Politics & Policy

Murphy’s Law

Law 101 with Wendy Murphy.

Wendy Murphy, former assistant district attorney for Middlesex County, Massachusetts, is author of the new book, And Justice for Some: An Expose of the Lawyers and Judges Who Let Dangerous Criminals Go Free. She recently took questions from National Review Online editor Kathryn Lopez on the law and the book — and, yes, O. J. Simpson, too.

Kathryn Jean Lopez: You hit judges pretty hard. Are there any good judges out there?

Wendy Murphy: Sure, but I felt it was more important to name the worst judges because even one bad judge is too dangerous and powerful to ignore. Judges affect the lives of many, many people on a daily basis, yet they have very little oversight and accountability. The most serious judicial offense is not necessarily a judge treating a sex predator gently (though that’s a big problem and one I discuss a lot in my book); it’s the judges who lack humility.

Judges are people too; they make mistakes. Good judges — and there are plenty of them out there — fix their mistakes when they’re pointed out. Bad judges become arrogant and start acting like kings and queens.

Lopez: Who is your audience?

Murphy: This book is for anyone who relies on the justice system for protection — which is all of us. Parents, especially, can feel particularly vulnerable, when their children’s safety rests on judges’ decisions.

The law can be very difficult, even for a seasoned professional, to comprehend. So in addition to writing about horrifying but little known cases, I use celebrity cases such as those of Michael Jackson and Scott Peterson, to illustrate some of the dirty tricks judges and lawyers play, which might not otherwise be clear to the lay person.

The advice in the book is for parents and the general public, so they can be smarter consumers of legal news, and so that they can better protect themselves and their families from crime.

Lopez: What would you hope law students and young lawyers take from your book?

Murphy: Law students and lawyers who read my book can completely disagree with my get-tough positions, while still learning an awful lot about how to be a more creative lawyer — especially if the work they are doing requires them to fight the system itself.

My work is often focused on the larger policy issues and constitutional problems that plague our legal system — so I have to think outside the box to protect my clients, who are usually victims twice: once at the hands of the criminal, and again at the hands of a system that doesn’t render justice for all.

I let the reader know my biases up front, just as I always tell my law-school students what my biases are on the first day of class (and I let them know that they will not get a good grade if they simply regurgitate my point of view).

Lopez: No spin here. Aside from getting a book endorsement (and forward!) from him, why do you praise Bill O’Reilly in your book?

Murphy: I am very proud that I get to work with Bill O’Reilly in the fight against child sex predators. He was and still is the leader among all television personalities in the protection of kids from violence. Bill took on the infamous Judge Cashman from Vermont — the judge who gave a repeat child rapist 60 days behind bars for brutally assaulting seven year-old girl for years! Because of Bill’s coverage in the case, Cashman was forced to increase the sentence from 60 days to three years. Three years is still inadequate for such a horrible criminal, but it’s a lot more than 60 days — and what Bill didn’t know until I told him on his show one night was that it was the first time ever that a judge was forced to increase a criminal’s sentence because of public outrage. I talk a lot about this story in the book because it is such an important lesson for all of us. If we work together, make a lot of noise, let our voices be heard, and complain loudly about lenient judges, we can make a real difference and can help keep more children safe. We need an independent judiciary — but not one that is so independent they can violate their duty to the constitution — and to public safety. Judge Cashman said he really doesn’t believe in tough punishment, and that’s fine as a personal philosophy. But he can’t act on that belief when he’s wearing the robe. He dishonored the judiciary. In the end, he stepped down, which is a good thing for the people of Vermont. The problem is, there are many more Judge Cashmans out there (a bunch of whom I name in the book), so we have a lot of work to do.

Lopez: Since we’re in prime-time TV: To Catch a Predator: Good thing or bad thing?

Murphy: Anytime the criminal justice system can attract extra money and resources from the private sector to fight child sex crimes, it’s a good thing!

Shame is underrated in our legal system. We have too much emphasis on hiding the truth about what a criminal did — in the hope it will help him reassimilate into society. But the truth is — we the public not only have a right and a need to know who is committing dangerous crimes, but by hiding the truth, we are more likely to be afraid of everyone in our communities, which is terrible for society, if our laws allow us to shield convicted criminals from public view.

Shows such as To Catch a Predator help in many ways, even though they’re criticized for being forceful and generating so much shame that one man actually committed suicide after appearing on camera. But I don’t believe there’s such a thing as too much shame for someone who hurts a defenseless child. Nobody should commit suicide — it’s terribly tragic, but it’s not the show’s fault.

Lopez: Why do you bring up the National Organization of Women and Bill Clinton now? I mean, I never pass up a good opportunity to hit a Clinton, but did the Lewinsky incident really have a lasting and negative effect on crime?

Murphy: NOW is always claiming to be anti-sexual harassment and anti-rape, and they are always screaming about how we have to break the silence about these issues. But they were silent during the Paula Jones/Monica Lewinsky era. And NOW was deafeningly silent during the Kobe Bryant trial, while the victim’s sexual history was fodder for the cable news shows. NOW doesn’t speak out at all in criminal sex crimes cases — but they claim to be the voice of women on all policy issues. My opinion is that they are very good on certain issues and terrible on violence against women.

But I also used the Clinton/Lewinsky/Jones case to illustrate another problem in our legal system — the practical problem of extortionist lawsuit tactics. Did Bill Clinton pulling his pants down really traumatize Paula Jones to the tune of $2 million, which is what she sued for? I mean, come on!

Lopez: Rita Cosby endorses your book on the back cover. Will you be available as she gathers a legal team as Larry Birkhead and Howard K. Stern hit back against her book?

Murphy: I’ve worked with Rita for many years, and have had many conversations with her since her book came out. I respect Rita, and I know she is not frivolous about her work, so of course I will support her as she defends herself. In fact, she and I have now both been threatened by Howard K. Stern’s lawyer, Lin Wood. Wood represents Jon Benet Ramsey’s parents, and he threatened me with litigation during an appearance on Larry King Live for my suggestion that John Ramsey was possibly involved in his daughter’s death.

Wood has called me every name in the book but, what people don’t know, is that right before he wasted all his airtime on Larry King threatening me, he called me on my cell phone, and told me he would sue me if I ever again expressed my opinion about his clients’ involvement in the death of their daughter. He arrogantly warned me to “check his record” and I told him to kiss my a##.

His bullying tactics are a dirty trick designed to stop people such as Rita Cosby from digging for the truth — when the truth may jeopardize his client.

Lopez: How is it that we’re faced with the release of an O. J. Simpson book this month? How/why did he get away with murder? Was it an anomaly?

Murphy: O. J. slaughtered two innocent people, walked away scot-free from criminal punishment, was found responsible in a civil case, but arrogantly hid his assets and then moved to Florida where the law allows people to avoid paying their legal debts. On top of all this, the guy then has the gall to ask for money in exchange for confessing?!

So yes, our legal system let him get away with murder! Appallingly enough, he was allowed to leverage our precious Bill of Rights to ramp up the value of his book deal (remember — the book was never published under his name — but he still made out well because he received a reported $800,000 advance).

This boils my blood — the fact that he could take the Fifth at his criminal trial, refuse to tell the truth and even outright lie about his innocence, and then, because our constitution allows criminals to say nothing (which creates a kind of market for the truth), we let murderers literally “sell” their story — a story that would have NO market value if it weren’t for the Fifth Amendment.

His book advance might be an anomaly, but you can be sure criminals who are not celebrities get away with murder every day, and some get rich from crime, because their defense attorneys exploit the Bill of Rights in a way that was never intended by the founders of our constitution.

Lopez: Inquiring minds want to know: Will O.J. go down his time?

Murphy: We can only hope. The case seems like a slam dunk, but that is how I felt about the murders of Ron Goldman and Nicole Brown. I called Michael Jackson the “teflon molester.” This guy is even more slippery — he’s been in trouble with the law at least once a year since his infamous acquittal, and never once been punished. I’ll believe it when I see it.

Lopez: We do not have the best legal system in the world? I mean there’s sharia out there in the world. It gets a whole lot worse. Who has it better?

Murphy: Many western European countries have what is called “inquisitorial” justice systems where the primary goal is to uncover the truth. Ours is an adversarial system where the goal is winning — often at the expense of justice itself. In Germany, victims are allowed to have lawyers, private lawyers, who actually stand up in court and help represent them alongside the prosecutor during criminal trials. This better protects the victim from intimidation tactics and dirty tricks because the prosecutor can’t really represent the victim since he or she represent the “people,” which includes the accused. It’s better when the system invites a lawyer who can fight hard for the victim. And in Canada, which is a system that is both better and worse than ours, they allow the prosecution to appeal unjust acquittals, which I believe to be a good thing in certain cases. For example, prosecutors can appeal if a verdict of not guilty was determined based on the gratuitous exploitation of social prejudice, as we saw in the O.J. Simpson trial. In this country, the prosecutors had no right of appeal. I don’t believe in a philosophy of defense at any cost — which is not to say I think we should bend the rules to increase the risk that an innocent man will be convicted.

My beef is with the gratuitous use of dirty tricks and serious social problems for strategic gain in criminal court — or in any courtroom for that matter. It’s insulting, and it should at least be unethical, if not unlawful, but we clearly have a long way to go as illustrated by the despicable behavior of Kobe Bryant’s lawyer, who said out loud in court, that the DNA evidence in the case was consistent with a woman who had “sex with three men in three days.” We now know that was a false statement — but most people still believe it to be true. In other legal systems the defense attorney would have been punished for making such a statement — but not in this country where defense attorneys can do whatever they want, including lie outright, with impunity. Bryant’s lawyer was described as a brilliant lawyer for how she handled the case. She may be a great attorney, but the way in which she handled that was didn’t take smarts — any dope can make up stories.

Lopez: Was Martha Stewart treated unfairly? Didn’t she break the law?

Murphy: Martha was used as a whipping girl — to make us all feel better about our investments in the stock market. The market was in bad shape, and corrupt CEOs seemed to be popping up everywhere — there would be no need to sell all our stocks out of fear that the government wasn’t doing its job if we thought the feds were holding CEOs accountable for shady dealings and outright theft. This symbolic prosecution was going to get the government a lot of bang for the buck because you can more easily affect public consciousness when more of the public is paying attention — and we were all paying attention in Martha’s case. Of course, we weren’t watching because she was a terrible criminal. Instead we wanted to see what she was wearing, and whether the icy boss-lady might cry or otherwise crack under pressure. It was pure voyeurism, but because we were all watching, we were getting the message that our investments were safe because the government was cracking down on corruption in corporate America. They never could have gotten away with going after someone like, say, Oprah Winfrey, even though we would have been even more riveted to the set, because Oprah is a BELOVED somebody — whereas Martha is reviled for her b##### reputation. So in my opinion, the prosecution of Martha was way overdone — and sexist. She lied, she deserved a fine. People should be prosecuted for what they do — not who they are. I prefer to use prison space for sex offenders.

Lopez: If Massachusetts is a good state for crime, as your book says, aren’t you partly to blame?

Murphy: When I give lectures about the criminal justice system in other states and I say I’m from Massachusetts, people snicker. This is a state where it is virtually sacrilegious to suggest that people should face longer incarceration for their crimes.

But I am guilt-free because I put my money where my mouth is — I’m not just complaining about Massachusetts — I am literally fighting the good fight here, all the time. I just filed a brief last week in one of our appellate courts on behalf of the rights of victims — I have another case pending on appeal. In 1992, I was the first lawyer in Massachusetts to create an organized group of volunteer lawyers to provide free legal services to crime victims. I’ve filed so many cases here in an attempt to change the law to better hold criminals accountable, I can’t even estimate how many times I’ve gone to court to file papers, generate test cases, and argue fiercely on behalf of innocent victims. Judges who are ideologically anti-state/anti-prosecution/anti-victim have taken serious shots at me, but I have thick skin. And I’m not going anywhere because it offends me deeply that the fundamental rights of people in Massachusetts are better protected if they commit crimes, than if they obey the law.

Lopez: Mitt Romney — love him or hate him?

Murphy: I worked for Mitt Romney when he was Governor of Massachusetts because he appointed me to serve on a couple of his commissions, so I appreciate that he cared a lot about anti-violence work and about fixing what’s wrong in Massachusetts. I’ve met him many times, and he is always the picture of perfection. How can anybody look so good all the time? I once ran into him at the studio where I go to do my TV shots — and it was very early in the morning. He was dressed to the nines and every hair was in place. I looked like hell — still had my pajamas on from the waist down because the camera doesn’t reach the pants of pundits — and as bad as I looked, he was such a gentleman about it — never even mentioned my crazy outfit. I’ve got to give him points for that.

Lopez: Tell us about the ACLU and pornography. Should Larry Flynt thank them?

Murphy: I sometimes refer to the ACLU as the American Criminals’ Liberties Union because they spend a lot of time and resources protecting the rights of convicted sex offenders, but they certainly don’t seem to care about the liberty interest of crime victims. Indeed, they have taken the position that the privacy rights of crime victims — rights they otherwise fight for with vigor when it’s a sex offender whose privacy is at stake — are not even worthy of constitutional protection.

This hypocrisy is important for the public to know about because it highlights the fact that the ACLU has a hierarchical approach to the idea of civil rights: Sex offenders’ rights are more valuable than victims’ rights.

In the context of what Larry Flynt does for a living, this is obvious. In the past, the ACLU acknowledged that it received an awful lot of funding from the porn industry. They probably still do, but they no longer reveal their sources. When you have a question about why certain groups dedicate themselves to certain issues, there’s usually money involved, and the ACLU spends a lot of resources defending the porn industry in court.

Lopez: Porn is a pretty big industry — and even mainstream. Why is it so harmful?

Murphy: Porn is harmful because it eroticizes violence. It’s that simple, and it’s that scary. Violence is appealing enough to our animal instincts — it’s inhumane to also “sell” it as titillating. But that’s what porn does.

And it’s not a free-speech issue — because it’s more human behavior than it is words or speech. And behavior is not protected by the First Amendment.

We need all the help we can get to treat each other with civility. Porn pushes us in the opposite direction. This isn’t about being a prude. I am eager to have more openness about sex and sexuality in general. But we need to do a much better job understanding and teaching our kids about the difference between pornography and erotica.

Lopez: How can it be good for a child whose been sexually abused to testify on a courtroom stand?

Murphy: My book explains that the kids we “save” from the stress of testifying don’t fare as well in the long run as the kids we force to testify. It seems counterintuitive but when you think about it, it makes perfect sense.

When children mature to adulthood and understand complex ideas like justice, they look back on the situation they were in. The kids who were discouraged from testifying often say, “I feel terrible — why wasn’t I strong enough? Why didn’t people believe me? Why wasn’t I capable of taking the stand? If I had only testified, he wouldn’t have hurt another child. Whereas, the children who are compelled to testify, say things like “I am so proud of myself — Important people believed me and cared about my well-being and, thanks to me, this guy didn’t hurt another child.”

Putting children on the stand is not like putting an adult on the stand. Defense attorneys don’t get tough on kids because jurors don’t like it. And because kids aren’t very convincing liars, cross examination rarely needs to be aggressive to expose lies.

I think it’s time we asked whether it’s really so horrible to ask a child to take the stand — especially when we know that a plea bargain means a perpetrator will very likely hurt another child.

Lopez: What was the best thing about being a prosecutor?

Murphy: The best thing about being a prosecutor was the opportunity to enforce laws that I believed in. But I found myself being disobedient early on in the job, literally incapable of reading the laws without saying, “this is inadequate — or wrong — or arcane — why isn’t someone doing something about this?”

I quickly came to feel constrained as a prosecutor — because I couldn’t make arguments about why the laws weren’t fair to victims. Talking about what’s wrong is the first step toward change, so I’m glad I get the chance to do that now in the private sector. I hope this book gets a lot of people talking, because the American justice system is in desperate need of major change.


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