Narratives Are Hard to Shake

For several weeks, California news reports and true crime outlets focused on the parole bids of Lyle and Erik Menendez, both of which were denied, but the best report on the hearings, by far, was Joe Garcia’s important article on CalMatters. Here is part of his excellent story:

Many parole hearings boil down to whether the board believes the individual is being authentic. Is their rehabilitation and personal transformation genuine and substantial? Or is their grasp of self-help mantras and buzzwords merely performative?

For their hearings, Erik and Lyle Menendez each sat alone before a computer screen in the R.J. Donovan Correctional Facility in San Diego, accompanied only  by two correctional officers. Everyone else — commissioners, attorneys and all other parties — participated virtually.

“The purpose of this hearing is not to retry your case, nor is the purpose of this hearing to put your parents on trial,” presiding commissioner Robert Barton told Erik. “The purpose of this hearing is to determine whether or not you currently pose an unreasonable risk to public safety.”

Commissioners questioned each Menendez about the underlying “nexus” of their crime. Successful parole suitability requires offenders to show insight into why they did what they did.

Without relitigating or making excuses, this line of reasoning is an essential component of rehabilitation. If a person doesn’t fully understand the flaws in their thinking that contributed to their criminal decisions, then they are considered far more prone to repeat them. 

“Two things can be true that seem opposite at the same time and yet be true,” Erik Menendez said in explaining his immense fear of his father while also addressing his need to act out and rebel in small ways.

I’m almost 51 years old, which means that I was a teenager/adolescent when the drama around the Menendez brothers’ trial played out on TV. My first exposure to the crime was a 1994 made-for-TV movie called Menendez: A Killing in Beverly Hills, in which the brothers are presented as spoiled, greedy, and psychopathic, and their claims of parental abuse are ridiculed and disbelieved. It’s interesting to revisit that perspective and see how hard it is to shake off. I know how narratives about horrific crimes tend to calcify–I literally wrote the book about California parole, in which I looked at a very similar calcification that happened when Vincent Bugliosi’s book Helter Skelter, about the Manson family crimes, came out. As I wrote there,

Bugliosi openly admits that he strategically chose to highlight his narrative. He was, after all, a prosecutor in search of a theory of criminal culpability. The Tate-LaBianca murders presented him with two legal difficulties. First, Manson himself was not present when the murders took place (though he arguably was on the scene before the murders occurred, tying up the victims, as he had been at Gary Hinman’s residence before his homicide). To obtain a conviction, Bugliosi would have to convince the jury that Manson was the mastermind behind the murders, contrary to the defense’s argument that Manson’s followers committed the crime on their own, without his knowledge. That would require a strong showing of Manson’s powerful hold over the perpetrators’ will and his hand in planning the murders. On the other hand, Bugliosi could not afford to present the followers as mindless robots ordered around. In that respect, he was somewhat aided by the fact that knowledge about cults, mind control, and brainwashing was not part of the zeitgeist in 1971; however, Bugliosi was determined to seek the death penalty for all defendants, and that called for proof of premeditation on their part. The doctrine of felony murder was not as developed.

This is not to say that the crimes were not horrific, heinous, and cruel, or that the people who were convicted of them were not responsible. But writing about these crimes, and particularly the involvement of teenage girls and adolescent women who were sexually exploited, hopped out of their mind on drugs, starved and sleep deprived, in the era of #MeToo and after we’ve learned more about cults and about the brain development of teens and young adults, suggests that at least Van Houten, if not Krenwinkel and Atkins, and their involvement in the crimes, would have been seen through a less harsh light if it happened today.

Along the same lines, I wonder if a crime similar to that of the Menendez brothers would be viewed through the same lens today. Would Lyle and Erik’s claims that they were sexually victimized be more believable now that we have more awareness of sexual victimization of men? Did the massive sex abuse scandal in the Catholic church–still hidden and unspoken of in the late 1980s and early 1990s–change our tendency to believe boys and men who reveal that they were victimized by people of high stature and good reputation?

I don’t know what it was like to live in the Menendez household, and have spent far less time digging into the court documents in this case than I did, say, in the Adelson case; but it’s obvious to me, from the parts I followed more closely, that what happened at the hearing resembled the patterns I saw in the Manson women’s cases. Notably, the things that the two men were dinged for–having a smuggled cellphone and joining a gang–are fairly common transgressions that tend to surface at hearings and tank people’s parole bids. But the commissioners are aware of the fact that joining a gang, even if it is notorious and ugly, is a survival strategy for men who are otherwise defenseless in prison, and for white prisoners, joining the Aryan Brotherhood is essential even if one is not an avowed Nazi. I’ve spoken to long-term white prisoners who did not join (which I very much admired them for) and paid a dear price in vulnerability to vicious assaults and attacks in the prison yard. This doesn’t make the AB into some sort of benevolent association–it’s anything but–but it does put the motivation for joining in context. Similarly, the prison guards’ publication Corrections One points to how widely prevalent cellphones are in California prisons. Is it a violation of prison regulations? Sure. Is it the ticket to survival inside and to having some semblance of literacy in the modern world upon release? Yes, it is. Indeed, much of what we did during the pandemic to get information to and from people about what was happening inside (including the ridiculous meals they were served when everyone in the kitchen fell ill) came from smuggled cellphones.

I’m not saying that these violations would be ignored if Lyle and Erik weren’t, well, Lyle and Erik. All I’m saying is that they would probably be viewed in context of a long incarceration that started in adolescence were it not for the notoriety of the cases. And now it remains to be seen whether these black marks will reappear and be discussed again in the brothers’ future parole hearings; what I saw in the Manson family transcripts is that some transgressions, even if fairly light or explainable, tend to crop up again and again in successive hearings. I’ll be following the brothers’ next bids for parole with great interest.

Congregational Guitar

I recently realized that I don’t post a lot about music here, though I often do post songs and tunes. It’s odd, given how important music is in my life, though my mode of engagement with it has changed over time. In the last few months, I’ve spent considerable effort picking up guitar, mainly so that I could accompany myself when leading Shabbat and holiday services. The guitar I chose, a Gretsch resonator model from their Roots series, is easy for me to play because of the round neck, and sounds loud and twangy even if I’m not using amplification (honestly, given how much of a beginner I am, if there’s one microphone, I’d rather it caught my singing than my guitar!). Similar guitars were played in gospel churches a hundred years ago; it’s a proper congregational instrument.

You’d think a guitar would be a practical instrument to pick up when young; there’s an instrument lying around anywhere you go, and it’s fun to play and sing with others. But I started off on flute and organ as a kid, played flute and keyboards in various ensembles and bands, and started playing a drum kit last year. This was so much fun! I even got to play drums with a klezmer band last year. So, I’m a rather late arrival to the stringed instrument world, and I’m definitely not a natural. My current learning curve is all about accompanying myself with confidence without looking at my hands. Out of the triangle “sing well, engage with the audience with your face and presence, play the right chords” I can usually get A and B or A and C, but not a perfect combination of all three, and that is where strumming in the dark comes in (really!). It’s already much better than it was before the high holidays, which were a big lift in a variety of musical and liturgical aspects. Now that the dreaded September-October extravaganza is behind me–I singlehandedly organized and led the Simhat Torah music/dance/art/Torah/joy event–I can think a bit more about what playing guitar has taught me about music so far.

My first observation is that, perhaps by contrast to other instruments I’ve played, guitar playing makes it obvious why certain songs are harmonically set the way they are. Take, for example, one of my all-time favorites, R.E.M.’s Man on the Moon:

You’ll notice that the stanzas alternate between C and a special permutation of D, which sounds very sophisticated and elegant–until you realize it is a choice driven as much by comfort as by harmony: the hand keeps the exact shape of the C chord and slides two frets in. The more I play songs with chords that seem like genius choices at first glance, the more I notice that the harmonies are driven by hand position mechanics.

The second thing I’ve noticed is that a perfect pitch is a liability for guitar players almost as much as it is for singers. When playing flute, one notices that each note has its own color, and of course the mechanics of sound production with your lips have to change with each note, so you become acutely, and sometimes painfully, aware of why certain songs are set in certain keys. But when you sing, you need to be flexible, for example when you’re singing a baroque aria with an orchestra tuned to 415 as opposed to singing the same song a half-tone higher, with a piano tuned to 440. What the capo–a device that clamps on your strings to create a new set point for the guitar–does for you is liberate you from the need to think about scales. Many simple songs, and thankfully lots of traditional Jewish tunes fall into this category, have a limited number of chords in them, and the path of least resistance for a slacker song-leader is to pick the fingering that presents the least challenge and just use the capo to adjust the instrument to a key that congregants are comfortable singing in. To do this, however, you have to liberate your mind from the anchor of a particular key, and this is where perfect pitch is the enemy.

Third, I’ve noticed that I feel vastly more comfortable finger picking than I do playing with a pick. A friend once told me she read a study that posited that some people work better with tools while others work better with their bare hands. The closest thing I’ve been able to find is this article, which looks at the use of tools and the role it plays in motor skills. They argue that using tools requires “distributed cognition”–which is not just about the physical dimensions of a tool but also the interaction between the tool and the object that it is being used on. To the extent that this insight relates to what my friend found, I have felt all my life that I was better suited to the second category (bare hands). Even when knitting and crocheting, I do a lot of the yarn manipulation by hand, and I prefer freehand drawing to working with stencils. The pick-to-strings feel is something I’m still working on quite a bit–not for lack of trying, and certainly not for lack of clear explanations and demos from my fabulous teacher, Rob Snavely, who helped me so much. If I’m still a clumsy beginner guitarist, I’m certainly a thousandfold less clumsy and beginner-y than I was before I started learning with him, and if anything is a testament to the value of lessons, it’s the few summer months when I worked on rock songs and saw steady improvement.

Once my schedule opens up a little (it’s been a tough couple of months and the next four will be just as tough) I hope to get back to a few things I enjoy, including guitar lessons and swimming practice.

Donna Adelson Receives Life Sentence, Claims Innocence in Unsworn Statement

On Monday, Donna Adelson, who was convicted of her role in the murder of my colleague Dan Markel, was sentenced to life in prison. Several people testified in her defense, including her husband Harvey and a family friend who had also testified at the trial. Donna herself gave a lengthy unsworn statement, which you can hear for yourself here:

What is the value of such a statement? We know that the rules of the game are much looser at the sentencing phase than they are at the guilt phase; evidentiary limitations, such as the hearsay rule, do not apply. Still, under Florida law, sentencing witnesses must be sworn in. Theoretically, these witnesses can be cross examined and impeached, but I suspect that at this point, unless there are glaring falsehoods, the prosecution is happy to have the judge form their own impression of the reliability of the testimony.

The one sentencing witness who need not be sworn in is the defendant, who may give an allocution statement and is not cross examined on it. But using the opportunity to offer such a statement–especially after electing not to testify at the guilt phase–can be a double-edged sword. On one hand, it is commonplace for judges to consider the defendant’s remorse as a mitigating factor. Given that the defendant was found guilty, the judge operates under the understanding that legal truth equals factual truth, and thus a defendant professing innocence is an unrepentant defendant who deserves no mitigation (this is what happened here). On the other hand, despite this risk, for some people it pays off to continue to profess their innocence, for various reasons:

  • Perhaps they are innocent! Dan Simon conservatively estimates that 5% of all criminal defendants are innocent. A person wants to preserve their moral integrity.
  • Perhaps they feel indignation or entitlement about other injustices in the process and do not feel guilty even if they are.
  • Perhaps they are performing to family/friends and other people. This is especially common when one is convicted of heinous offenses, such as sex crimes or violent crimes, and wants to preserve their reputation vis-a-vis those close to them.
  • Perhaps they want to preserve some issues for postconviction procedures (in some cases, a consistent claim of actual innocence can play a small but important part in federal habeas).
  • Perhaps they (mis)calculate that the judge was not fully persuaded by the jury’s verdict and might be responsive to their plea of innocence.
  • Perhaps this will play off well in the long run, in that a change of heart and a later acceptance of responsibility can pay off in sentence reduction deals (e.g., I will accept responsibility and testify against a co-conspirator or accomplice in return for a reduction in sentence; otherwise, I will insist that both they and I had nothing to do with the crime) or on parole (e.g., I’ve gone through an amazing moral transformation in prison and learned to accept responsibility for my crime).

Since I very much doubt the first factor in this list is plausible in Adelson’s case, I wonder if the other factors are relevant here; specifically, whether Donna is saving a change of heart (similar to Katie Magbanua’s) for a time at which Wendy and/or Harvey face trial. In any case, lashing against the jury and the judge, claiming bias and/or inattention, as both Donna and Harvey did at the hearing, does not seem to be the right mindset to engender any sort of sympathy. Perhaps the habit of a lifetime–lying, acting entitled, believing that one is always in the right and everyone else is in the wrong–simply proved too hard to shake.