Saturday, September 15, 2007

Going slow on the Pask case

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.


Anonymous said...

The law's wording does not require that every site be secluded; only at the end of a list of places does it add "or secluded place."

That adjective would have preceded all sites listed in the law -- vehicle, building (such as a park shelter, in this case), etc. -- if its writers intended to require all listed sites be "secluded places."

The judge is reading more into the law than its writers intended. And any woman could tell him that we, and thus little girls, can and do get groped in plenty of places that aren't "secluded places."

Mike Plaisted said...


You provide a careful review and softly come down on the right side of the need for the state to prove, beyond a reasonable doubt, every element of the offense, including the "secluded" element. But you seem to be tip-toeing around the issue, so as not to offend your wing-nut friends, who have gone around the bend with vitriol on this, calling the judge every name in the book and jumping up-and-down about a world gone wrong.

Of those who are squawking about it, you say: "People feel that tension and it does little good to tell them that they are ignorant for it." All true, except for the professional demogouges like Belling and Sykes, who are smart enough to know very well why the judge did what he did, but decide to use this sad affair to stir up the masses anyway. It leaves many in their audience bewildered how such a result could take place and impugns the integrity of a judge who was just doing his job. The whole dust-up, driven by talk-radio, contributes to a distrust of the judicial system that is not deserved. If you want to make noise about distrusting the judiciary, Annette Zeigler is a much better case in point. But she's on the "right" side, isn't she?

I am glad that you came down on the right side of this, professor, but I would have expected a stronger voice to correct your deliberately wayward fellow travellers. Instead, you accuse us on the left of "elitism" for defending the rule of law. How about a discouraging word for your friends on the right, who not only exploit the ignorance their audience, but also misinform and create it?

illusory tenant said...

I'm not aware of any other "lefty blogger" that even mentioned it. Perhaps you could enlighten us.

Anonymous said...

Rick, it really boils down to a couple of points.
1) Secluded in whose opinion.
2) If the case was dead in the water, why did the judge let it go forward.
Mike Plaisted is hilarious. Another blubbering lib siding with the criminal and pissing all over himself. Good work Mike, say hi to George Soros for me.

illusory tenant said...

Plaisted is right on the money, and you've masterfully -- albeit unwittingly -- reinforced his point.

Mike Plaisted said...

Hey libocrat:

1. Secluded as a matter of law. A roof with four legs is not secluded.

2. As pointed out brilliantly by Prof. Blinka in the J-S Saturday morning, the judge probably let the case go to the jury because if he is not legally correct, they don't have to try the case again. The judge may have also hoped that the jury might get it right.

3. My pants are dry, thank you very much, but I do rather appreciate the protections of the law and the constitution. Silly me.

4. By the way, do you have Soros' number? I could use the bread.

steveegg said...
This comment has been removed by the author.
steveegg said...

It's late; I had one too many negatives in the first post.

Only if one believes that the ultimate, or even actual intermediate, destination was the center of that park shelter could one accept that Pask was not attempting to lure his intended victim to a place that was secluded. A 9-year-old is not going to be necessarily thinking that a copse of bushes next to a recognizable landmark, or an indentation in a roof support screened from view of the street, the playground and the remainder of the shelter, is where someone wants her to end up.

If that ruling stands, all a pervert needs to do to walk is convince somebody that the location he is trying to lure somebody is next to a secluded location rather than the secluded location he is actually trying to lure somebody.

Anonymous said...

Okay, let's actually look at the law, at how its authors constructed the sentence -- and where they placed the word "secluded":

"948.07 Child enticement.

"Whoever, with intent to commit any of the following acts, causes or attempts to cause any child who has not attained the age of 18 years to go into any vehicle, building, room or secluded place is guilty of a Class D felony. . . ."

It does not say "or OTHER secluded place." If the act occurs in a vehicle, the vehicle does not have to be "secluded." If the act occurs in a building, it does not have to be "secluded." If the act occurs in a room, it does not have to be a "secluded room."

It is misreading the law to state, as the judge did, that all sites have to be "secluded" for such acts to be crimes. You can argue that a shelter without walls is not a building or a room -- although it is built not with "posts" but with wide pillars, which are several concrete blocks wide so as to constitute a wall wide enough to obstruct others' view of a little girl behind it. . . .

But you cannot argue that, as the law is written, it requires that the adjective "secluded" be moved forward in the sentence to modify all of the nouns. (Actually, use of the word "or" before it could arguably suggest that it requires that the previous sites not be secluded.)

Language matters. It mattered to the authors of the law. It ought to matter to those who read the law.

Anonymous said...

Yes, but you are dancing around the point. Plaisted said that "[a] roof with four legs is not secluded."

The modification argument does not address this assertion.

Anonymous said...

No, I didn't dance around it -- I addressed it and said it was arguable. But nothing I have read suggests that the judge or the attorneys in the case argued that.

If they did, it's an important point and could explan a lot (as well as engender more useful discussion).

But as for your argument -- "Plaisted says"? He was not the judge, he was not an attorney in the case, and he is an onlooker, too, who seems to have simply accepted that determination. An onlooker educated in the law -- but not anymore educated in this case. In addition, again (sigh), the law does not require that all sites be secluded.

As for this site, from Plaisted's description, he hasn't looked at the structure to see the width of the "legs" or "posts," as it has been put elsewhere.

Mike Plaisted said...

Oh, but I did see the shelter in the video. You know, the shelter with what looks like a historical or informational marker right next to it --- how can it be a "secluded area" with that kind of marker drawing attention to it? With an observation deck on the outside, it looks like the centerpiece of the park. And just because there is a corner leg of the shelter that might hide part of a very skinny guy doesn't make the "area" secluded.

This is all a very interesting legal argument, but that's not what's going on on the wing-nut blogs and talk-radio. They are assuming bad faith on the part of the judge, calling for recalls and worse, claiming that the decision has no possible merit when it is very legitimate and may well stand up on appeal. The squawking has nothing to do with the decision itself and everything to do with an agenda by those who know better to stir up the masses against the criminal justice system.

steveegg said...

Mike, you might want to take a gander at what Lew Wasserman had to say:

"The juror quoted above concluded that there were seculded areas within the immediate vicinity of the shelter, which means that for this actor, the shelter was just a stop on the way to the sufficiently (for his purposes) seculded area. In other words, going from cover to cover, giving the appearance of normal behavior, before the final seculded area was surreptitiously achieved. And this is precisely what the statute prohibits - its the ultimate intent to reach a seculed area that completes the crime of enticement - even if never actually reached, and that’s exactly what the jury believed."

Last I checked, Wasserman wasn't exactly a "right wingnut".

Are you seriously going to argue that a victim has to bite all the way on the intermediate lure and then have the ultimate lure that is mere feet from the intermediate one dangled out in front of her?

Anonymous said...

I am not a wingnut or squawker, Mike, so why bring them into this? You already addressed the only one of those here. I am not looking at them -- I am looking at the law.

And I am looking to lawyers, because I really am trying to figure out why the judge ruled as he did -- as the wording of the law simply does not require that any and all sites be secluded. It doesn't take a law degree to see that, only a basic understanding of sentence construction in English, it seems to me.

So I am trying to see what I am missing beyond the wording in how lawyers read (and wrote) this law. Yet you continue to also require that the site be secluded. So, since I can't ask the judge, perhaps you can explain why you do so -- despite the wording of the law that does not do so, and despite acknowledging that reading the law as written is at least an "interesting" argument!

And yes, Steve Egg, it certainly is a site very close to very secluded areas -- not that creeps limit them selves to secluded areas, as this law apparently acknowledges. So do other laws; after all, the same guy let off on this charge is still in jail on another charge -- and as I recall, it's for groping a grown woman in a store.

Mike Plaisted said...

Again, steveegg, it is a legitimate legal argument, and Lew has an interesting take on it. One thing Lew does not do, of course, is say stupid things like this:

"Sheboygan County Circuit Judge Timothy M. Van Akkeren, if you are reading this…. You Disgust Me! Why is it you think a child molester like this scum deserves a second chance? Do you associate your self with the likes of Mitchell D. Pask? Anything you want to confess to us?".

That's Badger Blogger and pretty much takes up the tenor of the radio and blog wingnuts who have taken up the cause of...what? We know he's bad, so let's hang him already? Let's challenge not only the decision or even call him a liberal -- let's cast personal aspersions. The bottom line comes from one of BB's commenters, Bruce, who says:

"I would argue that the constitutional provision to be protected from Mitchell D. Pask should have trumped Pask’s constitutional rights, based on his history of criminality."

Well, alrighty then. To hell with the constitution, says the flag-waving vigilante. I feel safer already.

Dad29 said...

So--let's compare to another well-known case.

Toe-tapping and finger-waggling constitute "disorderly conduct"?

I'm not sympathetic to either the (ex-) Senator NOR the Sheboygan creep--but the cases seem to have parallels.

Seems to me, however, that the case against the Sheboygan creep is FAR stronger than that against the Senator.

Anonymous said...

...except that the Senator pleaded guilty and there is no indication as to Mr. Pask's stance.

Anonymous said...

There certainly is indication of Pask's stance -- the judge overturned the jury, not a plea of guilty.

Of course, he plead not guilty . . . although his lawyer admitted Pask's acts -- that is, that Pask "propositioned" or did, in the law's terms, "attempt to cause the girl to go" with him.

Just not far enough -- as then his lawyer came up with the argument that the law required that any and all areas involved be "secluded":

"I told the jury up front, I said, 'The evidence that you're going to hear is going to establish that what my client did was disgusting, it was a proposition to a 9-year-old girl,'" [Pask's lawyer] Limbeck said. "'But no matter how much that disgusts you, no matter how much you find that revolting — and what parent wouldn't — that is not the issue today, the issue is whether or not it is a crime … and even though you're not going to like it, the evidence is going to be clear that this was not a secluded area.'"

Btw, the Sheboygan Press also reports that neither in any of the preliminary hearings nor in the judge's instructions did he address the requirement re "seclusion."

Mike Plaisted said...

The judge must have included the alternative of enticement to a secluded area -- it's in the statute, so I'm sure it's in the jury instruction. It might have helped to have a special instruction on what "secluded area" meant.

The law makes a fairly serious jump between "disgusting behavior" (at most, disorderly conduct) and trying to get a child to a vehicle, building or secluded area, making that same behavior a Class D felony. The law is obviously intended to prevent people from trying to get children to a place where more serious harm can be done. That was certainly not the open-air shelter and, without proof that he was trying to get her to the tall grassy area nearby, it sounds like the judge did the right thing.

Why can't we give the judge the benefit of the doubt that he was acting in good faith? Oh, right. That wouldn't allow the kind of yipping about soft judges that the wing-nuts love to go off on, whether the facts are there or not.

Anonymous said...

Yes, I give the judge the benefit of the doubt and assume that he was acting in good faith.

But in my field -- not the law -- we start with assumptions; we don't end with them. From assumptions, we then examine evidence to come to a determination of whether even an action made in good faith was a good action.

I must misunderstand the legal process, but I thought it operated similarly -- that an attorney might argue that a client was acting in good faith, and that might mitigate a determination of what to do about it such as a fine. But it wouldn't mean that the action was okay.

Mike Plaisted said...

I understand what you are saying, Anony. But the assumption in a criminal case is an assumption (pr presumption -- same thing) of innocence. That presumption is not overcome until the state proves EVERY element beyond a reasonable doubt.

The lawyer admiting his client is a creep is not surprising. I've done it several times in front of a jury. If it was charged as disorderly conduct, he would have no defense. But the state overreached by charging the Class D felony child enticement when one of the elements could not be proved. So the argument "sure he's a creep, but the area wasn't secluded" is an excellent argument. It might have been a good case to waive the jury and try it to the judge. Same result, only slightly less squawking.

Anonymous said...

Re first paragraph, of course. And may the original intent of the Founders also be with you.

Re your second paragraph, this addresses what I also have been wondering about -- whether the judge was sending a message that this was a case of overcharging, based in part on the charge in Pask's pending case for (allegedly; see above) groping a grown woman in an undeniably public place. That charge is for disorderly conduct.

Not that a judge is a defendant in his own court of law . . . but as we can see, there is that pesky court of public opinion. So if this is the message that the judge intended, perhaps it would have helped for him to say so.

Then again, to also state the obvious, maybe he did -- as all we seem to have are media reports, not trial transcripts. However, the judge also (allegedly, per media reports) has not wanted to give interviews on this.

That's understandable, with a promised appeal -- but he is not precluded from making a careful statement of clarification, and it is more common in this state than elsewhere, since we elect more of our judiciary than in many states.

Maybe he will do so when the hubbub dies down, and the hubbubbloggers move on to their next outrage.

Anonymous said...

Plaistee is a clown. He like most liberals look for reasons to let the offender go. He knows that this guy was attempting to seclude the girl and rape her.
But as a liberal he plays games.
That's all the liberal has.
Like I said Plaisted is a clown.

Mike Plaisted said...

"...but I'm funny how, I mean funny like I'm a clown, I amuse you? I make you laugh, I'm here to ... amuse you?"

Your problem isn't with me, it's with the Law, the Constitution...all those inconvenient things that keep the mob away from the offender. Proud to serve.

Go on, I know you want to...come on and squeeze my big red nose... squeeze the wheeze.

No? Wimp.