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.

Imagine a history professor who built his career on the study of presidential press releases, viewing them not as eruptions of public mendacity or even as examples of public relations technique but as the true measure of each administration's achievements. 

To evaluate Richard Nixon's time in office, this scholar would diligently read every word that ever emanated from Ron Ziegler's office – and nothing else.  To understand the achievements of George W. Bush, our professor would carefully parse the words of Tony Snow and Dana Perino. 

If an academic rival were to publish an article questioning President Bush's sincerity, our historian could write a letter to the editor of a highbrow magazine couched in the barbed politesse of academic infighting, crushing his rival with the unanswerable riposte: a quotation from Ari Fleischer conclusively proving the contrary.

It shouldn't be hard to imagine such a professor, because that's how our legal academy operates.  When our law professors study the United States Supreme Court, they read the Court's press releases and treat them as full and entirely satisfactory explanations for the Court's exercises of power. 

When law professors conduct what they consider debates about the Supreme Court, they bandy back and forth various phrases and linguistic formulations crafted by the diligent drones of the Court's PR shop – that pool of aides known in the jargon as "law clerks," the recent law school graduates who actually draft the opinions the justices sign (and who themselves frequently become law professors, completing the circle). 

If you picture the President personally signing off on every White House press release and passing it off as his (or, perhaps, her) own work, you'll have a pretty clear idea of how the Supreme Court works.  In the world of the press release, of course, every motive is pure, every goal noble, and every policy successful.  Press releases, including judicial opinions, endlessly invite us to accept the word as the deed. 

Princeton University Press was nice enough to send me a review copy of a book devoted to the painstaking perusal of Supreme Court press releases, and I feel guilty that I haven't devoted a post to it yet.  There's such a spirit of naive yearning in the book that I find myself drawn to its author, who as provost and Laurance S. Rockefeller Professor of Public Affairs at Princeton University would doubtless find my solicitude icky.

I know what you're asking: Who, exactly, was Laurance S. Rockefeller and why did he spell his first name like that?  Well, as a young man Laurance "attended Harvard Law School for two years until he came to the conclusion that he did not want to be a lawyer", which tells you everything you need to know about him: he didn't have to worry about paying off student loans.  After that his career was the usual round of venture capitalism, crop circles, philanthropy, the Roswell incident and alternative education.

The current occupant of the Ivy-entwined Rockefeller chair, Christopher Eisgruber, has written The Next Justice: Repairing the Supreme Court Appointments Process.  Before that he was a clerk for Justice Stevens, and I'm glad to say he's appropriately grateful to his fairy godfather - although calling him a "valued mentor" on the dedication page might strike some as providing a little too much information about the value Stevens added to Eisgruber's career.

I've written about Supreme Court clerks before (see post 204), but Karen Arnold did so with far greater detail in her  Lives Of Promise: What Becomes of High School Valedictorians.   Supreme Court clerks are the valedictorians among valedictorians, the highest-achieving of the high achievers, and I don't doubt that the personality characteristics Arnold found in her Midwest valedictorians are only amped up in the 36 (or so) smartest persons in the room who get to clerk at the Supreme Court.

What Arnold found, above all, was contentment with the status quo.  The people who graduate at the top of the class are those who spend the least mental time outside the box.  The closer your brain waves resemble the pattern of windows on the school facade, the higher your GPA will levitate over 4.0.

Or, as Arnold put it (sans the piquancy of sour grapes): "Over and over again, star students told us they rose to the top partly because they were intelligent, partly because they were schoolwise, and mostly because they worked hard, persisted, and drove to achieve."  "The top students readily identified themselves as 'school smart.'  Academic talent, to them, meant the ability to excel at academic learning and school tasks like note taking, memorization, and testing."

Eisgruber - the established face of the Establishment's premier establishment - has made school-smarts a career.  And a brilliant career it is, too.  Link after link in an amazing chain of achievements, all ending up as the university president's representative at budget meetings ...   Prestigious budget meetings, mind you.   But still.  I think the apple carts of central New Jersey are safe as long as Eisgruber is around.

(Incidentally, if you were the editor-in-chief of Princeton University Press, how would you feel about receiving an unsolicited manuscript from the "chief budgetary officer of the University"?  Mad at yourself for not having solicited it?)

Eisgruber's basic take on the Supreme Court is that its press releases tell you everything you need to know.  You can judge a judge by the polished productions he chooses to send to the publisher.   So his book is filled with quotations from the justices' opinions that are presented as true-to-life, pantingly-intimate, Sylvia Plath-like confessions of what the justices were thinking - in short, as the decisions themselves, rather than as public relations justifications for them. 

(The different meanings of "decision" contribute to fuzzy thinking in the legal academy, I think: the justices decide a case, then order their clerks to write a "report of [their] conclusion", and the latter is called ... the decision.)

If you start with the conviction that everything John Paul Stevens has ever done is good - no, make that Good - and devote your massive brain power to thinking about the Supreme Court while resisting any idea that challenges that core conviction, you would come up with policy prescriptions - well, that's a bit strong - policy vague suggestions similar to Eisgruber's.

I'll talk in more detail about the book in a later post.  But in the meantime I do recommend it without reservation as a fly-in-amber keepsake of well-spoken, well-intentioned conventional legal wisdom, circa 2007. 

Here's one of the accusations against Texas federal judge Samuel Kent with regard to his former case manager, Cathy McBroom:

McBroom was summoned to the judge's chambers on Friday, March 23, at about 3 p.m.

Her hands were full of legal papers when the judge — a former high school athlete who is more than 6 inches taller and at least 100 pounds heavier — asked for a hug.

She told him she didn't think that was appropriate, but reluctantly approached.

The judge grabbed Mc-Broom, pulled up her blouse and her bra and put his mouth on her breast. Then, Kent forced her head down toward his crotch.

As McBroom struggled, Kent kept telling the married mother of three what he wanted to do to her in words too graphic to publish. The papers fell to the floor. The pet bulldog Kent kept in his chambers began to bark.

The incident was interrupted by the sound of footsteps from another staff member in the corridor, and the judge loosened his grip. As she left, the judge said McBroom was a good case manager and then made suggestions about engaging in a sexual act.

McBroom ran out crying.

McBroom filed a complaint with the Fifth Circuit's Judicial Council, which conducted an investigation, held some kind of hearing, and apparently found the accusation substantiated.  "Apparently" because the Fifth Circuit order in the matter is so extremely - and, of course, deliberately - vague. 

After McBroom came forward, other women did likewise: "[Felicia] Williams and at least three other women later gave statements to 5th Circuit investigators regarding Kent's alleged abuse of employees."  Ms. Williams, Kent's former case manager,

told the [Houston] Chronicle that over the years she frequently had seen Kent appear inebriated at work after long lunches with lawyer friends, was regularly asked for "hugs" and subjected to lewd remarks.

The judge said he could "service me when my husband was being treated for prostate cancer," Williams said. "He told me sexual dirty jokes, and (I) was expected to listen to his rude comments regarding other people."

I can't tell if the Fifth Circuit considered these additional allegations.  At any rate, the court's Judicial Council came down on the judge like a ton of bricks.  It placed him on a four month paid leave of absence. 

That's right, the judge's punishment is to accept $55,000 - one third of his annual salary - while relaxing on the beach.  (How many of you just asked: Where do I sign up?)

The Houston Chronicle, and especially its columnist Rick Casey, has been all over the story and doing a superb job, but the story has received virtually no attention in the national media.  I couldn't find any stories in the Washington Post, New York Times,  LA Times or USA Today, although it's made the Wall Street Journal's law blog, if not the paper itself.  You have to read the hometown paper or the Volokh Conspiracy to find out what's going on.

But this isn't a case about a local crime, or the misbehavior of a single local official.  The key thing isn't what Judge Kent did - and the Fifth Circuit's Judicial Council's order certainly tells us that he did something, even if we don't know what, exactly - but that he was allowed to do so much.  For instance, he was allowed to do everything he did to all those other women before McBroom.

Judge Kent had to go to the extreme of - apparently - committing an out-and-out felony against a person willing to risk her good federal job (all jobs in the federal judiciary are good jobs) by talking to the newspaper before the barest possibility arose of his facing negative consequences.

The institution of the federal Judicial Councils, it's hardly necessary to point out, exists to prevent discipline of federal judges by creating an illusion to the contrary.  It exists as a trash receptacle.  It has no power to do anything except attempt to shame a person who wouldn't have gotten to that position if he retained any ability to feel shame - rather like trying to appeal to the conscience of a sociopath.  Punishment by the Judicial Council is exactly the same as non-punishment by the Judicial Council, except the former involves less work.

Even more than that, though, Judge Kent thought he could get away with sexual violence because he's gotten away with abusing his power so often in the past, and not just against female staffers, as my old ethics teacher Steven Lubet documented six years ago.  

Mary Flood, the Chronicle's legal blogger, refers to Judge Kent's "national reputation for training his biting wit on lawyers".  For a judge to train "biting wit" on lawyers who appear in front of him is very similar to a prison guard exercising his knack for hilarious practical jokes on the job, with this difference: the guard has power only over the prisoner, while the judge holds both the lawyer's career and his or her clients hostage. 

A judge can be "bitingly witty" to lawyers for one reason and one reason only: because he possesses the power to hurt the lawyers personally, and hurt their clients for years or decades to come, even put them out of business, if the lawyer should respond with anything but "heh heh." 

Imagine what a riot Judge Kent would be as a night orderly in a nursing home.

In short, Judge Kent's national reputation isn't for "biting wit" - it's for sadistically abusing his power.  Even if the lawyers themselves are too self-protective, and protective of their clients, to say so in public, there's no reason for a non-practicing lawyer such as Ms. Flood to use such euphemisms.  Judge Kent is a person who cannot be trusted with power.  He evidently suffers from a serious mental illness - the delusion that his power is unlimited.  He has no business being on the bench.

One of the truly shocking elements of the story, though, is the joint statement from three Congressmen on the Judiciary Committee.  They responded to a query about possible impeachment by referring to the possibility of criminal charges and then adding:

"While the alleged conduct is disgraceful, it is, nonetheless, the practice of the House Committee on the Judiciary to defer formal action until available intermediate remedies have been pursued," the congressmen said.

A felony prosecution is an intermediate remedy?!?

The Constitution says that federal judges "shall hold their offices during good behaviour".  That's not lifetime tenure.  Nor does that require a showing of high crimes or misdemeanors for impeachment, despite two centuries of lamentable precedent to the contrary.  It would be crazy to hold a minor appointed official to the same high standard required for nullifying a presidential election, and the Constitution didn't do so, although craziness has been a distinguishing hallmark of our attitude toward federal judges at least since Samuel Chase.

If Kent were impeached, all that would happen would be that he would return to the practice of law.  That's the horrible, dreadful punishment that the three members of Congress consider more serious than a felony prosecution. 

Now why, do you suppose, would members of Congress would be so reluctant to establish a precedent for removing a public officeholder from his (and I do mean "his") position merely for committing sexual assault?

Latvian journalist Lato Lapsa, who (if you follow the link) once resembled a red-headed Jack Nance from Eraserhead,  now wears more-becoming non-nonsense steely gray hair.  His name is more literary than most.  A Dogpile search for stories about him brings us Virgil:

bina manu lato crispans hastilia ferro. Cui mater media sese ... aetheria quos lapsa plaga Iovis ales aperto. turbabat caelo; nunc terras ordine longo...

and Ovid:

neve sit errandum lato spatiantibus arvo, conveniant ad busta Nini lateantque sub umbra ... dumque fugit, tergo velamina lapsa reliquit. ut lea saeva sitim ...

Lapsa recently ignited a pretty spectacular judicial scandal in Latvia:

Journalist Lato Lapsa has unveiled a series of transcripts that are allegedly wiretapped phone conversations among prominent figures in Latvia’s judiciary system from 1998 to 2000. ... The tapes primarily concern conversations between high profile lawyer Andris Grutups and high ranking members of the judiciary. If they are found to be authentic, then the tapes could imply corruption in the political elite, business elite and the judiciary system as a whole.

That cautious report, carefully refraining from saying what is actually contained in the transcripts, is from the Baltic Times, which a day earlier had described the transcripts this way:

The transcripts date back several years and appear to originate in the office of leading lawyer Andris Grutups. They record conversations between Grutups and various members of the judiciary suggestive of a relationship that is more collusory than would generally be considered acceptable.

The Finnish Helsingin Sanomat is also circumspect in describing the recordings:

In the recordings, the lawyer and the judges engage in confidential discussions of the kind that violate rules of professional conduct. If the tapes prove genuine, they would call the impartiality of the system of justice into question.

 One judge whose voice was said to have been heard on a tape, has reportedly submitted his resignation.

Anyway, you get the general idea.  The Baltic Times reports that the country's prime minister responded in a classically Stalinist way, interpreting the revelations as a kind of treason:  "'This is an opportunity to destabilize the political situation in the country, to ruin trust in the prosecutor’s office and justice system. Obviously somebody is interested in such destabilization,' he said."  It just goes to show that you can take the Baltic nation out of the USSR but you can't take the USSR out of its politicians. 

But if the prime minister could have plausibly contended the tapes were fake, wouldn't he have chosen to spin the story that way instead?  The lawyer supposedly implicated also indirectly confirmed the authenticity of the transcripts, asking "if 'placing a phone call' was a crime."

Lapsa received the transcripts anonymously at the end of last year but held on to them until he could publish a book about their revelations.  Without knowing anything at all about either him or Latvian politics, his explanation for the delay is so true to small-state politics in the US that I believe him:

Lapsa told journalists that he published the transcripts in order to ensure public opinion would weigh in on the matter and that the case was thoroughly investigated. The aim of the book was “to raise enough public interest and awareness about the case, so as not to allow our dear investigation and law enforcement institutions to drown this case as has happened with other cases,” Lapsa said. The journalist said that he remembers a number of cases in which information had been sent to the prosecutor’s office, but the case was not launched and “died naturally.” He explained that these cases indicate that it is not enough – “not in this country, not at this time” – to simply send the information to the prosecutor’s office, and that public awareness about the case must be raised as well.

As an indication that his strategy might just possibly produce some results, we have this story from today's LETA:

Prosecutor General's Office has requested from Riga Regional Court information on civil suits reviewed between November 1, 1998 and April 1, 2000 by seven judges whose names possibly correspond to those mentioned in the new book "Tiesasanas ka kekis" ("The Court Case Kitchen"), released in Latvia last week.

(The Court Case Kitchen has a distinctly Babelfishy smell to it.  The Baltic Times goes with Cookhouse Legislation, which isn't any better.  The Court's Kitchen, maybe?  Or Cooking Up Cases?)

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

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

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

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

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

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

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

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

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

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

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

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

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

So now you know what "prosecutorial misconduct" means.

With what exclusive demeanor may one be remiss?  Sadly.  And that's what this blog has recently been with respect to half the task assigned by its title, that of chronicling the crimes of judging.  (Please note: We use the term 'crimes' in its colloquial, rather than any technical legal, sense:  "An unjust, senseless, or disgraceful act or condition: It's a crime to make fatuous decisions that damage other people's lives.")

First prize goes to whoever correctly guesses, without reading the story or possessing previous knowledge of its subject, the meaning of this BBC headline: "Brazil judge in gay football row".   Last prize goes to whoever can read the following sentence once and explain the technical basis of the judge's ruling.  Hint: The article involves a libel suit brought by the Brazilian football star Richarlyson against someone who called him gay.  Here's the sentence: "In reaching a decision to effectively set the case aside, Judge Manoel Maximiniano Junqueira Filho said football was a virile masculine sport and not a homosexual one."

In Britain, judges obsess less about gay football stars and more about money.  Judge Peter Smith, who embarrassed himself by concealing a lame Da Vinci Code-like cipher in the opinion belatedly clearing Dan Brown of plagiarism charges brought by people who had written a book they previously had hawked as non-fiction, make the mistake recently of not resorting to cipher when he would have been well-advised to do so.  As explained by the Telegraph:

Last November, [the big-deal City law firm] Addleshaw Goddard approached the judge with an offer of a job. Under this plan, Sir Peter would retire early from the Bench and join the firm. This sort of thing was, after all, encouraged by Lord Falconer when he was Lord Chancellor. Talks continued until May, when the firm decided that Sir Peter would be too expensive. His current salary is £164,430. Reports, not denied by either side, say that Sir Peter and his judicial assistant would have cost the firm £750,000 a year - though that was not a figure that the judge himself demanded. In any event, Simon Twigden, head of the firm's Contentious Group emailed the judge to say that "the level of investment required cannot be supported".

Sir Peter's reply, quoted by the court last week, showed "considerable disappointment". The judge "stressed the considerable advantages of being associated with him as a judge who had recently given judgment in 'a landmark decision on corruption' which 'also has an impact on Banking and Corporate' ".

When he was again turned down, the judge told Mr Twigden: "I found your first email insulting and your second one condescending." He added: "I feel you have wasted my time for several months. I am extremely disappointed because, contrary to your fine words, you have allowed the bean-counters to prevail."

Shortly after being told that his services weren't worth the cost, the judge found himself assigned to a case involving allegations of wrongdoing by the very same Mr. Twigden.  When asked to recuse himself, he refused, telling the firm's barrister, "It is about time you grew up." 

In response to the Murdoch Times' account of the affair, a defender of the judge wrote in: "If however every Judge is hounded from office for losing their temper we would have a backlog of cases and the system would break down."  Now, that's  rhetorical inflation (see post 297): if you remove a single judge for using his official power to settle a private score, the legal machinery of the state will ground to a halt - I guess because once you start, there's no logical stopping place, and soon there won't be any judges left to wear the cute red dresses of the High Court.

Meanwhile, "Italy's top criminal court on Friday upheld a corruption conviction in February against Cesare Previti, a former defense minister and close associate of ex-premier Silvio Berlusconi, Italian news reports said.  [¶]  The Court of Cassation upheld the appeals' court sentence of 18 months in jail for Previti, as well as prison sentences for two lawyers and a judge, news agencies ANSA and Apcom reported."

That's the problem when judges start running with the big dogs: they don't even get their names in the papers.  Two other, equally-anonymous judges had their convictions overturned, according to Forbes, which describes the new American phase the litigation is taking, in the form of a forfeiture action.  (Here's a little more about the underlying tangle.)

Back home, former Washington County Circuit Judge Annette Ziegler was sworn in as a justice of the Wisconsin Supreme Court.  The noteworthy part about that?

The state Judicial Commission is investigating Ziegler for her handling of 16 cases in which she had a potential conflict of interest. Ziegler acknowledged wrongdoing in some of those cases in May as part of a separate investigation.

Of course, "potential conflict of interest" is a notoriously vague category, which is why a separate category needs to be invented for Justice Ziegler, because what she did wasn't vague at all:

Seven of the cases the Judicial Commission is investigating involve West Bend Savings Bank, where her husband sits on the board of directors. Nine of them involve companies in which Ziegler owned more than $50,000 in stock.

The state judicial code bars a judge from handling a case if his or her spouse is a director for a party involved in the case. The code also bans judges from hearing cases involving parties in which they have more than a minimal financial interest.

The state Ethics Board also looked into the bank cases this spring. Ziegler settled that matter in May for about $17,000, which consisted of a $5,000 forfeiture and state legal fees of about $12,000.

The $5,000 forfeiture was the largest penalty in an Ethics Board case in 14 years.

An editorial in the Madison Capital Times - the headline gets right to the point - explains how a crook like that got elected to the Supreme Court of a state that has generally has a reputation for scrubbed-cheek clean government:

But the most serious problem with Ziegler taking a place on the court is not her scandalous behavior as a jurist. It is the fact that she lied to the people of Wisconsin in order to secure a place on the bench.

When the issue of her unethical behavior arose, it was a classic case of judicial wrongdoing. Any first-year law student could have looked at the record and known that Ziegler was going to face sanctions for deciding cases involving the family business. Indeed, as Professor Geyh says, "Everybody knows you don't do that."

Yet, Ziegler and her supporters claimed in the weeks before the April election that she had done no wrong.

The Ziegler campaign asserted that the charges against her were nothing more than political rhetoric at election time.

Ziegler and her supporters actually went so far as to impugn the motivations of civic organizations that expressed concern about the prospect that a judge with such severe ethical problems would be seeking a place on the state's highest court.

The lies worked. Ziegler was elected. Then, within weeks after securing a 10-year term on the court, she admitted she had done what she solemnly told the voters of Wisconsin she had not done.

At that point, there was no longer any question that Ziegler obtained her position under false pretenses. And when she solemnly swears an oath today to uphold the laws of the state, Wisconsinites will be justified in asking whether anything this woman says -- or any ruling by the court in which she participates -- can be trusted.

But you have to admit, Justice Ziegler cleverly figured out how to beat the rap.  First, the "avowed conservative" raised a ton of cash, and from what we know about her it seems a good bet that those who gave her the money look forward with justified confidence to a handsome return on their investment.  Second, now that she's been sworn in, we have to assume the disciplinary case has been wrapped up.  (See post 198.)  My prediction: a year or two goes by, to create the illusion of continued investigation, and then an "admonishment" settles like dust on her robe. 

A few years ago a friend of mine was asked to serve on a State Bar task force tasked (as they say) with countering the negative image of lawyers.  The idea was that a better-informed public would have a much rosier impression of the profession.  It struck me as not only a hopeless but a misguided mission, because the dismal public perception of lawyers isn't based on ignorance.

Most lawyers don't put up lighted billboards along the freeway saying things like, "If you've had an accident, somebody somewhere owes you money!!!   Dial 555-TORT," like the millionaire lawyer who had never tried a case in one of Carl Hiaasen's best.  Nor is it true that most lawyers "spend too much time finding technicalities to
get criminals released", as an ABA survey found 73% of Americans believe (page 7).  (I love that Papa Bear-like "too much.") 

But the public perception that lawyers do these kinds of things is nonetheless perfectly accurate.   The problem isn't that the public doesn't know what lawyers do, but that it knows all-too-well what some lawyers do.  (Besides, what the rest of us do is too boring to bother learning about.)

The same curse of partial knowledge explains much in the newspaper biz.  In their rhapsodic moments, journalists come closer to the sanctimoniousness of lawyers than any other profession ("sacred duty" – no, really – or even a Frodo-like "sacred mission" – no kidding, they say that to one another) and yet they score hardly higher than lawyers in the Gallup Honesty and Ethics poll. 

This is how respondents responded to the loaded questions of pollsters:

Six-in-ten see news organizations as politically biased, up from 53% two years ago. More than seven-in-ten (72%) say news organizations tend to favor one side, rather than treat all sides fairly; that is the largest number ever expressing that view. And by more than three-to-one (73%-21%), the public feels that news organizations are "often influenced by powerful people and organizations," rather than "pretty independent."

It doesn't matter that most journalists aren't like that, because some news organizations are.  Rupert Murdoch's newspapers are politically biased, unfair, and influenced by powerful people – in particular, by Murdoch himself, as the Wall Street Journal recenntly reported from its deathbed.  (On the positive side, the family conglomerate almost certainly won't survive the lying bastard's death, which can't be far off.  People with Murdoch's particular combination of qualities don't produce intact children, much less dynasties.) 

Some time ago I read a book-length compilation of clippings from the Police Gazette of the late 19th century.  This was the pink-sheeted, "second" Police Gazette, no longer a log of police activity but a startlingly modern tabloid.  It featured lots of stories about athletes (e.g., bare-knuckle fighters - some of the stories were distinctly Michael Vickish, except they involved humans), and lots of engravings of sexy girls in revealing (by the standards of the day) costumes, such as trapeze artists in tights and short skirts. 

There was also a violently racist campaign against recent immigrants – the Chinese, depicted as fiends who addicted white girls to opium for purposes of satisfying unspeakable lusts – and offbeat news stories that read as though they had been thought up at the compositor's stand.  It was remarkably close to the formula followed today by Murdoch's flagship The Sun.  (Can't wait for the WSJ's page three, can you?)

The story of the judges and the sex tapes (see post 295) might have been made for Murdoch.  Readers could read about the details ("J found out about the affair when she discovered them in bed together at Mr Khan's home around Christmas 2004") while deploring the foreigners who supplied them (an English judge named Khan in bed with a Brazilian) and waxing indignant (see post 286) that immigration judges should hire an illegal immigrant to clean their houses.

But the effort required to tsk and chortle at the same time might obscure for many readers the exploitation.  An immigration judge first hired, then sexually used, an illegal immigrant.  It took an unusual convergence of events, up to and including a blackmail prosecution, for any of the story to become public (or rather semi-public, as UK press law still censors some details).   And even then the woman went to jail while the man continued to draw his £101,948 per year salary for staying home from work.

Similarly, here in New Mexico, a longtime advisor to President Richardson hurriedly quit his new job as a workers compensation judge (hey, gotta find 'em jobs somewhere) under circumstances that must be gathered from the inconclusive hints found in this Albuquerque Journal report:

After the conference adjourned, [Judge Chris] Berkheimer and the worker were left alone in the room, [the woman's attorney, Justin] Pennington said.

    "That's when he made his comment," Pennington said. "I can tell you that Mr. Berkheimer wasn't aware his actions were being observed."

    He had failed to turn off the visual and audio equipment used to set up the videoconference, Pennington said.

    "I can tell you that the inappropriate sexual proposal was made according to two witness statements," Pennington said— the female worker and a conference participant still connected by videoconference in Albuquerque.

    "Objectively, 99 out of 100 people would have understood that a sexual proposal was being made," Pennington said. "What Mr. Berkheimer's side of the story (is), I don't know. I'm sure he has a side," he said.

The real significance of both stories isn't that male judges seemingly abused their judicial power to solicit sex from women brought before them, but that judges possess power that can be abused so blithely.  If not for the judges' own stupid / hubristic miscalculations, neither incident would have come to light.  How many judges avoid making such miscalculations?

A month ago Slate surprised me by coming out in favor of the 19th century.  This from a magazine that tells you how its reporters voted in the presidential election, and I don't think anyone would confuse them for the staff of the American Spectator.  And yet it publishes a piece advocating a return to the Victorian legal doctrine that a rape conviction cannot be based on the woman's word alone.  (See post 280.)  

The article argued that prosecutors, that tribe of troglodytes, prosecute way too many rape cases: "Mike Nifong did what prosecutors almost always do when a complainant comes to them alleging a sexual assault: He took his complainant at her word and went full speed ahead with a prosecution." 

Curious to know whether there's any truth to that? 

Last year the Alaska Justice Forum published a study of sexual assault case processing in Anchorage.  Since Alaska is by far the national leader in rapes, leaving my New Mexico to run a distance second, the study perhaps included rather more cases than you might imagine.  (Alaska's lead is so pronounced as to suggest they're including offenses that other states discreetly disregard.) 

The Alaska report looked at the 1,235 sexual assaults reported to the Anchorage Police Department during the first four years of the century.  "Data were collected on 1,052 (98%) of these reports. Of these 1,052, 188 (17.9%) were referred for prosecution and had reached final disposition prior to data collection."   That sounds like it's describing two categories - those referred and those finalized - but elsewhere the report makes clear that the 17.9% includes 100% of the referred cases.  The other 82.1% of reported sexual assaults weren't even referred the district attorney.

Of the small minority of cases that made the move from detective's desk to DA's cave, only 127, or just over two-thirds, were accepted for prosecution.   And the great majority of those (87.4%) resulted in conviction.

So in the state with the highest rate of forcible rape in the country, prosecutors "went full speed ahead" on 12.1% of reported sexual assaults.   But then, that's just Alaska.  What's it like elsewhere?

Ten years ago, psychologists Patricia A. Frazier and Beth Haney published an article entitled: "Sexual assault cases in the legal system: Police, prosecutor, and victim perspectives."  Their article begins by examining prior research, much of it dating from the 1970s, which showed that about 60% of sexual assaults were reported to authorities, of which about 40% led to an arrest, of which about 50% were charged with felonies, of which about 67% resulted in convictions. 

So if you have, say, 188,960 sexual assaults in a year, about 113,376 are reported to police.  A suspect is arrested about 45,350 times.  And about 22,675 people are actually charged with a crime.  So 11.9% of the total number of cases result in prosecution. 

Frazier and Haney themselves conducted an in-depth study of sexual assault cases in an unnamed Midwestern metropolis.  (The fact that both researchers were, at the time of the study, affiliated with the University of Minnesota doesn't necessarily give us as clue as to the name of the city.)  During the period of their study, 569 sexual assaults were reported.  In 279 of those cases, a suspect was identified.  In 187, the suspect was questioned.   127 cases were referred to the prosecutor.

Two of the referrals were in juvenile cases, so those were dropped out of the study.  Of the remaining 125 cases, 95 were accepted for prosecution.  Several cases involved the same defendant, so that worked out to 91 separate prosecutions.  Ninety of those were for criminal sexual conduct and the other was for robbery and assault.

So in this unnamed Midwestern burg, perpetrators of sexual assault avoided prosecution in a mere 83.4% of cases reported to police.  Prosecutors went "full speed ahead" in a full 16.6% of the reported cases.   (I'll pause for a second to allow you to gasp.)   Those 91 cases produced 69 convictions; seven cases were unresolved at the time of study, or had been transferred to another jurisdiction; and 15 cases were dismissed, all but one of those by the prosecutors themselves, apparently.  (The authors go a bit overboard in avoiding legal jargon.)  There was apparently one directed verdict, but no jury acquittals.

Pretty scary, huh?  You can practically hear the jackboots on the icy pavement.  No wonder Slate is calling for a return to the good old days.  Next up: Jacob Weisberg launches a campaign to repeal the 19th amendment.

Incidentally, the idea that 60% of sexual assaults are reported to police?  Old news.  Try 38.3%  (table 91).   

How corrupt is government in America?  If you ask Americans, the answer is: Not so clean.   Transparency International's Corruption Perceptions Index is a sophisticated statistical melding of various surveys intended to measure public perception of corruption in governments around the world.  In the latest edition (click on the "media pack" link), the United States ties for 20th place with Chile and Belgium, just ahead of Spain, Barbados, Estonia and Malta -- the last of which has been the scene of a long-running, fairly spectacular judicial corruption scandal.  (See post 71.)  

We're behind all the Western European nations except Spain and Portugal, and they're nipping on our heels at # 23 and # 26, respectively.  Well, Greece is in 54th place, but that dismal score tends to confirm the geographical point that, while Greece is the source of Western European civilization, it's not really part of Western Europe. 

In their most recent report, which focuses on corruption among judges and their staff, TI tried to tease out perceptions of corruption in the judiciary as opposed to the government as a whole.  After all, we all know that cops and lawyers can be paid off.  "Can judges and court staff take comfort from the hypothesis that respondents often think of lawyers and police when asked about judicial corruption, and not the actual arbiters of justice?  According to this special edition of the Global Corruption Barometer, the answer is 'no.'"  [page 12]

When asked specifically about corruption among judges, Americans rank their judges just slightly more corrupt than those of ... Greece.  (See post 215.)  We're only three places ahead of Romania, a nation that is constantly in the news for its corrupt judiciary.  We're behind Kenya, Colombia, the Philippines, South Africa and Italy.  [page 13]

How is that possible?  Well, methodological flaws provide one obvious explanation, although I would have to think that the semi-science of polling is probably more developed in the United States than anywhere else in the world.  That is, I'd be more inclined to suspect distortions in surveys conducted in, say, Colombia, with its American-sponsored low-intensity civil war, than those conducted in such a thoroughly market-segmented population as ours.   If so, that means the international comparison might be off, but not the percentage of Americans who perceive their judiciary as corrupt.

Another explanation for public perception of judicial corruption seems at first comforting, and that is: Americans have much higher expectations of their judiciary.  For instance, only 2% of citizens of the United States and Canada report paying bribes to judges, which is twice as high as the number of bribes reported in Western Europe (including poor old Greece) but much lower than the numbers in every other geographical region.  [Page 11, table 1]  So when Americans describe their judiciary as corrupt, they're not necessarily talking about corruption in the crude -- and filmable -- sense of cash in an envelope.

TI says the four problems most commonly identified in country studies of judicial corruption are the following:

1.  Judicial appointments  Failure to appoint judges on merit can lead to the selection of pliant, corruptible judges
2.  Terms and conditions  Poor salaries and insecure working conditions, including unfair processes for promotion and transfer, as well as a lack of continuous training to judges, lead to judges and other court personnel being vulnerable to bribery
3.  Accountability and discipline  Unfair or ineffective processes for the discipline and removal of corrupt judges can often lead to the removal of independent judges for reasons of political expediency
4.  Transparency  Opaque court processes prevent the media and civil society from monitoring court activity and exposing judicial corruption.  [Executive summary page 4]

All four of these problems are abundantly present in the American judicial system, though not always in the sense intended by TI.  Many details are much different here than in most Third World or Newly-Independent countries.

As for number 1, TI devotes a special section to the role of campaign contributions in American judicial campaigns [pages 26-31], and no one can seriously doubt that many contributions are the products of lightly-disguised extortion.  Judicial elections encourage gangster judges, allowing those so inclined to use their judicial power to run protection rackets: "Nice business you got here.  You must be proud.  What a shame that you got tangled up in that bet-the-company litigation.  Incidentally, I'm holding a fund-raising event next weekend."

Unfortunately, the only alternative to judicial elections that anyone in America has figured out is back-room political deals, in which wannabes pay for their nominations by contributing large sums of money to prominent politicians or otherwise making themselves politically useful.  (See post 235.)  The late Judge Richard Arnold, for instance, who since his premature death seems to have apotheosized into a reincarnation of Learned Hand ("the greatest judge never to serve on the Supreme Court"), lost two congressional races before taking a water-carrying job with Arkansas Governor Dale Bumpers, who then went to the U.S. Senate, from which post he could boost his aide into a federal judgeship. 

It doesn't make Arnold any less distinguished a judge to acknowledge that he acquired the opportunity to distinguish himself only by first paying considerable political dues.  Nor does it denigrate him or any other federal judge to say that the way we pick our federal judges is nothing fancier or more edifying than Andy Jackson's spoils system.  (See post 85 and post 165.)

As for number 2, whether or not federal judges are underpaid in any realistic sense doesn't matter: they have a Chief Justice of the United States telling them they're so drastically underpaid it's a "constitutional crisis."  New York's judges have apparently been driven insane by their low pay - they're seriously talking about filing suit against the legislature.  It must be said, however, that some of the state's non-lawyer magistrates are paid peanuts.  (See post 172.) 

As for number 3, dealing with judicial discipline – Well, it can be arbitrary and political, even if the politics involved are more refined than a simple question of which party one belongs to.  (See post 286 and post 287.)  Judges at the top of the heap are immune from ethical rules, provided only that they avoid getting convicted for major felonies.  (See post 198.)  Judges control the system for professional discipline of lawyers and use that to their advantage, suspending or even disbarring lawyers who expose judicial bribe-taking.  (See post 12.) 

And then we get to number 4.  The American judicial system is thoroughly opaque.  Every lawyer knows that newspaper accounts of judicial proceedings are generally uninformative to the point of being misleading.  You can read a lengthy article without ever finding out what actually happened.  Partly that's because journalists are ignorant or biased, partly that's because lawyers won't speak candidly about their cases because their job is to spin, but mostly it's because judges want it that way. 

The ever-entertaining New Jersey Supreme Court came right out and said it: "In an ideal world a free press would seek to foster fair trial rights by not circulating inherently prejudicial publicity at least during a time of trial."    That is, in an ideal world, a free press would not exercise its freedom.  Citizens would have no right to know what their government was doing (or failing to do) on their behalf "at least during a time of trial" and maybe the rest of time, too.   After all, what goes on in the courtroom is so extremely important to society that society needs to be kept in the dark about it.  (Think Dick Cheney and you get the idea.  Almost every practice of the Bush Administration that liberal intellectuals describe as trampling on the Constitution has its precedent in the judicial branch.  See post 261.)

But the most pervasive source of corruption in the American judiciary escapes TI's generalizing list, for the simple reason that our judicial system is so much more developed than those of most developing countries.  Judicial dependence in the sense intended by TI -- political bosses telling judges how to rule -- is hardly unknown in America, but I don't think anyone could seriously believe it's nearly as pervasive here as it is in many other countries.

Our judiciary is very independent.  But that, by itself, is neither a good nor a bad thing.  It depends on: Independent from what?  The biggest source of judicial corruption in America is judges' independence from democracy and from the law itself.  When "the law" -- and, in particular, "the Constitution" -- means nothing more than what a judge or group of judges says it means, we have passed from judicial independence to judicial autonomy.  We are returned in time to 1775, to an America ruled by a monarchy resisting the very idea of popular sovereignty.

 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.