JUDGING CRIMES

... vigilantes can look for Joel Jacobsen in Archangel, Qom and Santiago.  Back next week.

I've always thought of the criminal law as a reflection of society's attitude toward the weak.  And even if you weren't weak before you were attacked, there's nothing quite like a bullet to weaken you.  At least in the Western states, with the "no duty to retreat" ethos, our courts are gung-ho about encouraging people to take care of it themselves.  (And not just the courts, either.)

That tolerance for DIY revenge sometimes leads to a judicial attitude of lightly-disguised contempt for those who don't partake.  If you're not going to protect yourself, why should we protect you?  Judges are protective of people they identify with, and who wants to identify with a woman who returns to the man who broke her cheekbone?

But the ultimate disposable people don't even make it far enough to have their ID photo introduced as a prosecution exhibit.  Last fall the Bureau of Justice Statistics published a fact sheet on Unidentified Human Remains in the United States, 1980-2004.  The fact sheet reported that 10,328 unidentified remains were reported to the National Death Index (now there's a memorable response to the cocktail party question, What do you do?).

But the 10,328 figure means only that that many unidentified remains were reported to the NDI during the 25-year period under study.  Three-quarters of the reported cases came from from just 5 states, which tells you the total is an undercount. 

DOJ's National Institute of Justice reports that "[m]ore than 40,000 sets of human remains that cannot be identified through conventional means are held in the evidence rooms of medical examiners throughout the country".

But even the census of evidence rooms is an undercount, according to the DOJ report, because "many cities and counties continue to bury unidentified remains without attempting to collect DNA samples."

As of February, 2005, the NCIC - the FBI's national criminal database - contained information on just 5,900 unidentified remains, according to the BJS.  (Incidentally, if you use the Google toolbar at work, make sure you're not in Google images when you search for BJS.)  The number had barely risen as of 2007, according to one of those other acronyms mentioned earlier (I'm getting tired of writing in federalese).

Of the relatively handful of cases entered into the NCIC, 27% were classified as homicides, but in almost exactly half the cause of death couldn't be determined.  I think it's reasonable to suppose that most of the "unidentified" category are in the category because of what the passage of time does to mortal remains, and the passage of time in turn suggests concealment, and concealment suggests ...

It's not that hard to think of ways in which an accident victim's body might also be concealed (avalanche, wandering in hypothermic disorientation, seeking help for your flat tire at an isolated dilapidated farmhouse despite the warning provided by the creepy background music), but there's a report filed for most of those, I would think.  While the remains, when eventually found, might be in what the papers usually call an advanced state of decay, they'd still be identified.

I think, in short, that far more than 27% of the 40,000+ unidentified remains represent murders people have gotten away with.  And there must be another large number of remains that haven't yet been found. 

People got away with murdering these particular victims because they were so disposable.  It's hard to think of a more definitive marker of low social status.  Really, if you have so little self-respect that you allow your body to rot in a shallow grave for years and years, why should we care?

It's interesting to note how much a reader reveals about him- or herself by leaving a comment at this blog.  For instance, the "difference" feminists, inspired by Carol Gilligan's In a Different Voice, have taught us that heartfelt expressions of emotion are characteristically feminine, and yet the pseudonymous comment left at post 304, by far the most emotionally-naked ever left on the site, somehow strikes me as written by a male. 

Is that my own sexism showing through, or is there something distinctly masculine about the thought expressed, or the words used to express it, or perhaps the orthography?  Speaking of the spelling, did the author intend a hommage to the Kevin Kline character from Fish Called Wanda?

More recently, in response to post 353, David K. wrote:

The right of an accused person to "confront" his accuser is right there in the constitution. I must have missed the "child's right to protection from the community". Could you please point out to me which part of the constitution I might find that passage?

What is it about this passage that makes me think it was written by a lawyer?  Perhaps it's just the signature, with its echo of the most prominent of all 20th century lawyers, Franz K.

Anyway, there are several ways to answer David K.'s question.  For example, it could be pointed out that the Constitution's preamble, which generally isn't studied in law school and is studiously ignored by judges, explains why we have a Bill of Rights in the first place.  Among other things, the purpose of the 6th amendment is to:

 establish justice, insure domestic tranquility, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity

So, from one way of interpreting it, it can be argued that when the 6th amendment becomes an instrument for preventing justice and opposing the general welfare, it isn't optimally serving its purpose.  One might even go so far as to  suggest that acts of violence perpetrated against small children tend to be - how should I put this? - untranquil.

The Constitution contains another and, I think, even more significant textual answer to David K.'s question, and that's way back there in article IV, the article no one ever bothers to look at:

The United States shall guarantee to every state in this union, a republican form of government

The United States Supreme Court long ago declared this part of the Constitution a dead letter (see post 147) or to use the Court's own euphemistic neologism, "non-justiciable."  It's not hard to understand the justices' uncharacteristic diffidence, for while it's difficult to say exactly what a "republican form of government" is, it's easy - even, one might say, disturbingly easy  - to say what it isn't. 

It isn't government by nine unelected old people in black robes.

The guarantee of a republican form of government means that the people of each state get to decide for themselves what sort of government will rule over them.  So, to get back to David K.'s question, whether a child as a right to call upon the protection of the community depends on whether the community chooses to extend that right to children. 

The Constitution enters into it only because article IV, section 4 makes it unconstitutional for any government official to countermand the community's decision.

What makes David K.'s comment most  lawyerish, despite its terseness, is that it pays no attention to the politics of judicial decisionmaking.  Law schools teach the subject called "constitutional criminal procedure" as if politics wasn't involved.  The subject is taught as a series of battles between lone individuals and the crushing soulless state, when the true subject matter of every one of the landmark cases was the distribution of power as between elected and unelected officials.

One can agree with the result of many cases - as I do - while still maintaining an awareness that, in them, the Court was telling what Dr. Johnson called "consecrated lies" about the Constitution and its meaning.  (See post 42.) 

But for various reasons, lawyers in general and law professors in particular find it hard to break themselves of the habit of accepting everything the Supreme Court says as the word of ... well, God doesn't have quite the same authority any more.  But like that, only more so.

Ultimately, though, David K.'s comment most unmistakably shows the true lawyerly spirit in its underlying conception of criminal law as something that exists apart from, and even in antagonism to, morality.    Right and wrong don't enter into it questions of crime and punishment.  And, really, who but a lawyer could believe that?

"Historians have long winced at the crude ways that literary scholars and others have wrenched writings out of their historical contexts for aesthetic and other present-minded purposes." 

That's from Gordon S. Wood's collection of book reviews (or, really, essays using book reviews as take-off points), The Purpose of the Past: Reflections on the Uses of History, which is far more entertaining than any description can make it sound.  It was an unlikely candidate for the books-on-tape treatment but I'm grateful the publishers made an exception for it, because it made the weekend drive to Jemez Springs most enjoyable.

In another essay, analyzing a self-described political theorist's tendentious use of history to score political points, Wood writes: "There is nothing wrong with this ransacking of the past by political theorists.  Lawyers and jurists do it all the time.  But we should never confuse these manipulations of the past for present purposes with doing history."

The use of that pretentious word "jurist" is one of Wood's few false steps.  Lawyers and judges do indeed ransack the past for present purposes all the time.   That's what "legal research" is.  You start with the conclusion of your syllogism, add the major premise - the facts of the case - and then start searching for some legal authority to insert into the middle.  An intellectually-honest creme makes for a better Oreo, but in a pinch almost anything will do.   (I hope you don't mind if I don't pursue the cookie metaphor to its all-too-apt conclusion.)

 But sometimes, I'm afraid, Supreme Court justices, who don't enjoy / suffer the peer-review process that keeps historians in touch with reality, confuse this kind of purpose-driven ransacking of the past with genuine history.  I think we can now officially say that Justice Scalia is, historically speaking, delusional.

His recent Giles v. California opinion guarantees a good ten years of litigation and hundreds of incompatible decisions from around the country, so that's good news for all us lawyers practicing criminal law: there will always be something to slot into the middle of any syllogism.  Better yet, this ensures a steady stream of future injustices, which will help sales of my next book.  (See this unnumbered post.)  So I don't mean to look the gift horse in the mouth, not that doing so would tell me anything anyway.

But viewed as history, Giles and its predecessor Crawford are ...  pathetic.  Not simply in the abusive sense of that word, but in the sense of being so far removed from adequacy that you can't help feeling rather churlish to point out their inadequacy, like pointing out the tuning problems of the elementary school orchestra.

Though, of course, the kids are cute.  And, more important, they're trying. 

It's not so much that the members of the Supreme Court are incompetent historians - that's not really a surprise - but that they are wholly unaware of it, as evidenced by the supposedly-erudite Justice Souter's incredibly  fatuous remark: "I am convinced that the Court's historical analysis is sound". 

 Here are some of the key elements of that sound historical analysis:

• The correct interpretation of the 6th amendment depends on an analysis of the original intent of the Framers, but the identity of "the Framers" is never established.  They aren't people but a vague abstraction.
  
• "The Framers" all thought exactly alike and had no disagreements about anything.
• "The Framers" anticipated the passage of the 14th amendment in 1868, which made the 6th amendment applicable to the states.
  
• Rid your mind of any concept of the Constitution as a democratic document, expressing the political will of the people, as expressed in Marbury v. Madison and Federalist 78 (the source of all the ideas found in Justice Marshall's Marbury opinion).  Rather, reconceive of the Constitution as a top-down directive, imposed by "the Framers" on the passive people, because that way only the Framers' views count, greatly simplifying the matter.
  
• To determine the original intent of "the Framers," it is vitally important to examine the fewest types of sources available.  For example, do not, whatever you do, look at trial transcripts, even though those are available in any law library and on the web.   That would only complicate things and might not lead to the result you prefer.
  
• Also, don't look at contemporary newspaper reports or read history books, much less original sources such as private papers.  Rather, look only at legal treatises (the opinions of self-publishing egotists) and appellate opinions (although there was essentially no right to appeal in the few federal criminal trials, and state appellate opinions weren't systematically collected until Mr. West got busy a hundred years later).  The great thing about these sources is that their authors were self-important elitists of the same kidney as modern Supreme Court justices, so their views are emotionally satisfying.
  
• To achieve an ideal result, it is essential to commit as many classic historians' fallacies as possible. 
  
• Giles, for example, relies almost exclusively on inferences drawn from the absence of evidence.  (We have no evidence that Julius Caesar washed behind his ears, so therefore the buildup of layers of dirt from Britannia and Gaul was just dreadful.)  
• Crawford anachronistically ascribed to 18th century folks the concerns of 21st century lawyers about the technical admissibility of hearsay, when as a matter of easily-verifiable historical fact lawyers had very little to do with criminal law as practiced in the 18th century, and most lawyers practicing in small towns had a level of formal education roughly comparable to that of jailhouse lawyers today.
• When it helps your argument, don't be afraid to make up evidence.  That's what Justice Scalia did when he ascribed to "the Framers" an obsession with Sir Walter Raleigh.  (Here it is again.) 
  

I could go on, and I probably will in later posts, but it makes me feel like an impatient high school teacher.  But then, because I'm a softy, I'd probably give my 10th graders a do-over rather than flunking them all.  I'd say: "But this time, people" - I don't know exactly why high school teachers have to call their students "people," but apparently it's in the standard contract -- "I want to see some evidence of effort."

The end of the Supreme Court's term had me feeling a strange and unexpected emotion: pity.  These nine people seem so badly out of their depth that criticizing them seems almost unfair, like making fun of your local public-access-TV host and perennial candidate for office.

Almost.  Because the fruitcake gadfly (fruit fly?) who drives around town in an old beater with bumper stickers where the paint job used to be can only tell the rest of us how we really ought to live our lives.   We don't have to pay attention, and most of us don't.

The Supreme Court makes us obey.

It's the power of commanding obedience that paints the target on the justices' robes, even if criticizing their most recent productions feels just a bit like pointing out flaws in the dismount of a Special Olympics gymnast.

In the course of a few minutes this past week, the justices  explained to us that there is only one correct way to interpret the Bill of Rights, and that is to determine the meaning given to its words during the "founding era";  and to "'draw[] its meaning from the evolving standards of decency that mark the progress of a maturing society'".

Now, I don't mean to be any more disrespectful of the Supreme Court than its productions deserve.   But this stuff isn't serious.  The justices don't even seem to be trying any more. 

At best, they've recognized that their attempts at coherence have failed and have thrown up their hands, giving us their rough drafts so they can get out of Washington before the worst of the summer heat to enjoy their three-month vacations. 

At worst they're coming close to admitting -- not in a single opinion, but in these two opinions considered together --that the whole project of "constitutional law" is eyewash, a mere flapping of the magician's cape to distract our attention from what's really going on.

Both of the recent opinions are interesting for what they say about the Court rather than for what they say about the law (really, there is a difference), and both will get the extended treatment soon.

Please pardon the Lemon Pledge smell, but this blog had gotten dusty.  I've been away on a top-secret mission but now that the deal has been announced in Publishers Marketplace and the advance check has been deposited, even a lawyer such as myself, with a lawyer's steel-tripwire readiness to anticipate the absolute worst that could happen, can just about believe things are going to work out.

I've spent the past couple of months writing proposals for publishers and then the chapters of a new book, and with things getting close it didn't make much sense to divert writerly energies to the blogosphere.   Ah, but now -- now I can return to the late night glow of the monitor, the closest I'll ever come to realizing my secret ambition to be an overnight FM disc jockey during the early 1970s, a goal that  seems ever more distant with each passing year (for all that I've long since perfected the low stoned drone).

I've begun a page about the new book here, which you can also reach through the navigation pane to the right.  The description's what Wikipedia would call a stub, but it will, like the man turned into a newt, get better.

While recently clearing a layer of wood-pulp debris from my office ("Don't toss that!  It might come in handy some day."), I came across a law review article by Richard D. Friedman, Framer of the current sixth amendment. 

Friedman has written a few gazillion articles about the confrontation clause -- in fact, it's difficult to find a recent article about the confrontation clause that he didn't write -- but this one was published before the March, 2004 constitutional convention that amended the amendment.  (Surprisingly few delegates showed up.  Only nine, in fact.)

It's about the forfeiture principle, the subject of a forthcoming Supreme Court opinion, Giles v. California, which is featured prominently in Professor Friedman's blog.  The article was published in the Israel Law Review, and it's called "Confrontation and the Definition of Chutzpa."  (For the missing final "h" in khutspe, see this discussion.)

The article has many excellent things to say.  The alternative to Friedman's approach -- the one adopted by New Mexico courts, in fulfillment of their historical mission to preserve the state's late 19th-century culture -- amounts to a double or nothing bet.  If a criminal feels lucky, he might as well commit a second crime by killing or intimidating witnesses to the first.  If he gets by with the second crime, he gets away with the first one, too.

So basically American courts are faced with a choice between (a) entrusting the physical safety of witnesses and the integrity of their own judicial processes to the discretion of violent criminals, in the hope that they won't feel lucky; or, (b) Friedman's recommended robust forfeiture principle. 

Judges find it a very difficult choice, for a reason well stated in the Friedman article I'm fixing to recycle: they prefer to think of the accused's constitutional rights as absolute.  Toward the end of the article, discussing the victimization of children, Friedman includes these paragraphs:

Fourth, if a child's caretakers are genuinely concerned that, no matter what precautions are taken, testifying will cause the child severe trauma, they simply need not require her to do so.  Of course, if absent her live testimony secondary evidence of the prior statement is inadmissible, the probability of securing a conviction against the accused may diminish to the vanishing point.  And, when the accused is in fact guilty, that is a very unfortunate result.  But it is nothing new.  Often prosecutions are lost, or never brought, because the complaining witness is unwilling to testify.  Again, the case of adult rape provides a prime example.

Finally -- a point that will not have universal appeal -- I find disturbing an approach that says to the accused, in effect, "Well, perhaps you have a fundamental right at stake here, but someone else would be hurt if we allowed you to invoke it against the state and yet insisted on prosecuting you".  Perhaps it is too late in this "age of balancing" to argue against such willingness to balance away the rights of accused against the state.  But I prefer viewing the accused's fundamental rights, at least at their core, as truly fundamental and not subject to be balanced away.

Now, Friedman is obviously a very smart guy, and he's an almost infinitely better writer than the average law professor, and I've been told secondhand that he's a good guy -- a true gentleman -- possessed of a fine sense of humor. 

So how come it's not obvious to him, as it is obvious to me, that his approach involves "balancing" quite as much as the approach he deplores?  ("Balancing," in a judicial context, is an euphemism for choosing, of course.  See post 248 and post 332.)  Specifically, he balances away a child's right to protection from the community. 

I know that in the courtroom, we have to pretend that the particular crime charged is the only one the criminal ever committed, but who believes that about a pedophile?  I think it's safe to assume that a man who's sexually attracted to children will experience that attraction about as often as any other man is sexually attracted to objects of his desire, which is to say, roughly, whenever they come within his field of vision.

Volumes of social science data show that child sexual abusers routinely "report vastly more victim-involved incidents than those for which they were convicted."  (That's from "Child Sexual Molestation: Research Issues," National Institute of Justice Research Report (NCJ-163390, June 1997), which apparently isn't available on-line but can be ordered here.)

So it's not just "a very unfortunate result" when a guilty child sexual abuser goes free.  It amounts to sentencing additional children to sexual abuse.   Friedman proposes balancing away those children's rights, too. 

That has consequences for non-pedophile, peace-loving, minding-their-own-business adults, too, as described here.  The rights of those future adult victims of grown-up abused children are also subordinated to Friedman's elegantly simple conception of the sixth amendment.

At the highest level, Friedman also proposes balancing away the rights of the American people, who are guaranteed a republican form of government in their Constitution.  That means a government controlled by the people themselves. 

Why can't the people of the various states have the type of government they want? -- one in which guilty pedophiles are stopped before they re-offend, and punished before they can make child sexual exploitation seem like a low-risk activity for those so inclined.  (Well, okay, punished so that we can gradually restore the vanishing perception that it's a high-risk activity.)

Friedman's point, or rather his assumption, is that these things don't count.  All he's really saying is that the accused's rights shouldn't be balanced against the prosecution's interest in securing the conviction of a guilty person.  Inside the courtroom, no one else has "standing" to intervene in a criminal prosecution, so therefore (it follows, as night follows dawn) no one else has any rights that a judge is bound to respect.

Friedman, in short, accepts the basic assumption on which our current criminal justice system rests, which is that real life and what happens during the course of a criminal trial must be kept strictly segregated, and only the latter counts. 

His uncritical acceptance of the big-picture status quo is certainly one reason for his incredible influence over the judicial guardians of received wisdom.  Last year, for instance, the Ninth Circuit asked him how to rule in a confrontation clause case and meekly did as they were told, giving him credit. 

He advised them (if the court's paraphrase is to be trusted) to base their decision on policy considerations, in order to prevent prosecutors from getting up to tricks (footnote 8).  Policy considerations are so much more preferable than balancing tests, of course.  Intent of the Framer and all that.

It's time to pay another visit on Alabama Circuit Judge Stuart Dubose.  (See post 191 and post 306.)  The Alabama Judicial Inquiry Commission filed a pretty spectacular complaint, but it was topped by Judge Dubose's answer -- which was then topped by the Alabama Supreme Court.  

There's such an abundance of riches in the complaint, it's hard to pick a favorite.   If one credits everything in the complaint (and of course these are mere allegations), Dubose was running hard for the title of the Worst Judge in the History of the World.  And he had a real shot at the record, too.

There's the probate matter, featured over at Death and Taxes Blog.  There's his habit of revoking probation without notice to the probationer.  Then there's the divorce case in which he took it upon himself to telephone the attorney for the father - the most elementary no-no for a judge - to inquire what visitation rights his client wanted.

The attorney told the judge, and the judge granted overnight visitation without notifying the attorney for the wife -- who, therefore, did not have the opportunity to inform the judge that the county Department of Human Services was just then investigating an allegation that the father had sexually abused the child in question.  (The attorney for the father didn't know about it, either.)  The father was also facing felony charges, but I can't tell from the complaint if those relate to the same allegation.

After his attention was brought to the salient facts, Judge Dubose convened a hearing to assign blame, stating from the bench:

It is extremely upsetting to this Court that this Court be put in a position where it is not informed of the circumstances ... until after the Court has been allowed a month to ill-advisedly or unadvisedly, in an attempt to try to accommodate lawyers and their clients to settle a dispute and to just let a daddy have some time with his youngun, when the file doesn't reflect anything out of the ordinary ...  [T]he point of this exercise today is to try to do something to ensure that, at least as far as this Judge is involved, that this don't happen again. If I have to be informed of every investigation that the Department does, then I'm going to order it done.

The other alternative, of not calling up counsel for one side and issuing ex parte orders, apparently didn't occur to the judge.   The judge's chief concern was that he might be featured on the Bill O'Reilly show, which is the most positive thing I've ever heard said about Bill O'Reilly.

When an attorney for the Department of Human Services made an appropriately smooth non-apology apology - he "apologized to the Court in the event DHR had done anything to place Judge DuBose in an awkward position" -  the judge explained the real cause of his ire: "But, considering what I have been through, this looked like a set-up to me."   When the attorney for the wife suggested politely that perhaps the problems could have been avoided if the judge had allowed his client to participate in proceedings concerning her child, the judge turned to his court reporter, poised at her stenotype machine: 

"You [Ms. Dunn] take your hands off the machine. Don't you write one thing he's saying. I'm running this show. This is my courtroom. We'll do it how I want to do it." In addition, Judge DuBose declared that he would put on the record whatever he wanted to put on the record and that nothing was going on the record unless he wanted it on the record.

He even told his court reporter to give him all her materials from the hearing and to delete the transcript from her computer (which she wisely chose not to do).  So far as the complaint reveals, Judge Dubose evinced no awareness that a child's welfare might also be involved.  Or, for that matter, a parent's.  (If you mentally remove the Phil Donahue thing from his head, Dubose even looks like a big baby.)

Then there's the judge's loudly-repeated threats to hometown Mobile attorneys in order to send a message to Mobile judges to stop obsessing about Judge Dubose:

"You need to go and let these judges know that I know they're meeting about me and how they got to stop fucking with me. They better be careful because I've got eyes and ears down there." Then he stated the following or words to the same effect: "You know John there are a lot more lawyers from Mobile that come up here than lawyers from up here that go down there. I'm going to send a message through these lawyers that come from Mobile that the judges need to stop messing with me."

After Dubose won the bitter Democratic primary - he won on the platform that his opponent was an unmarried man, nudge, nudge (see post 191) - the itty-bitty bar in his three-county district threw a reception for him at Ezell's Catfish House.  (More photos here; a U.S. Senator's invocation of the place as a reason for opposing economic development in Vietnam here.)  (The three counties in the First District have a combined population of a little over 70,000 souls, plus Dubose.)

Dubose stood up and promised to hometown opposing attorneys:

He told the Circuit's attorneys in effect that, with him as judge, they would have a "home-field advantage" over lawyers from other circuits. He also more specifically stated that they would have the home-field advantage in cases where the opposing counsel are lawyers from Mobile or Birmingham or defense attorneys.

After becoming judge, Dubose began systematically summoning lawyers who had supported his opponent in the primary and demanding that they sign pledges to support him when he ran for reelection.  Several attorneys caved, though perhaps only on the theory that it's best to humor an insane person holding a gun to your head, even if only figuratively. 

During a hearing, he peeled off his robe (apparently believing that it was the garment that imposed ethical restrictions, as a straitjacket on the conscience) and threatened any lawyer who cooperated with the Judicial Inquiry Commission: "I might be older or I may not be what I used to be, but I can still stomp a mud hole in an ass and walk it dry with the best of them."

(That right there tells you he's unqualified for his position.  Better judges deliver the same message through intermediaries, or warning-shot adverse rulings, preserving their plausible deniability.)

I'm leaving out a lot, but only because there's something even better in Dubose's answer to the complaint. After a blanket denial, he pled diminished capacity.

"Diminished capacity" is not guilty by reason of insanity lite.  A person who's not crazy enough to be acquitted may nonetheless be entitled to have charges reduced because he lacks the mental ability to appreciate the consequences of, say, shooting his estranged wife in the head.  Most of the time, naturally, the cause of the purported mental incapacity is alcohol or drugs.  Often, it comes down to asking the jury to go easy on you because, not only are you a killer, but you're a drunk, too.  It's what you might call a last ditch defense.  A before-the-current-drought kind of last ditch, at that.

In other words, Dubose's defense to the charge that he's unfit to remain a judge is that he wasn't fit to be a judge in the first place.  You have to admit, he has a point.

But just when you think things couldn't get more twisted in the poor old First District, along comes the Alabama Supreme Court to provide a final turn of the screw.   By a 5-4 majority, the court concluded that "the important constitutional issue of maintaining an independent judiciary" meant that the Alabama State Bar couldn't proceed with disciplinary proceedings against Dubose.  It didn't matter that disciplinary charges were filed before he descended the bench.

Some things are just more important than enforcing the legal profession's rules of ethics.  And immunity for judges has to rank high on anyone's list of what those things are.

(The Alabama Supreme Court makes it very difficult to view its opinions online, presumably because the justices are ashamed of their work, as indeed they should be.  The opinion is Alabama State Bar v. Dubose, issued March 14, 2008, available for only $200 from the Alabama Supreme Court.) 

Surely that's enough plot twists and turns?  Nope. 

In 2003, the Supreme Court sternly set its face against overtly racist policies in the Dallas DA's office.   It would no longer tolerate blatant racism in jury selection practices in 1963.   (See post 312.)   Yesterday the justices just as firmly went on record opposing the jury selection process in a single Louisiana trial in 1996. 

It was a death penalty trial, and the historical southern record on death penalty trials involving Black defendants isn't entirely savory, and I don't know anything about the murder except that the New York Times reporter was most likely exhibiting his cluenessless when he reported this at face value:

[Convicted murderer Allen] Snyder was hoping to reconcile with his wife, Mary, and became enraged when she went out with another man on the night of Aug. 15, 1995, the trial showed. Early on Aug. 16, Mr. Snyder stabbed to death his wife’s date, Howard Wilson, and wounded his estranged wife as the two sat in a car.

I suppose it's possible that the reporter didn't realize that's the story told by everybody who kills his ex-lover or her new boyfriend, when explaining why he spent two weeks lurking around her apartment with a knife or gun.  But they say that only after serious discussions with their defense attorneys. 

Before that moment of enlightenment, they're much more likely to explain their motivation along the lines recounted in a recent story from the third-most-violent state in the nation (without Mr. Snyder's Louisiana, we'd be # 2, but their score was wind-assisted, which is hardly fair):

Investigators believe House went to see his ex-girlfriend Monday night who was at her current boyfriend Daniel Morris' house.

Police say the girlfriend claims while House was talking to Morris he pulled out a gun and shot Morris in the face killing him then allegedly pointed the gun at the woman, but told her he couldn't kill her adding that that if he couldn't have her no one could.

Still, I suppose that in the Louisiana case, it's possible the gentle Mr. Snyder really was bringing chocolates and flowers when he stabbed the fickle woman to whom he was so steadfastly devoted, as well as the evil seducer who had stolen her away while twirling his mustache.

The Supreme Court said its job was to evaluate "the prosecution’s two proffered grounds for striking" a certain juror - the seemingly-violent verb referring to striking a name off a list, in this case a list of  the people unable to come up with good enough excuses to be relieved of the burden imposed by a juror summons.   In both criminal and civil cases, all sides are permitted to have some influence over the selection of a jury by rejecting x number of panel members (the number varies from state to state and even from case to case).

Neither side has to have a reason for striking a prospective juror's name off the list, except in the negative sense that neither side is permitted to strike a juror for racist reasons.  The intention for that negative limitation,  wholly laudable, is to eliminate racism in jury selection.  But what actually happened in Mr. Snyder's case was this: the Supreme Court, reading the trial transcript 12 years after the fact, asked itself whether the prosecutor's "reason proffered for the strike of" a certain juror was sincere or not.

Mr. Snyder's attorney, Stephen B. Bright, provided the Times with the obligatory bit of self-righteous gloating, saying "the ruling meant that 'the court has resoundingly told judges and prosecutors throughout the country that the practice of striking people from jury service based on their race must cease.'"

That's what I would've said, too, if I were in Mr. Bright's shoes.  But it's not even remotely true.  The Court didn't condemn the racism of the jury selection, but rather "[t]he implausibility of [the prosecutor's] explanation".  And, you know, they're not the same.

The Court resoundingly told prosecutors (and defense attorneys, at least in theory) throughout the country that if they're going to strike members of definable minority groups from a jury panel, they need to work out more plausible explanations.

In other words, they need to plan it out beforehand.

It's always seemed perfectly obvious to me that any halfway-intelligent racist would always have a solid, plausible excuse for excusing a minority juror.   Five minutes' research on the computer will give you a stockpile of a dozen excuses that have been found plausible by appellate courts: he wouldn't meet my eye, judge; or, he looked like he was falling asleep; or, he silently mouthed obscenities at me when no one else was looking: "If looks could kill, judge, I wouldn't be sitting here now."  Or (and this would have worked in Mr. Snyder's case), "I've always found that college teachers tend to be know-it-alls who try to dominate the jury."  

It's easy to provide a phony-but-plausible explanation for striking a Black juror.  Which means: attorney explanations will seem implausible to the Supreme Court only when the attorney in question wasn't trying to BS the judge.  

The Supreme Court's approach (generically known by the name of the founding case, Batson) depends on the racist attorney being dishonest with the Court but only carelessly so.  It's aimed squarely only at ineffectual racists -- but it also catches non-racist attorneys who haven't felt any need to stockpile phony excuses to meet such exigencies.

Effective racists, ones who've given the matter thought and planned ahead, are free to go about their business.

The Supreme Court's approach can be justified on the grounds that (a) it gives white, conservative justices such as Kennedy and Alito the chance to preen; and (b) it's the best the Supreme Court can do.  It's well-intended.  Which, you know, is nice.  But what if the intention isn't the same as the result.  I mean, that's possible, isn't it?  Even for the Supreme Court?

The whole theory of Batson is that an attorney's explanation for an action isn't the same as the attorney's reasons for taking that action, but that the explanation provides all the information you need to evaluate the reason.  That's probably not strictly self-contradictory, but it's edging pretty close.

Treating the intention as if it were the reality, treating different things as if they were the same -- I must admit the approach has tradition on its side.  (See post 346.)  And this a profession that's big on tradition.

In the Davis v. Washington decision of a couple years ago (see post 127), Justice Scalia's opinion for the Supreme Court contained a footnote explaining that suppression of evidence under the sixth amendment has no deterrent effect on police officers:

Police investigations themselves are, of course, in no way impugned by our characterization of their fruits as testimonial. ...  The Confrontation Clause in no way governs police conduct ...

That's a bit odd, because for the past 47 years the Supreme Court has been telling us that suppressing evidence under the fourth amendment has the effect of "deterring official misconduct and removing inducements to unreasonable invasions of privacy". 

So suppressing evidence under the fourth amendment affects police behavior in a way that suppressing evidence under the sixth amendment's confrontation clause doesn't.  Identical judicial actions produce opposite results. 

This is what I worry about: What if Scalia really believes it?

Have you ever seen late de Koonings?  Well, I haven't, since I live so far from New York.  But in reproductions, all the sometimes-hateful intensity of the earlier works is gone.  In the late paintings, the lines are loose, the colors simple - and many people have wondered whether the new style was the result of de Kooning's Alzheimer's (or alcohol-induced dementia) rather than artistic inspiration.

Comparing opinions like Davis to almost any of Antonin Scalia's opinions from the 1980s produces a disturbingly similar memento mori sensation.  The tight logic has come unwound, the careful use of language replaced by meaningless catchphrase: "testimonial statements are what they are".  That last phrase is lame coming from the mouths of losing football players, and they have the excuse of playing through repeated concussions. 

But then again, maybe there's a deeper meaning to Scalia's words.   Maybe he meant to imply that suppressing evidence under the fourth amendment doesn't affect police conduct, either.  But, no, I'm sorry - he's been a fairly enthusiastic fourth amendment suppressor recently.

The whole idea that suppressing evidence under the fourth amendment has any deterrent effect on cops has always struck me as more a matter of hope than experience.  After all, if after 47 years the rats still aren't pressing the right lever, wouldn't even the most die-hard behaviorist consider the possibility that the experiment is a failure?  (See post 6.) 

What percentage of officers ever learn of the existence of judicial orders denouncing their actions?   Of those that do, how many see any point in ploughing through page after page of lifeless prose to discover what the judge said about them?  And of those who do that, how many can recognize themselves in the judges' words? - that is, how many trust the judge's reconstruction more than their own memories, retroactively shaped as those have been by the need to defend one's actions? 

Furthermore, why wouldn't an officer say exactly what lawyers say all the time, that the judge is full of it? biased? clueless? chummy with / intimidated by the other side? so scared of getting reversed that he bases his rulings on his perception of the bias of the next court up the ladder? 

Besides, is it altogether rational for a person in any profession to follow the advice of someone with no training or experience in that particular profession?  

You wouldn't trust your car to a mechanic whose only training was reading books written by people who had never themselves worked on cars.  You wouldn't trust your health to a physician whose only knowledge of medicine came from reading the works of his predecessors, whose sole experience came from studying the written works of their predecessors.   I mean, that's so 14th century.   

But, nonetheless, the Supreme Court has told us that police officers will trust their lives to judges, changing their future behavior in response to the signals given by judges a year or two after the officer's previous behavior, and so it's true that they do so - or, rather, it's not open for debate, which inside the pyramidal hierarchy of our courts is even better than true.

Scalia's Davis opinion is magical thinking - the belief that words can control reality - and, I suspect, a symptom of a cerebral event, probably a small stroke, that's been kept from us.  But magical thinking is hardly unique to Justice Scalia.  In 1961, the Supreme Court announced the result of its experiment before beginning it, telling us what they were about to accomplish before attempting it.  Abracadabra, my Brethren.