While I agree that "Jessica's law" is excessive in the fact that it removes discretion from the judge, and it should be struck down. However, with that said, I also believe that this lawyer needs to be disciplined for conduct unbecoming a court officer, if the bar permits such, if not he should be barred from practice for a significant period of time. Courtroom conduct should not incite riots and his comments most certainly would.
6-25-2008 Massachusetts:
A Massachusetts politician is weathering a storm of criticism after he said he’d have to torment young victims on the witness stand and “rip them apart” if mandatory sentences for sex offenders pass the state legislature.
Rep. James Fagan, who is also a defense attorney, made the comments during debate last month on the state House floor over Jessica's Law, which would set such stiff minimum sentences.
“I thought his comments were over the top and unnecessary,” Massachusetts House Minority Leader Bradley Jones told FOXNews.com on Wednesday.
“I appreciate that he’s a defense attorney, and felt he had a point to make, but I think it was unnecessary,” said Jones, who supported an original version of the bill. “It was excessive.”
The father of the Florida girl for whom Jessica's Law is named also blasted Fagan after hearing the comments.
Mark Lunsford, whose 9-year-old daughter was abducted and buried alive in a trash bag by a sex offender in 2005, told the Boston Herald on Tuesday that Fagan should take the rights of victimized children seriously.
“Why doesn’t he figure out a way to defend that child and put these kind of people away instead of trying to figure ways for defense attorneys to get around Jessica’s Law?” Lunsford told the paper. “These are very serious crimes that nobody wants to take serious. What about the rights of these children?”
Fagan came under fire last month. The bill that he opposed eventually passed the House and set mandatory minimum sentences of between 10 and 15 years for a set of different offenses against children ranging from assault to sexual crimes. A version is still pending in the state Senate.
"I'm gonna rip them apart," Fagan said of young victims during his testimony on the bill. "I'm going to make sure that the rest of their life is ruined, that when they’re 8 years old, they throw up; when they’re 12 years old, they won’t sleep; when they’re 19 years old, they’ll have nightmares and they’ll never have a relationship with anybody.”
Fagan said as a defense attorney it would be his duty to do that in order to keep his clients free from a "mandatory sentence of those draconian proportions." Those comments drew the ire of local activists.
But from a legal perspective, law professor Phyllis Goldfarb said Fagan was probably expressing a basic courtroom truth – that it is a defense attorney’s job to test the prosecution’s case, especially when mandatory penalties are on the line.
“It is fundamentally true … if the proof is coming almost exclusively through a child witness you may have to find a way to test it. That’s the attorney-client obligation there,” Goldfarb told FOXNews.com.
Goldfarb, who used to direct the Criminal Justice Clinic at Boston College Law School, said Fagan used some over-the-top language, but that he probably didn't relish the idea of cross-examining a child. She said it's just his job.
“You do have to challenge a witness,” she said. “Some people find ways of doing that that are loyal to their role as defense attorneys -- testing the proof (in ways) that aren’t abusive to a witness, but it's very hard.
“And I think being put in that hard position is what he seems to be railing against here, using language that’s probably a little bit hyperbolic.”
Lunsford will be in Massachusetts on Wednesday to push the state Senate to include mandatory prison time in the state's final version of Jessica's Law, according to the Herald. ..News Source.. by FOX News
June 25, 2008
MA- Massachusetts Lawmaker's Pledge to 'Rip Apart' Child Rape Victims at Trial Draws Fury
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7 comments:
Puzzles me most about Rep. Fagan's remarks is the tone. I've watched, and linked to, a video clip, roughly a minute long, of his "rip them apart" remarks, together with his stated intention of leaving the children with permanent psychological scars.
As a defense lawyer, I can understand his remarks. Since he believes that his duty is to free rapists, it is quite sensible for him to say, "... they'll have nightmares and they'll never have a relationship with anybody."
The threat of an attack like that would, I think, be more effective than threatening a quick death.
As an elected official, his "over the top and unnecessary" statement makes less sense.
Massachusetts, like every American state, has it's own unique culture and values: but I doubt that Rep. Fagan's remarks left a positive impact on most Massachusetts citizens. At least, I hope not.
Attorney Fagan should have tempered his argument with the fact he would either have to rip the accuser to shreds in court, or simply have no trial whatsoever.
Why waste taxpayer's money? Children don't lie. Life in prison for anyone accused.
Simple, efficient, economical.
That's pretty much how it works in a courtroom anyway.
What ever happened to case of the alledged kiddy porn found on Mr. Lungsford computer? And the sexual abuse his son was accused of... Is there any foundation to this? If there is why are they not being investigated or charged with SO offenses?
Notwithstanding... It was horrific what happened to Jessica. God bless her...
Anonymous,
I think I understand your point. However, your proposal is based on the idea that "Children don't lie."
That assertion is, at best, open to debate. And, I think you would lose. Children may not lie for the same reasons, or in in the same way, as adults.
But that doesn't mean that a child has never said something which was not true.
The accused=guilty system would be efficient, in a way, but I'll take the current mess over that option, any day.
I still remember the Duke lacrosse team: some were jerks, in my opinion, but that didn't make them guilty or rape.
As one who has observed the handling of a false accusation first hand, I well understand Rep. Fagan's frustration. This isn't about freeing rapists. This is about conducting a fair trial.
Currently, a falsely accused person is blackmailed into accepting a plea in lieu of prison rape.
The accuser is handled with kid gloves, granted rape shield protection and confidentiality in exchange for a lenient sentence. Lack of evidence, impossible and improbable testimony is accepted in order not to 'retraumatize' the victim in exchange for having hope for some semblence of a life for the accused.
There is no longer incentive to allow such kid glove treatment if harsh prison sentences are the only recourse.
Advocates espousements notwithstanding, there are far too many false accusations not to allow the accused the most stringent defense possible.
The price of capitulation is too steep.
Folks, opps, I was responding to the wrong comment, my mistake, so I removed my comment. This should explain the removed comment above.
Brian, you misunderstood my comments - my sarcasm doesn't work well in print.
Duke LaCrosse? How about the McMartin, Wenatchee, Kelley Michaels, Don Akiti, Fells Acre,Paul Ingram,Grant Snowden, Bobby Finjie accusers? All children who don't lie, perhaps except at the behest of adults.
It's not about letting rapists run amok. The name of the game is prosecutors wildly overcharging the accused, with the defense attorney countering with damage control.
It's not about truth or justice, innocence or guilt - (except in extremely rare, well fiananced esceptions (Michael Jackson comes to mind).
He/she who lands the 'best deal' wins.
For the true perp a good deal is a good deal. For the innocent person, a 'good deal' is a diaster...but it's the best option they may have. This crime has the dubious distinction of having the highest conviction rate.
Obviously not too many defense attorneys sucessfully free rapists.
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