Wednesday, September 19, 2007

Pask Revisited

I wanted to post briefly in response to local lefty blogger and criminal defense attorney Mike Plaisted's suggestion that my comments on the Pask case were too gentle on my "wing-nut friends." Part of the answer, of course, is that I am not into bashing people here. If I am not going to go postal on people who I think are mostly wrong, why would I do that with people that I think are mostly right?

But more fundamentally, I think that Mike (who I believe to be an intelligent fellow and a very good writer} and fellow lawyer blogger Illusory Tenant mistate some of the criticism of Judge Van Akkeren that I have heard. I have not listened to Belling's discussion of the case, but I have heard some of the discussion on Charlie Sykes' show. It was not always exactly what I would expect in a law school classroom (why should it be?), but the discussion did not take place without regard to the requirements of the law. Sykes and his callers were well aware of the statutory requirement that a child be enticed into a building or secluded place and tried to address that requirement. Some local conservative bloggers were sufficiently cognizant of that issue that they went out and videotaped the area in question. I can't say that I agree with everything that they have said and some of it was overwrought, but I am not going to dismiss public discussion of a difficult case as ignorant.

Without getting the precise context in which this happened, I am not prepared to say that the judge was wrong. But having seen video of the area, I think it is far from obvious that there was no secluded place into which Plask may have been leading the child.

And if it wasn't obvious, then the verdict ought to stand.

Jeff Wagner suggests that the statute be amended to eliminate the "destination" requirement. He advocates redefining child enticement to consist of 1)enticing a child with 2)intent to assault that child. He argues that it may be hard to prove the requisite intent where the defendant was not luring a child into an area in which an assault might conceivably happen, but that, if the requisite intent is found, it ought not to matter where the assault was intended to occur.

I wonder if any jurisdictions have so defined it. The civil libertarian in me is skeptical. "Enticing" is such a minimal element. Couldn't it be satisfied by someone asking a kid to "come here"? Jeff's proposal seems to be a bit too close to criminalizing intent. (Call it the Aqualung law.) That makes me a little hinky because we want people convicted for what they do and not who they are (or seem to be). Wagner is not proposing the latter, but I worry that is what it might become in practice. Although intent would presumably have to be proven by the defendant's conduct in the incident at issue (and not by his prior record), there is normally not going to be the type of blatant commentary as was allegedly made by Pask here and you worry about basing intent on extraneous matters. Having a location requirement does not, as Jeff points out, address that directly but maybe it does narrow jury discretion in a way that reduces the risk of bad convictions.


illusory tenant said...

I have no idea what criticism I misstated.

Among the criticisms I saw from your "righty bloggers" were that Van Akkeren is a friend to pedophiles who was consciously seeking an excuse to release a pedophile because pedophiles are a treasured Democratic constituency or some such nonsense.

I characterized that sort of criticism as typically uninformed and reactionary. If anything, that was understatement, not misstatement.

And, as a matter of fact, I granted that swinging even would-be pedophiles from the yardarms was an intuitively sound proposition (and one that I share) but that ain't quite the way things work according to our rule of law.

Mike Plaisted said...


Thanks for the nice words about my intellegence and writing. Same back at cha.

I do think those on right-wing radio -- including Sykes -- have been entirely over the top, mocking the judge, saying Sheboygan residents must want this kind of mushy-headed justice just because they weren't calling the show in sufficient numbers (Sykes said this), demanding a recall, etc. Through it all, they give the impression that the judge did this because he wanted to, not because there was any legitimate legal basis. It's the denial of a possible legal basis that gets me, because, lawyers or not, they have legal resources (like you, for instance) and they know better.

I think Wagner's solution (sure to be proposed by somebody after all this) negates the intent of the law and its very serious classification (Class D Felony - potential 25 years). The point, I would think, was to prevent and punish enticement to hidden places where something could actually happen. Take away the "secluded" or building element, and all you really have seriously bad verbal behavior, but I think there is a limit to how much you can or should extract for that. With the kind of squawking that's going on, the legislature might decide to go that way, with or without a lower penalty, but I think that creates more problems in proof and enforcement than it's worth.