»  National Review Online

November 12th, 2002

  The Law's Delay


A current story here in New York is the trial of John Taylor, a principal in the Wendy's Massacre. Taylor is accused of masterminding the murder of five employees, and the attempted murder of two others, at a fast-food outlet in Queens borough of New York City. He and an accomplice had gone into the restaurant just before closing time one night. When the last customer had left, they pulled guns, forced the manager to open the safe and give them the day's takings, then herded him and his six employees into a basement freezer. There they tied the seven up with duct tape, put plastic bags over their heads, and shot them all. Two of the employees survived, one with severe brain damage. (Ja Quione Johnson, 18 years old when he was shot, will spend his life in a nursing home.)

It wasn't a tough crime to solve. Taylor was picked up 36 hours later at his mother's house in Long Island. He had in his possession one of the guns used in the crime and $3,000 in cash, the amount in the safe. He ratted on his accomplice, Craig Godineaux. Both men were arraigned within five days of the crime. Both were career petty criminals. Godineaux was on parole. He had served time for robbery and narcotics offenses. Taylor had a long record of knocking off fast-food outlets. Just a few months before the Wendy's Massacre, in fact, he had been arrested for robbing a McDonald's. Released on $3,500 bail, he had disappeared. An arrest warrant had been issued, but apparently no action had been taken on it. Taylor had in fact worked briefly at the very same Wendy's where the massacre took place. Dismissed on suspicion of theft, he had a grievance against the manager.

Now, here is the punch line. The trial of John Taylor started last week. The Wendy's Massacre occurred on May 24, 2000. With about as straightforward a case as you could imagine, complete with taped confessions, multiple motivations, eyewitness survivors and a boxcar full of physical evidence (including surveillance tapes from inside the restaurant, showing Taylor and Godineaux setting up the crime), it has taken two and a half years to bring Taylor to trial. Godineaux was disposed of in February 2001, sentenced to five life terms after pleading guilty to murdering three of the victims and wounding two others. He is ineligible for the death penalty in New York because he has a low IQ — which, as one observer said, he "carries around with him like an insurance policy." The brother of one of the victims noted correctly of Godineaux that: "He played the system."

Taylor's case has been held up because the authorities have decided to seek the death penalty, and he is determined to avoid it. The way things work in this state is, if Taylor can be shown to have committed two of the murders, he can be sentenced to death; but if only one, then he can't. Recall that there were seven victims altogether, of whom two survived. Of the remaining five, Godineaux has confessed to killing three. That leaves us with two. Taylor admits to one, but not the other. "The other" was a young woman, Anita Smith, 22 years old, who was looking forward to going to college. Says her mother: "Apparently nobody shot my daughter."

Two and a half years. Why has it taken so long just to get John Taylor to trial? I asked NRO's Jack Dunphy, a working cop who knows the operations of the criminal law very well indeed. Jack: "Well, if it's a capital case, you know there will be a string of appeals following conviction. And those appeal court judges are going to jump on the slightest technicality to invalidate the verdict. Okay, suppose that in the preparations for the trial, defense attorneys ask for a delay. And suppose the judge refuses that request. Then come appeal time, defense is going to argue: 'We couldn't properly represent our client because we didn't have enough time. We asked for a postponement, but the judge refused us.' Well, that could be grounds for annulling the verdict. So of course, when the trial judge gets a request for postponement, he's always inclined to grant it, for fear of seeing his court's verdict overturned on appeal."

Another occasion of delay was the time taken by District Attorney Richard Brown to decide whether or not to seek the death penalty. The rules allow him six months to make up his mind. Because Craig Godineaux wanted to dance the IQ tango, a further two months got added to this little segment of the process. "Eight months of soul-searching," is how DA Brown describes it, sounding like a man prepping himself for an appearance on the Oprah Winfrey show. Eight months? Blimey, it only took Harry Truman nine days to decide whether to drop the atom bomb on Japan. But then, Truman was a farmer and small businessman, not a lawyer.

And of course, the delays and postponements have barely begun. Even if convicted and sentenced to death, John Taylor can confidently look forward to fifteen or twenty years of appeals and re-appeals. Endless quantities of time and money will be spent going over and over the details of his arrest, confinement and trial. Probably not much time will be spent going over the details of the actual crime, since it is perfectly obvious to everyone that Taylor was instrumental in the murder of five helpless people. That, however, is not very important. What is important is the process.

Among other things that are not important are the victims and those who loved or depended on them. The victims were, after all, just little people — workers on the late shift at a fast-food outlet in a bad neighborhood. From the lofty perspective of an Appeals Court judge, a New York Times editorial writer, a forensic psychiatrist, or even a District Attorney, they were people of no consequence — losers, really. They seem all to have been black or Hispanic, except for 40-year-old Ali Ibadat, a Pakistani immigrant who somehow saved enough from his meager wages to send money back to his family in Pakistan. The ages of the others were: 18, 18, 18, 22, 27, 44. The 44-year-old was Ramon Nazario, a family man who enjoyed Latin-style dancing and preparing barbecue cook-outs. Ramon Nazario is dead now. That's not very important though — I mean, imagine a guy 44 years old who works in a fast-food restaurant at something close to minimum wage. Talk about loser! Don't these people know about stock options?

I am speaking facetiously, of course, but those sorts of sentiments are not far from the way legal professionals actually feel. A few months ago I wrote a piece on New Jersey cop-killer Thomas Trantino, who is now walking about this country a free man — a minor celebrity, in fact, in certain circles. I got some heartbreaking e-mails from relatives of one of Trantino's victims, a young cop who was 22 years old at the time of his death in 1963. Forty years later, the relatives are still not permitted to forget. They have been summoned to appeals and parole hearings, they see Trantino's smirking face — Look at me! I gamed the system! — in newspapers and on TV, they are never going to be allowed to forget. Reading their e-mails, their agony and frustration bleed from the screen. "Can't you do anything? Can't you help us?" they ask. No, I can't do anything, except what I am doing right now. Nobody can do anything. It's the system, you see, it's the process, and we humble folk are no part of it. Oh, sure, they called you to those hearings, they pretended to listen to you on those appeals. That was just pro forma, though. None of the real decision-makers gives a damn what you think. You're just little people, just loser types, like Ramon Nazario.

Is there any excuse for all this endless "process"? Yes, there is, and everybody knows it. All together now, you know the tune: IT IS BETTER THAT TEN GUILTY MEN GO FREE, THAN THAT ONE INNOCENT MAN IS EXECUTED. The problem is, as WilliamTucker recently pointed out in a brilliant column on this topic, that this may not be true. If a hundred guilty men go free, and if, in their freedom, they commit a dozen murders, is that really "better" than the execution of one? The question is not academic, as the case of John Taylor proves. Taylor should not even have been out on the street when he organized the Wendy's Massacre. He was an obvious bad guy, an amoral psychopath with no right to freedom or full citizenship. A warrant was out for his arrest — for robbing a fast-food place! — but the warrant was gathering dust in some District Attorney's pigeonhole, while the DA posed in front of a mirror as Rodin's Thinker. Was it "better" that John Taylor be given bail on the 1999 charge, than that he be imprisoned, perhaps unjustly?

I had better unmask myself at this point as an extremist in matters penological. I detest criminals, and believe that most of them should be killed, as a matter of social hygiene. "Three strikes and you're out"? I actually favor "three strikes and you're dead" — that is, mandatory execution for a third felony conviction. I'll argue the case in detail some other time. Here I just want to express my anger and bafflement at the way cruel, violent savages like John Taylor and Craig Godineaux are appeased, yielded to, pampered and excused, while honest working people — cab drivers, fast-food night-shift workers, gas station attendants, small storekeepers — are mowed down in their scores and hundreds every year in America.

A great British jurist once said that the criminal law is not merely a cold mechanism for the processing of malefactors; it is also a stage, on which the drama of the public morality is played out. To an age like ours, obsessed with gadgetry and "process," with a deep disdain — among the cognitive elites, at any rate — for the non-material side of life, that view of the law is wellnigh incomprehensible. Of course, say the lawyers, of course it's a mechanism, of course it's a process. We have to deal with criminals as fairly as we humanly can, taking the utmost care that none of their rights are infringed upon. Stage? Drama? What do they have to do with anything? We are striving for justice as close to perfect as we can make it. Does that provide endless employment, masses of work, huge wads of income, for the legal profession? Well, yes, it does, but of course that's not the main point. Does it generate frustration, bitterness, cynicism and grief in the nation's population of non-lawyers? Possibly — but who cares about them?

What the criminal law actually is, in America today, is a clique activity, like modern poetry or higher mathematics. Small self-absorbed clerisies of highly-educated professionals labor away at it, and the general public is basically not welcome at the party. Now, the fact of something's being a clique activity tells us nothing about its ethical status. It may be noble, selfless, and civilization-enhancing, like higher mathematics. It may be perfectly inconsequential, like modern poetry. Or it may be malign and anti-social, as I believe the operations of the criminal law have become. The common element is, that the general public is not invited to take part, nor consulted, nor even noticed. We look back at the public executions of 150 years ago, at the great crowds assembled to watch the hanging of robbers, murderers and traitors, and think to ourselves: "How barbaric!" Well, perhaps it was barbaric, but at least the general public was not shut out altogether from the enactment of justice, as we are now.

Look at what we are left with, after abolishing all those "barbarities." The defense attorneys blather away with their spurious motions, the appeals court judges scrutinize, and re-scrutinize, and re-re-scrutinize the most microscopic minutiae of rule and procedure, District Attorney Brown plays Hamlet struggling with his precious conscience, psychiatrists administer batteries of tests, the sacred "process" drags its weary length along for months, for years, for decades. And what is that sound we hear in the background? Oh, that's nothing, that's not important. That is only Rachel, weeping for her children, refusing to be comforted for her children, because they are not. Who cares? Why, Rachel didn't even go to law school!