JUDGING CRIMES

A friend of mine once got himself elected district attorney in a border-South state.  On his first Monday in office, he asked for a rundown on the weekend's mayhem and was told: "Not much, just another stabbing down in N-----town." 

It was an eye-opening moment.  My friend discovered upon inquiry that for as long as anyone could remember the office had never treated Black-on-Black violence seriously: premeditated murders were pled down to manslaughter, manslaughter to battery, battery to disorderly conduct, domestic violence to sleep-it-off-in-a-cell. 

This was the early 1980s, which many of us (rather strangely) considered post-Dark Ages.  My friend changed the policy, as well as the workaday vocabulary of the office, and even managed to serve two full terms before being voted out.  But the attitudes he discovered in the woodwork of the DA's office were by no means unique, and they haven't remotely died out.  They've just camouflaged themselves.

(Really, check out that last link to Desiree Palmen's site.)

There's more than a trace of that attitude in the unthinking vaguely-liberal view that judges are "assisting minorities with positive measures" when they make it easier  for the violent to hurt others without risk to themselves.  (See post  325.)   Weren't the racist prosecutors in my friend's office equally assisting Black men who killed other Black men?  The underlying idea isn't very far from "life is cheap in the Orient."

Fifteen years ago, there was a much-publicized rape and murder in Santa Fe.  The unusual thing is that each offense involved a different victim.  This is how the Tenth Circuit described the basic events:

At approximately 3:00 a.m. on August 8, 1992, [pharmacist Chester] Radecki awoke to the sound of a woman screaming outside his bedroom window in Santa Fe, New Mexico. He looked out the window and heard more screaming and the sound of someone walking around outside. Shortly thereafter, Deputy Barela arrived nearby in a police car with lights flashing. Mr. Radecki left his home, got in his car, and drove to the scene.

When Deputy Barela arrived on the scene, a motorcycle lay on the side of the road. Eric Trujillo drove up in a tow truck. Deputy Barela detected a man in the bushes, and with his flashlight recognized him as Daniel Martinez. Martinez staggered out of the bushes. Martinez, who appeared to be intoxicated, told Deputy Barela and Trujillo that his girlfriend had run him off the road, causing him to wreck. Deputy Barela began to look around the area for other vehicles or injured persons.

Mr. Radecki arrived in a robe carrying a flashlight. He told Deputy Barela that he lived nearby, and that he had heard screams, as if a woman were being raped. Deputy Barela and Radecki explored the scene with their flashlights, with Martinez close behind. When Deputy Barela shined his flashlight on a car in the bushes, Martinez tried to grab Deputy Barela's nine millimeter semiautomatic pistol. The two men wrestled for control of the gun. Deputy Barela yelled to Radecki, "Hit him with your flashlight. Hit him. Get him off me."

It is unclear whether Radecki hit Martinez with his flashlight. In response to Deputy Barela's command, however, Radecki approached the struggling pair. At that point, Martinez wrested the gun away from Deputy Barela, who then fled to the bushes. Martinez turned and shot Radecki in the chest, killing him.

I'm not absolutely sure if fleeing to the bushes is a technique taught in the Academy.  Be that as it may, Martinez was acquitted of both the murder and the preceding rape - although the state paid half a million for supplying the gun that killed Mr. Radecki.

(Martinez learned the only lesson a violent thug could possibly learn from his acquittal: getting arrested isn't something to be feared.  Predictably, he almost immediately got himself arrested for an entirely unrelated offense, and this time the dice came up snake eyes.)

That's an extreme (and notorious) example, but in general Santa Fe juries are very reluctant to convict.  One reason, I'm convinced, is that the place is crawling with well-to-do, vaguely liberal newcomers.  Santa Fe County's population has tripled since 1960, which is pretty remarkable when you consider the cost of moving in - the average house costs  $81,300 more than the average for the state as a whole (and the latter figure, of course, is inflated by Santa Fe County's contribution).  The people who move to Santa Fe can afford their Land Rovers.

"Tolerance" can mean respecting the beliefs of others, but it also means "the allowable deviation from a standard".  When Santa Fe's newcomers serve on the juries that allow people like Daniel J. Martinez to indulge in their deviations from the standards of behavior established by the criminal law, it's in part because they perceive the violence as part of the cool indigenous culture with its unique traditions.  "You have to respect their customs, man.  You can't judge them by the same standards as us."

Which, of course, is much easier to say if you're living on three acres on the east side.

In an 1885 rape case, the Indiana Supreme Court approved this instruction as a correct statement of the law:

Evidence has been introduced as to the moral character of the prosecuting witness, and as to her reputation for chastity and virtue.  You are not to understand from this that a rape cannot be committed on a woman of bad moral character.  A woman may be a common prostitute, and may still be the victim of a rape.  This evidence has been introduced only for the purpose of affecting her credibility as a witness, and as a circumstance affecting the probability of the act of intercourse being voluntary or against her will, -- upon the theory that a person of bad moral character is less likely to speak the truth as a witness than one of good moral character, and that woman who is chaste and virtuous will be less likely to consent to an act of illicit carnal intercourse than one who is unchaste.  [State v. Anderson, 4 N.E. 63]

Fast forward 122 years:

A defendant accused of forcing a prostitute at gunpoint to have sex with him and three other men got lucky, so to speak, last week.

A Philadelphia judge dropped all sex and assault charges at his preliminary hearing.

Municipal Judge Teresa Carr Deni instead held the defendant on the bizarre charge of armed robbery for - get this - "theft of services." ...

Deni told me she based her decision on the fact that the prostitute consented to have sex with the defendant.

"She consented and she didn't get paid . . . I thought it was a robbery."

The prostitute, a 20-year-old single mother, agreed to $150 for an hour of oral and vaginal sex on Sept. 20, according to assistant district attorney Rich DeSipio. The arrangements were made through her posting on Craigslist.

She met the defendant, Dominique Gindraw, 19, at what she thought was his house, but which turned out to be an abandoned property in North Philadelphia.

He asked if she'd have sex with his friend, too, and she agreed for another $100.

The friend showed up without money, the gun was pulled and more men arrived.

When a fifth man arrived and was invited to join, DeSipio said, he asked why the girl was crying - and declined. He helped her get dressed so she could leave. ...

"Did she tell you she had another client before she went to report it?" Deni asked me yesterday when we met at a coffee shop.

"I thought rape was a terrible trauma."

A case like this, she said - to my astonishment - "minimizes true rape cases and demeans women who are really raped."

Women who are "really raped," of course, are women who don't perform sex acts for money.  If the woman is "of bad moral character," forcing her at gunpoint to have sex with four men is not rape.  It's theft.  She's not a person - she's candy displayed on the drugstore shelf for kids with sticky fingers to pilfer.

One point about Judge Deni's refusal to follow the law is pretty obvious: she revels in the self-righteous feeling that she has outraged people:

Deni acknowledged that her ruling and remarks would be controversial.

"I know I'm going to get killed on this."

But she said she has to "sleep at night with what I decide."

And on the night of Oct. 4, when she ruled in the preliminary hearing of this case?

"I slept well."

This attitude - self-righteousness bizarrely divorced from any concept of righteousness - is a pretty common judicial syndrome, the third most frequently-encountered of the classic vocational  ailments of judges.  It's not simply a matter of épater les bourgeoisie, though I suspect there's an element of that: you can't get more bourgeois that being a judge, and pretending to be a little bit racy beneath the black robe is titillating.  More than that, though, it's a tell-tale symptom of Post-Civil Rights Era Syndrome, a psychological condition expressed (appropriately enough) in a syllogism:

The southern judges who upheld morality, decency and the grand principles of constitutional government by ruling against segregation in the 1950s and 1960s were heroes, whose example all judges should strive to emulate;

the rulings of those judges were met with great public uproar;

therefore, any judge whose ruling is met with great public uproar is a hero, whose example all judges should strive to emulate.

Well, it makes a great deal of emotional sense, which after all is what counts.  As Oliver Wendell Holmes said, "The life of the law has not been logic; it has been the self-satisfaction of judges."

But how did we get to the point where the Philadelphia of 2007 is so much more reactionary with respect to violence against women than the near-frontier Indiana of the 1880s?

Because our collective consciousness has been so lowered.

DNA "exonerations" almost exclusively free males convicted of sex crimes against females, and it takes little imagination to realize that DNA testing will only rarely point unequivocally to a single perpetrator when the victim had sex with someone else in the day or two before the attack - a category that includes not only prostitutes but, you know, people with boyfriends and husbands.  (See post 246.) 

Liberal Slate has come out foursquare in favor of a return to the pre-1960s doctrine that rape convictions should never be based on the woman's testimony alone.  (See post 280 and post 290.)

A Nebraska judge made national news by prohibiting the victim of a rape from using her own words to tell the jury about what happened to her, on the ground that allowing the female to speak for herself might encourage the jury to convict the male defendant.

In my own New Mexico, a liberal legislature in 1975 removed "absence of consent" from the rape statute, so that any sexual penetration accomplished by force or coercion was criminal.  The idea back then was that in sex crimes, as with all other crimes, the only thing that counted was what the perpetrator did.  But in 2005, the Supreme Court rewrote its uniform jury instructions to reinsert (so to speak) that element, so that today, as 50 years ago, rape is lawful unless the prosecution can prove beyond a reasonable doubt that the victim isn't a slut who was practically begging for it.

There is a common thread to all these developments.

It may still be possible to believe the criminal justice system is not being transformed into an institutionalized backlash against the women's movement.   It requires a lot of faith, though.  Such unshakeable faith can be heartbreaking when manifested by, say, a 4-year-old cancer victim.  It's a little less touching when encountered in an otherwise-healthy adult.

I should add that the Philadelphia Bar Association's chancellor, Jane L. Dalton, has said what ought to be obvious, and was (I believe) the actual point of Judge Deni's ruling, even if the judge hid it from herself: "The victim has been brutalized twice in this case: first by the assailants, and now by the court."

You want to know how backward New Mexico Territory was in 1901?  Would you believe - as backward as Slate is today?  The territorial supreme court was filled with patronage hacks appointed from Washington (so, okay, it was thoroughly up-to-date and modern in some respects).  Here's how one of its opinions began:

On a conviction of rape, where there is no corroborating evidence, nor a single corroborating circumstance, and where none of the incidents testified to as attending the commission of the offense are within the domain of reasonable probability, the affirmance of the conviction would be to establish a dangerous precedent. We are of the opinion that there is not sufficient evidence on the part of the prosecution to justify this conviction. There should be some corroborating evidence or circumstance, however slight, or a reasonable probability of the truth of the assault, to justify a verdict of guilty. There is not, in the whole case, any corroborating evidence, nor a single corroborating circumstance, and the probability of the commission of the alleged offense is so far outside of the domain of reason that there was absolutely nothing for the consideration of the jury except the bare improbable statement of the prosecutrix.

("Prosecutrix" was the name used in rape cases to make clear who was the real victim.  Its usage died out only in the 1970s.   See post 139.)   The justices of the brand-new twentieth century didn't spare us their Olympian wisdom:

An outcry in such circumstances, if the prosecutrix were an unwilling participant, would have been intuitive and natural. It would have been the involuntary scream for assistance in impending danger. The outcry is not the result of consideration or deliberative thought. It is always impetuous, and in the feminine nature it is natural and immediate where there is a desire for assistance or protection. ... Surprise never paralyzes the feminine tendency to scream when danger seems imminent.

And, just in case you're still prepared to believe the justices had the slightest interest in providing justice to the woman, here's where they really strain to set you straight:

To constitute the crime of rape under our statute, there must be “resistance,” and it must be “forcibly overcome”; and this must appear by the evidence, to justify a conviction. It is not sufficient that the carnal act be violently accomplished, or that it be without her consent. The lack of consent may be mere reluctance, and a violent accomplishment of the carnal act without consent merely is hardly more than to say that the act was violently done.

Well, it could have been worse for the victim in the case: she could have been married to Justice McMillan, the author of the opinion.  (The case is Territory v. Mares, 65 P. 165.)

But it's not as if McMillan was uniquely contemptuous of the scream-prone gender: he cited cases from New York, Michigan, Nebraska, California, Iowa and Minnesota in support of his conclusion that a conviction for rape can never rest upon the mere testimony of the slut. 

"Slut" is used advisedly, because that's what McMillan meant.  He, of course, wouldn't have been so vulgar as to actually say what he meant, but he made it pretty clear: "there is some of the testimony of the prosecutrix too vulgar to be repeated. It indicates such a degree of familiarity with the depraved parlance of the street and the brothel that the conclusion is imperative that she had an experience of the world not limited to the single alleged incident." 

(So the same man able to contemplate with equanimity - well, perhaps with a sudden racing of his heart, a sweatiness of his palms, a constriction in his throat - the "violent accomplishment of the carnal act without consent" was offended by a woman's use of slang to describe what happened to her.  Is it necessary to add that she was of the lower class, being employed as a servant?  And are you surprised to learn she was also handicapped, being hearing-impaired?  See post 186.)

He quoted a New York judge who overturned a conviction for a shipboard rape: "In such cases, although the woman never said 'Yes'-nay, more, although she constantly said 'No,' and kept up a decent show of resistance to the last,-it may still be that she more than half consented to the ravishment."  (That's People v. Hulse, 3 Hill 309.)

But all that was well over a century ago.  That shipboard case dates all the way back to 1842.  It was the dark ages then.  There's no comparison to our enlightened selves, right?

Well, it's true that in the 1970s, during the first wave of feminism, American states dropped the rule that a rape conviction couldn't rest on the mere testimony of the victim.  The new rule was that if the jury believed the victim, that was good enough.  Specified varieties of corroboration were no longer required.  (The history can be traced in the nearly-lifelike prose of the annotation found at 31 A.L.R.4th 120.  If you don't know what that citation means, it means you've escaped an assault on your literary sensibilities.)

But now Slate - good old Slate, the online magazine founded by Michael Kinsley and home to Dahlia Lithwick - is standing athwart history, yelling Stop. 

In one of those pieces so wonderfully revealing that you can't help feeling a little embarrased for the author (David Feige), Slate has come out foursquare in favor of a return to 1901, if not to 1842.  Ostensibly writing about the Duke case, which I called 14 months ago (see post 102), Feige explains why all prosecutors are, by virtue of their profession, Rosemary's babies:

Mike Nifong [the disgraced DA] did what prosecutors almost always do when a complainant comes to them alleging a sexual assault: He took his complainant at her word and went full speed ahead with a prosecution. The fact is that few if any prosecutors wait for corroborating evidence or insist on more than one person's say so before initiating a sexual assault prosecution.

I honestly wouldn't have thought it possible that anyone, anywhere, would be so recklessly reactionary, so stridently anti-feminist, to actually come right out and call for a return for the good old days when men were legally authorized to rape women so long as they left behind no corroborating evidence.  But here's Feige, living down his name, bold enough to come right out and say that we need to get back to the nineteenth-century patriarch's view of male-female relations.

The article is well worth reading for its humor.  The funniest bit:

As Angela Davis explains in her book Arbitrary Justice: The Power of the American Prosecutor, young prosecutors too often see their goal as winning rather than doing justice. The culture of their offices and the adversarial nature of the criminal justice system push them in this direction. Over time, they move further toward, and eventually across, the line separating fair play from systemic manipulation.

No, not that Angela Davis.  This is Angela J. Davis, who acquired her intimate knowledge of the secret lives of prosecutors as a public defender.   Feige, a fellow public defender, appreciates her insight into the minds of that tribe of sub-humans - if "mind" isn't too strong a word to use to describe the mental apparatus of pod people utterly devoid of moral sense.

No, wait, there's an even better bit:

There are, of course, a few particularly egregious cases [of "prosecutorial misconduct"] that leave visible traces in appellate records. A 2003 study by the Center for Public Integrity found nearly 11,500 such cases. Of them, four out of five were shrugged off as harmless errors.

It's wonderful, really, attaching the label "particularly egregious" and then reasoning from that lighter-than-air premise that the roughly 9,200 judges who found the cases non-egregious must be moral defectives. 

But what I want to know is: why are lawyers helpless to prevent themselves from using that particular word?  "Egregious" is like a verbal tattoo, identifying the bearer as a member of the gang.  My guess is that it's actually a kind of scar produced by the trauma of law school.

I've long noticed that a very high percentage of the "exonerations" engineered by the Innocence Project - the name is an excellent example of "unspeak" - seem to involve violent sex crimes.  If a lesson is to be drawn, it's that it's too easy to convict men of sex crimes against women.

Do you believe that?

Innocent people are sometimes convicted.  I don't think anyone can doubt that, any more than anyone can doubt that guilty people are sometimes acquitted.  (I once had to respond to a brief that cited Barry Scheck's book, and I was happy to concede that Scheck's most famous case showed that juries do, indeed, sometimes reach irrational verdicts.)  No human institution is perfect.  The legal system isn't even in the top 40.

The Innocence Project website claims "195 exonerated."    In 2005, America had the grotesquely high number of 2,193,798 people in our prisons and jails.   So it appears we have an error rate in our criminal courts of 195/2,193,798, or .000088%.

Do you believe that?

If all the Innocence Project did was prove that only a tiny fraction of 1% of all American prisoners are wrongfully convicted, it would actually be establishing how fantastically accurate our judiciary's factfinding mechanisms are.  Yet that's not the lesson people draw from the Project's publicity machine.

In the Washington Post review I cited in the last post, Patrick Anderson wrote:

The recent past has not been kind to America's prosecutors; the growing number of innocent people freed from prison by DNA testing has demonstrated that at least some are overzealous, incompetent or simply corrupt.

Well, a good number of prosecutors are incompetent - the low pay sees to that - but they aren't the ones responsible for the wrongful convictions.  "Overzealous" is an euphemism for dishonest, but I don't know why an euphemism is needed: some prosecutors are dishonest, just like some reporters.  And, you know, prosecutors whose dishonesty is discovered tend to become ex-prosecutors, and another name for "ex-prosecutor" is "defense attorney." 

My point isn't that Anderson doesn't appear to have given the matter much thought, but that an intelligent person who doesn't give the matter much thought is very likely to believe implicitly in the Innocence Project's self-promotion.  

But is there actually any reason, other than the self-promotion, to believe that the Project is freeing the innocent, as opposed to the guilty whose guilt can't be re-proved beyond a reasonable doubt after the passage of many years?  (This question, unlike the earlier ones, isn't entirely rhetorical.  Newspaper accounts of the legal system are notoriously unreliable.  See post 183.   Judges, when they're on their high horses, are even worse.  And true-believer lawyers are the absolute worst, because their lies are in service of a higher truth.  That doesn't leave many sources of information.)

I tried looking on the Innocence Project website for statistics about the nature of the crimes for which the "exonerated" had been convicted.  What percentage of the "exonerated" had been doing time for sex crimes against women?  Maybe the statistics are there and I just didn't find them, or maybe you'd have to tote up the figures yourself.

But, luckily, George Soros paid a gaggle of law professors to assemble the figures for me.  This 2004 report, looking (I think) at a different dataset of freed prisoners, states that "93% of the exonerations for non-homicidal crimes [were] concentrated among the rape cases".  Moreover, "all but a couple" of the murder exonerations "included rape as well."

Why should that be?  A clue is offered by the CBC's deeply touching account of the 26 Vancouver women whose remains were found on Pickton's pig farm.  It's no coincidence that they share much in common with the victims of Ridgway, the Green River Killer.  Sex workers, everyone knows, are at extremely high risk of becoming victims of violence.  Imagine for a moment that the victim of a 10-year-old murder was a prostitute, and testing of samples taken from her body shows the DNA of someone other than the convicted killer.  Does that exonerate the killer?

Yes, of course, provided you use "exonerated" as the Innocence Project does.  

Now, imagine instead that the woman wasn't a prostitute but happened to have unprotected sex with someone the day before she was murdered by someone else.  Ten years later, testing reveals sperm from the first someone.  Does that exonerate the second someone?  Or does it, instead, add one more difficulty to the already-difficult task of retrying a case after so many years, encouraging the prosecution to give up?

The Wisconsin Innocence Project achieved the release of Steven Avery - he's one of the 195 on the national website - and just weeks later the charred remains of a young woman were found scattered around his family's junkyard.  (See post 17.)   Avery's nephew described how he and his uncle tortured, raped and murdered the woman - and how his uncle watched him take his turn, congratulating him on his rape technique.  Supposedly his computer contained all sorts of violent pornography.  (Avery is on trial now.) 

So how does one explain the amazing coincidence that the victim of the earlier rape "wrongly" identified a man who, if the stories are to be believed, not only enjoys sexual violence against women but likes to watch other men committing it, too?

Realizing they were on a roll, the Wisconsin Innocence Project next turned their attention to Ralph Armstrong, whose rape conviction the Wisconsin Supreme Court overturned despite "a mountain of evidence" against him.   Armstrong is well-known here in New Mexico:

On the night of October 3, 1971 at about 11:15 the prosecutrix was returning home. She had parked and locked her car when another car drove up and stopped behind hers. A man, later identified as the defendant [i.e., Armstrong], got down and called to her and as she turned he walked up and took her by the arm. He had a knife in his hand which he held close to her stomach. He ordered her to get back into her car on the passenger side. Defendant then got in and drove to an isolated area east of Albuquerque where the acts complained of were committed.

Defendant does not dispute the fact that the sexual acts complained of took place.  (511 P.2d at 561)

Armstrong's defense, almost hilariously, was that New Mexico's sodomy statute was unconstitutional because it criminalized consensual acts as well as the particular type of anal sex he preferred.  (Almost hilariously, because he got one judge to agree with him.) 

(Incidentally, saying that a person "got down" from a car is a common New Mexico usage, but I've never heard anyone from anywhere else use it.)

Armstrong was on parole from the New Mexico conviction when, according to the jury in his Wisconsin case, he acted on the lesson learned: leave no witnesses.   Four members of the Wisconsin Supreme Court thought the jury's verdict wasn't reason enough to keep Armstrong in prison, given DNA evidence that the victim had had sex with her fiance some time before her murder. 

As pointed out by the dissenting justice,

There is another fact that bears on the testimony about semen.  [The victim] was raped anally and vaginally with a hard object.  Her injuries were not caused by being raped with a body part.  Therefore, it is understandable that semen from the perpetrator of this crime was not left at the crime scene.

So, just like the Avery case, it turns out that a person who was "wrongfully" convicted of this sex crime just happened to be a man who is extremely dangerous to women.  Gee, what are the odds?

Why does "misidentification" happen so frequently with sex crimes?  The Colorado Court of Appeals explained in 1891:

Conviction of [rape] is seldom or never allowed upon the unsupported evidence of the prosecutrix. She is allowed to, and is generally the only witness who can, testify directly to the principal facts,-the perpetration of the offense; but to warrant conviction the evidence of the main fact must be corroborated by other evidence of circumstances and facts sustaining the principal charge. The injured party is legally competent as a witness. “But her credibility must depend upon the circumstances of the case which concur with her testimony; whether she is a person of good fame ..."  (Bueno, 28 P. at 249)

Cases like Avery's and Armstrong's are taking us back to the world in which a woman's testimony is automatically viewed as suspect.  Judges reversing rape convictions no longer write about what a dangerous precedent they would be setting if they allowed a conviction to rest on the woman's "unsupported evidence."   Instead they talk about the unreliability of eyewitness identification.  But it amounts to the same thing.

And judges are too discreet these days to say a woman's "ill fame" makes her testimony unbelievable as a matter of law.  But these two Wisconsin cases show that some judges still believe it.  The slut defense remains a get-out-of-jail-free card: "Look, she had sex with someone else, too, so what I did wasn't rape."

A mathematician shot a judge with a crossbow:

The 50-year-old former mathematics professor at Sungkyunkwan University shot Park Hong-woo, a 55-year-old Seoul High Court judge, in the stomach with a crossbow as payback for his loss of a legal dispute in an appellate court chaired by Park.

Kim was detained at the scene and the judge is recovering in hospital. His condition is not life-threatening, hospital officials said.

The attack took place in front of Park's apartment in Songpa-gu, southeastern Seoul. The crossbow bolt left a 2-centimeter wound across Park's stomach.

According to police, Kim denied attempting to kill the judge.

"I've taken all legal measures to prove how corrupt our judicial system is, and where judges ignore the law," Kim was quoted as saying by police.

Kim appealed a lawsuit in 2005, in which he demanded reinstatement of his professorship after asserting that he was unfairly dismissed in 1996. A Seoul lower court rejected his demand and Park also denied his appeal after reviewing the case on Friday.

The first reaction is to assume that Kim, like other thwarted mathematicians of note, was simply nuts.  (A crossbow?)   But listen to what court insiders told the Korean Herald's reporter:

The Supreme Court will reportedly focus on reestablishing the authority of the courts, believing the incident was brought on by disheartening issues last year, such as the constant dispute between prosecutors and judges over issuing warrants and a senior judge's involvement in a corruption case.

"We have to seek measures to rebuild our destroyed authority," a senior judge said on condition of anonymity.

"We could hold in-depth hearings in court and listen to the plaintiffs more, but fundamentally, establishing a trustworthy judiciary is the key."

The same theme was sounded by the Chosen Ilbo, which editorialized that the crossbow shooting reinforced an old lesson: "As always, the top ethical rule judicial officials must uphold is to live a life of moderation and abstinence rivaling that of a religious monk." 

I think it's always a mistake to assume that violent criminals commit their acts for reasons that make sense to anyone living outside their own heads.  And the idea that a bolt from a crossbow is an effective means of registering a complaint is probably not one that judges of any nation are well-advised to endorse.

But it's true that Koreans have had reason to regret their judiciary recently:

The fact is in this country, however, that a "court broker" has manipulated judges and prosecutors up to the vice ministerial level by meeting their desire for "money and booze.'' ...  It is said the "court broker" bribed up to 80 judges and prosecutors, influencing their judgments. In some extreme cases, the broker accompanied a suspect to the judge's office to negotiate the judgment.

The court broker in question is described here as a "a well-known judicial lobbyist".  (I can think of some American lawyers who deserve that title.)  The Chief Justice apologized to the nation, assuming a penitent pose - literally - but most recently he himself has come under suspicion - possibly the result of malicious stories planted by a disgraced former judge. 

Prosecutors, meanwhile, anonymously told reporters that members of the Supreme Court "contacted about three or four senior officials at the prosecution regarding its investigation" into judicial bribery - presumably either to intimidate or to ask for special consideration - which the justices naturally deny.  For more about the ongoing war between prosecutors and judges, read this review of a satirical play.

A Korean Times commentary lamented that the regular recurrence of judicial scandals had "given rise to such sarcastic remarks as 'the rich are not guilty, the poor are guilty'".   But at least in Korea that observation is still considered sarcastic.  (See post 102.)

Last month I was interviewed by BBC film crew doing a show on Billy the Kid that will combine dramatic recreations with commentary by historians. (In the States check the Discovery Channel listings in the spring for showtimes - it's your opportunity to find out if the publicity photo I've been using is out of date.)

The interviewer asked about the first killing attributed to the Kid, the death of Frank Cahill at Camp Grant, Arizona. Cahill was a blacksmith and presumably a muscular guy, as a couple thousand reps on the anvil every day is a recommended upper body workout.  Cahill, according to the version that's come down to us, bullied the Kid, whose nickname was as flatly descriptive as "Shorty" or "Lefty."  The Kid was 18 or so, and slightly-built, and after a particularly humiliating encounter he used modern technology to even the odds. Cahill died a couple days later of a lack of antibiotics.

 The BBC interviewer wanted to elicit some comments about the "Code of the West", which, it is generally assumed, would have excused the Cahill killing as self-defense.  In his question the interviewer said something about "this killing, which to modern viewers will seem quite clearly to be cold-blooded murder." 

Well, perhaps to modern British viewers.  I had to break the news that in modern New Mexico Billy would almost certainly be entitled to a self-defense instruction - the technical way of saying that New Mexico's courts of 2006 would be just as willing as their predecessors of 1876 to accept the killing as perfectly lawful, or at most manslaughter (see post 110), an offense with a maximum sentence of six years, none of which must be served in prison.

In New Mexico, as in most of the West, there is no duty to retreat. You don't have to make any effort to avoid deadly violence.  If you get involved in a fight, and realize too late you're going to lose, you're permitted to kill. Or, in other words, New Mexico is the nation's fifth most violent state because our judges like it that way.

(Legislators bear some responsibility, too, in that they don't make the effort to control the judges.  Our self-defense statute says homicide is lawfully committed in self-defense only when "necessary", but our courts interpret that to mean something like "the most convenient solution to one's immediate problem.")

The phrase "Code of the West" is misleading to the extent that it suggests things were organized by social compact, as if settlers had to sign an indenture when they left Independence, Missouri.  The Code was really just a set of pragmatic social conventions based on the absence of effective law enforcement.

Lincoln County, which in Billy's time was the size of Ireland or Panama (or, in U.S.-centric terms, Connecticut, Massachusetts, Vermont and New Hampshire combined), had one full-time peace officer, Sheriff William Brady. He hired deputies, and could summon a posse into existence, and the local justices of the peace worked with constables, but for them law enforcement was something they did in the spirit of today's volunteer firemen.

If robbers showed up at your homestead, you couldn't call the police. Someone had to slip away unnoticed and travel by horseback or on foot for help, and even then (unless you were lucky) help wouldn't come from the sheriff, who doubled as county tax collector and was often on the road. Maybe your messenger might locate a deputy, or maybe just some friends or acquaintances willing to take the risk.   And then it could be hours or days before the rescue crew returned to the scene of the outrage.

In short, law enforcement was, at the moment of crisis,  a private affair. The Code of the West was a way of dealing with that reality. Should you just give them what they want? Often, that made the most sense. But at some point a man who wanted respect had to draw a line.

I suspect that's what happened to Frank Cahill: the Kid decided he didn't want to be treated as a child any more.  And, so far as the record discloses, he never was. On the contrary, he quite quickly developed a reputation as a scary fellow, in many respects a useful reputation to have, although when that reputation grew outsized it contributed to his violent death at a young age. 

Does any of this sound familiar? Elijah Anderson wrote a book called Code of the Street: Decency, Violence, and the Moral Life of the Inner City that described the way young men in the worst neighborhoods are forced to decide if they want to become someone with "respect", defined in part as the ability to inspire caution in dangerous people. Al Sharpton recently got a headline or two calling the same process "gangsterism."

We have, in our cities, replicated one of the core realities of the Wild West, the nearly-complete privatization of law enforcement, the replacement of a government of laws by an alternative government based not on enacted laws but on a Code - on violence and its threat.

Britain's Observer recently published a long essay by Martin Amis about political Islamism.  Describing the cult of the suicide bomber, Amis writes: "Contemplating intense violence, you very rationally ask yourself, what are the reasons for this? And compassionately frowning newscasters are still asking that same question. It is time to move on. We are not dealing in reasons because we are not dealing in reason."

This same insistence on finding reason in irrationality, sense in violent senselessness, has long been a kind of fungal growth that contaminates all attempts to talk about the extraordinarily high level of criminal violence in America.  In 1973, William O. Douglas told the world that "the causes of crime" are "the sociological factors of poverty caused by unemployment and disemployment, the abrasive political tactics used against minorities, the blight of narcotics and the like." 

The underlying assumption of Douglas's words, at least when taken at face value, was that criminal violence was a rational response to social conditions.   That view has always been embarrassed by the reality that the vast majority of people who grow up in poverty don't kill other people. 

Scratch the surface of Douglas's words and you'll find traces of the sentiment that People Like Us simply can't ask any more of people like them.  The poor dears, it's not their fault.  Civilization doesn't come naturally to them, you know. 

The number of truly dangerous people remains relatively constant, at something like one percent of the population.  Economics and education are vitally important, not because they form the psychopath's character, but because they determine what the psychopath does with his or her life. 

The opportunities available to an inner-city psychopath are limited compared to those available to the Ivy Leaguer who improves his position on the grade scale by sabotaging his fellow students' experiments.  For example, Enron appears to have been an entire corporation built on the principle of psychopathy.  And it was Fortune Magazine's "most innovative company in America" for 6 years in a row.

When should people kill other people?  It sounds at first like an outrageous question, but it's not.  Our President recently guessed we've killed about 30,000 Iraqis, and I don't doubt he believes most of the killings were justified.  Michael Reagan said he thought Howard Dean should be "hung" (presumably he meant "hanged," but maybe he was thinking of Mussolini's end).  Two days ago Ann Coulter said: "We need somebody to put rat poisoning in Justice Stevens' creme brulee."

Coulter immediately added: "That's just a joke, for you in the media."  But she was mistaken: the distinguishing feature of jokes is that they're funny.   Here's a description of the death she claimed to think would be amusing if suffered by a 85-year-old man who (for all that I sometimes disagree with him) has served his nation with integrity for thirty years.

We've recently had news stories about the Florida man who punched a teacher's aide and was immediately lauded as "Father of the Year" by a radio station.  The radio station, in the time-honored tradition of leaders of lynch mobs, skipped the interim step of trying to determine if the aide had actually done what he was accused of doing.  (It seems pretty clear he hadn't.)  The punch wasn't lethal, but the radio station's impulse to approve of its infliction can't be easily limited to violence that falls on this side of that line.

Every society accepts as a basic governing principle that some violence is justified.  That means not only violence by the government - wars, arrests, imprisonments, the death penalty - but private violence, one citizen against another.  One important difference between societies is the way they decide when it's okay to kill.  

Attempts to explain America's homicide rate in terms of childhood abuse, poverty, the prevalence of guns and so on always founder on the unarguable fact that most people who were abused as children, live in poverty or own guns don't kill.  Each of these factors doubtless contributes to the overall rate - it's a safe assumption that most violent criminals (like most comedians, another hostile group) had wretched childhoods, and the ready access to weapons obviously promotes impulsive killings - but they aren't by themselves reasons for lethal violence.

With most homicides, I think, the decisive factor is the killer's conclusion that the victim deserves to die. 

Most murders are, from the killer's perspective of the moment, not merely rational but just.  A gangster disrespected by a member of a rival gang has no doubt about what the rival deserves.  Many men, and a few women, confronted with a partner who wants to leave likewise have no doubt about what the partner deserves. 

Texas notoriously long had on its books a statute that read: "Homicide is justifiable when committed by the husband upon the person of any one taken in the act of adultery with the wife, provided the killing take place before the parties to the act of adultery have separated."  (In 1885 this was codified as Penal Code, art. 567.)  But "in the act" was loosely construed. 

In State v. Price, 18 Texas App. 474, 5 Am. Crim. Reports 385 (1885), for instance, the husband went out to the corn crib one night to investigate his wife's absence from the house.  It was dark and he called out, "Who's there?"  His wife answered, identifying herself.  From rustling noises he gathered she had been lying down.  He asked who was with her and she said no one.  But then the lover, a man named Chandler, jumped out of the darkness and grabbed the husband's gun.  They tussled until the husband said, "Let go the gun, and let me go about my business."   Chandler let go and the husband shot him.  (It's  hard to blame the wife for preferring Chandler, isn't it?)  The husband didn't pretend he had actually caught the couple in the act:

"I do not know what they (Chandler and my wife) were doing. I did not take time to investigate that. I knew they were there for no good. ... I can't say that I thought they were having connection with each other at the time I called to them at the door of the crib; but by finding them together I supposed that their object was to have connection with each other[.]"

That, the Texas court determined, entitled the husband to a jury instruction on the issue.  Under Texas law, the jury was justified in concluding that Chandler deserved to die.

The Texas court noted that while the Texas statute was unique in America, every other state reduced homicide committed by the outraged husband to manslaughter.  As far as the other states were concerned, the homicide wasn't excused, as it was in Texas, but it was less culpable than other killings.  Blackstone, the font of 19th century American law, considered that killing the lover was manslaughter, but only "the lowest degree of it: and therefore in such a case the court directed the burning in the hand to be gently inflicted, because there could not be a greater provocation."  (pp. 191-192)  There's nothing quite like a gently-inflicted brand.

The American Heritage Dictionary, on-line at the wonderful Bartleby site, gives these two definitions for "flash point":

1. The lowest temperature at which the vapor of a combustible liquid can be made to ignite momentarily in air. 2. The point at which eruption into significant action, creation, or violence occurs.

Just as the flash points of combustible liquids fall along a spectrum, with gasoline's flash point at -40 F and kerosene's at +110, so do the figurative flash points of different societies.   That's one reason why homicide rates vary so enormously between different states.  (Compare Maine and Maryland in this FBI table.)   Blackstone and most Americans of the 19th century believed the husband's killing of his wife's lover was understandable but still not such a great idea; but Texans thought the back-door man deserved his fate.  Texas's flash point was lower than that of the other states.

The idea of comparative flash points also helps to explain why America's homicide rate is so much higher than those of the countries closest to us culturally, such as Canada, Australia and Western Europe.   (See page 29 of this British Parliament report.)  Americans are inclined to think homicide is justified at a lower level of provocation than are other peoples.

 The implications of this idea for the death penalty debate will be discussed in later posts.