Closing arguments haven’t been made yet, but after

Aside

Closing arguments haven’t been made yet, but after the close of Zimmerman’s defense, my prediction is a manslaughter conviction, by a slight margin, with acquittal the next most likely option, and Murder 2 trailing as the least likely result. Call it a 45/40/15 split.

As far as I am aware, Zimmerman’s defense didn’t present any testimony or evidence concerning how the fight started. Their entire story of the shooting starts about halfway through the fight — call it the “Zimmerman is a fat and slow Dudley Do-Right who was getting his butt kicked” defense. Which is kind of a double edged sword for Zimmerman, because it means his case didn’t introduce any evidence that Trayvon started the fight. It’s counting on the jury to focus on the fact that, at the moment of the shooting, Zimmerman may have genuinely been in fear for his life — while steering the jury away from closely examining his conflicting police statements. The defense’s story is that Zimmerman is bumbling and quixotic, but too inept to be culpable for any harm that resulted.

So if there’s a conviction, it’s more likely to be manslaughter. The state’s strongest case for Murder 2 was always being able to show that Zimmerman intentionally deceived investigators about how the fight started, and that he used his knowledge of self-defense law to deliberately craft a story about why he was justified in killing Trayvon. But since the defense opted to avoid all together Zimmerman’s statements about who threw the first punch, Zimmerman’s veracity didn’t really come into play. The jury could buy that Zimmerman is a reckless fool, who was oblivious of his own limitations and too in love with the idea of playing the hero, but the state wasn’t able to show Zimmerman as calculating and malicious.

In a nutshell: if the jury believes Rachel Jeantel testified truthfully about what she heard on the phone that night, Zimmerman will be convicted of manslaughter. If they’re unsure of what she heard, then the odds are much less likely.

-Susan

The Statutory Basis of the Murder Charge Against George Zimmerman and His Available Defenses Under Florida Law

On April 11, 2012, over a month and a half after he shot and killed Trayvon Martin, George Zimmerman was charged with second degree murder for the 17 year old’s death. Zimmerman has since turned himself in to authorities, and is in custody pending a bond hearing. As an update to my earlier post on the timeline of events preceding Trayvon’s death, this post is a quick-and-dirty run through of the relevant statutory provisions that apply to the charges against Zimmerman, and the possible implications they may have.

Second Degree Murder vs. Manslaughter

To the surprise of many commentators, Zimmerman was not charged with manslaughter, as was widely predicted, but instead charged with second degree murder. Second degree murder, unlike first degree murder, does not require “a premeditated design to effect the death” of another person, but it still sets a higher bar than manslaughter:

Fla. Stat. Ann. § 782.04(2). Second degree murder.—

The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life[.]

Florida’s manslaughter provision is a general catchall for killings that are criminal, but don’t involve either the premeditation or the depraved mind of a murder charge:

Fla. Stat. Ann. § 782.07(1). Manslaughter.—

The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter[.]

The key distinction between the two is that the second degree murder charge requires a finding that Zimmerman killed Trayvon while engaging in an act “imminently dangerous to another and evincing a depraved mind regardless of human life.” Take that element away, and you still have the lesser included offense of manslaughter, so both charges are still theoretically on the table.

Unlike Murder 1, for a Murder 2 charge you do not need to show a premeditated plan, or a plan to kill that came into existence prior to the moment of the shooting. Murder 2 just requires that the defendant deliberately, and with so little justification as to be reckless, engaged in conduct that puts others at obvious risk of death or great bodily harm. To give a rough example, imagine an individual who, on a random whim, decides to throw a boulder off a cliff, when that individual knows that there is a path at the bottom of the cliff that people walk on. The individual could not have known if the boulder would kill anyone, and did not actually intend to cause anyone’s death, but could still be subject to a murder 2 charge if in fact someone was struck and killed.

But murder 2 still requires showing a level of recklessness that is difficult to show when the only survivor of the incident is the defendant himself. The fact that Florida is charging Zimmerman with second degree murder, and not manslaughter, is a strong indication that the prosecutor thinks there is some pretty compelling evidence out there in the state’s favor. Even ignoring the self-defense aspect of this case, it is dubious whether there is enough evidence that has been publicly confirmed to support a finding of a “depraved mind with no regard for human life.” So what might the prosecutor have to make them confident enough to bring a murder charge? Some possibilities:

  1. The autopsy of Trayvon Martin contradicts Zimmerman’s version of events. It is possible that the autopsy revealed that Trayvon was shot at from a distance and angle that does not support Zimmerman’s story. This strikes me as a little bit unlikely, but it’s possible. We know that Trayvon was shot at “close distance,” but perhaps the coroner’s report was somehow able to confirm that Trayvon was shot from two feet away — it is hard to reconcile Zimmerman’s story with such a finding, if one was made. Or, less likely but still possible, the angle of the bullet wound is inconsistent with Zimmerman’s story. However, if the two were fighting when Zimmerman pulled a gun and fired, my entirely uneducated assumption is that the bullet trajectory could have plausibly been any number of angles, due to movements and jerking and uncertainty about how far Zimmerman was able to draw his gun before firing.
  2. The prosecution has evidence that thoroughly discredits Zimmerman. Perhaps either through a combination of small but significant inconsistencies — e.g., if Zimmerman has no evidence of any significant injury, if Zimmerman’s known locations doesn’t support his version of how the encounter occurred, if Zimmerman’s claims that Trayvon was going for his gun were not part of his initial story to police — or through a major, so far unreleased discrepancy — some piece of evidence that has been withheld so far, with blows Zimmerman’s story out of the water — the prosecution believes it has enough evidence to suggest that Zimmerman knows that the killing was not actually in self-defense, and Zimmerman has deliberately crafted a false, alternative version of events to support his self-defense claim. Zimmerman is the only person alive who saw how the fight started — if the only evidence he has to support a claim of self-defense is his own testimony, and if his own testimony is shown to be false and misleading, then he has no self-defense claim to proceed on.
  3. The prosecution is confident that it can prove that the voice yelling “help” was Trayvon; or, failing that, they can prove it was not Zimmerman. This point is similar to point 2 above, but, if shown, it would be vitally important for the prosecution for several reasons, all of which would go a long way to helping the state make its case. If it can be proven to be someone other than Zimmerman yelling for help, then (a) Zimmerman loses his best chance of objectively proving a subjective state of mind at the time of the killing that supports his defense; (b) Zimmerman is shown to have had the presence of mind to, within ten minutes of the killing, tell an untruthful cover story, suggesting a depraved state of mind; and (c) it strongly suggests that Zimmerman had full awareness at the time of the killing that Trayvon’s screams for help were the screams of someone who was scared for the life and wants to end an altercation, not the screams of someone who is trying to kill someone else; in other words, Zimmerman subjectively knew, even during the fight, that Trayvon’s yells were not the yells of an equal participant in the fight.
  4. The prosecution does not have any evidentiary aces up its sleeve; instead, the state believes from the circumstances surrounding Trayvon’s death they can prove Zimmerman was acting dangerously, unreasonably, and with no regard for human life. The affidavit of probable cause would help support this theory, in that every allegation that has been added in to meet the depraved mind element is based only on facts of the case that have been widely reported in the media, i.e., Zimmerman perceived a threat where the objectively was none, as it was just a kid walking home from the 7/11; Zimmerman’s state of mind was that he was enraged about “those assholes” and “those fucking [punks/coons/goons]“; Zimmerman then disobeyed police dispatch instructions not to pursue Trayvon, presumably due to his apparently deep-felt desire to make sure this particular asshole didn’t get away. So, it’s possible that the prosecution thinks that alone would be enough to convict Zimmerman for a depraved mind killing. However, I am reluctant to draw too many conclusions from what is revealed in such initial documents. The prosecution is only trying to release enough of their case to actually meet the probable cause standard in these types of affidavits, while holding back enough to put them in better position for the trial. As such, the prosecutor here may have simply decided to base a case for probable cause of a depraved mind base solely on the publicly available evidence.

Zimmerman’s Available Defenses

For either a murder charge or a manslaughter charge, Zimmerman still has a few possible justifications and excuses that he could raise in his defense. Florida law has a half-dozen or so provisions which provide either a complete defense to a homicide charge, or have the effect of downgrading a homicide charge, in cases where the defendant was either acting in self-defense or had suffered sufficient provocation. The most basic is the provision providing that use of deadly force is not unlawful when used to resist an attempt to murder or to commit a felony against the one who used deadly force:

Fla. Stat. Ann. § 782.02. Justifiable use of deadly force.—

The use of deadly force is justifiable when a person is resisting any attempt to murder such person or to commit any felony upon him or her[.]

Although Florida does have an excusable homicide statute as well, it is not available here, because it may not be invoked where “any dangerous weapon [is] used” in the killing — in applies more to situations where two parties tussle, and, by unlikely accident, a fatal injury that could not have been reasonably predicted occurs:

Fla. Stat. Ann. § 782.03. Excusable homicide.—

Homicide is excusable when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.

There is also a provision providing for “unnecessary” killings done to stop an unlawful act. This section does not define any new substantive crime, but rather is an exculpatory provision that serves to reduce what would otherwise be a murder charge to one of manslaughter, for any homicide committed while resisting victim’s attempt to perpetrate unlawful act:

Fla. Stat. Ann. § 782.11. Unnecessary killing to prevent unlawful act.—

Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter, a felony of the second degree[.]

It presumably would not apply here, as the State’s theory of the case is that Trayvon’s struggle with Zimmerman was done in self-defense — which is not itself an “unlawful act.”

Finally, we have the infamous “stand your ground” law, which provides that:

Fla. Stat. Ann. § 776.012.—

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if … [h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.

The distinction between § 776.012 and § 782.02 is simply that the former does not incorporate an examination of whether or not the defendant had the ability to avoid the encounter with no danger to himself or others. As has been discussed elsewhere, the technical language of the Stand Your Ground law is not of such great relevance to the Zimmerman case — but the presumptions and assumptions created by the law seem to have effected the initial prosecutor’s decision not to bring a charge.

But the “stand your ground” law won’t protect Zimmerman if it can be shown he was simply fending off a few punches from an unarmed teenager. The provision specifically notes that deadly force is not permitted merely to stop another’s use of unlawful force; you can’t shoot someone simply because you’re getting punched and decide you don’t like the way the fight is going. And the use of deadly force only becomes justified when “[h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm.” An unreasonable belief does not provide any right of self-defense, no matter how subjectively real the belief was. The fear of imminent death must be based on objective facts “such as would induce a reasonably prudent or cautious man to believe that the danger was actual and the necessity for taking life real.” Ammons v. State, 88 Fla. 444, 454, 102 So. 642, 645 (1924).

If Zimmerman was not actually getting his head deliberately bashed into concrete — which, from the lack of any genuine injuries and improbability of that scenario, would seem to be the case — then Zimmerman was not justified in using force against Trayvon, no matter what his actual beliefs were. Zimmerman may have had the adrenaline rushing through his blood, and may have perceived his opponent as a murderous thug gang-member rather than a skinny teenager because of the presence of a hoodie; it’s possible Zimmerman really did think that a wrestling match on the grass with a skinny teenager somehow put his life in mortal danger. But his hyperactive threat perception system does not excuse him.

An individual’s right to life is not contingent upon maintaining a constant impression of harmless frailty –  “men do not hold their lives at the mercy of excessive caution or unreasoning fear of others.” Ammons, 88 Fla. 444 (1924). Even if Zimmerman truly believed he was somehow in danger for his life, he was not thereby granted permission to kill Trayvon if his fears were the product of an unreasonable mind. And there is plenty to suggest Zimmerman was in fact acting out of excessive caution and unreasoning fear that night. His hyperactive vigilance, his willingness to see a boy returning home from a candy run to the store as a grave threat to his neighborhood, his professed fear for his life due to a tussle with an unarmed boy that he outweighed — if the jury finds from Zimmerman’s behavior that his fears were unreasonable, and that his fear for his life due to a couple bumps on the grass was not prudent, then the killing is not justifiable as self-defense.

Moreover, even the “stand your ground” law imposes a duty to retreat in cases where the defendant has caused the fight, even if he later finds himself on the losing end of it:

Fla. Stat. Ann. § 776.041. Use of force by aggressor.—

The justification described in the preceding sections of this chapter is not available to a person who… [i]nitially provokes the use of force against himself or herself, unless [s]uch force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant[.] (emphasis added)

If Zimmerman instigated the encounter, then, even assuming he could somehow conclusively prove that Trayvon was in fact trying to wrestle Zimmerman’s gun away from him, that still won’t necessarily provide an absolute defense to the killing. Zimmerman was the one who chose to arm himself while pursuing a teenager who was rightfully in the neighborhood and doing nothing wrong; Zimmerman was the one who chose to stand outside of his vehicle looking for the kid, even when he was told not to do so by police dispatch; Zimmerman was the one who created a situation where, if a shoving match occurred between him and Trayvon, he could then argue that the fact he was armed made an unarmed boy a potentially lethal threat that put Zimmerman in fear of his life, because Zimmerman knew he had a gun that the boy could theoretically steal. Because “[a] killing is not justifiable or excusable if the defendant brought about the necessity therefor through his own wrongful act or without being reasonably free from fault in provoking the difficulty in which the killing occurred.” Lovett v. State, 30 Fla. 142, 11 So. 550, 17 L. R. A. 705; Ballard v. State, 31 Fla. 266, 12 So. 865; Padgett v. State, 40 Fla. 451, 24 So. 145.

It is arguable that regardless of who threw the first punch, Zimmerman provoked the confrontation by, while armed with a gun, recklessly hunting down an innocent neighbor. Zimmerman could have easily avoided any confrontation with Trayvon — Zimmerman himself admits that the kid ran away from him when he first saw Zimmerman, trying to escape. If Zimmerman had not pursued Trayvon, and if Zimmerman had not brought a gun, thereby inserting the possibility of deadly force into the equation where previously there had been none, then Trayvon would be alive today, regardless of who shoved who first:

“A defendant may, as a reasonable man, have believed that he was in danger of losing his life, or of incurring great bodily harm, and yet the killing may not, under some circumstances, be justifiable or excusable.  One instance is where he has brought about the necessity without being reasonably free from fault.  Again, the circumstances of a case may at least make it a question for the jury whether a killing was not in pursuance of a previously formed design to kill, instead of having been the result of a mere purpose of self-defense, although at the time of the altercation the first overt act may have come from the person slain.”  Ballard v. State.

Will Zimmerman Have to Take the Witness Stand to Claim Self-Defense?

Perhaps the most interesting aspect of Zimmerman’s possible claim of self-defense is that, in order to raise it, Zimmerman may very well be forced to take the stand in his own defense. If the prosecution, in its case, declines to introduce Zimmerman’s claims of self-defense, he may have to do so himself. As previous Florida case law has held, “in order to be entitled to instruction on self-defense, there must be some evidence that the defendant acted out of self-defense. … In the present case, there is no evidence in the record that defendant shot her husband in self-defense. The defendant and her husband were the only witnesses to the shooting and the defendant did not testify.” Smiley v. State, 395 So. 2d 235, 236-37 (Fla. Dist. Ct. App. 1981). Getting Zimmerman on the stand would blow open up a huge new angle of this case, and would give the State an invaluable opportunity to meet its burden of proof. If the State gets to cross-examine Zimmerman, it will have the opportunity to discredit his story beyond any reasonable doubt — something the state is unlikely to be able to do based on an abstract and vague encounter in the dark between two individuals.

I am not a criminal attorney by any means, so this analysis should be taken with a grain of salt. But, from a quick read of Florida law, it seems like Zimmerman’s only route of guaranteeing that a self-defense instruction is made available to the jury is by providing his testimony on why self-defense was necessary. Zimmerman will likely not be able to raise a defense to the murder charge based solely his statements to police that it was so — for one thing, much of the second-hand reporting of what Zimmerman said will likely be inadmissible hearsay, leaving Zimmerman with few alternative routes for presenting evidence of his self-defense claim. And the hearsay exceptions that are likely to apply in this situation are stacked in favor of admitting statements tending to show his guilt, not exculpate him. When a defendant seeks to introduce his own out-of-court exculpatory statement for the truth of the matter stated, it is inadmissible hearsay. See, e.g., Ehrhardt, Florida Evidence § 801.3 (1998); Lott v. State, 695 So.2d 1239 (Fla.1997); Logan v. State, 511 So.2d 442 (Fla. 5th DCA 1987); Fagan v. State, 425 So.2d 214 (Fla. 4th DCA 1983). The prosecution is free to introduce these statements if it wishes to, but Zimmerman does not have the same ability. So although Zimmerman has, apparently, given some details of the encounter to the police, without his supporting testimony on the stand, that alone probably will not be sufficient to get him a jury instruction on the self-defense claim:

“[W]e conclude that the trial court correctly refused to instruct the jury on self-defense because, simply stated, there was insufficient evidence adduced below to support such an instruction. The sole evidence at trial on the issue was the testimony of a police detective who stated that the defendant made an oral statement to the police that, “ ‘I stabbed the victim in self-defense.’ That he was assaulted by group of males.” Plainly, this evidence was nothing more than an assertion of self-defense by the defendant and in no way explained the exact circumstances upon which the assertion was based. This being so, the trial court was not required to instruct the jury on self-defense based solely on the defendant’s bald assertion of self-defense.” Gaffney v. State, 742 So. 2d 358, 362 (Fla. Dist. Ct. App. 1999).

At the same time, if Zimmerman does testify, it means that the State will have to either produce a contradicting witness, or diminish any credibility in Zimmerman’s own claims, in order to prevent a successful claim of self-defense:

“The defendant’s direct testimony concerning the victim’s threats and his menacing approach together with the defendant’s assertion that he was in fear of his life made out a prima facie case of self defense[]. The state presented no evidence to rebut the defendant’s direct testimony that he acted in self defense nor was it able to diminish his testimony on cross-examination.” Diaz v. State, 387 So. 2d 978, 980 (Fla. Dist. Ct. App. 1980).

So maybe that’s what the prosecution is banking on. If Zimmerman does not claim self-defense, then the State has already met all the elements necessary to convict him of manslaughter, and has a good shot at proving second degree murder to boot. But if Zimmerman does want to claim self-defense, he may have to take the witness stand to do so — and perhaps the prosecution is confident that, if it comes to that, they can impeach his testimony into oblivion.

-Susan

The infallible dog is a creature of legal fiction.

This article today at CNN reminded me of something I’ve been interested in for a while now — the reliability of sniffer dog use in criminal investigations and law enforcement.

There are two major uses of dogs in this context that are highly problematic: use of dogs for “scent lineups” to identify criminal suspects and use of narcotics detecting dogs. (In most other contexts, I’m a-okay pretty much across the board with dog tracking– I don’t have any problems with using dogs for detecting explosives or for border searches.) While drug scenting dogs are a much more complicated legal problem, relating to the constitutional requirement of probable cause for Fourth Amendment purposes, the use of dogs for scent lineups has a much greater empirical problem, and their use in the courtroom has not been methodologically sound [PDF].

The requirements for a sniffer dog to be certified are not particularly rigorous, and in Texas and Florida especially, it looks as if a lot of innocent people have been put behind bars as a result of unscrupulous practices by dog trainers. A major problem in the use of scent lineups is that, while dogs actually are pretty good at picking out the “correct” scent from a list of possibilities put before them, when provided with a scent line up with no correct matches, the dogs will all too often default to a “closest match” and produce a false positive.

For the use of narcotics dogs, the science isn’t much more comforting. Although you generally won’t get a false conviction because of the use of a drug sniffer dog (either the police find the drugs on you or they don’t), their use amounts to a real infringement on Fourth Amendment protections. Under United States v. Place, brief detention by law enforcement in a public area for the purpose of carrying out a “dog sniff” is not a search for Fourth Amendment purposes. In Illinois v. Caballes, Justice Souter dissented (from which the title of this post is also taken), noting that:

At the heart of both Place and the Court’s opinion today is the proposition that sniffs by a trained dog are sui generis because a reaction by the dog in going alert is a response to nothing but the presence of contraband. . . . Hence, the argument goes, because the sniff can only reveal the presence of items devoid of any legal use, the “sniff does not implicate legitimate privacy interests” and is not to be treated as a search. . . .

Pretty much every circuit — except possibly my home circuit, the 11th, which has not “squarely addressed” the question — treats it as probable cause to undergo a search when a sniffer dog gives a positive hit. The only evidentiary standards are that the handler must testify to the dog being “trained” and “reliable”. (The only exception to this rule that a not-particularly-thorough search turned up: United States v. Trayer, 898 F.2d 805, 808 (D.C. Cir. 1990)(dog giving positive hit alert at sleeper car on train is not in itself probable cause)).

And most worryingly, some circuits only look at the training of the dog, not the handler. This is pretty faulty reasoning, as the trainer is half the equation — they’re the ones who have to interpret what the dog is indicating. See United States v. Outlaw, 134 F.Supp.2d 701, 813 (5th Cir. 2003) (“an alert is simply an interpretation of a change in the dog’s behavior by a human handler”). In addition to bad trainers who aren’t used to the dogs and don’t know when they’re giving an alert, there’s also the possibility of very closely trained dog/handler combos being susceptible to the Clever Hans effect.

Dogs just aren’t perfect. For example, tired dogs do significantly worse than rested dogs — dogs can’t sweat so they have to pant to dissipate heat, and unfortunately you can’t exactly pant and sniff at the same time — so an overworked and overheated dog is going to produce less reliable results. However, even assuming all dogs are as infallible as Rin Tin Tin, a positive alert from a narcotics dog just doesn’t seem to meet the threshold for probable cause.

Using Bayes’ theorem, and granting dubiously high estimates of dog accuracy (98%) at detecting when drugs are present, and assuming .5% of the population possesses drugs on them at any given time, then then the odds of a dog alert correctly indicating the presence of drugs is only 1 in 5.

“If the dog sniffs 10,000 people, 50 (10,000 x .005) will possess drugs. Out of these, the dog will correctly alert to 49 (50 x .98). Of the remaining 9950 people that do not possess drugs, the dog will falsely alert to 2% of this group, resulting in 199 (9950 x .02) false detections.

Out of this population of 10,000, the dog has positively alerted to 248 people, 49 of which are correct detections and 199 are false alerts. Thus, the probability that an individual actually possesses cocaine based on this dog is 49 out of 248, a detection rate of less than 20%.” Robert Bird, An Examination of the Training and Reliability of the Narcotics Detection Dog, 85 Ky. L.J. 405 (1996).

That doesn’t sound like probable cause to me.

-Susan

Justice delayed is justice denied, in more ways than one.

I was going to resist commenting on the Polanski affair, or maybe limiting comments to any issues raised by his extradition. There are too many appalling apologies out there condemning his arrest, and far too many attempts to minimize his crime, that make me reluctant to wade in to the fray. Let’s be clear: Polanski forcefully and statutorily raped and sodomized a 13 year old girl that he had drugged, over her repeated objections and attempts to fake an asthma attack to get him to stop. This man deserves no one’s sympathy or defenses of his character.

But completely ignoring the details of the crime, having a 30 year fugitive from the U.S. arrested while on a trip to Switzerland does make for an interesting thought experiment. There is a great post at Cheap Talk that I wish I’d written:

Should punishment depreciate as time passes? As usual the answer probably depends on whether you think of punishment as justice or as a mechanism to internalize externalities.

The post points out three interesting questions this raises. First, after a span of thirty years, we are effectively a new person from who we were before; can a punishment for a crime committed half a lifetime ago then serve any purpose? Second, might the long delay between act and punishment be an argument for increasing the punishment? After all, thanks to the human tendency to engage in future discounting, a punishment of equal severity that is administered later in time is effectively a lesser punishment than one administered immediately. And, third, given that the cost of a prosecution spanning three decades (and three countries) is much greater than the cost of a quicker one, but also given that prosecutors who have all the time in the world are likely to be much more successful in getting a case together, there is always the risk that “the freedom to delay induces prosecutors to optimally impose costs on the innocent [and on the criminal justice system as a whole] in order to maximize chances of conviction.” Should we then be more hostile to such delayed prosecutions, in order to keep this bad incentive in check?

(Any dangers in falsely proving guilt that are posed by decay in the quality of evidence are minimal, the post points out, when the defendant has confessed to the crime as Polanski has.)

To expand on this some, the three major justifications for criminal punishment are rehabilitation, retribution, and deterrence. (You can add others in there, such as compensation and denunciation. But compensation is more civil in character, and denunciation can bit fit under both deterrence and retribution. I’ll stick with three categories for now.) A delay of 30 years inevitably changes the rationales for each one.

Rehabilitation is the weakest of the three, by far. There is no evidence I’ve seen to suggest Polanski has been a serial rapist during his years on the lam, and at 76 years old I’d be willing to accept for purposes of argument that he no longer is a threat to others.

Retribution is a harder question, although made somewhat simpler by the fact that the victim involved has publicly forgiven Polanski, and would rather be out of the spotlight than to have the whole ordeal gone through again. However, retribution isn’t merely for the benefit of a criminal’s victims. “Retributionists regard punishment, like justice, as an end in itself. In fact, they regard punishment as a requirement of justice. Retribution is the philosophy that the offender deserves to suffer. The physical harm inflicted on the offender or the damage done to his property is not a means to some other end such as compensation, deterrence, or reform. Punishment itself is the end.” Retribution also serves to sake society’s thirst for vengeance — to give people an outlet for such desires within our system of courts and law, rather than to engage in vigilantism to achieve it.

As is clear from all the meta-commentary over Polanski’s arrest, there are a lot of strong feelings out there about the necessity of punishing Polanski. And remember: this is a double headed crime here. Rape is not the only crime he committed, he also became a fugitive by skipping out before his sentencing hearing and fleeing to France.

So whatever muting effect three decades might have had on the desire for retribution over the rape is more than outweighed by a widespread feeling of anger that he has managed to escape justice for so long. Under this approach, Polanski’s crime was not committed 30 years ago, but rather began then and has been committed anew every day since then that he has avoided standing trial. During that time, he has lived life as a free man, under his true name, making movies, and winning Oscars. Unlike most decent fugitives, he hasn’t kept his head down, acquired an alias, and quietly made a new, honest life for himself.

American egalitarianism is most often expressed by the idea that “no one is above the law.” Polanski attempted to prove that this didn’t apply to him, and for thirty years he succeeded. The loudest and angriest cries for blood that are going on now stem not from the underlying crime itself, but rather from his successful evasion of punishment for so long. Moreover, there is a feeling that it was Polanski’s wealth, fame, and foreign connections that enabled him to do so — and there is nothing more sure to raise American desire for retribution than that.

Deterrence would also be served — at least in some measure — by punishing Polanski, although for the rape this would be of only minimal justification. While I do in some respects believe in the ‘economic lawbreaker,’ where a criminal’s willingness to commit crimes varies with the expected punishment to be imposed, I cannot for the life of me conceive of a rapist who stays from committing a crime because, “well, if I commit it, but get caught, but then escape to France for 30 years, I can still live there as a free man while eating good bread every day, so I think it’s worth it.”

Rather, the deterrence value would be against would-be fugitives. Had Polanski not fled to France, he almost certainly would have been sentenced to prison — but he would almost just as certainly have been released from it twenty years ago, likely more. Instead, Polanski will now probably die in prison. And for the last 30 years has been unable to engage in extensive travelling, always living in fear of capture and extradition. He may have had a nicer life as a fugitive than most, but he was still a fugitive. Let this be a lesson to other accused defendants, then: go through the court system, serve your time now, and one day you will be a free man again.

All that aside… The most important and profound statement I’ve seen yet on the matter comes from Polanski’s victim.

“The one thing that bothers me is that what happened to me in 1977 happens to girls every day, yet people are interested in me because Mr. Polanski is a celebrity.”

Amen. Polanski’s crime is hardly sui generis. Although punishing Polanski would be warranted, it’s only a drop in the ocean towards achieving justice .

-Susan