Tuesday, November 3, 2015

The Day the Bear was Admonished for Having Too Much Fun

Death penalty? Confession?
No pressure here!
It was the Bear's most challenging case. Two young men -- meth users -- had killed a propane truck driver who had interrupted a burglary when he stopped by his house for lunch. Some power tools taken in the burglary were found in the possession of the Bear's client. The other suspect confessed and, in order to secure a deal, put the actual murder weapon (an old shotgun barrel) in my client's hands. (The issue of the actual killer was important, because the felony murder rule does not extend to the death penalty, i.e. you must actually inflict a blow.)

And my client confessed on videotape.

The stakes could not be higher, especially since the Bear believed his client to be innocent (and still does). The Bear successfully eliminated 68 jurors in a row on challenges for cause, setting each up to deny that he could render a fair verdict if the defendant did not testify. (This was necessary to exhaust the jury pool and get a change of venue: an essential element in the Bear's strategy.)

Pretrial motions had been numerous and complex. We had secured the testimony of an expert witness on the issue of false confessions, which had never been done before or since, to the Bear's knowledge. At trial, the  Bear and the prosecutor stalked the courtroom as in a fight to the death. Which it was: my client's.

And I get paid, too?
Then one day, in the heat of battle, the judge summoned us to the bench.

"This is a serious case. Please watch your demeanor. You're not here to have fun."

In other words, the prosecutor and I liked each other and it showed in a manner that was perhaps not appropriate for a death penalty case.

The Bear was usually found prowling about the county courthouses of his state, especially the southern part. It was a small criminal bar. Most of the lawyers and prosecutors knew each other. Today's PD, or colleague was tomorrow's prosecutor or judge. More times than he can remember, he had lunch with a prosecutor during trial -- usually undetected. We knew that it might look as if the whole thing were rigged if someone connected to the trial saw us sitting amiably at the same table.

(This friendliness did not exist with federal prosecutors, and there is no point in the Bear going there.)

Not only were we friendly outside of court, we were respectful in it. The Bear will never forget the role of the prosecutor, expressed as "to strike hard blows, but fair." It was an ideal, anyway, and one the Bear still tries to put into practice.

One of the vices of the internet the Bear supposes he'll never get used to is the incivility. The Bear was trained as a criminal trial lawyer in the U.S. Navy: very formal. Combine that with the friendliness of a small criminal bar scattered over the lower half of the state, and the Bear thinks you should get up on your hind legs, and use niceties like, "May it please the Court, Counsel and Ladies and Gentlemen of the Jury" before closing argument. And you should act the same way on the internet.

It's just polite and professional. And, as the Bear and the prosecutor discovered in the 2003 case of People v. Pontious, it makes work fun.

The Bear is not thinking of anything in particular. The woodland's resident troll -- more of an anti-troll --Roke, has little to do. It is only natural if things get somewhat heated when talking about important matters. The Bear is going to try to be just a little more pleasant when making his points. Except where mockery is called for. He just thought an example of how people can employ every bit of heart on opposite sides, yet still be civil, even friends, might be salutary.

The Bear hoists a glass of Korbinian Doppelbock and makes a toast to peace and politeness.


  1. I am reminded that G. K. Chesterton and H. G. Wells were friends, despite their strong differences.

  2. Feel free to mock me anytime Bear, combativeness is also play to me, and highly appreciated on those not so rare occasions when I'm being a complete idiot!

    Was the guy acquitted?

  3. Politeness is the art of choosing among your thoughts.
    Madame de Stael

  4. Bear,
    We trolls are intrinsically drawn to the low road. However, since your well developed sense of guilt keeps nagging you toward the high road, I will address again the ridiculous notion that only experts--be they professors of theology or experienced journalists--are capable of opining on the faith and the Church by simply citing the wisdom of the also uncredentialed Chesterton:

    "Our civilization has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men. It wishes for light upon that awful matter, it asks men who know no more law than I know, but who can feel the thing that I felt in that jury box. When it wants a library catalogued, or the solar system discovered, or any trifle of that kind, it uses up its specialists. But when it wishes anything done which is really serious, it collects twelve of the ordinary men standing round. The same thing was done, if I remember right, by the Founder of Christianity."
    The Troll

    1. I wish all trolls were like you!

    2. Tibi gratias mulier bona.

    3. Well, as long as this is public...
      Roke, you might wish to think your inclination to the low road...for the same reason we caution children not to use bad words...it is not good for them since it lowers the standard of behavior, and takes them (and whoever they engage) into a negative direction, and harms discourse which may contain your actual point.
      What seems to you "guilt" sounds to me more like the precious existence of what used to be known by all as decency and high standards. Our conversations, debates, even arguments, once included these high ideals, and gentlemen (and women) adhered to them. What can I tell you, our culture was far, far, better than it is now, now that the standards are no higher than one would find at a MMA match.
      This is a profound loss for many, and a cause for celebration for some.
      But Bear, I do not understand why you would believe this person innocent. That is confounding.

  5. Roke's habitation under the bridge is all in good fun, so no one need fear.

    As for how the Bear knew his client was innocent, his interrogation was a textbook case of how not to interrogate someone and get a confession remotely acquainted with reality. The interrogator played on their prior relationship (he had been something of a father figure, since the Bear's client did not have a father.) He fed the Bear's client information, which makes it impossible to determine whether the suspect really knew about the things he was telling. This is fatal to an interrogation where you are getting details known only to the killer after the "I did it" statement. Of course, a co-defendant's accusations are not very valuable when he is getting consideration for them. A neighbor recalled the Bear's client's dog getting loose about the same time he was supposed to be committing the murder, and the neighbor had a brief interaction with the Bear's client. This -- if believed -- was fatal to the state's timeline.

    So in summary, the Bear picked away away at the weaknesses in the state's case, and, moreover, believes he was innocent,

    1. Apologies to the Bear since he is ill, but I thought I would continue the discussion in his pathetically legalistic stead.

      Dear Kathleen1031,
      Your points are all well taken (excepting the last sentence which was not addressed to me and, therefore, upon which I do not comment at present). I have growled somewhat tongue-in-cheek from my place under the bridge. However, I have distinctly noticed that when the Bear growls, he often regrets being a bear thereafter. That is an issue that we all need to confront in the ether of the Internet.

      One thing the Holy Father is correct about is that society has changed. In actuality, I would argue (where I only a lawyer like the Bear) that there is no longer a society. A society shares a common set of values and both promotes and enforces them in ways distinct from governmental influence. Society has been replaced in these United States by a polity. There are no longer mediating institutions between the individual and political action. All action is now immediately and directly political.

      Unfortunately, this immediate and political culture is enabled by the age of 140-character Twitter postings, Snapchats and other very short means of communication. The next generation--absent proper Catholic and philosophical education--lacks the attention span to think: to think more deeply and thoroughly than the 60 seconds it has taken anyone to read my post (assuming anyone has read this far).

      In this age, our young adults come to immediate conclusions about who is good and who is evil and they act immediately and politically to destroy who they perceive as evil. Words are now harsher and more quickly uttered than in the days of intelligent debate. Our young adults would never have listened to the speeches of Lincoln because thoughts were developed and proposed over hours of speech--not minutes or seconds as the poorly educated young adults of today have come to expect. Take any issue and it devolves to this low intellectual state. For example, gay approval = civil rights movement = equality = love = tolerance. None of those equivalences are true, but it does not matter because young adults are being trained in school to be as shallow as a puddle. If you disagree, you will immediately be silenced (in ironic contradiction to tolerance to be sure).

      Therefore, we are now confronted with the difficulty of dealing with the age of condensed immediacy. Despite the Holy Father's misperceived age of "who am I to judge", we have an age of immediate judgment and immediate sentencing. The voters of Houston determined that men are a danger in the women's restroom--which they most certainly are--and immediately the homosexual lobby is calling for the NFL to pull the Super Bowl out of Houston.

      Anger has become a virtue to the heterodox. We, the orthodox, have been taught that anger is sometimes a sin and sometimes a virtue. Such distinctions are lost on the new generation. Thus, the Bear confronts whether his words are a virtue or a vice. The heterodox have no such scruple. It is an asymmetry which should not perplex us. Make an argument to those who are sane; meet the infantile on their own ground and defeat them there. Do both with a clear conscience. Rebuild society while we eliminate the new age. Both must be done to the fullest.
      The Troll

    2. Well said, Troll, and worthy of expiration. I recently wrote a piece on Neil Postman's "Amused to Death." He was writing in the television era. I think he might have to right another book, we're he still alive, to handle today's culture. While I think some of his ideas (information-action ratio) remain valid, we have now all of us become broadcasters and even producers of news and commentary. One never need read our see anything with which he disagrees. This splits us into camps that never lack for agitprop. Indeed the Bear hereby claims "Age of Agitprop" as intellectual property.

      The "Good Guys" (ditto) are disadvantaged, because their communication tends to be discursive.

      The Bear shall probably write about this more. (WARNING: the last place you want to be is near a Bear with a GI ailment.)

      Art the same time, the Bear believes bloggers are a careful lot who try to write to keep their readers happy.

    3. Oh. Well then. Thank you for the explanation.

    4. Thank you, both Roke, and Bear. I agree completely with both the article just provided on news and society and Roke's commentary. The culture is in big trouble. What keeps it going at all is the older set. Young people are going to find it rougher and rougher going as we fade away, because they are certainly not the arbiters of warmth. (Walk by a person under 30 and you will find they instantly have a need to look at their device, lest they should have to actually greet you.) This is the world they are creating. And I have long noticed now that any comment longer than the 140 characters in most commentary spaces is ignored. Sound bites. We must speak in sound bites. If you put out a "paragraph", you are suspect, possibly a kook. And the relentless "positivity". Ugh! We must be positive! This is, IMHO, related to the cultural requirement that presidential candidates remain sunny and say nice things about their opponents. Don't get intense, because too much negativity is a sin. It will be one of the Revised Ten Commandments, V.1.

  6. Or "expansion," depending upon the whim of autocorrect.

  7. Reading this reminds me of the best job I ever had, that of conducting employee investigations, conducting pre-disciplinary hearings, and presenting appeals before a neutral third-party (mediator or hearing examiner).

    I sometimes played the prosecutor and sometimes the PD, but I had a blast. We knew most of the employment lawyers and union reps working downtown, and the ones who were the best reps were also the ones who didn't see us as Big Bad Management. Together we addressed addiction, workplace violence, discrimination, sexual harassment, and just plain asinine behavior (one rep asked me, "What charge would you use for just plain ol' actin' the fool?" I thought a minute, and said, "Exhibiting poor independent judgement." I still don't know why he laughed so hard).

    We had a great team of well-read, intelligent, and witty people. Our boss was a very devout Catholic who was just like a father to us. He would occasionally look fondly over at us as we exchanged zingers while discussing cases, and he'd grin and say, "Who has more fun than us?!"


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