Emotional Intensity Disorder

I heard a new one yesterday at our criminal defense seminar--emotional intensity disorder. Whenever you hear of one of these new diagnoses, you wonder if it fits yourself. Now I have given this some thought and it appears that it is sporadic. It only appears occasionally such as when one gets hit by a car; one's house is burnt to the ground. There are other times when it peaks around the corner and makes an appearance. Examples of this would be when someone does something really stupid in your presence or your dog bites the neighbor. As with so many mental health diagnoses, it must occur on a continuum whereby a small amount of emotional intensity would not be considered a disorder, but a very large amount of it would be so considered. I expect those who have discovered this disorder have determined what the appropriate amount of emotional intensity should be. Whether this is statistically derived I can not say. I understand that the DSM-V is in the works and it will most assuredly give us the proper guidance as to what level is appropriate and the appropriate drugs to alleviate it. Once it is officially recognized, such as inclusion in the DSM, insurance companies will be pressured to recognize it as a legitimate mental disorder and pay for the treatment of it with the result that once again our health insurance premiums will rise for the benefit of those so diagnosed. Self-treatment is a threat and should be taken seriously. Having lived through the 1970's and smoked a little marijuana myself, I have first hand knowledge that marijuana works quite well in the alleviation of emotional intensity. We can not allow self-medication nor suggest that substance abuse is an answer to the problem of this new disorder. Self-help would be anathema to therapy and the pharmaceutical and insurance industries. Jobs and the GNP are at stake.

Can You Prove It?

The question is not whether your client did the act for which he is being prosecuted by the State, but whether the prosecution can prove it. Many defense attorneys don't ask themselves this question. Contrary to the lay and expert commentary alike, the criminal jury trial is not for the purpose of finding the truth; the purpose of a criminal jury trial is to establish proof that the defendant did the act for which he is charged. The common cry is the failure of the jury system if the person who did it, is found not guilty. This is not a sign of failure but of success--the government must prove he did it and if they can't do that, too bad for them. One effective method of analyzing the probability that a defendant will be convicted if he goes to trial is the strength of the prosecution's witnesses. The prosecution must often rely on very unreliable people to prove your client's guilt. There are several uncertainties involved: Did the potential witnesses tell the cops the truth when giving the initial report? Will the witnesses even show up for trial? Will the prosecutor be able to find the witnesses to subpoena them? Will the witnesses be believable if they do testify? Many a case has been dismissed because the answer to one or more of these questions has been no. I am aware of defense attorneys with the view that if the defendant did what he is charged with, he should plead guilty to it or at least to a lesser included offense. Apparently we are all required to accept responsibility for our acts whether this acceptance will land us in jail or not, whether we will be required to pay a significant fortune in fines, costs, and attorney fees before we will be able to drive a car again legally. This is not representing your client; this is not the function of a criminal defense attorney. Our law schools teach how to try a case to a jury; but they don't inculcate in their students the idea that they should actually try a case now and again.

The Criminal Justice System

I'm in Mahaska County yesterday, Oskaloosa, and waiting for a sentencing for which, I later learned, did not require my presence if I had simply filed a document stating that I waive my and my client's presence. While sitting I am listening to a discussion between a defense attorney and the probation officer the purpose of which seemed to be to determine what the defendant would stipulate to for purposes of establishing a violation of probation but with the result being the same, the defendant would be found to be in violation of his probation and be sent to prison. The result was apparently a matter agreed upon by the defense counsel and probation officer. The defendant was not present for this discussion and the county attorney handling the matter was flitting about concerned with other cases. There are several things wrong with this picture. The probation officer is not the person who decides whether a probation is terminated sending the defendant to prison. The probation office makes a recommendation. The second issue that presents itself is the assumption that the county attorney handling the matter will do what the probation officer wants him or her to do without question. The third issue is the presumption that the judge will follow the recommendation made by the probation officer as presented by the county attorney. This leaves the defense attorney with the job of cajoling with the probation officer over the fate of the defendant. We have evolved into a system where attorneys are part of the production process rather than an impediment to it. Our job as criminal defense attorneys is not to make life easier for probation officers, prosecutors, or judges. Our job is to represent our clients. The so-called criminal justice system requires those engaged to work full-time. They are very busy; crime has been commodified. Difficult defense attorneys cause time, effort, and trouble for those in the system who are overworked and over-stressed and can't afford to be spending much time in the courtroom arguing about the future of some ne'er-do-well who can't follow directions. Criminal defense attorneys hold the key. If every case went to trial; no one agreed to plead guilty to anything; the whole system would break down in one day. The criminal justice system as we know it would implode. All the laws, all the crimes enacted by the legislatures, the county board of supervisors, the municipalities, all would be for nought. There is no other profession in the world with more power if used. I have made it my mantra that I like trials, I would like to have more trials, and I am disappointed when my defendants take a deal. This has a salutary effect on prosecutors. If a prosecutor understands that the defense attorney he or she is dealing with has no interest in arguing about a resolution to a case, no interest in innumerable worthless telephone squabbles over a sentencing recommendation, the defendant will be well served. And from what I have always understood, that is our job.

The Fiscal Cliff

One can not listen to talk radio for 30 seconds or turn the page of a newspaper without hearing or seeing the term "fiscal cliff". This term is a sequel to the phrase "having said that" and the word "resonate". It is a meaningless term which explains its continuance use. Apparently we have reached the abyss and are peering over the edge in terror contemplating its immeasurable depth and certain death if we slip. The use of term "fiscal cliff" is meant to instill fear in the general public and bring out the vote of those who continuing to believe that the financial practices of the federal government somehow equate with those of an individual. The last I was aware, it was a felony for me to print money. One pundit has exclaimed that each of us are now $51,000 in debt and our children will be on the hook for this. This figure was presumably obtained by dividing the trillions in the national debt by the number of citizens of the United States (not counting illegal immigrants who I believe should bear some of this burden as well). I keep a pretty close I on my own balance sheet. I have the rudiments of accounting and can work my way through a financial statement and have for some years now been able to track my income and expenses and file a correct tax return. Nowhere on my financial statement am I able to locate this debt of $51,000. No one has presented me with a bill for that amount nor do I expect anyone to. I feel the presence of no cliff nor am I aware of any for several hundred miles. I do not feel imperiled. The "fiscal" portion of this term does not relate to me in any respect. The term is limited to government monetary policy, revenue, expenses, and taxation. I personally do not have a "fiscal" policy nor am I intending on developing one. I try to mind my own business and I think the federal government should mind its own affairs. The FBI with its almost unlimited resources should put out a wanted poster on the person who first used the term "fiscal cliff" Any person who can massacre the English language and then allow it to pervade the airways and news print has committed some kind of crime and should be prosecuted. Once this current felon has been imprisoned, they should turn their attention to the person who first publicly stated "having said that" and "resonate". Possibly prosecution would deter the use of meaningless terms to discuss important subjects. Neither the people who use the term "fiscal cliff" nor the people who hear it used have any notion of what is the issue, or even if there is an issue. A little clarification could actually be beneficial.

Moral Decay

Cal Thomas explains in his opinion piece in the Sunday's Des Moines Register the reason for the Republican loss on Tuesday--moral decay. This is altogether consistent with prevailing opinion of Fox News. Simply put: America is going to hell. We have turned our back to the Bible, rich people, and self-reliance. Romney was correct about the 47% of Americans who are takers instead of makers. Mr. Thomas proclaims the victory of the Democrats a result of a "self-indulgent, greedy and envious nation". There is a chasm between Republicans and Democrats. It is certainly laudatory to be rich, self-indulgent, greedy, and envious, but to be poor, self-indulgent, greedy, and envious is a sure sign of a poor education, poor character, and government handouts. Being a registered Democrat, I am swimming in self-indulgence. It is all around me and difficult to escape. Many of the people that I associate with on a daily basis are also Democrats. It is difficult for me to rise above this milieu of greed and envy that I must immerse myself in to make a living. I find myself envying, and I try to correct it when I realize I'm doing it, people who are eating steak while I am eating hamburger. I am tempted to feel sorry for myself when I hear of people taking exotic vacations and I am constrained to driving to Mt. Rushmore. The answer, of course, is prayer in the schools, the repeal of Roe v. Wade, and vacations in Branson. Michelle Bachman made Romney promise that he would not require Mormon prayers in schools which alleviates any concern of the fundamentalists. The demise of Planned Parenthood would finally eviscerate Roe v. Wade, and the stockholders of Winnebago would be rewarded with a tax credit on recreational vehicles. According to Cal, not only have the Founding Fathers been rejected but the Greatest Generation has now been repudiated. World War II was fought to save decent Americans; the right to enjoy the riches inherited from their fathers; the ability to make a killing on Wallstreet; the right to sing God Bless America before every athletic contest. These are inalienable rights that must be protected at all costs. As he points out in his opinion piece-the enemy is now within.

Founding Fathers

Who were these guys anyway? The phrase "Founding Fathers" seems to be endemic in political pronouncements, judicial decisions, and PBS specials. Some pundit is forever stating that the founding fathers will roll over in their graves if some piece of legislation is passed or not passed or if the current court does not follow the precepts set out by them when our country was formed. This is all rather mysterious to me. No one to my knowledge, as imperfect as it is, has described or enumerated just who these people were. I have recently learned that the term "Founding Fathers" is first ascribed to Warren G. Harding in his inaugural address of 1916; not one of our more learned for memorable presidents. The United States of America did not begin operation until 4 March 1789, a considerable time after the revolutionary war. It is interesting to note that we celebrate independence rather than the monolith created in its wake. The Articles of Confederation were proclaimed on 1 March 1781. March seems to be a particularly popular month. The Articles of Confederation in retrospect doesn't seem such a bad idea. Maybe we should have stuck with it. Iowa could in most respects be an independent country and we could have our own founding fathers not some characters living in Virginia, New York, Massachusetts, or some other east coast state who really know nothing about corn or soy beans and wouldn't know a John Deere from a Case IH. The television analysts are now in full tilt explaining how and why Barack Obama was reelected president of the United States. It doesn't take much intelligence to figure this one out. Look at the map showing what areas went Democratic and which went Republican. The Democrats won urban American and the Republicans won rural America. Less than half of Democratic Congressmen are white males but almost 90% of the Republican Congressmen are white males. Is it any wonder that the Republicans rely on the "Founding Fathers" for their inspiration all of whom were white males. One only needs to acknowledge that the "Founding Fathers" were all white males and that people of color and women were neither consulted or allowed an opinion and certainly could not vote when these founding fathers were doing their work. Is it any wonder that the new minority majority in this country really doesn't much care what the founding fathers said or did? I can just imagine what Indians, African Americans, Asian Americans, and Mexican immigrants think about about those guys. Not much. And we have the Daughters of the American Revolution living in never-never land celebrating some distant connection with Betsy Ross. So my suggestion is that we get over this founding fathers crap and get on with the business at hand.

Defiance

I have often made the seemingly flippant remark that one can't feel right about oneself if one doesn't break the law at least once a day. I would expect that not one of the people who have heard me say that, has taken me seriously. But there is great emotional satisfaction in breaking the law. We are not talking here about murder, burglary, rape, nor credit card fraud, to name a few; we are talking about speeding, red lights, stop signs, and such. Committing a traffic offense isn't so much a sign of moral inadequacy or antisocial behavior, as it is simply an act of defiance. Whether you have thought about it or not, or have consciously come to the conclusion, people do become tired of being told what to do. If you leave your house in the course of a day, you will have some government body constraining your activities whether it be parking in a downtown parking spot longer than you are told you can, crossing the street at some place other than a marked walking zone or against the don't walk sign, changing lanes on the interstate without signaling, texting while driving: the list is practically infinite. And these instances are just the local government injunctions. We are not speaking solely of criminal acts here. We have the ocean of rules and regulations that control every conceivable activity from zoning ordinances, health ordinances, building codes, the Iowa Administrative Code, and the Federal regulations which would take a multistory building to hold. It doesn't take a criminal justice degree or a masters in psychology to understand that people simply get fed up with being told what to do. The surprising thing is that most people do try in most instances to do what they are told to do. I am unconvinced this is a good thing. It certainly reflects a lack of gumption in the general public. Are we all just a bunch of weenies? The argument against such defiance is that our country would devolve into a chaotic state where danger and misfortune would lurk around every corner. This is not a testable hypothesis, but a rationalization. As compliant and ignorant as the general population of the United States is, chaos seems unlikely. And although defiance has a certain positive quality, the current processes of parenting and public education usually eradicate most defiant tendencies of our younger population before they reach of the age of majority. So when a person says that he doesn't feel right about himself unless he breaks the law each and every day, it simply may be wishful thinking-a yearning for the loosening of constraints. And if it means excusing a person for running a stop sign on an empty rural intersection or driving ten miles an hour over the speed limit on an empty highway, the emotional satisfaction derived from such a petty infraction may be well worth it both for the person doing it and the authorities.