With Justice for Some: Victims' Rights in Criminal Trials.
Author | Henderson, Lynne |
George Fletcher's With Justice for Some: Victims' Rights in Criminal Trials(1) boasts an eye-catching title and a provocative introduction. Directed at a general audience, the book concentrates on a handful of cases that received broad media coverage, public attention, and, in several instances, verdicts that led to outcries of injustice, demonstrations, and even violence. These cases, Fletcher asserts, demonstrate that criminal trials in the United States need radical transformation. Fletcher evokes the literally burning image of Los Angeles as African Americans took to the streets immediately after the verdict in People v. Briseno -- known as the "Rodney King" case -- to set the stage for fear and loathing of the current criminal justice process.
In the book, Fletcher summarizes a number of mostly recent, highly publicized criminal cases, such as the Rodney King case, which he believes were wrongly and unjustly decided by juries. He argues that protest and even violence are proof of the verdicts' outrageousness as well as proof of the deep flaws within the criminal trial process in the United States. To correct these flaws, Fletcher argues for procedural and evidentiary reforms modeled mainly after the Continental scheme of criminal trials, a scheme he clearly prefers to the Anglo-American one. He advocates adopting these procedural and evidentiary reforms to give "rights" to "victims."
After a brief and critical overview of the book's contents, I examine what Fletcher says about "victims' rights" and the relationship of his proposals to "victims" generally. Next, I discuss Fletcher's approach to the victimization of women, with a final observation about the relevance of a defendant's prior victimization to the determination of her culpability for subsequent action. Despite the fascinating issues that Fletcher raises, I regret to say that the book fails to address any of them adequately.
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BRIEF OVERVIEW
The book has two basic parts, connected by a "bridge" chapter that compares European and Israeli criminal procedure with American criminal procedure and provides the bases for the reform proposals contained in the second part of the book. The first part consists of chapters headed "Gays," "Blacks," "Jews," and "Women." While the headings suggest a focus on structural bias against traditional outsiders or members of subordinated groups -- and Fletcher does discuss issues of this type of bias in the context of specific trials -- the book focuses more heavily on the problems he sees with juries, judges, prosecutors, and expert witnesses.
The chapter entitled "Gays" (pp. 9-36) discusses the Dan White case(2) in San Francisco. White was tried for first-degree murder in the killings of Mayor George Moscone and Supervisor Harvey Milk, the city's first openly gay Supervisor. The jury convicted White of two counts of voluntary manslaughter, touching off a violent reaction that became known as "White night." While Fletcher emphasizes the violence committed by some members of the gay community in San Francisco, and laments the exclusion of openly gay people from the jury that heard the case, he devotes much of his discussion to a critique of the prosecution, the psychiatric testimony, the "diminished capacity" defense, and California's substantive law (pp. 25-33). Similarly, while opening with the devastation of South Central Los Angeles, the chapter entitled "Blacks" (pp. 37-68) contrasts the merits of the state prosecution of Theodore Briseno, Stacey Koon, Laurence Powell, and Timothy Wind for using excessive force against Rodney King with the federal civil rights violation trial. Here, Fletcher criticizes the state prosecutor for failing to "empathize" with Mr. King, the state courts for allowing the change of venue from Los Angeles to Simi Valley, and the judge for admitting expert testimony on departmental policies (pp. 41-45, 50-51, 57-59). He then turns to the resulting chaos in South Central Los Angeles and the subsequent federal prosecution, with some ambiguous remarks about double jeopardy along the way (pp. 51-68). The chapter titled "Jews" (pp. 69-106) briefly chronicles the long history of anti-Semitism and cultural stereotypes of Jews, and then examines the prosecution of El Sayyid Nosair for the murder of Meir Kahane and of Lemrick Nelson for the murder of Yankel Rosenbaum, both of which took place in New York City. Here, Fletcher criticizes the explicit appeals to anti-Semitism in these cases, and also takes on several trial participants, including the judge in the Rosenbaum case.
In all these cases, Fletcher concludes that jury acquittals constituted gross injustices to the individual victims and to groups that identified with the victim.(3) Fletcher finds neither solace nor justice in the fact that juries convicted Dan White and Nosair on lesser felony charges. To Fletcher's mind, they were guilty as charged and ought to have been convicted accordingly.
The most peculiar chapter in this section is the last one, entitled "Women" (pp. 107-48). Here, Fletcher abruptly changes his style, tone, and focus from the preceding chapters, each of which discussed one or two cases in detail, made some references to historic discrimination against a particular group involved in the case, and condemned the acquittals or convictions on lesser charges in those cases. No wronged female victim appears here. Nor do women, as a group, suffer from stereotyping or prejudice. In this chapter, it is men -- either as criminal defendants or crime victims -- who are victims of injustice.
The chapter is an odd and breathless race through the history of rape law, to the trial of William Kennedy Smith, to the trial and appeals of Mike Tyson, with the Thomas-Hill hearings tossed in for good measure. Fletcher concludes that Smith's acquittal was probably "just" and heavily implies throughout the book that Tyson's conviction was a gross miscarriage of justice.(4) Hurriedly, Fletcher then disputes the widespread existence of violence against women, raising the terrifying specters of mutilation in the Bobbitt case and the "sleeping husband" cases in which women "get away with murder." He then switches to the Menendez brothers' first trial in which the jury failed to reach a verdict. Fletcher cannot point to any violent protests against the outcomes in these cases, his apparent test for determining injustice in the previous chapters; thus, he has to strain a bit to create claims of gross injustice. That no one marched for John Bobbitt, or demonstrated for the dead Menendezes, demonstrates for Fletcher a failure of moral values and a neglect of victims. It does not seem to occur to Fletcher that men did not march for Bobbitt because they chose not to identify with a wife beater, no matter how injured. That no one marched for the Menendezes does not signify necessarily a lack of empathy for parents, as Fletcher suggests. Mr. Menendez was abusive in some ways, and therefore not a particularly sympathetic victim. Finally, it is odd that Fletcher does not make any reference to the demonstrations that occurred on behalf of Tyson, who, Fletcher apparently believes, was a possible victim of injustice.
Fletcher does make some useful observations about the trials he discusses in the initial chapters. For example, he does an excellent job evoking the mood of San Francisco at the time of Dan White's killing and of describing the prosecutor's inept response to White's defense. Yet Fletcher's narratives are definitely selective. Any advocate, of course, knows how to tell the story of a case by arranging facts in a way that supports her argument, but it is irresponsible for an advocate to overlook other possibilities or contradictory evidence. Indeed, this is precisely the criticism that Fletcher makes of prosecutors over and over again.(5) Because Fletcher's presentations of cases with which I have some familiarity(6) are so one-sided, I am suspicious of his treatment of cases about which I know little. The discussion of Tyson, for example, ignores all the evidence indicating that Tyson was in fact guilty of rape. Rather, according to Fletcher's account, Tyson fell victim to feminist pressure and Indiana hacks. This interpretation sounds strange to one present in Indiana at the time of the trial. No organized "feminists" placed pressure on the prosecutor's office. Indeed, the public pressured against prosecution and for Tyson. Prayer vigils were held in his behalf, demonstrators protested the prosecution, and the African-American communities in Indianapolis(7) -- as well as the national press -- criticized the victim.(8) Further, in his summary of the case, Fletcher says not a word about evidence corroborating the victim's testimony, including the testimony of the limousine driver and evidence of the victim's internal injuries, injuries consistent with forced penetration and inconsistent with "consensual sex."(9) At least in the minds of some jurors, the injuries contradicted Tyson's testimony that the victim had consented to extensive oral sex before she consented to intercourse.(10) A less serious distortion appears in his discussion of the White case. Fletcher implies that Mayor Moscone was quite popular at the time of his death, and that if White had only killed heterosexual Italian-American Moscone and not homosexual Milk, he would have been convicted of murder (pp. 254-55). Fletcher's desire to highlight bias against gay men in the White trial leads him, understandably, to emphasize homophobia; Moscone, however, had numerous critics, and his popularity arguably was waning at the time he was killed. Thus, it is not clear to me that the prosecution, as flat-footed as it was in the actual trial, would have obtained a conviction of first-degree murder of Moscone even if Milk had not been killed. Further, Fletcher's selective quotations of the psychiatric testimony in the case, while not stooping so far as to characterize it as a...
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