A whipping escaped?

The news media today announced the death of Peggy Railey, who succumbed after almost 24 years in a persistent vegetative state. That length of time is easily a generation, so there are many adults today who are completely unaware of who Ms. Railey was, how she was so severely injured, or what the significance is or was. For the last of these, think of the recent acquittal of Casey Anthony, the decade and a half old not guilty verdict of O. J. Simpson, the 30+ year old imbroglo involving Fort Worth’s Cullen Davis, and any number of alleged perpetrators whose guilt seemed to be a forgone conclusion, but were acquitted by a jury.

Shortly after Easter in April 1987, Peggy, the wife of Walker Railey, the then Senior Pastor of the First United Methodist Church in Dallas, was found strangled nearly to death in the couple’s home. She did not die then, so it was not technically a death or legally murder, but her brain damage was so severe that Ms. Railey was left in a coma (technically a persistent vegetative state) from which she never awoke. For all purposes other than biological metabolism, she was dead. Her family was left with nothing but hope, which now is permanently unrequited. What if anything, can we learn from Peggy Railey’s hideous fate?.

Walker Railey was the obvious suspect, as spouses nearly always are in homicides where the perp is not immediately known. An investigation revealed he had the means, motive, and opportunity. But no hard evidence ever linked him to the assault on his wife. He later lost his pulpit, his ministerial credentials, and was found to be civilly liable to the tune of $18 million (which he was unable to pay) in a suit he did not contest. After nearly 5 years, Railey was indicted for attempted murder, tried before a Bexar County jury on a change of venue, and acquitted in 1993. The prosecution could not get beyond a reasonable doubt.

There are those who will say that the Railey affair, and the others mentioned, were miscarriages of justice brought about by the naivety or gullibility of jurors, and the entire system should be re-thought. Those who protest usually have not heard the evidence, or lack thereof, that the jurors heard, but they often do have a point. Jurors are swayed by emotion and prejudice, like other human beings. But so are judges and arbitrators and other decision makers. Nevertheless, most jurors do their jobs, dependent upon other human beings of varying abilities – witnesses, lawyers, judges – to present ambiguous facts to be sorted out. In a criminal trial, though, it is the reasonable doubt standard that creates the hurdle where those who, by logic and common sense most probably did the deed, may escape criminal conviction.

The concept of “reasonable doubt” seems to be self-evident, but some courts and some legislatures have attempted to further define it, although without much success. Beyond re-phrasing it as a doubt beyond reason, it appears incapable of further elucidation. For a century and a half prior to the 1900s, the Texas courts did not give a jury instruction defining “proof beyond a reasonable doubt.” considering it to be understood by adults of normal intelligence. The Texas Court of Criminal Appeals took a plunge in 1991 and defined it as the “kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs” and made that definition a mandatory jury instruction. Yet, several years later that court reversed itself, explaining that “reasonable” and “doubt” are commonly understood.  While it appears to exclude the whimsical and fantastic, or “shadow of doubt” hypotheses. It nevertheless remains the highest standard of proof required by the law.

While often criticized, especially by victims and their advocates, this standard of proof is the bulwark of the Anglo-American criminal justice system that holds that it is better that many guilty go free rather than one innocent be wrongfully punished by the power of the state. This makes paramount the interests of individuals over those of the collective, in this case, the state. Recognition of the value of the individual in this manner brought us our of the darkness of feudalism and hierarchical classes that existed in the millennia before the emergence of the modern Western World.

Still, it can be galling when the bad guy escapes the clutches of the law. One of the things I learned as a police officer, as well as a lawyer, is that happens quite a bit. I also observed that, while one might get away with criminal behavior for awhile, it eventually catches up with him. The perp that gets away today will be caught and convicted of something else later on. O.J. Simpson exemplifies the proposition that what goes around, comes around, eventually. Of course, eventually may take awhile. In the meantime must we have justice? If we do, bear in mind that if we were able to achieve it in all cases, in the words of Shakespeare’s Hamlet, who among us would escape a whipping.

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