…Continued (If you missed the first installment, then click here: Journey Through Crime and Punishment, Part I.)

Crime and Punishment was first published in The Russian Messenger, a literary journal, in twelve monthly installments in 1866.

I reread passages of Crime and Punishment repeatedly, spellbound by a master of his craft. Some passages had me sigh and weep. (If I could write like this!) The dialogue between the main character, Raskolnikov, and Sonya, a friend of one of Raskolnikov’s victims, rivals dialogue written by Shakespeare, specifically conversations in Hamlet between Hamlet and Ophelia. I fantasized that if I ever went to prison for murder, then I would want a Sonya by my side. Sonya is much more than self-sacrificing, as literary critics often describe her, and she is no mere serial killer groupie. Forced to prostitute herself to support her family, she understands what people might do under certain circumstances. (Don’t confuse her with the improbable whore-with-a-heart-of-gold archetype.) Sonya is the first person Raskolnikov confesses to, and she is in his mind, in his guilty conscience, in ways that are both disturbing and delightful.

If you Google Crime and Punishment, it’s listed as a book with a “mind-bending plot.”

After reading Crime and Punishment, I developed a practice of reading the entire canon of an author whose work I liked, as well as biographies written about them. From Dostoevsky’s canon, The House of the Dead, and Notes from Underground, made a great impression on me. Inspired by Notes, I wrote an award-winning PEN essay, “ABACADRABA! Or Notes on the War on Crime,” about crime and punishment and how the so-called “War on Crime” was simply messaged in stump speeches by politicians but became policy: more police, more prisons, longer prison terms.

As a paralegal, I saw the reality of more prisons and longer prison terms, and the cost we paid as a society. So caught up did we as Americans become in this political frenzy about crime and punishment, that we earned the dubious distinction of becoming a nation that locked up more people in prisons and jails than any other nation in the world; a nation that held people in prisons for longer periods of time than any other nation in the world; and a nation that sentenced more people, including juveniles, to life in prison without the possibility of parole than any other nation in the world.

As I recounted in Part I, in the latter part of the 1980s, as a paralegal, I worked on a case of felony-murder, of a 16-year-old who had been sentenced to the maximum sentence of 25 years to life. He was one of six teenagers tried and convicted of felony-murder. His court-appointed attorney was grossly ineffective and didn’t provide zealous advocacy, despite the trial judge’s claim, and not simply because he lost the trial – “mere losing strategies do not constitute ineffective representation of counsel,” as courts have declared. All things being equal, at this stage, with my knowledge and understanding of the felony-murder rule and prosecutorial misconduct, I knew I could walk in any courtroom and successfully defend this individual as well as my childhood friends convicted of felony-murder. But the most I could do was provide the best legal advice, which was translated into a motion charging his attorney with ineffective representation of counsel, a motion most attorneys don’t want to submit against fellow members of the Bar, so this teenager had to submit the 440.10 motion pursuant to the Criminal Procedure Law (CPL) pro se, that is, on his own behalf. Because there were issues not part of the trial record, we were able to submit a post-conviction motion, which would go back to the trial court.

It was approximately three months before the judge responded to the 440 motion, in a 30-page decision. A 30-page decision, based on a pro se motion, spoke volumes. The trial court knew that this individual defendant had an appeal pending, and that he could ask the appellate court to grant leave to appeal and to consolidate the 440 motion with his direct appeal if he summarily dismissed the motion without an opinion. After the 440 motion was denied, I personally thought that the 30-page decision would pique the interest of the appellate court and that it would grant leave to appeal and hear the claims of ineffective representation of counsel. Unfortunately, the court, without opinion, didn’t grant leave to appeal. We then asked New York’s highest court, the Court of Appeals, to hear the case. It, too, would not hear the case.

I had been reading Crime and Punishment in between my work on this case. When I finished Crime and Punishment, I picked up Cicero’s Murder Trials. Reading about Cicero’s murder trials was a study in the importance of storytelling in a court of law, in controlling the narrative of the crime, how the story is told. In the case of Pro Cluentio (66 BCE), Aulus Cluentius Habitus was accused of poisoning his stepfather. In this murder trial, Cicero wove a narrative of the crime as complex as a spider’s web, where he sought to shift the blame onto Cluentius’ mother, Sassia, portraying her as morally reprehensible. Cicero also reframed the story about Cluentius, that he was a victim of relentless persecution. (The case was tangled in decades of prior trials, bribery allegations, and family vendettas.)

Pro Cluentio was significant in that it demonstrated Cicero’s mastery of psychological persuasion, and exposed Roman courts as arenas of social power, not neutral justice, which we could argue about the American criminal legal system. On the question of justice, advocates today, even if they have not read Cicero’s Murder Trials, know that American courts are not places of neutral justice, and have reframed this system as a “criminal legal system,” not a criminal justice system.

There is so much to learn from Cicero’s murder trials! From it, I advised pro se advocates to thoroughly study the law, but not to think that their knowledge and understanding of the law, as laypersons, would be respected by the court. In other words, I knew I could lecture and debate prosecutors and judges on the felony-murder rule, but that they would more than likely dismiss me because I wasn’t a member of the Bar. I thus explained to pro se advocates that success would lie in telling a compelling story of crime and hope that the law would be fairly and favorably applied.

As a paralegal, I continued to write about crime and punishment, sending hundreds if not thousands of letters – I lost count – to newspapers across New York State. At 24, I was an expert on the felony-murder rule, having read hundreds of years of case law and commentaries. The editors of The New York Times published one of my letters on the felony-murder rule, and of course a prosecutor responded and weighed in to defend a law that the greatest legal minds have criticized as being, at the very least, superfluous (the typical over-indicting of people charged with crimes), and that it violated the legal principle that prosecutors must prove each and every element of a crime beyond a reasonable doubt instead of bootstrapping a murder onto one of the enumerated felonies that could implicate the felony-murder rule. I also wrote hundreds of editorials. Newsday published one of my editorials as a guest editor, which it entitled, “Endless Punishment is a Crime.” This editorial was about Governor Mario Cuomo granting a “cop killer” executive clemency. In it, I cited Portia’s “Quality of Mercy” speech from The Merchant of Venice. This editorial earned me my first piece of hate mail, from Hicksville, NY! I embraced this hate as an editorial badge of honor. In his letter, the hater referenced race, stating that he didn’t know what my race was, and that he didn’t care, but…. (I learned about ad hominem attacks as a 17-year-old in my first year of college! It was what small-minded people were reduced to when they couldn’t debate the issues.) For the record, Gary McGivern, the convicted cop killer, was white, and Mario Cuomo a proud Italian. My editorial had nothing to do with race. It simply spoke to the political courage of Governor Mario Cuomo to commute the sentence of McGivern so he could make an appearance before the board of parole. Normally, the board of parole would rubber-stamp the governor’s decision to be clement, but in this case, the board of parole, because of political pressure from police unions, denied McGivern release to parole supervision with the stipulation that he would reappear before the parole board in 24 months, the maximum amount of time for a parole denial.

Shortly after I penned that article, Peter J. McQuillan, a respected NYC judge, wrote a law review article, “Felony Murder and the Misdemeanor of Attempted Escape: A Legislative Error in Search of Correction” (15 Fordham Urban Law Journal 821 (1987)), using the McGivern Case as a case study. McGivern had been convicted of felony-murder, as a nonkilling accomplice, according to his attorney’s theory (story) of the crime. McQuillan, in deconstructing the case against McGivern and his codefendant, wrote that the underlying “felony” used in McGivern’s case to invoke the felony-murder rule was a misdemeanor! Misdemeanor-murder? No such thing in the annals of jurisprudence.

With storytelling now part of my legal arsenal, I started reading true crime stories to see how authors told the story of crime…and punishment.

To be continued…