Commentary Magazine


Getting Away With Murder

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

—U.S. Constitution, Sixth Amendment

Trial by a jury of one’s peers is a venerable institution. Like Blackstone before him in England, the American Joseph Story, in his justly famous Commentaries on the Constitution (1833), traced it back to 1215 and Magna Carta, and, again like Blackstone, proceeded to quote the relevant passages from the original Latin: “nisi per legale judicium parium suorum, vel per legem terrae,” and all that. “When,” he continued, “our more immediate ancestors removed to America, they brought this great privilege with them, as their birthright and inheritance.” Especially valuable in criminal trials, the jury system had a great object: “To guard against a spirit of oppression and tyranny on the part of rulers, and against a spirit of violence and invictiveness on the part of the people.”

Even as Story was writing this, however, Alexis de Tocqueville, the most perspicacious among observers of American institutions and practices, found reason to question the utility of juries. True, they served an important political purpose; like the town meetings where a New England resident learned the art of government by being required to practice it, the jury served as a school for citizenship: “By obliging men to turn their attention to affairs other than their own, it rubs off that private selfishness which is the rust of [democratic] society.” But as a judicial institution, one that “ensures a good administration of justice”? About this, Tocqueville had his doubts.

He would have graver doubts today. There has, of course, never been any guarantee that juries will convict the obviously guilty or acquit the obviously innocent—among the latter, think, for example, of Ozie Powell, Haywood Patterson, and Charley Weems (the Scottsboro Boys), poor blacks wrongly convicted of rape by an Alabama jury in 1931; or of the not-so-poor but Jewish Leo Frank, wrongly convicted by a Georgia jury in 1913 of the murder of one Mary Phagan. Juries can be manipulated, or terrorized—or they can simply be prejudiced.

The last problem is an old one, and derives in part from the difficulty—sometimes the impossibility—of impaneling an unbiased or, to adopt the language of the Sixth Amendment, an impartial, jury. In the year 1255, for example, King Henry III ordered the arrest of some 92 Jews on charges of ritual murder, and on being indicted and sent to London for trial, eighteen of them (to quote from an English legal publication), “regarding conviction as a foregone conclusion unless they were allowed a mixed jury, refused to put themselves upon the country.” This was construed as a confession of guilt, and the eighteen were summarily executed.

The privilege of being tried by a mixed jury—or, in the official language of the time, by a panel de medietate, which, in this case, meant half-Jewish, half-Christian—was sometimes honored and sometimes denied or revoked; when honored, it served as some protection for the Jewish community. (The protection came to an end on November 1, 1290, All Saints’ Day, when Edward I “issued a decree consigning the Jewry of England to perpetual banishment.”)

In due course, the British adopted the practice of drawing a jury from the “vicinage” or neighborhood of the crime, and, in his draft of the Bill of Rights, James Madison proposed similar language for the Sixth Amendment. Defeated in the Senate, he had to be content with the requirement that the jury be drawn from the state or district “wherein the crime shall have been committed, which district shall have been previously ascertained by law.” But the principle was the same: propinquity would mean similarity, and a jury drawn from the neighborhood would be a jury of peers.

Now, however, we have come full circle, as all sorts of people have begun to insist that juries cannot be impartial unless they are “representative,” or “mixed,” as the English put it centuries ago. Blacks have been in the forefront of this movement—whether on trial themselves (as in the case of Congressman Harold E. Ford of Tennessee) or as the victims of alleged crimes committed by others (Rodney King, or the black motorcyclist shot by a white Hispanic policeman in Miami).

In response to this pressure, several state legislatures, including Florida’s, have proposed laws guaranteeing racially-balanced juries—in apparently flagrant violation of the Sixth Amendment. Thus it is that the redoubtable leftist lawyer William M. Kunstler, representing El Sayyid A. Nosair, the accused assassin of Rabbi Meir Kahane, could demand a jury of “third-world people” and get it. (Having done so, he won an acquittal on the murder charge.) And in addition to the difficulties created by a community divided along religious and racial lines, we now face something new, likely to prove the most intractable of all: a community divided along the lines of sex.

But the problem with jury trials is only partly a problem of finding an impartial panel of jurors. “The law is not made by judges alone, but by judge and company,” said Jeremy Bentham some 200 years ago, who knew what he was talking about. And what a “company” it is that makes law in our day! Expert witnesses allowed to testify as to matters they obviously know nothing about; defense attorneys who encourage their clients to lie through their teeth, as if perjury were a legitimate trial tactic; judges who refuse to punish the practice, or even to take cognizance of it; and, last but not least, members of the national television audience who play a role similar to that once played by vengeful mobs outside Southern courthouses, except that they can now be counted on to express their compassion not for the victims of crime but for the defendants.

Criminal trials, required by the Constitution to be “speedy” and “public,” have become, at best, long-running soap operas and, at worst (and all too frequently), travesties of justice. Two such were the trials of Lorena Bobbitt and of the Menendez brothers.

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Lorena Bobbitt, an immigrant from Ecuador by way of Venezuela, claimed she was repeatedly raped by her husband, John Wayne Bobbitt, a former Marine. She did not leave him (which she could afford to do because she was the main breadwinner in the family), or file for divorce (not, after all, unheard of in our day), or, prior to the event that made her famous, bring marital-rape charges against him (like campus date rape, an increasingly popular charge). Instead, on the night of June 23, 1993, she walked into the kitchen of their home, picked up a large knife, marched back to their bedroom, and hacked off the penis of her sleeping husband. She then left the apartment and disposed of the penis—or her part of it—by tossing it onto a grass-and-gravel roadside. The police found it, and two highly skilled surgeons made history by reattaching it to Bobbitt who, according to some reports, is none the worse for the experience. (He is said to be “writing a book.”) Nevertheless, she was brought to trial in Prince William County, Virginia, on the charge of maliciously wounding her husband.

Nominally the defendant, Lorena Bobbitt quickly and successfully cast herself in the role of victim, the victim of a brutish husband who subjected her to mental and sexual abuse. (“You know, I watch movies and I always thought sex, it’s like touching, holding, kissing, caressing, and he was never like that. He was never tender [even before they were married]. For me, it was rough, I guess.”) She claimed to have been in fear for her life; as her lawyer put it, it was a question of “his penis versus her life.”

Probably somewhat in doubt as to whether, even so, the jury would accept a self-defense argument—after all, the sleeping John Bobbitt was no immediate threat to her—or whether even being sexually abused would be seen to justify mayhem, Lorena testified at her trial that her mind had gone “blank” when she did the deed, that she had difficulty recalling what had happened when, afterward, she found herself holding the kitchen knife and her husband’s penis. The jury agreed; after hearing the testimony of a bevy of psychiatrists, it found her not guilty by reason of temporary insanity, and the judge sentenced her (if that is the right word) to a few months in a mental hospital.

As reported in the Washington Post, reaction to the verdict cut cleanly along gender lines. “Women cheered and whooped brazenly as they crowded around office televisions; men crossed their legs and made nervous jokes about sleeping on their stomachs.” Molly Yard (Fund for the Feminist Majority) was thrilled; Mike Royko (Chicago Tribune columnist) was disgusted. A group calling itself the National Feminist Association of Ecuador withdrew its pre-verdict threat to castrate the first hundred American men they could lay their hands on. Lynn Kefauver (Washington paralegal) said Lorena “should have been found not guilty by reason of temporary sanity.”

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The facts in the Menendez case are similarly well known. On August 20, 1989, Erik and Lyle Menendez, eighteen and twenty-one years of age at the time and armed with twelve-gauge shotguns, walked into their home in Beverly Hills, California, and killed their parents, forty-five-year-old Jose and forty-seven-year-old Kitty, who were watching television and eating ice cream at the time. Jose was shot five or six times, at least once in the back of the head, Kitty perhaps as many as ten times. As she lay moaning and trying to crawl away, Erik went outside to get more ammunition and, on returning, he or Lyle put a gun directly to her face and shot her once more. The boys then collected the spent shell casings, threw them into a dumpster, hid their guns, took in a movie, returned home, and put in a call to the police, feigning hysteria and saying someone had killed their parents.

These are facts; the brothers confessed to them. Seven months later, they were arrested. But before recounting the events of their trials (they were tried together but before separate juries), it is also appropriate to set down a few more facts:

  • The brothers had been involved in burglaries of houses belonging to their parents’ friends, making off with about $100,000 in money, jewelry, and other property. (Their father Jose came to their rescue by providing restitution, and arranging that Erik, underage at the time, would be held solely responsible so that Lyle’s chances of getting into Princeton would not be jeopardized.)
  • Lyle was dismissed from Princeton during his first term for cheating on an examination.
  • Some twenty months prior to the murders, Erik, with the help of one Craig Cignarelli, had written a screenplay, entitled Friends, in which a young man kills his parents with a shotgun. (He had also won a prize as best actor while at Beverly Hills High School.)
  • The brothers drove two hours to San Diego where they used a stolen driver’s license to purchase the shotguns.
  • After the murders, the brothers inherited perhaps as much as $14 million, and began to spend it immediately: $700,000 on Rolex watches and new automobiles (Jose Menendez had recently given Lyle an Alfa Romeo convertible for his birthday, but Lyle thought it “a piece of shit”); $550,000 (by Lyle) as a share in a restaurant business in New Jersey; a $990,000 deposit on a penthouse. The psychiatrists later called all this “grief shopping.”
  • In his confession (made to a psychiatrist, apparently in the mistaken belief that it would be privileged information), Erik also said the killings had been inspired by a film, Billionaire Boys Club, which involves a group of Beverly Hills boys who murder two people, including the father of one of them.
  • At the trial, a former girlfriend of Lyle’s, Traci Baker, testified that Kitty Menendez may have tried to poison the family; but subsequently a handwritten letter surfaced in which Lyle instructed her how to tell this story, adding, “we will decide later around what date this incident occurred.”

These, too, are facts. To them it is proper to add the opinion of two close observers of the trials, Dominick Dunne (reporting for Vanity Fair) and the Harvard law professor, Alan Dershowitz: both concur that the brothers are “world-class liars.” So good at lying, that police investigators never suspected them of the killings, and they were not even asked to submit to a test (routine in such cases) to determine whether their hands carried residue from the shotgun blasts. So good at lying, that at their trials they escaped conviction by managing to persuade enough members of their juries that they were victims: of neglect, rejection, and every other variety of abuse to which most parents are thought routinely to subject their children, as well as of more serious forms of mistreatment, including incest, sexual molestation, and bestiality.

One of their lawyers said to the jury that the question was not what the brothers did, but why they did it. “We will prove to you it was done out of fear.” In a trial lasting six months, all of it broadcast to the nation on Court-TV, the defense did indeed succeed in proving that Lyle and Erik had acted out of fear. To be more precise, they succeeded in proving this to the satisfaction of the women jurors.

On the charge of killing Jose Menendez, five of the six men on Erik’s jury voted for first-degree murder and one for second-degree; all six women voted to acquit. On the charge of killing Kitty Menendez, only one of the seven women on Lyle’s jury joined the five men by voting either for first- or second-degree murder; the other women voted guilty of one or another form of manslaughter. Hopelessly deadlocked, Lyle’s jury gave up after 19 days, Erik’s after 25 days, and Van Nuys Superior Court Judge Stanley M. Weisberg declared a mistrial. When the prosecution announced that it would move for a new trial, a woman alternate on Lyle’s jury said, “They’re not going to find a jury in our lifetime that could agree to convict them of first-degree murder.” The horrible thing is, she may well be right.

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“The accused [is entitled] to have compulsory process for obtaining witnesses in his favor.”

In the trial of Lorena Bobbitt, the jury chose to take the word of “expert” witnesses, the psychiatrists who pronounced Lorena Bobbitt insane (for the time being). Yet expert witnesses have a way with juries, as they do with judges. They are presumed to know what they are talking about, whether it is a banned book or the human psyche. And just as the book has not been written that some professor, when hired for the purpose, will not find to hold at least a modicum of “redeeming social value,” so the deed has not been done that some psychiatrist, when hired for the purpose, will not be prepared to attribute to insanity.

From the psychiatrist’s perspective, indeed, the question is really whether any of us is sane, or, at least, is not sometimes insane. Or, to put it in the terms favored by today’s talk-show culture, the question is really whether any of us does not have grounds for acting insanely. Thus, 20/20, ABC News, February 4, 1994:

[Barbara] Walters: Tom, it seems that in several prominent cases recently—Lorena Bobbitt, for example—that the psychological background of the defendant becomes the basis for the plea. Is that going to be a trend?

[Tom] Jarriel: It seems to be.

Walters: I mean, everybody has a psychological background.

In addition to helping the jury find Lorena Bobbitt temporarily insane, the testimony of the expert psychiatric witnesses lent further luster to the image of her as an abused person, and (therefore) as justified in doing what she did, whatever she did. This is the “abuse excuse”—tied, in this case, to the idea of wholesale female victimization which has already done so much to poison relations between the sexes. With or without the help of the psychiatrists, it will go on doing so. The feminists will see to that.

“I call it rape,” Catherine MacKinnon, professor of law (sic) at the University of Michigan, has said, “whenever a woman has sex and feels violated.” Or, as we find in a quaint document from a somewhat earlier moment in the feminist movement called the SCUM MANIFESTO (required reading in a Georgetown University women’s-studies course): “The male is completely egocentric, trapped inside himself, incapable of empathizing or identifying with others, of love, friendship, affection, or tenderness. . . .” No wonder women feel that other women are justified in taking out their knives.

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For some inexplicable reason, no “expert” appeared for the prosecution in the Menendez trial. But more than a dozen psychiatrists, sociologists, therapists, social workers, and other “experts” testified for the defense, and were well paid for doing so.

A professor with experience evaluating crime scenes for the FBI studied the photographs of the murder scene and proffered her “expert” judgment: it was so “disorganized” that the murders could not have been planned. On the contrary, she said, the wildness of the shooting indicated fear and panic resulting from a lifetime of sexual and mental abuse.

Similarly, a group of psychiatrists, psychologists, and various other professors, after interviewing Lyle and Erik in the jailhouse, testified that in their “expert” judgment the brothers were telling the truth.

One therapist cited “scientific evidence” showing that abused children suffer changes in their “brain chemistry.” (Presumably, since neither of the Menendez brothers showed any evidence of present brain damage, the chemical changes must have been reversed by the time of their trial.)

Finally, a psychology professor from Indiana University testified—on what basis was never made clear—that Lyle had been rejected by his mother because she did not want to give birth to him.

Half the jurors apparently found all this persuasive.

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“The accused [is entitled] to have the assistance of counsel for his defense.”

Asked by a member of the press whether a lawyer had to believe that “the person you are defending is telling the truth,” Leslie Abramson, Erik Menendez’s chief counsel and therefore an officer of the court, said, “No you don’t. You don’t have to believe that at all. You [do] want to know whether they are or not.”

She did know that much. She must have known that Erik was not telling the truth when she exhibited a photograph of Jose Menendez holding his two sons, aged about four and six at the time, and asked Erik where his father’s hand was placed. The photograph, reproduced in the July 21, 1993 New York Times, clearly shows an affectionate father holding a smiling Erik on his right, with his left arm around Lyle’s waist, the hand appearing to rest on the boy’s belt buckle. On the stand, the well-coached Erik replied that their father’s hand was placed on Lyle’s genitals.

She could not have believed (but as she explained, she did not have to believe) the gruesome stories she elicited from Erik at the trial, week after week: stories of how, from an early age, he was forced to satisfy his father’s sexual desires. But, herself a consummate actress, she pretended to believe them. As she put it in her summing-up, Jose Menendez’s purpose “was to use his child’s body to satisfy his lust.” But Dominick Dunne points out that “not one of the defense witnesses, [not] even those who had reason to hate him, described José Menendez as the pervert father his sons said he was.” Menendez relatives told Dunne that “the brothers’ account of the molestation was false, gleaned from books they read in jail,” principally Paul Mones’s When a Child Kills: Abused Children Who Kill Their Parents.

The stories of rape and abuse were told to justify the brothers’ killing of their father, admittedly a detestable man. What about their long-suffering mother? Here the defense had something of a problem. They solved it by having poor Kitty, in real life the victim of a philandering husband, depicted as yet another monster, one who hated her sons, who seduced them when they were children, who attempted to poison them. Again, all apparent lies, and, except for the cock-and-bull story told by Traci Baker, uncorroborated by anyone else’s testimony. Like the stories about the father, they were easy to tell, since neither parent was available to rebut them.

Asked to explain why Erik, in confessing the murders to his therapist, had not said anything about molestation, Abramson opined that to do so, “he would have had to reveal the shameful, in his opinion, secrets that he had spent most of his life concealing.” A lawyer brazen enough to suggest that someone would willingly confess to having shotgunned his parents to death but be embarrassed to discuss sex with his therapist is just the sort of lawyer Erik Menendez needed. A jury prepared to believe such a lawyer was a jury prepared to believe anything.

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“It is a general rule . . . that the evidence shall be confined to the point at issue.”

According to the Supreme Court, in a 1990 capital-punishment case, evidence showing that a “defendant had a poor and deprived childhood, or that he had a rich and spoiled childhood, [or] that he had a great love for the victim’s race, or that he had a pathological hatred for the victim’s race, [or] that he has limited mental capacity, [or] that he has a brilliant mind which can make a great contribution to society, [or] that he was kind to his mother, or that he despised his mother,” all such evidence concerning a defendant’s character or record must be admitted and considered—at the sentencing stage. But not at the trial stage.

Leslie Abramson and Jill Lansing (Lyle Menendez’s lawyer) succeeded in getting this evidence introduced at the trial stage, where the “point at issue” was one of guilt or innocence, i.e., whether Erik and Lyle Menendez murdered their parents. They managed this by claiming self-defense; to support that claim, they were allowed to introduce evidence of child abuse which allegedly had begun at an early age and continued up until a week before the murder.

Now, the criminal law allows a person to use deadly force only when he reasonably believes that he is facing imminent death or serious bodily harm; but, just as Lorena Bobbitt was not facing imminent death from her sleeping husband, so, on the basis of all the evidence presented in their trials, Erik and Lyle Menendez cannot reasonably be said to have faced imminent death at the hands of their father. They were strong, agile, young men—Erik was a near world-class tennis player—free to come and go as they pleased, and they did not suffer from a shortage of cash. On the contrary, they had free use of their parents’ credit cards; their father bailed them out of trouble, employed a $60,000-a-year tennis coach for Erik, and was determined to get him into Princeton.

True, José Menendez had reason to be fed up with his sons, and may finally have come to the conclusion that he had given them too much. He mentioned to his executor that he was thinking of cutting them out of his will. (Did the brothers, perhaps, learn of this?) But there was no evidence that he intended, or had reason, to kill them. Indeed, it was only on the eve of the trial, three years after they had been arrested, that Leslie Abramson announced to the press that the brothers intended to claim self-defense, that they had killed “because they were in fear for their lives.”

Remarkably, in his charge to the juries, Judge Weisberg refused to give the self-defense instruction; in fact, he said that even if the brothers’ stories were true, that still would not justify the carefully planned murders, and the juries would have to convict them of at least involuntary manslaughter. Why, then, if they were not to be permitted to deliver a verdict of justifiable homicide—which is to say, a verdict of not guilty on grounds of self-defense—were the jurors allowed to hear all the testimony bearing only on self-defense? And why did this same judge forbid the prosecution to introduce Erik’s screenplay, or the film Billionaire Boys Club, or the tape of the confession made to the psychiatrist?

The judge’s reasons for these actions were, to say the least, unclear. But he did so act, and the consequence was that half the members of the jury in effect voted contrary to his instructions.

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It takes only one member to “hang” a jury, and in the Menendez trial, to paraphrase the last line of George Orwell’s 1984, most of the women jurors had come to love the little brothers or, at a minimum, to pity them. “I don’t think Lyle is a threat to society,” one of them said. “If he lived across the street from me, I wouldn’t be afraid.” Women spectators in the courtroom felt the same way. “I believe in them,” said one, “and I wanted to stand alongside them.”

What they really “believe in,” however, is the gospel according to Oprah Winfrey, Phil Donahue, Sally Jesse Raphael, and Montel Williams: that “everybody has a psychology,” and everybody is a victim. Lorena Bobbitt was a victim of sex abuse, Lyle and Erik Menendez of child abuse. (Even Hitler, we are now told, was abused as a child.) From this perspective, the real criminals are not the sociopaths like Erik and Lyle Menendez but the rest of us—those (to quote the columnist Charles Krauthammer) “who carry the mask of sanity, the middle classes living on their cozy suburban streets, abusing their children, violating their women, and harboring deep inside them the most unholy thoughts.”

So jurors—with the connivance of lawyers, judges, and “expert” witnesses—refuse to convict Lorena Bobbitt, or the Menendez brothers (after all, they only killed two people so far), and a national audience cheers. Woe to the criminal-justice system that travels down this perverse and awful path.

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