The Norwegian Predator – Grendel’s Bastard Spawn

The Norwegian Predator –Grendel’s Bastard Spawn

A Meditation

By Jay B Gaskill, Attorney at Law

The Norse monster, Grendel (that nemesis of Beowulf) killed vulnerable humans in their sleep.

The signature of the modern monster is always the same – the suicidal grandiosity (suicide and homicide are emotional twins), the naked craving for fame and significance, and the obsession with the Final Gesture (they will remember me!).

The details vary, as does the scope of the damage, which is closely tied to the intelligence, luck and planning of the malefactor, and the vulnerability, bad luck and unpreparedness of the victims.

But monsters reveal the innate weaknesses, practical and moral, in the societies that hatch them.  One category of weakness is post-modern liberalism (exempting the robust old fashioned variety).

Norway was asleep on June 22 of last year when Grendel’s bastard-spawn harvested 71 bodies.  Norway and has yet to wake up from the half-sleep called post-modern liberalism.

Now liberalism is often a wonderful thing.  I’m thinking particularly of the early reforms in the US criminal justice system from 1927-1967 founded in the principle that the rich and poor should be equally accountable to and protected by the law; as it worked its way into the system, much more good than harm followed: This was the brand of liberalism that strove to reform the justice system such that that no poor arrestee would go unrepresented by able counsel; that  no rich miscreant would escape justice; and that the police officers would be held to a high standard of veracity and performance.  It was a profoundly liberal idea and it remains profoundly important.  It was a high moment in justice, an apotheosis point, in which the practical and ideal were in league with each other.

But note the word accountability.  No seriously liberal at the time thought that weakening accountability for wrongdoing was a good idea for the poor or anyone else.  After all, poor people (as I can personally attest from 28 years in the field) are harmed far more by criminal activity than are the well off.

In the greater sweep of history, the liberal project is about erasing boundaries, and the conservative project is about preserving them.  Each project has had its day, its value and its place, and each will again.

Post-modern liberalism is toxic.  Among the boundaries that post-modern liberalism has helped dissolve are three that constitute essential bulwarks of the civilized life:

  • the boundary between accountability and its absence;
  • the boundary between moral categories and medical ones;
  • …and the boundary between good and evil.

Now imagine the following scenario taking place during any part of the two decades between 1939 and 1959 in the USA that hatched the Greatest Generation:

An arrogant, 32 year old man sets off an explosive in a major city, killing 8 innocent men and women; then he then methodically mows down 69 more – boys and girls at an undefended youth group, before he is finally taken alive.  After being apprehended, he confirms that his were intentional killings – he was making a political point. [I’ll spare you the gruesome details the screams, the running, the pleas for mercy, the loading and reloading, the remorseless calm of the killer.] Yet no one openly condemns the crimes as evil.

The death penalty has long since been removed from the table – accountability for a deliberate, intentional, culpable murder of another human being is set at 22 years in a well-managed prison or mental hospital.  Soon after the arrest, the appointed mental health professionals declare that the killer is mentally ill. After a political blowback, other experts say that he is sane, taking care not to disrespect their colleagues’ contrary view.  Months later, the law and justice authorities are still hand wringing about this killer’s mental illness or lack thereof – the resolution of which will be up to the trial judges.  Although the crime of first degree murder only carries two decade term in prison (assuming the man is not kept in a mental facility), the official spokespersons say that this killer probably won’t be released (if convicted) because of the government’s policy of “preventative detention.”

Of course this is all about Anders Behring Breivik whose mass murders took place on Utoya Island in Norway June 22 last year, immediately following his Oslo bombing.

By the way, Breivik is currently bragging during his trial, revealing a plan to seize and behead the former Prime Minister Gro Harlem Brundtland on Utoya (a woman who fortunately had already left the island by the time the shooting started).  Note that Breirvik fully expected to be shot during his homicide spree, revealing that this was to be his classic grand suicidal gesture. So we are in his bonus, center stage period.

The first government mental health experts to see this miscreant found that he was a paranoid schizophrenic, a finding that would have averted prison in favor of a hospital.  This caused a public outcry (the first sign that Norway may be waking up).  There is now a contrary opinion by a brace of new mental health experts who spent 37 hours interviewing the killer. The psych file that the prosecutor must deal with is 310 pages long.  The new psych teams opined that there is a danger that Breivik, if ever released, would kill again. Preventative detention must be used.

A representative of the survivors (from a government-support group) has been quoted as acknowledging that when passions were high, some wanted Breivik executed, but said “If we introduce the death penalty, we become like him. I’m proud to be Norwegian, that we don’t have a death penalty such as other countries.”

Norway dumped the death penalty in 1979, having earlier limited its use to military discipline in 1905.  Of course the Norwegian traitor, Vidkun Quisling (who led Norway after a Nazi engineered coup 1942 to 1945), was executed by a military firing squad in October 1945 for High Treason.

Whatever you say about the death penalty, its elimination in favor of a comfortable prison term for 22 years represents a diminution of accountability. In contrast with Anglo-American criminal justice that requires the participation of citizen jurors, the Norwegian system is entirely administrative in nature.  This is in tune with the general socialist cast of Norway’s overall governance.  The Anglo-American criminal law is the product of the rich, textured legacy on the English common law that grew up organically over time on a case by case basis.  Norway’s criminal justice system and philosophy is the product of academic theory, while the common Law springs for cumulative experience.

Contrast the approach to mental illness as it impacts criminal responsibility.  Most American jurisdictions use some variation of the “McNaughton” test. Daniel McNaughton was a real man, not a social theory.  The matter arose when he murdered Edward Drummond the secretary of the British Prime Minister Robert Peel in 1843.  The following rule (as promulgated by the House of Lords) was announced for all future cases:

“[T]he jurors ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”

There are a number of modern variations in US jurisprudence but the moral component, the quaint notion that there is a “right and wrong” to which a presumed sane miscreant is expected to direct his or her attention, remains part of the test.

So far, in spite of the march of post-modern thinking, we Americans have not allowed the law to diminish responsibility by eliminating its ineluctable moral component form the criminal law or by allowing medical categories to totally eclipse moral ones.  At some level, mere derangement cannot be twisted into non-accountability.

Contrast Norway:

Section 44. A person who was psychotic or unconscious at the time of committing the act shall not be liable to a penalty. The same applies to a person who at the time of committing the act was mentally retarded to a high degree.” [From the General Civil Penal Code of Norway, unofficial translation 2006]

In my professional opinion, Norway is attempting to deal with an evil, homicidal sociopath for whom ideology was just a means and a justification – part of a larger nihilist game that is playing out in a vulnerable culture.

Susceptible minds will succumb to evil ideation from time to time, and the test is not the particular flavor of ideology that happens to capture their fancy.  Breivik’s ideation was different in detail and target selection from, say, the homicidal architects of the September 11th 2001 immolation, but his immoral devotion to indiscriminate homicide, the addiction to a grand gesture that would somehow bring down the world, were clear indicia of a mind succumbing to an evil agenda.

This was Faust succumbing to the blandishments of Grendel, not some hapless, weak minded fool succumbing to imaginary voices.


Copyright 2012 by Jay B Gaskill, Attorney at Law

First published on the Policy Think Site { }and the Out*Lawyer’s Blog

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Links, forwards and quotes with attribution are welcome and encouraged.  For everything else, please contact the author via email at


Mr. Zimmerman and Florida justice

Analysis by

Jay B Gaskill, Attorney at Law

This analysis is also available on The Policy Think Site at- .

I hate it when politics, particularly identity politics corrupts the criminal justice process.

I hated it when white supremacists with all-white juries walked away from solid murder prosecutions in the retrograde South; I hated it when a predominately non-white jury acquitted a popular black icon for killing his wife and her lover, not because these jurors had deep, substantial doubts about his guilt, but because they wanted to send a message to a police department that they deeply suspected was infected with racism; and I hated it when race riots erupted in Oakland when a white BART police officer was supposedly undercharged for the shooting of a non-white man who was resisting arrest.  Leaving aside any fine-tuned analysis of the evidence in these cases, the outcomes were driven by anger and identity politics.

I have not commented on the ultimate merits of the Zimmerman prosecution.  If you’ve been in hiding for the last few weeks, I refer to the criminal investigation and ultimate prosecution of one George Zimmerman for shooting and killing of one Trayvon Martin on the night of February 26th in a little town called Sanford in Florida.

On the face of it, there is what we defense attorneys call a “triable issue” based on Mr. Zimmerman’s self-defense claim.  But the defense is far from slam dunk, partly because the decedent was unarmed, and partly because – well, the dead party was a black male and the shooter had a “white” name.  As one news source put it, “Zimmerman is a white native of Virginia whose mother was born in Peru.” An embarrassing amount of ink and cloud data storage has been taken up by puerile discussions of which “identity” group the, now defendant, Zimmerman belongs to.  The sincerity and reasonableness of Mr. Zimmerman’s reported belief that Mr. Martin was a criminal is germane; the defendant’s tribal affiliation – or lack thereof – is not.

Much also has been made of the Florida Statute, Section 776.013, particularly paragraph (3) which provides that–

“A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”

This is not particularly controversial.  The California law of self-defense, for example, is captured in some formula jury instructions, the so-called CALJIC set, having been approved for trial judges to use by the California Judicial Council. Two such instructions – with which I am well familiar – seem to bear on the issues in Mr. Zimmerman’s case.

CALJIC No. 5.51, Self-Defense—Actual Danger Not Necessary, as given (in a particular case where the result was affirmed):

“Actual danger is not necessary to justify self-defense. If one is confronted by the appearance of danger which arouses in his mind, as a reasonable person, an actual belief and fear that he is about to suffer bodily injury, and if a reasonable person in a like situation, seeing and knowing the same facts, would be justified in believing himself in like danger, and if that individual so confronted acts in self-defense upon these appearances and from that fear and actual beliefs, the person’s right of self-defense is the same whether the danger is real or merely apparent.”

CALJIC No. 5.50, Self-Defense—Assailed Person Need Not Retreat, as given: (in a particular case where the result was affirmed)

“A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. In the exercise of his right of self-defense, a person may stand his ground and defend himself by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge; and a person may pursue his assailant until he has secured himself from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.”

The bottom line, the so called black letter law of self-defense adhered to by almost every jurisdiction in the USA, is that

(a)    in defending yourself you are entitled to reasonably rely on appearances when assessing the danger; and

(b)   you do not have to run.

The key qualifier in these cases, the one that functionally allows a degree of jury latitude is the term reasonable.

And there is also the murkier issue of proportionate response.  If you are threatened by a homicidal toddler bearing a table fork, are you entitled to respond with an assault weapon?  No reasonable jury would agree with such a disproportionate response.

Is there a hard and fast rule? No.  This is why we have trials.

A key element in self-defense is that sincerity is an absolute predicate but NOT a free pass.  If you did not actually think you were “defending yourself by the use of all force and means which would appear to be necessary to a reasonable person”, i.e., if your claim was insincere, then you are toast.  But even a sincere claim of self-defense can be rejected if the jury concludes that it was unreasonable. In most jurisdictions, unreasonable or “imperfect” self-defense reduces a murder to manslaughter.

As to Mr. Zimmerman’s case?

I was not there, and I dare say neither were you.  Let’s hope for an impartial and reasonable verdict, not a political one.

And whatever the outcome, no riots, please.


Copyright 2012 by Jay B Gaskill, Attorney at Law

First published on —

The Policy Think Site { }


The Out*Lawyer’s Blog {}

Forwards, links and quotes with attribution are welcome and encouraged.  For everything else, contact the author via e-mail at

Jay Gaskill is the California Lawyer who served as the Seventh Public Defender for Alameda County, CA, before leaving his life of crime.  His profile is available online at

GAME ON – Obama vs. Romney

GAME ON – Obama vs. Romney

Election Analysis

By Jay B Gaskill

Also posted on The Policy Think Site

The general election campaign has just begun.  If you doubt this, ask yourself whether Governor Romney is still campaigning against Newt or Rick at the moment.

And suddenly the Rasmussen Poll has the two contenders in a dead heat.  []

And Rasmussen also reports-

“Monday, April 02, 2012

“The number of Democrats in the United States rebounded in March after falling to a record low in February. However, for the fourth consecutive month, more people consider themselves Republicans than Democrats.

“During March, 36.4% of Americans considered themselves Republicans while 33.4% were Democrats. For the GOP, that’s a gain of 0.4% from a month ago. Democrats gained a full percentage point from February.”

In February, I proposed that the election will ultimately turn on Three “T’s”.[i]

“I believe that another, deeply psychological theme, will soon overshadow everything else.  I’m calling it the Three T’s – as I will soon explain.

“Over the long haul, this race will come down to leadership and “followship”. No leader who stands at the head of a crowd of reluctant, tepid supporters can be successful in persuading others. Whether the GOP nominee is former Governor Mitt Romney, former Governor Jeb Bush or the Messiah, it’s going to take an army of enthusiastic followers, or there will surely be an army of “I told you so”mourners on Wednesday, November 7th.

“At the end of the day this presidential election is going turn on an intangible trio of elements:

‘The Three T’s – TraumaTrust and Turnaround.

“The electorate has been traumatized.  The American people are willing to make a midstream course correction only for leadership they can trust, and only for a turnaround they can believe in.”

If you want a formula to predict the outcome in November, you will need to factor in the unknowable.  For example, one can make the case that a simple trend projection would have led to a McCain presidency …right up to the pre-election credit crash of 2008.  This was the seismic event that caught almost everyone flatfooted and doomed the GOP campaign.  We can’t rule out another seismic event.

But leave out the unknowable and this is what remains for you to track:

  1. Is the economy in a stable, credible recovery mode, or not?
  2. Is President Obama running ahead of the democrats, behind or about the same?
  3. Is Governor Romney running ahead of the republicans, behind or about the same?
  4. What is going on in the swing states? See this analysis for an Electoral College breakdown — . Here’s a pull quote – “…newly successful people have become the pivotal bloc that swings the state between Republicans and Democrats. They are not committed to either party. They are not terribly involved with social issues. Their main worry is the economy. If Republicans make birth control and separation of church and state the major issue, they will go Democratic. If the Democrats mess up the economy and produce $4.50 gas and 8.3 percent unemployment, they will swing Republican. That will probably decide the 2012 election.”
  5. How are the independent, unaffiliated voters breaking?

It doesn’t take a rocket scientist to notice that if the economy is stuck on bad and the incumbent is running behind his party while the challenger is running ahead of his, an upset is in the making.  Those trends, especially as they manifest in the swing states will be decisive – absent that hypothetical seismic disruption.


In January, former Labor Secretary Robert Reich opined —

Hillary Clinton on the ticket would generate the enthusiasm Mr. Obama needs. She’d be the first woman vice president. She’d remind voters of the successes of the Clinton administration. And as many recall from 2008, she’s a sharp and articulate campaigner.

Moreover, Ms. Clinton would help deflect attention from the bad economy to foreign policy, where she and Mr. Obama have shined. Chances are the economy won’t be in great shape in the months leading up to Election Day. If the European debt crisis worsens and if China’s economy continues to slow, there’s a better than even chance that unemployment will be back to 9 percent.

With friends like Secretary Reich, who need doomsayers?  Consider the historic correlation between unemployment numbers and trends and the fate of an incumbent president:

Hoover defeat

UNEMPLOYMENT — 22% and stuck

Ford defeat


Carter defeat

UNEMPLOYMENT — 7.5% and stagnant

Bush 1 defeat

UNEMPLOYMENT — 7.8 % unemployment and rising



Not add the underemployment wild card:

On March 9, 2012 Gallup reported the underemployment rate. Underemployment is the unemployment rate, plus the rate of people working at part-time jobs who would take full-time jobs if they could find them. Fully 10% of Americans fall into this latter category, giving the US an underemployment rate of 19.1%. This is up from 18.1% earlier this year.

The number of unemployed persons, at 12.8 million, was essentially unchanged in February. The unemployment rate held at 8.3 percent.

US Underemployment Rate is at 18.2%.

Updated: Mar 28 2012, 10AM

Next Release: April 04 2012, 10AM

Source: Gallup

Period: Mar 26 2012

Frequency: Daily

Long Term Average: 18.77%

Value Previously: 18.20%

Change From Previous: 0.00%

Copyright © 2012 by Jay B Gaskill, Attorney at Law, forwards, links and quotes with attribution are welcome and encouraged.  For everything else, please contact the author via E-mail { }




APRIL 1, 2012

An open letter to

Secretary of State, Hillary Clinton

You may yet be called to serve your country as President of the United States.  But you first need to carefully reflect on the state of the union, a luxury that your grueling schedule as Secretary of State simply has not afforded.  When you are able to think it through fully, we hope you will agree with the majority of centrist democrats who now believe that further association with President Barack Obama is toxic.  We all remember your “when the white house phone rings at 3:00 AM” campaign piece.  It was prophetic.  We hope you remember it, as well.

POTUS addressing the world – note the surrounding vacuum

So far you have avoided the worst of this damaging association through your demonstration of independent foreign policy leadership. In an administration more characterized by leading from behind, your personal, independent contributions as the diplomatic face of the United States are seen as evidence of your leadership, not that of a weak executive.

You have inherited a legacy that will serve you well – if you still choose to embrace it.  You are part of a tradition of foreign policy toughness, common sense compassion and fiscal prudence. You saved your husband, Bill Clinton, from political oblivion when he was drifting to the left.  It was you who called in Dick Morris.  It was you who called POTUS back to the creative, collaborative center, and rescued a presidency.  In the opinion of many centrist democrats, the current occupant of the White house is beyond rescue.  He is no Bill Clinton.

Some of us strongly believe that the worst possible outcome for the country and the Democratic Party would be for Mr. Obama to win a second term.  No one should be deluded that such a scenario would end well.

If Mr. Obama is able to inflict as much damage in the next four years as he has to date, no democrat who has not dissociated him or herself from this administration will be able to succeed this president.  We understand your dilemma.

Suppose you were to accept the nomination for the vice presidency.  Your best and probably only play for the presidency will not come for four years, after Mr. Obama is not reelected.  Better that you sit this one out. You have earned a break. In the unlikely scenario where Mr. Obama wins, you would not be saddled with the malign consequences of his next term.  If he loses, you will be perfectly positioned to run in the next cycle.

Your only viable “Vice President-to-POTUS” play depends on the unlikely scenario in which Mr. Obama does not serve a full second term.  You would be smart not to bet a career on that prospect, no matter what scandalous information about this president might be poised for release.

On Sunday, January 20, 2013, the president elect will face a daunting reality.  Among the challenges: a staggering US sovereign debt; deep structural underemployment; a wildly unsettled world economy; a powder-keg Middle East; energy cost inflation.  The odds are that any man or woman who assumes the office of POTUS in January 2013 will serve only one term.

History may yet call you to serve.  But not this year.


Senator Henry “Scoop” Jackson

Senator Daniel Patrick Moynihan

Speaker Thomas Phillip “Tip” O’Neill

Copyright 2012 by Jay B Gaskill, Attorney at Law

{The Policy Think Site –}  —