Hamlet Scene by Scene

My post on the “coroner’s” verdict in Shakespeare’s Hamlet has attracted so many visitors that I’ve decided to create a Facebook group on the interpretation of the play. I invite you to join me at Hamlet, scene by scene.

I hope Shakespeare lovers, students struggling with Shakespeare, actors seeking to understand the play deeply, producers and directors, and others to join the group and join in the discussion.

I have a Ph.D. in English Renaissance literature, but it wasn’t until I gave up academe and turned to pulp fiction that I finally understood what Shakespeare was doing when he wrote the play.

Yes, I’ve read the scholarly criticism and pondered the arguments about the play’s “meaning.”

Even so I guess it takes a writer struggling with writing problems to see the very clear and simple meaning of Hamlet.

Hamlet’s meaning is found in the plot as surely as my mysteries’ meaning lies in the plot—and the characters, of course. But if you don’t understand the plot of Hamlet, you can’t understand the character, Hamlet, either.

The play is a murder mystery. I write murder mysteries. I invite you to hear what this mystery writer has to say about the greatest mystery writer of all time, William Shakespeare.

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First Female Detective: Kate Warne

Nothing is known about Kate Warne’s origins, other than what Allan Pinkerton of Chicago’s Pinkerton Detective Agency wrote about her. According to Pinkerton, in 1856 Kate Warne showed up on the agency’s doorstep and asked Pinkerton for a job as a detective. She offered no qualifications, gave him no references, and told him nothing about herself except that she was from New York and wished to be addressed as “Mrs.”

I’ve always wondered what secrets Kate had locked in her heart on that day in 1856, and I always wanted to write about her. Last year, Mystery Writers of America gave me an opportunity to achieve my dream: I wrote a short story about her, “The Very Private Detective,” which was selected for inclusion in the MWA 2013 anthology, THE MYSTERY BOX.

The Pinkerton Detective Agency in Chicago is the reason private detectives are called “Private Eyes” now. Pinkerton’s logo was “The Eye that Never Sleeps.” Frank Morn’s The Eye that Never Sleeps is an authoritative history of the agency, a book I reviewed in 1982 for Chicago History Magazine, because of my interest in Kate Warne.


If it wasn’t an Elvis impersonator, it had to be a Republican

Yes, I am a conspiracy theorist, and why not? Most of the evil in the world is the result of groups of people banding together to do a lot of harm to everybody else. When it’s a party (like the Communist Party) or an evil nation (name your favorite), no one calls it a conspiracy, but it is.

On the other hand, the Justice Department seems to think evil is done only by lone lunatics. For instance, the feds insist the Tsarnaev brothers acted entirely in isolation, and they insist the ricin-laced letters were the work of a lone lunatic from Mississippi. Of course, they may be right this time, but I find it very odd that first they arrested an Elvis impersonator (as if his profession were indictment enough) and now, according to Reuters, they suspect a former Republican candidate for the Mississippi state legislature.

I can’t help but recall that in 2001 the FBI was also certain the anthrax letters were the work of a lone lunatic, too—a lunatic they never managed to track down.

A few days after 9/11, the National Enquirer’s headquarters in Florida received the first of the anthrax-tainted letters. Media and investigators at first speculated the letter-writer had acquired the anthrax powder they contained from anthrax-infected soil. Later it was proven that the strain of anthrax had come from a lab in Ames, Iowa (known as the “Ames strain”). No connection was made to terrorism until contaminated threatening letters were sent to politicians in D.C. and news media in New York. Even though the letters included references to the 9/11 attack, authorities believed the letters to be the work of a lone, domestic terrorist.

During this period I subscribed to a forensic linguistics mailing list, among whose members was the FBI profiler in the case of the Unabomber, James R. Fitzgerald. Academics on the mailing list pointed out to him many clues to the authorship of the letters, including evidence the letters were authored by one person but handwritten by another.

The FBI never accepted the theory that the letters were the work of more than one person, nor did they ever take seriously the idea that there was foreign involvement in the incident. Once the strain was identified as the Ames strain, the investigation focused exclusively on individuals (not a group) who could have had access to Ames-strain anthrax.

At first, the FBI suspected a bio-weapons expert named Steven Hatfill (later exonerated). In 2005 a Maryland bio-weapons researcher for the Army, Bruce Ivins, came under suspicion. Ivins committed suicide in 2008. To this day no real proof of his guilt has been found.

The linguistic evidence of a conspiracy that I learned from the forensic linguistics mailing list still intrigues me. The linguists were divided on the issue of whether the author was a native speaker of English or of Arabic. Some suggested it might be a native Arabic speaker from Great Britain. However, one aspect of the letters contravened the idea of an Arabic speaker: the “signature line.” Each letter ended with “Allah is Great.” (All the letters were printed in caps and small caps.) An Arab would have used the phrase as a salutation.

The one thing on which all the linguists agreed was that the handwriting suggested the writer had copied from a text written by someone else. In other words, they found indications that the author of the text and the preparer of the envelopes and letters were different people. In addition, the moderator of the list, Dr. Margaret van Naerssen, proposed that the letters could have been traced from a dark original onto an overlying sheet of paper. The envelopes, however, showed signs of simply having been “eyeballed.”

Two additional aspects of the handwriting jumped out at me, as a textual critic (my Ph.D. is in textual criticism, literature’s version of forensic linguistics): the use of printed caps and small caps instead of caps and lowercase characters and the date at the top of each letter: 09-11-01. First, highly educated people, such as suspects Stephen Hatfill and Bruce Ivin,s would have printed like a child (caps and lowercase) in order to suggest a semiliterate writer. Second, the dates were a dead giveaway that in fact the author was literate: the six-numeral format with dashes rather than slashes is a digital format, suggesting the author was computer-literate, possibly a programmer who was used to typing dates in that format. If Dr. van Naerssen was right about the copyist, then perhaps the letters’ originals were printouts of caps and lowercase letters from a mechanical device.

I decided to emerge from my lurker status on the mailing list to contact Dr. van Nearssen with my ideas. She gave me James Fitzgerald’s email address at the FBI Academy, and I wrote to him. I told him I thought the letters’ originals might have been communicated from overseas to the U.S. via a handheld teletype device. In 2001 such mobile devices were widely available. The military used TTY devices, and the public could buy them at army surplus stores. Here’s how they worked: a walkie-talkie-sized device was attached to a telephone handset with an acoustical coupler that transmitted audible signals, rather like a telegraph. The recipient device produced a printout of caps and lowercase letters on adding-machine-like strips of paper. If the text of the letters had been input into such a device line-by-line, the first line would have been “Allah is Great.” But like tickertape, the last line input would have printed out first: the date, 09-11-01. That would explain both the use of caps and lowercase and the misplaced salutation.

FBI agent Fitzgerald was very kind; he didn’t call me a kook. But, then, neither did he rush off to follow the clue I gave him. As time passes, though, I become more convinced I’m right: an overseas mastermind used TTY technology to send the text of the anthrax letters to someone here, who then traced the printouts and copied the addresses onto the envelopes. That foreign someone could have been an Iraqi.

There’s no foundation for the FBI’s claim that the “Amerithrax” letters were the work of a lone, American terrorist. The letters themselves point to more than one person, and the anthrax could have come from almost anywhere. In the 1980s the non-profit American Type Culture Collection and the U.S. Centers for Disease Control sent biological samples of American anthrax to Iraq, among other countries, for medical research. (In retrospect, this was incredibly stupid, wasn’t it?) Frankly, I think this was a case of the FBI looking for its keys under a random streetlight, because it’s easier to see at that spot than in the dark parking lot where the keys were lost.

Russia warned the U.S. about the Boston bombers.

The press is calling the Tsarnaevs “Russians from an area near Chechnya.” This is incorrect. The Tsarnaevs are from Dagestan, a country in the Caucasus Mountains near Chechnya with which Russia went to war in 1999.

The AP in Russia reports that a series of violent incidents occurred while Tamerlan Tsarnaev was there in 2012: According to AP, in “February, 2012, shortly after Tamerlan Tsarnaev’s arrival in Dagestan, a four-day operation to wipe out several militant bands in Chechnya and Dagestan left 17 police and at least 20 militants dead. In May, two car bombs shook Makhachkala, killing at least 13 people and wounding about 130 more. Other bombings and shootings targeting police and other officials took place nearly daily [while Tamerlan was there]” The only part of Russia that Tamerlan actually visited was Moscow.

I guess his father is lying about what Tamerlan was doing while visiting him. He claimed Tamerlan slept a lot, ate, and visited relatives.

If the AP report is correct, then it looks as if Tamerlan went to “Russia” not for training but to participate in terrorist activity. Clearly, he didn’t need training. In fact, you might speculate that he went there to train others and not vice versa.

Russian authorities warned U. S. officials that Tamerlan was a dangerous terrorist last year after the violence in Makhachkala when he left to return to Boston. News reports are conflicting about what the FBI did as a result of the Russian information, but one thing they obviously did not do was discover that Tamerlan Tsarneav was as vicious as other Caucasian Islamic terrorists. (I have intentionally not used the term jihadist, because Caucasian terrorists are a complex mix of nationalists, fascists, and Moslems, among the most violent Moslems in the world—even more violent than the Taliban.)

This is insane. How could the FBI have let Tamerlan return to Boston? What kind of “intelligence” is the FBI using? All I had to do to find this out was to search Wikipedia and Goggle for “Chechen terrorist attacks.”

For that matter, how could the INS have let Anzor and Dzhokhar Tsarnaev immigrate in 2003? By that time they should have understood that Dagestan is a terrorist country. Terrorists from the Caucasus have committed some of the most heinous attacks on vulnerable civilians of all time. Only four years before the father and son came to the U.S., in 1999 Caucasian terrorists bombed several Russian apartment buildings, killing nearly 300 people. Immediately afterward, terrorist groups and sympathizers claimed the apartment bombings were “staged” by the Russian government in order to justify an invasion of Dagestan and Chechnya—exactly as the Tsarnaev parents now claim their sons were framed and that the Boston bombings were actually “staged” by the police.

One year before Anzor and Dzhokhar Tsarnaev came to the U. S., in October 2002 Caucasian terrorists invaded a crowded Moscow theatre and took 850 hostages. The Russians gassed them all. Again terrorist groups and sympathizers claimed the whole thing was staged by the Russians.

In 2004 Caucasian terrorists invaded a school in Beslan, Ossetia, taking 1,100 hostages, including 777 children. In the aftermath, as usual, there were charges of Russian involvement in the plot: defector Alexander Litvinenko (later poisoned with plutonium in his sushi) claimed that many of the terrorists had previously been imprisoned by the Russians, but were released so they could be used to stage the horrific event and thereby turn Russian public opinion against Chechens.

Isn’t it interesting that Anzor Tsarnaev and his wife now claim the brothers were framed by the Boston police?

There is something seriously wrong here. In 2003 the INS should have prevented Anzor Tsarnaev from immigrating here from terrorist Dagestan. Apparently, he asked for political asylum, claiming to have been persecuted in Russia because of ties to Chechnya. He may even have claimed to have been imprisoned and tortured in Russia. All of this should have been a dead giveaway to the feds that Anzor Tsarnaev was at minimum suspected by the Russians of terrorist ties. The truth is, it is possible that Anzor came here to establish terrorist cells. It would explain why he’s back in Dagestan now. The only explanation for his being permitted to enter this country is that the INS is staffed by incompetents who don’t know anything about history or geography. If they did they would have understood that Anzor was from Dagestan, not “an area in Russia near Chechnya.”

How could the FBI, the lead government agency in terrorism prevention, been unable to figure out that Tamerlan Tsarnaev was a terrorist who had gone to Russian to take part in a terrorist plot?

And how can so many politicians now claim with confidence that the Tsarnaevs aren’t part of a larger conspiracy? How can they claim they planned additional attacks, but only on their own? If I wanted to be reelected in 2014, I would keep my mouth shut until the whole truth comes out.

This is not America . . .

President Obama is an eloquent speaker. On Tuesday, he uplifted our spirits with these words:

We also know this — the American people refuse to be terrorized.  Because what the world saw yesterday in the aftermath of the explosions were stories of heroism and kindness, and generosity and love:  Exhausted runners who kept running to the nearest hospital to give blood, and those who stayed to tend to the wounded, some tearing off their own clothes to make tourniquets.  The first responders who ran into the chaos to save lives.  The men and women who are still treating the wounded at some of the best hospitals in the world, and the medical students who hurried to help, saying “When we heard, we all came in.”  The priests who opened their churches and ministered to the hurt and the fearful.  And the good people of Boston who opened their homes to the victims of this attack and those shaken by it.

So if you want to know who we are, what America is, how we respond to evil — that’s it. Selflessly. Compassionately.  Unafraid.

Sadly, though, I no longer believe we are unafraid. America has caved in to terror, and we did it back in 2001. We panicked. We didn’t stop and do the job in Afghanistan, which included not only destroying Al Qaeda then and there, but also the Taliban, evil incarnate. Instead we adventured into Iraq, convinced that they had weapons of mass destruction (and I still think they may have had and distributed them around the world to other irresponsible regimes before we had a chance to find them).

But seven years later, we changed our minds about both Afghanistan and Iraq and announced our withdrawal—without having accomplished any of our goals.

This is not America anymore.

It isn’t just our foreign policy that’s un-American now. We’ve trashed the Constitution and the Bill of Rights. We’re afraid of freedom. My proof is the popularity of the following popular witticism:

“The Constitution isn’t a suicide pact.”

If that remark doesn’t send a chill down your spine, you are too far gone to understand what I’m saying.

Freedom is a state in which fear must be constantly conquered, because freedom is based on uncertainty. Free people must be brave people. Free people are people who have emerged from their cocoons, because they are eager to take flight—into the wild, blue yonder. The wild is where freedom lies.

After the bombing on Monday, I turned off the TV and listened to a Pandora channel of Sixties songs. While I was dancing in the living room, I realized how different a time the Sixties were. It was a time when lyrics included lines like these from Steppenwolf’s “Born to be Free”:

Set your motor runnin’

Head out on the highway

Lookin’ for adventure

And whatever comes our way

Yeah, baby, gonna make it happen

Take the world in a love embrace

Fire all of your guns at once

And head into space

How naïve that sounds now. I can’t imagine any young person today who would even understand those lyrics. In 1967 everybody under 30 years old wanted to get away from the routine, try something new, see what they could discover, and “take the world in a love embrace.” The whole world. Its good and its bad. Its pleasure and its pain.

In 1967 we knew what freedom was: “nothing left to lose.”

Now America doesn’t care what freedom is. We’re afraid, so afraid we believe freedom is a suicide pact.


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Quiz: Are you a “highly sensitive person”?

If you answer “yes” to 8 or more of the following questions, then you are a “highly sensitive person,” as described in Elaine Aron’s book, The Highly Sensitive Person. If you answer “yes” to at least one of the questions, the odds are you have that affliction but have adapted pretty well:

1. Does the power indicator light on the TV at the foot of your bed keep you awake?

2. Do you always hear strange noises in a car when you’re driving or riding in it, even when the radio is on? Motor noises? Wheel and tire noises? Chassis creaks?

3. Do you smell things nobody else can smell? Smoke? Gas? Cinnamon? Hominy?

4. Do perfume and cologne irritate your nose? Even the scent of shampoo in your own hair?

5. Do you see things on the periphery of your vision that no one else can see? Lights? Shadows?

6. Are you unable to sleep in an airplane seat even in Business Class?

7. Is it always too hot for you in the upper balcony at the Chicago Civic Opera House or Chicago’s O’Hare Airport? (Chicago is often freezing cold, but neither of those establishments ever is.)

8. Does an Ikea store give you a panic attack?

9. Do you prefer ATMs to live bank tellers, because they don’t ask you for personal information (such as an ID picture) to cash a check?

10. Is one Godiva chocolate too many?

My condolences, if you answered “yes” to 8 or more of these very serious questions. On second thought, my condolences if you answered “yes” to 2 or more. Gagging at the smell of cinnamon is no laughing matter.

My congratulations if you did not.

And, if you’re highly sensitive, you should avoid jury duty!

Fragility of America—Part 2, Casey Anthony

Yesterday I ranted about the way the U.S. Constitution and our individual rights have been diminished by a nation a frightened rabbits.

Right now, half the country is trying to delete the Second Amendment from the Constitution: “the right to bear arms.” These timid, gentle souls seem to feel all we need to do to stop school massacres in this country is “get together and feel all right.” If law-biding citizens can’t buy certain types of weapons, they they argue, then neither can the bad guys.

Sidebar: Are you kidding me? Bad guys usually have to steal guns, that is, unless they can buy them from the ATF. Remember “Fast and Furious”? No? How quickly we forget bad things. Best to think positively. And another thing: If American gun makers can’t make automatic weapons, where will the U. S. Military buy them? From Russia? Oh, now that I think about it, maybe we already have an agreement with Putin to that effect.

In case you didn’t memorize the Bill of Rights when you were in school, as you ought to have done, here it is:

Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

In modern American English this means, because we need a competent, civilian defense force against our own government’s over-reaching tactics and possible attacks from beyond our borders, in order to be secure and remain free the right of the average person to keep and use weapons shall not be diminished in any way whatsoever.

Is the Second Amendment Obsolete in  2013?

That’s what the debate is all about. The Democrats (for the most part) believe the time has come when the average person has no good excuse for owning weapons. People don’t feel safe from attack even in their homes and certainly not in their schools. If you just dropped in from Love Planet Venus, you might see their point: 911 and a decade of hideous massacres in schools, gun murders in Chicago, gang violence along the Mexican border.

However, if you dropped in from Mars where men are still men and women are manly, too, you would see it differently. You would think: “Border violence, criminal gangs in Chicago, whackos invading schools with guns, Islamist extremists attacking embassies abroad. Sounds like this country needs a well regulated militia, because the police and military aren’t up to the job alone.”

An American from 1785 who dropped in on us would be shocked that the issue would require debate. He would form a militia, go down to the Mexican border the way Teddy Roosevelt did, and make quick work of the Mexican gangs (ever hear of Poncho Villa? No? Probably not. No one reads history these days.) Then he’d turn his horse north and charge up to Chicago, where he would do the same thing—using all the automatic weapons he could get his hands on. Undocumented aliens would be rounded up, too, and—not deported but—given the chance to become American citizens or go home and else apply for a work visa.

Sidebar: If you don’t travel much, maybe you don’t realize that Americans have to apply for visas to get into the majority of countries in world. You can’t just hop on a plane and go to Nepal or China. They won’t welcome you with open arms, especially not the Chinese. Furthermore, if you go to Europe, while you don’t need a visa, you do have to present your passport to enter and leave. You only have three months before you have to leave or apply for a visa. That’s right: an American can be deported from European countries.

In Antifragile, Nassim Nicholas Taleb explains clearly why we are now engaged in this debate: human nature tends toward the norm and tends to ignore the outliers, the odd events that aren’t supposed to happen. 911 wasn’t expected. School massacres aren’t expected. Apparently, these events so numbed us that we also ignored the growing threat of the Mexican drug gangs. Somehow we confused the defense of the Mexican border against criminal gangs with closing our borders to Mexican immigration.

The Bill of Rights Under Attack

IMHO: This current Second Amendment debate is simply a diversion from the real battle, which is over the Bill of Rights as a whole. What’s really going on is that over the decades, we have permitted the federal courts to legislate from the bench far too much. (I happen to believe the right to privacy afforded by the Fourth Amendment does afford the right to an abortion to a woman; so that’s not what I’m talking about.) It’s decisions like the one that permitted governments to seize private property and sell it to a private party in order to raise more taxes from the use of that property that drives me wild.

The most insidious encroachment on our individual rights is taking place in the criminal courts.

Take Casey Anthony as an example (and please pretend that you don’t know whether she was really guilty or not—briefly put aside your opinion; trust me, it won’t hurt a bit).

Fourth Amendment Rights:

The Anthony home and property were repeatedly searched with judges’ warrants, but the warrants did not state exactly what it was the cops were looking for, because they had no idea themselves. At one point, as I recall, they seized all of Casey’s shoes, for instance. And, as we all know, they seized a car titled to her parents. I don’t know what items were listed on the search warrants, although I imagine if I googled it I could find those warrants online somewhere, but I’m going to guess that the warrant for the car was specific but most of the others were not. If so, that was unconstitutional. But I’m sure it was legal, because over the years the courts have become more and more lenient in order to give the cops what we now perceive to be the powers they need to defend us from evil young women, like Casey.

Fifth Amendment Rights:

Casey was indicted by a grand jury, although grand juries are no longer required in all instances to indict a person for a capital or infamous crime. Most states now permit state’s attorneys to charge people. How this is justifiable under the Constitution, I don’t know. But if anything shows how we’ve watered down the Bill of Rights, it is this. The purpose of a “grand,” i.e, “big” jury is to make sure that the community as a whole agrees that an indictment is reasonable, not simply a single prosecutor. This is also true of secret trials before a single judge: the Constitution expected the whole community to sit in the courtroom, literally, and hear the state’s case. Now, of course, we’re so fragile and fearful of criminals that we not only accept prosecutorial indictments but we also have to televise infamous trials live “as they happen” so that the whole country can jeer and cheer the spectacle of a 22-year-old girl who “lost” her baby.

Double jeopardy was also an issue in the Casey Anthony case. Her lawyers properly balked at four counts of lying when most of her illegal lying (as opposed to her lifelong permissible lying) occurred on the same day and to the same detectiv
e. Last week an appeals court denied the claim that this was a Fifth Amendment violation of the prohibition against double jeopardy but did strike down two of the counts because they were supposed the same, two lies. Hmm.

A more evil trend in the courts as concerns double jeopardy, though, is the trend toward retrying defendants after the failure of the jury to find them guilty on one or more of the counts. Take as an example, Gov. Rob Blagojevich: when the first jury failed to convict him on all the charges, the feds tried him again on the remaining counts. Huh? The rational was that the jury was hung on half the points. But IMHO the Bill of Rights intended that any failure of a jury to produce a conviction is the same as an acquittal. The only possible explanation of our modern attitude is that we are too frightened to let anyone go free if we have even the slightest doubt about their perfect innocence—as if there really anything that’s perfect in this world.

Casey had to testify against herself. The whole country saw the broadcasts of her videotaped jailhouse conversations with her family—right after they took place and before the trial. Then the jury saw the videos again during the trial. Florida law requires all such material to be made public; they call it “Sunshine Laws,” as if the privacy of a defendant must be brought out into the sunlight lest she say something incriminating to a family member. What “free speech” was it, do you imagine, that the Florida legislature was afraid to let Casey say?

The items that police seize under warrants these days are retained by the courts as evidence. This is seizure, and its legal, but the Fifth Amendment clearly says that the people from whom it’s seized are entitled to just compensation. This means that valuable items of evidence must be purchased from their owner. If I recall correctly, though, the Anthony’s car was simply taken and after the trial, although she was found not guilty, it was destroyed. It seems to me that the Anthonys ought to have demanded just compensation for that.

Casey’s DNA was seized, too, as is every criminal defendant’s these days. And it won’t be given back. Because she was convicted of check fraud and lying to the cops, her DNA profile will remain in a government database. Any time any violent crime occurs, DNA evidence found at the scene will be compared to hers automatically.

Sixth Amendment Rights

Speedy trial: Casey Anthony spent so much time in jail before the trial, that she served the full term of her parole for check fraud had expired by the time she was released. (Of course, the judge who sentenced her later objected that he had intended her to serve her parole after the murder trial; despite the fact that the prison certified her as having completed the parole, and despite the constitutional prohibition against double jeopardy the state made her serve a second term on parole.)

Casey Anthony asked for a change of venue from her native Orlando, because the community was so incensed at her that she knew she couldn’t get a fair trial at home. It was the Salem Witch Trials in the Sunshine State. I still can’t understand why so many people took the Casey Anthony case so personally. It was as if half the people in this country felt they had been personally harmed by this person; and the other half felt that she was too evil to be permitted to live. Neither makes any sense unless you realize how fragile people in this country have become. We are so frightened by life that we can’t endure the thought of even one flawed individual in our midst.

Seventh Amendment Rights

Jury trials: After the Casey Anthony jury found her not guilty of murdering her child, pundits called for the creation of a system of “professional jurors.” If you think about this, and  note that most of those pundits were lawyers, you realize that what they meant by a “professional" juror was a lawyer. This is so ludicrous it barely deserves mention—but, no, it’s also more evidence of fragility. Naturally, lawyers are always looking for new ways to justify themselves and make aliving, but the real meaning of this phenomenon is that lawyers no longer trust the average American to make good decisions. Frankly, I don’t either, but I trust lawyers even  less. The education and preparation of most lawyers is “a glass bead game.” It’s self-referential. It’s incredibly narrow. But it was inevitable that this would happen, as soon as we started writing so many arcane laws: think The Affordable Health Care Act, which was so long no Congress-person had time to read it before the voted for it.

Eighth Amendment Rights

Excessive punishment: I firmly believe that capital punishment is excessive punishment, because it is irrevocable. So I would never have charged Casey Anthony with capital murder, even if I believed she was guilty. However, what strikes me about the charges against her is that they were excessive, even if she had committed infanticide. I say this because infanticide is quite common, and if we punished every woman who committed infanticide by executing her, there would have been five times as many females executed as there have been men. The charges against Casey were also “unusual” in that they were crafted just for her. Any other woman charged with the death of her child would have been charged at most with second-degree murder by abuse or manslaughter by negligence. But the prosecution had no evidence of abuse, only evidence of a loving mother, nor had they evidence of neglect, since Casey rarely let her daughter out of her sight. All the prosecution could do was throw all the spahetti at her to see what would stick.

The Constitution Prepares for Black Swans

In 1785 people knew that the universe has a high degree of randomness. Nothing is inevitable but death. Therefore, in writing the Constitution and the Bill of Rights they attempted to create a legal system in which unexpected outcomes would not punish the innocent. If the guilty went free, well, that was no skin off their backs (a cliché that refers to corporal punishment, BTW).

Over the years Americans have struggled mightily to remove all randomness from the system. We have tried to create a perfect system—to polish the rough diamond of freedom. In the end, though, we haven’t succeeded in bolstering our Antifragility but only in increasing out fragility. Now instead of a rough diamond, what we have is cubic zirconium.

Fragility of the American Justice System


Nassim Nicholas Taleb’s Antifragile: Things that Gain by Disorder is a revelation. At last, someone has explained to me why so little has ever made any sense to me, especially about the behavior of my fellow human beings.

One of the most important things that hasn’t made any sense to me (at least since 2006 when I served on a jury) was the American justice system.

The problem with American justice is that in the past 228 years the highly Antifragile U. S. Constitution and Bill of Rights has become fragile, in other words, by treating the Constitution as “a living document” instead of as a rock-solid foundation, Americans have slowly squeezed the elasticity out of it, so that now it is on the verge of shattering.

Sidebar: If you think I exaggerate, consider the NY Times Op-Ed’s recent screed: “Let’s give up on the Constitution.” (I won’t dignify this choplogic with any other comment.)

The original Constitution and Bill of Rights anticipated unexpected, anomalous events, what Taleb calls “black swans” (one-in-million events). But human nature and modern statisticians want to believe in a nice, cozy “average,” a Bell Curve. So we try to establish a “well-ordered society” in which nothing strange or shocking can ever happen. For instance, we outlaw automatic rifles and try to pretend the bad guys won’t be able to obtain them, or we become amnesiacs and forget about airplanes carrying no automatic rifles diving into buildings.

Rights to a Fair Trial and Just Punishment when Guilty

Under the Antifragile Constitution, Americans (and everyone else who lives here) enjoy these freedoms:

Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Sidebar: In modern American English this means, people have the right to own private property and to maintain their privacy; invasion of privacy and seizure of private property are prohibited unless the government has solid grounds for doing so and only if the government agents who perform the search and seizure have first sworn an oath as to what the grounds are, exactly what places are to be searched, and exactly who they intend to arrest or what they intend to seize.

Fifth Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Sidebar: In modern American English this means, no one can be tried for murder or any other notorious, horrible crime unless a Grand Jury has heard the outline of the government’s case and issued an indictment; the one exception is during wartime when the accused is a member of the armed forces; no one may be tried twice for the same crime; no one can be forced to testify against himself; no one can be punished without a trial; no one’s property may be seized by the government without compensation in some form.

Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

Sidebar: In modern American English this means, after arrest, criminal defendants have the right to a speedy public trial (no long drawn out investigations after arrest and no trials in secret);  it must be a jury trial and conducted in the legally defined community where the alleged crime occurred; an arrested person must be told exactly what it is he or she is believed to have done wrong and to have the witnesses against him make themselves known to him before the trial (no surprise witnesses for the prosecution); the defendant has a right to compel people to appear as witnesses in his defense, whether they like it or not; the defendant has a right to a lawyer.

Seventh Amendment: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

Sidebar: In modern American English this means, in civil court where two people have a complaint against each other, both sides have a right to a jury trial, too; the decision of the jury is always final unless a judge has the right under common law to overrule the jury. “Common law” means specifically the long-standing practices of Anglo-American courts.

Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Sidebar: In modern American English this means, punishment in all cases cannot be cruel (imposing irreparable harm on the defendant, who may actually turn out to have been falsely accused) or unusual (designed specifically for him or her and not otherwise specified in law). (These are my personal interpretations of the words “cruel” and “unusual.” Obviously, I am not a lawyer, just a very good reader of 18th c. language. I do not, as most lawyers do, think that the word “and” was used in the 18th c. to mean nothing but “and.” It also meant “or.” I acknowledge, however, that capital punishment is not included in this definition of excessive punishment, because the Fifth Amendment clearly states that a person can be “deprived of life.”

Do We Still Want Defendants to Enjoy These Freedoms?

Of course not. The courts have slowly watered each of these rights down, because we are more afraid of 10 “guilty men” going free than we are of 1 “innocent man” being punished. We think that those 10 criminals will rampage forever unless we make sure we can throw them in jail. We know that the 1 innocent will just sit there quietly in jail for 30 years and then lie down for the fatal injection. Few people care about this injustice any more.

We’re fragile as a society and individuals, too scared to do anything but accept the necessary loss of freedom.

Smart Grid Objectors Arrested in Illinois

This week a woman homeowner was arrested in Naperville, IL, for objecting to the local electric company’s forcible installation of a “Smart Grid” meter on her house. She said she objected because the meter is designed to wirelessly transmit information about what she is doing inside her home to the electric company. This, she said, was a “violation of privacy” and could potentially permit burglars to monitor when she is and is not at home (and they will).

IMHO this is all true. But I would argue that the Smart Grid is also a violation of the Bill of Rights, which gives Americans the freedom from warrantless search and seizure and from government “takings” without just compensation.

First, I need to make sure you understand what the Smart Grid is and why it’s a government program, not a program of private industry (namely the energy companies). The Smart Grid concept was dreamed up after the massive power outages in California and the Northeast in the past decade. The government decided that a computer system ought to be devised to control the distribution of energy throughout the country according to supply and demand. (Of course, this presupposes that energy-company and government computer programmers are smart enough to design and implement a smart system—something in my vast experience as a computer-systems trainer I know they are not.)

Last year the Illinois legislature passed a law that requires all homeowners and businesses to participate in the Smart Grid (with some odd exceptions). Specifically, each township must negotiate a discounted energy price for all its constituents from one of the energy companies that runs exclusively on the Smart Grid, as opposed to Commonwealth Edison, which gives consumers the option.

Sidebar: The irony here is that IL has now created town-specific monopolies to compete against Commonwealth Edison, which historically was Illinois’ monopoly and which had to be broken up decades ago to bring in competition and more choice for consumers.

Why Does the Smart Grid Violate Your Right to be Free From Warrantless Search and Seizure?

The Smart Grid constantly monitors your energy usage. Day and night. The meter transmits this information to “Gestapo Headquarters” where a database is collected on your home or business. The data will be graphed and charted. The graphs and charts will be filed for later inspection by the government.

“Why would the government bother to do that?” you ask. Well, did you take an energy tax credit on your last tax return? The IRS could look at the Smart Grid data on you and use that to require an audit of your taxes and possibly charge you with tax fraud. In other words, the government won’t need a warrant to look at your private files, because the energy company will claim the data belongs to them and they will be happy to turn it over to the government. (BTW: Isn’t this the essence of fascism?)

Why Does the Smart Grid Violate Your Right to be Free From “Takings”?

The Smart Grid takes away from you the use and control of your energy-supply systems—and use and control is the same as ownership. Right now the wiring in your home, your fuse box, your hot-water heater are your private property. You can use and control them. The Smart Grid gives the use and control of your private property over to the people who use and control your energy meters.

The real purpose of the Smart Grid from the government’s perspective is rationing of energy in the future when it becomes increasingly scarce. To prevent the possibility of a power outage even in a single neighborhood, during shortages the government will require your power company to reduce the amount of energy they supply to your home. The reduction percentage will be across the board, not based on any home’s individual needs.

For instance, let’s say you’re caring for an invalid in your home. So your home needs twice as much energy as your neighbor’s just to keep that person alive, let alone keep your refrigerator going or your home cooled in a severe heat wave. Well, the Smart Grid meter on your house will first of all constantly harangue you to reduce your energy usage, especially in the middle of the night—constantly, as in not only during shortages. Then when the first shortage comes along, the meter will arbitrarily reduce your usage for you.

If you run a computer-based business on commercial property or in your home, the Smart Grid will treat you the same way it treats a neighboring dog-grooming business. No more electricity for you. . . . (paraphrasing the Soup Nazi).

So, beware. If you are given an “Opt-Out” of the Smart Grid, do it, even if it will cost you a little more now for your energy. In the future it could make the difference between having a right to buy the energy you need or not.

The Grand Jury in Shakespeare’s Hamlet

Okay, so we all agree that Shakespeare’s Hamlet is a ghost story and a murder mystery (like Chalk Ghost by yours truly), but did you know it’s also a courtroom drama?

To remind you: In the play, Hamlet, Prince of Denmark, kills Polonius (stabs him behind an arras), who is his girlfriend Ophelia’s father. Eventually (Act IV, scene v—in Roman numerals that no one can read anymore that means Act Four, scene 5) Ophelia’s brother Laertes storms into the castle and tries to “arrest” King Claudius, whom he mistakenly believes to be the man who murdered his father.

Recently, when rereading Hamlet for the umpteenth time, I noticed for the first time that Claudius employs a grand jury to exonerate him of the charge of killing Polonius. Toward the end of the aforesaid scene, King Claudius says to Laertes, speaking Early Modern English:

“Go but apart; make your choice of whom your wisest friends you will, and they shall hear and judge ‘twixt you and me. If by direct or collateral hand they find us [that is, the king who’s always plural] touched, we will our kingdom give, our crown, our life, and all that we call ours, to you in satisfaction; but if not, be you content to lend your patience to us, and we shall jointly labor with your soul to give it due content.”

In Modern American English this means:

Go outside and choose a jury of your friends. I will present my case for innocence to them. If the jury finds me guilty of direct murder or even of instigating your father’s murder, I will turn over the keys to the kingdom to you in payment of my debt to you. But if they don’t find me guilty you must agree to go along with my plans to punish the guilty party (that is, Hamlet).

King Claudius and Laertes leave the stage. They return in the next scene, after the grand jury has met and failed to produce an indictment of Claudius. Claudius says:

“Now must your conscience my acquittance seal. . . .”

Claudius claims he’s innocent of Polonius’ murder—and he’s right about that, although it’s the only murder in the play that he is innocent of.

Justice in Hamlet and the Bible

Reading Hamlet for the first time as a mystery writer, I’m struck by the number of legal references in the play. I won’t list them now (maybe later), but the idea of justice that Claudius relies on does strike me as particularly relevant to many of the trials that America has obsessed over recently (think Casey Anthony).

For Claudius and everyone in Shakespeare’s time, justice isn’t sought through trials on behalf of society: justice is sought on behalf of the injured party, rather as our civil court system does. Even murder in Hamlet is a crime against the victim’s family, not all of Denmark. In fact, the only murder in Hamlet that is a crime against society is Claudius’ murder of King Hamlet, a murder he committed in order to usurp the throne.

The Bible (especially the Old Testament) also treats most crimes as crimes against individuals, not society: “an eye for an eye, a tooth for a tooth.” The Ten Commandments are mostly prohibitions against injuring others—coveting a man’s wife or ass, for instance. Even in ancient Greece, a murderer was brought to trial not by society but by the victim’s family.

This makes a great deal of sense to me: the people most concerned by a murder are the victim’s family. I’m not saying I think we should do away with anti-murder laws. Clearly modern society must have a way to remove from its midst those individuals who are anti-social, or else they will continue to harm more innocents. But in Shakespeare’s day, the notion of sociopathy and psychopathy were non-existent. Madness, it was believed, could be either divine or infernal, and in both cases God, not the court system, was expected to deal with the problem. You could be executed for just about any crime, too, whether killing a rabbit on the lord of the manor’s manor-grounds or for killing your baby.

The key thing is that society as a whole didn’t become rabid about a single murder. Society went wild only when the murder affected all of society—such as the murder of the king, the equivalent of a political assassination today. An assassin takes in his own hands what ought to be the choice of the whole nation. A mother who may or may not have killed her child—whether accidentally, negligently, or intentionally—ought not to be the business of the whole nation. Yes, arrest her, try her, and punish her like Claudius suggests, but “if they don’t find her guilty, society must her acquittance seal.”

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