JUDGING CRIMES

However much the overly-elaborated Freudian edifice revealed about Freud himself, his technique of free association remains one of the most revealing windows into the human soul.  For example, if I were to say the phrase "3-year-old girl with gonorrhea," someone outside the legal system might think: "heartbreaking - family dysfunction - years of therapy - what happens when she grows up and has kids of her own?" 

A prosecutor might think: "emotionally-wrenching - system rigged against the victim."  A Wall Street Journal editorial page writer would think: "McMartin Preschool - hysteria - intrusive nanny state - out-of-control feminists - must recycle the same column again."

A justice of the Kansas Supreme Court, by contrast, would think: "eating cake."

See, that's what makes judges different from you and me.  Some people think in images, some people think in words, some people allow reflexive ideology to substitute for thinking, and a select minority think in terms of festive desserts.  Only the latter can ascend to the highest rung of the judicial hierarchy in Kansas.

(I've been told that within the concrete-bunker walls of Topeka's Judicial Center, medical malpractice is lime Jell-O with embedded fruit cocktail, but I haven't been able to confirm that.)

I'm not kidding about the cake.  Ridiculing, but not kidding.  The Kansas Supreme Court really and truly did issue an opinion last week in which the justices compared prosecuting the case of a three-year old with gonorrhea to the eating of cake.

Without a dissent.  All seven of the justices thought that was a perfectly reasonable thing to put in a published opinion.

Of course, in the inconceivable event that the justices were asked to explain themselves, they would say they were just using one of those clichés, like "the exception swallowing the rule," with which judges assure us that their mental slot cars remain on the track.  

The issue in front of the Kansas court was whether hearsay evidence should be admitted against the man who, the jury found beyond a reasonable doubt, was the source of the little girl's gonorrhea.  "Hearsay" means essentially everything you know.  How do you know your own name and address?  Somebody told you.  How did the justices of the Kansas Supreme Court find out they had been appointed?  Somebody told them.  How do you know I wrote those words?  You just read them.

In fact, judges theoretically decide all their cases on the basis of nothing but hearsay, which they call "authority" or "precedent."  When judges want to compliment a colleague they credit the colleague with writing  a "scholarly" opinion, which means an opinion stuffed like a French goose with hearsay in the form of quotations from other, previous cases.

Yet every American jurisdiction prohibits juries from hearing "hearsay."  Because the prohibition would be so silly if taken literally, lawyers and judges tacitly agree that most forms of hearsay (names and addresses, job titles, and so on) don't count, and of the few items remaining, most are admissible under one of literally dozens of exceptions.  The hearsay rule might be compared to a shower curtain made out of cheesecloth - it's a barrier, all right, but it doesn't keep your bathroom floor dry.

Kansas, for instance, recognizes 25 official exceptions to its hearsay rule, some of which have subparts and one of which includes "statements admissible on ground of necessity generally", which in technical legal parlance is called a "gaping loophole."

In the case of the three-year old with gonorrhea, the Kansas Supreme Court ruled that the jury should have been prohibited from hearing some hearsay.  (The precise legal issue doesn't matter, although the Kansas court managed to get it preposterously wrong.  The two things I would have thought no one could possibly believe about Justice Scalia were that he was unsure about his meaning or shy about expressing it.  But I would have been wrong - the Kansas justices evidently believe one or the other.)

All you need to know is that the court rejected an argument to the contrary made in a friend-of-the-court brief by the American Prosecutors Research Institute.  Here's the cake quote from last week's opinion:

We also observe that under the Institute's argument, the prosecution is allowed to have its cake and eat it too: The victim is too young to be competent to testify, as the district court found with 3-year-old F.J.I., but not too young to have her statement placed in evidence by the State with no attendant defense right to confront and cross-examine.

Exactly -- precisely -- the same point could be made about almost all hearsay ever admitted at any trial, civil or criminal.  That's the thing about hearsay: it's a statement made outside of court.  Except when it's used to attack or bolster the credibility of a witness, or jog the witness's memory, the opposing party has no opportunity to cross-examine the speaker, because by definition the speaker spoke the words while not sitting in that straight-backed chair next to the judge's desk.

The weird thing is that Kansas Justice Lawton Nuss, who wrote the opinion (and who sports a Wyatt Earp mustache, perhaps out of defensiveness about the German meaning of his name), apparently thought he was making some kind of crushing retort to the Institute, when in fact he was saying the most obvious thing that could possibly be said about hearsay evidence.

But that doesn't mean that Nuss's opinion is merely fatuous.  It's extraordinarily revealing, as if Justice Earp had revealed on YouTube that he was naked under his robe.  What he was saying was that the court's job isn't to seek justice, or enforce democratically-enacted laws, or protect small children from harm.  No, the court's job is to keep the playing field level between the parties in court.

This is the sense of "fairness" employed in too many American criminal courts, taking into consideration only what happens inside the courtroom and trying to make the lawsuit a fair fight.  The ideal is parity between the parties.  The Uncle Wiggily Game is fair in this sense - your kid can beat you even if you don't throw the game.   (See post 115.)

Nuss's Nusskuchen remark reveals that he sees the judiciary's role as making criminal trials resemble the Uncle Wiggily Game, keeping the odds of victory relatively even between the players - that is, between the lawyers.  It was unfair for the trial judge to permit the prosecution to introduce the child's statement (which I think is what Nuss was trying to convey by selecting that particular cliche from the court's supply closet) because it increased the likelihood that the defense lawyer would lose.  (Professor Barton helped to explain this mindset - see post 275.)

And, when you get right down to it, who can blame the justice for caring above all else about keeping his fellow lawyers from getting stuck with loser cases.  After all, what could be ickier than allowing yourself to identify with a raped child?

Judith Herman's Trauma and Recovery: The Aftermath of Violence - from Domestic Abuse to Political Terror is a powerful book about the core concerns of this blog.  I'll have more to say about it in subsequent posts.  (The list of planned follow-ups seems to be expanding faster than the time to follow-up in, but I'm banking on soon discovering an anomaly in the space-time continuum.  They always show up when most needed, after all.)

The basic idea of the book is to synthesize research into the specific forms of trauma, and the specific paths to recovery, experienced by Holocaust survivors, combat veterans and victims of criminal violence.  In one way it's hardly a surprise to discover there are many parallels.  But in another way it's deeply disturbing to realize that we, in our phenomenally-violent country, are every day creating more Holocaust survivors.  It's just that we, with our American individualism as opposed to German industrial efficiency, create them one by one rather than en masse.

In an afterword to her book, discussing some of the critical response it generated, Herman writes: "[M]oral neutrality in the conflict between victim and perpetrator is not an option." 

This fragment of a sentence will be the motto of this blog, because it captures what is most objectionable about our criminal justice system.  It was devised to be society's response to the perpetration of violence, but it's in the hands of a professional elite that prides itself on maintaining a pose of moral neutrality. 

Probably most judges who are articulate enough to put the thought in words would say that they seek procedural fairness, a neutrality within the courtroom only.  But events inside the courtroom have consequences outside the courtroom.  (See post 224.)  The very conception of procedure as something distinct from the proceeding, and the related concept that the result of a proceeding is distinct from the proceeding itself, are two of the purest examples of the mechanical mental process that law students are trained to engage in as a substitute for thinking.  (See post 137.) 

Moreover, "fairness" is a word with many meanings, and one of them is making sure that the contest isn't wholly one-sided.  (See post 115.)  And, of course, it's entirely natural for judges to identify with fellow lawyers, and to be reluctant to see a likeable colleague getting pummelled.  So a great deal of what is packaged as "fairness" really boils down to giving defense counsel an appreciable chance of winning the case - or, in abstract terms, to dividing the question of conviction/acquittal from the prior question of guilt/innocence. 

I don't think anyone in the business would dispute that even a guilty defendant is sometimes entitled to acquittal.  Sometimes the proof of his guilt just isn't there.  The great trend of the past half-century has been to expand the pool of guilty people entitled to acquittal.  Which is to say: every day our criminal justice system comes closer to achieving a stance of moral neutrality as between perpetrators and victims of violence.

American judges often say that the rules of evidence withhold relevant evidence from juries to avoid the "risk of misuse."   The very idea that jurors can "misuse" truthful information is oddly inconsistent with the institution of the jury itself.  If we can't trust juries to use the truth in a reasonable way, why have juries at all?

When Justice David Souter tried to explain why jurors are prevented from learning about a defendant's criminal history, he slipped into the vocabulary of a cornpone preacher warning against the fleshpots of the city: such evidence can "lure a juror into a sequence of bad character reasoning." 

But unless we assume jurors are irrational (an assumption that would make the entire Anglo-American legal system absurd), the juror's line of reasoning must be logical or it wouldn't need guarding against.  And if it's logical, how can it be bad?  The best Souter could do was to say it's bad because it's forbidden by rules promulgated to prevent bad reasoning.

Justice Robert Jackson, usually as practical as Justice Souter is woolly-headed, did a little better when he said that the evidence is not rejected because it's irrelevant; "on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge."  

But this just adds a couple layers of begging the question.  When does persuasion become overpersuasion?  When it denies a defendant a "fair opportunity" to defend him- or herself.  And what's "fair"? 

In common speech "fair" has many meanings, ranging from good weather to blond hair.  When used in the law, though, it has just two core meanings.  First, there's even-handedness.  Mom's being fair if the cake is divided into pieces of exactly equal size (unless one has more frosting). 

Second, there's parity.  If every contestant has an equal chance of winning, the contest is fair.  If an adult and a 6-year-old are competing, the Halloween carnival's cakewalk is fair.  Monopoly isn't.

The schedule-makers of Major League Baseball pursue the first type of fairness.  Every team in a division plays the same teams the same number of times.  If Detroit wins 90 games but Cleveland wins 91, those victories will have come against the same competition (except, of course, for their games against each other). 

The schedule-makers of the National Football League aim for the second type of fairness.  The worst team of one season is, at least in theory, given the easiest schedule the next year while the Super Bowl champion has the toughest, increasing the likelihood that any given team will win half its games – but only half. 

(I realize this doesn't take into account the intra-divisional games.  Nor does it explain the Saints, the Cardinals, the Browns, the Jets, the Lions, or, until this last year, the Bengals.  Tinkering with the schedule only takes you so far.  But it's the thought that counts, at least for purposes of this post.)

When Justice Jackson said that some types of evidence deprive a defendant of "a fair opportunity to defend against a particular charge", he didn't mean the baseball type of fairness.  For the prosecution to "overpersuade" the jury with evidence that the defendant was caught doing the same thing twice before is fair in the same sense that it was fair to require the pathetic Boston Braves of 1935  to play the mighty Chicago Cubs. 

 Sure, the pitilessly symmetrical schedule meant the Braves lost at a depressing rate, but that wasn't the fault of the schedule – it was the Braves' fault for not signing better players to support their star center fielder Wally Berger.  Similarly, if the criminal defendant wants to avoid having his prior felony record flung in his face, he should take care not to acquire one.

"Overpersuading" the jury is unfair only in the football sense, because overpersuasion tends against parity between prosecution and defense.  In a case involving a confession, Justice Jackson wrote, "Any lawyer who has ever been called into a case after his client has 'told all' and turned any evidence he has over to the Government, knows how helpless he is to protect his client against the facts thus disclosed."   A trial in a case like that is like pitting the unbeaten Dolphins of 1972 against the Racine/Chicago/St. Louis/Arizona Cardinals of any year.