Stanford – Part Two: FSU Pike case and What the Victims Tell Us About Justice

When I wrote the post on the Stanford rape case last week I finished the posting with a feeling of incompleteness.  For some reason I feel compelled to write more about this topic, to finish the thought, story, or whatever it is that I’m actually writing.

I first came to live in Tallahassee in January 1988.  Shortly after I arrived, the local newspapers exploded with the case of young woman, who while intoxicated, was sexually assaulted by 3 members of the Pi Kappa Alpha fraternity.  There are many parallels to the Stanford case.  The participants were all students, all intoxicated, and the defendants all claimed that the victim consented.  I see the FSU case as more egregious because it involved multiple assailants and the fact that when the sexual activity was finished the defendants dumped the unconscious young woman in the hall of another fraternity house and then called the police in an attempt to frame the other rival fraternity. Also, it appears that the other fraternity brothers helped cover up the evidence and came to court in mass to support the accused.  The case was in the headlines for the next several years and the Pi Kappa Alpha fraternity was kicked-off the campus for many years.

In the FSU case, known as the Pike case, the defendants all entered into negotiated plea agreements that spared them criminal convictions and prison time. One defendant was ultimately convicted and sent to prison following his violation of probation by failing to check-in with his probation officer. In the decades that have followed, it does not appear that any of the young men involved ever committed another sexual assault or were involved other criminal activity despite what we would now consider a very lenient sentence.

In researching the FSU case I came across an article about the victim in that case, and I was really touched by the young woman’s words because they echoed what the victim in the Stanford case said in her letter to the court. The young woman from the FSU case has really struggled in the years since the night of her attack.  According to the article there have been PTSD issues and trips to alcohol rehab. How much of this is from her rape experience isn’t clear, but what is clear is that her experience with our legal system did little to help her with healing. Indeed, what she describes in the article about the judicial process came across to me as a second victimization.  The most private areas of her life were invaded and exposed to the public, her integrity and honesty were questioned, and she was forced to relive an experience that she had great difficulty recalling and was traumatic for her.  Sadly, she never got the one thing that she feels would have helped her the most – an apology from the young men.  My reading of the article left me with the impression that the apology and the attendant reaffirmation of her dignity is much more important to her than the degree of retribution imposed by the courts.

When I read the letter by the Stanford victim I saw this sentiment echoed.  She felt victimized by the process, angry at the defense attorney, and disappointed at the lack of apology from the young man.

I have been the attorney representing the accused in sexual battery cases and I have been that lawyer who has had to cross examine the alleged victim of a sexual assault. I get how they feel. It’s one of the reasons I didn’t pursue a career in criminal defense law.  I know that my cross examinations can be brutal, especially in a case where the only evidence is a dispute of consent. Many of the alleged victims whom I have had to cross examine were children whose testimony is easily influenced and whose memories are often very unreliable.  I also know that my cross examinations have revealed false claims and saved innocent young men from the stigma of a conviction.

Most sexual assault cases do not involve strangers, but people who are relatives or friends.  Many involve egregious violations of trust that destroy relationships and families.  It often seemed to me that what our legal system treats as criminal activity is really something beyond that for the parties involved.  Whether I won or lost my clients’ cases, I never felt that our system did much other than leave the people involved even more hurt and angry.  I know that those cases, more than any others I’ve worked on in my career, took a toll on me and left me feeling very conflicted about my participation.

In a criminal prosecution the accused and the accuser have almost no opportunity for reconciliation.  One of the first orders issued by a judge when considering bail for a defendant is to order no contact with the victim.  If a conviction occurs, a court will almost always order that a defendant have no contact with the victim.  There is no opportunity, even if desired by the accuser, for the parties to ever have a conversation about what a happened and to find reconciliation. Courts impose these restrictions in an effort to protect the accuser.  Granted, these days a victim can address the court during sentencing, but as evidenced by the Stanford victim’s statement, that doesn’t provide the conversation that she needs to happen.

I want to suggest that, perhaps, we need to consider whether or not victims will be better served in these cases if we were to offer some sort of a non-judicial option for resolving these cases.  What if we offer the accuser a choice in how their cases would be handled and a greater voice in the goals of the case?  What if we offer resources to the victims that will help them over the long-term to rebuild and improve their lives? In both the Stanford and FSU cases, both women spoke of their desire that their cases create change in their assailants.  What if, instead of retribution, the goal of these cases wasn’t simply to determine guilt and punishment, but to make a meaningful positive change in the lives of both the accused and the accuser?

In closing, I want to say that I have tried my best to write with sensitivity and compassion about this subject while also offering a different perspective.  I have also tried to stay true to the legal scholar’s obligation to question and examine how our system works and how it can be improved. Our current approach has failed for too long and isn’t creating the sense of peace and resolution needed by those involved.


Stanford, Compassion, Retribution, and Justice…Are they Compatible?

I began my legal career as an assistant public defender.  It was my job to represent those accused of criminal violations of the law and to advocate for the best possible outcome to their cases. My job required that I look beyond the simple facts of a defendant’s case and see the whole human-being who I was representing. I enjoyed this job and it’s my nature to want to stand with the accused, with the outcast, to make their case, and plead their cause.

It’s from this perspective that I’ve observed the media coverage and seemingly endless parade of Facebook postings regarding the 20-year-old Stanford student and the 6-month sentence he received following his conviction for sexual assault against an intoxicated young woman.  I’ve watched as a virtual vigilante mob has expressed its upset at what many feel is a ridiculously inadequate sentence.  I’ve read media reports of the virtual vigilantes have going after the judge, the young man’s father, and even a musician who is a childhood friend who wrote a letter of support of the young man to the court.  I’m left wondering how much is enough and where does this blood lust come from?

prison - guard towerThe United States currently has the largest prison population in the world.  Our Courts hand down some of the most severe sentences in the world.  We routinely impose sentences that would be unlawful in much of the world.  Despite this, we have both citizens and politicians calling for more severe sentences for law breakers.  I think we’ve lived with the idea that retribution is justice for so long that we don’t even question it any more.

Unfortunately, our approach to justice and fighting crime is remarkably unsuccessful and comes at a great human and financial cost. Sending people to prison for long periods of time fails much more often than it succeeds.  In the State of Florida where I live, 65% of inmates released will return to prison within 5 years. Compare this with Norway’s recidivism rate of 20% and where the national incarceration rate is only 1/10th of the United States and its prisons are luxury resorts compared to ours.

I’ve tried to research the specific facts of the Stanford Rape case online, but I haven’t been able to get obtain many details about what exactly happened here.  I suspect that many of the journalists writing op-ed pieces and folks posting online don’t know any more than I do.  I know, from my experience with media reports on cases I’ve been involved in, that what the press reports and what actually happened are often two different stories and media reports often leave out very important details for the sake of sensationalizing a story.

The information I have been able to obtain is almost formulaic to anyone who has ever represented clients in a sexual assault cases in a college town.  Two young people, both are heavily intoxicated, sexual activity happens, memories are impaired after the fact, one party claims it wasn’t consensual.  The physical evidence supports that everyone involved was voluntarily intoxicated and that sexual activity of some sort occurred. The sole issue of dispute is consent.  It is a scenario that repeats itself time and time again on our college campuses and in the lives of young people whose minds and bodies are impaired by hormones and alcohol.

Unlike many I am not disturbed by the six-month sentence imposed by the Judge in this case.  Compassion and justice are not disparate and incompatible concepts.  Our criminal justice system desperately needs more compassion and to stop defining people solely by their greatest mistakes.  I recall the words of Father Greg Boyle, founder of Homeboy Industries, the largest and most successful gang intervention program in the world: “You are so much more than the worst thing you’ve ever done.”

There is good support for a lesser sentence in this case beyond simply the fact that Brock Turner comes from a privileged background and is a white male defendant.  He has no prior history of law violations or aggression, he is very young, he has paid dearly in many other areas of his life, he will carry the stigma of a criminal conviction for the rest of his life, and he has expressed remorse.  I also think that his statement regarding the impact of college party culture is an important message that we should be not be ignoring. Even if I concede the point that many raise that had this been a less privileged defendant that the sentence imposed might have been much more severe, that’s not a justification to me because our Courts routinely impose unnecessarily long and severe sentences.  The solution isn’t to make sure everyone is sentenced unfairly, but create fair, just, and compassionate sentencing for all.  As a society we have to expand our concept of justice beyond retribution and we have to be willing to take the time to understand why these things are happening.  Justice is not served by declaring a remorseful 20-year old with no prior legal history to be the face of evil.

Drunken after partyI see many people online making statements to what they refer to as “rape culture”.  I’m a bit of a curmudgeon when it comes to adopting new buzz words for social problems, but I do think we have a severe problem on our college campuses.  Consider that we’re sending our young people to college, often without any real sex education due to the obstructionism of religious fundamentalists who have hijacked many local school boards.  I suspect that many young men, and probably quite a few young women, on our college campuses these days obtain their sexual education from the internet and the many pornographic websites. We’re also sending them into an environment where alcohol often flows like water, especially at schools with strong athletic programs which often receive large sponsorships from alcohol producers.  It’s a recipe for a disaster that keeps happening over and over again.

If we want to create a safe and healthy environment on our college campuses and in the larger world, long prison sentences are not the solution.  Education and candid conversations geared towards understanding and prevention are.  Our conversations with our young people have to be more than simply saying “Just say no” when it comes to sex, drugs, and alcohol.  Our colleges and universities need to quit co-opting and promoting the party culture associated with college sports in order to make money.  What message does it send about adulthood when our underage college students see large crowds of intoxicated 40 and 50 year olds during the Tallahassee Downtown Get-Down street party they hold before all Florida State home football games?

Justice has to be more than retribution.  Good people sometimes make terrible mistakes and do great harm to others.  Retribution doesn’t help them make better choices and often leaves them angry and broken.  Having compassion for a defendant doesn’t mean that one condones the wrong-doing or disrespect the victim. Looking at the larger forces and the context in which people make bad choices allows us to effectively prevent future tragedies, which in the end is really where justice exists.

Death and Loss in Orlando

Orlando is like a second home to me.  I lived there for five years and I return there often to visit friends and familiar haunts.  It’s a wonderful city that attracts visitors from around the world.  Everyone is welcome there.  Among my friends in Orlando are members of the thriving LGBT community that has contributed greatly to the business and cultural richness of the city.  Therefore, it was with profound sadness that I’ve been reading the headlines reporting the mass shooting that occurred there early Sunday morning.

I don’t know what motivates one human-being to decide to pick-up an assault rifle and walk into a nightclub and shoot over 100 people, killing 50.  International terrorism? Homophobia? Mental Illness?  I’m sure we will get many expert opinions on the motives of the killer in the coming days.  Sadly, these opinions won’t really help much.  The many dead will remain lost to us forever, their loved one’s hearts shattered with grief, and the many wounded will struggle as they find their lives and bodies forever changed.

The killer is dead. There will be no arrest, not trial, no reckoning. Just speculation as to why it happened and the discomfort of knowing that in modern America we can be assured it will happen again and again.

Tallahassee Bus Boycott and Other Tales of the Road

The struggle for equal rights and desegregation in Tallahassee is seldom discussed.  David discusses the history behind the C.K. Steele  Plaza and the Tallahassee Bus Boycott.  He also discusses how things may not have really changed so much and how the city has recently harassed young Black men for riding the bus.

Tallahassee All Saints Theater Ride: Great Films You’ve Probably Never Heard Of.

A weekend ride through Tallahassee to the All Saints Theater, located in an old train station, where the Tallahassee Film Society shows great films that often miss the regular theaters.  While riding, David shares some of his favorite films that most people have never heard of.

My Time On The Fringe

Have you ever entertained a daydream of what it might be like to run away from the stress, strain, and monotony of working a steady job and join a traveling circus?  For many of us, the security of a steady income and a predictable routine keep us rooted in place, fearful of going out into the world, and untrusting of our own abilities to provide for ourselves.  Perhaps an even greater pressure is the fear of what others might say, of being condemned as irresponsible or foolish.

2015 Tallahassee Fundraising Performance
2015 Tallahassee Fundraising Performance

My wife and I have just spent several enjoyable days with some people who aren’t afraid to take that leap and put themselves out there.  For more than a decade, we have made an annual trip to the Orlando Fringe Festival, an alternative theatre festival that features both local and traveling performers who put on what are generally very simple plays of their own creation lasting approximately 60 minutes. I love this festival and the creativity and the talent the performers bring to their shows.  Some shows are pure genius that leaves me awestruck: flawless in execution and brilliant in their concept and design.  Others are episodes in courage with an artist or cast struggling through a performance or show that either isn’t working or was poorly conceived from the start.

Preparing to perform at the 2014 Orlando Fringe Festival
Preparing to perform at the 2014 Orlando Fringe Festival

About two years ago, inspired by the many shows and artists, I wrote, produced, and performed my own show at the Orlando Fringe Festival and then took it on the road to the Syracuse Fringe Festival.  Watching this year’s performers, I was reminded of the hard work, the struggle, and the joy of doing my show.  I remembered standing in the hot sun handing out cards to try to convince total strangers to pay $10 each to come in and watch my show.  I remember that first show with a live paying audience and how frightening it was.  I remember making a mistake performing one of the songs during that show and my surprise that I didn’t drop dead on the spot.  I remember how my show got better with every performance and how wonderful it was when I felt the audience joining me on the journey of my performance.  They joined me in the songs I was singing and I could see their bodies moving in rhythm with the music and my spirit soared.  I loved when they would approach me after the show and tell me how much they enjoyed the play, how it changed their perspective or connected with something they already knew.

Performing for a very empty house in Syracuse
Performing for a very empty house in Syracuse

When I first started writing my Fringe play, Which Side Are  You On?,  I was afraid.  I was afraid that I lacked the talent or ideas to create something that anyone would be interested in, much less pay money to see.  I was afraid that my play and performance would totally suck and that people would ridicule me.  I’m so glad I didn’t listen to those voices.

I gained so much from my Fringe performances.  I created relationships with members of the audience, some of whom still approach me to talk about my play.  I also created relationships with many other artists, such as Stewart Huff and Martin Dockery, who welcomed me as a performer, encouraged me, and whom I have come to admire.  One night even found the courage to take my guitar out into the beer and wine garden where I started busking.  In less than a half hour I’d earned enough money to buy dinner.  Ever since I’ve felt that I have options, and that as long as I can play my guitar and sing a song, I won’t starve to death.

You don’t really have to run off and join the circus to find freedom, indulge your creative self, or break the monotony of everyday life, but you do have to be willing to put yourself out there.  In the modern world we have unprecedented opportunities for artistic expression ranging from coffee house poetry readings to self-produced music shared online.  You simply have to be willing to be vulnerable.  Forgetting to words to a song in front of an audience is embarrassing, but it’s not fatal.  In fact, it’s liberating in a way because once it happens and you survive it, you stop worrying so much about it, you relax, and then the real fun begins.