Worried, the NYPD turns its full attention to investigating the subway killings. When Bosket sees a front-page newspaper article about the killings, he proudly shows it to his sister. The police eventually pick up Bosket and his cousin for questioning. They get the cousin to turn on Bosket in return for lenient treatment and charge Bosket with two counts of murder and one count of attempted murder.
Bosket, who is still not old enough to drive a car, has been in and out of the New York juvenile courts his entire life and knows that as a juvenile he is mostly protected from punishment. While being detained awaiting the hearing, he stabs another boy with a fork, hits a counselor in the face, and chokes a psychiatrist. The judge is shocked by his belligerent behavior. Despite all this, when Bosket pleads guilty to the two counts of murder and one count of attempted murder, he receives a sentence of five years’ placement in the Division for Youth, the maximum allowed under current law for a juvenile. The focus for juvenile offenders is rehabilitation. Facing similar charges, an adult could have been sentenced to fifteen years to life.
Politicians are outraged. Reports of the subway killer's violent escapades throughout the media have scared people, and many are shocked to see the perpetrator receive so light a sentence, especially since rehabilitation does not seem to work for this repeat offender. Mayor Ed Koch calls Bosket a “mad-dog” murderer and complains that “it's an outrage that in this town you can kill, you can murder and you can do it a second time and not get the death penalty.”55 New York governor Hugh Carey tells reporters, “There was a breakdown of the system, and it is really on the doorstep of the Division for Youth. The blame is squarely on the shoulders of the department.”56 After stating that “this type of offender should never be allowed back on the streets,” he calls legislators to Albany for a special session, during which they will radically revise the juvenile justice system.57
The Juvenile Offender Act of 1978 is passed just a month after Willie Bosket receives his five-year placement.58 The act changes the New York criminal justice system's treatment of juveniles; it becomes the harshest in the country and shifts the principle of punishment away from rehabilitation to a focus strictly on protecting society. The new laws make fourteen- and fifteen-year-olds equally criminally responsible as adults for fourteen listed crimes and makes even thirteen-year-olds criminally responsible for murder.59
The defense of immaturity is no longer available for these crimes (which include kidnapping, manslaughter, arson, and burglary); a juvenile will face the same punishment as an adult in the same situation.60 The act, known as the Willie Bosket Law, becomes a benchmark for other states in dealing with young offenders.
From the mid-1980s to the mid-1990s the number of homicides committed by juveniles has climbed steadily all over the country. By the late 1990s it has stopped increasing but still remains a major issue, especially in cities.61 During that time, many other states follow New York in lowering the age at which children can be tried as adults in criminal court.62 Most states allow prosecution in adult court of juveniles who are sixteen years old or younger for some offense.63
While one can easily understand the frustration over the criminal justice system's failures in cases like that of Willie Bosket, the reaction again is to support legislation that goes too far and that now guarantees a regular stream of injustices, as the system is now required to ignore the immaturity of many offenders who deserve mitigation or excuse. To illustrate the point, consider the case of Shimeek Gridine.
Seventy-Year Sentence for a Fourteen-Year-Old's First Offense
Shimeek Gridine, growing up in northern Florida, plays Pop Warner football and dreams of being a merchant seaman when he grows up, excited by the stories he heard of his grandfather who had chosen that career path.64 Gridine works hard in school and achieves good grades. At age thirteen, his mother loses her job. Because money is tight they move to Jacksonville to live with his grandparents.
After school on April 21, 2009, Gridine, now fourteen, and his younger friend, twelve, go to the local barbershop to hang out. Gridine is going through an emotionally hard time, since two family members died in the previous weeks.
As they leave the barbershop, they notice a strange-shaped item lying under a parked car. They crouch down to investigate and realize it is a small shotgun. They pull it out, both thrilled and scared at their new discovery. Just then they see a man across the alley taking the trash out of a restaurant. Thinking he is the owner, these two boys approach him with the gun and demand that he give them all the money he has.
Unamused and seemingly unafraid of the young boys, the man refuses their demands and turns to walk back into the restaurant. As he does this Gridine fires the gun, pelting the man's back, shoulder, and neck with tiny pellets. The two boys quickly run away, scared. The man is taken to the hospital and released that same day.
Gridine and his friend return to their homes and try to act as if nothing had happened. The police investigate, and the boys become nervous and agitated. Gridine tells his grandfather what he has done. Feeling very bad about it, Gridine goes to the Jacksonville Sherriff's Office with his grandfather and turns himself in.
Because he is only fourteen and has no history of violence, Gridine is hopeful that the judge will be lenient. He is charged with first-degree attempted murder, attempted armed robbery, and aggravated battery. Gridine is charged as an adult even though he is only fourteen. He pleads guilty to armed robbery on the advice of his lawyer, who is confident that he will get a much lesser sentence by doing so. Gridine elects to be tried before the judge rather than with a jury on the other charges.
Family members from as far away as New York come down to Florida for the trial to speak on behalf of the boy and to show their support. However, all of this support seems to have a negative effect on the judge, as he declares, “Because you were known to be a good kid, because you have good grades and a good family that loves you, you knew better. Therefore, for the first charge of Premeditated Attempted Murder, I sentence you to 70 years in prison. On the second charge of Armed Robbery, I sentence you to 25 years. You will serve the sentences together.”65 The sentence is thirty years longer than the sentence the prosecution had asked for.
The seventy-year sentence is essentially a life sentence. As Gridine's public defender points out, it extends beyond the life expectancy for an American male. A life sentence for a fourteen-year-old seems to take away the possibility for the youth to “demonstrate growth and maturity” and instead is a decision to simply let him rot in adult prison.66
Unfortunately, Gridine's situation is not unique. Since the wave of harsher penalties against juveniles swept the nation, hundreds of children have found themselves tried in adult court and sentenced to long prison terms. These are not all hardened repeat offenders like Willie Bosket. For many, it was their first offense and an act of impulsiveness. In one case, a thirteen-year-old boy who was raised by an alcoholic and cocaine-addicted father who frequently watched pornography in the home went to his neighbor's house and raped the twenty-three-year-old mother. A psychologist found that the youth had “underlying neurological problems that made him more impulsive than other juveniles his age.”67 He was given a sentence of life plus twenty years.68 In Nevada another thirteen-year-old was sentenced to life without parole after pleading guilty to killing the man who had been sexually molesting him.69 A twelve-year-old boy in South Carolina was sentenced to sixty years in prison for killing his grandparents after they beat him and locked him in his room.70
Outrage over the system's failure to restrain vicious sixteen-year-old repeat offender Willie Bosket led to distorting the criminal justice system so that it now gives essentially life imprisonment to immature first offenders like fourteen-year-old Shimeek Gridine. Young offenders and the public would have been better off if the system had initially taken more seriously its obligation to punish and to protect so that a Willie Bosket case would never have happened.
The best way to avoid the destructive effects
of shadow vigilantism is for the criminal justice system to publicly commit itself to the importance of doing justice—giving offenders the punishment they deserve, no more and no less. With that, the system can earn back its moral credibility with the community and can avoid the downward spiral of shadow vigilantism and its distorting effects.
Chapter 3 discussed the practice of “testilying” in which police officers feel morally justified in lying in court about the circumstances of a search or seizure because they see the exclusionary rule (which disallows use of even the most reliable evidence if a court determines that the search rules are violated) as an immoral undermining of society's obligation to fight crime and do justice. Also discussed there was the case of sexual psychopath Bill Bradford during which police played fast and loose with the court's warrant rules because they saw no other way of effectively stopping this multiple murderer.
These two examples are symptomatic of the larger problem: officials in many if not most parts of the criminal justice system see the system's apparent indifference to failures of justice as a moral justification for manipulating or perverting the system as needed to catch offenders and have them receive the punishment they deserve. Below is another example of subverting the search and seizure rules, followed by examples of other kinds of shadow vigilante subversions in other parts of the system.
EXCEEDING SEARCH AND SEIZURE RULES AND TESTILYING ABOUT IT TO SUBVERT THE EXCLUSIONARY RULE
In the Columbia Heights section of Washington, DC, on the evening of November 1, 1969, five-year-old Penny Sellers and her older sister Denise visit the apartment of their grandfather Robert Dennis. Also present there is a neighbor, William Sheard, who gives the girls candy and lets them play with his puppy, as he has done in the past. Around 9:30 p.m. the girls have moved on to watch television in the basement apartment of a friend. Penny leaves to go back to Sheard's apartment to play with his puppy again. It is the last time her family ever sees her.
After about an hour, Penny's grandfather asks Sheard if he knows where Penny is and is told that she “had gone up the street with a man.” At the grandfather's request, Sheard calls the police. The police arrive at about 11:00 p.m., having been advised to contact “a Sheard.”1 Upon meeting Sheard, officers are informed by him that a child is missing, that he has telephoned the police, and that he had been the last person to see the child. One hour later, police find Penny's body amid debris on the floor of a garage near the apartment building. Penny's genital area is exposed and bloody. A later autopsy reveals that she has been raped, and died due to asphyxiation from suffocation. Police also find her underpants in the alley near the garage and one of her shoes on the back porch of the house next door.
The police chief orders a lockdown of the apartment complex and for all male residents to be questioned. During the questioning, officers are to also make a visual search for blood in the open living areas of the men's apartments. Officers Shuler and Jones are assigned to question Sheard in his apartment, since he is apparently the last person to see Penny alive.
Officer Shuler knocks on the door and identifies himself as a police officer. When Sheard answers the door, the officers immediately become suspicious because Sheard has fresh scratches on his face, looks as though he has just taken a bath, is wearing fresh but heavily wrinkled clothing, and his overall behavior is odd. Believing that Sheard might hide or destroy vital evidence if they wait to get a warrant, the officers are anxious to enter and examine his apartment.
Officer Shuler advises Sheard that a small child has been killed and that Shuler and his partner, Officer Jones, would like to come inside to talk with him. Sheard later testifies that he did not authorize the officers to come into his apartment but that they simply barged in without permission. Officer Shuler testifies that Sheard was “friendly” and said, “Come in, come in, I'd like to do all I can to find out.” Later, however, Officer Shuler testifies during a motion to suppress evidence that he does not remember exactly what Sheard had said. Officer Jones testifies, “Well, he just stepped back. And I don't remember if he said, come in, but I was under the impression that we were to enter the room by his attitude.”2
After the officers enter the apartment, they observe that the room is in a state of disarray: candy is strewn about on the floor, and a large, damp, burned area is evident on the mattress of a bed. One of the officers leaves to summon their superiors, and the other conducts a plain-view search of the area—evidence that is already exposed to view is considered in “plain view” and does not require a warrant to seize it. The officer supposedly finds in plain view a pair of dark-green pants, with bloodstains, sitting on top of a hamper.
Authorities seize the pants and other evidence and take Sheard to the nearby precinct. A benzidine test reacts positively to the stain on the pants indicating that it is human blood. Additional tests of Sheard's right hand and his penis also show positive for blood. Chemical analysis reveals that the blood on Sheard's jacket, the dark-green slacks, the blanket and bedspread, and Penny's dress and slip is type O blood (Sheard's blood is type A; Penny's was type O). Fibers from the bedspread and blanket are discovered on Penny's dress and slip, on all of Sheard's seized clothing, and in scrapings from the heads of both Sheard and Penny.
With the staggering amount of evidence against Sheard, a grand jury indicts him on February 2, 1970, for the rape-murder of Penny. The indictment includes four counts: felony murder, first-degree murder, rape, and taking indecent liberties with a minor. Sheard is found guilty and sentenced to concurrent terms of twenty years to life on the felony murder count and of ten to thirty years on the rape count.
The truth is that the two officers did not in fact find the critical evidence, the bloodstained pants, just sitting out in plain view. Rather, they—and perhaps even their superiors—probably made a conscious choice to exceed the search and seizure rules and to hide their violation because they believed it was necessary to find the rapist-murderer of a five-year-old girl and because the evidence of the crime would otherwise have been quickly destroyed by the perpetrator.
Police officers morally justify their lying in court to compensate for what they see as improper rules that regularly lead to failures of justice—complex rules that have “metastasized into a dizzying array of formalistic doctrines and sub-doctrines.”3 Harvard law professor Alan Dershowitz explains, “Almost all police lie about whether they violated the Constitution in order to convict guilty defendants.”4 Even police officials concede that police lying in court, especially to justify improper searches, is not uncommon.5 It has earned its own label: “testilying.” The term was coined by New York City police officers apparently to help them justify in their own minds why it was different from normal lying under oath—while not legally justified, it was morally justified. “When an officer is deceptive in court, the rationale goes, he is ‘not quite lying’ but ‘not quite testifying truthfully and completely’ either. Testilying is seen as a middle ground between pure honesty and pure dishonesty.”6
One officer caught lying under oath said it was “standard procedure” and used to “counterbalance the loopholes used by drug dealers to evade the police.”7 An empirical study by Myron Orfield, a professor of civil rights law, conducted in Chicago concludes that “virtually all the officers admit that the police commit perjury, if infrequently, at suppression hearings.”8 (Suppression hearings are conducted to decide which evidence will be allowed to be used in trial versus which evidence must be excluded.) The study claimed that up to 76 percent of the officers surveyed had “shaded” facts in order to establish probable cause to search for evidence.9 Some claim that police commit perjury in 20 to 50 percent of cases where they have to testify regarding Fourth Amendment (exclusionary rule) issues.10
Most famous among the examinations of police perjury is the 1994 Mollen Commission report on the New York Police Department: “Police perjury and falsification is a serious problem facing the department and the criminal justice system.” Such perjury is “probab
ly the most common form of police corruption…particularly in connection with arrests for possession of narcotics and guns.”11
The Mollen Commission report spoke to the reasons for the officers’ willingness to lie: “In their view, irregardless of the legality of the arrest, the defendant is in fact guilty and ought to be arrested.” It explained that the officers were frustrated with the legal rules that protected criminals from search and seizure because the rules were perceived as “unrealistic rules of law.” Officers also expressed frustration about their “inability to stem the crime in their precinct through legal means.”12 They held a strong belief that perjury was acceptable because it was necessary to stem the tide of crime and because it was “‘doing God's work’—doing whatever it takes to get a suspected criminal off the streets.”13
Other writers have made the same point: “Police view perjury as a necessary means to achieve the ends of justice. Constitutional rules—particularly the Exclusionary Rule—are viewed as technicalities that ‘let the criminal…go free because the constable has blundered.’”14 One study found that testilying began soon after cases were dismissed under the 1961 Supreme Court holding in Mapp v. Ohio, which created the exclusionary rule.15 To police, “there is a deep-seated disregard for what they consider to be silly little laws made by a silly little Supreme Court in a backroom far removed from the dangerous streets they are trying to bring order into.”16
Presumably, judges, like others in the system, are well aware of the testilying. Yet some may share the shadow vigilante sympathy motivating the lying and thus, while no doubt unhappy about perjury in their court, play along and accept the testimony as sufficient to justify the search or the arrest. As Alan Dershowitz reports, when officers offer perjured testimony, the judge “shakes his head in knowing frustration, but accepts the officers’ account as credible.”17 A series of interviews revealed that 75 percent of judges, 100 percent of public defenders, and 65 percent of prosecutors “believed that judges sometimes fail to suppress evidence when they know police searches are illegal.”18
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