The Crack Whore and the Flower Girl

By way of explanation for the experiences that mold a judge’s perspective, Judge Richard Kopf* offered this insight as to why he may not be as empathetic toward the defendant standing before him to be sentenced for drug dealing as a criminal defense lawyer might hope:

Sentence an aging crack whore, have her hang herself in the cell adjacent to your courtroom right after you have done so, and then ask yourself how much empathy you feel for the rat bastard who knowingly feed her addiction. Do I have empathy for the self-proclaimed ”gentle” drug dealer I sentenced to life in prison, who directed his crew to sodomize a teenage girl with motor oil ’cause she didn’t pay her drug debt, and who beat others with baseball bats or pipe wrenches when the unfortunates threatened to snitch or failed to pay their bills? No, I don’t.

I won’t dwell on Judge Kopf, who has been more than generous toward me in addressing some of the points I’ve raised.  This isn’t a mano a mano discussion, and I won’t prevail any further on Judge Kopf.  Rather, I presume the parts of his job that impact his decision-making are the same for other judges, and his openness provides insight to whoever we’ll appear before next week.

Certainly, the crack whore who hangs herself in the holding cell is going to have a huge impact on one’s sense of “justice,” whatever that means, toward others. But is the crack whore’s death so connected to the next narcotics conspiracy defendant?

One would assume (since we can only assume as to why a person we don’t know committed suicide) that the crack whore’s suicide has to do with her being addicted to crack, but it leaves behind a million open questions, a million unknown influences. The immediate one is that she committed suicide because she was sentenced to an incredibly harsh sentence, even though that may not be the case.

Other questions are raised as to why she ended up a crack whore rather than a Ph.D. in anthropology. Something in her life caused her to turn to drugs, What? Why?  During the course of her crack whoredom, she might have returned to the bosom of her family or friends, straightened herself out, but she didn’t. Why not?

Instead, the blame is leveled on anyone selling drugs. Does every drug dealer have a “crew to sodomize a teenage girl with motor oil ’cause she didn’t pay her drug debt?”  That’s a horrible thing, and it’s wholly understandable that a judge would be outraged by such conduct. But it’s not true of all.  Just as the judge reacted to my “dinner proposition” with the urge to scream “that’s really unfair and you know it,” I have the same reaction.

This explanation brought to mind a comparison between the crack whore and a lovely 7-year-old girl named Katie Flynn.  In contrast, Katie Flynn could not have been more innocent, more blameless, for what happened to her because of Martin Heidegen.  On her way home from a wedding where she was the flower girl, she was killed. Not just killed, but decapitated. It was as brutal as it could be.

But Martin Heidegen wasn’t a drug dealer, whether of the vicious or gentle sort.  He was a 24-year-old in a pick-up truck who was drunk.  Tragedy ensued.

The crime committed by a drunk driver doesn’t happen when he strikes the limo in which Katie Flynn was a passenger. It doesn’t happen when he drives the wrong way down a highway. It happens when he makes the decision to drink to excess, knowing that he will later drive.

Should every person prosecuted for drunk driving be sentenced for the death of Katie Flynn? Aren’t they just as responsible for her death as the drug dealer is for the crack whore who hung herself in the adjacent room?  If the sentence is imposed for the emotional trauma inflicted by every experience conceptually related, even if factually disconnected, to the crime, then the answer is “yes,” every drunk driver is responsible for Katie Flynn, because that driver, like Heidegen, could have caused the same tragedy.  Except they didn’t.

This isn’t to be critical of the influences that comprise the human being underneath the robe.  All of us come to court with our experiences, judges included, and all of us have influences that are emotionally relevant even if there is no hard factual connection. We are human. Humans have feelings, and feelings have their impact.

But then, what do we argue on behalf of a defendant at sentence? We argue the facts of the case, the facts of his life, the relative facts of the lives of others involved.  We may bring in philosophical and moral issues that we believe to be relevant and influential, and hope that the totality will persuade a judge to see things our way.

And yet, what we need to address is the crack whore, the teenage girl sodomized with motor oil, because these are the things going through the judge’s head.  Except we don’t know that’s what the judge is thinking about as we speak to the defendant’s life. We don’t even know these things happened, because they happened at someone else’s hand in someone else’s case.

Lawyers and defendants who appear before Judge Kopf have an advantage now, as they may be aware of things that will influence his perspective. When they argue about how their client wasn’t violent, never harmed anyone, they will know that they are fighting the ghost of the crack whore.  Whether there is anything anyone can say or do isn’t clear. It’s hard to fight a ghost.

What ghosts are floating through the minds of other judges is unknown. When the judge appears unpersuaded that a sentence of slow death isn’t warranted, will it be because of the ghost?

* It’s somewhat unfair to Judge Kopf to write again about his views, as it seems unkind to use his frankness as the basis for ongoing critical discussion.  I do not view him as a “right wing nut job” at all, and if my posts come off that way, then I have expressed myself poorly.  The reason the judge’s words have appeared here as much as they have recently is that Judge Kopf has been forthright in his expression of provocative ideas that are remarkably informative for the criminal defense side and serve for thoughtful discussion. I apologize to him if it appears that I am spending too much time focusing on his writing or come off as being too harsh toward him personally. I very much appreciate that he offers his thoughts.

 

15 comments on “The Crack Whore and the Flower Girl

    1. SHG Post author

      Thank you, Judge. I was beginning to feel as if I had overstayed my welcome. Your posts are provocative and truly helpful to me to better fulfill my obligations to my clients. Maybe you can cajole some of your brethren to guest post?

  1. the other rob

    I have been reading Judge Kopf’s blog for some time now (though not for quite as long as I’ve been reading yours) and I must say that I’m finding the conversation that you two are having to be absolutely fascinating.

    I applaud you both for the ongoing civil tone with which you address matters that are clearly close to both of your hearts and implore you to keep the conversation going. This type of full and frank exchange of views benefits us all.

    1. SHG Post author

      Thanks. I’ve found it fascinating as well, and frankly appreciate Judge Kopf’s tolerance of my posts. Let’s face it, there are plenty of CDLs writing smack out there, but only one judge. Pretty cool, right?

  2. Catherine Mulcahey

    Pretty cool, indeed! I also appreciate the civil tone of your conversation, and I especially enjoy the fact that you have dialogues, not just parallel monologues about the same topic. Thank you.

    1. SHG Post author

      What end, other than to be rude to a judge who’s trying, is there to cherry picking your favorite judge? Do you understand why this comment is not merely idiotic, but needlessly offensive? There are judges we like, judges we hate, judges in between. There is one judge who has shown a willingness to opine publicly and engage, and yet there is always some douche who thinks he’s so important that he’s entitled to spank him. Guess who that is today?

      1. Jake DiMare

        My my, such vitriol.

        I assume by your reaction you believe the intent of my comment was to somehow suggest that I know something about Judge Kopf because he is federal judge from west of the Mississippi, nominated by GWB with the same first name as Judge Cebull. As if I was placing both Judges into some classification which could be judged as a group…As opposed to individuals with their own unique circumstances, worthy of the very thoughtful and thorough evaluation all unique individuals so justifiably deserve…Particularly if you are determining the fate of their life. (as opposed to simply feigning prejudice as a rhetorical device in the comment section of someone’s blog!)

        1. SHG Post author

          You assume. I merely read what you write to the extent it’s comprehensible, and take it at face value. If you had a hidden motive that wasn’t apparent from its content, then your attempt to achieve that purpose from your comment failed miserably and you should put more thought into your writing. Regardless, if your purpose was to denigrate Judge Kopf’s point of view, then you should have done so at his blog and to him directly.

          Instead, what you did was provide an offensive comment here, where I have deliberately and openly expressed my concerned that my invited guest be treated with the courtesy due his position because I find it valuable to maintain this dialogue, and I would not expect Judge Kopf to be willing to do so if he’s met with attacks or comments that do nothing to illuminate.

          In any event, I get to express vitriol. You, on the other hand, are here at my sufferance, which is increasing with this and your last comment. Do you still not appreciate how little you contribute when it comes to the law? But when you add offense, you go too far. And just as I was beginning to like you, too.

          1. Jake DiMare

            I’ve done a tremendous amount of additional reading on Judge Kopf in the last 10 hours. In regards to this specific discussion I would like to publicly admit I have been boorish, wrong-headed, and undeserving of the length you’ve gone to help me see that.

            1. SHG Post author

              I appreciate this. You weren’t that bad, but you will have the respect of every person who reads this comment.

            2. Marilou Auer

              Impressive, as far as you went. I haven’t followed you online, so this may be unnecessary to say, but please don’t limit yourself to this specific discussion, unless this is the only place where you have reconsidered your position.

              I very much enjoy seeing two of my favorite blawgers interact with one another and hope you will add something of value to their conversation at the appropriate time.

  3. Ultraviolet admin

    The question I’m more interested in here is how Judge Kopf handles the crack-cocaine disparity. The previous sentencing guides operated under an assumption that crack was so much worse than cocaine the cut off for dealer and user got pretty blurred. Having 5 grams of crack (which I think is about 3 rocks) was considered the same as having a pound of cocaine.

    One cokehead can’t easily snort a pound of coke over a single binge, while one crackhead could easily smoke 3 rocks. Heck, the teenage girl in the Judge’s hypo likely had more than 5 grams on her. The law considered her a dealer even if rationally she was only an addict being abused by a dealer (who often might also be her pimp, further abusing her).

    1. SHG Post author

      Aside from the problem of that not being the subject of the post, the more appropriate way to get an answer is to ask Judge Kopf at his blog rather than comment here.

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