the aftereffects of state-mandated protection of adult privacy rights? Isn’t that what Oregon’s midwife law is all about, protecting an adult’s right to give birth without a doctor?

How can it be possible that a man in California could abduct little
girls, rape them, enslave them, and force them to bear his children? If he hadn’t decided to spill the beans himself, no one would ever have done a thing about Garrido. Law enforcement was several times alerted to Garrido’s criminal behavior, but no one ever asked for permission to enter the home and look around. In several instances, there was “probable cause,” but law enforcement still did nothing. (At least once, a woman charged him with rape but he was never arrested, and at least once neighbors complained about young girls living in Garrido’s back yard.)

How can a state justify assisted suicide but punish people who avoid doctors? How hypocritical for the State of Oregon to permit people to practice their religion and produce children who are doomed to endure childhood illnesses and then try to throw the parents in jail!

What’s My Answer?

I’m afraid I have to say that freedom of thought, speech, and religion is so important that I think the state must never interfere in the practice of religion unless it violates the law or the rights of someone else.

In this case, there is no right to medical care only a right not to go to a doctor. Children have no rights under the Constitution. Children are only “protected by the law” from intentional harm. There is no requirement other than that parents do not intentionally maltreat their children.

If a parent doesn’t want their child to have braces on their buck teeth, that’s their right. If a parent doesn’t want their child to eat meat, they don’t have to feed their children meat. If a state objects, the state can provide information about the possible consequences of the way the parents are raising their children, but a state should not try to mandate parental behavior when it is within reason. I realize some people believe that religion is inherently unreasonable, but the fact is that a belief system is the product of rational thought, even when it is erroneous.

However, a state should license midwives and ensure that they know how to advise women on proper prenatal nutrition and how to birth a child without traumatizing the baby, thus causing lifelong problems. The state should work with religious leaders to prepare training and licensing programs that do not infringe on religious beliefs.

State health agencies should be aware of families that do not wish to use medicine. Children in those families should be known. If possible, physicians should have limited access to those children with parental permission, and they should tell the parents when they detect a serious health problem in a child. Only if the parent is fully informed can the parent make a decision about the child’s health. There is no evidence that the Worthingtons knew their child would die.

Unfortunately, I think I have to say that if a parent decides not to give medical treatments to a child – knowing the risks – we have to leave the family alone. There is no law mandating medical treatment. Even the AMA claims a physician’s right to deny treatment.

The line between state-mandated religion and freedom is too thin. I don’t think any American would want children to be entirely under state control even if it is supposedly “for their own good,” because each American defines “good” differently.

The best we can do is educate citizens and help them to make wise decisions about their children’s welfare.

The Worthington Jury

The Worthingtons should never have been indicted. If indicted, a judge should have dismissed the charges. A key component of any crime is intent, and there is absolutely no evidence of intent to harm the child. On the contrary, these parents demonstrated nothing but love for their child and their God. The trusted in God.

If the case had been brought before a jury, at the conclusion of the prosecution case when the defense petitioned the judge to dismiss the charges, that’s what the judge should have done.

A jury should never, never have been asked to decide this case. Any juror is going to side with the state. We all feel responsible for children. We fear for children.

Or do we? How often do teachers keep their mouths shut when they see that their students are victims of abuse? How often would you be willing to call the cops on a neighbor you suspected of abuse? Wouldn’t you be afraid of a lawsuit?

American law doesn’t know what to do to protect children. The solution is not in the courts.

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Jury Duty in Ancient Athens

American juries are “juries of one’s peers.” We rather arrogantly assume ours is the most advanced, democratic form of jury and that the modern jury system is the best justice system history has produced. At least I certainly thought so until I visited the Agora Museum in Athens, Greece, housed on the site of the Stoa where Socrates, Plato, and the other great Greek philosophers gathered to discuss concepts such as justice. Now I think we might learn a few things from the ancient Greeks.  Athens-Jury-Duty Every citizen of Athens was eligible for jury duty. Juries could be comprised of the entire citizenry of around 5,000 men or as few as eleven (it was always an odd number, though).


The marble slab to the left is the ancient jury-selection machine, which is now on display in the Agora Museum (I took the photo in Sept. 2009).


What looks like marks on the marble slab are actually thin slots carved into the stone. Each row of eleven slots was used to select jurors.


When called to jury duty, each man presented himself at a room in the Stoa where the presiding magistrate’s offices were housed along with the jury-selection machine. There the citizen inserted a small, thin, lead ribbon with his name written on it (the rectangular objects in the lower left) into a slot in the jury-selection machine.


A funnel containing a number of white and black marbles was then inserted into a hole in the upper-left corner of the tablet. The marbles drained from the funnel into the hole and then down the left side. At the beginning of each row of ID tags was a window through which the resulting column of marbles could be seen. Where a white marble came to rest indicated a row of selected jurors. A black marble indicated a row of dismissed jurors.


The discs in the lower right of the picture were used as verdict ballots. There were two types of ballots: the guilty ballot had a small, solid knob in the center; the not-guilty ballot had a small, hollow knob in the center. Jurors carried one of each with them into the trial, which took place in a nearby theater, such as the Theater of Dionysus at the base of the Acropolis. They held the discs in their hands with thumbs and fingers covering the knobs. At the end of the trial, jurors dropped one of the ballots secretly into a verdict box. All verdicts were by a simple majority.


Athenian v American Juries


Initially you may think there is little difference between an Athenian jury and a jury of peers in the Anglo/American tradition, but in fact there are radical differences.


First, Athenian citizenship was strictly regulated: only men born in the Athens polis were entitled to citizenship. You could not become a naturalized citizen if you were born elsewhere, even if you lived in Athens most of your life and were rich as Croesus. Women were not citizens.


Second, there were no other qualifications for serving on a jury. There was no voir dire. No one could be excluded from a jury for any reason other than random chance. A juror could even be an injured party, such as the son of a man who was murdered. In fact, it was assumed that as a citizen you would be knowledgeable and have a stake in the outcome of every trial. Athenians were not concerned about prejudice: if a defendant happened to have made enemies, as far as the ancients were concerned he deserved to be punished.


But perhaps most importantly no citizen was anything but a peer of the accused, so the idea of a jury of one’s peers being a legal right was of no consequence. For there to be peers in a society, there must also be citizens who are not peers. In other words, “a jury of one’s peers” implies a hierarchy. In American justice this hierarchy is two-layered: at the top of the heap is the state and under that is the citizen-juror and defendant. In other words, American justice recognizes that the state has far greater power than any individual, so a just jury is one made up of individual citizens, not of government officials.


In ancient Athens, the state did not have as much power as a modern state. Athenian democracy was direct, not representative. Every citizen voted on everything. There were no Senators, as there were in Rome, for example. Every year, three magistrates (called “archons”) were elected by votes of the complete citizenry. And every year, at least one politician was voted not only out of office but out of the polis by ostracism. There were no judges and no prosecutors for the state. There was no police force. There were no career government bureaucrats. A defendant had no one to fear but the jury.


Rule of Law, Not of Judges


In Athens trials were not presided over by judges. This, too, was an aspect of their direct, radical democracy – and it is one that has great appeal for me.


Instead, the magistrate (or “archon”) responsible for the justice system took depositions and evidence from all parties involved in a dispute, including murders. He determined whether or not there was adequate evidence of a crime or of the identity of the perpetrator. Then he sealed all the evidence in a jar (an amphora, for example) or several jars for safe keeping until the trial. (I imagine these jars were well-guarded in the archon’s office.)


The accused then hired two or three types of representatives (who were not lawyers): possibly a sycophant (aka, a briber), a rhetor (a writer), and an orator. The victim hired only a rhetor and an orator.



Sidebar: Since I’m particularly interested in courtroom rhetoric, I find the role of rhetor fascinating. I might even write a story about an ancient rhetor, come to think of it.


The sycophant was a go-between. He offered the injured party compensation to withdraw the complaint, rather the way a civil litigator offers to pay damages to the plaintiff in a lawsuit.


The rhetors wrote arguments for the parties. The orators delivered the rhetors’ speeches during the trial (they were fluent speakers, rather like actors).


And, of course, the jars were opened at the trial, and the evidence for both sides was presented to the jury.


The beauty of this system is that the jury was the arbiter of the evidence. No judge excluded evidence as prejudicial to either side. No judge excluded evidence as irrelevant. The jury was entitled to know all the prejudicial evidence. And doesn’t that make sense? Isn’t any evidence of guilt prejudicial to the guilty party anyway?


Thus the character of the parties was taken into account by the jury. The jurors likely knew all the parties’ characters, because Athens was a small town in comparison to American cities. A person’s character was expected to have a direct bearing on how the jury interpreted the sworn statements of the parties.



Sidebar: What is the logic of withholding some evidence from a jury when judges always instruct juries to rely on their own judgment of the truthfulness of the witnesses and the validity of the evidence? A jury is told it can disregard all or any part of a witness’s testimony, including expert witnesses. If evidence is admitted by a judge, why should it still be questionable? On the other hand, if juries can evaluate evidence, then why should a judge exclude some evidence?


Of course, the Athenians had no CSI equivalents. Juries relied primarily on the character of the witnesses when evaluating their statements. But neither did Athenian juries have to listen to “junk science” testimony. No judge sat pompously on his bench and admitted into evidence spurious statistics and silly comparisons of hair and fiber samples as “consistent with” or “not excluded from” the defendant’s hair and clothing samples.


But That Was in Another Country, and Besides . . .


Most guilty verdicts resulted either in ostracism or death by hemlock. Athenian prisons held no one but condemned men and then only until they drank the hemlock. And no one but citizens were entitled to a trial. Women and slaves were simply killed if they acted up. Whether or not a defendant was actually guilty of a crime, the verdict always reflected the desires of the citizenry to be rid of the individual. Citizenship was a club from which you could be excluded if they took a dislike to you.


But a few aspects of the ancient system have some appeal to me:



  1. Jurors were chosen entirely at random without the filter of voir dire.
  2. While the identity of the jurors was public, their votes were completely secret.
  3. Judges did not withhold any evidence from the jury.
  4. Judges were not appointed for life or popularly elected: there were no judges, only a one-year-term archon.
  5. There were no lawyers, because the laws were well understood – requiring no interpretation during a trial.
  6. There could be no “hung juries,” because a single vote could decide the case. That meant no mistrials and no retrials at public expense. (I don’t advocate this for America, but the difficulty of reaching unanimous verdicts is certainly a modern problem.)

 


Murder or Suicide by Aspirin Overdose?

Last week I literally climbed Mt. Parnassus and visited the Oracle of Delphi. But people living in Illinois who want to know when disasters are about to occur need not go to such extremes. Instead of visiting an oracle they might want to keep track of my comings and goings. It seems to me that when I return from travel in late summer or early autumn, the headlines are always startling.

I remember returning to Chicago in the mid-1980s to headlines that Chicago’s first African-American mayor had died of unexpectedly. I returned to Chicago when Hurricane Katrina was about to hit New Orleans. And yesterday I returned to headlines about the apparent “death by aspirin overdose” of former IL governor Blagojevich’s indicted aid, Chris Kelly.

Only in Chicago would the chief witness for the prosecution die from a suspected aspirin overdose.

Not only that, but apparently Mr. Kelly committed suicide in a lumber yard in Country Club Hills, a southwest suburb (his home is in Burr Ridge). He was driven to Oak Forest Hospital (not in Country Club Hills) by a mysterious “girlfriend,” where he was “stabilized.” In other words, he was no longer in danger.

  • Sidebar: Why does this lumber yard make me think of Kafka’s The Trial? Could it be his “lumber room”? Or maybe I should think of Fargo. What is it about lumber and people charged with crimes?

As consequence, he was taken by ambulance to Stroger Hospital (aka Cook County Hospital). This, in itself, is peculiar. Stroger Hospital is a Medicaid hospital, essentially. It is renowned for its gunshot trauma expertise. Anyone with medical insurance or any financial means of any kind would have gone to just about any other hospital in the area, including the University of Chicago Hospital (where Michelle Obama was until recently in charge of community relations, just to give you an idea of its prestige).

Unfortunately for Mr. Kelly, Stoger’s trauma unit was apparently not trained in aspirin overdoses, because he died there in mid morning on Saturday. It might also be noted that the hospital is named for the former Cook County Board president, John Stroger, father of the current president, Todd Stroger, who inherited his elected position and is (purely coincidentally) currently under siege by IL state legislators for his high-handed management style and for his raising of Cook County sales taxes to the highest rate in the nation.

image I suppose stranger ways of committing suicide have been used successfully. But isn’t it interesting that Mr. Kelly was scheduled to be the prime witness for the Feds in the coming trial of former Gov. Blago?

BTW: Cook County has a Medical Examiner, not a coroner. There will be no coroner’s jury. Instead, the matter of this suspicious death will go to a grand jury – yet another jury I would not wish to serve on.

(To the left is a photo of vials that held a dose of hemlock for condemned prisoners in Athens. Like Socrates, for the good of the republic politicians swallowed poison. Taken in the Stoa, the Agora Museum of Athens, Sept. 6, 2009.)

I just don’t get this whole death-penalty thing

After hearing the 911 call of Denise Lee, I concluded that if anyone ever deserved the death penalty it was Michael King. I even entertained a scenario where I might be on a jury and might be able to vote for capital punishment. After all, if the law asked me whether I felt a Michael King deserved mercy, I would definitely say, “No.” Few killers I can think of would deserve anything but punishment.

What good comes of an execution?

But after listening to his family and friends testify in the penalty phase of the trial, once again I find that I can see no good coming of a death-penalty for this monster or for anyone else. Absolutely no good.

The family and friends of a murderer are as innocent as his victim and his victim’s family and friends. King’s son will have to grow up and live with the knowledge that he loved a monster. His parents have to live with the knowledge that their son caused great suffering – they raised him, they did what they thought was right, and they failed their son and society. His brother feels guilty for a snow-mobile accident that permanently damaged King’s brain; he clearly feels as if his brother would never have become a murderer but for that accident.

Yesterday an older brother and his wife testified about the normal, average-American family life of the murderer. They smiled and laughed nervously about memories of family gatherings. (Ashleigh Banfield was appalled, while I was greatly saddened. As usual, I reacted about 180-degrees differently than most people, I guess.)

“Flat affect” versus “Disassociated affect”

Throughout the trial, TV commentators (lawyers) remarked on King’s “flat affect.” I believe they misused that psychological term. In King’s eyes throughout the guilt phase of the trial I saw anger and despair. Today a psychologist confirmed my opinion, saying that King was doing what anyone would do when confronted with the horror of what he had done—he was zoning out.

“Flat affect” is something else all together. It is the emotionless face of a sociopath, a person who feels no emotions. King clearly feels sorry for himself.

If the King defense claims this killer was insane when he committed the crime, they will be making a big mistake. In my opinion that can only anger the jury, especially after they did not put on an insanity defense during the guilt phase of the trial. I can’t help but wonder why they didn’t plead insanity after hearing this testimony. People can have periodic psychotic episodes. King clearly has a history of brain damage and inexplicable behavior. I don’t think an insanity defense would have  produced a not-guilty verdict, but it might have prepared the way for a jury recommendation of life imprisonment.

Vengeance Is Mine, Saith the Lord

In the Judeo-Christian tradition, believe it or not, individual revenge is not justified. We do not believe in “an eye for an eye, a tooth for a tooth.” (Apparently Islam does, and in Saudi Arabia, therefore, they chop off thieves’ hands.) Vengeance is the right only of the Lord. Justice does not occur in life.

The families of murder victims often think they will “get closure” when a murderer is executed. They are sadly deluded. Revenge is angry. Anger wounds the person who feels the anger. Denise Lee’s family will only hurt themselves more if they do indeed watch Michael King’s execution. It will only bring back the pain of Denise’s death. They need to let go of their anger now. Her killer was caught and found guilty.

What Good Does the Death Penalty Do?

I was pleased yesterday when TruTV debated the death penalty. It confirmed my belief that many lawyers believe that forensic science is infallible and that there is no longer any chance that an innocent person can be executed. (I will write more about this latter.)

One commentator claimed that America has more psychotic, evil killers than other countries, and that is why European countries do not have the death penalty. What nonsense. Please look at this Wikipedia page on worldwide murder rates. If I could get lawyers to quit throwing around specious statistics to prove their points, I would feel as if I had accomplished something with this blog.

The death penalty does not serve to deter crime (especially against law-enforcement, women, and children). All it does is tell society that killing is acceptable. The death penalty does not ensure that killers will not be able to kill again, any more effectively than life imprisonment does. The death penalty costs society far more than life imprisonment does. The death penalty clogs our appeals courts. The death penalty takes so many years to be “executed” that it doesn’t even necessarily shorten the life of a murderer.

The death penalty is just another horror.

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A man’s home is his castle and apparently his backyard is his courtyard

In commenting recently on the Alvaro Castillo case I said that one problem with domestic abuse is that our society, and especially the law and law enforcement, treats a household as sacrosanct under the mistaken assumption that Constitutional protections against unlawful search and seizure trump the rights of subservient residents in a household. By ‘subservient residents’ I mean for the most part women and children who live in the control of the head of the household.

If the Garrido case isn’t proof of my contention I would like to know what you would accept as proof.

CNN reports:

  • “Police acknowledged Friday that someone called 911 in 2006 to report that children appeared to be living in tents in a neighbor’s backyard. Contra Costa County Sheriff Warren Rupf told reporters a deputy visited the Garrido home after the call, but did not go in the backyard.”

This is clearly not a case in which law enforcement genuinely had no cause to insist on inspecting all parts of the man’s property. It is yet another pathetic example of the way law enforcement respects a man’s rights to do as he pleases on his own property, even when there is evidence that what pleases him is illegal.

Or what about Garrido’s abduction and rape of Katie Hall in 1976? She stood there naked, pleading with a cop to rescue her. That was over 30 years ago. We haven’t learned anything in all that time.

I still believe that the reason Michael King was so brazen in his abduction of Denise Lee boils down to the same thing. In the past, King apparently was accused of holding young women against their will and in at least one case of threatening to kill a young woman. TruTV’s Ashleigh Banfield said that didn’t “sound like an indictable offense.” Huh?

I suspect King killed before and got away with it, even when the police were alerted.

This isn’t a Constitutional crisis or a time to enact new laws. It’s just time for people to insist that the cops arrest the dominant, physically stronger person in any situation involving domestic violence.

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