JUDGING CRIMES

We met Florida's Judge Michael E. Allen in post 272.  He got in trouble with the otherwise-rational Florida Judicial Qualification Commission by poaching on its turf.  As the Commission explained in its complaint, it's unethical for a judge to let the public know about what goes behind the smooth blond wood paneling  of its appellate courts, because the judge is supposed to tell the Commission instead. 

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.

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." 

What can you do if a state government enacts legislation that clearly - no apologies and no doubt - violates the first amendment?  Why, you wait until a court declares the legislation unconstitutional. 

But what happens if the unconstitutional legislation is enacted by a court?

That's not supposed to happen, given our separation of powers.  But, then, "[i]t will not be denied, that power is of an encroaching nature".  After distinguishing in theory between legislative, executive and judicial power, James Madison wrote in The Federalist that

the next and most difficult task is to provide some practical security for each, against the invasion of the others.

What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated[.]

The uselessness of parchment barriers is demonstrated by the practice, now universal among state supreme courts, of promulgating rules.  Modern lawyers' lives are so bound around by court-promulgated rules that most don't even know that court-made rules are a recent phenomenon, like zits on a preteen's nose.  Here's a useful short description of the sort of legislation courts enact these days, tracing the history of the practice all the way back to ...  1934.  Blackstone, it ain't.  The modern rules regime is as traditional as a tract home. 

Legislation is easily distinguished from adjudication.  One is forward-looking and of universal application.  The other is backward-looking, applying only to the parties actually before the court.  

A rule issued by a state supreme court is forward-looking, of universal application.  (One might quibble and say it's actually administrative rulemaking rather than legislation, but that just complicates the separation of powers analysis without producing a different result.)

A court that enacts legislation is acting in a legislative capacity.  That, I think, is self-evident.  It's when courts enact plainly unconstitutional legislation that things gets interesting.  Take, for example, Oregon's  Uniform Trial Court Rule 3.120.  It says that "parties, witnesses or court employees must not initiate contact with any juror concerning any case which that juror was sworn to try."  (Lawyers are defined as "parties" for purposes of this rule.  UTCR 1.110(1).)

We've learned recently that judges have a first amendment right to hit up lawyers for campaign contributions, even when those lawyers have cases pending in front of the judge.  (The Arkansas Supreme Court recently observed: "While a regulation limiting solicitation or acceptance of campaign contributions may seem to limit a judicial candidate's conduct rather than his political speech, precedent of the United States Supreme Court instructs otherwise."  [See the Simes decision on this list.]  It's that po-faced word "instructs" that gives the irony its bite.)

If the judge's solicitation of money is protected by the first amendment, how is it even possible to think that the Oregon rule is constitutional?  It prevents a lawyer or a party - a party, just a plain ordinary mossbacked Oregonian - from asking an ex-juror to talk about the only thing they have in common.  The rule is what is known - and here we really are talking Blackstone - as a "previous restraint" on speech, or what's generally called today a prior restraint, and those are prohibited except for reasons as compelling as the prohibition on publicizing troop movements in wartime.  

I don't think it's possible even to argue that the Oregon rule is constitutional as written.  It's not on the border.  It's way out there in the middle of Siberia, about as far from any border as it's possible to get. 

So what's a nice state like Oregon doing with rule like that on its books?

The explanation is one Madison would have no trouble understanding.  According to the Oregon judiciary's website, the rule is enacted by a single person - called, with the proper note of tribal subservience, "Chief."  Yes, the Oregon chief justice is personally credited with enacting the whole panoply of rules governing the practice of law in Oregon's trial courts. 

What trial judge is going to say that the chief justice's own personal rule is illegal?  There's no check.    There's no balance.   So a patently unconstitutional law is maintained in place by the people whose job it is to see that the law complies with the Constitution.

(I don't know of any other state that describes its rules as the accomplishments of the chief justice personally.  You could hardly ask for a more straightforward declaration that government by the judiciary has nothing to do with democracy.)

There's currently a proposal in Oregon to amend the ridiculous rule and it seems to have picked up a fair amount of support.  Here in New Mexico it's customary for the judge to tell the jurors they can stick around if they want, but don't have to.  Usually a few accept the invitation, frequently because they have questions of their own.  What they have to say can be extremely useful.

And it's not just useful in the sense of letting a lawyer know that scratching the interior of his ear with the barrel of his pen distracts from his opening statement, or that heavy sarcasm plays better among his lawyer buddies over drinks than it does on cross-examination of a trembling witness answering in a little tiny voice.  Jurors notice everything, but they often process it in a way that wouldn't even occur to lawyers, who tend to run like slot cars in a single track.

One woman I knew was a juror in a case tried by a fairly well-known attorney.  The judge ruled that a certain item of evidence was inadmissible and the lawyer spent the next half-hour trying to backdoor it, attempting various clever stratagems to get around the judge's ruling.  The jurors thought, I know the judge won't let it in, how come he doesn't get it?  They thought: What an idiot!  (His client didn't win.)

Then there was the parental-kidnapping case in which the husband admitted striking the wife, producing a gusher of a bloody nose.  There was the eyewitness testimony of the neighbor and photographs of blood spattered all over the white door.  There was basically no defense to the charge of battery, so defense counsel devoted her closing to other, winnable points, and the prosecutor hardly said more.  But the jury acquitted on that count.

The acquittal seemed to make no sense, especially since the same jury convicted on other, more complex and contested charges.  But then the prosecutor talked to the jurors after the trial was over and heard: "He didn't intend to hurt her, he just intended to kidnap the kid."   The verdict was actually perfectly logical, if you started from the (mistaken) premise that  "intent" means "motive."

These types of insights can't come from any source but the jurors.  Once their service is over, they and the parties and the lawyers are released from the magic spell of courtroom decorum.  They become ordinary American citizens again.  And American citizens are allowed to converse.

New Mexican wannabe Don Imus recently said to President-Elect Bill Richardson: "Besa mi culo!" Now, imagine if, on the day after the formality of the inauguration is out of the way, the new President were to retaliate by ordering a proceeding to determine whether to ban Imus from the airwaves.

That's pretty much what the Michigan court system did to Geoffrey Fieger.  Of course, Fieger had to babelfish Imus's words, because he was speaking to a Detroit audience.  But when he invited judges of the state's Court of Appeals to kiss his ass, they retaliated by initiating a disciplinary proceeding, threatening his right to practice his profession.  (See post 144.)

Various justices of the Michigan Supreme Court who ran campaign ads attacking Fieger by name didn't see any conflict of interest that would keep them from presiding - fairly and impartially, of course - over the opportunity to trash him.  And, surprise, surprise, they found no first amendment violation.  When one of their number protested the sheer shoddiness of the put-up job - the amateurishness of the oiliness - the chief justice responded by attacking her personally as an overly-emotional female-type.  (See post 216.)

The attitude Christopher Buckley attributed to Tom Clancy's Superman seems to be shared by Michigan's Chief Justice Cliff "Hack" Taylor:

[Jack] Ryan liked women.  His mother was a woman, and his wife was one, too, but it was madness that they were allowed to serve in combat or in the Senate.

Amazingly enough, various Michigan newspapers, such as the Jackson Citizen-Patriot and the Detroit News,  side with those justices who wish to punish free speech, impose prior restraints with a great flourish of wounded self-righteousness, and conduct government in secret as a matter of principle.  If newspapers are dying out, it's for the same reason the dodos did: they can't recognize their enemy, even when it's holding a club over their heads.

The Sixth Circuit - which, perhaps coincidentally, includes Michigan - went through a hilarious drama about court secrecy a few years ago.  Judge Alice Batchelder - perennial token female candidate for the Supreme Court (the Republicans can't be too choosy about who they promote as their tokens) - deplored the personal attacks of a colleague she characterized as among the "smallest" of persons.  She joined the comments of Judge Danny Boggs deploring that same colleague's decision to reveal what goes on behind the red velvet curtain:

I write to note, with regret, the breach of the long-standing custom of this court that actions by a member of the court with respect to petitions for rehearing of en banc are matters of internal court procedure and are not made public by other judges.   [Memphis Planned Parenthood, Inc. v. Sundquist, 184 F.3d at 605]

As the case name suggests, that was an abortion case, and the conservatives prevailed, allowing them the luxury of displaying their condescending "regret."  But just three years later, in another politically volatile case - involving affirmative action - the conservatives were on the losing end.  And guess who spilled the beans about the court's internal procedures, attempting to show that the chief justice had engaged in politically-motivated maneuvering?  Why, yes, I believe that was Judge Boggs who published his "procedural appendix."  (The fifth entry from the top; it opens only in Acrobat.  Scroll down to page 95.) 

And, golly, that's Judge Batchelder joining his dissent, explaining that "[u]nless we expose to public view our failures to follow the court's established procedures, our claim to legitimacy is illegitimate."  It was up to Clinton appointee Karen Nelson Moore to be "saddened" by their act of disclosing the internal workings of the court: "their conduct in the present case is nothing short of shameful."

Whenever a judge tries to pretend that secrecy is a matter of principle, it means only one of two possible things: I have something to hide; or, I want to silence my enemy.   And usually it means both.

Yesterday I finally got around to reading Emily Bazelon's recent Slate article about the Duke rape case, which reads as if she slapped her byline on a press release from the millionaire boys' club's PR firm.  And then I read that the North Carolina Bar Association has filed an ethics complaint against the prosecutor for talking to reporters.

Isn't it nice when the news so obligingly illustrates the points made in this blog?  One of the most significant themes running through the American criminal justice system is this one:

The people whose rights are being decided should not be given notice or an opportunity to be heard.  (See post 207.)

The disciplinary case against the DA is concerned with the right of the people to know what their government, and their elected officials, are doing.  But the people themselves have no say in the matter.  They can't decide for themselves how much information they want to receive about a pending case.  That's for the bar's in-group to decide.  (Bar associations are run strictly along the lines of student councils - the chief criterion is sitting at the same cafeteria table with all the other popular kids.)  Which illustrates another important point:

In our democracy, the people have no authority to control the administration of justice.  (See post 207.)

There's a reason the ethical rules for lawyers condemn a prosecutor's action of letting the people know what their government is doing: it supposedly interferes with the accused's right to a fair trial.  Which nicely captures another important theme:

Jurors are impressionable, overly-emotional morons who should not be permitted to decide cases, if it can be prevented.  (See post 207.)

The assumption is that prospective jurors simply cannot be trusted to tell the truth about their biases during jury selection, or to abide by their oaths to decide the case on the evidence after being sworn in.  If they heard the DA say something or other nine months ago, they will have forever lost the ability to function as rational human beings during the trial, assuming it ever happens.

Whether jurors actually react in that way - simultaneously infantile and endowed with superhuman powers of memory - is beside the point, because

Facts can be manufactured to suit any need. (See post 207.)

It's enough simply to say that jurors react that way.

(Note the pleasing whipsaw effect: Bazelon says the DA is incompetent because he didn't exercise his own independent judgment about whether the accuser is credible, while the bar association says he's unethical because he told reporters he had done exactly that: "I am convinced there was a rape, yes, sir."  To be ethical, he should have made that determination but given reporters the impression he hadn't - and the fact that he did give Bazelon exactly that impression is the icing on the cake, the proof in the pudding, the cliche in the dessert.  You've got to admire the symmetry of the reasoning.)

An even more basic theme running through the American criminal law is one I mentioned eight months ago:

As the Duke lacrosse players are preparing to demonstrate yet again, it's very difficult to convict a rich person in the United States.  (See post 102.)

Another news story, also published yesterday, neatly captures another basic point about the American criminal justice system:

The trial is everything.  There is no big picture.  There is no reality - or no reality a judge needs to respect - outside the courtroom.  (See post 207.)

Baseball has, in the past few years, taken great strides to eliminate steroid use.  The players and owners, traditionally sworn enemies, have worked together on this one issue.  Confidentiality is one of the things they agreed upon.  Now the Ninth Circuit - gee, haven't I heard that name before? - has ruled that the results must be turned over to people who are 100% guaranteed to leak them to the press. 

The natural result, of course, will be to give the players' union a powerful incentive to refuse further cooperation.  As Bob Lanza, former general counsel for the NBA players' union, told Jorge Ortiz of USA Today: "I think this could be absolutely devastating to the players associations' ability to agree to this type of testing."

But does that matter?  No.  The only reality is what occurs inside the courtroom, and inside the courtroom the big thing is not the integrity of a sport beloved by millions, but rather ... rather ...  Actually, it's not at all clear what the point of the Ninth Circuit's ruling is, except to prove that federal courts can do whatever they want, and you're going to take it and like it.

It's a custom of the Supreme Court to kick off the term with unanimous reversals of dishonest Ninth Circuit decisions.  Here (and here, and here) are some selections from previous years.  (The Sixth Circuit gets unanimously reversed nearly as often, but with much less publicity - but that's another story post.)  This year, as the December days kept getting shorter, I began to worry that that young whippersnapper Roberts was going to break with tradition.  But my curmudgeonly fears were laid to rest earlier this week when the Supreme Court decided Carey v. Musladin on a 9-0 vote. 

Way back in May, 1994, in San Jose, Mr. Musladin came to his house belonging to his estranged wife's mother to pick up his 3-year-old son for a scheduled visit.  He brought a gun with him.  The estranged wife was at the house with her new fiance, Tom Studer.  See any potential for conflict there? 

Musladin knocked down his wife, then pulled out the gun.  The wife and Studer scrambled back to the house and Musladin fired, hitting Studer in the back.  Studer crawled into the garage, attempting to get beneath a car.  Musladin followed him and shot him in the head, killing him. 

Musladin didn't deny any of that, but claimed he thought Studer and his wife's brother were attacking him with a gun and a machete (usually people faking a self-defense just claim to have seen "something 'metallic' in [the dead man]'s hand", but Musladin was very specific that the family came after him with a big ol' jungle-hacker).  You can find a fuller statement of the facts in the dissent to the Ninth Circuit's original panel decision.  

On the first day of Musladin's trial, three members of Studer's family wore buttons with a picture of him.   Here's his parents holding a larger-sized copy of the very same photo.  There were no words on the buttons, simply the picture: a photograph of a young man.

Studer's parents say that three family members wore the buttons on the first day of trial, and that the buttons were two inches wide.   Make the OK sign with your thumb and middle finger and you'll have an idea of the buttons' size.   Here's a picture.

Musladin's defense attorney asked the judge to tell the three family members to remove the buttons, but the judge said no, and the lawyer let it go, not getting any but the vaguest information about them into the record.  As Justice Thomas's opinion for the Supreme Court reveals, the Ninth Circuit knew next to nothing about the matter it decided:

The record contains little concrete information about the buttons. The buttons were apparently two to four inches in diameter and displayed only a photograph of Studer. It is not clear how many family members wore the buttons or how many days of the trial they wore them.

Musladin, naturally enough, disliked being in prison for killing someone who self-evidently deserved to die - after all, Studer stole his woman.  Eleven years after the murder, ten years after his conviction, he managed to convince a judge that those buttons made his trial unfair. 

The Ninth Circuit found itself asked to decide which was worse: (1) shooting a wounded man in the head; or (2) being tried by a jury that might possibly have observed three members of the dead man's family wearing two-inch buttons with a picture that might theoretically be discernible from the jury box by a juror with exceptionally sharp eyesight or the aid of binoculars.  Naturally, the Ninth Circuit plumped for door # 2.

(Of course, the court didn't admit in so many words that it was deciding which was worse, but it did explicitly rule that the one infraction must be punished before you can even consider punishing the other - and what else can that mean except that the first is worse than the second?)

The fact that the Ninth Circuit could reach that result only by violating the very statute that gave it authority to review the state court opinion was no impediment, so long as the case remained on the west coast.  But then it traveled east.  Not one justice could be found to defend a line of reasoning that commanded the respect of a majority of the Ninth Circuit's judges. 

(Here's Dahlia Lithwick's report of the oral argument.  She's obviously much more sympathetic to Mr. Musladin than I am - note her description of the way in which Musladin followed the crawling Studer into the garage before executing him.  If her description were the full story, then he didn't commit first degree murder at all.)

The case brings together a number of the threads that run through the modern American criminal justice system, such as:

1.  The people whose rights are being decided should not be given notice or an opportunity to be heard.  The gist of the Ninth Circuit's ruling was that, by stepping into a courtroom,  Studer's family members surrendered their first amendment rights.   (That, indeed, is what Justice Stevens came right out and said.)  (See post 206.)  The Studers were given no notice that their rights were being decided, and much less were they permitted to participate in the decision-making process. 

2.  Jurors are impressionable, overly-emotional morons who should not be permitted to decide cases, if it can be prevented.   For example, the sight of a grieving parent wearing a tiny photograph of their dead child will put them in such a tizzy that they won't be able to think again for the rest of the trial.  

3.  Facts can be manufactured to suit any need.  Such as: the 12 jurors in Musladin's trial were put into a tizzy.  The Ninth Circuit had absolutely no evidence that any of the jurors even noticed the buttons, and much less that the slightest tizziness had occurred.  The complete absence of evidence didn't matter: the Ninth Circuit simply pretended it existed, and that was good enough.  That is, the Ninth Circuit relied on non-evidence to conclude that the jurors had done the same thing.

4.  In our democracy, the people have no authority to control the administration of justice.  Your beliefs, feelings and sense of justice don't count unless you are (in descending order of significance) a Supreme Court justice, a federal judge, a state court judge, a lawyer, or, in certain unusual circumstances,  a party to the proceedings.

5.  The trial is everything.  There is no big picture.  There is no reality - or no reality a judge needs to respect - outside the courtroom.  That's why, 11 years after Studer's death, after Musladin's jury convicted him and the conviction was upheld on appeal, the Ninth Circuit put quotation marks around the word "'victim'" when used to describe the dead man.   A person who is shot to death doesn't become a shooting victim when he's shot, but only when a judge decides to recognize that fact.

I usually don't post in response to comments because I have no desire to emulate - or even appear to be emulating - those mean-spirited professors in the New York Review of Books or The New Republic responding to letters-to-the-editor.  However, Young PD's thoughtful comment to post 206 raises too many interesting topics to pass up.  He or she wrote:

I find it hard to believe that you think that cheering sections for parties in trial should be allowed. In my opinion there is a big difference between keeping something relevant from a jury because of its potential prejudicial effect and allowing family and friends of a victim who have been told by the cops and the prosecutor that this is the guy, to come in and cheer for the state.

But if they formed a cheering section they would disrupt the trial, and that would be different.  If a banner was strung across the back of the courtroom, as Justice Kennedy suggested, then obviously the courtroom staff was involved, either in hanging it or in not taking it down, and that's different again.

But if Justice Stevens is right, and spectators have no first amendment rights at all, then the judge could have prohibited Studer's family from carrying his photograph in their wallets and purses.  (It's no answer to say a judge wouldn't know about concealed photographs - as everyone who has visited a courthouse in the last few years knows, non-judges have absolutely no fourth amendment rights inside a courthouse.) 

Then, too, do families of murder victims really come to the courthouse to cheer on the state?  I think it's always a mistake to think of crime, violence, death, justice, suffering and grief in terms of trials.  The trial is an itty-bitty part of a very big thing.  The victim's family doesn't attend the trial out of enthusiasm for the prosecution.  (Indeed, in my experience, families are often suspicious of prosecutors, even hostile, expecting at any moment to have the rug pulled out from beneath them.) 

The family attends the trial because it's one part of the worst thing that has ever happened to them.  They don't want the prosecution to win; they want justice for their loved one, and peace within their own souls.  The verdict is no more than a signpost along that very long road.  For the lawyers and the judges, it's the destination.

That's not because we're shallow, but because we're involved in the case only through our professional lives.  The deaths of strangers have very little emotional meaning to anyone, anywhere.  Lawyers and judges can read about Musladin's execution of Tom Studer with the same emotion with which they - and everybody else - scan the obituary page.   If you don't recognize the name, it really doesn't mean very much.  Tom Studer's family can't do that.

It's not that the victim's survivors are viewing the case emotionally, while lawyers and judges are objective.  Rather, the emotion experienced by the lawyers and judges is inward-directed.  (Monitor your emotions as you scan the obituary page.  It's not that you're emotionless, it's just that your emotions are occupied with things other than the names of dead strangers.)  During the trial, it really is all about me, about the impression I'm making on the jurors, about what I need to accomplish with this witness, and what I need to do after dinner to get ready for tomorrow. 

For a majority of the judges of the Ninth Circuit, Tom Studer's death was an opportunity to act out the public ceremony of self-righteous superiority while simultaneously experiencing the illicit thrill of exercising arbitrary power - apparently a mixture of speedball-like addictiveness.  I imagine it's rather like the emotional experience of priests who preside over solemn mass knowing they'll be fondling the altar boy in the sacristy before the last parishioner is out the door.

This is all very different from the emotional experience of the victim's family, which is outward-directed.  They're not more emotional; their emotion is more noble.

The great error of judges and lawyers - the error that I think is right at the heart of so much that has gone haywire in our system - is the solipsistic self-importance of thinking that what we do is the important thing.  It's as if UPS, DHL and FedEx drivers all became convinced that the highest priority of a package-delivery service is to load the truck well.  If it's not well-loaded, a proper sense of priorities requires us to unload and start all over again.  As for those people who make such a big deal about wanting to receive their packages?  Tell 'em to take off those damn buttons or we'll empty the truck again.

I visited Vancouver in the 1980s, and as I was lingering over a long dinner in one of that city's many delightful downtown restaurants, I noticed a woman walking alone on the sidewalk outside.  The unbidden thought crossed my mind: "Canadian hookers are very well-dressed."

Almost as soon as the thought formed, I experienced a kind of shock of shame, because of course the woman wasn't a hooker at all, just someone walking from point A to point B.  She was well-dressed because she was a business person or maybe a lawyer.   Seeing her (and other well-dressed women, too) walk downtown in a big city after dark was, I'm sorry to say, something unusual in my North American experience. 

That was the moment when I first understood that crime, and the enforcement of the criminal law, is social policy.  (See post 160.)

Lawyers are trained to think in terms of boxes.  "Torts" are here, "criminal law" is there, and "social programs" are way over there, on the other side of the fence surrounding the judicial branch.  But, like so much else we learn in law school, that's just words, not reality.  When you read an anecdotal report of sex workers' interactions with police officers it's easy enough to see that the police are enacting the government's attitude toward certain of its citizens - specifically, the government's rejection of any responsibility for their well-being.

What bullying cops do to victimized streetwalkers is just a one tiny aspect of what the entire criminal justice system does to all victims of crime.  It's all social policy, every bit as much as spending on the schools.

The crime rate is a measure of a society's willingness to protect its vulnerable members from harm.  It tells us whether society's most powerful members - a group that, by any criterion, includes judges - are willing to accept responsibility for the well-being of the least powerful.

Victims of violent crime are, by definition, the most vulnerable members of society.  They are overwhelmingly  poor.  (See post 148.)  Members of minority groups, the young, the seriously mentally ill, the Deaf, illegal immigrants - these are the people who are seriously endangered by violent crime.

In the 1980s, women who weren't hookers avoided walking alone at night on downtown streets because it was so dangerous.  (It was, of course, extremely dangerous for sex workers, too.)   I'm inclined to think the situation has improved slightly in the intervening years, because I notice more women walking alone after dark in the dangerous city where I live - but then, the reason I notice increased numbers of solitary female walkers is because they remain relatively unusual.

It's not that Americans are so much more criminal than Canadians, or anyone else.  Our overall crime rate, including all types of property crime, is pretty much in the international ballpark (or pitch).   We're just more violent, or, to put it more precisely, our government doesn't protect the vulnerable from violence.  And the unit of government that's most resistant to protecting the vulnerable is our criminal court system. 

Recently our Supreme Court has come down hard against prosecuting domestic violence and child abuse cases.  (See post 148 and post 155.)  The hostility of the courts to female victims of violence is notorious.  (See post 47  and post 139.)   Lawyers, judges and law professors think of these as legal issues, to be analyzed by legal means, producing legal results.  And that's all.

When we debate policies put in place by the democratically-responsive branches of government, we look at their effects, not just their good intentions.  An example is the debate produced by the National Intelligence Estimate reporting that the war in Iraq is producing more terrorists than it eliminates - something The Economist said was "stating the obvious."

Or, to pick an example more palatable to conservatives, there's the perverse economic incentives of welfare programs that, with the noblest of intentions, wind up encouraging socially-destructive behaviors.

But, oddly, we don't debate judicial policy in terms of its effects, but only of its intentions.  The Supreme Court discovers a problem, treats it with a new rule fetched from one of the dustier corners of the suprisingly-cavernous Constitution, and announces the problem to be cured or remedied - and for lower court judges, reporters and law professors alike, that's usually that.  There are no consequences, except perhaps the difficulty of implementing the rule in the lower courts.

But whether judges choose to recognize it or not, there is a reality outside the courtroom.  And the consequences of judicial decisions can no more be confined within the four walls of the courtroom than cosmic rays can be blocked by the courthouse roof.

The reason the US is more violent than Canada is that our government tolerates more violence.   And by "our government," I mean: our courts.  Our democratically-responsive branches of government have enacted policies against violence, but our judicial branch resists their enforcement.  The judges themselves would say they are only enforcing the Constitution (with "the Constitution" defined as the collected works of the Supreme Court), but that - of course - only explains why they do it, not what they are doing.

Judges have determined that we should live in cities where women don't walk alone at night, unless they're hookers.  And the fact that most of our judges don't understand that they've done so - and would even deny the reality that they have - is perhaps the truest measure of their institution's dysfunction.

A prosecutor friend told me this story.  A young woman was murdered, and a man was convicted of killing her.  Many years later, the federal courts reversed his murder conviction (that is, granted a writ of habeas corpus).  The prosecution elected to re-prosecute, always a difficult task after the passage of so many years.

The defense lawyer persuaded the judge to suppress some important evidence - statements made in a private conversation by a co-perpetrator who exercised his fifth amendment right not to testify at the retrial.   I'll call the co-perpetrator Abel Baker. The judge granted the defense attorney's request to prohibit the prosecution from telling the jury anything Baker said.

At the end of the long trial, the defense attorney made his closing argument to the jury, and in the course of it said something like: "Ladies and gentlemen, I want you to think for a moment about some evidence that you didn't hear.  Did you hear the testimony of Abel Baker?  Did anyone - any single one of these government witnesses - come into court and tell you anything that Abel Baker said?  Doesn't it make you wonder what they are trying to hide?"

I suppose my friend objected, but he would have provoked a mistrial if he had made a "speaking objection" - saying in front of the jury: "Counsel knows full well that he is responsible for keeping that testimony away from the jury!"  Instead, he would have had to approach the bench for a whispered conference that could only have played into the defense attorney's hands:  "Did you see him repressing me? You saw him, didn't you?"

After the jury retired, my friend made some bitter remark.  Defense counsel smiled and said, "Just representing my client!"

I was reminded of that story by a recent attack ad launched by my sitting member of Congress, Heather Wilson, against her opponent, Patricia Madrid, who happens to be my boss.  Here's an Albuquerque Journal story about the ad:

Republican Rep. Heather Wilson is airing a new TV attack ad claiming that Democratic Attorney General Patricia Madrid let a man caught attempting to rape a teen girl "walk" on the charges.
 

Although the defendant didn't serve prison time after a making a plea deal, the "victim" in the case was actually an adult detective posing as a teen on the Internet. No physical assault ever took place.

Court records show that the plea deal the AG's office reached with 41-year-old Matthew Ward cut his potential prison time from three years to 18 months, but left it up to a judge whether to lock Ward up or give him probation.

Records show that District Judge Albert S. "Pat" Murdoch last month gave Ward 18 months of probation and required him to register as a sex offender.

You can see that the Wilson ad is, just barely, not-false.   Just as the defense lawyer's closing argument was not-false.

One of the worst developments of the past half-century is lawyerization: the way values and modes of thinking that are appropriate for law courts have come to define acceptable behavior outside the courtroom.  This can be seen in the Interior Department's ethics office saying that any conduct that's not outright criminal is ethical enough for government work.  (See post 173.) 

It can be seen again when a cricket blog asks, "Whatever happened to the presumption of innocence?", as if a fan who formed an opinion about a cheating scandal were transformed into a judge with the black handkerchief on his wig, about to tell some poor sod, "May the Lord have mercy on your soul." 

And it's seen again in the Wilson attack ad.  The decision to invest so much money in the running of such a deeply dishonest ad was made without regard to honor, honesty, or even the avoidance of shame.  The only question was whether its falsity could be so easily demonstrated that it was liable to backfire politically.   If not, there was nothing wrong with it.  Just like the defense lawyer's zealous representation of his client.

Gene Weingarten's Below the Beltway column from the January 29 Washington Post described a new wrinkle in lawyer advertising: New Jersey lawyers writing him to encourage him to contest a speeding ticket he received in the Garden State.  (To know why Weingarten was driving through New Jersey, check out his profile of The Great Zucchini, which manages to be moving, disturbing, funny and acute all at once.)

In his January 29 column, Weingarten lets us listen in on his phone conversation with Ed, a NJ lawyer with the true NJ accent, whose fee would have exceeded the fine:

Ed: Okay, but let's say it goes to trial. They have to prove it beyond a reasonable doubt. In a utopian world, everything would go perfect, and everyone would know that, and everyone who was guilty would just plead guilty. But what if the officer got caught in a hurricane and didn't show? Then they wouldn't have a case because he couldn't show his certification as a radar operator. It would be dismissed.

Me: But if I went to trial, I would have to testify that I was going 82. I'm honest.

Ed: That's not a problem.

Me: Why?

Ed: Because then I wouldn't put you on the stand.

Fuhgeddaboudit.  I paid the ticket.

But Ed was making a perfectly valid point.  From a lawyer's point of view, what he was saying wasn't even remotely sleazy.  He just meant there's a vast difference between reality, on the one hand, and the courtroom record, on the other hand.  The lawyer's job isn't to give the factfinder an accurate picture of reality.  On the contrary.

The lawyer wants to provide the picture that is (1) optimally useful to his or her client while (2) accommodating all of the facts provable by the other side.  The point is not to be true, but to be not-false. 

One of the subtler  effects of the litigiousness of American society is the way in which the courtroom ethos has permeated the broader society.  In politics, the standard of not-false has almost totally displaced any concept of truth or honor. 

Some years ago, during that brief period in which he was writing for the New Yorker, Michael Kinsley did a hilarious article on the Carville / Matalin match.  He wondered "how you can love someone whose values you purport to despise" and provided the answer he gleaned from the power couple's book All's Fair: "by always making the crucial, if puzzling, distinction between the individual and everything he or she stands for."  (The piece, called "True Lies," is collected in Kinsley's Big Babies.)

Most lawyers make a similar distinction in their everyday relationships with opposing lawyers.  You have to.  Otherwise you'd hate them.  The other side's closing argument is full of half-truths, unwarranted speculation, absurd inferences - but, hey, that's their job.  This is nothing new: Henry Fielding, the magistrate/novelist, was ridiculing the courtroom displacement of "true" with "not-false" two and a half centuries ago in Joseph Andrews (book II, chapter 3).

(The true believers are the ones who really do hate the other side.  I once served on a committee with a public defender who started visibly every time I spoke to her:  "How are you?" "Hunh! - Oh.  Okay."  Picture poor Dracula, trying to pass the time at the Department of Motor Vehicles by striking up a conversation with the person behind him in line.)

When two lawyers each present half the story, the jury theoretically gets to hear the whole thing.  It's when judges embrace the not-false standard in their opinions, and their evidentiary rulings, that things start to go seriously wrong.