Friday, February 14, 1997
When the law and the heart are opposed

BY CLIFF RADEL
The Cincinnati Enquirer

Blind guy is ticketed for jaywalking after being hit by a truck.

Granny is arrested after feeding nickels to expired parking meters.

A teen-ager whose reckless driving killed his brother and two friends could go on trial for vehicular homicide.

These three headline-grabbing cases have turned the blind scales of justice into emotional teeter-totters.

They've made the people involved, and the public in Cincinnati, swing up and down between by-the-book law enforcement and a desire for compassion by discretion.

We want justice to be blind. We demand it.

Unless something happens to you. Or me. Or some stranger who got a raw deal.

When that happens, look out. Justice must be able to see the difference between what's fair and what's not.

The strange case of Jeff Friedlander - the sightless man who got an unwanted dose of instant fame this week from a jaywalking ticket - is the most recent ride on the teeter-totter.

All charges against Mr. Friedlander were dropped. Blind pedestrians - it turns out - have the right of way in Ohio.

The case is closed. But the debate still stops and starts - what's fair, what's the law, who deserves a break, who doesn't.

Does a blind man deserve a break?

Does a teen? Especially one whose pattern of reckless driving now has him dealing with the wreckage of his life?

Does a grandmother? Even though she was committing random acts of kindness toward everyone, except a policeman who was just doing his job?

Our struggle with these cases goes to the heart of a civilized society.

Law vs. compassion

Cincinnati likes to pat itself on the back for its staunch law-and-order image. And rightly so. A large portion of our civic pride is tied to our fondness for obeying the law and maintaining order.

Linked to this notion is a burning desire to treat everyone equally. Lay down the law. Play no favorites.

That's part of why one magazine once tagged us, the town without pity.

Equal treatment under the law sounds good in theory. But it doesn't fall together so neatly for Steven Von Bargen, 18, whose bad driving killed three people.

Steven's supporters say he has suffered enough. Don't put him on trial.

The prosecutor says, that's for a judge to decide.

This difference of opinion takes place when a system of laws co-exists with a government of, for and by the people, says Christo Lassiter, associate professor of law at the University of Cincinnati.

On the one hand, he says: ''The mark of a civilized society is a reliance upon procedure, not discretion.''

On the other, he adds: ''No system can be so logical, so detailed, so methodical that there is no room for interpretation. We can't be governed by machines. So, since judges are human, you ultimately have to rely on the discretion of man.''

Ever the professor, he backed up his thoughts with an example.

''Take the act of running a stop sign,'' he says. ''What could be more unambiguous or clear-cut? You go through the sign. You break the law, right?''

Or maybe you had a good reason. Your child was choking to death. You were rushing to the hospital. The intersection was clear. You ran the sign. You broke the law. But you had to.

''You can make that argument to a judge,'' he adds. ''But you can't make that to a machine.''

No middle

To make it work, we've built people into the machine. Cops on the beat. Judges on the bench.

The machine has no sense of discretion. The people we elect or hire to protect us do. We expect them to use it. We hope they do.

There is no formula for this system to work. That's the good news, that's also the bad news.

I struggle with this, too. There are times I want to throw the book at somebody. Other times I want the unfeeling system to have a heart and give a poor soul a break.

Sometimes I think with my heart. Sometimes I check the rules.

I guess that's the way it's supposed to be.

I'm sorry.

I'm glad.

Cliff Radel's column appears in The Enquirer on Mondays, Wednesdays and Fridays. Tips and comments most welcome. Call 768-8379 or fax 768-8340.