Scrambled justice

National Review, Dec 8, 1997 by William F. Buckley, Jr.

It's worth a moment to reflect on the idea of justice gone wild. What comes to mind is lynch justice. Or "vigilante" justice. As an exercise, assume that the jury had freed Louise and that a crowd of angry reactors, pledging the protection of innocents, had stormed into her jail and strung her up. Their excuse, if they were detected and arraigned, would have been that they were correcting an abuse of justice. The prosecutors would point out to the jury that abuses of justice can't be put in the hands of mobs. But what happened in Boston was an orderly reaction against an alleged miscarriage of justice at the hands of a scholarly and sedate judge.

Much of the United States and all of Great Britain is wild with grateful glee. The contention there, sometimes spoken, everywhere implied, is that but for the judge, a terrible injustice would have been accepted -- 15 years in jail (minimum). If this were so, then anger might have reasonably developed against the perpetrators of injustice, the jury. But here the confusion mounts, because, in his edict, the judge took pains to exonerate the jurors: indeed he thanked them profusely for their work.

Attention was given, on Monday and Tuesday, to the intricate question of the tactics of the defense. Mr. Scheck might have pursued the line that Louise had indeed killed the baby, but that it was an understandable accident -- she had no reason to suspect that the gestating lesion in the baby's brain would be sensitive to what for any other eight-month-old child would have been merely a little admonitory knock on the head ("Now quiet down, you little brat, I'm tired of your yelling"); so-what time. But as every schoolchild now knows, the defense thought to win it all the way, by pleading that the baby had been "killed" not by Louise, but rather by a jolt that might have come from any quarter, indeed from the baby's mother giving him routine attention.

What the judge did was to say that such a line of defense might have been taken. The judge faced the need not absolutely to undermine the jury, which is why his verdict was that the mishandling of the baby by Louise was indeed the proximate cause of the baby's death. This also made it easier on appeal. If the court had held that Louise was not the agent of the baby's death, the higher courts would have had to decide on a black-vs.-white question of fact, and questions of fact are supposed to be the responsibility not of judges, but of juries.

The question inevitably occurs: Why do we need juries if the judge has the matter so completely in hand? The easiest answer to this is that just as a judge can mitigate excesses of a jury, so a jury can mitigate excesses of the prosecution, though not always excesses of the defense. Moreover, a jury that finds guilt can be overridden, but not a jury that finds innocence. That much for the legal picture.

But there is anger on the part of a prosecution that believes it proved beyond a reasonable doubt that Louise handled the child in such a way as to risk his life, as a drunk driver traveling 100 miles per hour risks the lives of himself and others. However compelling the prosecution's case, the public, one would judge, is not going to tear out its hair the way we all did on the O. J. Simpson case, where the evidence was incandescently there, to prove that O.J. had killed his wife and her innocent escort. Every time a clear-headed American passes him on the street, he will gag not only at the unpunished crime committed, but at the strutting symbol of the law's corruption.

It won't be that way with Louise Woodward. There will be plenty of people who think her guilty of gross carelessness, of giving way to a temper, or of unschooled manners in dealing with a baby. But not, one would guess, people who think of her as a callous killer who set out to end the life of the baby. The prosecution did establish that Louise was self-indulgent, an all-night pleasure-seeker. But she is not in the category of the Moor murderers, and the probability is that she will one day have children of her own and will treat them with great care, and that every night she will say her prayers, with a most earnest one for Judge Hiller Zobel.