Men behaving badly

October 14, 2018

Monicagate, Lewinskygate, Tailgate, Sexgate, and Zippergate. The sexual relationship between Bill Clinton and Monica Lewinsky which took place between 1995 and 1997 and its aftermath is the subject of a podcast series, which has just finished. A sitting president was being investigated by an independent counsel. There were a number of women accusing this president of sexual misconduct. There was a lot of cynical political opportunism and moral posturing. It was premonitory of the increasingly sectarian politics that have afflicted America in the next twenty years.

After dealing with Watergate in the first season, Slate’s podcast Slow Burn, devoted eight episodes to look at the scandal of President Clinton’s affair with Monica Lewinsky. Alas, neither Lewinsky nor Clinton agreed to be interviewed for the podcast. Nevertheless, it is well worth listening to. Leon Neyfakh, an American journalist, radio host and author, has produced an engrossing story.

The saga ended in Clinton being acquitted by the US Senate of four articles of impeachment involving charges of perjury and obstruction of justice. As Neyfakh tells it, it is an ethically ambiguous case. In the concluding episode he asks if it’s possible to be framed and be guilty at the same time. I haven’t changed in my contempt for the Republicans. Independent counsel Ken Starr’s treatment of Lewinsky was disgraceful. But the Clinton White House threw her to the dogs her to protect his presidency. At the time I felt ambivalent about Clinton. Now he seems more sinister. The final programme features an interview with Juanita Broaddrick. She has alleged that Bill Clinton raped her in 1978. This extremely serious charge was barely investigated, an afterthought in the Starr report; it was not among the articles of impeachment. Curiously, she is now a Trump supporter and on Twitter she has rubbished Christine Blasey Ford’s accusations against Judge Brett Kavanaugh:

How can I, as a victim, not sympathize with Dr. Ford?? Plain and simple. I do not believe her. She has cast a dark shadow on real victims. Democrats have already convicted this honourable man. What about Judge Kavanaugh and his family?”

The series also looks at the role of feminism: how would this scandal have played out in the age of #MeToo? Neyfakh does not want to come across as morally superior to those unenlightened people at the turn of the century. He wants to understand why they reacted in the way they did. There was and is a tension in feminism. This is between a woman’s right to sexual agency and her right to be free from sexual predation. Lewinsky was not a teenager at the time of the relationship; it began when she was 22. Nevertheless, can a 22-year-old intern consent to sex with her 49-year-old boss, or do the power dynamics mean that the relationship is by its very nature coercive?

There was a sense of political expediency here. Is it okay to overlook a president’s personal failings if you agree with his policy agenda? Bill Clinton was seen as a champion of women’s issues. We have a similar opportunism now with Trump. We can say that he is not a paragon of Christian virtues. However, in 21 months Trump has appointed two Supreme Court judges and evangelical Christians seem to have forgotten all their moral qualms. This hypocrisy is epitomised by William J. Bennett. I can remember hearing him at the time with his moral indignation. The author of The Book of Virtues: A Treasury of Great Moral Stories and The Death of Outrage: Bill Clinton and the Assault on American Ideals is of course a Donald Trump supporter. If outrage died with Bill Clinton, then Trump has nuked it to make sure that it can never be resuscitated

One aspect I found interesting was Clinton’s bizarre legalistic arguments in his denial of sexual relations with Miss Lewinsky. He was not claiming that oral sex didn’t count. He was  apparently employing the idiosyncratic definition of “sexual relations” that Paula Jones’s lawyers had provided to him during his deposition that led to all his problems. Sexual relations involve touching someone in a manner intended to arouse or gratify them. According to this definition of “sexual relations,” Lewinsky had had sexual relations with Clinton, but not vice versa.

The story comes back with the recent hearing involving Judge Brett Kavanaugh. The freshly minted Supreme Court justice has a connection with Bill Clinton. He spent over three years working for Kenneth Starr, including the Clinton investigation. He laid out the line of questioning the special counsel should use with Clinton. He began with three normal questions:

  1. Did you tell Monica Lewinsky that she should deny the nature of the relationship that you and she had?
  2. If Monica Lewinsky says that you agreed to lie about your relationship with her, would she be lying?
  3. Would Monica Lewinsky be lying if she said that you told her after her name appeared on the witness list: “You could always say you were coming to see Betty or that you were bringing me letters”?

Then, however, Kavanaugh began an increasingly graphic series of questions:

  1. If Monica Lewinsky says you inserted a cigar into her vagina while you were in the Oval Office area, would she be lying?
  2. If Monica Lewinsky says that you had phone sex with her on approximately 15 occasions, would she be lying?
  3. If Monica Lewinsky says that on several occasions in the Oval Office area, you used your fingers to stimulate her vagina and bring her to orgasm, would she be lying?
  4. If Monica Lewinsky says that she gave you oral sex on nine occasions in the Oval Office area, would she by lying?
  5. If Monica Lewinsky says that you ejaculated into her mouth on two occasions in the Oval Office area, would she be lying?
  6. If Monica Lewinsky says that on several occasions you had her give oral sex, made her stop, and then ejaculated into the sink in the bathroom off the Oval Office, would she be lying?
  7. If Monica Lewinsky says that you masturbated into a trashcan in your secretary’s office, would she be lying?

I have a couple of observations about the Brett Kavanaugh hearings. I did find Christine Blasey Ford a credible witness, but I think it’s such a long time ago – I don’t see how you could establish Kavanaugh’s guilt beyond reasonable doubt. My other conclusion is that given his performance under scrutiny, this man is not suited for this vital job. He came across as an arrogant, entitled man, who repeatedly misrepresented the truth. How many more justices will Trump get to name? He is currently averaging over one a year.

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Homicide: murder and manslaughter a brief guide

January 28, 2018

Homicide is the act of one human killing another, the ultimate crime. I must have seen thousands of films and read hundreds of books dealing with murder. You often hear those dubious factoids that by the time the average child has finished elementary school, they will have seen 8,000 murders on TV. And by the age of 18 they will have been exposed to 200,000 of violent acts on TV. I am in my sixth decade and I have no idea how many fictional killings I have seen or read, but it will surely be an enormous number. And it’s not just me. If you type murder into the IMDB you get 200 results for films TV series and documentaries. I’m sure this is just scratching the surface. These are just films and TV shows that have the word in the title. Despite being a connoisseur of mystery and suspense, I sometimes get confused about the different classes of homicide. In this post I intend to look at the hierarchy of homicide crimes, going from the most serious in descending order. Where a crime is situated on this ladder depends on what the perpetrator was thinking at the time of the action that caused the victim’s death.

At the top of the ladder is first-degree murder. This involves unlawful intentional killing with malice aforethought; the victim’s death must be premeditated. First-degree murder involves a rational, cold-blooded decision to kill. The period of premeditation required to support a charge of first degree murder doesn’t have to be protracted. What is more important is defendant’s formulation of a plan to commit the murder, and opportunity to reconsider before committing this act. It is about the quality of thought that went into the decision to kill—not the quantity. Nevertheless, the more time spent making the decision, the more likely it is that a court will find premeditation. The punishment for first-degree murder is harsh. A conviction for first-degree murder could mean a long stretch in prison, or in many countries, capital punishment

On the next rung we find second-degree murder, which can get you 20 years or more in prison. Second degree murder is also intentionally caused, but the defendant does not premeditate or deliberate before committing the murder. The language talks of impulsive killing, death resulting from an intent to cause serious harm and depraved indifference to human life. A bar fight that end in the los of life is the classic example,

Voluntary manslaughter is a homicide crime that is a special exception to the crime of second-degree murder. If the defendant qualifies, his punishment can typically be reduced to half of what it would have been if they had been convicted of second-degree murder. Voluntary manslaughter is a partial defence to a murder charge. While you’re still guilty of homicide, it is seen as considerably less serious. This doctrine serves to mitigate the punishment in cases of extreme anger. It seems to reflect a testosterone-driven worldview. It was created in a time of male-on-male violence and spousal adultery. The latter is the classic crime of passion. A man finds his wife in bed with another man, and kills his wife, the other man, or indeed both. Judges decided that this shouldn’t be classified as murder; the killing was only partly the fault of the defendant, and the adulterous lovers should also share some of the blame. The crime was reduced to voluntary manslaughter. Of course the early common law judges who devised the doctrine were all men. It does seem to belong to a bygone age. Within involuntary manslaughter there is imperfect self-defence. This can occur when a person is being threatened but then counters with a force disproportionately greater than that used against them.

At the bottom of this ladder is involuntary manslaughter. The crime of involuntary manslaughter generally consists of causing another person’s death without the intent to kill, but where a death occurs through the negligent or reckless actions of the defendant. The classic example is someone who fails to stop at a red light and who subsequently kills another driver or pedestrian.

This is my brief tour of the law of homicide. I hope it has been useful it was necessarily brief. I did not delve into the concept of causation in law, which I might look into in a future blog post.


Eyewitness evidence

May 22, 2016

We live in age of scientific crime detection. Nevertheless, there are two forms of evidence that still exert profound influence in the judicial system – confessions and eyewitness testimony. In I confess – a guide to police interrogation I looked at how police interrogation methods can sometimes lead to suspects confessing to crimes they did not commit. This week I want to look at the fallibility of eyewitness evidence.

I came across one shocking example of this the case of the rape of Jennifer Thompson. We need to clarify that this is not like the invented charges that I looked at in False rape accusations. Jennifer Thompson was clearly a victim. In July 1984 Thompson a 22-year-old college student living in Burlington, North Carolina, was sleeping in her apartment after coming home from a date. What she did not know that a man had broken into her apartment and was still there. She went to sleep but she woke up in the middle of the night. Realising that there was a man in her room, she tried to scream but her attacker had a knife.  She offered him her money, credit cards, and even her car if he would just leave her alone. But he wasn’t interested.

During the attack the college student had one focus: to survive and identify her rapist. She had a strategy. She had heard that when you were raped, the best thing to do was not to fight. That would be exactly what a rapist would want. They need to control and humiliate the woman. She was at a physical disadvantage with respect to her attacker. So she would have to outsmart him. Her first plan was to try to get information. She would remember everything: his face, his voice, his hair his eyes and any other distinguishing features, such as scars or tattoos. She would memorise his clothing, try to identify his height by comparing it to her own.

The second part of her plan was to just try to get out. She claimed that she had a knife phobia and got him to put down the knife. She wanted to get to the kitchen because the rapist had told her that he had forced the door there. So she said that was feeling really thirsty and needed to get something to drink. Once in the kitchen she turned the light on, knowing that if it was on, he would not come too close to me, for fear of being identified. He did indeed stay around the corner.  Here is how she describes what happened next:

And I started to run the water and throw ice cubes in my sink, and open up cabinets and draws, making as much noise as I could, and getting up enough courage to run. And that’s when I opened up the door and I just took off out the door. I didn’t know where I was going to go, but I was leaving.”

She ran for her life, pursued by the rapist. Fortunately she was able to get to the house of a couple. The woman, who worked at the university, recognised her as a student.

She first arrived at the hospital at about four o’clock in the morning, where she was given the forensic rape test. Unfortunately, the doctor seemed annoyed at having been woken up and was rather unsympathetic. What’s more he did an incomplete examination; she was not given penicillin for any possible sexually transmitted diseases, nor was given the morning-after pill. She would later have to go through the whole humiliating process again. She also learned there appeared to be a second victim, Elizabeth Warren, who would prove important later in the story.

After the rape kit, she went to the police station, where she was asked to use one of those facial composite kits to create an accurate photofit of the perpetrator. And of course she had to describe what had happened several times and to give as many statements as she could.

Thanks to an anonymous tip Ronald Cotton, an African-American restaurant worker became a “person of interest”, as they all say in the police dramas I watch. He did have a previous sexual assault conviction and a dodgy alibi. So two days after the crime Thompson was shown his photo and those of five others. She identified Cotton. She thought he looked exactly like the man who had raped her. Not a lot of time had elapsed since the crime so her memory was still very fresh. There are a couple of things I need to say about the photo identification. First she was shown all the photographs at the same time. This is a seriously flawed methodology, which I will come back to later. Secondly, she actually took five minutes to decide between two of the photos, which is actually quite a long time.

And just over a week later came the identity parade, which was not like you see on the television. The normal venue was being renovated, so they had to use another room. She was in the same room with Cotton and the other men from the line-up. She now saw Cotton in the flesh.  His demeanour and his posture further convinced her that Ronald Cotton was the man. He looked exactly like the man from the sketch that she had given to the police. His mannerisms, his voice, his height, his weight all appeared to fit. the rapist. And as time went by, she became more convinced that Cotton was the man. Whenever she relived the trauma it was Ronald Cotton’s face she would see

During the trial, Thompson once again identified Cotton as her rapist. When the defence attorney attempted to introduce evidence of the second, and seemingly related rape, of which Cotton had been excluded, the Judge refused to allow this evidence to be heard. Thus, Ronald Cotton was convicted and sentenced to life in prison based on what, apart from the identification by Thompson, was rather flimsy circumstantial evidence.

On Jan. 17, 1985, the day Cotton was convicted by a jury of one charge of rape and one of burglary and sentenced to life in prison, Thompson toasted her victory with champagne. “It was the happiest day of my life,” she said. A year into his prison term Cotton came across a prisoner with uncanny similarity to him. Indeed inmates and guards would often mix them up.  The inmate was Bobby Poole. He had apparently been bragging about committing the rapes and had allegedly joked that Cotton was doing his time for him

In 1987 the North Carolina Supreme Court reversed the conviction and ordered a retrial based on the second rape evidence that the judge had not allowed. But the second trial proved to be a disaster for Cotton. Elizabeth Watson now became convinced that Ronald Cotton was her rapist as well, even though she had been unable to pick Cotton out of both a photo and live line-up before the first trial. She had actually picked a police “filler” in the original line-up.

Bobby Poole’s was also called to testify but he would not confess to both the rapes, and Jennifer Thompson denied ever having seen him before. Indeed she was outraged that the defence could even suggest that Poole had been the rapist. She was emphatic: “Bobby Poole did not rape me. Ronald Cotton raped me.” Ronald was again convicted, but this time for two rapes. He was sentenced to two life sentences plus 54 years, confirmed on appeal in 1990 and the North Carolina Supreme Court in 1991.

Luckily a lawyer Richard Rosen agreed to take up the case. Now new forensic techniques were coming to the fore. The attorney filed a motion for DNA testing. The Thompson crime evidence was too deteriorated to test. However, the Watson materials completely excluded Ronald Cotton as the perpetrator. The defence then requested that the results be sent to check against the DNA of convicts. The DNA positively identified Bobby Poole. Detectives went to see Poole, who confessed. On June 30, 1995, ten and a half years into his sentence, Cotton was officially cleared of all charges and released from prison. The following month he was officially pardoned by the Governor of North Carolina. He was initially offered just $5000 compensation, but thanks partly to the efforts of Thompson, still pitifully low for all that this man was put through.

There is a terrible irony in all this. Jennifer Thompson, who had been so determined to identify her man, had, in the end, got it all wrong. She felt a terrible sense of guilt over what she had done. But I do not think she ever acted in bad faith. Memory is not like a video recording. Traumatic situations can affect what you remember. And each time you remember the memory can become subtly different. Thompson, who had initially taken five minutes to choose the right photograph, became more convinced that Cotton had raped her. She thought that people would think she was a racist. What is true is that witnesses do seem to have problems accurately identifying a suspect if another race. They can pick out the broad stereotypical features but not the finer details.

There are many uplifting aspects to this story. Two years after his release Jennifer Thompson and Ronald Cotton met for the first time at a church not far from where she had been raped. Thompson felt terrible; she struggled to stand up and began to sob. She looked at him and said: “If I spent every minute of every hour of every day for the rest of my life telling you that I’m sorry, could you ever forgive me?” Thompson didn’t expect Cotton’s response:

I’m not mad at you. I’ve never been mad at you. I just want you to have a good life.”

So Thompson and Cotton have become friends. They have also become tireless campaigners for reform of eyewitness identification procedures. There is a lot wrong with the system. According to the Innocence Project Eyewitness misidentification is the greatest contributing factor to wrongful convictions proven by DNA testing, playing a role in 75% of convictions overturned through DNA testing nationwide. In 40% of those cases more than one witness identified the suspect. When you send the wrong person to prison for a crime all society is affected – the real criminals are free to go on committing crimes.

I have seen a number of interesting proposals to give the identification process a more scientific foundation. We need double-blind presentation; the photos or line-up members should be presented by an administrator who does not know who the suspect is. The fillers should resemble the eyewitness’s description of the perpetrator and the suspect should not stand out. Only one suspect should be included in the line-up. A sequential presentation of the line-up is preferable. Otherwise it becomes like a multiple choice test with the victim narrowing the options. That is not the kind of identification you want at the time of the identification, the eyewitnesses should provide a statement in her own words indicating her level of confidence in the identification. Finally these procedures should be videotaped to increase the transparency of the process. In the end I agree with the Innocence Project: memory is evidence and must be handled as carefully as the crime scene itself to avoid forever altering it.

 

 


The Innocence Project

May 22, 2016

Here is a video from The Innocence Project, which features Thompson the detective, Mike Gauldin and Ronald Cotton himself.


The People v OJ Simpson

May 1, 2016

I recently finished watching American Crime Story: The People v OJ Simpson, a show which deals with the 1994 double murder of Nicole Brown Simpson and Ron Goldman and the subsequent trial of OJ Simpson. But for me one ten-episode series was not enough, so I have subsequently read the book on which the series was based The Run of His Life by Jeffrey Toobin and the Marcia Clark’s account of the trial from the prosecution side, Without a Doubt. I have also seen three or four complete documentaries on YouTube, including a two-and-a-half-hour compilation of the highlights of the trial. I think my wife is starting to get seriously worried about this obsession.

It was called The Trial of the Century. It was before social media, but 24-hour rolling news made the event a media circus. And what a cast of characters it had. Born in 1947 in San Francisco, California, Orenthal James Simpson had a stellar career in American football, despite never winning the Superbowl. Winner of the Heisman Trophy for the best college player, he went on to play for the Buffalo Bills in the NFL, where he became the first running back to rush for 2000 yards in a season. He later forged a successful post-football career encompassing Hollywood, sports broadcasting and advertising.  Best known for playing Officer Nordberg in the Naked Gun trilogy, he also appeared in The Klansman (where he played a man framed for murder by the police), The Towering Inferno and Capricorn One. Shortly before his arrest he did a pilot for NBC of an A-team rip-off, Frogmen, in which there is a scene in which he holds a knife to the throat of a woman.

His personal life was less successful. Simpson married Marguerite L. Whitley on June 24, 1967. They had three children together, Arnelle, Jason and Aaren, who died before her second birthday when she drowned in the family’s swimming pool. Simpson met waitress Nicole Brown while still married to Marguerite. O.J. and Nicole were finally married in 1985 and they had two children together, Justin and Sidney. Their marriage was what is euphemistically described as troubled, i.e. he used to hit her. Nicole really did seem to fear for her life.

But Simpson was just one of the players. Toobin describes lead prosecutor Marcia Clark as arrogant, but the series paints a much more sympathetic portrayal of the lawyer and the sexism she had to put up with. Christopher Darden, the sole African-American on the prosecution side, was responsible for the glove debacle. Judge Lance Ito became media sensation, but his failure to maintain control of the courtroom was another factor in the verdict.

Simpson was defended by the dream team of defence lawyers, which included Robert Shapiro, F. Lee Bailey Barry Scheck and a lawyer I have featured before, Alan Dershowitz, who would have handled the appeal. Dershowitz had actually been on a number of national television shows saying how guilty Simpson was. Now he would be representing him. As Toobin notes, “Shamelessness is a moral, rather than a legal, concept.” They were undoubtedly great lawyers, but it was a fractious relationship. Although he was not initially part of the team, Johnny Cochran was the one who became the principal defence lawyer. Toobin wrote of Cochran “that he had been waiting his whole life for this case, and this case had been waiting for Johnnie Cochran as well.” It may have been Robert Shapiro who first came up with the race-based defence, but it was Cochran who took it to its final consequences.

And finally to add a bit more spice Robert Kardashian was a family friend and another of the defence lawyers. In one scene, probably invented, he warns the family about the dangers of fame:

We are Kardashians. And in this family being a good person and a loyal friend is more important than being famous. Fame is fleeting. It’s hollow. It means nothing at all without a virtuous heart.”

In his book Toobin is clear about Simpson’s guilt. The TV series leaves it a bit more open, but no other credible suspect emerges. If the evidence was so overwhelming, why did he walk?

The prosecution has come in for a lot of flak. There may be some truth in this. The way the defence lawyers were able to get under Darden’s skin and get him to demand that Simpson don the glove. Perhaps the prosecution presented too much evidence. They took six months to present the evidence against O.J. Simpson. But I think that while the DNA, blood evidence was at the heart of the case, the domestic abuse story was relevant too. I have also heard that they shouldn’t have called racist detective Mark Furhrman. But once Fuhrman had climbed over the wall of the Simpson home and had taken part in getting those statements from O.J., he was part of the case. Mark Fuhrman proved to be a disaster for the prosecution. Here I side with the defence in asking for the tapes to be played. He perjured himself in court and not only did he repeat the n-word but he glorified torture and evidence tampering.

If the prosecution made one mistake it was their choice of venue. This is a rather depressing conclusion, but there is no doubt that a whiter jury may well have produced a guilty verdict. This racial animus had been on display when the officers were found not guilty of the beating. The LAPD did not inspire much confidence in the African-American community. The not guilty verdict in the trial of the policeman who beat up Rodney King is considered to have triggered the Los Angeles riots of 1992. This was a climate in which conspiracy theories flourished.

The fact is that humans find it hard to analyse evidence objectively. People can read the same report and come to diametrically opposed conclusions, depending on their ideological starting point. The jury overlooked a mountain of evidence that showed him to be guilty, and seemed more impressed by the glove not fitting. Cochrane’s catchy turn-of-phrase, “If the glove doesn’t fit, you must acquit”, really hit home. This is known as the rhyme-as-reason effect, a cognitive bias in which a saying or aphorism is judged as more accurate or truthful when it rhymes. Really it is not a logically watertight argument.  The glove may well have shrunk, and they cannot negate the overwhelming blood and trace evidence.

Fuhrman may have been a vile human being, but that doesn’t mean he could have conspired to frame Simpson. When he allegedly took the glove to Simpson’s house how did he know that Simpson didn’t have an alibi. I tend to be sceptical of conspiracies. In particular, in the case of OJ, the police seemed to fawn over him. But Cochran was able to sow the seeds of doubt:

“If you cannot trust the messenger, you can’t trust the message…”

Although Simpson was acquitted, his legal problems were far from over. He had to go back to court for a civil trial, and in February 1997 he was found liable for the wrongful deaths of Nicole Brown Simpson and Ronald Goldman, and ordered to pay their families $33.5 million in damages.

I find it rather surprising that after someone has been acquitted of a crime, they have to then go to a civil case. Why was this result was totally different? Firstly this was a civil case and you are not required to prove guilty beyond reasonable doubt just preponderance of the evidence. This evidence was presented to a whiter jury in Santa Monica. There was no Judge Ito and so the defence were kept on a tighter leash. And, unlike in the criminal trial, where he could invoke his Fifth Amendment rights, O.J. had to testify. He has been described as the worst witness ever, showing that the defence team had been right not to put him on the stand. Where is he now? He is currently in prison in Nevada, having been sentenced to 33 years for armed robbery of sports memorabilia, but he will be eligible for parole in 2017, when he is 70.

In 1996, 21 years after the trial, there must few people who seriously believe Simpson that did not kill Nicole and Ronald Goldman to death. Could such a defence, based on playing the race card, work again? I’m not sure. DNA is now more established. CSI had shown people the power of scientific medicine. But in the age of #blacklivesmatter you could imagine a black celebrity getting off again. There is a certain irony that this defence proved so successful – OJ actually did very little to help the African-American community. He may not have actually said “I’m not black – I’m O.J.”, but that’s how he seemed to live his life.

In the final episode of the TV series Darden angrily confronts Cochran:

This isn’t some civil rights milestone. Police in this country will keep arresting us, keep beating us, keep killing us. You haven’t changed anything for black people here. Unless, of course, you’re a famous, rich one in Brentwood.

I want to argue against seeing cases from one angle. You could look at this case from a domestic abuse perspective. In the end you have to look at the evidence. As I pointed out in my post about rape, you cannot look at this through the prism of the fact that only 10% of rapes result in conviction. The bottom line is that if you are on a jury, you should judge the evidence before you. Is the defendant guilty beyond reasonable doubt? But legal history shows us that this is almost impossible.


O.J. Simpson interview

May 1, 2016

Here is a 1998 interview withthe American sportscaster Chris Myers.


The aristocrats of crime

April 3, 2016

I have an unhealthy interest in con artists. There is something that draws me to these aristocrats of crime. I love the colourful language. For the practitioners we have such names as con man, swindler, grifter, swindler hustler, scam artist, flimflammer and mountebank. What do they do? The names of the tricks are also very evocative: Three-card Monte, The Magic Wallet, The Gold Brick, The Green Goods, Banco, The Big Store, The Wire, The Payoff and The Rag are just a few of the ways humans have found to deceive each other. Of course, these tricksters can destroy people’s lives, but there is something irresistible about them. I am not the only one, though, given the popularity of books and especially films about scams.

Such cons have been with us throughout history. Indeed other animals also engage in deceptive behaviour. There was a famous trick known as the Spanish Prisoner, which goes back until at least the 16th century. And although I haven’t looked into it, I’m sure the ancients must have had their scams.

The use of the term confidence man seems to go back to 19th century New York. Here is an extract from the “Police Intelligence” section of the New York Herald describing the arrest of one William Thompson:

For the last few months a man has been travelling about the city, known as the “Confidence Man,” that is, he would go up to a perfect stranger in the street, and being a man of genteel appearance, would easily command an interview. Upon this interview he would say after some little conversation, “have you confidence in me to trust me with your watch until to-morrow;” the stranger at this novel request, supposing him to be some old acquaintance not at that moment recollected, allows him to take the watch, thus placing “confidence” in the honesty of the stranger, who walks off laughing and the other supposing it to be a joke allows him so to do. In this way many have been duped, and the last that we recollect was a Mr. Thomas McDonald, of No. 276 Madison street, who, on the 12th of May last, was met by this “Confidence Man” in William Street, who, in the manner as above described, took from him a gold lever watch valued at $110; and yesterday, singularly enough, Mr. McDonald was passing along Liberty street, when who should he meet but the “Confidence Man” who had stolen his watch. Officer Swayse, of the Third Ward, being near at hand, took the accused into custody on the charge made by Mr. McDonald. The accused at first refused to go with the officer; but after finding the officer determined to take him, he walked along for a short distance, when he showed desperate fight, and it was not until the officer had tied his hands together that he was able to convey him to the police office. On the prisoner being taken before Justice McGrath, he was recognized as an old offender by the name of Wm. Thompson, and is said to be a graduate of the college at Sing Sing. The magistrate committed him to prison for a further hearing.

I bring all this up because have just finished reading The Confidence Game. The author Maria Konnikova does not set out to provide a definitive history of the con. And this is not an exhaustive taxonomy of all the possible confidence tricks. What it is is an exploration of the psychological principles behind the behaviour of confidence tricksters and their victims. The book itself is structured like a con. Here is Konnikova’s introduction:

From the artist’s perspective, it’s a question of identifying the victim (the put-up): who is he, what does he want, and how can I play on that desire to achieve what I want? It requires the creation of empathy and rapport (the play): an emotional foundation must be laid before any scheme is proposed, any game set in motion. Only then does it move to logic and persuasion (the rope): the scheme (the tale), the evidence and the way it will work to your benefit (the convincer), the show of actual profits. And like a fly caught in a spider’s web, the more we struggle, the less able to extricate ourselves we become (the breakdown). By the time things begin to look dicey, we tend to be so invested, emotionally and often physically, that we do most of the persuasion ourselves. We may even choose to up our involvement ourselves, even as things turn south (the send), so that by the time we’re completely fleeced (the touch), we don’t quite know what hit us. The con artist may not even need to convince us to stay quiet (the blow-off and fix); we are more likely than not to do so ourselves.

Who are the con artists? In an interview Konnikova said that one of the books that’s considered the con-artist bible is Dale Carnegie’s How to Win Friends and Influence People, a self-help classic. In fact, there is no definitive make-up, but the dark triad of psychopathy, narcissism and Machiavellianism tend to be important. The funny thing is that many of these people seem to be exceptionally talented and could have been successful in more legitimate fields. I don’t think it’s just about greed. There does seem to be some kind of power rush in being able to fool people and in getting them to do what you want.

What about the victims? I like to think of myself as a sceptic, but it is a big mistake to think that we are immune to such trickery. One factor is trust. Generally, as I pointed out in a previous post, trust is an important ingredient for successful societies, but with con artists, we can come unstuck. We also like to think we are above average. Other people will be fooled, but not us. We have a positivity bias, a belief in our own exceptionalism. We will come out on top in the end. We deserve a break. Confirmation bias, the tendency to search for or interpret information in a way that confirms our preconceptions plays a big part in victimology. And then we have cognitive dissonance the desire to avoid holding two contradictory ideas simultaneously. Of course we could change our attitudes, beliefs, and behaviours, but this can be too painful, so instead we try to justify or rationalise them. Ultimately very few con artists actually end up in court – the victims are often too embarrassed to come forward.

The book has a cast of characters. Some of them are old favourites: Bernie Madoff, who was the biggest Ponzi scheme in history, Frank Abagnale, who was played by Leonardo Di Caprio in Catch Me If You Can, and Victor Lustig who twice sold the Eiffel Tower to unwitting investors.

There were others I hadn’t heard of, though. Here is my selection:

Ferdinand Waldo Demara Jr.

Demara almost makes Frank Abagnale look like an amateur. Under a series of stolen identities Demara worked as a civil engineer, a doctor of applied psychology, a child-care expert, a cancer researcher, an assistant prison warden, a philosophy dean at a Pennsylvania college and  both a Trappist and Benedictine monk. But his greatest hit was as a doctor on a Royal Canadian Navy Destroyer during the Korean War. Demara who had a prodigious IQ and a photographic memory went into quarters with a medical textbook to do a bit of cramming. Yet, he somehow managed to save the lives of all of the men, including performing major chest surgery. The ensuing fame made it hard to keep on fooling people. There was a biography, The Great Imposter, followed by a film of the same name, with Tony Curtis in the eponymous role. He even managed to con the author of his biography, Robert Crichton.

Samantha Lyndell Azzopardi

In 2010 she appeared as Dakota Johnson (this alias was based on an American  actress who would later go on to star in the movie Fifty Shades of Grey) in a Brisbane police station claiming that she was fourteen and had been sexually abused by a relative. She was given shelter and food.  She told her support group that all she wanted was to go back to school and finish her education, just like any normal teen. On further investigation the police discovered that Azzopardi was already wanted for identity fraud in Queensland. She was charged with two counts of false representation, one count of intention to forge documents, and one count of contravening directions. She was convicted, but her sentence was just a five-hundred-dollar fine. She continued her alternative and it was in 2013 that she ended up in Dublin.  This young Australian woman led the Garda to believe, for a time, that she was a vulnerable teenager a victim of human trafficking. In reality she was now 25 years old with a history of more that forty false identities in her past. This was not the end of her exploits. The following year she appeared in Canada under another name. The “success” of Azzopardi is for Konnikova an illustration of the power of a good story.

Oscar Hartzell, (1876–1943)

This American con man managed to persuade many people in North America to join him in a fraudulent lawsuit against the British government for a share of the fortune of Sir Francis Drake. He hit upon the scam in 1915 after a couple of small-time grifters tried to convince him to part with his money. They had promised that they could turn his mother’s $6000 into a cool $6 million. Hartxell, however, had bigger plans. Claiming to be distant relative of the legendary seaman/pirate/hero, Hartzell got in touch with Iowans who had the surname Drake. He told them that the estate of Sir Francis had never been paid to the heirs. Having gathered interest for over three centuries, it was now worth $100 billion. As well as $500 for every dollar they invested in the scheme, the inheritance would include the whole city of Plymouth in England. In 1924 he set himself up in London in order, he claimed, to carry out negotiations with the British government. The curious thing about the scam is that the victims continued believing him, thwarting attempts by the Iowa state legislature to act. This refusal to accept reality continued even after the UK Home Office informed the American embassy that there was no unclaimed Sir Francis Drake estate, and an FBI investigation confirmed that Drake’s wife had inherited his estate in 1597.

Sylvia Mitchell

Fake psychic is a tautology. Nevertheless, Mitchell is an example of the worst of this “profession” One client, Debra Saalfield, was feeling particularly vulnerable when she saw Mitchell – she had just lost her job as a ballroom-dancing instructor and a boyfriend. Mitchell told her that she had been an ancient Egyptian princess in a past life and that her problems stemmed from having been too attached to money in her royal life in ancient Egypt. The solution would be to experiment parting with that money. Saalfield wrote a cheque for $27,000. She did not get it back. Mitchell was convicted of conning clients for tens of thousands of dollars, and in November 2013 she was sentenced to 5 to 15 years in prison.