Tuesday, May 13, 2014

Bear Fiction

You never know what the Bear will drag out from his cave. Some people may like that; most people like to know what they're getting into when they follow a blog. Sorry, but bears are notoriously unpredictable. Here is a short story. Legal fiction, if you will. After spending the bulk of his career doing death penalty cases, the Bear can tell you this day is nearer than you know.

Paper Roses

By: St. Corbinian's Bear

Twelve months probation was not a bad deal for a case like this. Better than any Steiner had seen in his brief time in the public defender’s office, though certainly not unprecedented. It was a good deal, and a foolproof case, and that’s why an attorney as… pre-experienced, Steiner thought, had been assigned. But then there was his client. “Difficult” was not quite the word. He was actually polite. Polite and maddening.

Twelve months... anniversary. His brain had waited to present that thought until his palms were clammy and he was actually walking into the courtroom. He had forgotten his second anniversary until now.

The judge began the sentencing litany. “Let’s go on the record. I have read the presentence report and attachment A consisting of the neurobiological report. It includes the Kiehl Future Dangerousness Scale as required by statute. Does either side have any evidence to present before sentencing?”

“None from the People,” answered the prosecutor. He did not sound happy, but he was old, and everything seemed to annoy him.

Now comes the train wreck, Steiner thought, rising to his feet. “Your Honor, my client informed me in detention this morning that he wished to represent himself.”

The judge did not blink. He looked at the defendant evenly. “Sir, your lawyer has informed me you wish to represent yourself. You have that right. Judging from your presentence report, there is no doubt you are competent to do so. However, there do not seem to be any remaining issues. You are probably going to get probation. That means, sir, you are likely to walk out of here today a free man.”

“I understand all that.” He added, after a pause: “Your Honor.” His voice was soft. He seemed unsure.
Steiner’s brain now decided to occupy precious neurons wondering if he had ever seen the judge blink. Maybe he’s a robot. But if they could make a robot that good, they would make it blink. Unless there were a glitch, or

“Mr. Steiner?”

Steiner’s attention snapped back to the proceedings. “I’m sorry, your Honor, I was—“

“I am appointing you as standby counsel. You’ll be here in case your client has any questions, but otherwise you will not insert yourself into these proceedings. Do both of you understand that?”

Steiner agreed. His client seemed to stand up a little straighter. “Yes, Your Honor.”

The judge nodded. Steiner would have sworn he had still not blinked. “Very well, sir, you may put on what evidence you wish. The rules are relaxed for sentencing, but you will still be held to the same legal standards as anyone else appearing before this court.”

“I understand, Your Honor,” the defendant said firmly, even confidently. “I have something I want to put in evidence.”

“Very well,” the judge answered. “Please show it to the prosecutor and have the bailiff mark it.”
“I want to put myself into evidence.”

The prosecutor’s eyes slid over to Steiner, revealing a hint of amusement, but no sympathy.

Technically, it was out of Steiner’s hands, anyway. The defendant was representing himself. “You can’t put yourself into evidence,” the judge explained after a pause.

“I’ve been reading some law books while I was in lockup, Your Honor. They say a person can be shown in court. Anyway, you said the rules were relaxed. So I’m motioning for myself to be in evidence. What I say, what I do. You can take a picture of me if you want. Isn’t this all on camera, anyways?”

“Sir,” the judge countered reasonably, “you are entitled to make a statement. You can even take the stand and testify, although you’ll be subject to cross-examination if you do.”

“I know, Your Honor. But it isn’t about saying. I don’t understand all that stuff in that report. I wouldn’t know where to start. But I know there’s a lot they left out. I want to be an exhibit.” He said these last words with the firmness of one who will not easily be talked out of a course of action.

“Sir, I’m not going to make you an exhibit. But I will take into account everything you say and do this morning. It will be exactly like you were an exhibit. Fair enough?”

“Well, in that case I guess so.” The man answered, but he was clearly not satisfied. For a moment Steiner thought he was going to just sit down.

“Can I have a glass of water, Your Honor?” his client asked.

“Of course you may. There’s a pitcher and glass on the counsel table.”

He poured the glass full of water, right to the brim, and slowly brought it to his lips without spilling a drop. He downed it in long swallows and let out a smacking sigh of appreciation. “Nothing like cold water. You know, a lot of guys like beer, but I’ll take water any day, I’ll tell you.” He paused to see if the judge might say something, perhaps, you know, I really enjoy water, too. But the judge said nothing, and once again silence fell over the courtroom.

“I did that to that girl,” he said distinctly. There was no response. He had pled guilty months ago. “Do you want to know why?”

The question seemed sincere. Steiner doubted there was much art in him. The man waited for a response from the judge, but the judge just stared like a kindly basilisk. “Oh, sure. You think you know. You got it all down in my paperwork. My lawyer explained it all to me, but the only thing I understood was that those people don’t know anything. They said there was something wrong with my brain. Do you mind if I sit down, Your Honor?”

“You may be seated,” the judge conceded amiably.

“Thank you.” The man sat down next to Steiner. “This is a pretty comfortable chair. They don’t have chairs like this in lockup, you know. I like to sit, sometimes, and just think. Now this is important, judge. I’m sitting here. What do you say when you want the transcript or whatever to show something?” He turned to Steiner, who whispered a reply. “Okay. I want the record to show that I have made a choice to sit here. Now, before, when I would sit, I would think about young girls. I wanted to.” The man rose from the chair into a silence that was suddenly uncomfortable.

“You know, I wanted to represent myself. I wanted a glass of water. I wanted to sit down. Then I wanted to stand up. These are all things I wanted, and I did them because I wanted to. They were my choices. When I sat and thought about girls, I knew it was wrong, what I done to that girl, but, even so, I wanted to. That was my choice. Mine. Now, I don’t want to do that sort of thing anymore. Somehow whatever was wrong with my brain got better, as I understand it. That’s why you’re not sending me to prison, right?”

“Sir,” the judge explained, “we have this Future Dangerousness Scale. It’s scientific. You went through a lot of tests, as you know. Brain scans. Your risk assessment is less than one-tenth of one percent. You had a lesion on your brain that, like you said, got better. Anything else is irrelevant for sentencing. By law, I can’t even consider it. We’ll keep you on probation for a bit just to help you back into society, but the legal system is, for all intents and purposes, done with you.”

“But I did wrong and I’m sorry.”

“Irrelevant,” the prosecutor said. The effort made him seem more annoyed than usual.

“Sustained,” the judge ruled. “I will not consider the defendant’s claims of subjective feelings.”

The defendant stood alone in the middle of the courtroom. “The bad feeling inside of me is irrelevant? What I did is irrelevant? The suffering of that sweet little girl is irrelevant?” The bailiff took a couple of steps closer to the man, because the man was beginning to become agitated.

“Science advances, and the law must follow,” the judge answered. “The only thing that matters is what caused an unfortunate incident. We are not going to punish you for having… let’s call it a bad brain.”

The defendant had reclaimed his earlier calm. “And now my brain is fine.”

“That’s what the report says.”

“So what if I do something bad again?”

“We’re confident you won’t. Otherwise we wouldn’t be letting you go.”

“But say they’re wrong? Whose fault will it be? The doctors? Yours?”

“Fault doesn’t really enter into it,” the judge answered patiently. “Belief in guilt implies a moral judgment, not to mention a capacity for free choice. We deal scientifically and humanely with brains in this courtroom, sir. Every day we answer one question: does this or that person’s brain make him dangerous? We’re not here to deal with abstractions like remorse, or punishment, or guilt. Once they would have executed you. Hanged you. Put you in an electric chair. Given you a lethal injection. Just for having a brain that didn’t quite work right. Does that make any sense in this day and age?”

“I think you should execute me for what I done.” Now, he was on the verge of tears, but there was anger in his voice, too. The bailiff took a step closer, wary.

“That’s not an option, sir. Is there anything else?”

The man thought a moment, then glanced at the bailiff, his eyes flicking to the gun on his hip. He looked back at the judge, his brow furrowed in thought. Then he shrugged. “No, I guess that’s all there is,” he said, and resumed his seat next to Steiner. He grasped Steiner’s hand as if to shake it, but held it. “I’m sorry,” he said softly. Steiner did not know what to say. What could he say to that? What did the man’s statement even mean, really? Steiner smiled uncomfortably and withdrew his hand. “The least they could do is punish a man,” his client said, choking back tears.

“That’s all there is,” Steiner said lamely. “There isn’t any more.” Somehow the words seemed awfully thin and unsatisfying, like stale crackers in his mouth.

As Steiner packed up his briefcase, the prosecutor came over. “Good day for the defense,” the older man growled.

“Yeah,” Steiner said. “But tomorrow we have a mom of three facing 40 for shoplifting. Really bad fMRI. Kiehl Scale of 92. Amygdala a total mess. You’ll be calling her a crime spree waiting to happen.”

“Maybe,” the older man said. “Back in the day, that guy—"

“Walk it off,” Steiner said. “You know what they say. You can’t beat the brain.”

“No,” the older man repeated sourly, “you can’t beat the brain.”

On the way home, Steiner again remembered his anniversary. What to get his wife? The decision had already been made, he knew, somewhere in the twining nest of neurons inside his head. He would play it out, get some roses and a card. There was no real choice to it at all. It just seemed that way. Somewhere, a man would kill his wife tonight. Steiner would give his wife roses. The difference was a few molecules in the wrong place.

He bought a bouquet. They smelled like paper.


  1. Is there really a Kiehl Future Dangerousness Scale?? My impulse was to LOL when I read that, but then I thought Hey, in our world it could happen.

    And I am going to lose sleep trying to figure out why the roses smelled like paper. Thanks. :-D

  2. Well, this stems from the development of a strategy to use advanced, i.e. experimental, neurobiological scanning to explain psychopathy in death penalty sentencing. Kent Kiehl is a New Mexico researcher in this field, probably one of the top names in the study of psychopathy. I was against it for a lot of reasons, but perhaps most to the point, I thought it wouldn't work. It made no sense to dehumanize a defendant. From a philosophical point of view, however, I am repelled by reductionist neuroscience. Nonetheless, we used it in the Brian Dugan case, who was convicted of the murder of Jeanine Nicario in DuPage Co., Illinois. That case is infamous for a lot of reasons, not the least prosecutorial misconduct that led to innocent men being convicted before Dugan.

    We also used it in convicted spree-killer Nicholas Sheley's case, in which we had a Rule to Show Cause why the head of the Illinois Department of Corrections should not be held in contempt for failing transport old Nick for his (very expensive) scan. Eventually he got scanned by Kiehl.

    Neuroscience is a major front in the war against materialism. Scientists keep trying to solve the "hard problem of consciousness," and the criminal justice system has emerged as the perfect laboratory to integrate reductionist materialism into a cultural institution.

    The story is, of course, exaggerated, but the themes are quite real. The defendant is never named, his feelings of remorse are irrelevant to the process, and only the criminal, and, to a lesser, degree, the old prosecutor, seem to have any sense of humanity. The criminal craves at least the dignity of being held responsible, but free will is nowhere to be found, despite his rather pitiful demonstrations.

    Everything is attenuated, not quite real. Thus, the roses might as well be made of paper, rather than represent a living, sweet-smelling token of love. Because in the end, the only difference between the man that kills his wife and the man that gives his wife roses is a certain concentration of neurotransmitters, or the underdevelopment of an area of the brain.

    I suppose I failed to communicate my theme if a canny reader like you, Jane, didn't grok it ;-)

  3. I suppose there is an inherent problem with a story in which the point is that nothing actually happens LOL

  4. Oh, I'd love to think of myself as a canny reader, but a long history of missing the point suggests otherwise :-). I've learned to live with it...


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