JUDGING CRIMES

While recently clearing a layer of wood-pulp debris from my office ("Don't toss that!  It might come in handy some day."), I came across a law review article by Richard D. Friedman, Framer of the current sixth amendment. 

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.

The February 27 New Republic has a review of a book about neoconservatives that includes a passing reference to "the madmen at AEI", meaning the American Enterprise Institute.  On the same page, just one column over, is a long, meandering review by someone described as "a psychiatrist [and] a resident scholar at the American Enterprise Institute." 

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.

In Delaware, it's pretty big news that the state Supreme Court upheld the murder conviction of Michael Jones.  Shortly after a warrant was issued for Jones' arrest for homicide, he got into a car with a couple friends, one of them named Cedric Reinford:

While the three were in Reinford’s car, Jones killed Reinford by shooting him three times in the head. Page and Jones then dowsed Reinford and his car with gasoline and set it on fire. Afterwards, they went to Reinford’s house to steal drug money from a safe in Reinford’s home. There, Jones shot and killed Reinford’s fiancée, Maneeka Plant, and shot Reinford’s brother, Muhammad, in the face.  Muhammad miraculously survived and called 911 ...

You can see at once, can't you, why Professor Miller over at Evidence Prof Blog thinks it's such a shame that Jones' conviction was upheld?

(That's an unfair, nasty, cheap shot, of course: all professors think their subject is more important than the lives of people they don't know.  Besides, the whole point of the law of evidence is to prevent the jury from learning relevant information.  Expecting a professor of evidence to approve of a jury hearing unfiltered information is like expecting Bishop Ussher to embrace Agassiz's theory of the Ice Age.) 

(And, you know, Professor Miller might even be right, in the other-worldly terms in which right and wrong are debated in evidence classes and during bench conferences.  It's pipefitting: what flows through the pipe is beside the point.)

But what's really interesting about the case the meal the judge, Peggy Ableman, enjoyed at Feby's Fishery during the trial.   Here's a 2005 post from Crime & Federalism:

One witness said she told her husband that "she would get the last word" and that the man on trial before her "would get the death penalty." 

So much for a neutral and detached magistrate in that case. The defendant was subsequently sentenced to death.

Lawyers for the man filed a motion for a new trial claiming judicial bias. Judge Ableman would have none of it. Her recollection of the dinner conversation was that she was disappointed in the performance of defense counsel. Listen to part of her ruling:

"Defendant has not cited, nor am I aware of, any authority that would prevent a judge from telling her husband, 'An attorney has so botched the death penalty case that I am trying that I am going to be stuck with a ten-two jury vote to execute a juvenile." Temper, temper, judge.

So here we have a judge talking about an ongoing case in a public place, speaking in a loud enough voice for others around her to overhear and know exactly what she was talking about.   (Feby's website tells us the restaurant has a "full-service bar", and from the looks of it there's much service to savor.)  

We can have no doubt the incident happened: the judge admits as much  with her blame-the-lawyer defensiveness.  But, she later explained on the record, her use of profanity when describing the defense lawyer didn't mean she was biased against the defendant.  Oh, no.  Honest Injun, stack of Bibles, stick-a-needle-in-my-eye: she was expressing her bias against the prosecution:

My “animosity” toward [defense counsel], which would be more accurately termed disappointment, is not a reasonable basis for assuming I was biased against his client. The aforementioned instances . . . provide a more than reasonable basis for the Court to have become dissatisfied with the way [defense counsel] tried this case. That feeling, however, sprang from the Court’s judicial desire to ensure that Jones received a fair penalty hearing. I also had a strong personal desire to avoid a recommendation from the jury so strong that failure to issue a death sentence would appear to substitute my opinion of the juvenile death penalty for that of the law of Delaware and the conscience of the community. I did not intend to use my disappointment with [defense counsel] as an excuse to impose the death penalty regardless of Jones’ mitigating evidence. Instead, I was dissatisfied with [defense counsel] because his poor performance made it practically inevitable that the jury would strongly vote death, a recommendation that I would have probably had to follow regardless of my personal convictions.

In other words, she wanted to substitute her "opinion of the juvenile death penalty [Jones was 17 and 8 months when he murdered Reinford and Plant] for that of the law of Delaware and the conscience of the community."   She hoped and intended to do so.  But defense counsel's supposedly poor performance was going to make it politically difficult for her to get away with it.  The problem was so acute that she feared it would actually "appear" that she was doing what, in fact, she was doing.

Gee, no wonder she was upset.  Who can blame her?  No one likes to be held accountable for their choices.  I mean, go ask Michael Jones.  He suffered from appearances, too, such as the appearance that he killed the man he shot three times in the head.

And then the judge, apparently concerned that people might still take her seriously, added this:

She further defended her conversation because “it is simply too much to ask that a judge not utter a word to anyone about a case that may extend, like this one, for months, and to completely abstain from the support of family and friends when faced with difficult legal and moral decisions on matters of life and death.”

Now what, do you suppose, did she tell the jurors every evening when court recessed?   Do you suppose she gave the jurors "a general admonition that the jurors should not discuss the case with others"?  Of course she did.   All judges do.  Here's how a Hawaii judge did it when taking a 17-day break:

During your recesses from deliberations, when you are released to go home in the evening, you must not discuss this case with anyone or permit anyone to discuss the case with you. You must not read or listen to news accounts about this case, if there are any. You must not discuss this case with any person other than your fellow jurors.

So what Judge Ableman meant was that it is "simply too much" to expect a judge to conform to the same conduct demanded of jurors.  And, you know, she might be right.  Judges abuse jurors: they threaten to arrest them, then make them sit around dingy waiting rooms for hours, then hide evidence from then, even lie to them.   The nightly coerced vow of omertà might be compared to the tennis ball in the Far Side cartoon of the dentist who tells his patient: "Now open wide, Mr. Stevens ...  Just out of curiosity we're going to see if we can also cram in this tennis ball." 

Ever since Jacob Weisberg took over as boy-wonder editor of the Washington Post's farm team, Slate, we've missed the minutes of the media conspiracy.  Instead, we get the complacently-recycled conventional wisdom straight, without the kibitzing. 

Some of us regret the change, but maybe we're wrong to do so.  Maybe it's just the inevitable process of journalistic growing up.  Maybe we should be happy for Jacob instead that he's found such a comfortable home in corporate media.  Why, I bet the Charlie Rose show wouldn't even misspell his name again if he were invited back today.

The latest evidence that Weisberg has gone over to the other side of the mockery barrier was last week's column by David Greenberg.  Greenberg is great - fabulous, even - when writing about his subject, which is American political history viewed as a manifestation of popular culture.  But that's also his limitation: he sees all American history, including pop culture itself, as an expression of American politics.

Last week's column asked what Ronald Reagan's audience heard when he talked about "state's rights" in  Mississippi during his 1980 campaign.  I don't dispute Greenberg's thesis insofar as it concerns Reagan, Nixon, Goldwater, Wallace or any other politician.   But they weren't the only people alive in 1980.

That was was 27 years ago.   The majority of voting-aged Americans in 1980 had no difficulty skipping back in time another 27 years, to 1953.  To us, living in 2007, 1953 America seems like another planet.  For example,  people slept outdoors in the public parks during heat waves.  The link is to a picture from 1936 Detroit, but Eric Klinenberg's great Heat Wave: A Social Autopsy of Disaster in Chicago includes a similar photo from Chicago, 1963 (follow the Amazon search inside feature to figure 20 on page 57).  And I'm pretty sure the custom survived during the interval between those photos.

No one was sleeping outdoors during heat waves in 1980, unless they had no choice.  America had, in fact, changed from 1953 to 1980, and the change was not necessarily for the better in every detail.  For the entire decade of the 1950s, the national homicide rate was between 4.1 and 4.9 per 100,000 inhabitants.  In 1953 there were 7,210 recorded homicides in the 48 states.  In the year of Reagan's speech, by contrast, the national homicide rate was 10.2 per 100,000.  The total number of homicides in 1980 was 23,040, a three-fold increase from 1953.

Keep in mind the rapidly falling lethality rate of knife wounds and gunshots during the post-penicillin era.  Wounds that would have been fatal in 1953 could be survived in 1980.  The three-fold increase in homicides from 1953 to 1980 meant a greater-than-three-fold increase in the incidence of extreme violence.

With that background, here's Greenberg analyzing Reagan's 1980 speech.  In 1980, he writes,

racial inequities had become intricately woven into many policies and structures of American life—from housing patterns to popular notions about crime and welfare—and any discussion of these issues invariably carried a racial subtext.

Invariably?  Any discussion?  It was impossible to talk about, say, the murder of an acquaintance without talking about race?  Or about how inadvisable it had become to sleep in the park?  Well, perhaps so, but how does Greenberg demonstrate it?  What sort of evidence satisfies the academic historian's exacting standards?  He tells us: authors he admires have written books asserting that

Reagan's success hinged on forging messages to Americans—not just Southern whites, incidentally, but also Catholic blue-collar workers and neoconservative intellectuals—that eschewed explicit racism while still tapping into sublimated resentments of blacks or anger at racially fraught policies like busing, welfare, and crime.

Homicide is racially fraught?  Crime is a policy?  People were angry at that policy, rather than at crime itself?  Well, okay, if you say so.

On one issue after another, Reagan's image and appeal was shot through with a hostility to assisting minorities with positive measures—affirmative action, legal protections for criminal defendants, welfare programs (which mainly helped whites but were perceived as mainly helping blacks).

Legal protections for criminal defendants are a positive measure assisting minorities?  That (I'm convinced) was a primary motive for the Warren Court's federalization of criminal procedure.  But isn't it possible that good motives might produce unintended consequences?  Who, exactly, does Greenberg think was being killed as the homicide rate tripled?  Neoconservative intellectuals?

According to Greenberg - and many, many other liberal intellectuals before him - Reagan succeeded by his deft use of "code words."  Again, I wouldn't be surprised to learn that Reagan's handlers thought in those terms.  That's not my point. 

But notice the projection.  The academic historian of 2007 thinks of Reagan's words as symbols, conveying a message that contrasted with the common understanding of their meanings as words.  Therefore Reagan's listeners in 1980 understood them that way, too.

The academic historian of 2007 has no concern at all about becoming a victim of violent crime in 1980.  Therefore Reagan's listeners in 1980 weren't worried about becoming victims of violent crime, either.

The historian doesn't believe for one second that Reagan was sincere.  Therefore Reagan's listeners didn't believe it, either.

More than that, he believes Reagan's supporters were, without exception, warped idealists, in that they didn't vote to further their own personal interests but rather to advance a racial agenda.  After all, if the voters had genuinely been concerned about crime, Reagan's appeal to them wasn't hidden in "code words."  Greenberg's thesis depends on assuming the paradoxical selflessness of Reagan's nasty-minded voters - all 43,903,230 of them.

In short, the historian despises Reagan and everyone who voted for him.  Therefore he assumes they all thought just like him. 

The liberal academic believes that when millions of Americans told themselves they were alarmed at the rising crime rate, they were either lying or (at best) kidding themselves.  And so here's one more paradox: the academic brand of liberalism, championed by Weisberg's Slate, defines itself by its contempt for citizens of the poorest section of the country and members of the working class (or at least the Catholics among them), and views as unworthy of notice the sufferings of victims of violent crime - people who are, by definition, the most vulnerable among us.

Twenty-seven years from today, will another academic historian find in Greenberg's article a clue as to how the Democrats succeeded in excluding themselves from the White House during 19 of the past 27 years?

"Prosecutorial misconduct" is one of those great phrases, like "right to life" and "right to choose," that settles the argument before it begins.  It's an example of "unspeak," or more formally of framing.   The phrase "prosecutorial misconduct" is all over the internet, as it is all over the legal world.  A Westlaw search of national criminal law cases found 9,574 usages of the phrase since 2004.  (Westlaw won't return more than 10,000 hits for a search.)

Prosecutors shouldn't feel too paranoid, though.  "Ineffective assistance" is the roughly corresponding term applied to defense lawyers.  It means that the defendant was only convicted because his (or, occasionally, her) defense lawyer "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"   That's an essentially vegetative standard: it means the lawyer was so hopelessly incompetent that he or she really was Brendan Sullivan's potted plant.  

The phrase "ineffective assistance" has appeared in 8,315 opinions in the Westlaw database just since the beginning of this year.  No joke. 

Obviously, then, we have an epidemic of incompetent defense lawyers out there to go with our epidemic of evil prosecutors.  Either that or we have a lot of people in prison who want to get out.

The LA Times recently ran an article on prosecutorial misconduct.  My first thought was that the humor was in poor taste, but on second reading I perceived internal clues raising the disturbing possibility that it may not have been intended as a parody of legal journalism.  The article reads:

[Santa Clara University law professor Cookie] Ridolfi, the director of the Northern California Innocence Project, told the commission that judges had found prosecutorial misconduct in 443 of more than 2,100 California cases over the last 10 years. Ridolfi said that figure was just "the tip of the iceberg," because about 97% of criminal cases are resolved by plea bargains. ...

But Michael Schwartz, a deputy district attorney in Ventura County, countered that a close look at the available data shows that prosecutorial misconduct occurs in less than 1% of all cases.

Sounds like a pretty stark disparity, doesn't it?  Wouldn't you expect the reporter to, say, spend a moment or two attempting to explain where the truth lies, or to explain why the speakers were both providing accurate and even non-contradictory numbers? 

And wouldn't it be helpful to the reader to know what the subject of their debate - "prosecutorial misconduct" - means?  The reporter, Henry Weinstein, doesn't think so - or, more likely, doesn't himself know.

Patterico provides a hilariously-thorough takedown of Weinstein here.  Despite Professor Ridolfi's anti-feminist credentials as frontwoman for the Rape-Decriminalization Project (hey, two can play at the unspeak game) (see post 246 and post 290), there's no reason to think that the figures dug up by her work-study helper Jessica Marz are skewed.  Ms. Marz simply concluded that out of 2,130 cases in which prosecutorial misconduct was alleged, appellate judges agreed with the defense 443 times.  But during the same time period, of course, California's many appellate courts heard vastly more than 2,130 criminal appeals.  So the professor's figures didn't actually contradict those of the deputy district attorney. 

How hard would it have been for the LA Times to explain that to its readers?  Ah, but that's not a journalist's job, you see.  We're objective, we just report the facts.  If our presentation of the facts deprives them of all meaning, well, that's because our task is so sacred, you see.  (See post 295.)  As everyone knows, mystery is always at the heart of the sacred.

Anyway, as to the even more basic question (what is prosecutorial misconduct?), we can turn for guidance to the reliably-entertaining Kansas Supreme Court.  (See post 284.)   In the course of affirming Martin Miller's conviction for murdering his wife - a very  big story in Lawrence, home of the two Bills, Burroughs and James - the court found the prosecutor had committed misconduct.  You see, in his closing argument, the prosecutor referred to the murderer as ... a killer! 

No, really.  Horrible, isn't it?  It gets even worse.  The prosecutor, in the summation of the prosecution's case,  used the word "killer" to describe a murderer no fewer than six times.  It almost makes you weep, doesn't it? 

So now you know what "prosecutorial misconduct" means.

Duke University Press's Fall and Winter 2007 catalogue - yes, publishers are even worse than clothing companies about anticipating the change of seasons - includes On Violence: A Reader.  (Not to be confused with 2002's Violence: A Reader, or the same year's Violence and Society: A Reader.)

Duke's late entry in this competition, we're told, "proceeds from the editors' contention that violence is always historically contingent; it must be contextualized to be understood.  They argue that violence is a process rather than a discrete product." 

Now, it's never fair to criticize authors for the words of their publisher's publicity department.  As far as I know, Duke University Press uses a computer program to string together phrases with a track record of appealing to university librarians, the real customers for such books.  But, on the chance that those sentences were written by a person, it's interesting to wonder what is meant by "understanding" historically-contingent violence. 

Everyone can see that the puncture wound in your chest is historically contingent: if you hadn't been located in the physical space into which your killer thrust the knife, he wouldn't have been able to kill you.  But once you've contextualized the process producing your exsanguination, what next?

The book is part of a new series, The Cultures and Practice of Violence, intended (according to the  catalogue copy) to address "a need to better comprehend the role of those who actually do the work of violence - torturers, assassins, and terrorists - no less than their victims and witnesses." 

To show how unsophisticated I am, when I hear a word like "torturer" I actually think I understand the role of the person who meets that description - he's the guy who tortures.  (What is it about blogging that tempts people into making such unguarded confessions of intellectual inadequacy??)  (It must be the contextualized historical contingency - blogging, after all, is a process rather than a product.)  (Hence the gerund.)

Anyway, is there anybody missing from that short list of violence workers?  Here's a clue.  Duke University Press is located in a smallish city that had 35 murders in 2005, for a rate nearly double the national average.  In the Durham metro area, 127 rapes came to the attention of authorities in 2005, as did over 2,000 aggravated assaults and robberies.  The latter figures, it's safe to say, undercount the incidence of violence in the Press's hometown.

Yet the roll call of "those who actually do the work of violence" doesn't include violent criminals.  The editorial description of On Violence: A Reader doesn't include any reference to criminal violence, either.  The closest it comes is a reference to "institutional faces of violence: familial, legal, and religious".  It's apparently easier to contextualize the abstract family as a violent institution than real-life criminals as violent actors. 

Perhaps that's because "torturers, assassins, and terrorists" are political actors, while ordinary criminals aren't.  But the jargon spread like marmalade over every page of the catalogue makes it pretty clear that no one at the Press thinks that the personal is other than the political, anyway.   If the family is a violent institution, who staffs it?  More to the point, America is such an extremely violent place because our government follows the policy of tolerating it, which isn't so very different from actually encouraging it. 

I should add that by "government" I don't mean "the government."  On the contrary: I mean the part of government that isn't "the government."  (See post 267.) 

The Press's new series suggests an intriguing new line of inquiry.  Why do humanities professors find it so much easier to deplore South American torturers than the people who make them reluctant to go unescorted into their own campus library's basement stacks?  On Academics Who Understand Violence as an Academic Problem: A Reader - now that would be a contribution to the discourse.