JUDGING CRIMES

On February 15, 1941, Murray Hameroff was shot and killed in front of his home on Stillwell Avenue in Coney Island.  Charles Noia confessed to police he was the triggerman.  His two accessories, Santo Caminito and Frank Bonino, separately confessed.  They were all convicted.  The jury recommended life in prison for them all.

Noia's judge, Peter J. Brancato, told the defendant during sentencing:

I can understand how the jury made its recommendation as to your two accomplices.  I had seriously considered not accepting the jury's recommendation in your case, but without your knowledge you had pleading for you an excellent lawyer.  I am referring to my wife, Mrs. Brancato.  Her last word to me as I left home this morning was a request that I accept the recommendation of the jury in your case as well as the other defendants, and I shall do so.

Noia, perhaps grateful he didn't get the death penalty, didn't appeal his conviction.  But his two accessories did.  They argued

that the trial court committed reversible error in refusing to charge as requested on the subject of illegal detention of defendants by the police without arraignment, in excluding evidence which would have shown that one defendant complained to the jail physician on the day following the arraignment that he had been beaten by the police, ... and in leaving it for the jury to decide whether the confessions were voluntary.  (People v. Bonino, 50 N.E. 2d 654)

In 1944, New York's highest court affirmed the convictions with a one-sentence order finding any errors to be insubstantial.

Fast forward 11 years.  Caminito filed a petition for federal habeas corpus, raising essentially the same issue.  Federal Judge James Thomas Foley heard the petition.  He had a peculiar resume, even for a judge:

Private practice, Troy, New York, 1935-1942
Secretary, Hon. William H. Murray, New York State Supreme Court, 1939-1942
U.S. Naval Reserve, 1942-1945
Secretary, Hon. William H. Murray, New York State Supreme Court, 1946-1949

What, exactly, did it mean to be a "secretary" to a trial court judge (because in New York "supreme" means "not supreme") in those days?   And how did it qualify Foley to become a federal judge?   Well, it was good enough for President Truman and the Senate.

Judge Foley wrote:

The issue of involuntary confession under force and threat was clear cut as far as Caminito was concerned.  He took the stand and under the guidance of an experience and eminent defense attorney, narrated in detail his story of police persecution, brutality, false identification, intimidation, physical and mental, that he said compelled admission and confession.  The detectives flatly contradicted these assertions and the ones mainly accused reiterated such denials in rebuttal.  The questions of food and physical punishment presented by the testimony were essentially and completely factual and peculiarly fitted to the province of the jury.  A cold record, as I try to keep in mind when I am forced to the task of appellate review, can give little indication of the demeanor of the witnesses, their attitude, their tone of voice, their hesitancy, their emotions, their frankness, which are of fundamental importance in the determination where the truth lies.  (U.S. ex rel. Caminito v. Murphy, 127 F.Supp. 689) (the boldface was added for reasons that will become clear in part 2 of this series)

In addition, Judge Foley observed that Caminito hadn't been beaten: he was photographed immediately after his confession; and he never complained either to the magistrate or to his first attorney.  Caminito's trial attorney "flatly stated that he did not claim there were any marks upon the person of Caminito."

Caminito testified at trial "that he did not confess after extreme physical punishment or a staged and spurious identification, but only after a discussion with Noia."  On cross-examination he testified that "statements made in the confession ... came from his own mind and were not instilled in his own mind by the police as part of the alleged fabrication under pressure."  (That last line is just as ambiguous in context: it's unclear if Caminito was referring to all the statements contained in his confession, or only to particular bits - such as, say, his name and address.)

Judge Foley admitted to feeling a little queasy about some of the things that the police apparently acknowledged they had done to Caminito and his co-defendants: "The holding of the defendants incommunicado, the sleeping on a hard bench without pillow or blanket in a cell probably not overheated, the failure to arraign without unnecessary delay as provided by law, the admittedly false identifications, the intensive questioning by relays of detectives ... would cause hesitation and suspicion on my part."

But, the judge added, "the same feelings must have been in the minds of the jurors and they decided the issue in favor of the People after a complete, informative, detailed and conscientious charge."

 So here we have a convicted murderer claiming that the cops mistreated him and the cops denying it.  The factual issue of the voluntariness of Caminito's confession was submitted to the jury, and the jury believed the cops.  Like Judge Foley, you may wonder if they were right to do so, but the whole point of a jury system is that juries get to decide which witness is the credible one.

Isn't it?

It's - what's the word? validating, I guess - when academics put down the bluebooks they ought to be grading in order to rush out law review articles dedicated to elaborating on some of this blog's posts.   Professor Benjamin Barton of the University of Tennessee Law School - I assume everyone calls him Doogie - is the latest to accept guidance from Judging Crimes.

I refer, of course, to his article "Do Judges Systematically Favor the Interests of the Legal Profession?", an elaboration of post 250.  Considering that just two weeks elapsed between the post and the article, his industry is to be commended, too.

Barton's article will be forthcoming from the Alabama Law Review.  Its abstract on the Social Science Research Network reads:

Many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.

Barton picks examples from around the whole field of law to prove his thesis:

The questions considered include: why are lawyers the only American profession to be truly and completely self-regulated? Why is it that the attorney-client privilege is the oldest and most jealously protected professional privilege? Why is it that the Supreme Court has repeatedly struck down bans on commercial speech, except for bans on in-person lawyer solicitations and some types of lawyer advertising? Why is it that the Miranda right to consult with an attorney is more protected than the right to remain silent? Why is legal malpractice so much harder to prove than medical malpractice?

Answer: because lawyers are more important than other people.  And it's objectively true that we're more important, you know: our importance lies in the fact that we're objects of such judicial solicitude, just as it was objectively true that Buckingham was more important than anyone else in England during James I's reign.

Barton takes four pages (26-30) to make his point about Miranda, and then doesn't quite seem to grasp the point he's making.  The actual right guaranteed by the Constitution - the right to remain silent - exists for the protection of the individual.  That right can be waived simply by speaking.

But in the 1970s, a decade in which nothing went right, the Supreme Court amended the Constitution, adding a new Amendment V I/II (in decimals, V.V), requiring the police to stop investigating the murder or rape or whatever trivial thing is occupying their tiny little ferret brains as soon as the suspect asks for a lawyer.  The Court's reason for creating that right is pretty obvious, really:

Any lawyer who has ever been called into a case after his client has 'told all' and turned any evidence he has over to the Government, knows how helpless he is to protect his client against the facts thus disclosed.

A client who has once uttered the magic words ("I want a lawyer") can't retract them merely by talking to a police officer.  He has to know the secret code to free himself from his self-cast spell. 

There's a simple reason why it's so much harder to rid yourself of the right to counsel than of the privilege against self-incrimination.  The second protects the person accused of a crime from brutality.  The first protects his lawyer from being saddled with an unwinnable case.  And which is more important, really?  (If you're not a lawyer, don't try to answer that question - it's far too technical and involved for you.)

Henry Fielding was a lawyer and judge as well as among the first and greatest English novelists.  Many a literary man has read the law to please his parents, including two of the authors I read with purest pleasure, LeFanu and Stevenson.  But Fielding, unlike them and most law-trained authors, made his living from the profession. 

While he was not a rousing success as a barrister (but then, most barristers aren't – bell-shaped curve and all that – Boswell never made it to the top of the greasy pole, either), he became magistrate for Westminster, and he and his brother John, also a magistrate, helped organize London's first effective police force, the Bow Street Runners.  (Fielding's courtroom was in Bow Street, across from Covent Garden.)

(On that map you'll find the geographic inspiration not only for The Jam's "A-Bomb in Wardour Street" – Wardour is the street on which the Marquee was located – but also, if you look closely, for the Kinks' "Denmark Street," which captures once and for all the soul of a pop music producer: "You go to a publisher and play him your song. / He says, 'I hate your music and your hair is too long / But I'll sign you up because I'd hate to be wrong.'")

Toward the end of his very short life, Fielding wrote a book, or rather a pamphlet, called Examples of the Interposition of Providence in the Detection and Punishment of Murder, Containing, above thirty Cases, in which this dreadful Crime has been brought to Light, in the most extraordinary and miraculous Manner; collected from various authors, ancient and modern.  Here's "Example XXX":

The following fact was told me by a gentleman whose great-grand-father was an Irish judge, before whom the thing happen'd.  The particulars have been preserved in the family by tradition ever since, but the name of the person that was executed is purposely omitted, as being of no inconsiderable family in that nation.

A gentleman was tried in Ireland for killing his friend in a duel, and the circumstances appearing very favourable on his side, a verdict was brought in manslaughter.  This crime being within benefit of clergy, the prisoner had the book offered him to read; of which he started and hesitated in such a manner, that those who stood near him asked him why he did not proceed.  He answered, he could not see the words, they were so stained with blood.  He added, that he wonder'd they should use him in such a manner, and desired there would give him a fair book.  Several people standing by look'd on the book, and all declared, that not the least drop of blood appear'd on it, but the words were perfectly legible.  The prisoner, on that, fetch'd a deep sigh, and said, "I plainly perceive the vengeance of God is pursuing me; for although I declare myself innocent of the death of my friend, any otherwise than by being forced into it for self-defence, yet I confess herself worthy of public punishment; for some years ago I barbarously murdered my own father."

He then related all the particulars of the Murder, and his confession was so full, that he must of been condemn'd on that account, had he taken his tryal; but his incapacity for reading in any book they offered him, by the appearance of blood before his eyes, still continuing, no other tryal was necessary, and he was executed by virtue of his first conviction.

He died very penitent, persisting in his confession of the Murder of his father, allowing the justices punishment, and acknowledging the hand of God, and forcing him to confession of his horrid crime.

Example XIX told of a man whom got away with murder for 20 years.  After that passage of time he felt confident enough to return to his old haunts, so to speak.  But

the very evening that he landed in a wherry at Queenhithe-stairs, walking up to Cheapside, in order to get into a coach, just in the dusk, and by the very door of his murdered friend, he heard a voice cry out, "Stop him, stop him, there he is."  On this he ran as fast as he was able, and soon found himself followed by a large mob.  He was soon overtaken and seized, on which he cried out, "I confess the fact, I am the man that did it."  The mob on that said, as he had confessed the crime, they would proceed to execution; and, after making him refund the stolen goods, would give him the discipline of pumping, kenneling and the like [that is, holding him under a pump or in a 'kennel' or open sewer]: on which he said he had stolen nothing, for though he had murdered Mr. L----, yet he had no intention of robbing his house.  By this answer, the mob found themselves mistaken, for their pursuing a pickpocket, and seeing this man run hard, believed him to be the pickpocket; but now were for letting go as a person distracted, that knew not what he said.  One man however who lived in the neighbourhood, and had heard of the murder of Mr. L----, desired that this gentleman might be examined before a magistrate, and he was accordingly carried before the Lord-Mayor, who took confession of the fact, for which he was soon hanged: and he declared at the gallows, that the day of his execution, was the happiest day he had known since he had committed that horrid, treacherous, inhuman act, the murder of a friend, who loved him, and to whom he lay under the highest obligations.

It might seem strange at first that the ribald satirist Fielding should have morphed into the earnest moralist championing God's wrath against "this sin of murder."  Here's one Victorian assuring us, presumably metaphorically, that "Fielding the magistrate and Fielding the playwright were two different persons".  But it seems to me obvious that the satire and the moralizing were the same tune played in different keys. 

For an artistic genius and pioneering judge in London in 1752, the detection of murder, and the murderer's penitence as expressed in his gallows confession, were presumed to be the handiwork of God: "the Almighty hath been pleased to distinguish the atrociousness of the Murderer's guilt, by levelling his thunder directly at his head, in this world."

Many things have changed in the succeeding 255 years, not least of all the attitudes of judges.   Today's Supreme Court presumes that a murderer's confession is the result of a civil rights violation.  From the hand of God to a tort: now there's a fall from grace.

In 1968 Justice Byron White deplored "the Court's fuzzy ideology about confessions, an ideology which is difficult to relate to any provision of the Constitution and which excludes from the trial evidence of the highest relevance and probity."

But that was a lawyer-centric way of putting it.  Describing an ideology in terms of categories established by the law of evidence is like describing liberalism as an ideology that favors Volvos - not wrong, but kinda missing the point.  The Court's ideology, which is by compulsion the ideology of all American criminal courts, is an ideology about punishing murderers who have confessed to their crimes.

And even that isn't quite right, because people really do confess falsely, and no one (or no one we need to respect) is in favor of locking up the innocent.  So we can put the innocent confessors to one side.  The Court's ideology is against punishing guilty murderers who have confessed to their crimes.

This ideology is imposed upon us by a group of people who want us to believe they respect the intentions of the framers of our Constitution.  (See post 79.)   Do you suppose they really know more about what people were thinking in the 18th century than Henry Fielding did?

This year's Eustace Tilley anniversary issue of The New Yorker has several items of interest, such as this:

Last March, Supreme Court Justice Clarence Thomas and his wife, Virginia, joined [24 and The 1/2 Hour News Hour producer Joel] Surnow and [24 head writer] Howard Gordon for a private dinner at Rush Limbaugh’s Florida home.

At least when Ronald Reagan palled around with conservative pundits, he held out for George Will. 

Jane Mayer's great article about torture and 24 quotes Joe Navarro, introduced as "one of the F.B.I.’s top experts in questioning techniques."  Navarro critiques the interrogation techniques favored by Jack Bauer, the Kiefer Sutherland lead character, on 24 (shouldn't it be 144 by now?): “Only a psychopath can torture and be unaffected."

Navarro, in an interview with Bluff Magazine - honestly, I don't make up these names - was asked: "Does that good-cop-bad-cop thing really work or is it just for the movies?"  And he answered:

No, it doesn’t. I did a study, along with the Bureau of Prisons, which found that criminals actually laugh at the good-cop-bad-cop thing. They think it’s a joke and they have no respect for it. What they do respect is the guy that comes in all cool, calm and collected. That scares them the most. It’s almost like the computer HAL in 2001: A Space Odyssey, with that scary voice that’s non-emotive. That really gets them.

When interrogation techniques become bywords in the popular culture, it's like when your local paper prints a list of ten hot stocks: it's way too late.  Techniques are effective when they aren't perceived as techniques.

I've always thought that much of the pressure of an effective interrogation is internally generated by the suspect: it's just very hard not to obsess about the secret you're trying to keep.  It becomes huge, an inflating bubble in your chest, and the more the interrogator intimates that he knows already, the more difficult it becomes for the suspect to maintain the energy level necessary to keep it concealed.  Table pounding and yelling is a message that the interrogator doesn't know.  It's a relief.

Surnow, the focus of the article about torture and 24, seems as refreshingly unclear on the distinction between life and TV as any old-fashioned Hollywood lefty - it's nice to know some things don't change.  

The show's basic plot line is that a horrible terrorist attack will take place unless our psychopath can get information out of their psychopath in time.   So what reliable methods can our guy use to get their guy to talk? Bob Cochran, another of the show's producers, has a question he likes to pose to those who express reservations about treating psychopathic violence as heroic: "Cochran demanded to know what the interrogators would do if they faced the imminent threat of a nuclear blast in New York City, and had custody of a suspect who knew how to stop it."

It's a college dorm-room debating point, of course: how, exactly, do you know that a bomb is going to go off in a certain number of minutes, yet don't know where it is?  (The difficulty of answering questions like that explains why Hollywood has always been prepared to throw money at writers.)  The unfortunate tendency of some American soldiers to confuse 24 with reality prompted West Point's dean Patrick Finnegan to fly out to Hollywood to remonstrate with the 24 crew.  Finnegan made the obvious point that 

torturing fanatical Islamist terrorists is particularly pointless. “They almost welcome torture,” he said. “They expect it. They want to be martyred.” A ticking time bomb, he pointed out, would make a suspect only more unwilling to talk. “They know if they can simply hold out several hours, all the more glory—the ticking time bomb will go off!”

More than that, the would-be martyr could stop the torture at any time by giving false information, or multiple locations.  But, of course, in the show the terrorists eventually just lose their will and tell all.  (Making that transformation seem halfway-plausible is how character actors make their money in Hollywood - talk about depending on technique!)

Now, wasn't there another TV show, once upon a time, in which a relentless interrogator cleverly sensed and exploited the weaknesses of bad guys, by the end of the episode breaking the bad guy's will, reducing him or her to a repentant dish rag?  Why, yes, there was.  And that tells you the real progenitor of Jack Bauer: he's Perry Mason with a hacksaw.

The same New Yorker issue has a profile of Domino's Pizza man Tom Monaghan, who, as most people know, devotes his money to conservative Catholic causes.  Monaghan had a terrible childhood.  His father died when he was four and his mother made only fitful, short-lived attempts to be a parent.  Between those unhappy episodes she put him in orphanages, foster homes and eventually a juvenile-detention home. 

One line by reporter Peter J. Boyer seemed particularly telling: "[Monaghan] had spent much of his young life after the orphanage on the streets, avoiding his mother, and he always believed that if it weren't for his faith he might have crossed a line from which there was no easy return."

It has always seemed to me that the appeal of street gangs is that they offer a substitute family.  If you grow up without a functioning family, with no secure connections to others, what a relief it must be to find an organization that cares enough to tell you what to wear, what to think, which people to like and which ones to hate, how to spend your time, what music to listen to, what slang to use - everything! 

It hadn't occurred to me before, however, that something as far removed from la vida loca as the pre-Vatican II Catholic Church could meet some of the same needs with its cry-now-laugh-later view of life and afterlife.  But Monaghan seems to have been just the sort of abandoned, needy kid who winds up in gangs, perpetrating Jack Bauer-type violence on people a little less definitively in possession of terrorist secrets than the extras in 24.  Instead of that, Monaghan introduced corrugated-cardboard pizza boxes, opened three stores a day for a while, and is now building Ave Maria, Florida.  Not only that, but he lived past his twenties, too.