DEFENDING CUDDLES (The Arizona Rampage, Part 3)

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This follows two short pieces on the Arizona shooting rampage, both posed at my Dot2Dot Blog ( and separately viewable at , > and < >.

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Has anyone not seen the grinning visage of the now-defendant Arizona shooter, Jared L. Loughner, the most widely circulated mug shot of the week, courtesy of the Tucson authorities and the AP?

It immediately reminded me of a vintage Gary Larson cartoon.  I can still bring up that droll image, one posted on my office wall: a courtroom full of cats, including the judge, the prosecutor, the defense attorney, the jury, all serious, furry felines, then the single dog in the dock, his tongue lolling, looking slightly idiotic.  The cat defense attorney is making what must have seemed at the time as a telling argument:  “Cat killer?  Is this the face of a cat killer?”

But the faces that most haunt me are those of a smiling nine year old girl named Green, and her dignified, deeply grieving parents.

Back in the day, when we took in a particularly ugly homicide case, reeking of “mental disorder” elements, my favorite colleague, saturated as was I with the gallows humor common to public defenders, cops and EMT’s, would say: “Great, another homicidal maniac defense.”

Ms. Clarke, you don’t want me on your jury.

The juridical law is founded on the moral law, but moral categories, like “evil” are banished from the discussion because they are too inflammatory.  Lady Justice is depicted with a blindfold, a metaphoric screen through which only carefully vetted facts and the rules that govern their application are allowed to filter.

The scale of the damage inflicted in this case, a 911 writ small, is just enough to sharply engage the passions of any reasonable jury, but not so immense as to dull them.

But justice will prevail because the facts and the law are bright line clear and the forces assembled to guide this case to its conclusion are intelligent enough to avoid the pandering and histrionics that could jeopardize a conviction.

The moral category, Evil (not in vogue), and the quasi medical category, crazy SOB (it’s the current fad, but must be restated in terms of the DSM IV), often overlap, as here.

I’ve come to terms with Evil as an omnipresent moral pathogen that is carried by malevolent ideation, dark anti-life images, with the capacity to “infect” (metaphor here) susceptible personalities, particularly those who were formed with little or no moral character (think of character as a firewall, if you will) and who hunger for power and notoriety.

Hitler (as the unrecognized artist, Adolph Schicklgruber) was a high functioning version of this personality type.  On the face of it, the defendant in US vs Loughner is a low functioning version of the type, whose somewhat disordered cognition was sufficient to plan and carry out a “glorious” assassination, but actually prevented a much larger circle of damage.

The scope and identification of Evil is measured by purpose. As justice Holmes famously said, even a dog knows the difference between being kicked and stumbled over.

A purposeful attack on the very workings a free, life affirming, peaceful civilization is evil.  The topic is ancient and modern, simple and complex.  My own take is set out at some length in two articles article posted at < > and < > .

When is authentic insanity a moral defense?  In two categories:

(a) The very rare circumstance when volition does not operate (crudely, when ‘the devil made me do it!”).

(b) When one’s reality is so warped by delusion and/or hallucination that acting within a traditional moral framework results in horrendously immoral results, as for example when an hallucinating mother kills her children thinking all the time that she is saving them.

In these two categories, evil actions can result without an evil purpose.  The problem in this case is that, again on the face of it, the very purpose was an evil one: A wanton attack on life, freedom and the very foundations of civilized life.

Mercy is, by its very character, an individuated matter.  While we should never close off the possibility of mercy, this case is a very unlikely place for it to descend.  In this case the matter of legal guilt and punishment are necessarily open questions

But this is also a teaching moment.  From my remote viewing platform, Mr. Loughner’s actions and mindset appear to have been thoroughly evil.  The demands of moral law and the necessity that civilization must defend itself from evil without compromise form the unstated subtext of this case.


Jay B Gaskill is a California lawyer who served as the Alameda County Public Defender before her left his “life of crime” to devote full time to writing.  His profile is posted at .

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