I understand the wide spread revulsion in the wake of Judge Timothy Van Akkeren's decision to set aside a jury verdict finding Mitchell Pask guilty of felony child enticement. Pask appears to be a seriously bent individual and it seems absolutely clear that he intended evil when he tried to lure a nine year old girl into a park shelter. If Pask does go to jail behind this, most people would instinctively feel that he deserves it and that Sheboygan is that much safer.
But, as the lawyer-cliche goes say, hard case make bad law. The power of the state to lock people up is an awesome thing so we are careful about how we exercise it. While all of us are influenced in this by Pask's prior criminal history, we don't quite trust ourselves to give a defendant's prior criminal history the proper amount of weight and generally do not allow it to be considered on the question of guilt.
When, as here, we propose to punish people for an attempted crime, we generally require not simply that they intended to do it, but that they take some step toward the deed.
Finally, we construe and apply criminal statutes strictly. If the elements of a crime are A, B and C, we require that all of them have been done and it doesn't count if you almost did C or did something that was not C but was an awful lot like it.
In this case, there seems to be no doubt that Pask had the requisite bad intent. But it was still Van Akkeren's job to make sure that there were facts upon which a jury could have found that Pask tried to entice the little girl into a "building ... or secluded place."
I don't know enough about the case to say whether there were or were not. I don't know, for example, whether the jury was instructed or the prosecution even argued that the park shelter was a "building." That seems a bit counter intuitive, so my guess is that they did not.
Was the park shelter (or the area surrounding it)secluded? The instruction to the jury was that the area be screened or, and this may be where he erred, remote from others.
The jury thought so but you can imagine a completely incongruous verdict. Say someone was trying to get a little girl to sit next to him on a bench in Times Square at noon. That is really creepy but, if a jury came back with a guilty verdict, you'd have to set it aside. The law doesn't apply to mere creepiness or bad intentions.
Of course that wasn't this case and I think its far from clear that this park shelter could not be considered remote in the context of this case. Were others around? Might it not have provided him with enough protection from observation that it a jury could reasonably conclude that it was secluded? Does the mere possibility that, if someone had been in the right place, they could see into the shelter or that someone could have been traveling down a road a few feet away preclude a guilty verdict in all cases? What of one juror's claim that there were hiding places in the immediate vicinity of the shelter?
All of this needs to be considered in light of the fact that it is not the judge's job to substitute his judgment for that of the jury. The question he must ask himself is whether, given the applicable legal standard, they could have concluded he was guilty and not merely whether, had he been on the jury, he would have agreed.
It would not surprise me if the judge was a bit overweening in his application of the statute, but I can't say that right now. I will say that this video by Steve at No Runny Eggs does not convince me that he was right. (H/T: Jessica McBride.)
All of this does reflect the fact that there are aspects of our criminal justice system that seem counterintuitive and that can, in given cases, make people very uncomfortable. When people ask me, as my wife just did, what will happen if Pask is freed but goes out and rapes someone, I have no response but to say that it would be horrible.
But this is the way the law works and, believe me, you wouldn't want it any other way.
Of course, Van Akkeren's actions should be subject to public scrutiny and comment. Lefty bloggers who sneer at those who are concerned by what happened here are indulging in a bit of elitism and ignoring some real tension between what seems right in a particular case and the need to maintain a system of criminal justice that appropriately limits the power of the state to lock people away. People feel that tension and it does little good to tell them that they are ignorant for it.
But, when we are assessing judicial conduct, we have to keep in mind what the law requires even if we wish, in this case, that it did not.