I first became interested in the story of crime and punishment, how we tell those stories, at 16 years of age. Then, three childhood friends were arrested for two homicides. Two were immediately arrested, one was on the run for a week. The one on the run confessed to me, telling me exactly what happened. When I read the story in the newspaper, it was not like anything he had told me. My friend had no reason to lie to me as he recounted his role in the crimes, so I knew it had to do with how we tell these stories of crime and punishment. At that time, I knew nothing of “yellow journalism” or “junk food journalism.” I didn’t even know that the paper in which I read the story of those crimes was a tabloid pandering in sensationalism. I later learned that television news about the story of crime and punishment are far worse than the tabloids, its executives promoting the mantra, “If it bleeds, it leads.” This led me to calling Eyewitness News… Crimewitness News.

A year later, at 17 years of age, in my first year at Russell Sage College, I started reading and writing about the story of crime and punishment. All these years later, I remember the first statement of my political science professor: “Everything is political!” I immediately thought that this would apply to how we tell those stories of crime and punishment. I re-read my favorite book as a teenager, The Count of Monte Cristo, by Alexander Dumas, through this lens. Upon my first reading, it was a story, pure and simple, of revenge, like Edgar Allan Poe’s The Cask of Amontillado. With this lens, I saw The Count of Monte Cristo as a story of crime and punishment, of second chances, of reentry and reintegration.

The second class that made a great impression on me was Logic & Rhetoric. Although Russell Sage was a junior college, it provided the foundation of a great liberal arts education. It was as if I were transported back in time to the Middle Ages, studying the seven liberal arts: The Trivium (Grammar, Logic, and Rhetoric ) and The Quadrivium (Arithmetic, Geometry, Music, and Astronomy). The main text was The Art of Deception by Nicholas Capaldi. This is when I took an interest in my namesake, William Shakespeare. In The Art of Deception, Capaldi excerpted Mark Anthony’s funeral oration at Julius Caesar’s funeral. I didn’t put it quite like this then, but this was the gist: WORDS CONTROL THE NARRATIVE, and that there was power in words. You could incite people to violence; you could attack them (ad hominem) instead of debating the issues; you could write something so beautiful that people would sigh or weep.

My childhood friends had three separate trials for the two homicides, two in front of the same judge, Sybil Hart Kooper, the self-professed “Dragon Lady,” though the tabloids may have given her that sobriquet. It was years later, when studying the law, that I understood why this was the case. At the two trials before Judge Kooper, the prosecutor told different stories; they offered two conflicting theories of the crime that couldn’t be told if all three of my friends had been tried together! The prosecutor told stories (lies and had witnesses commit perjury) to secure convictions, not to seek justice. (Any judge or prosecutor who brags about their conviction rate is not seeking justice and perhaps should immediately be brought before a fitness committee to determine if they should hold their offices.) Their court-appointed attorneys didn’t do much pre- or post-trial to address the practical impossibility of the two conflicting theories of the crime.

During my study of the law, I read The New York Law Journal every day it was published. I studied the “Shakespeare and the Law” column written by Justice Frederick C. Hicks as if it were canon law. At this time, I had read all of Shakespeare’s canon, but not through the lens of the law. In one column, Justice Hicks took on the infamous statement by Dick the Butcher during the Jack Cade Rebellion in Henry VI, Part 2: “The first thing we do, let’s kill all the lawyers.” Justice Hicks commented that it was important to note whose mouth Shakespeare put those words in. He goes on to write that lawyers are supposed to be enforcers of the law, to stand up to tyrants who would suspend the rule of law and anarchists who would destabilize the social order.

My study of the law focused on two things: prosecutorial misconduct and the felony-murder rule, the crime for which my childhood friends were tried and convicted. In the third trial, my friend had a one-day trial and was summarily sentenced to 20 years to life at the age of 17.

The felony-murder rule goes back to the 1500s, in Olde English common law. From the very beginning, it was a law that came under intense scrutiny. It is a strict liability crime steeped in various mythological theories of the law: transferred intent; vicarious liability; and my all-time favorite, a fiction of law – that which is not true, but for purposes of the law will be accepted as true and not allowed to be disproved!

For my friends’ sake, I went back in time and read case law and commentaries from 1541 through the 1980s. The earliest case associated with the felony-murder rule is Lord Dacre’s Case (1541).

 In the latter part of the 1980s, working as a paralegal, I worked on a case of felony-murder. Six young Black males, between the ages of 16 and 18, were tried and convicted of attacking a white male. Thirty days after the attack, the victim died in the hospital of septicemia. Because one of the individuals implicated two of the others in the crime, his case was separated from the other five, and he stood trial alone. The other five were tried together and convicted based solely on the testimony of one eyewitness, who allegedly viewed and witnessed the crime through a bodega window half-stacked with goods at twilight and positively identified all six individuals. The prosecutors, of course, had the witness state that he knew the perpetrators of the crime from the neighborhood, given the vagaries of eyewitness testimony, considered in legal circles the most unreliable form of evidence.

Reading the transcripts was Kafkaesque! The five individuals tried together were found guilty on the eyewitness testimony of one individual, who spoke through a translator, because his first language was Arabic. All five defense attorneys cross-examined the witness, asking the same questions, receiving the same answers. The Five were summarily convicted and sentenced to 25 years to life, the maximum sentence under the law. When the Five were scheduled to be transferred from Rikers Island to a state prison, their sentencing minutes (transcripts) could not be located. Sentencing minutes must accompany anyone sentenced to state prison. Because the sentencing minutes could not be found, all Five had to be resentenced. Before resentencing, three jurors came forward with various allegations of juror misconduct: that during deliberations a juror was smoking marijuana in the jury room; that one juror stated that if they did not come up with a verdict that the judge would sequester them over the holidays (it was the Christmas season); and that there was something fundamentally wrong with the eyewitness testimony. The jurors did not believe that the witness could positively identify six people under said conditions cited earlier, especially given that the commission of the crime lasted no more than 30 seconds. The jurors also did not believe that three of the Five were guilty of any crime. (Earlier, I wrote that the individual tried alone only implicated two of the Five in his confession. Three of the individuals were innocent – I was working on the case of one of the innocent teenagers. They were guilty by association because they knew the other three, but happened not to be with them that fateful night. Had they been there, they more than likely would have participated in the crime.)

The judge had to hold a hearing on the jurors’ allegations, which he stated defied the [peculiar] logic of the law. Court officers were put on the stand and cross-examined by the defense attorneys if they smelled marijuana wafting from the juror room. Although three jurors had come forward with allegations of juror misconduct, the defense attorneys only secured a sworn affidavit from one, perhaps thinking that they needed no more. On the stand, the juror stood by her allegations, under the cross-examination of the prosecutor and the judge.

The judge ruled against the Five. He proceeded to resentence the Five. The defense attorneys argued for a sentence less than the maximum sentence of 25 years to life. One defense attorney pleaded with the judge that if he had done anything to offend the bench, then not to take it out on the individual he was representing. Then the political dance began, the judge complimenting the defense attorney for his zealous representation of his client, even though during the hearing the judge stated that he would give the defense attorneys more time to investigate the allegations of juror misconduct if they admitted that they had “screwed up,” with the caveat: “But I don’t know, if I were an attorney practicing law in this town, that I would want it to get around that I screwed up in this murder case.” Of course, the lawyers would not admit their ineffectiveness.

The plea for leniency was summarily dismissed. Before resentencing the Five to 25 years to life, the judge stated that they were lucky New York State had a governor (Mario Cuomo) who was opposed to the death penalty, because otherwise he could very well be sentencing the defendants to death (as Lord Dacre had been executed four hundred and forty-four years before the sentencing of the Five). Note that the individual who stood trial alone was sentenced to the minimum sentence under the law of 15 years to life. During the trial, his attorney highlighted the fact that the victim died from septicemia, not the wounds suffered during the attack. Years later, I wondered if the victim’s family filed a lawsuit against the hospital.

As I feverishly worked on the post-conviction motion (CPL 440.10) of one of the Five, I would take a break and read Crime and Punishment by Fyodor Dostoevsky. I thought of my friend who had confessed to a murder, which I now knew could be labeled murder by misadventure, and the psychological torment he must have been experiencing, in the same way Rodion Romanovich Raskolnikov, whom I simply called “R,” was tormented by killing Alyona Ivanovna and Lizaveta Ivanovna.

Crime and Punishment is often cited as one of the greatest works of literature.

To be continued…