Ebens gets out of his car, baseball bat in hand, and begins striking Chin repeatedly. Chin manages to stagger a few feet away before collapsing in the street. Ebens follows and stands over his victim. Chin looks at his friends, who are nearby, and utters his last words: “It isn't fair…. ”26 Ebens strikes Chin twice more, bashing in Chin's skull. Police arrive and stop the laid-off autoworker, but Chin is already brain-dead. The doctors officially declare him dead four days later at Henry Ford Hospital.
Ebens and Nitz are charged with second-degree murder. The duo is popular in the auto industry–centric Detroit, especially among those living in their Eastpointe neighborhood. After both men are released on bail, prosecutors offer them a plea bargain. If they plead to manslaughter, they may still serve fifteen years in prison but will sidestep the potential life imprisonment that second-degree murder will entail. Ebens and Nitz take the deal. Chin's mother, who fled Communist China to come to America, is never consulted.
At sentencing, a probation officer provides the judge with a presentencing report recommending a prison term at minimum. However, the judge ignores the officer's recommendation and sentences Ebens and Nitz to three years of probation. They are also ordered to pay a $3,000 fine and $780 in court fees. When asked about his verdict, the judge explains, “These weren't the kind of men you sent to jail…. You don't make the punishment fit the crime: you make the punishment fit the criminal.”27
Husband Who Drugged and Raped His Wife for Years Gets Home Detention as Judge Tells Wife She “Needs to Forgive”
In 2005 in Indianapolis, Indiana, David Wise begins to drug his wife, Mandy Boardman, either by slipping a substance into her drink before she goes to sleep or by placing pills directly in her mouth while she sleeps.28 Boardman later reports that there were times when she woke up feeling like “her body had been ‘messed with,’” but during this time she is unaware of the rapes.29
In 2008 she comes across videos on Wise's cell phone of him raping her while she is in a drug-induced state. She makes a copy of the videos to have tangible proof that Wise repeatedly sexually attacked her from 2005 to 2008. She files for divorce, but she does not immediately take the videos to the police because she does not want her children to suffer the humiliation of a public display of the videos or the shame of seeing their father in prison.
After the divorce, however, Wise harasses her. She reports the incident to the police. In 2009 Boardman becomes involved with another man and becomes engaged. Wise threatens to kill her new fiancé. Boardman files for a protective order against Wise and later shows the police the videos that she had found back in 2008. The police investigation lasts until 2014.
In April 2014 the fifty-two-year-old David Wise is formally charged with rape and criminal deviate conduct for repeatedly drugging and raping his wife. A jury finds him guilty of rape and five counts of criminal deviate conduct, each of which carries a term of between six and twenty years in prison. Prosecutors seek a forty-year prison sentence.
Judge Kurt Eisgruber, however, gives a suspended sentence with eight years of home detention. Wise will serve no prison time for his repeated rapes of his wife. The judge also tells Boardman that she “needs to forgive her attacker.”30
The sentence and the judge's advice to Boardman spark outrage within the victim, the prosecution, and the greater Indiana community. Boardman calls the sentence and the judge's comments “a punch to the gut.” She adds, “[Wise] will continue to harass me and cause me as much pain in my life as he can…. I don't feel like he deserves to sit at home and watch TV and eat ice cream…. He deserves to spend many years in prison.” Catherine O'Connor, the president of a support center for victims of domestic violence, says, “When these crimes don't appear to be taken seriously, then we'll be worried that victims will be worried to come forward to report these crimes.” A local law professor explains, “Many people don't even report sexual assaults and rape because they're afraid of stigma, because they're afraid of being locked into a legal proceeding with a person they're scared of. But if he's going to get sentenced to house arrest, basically, what's the incentive?”31 The editor of the Indianapolis Star writes that the sentence “is a slap in the face to all victims of sexual abuse.”32
Pardon decisions by presidents and governors can be a method to right legal wrongs, but they also can be a source of perceived failures of justice. Chief executives are sometimes seen as ignoring justice to obtain some political advantage or personal benefit.
Puerto Rican Terrorists Who Attacked the United States 120 Times Are Pardoned by the President before Election in Which Hispanic Voters Are Key
The Fuerzas Armadas de Liberación Nacional (FALN) is a Puerto Rican terrorist organization formed in the 1960s dedicated to bringing Communism to Puerto Rico, by force if necessary.33 The group's primary focus is on what they see as the foundations of capitalism in the United States. On January 24, 1975, a member of the FALN stuffs ten pounds of dynamite in a suitcase and places it in the entrance hallway of the historic Fraunces Tavern in New York City. A group of Wall Street bankers are dining on the second floor of the restaurant when the massive explosion rocks the building at 1:29 p.m.
When firefighters arrive on the scene, they describe it as “utter havoc,” with dismembered people and pools of blood covering the rubble on the ground.34 A FALN member calls the Associated Press and claims the explosion to be the work of the FALN. Harold Sherburne, Frank Connor, and Alejandro Berger are killed instantly; James Gezork lives until he reaches the hospital, but he cannot be saved. More than fifty other people are injured.
On August 3, 1977, another FALN member places a bomb in a building on Madison Avenue in New York City that explodes at 11:30 a.m. Another bomb placed in the Mobil Building on East Forty-Second Street explodes one hour later. Charles Steinberg is killed, and eight other people are injured. The FALN warns that its members have placed additional bombs in other buildings around the city, including the Empire State Building and the World Trade Center. Panic ensues, and nearly one hundred thousand workers are evacuated from buildings downtown. To increase the terror, FALN members call numerous bomb threats into police.35
In all, the organization is responsible for over 120 attacks across the United States between 1974 and 1983.36 The federal government eventually captures and convicts a number of FALN members, who receive prison terms ranging from 35 to 105 years.37
The FALN movement and prisoners have an appeal for some members of both the Puerto Rican and the greater Hispanic communities who would like Puerto Rico to be independent of the United States. While this group is a minority in Puerto Rico—in 1999 2.6 percent of the island's population voted to sever its association with the United States—the movement nonetheless resonates with some voters sympathetic to the poor in Puerto Rico.38
In 1999 Hillary Clinton is running for the US Senate for New York, and Vice President Al Gore is running for president to succeed Bill Clinton. Hispanic voters are seen as key in the New York race and also in the presidential race, in which Florida is thought to be a pivotal state. This turns out to be a bit of an understatement.
On August 11, 1999, President Clinton, stating that he feels that their continued incarceration will not serve any purpose,39 grants clemency to sixteen of the FALN members who were convicted in the earlier terrorist attacks.40 The pardoned members have been linked to more than one hundred bombings or attempted bombings since 1974 and have been convicted of offenses ranging from bomb making to conspiracy to armed robbery to firearms violations.41
Clinton's actions are met with criticism by many groups, including the US Attorney's Office, the FBI, the Federal Bureau of Prisons, and the former victims of FALN terrorism.42 Joe Connor, the son of one of the victims who died in a FALN attack, says, “[My dad] didn't have any qualms with the Puerto Rican people as such. He was just a working guy. He was eating lunch with friends and his life was valued less than that of the election campaign of the president's wife and Al Gore. It's disgusting.”43
Sometimes it is not the poor exercise of discretion by decision makers or misguided judicial procedures that produce perceived failures of justice. Some formal liability doctrines, many of them judicially created, offer guilty offenders a complete defense against criminal liability, no matter how serious the offense or how blameworthy the offender. That is, the legal “defense” often applies no matter how clear the offender's guilt nor how serious the crime.
The judicial interpretation of the Constitution's Double Jeopardy Clause, part of the Fifth Amendment, is sometimes seen as stretching that defense far beyond what fairness or other societal interests can justify.
Prior Acquittal Obtained by Perjury Bars Torture-Murder-Rape Caught on Film
It is 1988 in Louisville, Kentucky. Brenda Schaefer has become afraid of Melvin Ignatow, whom she has been dating but with whom she would like to break up.44 Ignatow is unhappy about her desire to break up and arranges a final meeting with Schaefer. He also arranges with a former girlfriend, Mary Ann Shore, to help him with what he plans to do to Schaefer at this final meeting.
Fig. 4.3. Melvin Ignatow with Brenda Schaefer, 1988. (Courtesy of the family of Brenda Schaefer)
Ignatow complains to Shore that Schaefer is a “frigid” personality. He wants Shore to help him with a “sex-therapy” session, which he wants to hold at Shore's house.45 Ignatow also asks Shore to help him dig a hole in her backyard that is big enough for a person. When Shore resists, Ignatow assures her that he just wants to scare Schaefer. The pair test Shore's house to gauge whether screams can be heard outside. In preparation for the meeting, Ignatow brings to Shore's house a wooden paddle, a camera, film, plastic garbage bags, a vibrator, lubricating jelly, tape, a pair of gloves, rope, and a bottle of chloroform.
Ignatow, using a ruse, gets Schaefer to Shore's home. Ignatow sits Schaefer down on the couch and explains his sex therapy idea. Schaefer attempts to leave, but Ignatow forces her back down on the couch. Ignatow tells her that “she [needs] to have this because she [is] just very cold-natured, and he needs that sex.”46 Ignatow has written a checklist of all his planned steps on a yellow piece of paper. Over several hours he tortures the young woman. Schaefer cries during the assault and begins screaming when Ignatow beats her with a wooden paddle. Ignatow pours chloroform onto a handkerchief and covers Schaefer's mouth and nose until she appears to be dead. Uncertain whether she is dead, Ignatow ties a rope tightly around her neck and chokes her. Ignatow folds Schaefer's body into a fetal position and secures it tightly with ropes. With Shore's assistance, he wraps Schaefer in garbage bags and buries her in the backyard.
Joyce, Schaefer's coworker, eventually provides investigators with some key information. She knows a hairstylist who has cut Ignatow's hair. The stylist says she knows a woman named Mary Ann Shore who has confided in her about Ignatow's controlling nature and her inability to get over her relationship with him. Robert Spoelker, who pays Shore to babysit his children, tells authorities that Shore had taken September 24 off from work. A background check reveals that Shore has five outstanding arrest warrants for bad checks.
Shore is questioned by the police and takes a polygraph test, which she fails. When Officer Jim Wesley confronts her with her test results, she becomes agitated and refuses to say more. Wesley allows her to leave and arranges for an officer to follow her. That night, the officer watches Shore and Ignatow as they walk in the rain. The officer notifies Wesley, and an unmarked police car pulls up next to the couple and asks them to come to the station. At the station, Wesley grills Shore, demanding to know the full story, but Shore refuses to say what she knows. Wesley senses that Shore wants to say something, so he pulls out all the stops, threatening her with prosecution for the bad checks. She still refuses to talk, and at 12:45 a.m. on February 14, 1989, Shore is fingerprinted and put in jail for the outstanding bad-check warrants. She is released on bail.
Some months later, Shore is called to testify before a federal grand jury. US Attorney Scott Cox asks Shore how many times she had seen Schaefer before her disappearance. Shore replies each time that she had seen Schaefer only once. When Cox later asks what Schaefer looked like the time Shore saw her, she responds, “You mean the last time?”47 When Cox points out the discrepancy in Shore's statements, Shore turns pale and leaves the jury room. On January 9, 1990, Shore confesses to the FBI and the police that she was present when Ignatow killed Schaefer at Shore's house. Leading the police into the woods behind the house, Shore shows them the area where the body is buried. In return for her cooperation, the authorities agree to limit her charges to tampering with physical evidence.
The following day, the police bring a cadaver dog, and within fifteen minutes the dog picks up a scent. Digging where the dog indicates, the police find a large bag that stores four overlapping plastic bags containing Schaefer's body. A second smaller bag is also unearthed that contains Schaefer's clothing. Decay has erased the facial features, but a forensic odontologist identifies the body of Brenda Schaefer through her dental records.
While police are digging up the body, Shore, wearing a concealed microphone provided by the police, meets with Ignatow and talks of her fears of being found out. Ignatow orders her to resist investigators’ requests for a lie detector test and explains how unlikely it is that the body can be found. Ignatow is then arrested and charged with murder, kidnapping, sodomy, sexual abuse, robbery, and tampering with evidence.
On December 3, 1991, Ignatow's jury trial begins. Mary Ann Shore, who the day before pleaded guilty to tampering with physical evidence, testifies as to what happened on that night. Ignatow also testifies, giving a very different story. At the conclusion of Ignatow's trial, on December 21, the jurors begin deliberating. Most believe that Ignatow is involved, but they see Shore as a less believable witness, primarily because Ignatow's attorney portrays her as a vindictive ex-girlfriend. Jurors consider the recorded conversation between Shore and Ignatow to be ambiguous, and Ignatow's testimony has offered innocent explanations for much of the evidence.
Ignatow is acquitted. Walking from the courtroom as a free man, he tells the media, “This is the best Christmas present I ever had.”48 On February 3, 1992, Mary Ann Shore is sentenced to the maximum allowable sentence of five years in prison for tampering with physical evidence.
On October 1, 1992, Ronald and Judith Watkins, who have moved into Ignatow's old house, are having new carpet installed. As part of that process, they remove the vent cover on the heating duct. Behind it, they discover film and jewelry, which they turn over to the FBI. The film includes one hundred photographs of “sexual acts, sadomasochistic bondage, disrobing, and torture of Brenda Sue Schaefer,” providing conclusive physical proof of the horrendous things Melvin Ignatow did to Schaefer.49
However, even though Ignatow has gained his acquittal by committing perjury in court, the court rules that the double jeopardy bar prevents prosecutors from retrying Ignatow. Ignatow's horrendous murder-rape-torture of Brenda Sue Schaefer is punishment-free.
Another defense that is seen as letting blameworthy offenders go free is diplomatic immunity. No matter the seriousness of the offense, the number of offenses, or the clarity of the offender's blameworthiness, diplomatic immunity can protect an offender even from arrest.
Serial Rapist Finally Caught Walks Free with a Smile Because of Diplomatic Immunity
On January 8, 1981, “Jane” (not her real name) heads home after grocery shopping. Grocery bag in hand, she walks across the street to her apartment building. She stops in the entryway of her building, as always, to check her mailbox before unlocking the inside door. Before the door locks behind her, a young man, who will be identified later as Manuel Ayree, catches it and enters the building. Short but powerfully built, he is dressed nicely in a tie and well-pressed slacks and is carrying keys in his hand. Jane assumes he lives in the building. He leisurely climbs the stairs behind her, lighting a cigarette on his way up. He follows her up to her apartment and approac
hes the door across the hallway from hers.50
As soon as she unlocks her door, Jane feels him press against her back. In a thick accent he says, “Do everything I say or I'll kill you. I have a gun.”51 Jane tells him that she will do anything he wants and pleads with him not to kill her. Although her heart is pounding and her mind is racing, she manages to appear calm so as not to agitate the man. As they enter the kitchen, he grabs a steak knife. Once again, he threatens her, prodding her stomach with it. She offers him money to leave her alone. He ignores the offer and asks if she lives alone. She lies and says that she does not. “If you don't tell me the truth, I am going to kill you. Do you live alone?”52 he demands. She admits to living alone as she hands him the few dollars she has in her wallet. She hopes that he will leave now. She thinks about telling him that she has a venereal disease to deter any sexual assault, but the words do not surface. He orders her into the studio. The convertible sofa is still open from the previous night. He tells her to take off her pants and lie facedown on the mattress. He pulls down his own pants and enters her anus. She screams from the pain and starts crying. When he withdraws, he wipes himself with her blanket.
Ayree orders Jane to get under her bed and tells her to go to sleep and never wake up. At this point, she is sure that he means to kill her, but then she hears him walk out the door and down the stairs. She picks herself up and eventually telephones the police. She is taken to the emergency rape unit, where she is questioned by police and examined by nurses. After a sleepless night at her friend's apartment, she receives a telephone call from Detective Pete Christiansen asking her to meet him at her apartment. There, she recounts the horrors of the previous night.
Later that winter, Ayree victimizes Carol Holmes, a freelance proofreader in New York, using a similar modus operandi. He enters her building with her before the outside door closes behind her, then approaches her and presses something against her back, warning her that he has a gun and forcing her up the stairs to her apartment. There he grabs a knife off the table and places it under her chin, threatening to kill her if she disobeys. He orders her to take off her clothes and lie down on the mattress in her living room, where he has forcible anal and vaginal sex with her. He then pulls up his pants and heads for the bathroom. She follows him, completely naked, hoping to make him feel uncomfortable enough to leave. He lights a cigarette and burns her with it. Suddenly, they hear a door slam and loud footsteps. Carol recognizes the sounds as a neighbor descending the stairs. Ayree panics and flees. Still naked, Carol runs after him, screaming, “Stop him, stop him; he raped me.”53 There is no response as Ayree escapes. An ambulance takes her to the rape unit of Lenox Hill Hospital, where she is questioned, examined, and given medication. At the police station, she is questioned by Detective Christiansen.
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