The sympathy defense


THERE is no double standard of justice in America.

If it proved nothing else last week, the much-criticized jury in the Reginald Denny beating case proved that.

The two black men who were videotaped beating innocent whites at the corner of Florence and Normandie in Los Angeles got the same sort of leniency that allowed the white police officers videotaped beating Rodney King to win acquittals in their first trial and reduced sentences in their second.

Don't blame us, said the police -- it's a jungle out there, and we're just trying to protect you. Don't blame us, said the Denny defendants -- we were angry; we were just part of a mob.

The sympathy defense is the hot growth stock in American criminal law.

Don't blame us, we were abused, say Lyle and Erik Menendez, the Beverly Hills brothers who confessed to murdering their parents.

Don't blame me, I'm a mother and this man was suspected of child abuse, says Ellie Nesler, who was The sympathy defense is the hot growth stock in American criminal law.

charged with murder in Jamestown, Calif.

Don't blame me, I suffer from battered woman's syndrome and my husband was an abuser, even if he was asleep at the time, is the increasingly successful defense when women are charged with murdering their partners.

A traditional criticism of the sympathy defense was that juries tended to find some people inherently more sympathetic than others.

It was easier to sympathize with Bernard Goetz than with black teen-agers he shot; easier for juries to put themselves in the shoes of white police officers than those of black victims.

Sympathy often had a racial overtone. Not any more, at least in Los Angeles.

But if the sympathy defense can no longer be attacked as racism, it is still wrongheaded.

As a woman and a mother, I have an easier time putting myself in the shoes of the battered woman or the angry mother than those of Erik Menendez. But weighing personal sympathies, or adjudicating political rights and wrongs, should not be the job of jurors.

Most people don't kill, or beat people to a pulp, for no reason at all. The law demands self-control, and this demand is most important precisely when the temptations are greatest.

It is because the streets of Los Angeles are often a jungle, and because racial tensions do run high, that police officers need to be scrupulous in avoiding excessive force and even the appearance of racism.

It is because there is so much anger on the streets that participating in mob violence deserves harsh condemnation, not sympathy.

No jury can solve the problems that led to the riots. No jury can address the smoldering issues of racial tension, social injustice, polarization, the breakdown of the family, the paucity of values.

The most we should ask of juries is that they find the facts and apply the law to them. And the least we owe to juries is to allow them to do that job without worrying about the consequences for themselves and their families, without worrying about whether the city will blow up or their families will be targeted.

It's no wonder the jury in the Denny case had so much difficulty in its deliberations. Dealing with issues of race and politics, trying to balance competing claims of fairness in an unfair world and to avoid riots and unrest is no easy task.

It is what we elect politicians to do; what we expect the leading institutions of society to do; what we hope religious leaders can foster. When they all fail, as they have in this country for decades, juries and judges are left holding the bag.

People in Los Angeles have a right to be angry about the trials of the last year and a half, but the anger should be directed not at jurors struggling with hard political issues but at the politicians struggling to avoid them.

Susan Estrich is professor of law at the University of Southern California.

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