Blaming the Victim – An Idiot Defense
Friday, May 4, 2012 • 1:00pm
The cornerstone of our American legal system is the Constitution which calls for fair and just treatment for all. It is the foundation on which we have built our never ending hope to achieve social justice. And it works better than anywhere else on this planet. So then why did Charles Dickens once write, “The law is an ass.”? Perhaps he was referring not to the law but to what humans can do to the spirit of the law.
I do believe that being a lawyer is a noble profession. This is my 40th year as a lawyer and I have represented over 10,000 victims of violent crime during my career. I have worked with many prosecutors and criminal defense attorneys throughout the state. For the most part, they make me proud of my profession. Unfortunately, there has been an increasing tactic among criminal defense attorneys that in my opinion not only disrespects the intent and spirit of the Constitution but also tarnishes the integrity of the legal profession. It is frequently referred to as the “Blame the victim” defense.
Paul Foglia was found guilty twice by a jury of his peers for the brutal murder of Elizabeth Lott, a defenseless, 67 year old grandmother with marked health problems. Foglia repeatedly struck the victim over the head with a tray table, crushing her skull and leaving her bleeding on the floor of her home knowing that she would be discovered by her daughter and 6 year old grandson, who was also Foglia’s son.
There was no question from the onset of this crime that occurred over 8 years ago that there was just one bad guy in this case, Paul Foglia. Faced with the overwhelming evidence against his client, the defense attorney elected to pursue the “Blame the victim” defense.
When he wasn’t blaming Elizabeth for causing her own death, the defense attorney attacked her daughter Gina whose only mistake was to love Foglia at one time and have two children by him. At times, the comments appeared personal.
On May 2, Foglia was once again sentenced to life in prison. At the sentencing, it did not appear that his lawyer spent much time pleading for mercy for his client or offering any remorse for the one life taken and the numerous lives scarred. Instead, he chose to blame Elizabeth’s family for her death.
My impression of what appeared at the sentencing to be an endless bellowing of verbal abuse by the defense attorney accomplished one thing – he was able to continue to pour salt into the open wounds of the victim’s survivors right up to the time his client was taken out of the courtroom to prepare for his one way trip to state prison. If his goal was to cause further pain to the victim’s loved ones, then he succeeded. If he felt that this conduct best served his client’s interests, then I must confess my inability to understand such a tactic. In any event, it didn’t work.
Given the opportunity to speak, Elizabeth’s daughter Gina scolded Foglia, saying, “My mother was right about you. This justice is a cold substitute for what you took from me. . . . I am haunted, all of my thoughts lead me back to the horror you created.” Gina’s brother Joe chastised the lawyer for his conduct, at one point referring to him as a “monkey.”
This case, as with too many others, reminds us that life is so precious and fragile. It also serves to teach us that there can be a brutal and unpleasant side to humans. In our daily lives, whether personally or through our work, we are given the opportunity to choose the side that best reflects who we are and how we value such things as integrity, respect and compassion.
So whenever I think of the privilege I have had to be a lawyer and represent the family of Elizabeth Lott over these past years, I will take strength in their love for her and for each other. I will relish in the marked improvements made in the justice system for crime victims as I applaud the prosecutors Francis Koch and Jerry Neidhart and compassionate treatment of Elizabeth’s loved ones.
And finally, whenever I think of the defense of Paul Foglia and its abysmal failure to succeed in its “Blame the victim” tactics, I will think of a term I heard about many years ago called the “idiot defense.” In my opinion, this case falls into that category. When a child gets caught with his hand in the cookie jar and there are crumbs all over his face he can blame everyone from the baker to the jar maker. But after he stops whining, the fact is, he did it and he got caught.
Well Foglia committed this terrible crime and all of the blustering and rebuking on his behalf turned out to be nothing more than a thin wisp of smoke that finally dissipated into the air. And on his behalf – it accomplished nothing.
Paul Foglia will never again see the light of day. While the spirit of Elizabeth Lott will continue to shine brightly within her loved ones, Foglia’s will forever remain in darkness. It was his choice, alone. And I think back to the events in the case of State of New Jersey vs. Paul Foglia, the words of Shakespeare in the final act of Macbeth may very well come to mind,
Out, out brief candle!
Life’s but a walking shadow, a poor player,
That struts and frets his hour upon the stage,
And then is heard no more. It is a tale
Told by an idiot, full of sound and fury.
Richard Pompelio, Esq. is a member of the law firm of DiFrancesco Bateman, Warren, N.J,. and he also serves as the Executive Director of the New Jersey Crime Victims’ Law Center in Parsippany, N.J. He can be reached at 973-903-9848 and firstname.lastname@example.org.
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