Examining the insanity defense, MSNBC’s weekend sleaze, and suing OPEC

By Steven Brill
March 20, 2012

1. The Afghan massacre and the insanity defense:

Beginning late last week we began to see the outlines of a possible defense for Robert Bales, the army sergeant who allegedly massacred 16 Afghan civilians earlier this month: insanity or diminished capacity. “When it all comes out, it will be a combination of stress, alcohol and domestic issues — he just snapped,” a “senior American official” told the New York Times. So, it’s time for a general review of the tough-to-pull-off insanity or diminished capacity defenses, along with a focus on the even higher hurdles involved in using either in a court-martial. (An insanity defense is a plea of not guilty by reason of insanity; diminished capacity means the defendant does not contest guilt but seeks to be convicted of a lesser offense or get a more lenient sentence.) That story should also tell us how much Bales’s defense lawyer might be able to turn the case into a trial over increasingly controversial Pentagon policies related to multiple redeployments, the treatment of traumatic head injuries and post-traumatic stress disorder. Good sidebars would tell us whether Afghanistan, whose Parliament is still demanding that Bales be tried in Afghan courts, even allows an insanity defense, and how open the trial is likely to be, including to cameras.

Years ago, I wrote a piece for Psychology Today about the insanity defense that was keyed to the case of John Hinckley, whose lawyers used it successfully after he tried to kill President Reagan. It presents a fascinating legal dilemma, which in its oversimplified version is: The more outrageous your crime, the better your argument that you had to be insane to do it, but the more likely it is that jurors will be so angry that they’ll want to hang you for it anyway.

2. The numbers behind MSNBC’s weekend sleaze-fests:

Can one of the media trade publications or a New York Times, Wall Street Journal, or Reuters media reporter please do a story explaining why it makes sense for MSNBC to do a series of sleazy shows — Lockup, Sex Slaves, Caught on Camera — during the evening and in prime time on weekends? Last Saturday night, while CNN was doing a riveting, important report entitled, 72 Hours Under Fire, about the massacre of dissidents in Syria as witnessed by its gutsy reporting team, MSNBC was broadcasting Lockup: Boston, one of its stable of Lockup shows depicting life inside prisons that has all the journalistic value of rubbernecking at a car accident.

Do the ratings justify undercutting the much-promoted MSNBC brand — “The Place for Politics” — this way, especially during a time when there is all kinds of news breaking out over the weekends related to the Republican primaries and conflicts in the Middle East? How do the expense and revenue numbers add up? Why wouldn’t running shows akin to MSNBC’s new crop of weekend morning political shows, with Chris Hayes and Melissa Harris Perry, make more sense? Why do advertisers like Liberty Mutual run spots on this Lockup garbage? What does Brian Roberts, the chairman and CEO of Comcast, which now owns MSNBC, have to say about all of this? It’s not simply a matter of the taste and civic values associated with a news organization, though I’d love to hear Roberts and his colleagues discuss that. I’m also curious about the simple cost-benefit analysis of undercutting a brand this way; it could be a good window on the economics of cable-TV news.

3. Sue the oil cartel?

I’ve always wondered what’s prevented the attorney general or some ambitious plaintiffs’ lawyer from bringing the mother of antitrust suits — against OPEC, the self-proclaimed oil cartel, which routinely and unabashedly controls prices by agreeing on production quotas. The oil ministers conduct their price-fixing meetings outside the United States, but offshore price-fixing conspiracies involving various products from chemical food additives to steel tubing have been successfully busted before.

An American law called the Foreign Sovereign Immunities Act generally protects sovereign countries from being sued in our courts, and in this case the price-fixers are ostensibly their countries’ oil ministers acting in their official capacities. (OPEC is an acronym for Organization of the Petroleum Exporting Countries.) But I’d love to see a piece exploring: whether a case can be made that when governments act as commercial entities to fix prices in the marketplace, they are within the jurisdiction of American law and squarely within the intent of antitrust law — and outside the protection of sovereign immunity; whether the oil companies that participate in, or at least benefit from, the cartel can be sued even if the countries can’t; and, most important, why our president and his attorney general haven’t raced up to Capitol Hill demanding that the sovereign immunity law be changed to clear an easy path for suits against OPEC. After all, it’s just a statute. Why would any member of Congress, Democrat or Republican, be against amending it for this narrow but enormously significant purpose?

That kind of amendment to the sovereign immunities law was actually passed by the House of Representatives in 2008, and the idea of suing OPEC became popular at the time among some law professors and editorial writers. But the bill was killed by Republicans in the Senate because Bush administration officials opposed it, saying they feared it would lead the OPEC countries to reduce supplies to U.S. oil refiners. But why wouldn’t that kind of cartel retaliation simply lead to more damages being assessed against those countries by an American court, which would likely be able to assert jurisdiction over OPEC country assets in the United States, a jurisdiction that could be used to collect those damages?

Does the Obama administration, in the midst of an election battle in which the price at the pump has become a major issue, have the same position as the Bush team did four years ago? Would Republicans still oppose it? Someone ought to ask.

4. China mystery:

Here’s a pregnant paragraph from a New York Times story last week about that fall of Bo Xila, the mayor of the Chinese city of Chongqing and a high-profile corruption-fighter who had been touted as likely to become one of the seven members of the country’s ruling Politburo until his police chief became enmeshed in a scandal:

Mr. Bo’s troubles began last month when his handpicked police chief, Wang Lijun, sought refuge in the United States Consulate in Chengdu, about 210 miles from Chongqing. Mr. Wang, who had come under scrutiny in a corruption inquiry, spent the night in the consulate before being escorted to Beijing by security officials. He was also removed from his post, according to state media.

Did the police chief change his mind about seeking asylum? If so, what happened inside the American consulate that encouraged him to do so? Or did we turn him over to the Chinese? How did the State Department handle this situation, and who was involved in these decisions?

PHOTO: Staff Sgt. Robert Bales (L) is seen during an exercise at the National Training Center in Fort Irwin, California, in this August 23, 2011 DVIDS handout photo. REUTERS/Department of Defense/Spc. Ryan Hallock/Handout

8 comments

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Wang was handed over to the Chinese by the consulate. The consulate said you can’t claim assylum at consulates.

I know an embassy is sovereign territory, but what about a consulate?

BTW re Sgt Bales ‘he just snapped’ won’t cut it. The man did not go beserk and start shooting randomly. If he did the dead would be his comrades. He deliberately snuck himself and his weapons out and pursued Afghans in order to kill them.

This looks more like revenge than anything. Far more interesting would be an investigation into Afghan reports of multiple soldiers being involved.

Posted by Dafydd | Report as abusive

In defense of “Lock-Up”, I am not an avid viewer but will catch a few minutes here and there. I think it’s value in terms of the intent of the show can split the line between prurient and fascinating, but I do think one value of the program is that it gives us a look at the prison system goliath we have built with a smattering of serious criminals surrounded by non-violent drug offenders, the latter who are undoubtedly toughened up, made more sophisticated and most likely due to their circumstances, easily tempted into the actual side of crime that hurts people upon their release.

In many ways, not sure how intentionally, Lock-Up really does bring that reality home in vivid ways for the viewer.

Posted by ChevalierMalFet | Report as abusive

MSNBC lost all credibility as a news organization when they hired Keith Oldermann.

Posted by LordOfTime | Report as abusive

Its like you read my mind! You appear to know a lot about this, like you wrote the book in it or something. I think that you could do with some pics to drive the message home a bit, but instead of that, this is great blog. An excellent read. I’ll certainly be back.

Posted by rohail | Report as abusive

OPEC is not the player on the world oil market it was in the 20th century. We have Russia, Black Sea, Alaska that have severely lessened their influence. The implication they have substantial impact (or even cohesion within their own cartel) is exaggerated. A disruption from them is no more than a disruption from any other source. Saudi alone has a greater impact. Pure lip service from politicians. OPEC certainly doesn’t set the price. That’s done by speculators on the spot market. There is not a professional or country in the industry who would not be happy with 90 or 100 a barrel.

Posted by BakoD | Report as abusive

After a week of worrying in print what will be the best defense for Sgt. Bales – still waiting for ANY American newspaper to take the time to list the names of the dead.

Or do I misunderstand priorities in the United States?

Posted by Eideard | Report as abusive

I spent more than a decade in prison. I don’t see anything new on these types of shows or programs, although it may be useful to the ordinary citizen. Most of these felons are guilty, though some may actually be innocent or wrongfully convicted even if guilty. Sometimes a man may be sentenced to a lesser crime but should have been sentenced to a higher. These types of convictions could allow a man to be set free earlier to commit further crimes. But our criminal justice system is not perfect and is overburdened as is the prison system. Legalizing certain acts may lower the burdens upon the system but that does not mean our problems will go away. The National Prohibition Act was repealed in 1933 but today thousands are either injured or killed by inebriated individuals.

Posted by opuntia | Report as abusive

Steve, you’re just noticing MSNBC? While other news stations report news, or issue bulletins, MSNBC displays prison sentences. Perhaps MSNBC is merely explaining its concept of the news.

Posted by geesam47 | Report as abusive