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To Punish and Protect
A DA's Fight Against A System that Coddles Criminals
By Jeanine Pirro, Catherine Whitney St. Martin's Press
Copyright © 2003 Jeanine Pirro and Catherine Whitney
All rights reserved.
ISBN: 978-1-250-08794-2
CHAPTER 1
Cage the Bastards
My job as a district attorney is to enforce the law. That means I often have to deal with slime. This was the case on an October day in 2002. Barry Johnson was the very definition of slime. If the law had allowed me to feed this angelic-looking young pedophile to wild animals, I might have been tempted. But that would have been an insult to all the animals I've ever known.
At a conference table in my office, four perfectly nice couples, all good parents, sat stunned, disbelieving. The night before they had learned that their twelve- and thirteen-year-old daughters had been held for some time in the grip of a cunning sexual predator. The details were almost more than they could bear.
Barry Johnson was a twenty-four-year-old youth counselor at a local church. He wasn't your typical creep on the street. Barry was clean-cut, charming, and sincere, with a handsome, friendly face and a mop of tousled blonde curls. The kids in the church group adored him. Especially the girls; they all giggled and blushed when he smiled at them. People regarded Barry as a role model, the kind of young man they'd be proud to have called their own. Everyone loved to have Barry around. Everyone trusted Barry.
Barry, like so many pedophiles, used trust to lure the girls, one after the other, into his dark world. He promised each of them that he would be their guide, that he would gently introduce them to the mysteries of womanhood. He assured them time and again that there was absolutely nothing wrong with what he asked them to do. He would keep them safe. He would be exquisitely caring, a patient lover who promised to preserve their virginity by only engaging in oral and anal sex.
The girls were swept away. Over time, they would do everything Barry asked. They allowed him to photograph them at each stage of their budding sexual relationships. He convinced one girl to set up an Internet chat room, and to invite her friends to go online and talk to him about sex.
Barry's underground network was expanding. Then one of the girls told her mother, and just like that Barry's façade was shattered.
It was painful to look into the tortured faces around my conference table — the parents of Barry's victims. One distraught father hunched over the table, clenching and unclenching his fists, his eyes red and burning. A mother who couldn't stop crying swiped at the river of tears flowing helplessly down her cheeks. Another father sat there, mouth agape, shaking his head back and forth, as if to dispel the notion that it was true, that this could actually have happened to his daughter. But most of the parents sat still as stone, their faces empty, their eyes vacant with shock and grief.
I was deeply moved by their plight. Just yesterday everything had been going along normally. They were living their lives, confronting the usual mundane crises that all families come up against. And then this thunderbolt came hurtling down from the sky and tore them apart.
My goal was clear. I was going to put Barry Johnson away, and that involved enlisting the cooperation of the girls and their parents. That day in my office I had another vital job to do — to help the victims begin the process of healing.
Not everyone agrees with me on this. Many of my colleagues think prosecutors should concentrate on the crime and let the social workers and psychiatrists pick up the pieces of the shattered families. That attitude infuriates me. The system depends on victims to help us prosecute criminals. We use them, put them through the wringer, and take advantage of their trauma to make our case. We cannot then say, "Thank you very much. Good luck, good-bye," and throw them away. We must provide a support system for victims to help them heal. To ignore this obligation can lead to more crime, especially when the victims don't have a way to address their hurt or rage. Working with victims is an integral part of my job. It is crucial that my office is more than a clearinghouse for crime.
The parents of the girls were too stunned to say much, but I could read the agonized questions in their eyes: How could I not have known? How could my daughter have let this happen? How could she not have told me? How will we ever be able to recover from this? I felt their torment because I would have been asking those same questions had our positions been reversed, and had one of my own children been violated. As I so often had to do in these situations, I fought back my own parental fear — the idea that my son or daughter could be harmed. I realized, though, that the empathy I felt as a mother always snapped me back into a fighting mode. My ability to relate to their horror gave me an added determination to get the bastard who had done this.
I knew from experience that the parents would have a much harder time than their daughters putting this behind them. Right now, the girls seemed more embarrassed and chastened than traumatized. They were too young to fully understand the jeopardy they had been in. The parents would have a tougher challenge. Their guilt and anger would keep the wounds open and festering long after their more resilient children had healed and moved on. It was crucial that the parents get past the guilt they were experiencing so they didn't pass it on to their daughters. Or worse, blame the girls for actions that none of them — parents or children — were able to control.
Even as I tried to console them, my words felt inadequate. "I am so sorry that this has happened, but know that your daughters are going to be okay. You have to help them. Your most important priority right now is to concentrate on healing yourselves and your daughters."
They stared at the table, hearing but not really comprehending. "There is only one person to blame here," I said quietly, "Barry Johnson. Your daughters didn't do anything wrong. It's not their fault. And it's not your fault. This didn't happen because you're bad parents, or your daughters are bad girls. Bad things can happen to good people. Young girls are curious — that's a normal thing. They want to experience life. And this guy was extremely cunning and manipulative. He was very good at selling himself to them and gaining their trust. Guys like this — they're incredibly devious and shrewd. They're calculating, savvy predators."
And now came the hardest part. "The grand jury is convening in two days. Your daughters will be called to testify. It's a closed, secret proceeding. The defendant will not be present. And we will do everything in our power to make sure that none of these young women are identified in any way, shape, manner, or form."
They were reacting now, the nos already forming on their lips. I leaned in closer. "Listen, I understand how difficult this will be. I am a mother of two teenagers myself, and I would agonize over this decision. But I know from decades of experience that there's a positive aspect to this. Part of the healing process involves your daughters talking about what happened to them. Yes, they were victims, but we can empower them now. Again, we will protect their identities."
"But if he goes to trial? What then?" a mother asked. Her eyes were bloodshot and puffy. She dabbed at her tears.
"He may try to plead guilty to avoid a trial. But I want significant time on him. If I don't think we'll get enough years, I will not cut a deal. Period. He must not be allowed to do this again. We'll go to trial. If that happens, your daughters will have to testify in court, because it's the defendant's constitutional right to confront his accusers. But the media won't report their names. We will protect your daughters from being victimized any further. I promise you that."
These good men and women, drawing on an inner strength they didn't know they had, slowly nodded their heads in agreement. Their daughters would testify.
* * *
There was a time in our history when these families would have decisively settled the matter themselves. Frontier justice was meted out by one's kin. Women and children were dependent on their fathers, husbands, and brothers to protect them. We have rejected vigilante justice in civilized societies. In exchange for our agreement not to take the law into our own hands, the government promises to protect its citizens and to punish criminals. This is the social contract we have forged. When the girls' parents sought no private vengeance against Barry Johnson they lived up to their part of the contract.
By bringing their daughters to testify they expressed their inherent trust that the system would deliver justice. My sworn duty was to see that the system held its part of the bargain, but I knew something they didn't know. The Wild West has been relegated to the past in more ways than one. Justice is no longer swift and sure. It is slow and uncertain. Over the centuries we have turned the criminal justice system into an intricately woven lattice of law and procedure. At times, the system's purpose — to guarantee that victims are avenged by the state — can be lost. Too often, victims are further scarred by the very system that is designed to protect them.
The prosecutor I assigned to the case was a specialist in child sexual abuse from my Special Prosecution Division. I created this division soon after I became district attorney in 1994, because I knew firsthand that certain victims needed particular care and expertise. The division's handpicked prosecutors have the training, temperament, and compassion to handle the most fragile victims and the most delicate issues. The room where the girls would be interviewed was homey and comfortable, a haven inside the cold concrete structure of the courthouse. We could provide a semblance of softness, even in this setting. We could be nurturing. The assistant district attorneys all know that caring for the victims is a priority in this office.
Each of the girls was interviewed separately as the parents waited outside. The prosecutor needed to determine the exact nature of the crimes that had been committed. She also needed to prepare the girls for what they could expect from the grand jury. In the process she wanted to establish a rapport with the victims, a sense of trust that would make them feel less frightened of the process.
Two days later the girls testified before one of the four grand juries we have sitting every day. It is the task of the grand jury, which is made up of ordinary citizens, just like a trial jury, to listen to evidence and to make a determination about whether or not there is sufficient legal evidence and reasonable cause to charge a person with a crime. All felony indictments issued in New York must pass through the grand jury process.
As I told the parents, the grand jury hearing was secret. This proceeding, unlike a trial, could not be public, nor could the identities of the witnesses be made known. Although the girls' parents could not be present, which was difficult for everyone, the girls were terrific. I was very proud of them. It takes courage to right a wrong.
In addition to the girls' testimony we had also collected a tremendous amount of other evidence against Barry. In particular, we had possession of videos and pictures that were seized when Barry Johnson was arrested. It was a heart-wrenching, sickening experience to watch those videos. These were images that could keep you awake at night: Adult men having sex with children, and forcing them to have sex with other children. Men masturbating onto the naked genitals of babies. I kept thinking of these innocent little children, forever memorialized in some pervert's downloaded file, one that's been sold or traded to a network of pedophiles across the world.
The grand jury voted to charge Barry with multiple counts of Sexual Abuse and Sodomy in the First Degree. The judge set bail at only $20,000. We vigorously pleaded for a higher bail. In our experience, pedophiles like Barry don't just sit at home praying for redemption while awaiting trial. They collect other victims. They are a continuing danger to the community.
Only weeks before Barry's arrest, we caught a convicted pedophile on the Internet trying to set up a date with a fourteen-year-old boy the night before he was sentenced.
In New York State, as in most states, we don't have preventative bail. We can't make an argument that a defendant might commit additional crimes, even when we have good reason to believe this might occur. The way the law stands now, the amount of bail is sufficient if it assures a defendant's return to court. A judge may consider character, reputation, criminal record, family ties, and employment in making that assessment. These factors, though important, don't address the real issue of concern in cases like Barry Johnson's — that is, the likelihood that the defendant will cause further harm while out on bail.
The outmoded bail statute is a gaping hole in the armor of justice, a situation in which the law fails to consider what is best for the majority rather than the individual. The questions we should be asking are clear and relevant: Are we placing our children at further risk? Is the perpetrator likely to repeat his behavior again? In nearly every state, bail criteria fail to consider the potential danger to the community of a defendant out on bail.
An exception is Arizona. In 2002, Arizona became the first state to pass a bail reform act specifically designed to protect the community against sexual predators. The referendum allows judges to deny bail if the evidence is strong and convincing. If bail is granted, defendants are required to wear electronic monitors. This is a small step in the right direction. There are lobbying efforts in nearly every state to institute similar changes.
In New York, however, we weren't allowed to speculate about Barry Johnson's potential for future predatory acts. That's the law. So, within twenty-four hours of the bail hearing he was released into the bright sunshine of freedom. And I couldn't do a thing to stop him. Yet.
* * *
If you walk down the hallway outside my office at the Westchester County Courthouse, you'll get a pretty good idea of what law and order has meant here in the 208 years since the first DA rode into town. The portraits of my predecessors line the walls, and they're a pretty stern lot. All men. My official portrait isn't on the wall yet. I'm afraid it might cause some of the old boys to turn over in their graves.
I'm the first woman to be elected district attorney in Westchester County. Before that I was the first woman elected as a county court judge, and before that I was the first woman in the county to try a homicide case. These firsts are significant, not because they happened to me, but because they are steps forward in making our system more inclusive. As long as women were not represented in positions where policy was formed and laws were made, they could not expect the law to treat them fairly.
Women have traditionally been excluded from participation in and protection from the law. Our society is the product of a history that considered women incapable of testifying because they were believed to lack credibility. We are a product of a history that deemed women incapable of being jurors because they lacked common sense. In 1864 the Supreme Court ruled that women should not be allowed to practice law because they were the weaker sex. We may laugh at these archaic notions, but they haven't completely disappeared in modern times.
In law school I was one of a handful of women in a sea of men. More than once I was criticized for "taking a man's place." Women of my generation often find themselves in the position of breaking new ground in male-dominated fields, and it can be difficult and lonely. Sometimes we're held to a higher, or at least a different, standard. I assure you that none of my male predecessors ever received the media attention I have about the style of their hair, the cut of their suits, or their relative attractiveness. That comes with the territory for a woman, and I'm more amused by it than offended.
I do know this: As a woman who has experienced what it is like to be without power, to be trivialized and not taken seriously, I am able to listen to victims with a different ear. I sense their pain and their feelings of powerlessness. I am able to bring this empathy for victims to the job of law enforcement. It makes a difference.
When victims enter my office, they don't encounter an intimidating or impersonal environment. I am a public servant — their servant — and I think of my office as their living room. It is warm and inviting, with comfortable couches where we can sit together as equals. One of my desk drawers is filled with toys for those times when children are involved. My coffeepot is always on, and a small refrigerator is stocked with soft drinks. Boxes of tissues are within easy reach, as many tears are shed in my office. These small gestures can make the critical difference, especially when individuals are frightened and reluctant to testify.
(Continues...)
Excerpted from To Punish and Protect by Jeanine Pirro, Catherine Whitney. Copyright © 2003 Jeanine Pirro and Catherine Whitney. Excerpted by permission of St. Martin's Press.
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