JUDGING CRIMES

Yale law professor Akhil Reed Amar, among the most brilliant of modern constitutional scholars, published an article examining an obscure case called Flippo v. West Virginia, in which a preacher with money problems insured his wife's life for $100,000.  Less than two months later, the Rev. Flippo called 911 to report that an intruder had broken into the remote cabin where he and his wife had gone for a romantic getaway weekend.  In the words of the West Virginia Supreme Court of Appeals, the deputy sheriff who responded to the call "observed that Mrs. Flippo's skull was opened and her brain matter was exposed."

The United States Supreme Court, without the benefit of briefing or argument, unanimously reversed the state court's decision upholding Rev. Flippo's conviction on the ground that the fourth amendment required the suppression of a couple photos removed from the preacher's briefcase without a warrant.  The photographs were apparently innocuous; their relevance was, so far as I can tell, to show that Rev. Flippo had been at the scene several days before the murder, contradicting his story to police. 

(The defense claimed the photos were introduced to suggest Rev. Flippo had a gay lover, but the West Virginia court said the photos "show neither any nudity nor are they in any manner or fashion sexually explicit or suggestive, nor are they in any manner reasonably susceptible to any such interpretation."   Rev. Flippo apparently did have a lover, but the prosecution was prevented from introducing direct evidence on the point.  Nonetheless, the jury might well have guessed as much from such tidbits as the fact that Mrs. Flippo moved from her accustomed church pew and her place was taken by the apparent lover.)

In the course of discussing Flippo, Professor Amar makes this point:

Many prominent criminal procedure cases have involved men who have killed or raped women or girls.  See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966); Coolidge v. New Hampshire, 403 U.S. 443 (1971); Michigan v. Tucker, 417 U.S. 433 (1974); Brewer v. Williams, 430 U.S. 387 (1977); New York v. Quarles, 467 U.S. 649 (1984); Massachusetts v. Sheppard, 468 U.S. 981 (1984); Vasquez v. Hillery, 474 U.S. 254 (1986).

Not all of these cases resulted in the freeing of the male.  (Rev. Flippo's conviction was eventually upheld, for example.)  But several were landmark cases expanding (or, if you prefer, recognizing) the constitutional right of criminal defendants to conceal from their juries evidence of undoubted relevance to the decision the juries were called upon to make.  In other words, the Court redefined the Constitution to the benefit of men who attacked women. 

By overturning convictions  for reasons unrelated to the question of factual guilt, the Court effectively ruled that some men who were actually guilty - including some of the defendants in the listed cases, and all defendants in cases raising similar issues in the future - could not be convicted for attacking women and girls. 

Professor Amar could have included many other cases in his list, including Griffin v. California.  In that case a man named Eddie, in an act of misplaced generosity, gave Griffin a place to stay.  During the night Eddie's wife Essie Mae got up to go to the bathroom and Griffin tried to rape her.  Eddie ejected Griffin from the apartment.  Griffin then broke a window, trying to break in.  Eddie again showed him out.  But then Griffin beat up Eddie, and Eddie went to get help.  By the time he returned to the apartment, both Griffin and Essie Mae were gone.  You have to read the lower court opinion to find out what happened next - the U.S. Supreme Court simply leaves out this part:

About seven o'clock the next morning Alfredo Villasenor walked down an alley behind the apartment building, looking for a piece of scrap lumber. In the alley was a very large trash box containing several feet of sawdust and some scrap wood. Villasenor saw defendant come out of the box buttoning his trousers and asked him what he was doing. Defendant replied, 'Nothing,' and walked away.
Villasenor searched around for a piece of wood and finally looked into the box. There he saw Essie Mae. She had blood on her clothes, was trembling, and had apparently suffered a severe beating. Villasenor called to someone working in an adjacent trailer lot, who, in turn, called the police.
The officers found Essie Mae sitting on top of the sawdust in the box. She appeared to be under great shock, was bleeding from the head, and could barely state her name. There was mud on her face, her clothes were wet, and there was blood in the sawdust.
Essie Mae was taken to Central Receiving Hospital, barely conscious and unable to answer questions. She was treated for her injuries, namely, bleeding from the left middle ear; a skull fracture; bleeding bruises on the left side of her scalp, both eyes, forehead, and lips; a three-inch cut in her scalp; multiple abrasions of her ankles, hip, and back; and a lack of blood pressure.
Essie Mae died the next afternoon.

Griffin v. California, 32 Cal.Rptr. 24, 26-27 (Cal. 1963).  (Griffin was tried again, and again relied on the defense of consent.  He was convicted again, and again had his conviction reversed, this time by the California Supreme Court, which reversed on different grounds that had nothing to do with his guilt or innocence.  As far as I can tell, the prosecution gave up at that point.)

It is, I suppose, possible to believe that it's merely coincidence that the all-male Supreme Court invented (or, if you prefer, recognized) so many new constitutional doctrines in cases that just happened to involve the rape and murder of girls and women.  But I don't believe it.

Contempt for the weak is a dominant strain in the American criminal jurisprudence of the past 50 years.  (See post 3.)  Misogyny is, I think, a significant part of that.  Male judges simply find it easier to identify with the aggressive male than the victimized female.  They can imagine themselves accused of sexual assault more easily than they can imagine themselves being sexually assaulted.  (William O. Douglas, the author of Griffin, exhibited what might be called a utilitarian attitude toward women, as documented in Bruce Allen Murphy's superb biography.  He should have been accused of sexual assault.)

It would be easy to overstate this point, and I don't mean to.  But I think it takes a wilful naivete to doubt that contempt for the vulnerable in general, and toward victimized women or girls in particular, is at least a partial explanation for some of the landmark criminal procedure decisions of the Warren Court.