Living in Truth, on and off the Field

Thomas Mann, Vaclav Havel and other artists have agonized over the connection between art and life. Havel, the Czech dissident-turned-president, argued for the goal of living in truth.

To live in truth, one’s inner and outer worlds must be integrated. When that happens, Havel suggested, a life could become a work of art.

How, if at all, does this reasoning apply to athletes? For big-time athletes, like high-profiles, are often in the public eye, moving in worlds that can seem so different from ordinary reality.

In Moneyball, the versatile journalist Michael Lewis tells the story of Billy Beane, a peculiar case study of bringing art and life together in the sports word. Annointed by baseball scouts as a future superstar while still a teenager, Beane never fulfilled that promise on the field.

As a general manager, however, Billy Beane has been instrumental in reinventing the tradition-bound game of baseball. As Lewis shows in Moneyball, Beane has led the Oakland A’s to surprising success by his willingness to use statistical analysis to guide player acquisitions.

Lewis recounts how, in the early 1980s, Beane was overshadowed in the New York Mets minor league system by two other players, Darryl Strawberry and Lenny Dykstra. Strawberry and Beane were drafted the same year, both in the first round, and billed as future superstars. Dykstra and Beane were roommates and friends.

Dykstra, in particular, was a challenge for Beane, for Dykstra seemed to have a head for the game that maximized his minimal talent. For Beane, it was the opposite, as he continued to get minimal results from what seemed to be maximum talent.

Off the field, however, in the game of life, the tables have turned. Strawberry and Dykstra have each done prison time. Strawberry’s issue was drugs. Dykstra’s issues were many, including drugs, sex offenses, and financial crimes.

Earlier this year, when Dykstra was sentencing to three years in prison for grand theft auto, the Village Voice said it was the culmination of what was essentially a 20-year crime spree.

Meanwhile, Beane played played by Brad Pitt in a movie version of Moneyball and got his A's back in the playoffs again, despite the usual financial challenges.

Sandusky's Mens Rea

With certain conduct, the same action may be criminal or not, depending on the intent of the person who performed it. This is basic criminal law, and in the first year of law school, students historically have learned a Latin term for criminal intent: mens rea.

The Jerry Sandusky juvenile sex abuse case is a recent reminder of this basic principle. Some of the charges were for clearly prohibited acts, such as oral or anal sex with a minor. Other charges, however, were for conduct involving overt but somewhat ambiguous acts, such as touching in the shower.

Before the jury began its deliberations, the judge gave clear instructions about what constituted a criminal mental state.

“It is not necessarily a crime for a man to take a shower with a boy, wash a boy’s hair, lather his shoulders, or engage in back rubbing or back cracking,” the judge said. “What makes this kind of ambiguous contact a crime is the intent with which it is done. You must determine it is an act of lust.”

And that, indeed, is what the jury found. On virtually all of the charges involving “ambiguous conduct,” the jury found Sandusky guilty of actions motivated by lust.

Postpartum Depression and Infanticide: Shades of Gray

A mother struggling with severe postpartum depression leaves her two-week-old son unattended in the bathtub, where he drowns. She then drives to a nearby reservoir, weighs his body down with rocks, and tells multiple lies to law enforcement about what happened.

At her first murder trial, the mother - let's call her Heidi - has an attorney who fails to raise the issue of her mental state as a possible defense, despite the fact that Heidi was hospitalized just days after her son's death for depression, suicidal thoughts, and panic attacks. A female juror refuses to convict on the first-degree murder charge, resulting in a mistrial due to a hung jury.

The prosecution brings the case to trial again and this time convicts Heidi of second-degree murder. She receives a mandatory 50-year prison sentence.

Heidi serves nine years in prison before the state supreme court rules she is entitled to a new trial because her original trial counsel had failed to consider her mental state.

After ten months of freedom, however, Heidi pleads guilty to multiple acts of child endangerment. She is sentenced to up to 50 years in prison.

At sentencing, Heidi's attorney points out that in 29 countries around the world, when a mother who kills a child under the age of one can prove that her mental state was disturbed due to childbirth, the maximum penalty is manslaugher. Most of these countries limit the consequences to probation and counseling.

After sentencing, the judge says he will take the practically unprecedented step of writing a letter urging the parole board to consider Heidi's release. Even the prosecutor, in pursuit of her for so long, acknowledges that she is no longer a threat to public safety and says he will write a letter to the parole board, too.

In this almost unspeakably sad story, Heidi is Heidi Anfinson of Des Moines, who killed her young son Jacob in the third week of September in 1998 - right about the time my wife and I moved to Des Moines to start jobs there. Heidi was ELCA Lutheran, as we were, and about our age, so her case has always seemd quite close to home. Indeed, the older of our two sons was born in Des Moines and spent the first few weeks of his life there before we moved to Minnesota.

"There but for the grace of God go I," a Christian will sometimes say when showing mercy.

The criminal justice system, of course, has a very different point of departure. Yet there, too, the principal actors in this dark drama have struggled to find a proper response. Scott Rosenberg, the judge who sentenced Heidi Anfison on her plea agreement, put it this way:

"We often like to think of things in black and white. But often, it is the gray that is the truth."

What color will the Iowa Board of Parole see in Heidi Anfinson's case, I wonder - and when will it act?

Sex + Text Message = "Sexting"

Is it true, as a Florida criminal defense attorney asserted in an interview aired on Nightline on April 2, that 20 to 30 percent of American teens engage in "sexting" - i.e., sending or receiving sexually explicit messages, including highly provactive pictures of themselves, over the Internet to friends?

It may be so. One mainstream journalistic source, Parade magazine, which comes with your (old-fashioned print, if you get one) Sunday paper, citing "recent studies," reported on April 4 that the number is one in five. Signifying the sex saturation in our society, the print story ran opposite an ad for bra straps.

Alas, most states' child pornography laws were written long ago - often in the 1980s - when today's technological topography was inconceivable.

Which state will lead the way in rethinking these archaic laws? A teen who breaks up with his girlfriend and, in a fit of adolescent rage, sends nude pictures of her out over the Internet, certainly deserves serious consequences. Sending that teen to prison for several years, however, and branding him as sex offender (through the registry) for upwards of 20 years, seems draconian.

In a revolution - this one technological -it's important to minimize the casualties. This principle surely applies to teens who sext, when undeniable scientific research shows that the judgement-conrol centers in their brains are not fully formed.

A Clockwork Orange It's Not

An Arizona boy who, at age 8, shot and killed his stepfather and another man has been sentenced to a treatment facility. The term is indeterminate, but could continue until he is 18, with psychiatric evaluations due to the court every 2 ½ years.

The type of treatment the boy will receive is unclear. He is still only 10, however, so the jarring images of heavy-handed reprogramming at the end of A Clockwork Orange are not really age-appropriate. The young ruffians in Kubrick’s film were twice the age of the boy in this case.

The boy will not be allowed outside the facility, and it wasn’t clear from the CNN account whether his mother will be visiting him. She should probably get some treatment of her own. Evidence indicated that the boy was repeatedly spanked by his stepfather at his mother’s request.

As things stand, it’s all so very sad. Is rehabilitation somehow possible, because the human spirit is resilient? Or is the sentence to treatment merely a way of passing the buck, by a judicial system unclear about underlying principles of justice?

Killing at Age 8: How Should the Law Respond?

At common law, there was a clear gradation of criminal responsibility based on age. Children younger than 7 were conclusively presumed to be incapable of criminal capacity, and those who were over 14 were treated as fully responsible.

What about those between 7 and 14? The common law created what lawyers call a “rebuttable presumption” of criminal incapacity. In other words, children of that age were not considered criminally accountable for their actions − unless the presumption could be overcome by the particular facts of a given case.

How the common law does or does not match up with current research on juvenile brain development is beyond the scope of this post So is the question of how the common law and brain research relate to modern statuotry schemes. Suffice it to say that, for a real-life application of the interpetive relevance of the old principles, one need only turn to Arizona, where in February a boy pleaded guilty to negligent homicide for killing − at age 8! − his father and a man who rented a room from the family.

The boy has not yet been sentenced. The options under consideration, at the time of the plea in February, included confinement in a county juvenile lockup, probation, institutionalization for treatment, or being sent to live with relatives.

The New York Times account on December 1, 2008 did, however, bring out several salient facts. The boy’s father, Vincent Romero, was actually a stepfather, and the boy had kept a ledger documenting the number of times he had been spanked. The boy told a Child Protective Services worker that when the tally totaled 1,000, he would have reached his limit. And in a videotaped interview conducted the day after the shootings, the boy said that, on the day before the shootings, Vincent Romero had spanked him five times on his mother’s orders.

Regardless of what disposition is right for the son, what about the mom?

Mens Rea

"Mens rea" is Latin for mental state. I learned the term from Professor Bruce Berner at Valparaiso University School of Law in my first-year criminal law class. In the law, he taught, punishment typically depends on an actor's degree of culpability - and culpability in turn depends on an actor's mental state.

Prof. Berner was masterful in explicating the implications of this. The hypotheticals were of this type: Which would be worse?

(1) Planning to kill someone by shooting them and doing so; or
(2) Cleaning your gun while preparing for a hunting trip and handling it so carelessly that it went off and killed someone in the room

Many students would say (1), but Berner pointed out that, in important respects, the second scenario is the scarier one. At least in the first, the person knew what he or she was doing. In the second, the incompetence is so extreme that no one is really safe.

My courses with Prof. Berner were in 1984 and 1985, before mandatory minimum sentences became so prevalent. It would have been interesting to study with him in more recent years, to see how he may have attempted to integrate those into his traditional common law schema.

Because we all need to turn again

What follows is a completely ad hoc sampling of headlines from the American press on Ash Wednesday. I’ve chosen seven items, with a nod toward the cumulative total signified by the Seven Deadly Sins.

● 4 teen boys allegedly raped girl, 13 (Star Tribune of Minneapolis-St. Paul)
● Choir leader accused of sex with teen (Star Tribune)
● US is vast arms bazaar for Mexican cartels (New York Times)
● Ex-councilman’s aide, two others guilty of fraud (Philadelphia Inquirer)
● UA student tried to kill newborn (Arizona Republic)
● Autistic son charged with murder in mom’s death (Forth Worth Star-Telegram)
● Murder-suicide silences house of music, laughter (Miami Herald)

Newspapers are on the precipice in the Internet age. But even a glance at them is a reminder of the human need for confession and absolution.