JUDGING CRIMES

"Historians have long winced at the crude ways that literary scholars and others have wrenched writings out of their historical contexts for aesthetic and other present-minded purposes." 

That's from Gordon S. Wood's collection of book reviews (or, really, essays using book reviews as take-off points), The Purpose of the Past: Reflections on the Uses of History, which is far more entertaining than any description can make it sound.  It was an unlikely candidate for the books-on-tape treatment but I'm grateful the publishers made an exception for it, because it made the weekend drive to Jemez Springs most enjoyable.

In another essay, analyzing a self-described political theorist's tendentious use of history to score political points, Wood writes: "There is nothing wrong with this ransacking of the past by political theorists.  Lawyers and jurists do it all the time.  But we should never confuse these manipulations of the past for present purposes with doing history."

The use of that pretentious word "jurist" is one of Wood's few false steps.  Lawyers and judges do indeed ransack the past for present purposes all the time.   That's what "legal research" is.  You start with the conclusion of your syllogism, add the major premise - the facts of the case - and then start searching for some legal authority to insert into the middle.  An intellectually-honest creme makes for a better Oreo, but in a pinch almost anything will do.   (I hope you don't mind if I don't pursue the cookie metaphor to its all-too-apt conclusion.)

 But sometimes, I'm afraid, Supreme Court justices, who don't enjoy / suffer the peer-review process that keeps historians in touch with reality, confuse this kind of purpose-driven ransacking of the past with genuine history.  I think we can now officially say that Justice Scalia is, historically speaking, delusional.

His recent Giles v. California opinion guarantees a good ten years of litigation and hundreds of incompatible decisions from around the country, so that's good news for all us lawyers practicing criminal law: there will always be something to slot into the middle of any syllogism.  Better yet, this ensures a steady stream of future injustices, which will help sales of my next book.  (See this unnumbered post.)  So I don't mean to look the gift horse in the mouth, not that doing so would tell me anything anyway.

But viewed as history, Giles and its predecessor Crawford are ...  pathetic.  Not simply in the abusive sense of that word, but in the sense of being so far removed from adequacy that you can't help feeling rather churlish to point out their inadequacy, like pointing out the tuning problems of the elementary school orchestra.

Though, of course, the kids are cute.  And, more important, they're trying. 

It's not so much that the members of the Supreme Court are incompetent historians - that's not really a surprise - but that they are wholly unaware of it, as evidenced by the supposedly-erudite Justice Souter's incredibly  fatuous remark: "I am convinced that the Court's historical analysis is sound". 

 Here are some of the key elements of that sound historical analysis:

• The correct interpretation of the 6th amendment depends on an analysis of the original intent of the Framers, but the identity of "the Framers" is never established.  They aren't people but a vague abstraction.
  
• "The Framers" all thought exactly alike and had no disagreements about anything.
• "The Framers" anticipated the passage of the 14th amendment in 1868, which made the 6th amendment applicable to the states.
  
• Rid your mind of any concept of the Constitution as a democratic document, expressing the political will of the people, as expressed in Marbury v. Madison and Federalist 78 (the source of all the ideas found in Justice Marshall's Marbury opinion).  Rather, reconceive of the Constitution as a top-down directive, imposed by "the Framers" on the passive people, because that way only the Framers' views count, greatly simplifying the matter.
  
• To determine the original intent of "the Framers," it is vitally important to examine the fewest types of sources available.  For example, do not, whatever you do, look at trial transcripts, even though those are available in any law library and on the web.   That would only complicate things and might not lead to the result you prefer.
  
• Also, don't look at contemporary newspaper reports or read history books, much less original sources such as private papers.  Rather, look only at legal treatises (the opinions of self-publishing egotists) and appellate opinions (although there was essentially no right to appeal in the few federal criminal trials, and state appellate opinions weren't systematically collected until Mr. West got busy a hundred years later).  The great thing about these sources is that their authors were self-important elitists of the same kidney as modern Supreme Court justices, so their views are emotionally satisfying.
  
• To achieve an ideal result, it is essential to commit as many classic historians' fallacies as possible. 
  
• Giles, for example, relies almost exclusively on inferences drawn from the absence of evidence.  (We have no evidence that Julius Caesar washed behind his ears, so therefore the buildup of layers of dirt from Britannia and Gaul was just dreadful.)  
• Crawford anachronistically ascribed to 18th century folks the concerns of 21st century lawyers about the technical admissibility of hearsay, when as a matter of easily-verifiable historical fact lawyers had very little to do with criminal law as practiced in the 18th century, and most lawyers practicing in small towns had a level of formal education roughly comparable to that of jailhouse lawyers today.
• When it helps your argument, don't be afraid to make up evidence.  That's what Justice Scalia did when he ascribed to "the Framers" an obsession with Sir Walter Raleigh.  (Here it is again.) 
  

I could go on, and I probably will in later posts, but it makes me feel like an impatient high school teacher.  But then, because I'm a softy, I'd probably give my 10th graders a do-over rather than flunking them all.  I'd say: "But this time, people" - I don't know exactly why high school teachers have to call their students "people," but apparently it's in the standard contract -- "I want to see some evidence of effort."

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.

Not real babies, of course.  They never say anything deserving of scorn.  But recently the Kansas appellate courts have ingenuously revealed things that more worldly-wise judges have learned to cloak in wordy euphemism.  The first case is officially "unpublished" and Kansas is one of those states that continue to hide their unpublished opinions, presumably because their authors have something to hide.

Here's the opening passage:

On December 16, 1994, an information was filed alleging that Downey had sexually abused S.R., a 2-year-old girl, in Reno County, Kansas, during September 1994. This is the fifth appeal. ...

At trial in March 2006, Downey did not deny he had sexually abused S.R. Downey's counsel argued instead that what “Downey did to that little girl was despicable. Absolutely despicable. But it didn't happen in Kansas.”

You can see why a case as complicated as that would take 11+ years to decide.  Downey thought his latest conviction should be overturned on the basis of prosecutorial misconduct, namely an improper argument by one of that tribe of evil trolls:

Downey first complains of the prosecutor's statement during closing arguments that the case was about the “innocence of a little two-year-old girl,” which Downey “stole ... for nothing more than greed, self-gratification, and his personal pleasure.” ..

[T]he effect was to argue the moral turpitude of Downey's actions rather than criminal liability under the elements of the crimes charged. Since trials are conducted to determine criminal liability, prosecutors “should refrain from argument which would divert the jury from its duty to decide the case on the evidence.”

I don't think I've ever before seen a court come right out and say that morality has nothing to do with the criminal law, and that it's wrong to "divert" jurors from their task by reminding them that there's a point to it.  

(Maybe all the court meant was that there wasn't any proof that the 2-year-old was innocent about sex prior to the  moment she found herself alone in Downey's company, so that the prosecutor was arguing facts not in evidence.)

But that's nothing in comparison to what the reliably-fatuous Kansas Supreme Court (see post 284 and post 299) wrote in a recent opinion that more self-aware fatuous judges would have hidden in the convenient "unpublished" file. 

The case concerned a difficult constitutional question: whether a criminal defendant has a right to lie under oath to the jury without fear of contradiction.

The answer, as every lawyer active in the field of criminal law knows, depends on what form the contradiction might take.  If it's, say, in the form of the defendant's own prior words saying exactly the opposite of what he's sworn to from the witness stand, then it's pretty iffy, thanks to a 1964 Supreme Court opinion that outlawed the practice of recording the unguarded things people say even when charges are pending against them. 

(It's unconstitutional to record such unguarded words only if the defendant is represented by a lawyer, so indigent defendants, required to wait for the creaky wheels of the public defender bureaucracy to turn, have a window of vulnerability that those with a lawyer on call need not worry about.  The point, I should hasten to add, isn't that the wealthy are more deserving of protection from the law, but that lawyers have a right to be protected from a client who blows his own case.)

So here's the Kansas Supreme Court explaining why it was wrong to allow a jury to learn that the defendant said something in private that completely contradicted what he said under oath from the witness stand:

Although trial judges are called upon to determine the admissibility of evidence to effectuate the courts' truth-seeking function, there is nothing in our federal or state constitutions that requires us to make truth-seeking the overriding principle that trumps our constitutionally protected rights. ...

The purity of justice under our Sixth Amendment's constitutional right to counsel cannot be polluted by the subversive conduct of deceitful acquisition of evidence.

There you have it.  Truth cannot be allowed to pollute the pure justice that only court-approved lying under oath can achieve. 

Note a couple of other things.  The acquisition of the evidence was "deceitful" only in the sense that the informant allowed the defendant to assume he wasn't an informant, and the police allowed the guy's lawyer to assume they weren't employing the informant.  (Which, under Supreme Court precedent - or, if you prefer, under the sixth amendment - they shouldn't've.)  But any time a judge suppresses evidence, he or she is being deceitful in exactly the same way, by allowing the jury to assume that there isn't any additional relevant evidence to learn about.

And the defendant's much more direct deceit - his outright lying in court - is less polluting to the purity of justice than permitting the jury to learn about it.

The interesting question is: Do you think anyone at the Kansas Supreme Court actually thought about any of these things before publishing the opinion? 

Last Wednesday the Illinois Appellate Court issued a "vacuously, smugly, and unconsciously foolish" opinion in a carjacking case.  According to the juries that heard their separate trials, Shakina Feazell and Dion Banks (who, supposedly, met in drug rehab, that romantic rendezvous) went to the Ford City Shopping Center on Chicago's southwest side.  (The mall got that funny name - "Ford City" isn't a municipality - because it was the site of a WW II defense plant.) 

Banks and Feazell didn't go to the mall to ride the merry-go-round.  They wanted to trade in the Toyota, which they'd already been driving for three weeks,  for some new wheels.  Three weeks, after all, is a long time to be riding around in a stolen vehicle.  It's just asking for trouble.

Meanwhile, Rose Newburn, a 40-year-old nurse, had just taken her two sons, 4-year-old Quincy and 5-year-old Tyrone, for haircuts, and decided to stop by the mall on the way home.  The boys were in the back seat.  Banks and Feazell pulled up next to her Dodge Intrepid.  Banks got out, pointed a gun at Ms. Newburn, and told her to get out of the car.  Ms. Newburn said no and Banks shot her through the window, opened the door and dragged her out, and left her in the parking lot to bleed to death.

Then Banks got in the car and drove off, with Feazell following in the Toyota.  A neighbor, who apparently heard the story from the boys' father, told a Sun-Times reporter what happened next:

 "He drove to the other side of the mall, and the kids were in shock, and (the youngsters) said something or the driver realized the boys were in the car," Patterson said. "Then he stopped the car and said, `Get out.' "

The carjacker left the boys standing in the mall lot, according to officer Edward Alonzo of police news affairs.

Or, in the no-big-deal words of the Appellate Court, "Before exiting the mall, Banks let Quincy and Tyrone Newburn out of the car.  The boys ran back to where their mother lay in the parking lot."  If you didn't know better, you might think Banks had been operating the carousel or something.   But Banks' jury took a dimmer view and sentenced him to death.   Unfortunately for him the sentence was handed down after Nobel Peace Prize candidate George Ryan had left office - indeed, after Ryan was already under indictment.

His accomplice, Shakina Feazell, got off easier at trial - and hit the jackpot on appeal.  (I don't mean to be disrespectful,  but doesn't "Shakina Feazell" sound like a character out of The Hitchhiker's Guide to the Galaxy?)

The Appellate Court ruled that Ms. Feazell was denied her constitutional right to a fair trial when the trial court allowed a police detective to describe his post-murder interview with her. 

Now, murder confessions are suppressed so routinely that the mere suppression doesn't come close to qualifying an appellate opinion for inclusion in the Fatuity Watch.  Confessions are commonly suppressed when a suspect isn't given Miranda warnings, asks for a lawyer, or is questioned after an illegal arrest.  Less commonly (these days), confessions are suppressed because the suspect was mistreated by police.

None of that occurred in People v. Feazell.  Ms. Feazell didn't even confess: she admitted planning to shoplift at the Ford City mall, it's true, but she wasn't charged with that, since she never got inside the mall doors.  She said she was totally surprised when her boyfriend pulled out the gun and shot Ms. Newburn, and afterwards she tried to get him arrested by attracting police attention.

No, the information that should have been concealed from Ms. Feazell's juries wasn't her answers to the detective's questions.  Rather, it was the questions themselves.

Incidentally, I don't recall ever previously reading another appellate opinion in which the facts are expressly viewed from the point of view of the convicted defendant, ignoring the prosecution's evidence.  I've read lots and lots of cases in which author views the facts that way, but in every case I can recall the author put on a show  of being objective.  This opinion comes right and out and says that the court is adopting the convicted murderer's version of the facts as its own ("For the purpose of simplicity, most of the testimony will be related in the context of the defendant's account of the events.").  I'm not sure if that's commendable honesty about the judges' bias, or merely a technique for concealing from the reader inconvenient facts that would make the court's decision seem even more ridiculous.

Because it's ridiculous to say that a jury is permitted to hear a suspect's answers to a detective's questions, but not the questions themselves.  The Washington Supreme Court, no stranger to fatuity itself (see post 282), explained why earlier this summer.   A person's responses to questions "would not make sense" without the questions.  It's not exactly counterintuitive. 

But in the realm of legal technicalities, where the ridiculous is normal, the argument can be made that the Constitution required the officer to describe his questions without actually letting the jury in on the secret of the precise words he used.  He should have paraphrased himself.  He should, in short, have lied to the jury.  That argument can be made, but only a court steeped in fatuity would buy it.

If only the jury had received a distorted idea of what Ms. Feazell meant by the words she spoke to the detective.  Then she would have had a fair trial.

UPDATE: The court withdrew the original opinion and came out with another one arriving at the same conclusion based on the same comical reasoning.  Presumably there's a difference between the two opinions, but the court itself is careful not to reveal what it might be, since to provide guidance to readers would be to admit that it was capable of producing a flawed opinion.

Wouldn't you think people in Hawai'i would have better ways to spend their time than this?

On the night of April 13, 2002, Fields was home with his then-girlfriend, Melinda Staggs (“Staggs”) and a friend, Dave Richards (“Richards”). Fields and Richards were eating dinner when Fields received a phone call from Staggs' mother, Patsy Pepper (“Pepper”), who threatened to “com[e] over to the house to kick his ass and kill him.” Pepper and several men thereafter arrived, and a fight ensued. Staggs was struck multiple times while attempting to protect Fields, who was wearing a colostomy bag and recovering from an operation.

All things considered, I think I'd rather listen to some slack-key guitar under the palm trees as the soft onshore breeze ruffles my aloha shirt and the lava glows gently in the tropical twilight.  But that's just me.

The landlord calls the cops and Pepper leaves.  More than that, she (ill-advisedly) leaves Fields alive.  Shortly afterward (according to what Staggs told the cops) Fields sneaks up behind Staggs as she's lying on the couch, holds her down by her throat and punches her in the face.  The landlord calls the cops again and Fields is charged with domestic violence.

Comes the trial and surprise!  the victim doesn't care to cooperate.  On direct examination by the prosecutor, she claims to have no memory of the evening.  But on cross-examination by her boyfriend's attorney - it's an amazing thing, memory - she remembers all kinds of things, among them the following:

Q. Do you-do you under-do you recall, perhaps, any incident involving Mr. Fields' surfboards-surfboard?

A. Um-hmm.

Q. And might that involve a threat to Mr. Fields that if he left that you were going to break his surfboard?

A. I think that may have occurred.

Q. Okay. Do you recall laying on his board in such a way, I guess maybe it was between the table and the chair, and then threatening to sit on it that-something like that?

A. Yeah, I do remember that.

Now, I went to a college that had something of a reputation for attracting surfers (here's a shot from Campus Point explaining why), and yet I cannot recall a single conversation in which the terms "colostomy bag" and "surfboard" were used in connection with the same person.   But then, how's that old Beach Boys' song go?  "Co - co - co, colostomy ..."

Anyway, the jury didn't buy the surfboard-defense claim and Fields was convicted.  On appeal, his attorney did a wonderful job of getting Hawai'i's justices all tied up in ridiculous knots.  The trial judge had allowed the police officer to repeat what Staggs had told him when she was still in pain from the attack, and which she claimed to have forgotten all about by the time of trial.  This, the defense claimed, violated the defendant's sixth amendment right to confront the person he beat.

The problem the justices encountered was, perhaps predictably, Justice Scalia, who in his infamous Crawford opinion said both of the following things about letting the jury learn what a crime victim said to police officers at the scene:

1.  Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.

2. Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.

Translated into plain English, statement # 1 establishes a clear-cut rule: the crime victim's words must be concealed from the jury unless the victim is "unavailable" to testify at the time of trial.   Statement # 2 is equally categorical: the crime victim's words may be freely  admitted into evidence so long as she testifies, as Staggs did.  

So the lesson is plain: a jury may be permitted to learn certain truthful information about the incident if, and only if, the speaker is both (1) unavailable and (2) available. 

Most judges, being well-used to dealing with cognitive dissonance, have managed to accommodate Justice Scalia's two clear-cut rules pretty well.  Not the justices of the Hawai'i Supreme Court, I'm sorry to say.  This is from the majority opinion:

However, Crawford does not state that a declarant is constitutionally “unavailable” only if the declarant is not present at trial. ...  Thus, the appropriate principle gleaned is ...  not that a hearsay declarant's presence at trial mandates the conclusion that the declarant is constitutionally “available” ( i.e., not “unavailable”).

The dissent's misapprehension of Crawford again demonstrates its improper equation of the constitutional “unavailability” paradigm with the inquiry whether the hearsay declarant is physically present and available for cross-examination. ... [The dissent] concludes that the hearsay declarant's physical presence at trial establishes the declarant's “availability” ( i.e., lack of “unavailability”). ...

As previously mentioned, the dissent takes the federal courts' use of the phrase “available for cross-examination” to mean constitutionally “available” ( i.e., not “unavailable”). Thus, the dissent believes that an application of Crawford here mandates the conclusion that Staggs was constitutionally “available” despite the fact that her memory loss would render her constitutionally “unavailable” ...

To the contrary, we read the federal courts' use of the phrase “available for cross-examination” as taking an intermediate step ... not as establishing the declarant's constitutional “availability” ( i.e., lack of “unavailability”) as a witness for the prosecution.

The really disturbing thing is that that mass of words, even as it descends into gibberish (i.e., lack of "sensicality"), still makes more sense than the dissent, which is 86 pages long and consists of XXXVI sections, and builds on the assumption that the judge and jury had no choice but to believe that Staggs really had no memory of the incident.  A constitutional right to foolish factfinders, I guess, or at least a foolish Hawai'i Supreme Court.

If only the landlord hadn't called the cops the first time.  Pepper could have finished this thing before it got out of hand.

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?

In the late 1970s, while I was checking into the only type of motel I could afford (who keeps fleas in a bag, anyway?) in a town that the freeway forgot, I walked into the middle of a political discussion.  The night manager, an obese middle-aged woman, was saying: "If that SALT II treaty is ratified, I guarantee you that the Russians will be here within two years." 

When people say such superlatively preposterous things, the impulse is to wonder what could possibly be going through their heads.  Had the motel manager stayed up too many nights listening to Art Bell, or read a John Birch Society pamphlet while hypnotized?  Or were her foreign policy views a result of the same chemical imbalance responsible for her obesity?

When judges say equally preposterous things, it's usually all-too-obvious what was going on in their heads: a mental process that bears only the most superficial resemblance to thought.  Take Washington's Supreme Court Justice Richard B. Sanders, whom we've met before.  (See post 198.) 

In a recent concurring opinion, Sanders agreed with his colleagues on the Washington Supreme Court that the trial court erred by permitting a jury to hear certain evidence.  That evidence, while indisputably relevant to the jury's task of determining the defendant's guilt, should have been concealed from it.  But Sanders thought his colleagues were a little hasty in deciding the trial court's error was "harmless" – that is, that it probably had no effect on the jury's verdict.  He wrote:

[W]e "have no right to trench upon the province of the jury upon questions of fact."  Jensen v. Shaw Show Case Co., 76 Wash. 419, 421, 136 P. 698 (1913).  See Wash. Const. art. I, § 21 ("right of trial by jury shall remain inviolate"); U.S. CONST. amend. VI (guaranteeing trial by jury).

Modern constitutional criminal law consists of very little - so little as to approach nothing - except trenching upon the province the jury upon questions of fact.  The meaning of phrases such as "fourth amendment violation" and "Miranda violation" is that the jury was permitted to decide the facts of a case based on too much information.  It was permitted to get too close to the unvarnished truth.

The Fifth Amendment privilege against compelled confessions excludes evidence that everyone knows is quite likely to be false.  (See post 241.)  It also embodies a belief about the moral relation between the state and the individual that was, until quite recently in our history, almost universally-held in our society.  But the judge-made exclusionary rules invented since 1961 serve neither purpose.  Their goal is quite different: to prevent the conviction of people who committed acts that democratically-elected bodies have declared illegal.

Now, judges have given a variety of reasons why concealing relevant evidence from jurors is more important than permitting the people to decide how to regulate their own social relations.  For example, they say that preventing the conviction of guilty people teaches police officers good habits, the way an electric shock teaches lab rats not to press a certain bars in their cages.

For present purposes I'm perfectly willing to say that the judges are, in every instance, correct to prevent the people from using the courts as an instrument of self-government.  The point is that almost the only device available to judges to implement their alternative, superior vision of government is to trench upon the jury's role as factfinder.

They "suppress" evidence obtained by police, meaning they prevent jurors from learning of its existence in order to forestall the danger that they might find it helpful in their deliberations.  Or they rule that the evidence is inadmissible under the rules of evidence, for example because it's too powerful for defense counsel to explain away ("its probative value is substantially outweighed by the danger of unfair prejudice"). 

They order separate trials so jurors deciding one conspirator's guilt won't draw reasonable, logical inferences from information pertaining to his co-conspirator.  (If the inferences weren't reasonable and logical, jurors wouldn't draw them – unless we believe that jurors are unreasonable and illogical, which would make our jury system absurd.)

Indeed, when Justice Brennan wrote the opinion belatedly acknowledging the long-neglected provision in Constitution that requires separate trials (the Framers had accidentally left it on top of the car at a gas station, and it took nearly two centuries of searching to discover it in the weeds next to the road), he did do so on the basis that jurors, being non-lawyers , were too stupidly emotional to handle that much information. 

(Though he, like most judges and Don Corleone, preferred euphemism and circumlocution: "there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.")

Criminal court judges limit the jury's power to decide the facts.  That's what they do.  Justice Sanders wasn't criticizing that.  On the contrary, in the case before him, he thought the trial court had made a mistake by permitting the jurors to learn as much as they did.

But even as he reaffirmed that the essence of the trial judge's role in criminal cases is to withhold evidence from juries, he wrote his "vacuously, smugly, and unconsciously foolish" concurring opinion saying that judges have no right to trench upon the jury's fact-finding role.

If Justice Sanders had thought for even a second about what he was saying, he would have recognized his self-contradiction.  But he didn't have to think.  He wrote legal prose instead.

Last week the New York Times ran several stories on New Jersey crime, including one headlined "Newark Battles Murder and its Accomplice, Silence."  It's already hidden from prying eyes in the archives, but it didn't say anything much, anyway.  (You can, however, still check out the cop-show atmospherics on the slide show and video.)  Could anyone really regard the following as news?

 With 40 shootings so far this year, investigators in the Fifth [Precinct, a 4-mile square area] have a practiced if unsatisfying routine.  A battalion of officers question potential witnesses, often turning up little more than blank expressions.  In recent years, there have been several chilling instances of witnesses being killed before they could testify, and the Essex County prosecutor has become increasingly wary of cases that lack physical evidence.

"No one wants to be accused of snitching," Sergeant Laterza said after even the victims at Seth Boyden [Terrace, a housing project] insisted they had seen nothing.  "These people have become so desensitized to the violence, it's almost become a way of life."

"Desensitized" seems a somewhat insensitive word to describe "a 14-year-old silently clutching his left thigh as he bled on the sofa of his aunt's disheveled apartment".  (Think what a difference it would make if only the aunt's apartment were heveled!)  As the article notes, most of Newark's murder victims are "young black men".  And where have we heard before about young black men being insensitive to pain?  Oh, yeah.  The South.  Before the Civil War.

 Well, I'm sure the quoted cop - to the extent he wasn't just saying what he expected the reporter wanted to hear - meant the bystanders were desensitized, not the victims.  But the bystanders who treat cops "like a band of pesky door-to-door salesmen, shrugging that they had witnessed nothing", are in fact being extremely sensitive to the reality that there are two governments in Newark: the one that occupies run-down government-owned buildings, and the one that actually makes things happen on the street.  

By coincidence (one supposes), just five days before the Times article appeared, New Jersey's intermediate appellate court issued its opinion in State v. Byrd.  The case involved a prisoner who had shared some advice with a fellow prisoner.  The fellow prisoner (Mr. Bush) had previously described to police how Mr. Byrd had killed someone.  Mr.  Byrd, upon learning this fact, expressed his concern for Mr. Bush's health, should Mr. Bush repeat his statement in court.  Mr. Bush took the advice in the spirit in which it was offered and refused to testify at Mr. Byrd's trial.

The Appellate Division announced that the issue before it was whether Mr. Byrd was entitled to have his manslaughter conviction reversed on the ground that he successfully intimidated Mr. Bush.  (That's not quite the wording the Appellate Division used - "The question presented is whether the trial court properly allowed introduction of an inculpatory out-of-court statement of a witness who refused to testify because defendants had threatened him with bodily harm if he testified against them." - but it amounts to the same thing.)

The New Jersey court ruled: If a thug successfully intimidates a witness against him, the thug is entitled to all the benefits naturally flowing from his initiative.  (Again, that's not quite the words the court used - "because N.J.R.E. 804(b) does not permit the State to introduce an inculpatory statement from a witness who refuses to testify because of threats to his or her safety made by the defendant, the trial court should not have permitted Detective Manzo to testify as to Bush's out-of-court statement" - but, again, it amounts to the same thing.) 

The court's reasoning is lame (lameness seems to be a habit with the Appellate Division - see post 254).  Its reason for deciding that it was wrong for the trial judge to allow the jury to hear evidence of Mr. Byrd's crime was ... that the issue was too important for it to decide.  I'm not kidding: "we are satisfied that given the significant and far-reaching implications of this proposed hearsay exception, such a change in the Rules of Evidence should be accomplished by our Supreme Court in accordance with [quasi-legislative rulemaking procedures] rather than by judicial opinion."

The change would be "far-reaching" in the sense that it would affect all defendants who intimidate or kill witnesses against them, and according to the Times that's a lot of defendants, so maybe the court was onto something, after all.   Why, if witness intimidation ceased to be a get-out-of-jail-free card, the number of shootings in Newark's Fifth Precinct might decrease!  Seth Boyden Terrace might become less dangerous for 14-year-olds!  Far-reaching indeed.

But the court's lameness goes beyond the comical incoherence of deciding an issue on the basis that it lacked authority to decide it - because, as the court actually admitted, it possessed that authority.  The New Jersey Rules of Evidence give it power to modify the rules "to the end that the truth may be ascertained and proceedings justly determined".   The judges just didn't want to. 

And this is the same set of judges that, just last March, invented out of thin air a rule that criminal defendants waive their sixth amendment rights unless they jump through a certain hoop.

So we have a court that uses its power to modify rules of practice only when the modification is insignificant and short-reaching?  That must mean that the sixth amendment right to confront witnesses in court is less significant than the right to benefit from killing the witness outright. 

Halfway across the country, and just three days later, the Indiana Court of Appeals confronted a similar issue and said, simply: "Although the Indiana Rules of Evidence do not contain a [provision specifying that a defendant who kills a witness forfeits his right to object on hearsay grounds to admission of the dead witness's statement to police], we see no reason why the doctrine of forfeiture by wrongdoing may not be applied as a matter of common law." 

The difference between the New Jersey and Indiana courts is that one accepts threatening and killing witnesses as normal, and accordingly regards any attempt to discourage the practice as a "significant and far-reaching" alteration in the state's legal culture.   The other doesn't.

If Judge James Earl Major had known when to quit, he wouldn't be remembered in this blog.  The time was 1943 and Major, who had struggled through an intermittently-successful career as a member of Congress (twice getting defeated for reelection, but each time coming back to win the rematch two years later), was enjoying the serenity of his new position on the Seventh Circuit Court of Appeals in Chicago.

He was one of a panel of three judges selected to decide the appeal of a group of German-Americans who had provided shelter and material assistance to family members from the Old Country.  That doesn't sound like a crime, does it?  - except that those particular family members had made the Atlantic crossing in a U-Boat and had landed by night on American beaches.  They brought along crates of explosives.

The other two judges on the panel have claims to our attention beyond Major's minor fame.  One was Sherman Minton, later a Supreme Court justice.   The other was Otto Kerner, Sr., a Cook County pol and father of the Illinois Governor and chairman of the Kerner Commission (appointed to investigate the 1967 riots), who resigned his governorship to follow Dad onto the Seventh Circuit, eventually ending his distinguished career in federal prison.  Given his Dad's prominence in Cook County judicial circles, it seems reasonable to suppose he should have wound up there, too.

The saboteurs themselves were tried by military tribunal, an incident that's attracted renewed attention lately.   But the aiders and abettors got civilian trials, and it fell to Judge Major to write the opinion overturning their convictions.   He cranked up the rhet-o-matic, employing the stemwinding style that was already anachronistic then but is still favored by judges today:

At this point it seems appropriate to emphasize that no principle is more firmly embodied in our system of jurisprudence than that a person shall not be deprived of life or liberty except upon a fair and impartial ascertainment of his guilt. Of the many rights guaranteed to the people of this Republic, there is none more sacred than that of trial by jury. Such right comprehends a fair determination free from passion or prejudice, of the issues involved. The right is all-inclusive; it embraces every class and type of person. Those for whom we have contempt or even hatred are equally entitled to its benefit. It will be a sad day for our system of government if the time should come when any person, whoever he may be, is deprived of this fundamental safeguard. No more important responsibility rests upon courts than its preservation unimpaired.  [136 F.2d 661.]

So far so conventional.  You can buy this kind of stuff by the case down at the Judges Shop.  The final exam at the National Judicial College (located in Reno, in tribute to that city's founding role in modern American jurisprudence), requires students to extemporize on these themes for fifteen minutes while submerged upside down. 

Major's basic point - that the purpose of a trial isn't to arrive at the right result, or even necessarily a justified one, but only to reach whatever result by the approved route - is the guiding principle of all criminal law in America today.  So long as the pipe meets specs, it doesn't matter what sludge moves through it.

But then Judge Major got carried away - or, rather, carried himself away to the Judicial Valhalla reserved for the "vacuously, smugly, and unconsciously foolish."  He just couldn't stop himself from adding:

How wasted is American blood now being spilled in all parts of the world if we at home are unwilling or unable to accord every person charged with crime a trial in conformity with this constitutional requirement.

Fighting Nazi Germany, fighting Imperial Japan, fighting Fascist Italy -  "how wasted", if federal appellate judges don't exercise their power to veto the verdicts of juries!

As Judges Major, Kerner and Minton went into print with those words on June 29, 1943, Auschwitz's fourth gas chamber was just four days old.   Americans were wading ashore in New Guinea and the Solomon Islands.  Patton and Montgomery were putting final touches on the plan to invade Sicily.  D-Day was still a year away.

But at least the GIs knew the lives they bled out onto the beaches hadn't been lost in vain.  Each dead soldier was doing his small bit to ensure that judges of the Seventh Circuit could vacate factually-accurate verdicts.  How that thought must have comforted many a boy in his final moments!

"Padre ... I just want to ... tell my girl ... I think she's swell ... and my folks ... I never stopped thinking about them ... and ...  it's getting dark ... Padre, hold my hand ...  I'm cold ... Tell me one thing, Padre.  I need to know.  The Seventh Circuit.  Are they still sitting in Chicago?  Are they still overturning convictions of people caught trying to sabotage the war effort?  They are?  Oh, bless you, Padre ... now I can die in peace, knowing my death isn't a waste ...."

Orwell long ago observed that unclear prose is usually evidence of unclear thinking.  So what are we to conclude about the following words written by a New Jersey judge?  The judge, Jack M. Sabatino, is describing the effect of Crawford v. Washington, the opinion in which Justice Scalia confessed that for over two centuries the U.S. Supreme Court  wickedly required all lower courts in the country to violate the Constitution's sixth amendment.  (See post 127 and post 238.)

Here's Judge Sabatino:

Crawford has dramatically affected the day-to-day prosecution of criminal trials and appeals across the nation. ... This sea change in criminal practice cannot be underestimated.

In response to Judge Sabatino, I would say: Crawford is no big deal.  There, see?  I've just proven that the sea change can be underestimated.

(Of course, it's possible Judge Sabatino's point was that a "sea change" cannot be estimated, much less under- or overestimated, because the cliche is  completely devoid of meaning.  Non-meaning, by its nature [or non-nature], resists estimation.  But, viewing his words in context,  I don't think that's what he was getting at.)

Sabatino isn't alone in his confusion about the meaning of a relatively simple English word.  A few years ago, England's Guardian ran this correction:

In an item headed, No to a DNA database ... we said, "The seriousness of the threat to individual liberty cannot be underestimated." Yes it can. The writer meant that the threat is so great that it cannot be overestimated or overstated. It is a frequently recurring error.

I picked up the link to the Guardian correction from the U.-Mass. Amherst's Department of Linguistics newsletter (researching a blog isn't for the faint-hearted), which reports the appalling datum that as of January 27, 2005,

A Google search for the two phrases shows approximately 54,200 examples of "cannot be overestimated" vs.132,000 for "cannot be underestimated." ...  Presumably those speakers of English who use "cannot be underestimated" in the sense intended by The Guardian understand "cannot" to mean "should not" or "must not."

So there you have it: statistical proof that a majority of people writing in English today don't speak the language.  The U.-Mass. linguists, who appear to be (like most modern linguists) a descriptive rather than proscriptive bunch, wonder: "Is this another case like 'I could(n't) care less' (but without the stress difference)?"  The "stress difference", as explained by Steven Pinker, the Boston-based linguist who buys his wigs from the same place as Howard Stern, is that "I could care less" is sarcastic.   

But I'm pretty sure Judge Sabatino wasn't being sarcastic, either. 

Evidence that, instead, he just wasn't thinking about what he was saying can be found in the case that inspired him to display his inattention.  The case involved a man accused of injuring his girlfriend's 3-year-old son.  A doctor who examined the boy 

found extensive injuries to the child's head, scalp, eyes, ears and neck, with lesser injuries to his left flank and scrotum. His eyes were dark and swollen, as were his ears. There were also large areas of blood collecting under his scalp. The manifestation of the injuries had worsened significantly from the night they were discovered, on October 18, and the child had lost a lot of blood internally. The doctor testified that the injuries to the child were purposely inflicted upon him and were not the result of a fall, as evidenced by their type and pattern.

The child spent two weeks in a pediatric intensive care unit recovering from his injuries.

Now, as you predict how the case will come out, remember the analytical tools set out in post 250.  The defendant was prosecuted by the executive branch and convicted by a jury.   The Appellate Division could go along with their decisions, or it could exert its own power by reversing the perpetrator's conviction.  Which would be better for the Appellate Division? 

That, however, is only a weak positive result, so we need to proceed to the next step.  The victim was a very young person.  The perpetrator, by contrast, was an adult male.   Who has greater social status? - which is another way of asking: Who would adult male judges find it more psychologically comfortable to identify with, the helpless, terrified and bleeding toddler, or the cleaned-up young man in the business suit sitting beside his lawyer in the courtroom?

The legal question was whether the perpetrator was denied his right to cross-examine the 3-year-old regarding statements the boy made to a social worker.  What the boy said was: "I fell down in my room. I want to go home to grandma" and "Dad says nobody beat me. I fell when I was sleeping in my room".  (The perpetrator wasn't the real father, but as part of his campaign of domination required his victim to call him "Dad.")

Judge Sabatino and his two colleagues ruled that the perpetrator was denied his constitutional right to confront the child about those statements.   In their view, the defense lawyer should have been able to put the boy on the witness stand and, leaning in close for the kill (but with the occasional sly sideways glance at the jury), demand in a voice heavy with menace:

"Now, when you told the social worker that you fell in your room, you meant that you fell in your room.  Isn't that right?"

"Directing your attention to your statement that Dad says nobody beat you.  What you meant was that nobody beat you.  Is that not correct?  Remember, you're on oath now."

"Isn't it true that when you said, I fell when I was sleeping in my room, what you meant to say was that you fell when you were sleeping in your room.  Isn't it?  Isn't it?"

I think it's pretty obvious that the Appellate Division judges weren't thinking in these concrete terms.  It's just silly to think that the defendant had any wish at all to attack the truth of the boy's statements (with one exception, discussed below).  Which explains Judge Sabatino's inability to express himself coherently: "As soon as certain topics are raised, the concrete melts into the abstract and no one seems able to think of turns of speech that are not hackneyed: prose consists less and less of words chosen for the sake of their meaning, and more and more of phrases tacked together like the sections of a prefabricated henhouse."

So let's look at at the abstract level on which the New Jersey judges pretended to operate.  The technical legal question before them was whether the prosecution offered the boy's statements "for the truth of the matter asserted."  Crawford itself says: "The Clause ... does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted."

But although two of the three judges who joined in the decision published opinions, neither opinion gives the least sign that the judge recognized the obvious point that the boy's statements were damaging only because they were so obviously - so piteously - untrue.

The only little bit that might arguably have been offered for the truth was the phrase that began: "Dad says ..."  But if those words were true (as of course they were), then the boy was authorized by Dad to say what followed ("nobody beat me").   It was fake-Dad's own statement, and therefore Crawford didn't apply.  After all, he could always cross-examine himself.  ("Why did you tell the boy to lie?"  "Because I didn't want to go to jail."  "Oh.  Okay.")

It's not as if these are difficult legal doctrines.  It's just that the New Jersey judges were so eager to pontificate about sea changes and Copernican revolutions (yes, that cliche is in Sabatino's opinion, too) that they didn't pause to think about the case in front of them.   The absence of thought explains Sabatino's use of "underestimate" for "overestimate" - although it must be said that the latter word would have been just as absurd as the former, because while Crawford makes it harder to convict the people who drive drunk and beat children and women, it doesn't exactly qualify as "a central and defining epiphany in all the history of science."  By dragging poor Copernicus into it, Sabatino shows that it's every bit as easy to overestimate Crawford's importance as it is to underestimate it. 

Sabatino's opinion came out last December.  Since then, surely, the judges on his court have had time to become deeply embarrassed, right?  He himself, doubtless, spent hours on the telephone with the publishers, trying desperately to withdraw his misbegotten draft?

Of course not.  Just two weeks ago Sabatino's meaningless words were quoted with a pompous show of approval by the Chief Judge of his court.  Time alone is insufficient to introduce judges to English, when thinking about what they're saying would only interfere with what they're doing.