Shadow Vigilantes

by Paul H. Robinson

  Detectives question Healy, since he had been seen with her during the past week. After an interview at police headquarters, Healy fails a polygraph test and eventually makes a statement, incriminating himself in Sage's murder. He is arrested and, on December 29, 1992, indicted for first-degree murder.

  At Healy's arraignment, he requests a bail hearing, which is set for January 20, 1993. Healy's attorney files a discovery motion (a demand to obtain records and information from the other side), and the court gives the state forty-five days to complete discovery. Healy's attorney requests a return to court on March 16 after discovery is complete. The state requests blood, saliva, and hair samples from Healy, and the judge allows six weeks to complete the analysis. The judge asks Healy's attorney if a May 6 court date is acceptable. Counsel responds, “I have no problem with any date in May, Judge.”8

  Because the Speedy Trial Act sets limits on how long a trial can be delayed without the defendant's agreement, the judge in this case wants to make sure he understands what the defense counsel is saying. He specifically asks whether the date is “a by-agreement date or are you saying you want time to file your motions, too?” The defense counsel responds again, “Any date in May, we will be here.”9

  On May 6 the state requests additional time because the state forensic lab has not yet finished analyzing Healy's samples. Due to scheduling conflicts between the two attorneys and the judge, the court eventually proposes the date of August 26. The judge asks the defense counsel if this date will work for him. Counsel answers, “Whatever date is convenient for you.”10 On August 26 an additional extension for analysis is similarly requested and granted. Healy's attorney suggests the date of September 17. At no point in the process does Healy or his counsel object to any of the delays in the trial.

  By September 17, 185 days have passed since the initial hearing. The prosecution has finally obtained its forensics report, but the court decides to give the defense time to file pretrial motions and sets October 14 as the date by which all motions must be filed. Healy files the motions by the October date; among them is one for permanent dismissal because delays have violated the Speedy Trial Act of Illinois. Under the act, Healy is entitled to have a trial within 120 days from when he is taken into custody, unless he agrees to a delay. The trial judge strongly feels that there has never been any indication that the extensions occurred without agreement. Indeed, his court reporter's documents, which were available to the defense counsel, contain explicit annotations that show the defense's agreement to all extensions. The judge denies the motion. At trial, Healy is convicted of first-degree murder and sentenced to thirty years in prison for the brutal murder of Laura Sage.

  On appeal, however, the appellate court judge accepts Healy's argument that his speedy trial rights have been violated and unconditionally dismisses his conviction. This judge honors the tricky deceptions of the defense counsel, as if the criminal justice process is a game to be won by the cleverest players. Sage's brutal murderer is free. Healy is released back into society a free man.

  No doubt each of these judges would have a reasoned explanation in support of the decision he or she made, as would the appellate judges who constructed the rules being applied here.11 That is, there is no reason to think that these judgments are being made in bad faith. The explanation for the decisions that the ordinary citizen is likely to come to is more basic and more frightening: too many judges have lost an understanding of the criminal justice system as being in the business of doing justice. Actual fairness is seen as being replaced in the judges’ minds by a mess of technical rules. And justice has dropped out of the equation as being of little importance.

  SUPPRESSING RELIABLE EVIDENCE

  A common practice that is seen by ordinary citizens as regularly perverting justice is the suppression of evidence even if it is highly reliable. Every time this occurs, the criminal justice system is seen as announcing to the community that it values other things as more important than doing justice. The system announces that it is prepared to distort the “truth” presented at trial in order to promote some other interest. And these distortions are perceived as being preferred no matter how serious the offense, no matter how trivial the violation, and no matter that the competing interest, such as controlling police and prosecutors, could be promoted as effectively or even more effectively in a less justice-frustrating way.

  The Fifth Amendment of the Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.” From this broad language, the courts have created a specific, demanding rule that may exclude from use at trial even highly probative and reliable incriminating statements if they were made during interrogation while a defendant was in police custody.12 The concern is that suspects in custody can be coerced into incriminating themselves. Thus, before suspects in custody can be questioned, they must be “Mirandized”: they are told that they have no obligation to talk to police; that if they say anything, it can be used against them in court; that they have the right to have counsel present; and that one will be provided if the suspect does not have one. To help enforce this rule, courts will exclude statements made to police who have not given a suspect a Miranda warning. No Miranda warning is required and no exclusion of incriminating statements occurs if the defendant is not in custody at the time or if the statements are made spontaneously rather than in response to police questioning. These are the court-constructed rules offered to operationalize the constitutional admonition that a person not be compelled to incriminate himself.

  But just as the courts made up the original rule, they have also created the definition of what counts as being in custody or what counts as being a response to an interrogation. The suppression of reliable evidence commonly can occur if any of the countless technical niceties of Miranda rules have not been satisfied, no matter how trivial the violation and no matter the absence of any actual unfairness to the defendant.

  Murder Confession Suppressed Because an Officer Did Not Regive the Miranda Warning after Placing Incriminating Evidence in Front of the Defendant

  On December 5, 1975, in Queens, New York, eighty-four-year-old Lillian Sher is sitting in her home when Alfio Ferro and Thomas Lewis break in.13 They subdue Sher, tightly bind her hands and feet, and stuff a piece of cloth into her mouth to prevent her from crying for help. Ferro and Lewis then loot the residence of valuables, including some furs. When they flee, they leave Sher bound. With the cloth firmly lodged in her throat, Sher dies of asphyxiation. Authorities find her body six days later.

  The investigation puts Ferro and Lewis on the list of possible suspects, and police bring the pair to the station for questioning in connection with Sher's murder. They are questioned separately, and each man is read his Miranda rights. Ferro refuses to answer any questions. Lewis confesses. An officer drives to Lewis's house and retrieves the stolen furs that Lewis has told them about. Without saying anything, the officer places the furs in front of Ferro's cell, “a foot away from him. With nothing else said, Ferro immediately asks to speak with an Italian detective.”14 He tells the detective that Sher's neighbor approached him and told him that she wanted to have Sher robbed as a matter of revenge. She asked if he or anyone he knew would be interested in doing the job, to which Ferro responded he did. After confessing, Ferro pleads to the detective, “I just can't do a lot of time.”15 The officers then book Ferro for homicide and robbery.

  At trial, Ferro's confession to the police is a key piece of evidence. The jury finds him guilty of robbery and second-degree murder.

  On appeal, Ferro challenges the admissibility of his confession. He claims that it should be suppressed because the police should have read him his Miranda warning a second time when they placed the stolen furs in front of him. The Court of Appeals of the State of New York agrees to his claim and overturns his conviction. The court also rules that if Ferro is tried again, his confession must be hidde
n from the jury. Knowing this would make a successful retrial unlikely, prosecutors are compelled to let the murderer plead guilty only to robbery. His time served while awaiting trial is his only punishment. As the trial ends, Ferro immediately walks free with no punishment for his murder of Lillian Sher.16

  A similar justice-frustrating distortion of the truth is seen to occur when important incriminating physical evidence is suppressed at trial because of some technical violation of the intricate search and seizure rules. Like the Fifth Amendment, discussed above, the Fourth Amendment's broad language—“the right of the people…against unreasonable searches and seizures, shall not be violated”—has been translated by the courts into a complex set of rules governing when police may search or arrest a suspect. More importantly, the courts have added their own rule that a police violation of these intricate rules will result in excluding from trial the evidence seized—the so-called exclusionary rule—no matter how serious the offense, no matter how trivial the violation, and no matter that the violation causes no actual unfairness to the defendant.

  Multiple Murderer-Torturer Released to Kill Again because He Was Held Too Long for Questioning about His Suspicious Behavior

  In 1982 and 1983 thirty-year-old Larry Eyler has picked up and then tortured, mutilated, and murdered eighteen young men.17 Police have come to suspect Eyler in the killings and have begun trying to follow him during his nighttime drives, but they have insufficient proof on which they can arrest him for the murders. Early one morning, a state highway trooper, who is unaware of the investigation, happens upon Eyler parked on the side of the highway. The trooper makes a U-turn and intercepts Eyler as he and his passenger, now back in Eyler's pickup, are attempting to leave. Unknown to the trooper, Eyler is in the process of coaxing an intended victim, Daryl Haywood, into the woods with a promise of money for sex. Eyler has brought along his usual torture kit of rope and tape. The trooper becomes suspicious when Eyler seems evasive in his answers to questions and seems to try to hide the kit he is carrying when the trooper first sees him.

  The trooper radios his headquarters to ask about Eyler, and his call is overheard by the investigators who had been following Eyler earlier that night but lost him. They rush to the scene and bring Eyler and his truck back to the station for further investigation. Haywood confesses that they were about to have sex for pay. Eyler gives the police permission to take his boots, which the investigators have noticed matched the imprints left at the previous murder scene. He also gives permission for them to search his truck, in which they find clothesline and surgical tape like those used in previous murders, as well as a bloody knife.

  Police do not arrest Eyler but instead release him and his truck later that day. However, they do obtain a warrant to search his apartment, where they find handcuffs, credit card receipts, and phone records that tie him directly to previous murders, as does subsequent laboratory analyses of the seized evidence. Police then arrest Eyler for the murders.

  However, the court orders his release and orders that all evidence be suppressed. According to the judge, the officers had the right to stop Eyler but did not have sufficient probable cause to take him into custody. In the view of the judge, Eyler had effectively been arrested the moment they took him into custody and the evidence at hand did not justify the quasi-arrest for murder. The judge suppresses not only the evidence that had been taken with his permission but also the evidence obtained in a search of his apartment under warrant because the warrant was based upon the earlier evidence. Thus, all of the incriminating evidence from Eyler's house must be excluded under the doctrine of the “fruit of the poisonous tree.” Although the evidence of multiple murder-tortures is overwhelming, Eyler is allowed to walk free.

  Fig. 4.1. Larry Eyler was captured and then released from police custody, 1984. (Courtesy of Illinois police)

  As he watches Eyler get into a car and drive off, an outraged Lake County sheriff, Robert Babcox, complains, “He's freed to kill. Hell, it's only a matter of time.”18 Sheriff Babcox is right. Several months after his release, Eyler returns to his killing habits, murdering several more people, including a brutal attack on a fifteen-year-old male prostitute, Danny Bridges. Once he is in Eyler's control, Bridges is tortured. Death comes when Eyler, using a butcher knife, cuts into Bridges's abdomen and back, until he perforates Bridges's heart and left lung. Eyler uses a hacksaw to cut the boy up into eight separate pieces, which he drops into a Dumpster.19

  DECISION MAKERS BLIND TO JUSTICE

  The criminal justice system vests enormous discretion in decision makers—sentencing judges, members of parole commissions, and governors (exercising their pardon power)—to determine the punishment that is just and appropriate for an offender. Yet, in practice, many of these decision makers are seen as apparently indifferent to the importance of doing justice, and some of them exercise their punishment discretion in ways that the ordinary citizen would find to be an appalling failure of justice.

  Parole boards have the power to release prisoners early but do not always exercise this power in a way that ensures that justice is done and the community protected.

  Previously Paroled Twice, Once for Homicide, Kills Yet Another During a Drug Deal

  At age seventeen, Cornelius Ferguson shoots and kills a man in a Chester, Pennsylvania, bar.20 Convicted of third-degree murder, Ferguson serves a stint in prison, where he is known for being extremely hostile toward prison guards, including threatening to kill and seriously injure them. After five years, he is paroled.

  Within a year of his release, he shoots and wounds another man. He is again arrested and found guilty of aggravated assault and the criminal attempt to commit murder. Although the criminal attempt charge is eventually vacated, Ferguson is sent back to prison for the assault.

  In 1991 Ferguson is again released early on parole, even though he has already shot two people, killing one of them and violating his parole by shooting another.

  Just as after his first release, Ferguson immediately obtains a firearm and within a year is involved in another shooting. In June 1991 he shoots and wounds another Chester resident. Police charge him with the assault, but, inexplicably, he is allowed to keep the gun.

  Two months later, Ferguson and another man, Tyrone Hyland, go to the Tri-State Mall in Claymont, Delaware, to meet Troy Hodges, a twenty-two-year-old college student. Hodges is accompanied by a seventeen-year-old friend. The meeting is to consummate an illegal drug transaction, in which Hodges will pay Ferguson and Hyland $10,000 for a half kilogram of cocaine. However, Ferguson and Hyland plan to simply rob Hodges rather than deliver the narcotics.

  Hodges leaves his friend in his car and takes two plastic bags filled with $5,000 each to Hyland's car. Hodges gets into the front passenger seat beside Hyland. Ferguson is in the back. The three begin discussing the cocaine deal, but the discussion quickly turns into a heated argument. Ferguson points a cocked gun at Hodges's head. As the car drives slowly in the vicinity of the mall and the argument continues, Hodges attempts to exit the car, but Ferguson shoots Hodges point-blank in the back of the head. He then pushes Hodges out of the moving car and onto the pavement. Stumbling, Hodges makes it a few feet before he collapses and dies from a massive hemorrhage.21

  Many judges also are seen as exercising poor judgment, often biased by personal or local prejudices, sometimes blaming the victim, and at other times showing sympathy for offenders far beyond what the facts of the case can justify.

  Two Racists Who Hunt Down an Asian Man and Kill Him with a Baseball Bat Get Probation

  A week before his wedding, Vincent Chin, a young Chinese American, is enjoying his bachelor party with friends at the Fancy Pants Lounge, a suburban Detroit club, on a summer evening in 1982. As the party goes on around the elevated dance floor, where club dancers strip to hard rock music, Chin encounters two recently laid-off autoworkers, Ronald Ebens and his stepson Michael Nitz. Ebens, a seventeen-year veteran supervisor at the local Chrysler plant, erroneously assumes Chin
is of Japanese descent. Upset about losing his job and blaming the auto industry's decline on the Japanese, Ebens, followed by his stepson, approaches Chin.22

  “It's because of you little motherfuckers that we're out of work,” Ebens yells at Chin, referring to the growing success of Japanese imports in America.23 Anti-Japanese sentiment, especially among autoworkers, is rampant in the Detroit area. The local United Automobile Workers (UAW) Union headquarters has a large billboard outside its offices that reads, “300,000 laid off UAW members don't like your import. Please park it in Tokyo.”24 These are the sentiments that fuel Ebens as he continues to berate Chin with racially charged epithets, including “jap,” “chink,” and others. Ebens's verbal attacks escalate into a brawl, in which Nitz joins his stepfather. Ebens picks up a chair and swings it at Chin, who successfully deflects it into Nitz.

  Fig. 4.2. Vincent Chin in his early twenties. (Courtesy of Helen Zia/Estates of Vincent and Lily Chin)

  The Fancy Pants Lounge bouncer stops the hostilities long enough to eject the trio from the club, but the confrontation continues in the parking lot. As Nitz stands bleeding, Ebens runs to his car to retrieve his baseball bat. He returns and moves forward to strike at Chin and his friends, who flee.

  The father and stepson get into Ebens's car and begin cruising the neighborhood, searching for Chin. They pick up an unemployed man on the street and give him twenty dollars to help find those “Chinese guys.”25 Twenty minutes later, Ebens, Nitz, and their newly hired man spot Chin and his friends two blocks away outside a McDonald's.