Thompson, Auman, and Judges; How is Your Legal Policy?
Copyright 2004 Jason L. Pecci
After some time in prison one assembles a back end criminal law education. I’ve seen everyone in here railroaded in every way and many who would have collided with the legal system no matter what. Screwed or deserved the travails to get through the legal system are radically different than any defendant ever expects - a gauntlet of the most devious exigencies.

“Let the system work; good old American jurisprudence will take care of you; truth finding; an impartial evaluation by peers; a just judgment and sentence…” Just lie back and enjoy the systemic rape. Oh yeah. Who's your prosecutor? Who's your prosecutor? You want to go to prison, don't ya? You bad boy, you must be punished. The emotional rape by legal procedure is astounding… and complete.

Some people probably deserve a sloppy, no defense, cut to the punishment prosecution; right? There are a few emergency ramps to keep those sentiments from freewheeling, a little 5th and 14th Amendment due process, a smattering of court rules and mandatory procedures… All keep the illusion complete that a defendant gets treated fairly. That illusion of equitable treatment is probably what got Hunter Thompson onto the scent of the Lisl Auman case.

An addicted news hound can't help catching the stench from that one. He saw the run away machinery used to stack and overcharge and bring to bear the overwhelming force of the state upon a citizen. The Doctor saw some things that didn't add up and applied some gonzo analysis (Kingdom of Fear; HST, 2002). He probably was not surprised that a person could be convicted of first degree murder while handcuffed in police custody and not having killed anybody. Legal logic allows these anomalous validities. Going to criminal court is like walking around M.C. Escher's never rising stairs and being stoned to death by the architects. The Dr. understands this.

Hunter has weighed in heavily on the Auman case and Denver police in the recent Vanity Fair (5/2004). The Auman prosecution looks vengeful and recent police shootings look worse. Lisl's burglary partner shot and killed an officer after a car chase in 1997 and the Denver police have racked up the highest urban per capita police homocide rate in the U.S. last year. Lisl was liable for officer Vanderjagt's death. The Denver police department is glad for her liability, while sorry for their shootings. The appearance of inequitable application of the law, vengeful prosecution, and all around illogic got the Dr. 's Selectric(TM) smoking and I can't wait to read the article.

There is nothing to ponder until then but the law.

What becomes manifest after some back end exposure to criminal code is the machinery behind the book - the cobbled government structure. A statute is born from proposal and ratification then implemented and applied and sometimes analyzed and re-interpreted because - well, applying laws to people is always a contentious business. A bill is always toothless, or ponderous, or over-broad, or excessive, or poorly crafted … and the only way it is palatable to the public is if the satisfied middle is maximized.

Broad spectrum appeal makes sense because the proposed law is for the benefit of the people. Once the opposition in the tails of the bell curve - fanatics, zealots, conservative and liberal nut bags - become an easily marginalized minority, then the law is not over broad, ponderous, or generally crappy. The legislature has a bill for you citizen; a full on law now.

That is, as a recently prosecuted Martha Stewart used to say, "A good thing." Whether we know the how, what, who or why of laws, we need them. There is certainly a better selection for each citizen, but the average set we get is for the whole average bunch of us. Our criminal statutes infer that well meaning laws are written to protect good people from bad people and punish the bad when protection fails. This is known as legislative intent - what the authors intended the law to do for you. The legislature has to pass the bill by vote and get executive approval for the bill to become law - statute. If the executive (governor for state, president for federal) disagrees with the bill and vetoes, the legislature may still get a super majority to turn their good intent into good law.
Somewhere in all the finagling to get legislation passed is the under-riding concept of justice.

It is doubtful that anyone has a grasp on this mother lode topic, least of all a rapacious American that has been to law school and voluntarily pursues politics to the point of presuming to impose will upon others. The strange mix of presumptuousness, arrogance, and greasy salesmanship that goes into elective aspirations, and worse, success, typifies the loss of humility in U.S. culture. Unemployed people should run under insanely radical platforms, as spoilers, to scare everyone so badly that the correct person, with humility and horse sense, gets all the votes. There is something to be said for the political savvy regarding their ability to get things done in a legislature, but none of it is good.

So, here is this group of self deluded sophists who are bombarded with their whole constituency's needs and cultural wants - a wholly implacable shit storm of demand. You probably didn't know that was going on at the capitol. That is because lobbyists are slinging the freshly dropped demands for you, incessantly.

Somewhere in this churn of demand and attempted placation homicide statutes have evolved and matured. Two conditions for the most egregious killing were developed: 1.) the premeditated killing of one human by another, 2.) while committing a higher
order felony a person dies. This means that a person is as culpable for the highest murder without the intent to cause death as that of premeditation. The origins of this philosophy indicate that a legislature wanted to make the death penalty avail¬able to intolerable people that cause death, thereby implementing the non-intention extension known now as "felony murder." This satisfies the retributive intent of the death penalty allowing an intolerable facilitator, but not perpetrator of murder, to be eliminated. It certainly seems that a legislature intended to protect a constituency from horrible people.

Application and interpretation of a law is as subjective a pursuit as humans can endeavor. The Constitution and Bill of Rights are constantly re-interpreted and re-applied. So, what’s the problem? Isn't the Constitution virtually written in stone? Why all the vacillation? It is caused by cultural change; the fluctuating moving target of fluctuating culture being ill serviced by elitist and venal politicians continually making laws that are as effective as trying to run in two left footed running shoes.

The only reason criminal code may be somewhat excluded from this dysfunction is, it is derived from the Model Penal Code (MPC). The MPC is a proposed set of criminal precepts, written by the American Law Institute that governments may standardize their code to. This hypothesized ideal, by non-elected legal scholars, is as precise a preferment of criminal concepts as may have existed in human history. It is one stop shopping for legislators who use pieces of the MPC to cobble together a less comprehensive package for their constituents. Value is subtracted by the legislative process. One thing the MPC accomplishes is exhaustive treatment of the concepts of criminal liability and a mental state that accompanies a criminal act. The whole thing breaks down to assigning responsibility for what happened via a criminal charge, by correlating the occurrence to a mental state. You are responsible for what you intended to do.

The Colorado murder statute reflects that liability in five of the six first degree provisions. In the felony murder pro¬vision accountability is transferred to all the parties of an associated crime. A participant is liable in the highest degree for a death incident to their crime, even if they didn't cause it. So much for the MPC prescription of intent and effect; too narrow apparently.


There are exemptions to felony murder; six “affirmative defense” provisions. The gist is that the crime partner is wholly liable for the homicide and you are a dupe. You had to not know that your partner was armed, not have been armed yourself, not have intended to engage in deadly behavior, and "endeavored to disengage immediately upon having reasonable grounds to believe that another participant is armed with a deadly weapon or intended to engage in conduct likely to result in death or serious bodily injury. Defendants are often found to fail the disengagement clause. There are, unfortunately, thousands of instances of a person not of homicidal intent being present when a person gets killed but very few who immediately bailout and satisfy the disengagement clause for defense to first degree murder.

Lisl Auman may have failed a few of the conditions of defense for felony murder. Her behavior probably comported more with burglary and evasion of capture than homicide but she also probably knew her crime partner was armed - failure of exemption (d). It takes all six to have an affirmative defense. Clause (e) may have been argued too; if you knew (that means know before hand) that your crime partner was going to behave homicidally then you are liable for his killing. Who knew what? When?

Recalling Don Rumsfeld – “What we knew and didn't know and when we didn't know it aren't clear.” A priori knowledge or denial of it is more a dodge of political accountability than a piece of robust criminal code. How the fuck does anybody know what someone thinks they are going to do or even believe them if they explicitly state it; A guy with a nut jacket as thick as a phone book told people all around Grand Junction he was going to kill someone. No one believed him until he shot five itinerant workers. A violation of the disengagement clause is the easiest way to secure a conviction. You didn't disengage from a homicidal scumbag so you are one too. It is explicit and easily applied by even the most inept or blindly vengeful prosecutor. Application of the law unfortunately is left up to prosecuting attorneys; the class of human most bereft of dignity, values and conscience on the planet. These scum bags wouldn't empathize with their own mothers' birthing pains if it wouldn't generate a headline and a promotion. In their latitude to apply law, as passed down to them by the legislature, they, do what ever they want - violate deadlines, respond pluraly to defendants motions, deliver messages via S.W.A.T. team "take downs,” and generally run the community. Don't believe me? Go commit misdemeanor assault on a prosecutor and get back to me - if your warden allows inter-prison mail! These aren't citizens they are the royal guard to the D.A. You can already see how a prosecution works in Lisl's case; affix the maximum charge, tell twelve people it is appropriate, civic duty demands a guilty verdict; the great imperative of justice, as they see it, is served. The judge makes sure all the protocols are upheld, the law is judiciously applied, and judgment is firm, mostly. Later he will issue sentence for the fore- gone guilty judgement.



You can already see how a prosecution works in Lisl's case; affix the maximum charge, tell twelve people it is appropriate, civic duty demands a guilty verdict; the great imperative of justice, as they see it, is served. The judge makes sure all the protocols are upheld, the law is judiciously applied, and judgment is firm, mostly. Later he will issue sentence for the fore-gone guilty judgement.

Now, after some years have passed, the appellate courts may weigh in (the State Supreme Court is an appellate court). Hunter appeared on the scene between the initial judgment and first appeal with an appearance at a rally and some lucid screeds about the discontinuity between Lisl's actions and legal response thereon.
Under legal logic the citizens got their cop killer. She is guilty of first degree murder per §1-3-102 (1 }(b). The appellate courts review the law and its application relative to the facts. This is where things get interpretive, quickly. Appellate judges' easiest course is to drill down to legislative intent and evaluate whether that was carried out in an appealed case. Sounds like a simple exercise of logic; was the law applied as intended? The contortions, twisted allocutions, and dubious rationales that are under taken for this exercise are as numerous as astounding.
A result is imperative and a rationale must be put in front of it. Appellate courts are the citizens' rationale factory. It is debatable whether these critical thinkers ratiocinate to a conclusion or start from a conclusion and rationalize backwards (induction vs. deduction) but tortured opinions indicate that they have difficulty in either direction. That isn't to say that they don't think about the facts of a case and live in a vacuum of legal theory. They just don't re-investigate and only comment on the applicability of the law to the defendant's actions. If properly confronted and queried - no appellate judge answers a question not asked - they will comment on the validity of a law as well as its application in a certain instance. This is touchy as it is a push back on the legislature for implementing an invalid law, although that check; and balance is the whole intent of the division of powers among the branches. This has become so culturally unpopular, among legislators that it has become known as "judicial legislation!" by "activist judges."

Appellate courts must remain within the bounds of evaluating the applicability of a law and not step into the; developmental aspects, or incur wrath. It is no surprise that the most lawyers with political aspirations, who write laws, don't like being second guessed by the most jurisprudentially inspirational lawyers who are mandated to do just that. Conflict and disharmony in government is what people are used to. Being caught in a cross fire is what is upsetting. Unemployed by the executive branch, over prosecuted by the judicial branch, dictated to by the legislative branch, and on the hook for all the inter-branch strife; if that is the environment Hunter Thompson sees, disgust at the Lisl Auman prosecution and Denver police's propensity to lethally shoot people isn’t an unreasonable reaction. The executive branch is remarkably mostly off the hook for the criticisms at hand. The police work for the D.A., in practice if not theory. That implicates Bill Ritter (18th district D.A.) and his cheka more than anyone else. There were some counter statements to the good Dr.'s imputations that probably originated from that office and proves that the most offended are the most guilty. No one wants to be outed as a thug but if you shoot and prosecute as liberally as the Colorado 18th district, criticism is justified.

The state supreme court is left with the final legal word, except for a Federal Habeas Corpus petition, on the application of Colorado murder statute against Lisl Auman. It has been stated by jurists that the contemporary value set of an evolving culture determines the interpretation and applicability of law - current laws for current citizens. This presents the possibility that the people, citizenry in general, may not want Lisl Auman in prison for life and by that rationale not agree with her prosecution nor possibly the particulars of the statute. Is she really culpable of first degree murder? If the state's highest judges consider it they will have stepped outside their purview - guessed what the citizenry wants and "judicially legislated."


It is most likely that they will say something like: "Though Ms. Auman did not directly cause the death of officer Bruce Vanderjagt she did contribute to the events causing his death in a manner consistent with the first degree murder statute, specifically §18-3-102 (1 )(b). The application of this statute was proven correct by the guilty verdict rendered by twelve impartial jurors. This does not imply that the finding is perfectly just but just a judgment under a law validated by precedent. We affirm the lower court's finding."

This is a guess, with out any research of the first appellate court finding. There was one dissent, without an opinion, in that prior decision. That carries all the implications of an Alan Greenspan evaluation of economic conditions. All anyone knows for sure is that the court will look at the evidence presented to them and run it through all the distortions, contortions, discontinuities, flips, flops, musings and resignations that jurisprudence doctrine offers and produce a decision. The last fragmentary conclusion will be what gets all the press and coffee house discussion. Some will think law and courts are fair and just and others will feel steam rolled by a juggernaut of bullshit. In the middle of the whole shit swirl of invective and polarization will be a small cultural shift - an imperceptible adjustment of law catching up to a culture that will continually need just and equitably applied rules.
END – 5/20/2004
JLP – copyrighted on first page – all rights reserved