Crime After Crime

July 18, 2011 Criminal Defense




Crime after crime: When justice has been served, and a criminal debt paid, it is a crime not to release a prisoner.

The best documentaries are great stories and teach us how to tell a story with words and pictures. Storytelling is the best way to communicate with an audience and ensures the message will stick. This documentary tells a story which will make you sick; not at your stomach but sick in spirit.

Deborah Peagler, at 15 years old, met Oliver Wilson, a good looking, charming young man. He worked in the grocery store near her house. They began a relationship. It soon turned ugly. He forced her to prostitute herself to raise money for him. At first she refused, so he beat and kicked her into submission. She suffered six years of continuous abuse.

When she learned he began sexually abusing her six-year-old daughter, she took her children and fled from him. He soon found her and assaulted her with a deadly weapon and brought along a gang of his friends, but the police never followed up with the investigation. Finally, with nowhere else to turn to, she complained to two of her friends who killed Oliver.

She was indicted for first degree murder, and to avoid the death penalty, she plead guilty for a life sentence. In 1983, when she was charged, her lawyer either didn’t know of or care much about the defense of the battered woman syndrome, PTSD, or at least a defense of diminished responsibility. The battered woman defense was first discussed in the mid to late 70’s but didn’t get much traction until the mid 80’s. It took decades for the courts and legislatures to take it seriously. Only after she served 20 years in prison did California pass a law allowing women like her to challenge their convictions and sentences if they were abused by husbands or boyfriends. Today, California is the only state allowing incarcerated women to retroactively raise the defense in a habeas petition.

Two young lawyers, Joshua Safran and Nadia Costa, took on her case. They are land-use specialists. Their firm did zoning work. They had no experience with the criminal justice system. They had no idea what they were getting into. They reasonably thought in a couple of months, under the new habeas statute, that Deborah would be released. Little did they know they had signed on for an intense brutal seven-year battle against the bureaucratic and warped criminal justice system, the prosecutors and the industrial prison machine. This film brilliantly tells their odyssey.

They complied an enormous amount of evidence of abuse and even had the victim’s family on their side. But all the court actions and parole board petitions went nowhere. Finally they got a big break. Years into the case, they got their hands on a 1983 internal memo from the LA District Attorney’s Office. It was a blockbuster. The memo made it clear that the death penalty was not appropriate for her case, yet they continued to use the threat of it to force a plea from her. It also said their only witness was an informer, and that he committed perjury at the preliminary hearing. In addition, it stated they were aware that the victim had molested her daughter. This was important as a possible motive because the prosecution claimed she had him killed for a small insurance policy. None of that was ever disclosed to the defense before the guilty plea or for the next 25 years. They also hid it from the parole authorities contending the first degree murder evidence was a “slam dunk case.” The prosecutor who wrote the memo and handled her case is now a Superior Court judge. That is the usual punishment for prosecutorial misconduct in America.

Unfortunately, they were never able to fully use this memo. The film doesn’t explain what they did with it, so I assume it went nowhere. A more experienced lawyer would have known a memo like that was death to legal and political careers. If it ended up in the media, it would have been a disaster for the District Attorney’s Office.

In 2005, her lawyers met with District Attorney Steve Cooley and his chief deputy. Based on the new evidence of horrific abuse, the DA agreed in writing to a habeas petition and a reduction of the charge to voluntary manslaughter and a sentence of 2 to 6 years. This meant she would be released immediately. Of course, Deborah and her lawyers were overjoyed, but they were not experienced in this system. After they filed the habeas petition, the DA, for some unknown reason, wrote another letter withdrawing the deal. To this day there has been no explanation for that action. Welcome to our system of injustice. The habeas lawyers should have nuked them with the memo at this point.

They fought valiantly to reinstate the withdrawn plea agreement. The lawyers filed several petitions and even a civil lawsuit against Cooley himself. They managed to get the DA’s office recused, but it was immediately appealed. One has to wonder why they tried so desperately to hold on to the case. While the appeal slowly wended its way to the state appellate court, another disaster occurred. The case became a race against the clock. Deborah had been sick for quite awhile. The prison medical staff called it a flu. But as it got worse and worse, they finally had to send her to a real hospital. Anyone who is familiar with prison medical care will know what happened next. There she was diagnosed with lung cancer, probably caused by working in the prison. The lung cancer was terminal. Now the race was on to at least not let her die in prison.

The appeal would not be heard in time, so they filed for compassionate release. That was denied by the prison. Why would the prison authorities want to keep a dying woman in prison? Then they filed for parole. Even the victim’s family came to argue for her release. Only Cooley objected to her release. By this time, her case had received a lot of publicity and public support, so the parole board finally released her. Her lawyers said justice was finally done, but not in my opinion. Justice required righting the wrong. It required vacating her conviction and sentence based on prosecutorial misconduct. No one was ever held accountable for their actions against her. She died 10 months after her release.

I love the title of the film, “Crime After Crime.”  It comes from an off hand remark by Joshua Safron. He noted that Deborah should have been sentenced to 2 to 6 years under California law. So after the 6th year, she had completed the sentence for her crime, and after that the crime was being committed against her. It is so true. All too often those who commit a crime soon become the victim of a crime. A crime by the state. A crime much uglier than any they committed because it is in the name of the state and all of us are part of it. I hate that things like this happen in my name.

We have created a prison system full of men and women who have lost hope. “Hold fast to dreams for if dreams die, life is a broken winged bird that cannot fly.” Langston Hughes.  And our prison system, which has given up on rehabilitation, is good for only one thing – breaking people. We rob them of part of their lives. We rob them of the chance to turn their lives around. We rob them of the chance to make amends and peace.

One point I can’t get my head around. Why do they fight so hard to keep some people in prison? People who they know have long served any punishment due to them. Even people who are terminally ill and no longer a threat. What is the psychology behind this? I bring this up because I am representing George Martorano along with Marcia Silvers and Ted Simon. George’s then-lawyer told him to plead guilty for drug trafficking, advising him he would get a ten-year sentence. He has now been in prison for 28 years. A first time non-violent offender. Whatever crime he committed doesn’t deserve this sentence. Yet the government is fighting to keep him imprisoned. To what purpose? Why do we give the state such power over us? Do we think of the consequences of the potential abuse? Why do we keep people in prison so long?

The willingness and eagerness to punish is great. It seems primitive to me. I distrust those who engage in punishing others. Friedrich Nietzsche, in Thus Spoke Zarathustra, wrote: “But thus I counsel you my friends: Mistrust all in whom the urge to punish is powerful. They are people of a low sort and stock; the hangman and the bloodhound look out of their faces.” As Nietzsche observes, the urge to punish can be ugly and unhealthy. By this I don’t mean to include all who were prosecutors. Many use the position as a means to an end; to get the experience necessary to become a trial lawyer. But those who become career prosecutors, who seek the administrative power, who are like those in this film who veto every chance this poor woman had for just a few months of life outside the bars, those are the ones we need to fear.

They have a mind set that they are always right and have the right to impose serious punishment on anyone. They believe that punishment and more punishment is the right thing to do. They are so right that they need not listen to anyone else. They lose sight of humanity in the process. They are intoxicated with the power and the urge to punish. They advocate wave after wave of ever more sentencing severity. Sentences of 25, 50 and 75 years are not unusual now.

They and the state should be humble with this power rather than arrogant. A state, any state, and any person working for the state, is fallible, just another human institution, and a deeply flawed one. Perhaps they need to consider that they can be wrong. There is no clear quantum of punishment to satisfy justice in any individual case. In order to have a civilized society we need a state controlled penal system. We need to be protected from the violently dangerous people. But the punishment must be restrained and in moderation. If not, we commit “crime after crime.”

Perhaps for a change, those who run the criminal justice machine should consider different approaches: forgiveness; mercy; restraint and self-discipline.

But they won’t, and I shouldn’t be surprised because most people don’t care. Out of sight out of mind. Getting people out of prison, rather than putting them in, is not a popular thing to do. No one cares except for the prisoner and his family. It is a thankless job. The best evidence of this was at the screening of the film; there were only two people in the theater, my wife and me.