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.

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. 

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.

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.

That would be enough for some people.  But certain personalities, once they taste the intoxicating liquor of mention in this blog, find themselves unable to resist the temptation to sip it again:

According to police reports:
    Officers heard screams shortly after arriving in Brennan's neighborhood. After determining they were coming from what turned out to be Brennan's house, they approached the front door and heard a woman scream, "Please let me go" and "Ouch, you are hurting me." They also heard a male curse at the woman and say, "Because of you and your big mouth, the cops are going to come."
    The woman responded, "Why are you doing this? Please let me go. You're hurting me" as country music blared in the background.
    The officers then heard what sounded like the woman escaping and heard her scream, "Help! Help!"
    Two officers then peeked through a set of French doors and saw Brennan with his hand over the woman's mouth and his arm wrapped around her throat.
    The officers drew their guns, kicked open the door, ordered Brennan to let go of the woman and placed the former judge in handcuffs. At the same time, a third officer was forcing his way through a back door.
    "I immediately recognized the male subject as former 2nd Judicial District Judge John Brennan," one of the officers wrote in a report.
    The woman told police that Brennan was upset because he wanted her to have sex with a prostitute and she refused.
    He then chased her through the house and grabbed her by the hair and neck several times, she told police. At one point, the woman locked herself in a bedroom and removed a window screen in an attempt to escape, but the window was too high.
    The woman told police that Brennan grabbed her hair and was going to "snap" her neck. She told police that she thought Brennan was going to kill her.
    When questioned by police, Brennan said, "I didn't touch her" several times. He also told officers, "I would never hurt a woman."
    "Mr. Brennan did emit an extremely strong odor of alcoholic beverage and his eyes were blood shot and watery and his speech was slurred," one officer wrote in his report.
    Brennan was chief judge in the 2nd Judicial District in Albuquerque for nearly 20 years. On Memorial Day weekend 2004, he was arrested on suspicion of driving while intoxicated and cocaine possession. He resigned from the bench shortly afterward.

That's all from the Albuquerque Journal.  Needless to say, Brennan responded to the earlier arrest by going to a rehab center, but as the news story tragically reveals, he has since backslid into listening to country music again.

The next time you find yourself dressed down by a judge, it's worth imagining him or her dressed up like Judge Brennan when the police kicked in his door, "wearing only a mock turtleneck and gray underwear".  No word on whether the underwear was gray when it came from the store.

Brennan, as the story says, was an extremely powerful judge for a very long time, with the power of assigning cases to fellow judges who played along with him. 

It's hard to read the recent news stories without (a) feeling a tinge of pity for him; (b) feeling a great deal more pity for his wife (who was out of town -- you don't suppose Brennan was basing more than his wardrobe choices on Risky Business, do you?); and (c) suspecting that his cocaine problem is/was a very severe one.  Long-term cocaine use destroys the brain, and Brennan's brain seems pretty much destroyed by this point.

Our Supreme Court responded to the scandal of his 2004 arrest by adopting the approach used by Catholic Church bureaucrats to deal with pedophile priests, treating it as a personal failing to be addressed with sorrowful discretion.  (See the appendix to this opinion.)

The real scandal wasn't Brennan's use of cocaine.  It was his use of power.  No matter how one tries, it's not easy to avoid the suspicion that for some part of 20 years the court system in New Mexico's only large city was presided over by a cocaine addict.  If so, then obviously his suppliers knew it.   Of course, most cocaine dealers would be too scrupulous to take advantage of such information.  Still ...

There's nothing remotely unique about the New Mexico legal establishment's reluctance to engage in such irresponsible speculation.  Prayer and penitence -- that's the ticket.  Oh, and harumph, too.

In the past, remote communities like this one [i.e., Wintergreen Resort, Virginia, along the Appalachian Trail] were ripe for thieves. But since residents started paying for their own private officers, crime has dropped 70 percent.

Many of the residents also did something else: They installed burglar alarms. Nationwide, one in four homes now has one. The alarms and an explosion of other devices, like steel bars, stronger doors and security glass, make it more of a hassle to break into homes, criminologists say.

Even locks, the most basic anti-burglary device, have undergone major changes since the 1970s.

"Good locks make all the difference," locksmith Rahm Bunnag says.

Locks are far more secure than they were 30 years ago, he says. They're far more intricate, he says, holding up two keys.

One, made by Ossa, has a second set of cuts on the side. Another, made by Medico, "looks like a normal key, but when you look down at the cuts, notice that it's cut at an angle. There's a 98 percent chance that says you can't pick it," Bunnag says.

The 1970s also saw the widespread introduction of the deadbolt. But the biggest change when it comes to locks, criminologists say, is that people started using them.

I have never understood why so many liberals, who are ideologically opposed to deregulation and privatization in other areas of life, are so comfortable with the idea that law enforcement should be an individual activity.  Security is a tax on the honest, as Bruce Schneier says (see post 52), and the folks in Wintergreen Resort are paying it, with their locks and private police force. 

The NPR story also mentions the "1 million private police and security guards at work in residential communities" - a mind-boggling number.  That's a million people who have jobs because the government can't be counted on to perform its most basic function, which is to protect its citizens from harm.

Meanwhile, Justice Stevens recently wrote about how a state can "grant its citizens broader protection than the Federal Constitution requires".  By "protection" he meant concealing reliable, relevant evidence from its juries, on the theory that when a state prevents itself from convicting a lawbreaker of breaking the law, the state is protecting its citizens from unconstitutional actions by police committed many months earlier - your basic space-time anomaly.

The fact that a state's citizens might feel the need to hire private police forces and make their homes into little castles in fact as well as in rhetoric is neither here nor there.  The little dears might think they need protection from criminals, but the Supreme Court knows better: they need protection from the state's own courts, which might otherwise convict them.

Then again, the basic concept of "more protection under the state Constitution" is hardly new: Ludwig Mies van der Rohe expressed it in a three-word slogan many decades ago.

In 1992, anti-abortion activists made a big swing at Roe v. Wade but - to the tremendous subsequent benefit of the religious right, which came within an eyelash of losing its defining issue - missed, thanks to the apostasy of Justices O'Connor, Kennedy and Souter, who voted just like all those suburban Republicans who are ideologically committed to banning abortion so long as there is no realistic possibility of it actually being banned. 

O'Connor, Kennedy and Souter - who were chicken-hearted enough to publish a "joint opinion", so no one of them could be blamed - argued that the Court's legitimacy (by which they meant the willingness of Americans to be dictated to) would suffer if it were to "surrender to political pressure" by overruling Roe v. Wade.

Rehnquist wrote a bitter dissent, alternatively mocking and deriding the three justices' professed devotion to the principle of stare decisis - that is, adherence to prior decisions.  Rehnquist's opinion goes on and on.  Here's a handful of representative snippets:

The joint opinion of Justices O'Connor, Kennedy, and Souter cannot bring itself to say that Roe was correct as an original matter, but the authors are of the view that "the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding." ...

[It is] our duty to reconsider constitutional interpretations that "depar[t] from a proper understanding" of the Constitution. ...  Our constitutional watch does not cease merely because we have spoken before on an issue; when it becomes clear that a prior constitutional interpretation is unsound we are obliged to reexamine the question. ...

But this perceived dilemma arises only if one assumes, as the joint opinion does, that the Court should make its decisions with a view toward speculative public perceptions. If one assumes instead ... that the Court's legitimacy is enhanced by faithful interpretion of the Constitution irrespective of public opposition, such self engendered difficulties may be put to one side. ...

Fast forward eight years.  In his opinion declaring that the Miranda warnings are actually required by the Constitution's amendment V.V (see post 275) -  the one between V and VI that was omitted from so many copies for so many decades due to a printer's error back in Philadelphia in 1791 - Rehnquist wrote:

Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now.  ... 

We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. ...

So speculation about public opinion is utterly unacceptable as a tool of constitutional decision-making, while speculation about our national culture is A-OK.  Everyone clear on that? 

In abortion cases, it's wrong for justices to adhere to precedent unless convinced of the correctness of the original ruling.  In criminal cases, it doesn't matter whether the adherents agree with the adhesive in question.  

And, you know, that's clear enough, too, really.

The problem isn't so much the theory behind Crawford, which is elegant in its reductionist and intellectually dishonest (see post 238) way.  It's how the Supreme Court has implemented its revolution.

Anyway, trying to think of ways to explain what our courts have recently been doing to domestic violence and child abuse cases - because that's what Crawford is all about, practically speaking (see post 148) (well, and DWI, too) - has been a useful exercise.  I've finally realized something I should have seen many years ago, which is the extent to which our current criminal law system relies on treating different things as if they were the same. 

It's a type of pretend-algebra: if suppressing evidence equals X, and protecting a defendant's constitutional rights equals Y, then X = Y.

Which means, if you were paying attention in 8th grade (and most future lawyers could still get decent grades in math right up to the second semester of that year), 2X = 2Y. 

I think that, and nothing intellectually more sophisticated, is in the back of many decisions in the criminal law.  It can be expressed in a good old-fashioned syllogism:

Protecting the constitutional rights of the accused is a noble and praiseworthy thing for a judge to do, especially if the crime is particularly atrocious. 

A judge protects the accused's constitutional rights by hiding evidence from the jury. 

And so, therefore, a judge acts most nobly and is most worthy of praise when ...

The problem, of course, is that in the real world X equals Y only in the same sense that shopping at Whole Foods equals living a radically-simple, eco-friendly lifestyle.  Or, say, invading Iraq equals smashing al-Qaeda.   

The constitutional algebra of X = Y not only confuses the means and the end, but assumes a connection between the two based solely on the judiciary's good intentions.   Or wishful thinking.  Or willful self-deception.  Or contempt for the weaklings who allow themselves to become victims.  Or whatever you want to call it.

In short, it involves treating two different things as if they weren't different, refusing even to consider the possibility that they're not the same, and proceeding from there.

I was started down this line of thought by, of all things, the back pages of my local alternative free weekly, the Albuquerque Alibi.  Back among the phone-sex ads and personals that seemed designed to make the bored Flying Star patron wonder whether it's more likely to be a scam or just a joke, the paper runs Cecil Adams' Straight Dope.

Far be it from me to question the font of all knowledge.  But still.  Recently the Alibi ran his column recycling the studies that purport to show that sugar doesn't have any effect on the behavior of children, contrary to the observations of millions upon millions of parents - as well as of anyone who has gone without lunch and then, mid-afternoon, washed down a doughnut with a Dr. Pepper. 

Ah, but that's real life.  The studies Cecil cited put mothers and children together in artificial laboratory conditions, and then gave the children either sugar or artificial sweeteners, and then tried to see if the mothers could tell which group their kids belonged to.

Now, it seems obvious to me that: (a) there's no reason to assume without evidence that artificial sweeteners have no effect on children's behavior; and (b) no one cares whether sugar has a different effect than artificial sweeteners - the question is whether it has a different effect than real food; and (c) the kids' behavior will change when in unusual situations, such as those of the experiments; and (d) the parents' behavior will change when told to watch for signs that their child is beginning to get out of control, especially if they feel their parenting skills are being judged by the psych students or fellow-parents; and so on. 

The studies answer question A: Whether parents can tell  if their kid has been given a sugary drink or an artificially-sweetened drink in highly artificial conditions.  The premise of Cecil's column (and, of course, the studies he was writing about) is that the answer to question A equals the answer to question B: Whether a kid can sit around the house all day and eat tons of sugary things without getting all weird.

Personally, I think an argument could be made that the two questions are not actually the same.

 A similar example, also from the fringes of science, was the recent meta-study, given huge publicity, that purported to show the inefficacy of SSRI antidepressants in treating depression, contrary to the experience of millions of patients and mental health providers.

But if you read down to the 9th paragraph of this article, you'll find that what the meta-study really examined was changes in patients' scores on "the Hamilton scale."  The study concluded - and I have no reason to doubt the validity of the conclusion, for all that I wonder if the authors had an agenda - that treatment with antidepressants generally doesn't result in significant changes in the Hamilton scale. 

(Possible agendas involve the secrecy-bordering-on-wholesale-deception of the drug companies - more here - and the allocation of public health monies in the U.K. as between talk therapy and drug therapy.)

Now, the Hamilton scale is a screening device used by mental health professionals to determine if a person is seriously depressed.  It assigns the patient a score, varying from 0-2 to 0-4, on 21 subjects such as suicidal ideation, and then adds up the scores.  

The Hamilton scale is doubtless useful for a triage nurse trying to figure out whether a person is an immediate danger to him- or herself.  But it's an extremely crude method for measuring the emotional and mental state of a human being.   It's a little like asking your colleague if she prefers Italian or Chinese food - good information to have when choosing a restaurant for lunch, but not all that revealing about the person's inner life.

So what the meta-study was measuring was changes in patients' responses to simple questions repeated over time.  The premise of the meta-study is: when M equals changes in the patient's answers to repeated questions, and N equals the patient's mental health, then M = N.

My only objection to the study is: No, it doesn't. 

At this point in our legal history, I'm afraid that too many judges and staff attorneys have too much emotionally invested in the idea that X =Y to begin questioning the equation now.  Because if it turns out that concealing evidence from the jury isn't the same thing as protecting a defendant's constitutional rights, then they have a lot of 'splaining to do.

Pace the prior article, this author is not technically a madman, to judge from her photograph on the AEI website.  Just a mad-doctor.

Anyway, the issue also has a review of a new Yale Press book by Yale Professor James Q. Whitman called The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial, which appears to be one of those academic books in which the author points out an interesting overlooked aspect of the past and then insists that it provides the key for understanding everything, everything, do you understand, everything!  You know, the usual scholarly thing.

The book is reviewed by the Joyce Carol Oates of the legal academy, the graphomaniac Judge Richard Posner, whom Nassim Nicholas Taleb terms "one of those people who should spend more time reading and less time writing".   The TNR review confirms Taleb's judgment (which he immediately softens with some nice and well-deserved compliments - Posner is an extremely interesting and intellectually curious person, even though he is a judge).  The review's first sentence is adapted from the first sentence of the publisher's advertising copy, while the review's second sentence reads:

To punish an innocent person is more costly than to acquit a guilty one, since convicting an innocent person imposes heavy costs of punishment on him and on the criminal justice system (the cost of administering the sentence) while the main consequence of acquitting a guilty person is merely to reduce, probably slightly (unless such acquittals become very common), the deterrent and incapacitative effect of the criminal law.

As it happens, I was induced to read the entire review because I was trapped on an airplane.  I couldn't help wondering, just a tiny little bit, if it were really true that the costs of acquitting a guilty person are quite as low as Posner assumes.  For instance, upon landing at Logan I walked by Boston Herald newsstands featuring this story:

The serial sex fiend busted for allegedly stalking a woman in a Braintree bookstore bathroom left a trail of escalating depravity encompassing nearly a dozen incidents over seven years, including a violent attempted rape.

Judge Richard T. Moses knew twisted sex freak David Flavell’s history of arrests from New Hampshire to Fairhaven when he set free the Level 3 offender in 2006, ruling he posed no danger to the public, according to court filings obtained by the Herald.

Well, it's a tabloid.  But the heated-up, mad-editor style doesn't mean it's wrong.  A follow-up article said the suspect was separately charged "with making obscene or harassing phone calls for dialing the National Center for Missing & Exploited Children to report he had just indecently assaulted a 6- or 7-year-old girl, a Boston police report said."  A Sunday article listed other Massachusetts sex offenders who have been re-arrested for sex crimes after being found not to qualify for sexual predator status.  

Well, okay, that's Boston.  How about in Judge Posner's hometown of Chicago?  Three hours in O'Hare on the way home gave me time to read the Daily Herald, the paper for the northwestern suburbs, where the above-the-fold headline was "The hurt doesn't go away: Parents remember daughter who lost life in a single moment of violence."  The story was about Matthew Cunningham, whose months-long murder trial is set to finally end in the next few days:

Every day Bill Albu reads about people dying -- in drive-by shootings, in car accidents, on college campuses.

He thinks of the victims' families and how their lives will never be the same. Sorrow will follow them to the grocery store, to family weddings, everywhere.

He knows.

His daughter, former Arlington Heights resident Katie Albu Spain, 28, was spending a quiet night at home with her son when she heard a smoke alarm go off somewhere in her building.

She opened her front door and ran into Matthew Cunningham, who had just killed his roommate, Robert Barker. Cunningham then stabbed Albu more than 30 times. She died in the hallway of her Phoenix apartment building in Arizona.

Bill Albu, the father, said about other parents of murdered children: "'There are people who walk around with unbelievable sorrow in their lives and you'd never know it,' Bill said.  'These are the most compassionate people.'"  He described the awful moment at parties when new acquaintances ask about his kids.

On page 4 was a story with this lede: "A 16-year-old boy accused of stabbing an Elgin High School teacher appeared Friday in Kane County circuit court on sex assault charges, offenses prosecutors allege took place about five months before the school attack."

And on page 6 was the headline: "Sister's words bring killer to tears" over this story:

For weeks, Eric C. Hanson remained composed while facing a DuPage County jury that will decide if he lives or dies for killing his family.

He never broke down despite horrific details of the quadruple homicide, a grueling five hours on the witness stand, or when he heard the word "guilty" for the first time.

But the Naperville man's stoical expression changed Friday when his older sister, Jennifer Williams, described the sad irony of his crimes.

"Eric murdered the only people in his life that loved him unconditionally -- my mother, father and sister," she said, "the most wonderful people that I was so fortunate to have called my family." ...

Hanson, like most of the worst killers, had a troubled childhood.  The jury heard this about his past:

As he aged, Hanson was convicted of home invasion, retail theft and, in 1999, aggravated battery. Three girlfriends described how he lied, stole and, on a few occasions, became violent.

Most disturbing, though, was a 911 call involving his sister, Kate, on Feb. 10, 1993, when she told police he held a knife against her throat when they lived in Burnsville, Minn. Eric was 16. 

"(He) got very mad at me and grabbed the top of my hair and threw me down on the hardwood floor," said officer Eric Gieseke, reading Kate's statement. "His face turned color because he was so angry. He said, 'I might as well kill you because as soon as my probation officer finds out, I'll be sent away anyway.' He said, 'I can cover it up. No one will know.' "

Kate got away. Twelve years later, she did not.

On Sept. 29, 2005, police discovered the bludgeoned bodies of Katherine "Kate" Hanson-Tsao, 31, along with her husband, Jimmy, 34, in their upscale Aurora home.

Terrance Hanson, 57, and his wife, Mary, 55, also were found slain there. The elder couple was shot in their bed in Naperville, where son Eric also lived, then taken to Kate's home five miles away.16.

Okay, but that's the suburbs.  How about Chicago itself?  The Sun-Times headline yesterday was: "Unforgiven".  This was the story:

On June 7, 1969, [Terence] Knox was a young cop nicknamed "Tinsel" because he wore braces. He was on patrol when he saw Pannell and thought maybe the youth was playing hooky from high school. Knox tried to question Pannell, but Pannell answered with bullets.

Knox was hit in the right arm.  At the time, Pannell, a Navy deserter, told investigators he was a member of the Black Panthers. Pannell never went to trial. Instead, he fled to Canada, where he assumed a different identity, married, had four children and became a respected member of his community. ...

[Knox] spoke of the "excruciating pain" that sometimes causes him to stand up and leave the room during business meetings. Knox said he hides his wounded arm beneath long sleeves. He showed reporters the fingers of his right hand -- puffy and purplish in color.

And Knox talked about the mental pain of seeing Pannell on Friday -- the first time since 1973.

"I had a hard time sitting in court today, very hard because it brought back memories I've tried to block out, and I don't want them back," Knox said.

The main consequence of acquitting the guilty, Posner writes in the review I happened to have just finished as I walked past these various news boxes, "is merely to reduce, probably slightly ... [the] incapacitative effect of the criminal law."  He meant: is merely to leave the guilty criminal free to commit additional crimes. 

I don't know if Cunningham or Pannell had prior records, but it's safe to say that the absence of any incapacitative effect on Flavell and the others featured by the Herald, the 16-year-old teacher-stabber and Hanson had costs that could be described in somewhat less-abstract terms than Posner chose to use.

But then, those costs aren't borne by judges, are they?  It's possible Posner was being ironic (though irony, and humor in general, seem generally beyond his range), because the book he was reviewing argues that "the reasonable doubt formula was originally concerned with protecting the souls of the jurors against damnation."

Acquitting the guilty has low costs for judges.  In fact, if the judge takes care not to inform him- or herself about the remote consequences, it need not have any costs at all.  The key thing is to avoid reading papers like the two Heralds or the Sun-Times, which might suggest the disturbing possibility of life outside the courtroom.

Of course, there's larger issues at stake, too.  Like: letting the public know what really goes on in its courts would tend to diminish public confidence.  It's striking that the Commission doesn't contend that Judge Allen said anything false, or even inaccurate.  The supposed ethical violation is simply that he said it about his colleague, in contravention of the convention of unctuous displays of brotherly (well, brethrenly) esteem.

Anyway, ABC News has picked up on it with a story that quotes other court employees venting their feelings about Judge Allen's antagonist, Judge Charles J. Kahn, whose publicity photo seems designed to create the impression of someone who doesn't know how to relax.   The story reports that Judge Kahn "was described by his colleagues as acting, at times, 'volatile,' 'irrational' and 'schizoid.'"

Let's see.  The DSM list of symptoms for schizoid personality disorder include "Social withdrawal, or continual avoidance of social activities / Flattened emotions or lack of expressivity / Having little to say".   You can see where combining that with irrational volatility might be somewhat disorienting to coworkers.

But, hey, we only pay 'em to sound like they know what they're talking about when they use fancy words in their opinions.  I think what the speaker - Chief Judge Edwin B. Browning - meant was something more along the lines of Dr. Jekyll and Mr. Hyde, or perhaps Boopsie and Hunk-Ra.