Convicting the victim

March 02, 1994|By George P. Fletcher

AS POLITICIANS plead for more prison cells for violent criminals, juries repeatedly fail to convict people who are obviously guilty of violent crimes.

The hung juries in the seemingly cold-blooded murders of the Menendez parents are only the latest in a series.

In the last few years, we have witnessed unruly jury behavior in the acquittals of John and Lorena Bobbitt; of Lemrick Nelson in the killing of Yankel Rosenbaum in Brooklyn and, at least in Simi Valley, Calif., of the officers who beat Rodney King.

Either the juries are not getting the message that we must control violent crime, or they are sending us a message of their own.

In each of these recent cases, the jurors ended up convicting somebody -- but it was the wrong party. They convicted Jose Menendez of child abuse and his fellow victim, Kitty Menendez, of guilt by association.

The actual defendants, Lyle and Erik Menendez, were said to fear they'd be harmed again -- fears that, however uncorroborated and unreasonable, supposedly negated any malice aforethought and thus precluded conviction for murder.

As the cliche of criminal defense goes: Someone in this courtroom is guilty and it is not my client. But if deceased victims are to be put on trial, at least they should get a fair hearing.

They are, after all, easy to accuse. No proof is required. In homicide trials, the victims obviously cannot defend themselves. There is no presumption of innocence or assistance of counsel.

Repeating wildcat charges again and again is often enough.

Blaming the victim has become the banal theme of criminal defense. John Bobbitt was not convicted of marital sexual abuse because she did that terrible thing to him, and she was not convicted of malicious wounding because he did those terrible things to her.

We seem to have forgotten that in our system we try one defendant at a time.

Black victims are routinely put on trial. The defense did it to the four youths who surrounded Bernhard Goetz in the subway, and again to Rodney King, who touched off the anger of more than four white police officers.

After the Simi Valley acquittal, blacks all over the country were so angry that a few months later, in the Brooklyn trial of Lemrick Nelson, the defense managed to put the police on trial and win an acquittal from a predominantly black and Hispanic jury. The gambit works for all sides.

Why is this pattern of jury misbehavior getting worse? Why can't juries keep their minds focused on the defendant and his or her crime?

One reason is that lawyers are exploiting novel defenses, and judges lack the temerity to rule their attacks on victims irrelevant.

The Menendez brothers, for example, might have feared a parental attack, as many have always feared earthquakes in Los Angeles. The question should have been whether the supposed attack was imminent.

If it was not (and if the parents were eating ice cream and watching television, it could not have been very imminent), the evidence of alleged abuse should have been excluded.

But there is a deeper reason for this pattern of wayward juries. Those who deadlocked in the Menendez case, who acquitted John and Lorena Bobbitt, who voted not guilty in Simi Valley and in Brooklyn -- the great majority would probably support aggressive crime-control measures.

They let killers go, yet encourage life imprisonment for less violent criminals. What are they trying to tell us?

Their actions testify to the imperative of total justice in a single case. The victim and the defendant, they think, must be tried together.

They convict the victim and let the defendant go because they have no confidence that the legal system will duly try and punish the likes of Jose Menendez, John Bobbitt, Rodney King, the police and other enemies.

Juries convict unsavory victims because they fear no one else will; the single trial is their only shot at justice. Better that they balance the wrongs than let the guilty victims reap a one-sided conviction.

The only check on this form of frontier justice is greater discipline at trial. Our judges must be more vigilant against speculative lines of attack that play on jurors' fears with buzz words like child abuse and racism.

They must rein in defense lawyers who have wakened to the potential of putting the victim on trial.

George P. Fletcher, professor of law at Columbia University, is writing a book on victims and criminal justice.

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