11:03 a.m. March 26, 2013

Brother Bear Art Thou

Curtain up. A tearful and at times quivering young woman just out of her teens with no criminal history is in front of a Las Vegas court after her minor participation in a robbery gone awry resulted in the death of one of the victims. Having plead guilty to the lesser offense of accessory, she has a long-shot chance for probation, but likely will serve prison time.

The family members of the deceased are seated in the courtroom, waiting for their turn to speak. Some wear T-shirts with a picture of the dead and words that might have been “never forgotten.” They all share a defiance of sorts in their voice and a plan for finding strength; they will not be labeled a victim.

At least they won’t be labelled figuratively. Literally they are all wearing large stickers featuring bold blue print on a white background that reads “VICTIM SPEAKER.” One by one, the VICTIM SPEAKERS file up to the podium and tell their stories of the young man who died.

Barely a dry eye, including the judge. If the point of the proceeding was to punish that shackled girl with the maximum amount of guilt and fury, it’s a mission accomplished. But there’s more. Much more.

Enter the last speaker. The mother of the fallen boy approached the podium with a large teddy bear in her hands. The teddy bear is holding a basketball. I turn to my assistant. ”This isn’t going to be good.” It wasn’t.


Courtroom procedurals on television and in movies are as dissimilar from the reality of courtrooms as Saved By the Bell is from real high school. Granted, they at least get the players right (idiot judges or principals, squirrely lawyers or Screeches) but to expect the truth of the courtroom experience to mirror its depiction would be as foolhardy as taking actual career advice from Dennis Haskins.

The one singular exception, however, is the sentencing hearing. When it comes to pronouncing a sentence upon an individual for his wrongdoing, real-life has been transformed into mostly outrageous theater.

Take the case of the Astronaut and the Lunatic. No doubt recent memory conjures the climax of an otherwise uneventful Gabby Giffords court proceeding. The summary of this underlying, tragic event is well-documented and all too common in an era of recurrent deadly weapon assaults – in this case, a sitting U.S. Representative, her aides and innocent bystanders either seriously injured or killed by a madman’s bullets. This wasn’t a whodunit. There was no trial, only a brief evaluation of competency, discussion of insanity and a plea negotiation that left little room for judicial discretion regarding sentence. The assailant, a severely troubled and by all accounts mentally ill 24-year old named Jared Lee Loughner, was led, shackled and heavily medicated with psychotropic drugs, into a Tucson courtroom in November, 2012, to receive a sentence of life (likely in a Federal prison mental institution) without the possibility of parole. No mystery. No drama.

And yet, an enormous media contingent was present, ostensibly to capture not the pronouncement of the already known sentence, but the “confrontation” of victim and tormentor—the “steely gaze” of Giffords’ retired astronaut husband upon the barely responsive shooter became the story. The restrained, quietly enraged allocution of Giffords' highly educated and accomplished husband was widely quoted: “You tried to create a world as dark and evil as your own. Remember this: You failed."

It was an emotional, powerful moment, a classic invocation of light against darkness. A public shaming, of course, but primarily it was a relative of the victim exercising his “right” to pontificate about all things right and wrong, good and evil, just and fair, as it related to the mentally ill man standing a few feet away despite the villain being neutralized in every way. Other victims, or their surviving kin, also spoke with differing degrees of self-control and eloquence.

Indeed, nowadays most victims ritualistically attend and speak at the hearing because it’s expected if not encouraged. It’s a “right” enumerated in most state legal statutes and to many it comes with the promise of “closure.” So with or without an audience, the case is called, the lawyers do their thing and before sentence is pronounced, the victim rises slowly, walks forward and, with either remarks prepared or not, lets loose in ways that range from dignified to rant, vitriolic to Biblical screed. In many cases, the Judge has much to consider in determining the appropriate punishment, and one of those considerations is the “impact on the victim.”

It wasn’t always this way. Prior to 1991, virtually no one gave extra service to how a crime personally affected a victim because well, duh, it’s a crime and you’re a victim – by definition, you're affected.

But then came a Mr. Payne of Tennessee, who jacked up on injected cocaine, malt liquor and pornography stabbed a woman of his desire 84 times, killed her 2-year old daughter and nearly killing her 3-year old son after the woman rejected his aggressive sexual advances. A debate erupted whether or not the grandmother of the 3-year old should have been able to make an impassioned plea to the jury, on the grounds that the toddler will never get to hug his mother again. The prosecutor demanded yes. Who would deny Nana her “day in court?”

It was in Payne v. Tennessee (1991) that the United States Supreme Court reversed the long-standing precedent of evenhandedness over sensation, providing the impetus for something called “victim’s rights” – the congealing of an Oprah-esque feelgood and empowerment movement transforming victims from well, helpless victims into potent forces.

Since the 1960s when, from Gideon to Miranda and beyond, the Warren Court with its permissive, “hippie” majority tried to make America a less crappy place to be charged with a crime, Conservatives had been looking for a way to return to the good old days. Increasing penalties for even minor drug crimes was phase one; marshalling and institutionalizing public outrage was the next.

The logic of the High Court in Payne was tortured. Writing for the majority (6-3), über-conservative Chief Justice Rehnquist started by selectively quoting that unimpeachable legal document, the Bible and an Italian criminologist (who in context actually called for stunning reforms), stating,

“’The principles which have guided criminal sentencing—as opposed to criminal liability—have varied with the times. The book of Exodus prescribes the Lex talionis, “An eye for an eye, a tooth for a tooth’... writing in the 18th century, the Italian criminologist Cesare Beccaria advocated the idea that ‘the punishment should fit the crime.’ He said that ‘[w]e have seen that the true measure of crimes is the injury done to society.’”

Rehnquist opined that a new rule was required to elevate victims from “faceless strangers” to important people and that the whole thing is borne out of fairness to everyone. Sure enough, in short order, States began enacting wildly popular laws (at least with the tough-on-crime, Conservative voting bloc), typically under the blockbuster banner “victim’s bill of rights.”


“This isn’t going to be good.” I said, as the victim’s mother took to the podium, clutching her bear. What manner of prop was this? Did the bear belong to the deceased teen? Was it a gift from him? No, and no. The mother introduced “Brother Bear” – the bear she sleeps with every night and which, grotesquely, doubles as the urn for her son’s ashes. But that was just the start.

The bear was placed off to one side as the mother unfolded a letter from the deceased’s five-year-old sister. The same five-year old who had to cancel her recent birthday because, as the mother explained, it was “the same day as the funeral.” Powerful stuff, made all the more powerful when the mother began reading the letter, in the assumed voice of a five year old: “[He] was my brother... can you bring him back to me please? He used to be my special brother. Why did you let [her] do this to my brother?”

The letter continued, and continued... “I am mad at (her) for what she did to my brother. Don’t let her out of jail if she be like that...” and continued ...“Bad people you could’ve been good. I hope you be in jail. Amen.” The young defendant, already sobbing was now exhibiting full-blown hysteria. And then, reverting to her own voice, the mother said her piece: “My daughter will never have the opportunity to grow up with her big brother. I used to tell him, ‘God brought your sister, so you could grow up. But I realize God brought her so I can survive this.”

Finally -- finally -- it ended, the defendant was sentenced and carried away, wailing. A recess was called as the VICTIM SPEAKERS left the courtroom, presumably satisfied that justice had been done. An urn inside a stuffed bear had seen his day in court.