Posts Tagged ‘Justice’

Subjects Too Painful to Write About

Thursday, March 5th, 2015

Memorandum

To: Myself
Re: Subjects too painful to write about
Date: Now

I made the decision to write a violent rape scene in Blame because bringing the reality of the street, as it appeared in my courtroom, to my readers is what my books are all about. Rape in all its forms is the single dominant violent crime in this country — and in the world! The numbers of women assaulted by strangers, soldiers, police, boyfriends, relatives, baby-sitters and husbands are staggering. A small fraction is reported and those are usually instances where the ancillary injuries are too severe to ignore. Fewer still are the number of rapes prosecuted.

rape-1I remember the case of an eighteen year old who took the stand in my courtroom hoping to recant her accusation of rape against her stepfather. The defense attorney reached up to place a letter from the girl denying that the crime had occurred. (A physician’s report had documented the searing tears to the girl’s vaginal wall, the bruising of her bladder, and the herpes infection she would have for life as a reminder of the encounter).

I was having difficulty breathing, so great was my growing sense of rage. There was little recourse available to me and I watched the prosecutor shrug his shoulders as he stood to question the girl. Would he compound the assault by his cross-examination? I wasn’t about to wait for that to happen.

“Ms. X,” I said, turning toward her in the witness box, “would you please read your letter aloud so that everyone here in the courtroom will understand your decision to withdraw your complaint against the defendant?” I handed the letter to my bailiff who passed it to Ms. X.

There was silence in the courtroom. We waited as the girl stared at the slightly rumpled paper in her shaking hand.

“Ms. X, can you read?”

“Not so good,” she replied. “Leastwise, not some of these words.”

causes-of-rape-graphIt was high drama as I denied the motion to dismiss the case and ordered the defense attorney to appear and show cause why he should not be held in contempt of court for presenting a clearly fraudulent document.

So, I wrote the rape scene in Blame and, at times, I felt the physical and psychological pain of the victim in the telling. I’d like to avoid these scenes and I consider from time to time switching genres to write about romance or, perhaps, inspirational stories.

This is on my mind because the case on which Blame was loosely based is about to go to trial here in West Palm Beach. It is a case I expected would have been concluded years ago. It is a tragedy in progress, a subject too painful to write about. I cannot write the ending as I did in Blame.

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The High Price — and Catch-22 — of Parole

Thursday, February 26th, 2015

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Punishment, the first book in the trilogy known as The Justice Series, deals with a man who was found guilty of murdering his wife by using his trained pit bull dog to attack her repeatedly. The trial is loosely based on a real case that took place in my courtroom around twenty years ago. Following the jury’s verdict, I sentenced the defendant, who was in his mid-thirties at the time, to a minimum of fifteen years to life in the Ohio Penitentiary.

As the judge who presided over the case, I listened carefully to all the testimony presented by both the prosecutor and the defense counsel. I considered motions to exclude certain expert witnesses, read portions of the grand jury record of witnesses’ testimony, and studied legal precedent on a number of issues. At the conclusion of the presentation of evidence and closing arguments, I was prepared to instruct the jury on the law they should apply to the facts, as they found them, to determine their judgment in the case.

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As usual, I met with counsel for both sides to discuss certain aspects of the instructions I would give to the jury. I proposed that I would instruct the jury on the elements of a charge of murder and, additionally, that I would give them an instruction of manslaughter, a crime of passion for which the sentence was eight to fifteen years at the time.

The prosecutor agreed to the instruction, but it was vigorously protested by the defense. Their objection, as I described it in Punishment, was that they believed that no jury could find their client guilty of intentional murder and, that being the case, an instruction on manslaughter would allow them an “easy path” to a conviction where a mistaken verdict would be less onerous. Because a judge cannot overrule a defense counsel’s objection to a charge, the only instructions I gave the jury were for the murder charge.

Unlike the verdict in my book (no, not what you assume), the jury in the case in Cleveland found the defendant guilty. The verdict was upheld on appeal and the defendant remains in prison to this day.

Several months ago, I corresponded with the Ohio Parole Board regarding the defendant’s application for parole. I shared with them my view that while the evidence presented could have been, and was construed by the jury, to support a murder conviction, there was ample evidence to support a finding of manslaughter. The Board denied the parole request.

Punishment: A Legal Thriller by Linda RockerI suspect the denial of parole was based on the defendant’s refusal to admit that he was guilty of the crime for which he was imprisoned. It is a scenario repeated daily in prisons across the country. I deplore it for two reasons: First, the insistence on a guilty plea flies in the face of the increasing number of convictions for major crimes that are getting overturned — in some cases the defendant has already served decades of his or her sentence; and second, parole boards may easily overlook the consequences of decisions regarding jury instructions that doom a defendant to a Catch-22: either plead guilty to the charge or remain in prison — pleading to a lesser offense is not an option.

Judges enjoy immense power. It can be gratifying, but it can also be confounding and haunting because some decisions are made by others outside the judge’s control — juries and lawyers, in particular. And it is never the proper role of a judge to substitute her judgment for that of the jury in a criminal trial. (I admit to ordering a new trial in two unrelated civil cases where the jury’s verdict was blatantly against the “manifest weight of the evidence.” In one such case, the jury acquitted the defendant trucker because he testified that he drove President Kennedy’s casket from Air Force One to Bethesda Naval Hospital in D.C.).

All of this discourse brings me back to the reason I began this journey. If I do nothing else, I derive enormous satisfaction from the possibility that my books and stories will cause you to pay greater attention to the character and fitness of the people who don their long robes and make life altering decisions about our neighbors and families.

The Credibility of a Murder Witness: The OJ Trial #3

Wednesday, February 11th, 2015

MARK FUHRMAN ON TV

I doubt that there is anyone, other than his children, who truly believes that O. J. Simpson was not guilty of murdering his wife. But the lessons we can draw from the Simpson trial seem increasingly important as we face the ongoing tension between the black and white communities in America regarding our policing and justice systems. It is a case of mythology trumping reality every time. And there is perhaps no better figure to illustrate this point than Mark Fuhrman and his outsized role in the Simpson debacle.

Most of us accept the presence of prejudice in our communities. Whether we are calling each other derogatory nicknames in grade school, making assumptions about values, cleanliness, criminality or reliability (to name only a few), speculating about the tendencies of other groups or selectively employing, marrying, befriending or excluding and marginalizing individuals — in every instance we are doing so based on the myths we rely on to secure our identities. We maintain a delicate balance in the melting pot that is America, until we enter the uncertain terrain of the justice system and its adjunct, law enforcement.

Simpson compoundMark Fuhrman, for those of you who don’t remember, was the LAPD detective who found a blood-stained left-hand glove at the scene of the murders of Nicole Simpson and Ron Goldman on the night of June 12, 1994.  Later that night Fuhrman visited the home of O. J. Simpson and noticed what looked like blood on the door handle of the white Bronco parked outside the gate. simpson bloody glovesWhen no one responded to the doorbell, Fuhrman climbed over the wall surrounding the compound and, in surveying the grounds, found a matching blood-stained right-hand glove.

Mark Fuhrman placed himself center stage in the Simpson investigation; in doing so, he became an almost mythic figure, which was precisely how he viewed himself and wished to be seen by others. He “grabbed” center stage in press conferences, did a parody of “just the facts, ma’am” from early TV shows, and annoyed his colleagues with whom he was not a popular figure, his grandstanding providing fuel for envy and resentment.

When Fuhrman took the stand at the trial, he was confident, suave and as well-prepared a witness as any prosecutor could wish for. Defense counsel F. Lee Bailey, who would later suffer great damage to his reputation, was still a force to be reckoned with and his lengthy cross examination of Fuhrman not only suggested the possibility that Fuhrman had a reputation for racist and sexist attitudes, but challenged him regarding his assumption that he could use unlawful means to investigate crimes because of his special status as a detective. As good as Bailey was at cross, no one could have anticipated what this televised courtroom event would produce. What happened next, as Ron Goldman’s father described it, completely upended the course of the trial. “This is now the Fuhrman trial…the defense team has got the trial [completely] . . . off base.”Mark Fuhrman on witness stand

More to come . . .

The Credibility of a Murder Charge: The OJ Trial #2

Saturday, January 31st, 2015

Simpson Jury sketch by Bill RoblesIt’s not just witnesses who must be credible with stories that mesh with known facts and the testimony of other witnesses. The charge(s) brought against a defendant in a murder trial must also be credible, bearing in mind the burden of proof that the prosecution must meet.

Put simply, it is nearly impossible to meet that very high burden to the satisfaction of the jury if the very first exhibit in the case is called into question. The indictment is read into the record at the outset of the trial, the intention being:  a) to inform the jury of the exact nature of the charges; and b) to remind the jury of exactly what the State must prove to them. In the Simpson case, the indictment from the grand jury charged the former football star with first degree murder in the case of Nicole Brown Simpson and second degree murder in the case of Ron Goldman.

875BUNDYDoubt crept into the case when the charge was read. Words like “intentional” may have slid by regarding Nicole’s death, but Goldman’s? I doubt that many of the jurors had extensive knowledge of the crime before they were selected, but let’s assume that most of them were familiar enough to know that no one — not Nicole, not OJ, not anyone identified (to date) in this case knew that Ron Goldman would show up with Nicole’s sunglasses which he had retrieved from the restaurant where he worked.

But the indictment, the written charges against OJ, made little distinction between the victims and their relationship with the alleged killer In fact, the evidence presented as the state wound its way with difficulty through an avalanche of exhibits and testimony paid scant attention to Ron Goldman, possibly hoping that the jury would not focus on the difficulty of murdering two people on the edge of a busy street at 9:30 in the evening — especially when the killer was most likely not expecting to encounter a pair!

I’ll talk some more about the evidence, but you may rest assured that this was not a stupid jury. Did Mark Fuhrman’s virulent racism affect the jurors? Of course it did. How could it not when he played such a pivotal role in the state’s case? But if you doubt that Fuhrman’s testimony was part of the larger context that was not credible to jurors who were asked to use their common sense in judging the evidence as well as the witnesses, then get a copy of Simpson’s book (all proceeds go to the Goldman family), If I Did It: Confessions of the Killer.

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The Chinese Wall in American Courts

Friday, December 26th, 2014

great-wall of chinax30Corporations often employ the tactic of setting up an invisible wall between departments, functions, accounting and other areas where they have a conflict of interest. This also happens in law firms where the interests of one attorney’s client is directly connected (or opposed) to the interests of another client. How do you build a “Chinese Wall?” It’s simple, really. You pretend it’s there.

This is what we do in American courtrooms on a daily basis. When I was first appointed to a judge’s seat, I was shocked to discover the constant presence and pressure from the assistant prosecutors assigned to my court. We had, at the time, 34 judges, each with a full time, active docket of many hundreds of pending cases. The criminal cases consumed about 50% of the list, but they ate up more than 90% of our time. Each case on my docket was assigned to an assistant prosecutor whose “second home” was my antechamber (the public area where my bailiff sat, my scheduler hung around, and dozens of criminal lawyers chatted with one another and met privately with the prosecutor).

Here’s the problem. Access. The criminal defense attorneys made their pitch to the assistant prosecutor on their client’s case, often with a plea bargain as their aim. But after the dialogue was done, the defense lawyer was, as well. But the prosecutor remained, chatting up the judge, looking over the bailiff’s shoulder, sometimes denigrating the process or the people. Nothing illegal occurred, no laws were broken. But the access to the judge and his staff provided a special opportunity. And judges, elected in my state, were loathe to offend a prosecutor.

Honoré_Daumier_-_Two_Lawyers_Conversing_x10In my first year on the bench, I decided to woo the prosecutors by organizing a golf outing. The night before the scheduled event, I mentioned it in a conversation with my father, a retired judge. He was aghast.

“You what? Have you lost you mind?”

It didn’t take long to see his point. I had fallen into the same trap that had snared so many of my colleagues — thinking that the special relationship with prosecutors was an acceptable outcome of proximity, when in fact it was the opposite. I feigned illness on the day of the outing, much to the dismay of my “room prosecutors” who had looked forward to more proximity and access to me.

Once I realized that this cozy relationship easily fostered an inherent bias in favor of the attorneys for the state (that is who prosecutors are, after all), I implemented some changes in the operation of my court area. I remained as polite and friendly to the prosecutors as I had been, but the personal discussions, the off-handed comments about cases or other judges came to an abrupt halt. If a prosecutor wanted my ear, he had to come into chambers and make certain that, if it involved a pending case, the defense lawyer was invited.

I became one of the most unpopular judges on the court — but only with the assistant prosecutors. Did I mind? Sure I did — everyone likes to be liked. Did I change the way I ran my courtroom?

Not a chance!

Why I Write

Sunday, November 23rd, 2014

Words, phrases, characters, and plot—they are the foundation of my soapbox. I write because I care deeply about making a difference in those areas of our lives touched not only by criminal justice, but by social justice, as well.

I have discovered, as have so many writers in the past, that while the pedantic may have a devoted audience to hear her message, she will be a change-maker only if she can wrap the lesson in a good story. Will George Washington admit that it was he who chopped down the cherry tree? Is Little Red Riding Hood a victim or a naughty runaway? Although the readers of these fairy tales are young, the moral messages they convey are ancient and their lessons stay with many of us throughout our lives.  We look to our justice system to epitomize those lessons.

We Americans are diverse culturally, religiously and politically, but we share in great numbers our sense of what is right and what is wrong. We know instinctively when human frailty is a reason, but not an excuse. That is a powerful theme for a storyteller. I’m lucky. I have such a wealth of material and personal experience to draw from based on my involvement with the law and the courts that it is sometimes difficult to not fit it all in.

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Parson Weems’ Fable by Grant Wood (1939) Weems created the story about Washington and the cherry tree in his 1806 biography of Washington

Let me give you an example: Early in my tenure as a judge, I received a case involving a very young woman who was retarded and had issues with mental health and drug abuse. Mary’s newborn child had been placed in a foster home, but despite reports from social workers of disturbing home visits with Mary, the child was returned to her in the interest of creating an “intact family.” In a matter of days, Mary had caused the death of her child who “would not stop crying.” This pathetic woman, already abused by the system that was supposed to protect her, stood before me to enter a plea of guilty to a charge of manslaughter. The morning of her scheduled court appearance, I issued a bench warrant to bring the Director of Social Services to my courtroom for the hearing. When Mary stood to enter her plea, I ordered the Director to stand, as well.

“I’m deeply pained, “ I told her,” that only Mary will pay a price for your indifference or incompetence or both.”

I haven’t yet found a place in my books for Mary’s story or a myriad of others just like it. What I’m able to do in my writing is to expose flaws such as Mary’s story and, at the same time, to applaud those in the courthouse who daily work to improve our performance. We have a right to expect our laws to protect the innocent and punish the guilty. Opening the doors at the back of the courtroom, explaining the rules, both written and undisclosed, and providing a glimpse of life for the accused or imprisoned is enough to keep me at the keyboard for a very long time.

And so, I write the morality plays without stage directions, but if a reader looks closely, my books are meant to be fairy tales for grown-ups.

You Have the Power

Thursday, October 9th, 2014

october dvIn just one week, hundreds of people have read my editorial about domestic violence and the need to make a first offense a felony. Here is more on the subject that helps to explain why it makes such a difference to the offender and what happens to him in the justice system.

Unlike a misdemeanor offense, a felony brings an offender to a different court, usually one that requires a bond to get out of jail. That means a lot, because I’ve met a lot of bail bondsman and you don’t want to mess with them.

One more thought: Many women who have been beaten and abused are afraid to testify. They need our support and they need strong prosecutors who won’t hide behind the excuse that the victim won’t testify. We’ve all seen the bruised cheeks, the split lip or the arm in a cast. And so have doctors and nurses in our emergency rooms. We can all step up to the plate on this one when called upon to do so. I can assure you that there are few people more lonely and afraid than these women.

Thank you for your response and feel free to copy my letter and send it to the paper in your hometown under your name.

Linda Rocker on What Goes on Behind the Scenes during a Trial (Video)

Wednesday, October 8th, 2014

Video Transcript

It would really be wonderful if judges lived in their own world and lawyers in their own world, defendants in their own world, and victims in their own world. That is not the way it works in the courthouse. There’s a great deal that goes on in the hallways, in the law library. And the coffee shop is often where a prosecutor may see the defense lawyer and, standing over the cream and sugar bar, say “Listen, we got to get a deal out of this case. You and I both know your guy is going down.  If you’ll give me a plea this afternoon, we don’t have to go to court. I can go out and play nine holes and everybody is happy.”  And very often — not always, but often — that’s how things work out.

Let’s Make Domestic Violence a Felony the First Time

Tuesday, September 30th, 2014

I submitted this letter to the editors of The Cleveland Plain Dealer a few days ago and I just learned that they printed it today, October 2, under the headline: “Domestic violence that results in serious injury should be a felony the first time it occurs: Letter to the Editor” May it inspire many other letters — and some action.

Re: “Lessons That Amanda K. Russell Can Teach Us from Her Grave,”
Phillip Morris, Cleveland Plain Dealer, Sunday, September 28, 2014

Dear Editorial Page Editors,

Ruden Adrinex20

Alexandria Ruden and Judge Ronald B. Adrine, co-authors of the Ohio Domestic Violence Law Handbook

In 1994, Judge Ronald B. Adrine and I, along with Alexandria Ruden of the Domestic Violence Task Force, attempted to enlist the support of the Judges on the Municipal and Common Pleas Court in Cleveland for new legislation that would make a second domestic violence offense a felony.

We were unsuccessful, although there has been some progress over the past decade. What is needed now is precisely what was needed then — a change in our law that makes any domestic violence that results in serious injury a felony offense the first time it occurs.

Our laws treat a bar fight more seriously than an assault in the kitchen. This current attention to Domestic Violence (while welcome) will fade as quickly as it has in the past  — gaining our attention only when celebrities are involved, but not when our neighbors are sent to the emergency room or the morgue.

Sincerely,

Judge Linda Rocker, ret.
Orange Village, Ohio

Getting Away with Murder — Prosecutorial Misconduct and Qualified Immunity

Friday, September 26th, 2014

EvidenceThe grand designs of an ambitious prosecutor, Charlie Graham, propel much of the action in my new novel, Blame. And the kind of thing he gets away with has become a daily occurrence — and I don’t mean the crime on our streets. I mean the constant flow of news about people who have been wrongly imprisoned, many of them for decades, and more than a few sitting on death row.

Statistically, folks, it’s pretty obvious that a lot of innocent people have gone to their deaths who shouldn’t have been imprisoned in the first place. We’ll probably never know about most of them, but we know about the horrible miscarriages of justice that go unpunished. You heard me — the men and women who are paid by us to get it right, to punish the guilty and protect the innocent, are too often guilty themselves. These are the prosecutors, a position so powerful that it can poison the judgment of many good lawyers who go to work for the state and end up corrupted by their ambition and ego.

US_incarceration_timeline-clean.svgHow, you may ask, do the prosecutors in these cases get away with falsifying confessions, with hiding proof of a defendant’s innocence or another perpetrator’s guilt?  Why would the courts not punish prosecutors who know that an innocent man has languished in prison for decades? Where are the safeguards that will prevent this perversion of our justice system?

You need look no further than a concept known as “qualified immunity.” In a nutshell, the law, at the federal and the state level, says that prosecutors can lie, cheat and steal in front of everyone, but if they do it as part of their workday duties, they cannot be touched — not by a civil suit, not by a constitutional claim, not by anything you or I can think of that would land the rest of us in a prison cell or pauper’s court.

thomas_scaliaLeading the charge to broaden the immunities for judges, prosecutors, police officers and other public officials are Supreme Court Justices Antonin Scalia and Clarence Thomas. So we will continue to see the disheartening and tragic waste of human life brought about by zealous prosecutors who know they can get away with just about anything. The only brake on their crime sprees are their own consciences — or the consciences of their superiors who can fire them, if they have the courage to do so.