JUDGING CRIMES

In 2003, the Supreme Court sternly set its face against overtly racist policies in the Dallas DA's office.   It would no longer tolerate blatant racism in jury selection practices in 1963.   (See post 312.)   Yesterday the justices just as firmly went on record opposing the jury selection process in a single Louisiana trial in 1996. 

It was a death penalty trial, and the historical southern record on death penalty trials involving Black defendants isn't entirely savory, and I don't know anything about the murder except that the New York Times reporter was most likely exhibiting his cluenessless when he reported this at face value:

[Convicted murderer Allen] Snyder was hoping to reconcile with his wife, Mary, and became enraged when she went out with another man on the night of Aug. 15, 1995, the trial showed. Early on Aug. 16, Mr. Snyder stabbed to death his wife’s date, Howard Wilson, and wounded his estranged wife as the two sat in a car.

I suppose it's possible that the reporter didn't realize that's the story told by everybody who kills his ex-lover or her new boyfriend, when explaining why he spent two weeks lurking around her apartment with a knife or gun.  But they say that only after serious discussions with their defense attorneys. 

Before that moment of enlightenment, they're much more likely to explain their motivation along the lines recounted in a recent story from the third-most-violent state in the nation (without Mr. Snyder's Louisiana, we'd be # 2, but their score was wind-assisted, which is hardly fair):

Investigators believe House went to see his ex-girlfriend Monday night who was at her current boyfriend Daniel Morris' house.

Police say the girlfriend claims while House was talking to Morris he pulled out a gun and shot Morris in the face killing him then allegedly pointed the gun at the woman, but told her he couldn't kill her adding that that if he couldn't have her no one could.

Still, I suppose that in the Louisiana case, it's possible the gentle Mr. Snyder really was bringing chocolates and flowers when he stabbed the fickle woman to whom he was so steadfastly devoted, as well as the evil seducer who had stolen her away while twirling his mustache.

The Supreme Court said its job was to evaluate "the prosecution’s two proffered grounds for striking" a certain juror - the seemingly-violent verb referring to striking a name off a list, in this case a list of  the people unable to come up with good enough excuses to be relieved of the burden imposed by a juror summons.   In both criminal and civil cases, all sides are permitted to have some influence over the selection of a jury by rejecting x number of panel members (the number varies from state to state and even from case to case).

Neither side has to have a reason for striking a prospective juror's name off the list, except in the negative sense that neither side is permitted to strike a juror for racist reasons.  The intention for that negative limitation,  wholly laudable, is to eliminate racism in jury selection.  But what actually happened in Mr. Snyder's case was this: the Supreme Court, reading the trial transcript 12 years after the fact, asked itself whether the prosecutor's "reason proffered for the strike of" a certain juror was sincere or not.

Mr. Snyder's attorney, Stephen B. Bright, provided the Times with the obligatory bit of self-righteous gloating, saying "the ruling meant that 'the court has resoundingly told judges and prosecutors throughout the country that the practice of striking people from jury service based on their race must cease.'"

That's what I would've said, too, if I were in Mr. Bright's shoes.  But it's not even remotely true.  The Court didn't condemn the racism of the jury selection, but rather "[t]he implausibility of [the prosecutor's] explanation".  And, you know, they're not the same.

The Court resoundingly told prosecutors (and defense attorneys, at least in theory) throughout the country that if they're going to strike members of definable minority groups from a jury panel, they need to work out more plausible explanations.

In other words, they need to plan it out beforehand.

It's always seemed perfectly obvious to me that any halfway-intelligent racist would always have a solid, plausible excuse for excusing a minority juror.   Five minutes' research on the computer will give you a stockpile of a dozen excuses that have been found plausible by appellate courts: he wouldn't meet my eye, judge; or, he looked like he was falling asleep; or, he silently mouthed obscenities at me when no one else was looking: "If looks could kill, judge, I wouldn't be sitting here now."  Or (and this would have worked in Mr. Snyder's case), "I've always found that college teachers tend to be know-it-alls who try to dominate the jury."  

It's easy to provide a phony-but-plausible explanation for striking a Black juror.  Which means: attorney explanations will seem implausible to the Supreme Court only when the attorney in question wasn't trying to BS the judge.  

The Supreme Court's approach (generically known by the name of the founding case, Batson) depends on the racist attorney being dishonest with the Court but only carelessly so.  It's aimed squarely only at ineffectual racists -- but it also catches non-racist attorneys who haven't felt any need to stockpile phony excuses to meet such exigencies.

Effective racists, ones who've given the matter thought and planned ahead, are free to go about their business.

The Supreme Court's approach can be justified on the grounds that (a) it gives white, conservative justices such as Kennedy and Alito the chance to preen; and (b) it's the best the Supreme Court can do.  It's well-intended.  Which, you know, is nice.  But what if the intention isn't the same as the result.  I mean, that's possible, isn't it?  Even for the Supreme Court?

The whole theory of Batson is that an attorney's explanation for an action isn't the same as the attorney's reasons for taking that action, but that the explanation provides all the information you need to evaluate the reason.  That's probably not strictly self-contradictory, but it's edging pretty close.

Treating the intention as if it were the reality, treating different things as if they were the same -- I must admit the approach has tradition on its side.  (See post 346.)  And this a profession that's big on tradition.

In the Davis v. Washington decision of a couple years ago (see post 127), Justice Scalia's opinion for the Supreme Court contained a footnote explaining that suppression of evidence under the sixth amendment has no deterrent effect on police officers:

Police investigations themselves are, of course, in no way impugned by our characterization of their fruits as testimonial. ...  The Confrontation Clause in no way governs police conduct ...

That's a bit odd, because for the past 47 years the Supreme Court has been telling us that suppressing evidence under the fourth amendment has the effect of "deterring official misconduct and removing inducements to unreasonable invasions of privacy". 

So suppressing evidence under the fourth amendment affects police behavior in a way that suppressing evidence under the sixth amendment's confrontation clause doesn't.  Identical judicial actions produce opposite results. 

This is what I worry about: What if Scalia really believes it?

Have you ever seen late de Koonings?  Well, I haven't, since I live so far from New York.  But in reproductions, all the sometimes-hateful intensity of the earlier works is gone.  In the late paintings, the lines are loose, the colors simple - and many people have wondered whether the new style was the result of de Kooning's Alzheimer's (or alcohol-induced dementia) rather than artistic inspiration.

Comparing opinions like Davis to almost any of Antonin Scalia's opinions from the 1980s produces a disturbingly similar memento mori sensation.  The tight logic has come unwound, the careful use of language replaced by meaningless catchphrase: "testimonial statements are what they are".  That last phrase is lame coming from the mouths of losing football players, and they have the excuse of playing through repeated concussions. 

But then again, maybe there's a deeper meaning to Scalia's words.   Maybe he meant to imply that suppressing evidence under the fourth amendment doesn't affect police conduct, either.  But, no, I'm sorry - he's been a fairly enthusiastic fourth amendment suppressor recently.

The whole idea that suppressing evidence under the fourth amendment has any deterrent effect on cops has always struck me as more a matter of hope than experience.  After all, if after 47 years the rats still aren't pressing the right lever, wouldn't even the most die-hard behaviorist consider the possibility that the experiment is a failure?  (See post 6.) 

What percentage of officers ever learn of the existence of judicial orders denouncing their actions?   Of those that do, how many see any point in ploughing through page after page of lifeless prose to discover what the judge said about them?  And of those who do that, how many can recognize themselves in the judges' words? - that is, how many trust the judge's reconstruction more than their own memories, retroactively shaped as those have been by the need to defend one's actions? 

Furthermore, why wouldn't an officer say exactly what lawyers say all the time, that the judge is full of it? biased? clueless? chummy with / intimidated by the other side? so scared of getting reversed that he bases his rulings on his perception of the bias of the next court up the ladder? 

Besides, is it altogether rational for a person in any profession to follow the advice of someone with no training or experience in that particular profession?  

You wouldn't trust your car to a mechanic whose only training was reading books written by people who had never themselves worked on cars.  You wouldn't trust your health to a physician whose only knowledge of medicine came from reading the works of his predecessors, whose sole experience came from studying the written works of their predecessors.   I mean, that's so 14th century.   

But, nonetheless, the Supreme Court has told us that police officers will trust their lives to judges, changing their future behavior in response to the signals given by judges a year or two after the officer's previous behavior, and so it's true that they do so - or, rather, it's not open for debate, which inside the pyramidal hierarchy of our courts is even better than true.

Scalia's Davis opinion is magical thinking - the belief that words can control reality - and, I suspect, a symptom of a cerebral event, probably a small stroke, that's been kept from us.  But magical thinking is hardly unique to Justice Scalia.  In 1961, the Supreme Court announced the result of its experiment before beginning it, telling us what they were about to accomplish before attempting it.  Abracadabra, my Brethren.

During the past week I've been preoccupied with preparing a PowerPoint talk about Crawford to a training conference for victims' advocates and allied professionals.  It's not easy trying to make Crawford make sense to non-lawyers (or to lawyers, either, but then you don't need to: lawyers have been trained to accept without questioning arbitrary pronouncements from the Supreme Court).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The scientist and science writer Bob Park recently published a column in the New Scientist containing this passage:

Richard Feynman described science as "what we have learned about how not to fool ourselves". Science depends on openness: we expose our scientific findings, including the details of how they were obtained, to the scrutiny of the scientific community. This sounds like a prescription for chaos, but the result is the opposite because it reinforces the idea that science is conditional - always subject to being replaced by better information. This can be frustrating to non-scientists, who ask why science can't make up its mind, but the alternative is dogma. Openness provides a mechanism for self-correction, setting science apart from other ways of knowing. Science is, in fact, the only way of knowing. Anything else is just religion, which is all about authority.

(The column is in the locked-down part of the website, so if you're not a subscriber you're going to have to trust me in a decidedly unscientific way.)

This is just one of the ways in which law is an anti-science (see post 129 and post 14), but it may be the most important for any attempt to understand the way in which our courts distort our society.  Law - or at least the opinions of judges - is all about self-deception.  That's the point.

That sounds so negative that it's likely to provoke defensiveness, so I'll put it a more abstract way: law is about preventing yourself from thinking about reality except in terms of legal categories.  The insistence on perceiving reality in terms of a priori categories is the defining intellectual technique of American law.  (See post 137.)  It's what law professors teach. 

So Professor Miller, victim of the  cheap shot in the previous post, would say that his point had nothing whatever to do with Michael Jones shooting people in the head.  The fact that Jones shot people in the head is, in fact, entirely immaterial to the question whether his conviction for shooting them should be upheld.  You have to focus on the legal problem, as defined by the a priori categories, and blot out your awareness of any broader reality.

(It really is unfair to single out Miller, since every other law professor and judge and most practicing lawyers  accept with equal intellectual passivity that this is a reasonable way for the rulers of a modern society to process information concerning the physical well-being of society's members, or rather that its reasonableness is not open to question.)  (The law meets Park's definition of a religion.  Law professors teach theology, judges enforce orthodoxy.)

This intellectual method means that the law is not open to new information.  Or, more precisely, new information is acceptable only insofar as it can be slotted into pre-existing categories.  The metaphor of a letterpress printer's drawer is pretty exact: who needs a character that doesn't already have its own little compartment?

A quote I've seen attributed to Catherine McKinnon, but which I can't find on the Web, says that the law doesn't prohibit rape, it regulates it.  I think that's true of all violent crimes.  Yet - and this is the critical thing - the people doing the regulating (judges) would deny that they're engaged in any such activity.  And they'd sincerely believe it, too, or at least profess to, as an article of faith.

Here's a line from the Supreme Court, almost as familiar to criminal law practitioners as a Coca-Cola jingle: "the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."

But look at those familiar words more closely.  The issue, in practical terms, was whether certain relevant evidence should have been concealed from the jury.  (Only relevant evidence is affected by judge-made exclusionary rules.  If the evidence wasn't relevant, it would be inadmissible for that reason alone, and the prosecution would have no reason for even offering it - or the defense for objecting to it, except on the ground that trials are tediously long enough already.)  

Judges who decide to hide relevant evidence from the jury don't describe it to themselves in those words.  They tell themselves they're engaged in "deter[ring] police misconduct by preventing the introduction of evidence obtained through police illegality." 

Look at that sentence structure.  In real life, what's happening is that judges prevent the jury from hearing evidence.  They do so in hopes - specifically, the Supreme Court's hopes - that deceiving the jury will influence the behavior of people who aren't present and may never learn about it.   But in the way judges phrase it to themselves, the wish comes first.   It's the important thing.

The Supreme Court pulled a similar trick of self-deception, only a bit more subtly, in the sentence quoted above.  By "permissibility of a particular law enforcement practice", it meant: "admissibility of evidence obtained by a particular ..."  They weren't deciding what law enforcement practices to permit; they were deciding whether to allow the jury to learn what the cops found out when they engaged in one particular practice.   Judges Photo-Shop the portrait and call it plastic surgery.

That's just the beginning of the self-deception packed into that sentence.  Whenever judges use any form of the word "balancing", what they mean is: choosing.  The Court was telling judges to choose which of the two (and there is rarely more than two - the metaphor controls the variables) "interests" he or she considers more significant. 

What, you may ask, is a "legitimate governmental interest[]"?   When you're talking about a Terry stop frisk for weapons (see post 321 and post 314), the interest in question is the earthly existence of the police officer.   When a judge "balances" governmental interests, what he's really doing is deciding the marginal value of the officer's life. 

That sounds extreme, but only because we're so used to the euphemisms that blanket the facts, as Orwell said, "like soft snow, blurring the outline and covering up all the details."  Self-evidently, in every encounter the cop's life is at greater risk if the person he is confronting has a gun, knife or club.  The cop's safety is increased if he disarms an armed person. 

With me so far?  That's really all there is to it.  The cop's safety would be maximized if he patted down everybody he came into contact with.  So if judges actually control police conduct - which judges tell themselves they're doing - then when they tell cops they're not allowed to pat down people in certain circumstances, they mean that officers mustn't maximize their safety.  They must accept a greater than minimal risk of being injured or killed. 

If the judges are competent in their calibration of risk, they're imposing only a minor marginal increase in risk.  But a small risk spread over a large population - say, 675,734 sworn officers - becomes numerically significant pretty quickly, especially to those attending the funerals.

So when judges decide cases about frisks, they're asking themselves: How many murdered policemen is too few?  And how many is too many?  How many official funerals with long motorcades is just right?

Once you strip away the fuzzy language, you can see why judges use it so obsessively.  They want to distance themselves from what they're doing.  "This isn't just a gut feeling, you know - I've weighed it.  The scales don't lie."

But this is barely scratching the surface of the superstructure of deception and self-deception the Supreme Court has built over our criminal justice system.

A disturbing story from England's Telegraph describes what happened when the police failed to complete the routine processing of evidence:

A serial sex attacker went undetected because police failed to send his DNA samples for analysis, a court has heard.

Mark Campbell, 38, is accused of stalking, raping and assaulting a series of women and teenage girls in Sussex since 1998.

It emerged that four years into his alleged campaign of sexual violence he could have been stopped when he was arrested for a "peeping tom" offence.

Sussex Police took the man's DNA in 2002 but he was not linked to the crimes because an "oversight" led to the swabs not being sent for examination.

Only during an official police review last September were the samples sent for analysis and Campbell was arrested the next month.

In the time that elapsed, Campbell is accused of raping two 15-year-old schoolgirls in his work van, and sexually assaulting several others by breaking into their homes, Chichester Crown Court heard.

It's hard not to think that the police failure was, as we lawyers like to say, a "but-for cause" of the later attacks: but for the failure to analyze the DNA samples, Campbell would most likely have been arrested much earlier, and he could hardly have raped those schoolgirls from a jail cell.

If once we accept that cops' failures can "cause" violent crime, is there any reason to absolve other agencies from responsibility?  For instance, prison officials can, through their negligence, fail to immobilize the dangerous.  Probation and parole officers, too, might fail to act on the obvious need to restrain such people.  If their incompetence leads to another's death or serious injury, is there any reason they shouldn't be held responsible?

Modern judges have little difficulty answering these questions.  Lawsuits against cops and prison officials for failing to protect citizens from criminals are no longer a novelty (though they're hard to win).  But are there any other governmental agencies involved in the enforcement of criminal law who might also be deemed responsible for the consequences of their failures?  Well, let's see.  There's prosecutors and public defenders.  (Warmer ...)  There's bailiffs, tipstaffs and courtroom security guards.  (Getting hot ...)  Who else is left except -?

There are two big differences between judges and other actors in the criminal justice system.  First, judges get to decide who can be sued and who can't.  So, naturally, judges can't.  (No one knows the inadequacies of the legal system better than judges, so they don't trust their fates to it.) 

Second, by definition a judge's ruling is correct at the time it is issued.  It remains correct unless and until it is reversed by another, higher court.  That's why it was lawful, even if unconstitutional, to imprison Martin Luther King.   It doesn't matter how mistaken, corrupt or hopelessly stupid a judge's ruling was.   At the time it was issued, the ruling was justice embodied.  And what could be more perverse than blaming a judge for doing justice?

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?

We live in the Romantic Age of judging.  I'm not referring to the mash notes judges sometimes send each other, e.g., "the sagacity of the numerous Ninth Circuit judges who have written before us."  That's from Ninth Circuit Judge Ferdinand F. Fernandez, and the only whiff of the sage he gives off comes from dinner.  (See post 143.)   That level of infatuation, or self-infatuation, qualifies as romantic in some sense, or even several senses, but only one of them is the sense I have in mind.

I'm talking about the lit-crit kind of Romanticism.   The New Yorker recently reviewed Ann Wroe's paean to Percy Bysshe Shelley.  Ms. Wroe was apparently concerned that Shelley, one of the original better-to-burn-out-than-to-fade-away types, hadn't written a sufficient number of such paeans to himself.   In his review, Adam Kirsch described Shelley's politics, which were ahead of his time in rather distressing ways, such as his  enthusiasm for liquidating the intolerant in order to usher in an era of universal tolerance.

Another hallmark of Shelley's politics, according to Kirsch, was his "indifference to reality."  And that's what first reminded me of the characteristic American style of judging.  The idea that courts should occupy themselves with courtroom representations of reality, and hold reality itself at bay, is at the very heart of the judicial project. 

Jurors in every American jurisdiction are told, in no uncertain terms, to base their verdicts strictly on what they hear in court.   What they hear is filtered by the rules of evidence - in their codified form, a 1970s phenomenon - which after defining "relevant evidence" are mostly devoted to cataloguing types of relevant evidence that must be concealed from the jury.  

The phrase "constitutional criminal procedure"  refers to a body of case law developed since the 1960s that consists of almost nothing but the systematic widening of the gap between the reality outside the courtroom and its representation inside.   And a juror who possesses relevant information before the trial begins will be "struck" from the panel, the violent term indicating something of the horror with which such independent knowledge is viewed. 

There are elaborate reasons for all of this, and some of the reasons make sense.  My point isn't to argue with them, but to point out their common denominator: the Shelleyan indifference to reality.

Kirsch's review includes another passage striking, so to speak, even closer to the Romantic heart of judging:

But his political beliefs demonstrated the same contempt of consequence, the same elevation of pure motive over practical effects, the same lack of self-awareness.  These qualities helped to make Shelley a genuinely illiberal thinker, whose politics verged at times on the totalitarian.

Who else do we know that trumpets pure motives while demonstrating a contempt of consequence?  Our violent crime rate today is three times what it was in 1960, before the decisive judicial intervention in law enforcement.  Have you ever heard a judge acknowledge the possibility that the two phenomena might be related?  

Our prison population has grown incredibly since 1980.  Have you ever heard a judge acknowledge the possibility that the difficulty of convicting guilty people might have some connection to the length of sentences eventually imposed?  Increasing sentences is almost the only lever the legislative branch has for controlling the judiciary's disposition of criminal cases, which makes increasing sentences for drug crimes a rational - if, as I believe, socially-destructive - response to judicial decisions suppressing physical evidence virtually at random in the name of an ever-morphing fourth amendment.  (See post 126 and post 53.)

Judges' rhetoric distances them from the consequences of their acts.  Justice Scalia, for instance, acknowledged that one of his decisions would "have the effect of allowing the guilty to go free" - implying that the only consequence would be a reduction in the judicial system's efficiency and not, for instance, the repeated infliction of physical pain on vulnerable people.  (See post 274.) 

The Court could only forestall that unfortunate outcome, Scalia wrote, if it were impermissibly to "vitiate constitutional guarantees" - although the constitutional guarantee in question was invented just two years earlier in another opinion written by the very same Justice Shelley.  So he recognizes in himself the power to invent new constitutional guarantees, but when faced with their unfortunate consequences says he's powerless to alter them.

Again, perhaps this two-facedness - which is deeply ingrained in American judges at all levels, and accepted without demur by virtually all American legal academics - can be justified doctrinally.  But it's far easier to explain on psychological grounds: power is gratifying, responsibility isn't.

(I actually would reverse Kirsch's terms in one particular, though: I think it's more accurate to say judges express contempt for reality and indifference to consequences rather than vice versa.)

The cultural illiteracy of lawyers, a highly-educated and hyper-articulate lot, is a mystery to me.  How can  intelligent people know so much and so little at the same time?   Take, for example, Chief Justice Rehnquist quoting Iago, literature's greatest lying defamer, to demonstrate the preciousness of reputation. 

Shakespeare thought he was being ironic, making the groundlings shout, "Don't listen to him!", and demonstrating how overblown rhetoric can contribute to a sensible man losing his senses.  (Who honestly believes his or her purse is "trash"?)  But our Chief Justice proved as gullible as Othello himself.

The latest example comes from an ABA Committee: "A criminal conviction is, in a very real sense, a 'mark of Cain,' which sets its bearer permanently and indelibly apart from the rest of society."   The committee's sole cited  source for that allusion was a newspaper article by blogger Webb "I shoulda stayed a judge" Hubbell (whose notoriety, it might be argued, makes his experience a wee bit atypical among convicted felons, and whose credibility, one might have thought, would be relatively low among lawyers, in particular). 

The committee didn't cite to the other, better-known source for the phrase: 

 And the LORD said unto him, Therefore whosoever slayeth Cain, vengeance shall be taken on him sevenfold. And the LORD set a mark upon Cain, lest any finding him should kill him.

Or, if Tyndale is too 16th-century for your taste, here's the New International Version:

Then the Lord put a mark on Cain so that no one who found him would kill him.

The Contemporary English Version (a/k/a Today's English Version) may win the award as the clearest of all:

So the LORD put a mark on Cain to warn everyone not to kill him.

The "mark of Cain" was placed upon its bearer to protect him, not to cast him out from society.  The protection was necessary because he was already set apart from the rest of society ("a fugitive and a vagabond shalt thou be in the earth"). 

So when the ABA committee said that a criminal record is "in a very real sense, a 'mark of Cain,'" it was saying the opposite of what it meant.   Furthermore, since the original mark was, you know, a mark (here's a variety of translations of 'owth from the Hebrew), the committee was using "in a very real sense" to mean "figuratively speaking" - a wordier version of the illiterate use of "literally" as an intensifier. 

The committee's proposal was to seal all criminal court records, in defiance of the sixth amendment's guarantee of a public trial:

The commission wanted the ABA to favor legislation at all levels, "to the extent permitted by the First Amendment," to restrict access to records of dismissed or acquitted indictments, and records of past convictions after a period of time, to law enforcement agencies only.

Now, even someone as commercially-inept as myself can see that if the government records were sealed after initially being made public, a private market would instantly develop.  The committee's proposal would  make criminal records as unreliable, as difficult to correct, and as routinely relied upon as credit reports are today.  (Hey, but you could hire a lawyer to clear up the misunderstandings!)

But its absurdity is the least-interesting thing about the proposal.  Like Whitman, it contained multitudes.   It was  an anthology of the modern American judiciary's greatest hits.  First, there's the preference for constructed reality over truth.  The whole point of the proposal, after all, was to prevent people from discovering truthful information, and instead to trick them into believing in an alternative reality - exactly what criminal court judges do to juries when they suppress or otherwise exclude relevant evidence.  Truth is not a legal value.

Second:  But above all else, truth about the legal system is to be tightly-controlled.  The people shouldn't be told more than is good for them.  It's more important for the judiciary to have a good reputation than to deserve one.  (See post 272 and post 287.)   So information about what actually goes on in one-third of the government needs to be parceled out on a need-to-know basis.  And, tcha, you know what? - you don't need to know.

Third: There is no reality outside of the courtroom.  If a person is found not guilty of embezzlement, that means the person didn't embezzle.  Therefore, if a prospective employer declines to hire the acquitted embezzler to keep the company's books, it's "unfair discrimination", and drastic steps must be taken to ensure that future decisions are based on less information. 

Fourth:  The job of the legal profession, whether acting through its judges or its trade associations, is to control the behavior of non-lawyers.  Specifically, its job is to prevent people from acting in ways that the people consider rational.  That's why, for example, relevant evidence is concealed from juries - to prevent them from drawing rational conclusions from it.  (See post 40.)  So if a person hiring a bookkeeper would think it rational to consider whether the applicant had a history of arrests for embezzlement, then the legal profession's job is to prevent the person from becoming aware of that fact.

Fifth:  So long as you profess your noble intentions, unintended consequences are of no concern.  Since the committee wanted to stop one type of discrimination, and stopping discrimination is good, therefore it simply didn't matter what other effects its proposal would have had.   In the same way, allowing a person to get away with raping and murdering a child, for example, is trivial in comparison to the glory of advancing an important principle - even if the principle in question had to be invented on the spot.

Sixth:  All decisions of significance to the legal system are made by legal professionals.  If a decision is made by anyone else - say, a prospective employer or landlord - then, by definition, it's not something the legal system needs to respect.  That's what the committee was saying when it proposed that the records be sealed "to the extent permitted by the First Amendment."  They meant: to the extent permitted by judges interpreting the first amendment, which is the same as saying: to the extent permitted by judges, period. 

 Sridhar Pappu of the Washington Post began a profile of axed U.S. Attorney David Iglesias with a description of the "the dusty, desolate collection of adobe homes and Vietnamese restaurants that seem to form this city".  This, I think, counts as the single weirdest thing anybody has ever said about Albuquerque.

"Dusty" isn't weird - that's  just accurate.  And "adobe" is an understandable mistake, since the dominant building style uses stucco to gesture architecturally in the direction of traditional adobe.  (Hand-made bricks are, for reasons that will be obvious if you think about it for half a second, a very expensive building material.)  The use of the word "desolate" - "devoid of inhabitants and visitors" - to describe a metropolitan area of 791,000 is a bit loose, perhaps, but the writer's meaning (hideous hick town) is clear enough.

No, it's the bit about Vietnamese restaurants that has everyone here scratching their pellagra and thoughtfully rubbing their goiters. 

I've long thought that there are two unmistakable signs that a small city has become a big city: exit ramp traffic backs up all the way onto the freeway; and the opening of good Asian restaurants.  By these standards, Albuquerque rates.  But barely.  There are, in fact, some good Thai and Vietnamese restaurants (though, for whatever reason, not much good Chinese), but you have to hunt for them.  My yellow pages lists 7 Vietnamese restaurants, or roughly 1 per 18.8 square miles.

I've avoided writing about the U.S. Attorneys scandal, even though it has unexpectedly put New Mexico in the national news as nothing except our Governor's election to the Presidency has recently done.  In part that's because I know some of the people  involved (Iglesias tried real hard to become my boss nine years ago) but mainly because it didn't seem to have much to do with the subjects of this blog.

But certain familiar themes are beginning to emerge from the disorganized mass of information provided by reporters whose vocational major allowed them to get advanced degrees without loading them down with historical perspective or an understanding of American political institutions.

First:  The Washington HQ of the DOJ was/is deeply corrupt, and as with many judges, the corrupting influence is power rather than money.  After the revelation of Gonzales's shameful bullying of the hospitalized prior AG, it's hard to avoid the conclusion that he was named the replacement AG precisely because he was prepared to violate the law in a way that John Ashcroft wasn't.  As if to confirm this view of his character, Gonzales has committed perjury, a criminal offense, on multiple occasions since taking office.  When Monica Goodling, counsel to the Attorney General, said she would invoke her privilege against self-incrimination, she meant that if she testified truthfully she would reveal information that could be used to convict her of crimes.  And - a scandal that seems curiously camouflaged behind the firing scandal - the FBI, an agency of the DOJ,  repeatedly violated the law by J. Edgar Hoovering. 

Second: A concrete manifestation of the DOJ's corruption is the effort to use criminal prosecutions to influence elections.  That's what was going on with Iglesias (look at the second section of the Pappu article, which is more solidly sourced than the lede).   That's pretty obviously what went on in Wisconsin, where  sleazebag U.S. Attorney Biskupic saved his position by his election-timed prosecution of poor Georgia Thompson, a prosecution the Seventh Circuit recently termed "preposterous."   Biskupic is the anti-Iglesias, the U.S. Attorney prepared to sell himself for the glamour of the make-up and short skirts - er, I mean, the dignity of the job.

Third: This specific form of corruption might already have touched the judiciary: From a distance, it sure looks as though Democratic Justice Oliver Diaz was prosecuted (twice) for raising money to fund his race for the Mississippi Supreme Court.  It's at least possible that the real corruption in the case against Diaz involved the prosecutor, not the defendant.  Maybe I'm wrong about that; in some respects I hope I am.

Fourth: As with Guantanamo Bay, extraordinary renditions, secret prisons, and approved torture, the DOJ scandals show again that our courts are all-but-helpless to do anything about genuine abuses by the executive branch.  (See post 262.)  Judges seem to find a great deal of satisfaction in the elaborate role-playing courtroom games in which they get to pretend to discipline police officers and prosecutors, but they're sea anemones, carnivores who must wait for their prey to come to them.   When a contemptuous executive maintains a prudent distance, judges can do nothing but adhere to their (dignified) rocks, waving their tentacles helplessly.

The title doesn't promise the under-the-bedclothes magazine for teenaged boys of all ages that ate Penthouse's lunch in much the same way Wal-Mart and Target divided K-Mart's among themselves.  ("It's a deal.  You get the high-margin items, we get the high-volume, and K-Mart gets to keep everything else.")

No, I'm earnestly trying to distill the maxims that govern judicial work.  I find they tend to come in pairs, like:

• Judges have the authority to make basic decisions about the acceptability of violence in society.
• Judges have no responsibility for the consequences of their decisions about the acceptability of violence in society.

Judges are pretty open about this pair, although you often have to search for them beneath puffy clouds of words.  Justice Scalia was being unusually direct (and terse) when he acknowledged that the Court's recent revision of the sixth amendment has the effect of frustrating society's efforts to curtail domestic violence, adding this mea non culpa:

This particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial. When this occurs, the Confrontation Clause gives the criminal a windfall. We may not, however, vitiate constitutional guarantees when they have the effect of allowing the guilty to go free.

In that passage, there's only a thin veneer of rhetoric covering the two maxims.

More typically diffuse is a famous passage by the late Judge Richard Arnold of the Eighth Circuit (the federal appeals court that hears cases from a Big Dipper-shaped slice of mid-America stretching from North Dakota to Arkansas).  (Arnold was profiled in post 235.)

You only need to know two things about this passage.  First, Arnold announced a new constitutional doctrine, one invented by himself and his two colleagues, which was promptly overruled by the U.S. Supreme Court.  Second, the effect of his new doctrine was that jurors in a murder case could not be informed that the victim, a 10-year-old girl, was dead.  Her death ceased to have any reality inside the courtroom.  (O death, where is thy sting?  Right here, outside the courtroom door.)  Here it is:

It will inevitably be remarked that our opinion focusses more on the conduct of the police than of the alleged murderer. If Williams is indeed guilty, and if he goes free as a result of our holding, then complete justice may not have been done, even though Williams has served 14 years in prison. A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced.

(The link is to a recent Second Circuit case that quoted this passage.)

This is a remarkable passage in any number of ways, not least of them being that the New York Times singled it out for quotation in Judge Arnold's obituary (scroll down).  Another is that Justice Brennan termed it an "insightful and stirring defense of the constitutional limitations placed on law enforcement authorities" (78 Minnesota Law Review at 2) - even though, if you'll notice, by its own terms it applies to judges and Supreme Court justices, too, a point so foreign to Brennan's thinking that he apparently didn't even perceive it, the way those who speak one language fluently can have no phonemic awareness of certain sounds in another language.

(The linked Wikipedia article provides as an example Japanese people and the "R" and "L" sounds.  It might also have mentioned the difference between "pin" and "pen" - which I've been told exists, but can't hear in normal speech.)

But for purposes of our maxims it's enough to note that:

• Judge Arnold accepted that his opinion didn't produce "perfect justice".  Imperfect justice - that is, justice that isn't just, a/k/a "injustice"  - is a pretty remarkable thing for any justice system to accept as a norm, much less (as Brennan's encomium suggests) an ideal.
• Arnold disclaimed any personal responsibility for the injustice he produced, saying it was merely "one of the costs" of the Bill of Rights.
• The particular constitutional doctrine was invented by him in the very same opinion that said our "country is built on the assumption" that the doctrine was a good idea - yet another example in our case law of an anomaly in the space-time continuum.  (Curiously, when the doctrine was rejected by the Supreme Court just one year later, causing the country's foundation to crumble in part, the effect was felt in California, not Arnold's Arkansas or the dead girl's Iowa.)

So Arnold was saying he had the power - indeed, the responsibility - to invent new constitutional doctrines even when they produce injustice.  But he wasn't responsible for the injustice his invented doctrines produced, because our "country is built on the assumption" (assumption, mind you, not a principle or declaration) that justice in such cases would actually be undesirable.  (Or, rather, that "the cost is worth paying" - when judges resort to vague metaphors, it usually means they want to disguise their meaning, probably most of all from themselves.)  Hey, don't blame me - I'm just channeling the Framers!

Now, it might seem at first glance that the two maxims are, as lawyers like to say, "in tension with" each other, even if they aren't quite contradictory.  Doesn't it produce intellectual disquiet in judges - cognitive dissonance - to hold them both in your head at one time?  No, obviously.  Eric Hoffer explained why not (see post 273): both maxims are required by "the Constitution" and devotion to "the Constitution" is a higher duty than intellectual coherence.  The maxims offer power without guilt.  Their incompatibility isn't a flaw: it's the secret of their appeal.