JUDGING CRIMES

Christopher L. Eisgruber (I don't mean to be rude, but with a last name like that, is the middle initial really necessary?) has written The Next Justice: Repairing the Supreme Court Appointments Process, a well-meaning, mildly interesting and thoroughly exasperating book. 

Eisgruber comes across as a likeable, intelligent guy aswarm with good intentions.  His basic theme is that the Supreme Court is perfect and everyone else needs to accommodate themselves to that.  The problem is, I'm not sure he understands that's his theme. 

I can't figure out who the book is written for.  Part of it is an introduction to (cue Sousa march) The Supreme Court, Paladin of Liberty, written for the semi-informed general reader.  But the concluding chapters are full of  (thoughtful, well-meaning) advice to the members of the Senate Judiciary Committee, a rather more specialized audience.  In the middle an entire chapter is composed largely of quotations from Supreme Court opinions.    Throughout, Eisgruber has smart, modest things to say. 

In short, there's an Atlantic Monthly article inside this book screaming to be let out.

Eisgruber gets real close to proposing a genuine solution to the contentious-yet-contentless confirmation hearing when he suggests that if a nominee refuses to answer certain carefully-calibrated questions, "skeptical senators would be well justified in voting against confirmation." 

This tiptoes right up to a genuine insight: confirmation hearings will become meaningful when the Senate, asserting its prerogatives as an institution, demands meaning.  If a nominee's refusal to answer means rejection, nominees will answer.  There's nothing mysterious about it.

But Eisgruber doesn't seem to realize what he's saying, because in the next chapter he tells us that "senators and the American public will have to give up the tantalizing but bogus concepts, such as 'judicial restraint,' that are now commonly invoked to evaluate nominees."  

Oh, I see.  Just reeducate everyone.  What is it that Bertolt Brecht, der Mann ohne (Redeeming) Eigenshaften, suggested to the East Germany government?  Why not just "dissolve the people / And elect another?" 

That's what's so exasperating about the book.  Eisgruber understands that political hardball will instantly end confirmation-hearing farces.  But he can't bring himself to recommend any course of action that genuinely challenges the status quo.   It's just not in his nature.  His talk about the American people giving up tantalizing concepts is just a word-processed way of drifting into irresolute silence.

It's as if Eisgruber - who, I'm sure, is the very soul of stability - has two personalities: the smart one who notices things and the conventional one who shushes the first.  And they took turns writing this manuscript.

An example: he says (several times) that Eisenhower was the last President who disregarded the ideology of his nominees, choosing justices based solely on perceived legal ability.  He also notes that two of Eisenhower's appointees, Brennan and Warren, were leaders of a Court that "rendered a series of ideologically charged decisions ensuring that no future presidential candidate [after Eisenhower] would be able to ignore the Court."   (He repeats that thought, too, in various phrasings.)

Elsewhere, Eisgruber notes that it's unlikely any future President will nominate someone from the opposing party (as both Eisenhower and Truman did), "given the Court's role and visibility in the post-Warren Court era". 

But he never ties together these various observations.   It's true that the Warren Court increased the Court's role and visibility, but that's just a polite way of saying it asserted vast new powers over the democratic branches of government, buying off Congress by giving it increased power over the states, and buying off state-court judges by giving them increased power over the other branches of their governments. 

Eisgruber notes the most obvious example of this process when he writes that for 20 years groups on both the right and the left "have cared above all else about what Supreme Court nominations will mean for the future of Roe and abortion policy in the United States."   After Roe v. Wade, there was no other way for abortion opponents to seek to change national policy.  By eliminating democratic change as an option, the justices practically insisted that all future vacancies on the Court would occasion intense political campaigns devoted to the issue.  The Court did that - it changed the nomination hearings into referenda on abortion.

The same is true of criminal law, the area of American life in which the Court has exerted the greatest influence in the past 50 years but a subject Eisgruber hardly mentions.  (Princeton men don't do criminal law, darling.   Their security guards take care of it.)

Starting during Eisenhower's second term, the Supreme Court took away a significant part of every local community's authority to order its own society.  The only way for local communities to regain the autonomy they enjoyed (and sometimes abused) in the early 1950s is to (1) ignore / work around the Supreme Court; or (2) attempt to influence the nomination and confirmation of Supreme Court justices.

Think of your favorite political cause.  The Supreme Court has left grubby fingerprints all over it, hasn't it?  You have to search hard for an unsmudged cause in modern America.  That's why I think confirmation hearings for Supreme Court nominees ought to be at least as contentious as congressional and presidential campaigns.  After all, in our post-democratic nation, members of Congress and Presidents don't have any power to make ultimate decisions about an ever-lengthening list of issues.

But although I think Eisgruber understands this, he's wholly committed to the Goodness and Rightness of all things Supreme Courtish.  The law operates like a religion (see post 332) and former Supreme Court clerks, who owe their careers to having been singled out by a justice, tend to be worshipful acolytes.  (See post 204.) 

So Eisgruber winds up saying, in consecutive paragraphs: "Unlike other federal courts, the Supreme Court has a discretionary docket.  The justices, in other words, have the power to choose which appeals they will hear.  ... The Supreme Court's docket ... require[s] the justices to make politically controversial judgments."  (My italics.) 

Freud would have made much of the juxtaposition of such  obviously contradictory sentences just a few lines apart.   (Page 28 if you're following along at home.)  It's necessary for Eisgruber's policy prescription ("try to make the best of it") to pretend that the justices have no choice but to nullify democratic choices.  But he knows that's just not true.  He's honest enough not to hide what he knows, but too successfully conventional to integrate it into his recommendations.  (See post 329.)

The late Meg Greenfield's last book, Washington, includes a taxonomy of Washingtonians that includes the Grown-Up Good Child - those handy, capable people who live to please powerful mentors.  Grown-Up Good Children prosper in  hierarchies - think of the former Supreme Court clerks that have gone on to become Supreme Court justices (Roberts, Stevens, Rehnquist, Breyer).  Greenfield put herself in that category, and I suspect Eisgruber belongs, too.   Grown-Up Good Children don't bite the hand that fed them.  

Then again, maybe it's simply the case that, after mature reflection, he approves of our reversion to a government of unaccountable elders.  After all, that's the way our ancestors did it in the Pleistocene, so evolutionary psychology supports it.  I mean, just look at street gangs, Mafia families and prestigious law firms.  You trying to tell me the similarities are coincidence?

Wrong judicial decisions make you ask one set of questions: Is the judge who wrote this stupid? biased? lazy? taking money? trying too hard to impress someone?  All of the above?  Is this really the best he or she can do?

Correct judicial decisions post a different and potentially far more difficult set of questions.  Consider the case of Angela Lewis, who was "indicted for assault with a deadly weapon inflicting serious injury on [81-year-old] Nellie Joyner Carlson (Carlson) and felony breaking and entering into Carlson's residence at 1312 Glenwood Towers, a public housing development for senior citizens located in Raleigh, North Carolina. On 7 October 2002, a subsequent grand jury indicted defendant for robbery of currency valued at approximately $3.00 from Carlson perpetrated through use of a dangerous weapon at the time of the assault."

A neighbor found the elderly Ms. Carlson sitting slumped over in a badly "tore up" apartment.  Ms. Carlson's eye was "bloody and swollen."  She told the neighbor "that girl come in and just about beat me to death."   The neighbor called 911, and the officer who responded observed that Ms. Carlson's face and arms were "badly bruised and swollen."  In her conversation with the officer, this is how Ms. Carlson described what Angela Lewis did to her:

"I opened the door and she pushed me inside. She grabbed my hair and pulled my hair. She hit me with her fist. She also hit me with a flashlight, phone and my walking stick. She hit me in the ribs with my walking stick. She took a small brown metal tin that I had some change in. I also had some change on the table that she took."

According to the defense brief on appeal, "It was subsequently determined that Carlson had suffered a bruise over her left eye, a contusion to the right frontal lobe of the brain, a contusion to the right lower lobe of the lung, and three cracked ribs." 

Unfortunately for Ms. Lewis, Ms. Carlson had recognized her: Ms. Lewis frequently visited one of Ms. Carlson's neighbors in the Glenwood Towers project.  (Here's a more flattering view.)   When the cops spoke to the neighbor, he unhesitatingly "told them that the person they were looking for was Angela Lewis. " 

Bizarrely enough, Ms. Lewis herself next called the police, reporting that she was the victim of a strong-arm robbery.  She was bleeding from the head - bleeding heavily enough to leave a trail from a car to a pay phone.  (I sincerely regret that I can't tie together the strands of this story.)

Anyway, a detective assembled a photo array, took it to Ms. Carlson at WakeMed (it sounds like a pharmaceutical competitor of Starbucks, but that's what they call their hospitals down there in Raleigh), and she picked out Ms. Lewis as her attacker.  Ms. Lewis, who was in the same hospital at the same time, finally "said it didn’t matter anymore, just take her to jail."

Some weeks after the attack, Ms. Carlson, who was already suffering from lung cancer, contracted pneumonia.  She died 48 days after the robbery, well before Ms. Lewis could be brought to trial.

That meant there were no surviving witnesses to the robbery.  The trial judge allowed the police officers to tell the jury about their conversations with Ms. Carlson.  When coupled with all the peculiar circumstantial evidence, that was plenty to support a conviction.  The North Carolina Court of Appeals reversed, finding that Ms. Lewis had been deprived of her constitutional right to cross-examine her deceased victim, but the state Supreme Court reinstated the convictions.

So Ms. Lewis took her case all the way to the United States Supreme Court, and that court reversed her convictions again, sending the case back to the North Carolina Supreme Court for a second go-round.  (The Court calls that "G.V.R.ing" a case.  No, really, "G.V.R." is a verb.)   On August 24, the N.C. court gave up trying to salvage the conviction.

I think, from a purely legal point of view, that the state supreme court was right to vacate Ms. Lewis's convictions.  It's just wrong - or, I should say, "wrong" - to convict a person of assaulting an elderly person, if that elderly person dies before trial without ever having been cross-examined by her attacker's attorney.  

That's what the Framers wanted, you see.  Madison laid it all out in the Federalist Papers, or maybe during the ratification debates, or was it Jefferson?  -  Anyway, it was that famous bit about punching old ladies, bruising their frontal lobes and cracking their ribs.  How the Constitution, once ratified, would prevent people from getting convicted for that kind of thing.  Maybe it was Adams.

The U.S. Supreme Court has never said that it's lawful to beat up and rob old people.  All it's said is that in some circumstances - specifically, when the old person dies before being cross-examined and there aren't any other eyewitnesses - the perpetrator can't be punished for beating up and robbing an old person.

The distinction between declaring an action lawful, on the one hand, and declaring it beyond the reach of criminal punishment, on the other hand, is very important to judges.   It's what relieves them of moral responsibility for the consequences of their own actions.  It's what allows them to suppress the disorienting sensation of cognitive dissonance when they condemn an antisocial act as unlawful and simultaneously declare it immune from the law.   

It's another illustration of the modern judicial world's Shelleyan contempt for reality and indifference to consequences.  (See post 305.)   The distinction between the lawful and the non-punishable is highly significant when you're examining the motives of the judges who insist upon it.  ("Motive pure?"  "Check!")  But it's completely beside the point when you're talking about the safety of elderly cancer patients living in housing projects. 

What if they don't want to live in a society that accepts the beating of old people as something beyond the reach of criminal punishment?  What if none of us do?  Why shouldn't our wishes matter?  Just because our Supreme Court has such great plans for us?

Wouldn't you think people in Hawai'i would have better ways to spend their time than this?

On the night of April 13, 2002, Fields was home with his then-girlfriend, Melinda Staggs (“Staggs”) and a friend, Dave Richards (“Richards”). Fields and Richards were eating dinner when Fields received a phone call from Staggs' mother, Patsy Pepper (“Pepper”), who threatened to “com[e] over to the house to kick his ass and kill him.” Pepper and several men thereafter arrived, and a fight ensued. Staggs was struck multiple times while attempting to protect Fields, who was wearing a colostomy bag and recovering from an operation.

All things considered, I think I'd rather listen to some slack-key guitar under the palm trees as the soft onshore breeze ruffles my aloha shirt and the lava glows gently in the tropical twilight.  But that's just me.

The landlord calls the cops and Pepper leaves.  More than that, she (ill-advisedly) leaves Fields alive.  Shortly afterward (according to what Staggs told the cops) Fields sneaks up behind Staggs as she's lying on the couch, holds her down by her throat and punches her in the face.  The landlord calls the cops again and Fields is charged with domestic violence.

Comes the trial and surprise!  the victim doesn't care to cooperate.  On direct examination by the prosecutor, she claims to have no memory of the evening.  But on cross-examination by her boyfriend's attorney - it's an amazing thing, memory - she remembers all kinds of things, among them the following:

Q. Do you-do you under-do you recall, perhaps, any incident involving Mr. Fields' surfboards-surfboard?

A. Um-hmm.

Q. And might that involve a threat to Mr. Fields that if he left that you were going to break his surfboard?

A. I think that may have occurred.

Q. Okay. Do you recall laying on his board in such a way, I guess maybe it was between the table and the chair, and then threatening to sit on it that-something like that?

A. Yeah, I do remember that.

Now, I went to a college that had something of a reputation for attracting surfers (here's a shot from Campus Point explaining why), and yet I cannot recall a single conversation in which the terms "colostomy bag" and "surfboard" were used in connection with the same person.   But then, how's that old Beach Boys' song go?  "Co - co - co, colostomy ..."

Anyway, the jury didn't buy the surfboard-defense claim and Fields was convicted.  On appeal, his attorney did a wonderful job of getting Hawai'i's justices all tied up in ridiculous knots.  The trial judge had allowed the police officer to repeat what Staggs had told him when she was still in pain from the attack, and which she claimed to have forgotten all about by the time of trial.  This, the defense claimed, violated the defendant's sixth amendment right to confront the person he beat.

The problem the justices encountered was, perhaps predictably, Justice Scalia, who in his infamous Crawford opinion said both of the following things about letting the jury learn what a crime victim said to police officers at the scene:

1.  Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.

2. Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.

Translated into plain English, statement # 1 establishes a clear-cut rule: the crime victim's words must be concealed from the jury unless the victim is "unavailable" to testify at the time of trial.   Statement # 2 is equally categorical: the crime victim's words may be freely  admitted into evidence so long as she testifies, as Staggs did.  

So the lesson is plain: a jury may be permitted to learn certain truthful information about the incident if, and only if, the speaker is both (1) unavailable and (2) available. 

Most judges, being well-used to dealing with cognitive dissonance, have managed to accommodate Justice Scalia's two clear-cut rules pretty well.  Not the justices of the Hawai'i Supreme Court, I'm sorry to say.  This is from the majority opinion:

However, Crawford does not state that a declarant is constitutionally “unavailable” only if the declarant is not present at trial. ...  Thus, the appropriate principle gleaned is ...  not that a hearsay declarant's presence at trial mandates the conclusion that the declarant is constitutionally “available” ( i.e., not “unavailable”).

The dissent's misapprehension of Crawford again demonstrates its improper equation of the constitutional “unavailability” paradigm with the inquiry whether the hearsay declarant is physically present and available for cross-examination. ... [The dissent] concludes that the hearsay declarant's physical presence at trial establishes the declarant's “availability” ( i.e., lack of “unavailability”). ...

As previously mentioned, the dissent takes the federal courts' use of the phrase “available for cross-examination” to mean constitutionally “available” ( i.e., not “unavailable”). Thus, the dissent believes that an application of Crawford here mandates the conclusion that Staggs was constitutionally “available” despite the fact that her memory loss would render her constitutionally “unavailable” ...

To the contrary, we read the federal courts' use of the phrase “available for cross-examination” as taking an intermediate step ... not as establishing the declarant's constitutional “availability” ( i.e., lack of “unavailability”) as a witness for the prosecution.

The really disturbing thing is that that mass of words, even as it descends into gibberish (i.e., lack of "sensicality"), still makes more sense than the dissent, which is 86 pages long and consists of XXXVI sections, and builds on the assumption that the judge and jury had no choice but to believe that Staggs really had no memory of the incident.  A constitutional right to foolish factfinders, I guess, or at least a foolish Hawai'i Supreme Court.

If only the landlord hadn't called the cops the first time.  Pepper could have finished this thing before it got out of hand.

This is an almost-embarrasingly old-fashioned style of rhetoric (it dates from the 1920s), but it pretty much captures the obeisance paid to the Supreme Court by the American legal profession:

None of us desires or is able to dispute the judgments of the Supreme Court. The Court in the last analysis is always right, because the Court is the single constitutional instrument given to the American people for the solution of its basic problems. ...  One can be right only with the Court, and through the Court, for the Constitution has no other way of being in the right. The English have a saying: “My country – right or wrong.” With far more historical justification we may say of the Supreme Court, whether we agree with its decisions in individual cases or not, it remains our Court ...  And if the Court reaches a decision which one or another of us thinks unjust, he will say: just or unjust it is the Court, and the Constitution, and I shall support the consequences of the decision to the end.

Justice Jackson made the same point much more pithily, and with far greater wit (the 1924 speaker was reputed to be totally humorless): "We are not final because we are infallible, but we are infallible only because we are final. "

Of course, Trotsky wasn't really talking about our Supreme Court - I've retouched his speech about fealty to the Party.   The block quote links to an old Trotskyite essay with the title, "Trotsky on substitutionism," and substitutionism (of which the 1924 speech is cited as an example) is something very familiar to American lawyers.  The mode of thought signified by that unwieldy name is drummed into us in law school, and few lawyers question it thereafter. 

According to Yigael Gluckstein / Tony Cliff, 

 Quite early in his political activity, when only 24 years old, Trotsky prophesied that Lenin’s conception of party organisation must lead to a situation in which the party would “substitute itself for the working classes”, act as proxy in their name and on their behalf, regardless of what the workers thought or wanted.

Lenin’s conception would lead to a state of affairs in which “the organisation of the party substitutes itself for the party as a whole; then the Central Committee substitutes itself for the organisation; and finally the ‘dictator’ substitutes himself for the Central Committee”.

Stalin, of course, proved Trotsky right.

American lawyers do it differently: we substitute "majority opinions of the Supreme Court" for "the Constitution."  In practical terms, we accept the Court is the Constitution: the meaning of the Constitution really does change with each new opinion coming out of that mausoleum-shaped pile of marble - even when accepting the legitimacy of the new doctrine means accepting the illegitimacy of the Court's previous doctrine.   The Court is serially infallible.

Each of the state supreme courts has similarly, if less-convincingly, tried to meld its identity with that of its state's constitution.  And lawyers, like the surviving remnant of Stalin's Central Committee, are sufficiently intimidated that we act as though we really think Chiffon is butter.

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

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

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

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

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

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

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

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

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