JUDGING CRIMES

On February 15, 1941, Murray Hameroff was shot and killed in front of his home on Stillwell Avenue in Coney Island.  Charles Noia confessed to police he was the triggerman.  His two accessories, Santo Caminito and Frank Bonino, separately confessed.  They were all convicted.  The jury recommended life in prison for them all.

Noia's judge, Peter J. Brancato, told the defendant during sentencing:

I can understand how the jury made its recommendation as to your two accomplices.  I had seriously considered not accepting the jury's recommendation in your case, but without your knowledge you had pleading for you an excellent lawyer.  I am referring to my wife, Mrs. Brancato.  Her last word to me as I left home this morning was a request that I accept the recommendation of the jury in your case as well as the other defendants, and I shall do so.

Noia, perhaps grateful he didn't get the death penalty, didn't appeal his conviction.  But his two accessories did.  They argued

that the trial court committed reversible error in refusing to charge as requested on the subject of illegal detention of defendants by the police without arraignment, in excluding evidence which would have shown that one defendant complained to the jail physician on the day following the arraignment that he had been beaten by the police, ... and in leaving it for the jury to decide whether the confessions were voluntary.  (People v. Bonino, 50 N.E. 2d 654)

In 1944, New York's highest court affirmed the convictions with a one-sentence order finding any errors to be insubstantial.

Fast forward 11 years.  Caminito filed a petition for federal habeas corpus, raising essentially the same issue.  Federal Judge James Thomas Foley heard the petition.  He had a peculiar resume, even for a judge:

Private practice, Troy, New York, 1935-1942
Secretary, Hon. William H. Murray, New York State Supreme Court, 1939-1942
U.S. Naval Reserve, 1942-1945
Secretary, Hon. William H. Murray, New York State Supreme Court, 1946-1949

What, exactly, did it mean to be a "secretary" to a trial court judge (because in New York "supreme" means "not supreme") in those days?   And how did it qualify Foley to become a federal judge?   Well, it was good enough for President Truman and the Senate.

Judge Foley wrote:

The issue of involuntary confession under force and threat was clear cut as far as Caminito was concerned.  He took the stand and under the guidance of an experience and eminent defense attorney, narrated in detail his story of police persecution, brutality, false identification, intimidation, physical and mental, that he said compelled admission and confession.  The detectives flatly contradicted these assertions and the ones mainly accused reiterated such denials in rebuttal.  The questions of food and physical punishment presented by the testimony were essentially and completely factual and peculiarly fitted to the province of the jury.  A cold record, as I try to keep in mind when I am forced to the task of appellate review, can give little indication of the demeanor of the witnesses, their attitude, their tone of voice, their hesitancy, their emotions, their frankness, which are of fundamental importance in the determination where the truth lies.  (U.S. ex rel. Caminito v. Murphy, 127 F.Supp. 689) (the boldface was added for reasons that will become clear in part 2 of this series)

In addition, Judge Foley observed that Caminito hadn't been beaten: he was photographed immediately after his confession; and he never complained either to the magistrate or to his first attorney.  Caminito's trial attorney "flatly stated that he did not claim there were any marks upon the person of Caminito."

Caminito testified at trial "that he did not confess after extreme physical punishment or a staged and spurious identification, but only after a discussion with Noia."  On cross-examination he testified that "statements made in the confession ... came from his own mind and were not instilled in his own mind by the police as part of the alleged fabrication under pressure."  (That last line is just as ambiguous in context: it's unclear if Caminito was referring to all the statements contained in his confession, or only to particular bits - such as, say, his name and address.)

Judge Foley admitted to feeling a little queasy about some of the things that the police apparently acknowledged they had done to Caminito and his co-defendants: "The holding of the defendants incommunicado, the sleeping on a hard bench without pillow or blanket in a cell probably not overheated, the failure to arraign without unnecessary delay as provided by law, the admittedly false identifications, the intensive questioning by relays of detectives ... would cause hesitation and suspicion on my part."

But, the judge added, "the same feelings must have been in the minds of the jurors and they decided the issue in favor of the People after a complete, informative, detailed and conscientious charge."

 So here we have a convicted murderer claiming that the cops mistreated him and the cops denying it.  The factual issue of the voluntariness of Caminito's confession was submitted to the jury, and the jury believed the cops.  Like Judge Foley, you may wonder if they were right to do so, but the whole point of a jury system is that juries get to decide which witness is the credible one.

Isn't it?

The ABA Committee's daft proposal to institute a regime of secret trials in America - even if only some prosecutions would be made secret, and then only after the fact (see post 300) - shows how far we've evolved from medieval concepts of justice:

"The common view of the medieval justice system as cruel and based around torture and execution is often unfair and inaccurate," said University of Cambridge historian Helen Mary Carrel. Most criminals received gentle sentences merely meant to shame them, Carrel said, with the punishments often carried out in the open so townspeople could bring them charity.

That's from LiveScience.  The whole point of the ABA Committee's suggestion was to reduce the shame factor.

Over at German Joys (German Joys?) law professor (I mean, Herr Doktor Professor) Andrew Hammel reproduces a chart from a subscription-only scholarly journal giving German murder rates from the 1300s to the present. 

The medieval era, in addition to being smelly, was extremely violent and dangerous; in most places, the murder rate was between 20 and 100 per 100,000. Now, in all European societies, it's declined to around 1. Hooray for modernity!

I came across this table while looking for a similar table for England that I saw recently in a review of Gregory Clark's controversial A Farwell to Alms, a kind of Freakonomics-goes-to-history-class.  I couldn't locate the chart on the Web (and I can't remember where I saw it originally) but it gave comparable figures, which is what started me on this post.

From a 1994 International Herald Tribune account of an academic conference, we read:

Eric H. Monkkonen, a professor of American urban history at the University of California at Los Angeles, said: "What we are finding is that violence is not an immutable human problem. There really has been a civilizing process" in which, scholars say, an increase in state power and courtly manners beginning in the 16th and 17th centuries helped curb impulsive, violent behavior.

New data presented at the conference by a Dutch scholar, Pieter Spierenburg, showed that the homicide rate in Amsterdam, for example, dropped from 47 per 100,000 people in the mid-15th century to 1 to 1.5 per 100,000 in the early 19th century.

The late Eric Monkkonen was a true giant, a tireless researcher and skillful writer, full of insights.  (And for those who doubt the data are there  - wouldn't it be more surprising if our ancestors didn't keep records of things like murders and executions?)

Of course, definitions of "murder" vary tremendously from age to age, and country to country (even state to state, in the U.S.), and some places have efficient and honest law enforcement and tidy record-keeping bureaucracies.  Others don't.  And some murders just go undetected, depending on such things as the ease of concealing a body.  (Deserts, such as New Mexico's, are quite useful.  I imagine jungles, like Colombia's, are even better.)  

So comparing statistics, even for such a relatively unambiguous offense as murder, is at best inexact.  Still, looking at  current international rates provides a certain perspective. 

According to this collection of statistics, the latest available figures have Colombia as the most homicidal nation in the world, though you have to assume the "War on Drugs" death toll is included in those numbers (in contrast to the German figures reproduced at German Joys, which filtered out such statistical blips as the Thirty Years War).   However the number was derived, Colombia's homicide rate was calculated at just under 62 per 100,000. 

Then there's South Africa at around 50, Jamaica and Venezuela at 32, Russia at 20.  It drops pretty precipitously after that, with the US sliding into 24th place at about 4.3 per 100,000.  (The Bureau of Justice Statistics pegs it at a little more than one funeral per 100,000 higher than that.)

Now here's a Los Angeles Times story from last Sunday:

Homicide is not fair, hitting hardest among Latinos and especially among blacks. Latinos are killed at more than three times the rate of whites, while blacks succumb to homicide at three times the rate of Latinos, the Times analysis shows.

Adult males are the eye of the storm. The national homicide rate is about six deaths per 100,000 people each year. But for Latino men in their 20s in Los Angeles County, the rate is 52 deaths, and for black men, 176 deaths.

That's right.  176.  And that's a great deal more than 76% worse than medieval Germany, because in medieval Germany they didn't have medicine, much less modern medicine.  If you were stabbed, it was time to work out whether to address angels with "Sie" or "du."  Today, in the City of Angels itself, our Second City, we tolerate a rate of violent death that would have shamed Henry the Lion.

Imagine if, say, federal judges were murdered at that rate.  According to the Administrative Office of the U.S. Courts, there are "about 2,000 judicial officers, including active and senior appellate and district court judges, bankruptcy judges, and magistrate judges" currently reveling in the lavish perks.   If federal judicial officers were murdered at the same rate as young Black men in LA County, we'd have 3.5 additional vacancies on the federal bench every year.

That, needless to say, would be a crisis.

The great thing about the original intent school of constitutional interpretation is that it relieves Supreme Court justices from any responsibility for feeling shame.  They can indulge their every whim with the all-purpose justification that they're only doing what the Framers would have done, if only they'd gotten around to it.  (See post 201.)

Justice Scalia has assured us that "[t]he Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation."  Thus they enacted the sixth amendment's confrontation clause, based on the practice in English courts of the era ("the English cases that were the progenitors of the Confrontation Clause did not limit the exclusionary rule to prior court testimony and formal depositions").

But as evidence of the practice in English courts, Scalia cites opinions from English and American appellate courts, and the views of commentators, who by a process of self-selection are almost guaranteed to have been opinionated cranks, the pre-Web equivalent of bloggers.  This might be a reasonable avenue of historical research if trial court records were unavailable, but they're not.  In fact, it's easy to read transcripts of English criminal trials from the years before the American Revolution.

In 1750, for instance, John Stevens - no indication whether his middle name was Paul - was charged with stealing a silver tankard from a man who ran a public house in his home.  Here's the pub owner's testimony:

The other witness (Warwick) staid, who told me he could not go away, for that man, meaning the Prisoner, has took away something with him, either pewter or silver, like a tankard; and likewise said, he told Judith Dyke, that he and she should come into trouble about it; adding, she made a pish at it: I sent my young man one way, and I went another, but we could not find the prisoner, or the woman. Warwick still abode in the house, nor did he endeavour to get away; saying, he would stay with all his heart: then I sent for the constable of the night, and Warwick was taken into custody. I had seen the woman before, and a person gave me intelligence where she lived; I went to her house, and there was a man made answer and said, she was not at home; (we could hear her whisper ) I went back again, and we carried Warwick to New-prison; my lodger said when we came back, if I would go down to the woman, she would open the door to me; he was drinking with them that night in my house, but he has hid himself, and I cannot find him; I fear the woman has sent him out of the way; we went again, and he knocked, and she immediately let him in, and the constable took charge of her; the justice thought proper to admit her to bail. I never saw the tankard since. We searched Warwick to see if he had any knife, or such instruments about him, and I am sure he could not have the tankard about him: the justice admitted Warwick to bail, and upon Thursday evening he took the Prisoner, and sent for me, and he was secured; they went away between 8 or 9 o'clock.

Mr. Warwick also testified:

On the 11th of Dec. last as I was going along Cheapside. I met the Prisoner, I had not seen him for 4 or 5 Years; he said to me, shall we not drink together ? I said with all my heart. Said I, I'll go to the Hercules and Pillars, in Bow-lane. No, said he, I'll go to a friend at the bottom of Bread-street. We went there, and Mrs. Dyke rapp'd at the sash window, at the Bull's-head: We went in, and drank 7 or 8 Tankards of beer. Said she, I have money to receive of a man who is to meet me at the Hampshire-hog, in Goswell-street. I went with the prisoner and her there, and they staid till about 8 or 9 o'clock; ... When the beer came about, he said, he did not care to drink; by and bye I heard liquor spill, I turn'd and saw something like a tankard in his hand, and he cover'd it under the right hand flap of his coat; it was about half cover'd: Presently I heard liquor spill again. I went betwixt the woman, and the man of whom she was to receive money, and whisper'd them, saying, I feared we should come into trouble, for, I thought, he was going to steel away a tankard. She said, pshaw, pshaw. The man made no answer. At going away the woman went first out at the door, and I second, the prisoner after me; he had his left hand under his coat, with something like a pot or a tankard in that hand: I turn'd back at the door, and said, I must speak with this man, meaning Hosier ; but the prisoner laid hold of the skirt of my coat, and said, come along, you have no business with that man I am sure. I told Hosier the prisoner had got a tankard under his coat, or something like it. Said Hosier to the Girl, see if there be any thing missing ? Said I, it will be the best way to go, in the first place, after the man. The Constable was sent for, and I desired he would be so good as to go and take the woman, thinking she would not deny what I whisper'd to her, of my suspicion about the prisoner. The Friday following I took the prisoner in Bedford-court, coming down to Covent-garden: I did not charge him with the thing then, because I had heard of his Character; so I took him to a public house, sent for a constable, charg'd him, and sent for the Prosecutor.

By "the Prosecutor," Warwick meant the publican. 

Mr. Stevens was acquitted, which certainly seems just on evidence as thin as that.  Nonetheless, a reader might be forgiven for thinking that English courts of 1750 were somewhat less than fanatical about preventing witnesses from repeating things they had heard outside the courtroom.  What if -  just supposing, now - what if Justice Scalia is right, and the confrontation clause really did codify existing English practice?

Henry Fielding was a lawyer and judge as well as among the first and greatest English novelists.  Many a literary man has read the law to please his parents, including two of the authors I read with purest pleasure, LeFanu and Stevenson.  But Fielding, unlike them and most law-trained authors, made his living from the profession. 

While he was not a rousing success as a barrister (but then, most barristers aren't – bell-shaped curve and all that – Boswell never made it to the top of the greasy pole, either), he became magistrate for Westminster, and he and his brother John, also a magistrate, helped organize London's first effective police force, the Bow Street Runners.  (Fielding's courtroom was in Bow Street, across from Covent Garden.)

(On that map you'll find the geographic inspiration not only for The Jam's "A-Bomb in Wardour Street" – Wardour is the street on which the Marquee was located – but also, if you look closely, for the Kinks' "Denmark Street," which captures once and for all the soul of a pop music producer: "You go to a publisher and play him your song. / He says, 'I hate your music and your hair is too long / But I'll sign you up because I'd hate to be wrong.'")

Toward the end of his very short life, Fielding wrote a book, or rather a pamphlet, called Examples of the Interposition of Providence in the Detection and Punishment of Murder, Containing, above thirty Cases, in which this dreadful Crime has been brought to Light, in the most extraordinary and miraculous Manner; collected from various authors, ancient and modern.  Here's "Example XXX":

The following fact was told me by a gentleman whose great-grand-father was an Irish judge, before whom the thing happen'd.  The particulars have been preserved in the family by tradition ever since, but the name of the person that was executed is purposely omitted, as being of no inconsiderable family in that nation.

A gentleman was tried in Ireland for killing his friend in a duel, and the circumstances appearing very favourable on his side, a verdict was brought in manslaughter.  This crime being within benefit of clergy, the prisoner had the book offered him to read; of which he started and hesitated in such a manner, that those who stood near him asked him why he did not proceed.  He answered, he could not see the words, they were so stained with blood.  He added, that he wonder'd they should use him in such a manner, and desired there would give him a fair book.  Several people standing by look'd on the book, and all declared, that not the least drop of blood appear'd on it, but the words were perfectly legible.  The prisoner, on that, fetch'd a deep sigh, and said, "I plainly perceive the vengeance of God is pursuing me; for although I declare myself innocent of the death of my friend, any otherwise than by being forced into it for self-defence, yet I confess herself worthy of public punishment; for some years ago I barbarously murdered my own father."

He then related all the particulars of the Murder, and his confession was so full, that he must of been condemn'd on that account, had he taken his tryal; but his incapacity for reading in any book they offered him, by the appearance of blood before his eyes, still continuing, no other tryal was necessary, and he was executed by virtue of his first conviction.

He died very penitent, persisting in his confession of the Murder of his father, allowing the justices punishment, and acknowledging the hand of God, and forcing him to confession of his horrid crime.

Example XIX told of a man whom got away with murder for 20 years.  After that passage of time he felt confident enough to return to his old haunts, so to speak.  But

the very evening that he landed in a wherry at Queenhithe-stairs, walking up to Cheapside, in order to get into a coach, just in the dusk, and by the very door of his murdered friend, he heard a voice cry out, "Stop him, stop him, there he is."  On this he ran as fast as he was able, and soon found himself followed by a large mob.  He was soon overtaken and seized, on which he cried out, "I confess the fact, I am the man that did it."  The mob on that said, as he had confessed the crime, they would proceed to execution; and, after making him refund the stolen goods, would give him the discipline of pumping, kenneling and the like [that is, holding him under a pump or in a 'kennel' or open sewer]: on which he said he had stolen nothing, for though he had murdered Mr. L----, yet he had no intention of robbing his house.  By this answer, the mob found themselves mistaken, for their pursuing a pickpocket, and seeing this man run hard, believed him to be the pickpocket; but now were for letting go as a person distracted, that knew not what he said.  One man however who lived in the neighbourhood, and had heard of the murder of Mr. L----, desired that this gentleman might be examined before a magistrate, and he was accordingly carried before the Lord-Mayor, who took confession of the fact, for which he was soon hanged: and he declared at the gallows, that the day of his execution, was the happiest day he had known since he had committed that horrid, treacherous, inhuman act, the murder of a friend, who loved him, and to whom he lay under the highest obligations.

It might seem strange at first that the ribald satirist Fielding should have morphed into the earnest moralist championing God's wrath against "this sin of murder."  Here's one Victorian assuring us, presumably metaphorically, that "Fielding the magistrate and Fielding the playwright were two different persons".  But it seems to me obvious that the satire and the moralizing were the same tune played in different keys. 

For an artistic genius and pioneering judge in London in 1752, the detection of murder, and the murderer's penitence as expressed in his gallows confession, were presumed to be the handiwork of God: "the Almighty hath been pleased to distinguish the atrociousness of the Murderer's guilt, by levelling his thunder directly at his head, in this world."

Many things have changed in the succeeding 255 years, not least of all the attitudes of judges.   Today's Supreme Court presumes that a murderer's confession is the result of a civil rights violation.  From the hand of God to a tort: now there's a fall from grace.

In 1968 Justice Byron White deplored "the Court's fuzzy ideology about confessions, an ideology which is difficult to relate to any provision of the Constitution and which excludes from the trial evidence of the highest relevance and probity."

But that was a lawyer-centric way of putting it.  Describing an ideology in terms of categories established by the law of evidence is like describing liberalism as an ideology that favors Volvos - not wrong, but kinda missing the point.  The Court's ideology, which is by compulsion the ideology of all American criminal courts, is an ideology about punishing murderers who have confessed to their crimes.

And even that isn't quite right, because people really do confess falsely, and no one (or no one we need to respect) is in favor of locking up the innocent.  So we can put the innocent confessors to one side.  The Court's ideology is against punishing guilty murderers who have confessed to their crimes.

This ideology is imposed upon us by a group of people who want us to believe they respect the intentions of the framers of our Constitution.  (See post 79.)   Do you suppose they really know more about what people were thinking in the 18th century than Henry Fielding did?

Last month I was interviewed by BBC film crew doing a show on Billy the Kid that will combine dramatic recreations with commentary by historians. (In the States check the Discovery Channel listings in the spring for showtimes - it's your opportunity to find out if the publicity photo I've been using is out of date.)

The interviewer asked about the first killing attributed to the Kid, the death of Frank Cahill at Camp Grant, Arizona. Cahill was a blacksmith and presumably a muscular guy, as a couple thousand reps on the anvil every day is a recommended upper body workout.  Cahill, according to the version that's come down to us, bullied the Kid, whose nickname was as flatly descriptive as "Shorty" or "Lefty."  The Kid was 18 or so, and slightly-built, and after a particularly humiliating encounter he used modern technology to even the odds. Cahill died a couple days later of a lack of antibiotics.

 The BBC interviewer wanted to elicit some comments about the "Code of the West", which, it is generally assumed, would have excused the Cahill killing as self-defense.  In his question the interviewer said something about "this killing, which to modern viewers will seem quite clearly to be cold-blooded murder." 

Well, perhaps to modern British viewers.  I had to break the news that in modern New Mexico Billy would almost certainly be entitled to a self-defense instruction - the technical way of saying that New Mexico's courts of 2006 would be just as willing as their predecessors of 1876 to accept the killing as perfectly lawful, or at most manslaughter (see post 110), an offense with a maximum sentence of six years, none of which must be served in prison.

In New Mexico, as in most of the West, there is no duty to retreat. You don't have to make any effort to avoid deadly violence.  If you get involved in a fight, and realize too late you're going to lose, you're permitted to kill. Or, in other words, New Mexico is the nation's fifth most violent state because our judges like it that way.

(Legislators bear some responsibility, too, in that they don't make the effort to control the judges.  Our self-defense statute says homicide is lawfully committed in self-defense only when "necessary", but our courts interpret that to mean something like "the most convenient solution to one's immediate problem.")

The phrase "Code of the West" is misleading to the extent that it suggests things were organized by social compact, as if settlers had to sign an indenture when they left Independence, Missouri.  The Code was really just a set of pragmatic social conventions based on the absence of effective law enforcement.

Lincoln County, which in Billy's time was the size of Ireland or Panama (or, in U.S.-centric terms, Connecticut, Massachusetts, Vermont and New Hampshire combined), had one full-time peace officer, Sheriff William Brady. He hired deputies, and could summon a posse into existence, and the local justices of the peace worked with constables, but for them law enforcement was something they did in the spirit of today's volunteer firemen.

If robbers showed up at your homestead, you couldn't call the police. Someone had to slip away unnoticed and travel by horseback or on foot for help, and even then (unless you were lucky) help wouldn't come from the sheriff, who doubled as county tax collector and was often on the road. Maybe your messenger might locate a deputy, or maybe just some friends or acquaintances willing to take the risk.   And then it could be hours or days before the rescue crew returned to the scene of the outrage.

In short, law enforcement was, at the moment of crisis,  a private affair. The Code of the West was a way of dealing with that reality. Should you just give them what they want? Often, that made the most sense. But at some point a man who wanted respect had to draw a line.

I suspect that's what happened to Frank Cahill: the Kid decided he didn't want to be treated as a child any more.  And, so far as the record discloses, he never was. On the contrary, he quite quickly developed a reputation as a scary fellow, in many respects a useful reputation to have, although when that reputation grew outsized it contributed to his violent death at a young age. 

Does any of this sound familiar? Elijah Anderson wrote a book called Code of the Street: Decency, Violence, and the Moral Life of the Inner City that described the way young men in the worst neighborhoods are forced to decide if they want to become someone with "respect", defined in part as the ability to inspire caution in dangerous people. Al Sharpton recently got a headline or two calling the same process "gangsterism."

We have, in our cities, replicated one of the core realities of the Wild West, the nearly-complete privatization of law enforcement, the replacement of a government of laws by an alternative government based not on enacted laws but on a Code - on violence and its threat.

One of my colleagues clerked for a justice of the state Supreme Court who followed a simple rule when deciding whether to grant review of a decision of the intermediate appellate court: if the Court of Appeals' opinion was more than 10 pages long, it needed to be reviewed, because that length indicated the judges were up to something.

It sounds silly at first.  But as a rule of thumb it's pretty reliable, because there are few legal problems that can't be resolved within 10 typewritten pages - if, that is, the court is applying existing law.  You don't have to justify your adherence to precedent.  Greater length generally means that the judge isn't applying pre-existing law, but is doing something he or she feels compelled to explain.

Another useful rule of thumb is that judges reserve their "eloquence" for opinions that need a little bolstering.  No judge uses fancy language to follow existing law.  So you don't really need to wade through the 82 pages of the Second Circuit's recent decision concerning New York's method of selecting judges to get the bottom line.  It's enough to read the first sentence:

This case requires us to peer inside New York State's political clubhouses and determine whether party leaders have arrogated to themselves a choice that belongs to the people.

Gee, wonder which way the case comes out?  That attempt at eloquence is the responsibility of Judge Chester Straub, a one-time New York State Assemblyman and State Senator.  Straub knows quite a bit more about the way judges pull out their patronage plums than most people.  This is from his official biography:

 Judge Straub was Chair of Gov. Mario Cuomo’s New York Statewide Judicial Screening Committee from 1988 until 1994 and of the First Department Screening Committee from 1983 until 1994. He was a member of Senator Daniel Patrick Moynihan’s Judicial Selection Committee from 1976 until 1998.

And that, boys and girls, is how you get to be a federal judge: you provide service to the party and make yourself useful to powerful politicians.  There's something indescribably aromatic about federal judges condemning the ghosts of Tammany's tigers for trying to replicate the federal system in miniature.

So from a judicial selection system heavily weighed toward the federal style of backroom deals, New York will presumably move to a system in which doing favors / paying one's dues / serving as a bagman will be more evenly balanced with big money media campaigns. 

The sense that there's something seriously wrong with New York's judicial selection process is not a new feeling.  Richard J. Tofel's Vanishing Point: The Disappearance of Judge Crater, and the New York He Left Behind doesn't provide much information about the famously retiring judge that wasn't already conveyed in Morris Markey's October 11, 1930 New Yorker article. 

But Tofel's entertaining book does provide a detailed glimpse of the sort of bargaining that promoted Joseph Crater to a seat on a Manhattan trial court.  I don't think "corrupt" is the right word at all.  "Pragmatic" gets a little closer to the key point, which is that there are many reasons other than legal acumen for turning a lawyer into a judge.  People got appointed to the bench because their appointments made sense, once you understand the point was to minimize the number of powerful men made unhappy by the choice.  Somehow I suspect that Judge Straub's stab at top-down reform won't make much difference in the long run.

Crater got appointed to the bench because he had spent many years being useful to Robert Wagner, Sr., and took care to avoid making himself obnoxious either to reform Governor Franklin Roosevelt or the gangsterish Tammany bosses, which allowed him to succeed as a compromise candidate.   Here's an American Heritage capsule summary of his famously thorough disappearance. 

(My own guess is that Crater, an appellate specialist during his years in private practice, discovered too late that life on a trial bench was unpleasantly fast-paced and stressful.  Having cashed in the political chips he had spent so many years amassing, he felt unable to free himself from a job he had asked for but experienced as a burden.   And the prospect of campaigning to keep a job that had become the focus of his clinical depression was just too painful to bear.  His wife's strange behavior following the disappearance makes sense if she was simultaneously dealing with the shock and trying to follow the instructions her husband left in a note explaining how to avoid the suicide exclusion in his life insurance policy.)

One of the most-cited constitutional decisions of all time is Johnson v. Zerbst.  Westlaw counts 14,048  documents citing to it, and that doesn't includes the tens of thousands of unpublished little opinions that never made it into anyone's database.  Its claim to fame is that it established the constitutional principle that "that there is a strong presumption against waiver" of constitutional rights, to use Justice Blackmun's words.  

Oddly enough, Johnson v. Zerbst didn't actually say anything about the strength of the presumption.   Justice Black's opinion for the Court contained this famous passage:

It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of fundamental rights."

This actually states two inconsistent rules, although I don't think Justice Black realized he was contradicting himself.  The second (waiver is not be presumed) is a declaration of judicial neutrality, but the first (judges presume that the defendant didn't waive his constitutional rights) is a declaration of bias.   In practice the first rule instantly swallowed the second, because a judge who keeps an open mind obeys the second rule but violates the first.  

A legal "presumption" is solemn make-believe.  A judge indulging a presumption (and "indulge" is the favored verb) pretends she has heard evidence when she hasn't.  A legal presumption is a thumb on the scales of justice, a way to achieve a desired result in the absence of an evidentiary basis for doing so.  The most famous presumption is that of innocence. 

In modern America, virtually everything a police officer, prosecutor or state criminal judge does implicates one or another of the defendant's constitutional rights.   Most of these rights weren't recognized as constitutional in 1938, when Black was writing.  Today it's nearly impossible for a police officer to obtain evidence from a suspect without a waiver of rights denominated "constitutional."   So not only did one of Black's rules immediately swallow the other, but the survivor quickly burst from its cage.  It has thrived out of doors, like a feral pig grown to State Fair-ribbon size.

Presuming that a confessing suspect didn't waive his fifth amendment right against self-incrimination, or that the drug courier who opened the trunk of the rental car didn't waive her fourth amendment right against unreasonable searches and seizures, is the same as presuming that the cops did something wrong.  They shouldn't have gathered that evidence.

The lesson is that a modern criminal judge is constitutionally required to approach every criminal case with two biases: that the defendant is innocent of the crime, and that the police are guilty of violating the defendant's rights. 

But why should the courts approach questions of waiver with a biased outlook?  The glib answer is: to protect the rights guaranteed by the Constitution.  But that answer assumes that judges would prove inadequate to the task of protecting those rights if they approached the task with open minds  -- and if so, they really shouldn't be judges at all.

Black himself didn't give any reason for his declaration of bias.  The Court's political situation in 1938 offers one possible reason for his reticence.  In reaction to the excesses of the reactionary Four Horsemen who had so enthusiastically wielded their veto pens against New Deal legislation, making up constitutional doctrines as necessary to justify their political prejudices, Roosevelt-appointed justices such as Black felt some compulsion to pretend they took an entirely different approach to their duties.  

If Black had included a defense of the dual doctrines that leapt, Athena-like, from his brow, he would have been tipping off the Court's critics that he was just making the stuff up, condemning actions of the democratically-elected branches of government just because he didn't like them.  And so, in support of his two contradictory propositions, he cited three cases, so he could give the impression that he was actually just offering a pithy summation of long-established authority. 

None of the three cases, tellingly, was even a criminal case.  Black didn't cite them for their holdings, which had no bearing on the actual issues before the Court.  He cited them for stray words and phrases found embedded in their text - for things they said but didn't mean in the way Black pretended to understand them.

One, Aetna Insurance Co. v. Kennedy, involved the interpretation of a fire insurance policy.  The Third Circuit had held that by asking the trial court to grant it a directed verdict (a routine step in all modern trials), the parties waived their right to trial by jury.  To a modern lawyer, that holding was simply ludicrous, and the Supreme Court flipped it.

The second case cited by Justice Black, Hodges v. Easton, was a 19th-century dispute about the ownership of a silo full of wheat.  The judge submitted special interrogatories (that is, specific questions in writing) to the jury, but the jury's answers to the questions didn't fully settle the question of ownership.  The judge then filled in the gaps on his own.  That, the Supreme Court held, the judge couldn't do.  If a jury was going to decide the case, it had to decide the whole thing.

The third case, Ohio Bell Telephone Co. v. Public Utilities Commission, was a rate case in which the state commission, without notice to the phone company, chose "to wander afield and fix the composite value of the system without reference to any evidence, upon proofs drawn from the clouds."  That sort of thing, Justice Cardozo wrote, really wasn't quite right.

None of the three cited cases had anything remotely to do with the situation presented by Johnson v. Zerbst, two Marines caught passing funny money off base who were arraigned, tried and sentenced in one whirlwind day, without the assistance of their lawyer who had taken their $100 and then fired them as clients because they wouldn't take his advice to plead guilty.   (More facts of the case can be found at 13 F.Supp. 253 and 92 F.2d 748.)  But all of them contained asides that had something to do with the waiver of the right to jury trial or (in the Ohio rate case) to a fair hearing, phrases Black stretched to cover the right to counsel. 

Justice Black was himself wandering far afield, drawing his precedential authority from the clouds, when he press-ganged the three civil cases into service as authority for the proper construction of the sixth amendment right to counsel.  Nearly 70 years later, we live with the consequences.

Most lawyers have probably heard the term "bill of exceptions" without having any clear idea of what it signified.  If you dig a 19th-century case file out of the  archives, you'll find that a bill of exceptions summarizes or describes the testimony of the witnesses at trial.  Typically it was approved by both counsel and the trial judge, rather in the style of modern record-reconstruction methods.  See Federal Rule of Appellate Procedure 10(c) and (d) .  Appeals were decided on the basis of these summaries rather than a verbatim transcript. 

Here's a sample of the appellate record from a celebrated 1854 Cincinnati trial, State v. Arrison, in which the homicide was accomplished by means of a booby-trapped box.  The victim was named Allison, making this perhaps the most confusing of the great murder trials of the era.  Allison was steward in a medical college, Arrison a student.  The witness is a Dr. Thomas Cummings:

Arrison and I were fellow students; we roomed together in the Kline building, on Fifth near Sycamore; became acquainted with him in January, 1853, and with Allison in the winter.  When Dr. Baker went away Arrison was house surgeon.  Remember the first difficulty between the two.  It was about a book that Arrison had borrowed from deceased and had injured in some way and Arrison claimed that Allison was charging him too much for it.  The latter said he did so because he was a mean man, whereupon Arrison called him a coward and a lie was passed between them, and at last Allison knocked Arrison down.  He fell as if he had been shot; made Allison quit, and got some water and revived Arrison.  This was over a week before the explosion.  The prisoner later said to me that he had a great notion to kill him and afterwards said it was foolish for him to say such a thing [indeed it was!]; was sitting at the hospital door with Dr. Baker when the package was handed to him; took it and shook it and heard something like sand inside.  There was a string around it and a card directed to Mr. Allison.  Think that was the same card.  Was on the pavement waiting for Dr. Baker to return when I heard the explosion.  It was awful; rushed upstairs and saw Dr. Baker get Mrs. Allison out.  The explosion did great damage blowing out windows and setting fire to the room.  Saw Allison in the faculty room and he was very badly wounded.  His face seemed burned, his intestines protruded and he was wounded in the thigh.

(Mr. Allison  died relatively quickly; Mrs. Allison, whose dress ignited in the blast, died only days later, after her arm had been amputated.)

In Crawford v. Washington, the Supreme Court announced a new test for determining whether the admission of hearsay evidence against a criminal defendant is constitutional or not.  The new test, Justice Scalia's opinion assured us, was "faithful to the original meaning of the Confrontation Clause".

In the American court system, Crawford is enforced by appellate courts, who minutely examine verbatim (or, rather, pseudo-verbatim) transcripts of the trial court proceedings, employing multi-factor weighing tests to determine if certain hearsay is, or is not, "testimonial."  (See post 112.)

But, as the excerpt from the Arrison case should make clear, that type of detailed appellate review is very far from anything the Framers (whoever they were - see post 79 and post 81) might have intended.  Bills of exceptions described the subject matter of the testimony rather than the testimony itself, recording its substance while largely or entirely discarding the words employed to convey it.

So if we are truly to return to an original conception of the confrontation clause, shouldn't we do away with transcripts?  Or - the practical equivalent - provide that rulings on confrontation clause challenges to the form of the question, or the phrasing of the answer, are non-reviewable on appeal? 

Last Tuesday my local paper, the Albuquerque Journal (whose webpage is subscription-only), published two letters to the editor on the same page.  One began: "New Mexico is a lawless society."  The other complained that the installation of red-light cameras "eliminated due process, which is guaranteed to us by the Bill of Rights."

Which is worse, breaking the law or enforcing it in a particular manner?  It's not a new question.  Londoners of the 1830s asked themselves the same thing, as shown in Sarah Wise's wonderful glimpse into underworld London, The Italian Boy: A Tale of Murder and Body Snatching in 1830s London.   (The original title of the book is a tad less lurid.)

The London of the day was indeed a lawless society - perhaps even more so than today's New Mexico, if "lawless" is a relative rather than absolute condition.  The main thread of Wise's story - which is social history built on the scaffold of a case history that ends on a different kind of scaffold - tells the story of a couple resurrectionists who, perhaps inspired by Burke and Hare themselves (here's a contemporary account), burked at least a couple victims, selling the corpses to the most respectable surgeons of the great city for anatomical studies.

It was not a good idea to be a vulnerable person on the London streets of the 1830s.  Unattached women and children were particularly at risk.  After authorities recovered the body of the so-called Italian boy - an overly-fresh corpse offered to a surgical hospital - they asked parents of missing children to view the body, in hopes that someone might be able to give the dead child a name.  

As Wise reports, "The number of anxious parents who had come to see the young boy's body in the Covent Garden watch house, and the tales of loss they told, had amazed the coroner, his jury, the magistrates, and the parish authorities of St. Paul's."   Eight sets of parents came forward, including the parents of a deaf boy (the deaf have always been particularly vulnerable to criminal violence).

Wise reprints a heartbreaking sample of notices printed in the papers:

In the month of March last, Mrs. Hughes, a widow, of No 5, Paradise Place, Frog Lane, Islington, went out one morning to wash, leaving, as was her custom, her little boy at home; and on her return in the evening he was missing, and she has never heard of him since.  ...

[A] boy about nine years of age, the son of a poor woman at Poplar ... was at play with his little brother in the street, and told him that a man had promised him such lots of sugar - a great many basins full - and that he would bring him some when he came back.  He then left his brother and has never returned.

The Weekly Dispatch carried this item: "Among the supposed victims to the 'interests of science' who have disappeared lately is a younth named Smith, about seventeen years of age, the son of respectable but unfortunate people in Grove Place, Camden Town. ...  He left his father's house on business last Tuesday evening, dressed in a blue coat and dark trousers, and has not been seen or heard of since."

Wise reports that the Morning Advertiser "gave regular bulletins of missing children: Caroline Brand, eight, of Wolverley Street, Hackney Road, sent out by her parents to sell bundles of firewood one evening and not seen again, just as her thirteen-year-old brother had disappeared, five months before; and Henry Borroff, a five-year-old, of Barton Court, Hoxton Old Town - gone."

(Pardon me for my uncharitable suspicions, but I think an invitation to Mr. and Mrs. Brand to come down to the stationhouse for separate videotaped interviews might not have been entirely out of order.)

But even as stories of children kidnapped by beggars or murdered by body-snatchers were selling newspapers, Londoners resisted fiercely the creation of the Metropolitan Police - the original bobbies or peelers.  As Wise recounts,

Hostility was also expressed toward attempts to put any Englishman under state surveillance - a distinctly foreign concept, it was believed, that would imperil the freedom of the individual.  There were fears that Peel's New Police would be a militaristic body, placing the country at the mercy of thousands of uniformed petty despots, acting as they wished with full government backing. ...

From the moment of their formation the Metropolitan Police encountered tremendous resistance.  Contempt for Peel's Bloody Gang, Peel's Private Army, the Blue Devils, the Plague of Blue Locusts permeated the whole of London society.  The antipathy was as deeply felt in the drawing rooms of the West End as it was in the capital's "flash houses" - pubs and taverns where stolen goods were fenced and new robberies plotted.  Many among the middle classes wondered whether the arrival of the New Police was simply the first in a line of measures to restrict an Englishman's liberty; even an Englishwoman's liberty was at risk.

Wise then reprints one of those inimitably English letters to the editor of the Times - no other nationality, or perhaps no other newspaper's readership, can combine stuffiness with indignation in quite the same way - deploring the rounding up of prostitutes on the Quadrant, Regent Street (a pretty high class of streetwalkers, one would gather) who had refused a bobby's command to disperse:

I have observed lately various instances of the same illegal and arbitrary conduct.  I am no patroniser of disorderly persons of any class or description, but if our personal liberty is of any value, and is not to be at the mercy of every insolent policeman, I should wish to know by what legal authority this very constitutional force assumes to itself the power of seizing and imprisoning any woman, disorderly or not, who does not choose to leave the streets at their command. 

"If our personal liberty is of any value"?  The same my-way-or-the-highway-to-hell rhetoric is heard every day in American criminal cases.  Here's the concluding paragraph from a Mississippi Court of Appeals judge's dissent in a case involving a defendant who shot a man four times while the man (admittedly, it would seem, not an altogether nice man) worked on his car stereo:

It is tragic in this case that a human life was lost for nothing, but it would be even more tragic if the rule of law was not adhered to, for a failure to adhere to the rule of law imperils the existence of both our nation and the freedoms which it offers. I believe adherence to the rule of law requires that Knox's conviction be set aside as offending the constitutional provision against Double Jeopardy.

It's "even more tragic" to punish a murderer than to murder?  (The dissenting judge didn't question the defendant's guilt - double jeopardy has nothing to do with guilt or innocence.)  At least the Times letter writer of 1832, with his Latinate periods, didn't say that "adherence to the rule of law" required that people be permitted to gun each other down without consequence.

Paul Maccabee's entertaining and enlightening John Dillinger Slept Here: A Crooks' Tour of Crime and Corruption in St. Paul, 1920-1936, goes a lot deeper than its subtitle might suggest.  The "St. Paul System" in effect between the World Wars meant that gangsters were immune from police investigation in St. Paul so long as they committed no crimes there.   St. Paul was base in an interstate game of tag, and the cops were it.  Not surprisingly, this meant that even small towns elsewhere in Minnesota became scenes of bloody bank robberies, but what did the cops in St. Paul care about that? 

The St. Paul system was one of the factors that helped overcome Congress's resistance to a national police force, helping to pave the way for the creation of that ferocious publicity machine, J. Edgar Hoover's FBI.  In Miranda, Chief Justice Warren went on at some length about the FBI's "exemplary record of effective law enforcement" compiled while demonstrating "respect for the  rights of the individual ... consistent with the procedure which we delineate today."  "The practice of the FBI," Warren continued, "can readily be emulated by state and local enforcement agencies."  Here's Maccabee's description of an FBI investigation from 1936:

When [Alvin Karpis] asked to speak with the defense attorney Archibald Cary, the FBI brought the lawyer to the jail and attempted to eavesdrop on the conversation.  Before Cary arrived, "confidential arrangements were made to place a microphone near the place where the conference ... was to take place.  Special agent J.E. Brennan concealed himself in the adjoining cell tier."  But Cary, the lawyer for Minneapolis gangster Isadore Blumenfeld, was no fool: he "began thumping on the table," reported the FBI, "and it was difficult for Agent Brennan to over hear the exact nature of the conversation."

Note that the agent didn't hesitate to put this in his report.  It probably wasn't what the Chief Justice had in mind.