JUDGING CRIMES

It's time to pay another visit on Alabama Circuit Judge Stuart Dubose.  (See post 191 and post 306.)  The Alabama Judicial Inquiry Commission filed a pretty spectacular complaint, but it was topped by Judge Dubose's answer -- which was then topped by the Alabama Supreme Court.  

There's such an abundance of riches in the complaint, it's hard to pick a favorite.   If one credits everything in the complaint (and of course these are mere allegations), Dubose was running hard for the title of the Worst Judge in the History of the World.  And he had a real shot at the record, too.

There's the probate matter, featured over at Death and Taxes Blog.  There's his habit of revoking probation without notice to the probationer.  Then there's the divorce case in which he took it upon himself to telephone the attorney for the father - the most elementary no-no for a judge - to inquire what visitation rights his client wanted.

The attorney told the judge, and the judge granted overnight visitation without notifying the attorney for the wife -- who, therefore, did not have the opportunity to inform the judge that the county Department of Human Services was just then investigating an allegation that the father had sexually abused the child in question.  (The attorney for the father didn't know about it, either.)  The father was also facing felony charges, but I can't tell from the complaint if those relate to the same allegation.

After his attention was brought to the salient facts, Judge Dubose convened a hearing to assign blame, stating from the bench:

It is extremely upsetting to this Court that this Court be put in a position where it is not informed of the circumstances ... until after the Court has been allowed a month to ill-advisedly or unadvisedly, in an attempt to try to accommodate lawyers and their clients to settle a dispute and to just let a daddy have some time with his youngun, when the file doesn't reflect anything out of the ordinary ...  [T]he point of this exercise today is to try to do something to ensure that, at least as far as this Judge is involved, that this don't happen again. If I have to be informed of every investigation that the Department does, then I'm going to order it done.

The other alternative, of not calling up counsel for one side and issuing ex parte orders, apparently didn't occur to the judge.   The judge's chief concern was that he might be featured on the Bill O'Reilly show, which is the most positive thing I've ever heard said about Bill O'Reilly.

When an attorney for the Department of Human Services made an appropriately smooth non-apology apology - he "apologized to the Court in the event DHR had done anything to place Judge DuBose in an awkward position" -  the judge explained the real cause of his ire: "But, considering what I have been through, this looked like a set-up to me."   When the attorney for the wife suggested politely that perhaps the problems could have been avoided if the judge had allowed his client to participate in proceedings concerning her child, the judge turned to his court reporter, poised at her stenotype machine: 

"You [Ms. Dunn] take your hands off the machine. Don't you write one thing he's saying. I'm running this show. This is my courtroom. We'll do it how I want to do it." In addition, Judge DuBose declared that he would put on the record whatever he wanted to put on the record and that nothing was going on the record unless he wanted it on the record.

He even told his court reporter to give him all her materials from the hearing and to delete the transcript from her computer (which she wisely chose not to do).  So far as the complaint reveals, Judge Dubose evinced no awareness that a child's welfare might also be involved.  Or, for that matter, a parent's.  (If you mentally remove the Phil Donahue thing from his head, Dubose even looks like a big baby.)

Then there's the judge's loudly-repeated threats to hometown Mobile attorneys in order to send a message to Mobile judges to stop obsessing about Judge Dubose:

"You need to go and let these judges know that I know they're meeting about me and how they got to stop fucking with me. They better be careful because I've got eyes and ears down there." Then he stated the following or words to the same effect: "You know John there are a lot more lawyers from Mobile that come up here than lawyers from up here that go down there. I'm going to send a message through these lawyers that come from Mobile that the judges need to stop messing with me."

After Dubose won the bitter Democratic primary - he won on the platform that his opponent was an unmarried man, nudge, nudge (see post 191) - the itty-bitty bar in his three-county district threw a reception for him at Ezell's Catfish House.  (More photos here; a U.S. Senator's invocation of the place as a reason for opposing economic development in Vietnam here.)  (The three counties in the First District have a combined population of a little over 70,000 souls, plus Dubose.)

Dubose stood up and promised to hometown opposing attorneys:

He told the Circuit's attorneys in effect that, with him as judge, they would have a "home-field advantage" over lawyers from other circuits. He also more specifically stated that they would have the home-field advantage in cases where the opposing counsel are lawyers from Mobile or Birmingham or defense attorneys.

After becoming judge, Dubose began systematically summoning lawyers who had supported his opponent in the primary and demanding that they sign pledges to support him when he ran for reelection.  Several attorneys caved, though perhaps only on the theory that it's best to humor an insane person holding a gun to your head, even if only figuratively. 

During a hearing, he peeled off his robe (apparently believing that it was the garment that imposed ethical restrictions, as a straitjacket on the conscience) and threatened any lawyer who cooperated with the Judicial Inquiry Commission: "I might be older or I may not be what I used to be, but I can still stomp a mud hole in an ass and walk it dry with the best of them."

(That right there tells you he's unqualified for his position.  Better judges deliver the same message through intermediaries, or warning-shot adverse rulings, preserving their plausible deniability.)

I'm leaving out a lot, but only because there's something even better in Dubose's answer to the complaint. After a blanket denial, he pled diminished capacity.

"Diminished capacity" is not guilty by reason of insanity lite.  A person who's not crazy enough to be acquitted may nonetheless be entitled to have charges reduced because he lacks the mental ability to appreciate the consequences of, say, shooting his estranged wife in the head.  Most of the time, naturally, the cause of the purported mental incapacity is alcohol or drugs.  Often, it comes down to asking the jury to go easy on you because, not only are you a killer, but you're a drunk, too.  It's what you might call a last ditch defense.  A before-the-current-drought kind of last ditch, at that.

In other words, Dubose's defense to the charge that he's unfit to remain a judge is that he wasn't fit to be a judge in the first place.  You have to admit, he has a point.

But just when you think things couldn't get more twisted in the poor old First District, along comes the Alabama Supreme Court to provide a final turn of the screw.   By a 5-4 majority, the court concluded that "the important constitutional issue of maintaining an independent judiciary" meant that the Alabama State Bar couldn't proceed with disciplinary proceedings against Dubose.  It didn't matter that disciplinary charges were filed before he descended the bench.

Some things are just more important than enforcing the legal profession's rules of ethics.  And immunity for judges has to rank high on anyone's list of what those things are.

(The Alabama Supreme Court makes it very difficult to view its opinions online, presumably because the justices are ashamed of their work, as indeed they should be.  The opinion is Alabama State Bar v. Dubose, issued March 14, 2008, available for only $200 from the Alabama Supreme Court.) 

Surely that's enough plot twists and turns?  Nope. 

Although I try to avoid focusing on parochial interests -- and, to be frank, there's something liberating about writing about people who don't have the power to revoke my license to practice my profession -- nonetheless Albuquerque's ex-Presiding Judge John Brennan has already rated a mention, thanks to his  arrest for cocaine possession.  (See post 38.) 

That would be enough for some people.  But certain personalities, once they taste the intoxicating liquor of mention in this blog, find themselves unable to resist the temptation to sip it again:

According to police reports:
    Officers heard screams shortly after arriving in Brennan's neighborhood. After determining they were coming from what turned out to be Brennan's house, they approached the front door and heard a woman scream, "Please let me go" and "Ouch, you are hurting me." They also heard a male curse at the woman and say, "Because of you and your big mouth, the cops are going to come."
    The woman responded, "Why are you doing this? Please let me go. You're hurting me" as country music blared in the background.
    The officers then heard what sounded like the woman escaping and heard her scream, "Help! Help!"
    Two officers then peeked through a set of French doors and saw Brennan with his hand over the woman's mouth and his arm wrapped around her throat.
    The officers drew their guns, kicked open the door, ordered Brennan to let go of the woman and placed the former judge in handcuffs. At the same time, a third officer was forcing his way through a back door.
    "I immediately recognized the male subject as former 2nd Judicial District Judge John Brennan," one of the officers wrote in a report.
    The woman told police that Brennan was upset because he wanted her to have sex with a prostitute and she refused.
    He then chased her through the house and grabbed her by the hair and neck several times, she told police. At one point, the woman locked herself in a bedroom and removed a window screen in an attempt to escape, but the window was too high.
    The woman told police that Brennan grabbed her hair and was going to "snap" her neck. She told police that she thought Brennan was going to kill her.
    When questioned by police, Brennan said, "I didn't touch her" several times. He also told officers, "I would never hurt a woman."
    "Mr. Brennan did emit an extremely strong odor of alcoholic beverage and his eyes were blood shot and watery and his speech was slurred," one officer wrote in his report.
    Brennan was chief judge in the 2nd Judicial District in Albuquerque for nearly 20 years. On Memorial Day weekend 2004, he was arrested on suspicion of driving while intoxicated and cocaine possession. He resigned from the bench shortly afterward.

That's all from the Albuquerque Journal.  Needless to say, Brennan responded to the earlier arrest by going to a rehab center, but as the news story tragically reveals, he has since backslid into listening to country music again.

The next time you find yourself dressed down by a judge, it's worth imagining him or her dressed up like Judge Brennan when the police kicked in his door, "wearing only a mock turtleneck and gray underwear".  No word on whether the underwear was gray when it came from the store.

Brennan, as the story says, was an extremely powerful judge for a very long time, with the power of assigning cases to fellow judges who played along with him. 

It's hard to read the recent news stories without (a) feeling a tinge of pity for him; (b) feeling a great deal more pity for his wife (who was out of town -- you don't suppose Brennan was basing more than his wardrobe choices on Risky Business, do you?); and (c) suspecting that his cocaine problem is/was a very severe one.  Long-term cocaine use destroys the brain, and Brennan's brain seems pretty much destroyed by this point.

Our Supreme Court responded to the scandal of his 2004 arrest by adopting the approach used by Catholic Church bureaucrats to deal with pedophile priests, treating it as a personal failing to be addressed with sorrowful discretion.  (See the appendix to this opinion.)

The real scandal wasn't Brennan's use of cocaine.  It was his use of power.  No matter how one tries, it's not easy to avoid the suspicion that for some part of 20 years the court system in New Mexico's only large city was presided over by a cocaine addict.  If so, then obviously his suppliers knew it.   Of course, most cocaine dealers would be too scrupulous to take advantage of such information.  Still ...

There's nothing remotely unique about the New Mexico legal establishment's reluctance to engage in such irresponsible speculation.  Prayer and penitence -- that's the ticket.  Oh, and harumph, too.

The February 27 New Republic has a review of a book about neoconservatives that includes a passing reference to "the madmen at AEI", meaning the American Enterprise Institute.  On the same page, just one column over, is a long, meandering review by someone described as "a psychiatrist [and] a resident scholar at the American Enterprise Institute." 

Pace the prior article, this author is not technically a madman, to judge from her photograph on the AEI website.  Just a mad-doctor.

Anyway, the issue also has a review of a new Yale Press book by Yale Professor James Q. Whitman called The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial, which appears to be one of those academic books in which the author points out an interesting overlooked aspect of the past and then insists that it provides the key for understanding everything, everything, do you understand, everything!  You know, the usual scholarly thing.

The book is reviewed by the Joyce Carol Oates of the legal academy, the graphomaniac Judge Richard Posner, whom Nassim Nicholas Taleb terms "one of those people who should spend more time reading and less time writing".   The TNR review confirms Taleb's judgment (which he immediately softens with some nice and well-deserved compliments - Posner is an extremely interesting and intellectually curious person, even though he is a judge).  The review's first sentence is adapted from the first sentence of the publisher's advertising copy, while the review's second sentence reads:

To punish an innocent person is more costly than to acquit a guilty one, since convicting an innocent person imposes heavy costs of punishment on him and on the criminal justice system (the cost of administering the sentence) while the main consequence of acquitting a guilty person is merely to reduce, probably slightly (unless such acquittals become very common), the deterrent and incapacitative effect of the criminal law.

As it happens, I was induced to read the entire review because I was trapped on an airplane.  I couldn't help wondering, just a tiny little bit, if it were really true that the costs of acquitting a guilty person are quite as low as Posner assumes.  For instance, upon landing at Logan I walked by Boston Herald newsstands featuring this story:

The serial sex fiend busted for allegedly stalking a woman in a Braintree bookstore bathroom left a trail of escalating depravity encompassing nearly a dozen incidents over seven years, including a violent attempted rape.

Judge Richard T. Moses knew twisted sex freak David Flavell’s history of arrests from New Hampshire to Fairhaven when he set free the Level 3 offender in 2006, ruling he posed no danger to the public, according to court filings obtained by the Herald.

Well, it's a tabloid.  But the heated-up, mad-editor style doesn't mean it's wrong.  A follow-up article said the suspect was separately charged "with making obscene or harassing phone calls for dialing the National Center for Missing & Exploited Children to report he had just indecently assaulted a 6- or 7-year-old girl, a Boston police report said."  A Sunday article listed other Massachusetts sex offenders who have been re-arrested for sex crimes after being found not to qualify for sexual predator status.  

Well, okay, that's Boston.  How about in Judge Posner's hometown of Chicago?  Three hours in O'Hare on the way home gave me time to read the Daily Herald, the paper for the northwestern suburbs, where the above-the-fold headline was "The hurt doesn't go away: Parents remember daughter who lost life in a single moment of violence."  The story was about Matthew Cunningham, whose months-long murder trial is set to finally end in the next few days:

Every day Bill Albu reads about people dying -- in drive-by shootings, in car accidents, on college campuses.

He thinks of the victims' families and how their lives will never be the same. Sorrow will follow them to the grocery store, to family weddings, everywhere.

He knows.

His daughter, former Arlington Heights resident Katie Albu Spain, 28, was spending a quiet night at home with her son when she heard a smoke alarm go off somewhere in her building.

She opened her front door and ran into Matthew Cunningham, who had just killed his roommate, Robert Barker. Cunningham then stabbed Albu more than 30 times. She died in the hallway of her Phoenix apartment building in Arizona.

Bill Albu, the father, said about other parents of murdered children: "'There are people who walk around with unbelievable sorrow in their lives and you'd never know it,' Bill said.  'These are the most compassionate people.'"  He described the awful moment at parties when new acquaintances ask about his kids.

On page 4 was a story with this lede: "A 16-year-old boy accused of stabbing an Elgin High School teacher appeared Friday in Kane County circuit court on sex assault charges, offenses prosecutors allege took place about five months before the school attack."

And on page 6 was the headline: "Sister's words bring killer to tears" over this story:

For weeks, Eric C. Hanson remained composed while facing a DuPage County jury that will decide if he lives or dies for killing his family.

He never broke down despite horrific details of the quadruple homicide, a grueling five hours on the witness stand, or when he heard the word "guilty" for the first time.

But the Naperville man's stoical expression changed Friday when his older sister, Jennifer Williams, described the sad irony of his crimes.

"Eric murdered the only people in his life that loved him unconditionally -- my mother, father and sister," she said, "the most wonderful people that I was so fortunate to have called my family." ...

Hanson, like most of the worst killers, had a troubled childhood.  The jury heard this about his past:

As he aged, Hanson was convicted of home invasion, retail theft and, in 1999, aggravated battery. Three girlfriends described how he lied, stole and, on a few occasions, became violent.

Most disturbing, though, was a 911 call involving his sister, Kate, on Feb. 10, 1993, when she told police he held a knife against her throat when they lived in Burnsville, Minn. Eric was 16. 

"(He) got very mad at me and grabbed the top of my hair and threw me down on the hardwood floor," said officer Eric Gieseke, reading Kate's statement. "His face turned color because he was so angry. He said, 'I might as well kill you because as soon as my probation officer finds out, I'll be sent away anyway.' He said, 'I can cover it up. No one will know.' "

Kate got away. Twelve years later, she did not.

On Sept. 29, 2005, police discovered the bludgeoned bodies of Katherine "Kate" Hanson-Tsao, 31, along with her husband, Jimmy, 34, in their upscale Aurora home.

Terrance Hanson, 57, and his wife, Mary, 55, also were found slain there. The elder couple was shot in their bed in Naperville, where son Eric also lived, then taken to Kate's home five miles away.16.

Okay, but that's the suburbs.  How about Chicago itself?  The Sun-Times headline yesterday was: "Unforgiven".  This was the story:

On June 7, 1969, [Terence] Knox was a young cop nicknamed "Tinsel" because he wore braces. He was on patrol when he saw Pannell and thought maybe the youth was playing hooky from high school. Knox tried to question Pannell, but Pannell answered with bullets.

Knox was hit in the right arm.  At the time, Pannell, a Navy deserter, told investigators he was a member of the Black Panthers. Pannell never went to trial. Instead, he fled to Canada, where he assumed a different identity, married, had four children and became a respected member of his community. ...

[Knox] spoke of the "excruciating pain" that sometimes causes him to stand up and leave the room during business meetings. Knox said he hides his wounded arm beneath long sleeves. He showed reporters the fingers of his right hand -- puffy and purplish in color.

And Knox talked about the mental pain of seeing Pannell on Friday -- the first time since 1973.

"I had a hard time sitting in court today, very hard because it brought back memories I've tried to block out, and I don't want them back," Knox said.

The main consequence of acquitting the guilty, Posner writes in the review I happened to have just finished as I walked past these various news boxes, "is merely to reduce, probably slightly ... [the] incapacitative effect of the criminal law."  He meant: is merely to leave the guilty criminal free to commit additional crimes. 

I don't know if Cunningham or Pannell had prior records, but it's safe to say that the absence of any incapacitative effect on Flavell and the others featured by the Herald, the 16-year-old teacher-stabber and Hanson had costs that could be described in somewhat less-abstract terms than Posner chose to use.

But then, those costs aren't borne by judges, are they?  It's possible Posner was being ironic (though irony, and humor in general, seem generally beyond his range), because the book he was reviewing argues that "the reasonable doubt formula was originally concerned with protecting the souls of the jurors against damnation."

Acquitting the guilty has low costs for judges.  In fact, if the judge takes care not to inform him- or herself about the remote consequences, it need not have any costs at all.  The key thing is to avoid reading papers like the two Heralds or the Sun-Times, which might suggest the disturbing possibility of life outside the courtroom.

We met Florida's Judge Michael E. Allen in post 272.  He got in trouble with the otherwise-rational Florida Judicial Qualification Commission by poaching on its turf.  As the Commission explained in its complaint, it's unethical for a judge to let the public know about what goes behind the smooth blond wood paneling  of its appellate courts, because the judge is supposed to tell the Commission instead. 

Of course, there's larger issues at stake, too.  Like: letting the public know what really goes on in its courts would tend to diminish public confidence.  It's striking that the Commission doesn't contend that Judge Allen said anything false, or even inaccurate.  The supposed ethical violation is simply that he said it about his colleague, in contravention of the convention of unctuous displays of brotherly (well, brethrenly) esteem.

Anyway, ABC News has picked up on it with a story that quotes other court employees venting their feelings about Judge Allen's antagonist, Judge Charles J. Kahn, whose publicity photo seems designed to create the impression of someone who doesn't know how to relax.   The story reports that Judge Kahn "was described by his colleagues as acting, at times, 'volatile,' 'irrational' and 'schizoid.'"

Let's see.  The DSM list of symptoms for schizoid personality disorder include "Social withdrawal, or continual avoidance of social activities / Flattened emotions or lack of expressivity / Having little to say".   You can see where combining that with irrational volatility might be somewhat disorienting to coworkers.

But, hey, we only pay 'em to sound like they know what they're talking about when they use fancy words in their opinions.  I think what the speaker - Chief Judge Edwin B. Browning - meant was something more along the lines of Dr. Jekyll and Mr. Hyde, or perhaps Boopsie and Hunk-Ra.

Really, the competition for a featured place in this blog is getting out of hand.  I want to assure all my judicial readers that, whatever you might think, it's not necessary to go to the lengths of Las Vegas Judge Nicholas Anthony  Del Vecchio to get your name featured here.

First, some background on the man who would choose such a remarkably unflattering photograph as his official face to the world.  This is from Las Vegas Review Journal for November 19, 2000:

Del Vecchio, a Las Vegas lawyer, lost seven previous elections before winning a race this month for a new judgeship in Clark County Family Court.

He also sought appointments to four other judicial positions without success. And on yet another occasion, he filed as a candidate for a nonexistent judgeship, later losing a court battle over the issue.

Oh yeah, and it took him five tries to get into law school.

"I was the last of six boys to go to law school," Del Vecchio said during a recent interview in his office. "I did not have the most stellar academic record. I always believed that C stood for commencement, that D stood for diploma, and I graduated 'magna thank godem.' "

Del Vecchio, who often uses that kind of self-deprecating humor, said he graduated from the College of St. Thomas in St. Paul, Minn., in 1979 with a bachelor's degree in sociology. He had a grade point average of 2.71.

"Being a student was always hard for me," he said.

That year Del Vecchio applied for the first time to the William Mitchell College of Law in St. Paul. He continued to apply every year thereafter, until he was finally accepted in 1983. 

You might wonder if the reporter was misreading the new judge when she assumed his self-deprecation was intended humorously.   Certainly some reassessment might be in order following more recent articles:

The special prosecutor for the Judicial Discipline Commission has accused Family Court Judge Nicholas Del Vecchio of sexual misconduct and abuse of power, including coercing a judicial assistant into having a sexual relationship with him.

The complaint alleges that the relationship dates to before Del Vecchio was a judge, when the judicial assistant, the daughter of his ex-wife, was 14.

Del Vecchio took nude photos of the girl when she was between the ages of 14 and 16 and had her perform oral sex on him, the 38-count complaint states. The complaint adds that Del Vecchio kept the photos after he became a judge but later destroyed them.

The document, which is not a criminal complaint, also accuses Del Vecchio of using racial slurs against black and Hispanic court staff and of coercing staff into buying him lunches and airline tickets.

Again with the photographs.  Didn't he learn anything from Woody Allen's experience?  But then, so far as my doctors-waiting-room and supermarket-checkout-line reading has informed me, Woody never "made audio recordings of the [sexual] encounters without the woman's permission." 

Then there's Judge Del Vecchio's (alleged, alleged!) campaign technique, honed in all those unsuccessful bids:

He told a family court employee, Beata Funk, that he wanted to have sex with her and wanted her to wear tight shirts while campaigning for him, the complaint says.

Should we assume from the casual way the subject is introduced that it's part of a court employee's job in Las Vegas to campaign for her boss?  Well, it's an American tradition.  One we can trace all the way back to Andy Jackson, and he's on the twenty dollar bill, after all.

The complaint even alleges he asked one co-worker to take men to dinner saying he "could tell they were interested in her and she could solicit and obtain campaign contributions." The judge allegedly told the worker that "she should dress nice" or "seductively."

The complaint isn't up on the Nevada Commission on Judicial Discipline website yet. 

I've never understood the rationale for applying a beyond-a-reasonable-doubt standard in judicial removal proceedings, though it goes all the way back to Samuel Chase.  Removal from office doesn't mean the offender goes to jail.   

And it's not like reversing the decision of the electorate, either, even in those states that elect their judges in partisan races, because judicial candidates are "ethically" obliged not to tell us in advance what they plan to do with the power they seek.  (Del Vecchio's eight races should have told the voters that he wanted the power too badly to be trusted with it.)

When a judge is removed from office, all that happens is that he or she has to spend the rest of his career standing in front of the bench instead of sitting behind it - a fate many of us think no disgrace.

I think that when there's serious reason to believe a judge has sexually exploited his 14-year-old stepdaughter - when, in the jargon, there's probable cause - that's more than enough reason to remove the judge from the public payroll.  And you know what?  I'd say the same thing about murder, too.

Good ol' Anonymous posted a comment to the main road of this post explaining the origin of the Judge Pregerson Memorial MixMaster, even supplying a link to a New York Times article explaining the judge's deep involvement in the development of the project.   As a district judge, Pregerson oversaw litigation that fattened the Westlaw database by 13 opinions over the course of 25 years, even continuing to sit as trial judge by designation after his elevation to the Ninth Circuit.

I'm pretty sympathetic to the goal of ameliorating the community disruption caused by freeway construction.  Community-buster Robert Moses, I'm convinced, bore more responsibility than any other individual for New York's decline into the ungovernable city. 

Still, I can't help but suspect that it's within the realm of possibility that the California Department of Transportation, which signed the consent decree overseen by Pregerson, didn't put up much of a fight when its legal opponents demanded it receive $2.2 billion to spend. 

Consent decrees, by which executive branch agencies pretend to lose lawsuits in order to bind their legislatures without all the muss and fuss of the democratic process, give judges the glory of increasing spending in the public eye while leaving to legislators the unpleasant task of trimming other budget items during contentious late-night committee meetings. 

Consent decrees are another type of community-busting: replacing Jacobean mob rule with the more decisive rule of a king and his lawyer-courtiers.  Still, dubious methods frequently produce beneficial effects.  It's just money, after all.

So the green sign dedicating the freeway interchange to Judge Pregerson can be viewed as a reward for his his hard judicial labor ordering other people to perform hard real labor.  Viewed in that way, it's an odd honor - even if, as I suggested, a cheap and rather ambiguous one.  Naming rights are apparently considered valuable things, in some contexts.  Isn't there something a bit ... odd about a federal judge accepting something of value as additional compensation for doing his job?

But, I think, that's not the right way to look at it.  I think the interchange was named for him in very much the same spirit in which the airport freeway itself is officially named the Dan Ryan Freeway, or Glenn Anderson Expressway, or whatever.  

It's the true Chicago spirit.  On my first visit to Chicago, every downtown street corner had paint on the pavement reminding me to visit "Mayor Jane Byrne's ChicagoFest."  You could register your car or renew your driver's license at "Secretary of State JIM EDGAR's" storefront operations.

Pregerson's name on the interchange isn't a monument to his judicial service.  It's an acknowledgment that he was the political boss in charge of the project.

When I was in Los Angeles this past week, I had occasion to drive the rental car through the Harbor Freeway / I-105  interchange.  Curiously enough, I-105 seems to have acquired at least three nicknames: the Century Freeway, the Glenn Anderson Freeway (distinctly Chicagoish, that one) and the airport freeway.  The last, which you won't find on any map, is the only one I ever heard anyone use.

Not only that, but the interchange itself has a name: The Judge Harry Pregerson Memorial Interchange.  The "Memorial" bit would give me the creeps if I were Judge Pregerson, who remains on active duty at age 84.

I guess they've run out of courthouses to name after judges, and anyway politicians like to clap their own names on those.   (Note the cute orange accent in that previous link.)  Still, it seems a sensationally chintzy sort of memorial - nearly a random one, really.  Why not the Judge Harry Pregerson Memorial sidewalk, or the Judge Harry Pregerson Memorial elevator shaft and boiler room?  The signs would have been even less expensive and the symbolism just as meaningful.

(See the Update.)

And I can tell you that at rush hour one's state of mind upon entering the interchange is not necessarily conducive to reflections on a distinguished judicial career.   It's a little like contemplating the majesty of the law from the Judge Harry Pregerson Memorial dentist's chair. 

There are really only two things I know about Judge Pregerson.  One is that he and his son have combined the concept of dynastic succession to the traditional divine right of federal judges.  The other thing is that he's a liar.

I don't say that in the spirit of half-insane recklessness evident in, say, this indication that the Pregersons are  high-profile enough to feature in a paranoiac's belief system.  (Can a mention in a James Ellroy novel be far behind?)

No, I say that because the United States Supreme Court said it first.  They didn't use the word "liar," of course.  They phrased it like this:

All of the mitigating evidence, and all of counsel's prejudicial actions, that [Judge Harry Pregerson's opinion for] the Ninth Circuit specifically referred to as having been left out of account or consideration were in fact described in the California Supreme Court's lengthy and careful opinion.

But I think that means "liar."  (See post 11 and post 210.)  (And here's Pregerson's opinion, if the link works.)

The fascinating thing is that lying is considered perfectly acceptable behavior in a federal judge, at least in some contexts.  The pertinent context, it's hardly necessary to say, is that Pregerson was lying about the record in a death penalty case - it was just his way of preventing the machinery of death from lurching forward. 

By the standards of the legal profession, lying in the pursuit of abolition of the death penalty is no vice, or at least not such a vice as would disqualify one from having one's name cursed daily by rush hour drivers.

In its May 23, 1955 edition, Time Magazine ran this story:

Just about dinnertime, on May 11, 1941, a garment worker named Santo Caminito was picked up by New York police for the holdup-murder of Coney Island Merchant Murray Hameroff. Although Caminito had never been arrested before, the cops were sure they had their man. They set out to get a confession—and they did.

Santo Caminito was thrown into a bedless cell. His family and a lawyer retained by relatives were denied permission to see him. Relays of detectives questioned him for 27 hours, giving him almost no rest. To show Caminito how hopeless his cause was, the police worked a trick: a male detective and two women from the pickpocket squad, posing as witnesses to the crime, confronted Caminito and pretended to identify him as the driver of the getaway car. Caminito finally signed a confession (he later signed a second one) and was duly sentenced to life in prison after the confessions were used as evidence in court. Last week, after 13 years behind bars during which he appealed vainly in New York state courts, Santo Caminito won the right to a new trial. Said a U.S. Court of Appeals decision written by Judge Jerome Frank:

"The confessions obtained by these loathsome means were no more evidence than if they had been forged."

Reminder from Korea. Excoriating the police methods as "satanic," Judge Frank recalled some facts that Americans learned long ago, and of which they have been reminded by Communist brainwashings in Korea: "It has no significance that in this case we must assume there was no physical brutality. For psychological torture may be far more cruel, far more symptomatic of sadism. Many a man who can endure beatings will yield to fatigue.

"To keep a man awake beyond the point of exhaustion, while constantly pummeling him with questions, is to degrade him, to strip him of human dignity, to deprive him of the will to resist, to make him a pitiable creature mastered by a single desire—at all costs to be free of torment. Any member of this or any other court, to escape such anguish, would admit to almost any crime.

"Indeed, the infliction of such psychological punishment is more reprehensible than a physical attack: it leaves no discernible marks on the victim. Because it is thus concealed, it has, under the brutal-itarian regimes, become the favorite weapon of the secret police, bent on procuring confessions as a means of convicting the innocent."

Basic Difference. "The important difference is that in Russia the coercion of confessions is ... legal and avowed, while with us it is always illegal and secret.

That difference is basic. It means that we have a principle of justice on which we can rely to bring such coercion into disrepute and disuse . . .

"Recently, many outstanding Americans have been much concerned—and justifiably—with inroads on the constitutional privileges of persons questioned about subversive activities. But concern with such problems, usually those of fairly prominent persons, should not blind one to the less dramatic, less-publicized plight of humble, inconspicuous men (like Caminito) when unconstitutionally victimized by officialdom."

Concluded the decision: "The test of the moral quality of a civilization is its treatment of the weak and powerless."

If that's the test of the moral quality of a civilization, what should we conclude about the way the American civilization treated Murray Hameroff?  After all, it's hard to top a dead person in the weak and powerless competition. 

By the time Judge Frank got hold of Caminito's case, a jury of 12 people had found his confession voluntary, the seven judges of the New York Court of Appeals had found any error to be insubstantial, and a federal habeas corpus judge, while expressing  qualms, found no constitutional deprivation.  (See post 337.)  If you're counting, that's 20 people in a row who didn't notice the Satanism.  

Caminito testified that the phony identification had nothing to do with his decision to confess.  But you would only find that out if you read the district court opinion.  (See post 337.) 

Frank says first that Caminito was left alone for 7 hours in his cell, then that he confessed 27 hours after being arrested, and then that "[t]he police interrogated him almost continuously for 27 hours" -- which is where Time got the 27 hour figure.   (U.S. ex rel. Caminito, 222 F.2d 698)

Twenty, 27, what's the difference?  I certainly don't mean to make light of Caminito's experience.   Finding yourself suspected of murder inside a Brooklyn stationhouse in 1941 doubtless felt like waking up in hell.   So why did Frank find it necessary to tack on 7 hours?  And why did he use terms like "satanic", "totalitarian regimes", "psychological torture", "sadism", "brutalitarian", "secret police", "medieval," "evil", "criminal", "barbarism"?

I think it was because, as the district judge observed, the facts were known to the jurors "and they decided the issue in favor of the People after a complete, informative, detailed and conscientious charge." 

As the Time piece unintentionally reveals, Frank's hyperbole was effective at directing attention away from the real gist of his opinion, which was that the ordinary men and women who served on the jury just weren't up to the task of deciding whether a confession was voluntary or not. 

Luckily, Judge Jerome Frank possessed the moral sensitivities the occasion demanded.  You want dudgeon?  You got dudgeon!   (Should we assume he sent a copy of his opinion with a press release and 8x12 glossy to Time?  Or were its reporters avid readers of slip opinions in those days?) 

 Jerome Frank was an interesting fellow, perhaps the purest example of the judge who concludes, on the basis of his own lack of self-knowledge, that he's a genius.  (See post 317.)   He was someone who worried about the big issues without thinking about them.  That sounds harsh, but I challenge anyone to try to read his most famous book, Law and the Modern Mind.  It's like wading through dryer lint.  Here's a sample:

The essence of the basic legal myth or illusion is that law can be entirely predictable.  Back of this illusion is the childish desire to have a fixed father-controlled universe, free of chance and error due to human fallibility. ...

Here apparently is the reason why legal thinking is, in part, scholastic, why legal legal thinkers are still much given to Platonizing: Children are incipient, unsophisticated Platonists.  Not only lawyers, but all men in their approach to the law are still somewhat childish emotionally and therefore are prone to Platonizing - not, of course, in the crude manner of children ...

"Scholasticism" has survived in lawyerdom while it is on the wane among natural scientists because the emotional attitudes of childhood have a more tenacious hold on men when their thinking is directed towards the law than when they are thinking about the natural sciences, and not because lawyers have intellects inferior to the scientists.  If and to the extent that you are controlled by a childish emotional need for strict authority, to that your extent your thought-processes will be restricted and will retain something of the childish pattern.  The natural sciences, as we shall see, are not so easily as law converted into a father-substitute.  Hence in the natural sciences, authoritarianism is less potent and the aims of the child have been more rapidly abandoned.

It's possible Frank believed this stuff actually added up to something, but I'm inclined to think it never really got to that point with him.  His books, like his Caminito opinion, were jam-packed with quotations and references, as if he jotted down passages he liked into a commonplace book, and then when he felt the urge to write about a certain topic had his secretary pull out the quotes that seemed relevant.  My impression is that his  secretary pasted one quotation to a page in random order and he inserted short commentaries between them as necessary to fill up the white space. 

As if his spirit were anxious to provide me with an example of his technique, I opened his book at random and read: "There is a contrary minority view, which any dispassionate observer must accept as obviously the correct view" - followed by a long quotation from Pollock - followed by a footnote: "Pollock is clearly in error".  

The bullying, the self-contradiction, the phony erudition - Jerome Frank would have made a terrific headmaster in a farce about a British boarding school.

So Mr. Caminito's murder conviction was vacated in 1955 in a spasm of repugnance against the satanic practices of Brooklyn cops in 1941.  The U.S. Supreme Court denied New York's petition for certiorari.

And now the stage is set for the real intellectual dishonesty to begin.

It's rare that a story about a judge manages to be both too bizarre and too vague for inclusion in this Judges' Hall of Fame, but the celebrated story of Cleveland, Tennessee's Judge John B. Hagler is very nearly disqualified on both counts.  The newly-exed ex-judge did something very, very, you know .... bizarre.  But so far his former colleagues on the bench are preventing us from finding out exactly what. 

What we know is this: The judge gave a tape to his former secretary, Nona Rogers, who worked with him for 18 years, accompanying him from private practice when he was first ennobled.  Ms. Rogers said that when she first listened to the tape, thinking it was routine dictation, "I shook all over. I was just numb."  Not, one gathers, the usual findings and conclusions.

Here's a clue as to its contents:

"It sounded like someone being tortured," Chattanooga police Sgt. Alan Franks testified Wednesday, offering the first details of what is on the tape.

Franks said the recording was investigated in relation to a still-unsolved 1997 murder. He gave no other details on the murder case.

"The content was so shocking. I have been a police officer for 24 years," Franks said before his testimony was cut off by an objection.

Ex-Judge Hagler himself "has refused to say what is on the tape other than to acknowledge it contains 'graphic fantasies.'"

Apparently, the tape has some connection with the still-unsolved murder of a 35-year-old Episcopal priest, Charles Martin Davis, usually called Marty Davis in the Tennessee media.  Father Davis was beaten and shot either 6 or 7  times, "depending on whether the gunshot wound to the anterior neck is considered a re-entry wound from the graze gunshot wound to the chin".   That last is a link to the autopsy report, which reveals no alcohol, no drugs, no sexual assault.   Not even robbery was a motive, apparently, as money was left in the house.

Does that strike you as promising material for graphic fantasies?  Well, remember that Judge Hagler went to  Father Davis's church, and the two visited and talked on the phone.   So Hagler wasn't just recording his graphic fantasies about violent death - he was fantasizing about a friend's violent death.  Then there's this:

Authorities have said Judge Hagler is not a suspect in the murder of Marty Davis, but Chattanooga Police said they want to hold the Hagler tape because if anyone is ever charged in the Davis case the defense may want it for "exculpatory evidence".

It's hard to keep at bay the thought that the opposite of "exculpate" is "inculpate," and that if a judge's private tape could exculpate another person then it must logically inculpate the judge.  How else could be possibly be Brady material for anyone else?  And, oh, yeah.  One other thing.  Father Davis was "chairman of the gay ministry Integrity" while ex-Judge Hagler teachers a Bible class at the Episcopal church Father Davis attended.  

But wait!  We haven't gotten to the bizarre part yet. 

Hagler, before his resignation became effective, issued a statement which read, in part:

Any decent person, myself, would be disgusted to hear my words as spoken on the recording.  Although I have never been afforded an opportunity to listen to this tape, I believe that the description of it as containing "graphic fantasies" in the Times Free Press is an accurate and sufficient description and all any decent person would want to hear of it.  But any decent person would also conclude that public dissemination, beyond the description previously given, can serve no legitimate public purpose and can only hurt, and continue to hurt, my family and me.

If you were a decent person, yourself, you would have no curiosity about the tape.  This strikes me as rather like Jeffrey Dahmer deploring the poor taste exhibited by a media that insisted on running sensational accounts of cannibalism:  "Any decent person would be satisfied with the information that the persons named in the news reports are no longer living."

Except, of course, that Jeffrey Dahmer didn't exercise immense power over the lives of Milwaukee's citizens for 17 years.  

But, see, that makes it worse that people began know about the pleasure Hagler takes in recording for posterity his fantasies of extreme violence.  Because, he said, an attack on him was an attack on the judiciary:  "This, not a judge's sinful but legal conduct, is the story".   Shades of the "great man" theory of criminal libel.

Remember that allowing the public to hear the tape would serve no purpose other than to "hurt, and continue to hurt, my family and me".  Given that, one might wonder how he could, in the same statement, claim that the tape was an attack on "one of our essential public institutions, the Judiciary".  

The answer, of course, is that Hagler was a judge for a long time.  And for a certain type of judge words are just the wrapping paper concealing the exercise of power.  Complaining about such a judge's self-contradictions is like complaining that the pattern doesn't line up where the paper overlaps itself. 

But now we come to really bizarre bit:

Members of the bar associations in the 10th Judicial District voted today to ask the U.S. attorney to look into how information became public about an audiotape that prompted the district Circuit Court judge to resign Tuesday.

In a joint meeting, bar association members from Bradley, McMinn, Monroe and Polk counties asked the U.S. attorney to become involved and investigate whether the surfacing of information "was an attempt to improperly influence the administration of justice." ...

The members also passed resolutions supporting Judge Hagler and saying that the tape and any copies or transcriptions should be returned to him.

So while we don't know exactly what Judge Hagler said on the tape, we do know the lawyers of southeastern Tennessee considered it well within the acceptable range, at least for judges. 

In Delaware, it's pretty big news that the state Supreme Court upheld the murder conviction of Michael Jones.  Shortly after a warrant was issued for Jones' arrest for homicide, he got into a car with a couple friends, one of them named Cedric Reinford:

While the three were in Reinford’s car, Jones killed Reinford by shooting him three times in the head. Page and Jones then dowsed Reinford and his car with gasoline and set it on fire. Afterwards, they went to Reinford’s house to steal drug money from a safe in Reinford’s home. There, Jones shot and killed Reinford’s fiancée, Maneeka Plant, and shot Reinford’s brother, Muhammad, in the face.  Muhammad miraculously survived and called 911 ...

You can see at once, can't you, why Professor Miller over at Evidence Prof Blog thinks it's such a shame that Jones' conviction was upheld?

(That's an unfair, nasty, cheap shot, of course: all professors think their subject is more important than the lives of people they don't know.  Besides, the whole point of the law of evidence is to prevent the jury from learning relevant information.  Expecting a professor of evidence to approve of a jury hearing unfiltered information is like expecting Bishop Ussher to embrace Agassiz's theory of the Ice Age.) 

(And, you know, Professor Miller might even be right, in the other-worldly terms in which right and wrong are debated in evidence classes and during bench conferences.  It's pipefitting: what flows through the pipe is beside the point.)

But what's really interesting about the case the meal the judge, Peggy Ableman, enjoyed at Feby's Fishery during the trial.   Here's a 2005 post from Crime & Federalism:

One witness said she told her husband that "she would get the last word" and that the man on trial before her "would get the death penalty." 

So much for a neutral and detached magistrate in that case. The defendant was subsequently sentenced to death.

Lawyers for the man filed a motion for a new trial claiming judicial bias. Judge Ableman would have none of it. Her recollection of the dinner conversation was that she was disappointed in the performance of defense counsel. Listen to part of her ruling:

"Defendant has not cited, nor am I aware of, any authority that would prevent a judge from telling her husband, 'An attorney has so botched the death penalty case that I am trying that I am going to be stuck with a ten-two jury vote to execute a juvenile." Temper, temper, judge.

So here we have a judge talking about an ongoing case in a public place, speaking in a loud enough voice for others around her to overhear and know exactly what she was talking about.   (Feby's website tells us the restaurant has a "full-service bar", and from the looks of it there's much service to savor.)  

We can have no doubt the incident happened: the judge admits as much  with her blame-the-lawyer defensiveness.  But, she later explained on the record, her use of profanity when describing the defense lawyer didn't mean she was biased against the defendant.  Oh, no.  Honest Injun, stack of Bibles, stick-a-needle-in-my-eye: she was expressing her bias against the prosecution:

My “animosity” toward [defense counsel], which would be more accurately termed disappointment, is not a reasonable basis for assuming I was biased against his client. The aforementioned instances . . . provide a more than reasonable basis for the Court to have become dissatisfied with the way [defense counsel] tried this case. That feeling, however, sprang from the Court’s judicial desire to ensure that Jones received a fair penalty hearing. I also had a strong personal desire to avoid a recommendation from the jury so strong that failure to issue a death sentence would appear to substitute my opinion of the juvenile death penalty for that of the law of Delaware and the conscience of the community. I did not intend to use my disappointment with [defense counsel] as an excuse to impose the death penalty regardless of Jones’ mitigating evidence. Instead, I was dissatisfied with [defense counsel] because his poor performance made it practically inevitable that the jury would strongly vote death, a recommendation that I would have probably had to follow regardless of my personal convictions.

In other words, she wanted to substitute her "opinion of the juvenile death penalty [Jones was 17 and 8 months when he murdered Reinford and Plant] for that of the law of Delaware and the conscience of the community."   She hoped and intended to do so.  But defense counsel's supposedly poor performance was going to make it politically difficult for her to get away with it.  The problem was so acute that she feared it would actually "appear" that she was doing what, in fact, she was doing.

Gee, no wonder she was upset.  Who can blame her?  No one likes to be held accountable for their choices.  I mean, go ask Michael Jones.  He suffered from appearances, too, such as the appearance that he killed the man he shot three times in the head.

And then the judge, apparently concerned that people might still take her seriously, added this:

She further defended her conversation because “it is simply too much to ask that a judge not utter a word to anyone about a case that may extend, like this one, for months, and to completely abstain from the support of family and friends when faced with difficult legal and moral decisions on matters of life and death.”

Now what, do you suppose, did she tell the jurors every evening when court recessed?   Do you suppose she gave the jurors "a general admonition that the jurors should not discuss the case with others"?  Of course she did.   All judges do.  Here's how a Hawaii judge did it when taking a 17-day break:

During your recesses from deliberations, when you are released to go home in the evening, you must not discuss this case with anyone or permit anyone to discuss the case with you. You must not read or listen to news accounts about this case, if there are any. You must not discuss this case with any person other than your fellow jurors.

So what Judge Ableman meant was that it is "simply too much" to expect a judge to conform to the same conduct demanded of jurors.  And, you know, she might be right.  Judges abuse jurors: they threaten to arrest them, then make them sit around dingy waiting rooms for hours, then hide evidence from then, even lie to them.   The nightly coerced vow of omertà might be compared to the tennis ball in the Far Side cartoon of the dentist who tells his patient: "Now open wide, Mr. Stevens ...  Just out of curiosity we're going to see if we can also cram in this tennis ball."