THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Sunday, November 20, 1994 TAG: 9411170432
SECTION: COMMENTARY PAGE: J1 EDITION: FINAL
SOURCE: BY ANN G. SJOERDSMA, STAFF WRITER
LENGTH: Long : 149 lines
A truck driver returns home unexpectedly at midnight and discovers his wife in bed with another man. He forces the interloper out at gunpoint and begins arguing with his wife and drinking heavily, his loaded hunting rifle close at hand.
Hours later, the man kills his wife with a single bullet to the top of her head while she is lying on the couch. He tells the 911 operator, in a call made after 4 a.m., that he had shot his wife ``because she was sleeping around''
Initially charged with first-degree murder, in a deal with prosecutors, the man pleads guilty to voluntary manslaughter. The offense is punishable by up to 10 years, with recommended sentencing of three to eight years. Instead, he gets a slap on the wrist: 18 months in jail with work release. The 62-year-old sentencing judge commiserates with the killer when he says: ``I cannot think of a circumstance whereby personal rage is more uncontrollable . . . than this for someone who is happily married . . . I shudder to think what I would do,'' he adds.
Within two weeks of sentencing, the man is back on the road, driving his rig.
When word of the lenient sentence in the Maryland ``cuckold'' case filtered through the local and national media, the public reaction was immediate: outrage, incomprehension, disgust. How could a man who spent hours recklessly drinking and wielding a loaded rifle get away with murder? Has the judge lost his mind?
Judge Robert E. Cahill Sr. of the Baltimore County Circuit Court: ``I seriously wonder how many married men, married five years or four years, would have the strength to walk away, . . . without inflicting some corporal punishment . . . ."
Apparently he hasn't been following the O.J. Simpson case.
Cahill's remarks during sentencing were sexist, arrogant, offensive, and insulting to both men and women. He gave the defendant license to kill for his injured pride, labeling him a ``noncriminal'' and analogizing his ``tragic'' consequences to a drunken-driving fatality. He even apologized to the man for uncomfortable jail conditions.
The Women's Law Center in Baltimore has filed an official complaint against Cahill with the state court system's Select Committee on Gender Equality. Others have called for his head.
But the reality is no judge acts in isolation. If he hadn't been offered a plea bargain by the Baltimore County State's Attorney's Office the defendant would have faced a murder charge, and a jury would have decided whether the shooting was accidental or intentional.
As so often happens with a ``bad'' victim, a woman of suspect moral character, the prosecution sold out the wife.
Married a stormy six years, with frequent separations, both husband and wife were heavy drinkers. According to news reports attributed to the victim's mother, the defendant beat his wife - once so severely that she took refuge in a guarded hotel room. Another time he allegedly held a gun to her head, threatening to kill her for her infidelities.
The victim, an eighth-grade dropout who married four times, slept around, her mother said. But the man kept taking her back. The county State's Attorney's Office, headed by tough-minded Sandra A. O'Connor, who is known for her aggressive prosecution of domestic violence cases, had been unaware of the couple's violent history, said spokeswoman S. Ann Brobst, an assistant state's attorney. The office relied chiefly on the victim's reticent mother, who withheld incriminating details before sentencing and came forward only after the press cast her in an unfavorable light.
That experienced prosecutors didn't know about - or at least didn't investigate the possibility of - previous violence between the couple is unbelievable. A man aims a loaded gun at his reclining wife, blowing her away; it seems unlikely such violence would be an isolated incident. Surely witnesses could have been found; friends could have characterized the marriage. When the crime is domestic homicide, such an effort must be made.The State's ``investigation'' was shockingly inadequate.
The man had two possible defenses to murder, a crime requiring ``specific intent'' to kill:
He acted in the ``heat of passion,'' aroused by having discovered his wife in flagrante delicto;
He acted while being voluntarily intoxicated.
Either defense, if legally established, ``mitigates'' first-degree murder to voluntary manslaughter.
The State's Attorney's Office agreed to the plea bargain because it believed the defendant ``acted in anger, without sufficient time to cool down.''
It's reasonable to assume - or to ask a jury to consider - that four hours (or two hours, as the State has maintained) are a sufficient ``cool-down'' time to defeat a ``heat of passion'' defense. But the defendant by his actions that night, exhibited control. News reports show that he directed his wife at midnight to call her mother in Texas, then took the telephone, announcing, ``I came home and found her in bed with another man and she's lucky I'm letting her live to leave.''
Voluntary intoxication as a defense to a ``specific intent'' crime such as murder is near-impossible to establish. According to one Baltimore defense lawyer, the person must be ``extremely intoxicated -- not unconscious, but probably not far from it.'' The law requires a "proven incapacity to form the specific intent to commit a crime." Brobst herself took it a step further, saying the defendant must be ``deprived of reason.''
But this defendant was clear-minded, able to tell police that he consumed a gallon of wine and up to four beers in the hours before he killed his wife. He admitted that he fired an earlier shot to frighten her and gave a lucid statement to the 911 operator.
So what really happened here? Why, in spite of arguable facts and law and the defendant's history of alcoholism and violence, did this man get special treatment? We can only question.
On Oct. 17, when the defendant stood solemnly before Judge Cahill, he had with him a cadre of supportive friends and family, including two brothers who are longtime Baltimore County police officers. No one appeared on the victim's behalf.
Police and prosecutors work closely together. Did the State's Attorney's Office have a relationship with the two brothers? If so, what was it? If the defendant were tried and convicted of murder, would the State suffer police retaliation?
According to Brobst, no pre-sentence report on the defendant was ordered by the court or the State, only a psychiatric evaluation. The Baltimore defense lawyer found this "inconceivable." So do I. PSI's are standard procedure.
And finally, what of the victim? If the State had taken the case to trial on murder charges, would the jury have tried her as an adulteress, viewing the defendant, about whom little is known - did he cheat on his wife? - as a victim? As Brobst rightly points out, a jury might have acquitted this man. Prejudicial sexual attitudes, divorced from reason, might have prevailed: Slut. ``She deserved it.''
It shouldn't matter who the victim is, but, as journalist Helen Benedict documents in her book, ``Virgin or Vamp: How the Press Covers Sex Crimes,'' the ``bad girl'' makes a bad victim. Police, prosecutors and juries often write her off; and defense attorneys and the media malign her - witness the character assassination of victim Nicole Brown Simpson.
Victims, especially women, are thrown away every day in our criminal justice system. Only a concerned public, asserting a physical presence in the courtroom and asking tough, informed questions at all stages of the process, can prevent this from happening. We can, and should, ensure accountability.
``I'm not sure looking back on the plea bargain that it was the thing to do,'' admitted Brobst, who has handled numerous complaints from the public.
In passing sentence on the Maryland cuckold, Judge Cahill observed that ``the courtroom contains visitors only on one side (the defendant's), and so I get the benefit of in effect sentencing in anonymity.'' Without advocates for the victim keeping him honest, this man of justice considered the bench his personal asylum. But for a reporter's unexpected presence, he would have gotten away with it.
And he's not anonymous anymore. MEMO: Ann G. Sjoerdsma, a lawyer and former president of The Women's Law
Center in Baltimore, is book editor for The Virginian-Pilot and The
Ledger-Star.
ILLUSTRATION: Photo
Judge Cahill
by CNB