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March 28, 2013

You be the prosecutor: will you accept Aurora theater shooter's plea offer and drop pursuit of the death penalty?

Regular readers know that, often on the eve of a high-profile or unique sentencing proceeding, I urge folks to imagine being the judge and to propose a just and effective sentence for the defendant. Recently, however, I have enjoyed the debate engendered by encouraging readers to imagine being a prosecutor tasked with a tough sentencing decision, and this story from Colorado highlights that some state prosecutors are in now in the capital sentencing spotlight in a high-profile mass murder case:
The man accused of murdering 12 people during the Aurora movie theater massacre is willing to admit to the killings if doing so will save his own life.

In a surprise motion filed Wednesday, lawyers for James Holmes said he has offered to plead guilty in exchange for a life in prison with no chance of parole. The offer was first made prior to the arraignment hearing earlier this month, according to the motion. "Mr. Holmes is currently willing to resolve the case to bring the proceedings to a speedy and definite conclusion for all involved," the lawyers wrote in their motion.

The move swings the spotlight onto prosecutors, who have said they will announce during a court hearing Monday whether they will seek the death penalty. Prosecutors are talking with theater shooting victims and their families to hear their opinions on capital punishment for the case.

Holmes' attorneys wrote in their motion that prosecutors have not accepted the offer. Denver defense attorney Dan Recht said the offer narrows prosecutors' decisions to a single question: Is death the only acceptable punishment in the case? "Holmes can't offer any more than he is offering," said Recht, who has been following the case. "The choice for the prosecution could not be clearer."

All right all you would-be prosecutors out there: do you accept this plea offer from James Holmes? Should the views of theater shooting victims and their families be central to this decision or just one of a number of other factors to consider?

March 28, 2013 at 06:00 PM | Permalink

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"All right all you would-be prosecutors out there: do you accept this plea offer from James Holmes? Should the views of theater shooting victims and their families be central to this decision or just one of a number of other factors to consider?"

I don't think you'll be finding a lot of "would-be prosecutors" among your readership, but I'll be happy to chime in as a former prosecutor.

In my jurisdiction, you don't meticulously plan to kill 12 people, bring it off, rig your apartment with bombs to kill the investigators, and then get a prison sentence no matter what the length.

Like the Beltway sniper (who "only" killed ten), this guy is a poster boy for the death penalty. He'll put on an insanity defense, sure. Let him. The guy is going to wind up in secure custody for life one way or the other; it's not like the prosecution has to worry about his walking away if there isn't a conviction on a death penalty charge.

The victims' families deserve a respectful hearing, but no more than that. The prosecutor represents the public and the public interest, not victims individually or directly. Besides that, the prospect that most of the families would want a mere prison sentence is low.

A society that can't execute this guy has lost its way. We in Virginia dispatched the Beltway sniper in seven years, and, with determination rather than dallying, the same can be done for the princely Mr. Holmes.

Posted by: Bill Otis | Mar 28, 2013 6:23:28 PM

Given the realities surrounding execution I would probably accept the offer, the only catch being just how iron-clad an appeal waiver he is also willing to enter and how such waivers have fared in the jurisdiction.

While I believe that Mr.Holmes is eminently deserving of a date with an executioner I also accept just how expensive an offender can make getting to that point. Especially with an offender like James Holmes who would seem square in the wheelhouse of the sort of cases that SCOTUS has not allowed to proceed to their appropriate resolution.

Posted by: Soronel Haetir | Mar 28, 2013 7:09:57 PM

"The prosecutor represents the public and the public interest, not victims individually or directly."

That's true though at times one might not know if from the sentiments of some people who focus on the victims and how such and such is a thumb in the eye of victims, even though victims split on the death penalty or specific matters involving in criminal prosecutions. The Giffords, e.g., according to my reading of their book opposed the death penalty. They don't "love murderers" or anything as some opponents of the death penalty around here are accused of doing. And, prosecutors are not bound by their opinion.

I'm not inclined to be a prosecutor as compared to some, including more than one member of the SCOTUS bench (including Sotomayor). But, fwiw, I'd take the deal and respectfully consider the concerns of the victims, who don't (see article) all have the same views on the subject. People like this may or may not be criminally insane, but there seems to be reasonable doubt at least on the high level of culpability warranted before you execute someone. It is quite possible the jury will agree. Life in prison is punishment and it is unclear to me that he is the type (unlike a few) likely to be a danger in prison.

I don't think the victims who oppose the death penalty has "lost their way" and find accepting his plea and not going thru a long process that very well might fail worth it.

Posted by: Joe | Mar 28, 2013 7:12:27 PM

Joe --

Being an opponent of the DP under all circumstances, as you have said you are, OF COURSE you'd settle for a life sentence, since you'd settle for that if he killed 1200 instead of "just" 12.

Whether he's too crazy to execute is exactly what we have juries to decide. With the amount of planning he did, the prosecutor has a reasonable shot, at the least, of prevailing on that question.

We know we have the right guy, we know he put a lot of thought into it, and we know he has no known remorse. We should give him what he's earned.

Posted by: Bill Otis | Mar 28, 2013 8:12:30 PM

i'm kind of torn. on the one hand i agree with bill this guy is the poster child for the death penalty. But i also agree with soronel. Far far far too many who deserve it are not getting it but are sucking multi million dollars each out of an empty budget with no end in sight. Personaly i think a plea with a small adustment would work.

He get's life without parole. He agrees that he will not be party to any appeal PERIOD. Failure to abide by this will result in his agreement to automatic execution within 48hrs.

Posted by: rodsmith | Mar 28, 2013 8:24:13 PM

I think the way to look at this is, "What is the worse punishment for the killer." I was say it's a greater punishment to spend your life in prison, than to spend a few years and then die humanely. Go directly to jail -- for life. Maybe some prisoner will kill him in prison, in a torturous way.

Bob/ Los Angeles

Posted by: Robert Berman | Mar 28, 2013 9:07:03 PM

Being an opponent of the DP under all circumstances, as you have said you are, OF COURSE you'd settle for a life sentence

I have repeatedly noted that I understand that in real life we cannot have perfect situations, so we rest on imperfect realities. Taken a situation where the D.P. is allowed, I would still deem it rational in this case to take the plea.

Whether he's too crazy to execute is exactly what we have juries to decide. With the amount of planning he did, the prosecutor has a reasonable shot, at the least, of prevailing on that question.

As a former prosecutor, you know more than I that prosecutors repeatedly weigh things of this nature when taking plea deals and do not just submit everything for juries to decide, in fact that few cases actually go to trial. They often do not rest on "reasonable shots" but when something like LWOP is agreed to, they take the deal. What they do, I feel silly telling this to you of course, is quite variable, but taking the deal would be someone many would do.

We know we have the right guy, we know he put a lot of thought into it, and we know he has no known remorse. We should give him what he's earned.

As former prosecutor and friend of Prof. Berman, Mark Ostler, noted in his book, it is unclear what such people have "earned," especially if he actually is mentally deranged enough not to warrant the death penalty. What 'remorse' he has or will have is also unclear. But, your views are on the record.

Posted by: Joe | Mar 28, 2013 10:01:33 PM

@Robert Berman
How can life in prison be worse if that is what the killer prefers?

Posted by: MikeinCT | Mar 28, 2013 10:35:48 PM

It is OK to be slick with this defendant.

Accept the offer. Quietly place him in general population. Dead within weeks, preferably after being tortured by other inmates. Then botch the investigation of his death, so that his murderer can be rewarded, quietly. When I say, "botch" the investigation, I mean, carry it out at the usual standards of the know nothing lawyer. This form of self help can become a regular policy choice for all future extreme defendants.

Posted by: Supremacy Claus | Mar 28, 2013 11:25:38 PM

I have said before that I am only in favor of the DP in exceptional situations and my reaction is that if society cannot kill this guy then the DP might as well be unconstitutional because it would have no meaning. However, that doesn't mean I'd reject the deal. I am well aware of the cost. I'd also want to speak with the families. In the end I think this decision is a close call and I would not be annoyed with the prosecutor which ever way he goes. Playing along with the hypo, my immediate reaction would be to go for the DP for many of the reasons Bill O. refers to. But I do not feel passionately about such a decision and could be persuaded differently.

So in the end I agree with Bill, but weakly.

Posted by: Daniel | Mar 28, 2013 11:43:18 PM

Joe --

"Taken a situation where the D.P. is allowed, I would still deem it rational in this case to take the plea."

I agree it would be rational. But many "rational" decisions are mistaken, and a decision to go for this plea offer would be a mistake.

"As former prosecutor and friend of Prof. Berman, Mark Ostler, noted in his book, it is unclear what such people have "earned," especially if he actually is mentally deranged enough not to warrant the death penalty."

But Mark Osler is, like you, a down-the-line abolitionist. He doesn't think ANYONE has earned the DP in any way that would count in the real world.

What clinches the case for me is that the prosecutor here is not confronting the usual downside when considering a defendant's plea offer. Normally, the prosecutor must consider the possibility that there might be an acquittal and the defendant will walk.

That prospect does not exist here. Even if there is an acquittal, it will be by reason of insanity, and the only place Mr. Holmes will be walking will be into the most secure, and least pleasant, insane asylum you can imagine.

The prosecutor thus has only the cost downside to consider, but (1) few will blame him for going to trial with this guy, and (2) there will be costs anyway, as Holmes spends fifty years filing habeas suits (rodsmith's suggestion unfortunately won't work).

The death penalty here is authorized by the Constitution and by statute, and this guy easily qualifies as the "worst of the worst." To not use it now is only to feed the argument that it should be abolished. Presumably it is not in the prosecutor's interest to do that (because, among other reasons, the existence of the DP is the only reason he's getting this offer to begin with).

Posted by: Bill Otis | Mar 29, 2013 12:55:58 AM

Apparently the prosecutors didn't think a whole lot more of the offer than I did.

http://www.foxnews.com/us/2013/03/28/prosecutors-say-are-not-ready-to-agree-to-holmes-guilty-plea-in-theater/

Posted by: Bill Otis | Mar 29, 2013 1:01:31 AM

Interesting that the prosecution is so mad about the defense disclosing this. That tells me that either (a) the defense doesn't think there's any way in hell the State will accept the offer, but they are playing to the public/jury pool and/or setting up the ultimate penalty-phase case where they will be able to say he tried from very early on (after being in custody and medicated) to take responsibility/avoid unnecessarily traumatic court proceedings, or (b) the defense doesn't think there's any way the State *wants* to accept the offer, but they think that this is a pivotal moment where publicity might be able to generate enough pressure from the victims/press/public to change the State's political/PR thinking on the issue.

Posted by: Anon | Mar 29, 2013 3:02:26 AM

Anon --

I think it's simpler than that. The defense knows that the best they're going to do -- and the prosecutor knows that the worst he's going to do -- is to put Holmes away for life in a secure facility. So everyone here is just doing what comes naturally.

The defense makes an "offer" of something they know is sure to happen, and thus an offer that gives up zero to the government in terms of Holmes's ultimate fate.

The prosecutor refuses the "offer" because he knows he'll wind up with it no matter what the outcome of a trial (guilty or not NGBRI), and he doesn't want to give up the prospect of getting the DP (which justifiably will have massive public support) in exchange for what is, for practical purposes, nothing.

The penalty here will not be decided by a jury based on atmospherics or lawyer posturing. The facts of the case are so overwhelming that they will eclipse all that stuff. And, while in an ordinary case, the jury might care about "taking responsibility," it won't here. First, they'll see that the offer was just a manuever to get by with the minimum possible (which is hardly "accepting responsibility"), and, in any event, even genuine acceptance of responsibility won't be enough to get Holmes off from the DP.

When people think of why we have a DP, they think of this case. The prosecutor has no significant downsides in going for it.

Posted by: Bill Otis | Mar 29, 2013 8:25:08 AM

As a prosecutor (in a state with no death penalty but LWOP for first degree murder) I think the prosecutor should decline the offer to plead guilty under these circumstances. If the prosecutor accepts the offer how could he ever decline such an offer in the future in another case? Accepting the offer sets a baseline of conduct that you think is acceptable to punish with only LWOP. Do you want to deal with the argument, "I only killed three people, it's a denial of equal protection for you to not let me plead to LWOP" from the next killer? Even if that argument is solely political and not legal, the prosecutor doesn't want to deal with that.

I agree with Bill Otis' comments fully. The prosecutor should decline the offer, try the case, and if the jury returns LWOP instead of death - so be it.

Posted by: AlanO | Mar 29, 2013 8:47:44 AM

Again, the former prosecutor I cited would not think he "deserves" the death penalty. Giving him a label doesn't change that.

The fact even Bill Otis says it is 'rational' to take the plea and Daniel agrees with Bill on rejecting the plea "weakly" suggests that the matter is far from crystal clear. The number of people he killed isn't the only factor here. The reasonable possibility of his insanity make his crime less crystal clear worthy of the d.p. then someone who simply killed for financial gain. Or, someone who killed on death row or while escaping prison. I also think this provides a possible answer to the equal protection concern cited by someone else If the DP would have "no meaning," it is unclear to me why Daniel only accepts it "weakly" here.

I think those who support a trial here do make a pretty good case too. Overall, trials have various positive functions, and I might be convinced in fact that one is beneficial in cases of this type.

Posted by: Joe | Mar 29, 2013 10:32:13 AM

Before we assume that a jury would automatically, or even more likely than not, impose death in this case, I think it is fair to consider the recent history of defense success in death penalty trials in Colorado. There is a reason that one of the most influential theories of defending a death-eligible case is called the "Colorado method."

I understand that there is a near certainty of life in a secure facility for this defendant. But given (1) the history of defense success with Colorado juries at the penalty phase, (2) the serious questions about sanity -- not only as a defense to the criminal charge but also as a mitigating factor and eventually a potential Ford v. Wainwright bar to execution, (3) the likelihood of intricate evidentiary and constitutional issues involving sanity and a skilled defense team that will raise and preserve every one of those issues, creating a real possibility that it could take more than one trial/penalty phase to get to a final sentence, and (4) the substantial possibility of death penalty repeal in Colorado in the next 5-10 years, the chances of obtaining and actually carrying out a death sentence in this case may well be less than 50%.

I think it is a close call whether rolling the dice on a (for sake of argument) 50% chance of eventual execution rather than life incarceration is worth what it will take to roll those dice, in terms of years of disruption and uncertainty for hundreds of people (primarily family and friends of victims, but also concerned members of the public, not to mention district attorneys, court staff, correctional staff, defense staff, etc.) and the opportunity cost of using those prosecution/law enforcement dollars elsewhere.

I realize that there may be victim/prosecutor/societal benefits from a trial even if the jury ultimately returns an NGI or not-insane-but-LWOP verdict. But even to the degree such benefits exist, again they must be weighed against the significant downside to a trial.

Finally, I don't think it is reasonable to discount the value of a plea on the basis that the defendant will file "endless" collateral challenges anyway. It is true this sometimes happens, and there is probably no way to bar him from filling out forms and mailing them to court with a stamp. But given a plea and appellate waiver the practical chance that any such challenge will succeed is more or less zero, and the prosecution and court energy required to adjudicate those challenges is about 1/1,000,000 of what it takes to adjudicate the full series of appeals/state habeas/federal habeas after a trial. And given these realities, the prosecutor can confidently provide certainty to the victims that -- regardless of the defendant's futile filings from prison -- there will be no retrial/disturbing of the verdict, something he or she cannot say if the case is going through the full post-trial review.

Posted by: anon | Mar 29, 2013 11:12:00 AM

If I were the prosecutor, I would ask to see the defense mitigation evidence before agreeing to let him plead to LWOP. If he has strong mitigation evidence and my juries are reluctant to give the death penalty, I might let him plead. If he has no real mitigation evidence (even though an appellate judge might characterize it as mitigation evidence) and my juries are willing to consider the death penalty in an appropriate case, I would probably let the jury do its job and make the decision.

Posted by: tmm | Mar 29, 2013 11:28:32 AM

anon --

It seems to me that your analysis amounts to a de facto repeal of the death penalty by prosecutorial wimpiness.

If a prosecutor can't go for it in this case, where we are 100% certain we have the right guy, where it's a mass murder, where there is proof of extensive planning, and where the defendant (on top of that) rigged his apartment with bombs to kill investigators even after he was captured -- then it's very hard to imagine a case where the state would use the DP.

So it might as well be repealed, right?

Which is what you prefer, also right?

Sure, there will be a mental state defense. But that's old hat. Since the identity of the killer is almost always beyond dispute, mental defenses are just the standard issue defense tactic in capital cases.

This guy's case is unlike the typical "Colorado method" case simply on account of the number of victims. Has there EVER been a case in that state with this many victims?

I mean, this atrocity was a national story. It's right up there (or down there) with Sandy Hook.

As I say, to decline to go for the DP here is a de facto repeal of that punishment, ever. I understand that that is what some want (including, I'm quite sure, you), but it is not what the majority in the state wants and it certainly isn't what prosecutors should or do want.

It's quite true that the DP costs lots of time, money and disruption. But important things in public life almost always require those things.

This guy is without serious question the worst of the worst. The preeminent point here is that, except for total abolitionists, this guy, above almost anyone else, has earned the needle.

Posted by: Bill Otis | Mar 29, 2013 12:09:16 PM

@MikeinCT

"How can life in prison be worse if that is what the killer prefers?"

Sometimes, it can. A person might request life because of an immediate fear of death, not realizing just how long and hard life can be. Just as one might request a quick death, even though one might actually find life more bearable once one got used to it. And sometimes the preference is indeed the preference the killer always has, and is thus a good proxy for which is the more lenient punishment. In sum, the killer's present preference is probative, but not dispositive.

I offer this more as a theoretical response, not one relating to this particular case.

Posted by: AnonymousOne | Mar 29, 2013 3:25:55 PM

AnonymousOne --

Nice to see you posting again.

Let me just ask the central question: Should the prosecutor accept or refuse Holmes's offer?

Posted by: Bill Otis | Mar 29, 2013 4:04:21 PM

Thanks Bill. And I was hoping to avoid that question!

My own view on the DP has evolved, and continues to. I haven't studied the matter extensively, and this is one of those moral issues that I've grappled with over some time (the same is true of abortion). I generally take a dim view of "retribution," viewing it as revenge cloaked in a shroud of philosophical acceptability--though I know most stakeholders probably disagree with that view. In my current thinking, DP should only be used if it is necessary to save life, not to placate a desire for retribution. That is, you kill to prevent loss of life or serious bodily harm, but you don't kill after the fact. However, you have argued, with plausibility, that there are some offenders that pose a danger even while in prison, and this causes me pause. Where does that leave me? I don't know enough about this defendant, and I haven't followed the case carefully. If there were little danger to the lives of others in imprisoning him for life, I'd accept the offer. To me, a lifetime of imprisonment is a significant punishment. More importantly, it would take this man off the streets, where he must not be. Death doesn't seem to add much.

On insanity--I do think he is insane, but I have no idea whether he would meet the legal definition of that term. I've long taken issue with that definition as unduly narrow. A man who colors his hair, shoots dozens, smiles in his mugshot, references batman and the joker while being interrogated, and the rest of his extremely bizarre and erratic behavior--well, he's nuts! These people seem poor candidates for the retributive and deterrent framework of punishment, because they don't seem to process moral though as we do, nor to be deterred by the consequences of our justice system. For such people, I see the justice system as serving merely an incapacitative aim (unless somehow we could fix severe mental illness).

AO

Posted by: AnonymousOne | Mar 29, 2013 4:35:04 PM

@Joe.

Let me clarify my "weakly" comment. Logically, I agree with what Bill has to say fully. I do not share his blood lust, however. I would go for the DP because I would feel that it was my /duty/ to both the law and to the victims to do so and not because I personally desired that outcome. Personally, I would get rid of the death penalty. But as a prosecutor I would not see it as my job to impose my own subjective beliefs on others. My job would be to reflect the will of the community within the confines of the law. If I felt that the community wanted death then I would go for death even if it is personally repugnant to me to do so.

There is a reason I am a psychologist and not a prosecutor. As a general matter I'm a healer and not a punisher or a killer. One should be wary of those in whom the desire to punish is strong.

Posted by: Daniel | Mar 29, 2013 10:55:56 PM

AO --

Let me rephrase the question. Should a prosecutor accept the offer if he (1) believes in the death penalty as justice (as opposed to thinly disguised revenge) and (2) believes that Holmes knew what he was doing (killing numerous people who had done him no harm) and intended to do it?

Posted by: Bill Otis | Mar 29, 2013 11:55:10 PM

Daniel --

"Let me clarify my 'weakly' comment. Logically, I agree with what Bill has to say fully. I do not share his blood lust, however."

Is it your view that anyone who supports the DP is afflicted with "blood lust"?

Is it your view that those who believe the prosecutor in this particular case should refuse the offer and seek the death penalty for Holmes at trial are afflicted with "blood lust"?

Posted by: Bill Otis | Mar 30, 2013 1:01:50 AM

Bill,

My answer to that question is that if I were the prosecutor, I would accept the plea. I know this is controversial, but I am not yet convinced there is a form of retributive justice that I would not deem, at heart, to be revenge. Or, to put it in less judgmental terms, I don't think decisions about the death penalty, or any punishment, should be based on how they make us feel. I think they should be based on whether they do something tangible--prevent a future crime, deter a crime, etc. So to say that the prosecutor believes in DP as justice, and not retribution, doesn't change the issue for me, unless I can perceive the difference. (This is not to say that the prosecutor is behaving maliciously or anything of the sort). Just my view of retribution.

The fact that Holmes may have intended to commit and planned his crime--I have no doubt he did so--does not change things, because I think the legal conception of insanity to be quite narrow. Holmes is severely mentally ill. None of this would have happened were it not for that severe mental illness. None of this would even have crossed his mind. His actions and behavior are so inexplicable and bizarre as to admit of no other explanation: he is crazy. To me, that mitigates culpability (though it does nothing to mitigate the societal need to incapacitate him, which must occur).

I'd consider rejecting the deal if I had good reason to believe he posed a continuing, serious danger of harm to others despite a lifetime of incarceration.

AO

Posted by: AnonymousOne | Mar 30, 2013 2:12:12 AM

AO --

One of the pleasures of talking with you is that you give direct answers.

As to the merits:

-- "I don't think decisions about the death penalty, or any punishment, should be based on how they make us feel."

I believe that needs further exploration. No matter WHAT one's theory of justice is based upon --a retributive or strict untilitarian model -- our willingness to impose the penalty our theory dictates is going to be based, in the end, on how we feel about it.

In other words, your "feeling" that utilitarianism is preferrable to retrubution is just that -- a feeling. It is also, at the famous end of the day, the reason you choose one over the other. You take analysis as far down the road as it can go, and what you find at the end of that road is feeling. So it seems to me that both retributivists and utilitarians make their choices based on their feelings. They just have different feelings.

"I think they should be based on whether they do something tangible--prevent a future crime, deter a crime, etc."

See above. I would note in addition that deterence and incapacitation are widely considered necessary, but not sufficient, theories of punishment. Indeed, I would go further: It seems to me that embedded in the very concept of punishment is a punitive (or retributive, if you will) component.

The prevention of future harm restrains, sure, and is thus a good thing. But it does nothing to respond specifically to the harm already done. Traditionally, and certainly in my view, a "punishment" that does not actually punish is, by definition, deficient.

-- I agree that Holmes is crazy. He certainly sees a different world from the one you and I see, and he must process both percipient and moral facts differently from the way we do.

But there is something else going on with him: He's malevolent. Some people can be both sick AND evil, and he's one of them (indeed, he's one on a grand scale).

This is why, in my view, the present legal definition of insanity is adequately broad FOR THE PURPOSES OF CRIMINAL LAW. That is, if a person knows the difference between right and wrong, and is able to control his behavior in light of that knowledge, it's perfectly fair to punish him when he decides NOT to control it.

Any other view, it seems to me, does not adequately account for the fact that, for 99% of his time, Holmes did in fact control his behavior, and that many people, as sick or sicker than he, don't commit crime at all, much less the sort of mind-bending crime Holmes brought off.

He didn't kill all those people because he was in the thrall of some devil who told him he must. He killed them because he wanted to. Because his behavior was volitional in a sense a normal person would recognize, I have no trouble punishing it in the typical, punitive, sense.

(I might add that, on your theory, the correct "punishment" isn't LWOP either. It's custody and treatment until such time -- which could be next month, so far as any of us knows -- as a board of mental health experts declares him "cured" or "safe" or what have you).

Posted by: Bill Otis | Mar 30, 2013 8:52:59 AM

Thanks for the upfront reply Daniel. I would just note again that if "to the victims" is a factor, they disagree on the proper path. I don't know what the "will of the community" amounts to. A local paper, e.g., supports taking the deal. So, ultimately, we are left with trusting the public servants somehow chosen by them. But, it is reasonable to go to trial, though I think (and the horrible nature of the crime often ironically makes the case clearer) there is a reasonable chance of mental defect high enough so that the d.p. is not warranted.

Posted by: Joe | Mar 30, 2013 10:14:12 AM

i think bill hit the mail with a sledgehammer with this one!

"That is, if a person knows the difference between right and wrong, and is able to control his behavior in light of that knowledge, it's perfectly fair to punish him when he decides NOT to control it.

Any other view, it seems to me, does not adequately account for the fact that, for 99% of his time, Holmes did in fact control his behavior, and that many people, as sick or sicker than he, don't commit crime at all, much less the sort of mind-bending crime Holmes brought off."

That takes it right down to basics.

Only question after that is do we as society think the individual can be "cured" or "trained" to control themself.

If the answer is "YES" then there is a posibilty the individual can return to society. If the answer is "NO" then it's time to bite the bullet the put the animal which is what something that acts totaly on instinct wtih no though to anyone else DOWN. For the good for everyone!

Posted by: rodsmith | Mar 30, 2013 12:34:56 PM

I appreciate that, Bill. I try to be direct, because if someone has taken the time to frame a specific question, he deserves an answer. So here are some more answers.

I would differentiate between how I feel about a theory of punishment (deterrence, incapacitation), and a theory that appeals to how I feel (retributivisim). Retributive justice sees punishment, in part, as vindicating or placating our sense of having been wronged—to me, the psychological benefit of revenge, a benefit I’ve sought and enjoyed on occasion. It directly, for reasons often unexplored, makes us feel better. Incapacitation and deterrence can make us feel better, but not in the same way, and far more indirectly. I don’t feel psychologically pleased or vindicated at the thought of effective deterrence. I feel a sense of practical accomplishment.

I recognize to prevail, I’d have to demonstrate more than that retributivism appealed to our emotions in a unique way. I’d have to explain why that was a bad thing. We think it is bad when we instruct children to not simply hit someone who has wronged them, even though it gives them immense pleasure. Yet we seem to feel that, as adults, a more matured sense of that feeling is acceptable—indeed, respectable.

I’d still have to demonstrate that it was wrong, or somehow not ideal, to feel good or pleased about, or vindicated by, another person suffering, or to desire that it should happen merely for its own sake (and not because of its utility). It sounds bad to me. But I need to articulate a more thoughtful theory. I could write pages, but generally, I think it bad to make decisions about punishment, or about any morally weighty matter of policy, by giving much weight to our emotions. I also think it wrong to seek to add to the suffering in this world if there is not practical utility.

“The prevention of future harm restrains, sure, and is thus a good thing. But it does nothing to respond specifically to the harm already done.” But what more should a person legitimately demand. Why isn’t that enough? Why is it good that we demand more? Why should that desire be satisfied. As you said, the harm is already done. It seems gratuitous. It seems, to me, to be revenge. And there is a reason why we think revenge is bad. I realize there is much more to be said.

Posted by: AnonymousOne | Mar 30, 2013 9:21:31 PM

I don’t know whether Holmes is evil, because I don’t know exactly what the term means in this context, or how it interacts with mental illness. We used to think paranoid schizophrenics who killed others were evil(and some still do). Then we discovered the banality of that evil. Evil, it seems, is synonymous with a severe imbalance of neurotransmitters, as well as a potential aberration in brain physiology detectable in certain magnetic resonance imaging. Absent these factors, evil no longer resided in the person. If that is evil, I would concur that Holmes is evil. But if evil is something greater, I need to understand it. And I refer specifically to this context. I’m not speaking of ordinary greed or the like, but here of an aberration so fundamental that it skews the entirety of ones moral reasoning and perception of reality. In what sense is it fair to hold such a person criminally accountable in the same measure as you or I?

You focus on his ability to control his actions. I don’t know about that ability, but I’ll assume he possessed it. But I don’t know why the focus should be there. Crazy people can still make choices. Absent the most severe mental illness, it is not choice that is compromised, but reasoning. He chose to commit these action, and could have chosen not to, but his moral calculus was infected by this severe mental illness. That should count for something when it comes to culpability, and to assessments of evil. He is not on equal footing to us.

I’m not saying evil doesn’t exist. I just don’t have a good grasp of what it means.

I do think that, in principle, treatment until such time as one can be cured is appropriate in many instances. If someone is no longer under the terrible constraint of some horrible mental affliction, and thus no longer poses any danger (and is in many ways not the same person, in a moral sense, as his previous, diseased self), I’m not sure why we would continue to punish him. But I share your skepticism with the practicalities. We often can’t cure severe mental illness, nor adequately gauge when we have. That is a severe, if not utterly crippling, practical constraint, but it doesn’t negate the principle.

Posted by: AnonymousOne | Mar 30, 2013 9:52:03 PM

AO --

A few points --

1. If Holmes is as completely crazy as you hypothesize, he cannot intelligently agree to a plea deal, so the prosecutors should just walk away from it in any event.

2. If he's less crazy than that, then what we have here is a could-go-either-way jury issue. Why have juries if not for decisions like this?

3. I don't think it's that hard to define evil, at leat by iteration. Think of someone you've run across who has no empathy for the feelings of others, who's greedy, dishonest, mean-spirited, cruel to those with less power (but syncophantic to those with more), who always finds something nasty or negarive to say, who is carelessly physically abusive, and who ceaselessly puts himself first no matter what. That's evil. Multiply by 100, and that's Holmes.

People make actual choices about how they behave. It's not all brain synapses. If it were, the whole foundation of criminal law, over numerous cultures, and for thousands of years, is all wrong -- not to mention our day-to-day experience.

4. Also wrong would be the idea of punishment per se -- of attaching negative consequences to bad behavior simply because it was bad, and independently of whether those consequences will tend to deter future such behavior (although ordinarily they will have that effect as well).

Am I getting this wrong?

Posted by: Bill Otis | Apr 1, 2013 8:54:20 AM

um, it's not all brain synapses when it comes to how we make choices? how else do we make choices? do we also use our small intestines? lungs? nerve endings in our toes? choices are actually "made" in our brain and all those messages & decisions travel through those weird synapses or neurotransmitters. when things aren't working right in those areas, our reasoning abilities are compromised. it sucks, but we can't just fall back on our heart valves to compensate. do you think there is a part of you, bill, that would keep you immune from possibly becoming a mass murderer if you suffered from disease or damage to your frontal lobe? which part? if you suffered a stroke is there a part of you that take over to move your mouth muscles if that part of your brain suffered damage? . also, how does it contradict our day-to-day experience to understand brain functioning? and why shd we be relying on folks reasoning from thousands of years ago to inform our thinking on culpability or criminality in the face increased understanding brain functioning? personally, i'm pretty thankful that folks with epilepsy aren't tortured anymore.

Posted by: anonymous | Apr 1, 2013 1:05:26 PM

anonymous --

"um, it's not all brain synapses when it comes to how we make choices? how else do we make choices? do we also use our small intestines?"

Evidently you do.

If you want to deny the existence of conscience and will, feel free. It's amusing, I guess, to see some anonymous Internet poster so blithely dismiss the accumulated knowledge of civilization.

Posted by: Bill Otis | Apr 1, 2013 3:11:34 PM

The accumulated knowledge of civilization has proven so useful when it comes to scientific questions that I don't know why we employ neuroscientists; instead, we need only to turn to historians, andthropologists, and theologians.

One should not blithely dismiss accumulated knowledge. Nor, however, should one think it infallible. I suspect that most who subscribe to it know precious little about what neuroscientists actually know about the brain.

Also, please use Ralph's for all of your pizza needs. www.ralphspizza.com.

Posted by: Ralph's Pizza | Apr 1, 2013 3:58:27 PM

um, are really trying to say that our conscience is somehow separate from our brain functioning? is there some mystical place in our body that our conscience flows from that only you are aware of? we have a frontal lobe. that's the part of our brain where our moral reasoning lies. if your frontal lobe does not work very well or your head gets crushed in a car accident, even you bill, are going to have some significant problems, at least temporarily, moral decisions b/c of how you are or how you are not processing information. have you ever spoken to anyone who had loved someone who suffered brain damage in a motorcycle accident or was severely concussed? is CTE just a make-believe problem and these football players just have really bad consciences?

Posted by: anonymous | Apr 1, 2013 5:11:17 PM

anonymous --

Your psuedo-scientific excuses for, a/k/a swooning over, James Holmes are, if nothing else, revealing.

First it was too many Twinkies, now it's brain injury. The killer is blameless, and the corpses he created aren't victims; HE's the victim. Didn't you idiotic jurors ever take eighth grade science? I mean, are you just a bunch of theologians?

Fine. Hey, look, have at it. I truly hope he tries to peddle that to the jury.

Posted by: Bill Otis | Apr 1, 2013 5:24:31 PM

Bill,

1. I wouldn’t walk away because insane or not, it’s the best deal he’ll ever get.

2. I’m not saying that the question of Holmes’ sanity should or shouldn’t be a jury issue. I don’t have an issue with giving it to a jury. I was merely saying that if I were the prosecutor, I’d likely accept offer a deal for life, on the basis of his sanity (which I also know very little about, I’m just surmising based on news reports). My reluctance to give the matter to a jury does not stem from a lack of faith in my fellow citizens, but my lack of faith in the definition of insanity, which those jurors would be applying.

3. The person you describe approximates the kind of person I might call evil. But, I honestly do not think that description fits Holmes. That description more easily fits certain Nazis and perennial conmen. But Holmes seems quite different. I have no idea whether he is greedy, dishonest, sycophantic to those with more power, always has something nasty or negative to say, etc. I would not be surprised if he is none of these things. In fact, in his twisted (and dysfunctional) head, he might actually think he is serving some important purpose, if he thinks anything about his acts at all (and, of course, when he is not likening himself to a character in a movie).

The larger issue, for me, is to differentiate between measurable neurological diseases (such as schizophrenia or any other disease where we can identify chemical and physiological abnormalities resulting in aberrant behavior) and evil. It’s one thing to be greedy. It’s another to have a severe imbalance in neurotransmitters or some organic brain disorder that causes you to act so bizarrely that we say you are crazy, not greedy or just ill-mannered. We no longer think schizophrenics evil. To me, any theory of what evil is needs to distinguish those cases. I think Holmes falls more into that category, not the category of evil. Of course, it doesn’t mean that he should be released. It means, very likely, that he must remain incapacitated for the remainder of his life.

4. Yes. Unnecessary punishment is the gratuitous infliction of suffering, which I deem wrong. On my view, punishment would be gratuitous if not for an aim that was proper. On my view, retribution does not have a proper aim (revenge), though deterrence and incapacitation do.

AO

Posted by: AnonymousOne | Apr 1, 2013 10:29:52 PM

AO --

Given your take on it, I wonder if we should have criminal law, or criminal punishment, at all. If the ONLY proper purposes to be served are forward looking, wouldn't it be better to have some sort of civil inquiry, starting (but only starting) with the designated individual's past incident of behavior (note I avoid saying "defendant" or "crime"), and seeking some guidance as to how he might be more socially adaptive in the future.

It would seem -- again on your view of it -- that the present, backward-looking paradigm of adjudication and punitive response are too likely to accommodate, if not encourage, revenge, so shouldn't we just get rid of that system?

In other words, would it be fair to say your view amounts to a repudiation of the fundamentals of criminal law in this country as envisioned at the Founding and practiced since then?

I'm not trying to be provocative here. That does seem to me to be the logical outcropping of your views. If I'm wrong, please tell me where.

Posted by: Bill Otis | Apr 2, 2013 12:45:33 PM

taking issue with your argument that our conscience is independent of our brain = swooning over james holmes? what is wrong with you? who thinks that way? bully for you, if it helps you sleep at night to believe that james holmes is just pure evil. it's my personal opinion that he must be incapacitated for the rest of his life for his crimes. but i don't understand why you think that considering whether killers like holmes or loughner suffered from paranoid schizophrenia as relevant is tantamount to believing the killers are victims in their crimes. all we can do is marvel in our own superiority if it's just pure evil. but if we understand the significant consequences of brain damage or mental illness, at the very least we can learn whether there are and what steps we can take to help people mitigate their symptoms or prevent head trauma in ways that could reduce potential violence.


if anyone is blathering about pseudoscience, it's you. your argument is: listen to our ancestors. you know, the ones who believed that strokes = demonic possession. i'm truly at a loss to understand your position that moral reasoning or our ability to process the world around us occurs somewhere other than inside of our brain. is our conscience a spirit that floats around our bodies like a misty cloud? what is your concept of how free will works, exactly? and are you truly so confident that should you have had the great fortune of suffering from schizophrenia or head trauma, or ever grow a tumor the size of a grapefruit in your frontal lobe, you'd suffer no cognitive deficits or deficits in moral reasoning because of the power inherent in your conscience? why is it that if our brain is damaged or malfunctions in areas that affect our vision, hearing, or moving our mouth we don't just start seeing, hearing or speaking because we "will" it? do stroke patients who are unable to fully regain use of their faces or limbs lack a strength of character and free will?

also and too, the colorado public defenders have been very effective in securing life sentences. seems as though many jurors aren't offended by mitigation arguments with respect to mental illness.

Posted by: anonymous | Apr 2, 2013 12:50:27 PM

and perhaps our grandparents who despite living productive lives, loving and caring for our parents were just hiding their evilness all those years and are just using their "alzheimer's" diagnosis as an excuse to go around swinging at people.

Posted by: anonymous | Apr 2, 2013 1:05:22 PM

anonymous --

"taking issue with your argument that our conscience is independent of our brain = swooning over james holmes? what is wrong with you? who thinks that way?"

You do.

Sure, you put on a fig leaf. Big deal.

"i don't understand why you think that considering whether killers like holmes or loughner suffered from paranoid schizophrenia as relevant is tantamount to believing the killers are victims in their crimes. all we can do is marvel in our own superiority if it's just pure evil."

I too am afflicted with evil, as is every human being. But I try to fight it, rather than giving in to it. And I certainly don't gun people down.

"what is your concept of how free will works, exactly?"

Very smart people have pondered over that question for a very long time. I don't know the answer exactly (and neither do you). But I know that it DOES work, and that is where we part company.

"are you truly so confident that should you have had the great fortune of suffering from schizophrenia or head trauma, or ever grow a tumor the size of a grapefruit in your frontal lobe, you'd suffer no cognitive deficits or deficits in moral reasoning because of the power inherent in your conscience?"

My health, present and future, is no concern of yours, but I would request that you quit trying to pretend that I am or am going to become Holmes or Loughner, since I'm not. I don't go around killing people, and your johnny-one-note excuse for people who do is getting a bit shopworn.

Posted by: Bill Otis | Apr 2, 2013 4:24:40 PM

"i don't understand why you think that considering whether killers like holmes or loughner suffered from paranoid schizophrenia as relevant is tantamount to believing the killers are victims in their crimes. all we can do is marvel in our own superiority if it's just pure evil."

"I too am afflicted with evil, as is every human being. But I try to fight it, rather than giving in to it. And I certainly don't gun people down."

Bill, I wonder how you would fare fighting evil if you were a paranoid schizophrenic. I think your response merely avoids the question. You cannot compare yourself to them, unless you also have some severe mental illness.

Posted by: Ralph's Pizza | Apr 2, 2013 5:19:16 PM

Bill,

Much of the current criminal justice system could rather easily, I would think, serve the goals of deterrence and incapacitation. So I don’t think wholesale rejection of the current system would be necessary. Indeed, I think it wouldn’t. Sentencing courts could be instructed to focus on deterrence and incapacitation, rather than retribution, much like Congress or the Supreme Court might dictate that other factors not be considered. We would still arrest people, investigate crimes, prosecute offenders, and often imprison them, so as to deter or incapacitate. We would not, however, expend precious resources (inclding money and time) servicing revenge. Nor would we encourage people to harbor these feelings by legitimizing them and giving a sense of entitlement to inflict suffering merely to improve one's feelings, or to effect some ill-defined "re-balancing" of metaphysical equities. After enough time, society might stop expecting that such feelings would be placated and would, instead, be more forward looking. Or maybe not.

On nomenclature, I wouldn’t call it a civil inquiry, and I don’t see why “defendant” or “crime” would be improper terms. Crimes are still crimes, and defendants are still defendants. Nor would I characterize the inquiry as “seeking some guidance” on “social adapt[ation].” That all sounds very much like coddling, and I think it also makes the inquiry seem quite narrow and unlikely to protect the public. Social adaptation could be a factor, as would be many others that courts regularly consider in assessing deterrence and incapacitation. In a number of cases, things wouldn’t change from the current system. Sometimes, to deter criminals (both this defendant and future ones), punishment may need to be harsh. In other cases, my view would yield very different results. (I also recognize that to the extent we are not presently good at predicting the future, eliminating retribution won’t necessarily mean that sentences become much shorter.)

My view does repudiate one of the fundamentals of criminal law: the retributive theory of punishment. It leaves intact the others. My theory would only strike punishment to the extent it was greater than necessary to serve the aims of incapacitation and deterrence.

AO

Posted by: AnonymousOne | Apr 2, 2013 9:03:43 PM

Ralph's Pizza --

"Bill, I wonder how you would fare fighting evil if you were a paranoid schizophrenic."

You are, of course, free to wonder. Any conclusions you would draw would, of course, be pure speculation.

"I think your response merely avoids the question."

And I think the idea that conscience, choice and free will are nothing but biochemical phenomena is preposterous.

"You cannot compare yourself to them, unless you also have some severe mental illness."

It's your ally "anonymous," not I, who has compared me to paranoid schizophrenics. But I'll give the two of you credit. You haven't compared me to Nazis, not yet anyway.

Posted by: Bill Otis | Apr 2, 2013 9:58:29 PM

Bill O. asks.

"Is it your view that anyone who supports the DP is afflicted with "blood lust"?"

No. I support the death penalty because it is the law of the land and I do not perceive myself as possessing blood lust. My comment was not directed at "anyone" but at you in specific, Bill. I have read enough of your comments on this forum over the years and in my opinion your support of the death penality is motivated by blood lust.

"Is it your view that those who believe the prosecutor in this particular case should refuse the offer and seek the death penalty for Holmes at trial are afflicted with "blood lust"?"

I know nothing about those people so I have no basis to judge. Again, my comment was directed at you personally based solely upon what I have read on these forums over the years.

Posted by: Daniel | Apr 3, 2013 2:30:29 AM

Daniel --

Whether I am a bloodluster, or whether you take me to be such, of course has nothing to do either with the merits of the death penalty debate generally or with the specific question whether the prosecutor should have taken or refused the defendant's offer.

Is it better to focus on persons or on ideas?

Posted by: Bill Otis | Apr 3, 2013 3:55:11 PM

I'm against the death penalty categorically, so obviously take everything I say with that in mind. I read these comments here and while it pains me to admit it, I think Bill Otis is right that in the end this all comes down to feelings. I appreciate his acknowledgment of this, because reading him I often think, Boy, wouldn't it be nice to live in Bill's world? Everything is so clean-cut and clear! There's no ambiguity anywhere. I'm guessing (hoping) that's not how he is in person, but then, I don't know him. And teach always told me not to make ad hominem arguments.

But back to feelings: these debates are fascinating and revealing on one level, and on another they feel like a lot of words used to justify what's going on in our gut. I sense that Bill has a certain way of looking at the world, and this way includes an extremely clear feeling that people who do bad things should be dealt with severely, and there's not too much nuance there. (Again I could be wrong, but I've been reading him for a while here and that's the prevailing tone.)

And there are others, like me, who have a different worldview and whose gut feeling (one I've had since I was old enough to understand what the death penalty is) is that it is not our place, as a civilized society, to kill people in cold blood. As I think Helen Prejean asked, the profound moral question is not, Do they deserve to die? but do we deserve to kill them? I answer that question no, but I admit that I answer it from the core of my being, and not from my intellect.

And just to complicate matters slightly, ten years ago I worked in Louisiana at a law firm that represented death-row inmates in their appeals and habeas petitions, and met with several men who I knew had done very horrible things, destroyed families' lives forever. Some who did things that I can't type here, but on a par with Holmes (if not as many people, surely as depraved an act). And for the first time I understood in my heart why people support the death penalty, and I had more sympathy for them and their position. I have sometimes fantasized about killing people who might harm or kill my loved ones, as I'm sure we all have. Nevertheless, as Michael Dukakis once tried and spectacularly failed to convey, I must separate those feelings from my beliefs about how a government should operate. Otherwise, I believe, we will be consumed by our own bloodlust (and yes, that's what it is, Bill, if we're removing fig leaves), and we will destroy ourselves, regardless of what happens to James Holmeses of the world.

Posted by: JRoberts | Apr 3, 2013 9:16:07 PM

JRoberts --

An interesting post, more balanced than most by abolitionists, but still erroneous.

1. "I must separate [my] feelings from my beliefs about how a government should operate."

How our government should operate was described by the Founders in the Constitution, and they included a specific reference to capital crimes. Were they barbarians? Were they unaware of human fallibility?

2. "Otherwise, I believe, we will be consumed by our own bloodlust (and yes, that's what it is, Bill, if we're removing fig leaves), and we will destroy ourselves, regardless of what happens to James Holmeses of the world."

The country has had the death penalty for almost its entire history, and, far from destroying itself, has become the leading provider of opportunity, prosperity and freedom for the world.

3. "As I think Helen Prejean asked, the profound moral question is not, Do they deserve to die? but do we deserve to kill them?"

If "we" aren't going to give them what you admit they deserve, who do you have in mind to do it? And what, exactly, is the job of the courts if not to give litigants what they deserve?

4. "Bill has a certain way of looking at the world, and this way includes an extremely clear feeling that people who do bad things should be dealt with severely, and there's not too much nuance there."

(a) My "way of looking at the world" is irrelevant to the merits of this debate.

(b) I could just as easily (and more truthfully) say that abolitionists have a certain way of looking at the world, and this way includes an extremely clear feeling that people who do bad things should be the beneficiary of any and every excuse, from bad Twinkies to bad synapses, and there's not too much that can be said to move them off this ideological position.

I'm the one who wants some killers executed and others imprisoned. You're the one who wants the one-size-fits-all solution.

Please tell me again about who's nuanced and who isn't.

Posted by: Bill Otis | Apr 3, 2013 11:07:33 PM

Although plenty of people have argued that the references to capital crimes in the Constitution preclude any theory that the Constitution *forbids* the death penalty, I don't see how you can make the contrary argument that the same constitutional language *compels* the government to maintain the availability of the death penalty. And I believe that JRoberts was referring to a sub-constitutional level of civic decision-making with regard to the proper role of government, ranges of criminal punishments, etc. I don't see how the language of the federal constitution affects those kinds of (mostly state) policy decisions one way or the other in this area.

Posted by: anon | Apr 5, 2013 2:08:39 PM

If I'd forgotten even for a moment that I was arguing with a lawyer, the numbered and lettered response surely knocked it back into me. :)

Forgive the snark, but I remember this same frustration in law school -- the idea that every single argument should be susceptible to the lawyer's-brief model, where rational thought is paramount and all complex (and sometimes contradictory) feelings go to die. Perhaps that's why I'm not a lawyer! But to indulge the form for a moment:

1. I'm surprised I need to type this out, but the Founders also endorsed and enshrined human slavery in that same document. Were they barbarians? I don't know -- I didn't know them myself. But slavery was certainly barbaric, and it is no longer permitted by that very same document. The fact that the DP was mentioned in the Constitution is, accordingly, of fairly little significance in determining whether our "evolving standards of decency," or whatever you'd like to call them, should permit it in 2013.

2. Let's talk again in 2043.

3. I don't recall admitting that convicted murderers "deserve" anything in particular. Those are your words. The essence of the Prejean quote -- which to my mind you elided -- is that killing is (or should be) first and foremost a moral issue, and that when we choose to do it under the aegis of the state, the moral question that we must focus on is what that act does to US, as a people. It is disingenuous to imply that by making this point, or by being opposed to the death penalty categorically, I am somehow denying the role of our justice system across the board. Of course that isn't what I'm saying. I'm fine with locking certain people up for good. But as the Court always says, "death is different."

4. My point in distinguishing the way you and I look at the world was, I thought, to support the notion that however much we legal-ize these debates, the essence of our beliefs comes from a more comprehensive worldview -- one that may not be self-reconcilable in every aspect, but which informs the core of our sense of right and wrong, good and bad. You've mentioned before the existence of pure evil, for instance. I don't believe in that, not because I think you are provably wrong, but because I don't find it a useful way to think about people and behavior. Nor do I think it will get us to the less-violent society that I presume we both desire.

In that sense, I believe our worldviews are extremely pertinent to this discussion, and I had appreciated your reference to "feelings" earlier on, though perhaps I misunderstood your emphasis.

You're right that I oversimplified and perhaps caricatured your argument, and to that end deserve the Twinkie reference. To some extent that's the peril of having complex legal/moral debates in little white boxes. But I'll refrain from that in the future, since I'd probably learn more by giving you the benefit of the doubt. I'm sure that were we to talk in person we'd find we are both more nuanced than it can appear here.

Posted by: JRoberts | Apr 5, 2013 2:54:58 PM

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