Joel Jacobsen

Last May I mentioned an ongoing research project I'm doing for the National Center for the Prosecution of Child Abuse that has me reading every new case interpreting Crawford v. Washington, the big daddy criminal procedural case of the new century, the one that either amended the sixth amendment or repealed prior amendments, depending on one's point of view.  (See post 127 and post 112.)

Back in May I wrote that American courts produced an average of about four new Crawford cases a day.  But hardly had I irritated my carpal tunnels and repetitively stressed my wrist tendons to type those words (there are distinct disadvantages to spending one's working life in the company of office equipment ergonomically designed by computer nerds) than the number of Crawford cases began exploding.

By mid-June I was plowing through 25, even 30 new Crawford decisions every day.   Some of them were routine, but the majority - between two-thirds and three-quarters - were relatively significant opinions stating basic confrontation clause law in various jurisdictions.

Naive and trusting soul that I am, ever willing to believe that figures of authority always know what's best for the world outside their hermetically-sealed throne rooms, I assumed that some sort of chaos theory was at work, by which the random action of the Supreme Court in 2004 was the flapping butterfly wing that set off the first of the out-of-control vortices that combined into the storm that produced the flash flood.

Well, no.  Come July 1, the flood ended.  Now we're back to four or even fewer cases a day.  And the only explanation I can think of is: in many states, the fiscal year ended on June 30.  During the last days of the FY, judges were pushing cases out the door as fast as they could in order to goose their productivity statistics, the way workers in the old Soviet Union ("they pretend to pay us and we pretend to work") were reputed to spend the last day or two of each month frantically catching up with the quota, only to relax again into torpor for the next 28 days.

I can't believe the phenomenon is restricted to Crawford cases.  I suspect if one were to gather statistics about the months of the year in which appellate opinions are released, and compared them to the fiscal cycle in the particular state, one would find a correlation. 

Each court's quota is, I think it's safe to assume, the number of cases processed the previous fiscal year.  So long as the court meets its quota, its chief judge can assure the state legislature's budget committees that every judge continues to work at the uttermost limits of human capacity.  Failing to meet the quota could have undesirable effects on the judicial bureaucracy.  Sure, the parties and the lawyers might think the stakes are high for them, but lemme tell you what's really at issue here ...

So if your case was decided in the final weeks of the fiscal year, and the opinion read as if it had been thrown together by a law clerk on the morning of the day it was released, and signed without reading by the judges - well, ...