Consider an example of police as shadow vigilantes.
POLICE SUBVERSION OF THE EXCLUSIONARY RULE
Bill Bradford is a sexual psychopath.19 His first sexual crime occurs in 1972 during his midtwenties. Bradford tries to force his penis into a seventeen-year-old girl's mouth and then masturbates onto her breasts. In response to the girl's cries, Bradford shouts that “he always wanted to do it so he did.”20
Two years later, Bradford and a fifteen-year-old begin an intimate relationship. During the relationship, Bradford beats his girlfriend on a weekly basis, sometimes forcing her to have intercourse with him during the assaults. The girl becomes pregnant. Bradford tries to kill the baby by slamming his girlfriend's belly into a door, and once the baby is born he tries to kill it several more times, twice by throwing it against the wall and once by tying a windbreaker around its face. Over the years the pattern continues: Bradford treats a woman brutally, is arrested, is convicted, and is soon free again.
In the summer of 1984, while out on bail and awaiting trial for rape, Bradford assaults Shari Miller, a twenty-one-year-old struggling to make it on her own. She has held various jobs in the past, including being a bartender at the Meat Market, a popular bar in Los Angeles. Miller tells her mother that she is going to get a job as a model for a photographer and heads out at 3:00 p.m. one afternoon. Bradford goes with Miller into the desert, takes various nude photographs of her, and then strangles her to death. He then mutilates the body, removing her nipples and various other pieces of flesh.
More than a week later an office worker who has parked behind his workplace in an alley notices a foul smell. He spots a large bundle covered by a quilt, soaked in blood, from which a hand is protruding. Identified initially as Jane Doe No. 60, the body is that of Shari Miller.
Tracey Campbell is a fifteen-year-old girl who lives in the same complex as Bradford. On July 12, one of Bradford's roommates hears Bradford and Campbell talking and hears Bradford say he has a job for Campbell. Bradford takes her out to that same spot in the desert, photographs her, and then strangles her to death; he leaves the body to rot in the desert heat.
When the Campbell family starts to ask around regarding Tracy's whereabouts, they learn from Bradford's roommates that the two had been together. The next morning Campbell's mother files a missing person's report at the police station. One of the roommates tells a caller that Bradford has “taken the little girl next door the previous day and was not yet home.”21
On July 14 and on July 16, the LAPD interviews Bradford in his apartment concerning Campbell. Bradford tells the officer that she had come to his apartment to use the phone and that he had then dropped her off to buy cigarettes and hitchhike to the beach. Two days later, Bradford consents to a search of his apartment and car, but nothing significant is found.
Fig. 3.2. Bill Bradford, while in prison, 2008.
Bradford remains the main suspect due to his connection to the girl and his long rap sheet of previous sexual and violent assaults. On July 31, pursuant to a warrant, LAPD officers arrest Bradford and execute a more thorough search of his apartment and vehicle. This time, they recover numerous Polaroids and negatives from which they recognize photos of Jane Doe No. 60. The police match the girl in the photographs to the dead body they had found earlier in the month and soon determine that Jane Doe No. 60 is Shari Miller.
Over the course of the next two days, the police interrogate Bradford. They ask him about his connection to Miller, to which he responds that he had known her for years and that she had wanted to get into modeling. He admits to taking modeling shots on July 1 and says he has not seen her since. After being held for three nights, he is released from custody due to insufficient evidence.
On August 11 a body is found in the desert at the location Bradford is known to have previously visited for a camping trip. The location matches the background of some of the seized photos of Miller modeling. The body is determined to be Tracey Campbell. Because both murders are similar and the location of the remains matches Bradford's photos, the previous suspicions of the police seem to be confirmed.
The police have a problem, however. While it is more clear to them than ever that Bradford is their multiple murderer, they do not have sufficient new evidence that will allow them to obtain a warrant to search his apartment for the third time. Their warrant application must have a stronger showing of probable cause for yet another search than they have had in the past.
Understanding that the serial killer might escape their grasp, Detective Charles Worthen, who assisted with the July 31 search warrant, does what he believes he needs to do to get the warrant. In the warrant application, Worthen leaves out certain pieces of information. He leaves out information that Miller was seen alive after June 30, even though several of her friends reported this. He asks for authorization to search for a silver spoon ring, blue cutoff shorts, and any articles of clothing as seen in a series of attached photographs, even though some of these items are already in police inventory from the previous search of Miller's car. Finally, he mentions the two previous searches only in the appendix rather than in the main application itself. The tactics work, and the warrant is granted.22
On August 16 the LAPD again arrests Bradford. After being read his Miranda rights, he initially refuses to speak without a lawyer, but then Bradford waives that right and agrees to an interview. He sticks to his original stories. When asked how it could be possible that Campbell's body was found almost in the exact same location as the photo shoot for Miller, Bradford responds, “I can't explain it to you.”23
Armed with the newly issued warrant, the police search his home and vehicle for the third time. In the hall closet they find a wristwatch flecked in paint similar to the one Miller is wearing in some of her photographs. In another closet they find a portion of white rope, numerous photographs and documents, and several items believed to be owned by Miller. The rope is found to make impressions identical to those in the ligature marks on both victims’ necks. Police have found the murder weapon. In Bradford's automobile, the floor mat in the trunk tests positive for presence of human blood.
Now the collection of evidence against Bradford is very strong. He is charged with two counts of first-degree murder, goes on trial, and is found guilty of both counts. During Bradford's closing testimony in sentencing he says, “Think of how many you don't even know about.”24 The jury sentences him to death. Bradford appeals his conviction, citing the police misconduct in obtaining the final warrant. As a result of his appeal some evidence is excluded, but Bradford's conviction is affirmed.25
It seems likely that Detective Worthen wrote the application for the final warrant, which led to the conviction, in a way that was intentionally misleading. Yet in his own mind, the deception no doubt seemed justifiable, given the justice-frustrating nature of the search and seizure exclusionary rules and the real danger that this sadistic serial murderer and rapist might escape conviction and punishment.
Part III of this book gives many more examples of shadow vigilantism in different contexts by both ordinary people and criminal justice officials. The real threat that vigilantism presents to an ordered society lies not in its classic form but rather in these common acts of shadow vigilantism, which are essentially impossible to stop and which create unpredictability and distortion in the operation of the system. As part IV details, the damage comes not just from the acts of shadow vigilantism but perhaps even more from the dysfunctional reaction of others to these acts.
Yet, despite the chaos that shadow vigilantism inspires, the current criminal justice system, apparently oblivious to the dangers, continues to provoke it by adopting rules and practices that regularly produce what are seen as appalling failures of justice, as the next chapter illustrates.
We know that people can be outraged by the criminal justice system's avoidable failures of justice, as you may have been outraged when reading the cases of Deanna Cook and the Dictionary Hill bully in the first chapter. But perhaps these ar
e isolated and unusual situations that, thankfully, are increasingly confined to the past. Do ordinary American citizens have any reason to feel outraged about the current criminal justice system's failures of justice? Could there be systemic problems with practices that predictably provoke outrage and thereby encourage the vigilante impulse?
Our studies suggest that the system has adopted a wide range of rules, policies, and practices that, in the view of ordinary people, seem to allow offenders who commit serious crimes to go unpunished, even when identified and caught by the police. To the offender, the escape from liability may be an unexpected gift. He has won the lottery! But to ordinary citizens, his release can suggest a criminal justice system shamefully indifferent to the importance of doing justice—to give offenders the punishment they deserve.
Some of the system's failures of justice may be unavoidable and may be easily forgiven by even a demanding public. The criminal justice system can only do so much to catch offenders and to reliably reconstruct what happened during some past event. Few people are likely to hold such failures against a system otherwise trying to do its best to dispense justice. The public would be appalled by wrongful convictions and the unjust punishment that might result from cutting corners on reliable adjudication of the facts. What is upsetting to many, however, is when serious offenders escape the liability and punishment they deserve even though their guilt is clear.
Set out below are some examples of the kinds of cases that we know, from our research, outrage people. These are the types of cases that make the news and thereby advertise the criminal justice system's apparent indifference to the importance of doing justice. These failures are not instances in which the system's rules and practices are being subverted by law-breaking rogue judges and officials. They are, rather, instances in which the law is observed and the perceived failure of justice is one that the law officially and publicly tolerates and even aggressively promotes.
These doctrines of disillusionment, as they might be called, come in a variety of forms. Some are practices by a judiciary that is seen as following a rigid, rule-obsessed view of criminal adjudication that too often sees the process as a game rather than a search for truth and justice. Others are rules, such as the suppression of reliable evidence, that undermine effective enforcement and investigation efforts and are seen as enabling criminals and creating avoidable crimes. Still others are seen as made possible by vast, unchecked discretion given to decision makers in the criminal justice process. Finally, some are formal liability rules that give defenses to clearly blameworthy offenders who have committed serious offenses.
But what about the old adage that “it is better that ten guilty men go free than one innocent man be convicted”? Don't many of these doctrines of disillusionment simply promote the values behind that adage? And doesn't any proposal to constrain these doctrines conflict with the values of the old adage? Absolutely not. The adage rightly emphasizes the importance of avoiding wrongful convictions. And everything in this book supports that view. One can't care about justice without also caring about avoiding injustice. If a rule or practice protects innocent defendants from conviction, then all bets are off; the rule ought to be enthusiastically supported. This perspective is consistent with the community view, which of course strongly objects to wrongful convictions. The focus here, and what provokes the vigilante impulse, are very different sets of cases: those rules and practices that let clearly guilty offenders escape the punishment they deserve.
An academic could offer an argument in support of many of the doctrines of disillusionment, and many of these rules and practices are the product of healthy debate over competing interests. (One of us has done a detailed analysis of the underlying justifications for such rules, in Robinson and Cahill's Law without Justice: Why the Criminal Law Doesn't Give People What They Deserve.) But the point of this chapter is to give a sense of how very plausible and understandable it is that many people are outraged by the current system's results. Whether people are right or wrong to feel outraged is beside the point. What is important here is to see how easy it is for people to feel upset about the system's results. Criminal justice should at least acknowledge the dissatisfaction that doctrines of disillusionment bring about.
Below are some examples of the kinds of cases that are likely to disillusion ordinary people. The appendix provides dozens more examples.
CRIMINAL JUSTICE, THE GAME
A common source of disillusionment are cases in which judges seem to be too caught up in applying technical rules rather than being guided by principles of fairness and justice.
Too Many Jurors Voting Guilty
In 2007 Charles Devol Mapps shoots his girlfriend of ten years, Roseann Siddell.1 He tells police that he did it at her request as part of a suicide pact. She had never fully recovered from the emotional trauma of having been the victim of a sexual assault years earlier, he explains, so they decided to end their lives together. Police learn that Siddell went to school, worked two jobs, and gave every indication to family and friends of being well-adjusted, and they simply do not believe Mapps's story.
Mapps is charged with murder and use of a deadly weapon. His trial is held in Houston, Texas, in February 2009. “It doesn't take a long time for the state to put the case on. There really isn't any other evidence than [Mapps's] statements,” defense attorney Skip Cornelius recounts.2 Judge Mark Kent Ellis is on the bench, and under his watch the case goes smoothly.
At the conclusion of the evidence phase, Judge Ellis sends the jury out to deliberate. A mere forty-five minutes later, jurors return with a unanimous decision of guilty for the murder and for using a deadly weapon.
But now someone notices that there are thirteen jurors in the jury box. The alternate juror, who had sat through the entire trial next to the other jurors, had been officially dismissed by the judge as the jurors filed out to deliberate. But the usual bailiff had called in sick, and the substitute bailiff was confused about whether the alternate juror was to remain in the jury room during deliberations or be excluded.
Because of the presence of the thirteenth juror, the judge feels compelled to invalidate the jury's decision.
Freed for Stabbing Murder Because of Clerical Error
In 1978 Henry Lee Thomas is living with Dorothy Terrell in Chicago.3 On the night of October 15, the couple gets into a fight about their relationship, after which Terrell goes to bed and falls asleep. Still angry, Thomas takes a knife from the kitchen and plunges the blade into Terrell's neck. She wakes up and gasps, “Why did you do this, I love you.”4 To silence her, Thomas punches her twice in the mouth and then stabs her multiple times in the chest. He then takes a pillow and holds it against Terrell's face, smothering her until she goes limp. For the next three days, Thomas keeps Terrell's body hidden in his apartment. He then wraps her nude body in a quilt, keeping the quilt in place with an electric cord, and hides the body hid in a nearby wooded area.
Terrell's body is discovered on October 21. Because Thomas was the last person seen with Terrell, he becomes a suspect and, after some investigation, is arrested and asked to take a polygraph test, which he fails. After being read his Miranda rights, Thomas confesses to the police. Based on the evidence, a jury convicts Thomas at trial of the murder of Terrell.
Thomas appeals the decision, and in 1984 the appellate court rules that Thomas must be given a new trial because certain incriminating testimony, as well as the polygraph results, should have been excluded from trial. Following its usual practice, the appellate court conveys its decision to the lower court through a letter, notifying the lower court that a retrial is required.
The clerk of the lower court receives the appellate court's letter on November 9, 1984, but fails to notify the lower court or the prosecutor of the reversal and the need for a retrial. The defense counsel knows of the reversal on appeal and watches the days pass, during which no new trial date is set, but the defense counsel never advises the court or the prosecutor of the clerk's error.
After 120 days pass, Thomas's lawyers argue that his right to a speedy trial has been violated and he must be freed without prosecution. Even though Thomas's lawyers, so concerned about a speedy trial, could have gotten one immediately if they'd asked, the judge nonetheless grants their motion, and Thomas walks free, despite his earlier conviction for murder. When he hears that his case is being dismissed, Thomas smiles and shakes his lawyers’ hands.5
In some cases, it is not an obscure technical rule that a court allows to pervert justice but rather outright trickery by a defendant or defense counsel, which the court goes along with, seeming to take a this-is-a-game view of the criminal justice system.
Defense Agrees to Delays, Then Seeks Dismissal for Lack of a Speedy Trial
In August 1992, Kevin Healy picks up a hitchhiker, Laura Sage, while driving through Cicero, Illinois.6 For forty dollars, Sage has sex with Healy. Three months later, Healy's wife goes to Minnesota for treatment at the Mayo Clinic, so Healy drives back to Cicero to visit Sage. At a hotel he again pays her for sex, and the arrangement continues throughout the following week. Sage uses the money to purchase various narcotics. At the end of the week, Healy invites Sage back to his house, where the two continue the cycle of sex and drugs.
However, the arrangement soon falls apart. Disputes arise about how much Sage is to be paid for having sex. The dispute comes to a head one day when Sage is riding in the back of Healy's van. He stops, gets in the back with her, kneels on top of her, grabs her shirt, and tells her to “get out of my truck…get out of my life.”7 When Sage sasses him, Healy beats her with a flashlight, strangles her with a plastic tie strap, and stabs her to death. He disposes of her body in the Chicago River. Police discover her corpse several days later.
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