It's an Accusation So It Must Be True

There is one and only one piece of evidence that it was Danny Brown who raped and murdered Bobbie Russell in December 1981. Her son, Jeffery, six-years old at the time, said it was.

Danny spent 19 years in prison.  Then the DNA came back.  Wasn't him.  It was, the DNA said, Sherman Preston.  That was no surprise since around that time Sherman was implicated in a number of related crimes - always acting alone.  In fact, by the time the DNA came back, he was serving a life sentence for a similar crime just a little bit earlier - a crime for which he was convicted in large part based on DNA.

Danny got out.  The prosecutor dismissed the charges.  Innocence triumphs.  It was a great day.

Except.

An investigator from the prosecutor's office had located Jeffery and went across the country to talk to him.  Now 27, he said now what he'd said then.  It was Danny he saw do that to his mom.  And Julia Bates, the elected prosecutor who'd gone into court to personally announce that she was dismissing the charges against Danny because no jury would find him guilty what with the DNA and all, maintained then and maintains now that Danny Brown in fact killed Bobbie Russell.

Because Jeffery.  Because Jeffery was 6 when it happened.  Because he was 7 when he testified. Because even though his testimony included things that obviously were not so, that were physically impossible (he claimed to see things on the other side of solid walls from where he was) he told the truth about seeing Danny do that to his mom.  Because, as she told Jennifer Feehan in the Toledo Blade five years ago when asked if she thought Danny was guilty

Asked if she thinks Brown killed Ms. Russell, Mrs. Bates said yes.

"I do," she said. "I don't think little kids lie."

I thought then and think now that it was one of the stupidest things anyone has ever said.  Kids in fact lie all the time.  The dog ate my homework.  And of course, they're wrong a lot.  Even when they believe things.  (Again, Jeffery testified to several things that were demonstrably false, physically impossible.)  And that he still believes?  Sure.  That happens too.

The first time I wrote here about Danny's case, I told this true story:

Friday night, June 11, 1965. I was at Shea Stadium. Mets-Dodgers game. Warren Spahn was pitching for the Mets, Don Drysdale for the Dodgers. Dodgers won 2-1. Both Dodgers runs were on homers by Drysdale. The Mets run was on a homer by Spahn. Incredible. Etched in my memory. I'll never forget it. Except, of course, it didn't happen that way.

Oh, I was at the game, and it was one hell of a game. A real pitching duel between Spahn and Drysdale. And Drysdale did win it with a home run in the 8th. But the Dodgers other run was on a homer by John Roseboro in the 5th. The Mets run, also in the 5th, came when Joe Christopher singled in Johnny Lewis. Spahn went 0 for 3. Helluva game, like I said. As Casey used to say, you could look it up. (I did. I'll save you the trouble. Here's the link.) Close enough to my memory so you can see how the story got better over time. Until . . . . Like I said, I'm mistaken. I know I'm wrong about just how the game unfolded. But I remember it as three homers - two by Drysdale and one by Spahn. It's not a lie to say I remember it that way. And if I hadn't looked it up, I wouldn't know I was wrong.

Julie Bates, whatever else, is not stupid.  Yet "I don't think little kids lie."

What she meant, of course, is that she believes them when they accuse.

Which brings me, in my typical elliptical way, to my subject, Richard Beck's compelling but flawed new book, We Believe the Children: A Moral Panic in the 1980s.  

February 1984, KABC-TV News in Los Angeles included this breathless report on the investigation into allegations at the long-established, highly regarded McMartin Preschool:

Authorities now believe that at least sixty children were victimized. . . . [They] had been keeping a grotesque secret of being sexually abused and made to appear in pornographic films while in the preschools's care and of being forced to witness the mutilation and killing of animals to scare the kids into being silent.

Wow!  And then it turns out that the same things were happening at day cares and preschools across the country.  But worse.  Kids were being forced to eat body parts of murdered children.  Eyes were plucked out.  Satan worship.  Bodies buried in and around the facilities.

Hell of a story.  And, I should add, pretty much entirely bullshit.

Except everyone bought into it.  Police, prosecutors, juries.  Parents, god knows.  Doctors made up tests from which they could tell, tell for sure, that what was perfectly normal in a child was hard evidence of abuse.  Social workers and psychologists and psychiatrists and cops and parents coerced children into making up more and more outrageous stories.  

Sure there was no evidence.  The dead animals weren't found.  The missing and murdered children don't seem to have been missing or murdered.  The pornographic films (or the studios where they were made) weren't discovered.  The gouged out eyeballs and lopped off body parts don't seem actually to have been gouged or lopped.  But the press dutifully (and enthusiastically) reported as true.  And juries often believed.

Because like Julie Bates, nobody could believe that little kids would lie.  At least not about something really awful being done to them.   And after all, the more you had to threaten them for not telling or reward them for telling, the more obviously true the allegations.

It's that story, built around the McMartin fiasco that started it all, that frames Beck's book.  He's not the first to tell it, but he tells it well.  From the allegations to the investigation to the trials and then the unraveling as it became clear that the absence of evidence really wasn't evidence of guilt.

And as he tells the McMartin Preschool story, so Beck tells of the national hysteria that ensued. Because if the Golem came to LA in the guise of Peggy McMartin, it must be in a Long Island basement masked as the Friedmans and dressed as James Rud at the Valley Green Trailer court in Jordan, Minnesota, and in Niles, Michigan and Malden, Massachusetts and Chicago and. . . .

Good god!  These monsters were everywhere destroying the lives of our children.  And the evidence was, of course, that the children could be browbeaten into saying so.  And that, stunningly, all the real evidence - the films, the ritually slaughtered animals and children, the hidden tunnels, the lopped off limbs - none of it could be found.  How diabolical!  And how much that proved.

For its considerable strengths, We Believe the Children is not without its weakness.  

Trying to find an underlying cause, Beck turns to the woman's movement and the increasing role of women in society.  The religious right and social conservatives glommed onto the idea of evil daycare as a way of punishing women who'd abandon the role of housewife and take an actual job - forcing her children into the day care clutches of committed Satanists.  My god.  He may not be entirely wrong, but it's overly simplistic as most here's-the-cause explanations tend to be.  (As others have noted, Beck's evidence doesn't really support his argument.  Beck points to Gloria Steinem's financial contributions and Ms. magazine's 1993 cover story headline, "BELIEVE IT! Cult Ritual Abuse Exists. One Woman's Story.")

Nor is Beck's exploration of Freudian (and Freud's own) analysis and the psychiatric and psychological worlds' embrace of multiple personality disorder particularly convincing.  

But the story.  The panic, the ruined lives, the political careers made.  (Janet Reno, Clinton's Attorney General, rode to Washington on the back of Frank Fuster whose wife, Ileana, as part of her plea deal joined the chorus of accusers telling a jury about how Frank, wearing "a white sheet and a strange mask, . . . had sexually assaulted her with a crucifix" and forced her to abuse kids.)

If you think Salem and the witch trials, you're on the right track.  It's a connection Beck makes explicit in his introduction, though he downplays the horror of Salem noting that once the hysteria there ended, there were apologies and reparations.  The victims of the day care hysteria, on the other hand? Well, some have had their convictions overturned.  Others continue to rot in our prisons.  Then again, they killed a bunch of folks up in Salem, and apologies and reparations didn't really do them any good.

Perhaps oddly (or perhaps I'm just wishing that Beck would climb onto one of my own hobby horses), Beck doesn't do much looking at what we haven't learned. 

The Golem, after all, turns out not to have been in the witches of Salem.  They didn't exist.  Nor was the Golem in the preschool teachers and day care workers who didn't do a damn thing to the kids. (Nor, and I'm straying only slightly, was the Golem in the communists and fellow travelers, like President Eisenhower, who Joe McCarthy and his ilk took on in the late 40s and early 50s.)  No, the Golem was the witch hunters, the prosecutors (and cops and parents and media and your next door neighbors).   

And the Golem remains.  This is the lesson implicit in We the Children.  It's the Golem of uncritical belief in the monster under the bed.  The Satanist, cult-predator, child-care workers of the 50s who could only be stopped by locking them up forever - and the damage they caused, my god - are in this year's flavor those who ever considered a sex act outside the missionary position between spouses. And maybe even then.

From the sex offender registries to the hysteria surrounding campus sexual aggression (he looked at me without first obtaining permission) is but a small step.  Believe the children?  We believe the accusers.  Just ask Danny Brown.

--------------
My thanks to Public Affairs Books for providing me a copy of We Believe the Children  for this review.

The Only Thing We Have to Fear

I did not write about the government's announcement (and why, by the way, did they announce it?) that it intended to question Dzhokhar Tsarnaev without first informing him of his Miranda rights. I didn't write about how the so-called "public-safety" exception made up by the Supremes in New York v. Quarles was, at the time it was invented, intended to be narrow and limited.  Nor did I write about how it happened (and somewhat oddly, I should perhaps add) that when he was given Miranda warnings he took them seriously and decided to shut up.

I didn't write about turning greater Boston into a police state, ordering the populace to stay home (except for the part of the populace that operates Dunkin Donuts), conducting door-to-door suspicionless warrantless searches which at least sometimes seem to have involved forcing the homeowners out of their homes and holding them at gunpoint.

I haven't written about Lindsey Graham and John McCain and Rudy Giuliani and all the whack jobs who haunt Fox news (brilliantly eviscerated by Jon Stewart here) are convinced it's time to take a red pencil to the Bill of Rights, saving only the Second Amendment and the part of the First that calls for the Free Exercise of Christianity (and maybe of Judaism in Israel) but prohibits all other religions.

For that, you can read Bennett and Horowitz and Greenfield and Gideon and Kennedy and . . . .  Enough.

Look, the bombing at the Boston marathon and all that followed scared folks shitless.  Scared them more, in many respects, than did the planes on 9/11.  But they're of a piece.  And when we get scared - that's when we name laws after children or lock people up at Gitmo (including the ones we agree don't need to be there, don't need to be locked up at all, but who we're still keeping imprisoned there for years, proably forever).  

Ahmed Ressam, the "Millennium Bomber," was part of a terrorist cell operating out of Canada.  He was arrested by customs inspectors  when he tried to drive a car carrying explosives from Canada to the U.S.  His intention was to blow up Los Angeles International Airport as the millennium turned.  He turned down a plea offer that would have had him in prison for 25 years, went to trial, and was convicted by a jury of nine counts.  

Ressam asked for a prison sentence of 12 1/2 years.  The government asked that he be locked up for 35.  The judge gave him 22. Appeal, much folderol, back for resentencing.  This time the government asked for 45 years.  Again the judge gave him 22.  Appeal, much folderol, the 9th Circuit told the judge it wasn't nearly enough time.

Back for a third sentence.  Probation services says that Ressam's Guideline sentence falls anywhere between 65 years and life.  (The judge's caclulation puts the Guideline range between 42 and 44 years.) The government this time asked for life.  The judge, and it's been the same judge every time, gave him 37 years to be followed by 5 years of supervised release.

Yawn.  I mean, really, who gives a shit about this stuff, Gamso?

You can, if you're inclined, read the 18 page Sentencing Order here.  If you do federal criminal defense, you probably want to.  (Hell, if you do a lot of it, you probably already have.) 

Yawn, yawn.  Have you got a point?  Are you ever going to get there?
 

See, the judge (he's the Honorable John C. Coughenour, by the way, appointed to the bench by Ronald Reagan) thought some preliminary remarks were in order.  So he blathered a bit about his gratitude to the 9th Circuit for setting him straight by twice reversing Ressam's sentence. And he talked about the heavy burden of figuring out what the right sentence is in a case and how he's been wrong and how "mistakes have left scars."

Yawn. Yawn.  Yawn.  Please, Gamso, get on with it.

OK, here it is.  The judge then wrote this paragraph (emphasis mine).

This case provokes our greatest fears. In the late 1990s, Mr. Ressam plotted a terrorist
attack against the United States with the potential to kill and injure a large number of people. Because Mr. Ressam planned this act of violence and took steps to carry it out, many, including the federal government, believe that Mr. Ressam is a continuing threat and he should never see freedom again. But fear is not, nor has it ever been, the guide for a federal sentencing judge. It is a foul ingredient for the sentencing calculus.

I want to be very clear about this.  There's nothing generous in the sentence.  Judge Coughenour shows no spectacular courage in imposing a sentence 2 years longer than the one the government originally asked him to impose (although considerably shorter than what the government now wanted).

But if the sentence is no bonus, the warning is.  For judges imposing sentence (or deciding whether to expand the public-safety exception to cover all information the cops would like to know), for legislators looking for more ways to write laws so that the protections of the Bill of Rights will only be available to those who have no need for or interest in them, and for all of us inclined to buckle with fear and say "how far" when some government worker says to strip and bend over and pull apart the cheeks.

In 1933, in his first inaugural address, FDR said

Of course, he forgot it when he thought it would be a good idea to act upon "fear itself" when he ordered Japanese-Americans into concentration camps.
Thing is, he was right at the inaugural. He should have been paying attention.

Worser and Worser

Criminal defense lawyer turned federal judge turned Harvard Law School professor Nancy Gertner has an important article/column/post/whateveritis at Cognoscenti, on the WBUR website.
We sentence more people to more time than we used to, she says, not because it serves any rational purpose but because we've largely abandoned the idea of sentencing based on rehabilitation and specific deterrence.  Instead, judges now sentence based on retribution.  The main goal of sentencing is no longer to keep us safe but to punish.

Three decades ago, we considered rehabilitation and specific deterrence to be more important than retribution. And while there were unquestionably problems with that approach, at the very least it enabled a discussion about what punishments made sense to ensure public safety, to minimize recidivism and to balance all of the purposes of sentencing. In addition, it permitted criminal justice experts in various fields – including judges – to participate in a meaningful discussion about crime.
But in the 1980s rehabilitation was discredited. On the eve of sentencing reform in the federal courts, one scholar wrote: “What works? Nothing!” – although he subsequently amended his views. The sentencing focus shifted for the most part to a single purpose: retribution. And for that purpose there were new “experts”: the public. If the most important question had become, “What punishment fits this crime?” Everyone could weigh in. 

And weigh in everyone did.
Now, if all you're concerned about is satisfying public anger or distaste or temper or disgust, if the desire to punish is what drives the system, well, there's no top.  

• Gee, if that guy only got five years then surely this guy should get 10.
• 15
• 20
• 30
• life
• death
• life and the then death
• death and then life

Sigh.
Gertner spreads the blame, putting much of it on the media for feeding the public a string of lies and misrepresentations convincing them that tougher, ever tougher sentences are necessary. 

By the late 1980s, crime issues were part and parcel of the political debate — think of the role of the Willie Horton ads in the 1988 presidential election. A decade later came the shock jocks and 24/7 pundits. What the public thinks about the crime, and thus what the criminal “deserves,” came to be shaped — indeed inflamed — by the press.
Meanwhile, criminal justice experts were sidelined. As Duke University law professor Sara Sun Beale argued in the aptly titled 1997 article “What’s Law Got to Do With It?” — criminal justice policy is largely driven by the media. The good news of falling crime rates over the past two decades was rarely reported; the nightly news famously reflected the principle, “if it bleeds, it leads.” The result? Popular punitiveness trumped everything, whether or not it bore any relationship to good public policy.

Gideon and Greenfield use Gertner's piece as a template, agreeing with and extending her anger.  Matt Brown shares their view, giving it the dynamic touch of moving from the abstract argument to the concrete reality with the story of a supposed honor killing of a young woman and its aftermath.  (I've edited slightly and removed links.)

Her father had apparently became enraged by her lifestyle, which by all accounts seemed to be typical of American girls her age. He ran her over with his SUV in a shopping mall parking lot, and the he fled. Based on the theory that it was a premeditated murder to preserve family honor, prosecutors charged him with first degree murder. He went to trial and was convicted not of the most serious charge, but of the lesser-included offense of second degree murder in addition to counts involving aggravated assault and leaving the scene of the accident.
This is where the case ties in with the posts mentioned above. You see, on April 15, 2011, the judge sentenced him to 16 years on the second degree murder count consecutive to 15 years on the aggravated assault count and 3.5 years on the two leaving the scene of an accident counts. The total sentence was 34.5 years, and he was 50 years old at the time of sentencing. Arizona isn’t like other states where a sentence ends up being a lot less than it might seem. Second degree murder requires flat time. The other counts likely require that he serve 85% at the very least. His exact release date, will be June 13, 2041. He will be over 80 years old. Given the typical impact imprisonment has on longevity, he is effectively serving a life sentence.

Which you'd think might be enough.  But no, Matt quotes Detective Chris Boughey.

I wasn't happy.  Still not. Never will be.

Why?

He got off easy, as far as I'm concerned.

Really? Because he could have gotten more time?
Because life isn't long enough?  I've discussed impossible sentences more than once.  (See here, for just one instance.) There are the folks sentenced to repeated executions, to death and then life (or perhaps the other way around), to sentences of multiple century's duration.
To what end?
Is there a lesson, a moral, even a meaning to a sentence that simply cannot be served?  Hard to see what it might be.  Those extra years are numbers for the sake of numbers.
But if we try for some sort of rational sentencing scheme, well then we have actually to figure out what makes sense.
Which requires thought.
And consideration.
And attention to actual evidence rather than spittle.
Sadly, that means we have to deal with the American public which, as Gertner and company point out, isn't really all that concerned with evidence.
After all, the world looks flat.
And the Bible says the world was created in 7 days, so there.
And women don't get pregnant from legitimate rapes, which are kind of like premarital sex.
And Custer died for all of us and Lubbock is ground zero for the UN invasion.
And then there's Osama.  You know, the dead guy.  The one the dems are crowing about having killed.  From Blade Slices, the politics blog Tom Troy writes for the Toledo Blade.

In its poll taken in Ohio Sept. 7-9, PPP says it asked the following question:

Q15 Who do you think deserves more credit for the
killing of Osama bin Laden: Barack Obama or
Mitt Romney?

The answers from Republicans were:

Barack Obama................................................ 38%
Mitt Romney.................................................... 15%
Not sure .......................................................... 47%

The answers from Democrats were:

Barack Obama................................................ 86%
Mitt Romney.................................................... 1%
Not sure .......................................................... 13%

Tom (and PPP) wonder about the numbers from among the Republicans and conclude that they just won't give Obama credit for anything.  That's probably a fair reading of the 38%.  More troubling, though, is the other 72%, and the 14% among Democrats.
Because even if you don't want to give Obama credit, how can you be confused or uncertain about whether Mitt had more to do with it unless you're either wholly ignorant or thoroughly gulled?
And, of course, some of those folks are going to be electing our judges, sitting on our juries, and telling the world that 25 years just isn't enough time for a guy who drove drunk and didn't hurt anyone. 

Man Bites Dog

“It is very common for the teachers of the year, the championship coaches and the vanguards of education to be perpetrators,’ said Terri Miller, president of the national organization Stop Educator Sexual Abuse, Misconduct and Exploitation, who said such teachers wear “a mask of deception.”

That's from an article by Colleen Diskin in the Bergen Record.
It seems that last year's winner of the "Teacher of the Year" award for Essex County, New Jersey just got charged with multiple counts of sexual abuse of a 15-year-old boy in one of her honors classes. But, as Ron Popeil would say.  That's not all.

[She]* is not the first award-winning teacher to be accused of having a sexual relationship with a teenage student. In 2008, James Darden was sentenced to eight years in prison, after admitting to having a two-year sexual relationship with a student that started when she was 13. In 2005, Darden had won the prestigious Milken Family Foundation Educator Award and his arrest shocked the community at Thomas Jefferson Middle School in Teaneck, where he had been a beloved and popular teacher.

See, it's a trend of two in four years.  Which is how we get to Terri Miller who tells us that a large percentage of the very best "educators" are also child molesters.
A couple of years ago, I told this story.

Emily Webb. Age 7. Left at the wrong school bus stop.
She told the school bus driver it wasn't her stop. She wasn't supposed to get off there. It's not where her mother was waiting. Didn't matter. The driver made her get off the bus.She was scared, crying.
An older man, old enough to be her father, offered to "help."
She left with him.

Amazingly enough, that man turned out not to be a child molester. He did not abduct Emily, did not rape her, did not abuse her in any way.
Clearly a miracle.  Her parents certainly thought so.

Both shudder at the thought she could just as easily have encountered a predator.

That's what Diane Petryk told us in the Sunbury [Pennsylvania] Daily Item, though I added the italics.  And let's focus on that italicized point for just a moment.  Here's what Lenore Skenazy had to say.

Really? "Just as easily?" So it's a 50-50 split now, between predators and everybody else on the street? If one person's walking a dog, the next one is probably carrying some duct tape and chloroform?

Well, actually, no.  No more than it's "very common" for star teachers, coaches, and other educators to be molesting their charges.
Does it happen? Sure.  And the media covers it with a vengeance when it does.  Why? Because it's rare.
Here's a question to consider?  Should you keep your kids away from the best teachers because they're probably rapists?  Hell, should you keep your kids out of school because all the teachers are predators?  
Yes, it happens that children are sometimes molested by their teachers. And sometimes by their doctors and their dentists and the guy at the shoe store.  
And sometimes (really, far more often), by their priest or their uncle or mom or dad or the family friend.
And even that's not the norm.
Maybe the Essex County Teacher of the Year did what she's accused of.  Maybe not.  Apparently James Darden, Milken Family Foundation Educator Award winner did.  It happens, and I don't mean to make light of it.  Abuse scars, even when the scars aren't visible.
But it really isn't the norm, isn't even common.
A sense of proportion, you know.

Remember, Emily Webb, age 7, Left at the wrong school bus stop.
Made it home safely. 
 
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*In keeping with my new policy of not naming accused-but-not-convicted sex offenders and thereby ruining the lives of those presumed innocent, I refer to the woman accused in this case only as "she."  

Tragedy - Something Must Be Done

It's a terrible story. Heartbreaking.

Thirteen-year-old Michael Thomas Truluck was hanging out with friends, maybe shooting some hoops.  He sent a text to his mom, Kristina Keys, asking for a ride home.  Mary Gail Hare in the Baltimore Sun picks up the story.

"I knew he was hanging out with a bunch of friends, and there was nothing unusual about that," Kristina Keys said. "He texted and asked for a ride home. We picked him and two friends up."
Keys said she had no idea that his Saturday afternoon, which usually included lunch at a fast-food restaurant and hoops at Double Rock Park in Parkville, involved drinking an alcohol-laced energy drink, which an unidentified adult purchased for the pre-teens. The drink, Four Loko, comes in a 23.5-ounce can that is 12 percent alcohol. The drink made her son ill, she said — his friends told her he had thrown up twice before getting in the car.
About 6:15 p.m., just as the family Jeep was making a left turn onto 8300 block of Harford Road, Michael said he was again feeling sick. He took off his seat belt, opened the front passenger door, fell out of the vehicle and was struck by a Ford Explorer driving north on Harford Road.

He died later that evening.

A terrible story.  Heartbreaking. 

Michael's mother, though, doesn't just mourn.  She's inspired to reach out. She wants others to know the dangers of the drink.

She hopes others learn from her son's experience, but she fears many parents are, as she was, in denial. She said she wants to alert parents to the problem of underage drinking.
"This drink is illegal and way too powerful for kids," she said. "They all think they are invincible, but this shows them they are not."
She also urged parents to communicate with their children. "Know where they are and who their friends are," she said.

But maybe there's a lesson that can save some other child. Good for her to try and find a way to turn her loss into something that can help others.

Education can save lives.  When it's sensbile, restrained, not over the top. 

But it will be.  

After all, you know, this happens all the time.

Which is why, as WTOP notes in its story on Michael's death, 

Maryland Attorney General Doug Gansler has made it clear something more needs to be done about alcohol-packed energy drinks. 

Let's be clear.  These things are alcoholic beverages.  They cannot legally be sold to people under 21 and, with certain narrow exceptions that vary (if they exist at all) at least a bit from state to state, they cannot legally be consumed by people under 21.

Of course, that doesn't stop underage consumption any more than prohibition stopped consumption period or the drug war has stopped the use of controlled substances.

And the danger.

I mean, think how often it happens

Young child gets hold of this stuff.  Gets sick.  Opens car door to vomit and falls out into traffic and gets run over.

OK, that's not altogether fair.  Four Loko has, according to a December report on WTOP,

contributed to alcohol poisonings and sexual assaults nationwide and to a woman's death in Maryland.

And it's that story WTOP links to for the claim that Gansler thinks "something more needs to be done."

But see, here's the thing.

What "needs to be done" isn't something he can do.  A new law won't help because it's not, fundamentally, a legal problem, certainly not a law enforcement problem.*

Oh, we can prohibit.  We can punish.  We can lock up the adults who give the drinks to kids.  We can lock up the kids who use them.  We can deny them benefits.  We can evict them and their families from public housing.  We can take away their college scholarships so they remain uneducated and coupled with the rest pretty well assure that they'll remain unemployed.

We can, perhaps, prevent the manufacturers from advertising and cover the drink cans with poison symbols.  We can scope and grope at the bus stop and the basketball courts.  We can leave children afraid to leave the home and parents afraid to let them.  (Hell, we already do that.  See here, for instance.)  We can prevent anyone from riding in cars.  Hell, we can get cars off the road - or allow cars but forbid drivers.  (Cars don't kill people. People kill people.)

Still someone will sell alcohol to kids or someone will buy it for them.

And still a kid will get drunk.

And still there will be an accident.

And a child will die.

And we can't change that.

No matter what child we name a new law after.

Because prohibition and criminalization isn't the answer.  It never was.  It never will be. 

Shakespeare made the point in Measure for Measure (Act II, Scene I). Pompey (a clownish but sensible servant) is being chastised by Escalus who, on behalf of Angelo (the interim ruler of Vienna) is trying to put an end to all extra-marital sex.

ESCALUS: How would you live, Pompey? By being a bawd? What do you think of the trade, Pompey? Is it a lawful trade?
POMPEY: If the law would allow it.
ESCALUS: But the law will not allow it, Pompey; nor it shall not be allowed in Vienna.
POMPEY: Does your worship mean to geld and spay all the youth of the city?
ESCALUS: No, Pompey.
POMPEY: Truly, sir, in my poor opinion they will to't then.

Which is still true.

And applies to more than just sex.

Michael Thomas Truluck (who had no luck at all). Dead at 13.

It's a terrible story. Heartbreaking.

Next week there'll be another.

We won't be able to prevent that one, either.

No matter what we do.

H/t Radley Balko and to Scott Greenfield for the footnote.

-----------------------

*There are, of course, those who disagree.  Consider Jack Marshall, self-appointed scold and ethicist to the universe who favors criminalizing everything that can be harmful and blames all who disagree with him for any harm caused to anyone.  (He says, for instance, that Ron Paul killed Whitney Houston because he favors drug legalization.) The sad news is that Marshall's not alone in his idiocy.

A Hero Passes

You know the story.

1942.  We were at war with Japan.  We were at war with Germany, too, but that was different because we hated Germans but they kind of looked like us and it was hard to be sure.  The Japanese, though, they even looked different.  And had different sorts of names.  And there'd been Genghis Khan and Fu Manchu.  And they were treacherous.  They attacked Pearl Harbor without first sending a post card announcing when they'd do it so we could be prepared to fight back.  And there was this long history of racism against Asians (who weren't, after all, white).

So we were at war and were scared and we hated them anyway, so we did what red-blooded Americans always do at times like that: We imposed a curfew on Japanese-Americans near the west coast.  Then we herded them into concentration camps.  More than 100,000 of them.

• Until it was over.
• Without trials.
• Without redress.
• Citzens and resident aliens.
• Who'd done nothing wrong.
• Except have that funny-colored skin.

Minoru Yasui, Fred Korematsu, and Gordon Hirabayashi refused.  They went to court where they would be protected, vindicated.

They believed in that silly thing called the Constitution.  Limited Government.  Equal Justice under law.  Even in times of war.  Even when we're scared.  Even if they were "yellow."

The courts, they knew, would enforce the Rule of Law against the Law of Rule.

They were wrong.  In a string of cases, the Supreme Court ruled against them.

• Korematsu v. United States
  
• Hirabayashi v. United States
• Yasui v. United States

Korematsu, decided in 1944, was a 6-3 decision, Justices Roberts, Murphy, and Jackson dissenting.

Hirabayashi and its companion case Yasui were decided in 1943 and were unanimous.

The Japanese interment and the Supreme Court's decisions are a national embarrassment and a stain on the judiciary. Of a piece with  Dred Scott, and Plessy v. Fergusen.

But Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui are heroes.  They stood up for what they knew (and we know) was right.  Despite the odds.  They fought.  And then they lost.  Still, they didn't give up.

Their convictions were reversed in the 1980s.  The government, it turns out, had already determined that the Japanese-Americans were no threat to national security.  It just wanted them put away. 

In 1988, the government apologized for its conduct and payed reparations to those it locked away for no reason but the color of their skin. Too little and too late, but something.

Minoru Yasui died in 1986.

Fred Korematsu died in 2005.

On December 31, Obama signed the National Defense Authorization Act which provides for indefinite detention without trial of anyone, citizen or not, found in this country or not, who's suspected of being somehow someway you know maybe could be connected to Al Qaeda or someone who might be somehow.

Two days later, on January 2, Gordon Hirabayashi died.  He was 93.  He was living in Canada.  May he rest in peace.

h/t Jonathan Katz

I'll Show You Mine If You'll Show Me Yours

He's 6.  She's 5.

They were, as the phrase goes, "playing doctor."

Oh, My God!  Call the cops.

Now, the good news is that, at least according to Sandy Cullen writing at Madison.com, a 6-year-old cannot be criminally charged in Wisconsin, not even as a juvenile.  The bad news is that the wily Wisconsin prosecutors, recognizing a sexual predator when they see one, have figured out a way to drag the boy and his parents into court.

Instead, prosecutors have included the allegations in a petition seeking protection or services for the boy. Such petitions are typically used by parents or authorities to identify children under 10 who need services to change inappropriate behavior.
If a judge finds the boy committed a delinquent act, the court can order that he and his family receive services such as counseling or other treatment.

So, he can't be charged with a delinquent act because he's too young.  But if he committed one, he can be "treated."  Cool how that works.

He won't be charged with sexual assault, but he'll be hauled into court to answer for it.

And then . . . .

Do I need to say that 5 and 6 year old boys and girls have been checking each other out forever?  Not for sexual gratification.  But out of curiosity.  

You probably did it.

So, gasp, did your parents.

It was not a precursor to rape.  Nobody was psychologically harmed.

Until the parents got involved.

And the cops.

And the courts.

The problem is one we've seen before and that I've written about before.  (See here, for instance.) We're terrified of the wrong things.  And we think that the courts and the cops can keep us safe from our fears.  But they can't.

If we're determined to see a monster behind every post, if we're convinced that all things which do not provide security are threatening, then we lose sight of the real risks.

Six or seven years ago, I was giving a talk about the Patriot Act and how it really did almost nothing to make us safer but went a long way toward invading our privacy and limiting our freedom.  During the question period after, a man stood up and asked,

If you take away the Patriot Act, what can you do to make me feel safer when I fly?

The question was silly, of course.  I can't take away the Patriot Act (would that I had such power).  And, really, there's probably nothing I could have done (since reason and actual evidence weren't working) to make him feel safer.  Frankly, I couldn't do anything actually to make him safer when he flew, either.   (Again, my limited powers.)  But sensible plans, realistic determinations of risk, there really are things that make sense.

And there are things that don't.  When we respond with visceral fears, we make the wrong choice.

There's probably nothing wrong that 5 year old girl or the 6 year old boy.

But Oh, my God.

We can call the cops and change that.

Better Safe Than Sorry. Or Something.

Helen Palsgraf was standing on the platform, waiting for the train that was going to take her to Rockaway Beach.  If you've gone to law school, you know the rest of the story. If not, or if you want a refresher, here's the plot, courtesy of Benjamin Cardozo, then Chief Judge of the New York Court of Appeals.

A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away.

The scales, of course, fell on Helen Palsgraf.  Naturally, she sued the railroad.

The issue in Palsgraf v. Long Island Railroad Company was whether Mrs. Palsgraf could recover for her injuries.  The vote was 4-3 in favor of the railroad.

The three dissenters said that she could recover.  The railroad's guards were negligent.  Their negligence was the proximate cause of her injury.  Therefore, the railroad was responsible and should pay damages.

The majority said that it didn't matter whether the guards were negligent, at least not in the first instance.  What mattered was whether Palsgraf was within a zone of danger.  That is, was it reasonably foreseeable that what the guards did - even if they did it negligently - would cause an injury to someone, say Mrs. Palsgraf, at the other end of the platform.  Since it was not, the railroad violated no duty to her and thus has no liability for injuries, even if its employees negligently caused them.

Causation, according to Cardozo and the majority, is simply irrelevant to claims for damages in tort unless the harm was reasonably foreseeable.  (They do acknowledge exceptions, about which more in a bit.)

My subject, of course, is not tort law but criminal law.  I've talked about the difference enough that I'm not going to dwell on it here.

Simple version:

• Criminal law is about the harm caused not to the individual victim of a criminal act but to the body politic.  The theory is that when A steals from B, it is not only B who is harmed.  A's action also tears the social fabric.  Criminal cases are, therefore, brought in the name of the local community or the state or the United States, and if the defendant is found guilty, punishment follows.
• Tort law is about the harm caused to the individual victim by a wrongful act.  When A steals from B, B gets to sue A for the harm A caused.  Tort cases are, therefore, brought by the personal, individual victim (or victim's representatives if the victim is, say dead, or otherwise can't sue), and if the defendant is found liable, some sort of restitution follows.

But if tort law and criminal law differ, they both deal with issues of liability and cause.

The general rule** adopted by the majority in Palsgraf and pretty much universally accepted today in the US is that tort liability requires

1. The defendant owes some sort of duty to the injured party.
2. The existence of that duty is determined by whether the injured party is within a zone of danger, that is, whether it's reasonably foreseeable that some degree of misconduct (action or inaction whether from simple carelessness or something worse) by the defendant, if it ends up causing harm at all, will cause harm to the injured party.
3. Harm to the injured party as a more-or-less direct result of the defendant's action or inaction.

All of which comes down to reasonable foreseeability and proximate cause.

The general rule in criminal cases where harm to individuals results*** is that criminal liability requires

1. Some violation or attempted violation of a legislatively adopted rule.
2. A reasonably foreseeable harm as a result.
3. Actual harm.

I'm leaving out so much that this is close to misleading.  But it doesn't matter because, really, this is all just a set up for talking about reasonable foreseeability and proximate cause (the Palsgraf issues) in criminal law.

And to do that, I need to tell you about a discussion last week on a listserv populated by lawyers and others who are either connected to the law somehow or just hangers on.  Here's roughly how it started.  (I've taken some authorial license to omit some irrelevant facts and fiddle with others; I'm making points here, not revisiting the substantive discussion.)

A college student was filling out one of those anonymous evaluations of his professor at the end of the semester.  Along with checking this, that, and the other thing, the student took the opportunity to explain that he was hot for the teacher.  He wanted sex.  Lots of it.  And was explicit about what he wanted.  Blow jobs.  Anal.  No mention in the post of bondage or particular positions, but perhaps there were such mentions and the poster was being coy or shy or whatever.  Poster didn't use words like fuck, either, but I suspect the student did.  Student also mentioned that he was always horny after class from the girl who sat in front of him.

OK, that's all highly weird in the comment section on a teacher evaluation.  And inappropriate.  And offensive.  Really, it's completely fucked.

But, and this wasn't the question posed by the person who put that on the listserv, but it's where the discussion following the question went: What's with this kid?  More specifically, is he

• Just a horny college student
• A guy with a terribly inappropriate and infantile sense of humor
• Someone on the cusp of becoming a serial rapist, possibly starting as soon as that day.
• Something else

Any of those things is possible.  Indeed, they could all be true.  (It's striking how many folks were prepared to provide a psychological profile they found compelling and virtually certain to be accurate on the basis of the summarized comments the student wrote.  But that's really beside the point.)  What gets me writing about it is what happens next.

Possibilities:

Ignore it.
Figure out which anonymous student wrote the stuff and then

Ignore it.
Try to keep that student out of your classes in the future.
Meet with the student to provide instruction in appropriate behavior.
Meet with the student to tell him off.
Have the student expelled.
Have the cops arrest the student.

(Yeah, hook up with the student is a theoretical possibility, but we're not going there.)

So how do you decide? 

Lots of stuff factors into the decision, of course, but key is just how dangerous you think the student is.

Imagine, if you will, that you're defending someone who's facing trial for murder.  Hell, make it a death penalty case.  Imagine that the evidence against your client is strong but not impregnable and that your client maintains he's innocent.  Now, imagine that you come to hear that your client wants to arrange to have the key witness against him killed.

Do you

• Cconfront the client and demand the truth about the crime and the threat?
• Investigate to determine whether your client really wants to have the witness killed?
  
• Tell the police that you heard that your client wants to have the witness killed?
• Ignore what you've heard?

Now let's hike it a bit further.  You don't just hear a rumor.  You have actual evidence, hard and credible evidence that your client doesn't just want to have the witness killed but has made arrangements to have the witness killed.

These are real world issues for criminal defense lawyers.  Ones they don't teach in legal ethics classes or test on the Multi-State Professional Responsibility multiple choice test prospective lawyers mostly have to pass along with the bar exam. And they have, potentially at least, real world consequences. 

Dead witness, executed defendant, disbarred lawyer.

Or maybe none of those.

But what you do here when you're the lawyer with that rumor or that hard evidence is more than a matter of legal ethics.  At some point you start to feel, maybe, the tug of something more like morality or human decency.  What you do about it?  That's a separate issue.  I'm interested here in that point where the tug starts making itself felt.

I know lawyers who practice criminal law who'd turn on their client as soon as they heard a rumor.  Others would live with the rumor, but when something starts to point toward credibility, they're running to the cops to rat out the client.

And I know some who'd say that no matter their knowledge, the witness's life isn't part of their charge.

But I want to go back to that student.  Because it turns out that what looks to me like an easy case - ignore the idiot - turned out not to be for a whole lot of people.  There are the ones who wanted to string him up by his balls before he got to commit all those rapes that were sure to follow.  And there are others not quite so ready to concede future guilt but seriously concerned enough to want to insist on expulsion.  Or counseling.  Or at least investigation.

And that takes us, in a truly roundabout way, to things we believe and what it takes to convince. 

In tort law, to bring this back to Helen Palsgraf and Chief Judge Cardozo, the issue ends up being phrased as reasonable foreseeability.  What makes sense to imagine.  Not what can one imagine.

We can imagine almost anything if we try hard enough.  ("Think lovelier thoughts, Michael," says Peter Pan to the youngest of the Darling children in the musical when his lovely thought [candy] isn't lovely enough to get him flying.)  And of course some go beyond mere imagining, joining the White Queen who managed to believe six impossible things before breakfast.

No, not what's theoretically possible (anything), but what's reasonable to believe.  What makes sense.

So let's go back to that student and what you do about him.  There are those who feared getting sued or the school getting sued by his rape victim.  After all, look at the evidence from which it's possible to imagine he'll become a rapist.  I said no, based on the one silly, perhaps offensive, certainly inappropriate set of comments, rape is not reasonably foreseeable.  

But what if you're wrong, came the response.

To which I wrote (edited slightly to make it more coherent here where there isn't the entire cockamamie previous discussion - for which, even if, especially if you've stuck with me this long, you should be grateful).

Sure. Life is tricky that way. We can be wrong. The student might turn out to be a rapist. Nearly anything is possible. (In fact, if you study quantum physics, you might conclude as some physicists do, not only that anything is possible but that given enough time every theoretical possibility will in fact occur. That is, the student both will and won't become a rapist. As will you and I and every other member of this list.)

But if the question is "reasonable foreseeability," which for tort purposes the bare minimum that would generate a duty to act (if such a duty could be generated at all), then theoretical possibilities are irrelevant. And while it's certainly possible that a person that student raped might sue the university (and might regardless of the inappropriate comments on the teacher evaluation), it's also possible that the student, on being outed (and not being a rapist) might sue.

Who's got a better case? Does either one have a credible case? One that would pass the laugh test? On the very limited information we actually have, and as a pure bar exam question, you could make arguments all over the place. But that's what lawyers do. Would any of them fly in the real world? Probably not. Almost frivolous law suits get filed all the time, of course. Judges are pretty good at dismissing them.

In Shakespeare's Measure for Measure (Act II, Scene I), Pompey (a clownish but sensible servant) is being chastised by Escalus who, on behalf of Angelo (the interim ruler of Vienna) is trying to put an end to all extra-marital sex.

ESCALUS: How would you live, Pompey? By being a bawd? What do you think of the trade, Pompey? Is it a lawful trade?
POMPEY: If the law would allow it.
ESCALUS: But the law will not allow it, Pompey; nor it shall not be allowed in Vienna.
POMPEY: Does your worship mean to geld and spay all the youth of the city?
ESCALUS: No, Pompey.
POMPEY: Truly, sir, in my poor opinion they will to't then.

See, the only way to guarantee that no student will cause harm that can be - however tenuously - traced back to the university is to assure that there are no students at the university. Or perhaps to conduct thorough and continual investigations and surveillance of each of them. That's unacceptable and frankly impossible. So all that's left is setting a floor. Something like the tort standard of "reasonable foreseeability" or maybe something even stronger than that, say actual likelihood. But if that's the standard, then the possibility that a dangerous person might slip through without meeting it is just what happens. In fact, it might happen whatever the standard. Unless you geld and spay all the youth of the city. And then make sure that nobody attends your university.

Escalus (really Angelo for whom he's readily fronting) is driven by self-righteous priggishness.  (And hypocrisy, we'll learn as the play goes on.)  The posters on that other list, like our legislators and especially judges and prosecutors are driven by self-righteous priggishness but also, and especially, by fear.  (And yes, by political considerations, too, though those are mostly subsumed under fear.)

But they make the same mistake.  They think can control human behavior by imagining the worst possible outcome.  And then convincing themselves that it's likely.  When it's not even reasonably foreseeable.

And then they want to geld and spay all the youth of the city.
Or just lock them all up.

Because you never know.

----------------

*Here's Cardozo, again, explaining what I just said in language virtually impenetrable to the first year law students who will read and be expected to understand his decision.  Please, if you're thinking about going to law school, imagine three years of this.  And note that I've made it simpler by silently deleting all citations.

The conduct of the defendant's guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. "Proof of negligence in the air, so to speak, will not do." "Negligence is the absence of care, according to the circumstances." The plaintiff as she stood upon the platform of the station might claim to be protected against intentional invasion of her bodily security. Such invasion is not charged. She might claim to be protected against unintentional invasion by conduct involving in the thought of reasonable men an unreasonable hazard that such invasion would ensue. These, from the point of view of the law, were the bounds of her immunity, with perhaps some rare exceptions, survivals for the most part of ancient forms of liability, where conduct is held to be at the peril of the actor. If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to her, did not take to itself the quality of a tort because it happened to be a wrong, though apparently not one involving the risk of bodily insecurity, with reference to some one else. "In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury."

** There are lots of exceptions.  They don't matter here.

*** Again, there are lots of exceptions.  It's also important to say that I'm excluding from this so-called "victimless" crimes:  most drug offenses, traffic offenses when there's no accident, unlawful possession of firearms, conspiracies where nothing actually occurs, etc.