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Bat-Shit Crazy or Just Good Lawyering in North Carolina?

Steve Russell
11/7/15

I’ve always thought that American lawyers would better serve the profession if, like English barristers, they could at any time be called upon to argue for either side, even in criminal cases. I did try to get prosecuting experience before becoming a judge, but my hiring was nipped in the bud by a prosecutor I had offended by what he considered an overly aggressive defense tactic, calling him as a witness in a pretrial hearing.

In my jurisdiction, two prosecutors have lost their law licenses and a third had to move to the South Pacific to find work because of overzealous prosecutions. This September was a hard month for prosecutors in the news.

The Guardian reported on a couple of teenagers in North Carolina—reported by name but I see no reason to repeat the names and much reason not to—who drew felony prosecutions for possessing naked pictures on their smart phones…of themselves. They were both 16. He actually had one photo of her and the rest were his own. She had nothing but her own photos and still faced the same charges, sexual exploitation of a minor. They were charged with sexually exploiting themselves.

Both kids copped plea deals for misdemeanor probation. Failure to cop a plea would risk felony prison time and a lifetime on a sex offender registry because they were apparently involved in “sexting.”

The research I’ve read shows about 30 percent of teenagers engage in sexting at least once.

Even more absurd, those two kids actually having sex would have been perfectly legal, because they were both over the North Carolina age of consent—but some rocket scientist decided they needed to get charged with felonies for taking naked selfies? Does North Carolina IQ test prosecutors?

A more distinguished prosecutor, Roger Adelman, 74, walked on in September from congestive heart failure. By all accounts, he was a fine lawyer. As an Assistant U.S. Attorney, he participated in the Abscam prosecutions, cases seldom remembered now. At the time, 1978-1981, the idea of FBI agents trolling Congress with bags full of money and fake Arab accents seemed hilarious—until the silly game of dress-up sent six House members and a Senator and a number of state government small fry off to the Club Fed.

Abscam should never be discussed without noting the two congressmen who were on video being offered huge sums and refusing: John Murtha (D-Pennsylvania) and Larry Pressler (R-South Dakota). Pressler actually turned in the FBI agent to the FBI for attempting to bribe him and, upon being called a “hero,” famously remarked, “What have we come to if turning down a bribe is heroic?”

Unfortunately, Adelman the lawyer will be remembered not for the public corruption case that he won but for the case he lost: the prosecution of John W. Hinckley, Jr. for shooting President Ronald Reagan and his Press Secretary, Jim Brady, as well as two law enforcement officers.

The jury verdict that Hinckley was not guilty by reason of insanity because he thought he needed to shoot the President to impress Jodie Foster led to a wholesale revision of federal insanity law, a revision few believe improved it. It also led to a genre of “humor” attributing otherwise inexplicable actions to the purpose of impressing Jodie Foster---e.g., Why did the U.S. invade Grenada? To impress Jodie Foster.

The final punch line must have been when Ms. Foster came out as gay.

So Roger Adelman walks on primarily remembered for the case he lost, in spite of Hinckley’s writings after the trial showing he was still pathologically obsessed with Ms. Foster and a search of his hospital room six years later turning up evidence that the obsession continued. That is, under the law at the time, the jury verdict was correct, but the fact that Hinckley was crazy did not mean Adelman could dump the case. One of the victims was the President, for crying out loud!

Roger Adelman, a skilled lawyer, was not skilled enough to convict a man who was not legally responsible for his crime. Nor is Adelman responsible for the public outcry and monkeying with insanity law that followed the jury’s verdict.

Most people will, as an abstract principle, agree that (for example) a person who kills genuinely believing the killing necessary to foil an attack of space aliens belongs in a mental hospital rather than a prison. “Winning” an insanity plea can lead to the “winner” spending more time locked up than he would have if convicted of the crime, because a person found criminally insane does not walk free until enough doctors are willing to stake their reputations that he’s no longer a danger to others or to himself. Hinckley’s still in the hospital over 30 years later, although he does get released to visit family now while wearing a GPS device.

In the abstract, people would acquit the hero of the imaginary interplanetary war or maybe even the crackpot obsessed with a movie star who thinks he can become somebody by killing a famous person. Reagan’s shooting was not political. Hinckley stalked Jimmy Carter first, because any POTUS would do.

In a concrete case, however, it’s near impossible to persuade a jury that somebody was totally delusional. They could be faking. The doctors are all hired guns. Jurors don’t want to look gullible. The concrete insanity case is a heavy and expensive lift, and it worked for Hinckley because his parents were wealthy. But it did help that Hinckley was batshit crazy.

My jurisdiction instructs prosecutors that their job is “not merely to convict, but to see that justice is done.” That instruction has fallen on deaf ears many times. Popular election of prosecutors, like popular election of judges, creates obvious disincentives to seeking justice in a notorious case. In death penalty cases, the need for justice is greatest but so is the political pressure to turn a blind eye to justice when the public is objecting to your salary on the ground that a length of rope at the hardware store is cheaper.

Roger Adelman’s career teaches that a prosecutor who did nothing wrong can draw an unlucky case and be remembered unfairly. The un-named prosecutor of teenagers in North Carolina makes me wonder if having to work the other side of the docket now and then might teach a lesson about abuse of power? Or it could be that the prosecutor in North Carolina is just batshit crazy,

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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