Proud Member of the “Rakofsky 74″
Rakofsky badge (by Amy Derby ©)
Recent Posts
Subscribe via email


Technology 4 Lives

Archive for the ‘Criminal Law’ Category

Persistence is not key, especially after seventeen years of stalking

The nightmare began with a random act of kindness. The student body president, Jane*, saw a boy she described as an “outcast” struggling with homework in the library. She offered to tutor him, as she said, because she wanted to be nice.

“I just thought I would be a nice girl,” she tells The Seattle Times. “He was an outcast, somebody I wouldn’t be friends with.”

The boy, Tommy, interpreted it as something more. They were middle school students at the time, in 1994. Today, Tommy is 31 years old, and he will be spending more than a quarter century in prison for stalking Jane. A judge in Seattle sentenced him to what prosecutors called the longest prison term for stalking they could remember.

The Deer Stalker by E B StephensFor seventeen years, Tommy made various efforts to contact her. He sent her more than one hundred letters during that time. Sometimes he would threaten to kill her, and other times he would threaten to kill himself. His behavior got him expelled from high school, but the contact continued. Jane’s mother says she reached out to Tommy’s family, but they refused to do anything. At one point, he apparently wrote a letter from jail asking if he could come live with them upon his release.

In 2001, a court sentenced him to eight years in prison for violating an order of “no contact.” He served two years, and once he got out he was back to contacting her family to try to find her. He reportedly even threatened the judge’s life after his release.

He was back in court in 2011, facing two felony counts of stalking and many, many counts of violating restraining orders. By that time, according to prosecutors, he had 26 misdemeanors to his name for violating anti-harassment orders. He had also spent time in a mental health facility, where they deemed him mentally fit to stand trial. Upon his conviction, prosecutors asked for twenty years’ imprisonment. In January, the judge imposed a sentence of 26 1/2 years. Barring any sort of early release, he will be in prison for almost as long as he has been alive so far. Compare that, of course, to the fact that Jane has endured his harassment for more than half of her life.

She had an opportunity to address him directly at the sentencing hearing, in a way that manages to be both vindicating and heartbreaking:

“Please listen to me,” [she] said in court Tuesday. “I don’t love you. I don’t like you. I don’t intend to ever be with you. Please quit trying to contact me or my other family members. We want to be left alone.”

His statement to the court, though, is downright chilling:

Defense attorney Robert Jourdan told [Superior Court Judge Patrick] Oishi that [Tommy] has no support from his family, and no job skills or education. He said that [Tommy] believes prison is the “safest place” for him.

“Your honor, this started all from a phone call … all I did was contact people,” [Tommy] said when given a chance to speak. “As my attorney has said, I don’t mind being in custody for the rest of my life.”

Neither [Tommy] nor his attorney objected to the lengthy term. The sentence includes 7½ years for the two felony counts and 19 years for the misdemeanor counts.

I’m no psychologist, but obviously something went terribly wrong with Tommy. Jane told reporters that she does not expect the letters to stop. I’m sure the prison will figure out how to intercept letters sent directly to her, but a sufficiently-determined person will probably find a way to get some communications out there. I don’t know what, if anything could have been done differently in the past 17 years, but as the situation stands no one can come up with anything but to lock Tommy in a box, away and out of sight, for the next 26+ years. It is hard to muster up sympathy for Tommy. He destroyed multiple lives through his actions–even if he never turned to overt violence, do not underestimate the power of mental abuse, especially over such a long period of time.

It’s tempting to try to draw some broader lesson from this: what does this case say about how poorly we communicate? What does it say about how boys interact with girls, and men with women? I don’t know that there is such a lesson to gain here, except perhaps in how we react to the story. This case has been a tragedy, not only for Jane and her family, but really for Tommy, too, who could not get it together for whatever reason and will now spend decades behind bars.

* I am not using their real names because it seems like they have been through enough. If you simply must know, the linked articles have their names.

Photo credits: Stephen McKay [CC-BY-SA-2.0], via Wikimedia Commons

Share

Forty Years

He could have faced five years in prison, or the rest of his life. On Friday, a judge sentenced him to 40 years. If he serves the whole sentence, he will be 83 years old when he gets out.

A jury found Jon Thomas Ford guilty of murder Friday in the strangulation of Dana Clair Edwards, and — after listening to her father and a dozen of the defendant’s friends during a punishment hearing — sentenced him to 40 years in prison.

Ford was taken into custody after the sentence was announced.

Because they were potential witnesses, parents Darrell and Deborah Edwards spent most of the four-week trial sitting in a corridor outside the courtroom — a black backpack always by their side.

On Friday, when Darrell Edwards finally took the witness stand as the state’s sole punishment witness, he told jurors the backpack contained the ashes of his daughter and her dog Grit, who was found dead a week after she was killed Jan. 1, 2009.

“This long period of time has been devastating psychologically,” Darrell Edwards, who wore a lapel button over his suit jacket that said “I (heart) D.C.,” told the jury. “We refer to it as another day in purgatory.”

***

Dana Edwards, 32, was described during the trial as an idealist, a class president in high school and an academic standout through graduate school.

She attended medical school but dropped out after a serious accident left her with lasting physical maladies. She went to work for her parents and lived in the condo just outside Alamo Heights that they used as their office.

Authorities said Ford, now 43, strangled Edwards there in the first hours of 2009, after both attended the same New Year’s Eve party. The two dated several years but Edwards had broken it off three months earlier.

Ford’s head briefly sank as state District Judge Maria Teresa Herr read the guilty verdict — his only explicit display of emotion throughout the trial.

It took jurors less than eight hours over two days to reach the guilty verdict and about an hour to decide punishment.

I talked a bit about this case last week. It is difficult to talk objectively about it, and maybe it will never be easy. I had a running supply of news about the trial as it happened, even if I didn’t read every article. The best I can do is post the compendium of news I received:

Photo by Craig KapitanThere are more articles at the Express News‘ website, mySA.com.

I also wanted to mention, with gratitude, Express News reporter Craig Kapitan, who tweets as @hearsaySA. He attended and live-tweeted the entire trial. He tweeted this photo of jury members meeting Dana’s family. Prosecutor Catherine Babbitt reportedly said that was the first time she had seen that happen in 22 years practicing law. Take what you will from that.

Something one of the prosecutors, Kirsta Melton, said about the case stuck with me, and it ought to haunt everybody a bit:

“Nothing is more dangerous than … evil cloaked in the appearance of good,” Melton said. “It was that gentlemanly disguise, that quiet tone … that caused Dana Clair to let him in.”

Jurors should not feel guilt about their part in a trial that was spurred by Ford’s own bad decisions, she added.

“Jon Thomas Ford had every advantage. Every benefit. People have given him the very best from day one,” Melton said. “He knows right from wrong … and yet he chose to kill.”

Share

Sometimes it’s personal

This may not be the most well-thought-out post I’ve ever written. I never really intended this blog to be a place for personal thoughts, but sometimes the personal and the legal intersect. I have spent the past few weeks trying to ignore a criminal trial going on down in San Antonio, because I did not trust my ability to keep my cool about it. This is why we make sure jury members do not personally know the people involved in a trial, and why lawyers generally should not represent people with whom they have emotional involvement (when it’s a serious issue).

I just got an e-mail linking to the following news article (excerpted):

Jurors filtered out of a courtroom packed to capacity Thursday afternoon and began deliberating the fate of Alamo Heights resident Jon Thomas Ford, who is accused of strangling his ex-girlfriend and killing her dog in the first hours of 2009.

If convicted, Ford, 43, could face up to life in prison for the murder of Dana Clair Edwards, 32, who had broken up with him three months earlier.

During three hours of closing arguments Thursday, defense attorney Dick DeGuerin repeatedly referred to the prosecution’s own admission at the outset of the trial more than three weeks ago that the San Antonio Police Department “screwed up” the investigation.

DeGuerin pointed to what he characterized as untrustworthy witnesses, faulty DNA analysis, indecisive surveillance video, a “ridiculous” proposed timeline purporting to show how his client committed the crime, an incomplete autopsy and an unreliable investigation swayed by small-town rumors and intense pressure from the victim’s parents.

“This is a circumstantial evidence case,” DeGuerin said as he accused the lead detective of having a “blind focus” on Ford at the expense of all evidence to the contrary. “Circumstantial evidence has to answer all your questions.”

***

Prosecutor Catherine Babbitt accused DeGuerin of trying to confuse and distract jurors by focusing on individual pieces of evidence in a vacuum instead of viewing them as a whole.

“It’s common-sensical. It’s not rocket science. It’s putting pieces of evidence together,” she said. “But they don’t want you to do that.”

While not obligated to give a motive, Babbitt speculated that Ford had hoped to re-spark the relationship with Edwards in recent weeks and was rebuffed. Perhaps, she said, he snapped after he was teased at a New Year’s Eve party about disinterest in marriage.

“If you keep stuffing and stuffing and stuffing (emotions away), what happens? It explodes,” Babbitt said, referring to defense testimony from Wednesday that friends had never seen Ford angry in decades of knowing him. Babbitt also played for jurors a portion of Ford’s interview with police in which he said, “I cannot think of anyone who did not like her.” At the crime scene, no valuables were taken and she was not raped, Babbitt said.

“This is a very personal crime,” she said, pointing to a poster-sized picture of Edwards and her dog. “The only thing the killer wanted was these two. If not him, who?”

The defense had emphasized earlier that it isn’t Ford’s burden to find the real killer. Cases often go unsolved for years, DeGuerin said. His client declined to testify.

If Ford is convicted, jurors in the 186th state District Court will decide his punishment.

I read some of the day-by-day summaries,  but I tried to avoid Twitter updates from people watching the trial. We had waited years for this trial to happen, and it proved more difficult to follow than I expected.

I had known Dana for the better part of three decades. Our parents have been friends for longer than that. Our dads were business partners for a long time.

I thought about writing about this earlier, but I simply cannot view this case objectively. I cannot see this as a lawyer, only as a person who lost a friend. I don’t know the defendant, and I don’t care to. He may be completely innocent, or his lawyer may succeed at convincing the jury to see reasonable doubt even if he is guilty as shit. No one has any control over that. I’m struggling to voice no opinion here about the defendant, whose name I couldn’t even remember before the trial started. He honestly means nothing to me. I’d rather remember the woman he may or may not have taken from us.

We were never especially close friends. I hadn’t seen her in a couple of years, as best I recall, when I got the news she was gone. That moment is burned in my brain forever. I think we met for the first time when our families and some other people met for a weekend at the coast, somewhere near Port Aransas. That was probably 1980. We hung out at various times when out families got together. As young children, I wouldn’t exactly say we were “friends”–a boy and girl about two years apart in age. She had an Atari 2600 with the Pac-Man game when it first came out, though, so that made her cool to hang out with. I think friendship came in adulthood, even if we only saw each other at occasional holidays.

Truth be told, my real feeling is regret. I miss Dana terribly now that she is gone. The world was simply a better place with her in it.

If there could be a better testament to her life than what happened at her memorial, I can’t think of one: she was a huge animal welfare advocate, and someone (I’m not sure who) arranged to have the local Humane Society have some puppies at the church. Before I even had a chance to go play with a few of them, every single one of them was adopted.

Share

Joe Paterno and Bernie

The Canadian band Lowest of the Low released a song in 1991 called “So Long Bernie.” I discovered the band through Pandora a couple of years ago, and this song stuck with me. It hides a very dark theme under a rather jangly rock beat, which may be what makes it so haunting. The video here is an acoustic performance where you can hear the lyrics pretty well. A full live recording is here. The song (not based on any real event – I checked) essentially asks the question “What if you found out that your friend was actually a killer?” The singer describes seeing his friend on television being arrested and pondering what might have caused him to commit such a senseless crime. The full lyrics are here, but the last verse is what stuck in my head (bolded for what I wanted to emphasize):

So, now your mind is full of blood
A simple scream in place of every single thing you’ve done
They found her in a field
And when they found you swinging, well no one shed a tear
When they found you dangling, well, no one shed a tear
Ah, when they found you hanging…
Why would they shed a tear?
Why shed one tear?

We don’t know who “Bernie” is. We don’t know what he did for a living, or if he and the singer were close friends or just acquaintances. Sure, it’s only a four-minute song, but the point of that first bolded line above is that none of that would matter any more anyway. Whatever Bernie has done with his life, whatever accomplishments he may have made, even whatever joy he may have brought to others, all fade away with a “simple scream.” Bernie’s past, and his future, have been erased by his crime. All anyone will ever remember of him is the crime he committed.

Not only has Bernie lost the right to claim his accomplishments because of his crime, but he has also lost his claim on our empathy, as the second bolded line says. No one will mourn Bernie when he is gone, because he is a monster.

We do not do well with ambiguity. We like our heroes noble and valiant, and our villains unabashedly evil. We let our preconceived notions color and shape how we perceive just about everything, and it is very hard to break free. When we very much want to believe something, we have evolved many tools to find a way to believe it. We can rightly condemn someone like Bernie, who committed a horrific crime (if you don’t want to watch the video, it involves an unknown woman and a “six-inch blade”). He is “the villain,” without much ambiguity. When others fail to fit the hero/villain dichotomy perfectly (and they always fail to do so), we struggle.

DSC_0430 copyJoe Paterno was not a murderer. Let me get rid of that part of the metaphor right away. What he undoubtedly was, to many people, was a hero. Perhaps even a capital-H Hero.

He was never charged with a crime, because his alleged actions or inactions were not criminal in and of themselves. The various actors in this affair have yet to have their full day in court, so everything is still “alleged.” Paterno allegedly knew about accusations against Jerry Sandusky. He allegedly knew that at least one person saw Sandusky in an act of, well, you’ve read the news. He reported the matter to the administration. And that’s it. No calls to the police, and evidently no follow up. His interview shortly before his death read as a textbook example of CYA. To those incensed by the allegations against Jerry Sandusky, it was unconscionable and unforgivable that this could have happened under the nose of the most legendary football coach in history. He claims he knew little, and he did little about it, or so we think. Standing by in the face of a crime can be as bad as committing the crime yourself. The truth is, we will never know exactly how much or how little he knew. In the fury of the scandal though, that didn’t matter. The Hero became one of the Villains.

Unless, of course, you were a Penn State fan. If JoePa was truly the Hero, it was exceedingly difficult to reconcile the Hero with such horrific crimes. Even if JoePa didn’t commit a crime himself, how could the Hero have let this happen so close by? No, it must be something else. He must have done everything he could. It was the administration’s responsibility. Maybe it wasn’t as bad as it sounds. They were certainly too hasty in firing him! (Lest anyone think these are straw men, they’re not.)

Joe Paterno statue - Beaver StadiumNow that the Hero is gone, it is a natural human reaction to make him even more Heroic. Social convention frowns upon speaking too ill of the deceased too soon, when the deceased is the Hero. Those who viewed JoePa as the Hero want to use this time to laud his accomplishments: over six decades coaching at Penn State, and all that came with it. Yes, he accomplished much during his life, but social convention must not let the Hero overshadow the Villian. In reality, both can occupy one person. We can remember the good someone did without denying the bad, and we can condemn the bad without forgetting the good. We are just very, very bad at striking that balance.

That balance between Hero and Villain is never 50/50, and there will never be consensus about the balance. For some, JoePa will always be the Hero, and for others the Villain. The question that everyone should address as honestly and objectively as possible is this: which is more important? Phenomenal accomplishments on the football field, or protecting children entrusted to someone working in the space you control? Honor the man if you wish. Death is always tragic, and lives should always be celebrated by those who loved the departed. Some tarnish, though cannot, and should not, be wiped away.

The merits of college football–of athletics in general–is a debate for another day. The bottom line (for me at least) is this: none of his supposedly laudable accomplishments matter anymore. When faced with the possibility of such a horrific crime occurring under his nose, Joe Paterno did the bare minimum required of him. As I said before, he committed no crime. He was not legally obligated to go to the police. He went to his nominal superiors. Then he sat by while nothing happened. This goes beyond mere legal obligations. In the face of a possible crime on his watch, a truly atrocious one at that, he did the least amount required.

The Hero did the bare minimum. That is not heroism. It is cowardice. That simple cowardice replaces every single thing he’s done. For the legacy of Joe Paterno, why would I shed a tear?

Photo credit: DSC_0430 copy by jkahnpsu, on Flickr; Joe Paterno statue – Beaver Stadium by kerrycrow, on Flickr.

Share

Boobs and booze: In Utah, never the twain shall meet

Utah bars: sweater puppy free since 1896!

The Utah Department of Alcoholic Beverage Control has fined Brewvies Cinema Pub in Salt Lake City $1,627 for violating “attire and conduct” regulations. The offense? While serving alcohol, the bar showed the move “The Hangover Part II,” which features nudity, sexual content, and so on.

It’s tempting to mutter “crazy Mormons” under your breath and move on, but this merits a bit more examination. Also, I don’t know that this has anything to do with the peculiarities of Mormonism in particular, and I’d rather make this about dumb laws being enforced in a dumb way than about any sort of religious thing.

See, here’s the thing that sticks in my craw: the fine levied against Brewvies is $400 more than the fine levied against another Salt Lake City bar, Jam in the Marmalade [Ed.: Huh?], for serving alcohol to a minor.

Yes, serving booze in the presence of two-dimensional boobs can carry a greater penalty than serving alcohol to someone not of legal drinking age. Something is amiss here.

To their credit, the officials in charge of assessing and enforcing the fines seem less than thrilled with the situation (although that did not stop them from issuing the fine in the first place):

“I’m struggling with the concept that an adult beverage may be served but an adult movie cannot be shown at the same time,” said newly appointed [liquor-control] commissioner Constance White.

Commissioner David Gladwell said he had concerns with the “grave” offense levied against Brewvies. He noted that Jam in the Marmalade restaurant was slapped with a lesser “serious” offense involving service to an underage drinker.

So, maybe there is a chance at either leniency in this case after a little hue and cry, or maybe some basic common sense regarding future incidents of people daring to watch an R-rated movie with a beer. I would also point out that Brewvies describes itself as a “cinema pub,” and its name appears to be a mashup of “brew” and “movies.” This is what they do. If you make it so they can only show Disney movies, you’ve sort of missed the point of a cinema pub.

To the many people in Utah who are not crazy (you know who you are), I invite you to come visit Austin’s Alamo Drafthouse. They have good burgers, beer, and more nudity than you can shake a stick at. Interpret that last sentence however the hell you want.

Share

A Wisconsin professor had best make peace with his dear and fluffy lord

I have one viable claim to hipsterdom: I was into “Firefly” before it was cool.

I watched the show obsessively in the fall of 2002. I evangelized for it. I yelled at people who dared to doubt its awesomeness. I wrote letters to Fox urging them to give the show a fair shake. I mourned–O, how I mourned!–when the show came to its ignominious end (oddly enough, by showing the very first episode last).

Several years later, when the DVD allowed the multitudes of people who either didn’t know about the show in 2002 or had better things to do on a Friday night in 2002 and couldn’t work a VCR to discover the show anew, I was there to say “I told you so.” When a surge of popular support and demand led to the 2005 release of Serenity, the feature film follow-up to the TV series, I was out front to see it, to marvel at the power of fans, and (SPOILERS AHEAD) to mourn Book and Wash.

“Firefly” lives on in many ways, even if Joss Whedon’s subsequent projects haven’t been quite as compelling (although I am a big Dr. Horrible fan). The career of Summer Glau as the go-to strange, smart, unsettlingly hot guest actress on various shows (most recently “Alphas”) is but one of the testaments of “Firefly.” It has also left a lasting impact on my vocabulary (“shiny”) and left us many, many excellent quotes.

And that’s where I am no longer content to say that haters gotta hate.

That’s where the tribulations of University of Wisconsin-Stout theater professor James Miller enter the picture. Professor Miller’s tale threatens so many of the things I hold dear in life: satire, snark, free expression, generous use of move and TV quotes, pushing both buttons and envelopes, and so forth. To understand Professor James Miller, though, you must first understand Captain Malcolm Reynolds.

Captain Malcolm Reynolds, or “Mal” to those who know him (he doesn’t really have friends per se) is a fictional character portrayed by actor Nathan Fillion, but not a soul has seen an episode of “Firefly” and not wanted to hang out with Mal. He fought on the losing side of a mid-26th-century civil war waged across an entire solar system. Afterwards, he bought a spaceship (a Firefly-class cruiser) and travels the ‘Verse. If you have a job, he and his crew will take it. They don’t much care what it is.

Malcolm Reynolds, via io9 (Fair Use applies)

I'm shaking in my shoes. How about you? (via io9)

Mal left us with quite a few classics of television philosophy before they took the sky from him. Chief among those is this exchange with a new passenger on his ship:

Simon: I’m trying to put this as delicately as I can…how do I know you won’t kill me in my sleep?
Mal: You don’t know me, son, so let me explain this to you once: If I ever kill you, you’ll be awake. You’ll be facing me. And you’ll be armed.

See, it’s an expression of honor. Mal wants Simon to know that, even though Mal doesn’t like Simon, Simon is part of his crew. As such, Mal will protect him, fight for him, and never, ever betray him. (Part of the story is that Simon has a hefty price on his head as a fugitive from the government, and has to stay hidden and on the run. Simon is extremely nonviolent. Mal offers him safe haven.)

Not everyone sees the quote that way, of course. Specifically, Lisa Walter, UW-Stout’s chief of police/director of parking services, found a poster on Professor Miller’s office door displaying that Malcolm Reynolds quote to be unacceptably threatening for an academic environment. So she took it down, and then notified Professor Miller. She told him that “it is unacceptable to have postings such as this that refer to killing.” She further warned him that future postings in a similar vein could lead to a charge of disorderly conduct.

Seriously.

I was not able to locate any examples of UW-Stout faculty or staff getting into criminal trouble for being a Roberta Flack fan, but it is possible that it could happen using Chief Walters’ standard.

Professor Miller, not being one to go quietly, put up a new poster stating his thoughts on the dangers of fascism and its possible effects on the skull and brain. Of course, UW-Stout administration, having spent the past several years developing an immunity to irony, found this poster comparably objectionable, somehow concluding that Professor Miller was encouraging fascist violence.

The matter went up the chain of command, all the way to the university chancellor. Surely the highest echelons of university power could see this for the overblown clusterf*** that it was, and cooler heads could prevail, right?

Via The Daily Caller (Fair Use applies)

Apparently this is an actual call to arms or something (via The Daily Caller)

If you think that’s where this story is going, you must be new to my blog. I deal in stupid stuff.

Chancellor Charles W. Sorensen had this to say:

[W]e…have the responsibility to promote a campus environment that is free from threats of any kind—both direct and implied. It was our belief, after consultation with UW System legal counsel, that the posters in question constituted an implied threat of violence.  That is why they were removed.

This was not an act of censorship.  This was an act of sensitivity to and care for our shared community, and was intended to maintain a campus climate in which everyone can feel welcome, safe and secure.

So a quote identifying all the reasons why a fictional character won’t kill you, along with an obviously-stylized bit of satirical protest, constitutes “an implied threat of violence”? Is the administration honestly worried that Professor Miller might come to school with a gun and only shoot people who are similarly armed, awake, and facing him? Or that he might don a helmet and beat stick figures with a baton? Have universities become so teacuppish that students cannot handle this level of non-threats?

I weep for the future. I weep for the students of UW-Stout who have to get an education and plan for a future in such a colossally cowardly institution. I weep for the cancellation of “Firefly” (and no, Fox, I am never letting that go, dammit.)

I end with the remainder of that exchange between Mal and Simon:

Simon: Are you always this sentimental?
Mal: I had a good day.
Simon: You had the Alliance on you, criminals and savages… half the people on the ship have been shot or wounded including yourself, and you’re harboring known fugitives.
Mal: We’re still flying.
Simon: That’s not much.
Mal: It’s enough.

Extra reading on this topic:
College professor threatened with criminal charges for Firefly quote, io9, September 26, 2011
I Swear By My Pretty Floral Bonnet, I Will Censor You, Popehat, September 26, 2011
Chancellor Charles W. Sorensen Vigilant Against Threat of Satire, Figurative Speech, Hurt Feelings, Popehat, September 28, 2011
Banned posters rile ‘Firefly’ TV show fans against UW-Stout, Pioneer Press, September 29, 2011

Share

Murder no bar to custody, says dispassionate judge

A mother in Oregon, Trisha Conlon, recently lost a custody battle with her ex-husband, John P. Cushing Jr. The reason this has been news is because Cushing is now re-married to Kristine Cushing, whom he divorced after she murdered their two children in 1991. Kristine Cushing was found not guilty by reason of temporary insanity, and she attributed her actions to a bad reaction to Prozac. Conlon is understandably upset that she will now have an active role in raising Conlon’s two teenage sons.

This is a doozy of a case. What struck me, leaving aside the very pertinent issues of the safety of the children, is what the judge had to say after making his ruling:

Commissioner Leonid Ponomarchuk said that because the boys had been spending time with Kristine Cushing since 2008 with no problems — even if it was unknown to Conlon — there wasn’t evidence of a change in the situation that would warrant an alteration of the parenting plan.

“I have to look at this dispassionately,” Ponomarchuk said. “Would I ever want my children around her? I would say no. But that is an emotional reaction coming from a parent.”

Picture by Stephen StaceyAs emotional as the case is, I agree with the judge here. I cannot say for certain if I agree with the ruling itself, but he is right about his duty to be dispassionate. Kristine Cushing was ruled temporarily insane, was treated at a psychiatric hospital and released, and has by all accounts “paid her debt to society.” If her actions (which technically do not constitute a crime) really were caused by an adverse reaction to Prozac (which, while controversial, is not unheard of), then she should not be a danger to the children as long as her psychiatric condition is monitored and she stays away from drugs like Prozac. It is difficult, if not impossible, to make that kind of analysis if you view the situation emotionally. Emotionally, the notion that CHILDREN ARE IN DANGER overshadows all other considerations, even when the evidence suggests that the danger is unlikely. It is an uncomfortable situation, but I cannot say the judge was wrong in his decision. I know he was right in his duty.

This case also led me to wonder what might happen if, instead of a woman who had killed her children, it was a man on the sex offender registry at the center of the story. Obviously the public outcry would likely be the same or greater, but how a judge might rule is an interesting question. Something somewhat like this is going on in Florida. In the case of Miranda Wilkerson, Donald Coleman has been awarded custody of his 4 year-old daughter Miranda. Coleman is on the sex offender registry for impregnating the child’s mother, whom he later married despite a 24-year age difference. The child’s mother died shortly after she was born, and the child went to live with her maternal grandmother, Rita Manning. Manning is now fighting to regain custody. An interesting tidbit here is that Coleman is the legal father of the child, since he was married to the mother when she was born, but he is not the biological father.

In many circumstances, it might seem noble for a man to fight for the right, and obligation, to care for a child who is not biologically related to him, as opposed to rejecting any responsibility. This is not one of those cases, unless it is. It appears that everyone in this case has some baggage: Coleman has a history of domestic violence (according to local news) and is on the sex offender registry, while Manning has received probation for child neglect. If the only things you hear are SEX OFFENDER and CHILD IN DANGER then it is easy to conclude that the judge made a colossal error. Court documents show, however, that this is indeed a complicated case:

Court documents released Friday afternoon detail how, after First Coast News started asking questions about why Coleman was fighting to get custody of another man’s child, his attorney filed a motion to get Miranda.

The motion said the woman who has been caring for Miranda since birth, her grandmother Rita Manning, was keeping him from the child and that Miranda was in danger.

The motion said Manning has a history of arrests: In 1995, she was charged with contributing to the delinquency of a child, but the case was later dropped.

In 1997, Manning was charged with child neglect. Around the same time, Manning’s then 14-year-old daughter, who is Miranda’s mother, got pregnant by Coleman who was 38-years-old. Manning got probation.

Coleman was sentenced to register as a sex offender for the rest of his life.

Perhaps Coleman was the best of some bad options. His status as a sex offender creates some automatic negative associations that must have weighed against him in court. He broke the law and did something many find both abhorrent and creepy, but it is a fair question whether his status as a sex offender by itself proves that he poses any ongoing danger. The same can be said for Manning and her history. It takes quite a bit of dispassion to slog through this mess of facts, arguments and innuendos.

We may not always like the way judges rule. We may suspect the impartiality of judges at times, and we are right to always demand adherence to the rules of judicial conduct. What we should never do is demand that judges use emotion to determine their rulings.

Share

Court appearances just got more cuddly

Photo by Be Inspire

Photo by Be Inspire

Interesting news out of New York: they are now allowing service dogs on a witness stand.

It was a tense moment in a Poughkeepsie courtroom when a 15-year-old girl who had been the victim of sexual abuse for four years was asked to point out the man who had violated her. The girl seemed to freeze.

Then a furry snout and wet brown nose came up over the stand and nudged her arm.

The girl’s demeanor changed and she was able to point out the man in the courtroom and continue with her testimony. The man was found guilty and is facing 25 years to life in prison.

The snout that helped the girl overcome the difficult moment on June 13 belongs to Rose, affectionately called Rosie, an 11-year-old golden retriever service dog whose specialty is comforting people.

This is the first time in New York State that a service dog has sat on the witness stand during a trial.

The dogs are trained to help children who might otherwise be nervous or intimidated in a courtroom.

[Clinical social worker Lori] Stella said she noticed an immediate change in the young girl from the day she first met [the dog] Rosie. “I could physically see her anxiety diminishing,” Stella said.

Measures were taken to make sure Rosie was as inconspicuous as possible.

The dog was behind the witness stand and could not be seen by those sitting in the gallery, except when she poked her head up to nudge the victim and the judge gave very specific instructions to the jury that they were not to make any interpretations about why the dog was there.

Photo by Noël Zia Lee

Photo by Noël Zia Lee

I applaud both making the dog available and making efforts to keep the dog inconspicuous. It’s impossible to keep such a thing hidden from a jury, and I do wonder if this is a bell that can be unrung, or if having a service dog supporting a witness creates automatic sympathy for the witness unrelated to their testimony. It may eventually be no different than an injured litigant appearing on the witness stand in a cast, but we are not there yet. The defense attorneys in the above case raised some valid points in objection, as noted by the Companion Animal Law Blog:

One argument the attorneys made is that Rosie’s presence biased the jurors by making them empathize with the teenager. A second argument is that a therapy dog is trained to encourage a person under stress to continue to testify, but a witness may be under stress whether they were testifying truthfully or lying. Another argument is that the attorneys are unable to cross examine the dog.  Yet another argument is that jurors may pick up on subtle actions such as the dog nudging the witness or the witness leaning into or hugging the dog, and think that those parts of the testimony are somehow more truthful or significant. In fact, during Tohom’s trial, the dog reportedly nudged the teen at one point when she hesitated in her testimony. Although no New York courts have dealt with the issue of a courtroom dog, the judge pointed to a case allowing a witness to have a teddy bear while testifying as grounds to allow Rosie into the witness box.

I tend to think that the benefits of allowing witnesses to have support from a companion animal outweigh the objections made by the defendant’s lawyers. It is certainly preferable to other methods of allowing testimony by witnesses who might be too distressed to appear in court (which include testimony from a third party about the witness’ statements and testimony via closed circuit TV).

I’m not particularly convinced by the argument relating to the witness’ truthfulness–having a dog present shouldn’t make a witness more or less likely to lie. Furthermore, I don’t see why cross-examination of the dog would be necessary, as the dog (assuming sufficient intelligence to testify in the first place) would only have contact with the witness in the courtroom (or in matters directly related to preparing for testifying) and would not have any relevant knowledge.

I could see a legitimate concern that a jury might see the dog make a particular gesture–a nudge or a lick–and infer that there is some special significance to that part of the testimony. That could be unfairly prejudicial to the opposing party, but it can theoretically be addressed through jury instructions.

Overall, I think this is a good development. Witnesses who might otherwise be too rattled to testify can have their day in court, and these dogs can find a calling to help people.

Share

A little less extremism in pursuit of child safety, please

Photo by billsoPHOTO

Photo by billsoPHOTO

Stories about children in danger, especially abut the death of a child, create emotional responses that override the logical parts of our brains. Sometimes those illogical responses extend all the way through the legal system. Such is the case of Racquel Nelson, the Georgia mother whose child was struck and killed by an oncoming car while they were trying to cross a busy highway. She was charged and convicted of vehicular homicide, and possibly faced a longer jail sentence than the man driving the car, all because she joined a group of people crossing the street after disembarking from a bus nowhere near a crosswalk. Make no mistake that this is a tragedy, but the tragedy inspired Cobb County prosecutors to leave sensibility behind and prosecute a grieving mother. David Goldberg of Transportation for America hits on the real problem here (h/t Free Range Kids):

Because Nelson did not lug her exhausted little ones three-tenths of a mile from the bus stop to a traffic signal in order to cross five lanes of traffic, she is guilty of vehicular homicide. Because she did as her fellow bus riders, who crossed at the same time and place, and because she did what pedestrians will do every time – take the shortest reasonable path – she is guilty of vehicular homicide.

What about the highway designers, traffic engineers, transit planners and land use regulators who allowed a bus stop to be placed so far from a signal and made no other provision for a safe crossing; who allowed – even encouraged, with wide, straight lanes – prevailing speeds of 50-plus on a road flanked by houses and apartments; who carved a fifth lane out of a wider median that could have provided more of a safe refuge for pedestrians; who designed the entire landscape to be hostile to people trying to get to work and groceries despite having no access to a car?

They are as innocent as the day is long, according to the solicitor general’s office.

There is a little bit of a light at the end of the tunnel for this story. After much media attention and an internet petition campaign, the judge in the case decided not to sentence Ms. Nelson to jail time, instead giving her one year probation and 40 hours community service. Ms. Nelson’s lawyer has indicated that she will be opting for a new trial.

I don’t doubt that it is dangerous to try to cross a busy street with children in tow (see here for a picture of the scene), but imposing criminal liability for taking a shortcut is a dangerous precedent. This was no Interstate highway–the photo clearly shows sidewalks along the road. I often read Lenore Skenazy’s Free Range Kids–despite having no children myself, it is important to know how far society is going in the name of protecting children, and how far is too far. Expanding the scope of criminal prosecution beyond the point where people are aware they might be committing crimes benefits no one in a free society. It doesn’t help Ms. Nelson’s child, nor will it help any other child in the future.

Photo by revkev7

The last few posts have been pretty dour. Here's something cute. (Photo by revkev7)

Share