ISSN 1062-7421
Vol. 12 No. 1 (January 2002) pp. 58-63.

WOULD YOU CONVICT?: SEVENTEEN CASES THAT CHALLENGED THE LAW by Paul H. Robinson. New York: New York University Press, 1999. 320 pp. Cloth $40.00. ISBN: 0-8147-7530-6. 329 pp. Paper $17.95. ISBN: 0-8147-7531-4.

Reviewed by Barry N. Sweet, Department of Political Science, Sociology, and Philosophy, Clarion University of Pennsylvania.

WOULD YOU CONVICT? is a thought-provoking book on how accurately criminal law and its application reflect our sense of justice. As the full title indicates, the book uses a case study approach, but not in the manner of a typical law school text. The book is not a collection of edited appellate court opinions; therefore, a wider audience will find it readable and more approachable. However, the seventeen cases discussed in the book do cover important legal questions that first year law students study in a criminal law course. Given the book's approach, it is most suitable for undergraduate courses on crime and criminal law.

Robinson first provides a detailed description of the parties involved and the events immediately leading up to the crime. The reader is then given a range of punishments from which to choose. The choices range from no liability to death. For some offenses the option of death seems a little absurd, such as rolling a drunk, cashing a lottery ticket found in a parking lot, and stealing a terrorist's backpack. However, the same range of choices for all the cases does provide structural consistency. The choices have little boxes next to them so the reader can check his/her selection. In some cases the reader is then given some additional information that may change his/her mind. Next the reader is shown the distribution of the preferences of several hundred other people. This enables the reader to compare his/her sense of justice with that of the population at large. Finally, the reader is told how the criminal justice system actually handled the case and what the people involved subsequently did. This latter information is particularly useful in an undergraduate course. When using a case law approach, students frequently express disappointment in not knowing the eventual outcome of a case. Robinson preempts this classroom problem.

The seventeen cases are divided into five categories, each addressing related concerns on the adequacy of criminal law achieving justice. The first category concerns the issues of intent, harm, and dangerousness. The severity of the punishment imposed by criminal law often depends on the defendant's intent, the harm caused, and future dangerousness to society. The second category concerns holding someone liable when they are ignorant of what the law requires. The third category involves defendants who have violated the law, but with possible justification or at least with positive consequences. Should these defendants be punished? The fourth category addresses cases when defendants perhaps should be considered blameless because of something unique about their situation or the particular
circumstances of their alleged violation. The final, and fifth, category concerns defendants who have

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experienced unusual external influences on their psychological makeup. Consequently, they commit crimes and represent a possible ongoing threat to society. Should these individuals be excused for their behavior and therefore remain a threat to society? Should they be punished for behavior that is beyond their control? Or should there be some intermediate civil remedy that does not impose the stigma of criminal liability, but protects society?

The first category involving intent, harm, and dangerousness analyzes three cases. The first case considers two individuals who were apprehended in a routine traffic stop. When the officer searched the car, he discovered a small armory. The defendants had multiple assault weapons, thousands of rounds of ammunition, disguises, and communication equipment. In other words, they possessed everything one would need to carry out an armed robbery. It seemed obvious to the police that the defendants intended to commit a robbery. Unfortunately, the defendants had not taken a sufficient number of steps toward the commission of an armed robbery to be charged with an attempt. The author discusses the district attorney's effort to charge them with a conspiracy to commit an armed robbery, but there was no evidence
of an agreement to do so. Both were finally convicted of weapons charges and served less than one hundred days each. They even had most of their seized weapons returned to them after their release from jail. Four years later they burst into a bank and sprayed it with automatic weapons' fire. The police were summoned and there was an unimaginable shootout. There were many casualties, but miraculously the only people killed were the perpetrators. If the requirements for establishing attempt were not so stringent, this very bloody attempted robbery never would have occurred.

The second case involves a determination of what the defendants intended. It also involves the issue of a third party intervening and superseding the potentially intended harm. In this case his father-in-law shot a man during an argument over a horse. The wife came running out of the house with a gun and her wounded husband attempted to take it from her. In the ensuing struggle she shot the victim as well. The father-in-law's shot would have been a fatal one, but the wife's shot finished the victim off first. What did the defendants intend when they shot the victim? Did they intend to kill him? Or was the first shot fired in the heat of an argument and was the second shot fired in self-defense? Even if the father-in-law intended to kill the victim, the wife's bullet was the actual cause of death.
Should the father-in-law therefore only be charged with attempted murder? These are some of the difficult questions addressed in the case. In the end the father-in-law died before his second trial and the wife was acquitted in hers.

Robinson then explains some important principles of criminal law. The first is that the defendant must demonstrate clear intent and take sufficient action toward completion of the crime. Second, the severity of the punishment should be commensurate to the seriousness of the actual harm caused. The third case in the first section shows how the latter principle can be violated. The case involves a smalltime con man who committed one too many petty frauds. He convinced a tavern owner to write a check for $129.75 to fix an air-conditioner. He took the check with no intention of fixing the air-conditioning, but was easily apprehended. The crime occurred in Texas where there was a provision to declare someone a habitual criminal. The defendant had two prior convictions

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for stealing a total of an additional $103.36. He was subsequently sentenced to life in prison. After many appeals and much media attention, the defendant was released after serving about eight years. Robinson points out the incongruity of the punishment handed out in this case compared to the attempted armed robbery and homicide cases.

The second category of cases involves the old adage that ignorance of the law is no defense. This category not only considers the complete lack of knowledge as to the existence of a pertinent law, but also a misinterpretation of what the law requires. Is it fair to hold someone criminal liable for violating a law they did not know existed? Is fair to hold someone criminally liable when they reasonably believed that their actions did not violate a known law? Robinson presents the reader with four cases, where once again the outcomes do not always seem just. In the first case an operator of a personal care home props up the corpse of a former
resident for about six days. This fraud was committed in an effort to receive one more check from the state of Arkansas for the resident's care. The defendant was actually owed money for care she had previously provided. There was no codified law on the books dealing with the mistreatment of a corpse in Arkansas. However, the operator was convicted under a common law provision against treating a body indecently, even though she had no notice of the law. In the second case a corrections officer was convicted of a weapons violation, when a reasonable interpretation of the law would suggest he could carry a weapon. Robinson even provides fifteen pages of relevant New York criminal statutes to demonstrate the law's ambiguity.

In the third case a man failed to provide adequate care for his elderly mother, despite the fact that he was living with her in her home. She died a gruesome death and he was charged under a statute that prohibits causing serious bodily injury to an elderly person. Since her injuries were the result of what he didn't do, rather than what he did do, he was also charged with violating a common law duty to provide care for his mother. The defendant was convicted, but the conviction was overturned on appeal. The appellate court stated that the defendant did not have an affirmative duty to care for his mother. It is hard to square this case with the first one. In the first instance the defendant is convicted under the common law, in the second the defendant is absolved of common law criminal liability. The
fourth case involves ignorance of a statutory requirement to turn in all lost property worth more than $3.00 to the police. A mother and daughter find two lottery tickets in a parking lot that is worth $10,004.00. The rightful owner comes forward, but the police refuse to get involved. Robinson discusses the potential problem that may occur when officials choose not to enforce the law. The criminal justice system's failure to predictably and uniformly apply the law can cause it to lose respect and, therefore, effectiveness.

The third category of cases examines situations when the defendant knowingly violates the law but felt that he had justification or there were unexpected positive consequences. In the first case a nineteen-year-old man was convicted of burglary and sentenced to three years of imprisonment. He was sent to a correctional facility where the average inmate was a second offender and six years older. The defendant was repeatedly raped and threatened with rape. He finally escaped from the prison to avoid the sexual assaults.

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He was quickly captured and charged with escaping. Was his escape, which was a violation of the law, justified given the terror he faced in prison? Robinson explains that the justification defense requires that the defendant's actions be both necessary and proportionate. Therefore, escaping would have to have been the only way to avoid the sexual assaults. Furthermore, the harm caused by the escape would have been less than that caused by the rape. The defendant was convicted of escape and sentenced to three additional years. The conviction was upheld on appeal. This case attracted media attention, and the Missouri governor commuted the defendant's sentence after one year. The Missouri criminal code was also modified to possibly allow a justification defense under the circumstance in this case.

The next two cases provide a comparative perspective. In the first, a German apple farmer, during the economic collapse in post-World War I Germany, fired a shotgun in the direction of two thieves in his orchard. Because of widespread hunger in the cities, farmers had an ongoing problem with thievery. One of the thieves was seriously wounded. The farmer was charged with intentional assault, but pleaded a justification defense. Robinson reiterates the requirement that the defendant's actions must be both necessary and proportionate. The farmer is acquitted, but Robinson explains that under American law, and probably contemporary German law, the defendant's actions would not be considered proportionate. Shooting someone for stealing apples is not justifiable. The last case in this section is rather unusual. The defendant did something that was wrong and without even thinking it was justified. A drug addict and petty thief stole a backpack at a Tel Aviv beach only to discover that it was a terrorist bomb. He notified the police and it was defused. Many lives were undoubtedly saved because of the defendant's criminal act. Was the defendant's conduct justified because it avoided greater harm? Or must the defendant originally have engaged in the conduct because he believed he was preventing a greater harm? Robinson indicates that in the United States, unlike Israel, the defendant must reasonably believe his actions are justified before he acts. Consequently, in this case the defendant was not charged.

The fourth category consists of four cases where the defendants do something that is clearly wrong, but because of their unique situations it might be more just to hold them blameless. In the first case, parents that clearly loved their seventeen-month-old son failed to seek medical care in time to save his life. The parents were "well below normal in intelligence" and feared that if they took their son to the doctor they could lose custody. However, the child's mouth infection was so severe that any reasonable parent would have sought medical attention. The parents were charged and convicted of manslaughter for negligently failing to provide their son with necessary medical care. They were given probation. Should they have been held to a reasonable person standard or a standard befitting someone with their level
of intelligence?

The second case involves a battered spouse syndrome scenario. A woman, who had been brutalized by her husband for years, fatally stabbed him in his sleep. She was tried for murder and argued reasonably mistaken self-defense. She was convicted of manslaughter, which she eventually pled to after an appeal and remand. She received a suspended sentence. Robinson provides a thorough discussion of

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the difficulty of achieving justice in a case like this. The survey of readers indicated a high level of dissonance in terms of guilt and the appropriate punishment. This case would undoubtedly stimulate classroom discussion.

The last two cases in the fourth category involve defendants who were set up. In the first of these cases, a man in Britain, with pedophilic tendencies, was drugged and led to a bed with a drugged minor in it. Pictures of the encounter were taken for blackmail purposes. The pictures ended up in the hands of the police and the defendant was charged with an indecent assault on a minor. The defendant was convicted, which was upheld by the House of Lords. Robinson discusses how the loss of control due to insanity or involuntary intoxication is handled by various American states. The second setup case took place in Reno, Nevada. The police, in an effort to reduce the crime rate in Reno, setup a decoy operation. An officer posed as a passed out tourist on the sidewalk with money hanging out of his pocket.
Eventually the defendant came along and took the money. He was arrested and it was discovered he had at least twenty-five prior arrests. The defendant was charged with grand larceny. An appeal was made to the Nevada Supreme Court on the appropriateness of an entrapment defense. Robinson provides a brief discussion of entrapment defenses and the issues that can be considered, such as the defendant's prior record and criminal proclivities, and the nature of the police conduct. A comparison to the John De Lorean case at this point in the book would have been helpful.

The fifth, and last, category examines three cases where the alleged criminals had endured an extremely challenging environment. The first case involves a seventeen-year-old American soldier, Richard, who was captured by Chinese troops during the Korean War. He was brainwashed and then defected. He became a propaganda tool for the communist Chinese. Three years after the Korean War, he finally returned home and was charged with aiding the enemy, an offense punishable by death or up to life imprisonment. Richard wasn't alone and the Supreme Court stepped into the fray stating that discharged servicemen could not be prosecuted by the military. Those who were longer in the service had to be prosecuted by the Department of Justice. The Justice Department decided not to prosecute. Luckily for Richard, he had been dishonorably discharged and therefore was not prosecuted. The military did prosecute non-discharged servicemen and sentenced some to life in prison. Should the fact that these men underwent brainwashing or coercive indoctrination absolve them of responsibility for their actions?

The facts in the second case are even stranger than the first. Hippie parents living in a San Francisco commune allowed their five-year-old son, Alex, to come under the influence of a pedophile named Tree Frog. By the time the boy was seven he was virtually Tree Frog's girlfriend. His parents gave the sex offender custody of him when he was nine. Tree Frog and the boy left the commune and lived in an old bread truck. When the boy was seventeen, he and Tree Frog kidnapped a girl less than three years old and sexually abuse her for ten months. This horror only stopped because the police caught them. Tree Frog was convicted of numerous offenses and sentenced to life in prison. Robinson poses a difficult question. Would it be just to hold Alex criminally liable for his actions in the bread van? He
had basically been under Tree Frog's demented control since he was five years old. Alex ended up serving eleven years of

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a twenty-five-year sentence. The reader is left wondering about the liability of Alex's parents.

Sadly, the facts in the last case in the book are all too familiar. A young boy named Robert was born in Chicago to a woman who was a drug addict and a prostitute. His father was either in jail or selling drugs. By first grade Robert was stealing cars and money. By eighth grade he had joined a Chicago street gang. When Robert was nine, he committed his first known armed robbery. At age eleven, when Robert's rap sheet already had twenty-three felonies on it, he was ordered to murder a rival gang member. Later in the same day, still under orders, he murdered again. He was now wanted for murder. Before the police could apprehend Robert, his own gang executed him. Robinson asks the reader to compare the last two cases. If the authorities had caught Robert before his execution, how should he have been treated? Given his horrendous environment, would it be just to hold him criminally liable for his actions?

In conclusion, WOULD YOU CONVICT? forces the reader to think about some of the toughest questions concerning the purpose of criminal law. What exactly does the law attempt to punish, intent, harm, or future dangerousness? How do we know what defendants even intended? Should we hold someone criminally liable for violating an ambiguous law? How can we make laws less ambiguous? When should we not hold someone responsible for breaking the law? If there is any weakness in this book, it is Robinson's occasional criticism of the amount of discretion that is given to prosecutors and judges. Robinson acknowledges that this discretion is frequently used to achieve justice, but argues that more carefully crafted statutes could achieve the same thing. Perhaps in some instances, Robinson is correct. However, the law cannot be written with enough foresight to handle every contingency. Prosecutorial and judicial discretion are sometimes abused, but
it is essential in the attempt to achieve justice. Overall, the book is thought provoking and would be an excellent text to stimulate classroom discussion in a criminal justice course.

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Copyright 2002 by the author, Barry N. Sweet.