JUDGING CRIMES

Probably it wouldn't surprise Michael Moore, but Flint has a different U.S. Constitution than Detroit.  Last Tuesday, two judges of the Eastern District of Michigan, one based in Flint and the other in Detroit, issued opinions addressing the same constitutional question, namely, whether Confrontation Clause 2 (see post 112) still applies to hearsay evidence that is not covered by Confrontation Cause 3, Service Pack 2, which is the current version, rolled out last February.  (See post 127.)

The technicalities don't really matter, or rather they matter only to the extent that they are beyond the understanding of at least one federal judge in Michigan's Eastern District.  Both cases decided last Tuesday involved state convictions for murder, and so the overriding issue was whether the federal courts should prevent the Michigan state courts from enforcing Michigan state laws against the unlawful killing of human beings. 

In one case, out of Detroit, Judge Avern Cohn recognized - correctly, but that's by the bye - that the only issue under CC 3.2 is whether challenged hearsay is "testimonial", referring to the new category of evidence that was the big innovation of CC 3 (see post 271), more or less comparable to Vista's ribbon.  Judge Cohn found that "the Supreme Court has made clear that the Confrontation Clause is not implicated, and need not be considered, when non-testimonial hearsay is at issue."  [Gendron v. Lafler, July 10, 2007]

On the same day, just 68.5 miles away, in the Eastern District's Flint office, Judge Paul V. Gadola issued his own opinion addressing precisely the same issue in another murder case out of Detroit, and he concluded that Confrontation Clause 2 "continues to apply to the admission of non-testimonial hearsay."  [Legion v. McKee, July 10, 2007] 

Under Judge Gadola's interpretation of CC 2, it was a constitutional mistake for the Michigan trial court to allow the jury to decide for itself whether to believe that the murderer actually made incriminating remarks to his cellmate.  That was a decision reserved by the Constitution to federal judges, who benefit from the objectivity granted by partial ignorance, since they're not distracted by actually seeing the witness testify, hearing his voice, etc.

So here we have two absolutely contradictory decisions issuing from two offices of the same court on the same day in the same type of case. 

As it happens, Judge Gadola's constitutional interpretation is not only wrong but embarrassingly so, since his daddy Court of Appeals, the Sixth Circuit, definitively rejected his position last May 18.  Now, it's hardly surprising that Judge Gadola doesn't bother reading new Sixth Circuit opinions -- after all, he's a federal judge, about to turn 78, and scanning the new opinions would be a several-minute-long imposition every workday -- but you would think he would ask his law clerks to take the trouble.  Apparently not.  Perhaps he has them engage in the more rewarding work of gathering around his desk and listening adoringly to his war stories instead.

But Judge Gadola's error only explains this one manifestation of the most prevalent problems in American criminal law, which is usually described with anodyne phrases such as "circuit split" or "the majority of courts" or "division among the lower courts."  What these and similar phrases mean is that, while the Constitution is universally understood to grant judges enormous power to enforce the transcendent principles on which our system of government is based, those transcendent principles differ from circuit to circuit, state to state, even town to town.  Eventually, in theory, the disagreements are resolved by the Supreme Court - which means the transcendent principles also vary over time.

Judges and lawyers are trained in law school to tolerate chronic cognitive dissonance.  (See post 189 and post 256 and post 282.)  But I wonder how it is possible for anyone spared the law school experience to believe, even for second, that such an self-contradictory body of law is, in any but a notional sense, "constitutional."