HOW TO STAY OUT OF JAIL
BY JOHN VAN NESS
Some say it was strictly a matter of self-defense, but Hunter was keenly curious as to how the criminal justice system really worked. As a career journalist who had been on the inside of the Vietnam War, national and local politics, as well as the Hell’s An-gels and various other life experiences, he had learned that popular conceptions and beliefs were not always correct. No where is the gap between popular myth and reality greater than in the area of criminal justice.
The first question I am often asked is how law-abiding people can avoid trouble with the system. And the first answer is that in this day and age there is no such thing as a “law-abiding person,” except for maybe a monk who is totally isolated from any other human being. Life was simple back in the old days when people only had to worry about the Ten Commandments, although l’m sure there was somebody, probably played by Mel Brooks with an Arkansas accent, saying, “I did not have a covetous relationship with that neighbor’s wife.” In modern times we are told how to behave by volumes of federal, state, county. and municipal statutes and codes, which are constantly being increased by “get tough on crime” politicians.
Back in my public debating days, before I learned the benefits of keeping my mouth shut unless somebody was paying me, I would often claim that the average person commits two or three felonies per month without even knowing it, and Sheriff Dick Keinast would immediately correct me by saying it’s more like two , or three a week. Back in the early nineties the police scraped trace amounts of illegal drugs out of the bottom of Hunter’s kitchen drawer and that was enough to charge him with possession. The fact that this dust had been there for years simply meant that he had been committing this crime for decades. There was no time, day or night, since high school that Hunter Thompson was not committing a felony.
Anyone’s medicine cabinet is another promising source of felonious activity, because unless you can prove that every pill in there was properly prescribed to you, it’s a felony, with a maximum penalty of up to six years. And then we’ll have to take a look under the seats and carpets of that car you loaned to your kids when they were off partying with their buddies.
Try this one on for size: Any person who induces, aids, or encourages a child to violate any federal or state law, municipal or county ordinance, or court order commits contributing to the delinquency of a minor.”
Buy your five-year-old a puppy dog, and if this dog ends up, God forbid, barking, or gets out of the yard in violation of some local ordinance you may not even know about, you are guilty. Or you may be driving out in the middle of nowhere, and if you stop the car to “‘allow” your child to relieve himself at the side of the road, you may well have run afoul of some local law or ordinance prohibiting urinating in public. You have clearly aided and encouraged this criminal activity, and according to the books you are guilty of “Contributing to the Delinquency of a Minor.” Penalty: up to twelve years in prison, plus three years of parole, and up to a $500,000 fine.
As if hundred of crimes weren’t enough to worry about, we have the concepts of complicity and “conspiracy.” In laymen’s terms, “complicity” means you are an accomplice and “conspiracy” means you agree with a plan to commit a crime.
“Conspiracy” occurs if some clown, perhaps after a few cocktails, brags that he’s going to bust somebody’s nose, and you say the guy deserves it. You have “agreed” with the clown’s plan, and an agreement plus any “overt act in pursuance of the conspiracy” means you are guilty of a felony, even if the clown never actually goes out and breaks the other guy’s nose or commits any crime. Not just any felony, but one labeled a “crime of violence,” and serious prison time is mandatory. There is no requirement that the crime that was planned ever occurred. Just talking about it, plus any “overt act” by anyone involved, can put you in a prison for up to the rest of your natural life.
The “no harm, no foul” rule of the world of sports does not apply in the real world. (I can almost hear Hunter questioning which world is real, sports with millions of eyewitnesses and instant replay, or the other world, where we have to rely upon how the politicians and pundits choose to filter and spin the news.) “Complicity” occurs when you “aid, abet, or advise another person in planning or committing an offense,” and the penalty is the same as if you had actually done the crime. Of course, you can say you had no idea that the hitchhiker to whom you gave a ride to the bank was actually intending to rob it, but this defense may not come into play until after you have spent many thousands of dollars on lawyers and bail, defending against charges of bank robbery. And been publicly humiliated and lost your job, wife (or husband). and friends. People tend to form opinions quickly. often encouraged by newspaper headlines, and the distinction between accusation and guilt is often lost in the shuffle. The presumption of innocence ain’t what it used to be.
Hunter learned a lot about these concepts when he took up the cause of Lisl Auman. Lisl started out innocently enough by wanting to go to her ex-boyfriend’s house and retrieve some of her belongings. A few guys offered to go along “in case of trouble,” and events rapidly spiraled out of control. Lisl was already in a police car in handcuffs when one of her ”friends,” who was still trying to escape, shot and killed a police officer who had him cornered, and then immediately killed himself. When a cop is killed someone must pay, and with the “real” killer no longer available, that left Lisl Auman.
The “felony murder law” that helped convict Lisl means that if you are part of a crime such as burglary. and if anyone is killed in the course of this crime or the “immediate flight therefrom,” then you are guilty of murder in the first degree.
The person who actually causes the death can use defenses such as self-defense and accident. And maybe the facts would only support second-degree murder or man-slaughter, or even criminally negligent homicide (remember Claudine?). But for the person sitting in the back seat of a police cruiser who doesn’t even know somebody has been killed, it makes no difference. You get the whole enchilada. Murder One, and this is how young Lisl Auman ended up with a mandatory sentence of life without parole.
Hunter’s sense of justice was offended and he took up Lisl’s cause. He not only wrote extensive articles, but he organized rallies with celebrities such as Johnny Depp and Sean Penn. He persuaded the National Association of Criminal Defense Lawyers to file an amicus brief with the Colorado Supreme Court. There was absolutely nothing improper about the fact that one of the Supreme Court Justices just happened to be a member of the NACDL.
One of the Denver crime commentators noted that public opinion ends at the court-house door, and that Hunter’s campaign was unlikely to make any difference. This was only partly true. It is unlikely that public opinion had any bearing on the Colorado Supreme Court’s decision to reverse Lisl’s conviction, on grounds other than the validity of the felony murder rule. But when an appellate court “reverses” a conviction this rarely means that the defendant gets to go home as an innocent person. It means “start over.”
The prosecution had the option of going to trial again. In some cases, and John Gotti comes to mind, the prosecution will go to trial four or five times until they finally get an error-free trial that produces a conviction. They had to make this decision in Lisl’s case, and this is where Hunter’s efforts undoubtedly made the difference, because the prosecution agreed to a plea bargain that substantially reduced Lisl Auman ‘s sentence and she is no longer in prison.
Of course not everyone can count on a full-tilt Gonzo campaign to bring them justice. We mere mortals must recognize the fact that we are all guilty of something and the challenge is how to avoid being caught in the first place. In our next column it gets worse, but I’ll explain why we are not all in prison already and offer some practical advice on how to keep it that way.
