JUDGING CRIMES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Terry v. Ohio might be both the most influential and least-understood of the Warren Court criminal procedure extravaganzas.  It came very late in the day, just a year before the Super Chief's retirement.  The facts of the case were simple enough: a cop saw some people casing a jewelry store, so he rousted them and found that one of them, Mr. Terry, a convicted felon, was packing heat.  (See post 314.)

Terry was charged with being a felon in possession of a firearm.  His defense wasn't that he was innocent, but rather that Officer McFadden shouldn't have been allowed to find out he was guilty.

The Ohio Court of Appeals didn't buy that argument.  Its analysis was pretty simple.  The fourth amendment regulates searches and seizures.  Under longstanding law, "seizure" meant "arrest."  Terry wasn't arrested when McFadden began talking to him.  He was arrested only later, after the officer found the gun, and the gun was proof of Terry's guilt.  So there wasn't any illegal seizure.

Moreover, once you accept the general principle that police officers have the right to talk to people, it's only a tiny little step to the principle that they can disarm the people they're talking to.  If an angry man is running around the neighborhood with no shirt on, screaming at the top of his lungs while waving an AK-47, can the police take the gun from him before inquiring what's eating him? 

If so, it must be because of the threat the person poses: officers have the right to talk to people without supplying illustrations for a forensic pathologist's article about stippling.   And, if so, then they must have that right even if the gun in question is a pearl-handled derringer concealed in the breast pocket of the suspect's elegantly-retro Brooks Brothers suit.  Where the gun is located prior to the cop-shooting can't be the decisive factor - by the time the gun is in the open, in the suspect's hand, it's too late. 

The rest of us can avoid talking to dangerous people.  The government requires police officers to talk to them as a condition of employment, often on the express orders of a judge (in the form of a warrant).  For the same government, acting through those same judges, to deny police officers the authority to disarm the people they're talking to would be the same as giving people the right to shoot cops, provided they're prepared either to pay the price afterward or take their chances at getting away.

(And if you find yourself internally debating whether that's a good approach, striking the proper balance between individual liberty and the state's "interests in pursuing legitimate law enforcement objectives" in rather the same way we allow the media to print whatever they want so long as they're prepared to pay damages later, then strike the word "cops" from that last sentence and substitute "you, personally, and your children."  Try saying it out loud, your honor.  See if it feels any different.)

The Ohio court told its readers that "police officers seem unanimous in stating that ‘frisking’ is done for self-protection and not as a mere evidentiary ‘fishing expedition.’" [ 214 N.E.2d 114]  That, the court thought, was the key point.  A frisk, by the court's definition, wasn't a search for something.  It was self-protection.   Accordingly, the court concluded, permitting the guilty Mr. Terry to be found guilty "by no means authorizes a search for contraband, evidentiary material, or anything else in the absence of reasonable grounds to arrest."  

In short: because a frisk isn't a search, it can't be an illegal search.  No seizure, no search, no fourth amendment issue.

Terry v. Ohio presented a long sequence of problems for the U.S. Supreme Court.  As in accounts of military campaigns, we're so familiar with the result that we find it hard to appreciate that there were numerous turning points.  The result wasn't inevitable. 

After all, with better weather, Suleyman could have dragged his artillery up to the walls of Vienna.  Nothing but a fine disdain for reality prevented Napoleon from holding off on invading Russia.  The pickets might have recognized Stonewall Jackson before firing, or at least missed, allowing the South to win the Civil War on the battlefield instead of having to suffer through a 31-year self-siege before the Supreme Court finally issued the North's unconditional surrender in the guise of a constitutional ruling.

And the Supreme Court could have decided Terry differently.  There were any number of possible pivot points.  This was the first: 

1.  Does the Constitution give the justices (and their deputies, the lower federal judges) authority to tell city police officers how they must conduct themselves while on duty?

This was, constitutionally, the most momentous question, but for the swinging justices of the go-go years it was also the easiest to answer.   All those who were in the habit of reading this blog in the spring of 1968 (unfortunately they hadn't invented hyperlinks yet) knew exactly what to expect: the Supreme Court was nearly certain to rule in the way that did the most to increase its own power and that of judges, especially federal judges.  (See post 250 and post 275.)  So the answer to question 1 was "you betcha."

2.  Okay, then tell me this: how were federal judges - there were just 342 federal district judges in 1968, after all - supposed to ensure their instructions were obeyed by, or even communicated to, the local cop on the beat?

For law professors today, that's an easy question to answer: 1961's Mapp v. Ohio, also a Cleveland case, decreed that state courts had no choice but to adopt the federal rule of procedure that required concealing evidence from the jury, if the evidence was discovered in violation of the fourth amendment.  (Mr. Terry wasn't being ridiculous with his defense that Office McFadden should have been prevented from discovering his guilt.)  So therefore, the professor would tell you (in considerably more words than this), the state courts had no choice in the matter.

But that conventional answer just refines the question without answering it.  How were federal judges supposed to ensure that state judges enforced Mapp v. Ohio, in whatever new permutations it acquired or discarded?

The basic concept of Mapp v. Ohio is that criminal convictions are to police officers what fish are to trained seals.  You give the cop his conviction to reward him for balancing the ball on his nose.  If he violates the fourth amendment, no fish.  If the judge is consistent, the cop eventually gets the idea.

When Chief Justice Warren ordered his clerks to draft the Terry opinion, he and they had seven years of experience to reflect upon, and that was enough time for reality to pluck up courage to voice its complaints against doctrine.  In words that get too little attention today, Warren's opinion acknowledged reality's lack of cooperation:

Regardless of how effective the [judge-made, post-1961 exclusionary] rule may be where obtaining convictions is an important objective of the police, it is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goal.

If the cop is a racist bully who only wants to harass someone, then the stop and search is itself the goal.  Discovery of contraband is just lagniappe.  Similarly, a cop who supplements his income by shaking down drug dealers  has no interest in seeing the cooperative among them go to prison.  Quite the contrary. 

The Mapp v. Ohio judge-made exclusionary rule performed its magic only on the good cops, the earnest and sincere ones, the ones who didn't need reining in.  The more Ellroyish the cop - the more likely he was to be portrayed by Russell Crowe in the movie version of his life - the less vulnerable he was to the berobed seal trainer's withholding of the conviction.

And, most to the point, an officer who genuinely fears for his or her own safety but is dissuaded from patting down a squirrelly suspect because of worry about what some judge is going to think six months from now is all-too likely to have his or her ID photo posted on this page. 

In my view, preservation of an officer's life is a higher priority than prosecuting any bad guy, and far worthier of respect than any judge's pronouncement on any topic whatsoever.  So the possibility that evidence might be suppressed should never be a reason for a cop to forego a pat-down. 

But even if you disagree with me on that -  we can agree to disagree, can't we, judge? - you can see that many a cop will, in the heat of the moment, be strongly tempted to line up on my side of the issue regardless of the risk of learning at second hand some months down the road that some judge has written severely disapproving words in an unpublished suppression order that the cop will never actually read.

What's fascinating about Terry, though, is that Warren acknowledged the judge-made exclusionary rule's built-in ineffectiveness as a tool for disciplining bad cops (he described the "wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain") even while expanding its use. 

That sounds like a paradox, or at least an irony, but it wasn't.  It was the corner into which the Supreme Court had painted itself.

In sum, the law professor is right.  The answer to # 2 is: The Supreme Court said so.  End of discussion.

More anon.

Here's a story familiar to most criminal lawyers, although this telling is less familiar than the one subsequently published by a different court:

At approximately 2:30 in the afternoon of October 31, 1963, a Cleveland detective with thirty-nine years of experience observed two persons, later identified as John W. Terry and Richard D. Chilton, engaged in behavior, on the corner of East 14th Street and Euclid Avenue (in downtown Cleveland), which immediately attracted his attention and aroused his suspicions. Positioning himself across the street he observed these men for approximately ten to twelve minutes as they alternately left the corner on which the other was stationed, walked several hundred feet up the Huron Road block, peered into the window of either a jewelry store or an airline office and then returned to the corner to converse with the other. In turn the other person would leave the corner, repeat these actions and return to the corner. This procedure was repeated at least two to five times by both men. During this period, a third man, later identified as Carl Katz, approached the corner, spoke briefly to the two men and then departed.

After ten to twelve minutes of this behavior, Terry and Chilton left the corner and proceeded west on Euclid Avenue several hundred feet to where they again met Katz. The three then engaged in a conversation. As the detective testified: ‘* * * I didn't like their actions on Huron Road, and I suspected them of casing a job, a stick-up * * *.’ With this belief in mind, the detective approached the three men, identified himself and asked for their names. Receiving only a mumbled response, the detective turned the defendant around, quickly ‘patted down’ the outside of his clothing, and, perceiving a hard object in the inner breast pocket of his topcoat, inserted his hand and removed a fully loaded automatic. At this point, the detective ordered the three men into a store, told them to face the wall and yelled to a store clerk to ‘call the wagon.’ He then proceeded to ‘pat down’ Chilton and, upon perceiving a hard object in the lefthand pocket of his topcoat, inserted his hand and removed a fully-loaded revolver. A similar ‘patting down’ of Katz revealed nothing. The three men were then taken to the police station where Terry and Chilton were charged with carrying concealed weapons.

That's from the opinion of the Ohio Court of Appeals, Eighth District.  (214 N.E.2d 114) (The asterisks are in the original - I don't know who was the first judge who thought asterisks were better than ellipses for signaling excisions from a text, but until 20-30 years ago that was standard in judicial opinions.)

It's almost sweetly innocent that Officer McFarland (and what a terrible pension plan he must have had!) would hustle his suspects into a store and tell the proprietor to "call the wagon."  That's not far removed from leaping on the sideboard of a car and telling the driver to "follow that car."  Today's Risk Management attorneys would blanch at the mere prospect.  The liability issues!

Mr. Terry was lucky enough to be represented by Louis Stokes, later a longtime congressman from Cleveland and the brother of Carl Stokes, the first Black mayor of a major American city.   (Cleveland was also the place where the American League's first Black player suited up, and where the major leagues' first Black manager dressed in a ghastly all-red uniform.  But there's something about the shape of the word "Cleveland" that makes positive things slide off, while the negatives - that uniform! - stick.)  (Here's a fabulous timeline of the brothers' careers.)

Terry himself was African-American, which I confess I never knew until I read Congressman Stokes' memories of the case.  Stokes said: "I knew Terry from his hanging around with another person I represented, a fellow by the name of Billy Cox.  Billy Cox was a rather notorious individual around Cleveland.  I represented Billy Cox in a couple [!] murder cases and knew Terry from his hanging around Billy Cox, because Terry liked to be around the more notorious type of individuals in the community." 

Here's a little something about a Cleveland hood of the era named Billy Cox, though I couldn't say for sure it's the same Billy Cox.  (I'm pretty sure it's not the Billy Cox who played bass for Jimi Hendrix, although according to Wikipedia, the Stokes brothers were cousins of the late Rick James.)

Since Terry was acquainted with Stokes, he called Stokes from jail.  And that (I always like to include professional tips for my lawyer readers) is how you get to be counsel of record in a landmark Supreme Court case. You know those wannabe gangbangers, the pathetic yet sinister parasites who think they're being an entourage to someone worth entouraging for?  They're your ticket to glory.

In the Ohio Court of Appeals, Stokes argued that Terry was arrested at "the moment the defendant was questioned by the detective", and the arrest was illegal because Officer McFarland didn't have probable cause to think Terry had committed any crime - or, for that matter, to believe that any crime had been committed by anyone. 

But the court didn't buy it.  It ruled that an officer may stop and question a person without arresting him or her.  And once that was established, it followed that the officer could frisk the person: "What is the officer to do in this situation?  Are we to allow him the right of inquiry and then, when this right is exercised, reward him with an assailant's bullet?"

The court also pointed out that suppressing evidence found in the course of a frisk would hardly deter police officers from frisking, since (ex hypothesi) they do so for self-protection rather than to hunt for evidence.  (Defense attorneys should pause at this point to mutter, "Yeah, right.")  Rather poignantly, in 1966 the Ohio court still flew the flag of judicial self-respect.  The resentment state judges felt at the then-recent federal takeover can still be heard:

The exclusionary rule of illegally obtained evidence cannot be interposed solely to provide a tidy "fox hunting" theory of criminal justice. ...

We agree with the District of Columbia Court of Appeals when it stated that it cannot believe that the "Supreme Court has forbidden the police to investigate crime."

Chief Justice Warren's famous ruling upholding the Ohio Court of Appeals' opinion reads like a point-by-point rebuttal of it.

Everybody working in criminal law knows that 1968's Terry v. Ohio was a tremendously significant opinion.  Professor Stephen A. Saltzburg, in a moment of giddiness, called it "a practically perfect doctrine", which I'm almost certain was intended as a compliment.   

But what did Terry do and how did it do it?  It might seem strange to say about such a famous opinion (45,090 citations on Westlaw), but I think the real genius of Terry has largely gone unremarked-upon.  Future posts will remark upon it.