Taking credit or blame for the future

Because Valentine's Day occurs this month, and I love the law (most of the time), love requires honesty. I publicly state what I thought when I was practicing law, and what I knew for certain when I became a judge so many decades ago: Judges are not always knowledgeable. This is not an indictment, but an acknowledgment that we decide cases involving a myriad of subjects, about which we know... nothing. Through motions and evidence, we acquire the knowledge it takes to correctly, we hope, apply the law. Judges are perpetual students. Attorneys, who write briefs, motions and arguments for them to read and to hear, are teachers. Whether admitted or not, everyone in our profession knows this. And the peculiar nature of this relationship is that the students, the judges, have all the power.

Eons ago, when I was a college student, it appeared to me that students were true pupils, and their professors were, in fact, the teachers. Often the teachers imparted "knowledge" and, on occasion, wisdom to their guileless students. But of more consequence from the student's perspective, was the teacher's power to determine the student's destiny. Recent conversations I have had with professor friends lead me to believe the student-professor relationship has undergone a radical transformation. This subject we will explore in a future column.

Judges are sophisticated students (we hope), but they are not the last word. We have in our system an appellate mechanism to "correct errors." But no matter what the particular profession, perfection is beyond human reach. The more we learn, the more we learn how much more there is to learn.

Judges, lawyers and all those who are called "professionals" bear the burden of expertise. We carry a mantle of authority that creates an expectation of competence in those who rely on our expertise. We make mistakes and can only guess what might happen in the future. Reversals and negligence actions may determine to what extent we are responsible for future events. It is easy to take credit for guessing right, but often painful when wrong.

A friend of mine Dr. Joye Weisel-Barth is a psychologist-psychoanalyst. I have written about her in past columns. She is well-respected in her field and writes in a clear, compelling prose accessible to the lay reader. A few months ago, she delivered a paper titled "Bad Faith and Analytic Failure" at the annual meeting of the Psychoanalytic Institute in New York. It will soon be published in The Journal of Psychoanalytic Inquiry.

Dr. Barth relates the story of one of her patients years ago when she was a new practicing psychologist, a story which to this day haunts her. It is not my purpose here to explore Dr. Barth's discussion of psychoanalytic snares, and how the existential concept of bad faith may adversely affect the patient-analyst relationship. The story, however, and its effect on Dr. Barth bears a striking similarity to what judges and lawyers, and most everyone, experiences, how our decisions affect us and others. But we who have titles as professionals are expected to have the right answers.

In those early years of her career as a psychologist, Dr. Barth treated a 17-year-old, David. Like many practitioners then and now, her office was a separate studio with a private entrance in her home. David's mother was a professor of philosophy, and David was the "accident" of a sexual encounter in the "California commune culture of the 60s." The father? Who knows? David's mother was not sure. She and her successful boyfriend were interested in David, but did not have adequate time to devote to him. His older sister was brilliant, and David felt like a neglected child.

David suffered from social isolation, lacked motivation, had poor grades, and spent time alone in his room smoking dope. Dr. Barth seemed to making progress with David. As the therapy progressed, David got a job, made friends, and thought about his family relationships. He was happy and looking forward to spending Christmas, only two days away, at his grandmother's. He brought two gifts to Dr. Barth, a box of candy and a marijuana plant in a small red pot.

Dr. Barth expressed her appreciation for the gifts, but told David she could not accept the marijuana. Possession was a crime then, and Dr. Barth did not want her young children exposed to drugs. She tried to explain that to David. He seemed disappointed. Nevertheless, he left the plant on the doorstep where her young son found it and knew what it was. Dr. Barth writes, "I don't think he's ever been more impressed with my work than at that moment." Dr. Barth looked forward to future sessions where she could work things out with David.

What Dr. Barth found out later from the mother's boyfriend, and later from David in his jail cell, was this harrowing turn of events. Early Christmas morning David had an "awful argument" which ended with his mother and sister leaving for the grandmother's holiday party without him. He was left home alone with the Christmas gift his mother left him, a rifle and ammunition. Looks like the mother also needed therapy. On the mother and sister's return from the party, David shot the mother and watched her body twitching on the floor before she died. His sister gave him money and the car keys and "urged" him to drive to Mexico. He drove a few blocks and then returned and killed his sister because she had been a witness. Dr. Barth visited David in jail and was horrified by his "emotionally barren and self-justifying account of the murders."

Dr. Barth sees her treatment as a "therapeutic failure." She blames herself for her revulsion of how the crimes were committed and her refusal or inability to deal "honestly with the affective therapeutic issues." She concludes her revulsion at David's brutal act and her desire to never see him again were violations of her therapeutic agreement with him "to deal honestly with the affective therapeutic issues: Bad Faith!"

From my perspective as a layperson, I think Dr. Barth may be too hard on herself. To what extent can a professional be so detached from her or his own emotions to always maintain professional detachment? Criminal defense lawyers constantly face this question. The practitioner is also human. In Dr. Barth's case, I wonder to what extent her rejection of the marijuana plant is a significant factor in her misgivings about her relationship with David. Is it possible there is, however weak, a causal connection?

Dr. Barth's paper brought back a memory of a case that still haunts me when I was a young municipal court judge. Appearing before me was a young mother charged with neglecting to protect her four-year-old daughter from her abusive husband.

Young Judge Gilbert did not impose jail time, but gently cautioned, or was it lectured her(?), on the importance of protecting her child. She smiled, thanked me, and promised to do all in her power to protect her child.

I felt good at how I handled the case, perhaps a bit smug. A month or so later she appeared in front of me again, this time to have her misdemeanor case dismissed. Why? Because she had just been arraigned on a felony for the murder of her husband. As she looked "up" at me from the lectern where she stood with her attorney, she smiled with what I sensed was pride. Was she telling me, "See, I did what you asked. I protected my daughter"?

I realize I may be placing too much importance on how I felt and what I said to this defendant. Like Dr. Barth this event in my professional past still haunts me. But it opens for reflection and discussion to what extent an incident, a moment in our past, is significant within the endless chain of what we think is cause and effect. Is there more than a hint of self-importance even in the admission of what we perceive may be a failure?

It all comes down to the unanswerable question of where notions of cause and effect lead and where it ultimately takes us. Are our decisions and actions a significant factor in a perceived chain of cause and effect, or is this just an imaginary construct? We do something and what happens later may have nothing to do with an earlier event.

I hope to explore this dilemma in future columns, but for the time being I suggest we do the best we can and approach our decisions thoughtfully and with a great deal of humility. 