JUDGING CRIMES

As the Duke lacrosse players are preparing to demonstrate yet again, it's very difficult to convict a rich person in the United States.  Partly that's because rich people can hire teams of high-priced lawyers, jury consultants and professional mouthpieces who can easily overwhelm the prosecutors with endless motions, intimidate judges with their reputations,  win the public relations war and influence the jury pool with carefully-planned leaks, select a biased jury, and then do an imperious Italian-suit number on the poor schlump of a state employee on the other side, being amiably condescending in full sight of the jury while accepting star treatment from the press.

Partly, too, it's because witnesses, including victims, are so easy to pay off.  Someday, maybe after all the fun with steroids dies down, we'll get a succession of stories about the lawyers who build whole careers out of persuading victims of professional athletes to weigh the advantages of a new Mercedes against the disadvantages of being labeled a pathologically lying nymphomaniac on every sports page in the country.  It's your choice, sweetie: a $70,000 ride -  or a Jim Rome-wannabe in every media market shouting himself hoarse about you, Catherine the Great and horses. 

And maybe, if you're extremely unlucky, you'll even make it to the scream-media big leagues: check out Rush Limbaugh's and Tucker Carlson's enthusiastic class, race and gender solidarity.

But the biggest reason it's difficult to convict a rich person is because that's the way the U.S. Supreme Court wants it.  The Court has, since the 1960s, established a whole succession of rules that favor the clever and well-advised.  As Professor William J. Stuntz recently wrote in The New Republic, "We seem to have created the perfect system for policing the police--if the system's goals are to maximize protection for rich white kids from the suburbs and maximize police authority over poor black kids from central cities." 

Or you could put it the other way around, as Jack Love, a retired judge, did in his blog New Mexico Law and Society:  the constitutionalization of state criminal law "penalizes the weak, the ignorant, the stupid, the frightened, the mentally ill, and those overcome by guilt."

A lawyer called into a case at the moment of arrest, or before, will busy him- or herself with preventing the police from gathering evidence.  That's the defense lawyer's job.  The Supreme Court gave them authority to stop (or, if you prefer, redirect) police investigations in 1977, if not before.  But most public defenders don't get involved in a case until days after the arrest, after bureaucratic hoops have been leapt through, indigence has been established, and so on.  That means suspects who can afford private attorneys are in a vastly superior position even during the investigatory stage. 

This isn't an artifact of our class system, but a policy decided upon by our justices.  It's one more illustration of the cardinal rule of predicting Supreme Court cases: the justices will almost always arrive at the outcome that does the most to advance the interests of the Supreme Court itself, the federal judiciary, the state judiciary, or the legal profession, in that order of priority.  (Accurate prediction is much easier if you disregard the merits of the case, which only confuse the issue.)

The Court's criminal procedure decisions since the 1960s have been consistent.  The Court grants itself  power to control an ever-wider range of actions in state trial courts; and makes the lower federal courts the viceroys of its colonized territories, with authority to supervise state courts through the power of habeas corpus; and compensates state judges for the lessening of their autonomy by authorizing them to oversee the operations of their states' executive branches (see post 5); and gives lawyers the power to prevent police from gathering evidence against their clients, providing a massive incentive for wealthy clients to begin paying huge attorney fees (cash up front is the rule in the criminal defense biz) at the earliest possible moment.

Consider for a moment a couple of the Supreme Court's most consequential recent criminal cases. 

Apprendi v. New Jersey involved a middle-aged pharmacist who admitted shooting up the house of the first black family to move into his neighborhood, relying on the testimony of (expensive, it's safe to say) mental health professionals to support his defense of mental disturbance.  As a matter of cold statistics, middle-aged white professionals are not the most numerous category of violent criminals.

Blakely v. Washington involved a middle-aged man who duct-taped his wife, put her in a homemade coffin in the bed of his pickup truck, and told the couple's 13-year-old son he would shotgun the box unless the boy did Daddy's bidding.  When the boy subsequently climbed into the truck bed in an attempt to rescue his mother, Daddy maneuvered the truck wildly, successfully knocking the boy to the ground.  (47 P.3d 149)

The source of the marital discord was pending litigation over property the Blakelys had acquired in the course of "complex business maneuvers", according to one of the opinions in their epic divorce proceedings.  (44 P.3d 924)  It's safe to assume that relatively few defendants charged with violent crimes in American courts are motivated by a wish to influence the disposition of a "ranch, and development property in Montana; a home and orchard in Grant County[, Washington]; a lake home; and rental properties" being held in a family trust.  (47 P.3d 149)

The husband in Randolph v. Georgia, the laughable recent decision that wives cannot invite police into their homes over hubby's objection, because David Souter, of all socially isolated people, thinks that reflects social norms (see post 91 and post 96), was a lawyer, according to Law.com. 

Just recently the justices heard argument in a drug case in which a defendant hired two sets of lawyers, inducing one of them to fly to Missouri from California.  One might guess that's not an inexpensive thing to do.  At least, it doesn't seem to come up in very many cases involving indigent defendants.

Examples can (and will, in future posts) be multiplied.  Bottom line: if you're thinking about committing a violent crime in America, plan ahead.  Make sure you have lots of money.  If at all possible, be middle-aged, white and male.  Commit your crimes against people with different demographics.  It helps to have a professional degree, but substantial real estate holdings will serve in a pinch, and attending an elite university will (just wait and see) probably do just as well.   Once you've checked off as many items as possible on that list, call your lawyer.  And  you're good to go!