Daily Archive for Sunday, March 5th, 2006


people deal with medical problems, people deal with legal problems, doctors and lawyers, but what if a lawyer looks at the having of legal problems as the problem to solve. suppose we study how to have fewer problems, how would we do it and actually get along. one way is to damp everything down with a rigid authority structure, down from the emperor to the lowliest peopn (i started typing people and ended typing peon), but what if the people cannot be dealt with by divide and conquer without destroying ourselves, what if we are all connected, then the question becomes, are we capable of governing ourselves. there may continue to be closed spaces in the cyber world, walled off by gates some less permeable than others, but this is not our challenge. our challenge is creation of the open space in which all of us and any of us connect together. in this space we must learn to moderate. Jimbo Wales for the second Berkman prize, Richard Stallman was the first, a model expression of moderation expressed in person and in code.

public media, wiki mania, global voices join in a process of generativity to demonstrate that we are capable of governing ourselves including even the most evil among us. our task is not to kill evil but to embrace it.

One of my students, tells a pertinent story:

   In the Necker Cube, different images can be seen by observing the same space in a different way. Within itself, the Necker Cube contains all the “information” necessary to create these different perspectives. There are times, however, when a crime is so horrific, that it offers no alternative perspective within itself. In such cases, it appears that the only acceptable outcome is achieved by abandoning ourselves to the full measure of our vengeance. This need not be so, if the Necker Cube gets some assistance from a childhood riddle.

   Connect all nine dots below using only four lines.

* * *
* * *
* * *

   It seems impossible to do it in less than five. As a child, I agonized over this and never did figure it out on my own. That was because I confined myself to the space within the nine dots. The secret lies in reaching into the space beyond the field.


   There are cases where no amount of looking at the crime itself will cause you to see it as anything other than what it is – a depraved act of human cruelty. If you can extend your vision beyond the four walls of the crime, however, into the context that drove the criminal behaviour, it may not alter the way the crime looks, but it can alter the acceptability of the outcome.

   On a warm July night, Elizabeth [pseudonym] went to bed late, leaving her kitchen window open for fresh air. She awoke to find a man standing over her, holding a knife. He held the knife to her throat and demanded that she remove her clothing. He forced her to perform oral sex. Then he raped and sodomized her. Elizabeth tried to befriend him to talk him out of what he was doing. This only made him angrier. He continued to rape and sodomize her for the next two or three hours, often using various objects he found around her home.

   He bound her wrists and ankles. He “mummified” her head in duct tape, leaving only her nose exposed, and cut off her waist-length hair. He forced her to inhale noxious substances, burning her lungs. At one point, he ripped the duct tape off her face, taking her eyebrows and some skin with it. He jerked her shoulders so hard that he gave her whiplash. He said he would kill her if she called the police. He demanded money and jewelry and ransacked her home.

   He covered her head with a blanket. Using his knife, he sawed through the blanket and broke the skin on her neck. Elizabeth was sure that he would kill her. She begged him to let her live for her daughter’s sake. The man stopped and soon the house grew silent. When she was confident that he had gone, Elizabeth freed herself. She dressed quickly, ran out of the house and flagged down a passing motorist who drove her to the hospital.

   Using fingerprints lifted from Elizabeth’s home, the police arrested Marcellus Jacob, a 20 year old Aboriginal man, the next evening. In his hotel room, the police found items stolen from Elizabeth’s home.

   At Jacob’s bail hearing, the largest courtroom in the courthouse was packed, as it would be for every appearance Jacob made. Women, Elizabeth’s friends and family, victim support workers and, of course, the press crowded the courtroom. An e-mail about the attack was already circulating, warning women to be careful. The atmosphere of fear that gripped the city hung over the courtroom.

   Four months later, Jacob pleaded guilty to break, enter and commit sexual assault with a weapon, an offence that carried a maximum sentence of life imprisonment. The prosecutor assigned to the case was Kevin Drolet. A former defence lawyer, Drolet had a reputation for fearlessly seeking justice, regardless of the backlash that ensued. There were other prosecutors who were known for their heavy hands in rape prosecutions. By assigning Drolet, the prosecutors’ office signaled that this case called for something more than the hysteria and harsh rhetoric that was circulating through the community.

   The case troubled Drolet. The crime was more horrific than most he had seen in his 15 years of criminal practice. Drolet felt the community’s cry for vengeance. He thought about his girlfriend who lived alone two blocks away from the crime scene.

   Still, something did not make sense. Jacob’s criminal record was typical of a disadvantaged Aboriginal youth – primarily property and process offences. Nothing in it forecasted this shocking crime. Drolet began to investigate. When he pulled Jacob’s previous criminal files and assembled all the reports they contained, a disturbing image emerged, but he knew there was more to the story. He subpoenaed Jacob’s records from Children’s Protective Services. With this information, he determined the prosecution’s position on sentence.

   But the community had thoughts of its own. In his victim impact statement, Elizabeth’s ex-husband lamented that the death penalty was not available. Upon hearing that the prosecution would be asking for only seven years, he took his outrage to the papers:

   Seven years is not enough. I would suggest it’s probably half but I personally believe that it should have been 14 years and maybe we should look at it within 7 years and if he feels genuine remorse at 7 years, then put him [on parole].

   At Jacob’s sentencing hearing, protesters marched outside the courthouse. They adopted as their theme the Pink Floyd song, “On the Turning Away” – not knowing how deeply that song reached into this case. Inside the courthouse, Drolet, having laid out the circumstances of this terrible crime, presented the tragic story of Marcellus Jacob’s life.

   Jacob was born to an 18-year-old alcoholic and drug addict. He was raised in his grandparents’ home where he suffered sexual and physical abuse and neglect. When he was two, he was rescued from a boarded-up bedroom. At age three, he was found bound in a blanket, lying in the middle of the road, by a bus driver who almost ran over him. Jacob was frequently taken into care by Children’s Services, sometimes involuntarily but often because his grandmother was “broke and overwhelmed”.

   When Jacob was six, a family was eager to adopt him. His grandmother refused, claiming that Jacob’s mother was returning to care for him. This never happened and Jacob continued to bounce between his grandparents and foster care.

   By the time he was seven, Jacob was acting out: stealing, smearing feces on walls, damaging property, committing inappropriate sexual acts, and being cruel and violent to other children and animals. His grandmother died. A psychological assessment done two months before his eighth birthday found that Jacob was an emotionally disturbed child who saw the world as a cold, dangerous place.

   The next year, Jacob’s mother died. He was told of her death on his ninth birthday. Jacob’s two younger siblings were taken outside the jurisdiction. Jacob’s foster parents tried unsuccessfully to adopt him. Soon after that, Jacob was made a permanent ward of the state.

   Once in permanent care, Jacob developed a pattern of depression during July and August, the time of year when his mother died. Though it was suspected that he had Fetal Alcohol Syndrome, he was never tested. Placement after placement was terminated because of Jacob’s inappropriate sexual behaviour and physical aggression. During this time, Jacob began to amass his criminal record. Despite numerous treatment recommendations, nothing was done to address Jacob’s problems.

   At age 16, Jacob was placed back with his grandfather. A year later, Jacob was living on his own in a boarding house, neither working nor attending school. A psychological assessment of Jacob made six specific recommendations, including youth sex offender treatment. None of these recommendations were implemented. The next year, Jacob turned 18 and the parent that he had known for most of his life, the state, terminated its involvement.

   When Jacob committed the offence, he was living on social assistance and stealing to support his drug and alcohol addiction.

   At the end of the hearing, the judge imposed the seven-year sentence that Drolet sought. Elizabeth’s ex-husband again spoke to the press, giving his views on the sentence:

   I think it’s fair. It isn’t as much as I originally though he should be given, but you can’t just lock him up and throw away the key. You have to give him the opportunity to straighten his life out.

   Throughout the sentencing hearing, the horror of Jacob’s crime was neither forgotten nor minimized. The evidence of Marcellus Jacob’s tragic life did not make his crime anything other than what it was – a terrifying act of brutality. That such evidence persuaded the court to accept the prosecution’s recommendation is not unusual. That it slaked the public’s thirst for vengeance and persuaded it to and accept the outcome is remarkable.