Tuesday, November 11, 2014

True Crime

Sometimes a conversation spills over the edge of the combox. If the Bear shares the excess, it is not because he has The Big Megaphone, but because the conversation is interesting and complex enough to share one more time. Don't worry, the Bear will not lose focus entirely. Frankly, though, he's a bit burnt out on the usual stuff, as you may have deduced from the decline in posts the last couple of weeks.

(See the poll to the right on the death penalty.)

The Bear has recently posted twice on the death penalty. Visitors have made some excellent comments and developed arguments that were not sufficiently developed in the earlier posts. The Bear does not wish to beat down the same ground, but also address some new points.

Bona Fides and Perspective

This is the Bear's favorite part, where he gets to talk about himself. (Feel free to skip it if you already know the story of a cub found clinging to a tree after a forest fire... no, that's another story.)

The Bear was an active death penalty trial lawyer for a couple of decades, and handled a couple of dozen death penalty cases. One was a prosecution, and the rest defense. Some you may have heard of, but they all had human persons at their core. Most were resolved short of actually going to the life-death stage before the jury. Nonetheless, preparation was complete, and many, many hours were spent with defendants. The Bear was also a sought-after lecturer on trial advocacy.

The Bear's attitude has, for the most part, been that he's not against the death penalty so much as someone trying to kill his clients. Takes it rather personally, that, does the Bear. When it looked like the death penalty was going to be abolished in Illinois, he jumped on the bandwagon and got one of the pens the governor used to sign the bill.

The Bear believes his experience is useful, particularly as it pertains to facts, but, of course, his opinion is worth no more than anyone else's, except, perhaps, where it is better informed as to facts.

Nobody's Perfect

We know that police and prosecutors sometimes go after the wrong suspect, and that sometimes those people are tried and convicted on the basis of faulty eyewitness testimony, phony testimony by snitches and false confessions. Please, this is beyond dispute. And this doesn't happen in DUIs. It happens in murder cases, where emotions run high and there is tremendous pressure to arrest, convict, and obtain the death penalty if possible. Were anyone to claim that the criminal justice system is perfect, the Bear would love to sit down over a large pony steak or two and regal him with Tales From a Bearrister's Career.

Perhaps a single snippet from one trial might be illustrative. Officer Spiff  grew frustrated with the Bear's subtle cross-examination, and finally turned to the judge and said -- word for word -- "I don't know how to get around that question." The judge was one in a hundred who put the detective in his place. Thank God for giving the Bear some good judges, especially one where the State sought the life of an innocent man.  There's not a whole lot even a good lawyer can do with a bad judge, except give him enough opportunities to mess up for appeal.


The Bear hates murderers. But, once they become his clients, something amazing happens. They quickly transform from the TV gargoyle into a human being. The man he hated on the six o'clock news has become a real live person by next evening's newscast. Two of the Bear's clients turned out to be innocent. One, the prosecutor dropped after some solid defense work. The other -- Jeremy Pontius-- a jury found not guilty.

In thinking back, what the Bear most remembers are the crime scene photos of the victims. Sometimes they form a ghostly procession through his bedroom. Bashed, stomped, sliced, stabbed, shot, drowned, and choked. The Bear is pleased that no one has accused him of a lack of empathy for victims. But during the trial, all that gets pushed aside and people get divided up into neat categories of evidence.

Most murderers have not been the cold-blooded-plan-everything-out type. Many have identifiable brain damage or defect of a type that mitigates, while not excusing, the crime. Low IQs, psychopathy (an organic inability to feel empathy -- the really scary and dangerous guys), traumatic brain injury, autism. Stuff like that. Most -- but not all -- have had poor upbringings. "There but for the grace of God go I" used to be the pious expression.

Funny how people mock defense lawyers for talking about their client's abusive or neglectful upbringing. Do you allow your child to do anything he wants? Are you concerned about his friends? Are you careful about what he reads, what shows he watches? Do you see to his education? Do you try your best to get him to Mass every week?

Query: if upbringing isn't important, why do we, as good parents, act as if it is?

Of course substance abuse is another major factor. The Bear has a saying: no sober person commits a crime. Of course, that's not much of a mitigator since that was their choice in the first place.

The main thing is something you, dear reader, can probably never truly get, any more than the Bear can understand conducting a symphony orchestra. The Bear feels privileged and humbled to have an insight that goes beyond sixty seconds on a newscast. It would all be so much easier if we could kill the bad and save the good in a person, but as much might be said for any of us. (Purgatory anyone?)

A Tale of Two Ties

Ernst Bruny

One client had beaten a nine-year-old boy to death with a belt. This was covered by Life Magazine back in the day. And Oprah. So sad, poor kid didn't stand a chance. Ernst didn't mean to kill, but he did, and he paid the penultimate price. The jury pool was tainted by false rumors by certain radio stations that he chopped up the little boy put the pieces in a suitcase.

The Bear's driver, bodyguard and factotum, Red Death, God bless her, collected, washed and mended some suitable clothes from his house (still a murder scene). The Bear absent-mindedly complimented him on his tie. Once we finally got the State to remove the death penalty, he pleaded guilty and got life without parole. The last thing he did was to give me his tie. "I know you liked this tie," he told me. It was the only thing he had to give me, and I was the only person he had to whom he could give anything. Some impulse of gratitude -- which we should all recognize as a good -- prompted him to give the Bear everything he had.

Oddly, his sister went though medical school and is now a doctor. Haitians customarily deal out some pretty harsh punishment. He was unsuitable to keep the boy for a long time while the mother took a job in Florida. DCFS was supposed to keep an eye on th the child, but failed to do so. It was Ernst's fault, but everyone knew it was a bad situation and did nothing. (Mom went to prison, too.)

By the way, don't bet the farm on the gratitude of a client. Once they get to DOC, someone will have them saying anything they can imagine against their beloved lawyer to secure an appeal! 

One Mexican was accused of being a kingpin in the cartel. That was ludicrous! But all his co-defendants save one (old school) flipped on him, of course. The federal prosecutor mouthed the desired answers -- a new low. Federal Court is not the Bear's favorite.

The Bear thought he had done a decent job at sentencing -- at least before any judge who had not already made up his mind. The Bear even put his own money into commissary so the prisoner could buy snacks, and his own clothing. Most of all, the Bear gave him a rosary, which he received with tears.. As soon as the case was over, though, all that was forgotten, however, and now he was complaining of ineffective assistance of counsel. In other words my lousy lawyer messed up my case.

The Bear supposes they have to do something in, and you can't win if you don't play.

Niels Nielsen
It made the Bear recall another tie. Niels Nielsen shot his ex-girlfriend and her 13-year-old daughter. He was utterly obnoxious, to the point of being removed from the courtroom during his own sentencing. (He overturned his table and spit in the Bear's fuzzy ear.) The transcript of his profanity-laden dialogue with the judge continues to circulate as a kind of urban legend.

When the Bear sent him to death row, the Bear did not bat an eyelash. The Bear had nightmares about the bloody hand print of the 13-year-old on the inside of the trunk. Since the Bear was an assistant attorney General, his co-counsel snipped his tie with scissors. The Bear dutifully framed the trophy along with the sentencing order. It was a Chicago tradition. No doubt if we could have mounted the heads of the executed, we would have.

When Ernst Bruny gave me that tie, it sort of felt like that feeling you have after confession. The weight of the past had been lifted. Surely, from across the well of the courtroom, Niels Nielsen looked to the Bear much as murderers on television look to you. (Except the Bear was within spitting distance.) Had the Bear been representing him, perhaps even Niels Nielsen, a man with no redeeming value if ever there were, might have revealed -- like Gollum -- some flicker deserving sympathy.

The Bear was a zealous prosecutor. He was also a zealous defender. Zeal is characteristic of Bears given a difficult task.

Pulling a Patrick Henry

People sensibly imagine that the defense lawyer's job is over once he persuades the State to drop the death penalty. However, this is not the case. Regardless of polls that are not targeting people facing the actual choice, the Bear can assure you that the second argument is usually just as hard: the argument to the defendant why he should accept.

"Pulling a Patrick Henry" is a phrase one hears in death penalty work: a client who, in effect, says give me liberty or give me death. Many, if not most defendants yield to the life without parole option only after heroic and clever efforts by their lawyer. The fact of the Bear's experience is that defendants understand they'll be coming out of prison in a box either way, and wish to avoid the misery and uncertainty of a long prison term.

In fact, the Bear would go so far as to say most defendants are reluctant to take a plea bargain that trades death for life without parole. Strange but true.

Chris Coleman
In any event, murderers are rarely planning on getting caught, or planning anything at all. Planning is just not included in their pre-crime activities, therefore it cannot act as a deterrent. The "event horizon" of most criminals runs as far as their next foilie. If the Bear had discovered otherwise, he would tell you.

Oddly, when he has seen the odd instance of elaborate planning, -- such as the jury found during Chris Coleman's trial -- the death penalty is obviously not a deterrent, either. These people are weighing the odds and figuring they're going to get away with it. (Note, the Bear entered, did his bit, and withdrew from the case by stealth, so you will not find his tracks through the news media.)

 Abolishing Life Without Parole?

It will probably come as no surprise to learn that most cases are plea-bargained. The highest possible sentence sets the upper limit for that invaluable process. For example, when we had a death penalty, prosecutors could seek it, even while they were willing to come off for life without parole.

If you take life without parole off the table, now you've re-calibrated the whole plea bargaining system. Now a defendant doesn't have the downside protection incentive he had when the most he could get was probably what he would get anyway after an unsuccessful trial. The Bear promises that if you take away that top end of LWOP, you will have many, many more jury trials -- perhaps more than the system could sustain, at least until the system re-valued "how much a case is worth." And that would have to be lower than we have now.

Good days if you're a defense lawyer or a criminal.

The Bear bets no one has briefed the Holy Father on the intricacies of American plea bargaining!


If comments and page views are an indicator, "True Crime" posts are popular. One day, the Bear will take you into the bowels of the most secret and horrible place in the Illinois Department of Corrections. It is a prison system within a prison system. It was also the place Illinois' last execution took place (where a walking argument for the death penalty received lethal injection).

Again, the Bear is not here to tell you what the Church teaches. It is permissible to be against the death penalty. The Bear's arguments revolve around the human person at the center of each case, and spread out to cover the validity of policy arguments like deterrence. The Bear is not unsympathetic to those who favor the death penalty. But neither is he convinced that living out the rest of your life in a hellishly loud prison in a cell with a bed and a toilet is such a sweet deal. He suspects that once people really got to  know most murderers, they might think, "I'm still for the death penalty, but perhaps this one ought to be spared." After all, not every change of those things that may be changed is for the worse.


  1. Why would taking Life-without-Parole off the table lead to more trials and less plea bargains? I understand that lowering the maximum sentence will result in an overall recalibration of the bargains so that there will be lower sentences all around, but why should it lead to less compromise and more trials?

  2. Because the top max sentence has gone to LWOP, then from LWOP to some term of years. Instead of threatening the defendant with the big stick of LWOP, now prosecutors have . The lesser stick of term of years, which in many cases would be similar to what the would get if the rolled the dice at a jury trial and lost. The Dowside Protection is less of a factor. Fewer meetings of the mind mean more trials. Why not? Defendants just don't have the incentive to bargain as the difference between years received after a lost trial and after a successful plea bargain shrinks.

    On a typical murder case, I max out at sixty. The prosecutor can't threaten me with the death penalty nor can he threaten me (hypothetically) with LWOP. So now we're starting at 40 if a gun was used. If I'm a defendant in my twenties, the notion of not getting out until my sixties and my "life is over" (which has elicited a rueful chuckle from the Bear) is the typical reaction.

    So the reason for more trials is easy: the prosecution lists it's two biggest sticks. If the margin is thin, many defendants will decide to roll the dice at trial and keep all their options open on appeal. Those criminals are not going away. Prosecutors wouldn't like it, but the fact is that many more will choose trial. Big difference gambling with ten or even twenty years for the typical, young offender, against the chance of walking at the end of a trial, however slim. Because even if he loses, his sentence may be quite similar from the judge compared to the plea bargain.

    Eventually the system would accommodate the changes, but, bless his heart, the Holy Father, while laudable in bringing mercy through moral station, perhaps he had not figured out the details (or be advised) for different countries. And the US has a huge percentage of its population behind bars (on the Federal level were finally setting relief from some of the more draconian drug sentences).

    I hope I answer your question, Sebastion. I didn't get any sleep Law night so wasn't on all my brain cells.

  3. Eh, not sure I really like the answers on the poll to the side. I'm only for the death penalty like I'm "for" war.

    St Paul tells in Romans (ch13) that the prince or ruler has been given the power of the sword. That is, the sword, not the rod. The ruler has been given the power to kill people.

    Now I'll grant that having a power does not require it's constant exercise. It may very well be that most executions are unnecessary or even sinful. But I tend to be leery of attempts to rob the government of its few rightful powers, however unpleasant or poorly used, particularly at a time when it has accumulated so many extraneous ones that could be done away with instead.

    I will further allow that capital punishment is not exercised with much, if any, better judgement than war and battle. This does not seem to me to pose a significant problem in determining who may and should justly exercise it.

    Basically, if by "in favor of" the death penalty you mean I really like it, I'm not. I don't really have any clear idea of what factors might make it good or necessary in any particular instance, either; I'll take your word for it that deterrence isn't one of them. But I do think that it is intrinsic to the powers of a ruler, and that it cannot be given up without either retaining it in actual fact or ceasing on at least some level to be a ruler.

    1. I presuppose people are not "for" the death penalty in the sense they enjoy it. Certainly the State can exercise its powers without recourse to killing its citizens. (Almost all executions are carried out by States, not the feds, and States are not even where it's at when it comes to governing.)

      Indeed, there are proof texts that support capital punishment. The Roman Empire killed a great many people, many of them Christians. Nowadays we kill far fewer and (hopefully) consider this a good thing. Perhaps taking that final step that separates us from the Roman Empire of St. Paul's day might be considered better? The vast majority of countries manage to govern themselves without a death penalty. Those that can't tend to be places where Islam reigns or like North Korea.

      But thank you for an original argument!

  4. Okay, spell check through Swype on my iPad is just horrible. I hope what I wrote still makes some sense. Basically, the closer the distance between likely sentence after trial and what the Prosecutor will offer in a plea bargain the less incentive for a defendant to plead out. If you think the judge might give you 20-40, and the prosecutor offers 40, you have absolutely no reason to plead guilty. Who knows? Maybe your bearrister will walk you! The worst that could happen is you wind up at 40-60, and depending on the facts of your case, maybe you figure the odds are closer to 20 than 60.

    Now, with the DP the prosecutor is threatening you with a dirt nap, you might be talked into taking even LWOP. Even with no DP, LWOP is still a big stick, and you might be willing to take a term of years, so long as there is " a light at the end of the tunnel" as I like to put it. In that case, the 40 years we rejected in the above example may not look so bad.

    So without DP or LWOP, the downside isn't as "down" if you follow me. That means fewer dives, hence more trials! Ultimately the plea bargaining gets recalibrated lower and prisoners serve fewer years, because the system simply doesn't have the resources to try but a small percentage of cases.

    Of course, LWOP wont go away, and legislatures would re-re-calibrate the process in any case.

    Sorry about the word salad Swype made of my earlier post.

    1. I think I see what you mean: Viewing the jury trial as a game of chance, with the "win" being an acquittal and the "loss" being the currently allowable maximum sentence, the lighter that sentence is the higher the probability a defendant will want to play instead of settling.

      Thinking about this, I believe the real problem with the American judicial system is the jury trial: Here in Germany, a case involving a sentence of anything beyond four years is handled by professional judges. Besides being much cheaper it is also fairer, because manipulating a judge is far more difficult than playing a jury.

      Considering your thoughts on the effect of maximum sentences on the plea-bargain, I presume that the German judicial system can actually make do with relatively light sentences because we don't need the big sticks to scare defendants into plea bargains: The big crimes go to court anyway.

    2. America inherited the adversary system from our sporting English forebears. Europe tends to favor the inquisitorial system.

      The idea is that twelve ordinary people possess a native wisdom that transforms them into a super-mind. It is also a very democratic system. Each system has its benefits and drawbacks. We consider trial by jury such an important right it's in the constitution.

      And playing a jury is harder than you might imagine ;-) Also, judges have their own prejudices and interests that the jury system avoids, mostly. Especially where judges are elected, they might be worried if they were perceived as defense-oriented, for example.

      I would suspect Pope Francis doesn't know much about the adversary system, since it is a characteristic of the anglophone world. I could be wrong, though.


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