When does someone who's selling services as a "psychic" deserve to be prosecuted for committing a crime?

In NYC, the government prosecuted a fortune teller — Sylvia Mitchell, 39 — who worked in some storefront in Greenwich Village. The jury convicted her and she could be sentenced to as much as 15 years in prison. The charges were larceny and a scheme to defraud.

During a weeklong trial, prosecutors portrayed Ms. Mitchell as a clever swindler who preyed on distraught people, promising them that she could alleviate their troubles through prayer and meditation to remove what she called “negative energy” and rectify problems that arose from their “past lives.”

In my book, this is entertainment and unconventional psychological therapy. Let the buyer beware. Who's dumb enough to actually believe this? Should the government endeavor to protect everyone who succumbs to the temptation to blow a few bucks on a fortune teller? But this was a case where there were a couple victims who somehow had enough money to make their losses nontrivial. One woman gave Mitchell $27,000 in what was portrayed as an "exercise in letting go of money." Another put $18,000 in a jar as a way to relieve herself of "negative energy."

Both women admitted on the stand under cross-examination that they were deeply skeptical of Ms. Mitchell’s techniques, but paid her anyway, suggesting that they were never tricked into thinking the psychic had the power to better their lives, [Mitchell's lawyer] said.

But an assistant district attorney, James Bergamo, described Ms. Mitchell as an expert at discovering people’s vulnerabilities and scaring them into handing over their cash. It mattered little, he argued in his summation, if Ms. Mitchell’s clients believed what she said about their past lives or negative spirits: the important fact was that they believed she would return their money. “The facts scream scam,” he said.

In Stupid World, no one can hear facts screaming. 

Here's the classic U.S. Supreme Court case on when unbelievable beliefs can form the basis for a criminal prosecution for fraud: United States v. Ballard. The majority opinion — written by William O. Douglas — says the question needs to be whether the criminal defendant actually believed his own bullshit. (The defendants were faith healers.)

Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. Many take their gospel from the New Testament. But it would hardly be supposed that they could be tried before a jury charged with the duty of determining whether those teachings contained false representations. The miracles of the New Testament, the Divinity of Christ, life after death, the power of prayer are deep in the religious convictions of many. If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom. The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man's relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views. The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain.

Justice Jackson, dissenting, thought it was wrong even to ask whether the defendant believes his own purported beliefs. I'm wracking my brain for a judicial opinion I love more than what Jackson says here, and I can't think of one, so let me give you the whole thing, replete with my boldface and commentary:

I should say the defendants have done just that for which they are indicted. If I might agree to their conviction without creating a precedent, I cheerfully would do so. I can see in their teachings nothing but humbug, untainted by any trace of truth. But that does not dispose of the constitutional question whether misrepresentation of religious experience or belief is prosecutable; it rather emphasizes the danger of such prosecutions.

Jackson confesses to the temptation to jump to what feels like the right outcome in this case, but he pulls back into the proper judicial role of following rules that should apply across the board.

The Ballard family claimed miraculous communication with the spirit world and supernatural power to heal the sick. They were brought to trial for mail fraud on an indictment which charged that their representations were false and that they 'well knew' they were false. The trial judge, obviously troubled, ruled that the court could not try whether the statements were untrue, but could inquire whether the defendants knew them to be untrue; and, if so, they could be convicted.

I find it difficult to reconcile this conclusion with our traditional religious freedoms.

In the first place, as a matter of either practice or philosophy I do not see how we can separate an issue as to what is believed from considerations as to what is believable. The most convincing proof that one believes his statements is to show that they have been true in his experience. Likewise, that one knowingly falsified is best proved by showing that what he said happened never did happen. How can the Government prove these persons knew something to be false which it cannot prove to be false? If we try religious sincerity severed from religious verity, we isolate the dispute from the very considerations which in common experience provide its most reliable answer.

In the second place, any inquiry into intellectual honesty in religion raises profound psychological problems. William James, who wrote on these matters as a scientist, reminds us that it is not theology and ceremonies which keep religion going. Its vitality is in the religious experiences of many people. 'If you ask what these experiences are, they are conversations with the unseen, voices and visions, responses to prayer, changes of heart, deliverances from fear, inflowings of help, assurances of support, whenever certain persons set their own internal attitude in certain appropriate ways.' 

The quote, the footnote says, can be found in James's "Collected Essays and Reviews," and Jackson would also like us to read James's "Varieties of Religious Experience" and "The Will to Believe" as well as Burton's (delightfully titled) "Heyday of a Wizzard." (Those last 2 links will get you to free Kindle editions.)

If religious liberty includes, as it must, the right to communicate such experiences to others, it seems to me an impossible task for juries to separate fancied ones from real ones, dreams from happenings, and hallucinations from true clairvoyance. Such experiences, like some tones and colors, have existence for one, but none at all for another. They cannot be verified to the minds of those whose field of consciousness does not include religious insight. When one comes to trial which turns on any aspect of religious belief or representation, unbelievers among his judges are likely not to understand and are almost certain not to believe him.

And then I do not know what degree of skepticism or disbelief in a religious representation amounts to actionable fraud. James points out that 'Faith means belief in something concerning which doubt is theoretically possible.' 

The quote is from "The Will to Belief."

Belief in what one may demonstrate to the senses is not faith. All schools of religious thought make enormous assumptions, generally on the basis of revelations authenticated by some sign or miracle. The appeal in such matters is to a very different plane of credulity than is invoked by representations of secular fact in commerce. Some who profess belief in the Bible read literally what others read as allegory or metaphor, as they read Aesop's fables. Religious symbolism is even used by some with the same mental reservations one has in teaching of Santa Claus or Uncle Sam or Easter bunnies or dispassionate judges. 

That's the best subtly-tucked-away little joke in all of the Supreme Court reporters: dispassionate judges. 

It is hard in matters so mystical to say how literally one is bound to believe the doctrine he teaches and even more difficult to say how far it is reliance upon a teacher's literal belief which induces followers to give him money.

There appear to be persons—let us hope not many—who find refreshment and courage in the teachings of the 'I Am' cult. If the members of the sect get comfort from the celestial guidance of their 'Saint Germain,' however doubtful it seems to me, it is hard to say that they do not get what they pay for. Scores of sects flourish in this country by teaching what to me are queer notions. It is plain that there is wide variety in American religious taste. The Ballards are not alone in catering to it with a pretty dubious product.

You see what the danger is: discrimination against little-known and little-appreciated religions. If you start going after the scams, when will you stop? It is better not to start at all. Leave them all alone.

The chief wrong which false prophets do to their following is not financial. The collections aggregate a tempting total, but individual payments are not ruinous. I doubt if the vigilance of the law is equal to making money stick by over-credulous people. But the real harm is on the mental and spiritual plane. There are those who hunger and thirst after higher values which they feel wanting in their humdrum lives. They live in mental confusion or moral anarchy and seek vaguely for truth and beauty and moral support. When they are deluded and then disillusioned, cynicism and confusion follow. The wrong of these things, as I see it, is not in the money the victims part with half so much as in the mental and spiritual poison they get. But that is precisely the thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.

Prosecutions of this character easily could degenerate into religious persecution. I do not doubt that religious leaders may be convicted of fraud for making false representations on matters other than faith or experience, as for example if one represents that funds are being used to construct a church when in fact they are being used for personal purposes. But that is not this case, which reaches into wholly dangerous ground. When does less than full belief in a professed credo become actionable fraud if one is soliciting gifts or legacies? Such inquiries may discomfort orthodox as well as unconventional religious teachers, for even the most regular of them are sometimes accused of taking their orthodoxy with a grain of salt.

I would dismiss the indictment and have done with this business of judicially examining other people's faiths.

He's right.

"An undercover NYPD detective, afraid of blowing his cover, watched a frothing motorcycle mob terrorize a defenseless Manhattan dad..."

"The off-duty officer was one of two detectives riding Sunday with the two-wheeled thugs who yanked Alexian Lien from his Range Rover and inflicted a beatdown near W. 178th St. in front of the driver’s family...."

"'What happened today was not credible,' were the stunned and wooden words of Tom Clancy..."

A line on page 4 of the Martin Amis book "The Second Plane/September 11: Terror and Boredom," which I began rereading last night.

Tom Clancy died last Tuesday, and I did not blog about it, because I don't blog every obituary and because I've never read (or felt motivated to read) a Tom Clancy book. It doesn't mean anything — of course, I'm not superstitious — that I'd never taken an interest in Clancy and then I run into his name on the second page of the first essay in a book I happened to take down from the shelf for no apparent reason — was it on Tuesday?

I took the book off the shelf and immediately saw something I'd written inside the back cover. I didn't remember getting this idea, but I could recognize it as my own thinking and knew that something in the book had inspired me to think that. Because my graphomania extends to marginalia — as the first post on this blog attests — I'm able to find the place in the text that inspired the back-of-the-book notes.

First, I'll show you the Amis text (with my marginalia). It's on pages 13 and 14:




Now, I'll let you read my notes:

The Althouse Amazon portal: where you can take a closer look.

By using the Althouse portal, you can buy things you want and – while paying nothing extra – make a contribution to this blog. We notice. We appreciate it. And only if you waive you unalienable right to be astounded and shocked will we know it's you.

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and

"Men on Strike: Why Men Are Boycotting Marriage, Fatherhood, and the American Dream - and Why It Matters" [Kindle Edition]
Helen Smith (Author)

"Mother of the Chinese baby flushed down the toilet says she was abandoned by the boy's father..."

"... after their one night stand and could not afford an abortion."

This case is getting a lot of attention because of the vivid details seen in photographs, but realize that it's the seen part of something much larger and mostly unseen:

There are frequent reports in Chinese media of babies being abandoned often shortly after birth, a problem attributed variously to young mothers unaware they were pregnant, the birth of an unwanted girl in a society which puts greater value on boys or China’s strict family planning rules.

Mimolette cheese can't possibly meet the FDA's target of no more than 6 cheese mites per inch.

"Cheese mites are microscopic little bugs that live on the surfaces of aged cheeses, munching the microscopic molds that grow there. For many aged cheeses, they're something of an industry nuisance, gently brushed off the cheeses. But for Mimolette, a bright orange French cheese, they're actually encouraged."

French cheeses sing out in protest against U.S. government regulation:



ADDED: Is there some reason why we should be more upset about microscopic insects than we are with microscopic bacteria? From Bill Bryson's (delightful!) book "At Home: A Short History of Private Life":

Your bed alone, if it is averagely clean, averagely old, averagely dimensioned, and turned averagely often (which is to say almost never) is likely to be home to some two million tiny bed mites, too small to be seen with the naked eye but unquestionably there. It has been calculated that if your pillow is six years old (which is the average age for a pillow), one-tenth of its weight will be made up of sloughed skin, living and dead mites, and mite dung—or frass, as it is known to entomologists....

If you had the right equipment and a peculiar measure of motivation, you could find numberless millions of dinky creatures living with you—vast tribes of isopods, pleopods, endopodites, myriapods, chilopods, pauropods, and other all-but-invisible specks. Some of these little creatures are practically ineradicable. An insect named Niptus hololeucus has been found living in cayenne pepper and in the cork stoppers of cyanide bottles. Some, like flour mites and cheese mites, dine with you pretty regularly.

Move down to the next level of living things, to the world of microbes, and the numbers swell beyond counting. Your skin alone is home to about a trillion bacteria. Inside you are many thousands of trillions more, many of them engaged in necessary and helpful tasks like breaking down food in the gut. Altogether you hold about a hundred quadrillion bacterial cells in your body. If you took them out and put them in a pile, they would weigh about four pounds....

"But I understand why my readers suspect me, and other pro-choice mainstream journalists, of being selective..."

"... of not wanting to cover the story because it showcased the ugliest possibilities of abortion rights. The truth is that most of us tend to be less interested in sick-making stories — if the sick-making was done by 'our side.'" 

Says Megan McArdle. She rejects the excuse that it's not a national issue — that murder is a matter for state law. I would say that there are plenty of general policy issues you can extract from that story — at least as many as we get from the Newtown murders and the George Zimmerman case (to name 2 stories that have received massive national press).

The linked piece dithers, but I think it's a confession that she just didn't want to have to think about it. It was squeamishness and a political commitment to abortion rights that she didn't want rumpled.

Let's talk about the morality of the seen and the unseen. This is a shallow morality that infects our lives. If the human entity is inside the womb, and it is cut into pieces that is one thing, but if it's "partially born" so that a nurse sees it clenching and unclenching its fists as it meets its demise, it's another. And if it slips entirely out, and everyone sees a living child and then the doctor severs its spine, then everyone is supposed to know it's murder. From the inside, these deaths are all the same. But no one sees from the inside of that now-dead brain. Why not shine a bright light on Kermit Gosnell and yell monster? Make it clear to everyone that you think he is so different from properly professional abortionists.

If you don't, you reveal that you have a nagging suspicion that he is not. And that's the one thing you don't want anyone to see.

IN THE COMMENTS: Matthew Sablan says:

The thing is, you don't even have to frame the story about abortion. I fully acknowledge Gosnell is probably not what most abortion providers do. It needs to be framed as another example of how the state failed to protect its people.

I respond:

I agree that's the way those who support abortion rights should cover it. But why did they not jump at the opportunity to display so vividly that health care services to the poor (or to women) are not what they should be and no one cares?

They didn't want to risk that. There's a deep fear — true shame — about this other matter that I'm talking about. 

"Why Dr. Kermit Gosnell's Trial Should Be a Front-Page Story."

"The dead babies. The exploited women. The racism. The numerous governmental failures. It is thoroughly newsworthy."

"Bureaucratic inertia is not exactly news. We understand that," [says the grand jury report]. "But we think this was something more. We think the reason no one acted is because the women in question were poor and of color, because the victims were infants without identities, and because the subject was the political football of abortion."...

Is it even conceivable that an optometrist who attended to his white patients in a clean office while an intern took care of the black patients in a filthy room wouldn't make national headlines?

But it isn't even solely a story of a rogue clinic that's awful in all sorts of sensational ways either. Multiple local and state agencies are implicated in an oversight failure that is epic in proportions! If I were a city editor for any Philadelphia newspaper the grand jury report would suggest a dozen major investigative projects I could undertake if I had the staff to support them....

That's Conor Friedersdorf at The Atlantic, challenging the news media to explain their noncoverage.

"Thunderstorms contain 'dark lightning,' invisible pulses of powerful radiation."

News flash.

"Occasionally a line of gray cars crawls along an invisible track, gives out a ghastly creak, and comes to rest..."

"... and immediately the ash-gray men swarm up with leaden spades and stir up an impenetrable cloud, which screens their obscure operations from your sight."

Yesterday, I told you I'd heard myself mutter "ah, there's a great gatsby sentence," and I'd wondered if I'd said "a 'Great Gatsby' sentence" or "a great 'Gatsby' sentence." I told you it was a doozy... a daisy. And now, it's today, and that's the sentence. Isn't it quite something?

A spooky gray, ghastly, ash-gray, swarming, leaden, impenetrable, obscure thing happens. We see... that we can't see it. It's invisible, out of sight, obscure,  screened, clouded, and impenetrable. So much about unseen sights and the one — only one — sound, a ghastly creak. What's going on? It's an operation, done with shovels. An obscure operation.

Occasionally an Obscure Operation. You can use that for the title of your next novel.