Ellie Nesler Exposes Frontier Court System

We should be grateful to Ellie Nesler--not for gunning down the convicted child molester accused of sexually attacking her son, but for focusing attention on California’s sorry criminal justice system.

And for giving us an excuse to avoid publicly judging her.

If she sticks with her planned defense, Nesler will argue that she was morally justified in pumping five bullets into the head of Daniel Mark Driver as he sat in a makeshift courtroom during a recess April 2, awaiting the testimony of her son, who had been vomiting at the thought of facing the guy.

There is no apologetic plea of “temporary insanity” under this strategy, although frankly it is not clear exactly which direction the case is going. Nesler fired and rehired her New York attorney last week, and her family reportedly would prefer an insanity plea.

But at last word, the 40-year-old mom intended to bluntly ask a jury of her peers in the Sierra Mother Lode to declare that she had every right to take the law into her own hands. “Some acts are justifiable,” attorney David Lewis said after Nesler pleaded not guilty in the Tuolumne County Courthouse.

Whether her act was justifiable will be up to the jury to decide. Meanwhile, maybe there can be a moratorium on all the sermonizing about “frontier justice.” Obviously, a civilized society cannot sanction citizens taking the law into their own hands. But the citizens also have a right to expect better protection by law enforcement and the courts.

Frontier justice stems from a frontier judicial system. And that is what much of California seems to have these days.

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Here are some basic facts:

The average sex offender in California spends only 38 months in prison. After being released, 62% are returned to prison for some crime. Of these returnees, 58% are found guilty of another sex offense. And this recidivism has been on the increase.

Recidivism for all felons released from prison, regardless of their crime, is 68%.

Danny Driver never did any prison time after pleading guilty in 1983 to multiple counts of sex with boys in the San Jose area. He was given probation and later moved to Gold Rush country.

Presumably, Driver was required to register with the local sheriff as a sex offender. State officials say they are forbidden by law to disclose whether he did. No matter--the citizens of Tuolumne County had no clue of his sordid background. And in 1988, while working as a dishwasher at a mountain church camp, Driver allegedly sodomized Nesler’s 7-year-old son and molested three other boys, ages 6 to 8. It then took authorities four years to catch up with him.

Last year, the Legislature did pass a bill pushed by Atty. Gen. Dan Lungren to establish a statewide system for tracking habitual, serious sex offenders. It will take effect in July.

Some more facts:

Since 1960, the violent crime rate in California--that is, the number of homicides, robberies and rapes, etc., per capita--has increased nearly fivefold. Some of these crimes peaked in 1980, then fell off as California began imposing tougher sentences. But in recent years, they have climbed again as judges ran out of cells for felons.

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Many share the blame.

In the Capitol, the Assembly Public Safety Committee is the graveyard of tough anti-crime bills. Democratic Speaker Willie Brown has kept liberals in control, going to the extreme this year of not filling a vacancy because it could tip the committee balance toward moderates.

At the same time, conservatives have whipped up an anti-tax climate and made it difficult to raise the money needed to capture and incarcerate criminals. Even when citizens vote overwhelmingly to raise taxes to beef up police--as they did in Los Angeles last Tuesday and in November--the support usually falls short of the required two-thirds majority championed by conservatives.

While demanding better protection, the public also votes hypocritically. In 1990, for example, Californians emphatically rejected a proposed bond issue to pay for more prison cells.

It’s a safe bet Ellie Nesler knew little of this stuff at the court hearing. She only knew that her son had been sexually molested and that the accused had just sneered at him as he was puking into a plastic bag. Another mother of a victim had left the courtroom depressed, fearing “he’s going to walk.”

So Ellie got her gun. A jury will sort out the right and wrong.

But Collene Campbell, mayor pro tem of San Juan Capistrano and a victims’ rights activist whose son was murdered, says: “If a few more of these criminals had to face moms taking the law into their own hands, our crime rate would fall drastically.”