JUDGING CRIMES

During the past week I've been preoccupied with preparing a PowerPoint talk about Crawford to a training conference for victims' advocates and allied professionals.  It's not easy trying to make Crawford make sense to non-lawyers (or to lawyers, either, but then you don't need to: lawyers have been trained to accept without questioning arbitrary pronouncements from the Supreme Court).

The problem isn't so much the theory behind Crawford, which is elegant in its reductionist and intellectually dishonest (see post 238) way.  It's how the Supreme Court has implemented its revolution.

Anyway, trying to think of ways to explain what our courts have recently been doing to domestic violence and child abuse cases - because that's what Crawford is all about, practically speaking (see post 148) (well, and DWI, too) - has been a useful exercise.  I've finally realized something I should have seen many years ago, which is the extent to which our current criminal law system relies on treating different things as if they were the same. 

It's a type of pretend-algebra: if suppressing evidence equals X, and protecting a defendant's constitutional rights equals Y, then X = Y.

Which means, if you were paying attention in 8th grade (and most future lawyers could still get decent grades in math right up to the second semester of that year), 2X = 2Y. 

I think that, and nothing intellectually more sophisticated, is in the back of many decisions in the criminal law.  It can be expressed in a good old-fashioned syllogism:

Protecting the constitutional rights of the accused is a noble and praiseworthy thing for a judge to do, especially if the crime is particularly atrocious. 

A judge protects the accused's constitutional rights by hiding evidence from the jury. 

And so, therefore, a judge acts most nobly and is most worthy of praise when ...

The problem, of course, is that in the real world X equals Y only in the same sense that shopping at Whole Foods equals living a radically-simple, eco-friendly lifestyle.  Or, say, invading Iraq equals smashing al-Qaeda.   

The constitutional algebra of X = Y not only confuses the means and the end, but assumes a connection between the two based solely on the judiciary's good intentions.   Or wishful thinking.  Or willful self-deception.  Or contempt for the weaklings who allow themselves to become victims.  Or whatever you want to call it.

In short, it involves treating two different things as if they weren't different, refusing even to consider the possibility that they're not the same, and proceeding from there.

I was started down this line of thought by, of all things, the back pages of my local alternative free weekly, the Albuquerque Alibi.  Back among the phone-sex ads and personals that seemed designed to make the bored Flying Star patron wonder whether it's more likely to be a scam or just a joke, the paper runs Cecil Adams' Straight Dope.

Far be it from me to question the font of all knowledge.  But still.  Recently the Alibi ran his column recycling the studies that purport to show that sugar doesn't have any effect on the behavior of children, contrary to the observations of millions upon millions of parents - as well as of anyone who has gone without lunch and then, mid-afternoon, washed down a doughnut with a Dr. Pepper. 

Ah, but that's real life.  The studies Cecil cited put mothers and children together in artificial laboratory conditions, and then gave the children either sugar or artificial sweeteners, and then tried to see if the mothers could tell which group their kids belonged to.

Now, it seems obvious to me that: (a) there's no reason to assume without evidence that artificial sweeteners have no effect on children's behavior; and (b) no one cares whether sugar has a different effect than artificial sweeteners - the question is whether it has a different effect than real food; and (c) the kids' behavior will change when in unusual situations, such as those of the experiments; and (d) the parents' behavior will change when told to watch for signs that their child is beginning to get out of control, especially if they feel their parenting skills are being judged by the psych students or fellow-parents; and so on. 

The studies answer question A: Whether parents can tell  if their kid has been given a sugary drink or an artificially-sweetened drink in highly artificial conditions.  The premise of Cecil's column (and, of course, the studies he was writing about) is that the answer to question A equals the answer to question B: Whether a kid can sit around the house all day and eat tons of sugary things without getting all weird.

Personally, I think an argument could be made that the two questions are not actually the same.

 A similar example, also from the fringes of science, was the recent meta-study, given huge publicity, that purported to show the inefficacy of SSRI antidepressants in treating depression, contrary to the experience of millions of patients and mental health providers.

But if you read down to the 9th paragraph of this article, you'll find that what the meta-study really examined was changes in patients' scores on "the Hamilton scale."  The study concluded - and I have no reason to doubt the validity of the conclusion, for all that I wonder if the authors had an agenda - that treatment with antidepressants generally doesn't result in significant changes in the Hamilton scale. 

(Possible agendas involve the secrecy-bordering-on-wholesale-deception of the drug companies - more here - and the allocation of public health monies in the U.K. as between talk therapy and drug therapy.)

Now, the Hamilton scale is a screening device used by mental health professionals to determine if a person is seriously depressed.  It assigns the patient a score, varying from 0-2 to 0-4, on 21 subjects such as suicidal ideation, and then adds up the scores.  

The Hamilton scale is doubtless useful for a triage nurse trying to figure out whether a person is an immediate danger to him- or herself.  But it's an extremely crude method for measuring the emotional and mental state of a human being.   It's a little like asking your colleague if she prefers Italian or Chinese food - good information to have when choosing a restaurant for lunch, but not all that revealing about the person's inner life.

So what the meta-study was measuring was changes in patients' responses to simple questions repeated over time.  The premise of the meta-study is: when M equals changes in the patient's answers to repeated questions, and N equals the patient's mental health, then M = N.

My only objection to the study is: No, it doesn't. 

At this point in our legal history, I'm afraid that too many judges and staff attorneys have too much emotionally invested in the idea that X =Y to begin questioning the equation now.  Because if it turns out that concealing evidence from the jury isn't the same thing as protecting a defendant's constitutional rights, then they have a lot of 'splaining to do.

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? 

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sometimes judges say ludicrous things earnestly, without the extra dollop of smug self-congratulation necessary for inclusion in the coveted Fatuity Watch category.  Take, for example, the opinion written at the end of August by Philadelphia's 76-year-old federal District Judge Jan DuBois, shown here eavesdropping on a conversation between an earnest David Letterman and Ed Harris wearing an overcoat in this fall's hottest color, dung.

The opinion, a 59-page thing, was merely a pretrial order.  But it was entered in United States v. Kofsky, the prosecution of a bariatric doctor, i.e., someone who could afford a ream-devouring defense.   Here's the pdf.  Dr. Arthur Kofsky was "charged in a 476-count Second Superseding Indictment in connection with the distribution of prescription diet pills, phentermine and phendimetrazine, though his medical practice." 

476 counts sounds like a number settled on for the purpose of proving, once and for all, that everything defense lawyers say about prosecutors "overcharging" cases is true.  But, according to an affidavit in support of an application for search warrant, Dr. Kofsky "purchased 32,000 pills the week of June 29, 2004" - so this is a case of Big Numbers all the way around.

A federal magistrate issued the search warrant and federal agents took it into the doctor's office.  While there, they talked to the patients in the waiting room.  At the subsequent suppression hearing, Dr. Kofsky argued that the agents violated his fourth amendment rights by talking to the patients since "the search warrant 'did not contain any language authorizing the agents to extend their intrusion by interrogating patients.'" 

The fourth amendment is concerned with "searches and seizures".   The critical question in every case is whether the defendant "'has a legitimate expectation of privacy in the invaded place.'"  Dr. Kofsky's argument was that he had a legitimate expectation of privacy in the contents of his patient's heads (though presumably his lawyer phrased it rather more artfully).

And Judge DuBois bought it.  He held, in practical effect, that Dr. Kofsky owned his patients' memories.  He had the right - the constitutional right - to prevent his patients from being asked to talk about their own lives.

Of course, Judge DuBois didn't phrase it quite like that, either, though in his case I suspect the imprecision of his language was the result of artlessness.   There's nothing in the opinion to suggest that either he or his clerk understood what their opinion said.  

Whoever wrote the judge's opinion relied on the mechanical mental process lawyers learn in law school.  The syllogism makes sense on its own terms: (1) the agents could lawfully seize only such evidence as was specifically mentioned in the search warrant; (2) the interviews constituted a form of evidence; (3) therefore by obtaining the interviews the agents unlawfully seized evidence not mentioned in the warrant.  

In order to avoid becoming aware of the ludicrousness of recognizing a doctor's constitutional right to control access to his patients' axons and dendrites, it's essential to close your mind to the existence of any facts not stated in the syllogism's two premises.  And Judge DuBois or his clerk successfully did so.  They refused to let themselves be distracted by the possibility that a doctor's patients could conceivably be autonomous human beings rather than two-legged filing cabinets.

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.

We live in the Romantic Age of judging.  I'm not referring to the mash notes judges sometimes send each other, e.g., "the sagacity of the numerous Ninth Circuit judges who have written before us."  That's from Ninth Circuit Judge Ferdinand F. Fernandez, and the only whiff of the sage he gives off comes from dinner.  (See post 143.)   That level of infatuation, or self-infatuation, qualifies as romantic in some sense, or even several senses, but only one of them is the sense I have in mind.

I'm talking about the lit-crit kind of Romanticism.   The New Yorker recently reviewed Ann Wroe's paean to Percy Bysshe Shelley.  Ms. Wroe was apparently concerned that Shelley, one of the original better-to-burn-out-than-to-fade-away types, hadn't written a sufficient number of such paeans to himself.   In his review, Adam Kirsch described Shelley's politics, which were ahead of his time in rather distressing ways, such as his  enthusiasm for liquidating the intolerant in order to usher in an era of universal tolerance.

Another hallmark of Shelley's politics, according to Kirsch, was his "indifference to reality."  And that's what first reminded me of the characteristic American style of judging.  The idea that courts should occupy themselves with courtroom representations of reality, and hold reality itself at bay, is at the very heart of the judicial project. 

Jurors in every American jurisdiction are told, in no uncertain terms, to base their verdicts strictly on what they hear in court.   What they hear is filtered by the rules of evidence - in their codified form, a 1970s phenomenon - which after defining "relevant evidence" are mostly devoted to cataloguing types of relevant evidence that must be concealed from the jury.  

The phrase "constitutional criminal procedure"  refers to a body of case law developed since the 1960s that consists of almost nothing but the systematic widening of the gap between the reality outside the courtroom and its representation inside.   And a juror who possesses relevant information before the trial begins will be "struck" from the panel, the violent term indicating something of the horror with which such independent knowledge is viewed. 

There are elaborate reasons for all of this, and some of the reasons make sense.  My point isn't to argue with them, but to point out their common denominator: the Shelleyan indifference to reality.

Kirsch's review includes another passage striking, so to speak, even closer to the Romantic heart of judging:

But his political beliefs demonstrated the same contempt of consequence, the same elevation of pure motive over practical effects, the same lack of self-awareness.  These qualities helped to make Shelley a genuinely illiberal thinker, whose politics verged at times on the totalitarian.

Who else do we know that trumpets pure motives while demonstrating a contempt of consequence?  Our violent crime rate today is three times what it was in 1960, before the decisive judicial intervention in law enforcement.  Have you ever heard a judge acknowledge the possibility that the two phenomena might be related?  

Our prison population has grown incredibly since 1980.  Have you ever heard a judge acknowledge the possibility that the difficulty of convicting guilty people might have some connection to the length of sentences eventually imposed?  Increasing sentences is almost the only lever the legislative branch has for controlling the judiciary's disposition of criminal cases, which makes increasing sentences for drug crimes a rational - if, as I believe, socially-destructive - response to judicial decisions suppressing physical evidence virtually at random in the name of an ever-morphing fourth amendment.  (See post 126 and post 53.)

Judges' rhetoric distances them from the consequences of their acts.  Justice Scalia, for instance, acknowledged that one of his decisions would "have the effect of allowing the guilty to go free" - implying that the only consequence would be a reduction in the judicial system's efficiency and not, for instance, the repeated infliction of physical pain on vulnerable people.  (See post 274.) 

The Court could only forestall that unfortunate outcome, Scalia wrote, if it were impermissibly to "vitiate constitutional guarantees" - although the constitutional guarantee in question was invented just two years earlier in another opinion written by the very same Justice Shelley.  So he recognizes in himself the power to invent new constitutional guarantees, but when faced with their unfortunate consequences says he's powerless to alter them.

Again, perhaps this two-facedness - which is deeply ingrained in American judges at all levels, and accepted without demur by virtually all American legal academics - can be justified doctrinally.  But it's far easier to explain on psychological grounds: power is gratifying, responsibility isn't.

(I actually would reverse Kirsch's terms in one particular, though: I think it's more accurate to say judges express contempt for reality and indifference to consequences rather than vice versa.)

Mike Luckovich recently published this cartoon, wondering whether President Bush can really veto reality.  Luckovich's blog recommends this David Ignatius column asserting that "only a visitor from another planet" could believe the President's recent praise for the "candor" of an Attorney General who seems almost cartoonishly incapable of telling the truth.  

In official Washington, many influential people believe - or act as though they believe - that meaning precedes reality, and that Rove-like spin isn't just a technique but a philosophy of life.  Ron Susskind famously described a conversation with a Bush advisor:

The aide said that guys like me were ''in what we call the reality-based community,'' which he defined as people who ''believe that solutions emerge from your judicious study of discernible reality.'' I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ''That's not the way the world really works anymore,'' he continued. ''We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do.''

This is by now a notorious quotation (although I think there's an element of validity to what the aide was saying: the water in the tank is altered by the elephant stepping into it).  Now flash forward to the spring of 2007, and the U.S. Supreme Court's annual spring ritual of releasing opinions, among them the recent Texas death penalty cases.   (See post 263.)  As described by Orrin Kerr over at the Volokh Conspiracy, one of the cases

considered whether the Texas courts had misapplied "clearly established" U.S. Supreme Court law in a death penalty case.  ... The majority wanted to grant relief, so they tried to make the law seem "clearly established" when it really wasn't. To do this, the majority had to get a little creative in what kind of U.S. Supreme Court law it thought could "clearly establish" the law. Of particular note, today's majority opinion by Justice Stevens twice cites a dissent Justice Stevens wrote in a 1988 case for authority that a particular view of the law was "clearly established."

  At the end of his dissent today, Chief Justice Roberts mocks the idea of getting clearly established law from a dissent. Here's the last paragraph:

      Still, perhaps there is no reason to be unduly glum. After all, today the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented clearly established federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road, but tunc pro nunc [that is, with retroactive effect]. Encouraged by the majority's determination that the future can change the past, I respectfully dissent.

But there is one sense in which last month's majority opinion was entirely accurate when it described Stevens' dissenting opinion of 19 years earlier as a source of "clearly established" law.  And that sense is this: a majority of the justices in 2007 said it was.

In the strictly-hierarchical judicial system, what five or more justices of the Supreme Court say is indisputably true, regardless of whether it has any basis in objective reality.  So therefore it's true that Stevens' dissent clearly established the law in 1988, even though it so clearly didn't.  When the Supreme Court acts, it creates its own reality. 

But was Roberts revealing himself to be part of the reality-based community, or did he use reality for the same reason a Neandertal used a given stick, because it was the handiest bludgeon with which to attack his enemy?

John Yoo isn't the sort of guy I would have pegged as an acolyte of William S. Burroughs, the gay junkie avant-grade novelist.  But then Burroughs was an enthusiastic - dare one say over-enthusiastic? - gun owner, and he did come from money, and he certainly favored a gray flannel look.  Reason's blog is probably right that his politics, to the extent they possessed any coherence, were libertarian-conservative.  Take a look at these quotes: many would sound incongruous coming from Wayne LaPierre, but by no means all of them.

So maybe it's appropriate, after all, that Yoo seems to have appropriated Burroughs' cut-up technique.   His book, War by Other Means: An Insider's Account of the War on Terror, reads as if a short memoir of his two-year visit to real life, random pages from his law review articles and a year's worth of Karl Rove blast-faxed talking points were cut up, sprinkled on a roll of butcher paper and then printed in the order in which they fell.  They were adorned with a not-exactly-complimentary lede from a New York Review of Books review ("[f]ew lawyers have had more influence on President Bush's legal policies in the 'War on Terror' than John Yoo") and dumped on an unprepared public.   The New York Times' review captures the weird shifts of tone in the book.

(Many of our best known and most influential lawyers, such as Antonin Scalia and Ruth Bader Ginsburg, hardly practiced law, but Yoo does them one better: he's never practiced the profession.  No wonder he's so confident in his legal opinions.)

But the thing about Yoo's views, and the "unitary executive", and all the rest of the Bush Administration's half-revealed legal doctrines, isn't how weird and far-out they are.  It's how familiar they should seem to lawyers.

I ran a Westlaw search for law review articles by Yoo that used the phrase "inherent power" and came up with 10 hits, and that's not even counting two articles by Professor Christopher Yoo that use the same phrase.  (Has anyone ever actually seen the two Yoos in the same room?)  John Yoo's whole theory (and for all I know, Christopher Yoo's theories, too) are wholly built on the foundation of inherent power.

Back in 1924, Felix Frankfurter and James M. Landis co-wrote an article in which they warned that "[t]he accumulated weight of repetition behind such a phrase as 'inherent powers' ... is a constant invitation to think words rather than things."  (37 Harvard Law Review at 1022-23) 

When you think things rather than words, you realize that "inherent power" simply means extra-constitutional power.  (See post 32.)  Power that's granted by the Constitution isn't inherent in the office, but - by definition - is power bestowed on the office by the Constitution,  a source external to it.  Only power that isn't conferred by the Constitution can be said to be inherent.

Most of the powers exercised by the United States Supreme Court are inherent in this sense.  Even the basic concept of judicial supremacy - euphemistically known as "judicial review", as if it occurred in the back pages of a highbrow magazine - isn't granted by the Constitution, but was assumed by the judiciary.  The power to make prospective rules of universal application, a core legislative function, was first assumed by courts only in the post-WW I era (sometimes with legislative acquiescence).  And it's really only since the 1960s that courts have discovered in themselves a power to refuse to enforce criminal laws.  

If these powers aren't inherent in the judiciary, then the judiciary's exercise of them is politically illegitimate.   Therefore - by the usual lawyer's technique of constructing syllogisms backwards, beginning with the conclusion - they must be inherent.

The Bushies' concept of executive power, I think, boils down to this: The executive branch has the same authority as the judiciary to begin exercising power and then claim it possessed it all along.  True, the Constitution doesn't grant the power, but that's because the power was latent, like secondary sexual characteristics in an infant, to be revealed in the fullness of time.

If you force yourself to think words rather than things, you can (apparently) believe this.  And that's the other way in which the Bush Administration's constitutional vision should be familiar to lawyers: its faith in the efficacy of editing reality. 

Our judiciary has committed us to Trials Without Truth, in Professor William Pizzi's phrase, just as our administration has committed us to a foreign policy based on the careful construction of an alternative reality.  Judges routinely conceal crucial information from juries, while the Bush Administration conceals crucial information from the public and Congress.

And not just from them.  One of the striking revelations of Rajiv Chandrasekaran's beautifully-written, scrupulously-reported Imperial Life in the Emerald City: Inside Iraq's Green Zone is the extent to which the neoconservatives' alternative foreign ministry inside the Pentagon deliberately concealed important information from the Americans charged with reconstruction. 

For example, Jay Garner was sent over to Iraq to organize the occupation government without having seen "any of the reams of postwar plans and memoranda produced by the State Department, or any of the analyses generated by the CIA, or even the unclassified report written by the military's own National Defense University based on a two-day workshop involving more than seventy scholars and experts."  In fact, Undersecretary of Defense Douglas Feith told Garner that no such studies existed.

Why?  Feith figured that, "without a clear blueprint for the political transformation, Garner would turn to [Ahmed] Chalabi and his band of exiles.  Feith would get the outcome he wanted [that is, Chalabi in power] without provoking a fight ahead of time with State and the CIA, both of which regarded Chalabi as a fraud."

(As it turned out, "fraud" may be the least of it: you may recall that Chalabi was accused of passing key American military intelligence to Iran, charges that the Bush Administration seems disinclined to investigate.)

Feith is another lawyer who's spent little time actually practicing law.  But his belief that you can produce optimal results by withholding relevant information from the decisionmaker puts him right in the mainstream of American legal thought. 

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

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

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

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

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

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

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