Appearances Are Deceptive
From a decision of the New York State Supreme Court, Appellate Division, Third Judicial Department, dated April 7th, 2005:
“In July 2002 in the Town of Livingston, Columbia County [in
upstate New York], a witness observed defendant slowly drive his
car across the center line of a road and strike a female bicyclist [who
happened to be a Manhattan banker] stopped alongside the road. The
witness further observed defendant pull] the struggling victim toward
his vehicle. As the witness and other bystanders moved to intervene,
the victim wriggled free and, after exchanging words with those
seeking to intervene, defendant fled the scene. Defendant was
subsequently arrested]and charged with attempted kidnapping in the
second degree….”
“Defendant was subsequently convicted as charged and sentenced … to 15 years in prison. Defendant now appeals … challenging the … County Court's instruction to the trial jury.”
“It ain’t necessarily so.”
At this juncture, your reaction might be: “Thank God for the witness
and the other bystanders, and fifteen years for this outrageous would-be
kidnapper is well deserved.” Well, it’s more complicated than that. In the
words of the Appellate Court:
“At his trial, defendant testified that the aforementioned events were
the result of mistaken identity. In sum, defendant claimed that, after
meeting an individual named "Judith" on the Internet, the two
arranged to have defendant simulate an "abduction" of Judith and
thereafter engage in sexual role-playing activities together. According
to defendant, he and Judith planned this mock abduction [a consensual
fantasy] for a number of months and the preparation included
defendant scouting the location of the event in Livingston, observing
Judith while she rode her bicycle in the neighboring countryside, and
Judith executing a "consent form" in which she agreed to her own
capture. Numerous electronic communications between defendant and
Judith were introduced into evidence at trial in support of defendant's
case. Finally, although the mock abduction was originally scheduled
for March 2002, defendant claimed at trial that he and Judith had
rescheduled for July 2002 and that, on the day he encountered the
victim, he believed that she was Judith due to her physical appearance
and the model of her bicycle.” [The real Judith was down the road
some distance away.]
The Appellate Court reverses the conviction
In its opinion, the Appellate Court reversed the conviction of the defendant for attempted kidnapping and ordered a new trial on the basis that the trial court had erroneously instructed the jury as to the test to apply in assessing whether the defendant had the necessary intent to kidnap the victim, the culpable mental state on which the case pivoted. The defendant had presented a defense of “Mistake of Fact” codified in New York’s Penal Code as: “…a person is not relieved of criminal liability for conduct because he [or she] engages in such conduct under a mistaken belief of fact, unless…[s]uch factual mistake negatives the culpable mental state required for the commission of an offense” [here the intent to kidnap].
In explaining this defense to the jury, the trial judge correctly explained that the jury must first “determine whether the defendant actually believed the victim had consented to such abduction,” i.e., that there is no sham or pretense in the claim. But the judge then erroneously added another hurdle for the defendant that is not specified in the defense as defined in the Penal Law:
that “the defendant’s mistake in identification of such individual [the
victim] was reasonable…it is not sufficient that the defendant
honestly believed in his own mind… that he was encountering the
individual with [whom] he had made this arrangement. An honest
belief, no matter how genuine or sincere, may yet be unreasonable,
and the mistake of fact must be such that a reasonable person in the
defendant's position knowing what the defendant knew, and being in
the same circumstances, would have made the same mistake."
The second trial
After deliberating for three and a half hours, the Columbia County jury in the second trial found the defendant not guilty. Two jurors later commented that the “subjective intent” instruction specified by the trial judge provided the “hook” they needed to decide on the not guilty verdict. They also said that the jury’s decision was “hard but didn’t take long.” The jury wanted to “give the victim some satisfaction” but that would be in conflict with the judge’s instruction as to the law they should apply.
One of the two jurors said: “We can’t read minds. All we had were the electronic messages, tapes, behavior and words of the witnesses on the stand.” According to the two jurors, the jury would have agreed to a lesser charge but none was offered. There was just too much doubt about the prosecution’s case, both said.
While the jury deliberated, they reviewed the Manhattan bicyclist’s testimony and the cross-examination of the defendant. They also reviewed the videotape made by the Sheriff’s deputies when they first questioned the defendant in their interview room. The jury noted the defendant’s demeanor, that he was “really…surprised” when interrogated about the event by the deputies. The two jurors added that the jury also ignored the “subculture” underlying the case and how they felt about that, referring to the extensive internet postings that arranged what was intended to be a consensual mock abduction.
Comment
What about the victim, the bicyclist!
Imagine the terror she experienced as she is accosted, seized and dragged across the road. Sure, the by-standers quick intervention short-circuits the terror but certainly does not vaporize it. Nor does the jury’s not-guilty verdict dissipate her suffering. True, the criminal law system has completed its work in which she played a core formal role as a complaining witness and the parties at trial were the state and the defendant, not her and the defendant. The jury has found a reasonable doubt: the prosecution’s case is over; there’s no appeal from a non-guilty verdict. She could sue civilly for damages, but her assailant has no money….
It’s important to note, however, that the defendant here has certainly been punished in a compelling practical sense; he served several years in two maximum security prisons where the most serious offenders are imprisoned, not a group you ordinarily want to associate with, never mind live with. He also lost his family, home and job. Indeed, when the jury freed him, he cried out and almost collapsed. I have another chance at a life again….he said.
Yet the banker’s memory and experience of past terror is not magically over. She is not restored to her prior state by the juror’s not-guilty verdict, their finding of a reasonable doubt. The jury itself apparently wanted to “give the victim some satisfaction,” but the indictment offered no lesser charge (a not uncommon tactic of prosecutors who want to discourage jurors from compromising on a lesser charge), and, in fact, it’s not clear which lesser charge could survive the defense of mistake of fact on these bizarre facts. Indeed the very idea of “satisfaction” is intrinsically an individual micro reality producing a panorama of needs and reactions. In this instance, for example, the victim may — or may not — have been “satisfied” by the imprisonment and other suffering of the defendant.
For those who erroneously interpret a non-guilty verdict as meaning that the defendant is “innocent” rather than that just a reasonable doubt exists as to guilt, what then is the status of her testimony. Does it mean that the jury did not believe her? Jurors, of course, don’t write decisions to explain their verdict. Here fortunately, the two jurors who commented after the verdict indicate that the jury verdict hinged on the judge’s more restrictive instruction as the single test of intent to apply (only subjective) in assessing the mistake-of-fact defense.
Restorative Justice
In my book, Learning Criminal Law As Advocacy Argument, the following comments springing from the ideal of restorative justice are relevant here.
If a criminal case is over because of a legal issue as here, you might as
a victim
“feel deeply that something really important to you remains
unaddressed and even unacknowledged. That is the rupture in the
personal moral bonds that tie us all together as citizens, workers, and
residents of a village, town or city. In our daily life, we had respected
the integrity and rights of others. We expected that others would
reciprocate – and they did – until we were violated. That sense of
violation lingers though the official prosecution is over … To address
these concerns, a mostly post-convictions effort called “restorative
justice” has emerged. It addresses the personal bond that has been
ruptured and seeks some understandings between the victim and the
defendant. Clearly, it cannot be ordered by the court: it must spring
from the will of both sides wanting to address the ruptured ties. In one
instance … a young woman was terribly injured by a defendant
seeking to kill someone else. Indeed, she suffered the most wretched
injuries with life-tearing impact. After the defendant was convicted
and received a lengthy sentence, she sought a prison meeting with
him, and he agreed. Though he stressed that he had not intended to
hurt her, he accepted complete responsibility for his actions and her
continuing suffering. Out of an intensely emotional encounter came an
agreement: from his meager prison earning, he pays her five dollars a
month that goes towards her ongoing medical care. The meaning of
the five-dollar payment is apparently much more than money to her
and perhaps to him.”
One other lesson from these facts about the bicyclist: even without any intent to harm, we can harm someone and even without criminal law culpability as here, there is nevertheless what might be called a compelling moral and existential responsibility that should be resolved in some way. The criminal law does not at all exhaust the realm of responsibility.
John Delaney |
