‘The Jurors Erred’ Anthology: State (of Florida) v. Zimmerman

About the Collection

“The Jurors Erred” anthology will include commentary about the outcomes of proceedings that were, in my opinion, erroneous as a matter of law or as a matter of morality, or both. Many of the proceedings in the collection would have been publicized by the media, but I will even include those that are discussed in remote legal corners of North America (Canada will not be neglected). The collection will contain both criminal matters and civil matters/litigation. As I diligently attempt in all of my posts, I’ll share my commentary in plain English—I will try—but I cannot guarantee the absence of legal jargon. Keep in mind that I have not compiled erroneous outcomes because they were later overturned by appellate courts (although I may include such cases in the future); instead, this collection will be composed of cases that were erroneous in their outcome by virtue of opinion.

Three reasons why the outcome in this case is a problem:

First. There was an error as to the law—if the error did not involve both an interpretation or applicability of Florida’s self-defense statute(s) and case-law, then the error certainly involved case-law alone—in the self-defense instruction. Second. The impartiality of the fact-finder—a juror in this proceeding—was likely undermined in jury selection when a juror expressed gratitude to defense attorney Mark O’Mara for giving his explanation of the law; partiality, especially in the truth-seeking function of the trial of facts, is certainly a cause for appeal—it is certainly a concrete concern on which to have the judgment vacated (or “lifted” in non-legal terms), and a re-trial to be mandated by an appellate court. Third. Juror B37, during an interview with CNN’s Anderson Cooper, admitted that the “roles changed” when she asked the question “who do you think the aggressor was?” Juror B37 then elaborated by explicitly saying that the victim had been followed, “… and then Trayvon became angry and aggressive” (which, to my conjecture, means that the aggressor was initially the Zimmerman, and then the “roles changed:” Martin became the aggressor). Juror B37’s admission is important because it is relevant to the case-law surrounding self-defense.

I will first offer an examination of the case-law from the Court of Appeal for the Armed Services, from a troubling case in which the defense of self-defense was invoked. I find it essential to note that the case-law in other circuits is not binding on state courts in Florida (in other words, the rulings of the appellate court for the Armed Services need not be honored by Florida state courts); I will then share my thoughts on Juror B37’s answer to a contentious question on CNN’s Anderson Cooper; and, finally, I will discuss the importance of impartiality in jury trials. Before I write further, I must confess that at the time of starting on this post (moments after the verdict was announced), I didn’t have access to record/the jury instructions—“instructions” are statements conveyed from a judge, and to the jurors, about the law relevant to the criminal proceeding—so I have not the slightest clue what self-defense instruction contained. As such, the opinions, here, about the purported error are quite tentative. It is also worth mention that any error as to the law is not exclusively the fault of the jury: rather, the error often originates from the presiding judge who would have made the error when instructing the jury; in other words, technically, if the jury is found with a basket of rotten apples (law), it was plausibly because the jury received the spoiled apples from the presiding judge—a jury usually does not conceive an error as to the law. Admittedly, the title of this collection is somewhat misleading in that respect.

(1) The “Iceberg” of Self-Defense Law

I will begin with the case-law in the Armed Services circuit—again, to remind lay readers, the decision I cite here is not binding (the Florida trial judge was not required to instruct on this) because it is not the law in the circuit, but the same reasoning can, nonetheless, be used to make an argument. The U.S. Court of Appeals for the Armed Services—a tribunal composed of civilian judges, not military judges—ruled to uphold a court-martial conviction in an appeal where the appellant, a lieutenant, was the “initial aggressor” (opinion of the three-judge majority). While serving in Iraq, Michael Behenna shot and killed an unarmed detainee, Ali Mansur, during an interrogation he conducted without authorization. The non-military appellate judges found that Mansur’s alleged aggressiveness (attempting to strike Behenna with a chunk of concrete and reach for Behenna’s firearm) is not probative or valuable, because Behenna was the initial aggressor: “even if we assume that Mansur lunged for [a]ppellant’s pistol and [a]ppellant feared that Mansur would use the pistol if he was able to seize it, because [a]ppellant was the initial aggressor… [a]ppellant lost the right to act in self-defense… .” (majority opinion). The opinion further held that Mansur’s aggressiveness was a reaction to circumstances in which Behenna had all of the control, not Mansur. Mansur was involuntarily blindfolded; Mansur was involuntarily transported to a remote location; and, Mansur was involuntarily stripped of his clothing except for sandals. Conclusively, it was Behenna who “brought about” the circumstances “that resulted in the necessity to kill another” (majority opinion). The majority emphasized that, regardless of whether both parties were aggressive, the initial aggressor was the defendant—and that role, in and of itself, precludes the defendant’s entitlement to self-defense. I find it particularly important, especially here, that the majority opinion stated “[the accused] brought about a [situation] that resulted in the necessity to kill another.” To elaborate, although it may have been necessary to fire upon Mansur when he was attempting grab the firearm, it only became necessary to do so because of Behenna’s conduct—because Behenna defied an order, which was to return Mansur to his dwelling; because Behenna led Mansur and the convoy to a secluded area; because Behenna blindfolded and stripped Mansur; because Behenna verbally threatened Mansur with his life; and, because Behenna withdrew the firearm and aimed it at Mansur.

What seems quite analogous between Behenna’s case and what transpired between George Zimmerman and the victim, Martin, is that the both parties were, evidently, aggressive at some point during the ordeal. However, Zimmerman, I argue, was the initial aggressor by virtue of the surveillance and approach: he followed, by vehicle, and approached, after exiting the vehicle, the victim. The reason for the resulting fracas between Zimmerman and the victim, before the victim’s death, was because Zimmerman approached someone who had been exercising his liberty to go on about his routine without impeding on the liberties of another. It was Zimmerman who created a situation that resulted in the necessity to take the life of the victim—not the victim, who might have been responding to what he believed to be an impending dangerous confrontation with a stranger. Had it not been for Zimmerman’s erroneous judgment to follow and approach the victim, the victim would have safely reached his destination (given no other impediments); were it not for Zimmerman’s conduct, the violent outcome would have been prevented. Again, Zimmerman instigated the sequence of events that resulted in the unfortunate loss of life. Regardless of whether it was necessary, at some later point, to discharge the firearm into the victim (and regardless of whether Zimmerman felt threatened by the physical altercation), Zimmerman instigated the entire ordeal, and as such, he cannot be entitled to a self-defense instruction.

Zimmerman proponents would probably refute my arguments by citing Zimmerman’s contention that the victim was being suspicious. And I would refute such a contention. According to juror B37, the suspicious conduct purported by the defense was that the victim had been “stopping to look around at homes;” the victim had been meandering (“walking with no sense of where he was going” in the words of the juror) “on a rainy night.” First and foremost, there is absolutely nothing to corroborate these contentions, and reverse onus would require the defense to yield proof as to the purported reasons for suspicion—for all we know, Zimmerman pursued the victim merely because his head with covered with a “hoody.” However, assuming Zimmerman’s account was truthful; there was no reason to be suspicious. The only detail that is remotely suspicious was that the victim stopped, on a few occasions, to look at homes; yet, unless someone walked onto private properties, and peeked through the windows (a “peeping Tom”), how is that suspicious? The victim could have been looking around to establish a sense of direction, by recognizing familiar landmarks or buildings: firstly, the victim was unfamiliar to the neighborhood (Zimmerman even admitted to not recognizing him); secondly, the victim had been meandering about, apparently “with no sense of direction,” which suggests that he was lost/unfamiliar with his surroundings. I may be downplaying the significance, but citing weather—that it was raining—as a reason to be suspicious of someone’s presence is not only frivolous, but it is most certainly, as this tragedy attests, dangerous. If such doings can be deemed suspicious, then I am left to wonder what host of other harmless conduct can be included in that characterization. It is as if the standard of suspicion has been reduced to “nonexistent”—that, in essence, anything you do, and the time at which—or the climatic conditions in which—you leave the security of your home, can be suspicious.

(2) A Juror’s Contradiction

On the 15th of July, Juror B37 appeared in an interview with Anderson Cooper. When asked “who do you think the aggressor was?” she responded by stating: a. that the role of the aggressor “changed;” b. that, initially, the aggressor was the defendant, Zimmerman; and c. the remaining five jurors had the same opinion. It is perplexing that the five jurors, even after finding that Zimmerman was the aggressor who initiated the entire ordeal, voted to find that he acted appropriately. If they had voted to absolve him because the state’s evidence had not met the standard of proof—beyond a reasonable doubt—to secure a conviction, then one might find some satisfaction there. However, the state’s case met the standard of proof because, despite the unanswered questions, there is no reasonable doubt with regard any to the elements to befit the crime with which Zimmerman was charged. First, there is no reasonable doubt as to who pulled the trigger; second, there is no reasonable doubt that the entire ordeal occurred in the spur-of-the-moment, because Zimmerman had not calculated and planned the ordeal beforehand (hence, murder-in-the-second-degree); and third, there is no reasonable doubt as to whose conduct—Zimmerman’s or the victim’s—initiated the ordeal. Juror B37 and her colleagues, again, conceded that Zimmerman was the initial aggressor, and that is all that matters. Connect all the dots: Zimmerman had intent by simply pulling the trigger—there is no doubt that he had done so—; Zimmerman had acted in the spur-of-the-moment when he approached and confronted the victim—there is no doubt that he had acted in such manner; Zimmerman started the sequence of events resulting in death—and there is no doubt that he did so. It does not matter that the victim subsequently, that is, after Zimmerman, became aggressive; it does not matter if the victim was reaching for the firearm, as Zimmerman asserted; and it does not matter which one was atop the other, something that was robustly and endlessly disputed at trial. The answers to the unanswered questions do not change the fact that: a. the initial aggressor was Zimmerman, b. the conduct occurred in the spur-of-the-moment; c. intent existed on the account of Zimmerman discharging the firearm, at point-blank range; e. because the Zimmerman was the instigator/provocative, he is not entitled to self-defense; and therefore, d. Zimmerman is criminally liable for the consequential loss of life.

Again, to emphasize, Juror B37 revealed that she, and five other jurors, believed the aggressor, initially, was Zimmerman; despite such belief, the entire jury concluded that Zimmerman was entitled to self-defense because Zimmerman’s initial aggression subsequently provoked the aggression from Martin? If that is what the jury believed, they have sanctioned ‘murder-by-provocation’ (obviously fictitious). The outcome seems completely contradictory to the reasoning of the majority of the judges in Behenna’s appeal. The reasoning in support of the ‘Behenna majority’ is not ingenious or novel: one cannot harass, pursue or provoke another, to induce the other to become aggressive, and then, climactically, in the heat of the moment, maim or deprive the person of his/her life under the guise of self-defense. That would be legally-sanctioned murder; and I am almost certain that is not what the Florida state legislature, or any state legislature in the union for that matter, intended when it voted to enact a self-defense statute.

(3) Impartial Fact-Finding

Piecing together the facts-of-the-matter, especially in complex and lengthy matters, is a particularly meticulous process that requires an elevated attention and commitment to detail. An impediment to the proper utility of a jury—fact-finding and, ultimately, determining the truth of any matter—is partiality. Partiality can manifest in several ways—owing to the rigor of jury selection, the least likely manifestation would be that a juror has a familial or occupational relationship with a party. But even after jury selection is adjourned, an empanelled juror may lose his or her impartiality, or, in lay terms, become “fouled” or “polluted.” In such case, the result would be a partial verdict because one, or many, juror(s) would have rendered a vote made on considerations other than considerations of the testimonies, counsel’s monologue, and instructions—as indicated on the record—presented before him/her/them. Improper considerations can include anything other than the items on the preceding list (although the list is not exhaustive). During the post-verdict press release, defense attorney Mark O’Mara was asked by a reporter (I’ve lapsed to remember her name) about his interaction with a juror—a juror specifically showed gratitude to O’Mara for “[his] explaining of the law.” It was a question to which O’Mara replied “I don’t remember someone coming up to me and saying ‘thank you’… .” Not surprisingly, O’Mara refused, unimaginatively in my mind, to even suggest that a juror’s impartiality was lost. (He could have whipped-up a better response than the typical “I seem to be suffering at the onset of degenerative amnesia” and so “I don’t remember [something that happened two months ago.]” or perhaps the attorney is in a state of denial because of regression? I’m not a psychology major.)

Why is this significant? So what if a juror said something along the lines of “thank you for explaining the law?” It does matter. It occurred during jury selection. That juror had a favorable and partial opinion of the defense counsel, before being presented with the case’s discrepancies and being entrusted with her fact-finding task. Even if the expression of gratitude had no conscious influence on decision-making of that juror, it must have had an unconscious influence: perhaps it rendered her predisposed to finding in O’Mara’s favor. The nature of that juror’s interaction made it more likely for her to accept the defense counsel’s contentions, regardless of substance. The very reason for isolating jurors out-of-court, and for the duration of the proceeding, is to avoid exactly that sort of impropriety—interactions that result in a juror voting on the basis of first impression, without being presented anything, and not on the substance of the counselor’s oration and other due considerations.

Granted, there is seldom a jury pool that consists of completely neutral jurors, because, often, the jurors’ backgrounds make them innately biased—the purpose of jury selection is to “weed-out” those whose biases are so great that such biases may unduly skew the outcome, and detracts from the “fair” aspect of the trial of facts. However, the issue here is not the nature of a juror; instead, the issue involves an improper interaction that rendered an-otherwise-impartial juror, partial. Had that one juror been impartial, the result could have been a mistrial (and potentially re-trial), instead of an acquittal brought about through undue influence. A six-member, uni-gender, jury with a spoiled juror is not at all fair.

(4) Conclusion

To conclude, if this outcome has demonstrated anything, it is that from time to time justice has its hiccups. Zimmerman should not have been acquitted: through the case-law I’ve cited here, Zimmerman cannot be entitled to self-defense; it was revealed that a juror—at least one—eroded her impartiality through improper interaction with the defense counsel, which likely caused her to shade her view in favor of the defense before the trial commenced; and juror B37 found that Zimmerman acted appropriately despite the belief that he was the initial aggressor; the case-law in another circuit is, and correctly held in my view, that such aggressors cannot be entitled to self-defense. Although acquittals are seldom reviewed, I believe those are compelling reasons to do so here—a remedy for the hiccup is my recommendation; it is the closure of which the victim’s family is deserving, and the observance of law and righteousness to which Trayvon Martin is entitled.

© 2014 THE ADVOCATE’S GAVEL (licensed under CreativeCommons)


‘The Jurors Erred’ Anthology: State (California) v. McInerney

About the Collection

“The Jurors Erred” anthology will include commentary about the outcomes of proceedings that were, in my opinion, erroneous as a matter of law or as a matter of morality, or both. Many of the proceedings in the collection would have been publicized by the media, but I will even include those that are discussed in remote legal corners of North America (Canada will not be neglected). The collection will contain both criminal matters and civil matters/litigation. As I diligently attempt in all of my posts, I’ll share my commentary in plain English—I will try—but I cannot guarantee the absence of legal jargon. Keep in mind that I have not compiled erroneous outcomes because they were later overturned by appellate courts (although I may include such cases in the future); instead, this collection will be composed of cases that were erroneous in their outcome by virtue of opinion.

Of all the criminal proceedings I have encountered either in print or on television, one particular outcome has evoked a sense of dismay and disappointment in me. For that reason, I would place that case of the ‘Valentine tragedy’ in the anthology of monstrous, ‘jurors-erred,’ products of the criminal justice system. That category includes, to list a few, the highly-publicized: O.J. Simpson, Casey Anthony, and most recently, George Zimmerman (which I wrote and opined about here) criminal trials. The tragedy here entails Lawrence King, a homosexual eighth-grader and his classmate, Brandon McInerney. For those who are unfamiliar with the case: King became the victim of a brutal and heinous crime when, while in the classroom, McInerney allegedly upholstered a firearm and discharged it onto the back of King’s head—fifteen-year-old Lawrence King had been barbarically murdered before his eighth-grade classmates. The reason, everyone would later learn, is that King made a perceived advancement when he asked McInerney to “be [his] valentine.” The defendant guided his conduct on the perception that King had made a romantic advancement. Defendant, McInerney, was recently tried in a California state court when he entered legal adulthood. At the conclusion of the proceeding, a mistrial was declared since the jury was unable to reach a unanimous decision as to whether the defendant was culpable. The revelation that a jury could not establish a consensus—which strongly suggests that a few or several jurors took up the position of the defense counsel—is worrisome and has left me in state of dismay. I was further baffled to learn that some of the jurors’ audacity to wear “Save Brandon” bracelets.

What is perhaps the most disturbing aspect of this mistrial is not the heinousness of the crime itself, but the outcome espoused by the defense counsel’s outrageous justification. The defense posited that their client reacted appropriately to a problem: a perceived sexual/romantic advancement. It is very troubling that a reasonable fact-finder could find that the defendant was merely reacting to resolve a problem, in which defendant’s perception was appropriate; and for which the resolution—to take the life of his admirer before the eyes of a host of other eighth-graders—was reasonable. Arguably, in the mind of a reasonable person, King’s proposal to the defendant—to “be [his] valentine”—could be perceived as a romantic advancement; and that, to those whom are anti-homosexual, the proposal could be perceived as problematic. However, to respond to such a minor and, undeniably, non-life-threatening problem with an act as extreme as to take the life of another—to viciously murder Lawrence King—is to convey an abhorrent indifference to the inherent dignity and natural rights of his/her being; such a response to a perceived problem and condoning it are, I argue with utmost conviction, a testimony, a contemptuous illustration, of the moral-desensitization and numbness that has become of America (where “ironic-living,” as Christy Warmpole described it in her eloquently-written NYT column, is pervasive). We are the subject of laws, we retain the natural rights and dignity, which exist, innately, in each of us, and we are afforded legal rights: and under these we shape and guide our daily conduct and map our entire life. The basis of our conduct is not, and ought not be, this debacle of a performance, this jury’s fiasco, that resulted in a mistrial. In short, our existence occurs at a time when the observance of law exists—even when we are not conscious of it—routinely in life, we do not live by fiats propagated by overzealous defending and unheeding jurors.

The result—aroused, in turn, by the ‘perceived problem’ defense—unfolded in contradiction to the most basic concept of civility; a concept that is taught as early as pre-school through seemingly minuscule collaborations such as sharing: that we treat one another with fairness and respect, even in conflict resolution. The jurors who accepted this defense elected to dangerously perpetuate a culture of violence that already plagues American society; they also chose to condone life-threatening violence as a means of resolving non-life-threatening conflicts. It is troubling. And, even more striking, the conflict here is not any conflict, but one that arose during the elementary phase of schooling—at a time, and in an institution, that ought to be devoted to teaching and imparting responsibility, civility, and cohesion in an ever-growing sphere of diversity: in ideas, in appearances, in experiences, and in backgrounds. The outcome here does not serve to perform justice for the innocent and young victim, nor does it exonerate one accused in bad faith—it serves only to subvert the ideal of achieving a tranquil cohabitation, despite the arrant differences that are natural and inherent among us.

There is a clear—common sense—explanation for all that is wrong and crooked with what happened to King and the aftermath. What it all boils down to is: someone expresses their admiration of you, you either feel flattered or perceive a problem; but when, if ever, has fair conflict mediation and resolution, or even common sense, taught us that perceiving a problem justifies bringing a firearm into a eighth-grade classroom and ridding your problem with the pull of a trigger? When has mediation and arbitration advocated for the utility of violence in conflict resolution? And now, as a matter of consequence, the defendant’s conduct has not only impacted the lives of all who were intimate with victim, but his conduct has likely traumatized the other eighth-graders who witnessed the graphic passing of a classmate—and in doing so: their childhood innocence, their peace-of-mind, and their liberty to be free from all that is psychologically harmful, was stripped away from beneath them, like the young life of Lawrence King, at the selfish behest of a monster.

© 2013 THE ADVOCATE’S GAVEL (licensed under CreativeCommons)

Alternative Democratic Methods: A Response to Deposed Morsi

Egypt’s deposed head of state, Mohammed Morsi, criticized the anti-Morsi bandwagon for creating petition that, apparently, garnered twenty-two million signatures. Morsi contended, in a press conference, that the utility of petition to remove an elected official was “undemocratic” and that “[it] is not how democracy works.” Proponents echoed the similar concerns. I would like to retort on Morsi’s contention.

Morsi’s notion of democracy, as it seems at first glance, places elections at the forefront of ‘democratic method.’ To get an idea of what ‘a democratic method’ really means, it would be necessary to look at the etymology of the word democratic; its roots consist of the Greek word “demokratia“—which consists of the prefix “demos” and suffix “kratias,” meaning “populace” and “rule” respectively. From that, one can deduce the meaning: to govern by popular will. And it would be safe to infer that any method which governs through ‘popular will’ suffices to be ‘democratic.’ I do not see the word “election” anywhere in that etymological analysis. That is the case most likely because creating an electoral system—or voting districts (termed “ridings” in Canada)—and having the constituents —being those who reside in the district/riding—elect a representative to be conferred important civic duties such as legislating law to address the myriad of societal issues, is not the be all and end all;it is not the only method of democracy (political science majors would recognize that what I have just described is representative democracy). As it seems from Morsi’s criticisms, he believes that holding an election, at pre-established, consistent and predictable intervals, is the only method of effectively expressing the will of the majority (the populace)—that is, the only ‘democratic method.’ Not quite.

Petitions indeed reflect grievances and, like ballots and polls, they certainly depict will. So what exactly is undemocratic about Egypt’s anti-Mori petition? There are, of course, differences between formal elections, which are enshrined in law, and informal petitions, which often have no legal basis. First, unlike most petitions, elections are amply proceduralized to mitigate voter fraud or impropriety. Second, there is no risk of posing leading questions in an election; the same cannot be said for informal polls or petitions, where a leading question can mislead signatories. Third, and above all, most elections are accompanied by campaigning, moderated debates, and political discourse—a commonplace that ensures voters are informed and make informed decisions as to which candidate should sit in the highest executive office. Petitions, on the other hand, hardly contain details beyond a mere, standard-size, page or two, and often do not appear impartial; their presentation of facts may be one-sided. Such differences, between a customary elections and petitions, question the credibility of petitions; they evoke doubt as to whether the method actually depicts will—I admit, in the case of misled signatories, it would not accurately depict will. However, I argue that if the preparation of a petition is carried-out meticulously, that the petition itself is constructed with impartiality in mind—by showing every side of the prism—and if written to avoid misleading questions, then a petition would have accurately depicted will.

Most of the petitions I have encountered did not embody the criteria above, but elections are imperfect too. For one example, one aspect of elections that has been problematic in the striving for democracy is voter turnout rates. A dismal turnout would be contradictory to democratic method. If, hypothetically, only twenty of voters submitted ballots in a population size equivalent to the population of California, then is the will of the majority really depicted? If you think twenty voters constitute 51 percent of 36-million, I would urge you to quadruple-check your math. Of course such a turnout is unrealistic, although that is precisely why it is called a ‘hypothetical.’

If the proponents of deposed Morsi assert that the utility of a petition is contrary to customary practices, then I may give them that; yes, the anti-Morsi petition was probably contrary to such customs—point well taken. However, the careful and proper utility of a petition to depict popular grievance is, undeniably, a proper and arrantly legitimate practice through the lenses of democracy. I would even go further and argue that a petition can be likened to recall elections that many U.S. states permit under their state constitutions (such elections can be convened to remove an incumbent Governor). Unless Egypt’s highest law explicitly prohibits the utility of a petition to “depose” or “recall” the incumbent head of state, then there should be no other constitutional barrier. And, as I have demonstrated here, there is no ‘democratic barrier’ when striving for alternative democratic methods. Morsi should learn to embrace petitions.

© 2013 THE ADVOCATE’S GAVEL (licensed under CreativeCommons)

Prostitution Stings—An Effective Enforcement Tool or Entrapment?

Are sting operations, which involve undercover officers and a target, an effective enforcement tool or the epitome of the coercive conduct which that due process (or “fundamental justice” in Canada) seeks to prohibit?

For our not-so-legal-savvy readers, “entrapment” occurs when an agent, or officer, of the state coerces or forces a target into committing a crime with the aim of prosecuting that target for the crime; and, absent the coercion, the accused would not committed the unlawful act (see law.cornell.edu for the full definition). It might be prudent to note that coercion can be mild or severe; a simple verbal suggestion, without physical force, can entrap a person. When deciding whether entrapment occurred, it is crucial to consider whether or not the crime would have occurred if there had been no undercover officer in the picture, so-to-speak. The implications, on a broader application of such techniques (the proactive enforcement of the law), are high. Sting operations are seemingly effective tools, employed on a pervasive-basis in the United States and Canada, for combating a range of criminal activities. If these techniques are challenged, and subsequently deemed unconstitutional, new strategies will need to be explored and committed to policy—thereby having the potential to cause a sizable disruption to law enforcement, and opening a window of impunity.

The opinions I express here stem from the recent arrest of an alleged prostitute who clandestinely advertised her services under the guise of being a sausage-seller (no pun intended)—several news outlets dubbed the alleged prostitute the “Hot Dog Hooker.” Authorities in New York arrested the alleged prostitute through this very method. An undercover officer nabbed 47-year-old Cathy Scalia, the alleged prostitute, when he pretended to purchase a frank. According to a report of the incident, the undercover officer asked about her sex-for-pay services. In response, Scalia supplied the officer with her contact information and they, later, met in a hotel room; she was subsequently arrested and charged, under state law, with giving an ‘unlicensed massage’ and soliciting for sexual intercourse.

Why does the entrapment doctrine exist? I will look at case-law (judicial decisions) and principles of criminal law to give reasons for the entrapment doctrine.

(1) American Legal System

Constitutional mandate, namely ‘due process,’ prevents the states from arbitrarily imprisoning law-abiding subjects. Moreover, for the commission of a crime, all states require ‘intent’—the willful commission of the act. The entrapment defense was conceived in Sorrells v. United States (see Sorrells v. United States, 287 U.S. 435 (1932) for the judgment), and, yet again in Jacobson v. United States (see Jacobson v. United States, 503 U.S. 540 (1992) for the judgment). The concept seeks to protect an innocent person who was coerced or forced by the state’s officers to commit an offense. When we look at intent, in the lightest scrutiny, we can clearly see that a commission must be ‘willful’ (as emphasized above); in another way of expressing it, the act must result from one’s free will, and one’s desire for harm, without undue influence from the state. Someone who has been entrapped—coerced by the state—could not have acted in a such way that was consistent with his or her will and desire; to entrap someone, thus, amounts to arbitrarily imprisoning him or her, again, because—in light of the coercion—no intent existed and, in turn, no crime could have been committed.

To demonstrate that entrapment did not occur, the state must demonstrate that there was an inherent ‘predisposition’ to commit the crime; that means it must be proven that an accused would have committed the crime, even in the absence of the state’s intervention. That is not an easy task, especially when the highest U.S. court ruled that the existence of criminal history, in and of itself, cannot prove predisposition (see Sherman v. United States, 356 US 369 (1958) for the judgment). That decision is merely one among many recent developments in this jurisprudence.

(2) Canadian Legal System

Entrapment in Canada, known as ‘duress’ or ‘compulsion,’ revolves around two spheres: the same principle of ‘intent’ described in the preceding, and the Charter of Rights and Freedoms (constitutional law).

The ‘duress defense’ (or compulsion) is the equivalent of its American counterpart. In the appeal R. (Regina) v. Ruzic (see R. v. Ruzic, 2001 SCC 24 for the judgment) before the Supreme Court of Canada, Justice LeBel, writing for the unanimous court (for lay-persons: a “unanimous court” occurs when all nine justices agree with one view), wrote:

It is a principle of fundamental justice that only voluntary conduct — behaviour that is the product of a free will and controlled body, unhindered by external constraints — should attract the penalty and stigma of criminal liability. Depriving a person of liberty and branding him or her with the stigma of criminal liability would infringe the principles of fundamental justice if the person did not have any realistic choice.

As the Canadian jurists opined, and agreed, in that appeal, if the act was induced (and, ergo, not an act of free will), there can be no stigma or criminal liability (guilt) imposed on an accused. Doing so would offend the ‘fundamental justice’ guarantee. The ‘fundamental justice’ guarantee, of the Charter, is the equivalent of the ‘due process’ guarantee, of the U.S. Bill of Rights.

Conclusion: Was Cathy Scalia Entrapped?

Obviously it depends on details to which I, at this time, have no access. Given the initial media reports, it would be safe to make some inferences—at least in the meantime, until court documents and affidavits become public domain. Given the details we have, one detail that stands out is that the officer’s solicitation, by asking if sex-for-pay services were available, prompted Cathy Scalia to provide her contact information, leading up to the ‘unlicensed massage’ and ‘offer for sex-for-pay’ in a private setting. To reiterate for emphasis, even if Scalia solicited the officer, the officer solicited first when the officer pretended to purchase a sausage and inquired about the service. It was the officer’s solicitation—not Scalia’s—that instigated the chain of events that would later unfold and manifest into Scalia’s unauthorized practice, of giving an ‘unlicensed massage,’ and arrest.

The imperative question, the ‘make-or-break’ factor, is whether a predisposition existed here. The underlying question is: had the officer not inquired about sex-for-pay, would Scalia have provided her contact details and arranged to meet with the officer in private? If the undercover officer was, instead, an unsuspecting customer, would Scalia have solicited the customer? Remember: the existence of a history of solicitation—or any crime for that matter—cannot be the sole factor in showing predisposition because of Sherman v. United States (see supra). So the fact that Scalia was previously convicted for solicitation cannot be used against her.

I find that a predisposition did not exist. It is, by mere virtue of the operative’s approach—as opposed to a prostitute approaching a bait operative—coupled with the officer’s inquiry as to her services, that the predisposition must be ruled-out in these circumstances. Granted, Scalia was not physically coerced or limited to a single option—she could have the refused the officer’s advance—but it would be unrealistic, I argue, given Scalia’s socioeconomic status and prior hardship. According to media reports, Scalia is a mother of four teenage boys; her sole source of income, apparently, is selling sausages at a stand. At her arraignment, Scalia claimed the she was “[financially] broke,” and “[had] no job;” but, as some might retort, do those statements not suffice to show predisposition? Again, I answer in the negative. Any reasonable woman, having been in Scalia’s financial predicament, may have been tempted and entrapped, rather easily, into accepting an appealing offer—a decent sum of cash for an hour, or so, of sexual intercourse; and not because the hypothetical reasonable woman is a prostitute, but because she required the income and had no realistic alternative. For Scalia, and others in her unfortunate circumstances, refusing an offer by a ‘john’ is an unrealistic choice, since it will inevitably result in a lost opportunity for income and, consuequently, more hardship. These sting operations, against women like Scalia, target women of low socioeconomic status by tempting them into selling their bodies. The epitome of entrapment.

Did Scalia have the alternative choice to refuse? I opine yes. Was the alternative choice a realistic one? I opine no. Cathy Scalia was entrapped by the undercover officer. My conclusion, unfortunately, does not secure Scalia’s freedom. Her freedom hinges, instead, on the jury’s answer to those questions.

Update: No jury trial. Scalia entered a guilty plea–probably on the advice of her attorney, if she obtained the service of an attorney.

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