TWO OUT OF THREE AIN’T BAD – SHOW TRIALS AND REAL JUSTICE

By Wendy Murphy

Jun 30, 2017 | Feature |

For The Patriot Ledger

July 1, 2017

The trials of Bill Cosby, Michael McCarthy, and Michelle Carter made news last week; each painting a disturbing picture of the human capacity for evil.

Cosby first:

The disgraced comic won a mistrial in his first rape trial in Pennsylvania after the jury failed to reach a verdict. The result was shamefully predictable because Pennsylvania law permits a man to drug and rape a woman so long as the drugging is done with the victim’s “knowledge.” Another provision allows incapacitated women to be raped so long as they are not totally “unconscious.” Andrea Constand took drugs willingly from Cosby, and was victimized before she passed out from the three blue pills and (likely spiked) glass of wine Cosby gave her. Though the District Attorney vowed to retry the case this summer, one of the jurors said the prosecution would never win because the language of the law tied their hands.

Note to sex offenders: Move to Philly!

Heroin addict Michael McCarthy was convicted or murdering Bella Bond after a trial where the only dispute was whether McCarthy or Bella’s mother, Rachelle Bond, killed the little girl. You would expect a trial with only two suspects to be an easy win for the prosecution, but cross finger-pointing cases, like the homicide of JonBenet Ramsey, are tough because it’s so easy for each suspect to raise reasonable doubt by blaming the other. The best approach is for prosecutors to separate the suspects and make a cooperation deal with the one they believe is not the killer, which is exactly what happened with Rachelle Bond and Michael McCarthy, and is exactly what did NOT happen with JonBenet’s parents.

The Michelle Carter case created battle lines of a different sort. Carter was convicted of manslaughter for killing her suicidal boyfriend, Conrad Roy, by incessantly urging him to take his own life. In a sense, the case asked whether Carter or Roy was more responsible for Roy’s death. Under the law, there can be more than one cause of death, so prosecutors only had to prove that Carter’s words were a substantial cause. Carter was easily convicted because manslaughter requires proof that a person’s “reckless disregard for human life” caused another person’s death. There is no exception for reckless words, and most people, even if they felt bad for Carter, saw her words as exceedingly reckless, if not malicious. That words can kill is not a new idea. In 1978, nearly a thousand people died in Jonestown, Guyana after being commanded by Jim Jones to drink cyanide. The incident was described in news stories as a “massacre” even though Jones never touched a single victim.

We should want people to be held criminally responsible when words cause death, though we have to be careful not to go too far down the line and start prosecuting people who use voodoo dolls to “kill” their next-door neighbor.

We should also want the law to hold an entire houseful of adults criminally responsible if a child dies from abuse behind closed doors, even if it’s unclear which adult did what. Laws that permit the prosecution of every adult in the home when a child dies from obvious abuse, as Bella and JonBenet did, will offset the profound power that adults have over defenseless children.

And we should run lawmakers out of office if, as is true in Pennsylvania, they enact laws that allow people like Bill Cosby to drug and rape women with impunity.

High profile trials are riveting because we want to see who wins, and we desperately want to understand why human beings are capable of great evil. TV trials are also a window into the ways that our legal system too often rewards gamesmanship over a search for the truth.

Contrary to popular belief, we don’t have the best legal system in the world. If we did, Bill Cosby would be in prison. But as Michael McCarthy and Michelle Carter now realize, we do get it right sometimes. Here’s hoping their guilty verdicts send a little afterlife comfort to Conrad Roy and Bella Bond.

Wendy Murphy

Professor of sexual violence law

Wendy Murphy  is adjunct professor of sexual violence law at New England Law|Boston where she has taught for fifteen years. An impact litigator whose work in state and federal courts around the country has changed the law to improve protections for women’s and children’s constitutional rights, she developed and directs several projects in conjunction with the school’s Center for Law and Social Responsibility.

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