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Vigilante Justice : The real meaning of the Menendez and Bobbitt cases.

January 16, 1994|SUSAN ESTRICH | Susan Estrich, a contributing editor to Opinion, is a law professor at USC. She served as campaign manager for Michael S. Dukakis in 1988

This was the week that privates upstaged a President. While President Bill Clinton was in Europe restructuring the North Atlantic Treaty Organization, seeking agree ment from Ukraine on nuclear weapons and meeting with Boris N. Yeltsin, millions of Americans, along with CNN viewers around the world, tuned in to nonstop coverage of Lorena Bobbitt's trial for assault on her husband. A wife cutting off her husband's penis--how could mere diplomacy, nuclear weapons and the post-Cold War alliances ever hope to compete for our attention? Only the declaration of a mistrial in the Erik Menendez murder trial managed to nudge John Wayne Bobbitt's genitals off center stage.

The extravagant coverage of the Bobbitt and Menendez cases is, in part, a reflection of the triumph of tabloid journalism, and its infection of what used to be the legitimate press. But there is more to our national fascination with these horrors than just the grisly fulfillment of our worst nightmares and the guilty pleasures of voyeurism. At issue, as well, is the place of vigilantism in a society supposedly governed by the rule of law.

The Bobbitt and Menendez cases, like the recent trial of Damion Monroe (Football) Williams and Henry Keith Watson for the assault on Reginald O. Denny during the Los Angeles riots, represent a challenge to two of the most fundamental tenets of a civilized society: personal responsibility for criminal conduct, and the primacy of the rule of law. By arguing that the criminal is really the victim in disguise, defense attorneys have sought to win the sympathy of juries and their approval of what is, at best, unlawful vigilantism.

The criminal law defines very narrowly the circumstances where an individual is allowed to use deadly force: Only when he reasonably believes that he, or another person, is facing imminent death or serious bodily harm. To be guilty of manslaughter rather than murder for an intended killing, an individual must believe his own death is imminent. Lorena Bobbitt was not facing imminent death from her sleeping husband. Lyle and Erik Menendez were not facing death as their parents sat in the television room eating berries and ice cream--let alone as their mother crawled on all fours on the floor while her sons went outside to reload their guns and then came back to shoot her. Williams and Watson were not being threatened by anyone.

Nor can any of these people claim to be insane as a matter of law. Insanity, too, is narrowly defined--limited to people who do not understand the nature of wrongfulness of their conduct. Beyond that, we are expected to control ourselves. Most criminals kill for a reason. There is almost always an argument, a wrong, a slight, a deal gone bad. It is precisely when the urges are strongest that the need for control, not sympathy, is greatest.

The role of the jury is to determine guilt or innocence--not to solve society's problems. Jurors who are doing their jobs should find the facts and apply the law as stated to them, not rewrite the law to excuse criminal conduct because one or more jurors feels sorry for the defendent, or is moved by the underlying injustices that the defendant has faced in his life. The inability of the Erik Menendez jury to reach a verdict suggests that something more is going on in our courtrooms these days than the mere application of established law to essentially uncontradicted facts.

Racial injustice is real, and needs to be addressed. Wife beaters should be punished, severely. Child abusers should be punished, even more severely. But in a civilized society, punishment must be inflicted by the courts and the criminal-justice system, not by knife-wielding wives or gun-toting children--let alone out-of-control rioters visiting their anger on innocent men. Even if one believes the essential details of Mrs. Bobbitt's claims, and the Menendezes'--and I do not, at least in the Menendez case--the fact remains that their appeal to sympathy is nothing more or less than an effort to give vigilantism a good name. Mr. Bobbitt was sleeping. The Menendez parents were watching television and eating ice cream. The best that can be said for Lenora Bobbitt and the Menendez sons is that they were getting even. That is vigilantism. It is sugar coating for an assault on the rule of law. It is, unfortunately, working.

And there's no stopping it. If battered wives are allowed to mutilate their sleeping husbands, and grown men allowed to shoot their supposedly bad parents, and angry teen-agers allowed to beat an innocent man nearly to death because they are part of a riot occasioned by racial injustice, who can condemn police officers who overreact because some African-Americans are indeed armed and dangerous. Shouldn't we feel sympathy for them, too?

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