Out of court

Wednesday, April 28, 2010

Why Do the Mentally Ill Get a Break in How They Are Punished for Crimes?

Recently the King County Prosecutor, Dan Satterburg, decided not to pursue the death penalty for a man who allegedly raped and tortured two women, killed one, and attempted to kill the other. Despite the heinous allegations, it was a sound decision supported by Washington law..

To convince a jury to impose the death penalty for aggravated murder, the prosecution must prove beyond a reasonable doubt that there are not "sufficient mitigating circumstances to merit leniency." Under this statute, RCW 10.95.060 and .070, there are a number of factors a jury can consider in determining whether such mitigating circumstances exist. One of them is the following: "Whether the murder was committed while the defendant was under the influence of extreme mental disturbance." In the recent case, the defendant's history of severe mental illness presented by the defense attorneys to the prosecutor was probably compelling. So the prosecutor exercised his discretion, and saved the taxpayers a lot of time, money and effort.

Some may object and argue that the alleged crimes were too severe for leniency. And, in any case, isn't a defendant who is mentally ill even more dangerous? Shouldn't society protect itself? To begin with, this defendant is facing a 'life without possibility of parole' sentence. As far as I know, no one ever sentenced to life without parole has gotten out or escaped in this state. So the societal protection issue is covered..

It is possible this defendant may not be sentenced to life without parole. He may raise an insanity defense, and if that were successful, what then? There have been cases where the insanity defense has either been successful or where the jury convicted the defendant of some lesser crime, with no life sentence. After this individual serves his sentence, and if he is deemed sufficiently dangerous, he can still be committed to Western State Hospital for an indefinite time. I was involved with one such case..

This still leaves the question: Why do the mentally ill get a break? This is a question that is a commonplace in most criminal justice courses and can often make its way into popular, political discussions of criminology and culpability. The short answer is that our laws are based in part on moral and religious principles. One of those principles is that a crime requires a willful act by a sane person. A person who does not know right from wrong as a result of mental disease or defect is not sane. For a long time in England and then in America, the law has recognized that an insane person cannot and should not be punished for the wrongdoing. Hence to this day, an acquittal on grounds of insanity does not result in a criminal punishment. The person acquitted could be civilly committed indefinitely but our society (or at least under Washington state law) does not condemn such persons as criminals..

Thursday, April 22, 2010

Sex, Jocks and the Law

Rape cases where the defense is consent can be the hardest cases to prove. The recent allegations against quarterback Ben Roethlisberger reveal this ugly truth. A close examination of the complaining witness' police statement explains why the prosecutor decided not to file a case..

She initially told the police (her handwritten statement is online at: http://www.thesmokinggun.com/archive/years/2010/0415101roethlisberger1.html) that she was at a bar and at one point Ben made "crude, sexual remarks." After these remarks, Ben asked her and her friends to go to his "VIP" area at the back of the bar. She and her friends agreed. There, she and her friends were offered free, numerous shots of booze, and presumably they drank them. After this point, she was 'escorted' to a side hallway and sometime after that, Ben allegedly forced her to have sex..

Now imagine a jury of Georgians from the small town of Milledgeville where this occurred. A defense attorney would certainly try to pick a jury that would not be sympathetic to a young woman who makes the choices she made before the alleged assault. If this were Seattle, it would be harder to pick such a jury. And yet even in Seattle, a certain part of any community, e.g, some older people, might judge her harshly..

The jury would be asked in closing by the defense attorney to determine her credibility, where there is little to corroborate her version that he forced her to have sex. After all, the star quarterback would be presumed innocent, as all criminal defendants are. And the prosecutor would have to prove beyond a reasonable doubt that she did not consent. The prosecutor would have to contend with arguments like this: "Despite Ben's crude sexual remarks, this young lady and her friends agreed to accompany this celebrity quarterback to his VIP room. Were they football 'groupies' or just naive young women? Was she so drunk she doesn't remember if she consented? . . " and so on..

Careful prosecutors don't like cases without substantial proof. Here, apparently the young woman did not want to prosecute, given that her privacy and life would be picked apart not just by opposing counsel but by the media. With these difficulties in mind it is not surprising they declined to prosecute. Although our legal system is far from perfect, it does not appear to be an unreasonable decision. In the end, this whole affair is more of a cynical reflection of our culture of celebrity than an indictment of the legal system..

Friday, April 16, 2010

Do You Have a Criminal Record?

This used to be a very straightforward question because there were only two actual sources of official criminal records: the state patrol and the FBI. In fact, that has not changed. What has changed is the ease with which such records can be found..

Now, post-911 and in the internet age, that question is far more complicated. To begin with, far more employers, schools, sports teams, nonprofit organizations, clubs, and private concerns check criminal records. In our nervous times, we worry a lot more about terrorism, child molesters, thieves, and so on. So one natural response to this worry is to check out every job applicant's, prospective coach's, and volunteer's background--i.e., their criminal record, for starters. And the internet makes it easy..

Just google 'criminal records' and you get various sites such as: criminal.com. Type in a name and you could find out for free if there are records, and then get them--for a fee. The problem is that this site(like many others) may or may not reveal exactly what database it used to give you the information. And not all databases are created equal. For example, let's take court records. Virtually all criminal court records are open to viewing. They are publicly available and free to look at if you go to the originating courthouse. Before the internet, that took a bit of legwork and time. Now many court records are available on line..

Many of the criminal records search engines use court records. So what's wrong with court records as a database for research on someone's criminal record? The problem is that court records include everyone who has ever been accused of a crime, whether the case was dismissed at arraignment by the prosecutor, or later by a judge, or if a jury found the accused innocent. That is, it includes many people WHO DO NOT HAVE CRIMINAL RECORDS! So unless these search engines are actually reading the entire file to make sure, their reports are suspect..

For a criminal record should mean that the person was found or pled guilty, and was convicted and sentenced. So employers or groups who use anything but official sites, such as https://watch.wsp.wa.gov/ in Washington state, are relying on something other than official criminal records. That means anything else may be unreliable..

I have a former client whose case I got dismissed at a pretrial hearing by the judge on the prosecutor's motion. Sometime after this, he submitted a bid for a contract on a job. He was declined. The group that declined his bid told him he had a criminal record and so that disqualified him. He asked what record and they cited the very case we got dismissed. I told him that was not a 'criminal record,' but a court record..

This violated one of the precepts of our legal system: presumed innocent until guilt is proven beyond a reasonable doubt. Maybe he will sue them. Unfortunately, the damage has been done..

Thursday, April 8, 2010

Why Do We Let Them Re-Offend Again and Again?

Over the weekend there was a horrible tragedy in my neighborhood: 3 young men were killed when their car slammed into a metal pole at high speed; and a high school girl who was seriously injured is not out of the woods yet. It is unknown whether alcohol was involved, but the police have now named the driver. It turns out he had a pending DUI case, where he allegedly blew a .14 breath alcohol which is nearly twice the limit of .08 for those over 21. He was 20, so he was way over the .02 limit for those under 21..

A friend of ours called and wanted to know why his license had not been suspended yet. She also wondered why a recent public official (Washington Superintendent of Public Instruction Randy Dorn) who was arrested for DUI got his license suspended so quickly. The answer on the latter question is easy: he pled guilty in court to DUI, so his license was suspended immediately. He conceded his right to fight it and accepted his punishment. For a public official that is what a mensch would do..

In contrast, the young man had not pled guilty so his case was still pending. In our society we presume the accused innocent, no matter what the crime. (In "Alice in Wonderland" its' 'punishment first, verdict later,' a place some demagogues would enjoy.) In order for a court to suspend someone's license, there must be due process of law. That is a phrase from the Constitution. Although a driver's license is not a "right," it is a privilege with certain protections. It cannot be taken away from a person who legally possesses one without due process--some legal procedure. So in the young man's criminal case, he is accorded a variety of rights such as a jury trial, live testimony, proof beyond a reasonable doubt, and so on, before he can be punished with jail and license suspension..

In DUI cases, there is also a parallel administrative proceeding which is largely independent of the criminal case, but tends to move faster. For example, the young man with the pending DUI, would have been given a notice the night of his arrest for DUI. That notice would inform him that he had 20 days to demand a hearing before the Department of Licensing (DOL), since he blew greater than an .02 (being under 21, or, if over 21, over .08 .) If he did not demand the hearing within the 20 days, then DOL would administratively suspend his license for 90 days..

Since the police said he was arrested for his DUI in early March, even if he had not demanded a hearing, his suspension would not have gone into effect before the crash in early April. Even without a demand for a hearing, that process takes time before the DOL issues a suspension. On the other hand, if he had demanded a hearing, it would have been set about 30-60 days out from the receipt of his demand. During that time, he could still legally drive..

As a society governed by Constitutional principles, there are occasions where someone who commits one wrong can repeat it before being punished for the first wrong. The whole tragedy surrounding the man who killed four police officers is even more complicated. He was someone who was allowed to post bail before a court could review all of the facts. That, along with Arkansas' parole procedures and snafus with Washington state, led to that nightmare..

Now due to that sordid history, the Legislature has passed a bill changing Washington's Constitutional provisions on bail, which have been the same since statehood in 1889. This must be approved by the voters yet, and I suspect it will be approved. Whether this change in bail procedure will prevent future tragedies is hard to predict. As a society that values freedom, it is a challenge to deter repeat offenders and maintain due process and the presumption of innocence. It remains an evolving process..