May
22

We Need A Few More Jack Weinsteins

This past week, an interest group made an assertion I find impossible to believe: Three quarters of those accused of possessing child pornography have actually abused children. Almost every single one of the men I have represented in criminal cases arising from the possession of such images is guilty of far less. Most are simply curiously, a few suffer other, related psychological maladies. In the dozens of sex offense cases I've handled, I have yet to see the equivalent of pornographic reefer madness.

If you have not seen the film Reefer Madness, check it out. It's a 1936 propaganda film about the dangers of smoking marijuana. Marijuana, you see, is the gateway drug of the masses. Start with weed, and end up choking on far more serious drugs. The descent to madness starts with but a single puff. The line between fact and fear is easily blurred.

The line is erased today when it comes to sex offenses. One of the primary culprits blurring that line is the National Center for Missing and Exploited Children. Ernie Allen, president of NCMEC, recently told The New York Times: "Real children are harmed in the production of these images and these same children are harmed every time these images are downloaded and viewed." He presumably gets paid a decent sum for uttering this specious idiocy.

Yes, real children, when they are used to produce a film or photograph, are harmed. The production of child pornography misuses children and should be a crime. But the children are not harmed anew when, in some mildewy basement thousands of miles away, a shamed-faced man sneaks a peak at the images. To suggest otherwise is to live in a fool's paradise.

But opposing sex offenses is a cheap and easy way to score points politically. So every time lawmakers want to feel good about something, they slap a new law, a new restriction, a new mandatory minimum sentence on those accused of sex crimes. Child sex, I have said before and I will repeat again, is the new crack. We want to stamp it out, so we criminalize it. Just when it begins to dawn on folks that the war on drugs really doesn't work, we start a new moral crusade. What is it about our political culture that requires always that there be a villain, some other than we can attack to displace all that makes us uneasy?

Few judges have the courage to call this madness out and to refuse to go along with the charade we call justice. It is not justice to put a man in prison for looking at pictures. It is not justice to lock away a young man for flirting with a police officer pretending to be 14-year-old runway model in heat. Justice requires individual assessments of harm and risk. Most judges, however, approach the task of sentencing like assembly-line workers. Along comes a defendant, the judge looks at the instruction manual produced by lawmakers, and then the judge clips the defendant so that he fits the image the cookie cutter yields. This sort of judging brings the judiciary into disrepute.

That's why I loved this morning's story about Jack B. Weinstein, an 88-year-old federal judge in Brooklyn. Weinstein's been on the bench for 43 years. When he sees a law that is offensive to justice, he refuses to enforce it. Oh, that President Barack Obama were to find a few more Weinsteins to put on the bench. Instead, we get bloodless automatons like Elena Kagan.

Weinstein has refused to impose mandatory minimum sentences when the sentence did not fit the defendant. He has dismissed cases when he thought the Government's charges were a mockery of justice. He takes a robust view of judging, and refuses to do unnecessary harm to those accused.

This makes Weinstein lawless in the eyes of many. A judge is merely to apply the law, not make it. We want lawmakers, after due deliberation and consideration of societal norms, to pass laws. Judges don't have the same fact finding power as lawmakers do. They ought not to overstep and substitute their judgment for those of lawmakers.

I get all that, and in general I support a limited view of the judiciary. But I simply have little confidence in the wisdom of legislators. They too easily succumb to the self-righteous blandishments of groups such as NCMEC. The separation of powers ought not to yield a regime in which blind passion neuters reason.

We used to permit juries to nullify the law when they thought it was wrong. In the early twentieth century, the Supreme Court forbade the practice. We need to rethink that rule. Shouldn't juries have a say in what is done in their name? Judge Weinstein plans to do what trial lawyers regard as the unthinkable in a child pornography trial: He is going to tell the jury what penalty the defendant faces if convicted. That practice almost never occurs. We make infants of jurors all the time, telling them lies and half truths, and then declaring we have done justice. God bless Jack Weinstein for refusing to play charades with the lives of others.

We need more jack Weinsteins on the bench. At least, I think we do. We've a few too many fools in Congress, and far too many crusading for the right thing but using he wrong means.
Comments (1)
Posted on May 22, 2010 at 8:44 am by Avendora
Have you read the decision in Marbury v. Madison 5...
Have you read the decision in Marbury v. Madison 5 US 137 (1803)?

That is a prime example of the Judiciary telling Congress that they can't pass illegal legislation.

It describes the authority of the Courts to do so.

The Constitution was written in such a way that the Judiciary was not only "apply the law," but also to defend the Constitution from encroachment by Congress against the rights of the people.

Marbury v. Madison states that:

"That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act."

And on Findlaw, under the section for the Constitution, it states:

"Congress enacted a statute, which, while not changing the limitations period prospectively, retroactively extended the time for suits dismissed and provided for the reopening of the final judgments rendered in the dismissals of suits.

Holding the congressional act invalid, the Court held it impermissible for Congress to disturb a final judgment. ''Having achieved finality, . . . a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was.''"

So, the Judicial Branch has the authority to nullify a congressional act. If they have the authority to remove it once it's been written and enacted, what is to stop them from halting the process if they know of an unconstitutional law being written?

I could write another response just on the idea of the Jury not being allowed to nullify the law. Or that the Jury shouldn't know the punishment for the crime they are passing a verdict on.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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