Can People Retain Their Humanity in a Sterile Court Room Setting?

Can People Retain Their Humanity in a Sterile Court Room Setting?

By Glen R. Graham, Tulsa Criminal Defense Attorney, http://www.glenrgraham.com/

In, ROY v. STATE, 1979 OK CR 115, 602 P.2d 226 , the Oklahoma Court of Criminal Appeals in reversing a first degree burglary conviction from Tulsa, Oklahoma, held that the breaking and entering in this case was "not the sort contemplated by the Legislature in this statute, but was concomitant with the physical attack on the complaining witness." A man had a confrontation with a neighbor yelling through a window at his neighbor and the defendant hit him through the open window and ended up inside the home having a physical altercation. The guy either hit him through the window screen or the screen either fell down or was moved during the altercation but the court found that this was "not the sort" of breaking and entering contemplated by the legislature.

I would theorize that in 1979 under the specific facts of the Roy case, the court viewed the altercation as an invited or "mutual combat" type situation in which the "complainig" party was not a truly "innocent" party but was partly at fault for inviting a physical confrontation with his neighbor. In the sterile setting of a court room, three times removed from everyday life, a person might theorize that the neighbor should have been a "better man" and ignored the taunts and insults and disparaging comments of his neighbor. In theory, "sticks and stones may break my bones but words will never hurt me." In real life, in the grimey world of the everyday working man or woman, people do not just ignore the taunts and insults and disparaging comments of other people. People react. Anyone is capable of reacting. Even a judge, prosecutor, internet blog reader, police officer or just the everyday ordinary individual. However, how the person choses to react can mean all the difference in the world from being charged with a serious crime or not.

Pull out a gun and shoot the person and you will be charged with murder. Stab the person and you will be charged with a felony. Hit the person with a fist and you will be charged with assault and battery. If you are a judge, I guess if it occurs in open court, the person will be arresed for contempt of court. If you are a police officer, and you carry a gun and a badge, and in theory you are trained to to react correctly to mere insults without losing your temper and beating the crap out of the guy or gal. If you are a lawyer, I guess you sue, (in theory). Counselor's talk about "self-control" and "anger management" and theorize that this person is re-living some past issues in their lives.

Some courts are less willing to look at the practical aspects, some one invites mutual combat and gets hit through a window and ends up inside the home. Is it first degree burglary or assault and battery? Moving the screen or the screen being pushed out of the way, does that make it a first degree burglary? Was there evidence about the screen --- did it fall down --- was it even on at the time --- ?

There is no specific jury instruction on "mutual combat" and the law does not formally recognize "mutual combat." Informally, it is an accepted fact of everyday life that people on occasion are going to engage in "mutual combat" and some people call it "professional wrestling" or "boxing" or "football" or "soccer" or other types of competitve and combative sports.

Has our society changed our people such that only "effiminate" non-competitive, soft, flakey, easy going, intellectuals are in charge and the rough and tumble, hearty, competitive, hard, macho man is no longer acceptable?

Have we become a society of "wimps," "losers," "cry-babies," "momma's boys," "effiminate-soft-scardy-cats" ?

Can juries retain their common sense and see through the over-charging and over-prosecution of people living in the real world and not in a sterile court room setting? Can judges retain their common sense and humanity in a court room and their "gate-keeper" function or do they merely cave into political pressure?

Can prosecutors look beyond the face of the charges and see the underlying common sense questions --- guy insults neighbor --- neighbor hits him --- what would be the right conviction --- felony burglary or misdemeanor assault and battery? It is common knowledge that prosecutors sometimes file the most severe charges because the cases are often plea bargained down to a lesser offense. What about the defense lawyer, does he or she have common sense? Shouldn't a defense lawyer see that this is really primarily a misdemeanor assault and battery and not a true first degree burglary? Shouldn't a police officer be trained to handle mere spoken insults without over-reacting and beating the crap out of the guy or gal and then calling it "resisting arrest" or "obstructing an officer"? Doesn't a certain amount of name calling come with any job --- lawyer or police officer? Are we wimps with thin skins who over react to stupid jokes and "put-downs" and "come-ons"?

Why did God give us a brain if we don't use it? What makes a human different that the savage beast of the field --- isn't it in part the conscience and the "moral" understanding and ability to have a sense of self-lessness and a willingness to give to fellow human beings and a higher sense of understanding than just being a beast of the field? If man is made in the image of God, shouldn't man have "moral" values and a higher understanding and conscience rather than just living on instincts and in a survival mode?

Can jurors and judges and lawyers and police officers retain their Humanity?