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Wednesday, April 26, 2017

Jessica Herrera's Vehicular Homicide Trials: When Is An Accident a Crime?

     As drivers, we all occasionally speed, cross the center line, roll through stop signs, and get distracted. There is no such thing as perfection behind the wheel. No one wants to cause an accident, particularly one that results in injury or death. Whenever a driver's carelessness causes or contributes to a traffic accident that results in the death of another driver or  passenger, a prosecutor has to decide if this act of negligence rises to the level of criminal homicide. In my opinion, ordinary negligence that falls short of recklessness--the total disregard for the safety of others--should be treated as a civil wrong rather than a criminal act. Vehicular homicide should only apply to motorists who are driving extremely fast, are drunk, high on drugs, or fleeing from the police. I do not believe in the criminalization of all fatal traffic accidents.

     On June 11, 2011, in Santa Barbara County, California, Christopher Martinez slowed down on Highway 246 east of the town of Lompoc to turn into a driveway that led back to a winery. The 28-year-old was showing up for his first day of work. As he slowed to negotiate the turn, Jessica Herrera, driving the car behind him, rear-ended his vehicle. The collision pushed Martinez's car into the opposite lane where it was struck broadside by a pickup truck carrying two people.

     Paramedics rushed Christopher Martinez to the Marian Regional Medical Center in Santa Maria with severe head trauma and a collapsed lung. He died the next day.

     A Santa Barbara County prosecutor charged the 22-year-old Herrera with misdemeanor vehicular manslaughter, a crime that carried a maximum sentence of one year in jail and a $1,000 fine. In May 2012, the Herrera trial jurors voted seven to five for conviction which caused the judge to declare a mistrial.

     Prosecutor Mark Smith decided to retry Herrera for vehicular homicide. On February 8, 2013, the second trial got underway in the Santa Barbara County Court in Lompoc. In his opening remarks to the jury, prosecutor Smith accused the defendant of driving too fast for conditions (65 mph in a 55 mph zone) and being inattentive.

     Herrera's attorney, Dillon Forsyth, argued that the crash that took Christopher Martinez's life was a tragic accident. To the jury he said, "There is no evidence a crime occurred. This is a circumstantial case. There is really no credible evidence that what occurred was anything but an accident. The fact is we simply don't know what happened." The defense attorney also pointed out that there were no signs that a driveway was coming up, and that brake lights and turn signals on Martinez's car might not have been working.

     On February 13, 2013, after more than a day of deliberation, the jury reported to the judge that it was deadlocked eleven to one in favor of conviction. Another hung jury, another mistrial.

     I'm surprised that so many jurors in these two trials had voted for conviction. Even assuming Jessica Herrera had been driving ten miles over the speed limit at the time of the accident, I don't believe she should be held criminally responsible for Christopher Martinez's death.

     On February 28, 2013, at a hearing in the Santa Barbara County in Lompoc, Judge James F. Iwasko dismissed the Herrera case after prosecutor Mark Smith said the district attorney's office would not seek a third trial. To have gone forward with a third trial in this case would have amounted to prosecutorial misconduct.  

The Power of Cross-Examination

     The ability to conduct an effective cross-examination is one of the most important skills in the arsenal of the trial attorney, as well as one of the most difficult to master. If the witness, as is usually the case, is telling the truth as he knows it, but that truth is overly slanted in the favor of say, the prosecution, then the defense attorney must bring that truth back toward or past the middle by careful questioning. However, if he is too assertive with a likable witness who appears to be honestly trying to tell the truth, then he runs the risk of alienating the jury and undoing any good he accomplishes in the examination.

     One question on cross-examination that tends to be productive is, "Have you discussed your testimony with the state's attorney or anyone from his office?" The answer almost has to be "yes," because the prosecutor would be foolish to put anyone on the stand without knowing what he or she is going to say. But many witnesses think that it's wrong to admit to having talked about their testimony. Consequently, they will often hem and haw and deny it, and end up looking furtive when they are forced to admit that, yes, they spoke to the prosecutor twice in his office.

Louis Nizer, My Life in Court, 1961

Murder Trials Are Imperfect

     In most murder trials the only person who knows the true story of the crime is the defendant, and then only if he or she is guilty. Circumstantial evidence is suspect, eyewitnesses are unreliable, forensic evidence is only as good as the laboratory that developed it. On the other hand, circumstantial evidence, if properly interpreted, can tell the story of the crime; eyewitnesses can be good observers; and a professionally run forensics laboratory can develop evidence that is trustworthy.

     But these conditions may not be assumed. States' attorneys have been known to be overly zealous in pressing their cases; defense attorneys have been know to be less dedicated, or less competent than desired; and many people have spent years, even decades, in prison before a new circumstance showed that they were wrongly convicted. The introduction of DNA analysis has freed hundreds of people who were shown to have been wrongfully convicted--many on eyewitness testimony. [Also on jailhouse informants and junk science.]

     There is another side to this judicial coin: people who have committed murder and have been tried and found not guilty due to inadequate evidence, incompetent prosecution, a brilliant defense, or a jury not disposed to convict. [The above factors explain the O.J. Simpson acquittal.] This is, perhaps, a shame in the individual case, but it does society little harm in the long run, since no one would commit murder simply in the hope that his or her prosecution would be inept. Murder has the lowest recidivist rate of any major crime. It is much more likely that a mugger or a convenience-store robber will kill someone than it is for a murderer found not guilty to kill again. Society would be more seriously harmed if the popular perception were that citizens were regularly convicted of crimes they did not commit.

Michael Kurland, How to Try a Murder, 2002

Charles Bukowski on Trial Attorneys

The language of the lawyer is the language of the trickster. It's an inhuman language, a sub-language. And justice is hardly ever served. Justice is just forgotten. Our courts are swamps of dark and devious jargon. It's just a wash of dull, crippled, masked wordage put before a jury of 12 imbeciles or a bored judge.

Charles Bukowski, novelist and poet, March 1992 

Trial Rhetoric

Criminal prosecutors will call a firearm a "weapon," while defense attorneys will call it a "gun." When prosecutors talk about the defendant "aiming" and "firing" the weapon, defense attorneys respond with phrases like "where the barrel was pointing when the gun went off."...All of these advocates have a vested interest in their choice of words (hence the term "mouthpiece").

D. H. Garrison, Jr. 

Tuesday, April 25, 2017

Navigating Pornography at Pasadena City College: What Higher Education Has Cone To

     In 2013, Dr. Hugo Schwyzer was history and gender studies professor at Pasadena City College (PCC) in Pasadena, California, the nation's third largest community college. The 44-year-old professor had a Ph.D. in church history from UCLA. The so-called "male feminist," offered courses with titles like Men and Masculinity, Navigating Pornography, and Gay and Lesbian American History. (See my blog post: "Ridiculous College Courses: Majoring in Stupid." June 2016.)

     In 2005, the Internet professor review site Rate My Professor named Dr. Schwyzer one of the nation's top 50 "hottest professors." (The sexuality guru has admitted having sexual relations with some of his students. Who says if you can't do, teach.)

     A prolific blogger, Schwyzer in 2006, claiming expertise in "body image, sexuality, and gender justice," wrote that he'd like to open a summer camp for teens and adults where he could teach "fitness, basic life skills, spirituality, the whole thing." (Sign me up for the "whole thing" class.)

     New York Magazine, in 2009, published an article about Professor Schwyzer's decision in 2005, when he was 37, to undergo circumcision. (I wish I had something clever to say here, but got nothing.)

     In a tell-all confessional blog entry published in 2011, Dr. Schwyzer informed his readers (I presume mainly his students) of "a binge episode that ended with my attempt to kill myself and my ex-girlfriend with gas." According to the professor's detailed account of the 1998 incident (which has since been taken off the Internet), his former lover came to him for help after she had been tied and and raped by her drug dealer.

     In Schwyzer's Pasadena apartment, he and the woman took drugs and had "desperately hot, desperately heartbreaking sex." Following the desperate, heartbreaking sex, the professor described what took place when the drunk and drug addled woman passed out: "I looked at her emaciated, broken body that I loved so much. I looked at my own, studying some of my more recent scars. (I'd had a binge of self-mutilation earlier in the week, and had cigarette burns on both arms and my torso.) " [In 1998, Schwyzer was thirty years old. Seven years later, he's talking about teaching summer camp teens life skills? Oh boy.]

     Schwyzer continued: "And then it came to me: I needed to do for her and for myself the one thing I was strong enough still to do. I couldn't save her. I couldn't save me, but I could bring an end to our pain. My poor fragile ex would never have to wake up again, and we could be at peace in the next life. As drunk and high as I was, the thought came with incredible clarity. I remember it perfectly now."

     According to the male feminist's story, he turned on the gas in his oven aimed the toxic flow at his unconscious ex-girlfriend, drank more alcohol, swallowed more pills, then stretched out next to her body expecting to accompany the poor woman into eternity. Because the gas fumes failed to do the job, the ex-girlfriend survived the attempted mercy killing. (I don't know if this really happened, or why the professor was never charged with a crime. I wonder how the ex-girlfriend felt about all of this. One thing was certain, it didn't cost him his teaching position at PCC.)

     One of Dr. Schwyzer's students, in a 2012 Rate My Professor review, wrote: "If you get a chance to take his Navigating Pornography class (he's teaching it in 2013), you must! Hugo doesn't tell you what to think but helps you find yourself. Lectures and discussions handle even touchy subjects like sexuality with comfort and clarity. [Wow, I hope this course is mandatory.] He's a stickler for attendance and grammar, but grades fair. Great guest speakers, too!"

     Another Dr. Schwyzer Rate My Professor reviewer wrote: "....the stories he tell is like incredibly fascinating...." (So much for the grammar requirement.)

     Under the auspices of his spring 2013 class Navigating Pornography, Dr. Schwyzer invited the "award-winning" porn actor, James Deen to speak to PCC students and member of the general public. Deen, a PCC alumnus (who said you couldn't go far with a community college degree) has 1,300 porn flick performances under his belt (sorry) including hits like "Atomic Vixens," and "Batman XXX." Deen's February 26, 2013 appearance at the college would, according to the actor, educate students about human sexuality and portray porn acting as a legitimate profession. (Just because its legal doesn't make it legitimate. Outside of California, very few parents would send out notices to friends and relatives announcing that their daughter had just landed a big role in "Swallow the Leader." Any "profession" you hope your children won't go into is not legitimate.)

     James Deen hoped that his presentation would empower students to make their own decisions. "This is an opportunity for people who want to ask questions and talk openly about sexuality." (Learning sexuality from a person who fornicates publicly for money is like receiving cooking tips from a cannibal.)

     When word got out about Dr. Schwyzer's porn star guest speaker, school administrators (Schwyzer referred to them as "suits"), informed the professor that the presentation would have to be a classroom visit rather than a public speaking event. Schwyzer had failed to obtain a facilities use permit required for on-campus public events.

     In responding to his diminished role as a classroom lecturer, James Deen told reporters that "sex is not a dirty, disgusting thing." [Who said it was?] I feel a little persecuted and singled out." Someone should tell Mr. Deen that thirty years ago, they were throwing people like him into prison. Ask the stars of "Deep Throat."

     On his blog site, the PCC pornography navigator addressed the Deen flap this way: "I am deeply disappointed that all those who were eager to hear James will be unable to do so. I am grateful that my students will still be able to hear him. And I look forward to welcoming other porn performers (and public critics of porn) to my class in the future. I remain proud to teach at Pasadena City College." (I'm sure the feeling was mutual.)

     In September 2013, Dr. Schwyzer's academic career came to an end when he admitted that he had been involved in many sexual affairs with his young female students. Moreover, he had recently been charged with DUI pursuant to a traffic accident that caused the serious injury of his female passenger. At this point, Dr. Schwyzer took the opportunity to reveal that for decades he had suffered from "borderline personality disorder and bipolar depression." He said he had been divorced four times.

   

     

John Gardner on the Novelist and Higher Education

     It is true that some writers have kept themselves more or less innocent of education, that some, like Jack London, were more or less self-made men; that is, people who scratched out an education by reading books between work-shifts on boats, in logging camps or gold camps, on farms or in factories. It is true that university education is in many ways inimical to the work of the artist: Rarely do painters have much good to say of aetheticians or history-of-art professors, and it's equally uncommon for even the most serious, "academic" writers to look with fond admiration at "the profession of English." And it's true, moreover, that life in the university has almost never produced subject matter for really good fiction. The life has too much trivia, too much mediocrity, too much soap opera, but consider:

     No ignoramus--no writer who has kept himself innocent of education--has ever produced great art.

John Gardner, The Art of Fiction, originally published in 1983. Gardner (1933-1982) was a literary novelist, critic, and English professor. He died young riding his motorcycle. 

College Freshmen Are Depressed

     Every year for half a century UCLA has surveyed freshman classes at schools across the country to get a reading on their mental health. The latest findings aren't encouraging: The emotional health of 2014's crop of college freshmen is at an all-time low. Nearly one in 10 students in UCLA's study said they frequently felt depressed, and their assessment of their overall emotional health is at the lowest level since UCLA started asking the question.

     UCLA surveyed more than 153,000 first-time freshmen who entered 227 four-year private and public colleges and universities of different types and selectivity. When students were asked to rate their mental health compared to their peers, they gave themselves  a score of roughly 50 percent, which is an all-time low. Previous UCLA surveys have highlighted students' declining mental health over time and its connection to lower student success. This phenomenon can certainly explain a growing reliance on campus mental health facilities.

     According to a different study by the American College Health Association, more than half of college students have said they experienced "overwhelming anxiety" in the past year. Depressed students were also more likely to express boredom with their classes and be less likely to study with their classmates.

     While students reported higher rates of depression in the UCLA study, another worrisome sign is the reduced amount of time they're spending with friends, which also hit an all-time low for the annual survey…

     While it's clear that college students still drink significantly, students are arriving on campus with much less experience consuming alcohol than their peers from 20 to 30 years ago. In fact, in the current UCLA study, freshman reported the lowest rate of alcohol and cigarette use in high school than at any point over 30 years.

     Unfortunately, students quickly discover alcohol when they reach college--when 40 percent of them say they've participated in binge drinking within the past month, according to a study from the National Institute on Alcohol Abuse and Alcoholism….

"College Freshman's Mental Health Hits New Low," CBS News, February 6, 2015 

The First Creative Nonfiction Writing Course

     When I started teaching in the English Department at the University of Pittsburgh in the early 1970s, the concept of an "artful" or "literary" nonfiction was considered, to say the least, unlikely. My colleagues snickered when I proposed teaching a "creative" nonfiction course, while the dean of the College of Arts and Sciences proclaimed that nonfiction in general--forget the use of the word creative--was at its best a craft, not too different from plumbing. [Actually, it's probably just as difficult to be a good plumber as it is to be a good writer. Moreover, we have enough writers.]

     As the chairman of our department put it one day in a faculty meeting while we were debating the legitimacy of the course: "After all, gentlemen…we're interested in literature here--not writing." That remark and the subsequent debate had been precipitated by a contingent of students from the school newspaper who marched on the chairman's office and politely requested more nonfiction writing courses--"the creative kind."

     One English colleague, aghast at this prospect, carried a dozen of his favorite books to the meeting--poetry, fiction, and nonfiction--gave a belabored mini-review of each, and then, pointing a finger at the editor of the paper and pounding a fist, stated: "After you read all these books and understand what they mean, I will consider voting for a course called Creative Nonfiction. Otherwise, I don't want to be bothered."

     Luckily, most of my colleagues didn't want to be bothered fighting the school newspaper, so the course was approved--and I became one of the first people to teach creative nonfiction on a university level. This was 1973.

Lee Gutkind in Writing Creative Nonfiction, Carolyn Forche and Philip Gerard, editors, 2001 

Campus Political Correctness and Phony Outrage

Students are ill-served by the culture of the modern college campus which stifles free-thinking in order to protect students from damaging each other's feelings in even the most trivial ways. It's not just that students are offended much too easily, it's almost as if they want a chance to grandstand or win an argument even if the justification for their offendedness makes absolutely no sense.

Greg Lukianoff, Unlearning Liberty, 2013