R---,
I don't disagree with most of what you say, specifically what you say about the abhorrence that is rape prosecution. All of this is fucked up and I agree that we ought to recognize the suffering of the victim. But I guess we will disagree and continue to disagree about what the
criminal justice system owes to those people who are not legitimately proven guilty, who might well be innocent.
My desire to make the criminal justice system accountable to these people goes back to Weber's description of the state as having a monopoly on the legitimate use of power. This is a terrifying power and it is an abused power. The victim has no resources, you say? Notwithstanding the fucked up notions of sexual stigma and permissability surrounding rape prosecutions, the victims in other crimes do have a tremendous resource: this forceful power of the state. Who brings the prosecution? Not the victim, you mentioned, but the state itself. The victim doesn't sue a criminal in tort, he or she invokes the state, which then moves its resources and attacks the alleged criminal as a moral monolith embodied with the legitimate power, in 34 states, to kill someone convicted of certain crimes.
You seem to have no sympathy for this, but I do, perhaps because our experiences may be different. I've been wrongfully arrested, kept in jail, and then exonerated. I've known many people who have been wrongfully arrested; I watched a five-foot tall woman get pushed and
twisted by a bunch of cops because she was pointing her videocamera at the site of these arrests and then get charged with felony assault on an officer. You know that statistic where 1/3 of all black men are, at any given point, being processed through the criminal justice system?
Well, I saw the effects of that on the high school where I taught, where you get fucked up kids who see fucked up things and then get their fucked up parents taken away from them and then they just become fucked up themselves. Amadou Diallo's nephew was a student at my high
school. I was friends with two women who were hitchhiking in Maine when a man who picked them up held them up at gunpoint and raped them; these women decided not to report the crime to the police not because, as in the cases you described, they would be repelled and shamed and doubted by the criminal justice system, but because they were radicals who did not believe that our retributive criminal justice system could do anything to prevent or remedy crimes.
So I think the power of the state is awesome, terrifying, and often misapplied. And I've seen it happen. So tell me, how do you know with any certainty that "most" plea bargaining cases don't involve innocent people? From where do you get this certainty in our million times over
fallible system? But nevermind that, I'll even cede to you that most, perhaps the majority, perhaps a large majority, of people facing plea bargains are guilty of whatever crime they were arrested for. Let's even pretend that all those people we saw in the video were completely
guilty. Let's just restrict this inquiry to the 121 people who have been exonerated after sitting on death row for decades. And then I'd like you to write letters to these 121 people telling them that they should have died for the state's mistake, that the state was too generous in reading them their Miranda rights, too generous in not making evidence up about them, too generous in not allowing police to barge in on any suspect's house without probable cause, too generous
in assigning them defense attorneys, and too generous in allowing appeals. How about that?
I write that because I see that as your proposal. Would you prefer a criminal justice system with no safeguards for the defendant? That's only a decent proposal if you're lucky enough to never to encounter the criminal justice system as a defendant, which is easy for us in
the highly educated, culturally conversant, low-crime, upper-middle class ivory tower to believe. If you're a defendant in the Kafkaesque system that you propose, however, too bad, so sad.
I think we're stuck trying to figure out an apparently unresolvable dilemma: advantage the prosecution and you risk locking up innocent people; advantage the defense and you risk not adequately punishing a criminal for a crime. I think you have too much prosecutorial zeal;
you think I'm a Willie Horton-loving liberal with my head dangerously in the clouds. Now I'm not sure where to go from here.
Still, thanks for having this conversation with me. At least on my part I'm finding this really a useful and necessary issue to write and think about, and I hope I'm not pissing you off too much. Let me know if we should stop before we never speak again.
Mandy
----- Original Message -----
From:
Date: Tuesday, November 15, 2005 9:35 pm
Subject: Re: RE: hey
I disagree with your portrayal.
You write: "And it's simply not true that the victim does not have resources. The victim has access to a city of police, all of whom do investigation on his or her behalf. (Who investigates/does discovery for the defendant? Himself? His drunk or sleeping lawyer?) The
victim has access to a prosecuting attorney who is versed in the system. The victim has the huge advantage of being able to detain the alleged criminal, to deprive someone of liberty without proving a damned thing."
Do you seriously believe that the "victim has access to a city of police, all of whom do investigation on his or her behalf"? Do you really think that the victim is telling police: "You, George, go knock door-to-door. Sam, you check the alley for clues..." In fact, the police do not work on behalf of the victim. Sometimes victims of rape are not even believed by the police. Most of the time the police have little time to spend investigating the case. Even when they want to investigate, they often have more pressing issues. Hell, DNA testing is backed up for months even for the most serious cases, and you think the police are seriously at the beck and call of a victim?
Further, the police are not "against" the defendant. The police investigate a crime and sometimes they are able to identify the person they think did it -- that is the defendant. But they don't begin investigations out to get a specific individual (unless you believe OJ, who got
off anyway -- and despite 911 calls from his ex-wife as he came to beat her -- ask that dead woman if she felt the police who asked OJ for his autograph as they sent him away were at her "beck and call").
Similarly, the victim has no "power" to detain the alleged criminal. The victim absolutely does not have this power. The prosecution and the police do not work on the behest of the victim. The victim has no power to do anything, and in fact, does not even have the power to force the prosecution to bring charges, much less to detain people at will. So I strongly disagree with your characterization of the power of the victim.
Moving on -- you cite a case of a DA who might have made up evidence. (I don't know this case, but I'll take your word on it.) How common is that? Are we seriously comparing that to the situations that happen every day with victims of crime? I am talking the typical case, not some bizarre example used by a documentary as a propaganda tool to influence viewers to adopt a pro-defense towards the justice system. Rapes happen every few seconds -- the stuff I'm talking about is happening all the time.
To even get to a trial, a rape victim not only has to choose to go forward, the doctors, the sociologists, the rape counselors, the police investigators and the prosecutor must all be convinced of the truth of what happened to her. (This despite the fact that victims of
such trauma are often confused, sometimes block out portions of their memory, sometimes can't speak straight -- this is in court too, they often can not concentrate or answer questions clearly out of their ongoing terror.) Whatever the law may be, we should tend to believe
the woman who says in court that the man raped her. What's more, rapists tend to be repeat offenders; they enjoy the power of what they do. If they are not stopped, they will do it again.
So: Are there innocent people unfairly locked up in prison? Yes. Is this the typical plea bargaining situation? No. Was it presented that way? Yes. On the other hand, was the typical plea bargaining situation presented from the perspective of the victim? No.
Our documentary and our class lecturer and our role-playing exercise all pretended that innocent defendants were the norm. Are you kidding me? We role-play five cases of counseling clients, and every one of these clients is a supposedly innocent defendant? We watch a
movie about plea bargaining and we hear nothing from the perspective of the victims? All we've heard about in this school is from the perspective of defendants. When did any professor or anyone in an official capacity in Crim Law or in the Lawyering class or during the movie, at
any point, ever speak seriously on behalf of victims of crime? Do they even have rights?
You mention racist juries -- at NYU, I often hear about the plight of minority and impoverished defendants. Somehow the people in this school don't know or don't care about minority and impoverished victims. Last statistics I saw showed 42% of US homicide victims were black. Rape, kidnapping, molestation, stalking -- these are primarily perpetrated against women or children. Victims are minorities too, and in almost all cases they are more vulnerable minorities than the thugs committing the crimes.
We have endless safeguards in place for defendants; there are no safeguards to protect victims. Do you feel that the current system is correct in not allowing evidence that the defendant raped 24 other people after this alleged rape? Or that the system is correct in not allowing a retrial when evidence surfaces (such as videotapes, confessions and DNA) showing that a defendant who "got off" is actually guilty? Or that the system is correct in paying defense attorneys to badger rape victims and argue on behalf of rapists even when they know the client is actually guilty? Or that the system is correct in allowing courts to toss out evidence because the police
didn't follow meaningless technicalities in collecting it? (Actual example: Last month the Connecticut Supreme Court tossed out blood- soaked clothes that had been key evidence in a murder conviction. The killer was living with his parents, and police got the signed permission of the father before searching the home, where they discovered the bloody clothes in the killer's room and in the washing machine. But the court ruled that they should also have gotten
the killer's mother's permission to search the home, so the clothes can not be admitted in trial, and the killer will almost certainly go free. Fair? To the murdered woman? To her family? To society?)
So, no, I disagree with you completely about the system. And the culture at NYU is out of wack. We have a club in which people volunteer to teach law to prisoners, but we have no club for helping victims of crime. I didn't hear anyone speak up today about victims until I did. Correct me if I'm wrong.
> ----- Original Message -----
> From: Mandy Hu
> Date: Tuesday, November 15, 2005 7:51 pm
> Subject: RE: hey
>
> > R---,
> >
> > Hm, I see your point. But I guess this goes back to what we were
> > talking about earlier. Society has made a calculation here. It says
> > that convicting an innocent person--depriving a single mother of
> > two of her liberty and condemning those children to a lifetime of physical and
> > sexual abuse and neglect in foster homes, executing an innocent person
> > because a racist jury was looking for any black man 5'9" to 6'2" to pin
> > their insecurities upon, allowing an innocent man to be repeatedly
> > raped and tortured by his cellmates because someone had a vendetta
> > against him and proffered false testimony that a hack DA (see
> > http://www.truthinjustice.org/peasley.htm) who wanted to look good and
> > was absolutely convinced of his own righteousness and concocted even
> > more evidence to nab this innocent person, etc., and I could go on
> > withstories as grisly and violent as yours--society has calculated
> > that the injury committed by convicting an innocent person is so great that it
> > requires those safeguards that you listed.
> >
> > And it's simply not true that the victim does not have resources. The
> > victim has access to a city of police, all of whom do investigation on
> > his or her behalf. (Who investigates/does discovery for the defendant?
> > Himself? His drunk or sleeping lawyer?) The victim has access to a
> > prosecuting attorney who is versed in the system. The victim has the
> > huge advantage of being able to detain the alleged criminal, to
> > deprive someone of liberty without proving a damned thing.
> >
> > So, yeah, I understand that it's a grotesque miscarriage of
> > justice when a criminal is not adequately punished for his crime or is punished
> > for a crime that does not properly capture the severity of what he did. But
> > you must understand, and this is the point the movie makes, is that
> > injustice is not a one-way street. You tell the mother, or child, or
> > wife, or even victim's family for that matter, of the person executed
>> for murder and then exonerated post mortem that this defendant got too
> > many safeguards. You tell the person who just spent 25 years in jail for
> > a crime they didn't commit and got news of their parents' death only
> > through a collect call and whose children got dumped into the public
> > system and then became criminals themselves--you tell that person that
> > they shouldn't get the right to appeal. You know that's utter
> > bullshit.Both sides are grisly--it's disgusting when a criminal is
> > not punished, it's disgusting when an innocent person is punished. I just don't see
> > how you can't accept that there are cases in which the latter is just as
> > unjust as the former, and that's our disagreement. Am I correct?
> >
> > And my opposition to the plea bargain in general is predicated on the
> > desire to avoid both scenarios described above, since it is too blunt a
> > tool and potentially exonerates the guilty while pressuring the
> > innocentinto confession of guilt.
> >
> > Tell me if this makes sense.
> > M
> >
> > -----Original Message-----
> > From:
> > Sent: Tuesday, November 15, 2005 7:18 PM
> > To: Mandy Hu
> > Subject: Re: hey
> >
> > Mandy,
> >
> > I'd be happy to talk with you more at another time. I wouldn't go
> > so far as to say that I am necessarily opposed to all plea
> > bargaining. However, I strongly feel that plea bargaining is usually cruel to
> > the victim. I believe that the cases shown were highly atypical.
> >
> > I believe a typical case goes something like this (sorry to be grizzly
> > here, but this is reality): A man breaks into your home, beats you
> > bloody (perhaps leaving permanent scars on your face), ties you up
> > and rapes you multiple times, threatens to come back and murder you if
> > you tell anyone, steals your belongings, and disappears. When people
> > discover you later, you are naked, bleeding, humiliated, horrified
> > and scared. Your faith in people is destroyed, your feeling of safety
> > in your home is gone, you can't sleep, you are terrified by men of
> > the attacher's race and at the same time feel guilty for feeling that
> > way, you are unable to concentrate, unable to date men, unable to be
> > alone -- and yet are afraid of being with others. The police and
> > hospital have to do rape tests on you, and they take photographs of your
> > genitals to show the bruises. You spend months taking anti-AIDS
> > drugs (just in case) which make you constantly nautious. Your injuries
> > are so bad that you can barely walk. You take anti-pregnancy drugs
> > but fear becoming pregnant anyway. You constantly fear the man will
> > return and attack you again.
> >
> > After months -- during which time you lose hope the man will ever
> > be caught -- the police finally catch the attacker. Perhaps you're
> > even lucky and they have a DNA match. At this point, the attacker is
> > assigned a lawyer (you are not), who tells the police that you
> > actually agreed to rough sex. Or maybe that you had consensual
> > sex with him before. Or maybe you're a prostitute who got beat up by
> > her john. Or maybe you're a drug user and you agreed to sex for drugs
> > and later things got violent. Or maybe he'll tell the press that you
> > had sex with three other men that day, despite no evidence of it. Or
> > maybe he'll try to get the judge to drop out the DNA evidence
> > because the police obtained it the wrong way. Maybe the police mishandled
> > it (used the wrong kind of bag to carry it or some other stupidly
> > legalistic technicality), and now the defense attorney is trying
> > to get the DNA evidence thrown out -- he is definitely not, mind you,
> > asking for the prosecutor to obtain a new DNA sample, he is asking
> > to get the DNA thrown out forever. This criminal destroyed your
> > life, and yet he now has a full-time lawyer fighting to take advantage
> > of every legal loophole in the world to get his client free. Oh, and
> > you learn that the attacker has been accused of raping 6 other women,
> > but none of that will be mentioned in court because it might
> > be "prejudicial" to the jury.
> >
> > This man destroyed your life, and yet he is assigned a lawyer --
> > paid for by the state -- who will attack you in the press and in the
> > courtroom, implying you are a slut, that you deserved it, that you
> > are a liar, or that you are a golddigger. Where's "innocent until
> > proven guilty" when it applies to rape victims? If we truly say that
> > accused rapists should be considered "innocent until proven guilty," that
> > means that the public at large should consider the rape victim "lying
> > whore until proven otherwise."
> >
> > You spoke to me after class about how impoverished defendants might
> > have an incompetent defense lawyer. But defendants at least have
> > the opportunity to hire their own lawyers; they get a lawyer free if
> > they can not hire one; they have opportunities to appeal with a new
> > lawyer if they wish; in extreme cases, they can have a conviction
> > overturned due to attorney incompetence; they can ask for clemency or parole;
> > in short, they have numerous never-ending options to get redress.
> > You, the victim, have no lawyer representing your rights. Furthermore,
> > the prosecutor and police and jury might also be incompetent, but in
> > your case there is no appeal, and you have no way to replace them with
> > somebody better. If the police mess up their evidence collection --
> > sorry, your case is done. Too bad. You just get to live with the
> > aftermath of the rape and nothing will ever be done about it. If
> > the prosecutor sucks -- sorry, but the defendant will be found not
> > guilty. Not guilty. He's back in your community, and you appear
> > to be a liar. Even your friends will wonder if you were "really"
> > raped. If the jury are idiots -- same thing. Double jeopardy is against
> > the law (no new trial under any circumstances -- even if he later
> > confesses, even if the police later find his DNA someplace they
> > didn't notice earlier, even if they later discover that he videotaped
> > himself raping and assaulting you while you were blindfolded -- too
> > late... Hell -- they might have found all of that only to have the judge
> > rule it inadmissable). In other words, there are remedies for a bad
> > defense lawyer. There are no remedies for a bad detective, bad
> > prosecutor or incompetent jury.
> >
> > Yes, occasionally innocent people end up punished. I am opposed to
> > that, just like anybody else. But the system is definitely not set up
> > against the defendant. The defendant has an endless series of
> > protections in place. The true victim of our court system is... the
> > crime victim.
> >
> > That's my thoughts.
> >
> > Sorry if it is rather rambling.
> >
> >
> >
> > ----- Original Message -----
> > From: Mandy Hu
> > Date: Tuesday, November 15, 2005 5:24 pm
> > Subject: hey
> >
> > > R---,
> > >
> > > I just wanted to make sure we're on the same page. I was very
> > > interested in arguing about plea bargaining with you, and I think
> > > your comments helped me flesh out a little better how I feel about this
> > > practice. I absolutely see where you're coming from. I think from either
> > > perspective-from the victim's perspective or from the innocent
> > > defendant's perspective-plea bargaining is a seriously fucked up
> > > proposal. I'd venture to say even that the whole idea of plea
> > > bargainingis disgustingly actuarial and totally out of wack with
> > > ideas of justice. I mean, who makes these calculations? Suppose a guilty verdict
>>> for a rape is 20 years, and the trial would cost $25,000. Does
> > >offering a plea bargain of 10 years mean that the state calculates that the
> > >victim's pain isn't worth that $25,000? Or that the rapist has done only
> > > $12,500 in injury? This is ridiculous. An ideal system of justice
> > > would try every case upon the belief that the victim's adequate relief and the
> > > innocent defendant's right to a judgment on full facts cannot be
> > > boughtor sold. Do you agree? That's the point I'm ultimately
> > > driving at.
> > > Anyway, hope all's well. Thanks for talking,
> > > Mandy
> > >
> >
> >
> >
>
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