JUDGING CRIMES

Legal reasoning and thought are two different things.  That's not always a bad thing.  The distinction between the two is the justification for stare decisis, the principle that future cases should be resolved in line with prior precedent.  If another train conductor boosts another passenger onto a moving train in New York, causing the passenger to lose his grip on a package that drops beneath the wheels of the train, causing the fireworks inside the package to explode with such force that scales fall onto the head of another passenger bound for Rockaway Beach, then the poor victim should be denied relief, just as Mrs. Palsgraf was denied the right to recover against the Long Island Railroad Company.  The whole point is to spare the second judge the trouble of thinking the matter through.

Legal reasoning is supposed to be a mechanical process.  The common law imposes a grid system on reality.  Classic legal reasoning consists of sorting cases into their proper categories, in much the same way that letterpress printers sorted their type.  The common law's obsessive focus on the technicalities of pleading wasn't (merely) empty formalism, but an expression of the law's categorizing essence.  Once upon a time, when judges said they had no choice in how they ruled, they actually believed it.  The mechanical process of common law adjudication took precedence over the judges' own thoughts and moral intuitions.

The problem is that some lawyers don't always recognize the difference between legal reasoning and thought.  Some of them, I suspect, actually believe they're the same thing - how else to explain the frequency with which perfectly intelligent lawyers, upon donning a black robe, begin publishing "vacuously, smugly, and unconsciously foolish" opinions?

The Fatuity Watch will be a recurring feature of this blog.  Its inaugural entry is an opinion attributed to the Ninth Circuit's Senior Judge Robert Beezer.  (Whether it was actually written by Judge Beezer is, of course, a different question.  Probably it was written by a clerk or staff attorney, but he agreed to sign it.)  The case involved a convicted murderer in federal prison who, for reasons that will soon become obvious, was in 23-hour lockdown.  He was permitted out of his cell one hour each day to exercise inside what Judge Beezer terms a cage.  Other prisoners were put into the cage at the same time, and on April 26, 2001, our prisoner managed to attack a fellow prisoner with an 8-inch knife.  (The  victim survived.)

Our prisoner, Donzell Wayne Biggs a/k/a Maynard Wayne Hurley (he went to all the trouble of creating an alias, and then he picked "Maynard" - a potential mental health defense?), was prosecuted for the attempted murder.  He wanted to claim self-defense on the theory that he supposedly had heard through the prison grapevine that the victim had been planning to stab him, so he stabbed him back first.  The trial judge ruled that he wasn't entitled to a self-defense instruction "because he could not show that there were no reasonable alternatives to the use of force."

The Ninth Circuit, by Judge Beezer, reversed, holding:

In order to make a prima-facie case of self-defense, a defendant must make an offer of proof as to two elements: (1) a reasonable belief that the use of force was necessary to defend himself or another against the immediate use of unlawful force and (2) the use of no more force than was reasonably necessary in the circumstances.   [Citation omitted.]  The district court erred by requiring Biggs to present evidence of a third element, that there were "no reasonable alternatives to the use of force," in order to make out a prima facie case of self-defense. 

I've italicized the words "necessary."  The primary dictionary definition of the word is "absolutely essential."   So Judge Beezer was saying that the defendant was merely required to show that he reasonably believed stabbing the other prisoner was "absolutely essential."  He wasn't required to make the additional showing that no reasonable alternatives were available to him.

The legal reasoning is straightforward: established law requires that the evidence conform to the first two verbal formulas.  The trial judge required Maynard to produce evidence conforming to a third verbal formula.  Therefore, the trial court improperly added an extra box to the letterpress case.  QED.

But for anyone who engages in thought as opposed to legal reasoning, a certain course of action becomes  "absolutely essential" only when all alternatives are foreclosed.  And to say that a person has no reasonable alternative to a certain course of action means that the course of action has become necessary.   In concrete terms, if Maynard had an alternative to stabbing the other prisoner, then it wasn't necessary for Maynard to stab him.  The stabbing was necessary only if he had no alternative. 

And so the syllogism of Judge Beezer's opinion is this: Maynard was only required to  show that the stabbing was necessary.  The trial court required him to show, in addition, that the stabbing was necessary.  Therefore, the trial court erred.

You see how easy it is, once you get the hang of it? 

What makes the opinion particularly deserving of this inaugural issue of Fatuity Watch is its meta-holding: that whether a prisoner is justified in fabricating an 8-inch knife and driving it into the flesh of a fellow-prisoner is an issue to be litigated on a case-by-case basis.  The trial court's mistake was to think that the community principle applied, and that the community could declare stabbing fellow prisoners wrong in all circumstances.   (See post 88.) 

On the contrary, says Judge Beezer, the right of an individual to kill another is not limited by the fortuitous circumstances that both are in federal custody and the victim is forbidden to possess weapons adequate to defend himself.  As in Odysseus's time, these are matters for men to settle among themselves.  Lock 'em in a cage and let the gods determine who's right.