NO. 94-1823
IN THE COURT OF APPEALS
FOR THE THIRD APPELLATE DISTRICT
People of the State )
Appeal from the Superior )
Court of Kindle County vs. ) )
Jacob I. Warnovits )
Kellen Cook Murphy )
Trevor Witt )
Arden Van Dorn )
Before Mason, Purfoyle and Koll, JJ.
Justice Mason delivered the Opinion of the Court:
This case comes before the Court on the appeal of the four defendants from their convictions on charges of criminal sexual assault and the resulting six-year penitentiary sentences imposed on them in the Superior Court of Kindle County. For the reasons stated below, this Court affirms.
As crimes so often do, this case has riled passions, broken hearts, and left behind a wake of lives forever disturbed. At its core, it asks us to reconsider a question the law has long pondered: how long, and under what circumstances, punishment may be delayed before the balance of justice tips against it?
[Cassie, pls insert your draft’s Statement of Facts here.]
The statute of limitations in our state generally bars felony prosecutions brought more than three years after the crime. [Cassie, fill in cite for the statute, please.] The parties’ briefs discuss at length the traditional policy considerations, which, from the recorded debates, appear to have influenced our legislature in creating this law: recognitions that witnesses’ memories dim with time; that a defense becomes more difficult to mount as evidence is dispersed; and that prompt prosecution maximizes deterrence and prevents the improperly motivated revival of long-ignored offenses. See e.g., Toussie v. United States, 397 U.S. 112, 114-115 (1970).
Yet as Justice Holmes taught us long ago, “The life of the law has not been logic; it has been experience.” [Pls chk quote and get cite. The Common Law?] Statutes of limitations also recognize that human beings change with time. None of the familiar purposes of the criminal law-incapacitation, deterrence or retribution-are fully served by punishing those who have lived blamelessly over a considerable period since their crime, and so the law allows them to go forward without the anxiety of potential prosecution. [Cassie, cite Marion case and various commentaries collected in Sapperstein’s brief.]
The precise circumstances under which prosecution is barred by the passage of time are a judgment left to the legislature. This Court’s task is simply to assign to the statute’s words the meanings its authors intended. [cite cases] Our legislators provided that the three-year limitations period is suspended while a defendant’s affirmative steps to conceal his crime render the occurrence of the offense unknown. [cite statute] The defendants argue that this provision was wrongly applied in this case. They concede that the victim was unconscious when she was assaulted, but they maintain she knew enough from her physical condition in the aftermath to inform authorities that she had been raped. The conscientious trial judge, who heard the testimony on this question, disagreed. He found that, in light of the victim’s age and experience, the defendants’ concealment deprived her of a sufficient basis to make a credible report to authorities. The defendants deem that conclusion a reversible error of law, pointing out that another limitations exception is specifically addressed to underage victims, and that the provision would have barred this prosecution from being commenced. Accordingly, they contend that the victim’s age was not a proper consideration here.
The question posed has not been decided previously by the higher courts of this state. Nonetheless, we do not see how a trial judge could determine whether the defendants’ concealment prevented discovery of their crime without taking into account all the attendant facts, including the age and experience of the victim. It is a long rule of the law that defendants must take their victims as they find them. [case citations] These defendants were well aware of their victim’s age and the special advantages her naivete might give them in concealing their offense.
We are reinforced in our reading of the statute of limitations by another consideration. To mitigate their offense, the defendants occasionally note that the victim did not endure the grievous psychological burdens of a rape because she was unconscious at the time of the crime. This argument suffers not only from its temerity but also from the fact that it proves too much. We credit the victim’s testimony that, as someone who was still only nineteen years old and far from seasoned in life, she experienced considerable trauma when she was finally forced to confront what had happened four years before. In a very real sense, the defendants’ crime was not complete until that moment. We are sure that among the legislature’s motives for crafting this concealment provision was to reach offenses whose full evil was not felt until their discovery.
We need not wonder in this case how long prosecution might have been delayed by operation of the concealment provision before the limits of due process would require a different result. [citations] The principal evidence of the offense, the videotape, was in the custody of one of the defendants until it was seized, and none of them claim that it suffered any deterioration. ^ 1 Nor is a prosecution commenced three years and ten months after the crime so distant in time as to affront fundamental fairness. In fact, it is well within the time allotted in other jurisdictions, including the five-year limitations period followed in the federal courts. [cites] Accordingly, we conclude that the defendants’ prosecution was initiated within the time limits provided by law.
[Cassie: from here on in, use your draft with my penciled changes.]
George has typed all of this with only his left hand. He briefly tried removing his right arm from the sling, but just a few keystrokes ignited pain all the way to his elbow. He takes the draft from the printer and walks it in to Cassie in the small clerks’ office. She is eating an apple and takes another bite as she examines the first page.
“Surprised?” George asks.
“I knew whatever you decided would be okay, Judge.” She calls him Judge no more than once a month, and thus he takes this as a testimonial. He asks her to give the draft priority, so that they can circulate it to Koll and Purfoyle tomorrow, in the hope of filing the opinion by the end of the week.
“Done before I leave tonight.” She buffs her hands against each other. Thus spake Wonder Woman.
The sight of John’s empty desk across from Cassie’s remains evocative. He has been gone about three hours now. Dineesha helped him put everything in boxes. Then George came in to shake John’s soft hand, a gesture the judge still regarded as appropriate after nine years of working together. Both the judge and the clerk were spent by their confrontation an hour before and said next to nothing at first.
‘What’s going to happen to me?’ John finally asked at the door.
That is no small question. The imperatives are the same as when he thought the culprit was Cassie: George cannot forgive this on his own. Marina, the county police, the FBI, and Bar Admissions and Discipline all have to be informed. John is facing a penitentiary term and loss of his law license at B.A.D.’s order. Now that his raging internal drama had leaked into the world of causes and effects, Banion appeared utterly bewildered.
‘John, I’m afraid you should find a lawyer,’ the judge said. That advice, unfortunately, constituted his good-bye.
With the Warnovits opinion out of his hands, and his tormentor dispatched, George feels the way he did years ago on the all-too-rare occasions when he won an acquittal. The sight of his client restored to freedom after the intense intellectual and physical exertion of the trial resounded not as evidence of justice-too often George knew the man was guilty-but as proof of the rattling power of his own will. In that mood, he became a whirlwind of high energy able to move through the mountain of neglected tasks that had arisen on his desk.
Now he trips downstairs to the chief file clerk for the court.
“I want to pick up my retention petition,” George tells him. He fills out the single-page form on the spot, asking for two copies, one of which he carries up to the Chief Judge’s secretary. Rusty, as it happens, sees George through the open door and waves him into his private chambers.
“Well, this is two pieces of good news in the same day,” the Chief says, holding the petition.
“What’s the other?”
“Nathan Koll resigned effective the end of term.”
“You’re kidding.”
“He says no job is worth death threats. He carried on as if it were my fault. Wants me to arrange a year’s police protection.”
“You think he’ll tell the cops where he lives or just ask them to blanket a mile-square sector?”
They laugh about Nathan.
“I’m afraid he doesn’t have as much to fear as he thinks, Rusty.”
As George explains about John, the Chief falls into a chair.
“What in the hell?” he finally asks. “What could he possibly have been thinking?”
“It’s the usual goofy story,” George replies. “The more John watched the tape, the more wound up he got, and the more he blamed me for making him do it. He was in that state one day when I stepped out for a second and on impulse he went to my computer and sent the first e-mail to some nonexistent address, knowing it would bounce back and appear on my screen.”
“ ‘You’ll pay’?”
“ ‘You’ll pay.’ After he’d done it, he had second thoughts, especially about getting caught. How many people could possibly have had access to my machine? So when I was out again, he erased the original message, and the copy in my Sent file, and then, in order to deflect attention from the message that had come from my computer, he resent it twice from his own through an open relay server.
“And that was basically the cycle. Raging, acting out, then remorseful and afraid of getting nabbed. Of course, I was too distracted about Patrice to pay much attention at first, which only honked John off worse and made the next messages more pointed.”
“And where was he when he was doing this?”
“He says he sent almost all of the messages from his laptop while he was in his office, maybe forty feet from me.”
“Help me here,” Rusty says. “Isn’t this the clerk who saw one of the early messages and told you to call Court Security?”
“Sure, he’d sent it, and while it was crossing the Internet he walked in to watch my reaction.”
“But why did he tell you to bring in Marina?”
“Well, first of all, he wanted me to be scared. He had to act as if we’d seen the reaper. And what better cover than to be the one who says ‘Call the cops’?”
Rusty gives a bitter snort: people.
“The other thing,” George says, “that really lit John’s fuse was the idea that I might let those kids get off. He was desperate for big-time punishment.”
“Teach me a lesson,” Rusty says, “by teaching them. Who says there’s no point to vengeance?”
The two friends by now are sitting side by side in wooden armchairs in the center of the Chief’s vast chambers and exchange the same rueful smile.
“Anyway,” George says, “as I kept giving him assignments on the case, John realized that I was bothered about the limitations question. Apparently, I said as much to him on the day of oral argument. That’s what inspired the death-watch message. And after the conference, Purfoyle’s clerk told him I seemed pretty serious about reversing. So he notched it up again and sent that e-mail to my home. But nothing flipped him out like talking to me face-to-face. There I was, this fellow he used to admire, ready to free the devil’s minions. So he got out his nuke. He had my cell phone by then.”
“And how did he get his hands on it?”
Apparently, George says, he’d dropped the cell in the rear corridor outside the Gresham’s ballroom. Hotel security found it the next day and called Banion, because he’d inquired only a few hours before on the judge’s behalf.
“John said he was always on the verge of giving it back and claiming the hotel had just found it, but he was already sending messages by then. I’m sure that as soon as he picked up the phone, he realized it would give him a great new way to scare the bejesus out of me.”
The Chief rakes a hand through his graying hair as he ponders.
“You think this guy hears voices, Georgie?”
“I think he’s a troubled, lonely guy. And I hit his crazy bone.”
“He would have gone off sooner or later.”
“I just don’t know.” That will remain the hardest part for George. “He told me I always want to be the best person.”
“Imagine that,” says his old friend.
“And that he was afraid to disappoint me.”
The Chief takes a second to consider George. He has not lost his good humor, but he has stopped smiling in favor of a one-eyed squint.
“George, this was not your fault.”
“I could have-”
“No,” says the Chief. “Sainthood is not required. You’re entitled to some limitations.”
George could say more. But Rusty, a rigorous man of the law, will never see this from anything but a legal perspective, which deems John a criminal and everyone else blameless. The two are silent for a second, each man with his own thoughts.
“Okay,” Rusty says eventually, “I understand why your clerk figured you did him wrong. But why start picking on Koll?”
“Oh,” says George. He’d forgotten that part. “The more John ratcheted up the threats, the more scared he was of the consequences. You’ve seen this weather pattern: daring to get caught, afraid he’ll get caught, afraid he won’t. The staff knew that Marina and the Bureau weren’t getting anywhere in their investigation. But the one suspicion I’d asked her to keep to herself was about Corazon-just to damp down any hysteria. When John sat in on that meeting with Marina and realized how committed she was to nailing Corazon, he became convinced he could skate. So he tried to gin up a little more evidence. He remembered that Koll had been on Corazon’s panel. And, given John’s feelings about reversing Warnovits, he was happy to stick it to Nathan anyway.”
“There you have it,” Rusty says about the threat to Koll, “it’s a law of nature. Even the bubonic plague did some good.”
“But now John was trying to do impressions of a gangbanger. Which was why that message looked like seventh grade.”
“He didn’t have anything to do with those thugs in the garage, did he?”
“That one’s all on me. I was trying to pee on peril, just to show myself I wasn’t scared. In a better frame of mind, I’d have recognized that those kids were marking me.”
“Will you promise that, from now on, you’ll cool out in the corner of a bar like an average human being?”
“No way. I’m sticking with the garage. I’m hoping for a big workmen’s comp claim.” George lifts the sling.
“You may run into some trouble on appeal,” the Chief says.
“Anyway, when Marina came in to impound the computer, she must have given John a hint that it was about the very first message, and he knew that would be the end.”
“Because?”
“Because Marina would focus on my staff. Sooner or later, with that group under suspicion, she’d reinvestigate the way they looked for the cell phone. And besides, it wouldn’t take a nightstick and a bright light for John to wilt under questioning.”
“Speaking of Marina, have you told her all this yet?”
“She’s called four times. But I want John to get a lawyer first.”
“Oh, thank you,” the Chief says, “thank you for that. Five will get you ten that I’ll have a letter by the end of the week threatening all of us with a suit for a hostile workplace. Simon Legree was employer of the year compared to you, making poor John watch that terrible videotape over and over again.”
“You think that’ll give him a little leverage?”
Rusty bobs his head this way and that. “A little. We’ve both seen screwier defenses. So what do you want him to get, Mr. Justice Bleeding-Heart?”
“I don’t see the point of prosecution. The guy’s forty-two years old, no record, great service to the court. I hope the P.A. agrees to a diversion program with psychiatric treatment.”
“And what are those boys who held you up going to catch?”
“Those boys have had their second chance. And their twelfth. And Banion didn’t break my arm. Or pull a gun.”
“And what about his license?”
“Suspended. Until his shrink says otherwise. Any chance you can support all of that, Rusty? I’m sure Marina will want the death penalty.”
“I’m sure. But only after your clerk spends several months at Abu Ghraib.” Rusty mulls, eyeing the distance. “Diversion is still confidential, isn’t it?”
“Right.”
“And the suspension. That’s a one-liner in the court record. Nobody knows why.”
“Right. What are you thinking, Chief?”
“I’m thinking John Banion’s a fortunate guy.”
“Because?”
“Because I want this to go away quietly. Very quietly. I’m going to put Marina on an investigative moratorium. For the good of the court. When John’s lawyer calls, you can tell her or him to try to work this out on a double-deep, supersecret, confidential basis with the P.A. and Bar Admissions. Along the lines you mentioned. With my consent. I’ll repeat that to whoever needs to hear it.”
“Thank you, Rusty.”
“I’d let you kiss my ring, but the truth, chum, is that I’m doing this for all of us. I don’t want Koll to hear this story, not before the ink is completely dry on his resignation. And the County Board’s going to vote on Marina’s funding request within the next week. Better they don’t start thinking that everything with #1 was just a little soap opera in your chambers and get second thoughts about giving us the money.”
“The wisdom of power.” George stands.
“May I ask?”
“What’s that?”
“About Warnovits,” says Rusty. “Is it decided?”
“I have a draft.”
“Was justice done?” After his performance last week, Rusty is reluctant to ask directly whether the case is being affirmed or reversed until the opinion is public. And just now, as a matter of friendly torment, George chooses not to answer. Instead, Judge Mason places his good hand on the head of his friend in brief, mutual benediction.
“We try,” George says. “We can only try.”
ENDNOTE
1. Our Brother Koll dissents, claiming that the videotape in fact was inadmissible under our state’s eavesdropping law. [citation] This point was not raised in this Court or at trial, and thus we cannot consider it on our own, since we do not believe that admission of the tape, even assuming it might have been barred, allowed for a miscarriage of justice. We are driven to this conclusion by the real-world results of a decision to reverse on those grounds. Under our limitations provisions, the prosecution would have a year from the date of reversal to reindict the defendants for the eavesdropping offense, inasmuch as it was part of the same criminal transaction for which they were originally convicted. Since the tape could be admitted in that new case, conviction would be a virtual certainty. It does not strike us as a miscarriage of justice that the defendants were convicted of one felony rather than another, particularly because the underlying sexual assault could clearly be considered by the trial judge in aggravation of the sentence, making a significant prison term inevitable. Furthermore, it’s quite likely that after a grant of immunity or plea bargains involving some of the defendants, one or more would be prosecuted for both eavesdropping and the rape, and could end up with an even longer sentence than the one imposed in this case. Any defendant who suffered that result would undoubtedly return to this court to complain about the miscarriage of justice caused by our meddling.