Bob Schwartz

Category: Crime

Man Arrested after Attempting Sex with ATM and Picnic Table


This is a test. It is an actual news story about a man who tried to have sex with an ATM and a picnic table.

Place and name have been deleted, and no link to the story is provided. There is more than enough embarrassment already. You can no doubt find the story if you are so moved.

This is a test not unlike an inkblot test. Listen to the police officer’s report. Then listen to your own thoughts. What are you thinking when you hear this? Are you laughing? Saddened? Disgusted? Confused? All that and more? What stories are you telling yourself? You might find that just as interesting as the original story.

A man was arrested Friday night and charged with public intoxication.

The police officer said, “He entered the bar and walked to the ATM. Once at the ATM, he pulled down his pants and underwear exposing his genitals, and then attempted to have sexual intercourse with the ATM…Once outside he again exposed himself and engaged in sexual intercourse with the wooden picnic table.”

The Book of Matt: Hidden Truths About the Murder of Matthew Shepard

Kennedy Monore Kennedy
When the legend becomes fact, print the legend.
Director John Ford in The Man Who Shot Liberty Valence

The Book of Matt by Stephen Jimenez is about the heinous and now-legendary murder of Matthew Shepard. It obliquely brings three people to mind: John F. Kennedy, Bobby Kennedy and Marilyn Monroe.

All three are legends apart, so maybe it is not surprising that legends have grown up about all three in various pairings, and even all together on at least one purported occasion. Whether or not Monroe had an affair with either or both of the Kennedys, whether Bobby was with her on the night of her death, whether evidence of those affairs was covered up or destroyed, is almost certainly never going to be incontrovertibly established. Some will say that some of it appears near certain while other of it is sordid and unsubstantiated conjecture. For the most part, we’ve reached a general consensus that none were saints, none were complete role models, but that we liked some of what they did, and we liked them for what they did, including inspiring us, and the rest is just shades of humanity. JFK helped prevent a nuclear war, Bobby Kennedy helped end the Vietnam War, and Marilyn was just Marilyn. If they didn’t live like saints, they died as complex and heartbreaking lessons.

Jimenez has investigated the Matthew Shepard murder for more than a decade. He concludes that this was not a vicious hate crime against a young gay man. Instead, it is a cautionary tale about the epidemic of methamphetamine. According to this report, Shepard was troubled, and was involved in the Laramie meth scene. The killer, who knew Shepard, was a meth head who had been up for a week, and was trying to get information from Shepard about a meth deal. He intended to coerce the information from Shepard, but out of his mind, simply beat Shepard mercilessly and insanely. The killer and his accomplice pled guilty, which kept details of the local meth market and the killer’s gay dealings with Shepard—trading meth for sex—secret.

The police investigation never involved a hate crime. The now-infamous imagining of Shepard being trussed up on a fence in a crucifix position never happened; he was found on the ground, hands tied behind his back. The anti-gay angle for the horrific event was soon added.

This might present a problem.

Jiminez has found himself in an odd position. He is accused of being anti-gay, though he is gay himself, in which case he is accused of being a “traitor” to a cause. He is accused of being a tool of the reactionary right wing, though he himself is far from being a right winger. What he is, he repeats, is a journalist who wants to do what he is supposed to do: find and tell the truth, as best as it ever can be found and told.

Matthew Shepard has become very important to the movement for gay rights. It is a powerful story: the young man who did nothing wrong, who only wanted to live a free and openly gay life, who had the misfortune of running into a black-hearted, hate-filled, intolerant stranger—the sort that fifteen years ago, and today, you can meet anywhere.

If it turns out that some or more than some of what Jimenez concludes is true, what happens to Matthew Shepard, the young man and the legend? In essence, Jimenez says that nothing happens. The issues remain the same, the good fight remains the good fight, but we will be fighting it armed with a little more truth about the story, convenient or not.

That sort of complication should be welcome, but it may not be, at least not everywhere. We like our stories simple, because so much of life is convoluted and mysterious. There are lines that are clear, but simple stories are mostly for children. Grownups have to work and stretch. This is a warts-and-all age, so we take our big characters as they come: flawed but still valuable. People work every day, their entire lives, on establishing equality—some of those people under the Matthew Shepard banner. That cause isn’t going away, and if we have to accept a little bit of historical adjustment, that’s the price we pay for having our eyes open.

The Marijuana Dilemma: It’s About Age

This was going to be a note about the Gallup poll showing that 58% of Americans think that the use of marijuana should be legal, and that 38% have tried it. It would include arguments about how pot stands in relation to other legal intoxicants—alcohol, tobacco, firearms (sorry, that’s the federal law enforcement agency)—and about how our justice system is distorted and how lives are ruined by reflexive, thoughtless, moralistic public policy.

But no. This is about a simple solution. It won’t make everybody happy, particularly those hypocritical it’s-all-bad-for-you-and-society Puritans who apparently missed the Sunday School class where Jesus mentioned getting the log out of your own eye before criticizing someone else’s splinter. But this might work.

Add marijuana to the list of acceptable American intoxicants. Then take the three biggies—alcohol, tobacco and marijuana—and make their distribution to children, particularly younger children, an even bigger deal than it is, so that the jail cells currently filled with marijuana-guilty adults could then be filled by real bad guys. Draconian punishment. Because while adult use of these intoxicants may be equivocal, childhood use of them is not.

We did not need American alcohol prohibition to learn that nothing will stop people using intoxicants. (Another hint: sex, at least if you’re doing it right, is also an intoxicant, the world’s most popular and, yes, one that the Puritans have also tried to circumscribe.) In another missed Sunday School lesson, Jesus did not smash the jars at the wedding at Cana, as he did the moneylender tables at the Temple; he actually made more wine for the celebrants. The poor we have with us always; so too the wine drinkers.

It is widely agreed that none of the three intoxicants are perfect: all of them are abused, all of them have real potential for ruining life and health. (America’s other big intoxicant, coffee, is excepted from this discussion, in part because any regulation of coffee would start a national revolt that really would prompt a new party, the Coffee Party, and in part because it is coffee that makes posts like this possible.) But as much as adolescents want to indulge, and as much as they already find a way to do it, if there’s a beneficial bargain to be made, this may be it. Let the grownups smoke/drink/smoke, let them explain to their kids why it isn’t a good idea for the younger set.

If you are currently a pre-teen or teenager yourself, or you once were, and you indulge in weed or once did, this may seem silly, arbitrary and unworkable. Here’s the news: all social policy is ultimately unworkable, or at least challenging and perplexing. The truth is that marijuana abuse by adolescents, just like alcohol and tobacco abuse by them, really is a bad thing, and really can cause irreversible damage. Adults should be free to get blissed out or ruin their lives (with minimal harm to others); kids shouldn’t be. If we are going to have some sort of marijuana policy, it ought to be a lot more sensible than the one we have now, even if the solution isn’t perfect.
10:39 AM 10/23/2013

TMFG: Too Many F***ing Guns


People are dying from politeness about guns.

We are a nation of laws, and especially of constitutions, so we talk and write about the Second Amendment. Rich, smart and safe people debate in really fancy buildings, but nothing gets done about guns. The Naval Shipyard shooting, for example, is supposed to demonstrate problems with our mental health system, or with our veterans affairs system, or with a lack of communication between our law enforcement agencies.

But we are also a nation of plain talk. Just ask Joe Biden and others. So it is time for polite and respectful people to speak openly and plainly. Constitutional arguments and political realities have their place, but so does this: There are too many f***ing guns. That is why and how too many are killed and injured—in our homes, on our streets, in our schools, in our movie theaters, in our military facilities.

Feel free to engage in extended discussion and political action; that is what we do in a democratic society. But sometimes, it can be therapeutic to speak truth to nonsense.

Four words. Four letters. TMFG. If you believe it, say it.

Relying on Ourselves and Not Rolling Stone

Rolling Stone - Tsarnaev

This is what upsets us? This magazine cover is our biggest problem?

As of today, some retailers—of those retailers who actually sell paper magazines any more—are refusing to the carry the new issue of Rolling Stone with a cover showing a youthful and attractive photo of Boston bomber Dzhokhar Tsarnaev. They, along with maybe millions in the socialsphere, are making a statement.

But what exactly is that statement, and why are they making it?

If it’s about not giving any more publicity to him, along with any coverage of the Boston bombing and the upcoming trial, you can make a case that that might be healthy for all of us. But since there’s been no call for less coverage, that can’t be it.

If it’s about continuing the coverage, but making sure the coverage only reflects one particular approach, what approach would that be, exactly? And if it’s about not “glamorizing” him, where is the directorate that is going to make sure that all photos, cover and otherwise, of the most despicable people look suitably evil and ugly?

We have reached a point, not unique in history but maybe more now than ever, where reaction to everything is often overtaking thought about everything. The theory of “the wisdom of crowds”—that individuals can be wrongheaded, but heads put together are self-correcting and frequently right—needs to be reconsidered, if not thrown out the window.

If this Rolling Stone cover is a threat to anything, we have a problem. If we think that this cover makes mass murder look “cool” and is a contributor to our social difficulties, we really don’t know what those difficulties are. If we think that we shouldn’t have magazine covers with social and political miscreants, the Magazine Cover Authority will have to make a much broader review of all publications, before they pass them on to the Magazine Content Authority.

We have to start relying on our own thoughts, and when that careful thinking leads to conclusions, on our own abilities to directly address what we find. If a Rolling Stone cover with Tsarnaev is emblematic of anything, it is that Tsarnaev is here, he did what he did, and we should be working on that, and not on choices that magazines make.

For more on self-reliance, you might read Ralph Waldo Emerson’s classic essay of the same name. There was a time when Emerson’s essays were widely taught in schools—back in the Stone Age, before America got so smart and well-connected, before we realized that science and technology were the key to the future, and that the musty, fusty words of some old fart from Boston really had nothing to offer us.

Whoso would be a man must be a nonconformist. He who would gather immortal palms must not be hindered by the name of goodness, but must explore if it be goodness. Nothing is at last sacred but the integrity of your own mind. Absolve you to yourself, and you shall have the suffrage of the world.
Ralph Waldo Emerson
Self-Reliance (1841)

George Zimmerman: Not Guilty. Responsible? Sorry?

George Zimmerman
It’s easy to see how we’ve come to confuse the legal and the moral. Here and everywhere, laws are put in place that offend a general or specific sense of what is right, so we tend to connect the two. We’re also so used to seeing the legal system in media that it occupies a lot of our thinking. Even though those movies and shows try to include moral dilemmas for lawyers and clients, it’s the law that intrigues and entertains us. We have not yet had a hit television show featuring a team of super-attractive philosophers hammering out the fine points of moral right and wrong.

George Zimmerman is not guilty, at least of the crimes charged in Florida. We are awaiting possible federal civil rights charges or a wrongful death civil lawsuit. But we have no official moral court, and so we can consider where he might stand before that bench.

Every minute, people around the world, people you know, maybe even you, cross some pretty bright moral lines, and we don’t put them in jail. Not that they don’t deserve to somehow be punished, but the legal system doesn’t fit the deed, and anyway, our prison overcrowding would be exponentially more critical.

There are lots of killings we allow or sanction, including self-defense, war and capital punishment. (It would be disingenuous and dishonest not to include abortion—not because it is or isn’t killing, but because from the moral perspective of some, it is killing that we legally allow, and we can’t have the already underserved moral discussion without at least mentioning it.)

George Zimmerman killed Trayvon Martin. It is an unrefuted, admitted fact. The legal system, in its first but maybe not last swipe at the situation, has found him not guilty of a particular crime. For the record, for those who think the justice system failed, be aware that it was never enough for the jury to believe that Zimmerman was a liar and that his version of the scenario made no sense at all. The jury could only convict on the basis of another, more damning scenario—a scenario many of us could easily imagine, but a scenario the prosecution could never paint from the evidence they had to work with. The jury is allowed to draw inferences but can’t just use their imagination the way we can.

George Zimmerman killed Trayvon Martin, and many of us have come to the reasonable, non-legal conclusion about how it happened. People who reach that conclusion want him to be punished, not just for retribution, but to prevent something like this every happening again. Even if further legal proceedings don’t end up punishing him, many have the clear sense that he crossed a moral line and he was very wrong. That’s something that gets lost in all the fascinating legal discussion. You don’t have to be guilty to be wrong. And ever if there isn’t some sort of moral jail, that is still a big deal.

Which brings us to the apology. Even giving credit to the Zimmerman account, the killing happened, he did it, and all the legal exoneration can’t take it back or make it better. Apologies have gotten an increasingly bad name; just look at how the Republicans used it as pejorative in describing President Obama’s early “apology tour” of the world. (It does make you wonder what home life is like for some of those politicians, who in the face of expected apology refuse, not wanting to seem weak or ineffectual. Marriage counseling alert.)

George Zimmerman should apologize to Trayvon Martin’s family. Fully and sincerely. In legal terms, he can’t, of course, since there are still proceedings possible or likely. In moral terms, though, experts say that the need to confess is the best friend of police and prosecutors, because truth is a heavy weight that needs lifting. He is actually half-way to a confession anyway, since we know he shot Trayvon Martin. He doesn’t even have to detail the circumstances in any way different than he has, even if it’s not true.

All he has to say is this: I shot him I killed him. Whatever the law says, I was wrong. I’m sorry.

Notes for a George Zimmerman Sermon

This is Sunday, the day after the night before when the George Zimmerman verdict was reached and announced.

There will be countless sermons preached in churches today about the meaning of the crime, the trial and the verdict. The quick take of the media has focused on black churches for obvious reasons. In a case easily seen as having a racial component, the anger and frustration has been color-blind, but members of the black communities have reason to have special interest, if not to take it personally.

That still leaves a large number of churches that are not predominantly black. or more broadly, not non-white, or more plainly, white churches. This isn’t a monolith, nor is this an easy case and verdict to digest. There will be pastors who openly question how well justice was done, others who distance themselves from judgment, and maybe others who find a vindication of something in the verdict. Many more will not touch it at all, either because it has nothing to do with what goes on in church or because even if it does, the right words aren’t yet found to be spoken.

Whatever the identity of those in the pulpits or the pews, here are a few points that might belong in a George Zimmerman sermon.

The laws written by people and the higher laws (whether you call them the laws of God or something else) are two different things. Human imperfection extends to our inability to do perfect justice. Not only is it impossible to do perfectly, it is impossible for people to conceive of how it would be done perfectly in some other “better” realm. If there is a heaven or heaven/hell combination, exactly what are those trials like and what do the statures and rules of evidence look like? Whether you picture the 10 laws, or the 613 laws, or however many laws and interpretive regulations being litigated against you or those you love or despise, how does that case go?

There are some suggested solutions that are widely preached but, let’s say, inconstantly practiced. If we admit we don’t know everything, can’t build everything, can’t “correctly” judge everything, then we might be stuck with just some one-size-fits-all answer: forgive. This doesn’t mean, in the case of George Zimmerman, giving up on changing the laws, or not pursuing further legal tactics such as a federal civil rights suit or a civil wrongful death suit, or being friendly to George Zimmerman if you see him on your street or on your tv screen. Those are the worldly things we should feel free to pursue if that is what’s in our hearts. But in our hearts, where those higher laws are supposed to find a home, we are better off working on the compassion and forgiveness stuff. Especially with a tragic death, when we are the living, still capable of making things better.

Imperfection. Compassion. Forgiveness. Especially in light of this case. Oh God, that is so hard to take.

What Sorts of Weapons Might George Zimmerman Now Carry?

Robert Zimmerman says that his brother George will now be “looking over his shoulder.” There has been plenty of angry and overheated rhetoric aimed at George Zimmerman in the wake of the not guilty verdict in the case of his killing Trayvon Martin. Whether or not he needs to be in fear of his safety and life, that is something he is going to have to reasonably decide—a decision he has experience with.

In case he does decide he needs extra protection, Florida statute gives him lots of options:

Title XLVI, Chapter 790

790.06 License to carry concealed weapon or firearm.—
(1) The Department of Agriculture and Consumer Services is authorized to issue licenses to carry concealed weapons or concealed firearms to persons qualified as provided in this section. Each such license must bear a color photograph of the licensee. For the purposes of this section, concealed weapons or concealed firearms are defined as a handgun, electronic weapon or device, tear gas gun, knife, or billie, but the term does not include a machine gun as defined in s. 790.001(9). (emphasis added)

So now that George has gotten his handgun back, he doesn’t have to stop there. He is free to add a bigger handgun, a Taser, a tear gas gun, a knife or billie club—or all of them. This is Florida, right on the edge of the subtropics, so it is almost literally a jungle out there. If he chooses not to stay in Florida, which he might deem a good idea, he may feel more comfortable out West, where there are states with conceal carry laws even more accepting of the Zimmerman philosophy, and where standing your ground while armed to the teeth is historically a way of life on the frontier. He might begin a new career writing cowboy fiction, where phrases like “you got me!” would not be out of place.

That was the 19th century, of course, and this is the 21st, but unfortunately for the sometimes glacial advance of civilization, some things never seem to change. If anything, they can look like they are moving backward.

Tsarnaev and Miranda

Miranda Warning
Dzhokhar Tsarnaev, suspect in the Boston Marathon bombings, is now in custody and in hospital recovering from gunshot wounds. The Justice Department has announced that it will not be giving him a Miranda warning before initially questioning him, under the public safety exception to the need for such warning.

In Miranda v. Arizona (1966), the Supreme Court established guidelines for the taking and use of statements by suspects in custody. In very brief summary, if a suspect is in custody and being interrogated, statements made will be admitted into evidence only if he has been properly warned about his right not to talk, about the potential use of his statements for self-incrimination, and about his right to have an attorney. The various versions of the Miranda warning reflect this decision, and embody the protections of the Fifth and Sixth Amendments.

A narrow exception to Miranda was established in New York v. Quarles (1984)  . In an age of terrorism and the prosecution of terrorists, this so-called “public safety exception” has become the focus of intensive analysis and application—along with a push for its expansion.

In Quarles, a victim of rape pointed police officers toward her armed assailant. The police pursued him into a supermarket:

Respondent ran toward the rear of the store, and Officer Kraft pursued him with a drawn gun but lost sight of him for several seconds. Upon regaining sight of respondent, Officer Kraft ordered him to stop and put his hands over his head; frisked him and discovered that he was wearing an empty shoulder holster; and, after handcuffing him, asked him where the gun was. Respondent nodded toward some empty cartons and responded that “the gun is over there.” Officer Kraft then retrieved the gun from one of the cartons, formally arrested respondent, and read him his rights under Miranda v. Arizona. Respondent indicated that he would answer questions without an attorney being present and admitted that he owned the gun and had purchased it in Florida. The trial court excluded respondent’s initial statement and the gun because the respondent had not yet been given the Miranda warnings, and also excluded respondent’s other statements as evidence tainted by the Miranda violation. Both the Appellate Division of the New York Supreme Court and the New York Court of Appeals affirmed.

The Supreme Court reversed the New York courts and created an exception to Miranda, when the interrogation was aimed at preventing further harm and enhancing public safety:

Procedural safeguards that deter a suspect from responding, and increase the possibility of fewer convictions, were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege against compulsory self-incrimination. However, if Miranda warnings had deterred responses to Officer Kraft’s question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting respondent. An answer was needed to insure that future danger to the public did not result from the concealment of the gun in a public area.

The narrow exception to the Miranda rule recognized here will to some degree lessen the desirable clarity of that rule. However, the exception will not be difficult for police officers to apply because in each case it will be circumscribed by the exigency which justifies it. Police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.

It is useful and enlightening to read the dissent by Justice Thurgood Marshall, joined by Justices William Brennan and John Paul Stevens. Justice Marshall, whose practical understanding of constitutional rights was second to none (see Brown v. Board of Education), had difficulty with the trading away of such a fundamental right, even for something as paramount as public safety. He had an elegant solution: Please do interrogate without a Miranda warning—just don’t expect to introduce the answers at trial:

The irony of the majority’s decision is that the public’s safety can be perfectly well protected without abridging the Fifth Amendment. If a bomb is about to explode or the public is otherwise imminently imperiled, the police are free to interrogate suspects without advising them of their constitutional rights. Such unconsented questioning may take place not only when police officers act on instinct but also when higher faculties lead them to believe that advising a suspect of his constitutional rights might decrease the likelihood that the suspect would reveal life-saving information. If trickery is necessary to protect the public, then the police may trick a suspect into confessing. While the Fourteenth Amendment sets limits on such behavior, nothing in the Fifth Amendment or our decision in Miranda v. Arizona proscribes this sort of emergency questioning. All the Fifth Amendment forbids is the introduction of coerced statements at trial.

There is one thing that in the early aftermath of this dynamic story can be missed: Whatever he did, whatever we believe about what he did, however vital his knowledge is, Tsarnaev is under no legal obligation to say anything and has the constitutional right not to say anything that could be used against him.

The Justice Department has invoked the public safety exception: it will not yet Mirandize Tsarnaev. In part, they may be trying to reserve the right to use at trial any of the statements he makes in response to questions such as “Are there more IEDs? Who else is currently involved and dangerous?”. Maybe more significantly, they simply don’t want him—as they don’t want any other suspect—to prematurely stop talking. They won’t be telling him yet that he has the right to remain silent or to have an attorney.

But…not telling him he has these rights doesn’t mean that he doesn’t already have them. He does. A Miranda warning does not magically grant a suspect those rights. The much more magical Constitution and Bill of Rights do.

It is not clear that Tsarnaev needs a reminder of those rights. He is by all accounts a smart and educated young man, even if by recent actions a horribly misguided and tragic one. Almost all television viewers are expert on Miranda warnings anyway; even the most law-abiding American has heard them hundreds of times. But if he should decide to say nothing, other than his desire for a lawyer, in America there is nothing police or prosecutors can do. What we may justifiably feel and believe about him and what he and his brother perpetrated won’t change that, and shouldn’t. We didn’t write these self-imposed limitations for easy cases. We put them in place as a test, to see just how deliberate and fair we could be, when all we want is swift and hot-blooded justice. We wrote them to remind ourselves that we are better than that—even when we for a moment and for good reason don’t want to be.

Crime and Punishment

Crime and Punishment
It is just like a movie, some are saying.

No, like a novel.

Two brothers. The older one dead, run over by the younger. The younger on the run—maybe caught or even dead by the time this is read.

In the media, fragments of information are spun into explanations, like Rumplestiltskin’s straw into gold. It is the job of experts to provide answers, and when pieces are missing, to speculate. Can they be blamed?

Writers are the real experts at helping us on this. In 1962, when Truman Capote applied his considerable skill as storyteller to a pair of real-life cold-blooded killers, the book In Cold Blood became something new: the non-fiction novel. Critics celebrated, but others complained that the humanizing of evil made the author an accomplice.

A century earlier, Fyodor Dostoyevsky took an even deeper look at the mind of the killer, a fictional one, in Crime and Punishment. He did not minimize the horror of the crime or humanize the killer for purposes of sympathy, empathy or excuse. He instead set the standard for psychological depth and ambiguity that is the hallmark of modern literature since.

Standard or simplistic explanations and labels fit many needs, including the need of broadcasters to fill dead air while an extended manhunt and its aftermath proceed. But Dostoevsky demanded a trip on the subtle dark seas of family, society and the mind. That’s not just a way we understand the bad actors. It’s how we understand ourselves, even when our own seas are not nearly so dark.

From Crime and Punishment, as Rodion Raskolnikoff  pursues his plan to kill the moneylender Alena Ivanovna. He walks down the street, when someone remarks about his unusual hat:

“I knew it,” he muttered in confusion, “I thought so! That’s the worst of all! Why, a stupid thing like this, the most trivial detail might spoil the whole plan. Yes, my hat is too noticeable…. It looks absurd and that makes it noticeable….With my rags I ought to wear a cap, any sort of old pancake, but not this grotesque thing. Nobody wears such a hat, it would be noticed a mile off, it would be remembered…. What matters is that people would remember it, and that would
give them a clue. For this business one should be as little conspicuous as possible….Trifles, trifles are what matter! Why, it’s just such trifles that always ruin everything….”

He had not far to go; he knew indeed how many steps it was from the gate of his lodging house: exactly seven hundred and thirty. He had counted them once when he had been lost in dreams. At the time he had put no faith in those dreams and was only tantalizing himself by their hideous but daring recklessness. Now, a month later, he had begun to look upon them differently, and, in spite of the monologues in which he jeered at his own impotence and indecision, he had involuntarily come to regard this “hideous” dream as an exploit to be attempted, although he still did not realize this himself. He was positively going now for a “rehearsal” of his project, and at every step his excitement grew more and more violent.