John Landis came to my home in Cambridge to try to persuade me to become involved in his defense as a trial consultant and as his appellate lawyer if he was convicted. I told him that I had been teaching and writing about the issue of causation in criminal law for many years. I knew that whichever way this prosecution turned out, it would become a leading case and an excellent teaching tool. I thought that my academic interest in the issue could add a useful element to Landis’s defense, and that my involvement in the Landis trial would add a useful element in my teaching.
I explained to John Landis that my interest in his case was, in part, academic and that I would like to use it in the classroom. He agreed, saying he would be getting free legal advice from some of the most brilliant law students in the world. My class discussed the case, and some useful legal and tactical insights emerged.
The prosecutor called seventy-one witnesses, many of whom offered scientific testimony about the cause of the crash and why it should have been anticipated. The defense summoned scientific witnesses who testified that an accident of this kind—the heat from pyrotechnics causing the tail rotor of the helicopter to delaminate—had never before occurred and could not have been anticipated. We pointed out that if Landis had any reason to fear the helicopter crashing, he surely wouldn’t have put his own life at such great risk, as he did when the helicopter crashed very close to where he was standing.
The jury deliberated for nine days before finding Landis not guilty. There would be no appeal, but the trial became a staple of law school teaching, appearing in many legal casebooks.
Several years later, it appeared as if another director might be in trouble for the death of an actor, this time while filming The Crow.22 The actor was Brandon Lee, the son of Bruce Lee, the famous martial arts actor, who himself died while filming The Game of Death.23 Brandon Lee was killed by a projectile that was accidentally shot from a gun that was supposed to be firing blanks. A thin but lethal shard of metal penetrated Lee’s heart, killing him.
A criminal investigation was opened and I was asked to consult with the lawyers for the production team. Eventually, the lawyers persuaded the authorities not to indict anyone for the tragic accident.24
The end result in both the Landis and Lee cases was that greater care is now being exercised during filming of sequences that pose significant risks to participants. Sometimes it takes tragedies to improve safety.
I use each of these cases in teaching my Criminal Law students about causation and the importance the law attributes to results, even if they are fortuitous and beyond the control of the defendant.
WAS JOHN DUPONT INSANE?
Another area of law about which I have long been teaching and writing is the relationship between law and psychiatry. My interest in this subject began when I was a law student studying with Professors Joseph Goldstein and Jay Katz, both of whom were trained in psychoanalytic theory.
It continued during my clerkship with Judge David Bazelon, who was the leading judicial authority on the insanity defense. I taught courses for several decades with Dr. Alan Stone on law and psychiatry and related subjects. So it was natural that when I began to litigate cases I would be attracted to alleged murders committed by mentally ill defendants. These cases also involved science—though a somewhat different kind of science than that involved in the biochemistry and DNA cases.
One of the most disturbing of these cases involved a wealthy and prominent sportsman who shot his best friend in cold blood for no apparent reason. John Du Pont, an heir to the famous chemical company, used his enormous wealth to create a training facility for Olympic wrestlers. World champion wrestler and gold medal winner David Schultz was his best friend. Yet on the afternoon of January 26, 1996, Du Pont drove up to Schultz’s residence and, without any provocation, shot him three times with a .44 Magnum at point-blank range, killing him in front of his wife. He drove away, hid in his mansion, and refused to surrender to the police unless they notified the Bulgarian embassy, which he claimed would give him asylum.
As later emerged, Du Pont did not believe he was killing his best friend Schultz, but rather a Soviet agent who had taken over Schultz’s body. Following his mother’s death nearly a decade earlier, Du Pont had become a full-blown paranoid schizophrenic. He believed at different times that he was the Dalai Lama, Jesus, and a deposed Russian czar. And he was convinced that Soviet agents were determined to kill him.
If this case had arisen before John Hinckley’s attempt to assassinate Ronald Reagan, it never would have come to trial. Everyone would have agreed that an insanity defense was appropriate, and Du Pont would have been committed to a mental hospital to receive treatment. But following Hinckley’s insanity acquittal in 1982, several states, including Pennsylvania, where Du Pont shot Schultz, changed their insanity defense laws, introducing an intermediate concept called “guilty and mentally ill.”25 Given this alternative, most juries rendered that compromise verdict, rather than finding the defendant not guilty by reason of insanity. The defendant did, after all, kill the victim, the jury would reason, and therefore he was guilty, but he was also mentally ill. It was the perfect verdict for Du Pont’s situation.
Accordingly, John Du Pont was found guilty of third-degree murder (without an intent to kill) but found to be mentally ill. He asked me to argue his appeal. I didn’t think he was likely to win, given the climate of the times and the nature of his crime, but I agreed to participate in the appeal, along with his local Pennsylvania lawyers. I saw this case as a perfect vehicle for teaching my students about the changing nature of the insanity defense.
I visited Du Pont on several occasions in prison. He was extremely intelligent, well read, and polite. Our conversations would begin in a normal fashion, with him asking about developments in the news, particularly those regarding foreign affairs. Gradually his paranoid schizophrenia would emerge as he put himself more and more into the news accounts, especially those involving Russia, Bulgaria, China, and Tibet. By the end of the conversation, he was in a different world—the world he had obviously inhabited when he shot his friend. He was the czar whom the Russian agents were determined to kill in order to prevent him from regaining his throne, or he was the Dalai Lama whom Chinese agents were hunting, or he was Jesus, whom Pontius Pilate was seeking to crucify.
Under Pennsylvania’s narrow insanity defense, every defendant is presumed sane, regardless of how bizarre his conduct or thought process. The defendant must prove his insanity by a preponderance of the evidence. Insanity is defined as an inability “to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong.”26 This “right and wrong test” goes back nearly two hundred years, to the English Common Law,27 and is difficult to establish, especially if the jury has the option of finding the defendant “guilty” and “mentally ill.”
No one disputed Du Pont’s mental illness. But the prosecution contended that he had known the nature and quality of his act—namely that he was shooting a human being—and that he had known it was a legally wrong thing to do. Du Pont’s “reality”—that he was shooting a Russian agent who had taken over the body of his friend—was legally irrelevant, because he knew he was shooting a person. The law of self-defense does not permit preventively killing someone who is planning to kill you unless he is in the act of trying to kill you. And neither Schultz nor “the Soviet agent” who had allegedly “taken over Schultz’s body” was in the act of trying to kill Du Pont when Du Pont fired the fatal shots. Hence, in the eyes of the law Du Pont was guilty, even if severely mentally ill.
The appellate court agreed with that assessment and affirmed the jury verdict.28 Remarkably, Du Pont was given no treatment, despite the finding of mental illness, and remained in a prison setting until he died in 2010,29 shortly after his federal appeal was denied and before he could file a writ of certiorari in the Supreme Court. It is unlikely he would have prevailed in federal court, since it remains uncertain whether the Constitu
tion requires a state to provide an insanity defense to crime. My students have debated this poignant case, with most believing that a person like John Du Pont should be found not guilty by reason of insanity and treated rather than punished.
DOES A BATTERED WOMAN HAVE THE RIGHT TO KILL HER BATTERER?
Yet another issue about which I have been teaching and writing for many years is the so-called battered woman syndrome. This syndrome is, in some respects, a variant on the insanity defense. Many women who have undergone years of physical assault by husbands or lovers are believed by some experts to suffer from a form of mental disturbance that denies them the power to escape from their batterers or even to reach out for help from law enforcement. This diagnosis is controversial,30 but when a woman who had been convicted of murdering her husband, who she claimed had abused her, asked me to argue her appeal, I agreed, since her claim seemed compelling and her case would make for interesting classroom discussion.
Whenever I defend an accused killer, I’m asked how it feels to be up against the family of the victim. It’s a hard question, even when asked in the abstract. In this case I was confronted directly by the mother of the victim.
My client was Lisa Rubin, who had admittedly shot and killed her husband. She claimed that he had abused her and that she killed him in self-defense. The problem was that the evidence showed that after she emptied her gun into his head, she reloaded and emptied it again into his body. She was found guilty of premeditated murder and asked me to try to get the conviction reversed or reduced to manslaughter.
I argued the appeal in the Maryland Court of Appeals.31 I was satisfied that I had done the best I could with a difficult fact pattern. As I was leaving the courtroom, feeling pretty good about myself, an elderly woman approached me. “You did a fine job, sir,” she began. I thanked her and started to walk away. “The man she murdered was my son,” she politely continued, “and I want you to know that my son never abused or tried to kill her.” She looked me straight in the eye and persisted: “He would never do such a thing. He was a fine young man. She was just trying to get rid of him because she had another man in her life. I want you to know the truth regardless of how the court decides the case.” She showed me his picture: “Look at him. Look at his eyes and tell me whether you think he could try to kill her.”
I looked at the picture and simply said, “I’m sorry for your loss.” The woman began to cry as she walked away.
I couldn’t sleep for several days, as the picture of the sobbing mother holding her dead son’s photograph kept popping into my head. Maybe he hadn’t abused her. Maybe he didn’t try to kill her. Maybe my client made up the story to justify a cold-blooded murder. Maybe not. Nice-looking people often do not nice things. You can’t tell a killer by his eyes—or by his mother. I could never know. All I could go on was the evidence that had been presented at the trial.
But the encounter with the victim’s mother haunts me still, as do the other possible victims of what my clients may have done. Any defense lawyer who says he doesn’t lose sleep over the moral ambiguity and complexity of his role is either lying or is unworthy of the responsibility of representing the possibly guilty in order to prevent the conviction of the possibly innocent.
The Rubin case was convoluted in the extreme. It actually involved several cases. Lisa Rubin claimed to have evidence that her estranged husband, whom she admitted shooting, had tried to poison her previous lover, who had tried to beat her up. Doubly abused, she then developed “a personal relationship” with one of her investigators and an unusual relationship with several of her trial lawyers. She later complained about those relationships as well. Eventually, after years and years of litigation, her conviction was reversed on the ground that several of her trial lawyers were guilty of a conflict of interest that denied her the effective assistance of counsel under the Sixth Amendment.32 I still have no idea whether the victim’s mother was correct in her assessment of her dead son. What I do know is that she honestly believed that her son was a victim, not a perpetrator, of violence.
In July 2011, my own family learned what it felt like to become the victim of a possible homicide. My brother’s beloved wife, Marilyn, was killed while riding her bicycle on a New York City street. Marilyn was a brilliant lawyer who had just retired from being a judicial referee in the New York Matrimonial Court. Her sudden death was devastating to my brother, their children, and our entire family. She had been run down by a U.S. Postal Service truck. She was rushed to the hospital, where a team of doctors worked feverishly to try to save her life. But in the end they couldn’t save her, and she died.
Because New York City, like many large urban areas, has security cameras on nearly every block, my nephew (who is an engineer) and I were able to view video footage of the event from several different angles. What we saw was a mail truck and an unidentified van barreling down a narrow street in what appeared to be a game of chicken. Neither would give the right of way to the other, so they both drove down the narrow street in tandem. The mail truck struck my sister-in-law. The driver then stopped his truck, appeared to look back, and then proceeded to drive away. The truck stopped again down the street and then made a sharp left turn into the basement of the mail building.
Upon viewing the video and talking to witnesses, we came to believe that Marilyn had been the victim of two crimes: negligent vehicular homicide and leaving the scene of an accident. Suddenly our family became the victims seeking justice from a reluctant prosecutor. It was a painful shifting of roles, as my brother demanded a thorough investigation and prosecution of the offending driver or drivers (the driver of the van was never identified or caught). We were now using technology and engineering science to try to prove criminal guilt on the part of the truck driver. In the end, the prosecutor charged the driver only with leaving the scene of an accident, but not with causing Marilyn’s death. After several days of trial, the jury acquitted the driver. No one was ever brought to justice for her death. This tragedy made me better understand what it feels like to be the family of a homicide victim.
There is no crime as horrible, or as final, as homicide. There is no penalty as cruel, or as final, as death. Death really is different. The stakes are higher, the passions greater, and the costs of error unmatched. That is why I have devoted so much of my career—as a teacher, a writer, and a litigator—to the changing law and science of death cases. There are, however, other crimes as well that have experienced significant changes over the course of my career with regard to how the law treats them. While the crime of murder—as distinguished from the scientific evidence used to prove and disprove it—has remained essentially the same since the time of the Bible, the crime of rape has changed significantly over the course of my career. Indeed, it is fair to say that no crime has undergone a more significant change of attitude regarding both accusers and accused than the crime of rape.
18
THE CHANGING POLITICS OF RAPE
Mike Tyson, DSK, and Student Protestors
When I began teaching, there were enormous barriers to the successful prosecution of rapists. The testimony of the alleged victim had to be corroborated by external evidence, unlike other crimes, where the testimony of the victim is sufficient.1 The alleged victim could be cross-examined about her entire sexual history, thus discouraging rape victims from coming forward. A husband could not be convicted of raping his wife, no matter how much force he used, because by law, “the husband and wife are one,” and “he is the one.”2 Under this bizarre sexist metaphysic, a husband was deemed “incapable of raping himself.”3 Juries were reluctant to convict “upstanding” young men who were accused of raping “loose” women (often defined as unmarried non-virgins).4 Moreover, being “dressed for sex” was considered a form of consent by some courts,5 and prostitutes could not be raped since they were in the “business” of consenting.6 In some states, lack of consent alone wasn’t enough to establish rape; the victim had to “resist” to the “utmost” even in the face of deadly th
reats.7 Some commentators went so far as to suggest that it was physically impossible for a nonconsenting woman to be raped.8 Date rape wasn’t even considered a crime.9 Instead it was deemed a manifestation of macho entitlement among certain groups, such as some college fraternities, soldiers, gangs, and athletic teams. Within some such groups, if one “brother” was accused of raping a woman, all the other brothers would say that they too had sex with the complainant.
The upshot was that many predatory males got away with rape, because victims were unlikely to complain, prosecutors were reluctant to bring charges, jurors were eager to acquit, and appellate courts were quick to throw out convictions.
As I taught my students, this male-centered attitude toward rape, and the special rules reflected by that attitude, go back millennia in time. The Bible, in which the Ten Commandments includes a prohibition against coveting one’s neighbor’s wife,10 does not explicitly prohibit rape. In the Bible, there are permissible and impermissible sexual encounters, depending on the status of the man and woman.11 A married woman is prohibited from having sex with anyone but her husband, while a married man is permitted to have sex with any unmarried or unspoken-for woman. If sex is permitted, it may be accomplished by force.12 If a man rapes an unmarried girl who is still in her father’s care, his “punishment” is to pay the father a specified amount for damaging his “property,” and he must marry the girl and may not divorce her.13 Who is punished more under this regime, the perpetrator or the victim? And who is the “victim,” the girl or her father?14 Similar rules prevailed in other religions and other cultures during biblical times and for centuries thereafter.15
Taking the Stand Page 41
