JUDGING CRIMES

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.

Last May I mentioned an ongoing research project I'm doing for the National Center for the Prosecution of Child Abuse that has me reading every new case interpreting Crawford v. Washington, the big daddy criminal procedural case of the new century, the one that either amended the sixth amendment or repealed prior amendments, depending on one's point of view.  (See post 127 and post 112.)

Back in May I wrote that American courts produced an average of about four new Crawford cases a day.  But hardly had I irritated my carpal tunnels and repetitively stressed my wrist tendons to type those words (there are distinct disadvantages to spending one's working life in the company of office equipment ergonomically designed by computer nerds) than the number of Crawford cases began exploding.

By mid-June I was plowing through 25, even 30 new Crawford decisions every day.   Some of them were routine, but the majority - between two-thirds and three-quarters - were relatively significant opinions stating basic confrontation clause law in various jurisdictions.

Naive and trusting soul that I am, ever willing to believe that figures of authority always know what's best for the world outside their hermetically-sealed throne rooms, I assumed that some sort of chaos theory was at work, by which the random action of the Supreme Court in 2004 was the flapping butterfly wing that set off the first of the out-of-control vortices that combined into the storm that produced the flash flood.

Well, no.  Come July 1, the flood ended.  Now we're back to four or even fewer cases a day.  And the only explanation I can think of is: in many states, the fiscal year ended on June 30.  During the last days of the FY, judges were pushing cases out the door as fast as they could in order to goose their productivity statistics, the way workers in the old Soviet Union ("they pretend to pay us and we pretend to work") were reputed to spend the last day or two of each month frantically catching up with the quota, only to relax again into torpor for the next 28 days.

I can't believe the phenomenon is restricted to Crawford cases.  I suspect if one were to gather statistics about the months of the year in which appellate opinions are released, and compared them to the fiscal cycle in the particular state, one would find a correlation. 

Each court's quota is, I think it's safe to assume, the number of cases processed the previous fiscal year.  So long as the court meets its quota, its chief judge can assure the state legislature's budget committees that every judge continues to work at the uttermost limits of human capacity.  Failing to meet the quota could have undesirable effects on the judicial bureaucracy.  Sure, the parties and the lawyers might think the stakes are high for them, but lemme tell you what's really at issue here ...

So if your case was decided in the final weeks of the fiscal year, and the opinion read as if it had been thrown together by a law clerk on the morning of the day it was released, and signed without reading by the judges - well, ... 

Indignation is the most pleasurable of human emotions. 

People sometimes laugh when I say that, but how else can you explain talk radio?  Listeners tolerate three-minute blocks of ads and callers who really ought to be telling these things to a therapist, all for the chance of experiencing the thrill of righteous fury.  If love were anywhere near as pleasurable as indignation, the people who make Rush Limbaugh rich would spend three hours a day, five days a week, tending to their marriages instead. 

So I was pleased to read the words of a judge acknowledging that "indignation is the most gratifying of emotions."  That's New Jersey's Judge Bill Mathesius, and the many insightful things contained in his article in the New Jersey Lawyer shouldn't be missed amidst the jokes (I'm especially fond of footnote 73) and the expressions of well-earned disrespect aimed at certain high-ranking members of New Jersey's judicial bureaucracy.

The story begins a week before Christmas, 1992, when a man named Ambrose Harris grew weary of walking in the rain.   "He decided to 'carjack' someone so that he and [his companion] would not have to walk through the rain to the luncheonette they planned to rob."  They saw a young woman parking a Toyota.  Harris said to his companion, "I'm going to get that bitch."

He commandeered the car at gunpoint, forced the woman into the trunk and drove to a deserted area where he raped her, then shot her and covered her body with an old mattress.  He went to his mother's house for a shovel, then returned and shot the woman again, and buried her.

He nearly got away with it (which, of course, makes you wonder how many others he did get away with).  Helpfully, however, he arranged to be videotaped at an ATM while attempting to use his victim's debit card the night of her murder.  He even succeeded in getting himself arrested on an unrelated charge with the murder weapon in his possession some six weeks before police found the body.  (I'm not sure I've ever heard of another case in which the police seized the murder weapon such a long time before learning a murder had been committed.)

Police found the body only because Harris's companion took them to it, pretending to be acting on a psychic vision while inquiring about the reward money.  Harris's big mistake, you see, was killing a woman whose parents could afford to put up a big reward.

Judge Mathesius didn't preside over the trial, but six years later he heard Harris's petition for post-trial relief (what many states would call a petition for habeas corpus).  At an evidentiary hearing, one of Harris's lawyers recalled a memorable moment from the trial.   The victim's father was on the stand, describing the last time he saw his daughter, when his eyes filled with tears. 

Harris pulled out a handkerchief and, in full view of the jury, pretended to dab both his eyes in mock sympathy.  His lawyer, reflecting on the moment years afterward, called it the single most "reprehensible thing [he'd] ever seen a defendant do in a courtroom."  (That testimony was quoted in Judge Mathesius's opinion, in footnote 15.)

One of the New Jersey Supreme Court's various opinions in the case described another memorable moment.  This one occurred during Harris's sentencing hearing when he spoke directly to the victim's parents, in defiance of  "repeated instructions" from the trial judge . That phrase, "repeated instructions", tells you a lot about Harris.  How many other defendants have to be repeatedly instructed not to talk to witnesses in court?  But what tells you even more is what Harris said to the parents: "they owed him an apology because of his conviction."  

Harris claimed in his petition for postconviction relief that his trial counsel was incompetent for not encouraging him to address the jury.  Harris, who faced the death penalty, certainly had the right to talk directly to the jurors (something that lawyers, with their love of antique jargon, call the right of allocution).   Harris's lawyer explained at the evidentiary hearing why he thought he would have been "insane" to encourage his client to exercise that right:

[H]e was of the belief that one of two circumstances must be present before allocution could in any way be delivered effectively: "A, that one be capable of true remorse and really sorry; or that B, at least you be able to fake or least get up in court and pretend that you are sorry.  Mr. Harris was incapable of doing either of those things."

At the death penalty hearing, Harris's attorneys presented evidence of his wretched childhood.  While obviously their intent was to produce an emotional reaction rather than present an objective picture (that's not a criticism, they're advocates) nonetheless I think it's a safe assumption that Harris was severely damaged in his early life.  America's tolerance for violence against women and children ensures our stockpile of psychopaths never runs low.

So far, so ordinary.  A seriously damaged person terrorizes and kills a person physically more vulnerable than himself.  Although the victim was young and female, which judges usually count in a defendant's favor, those factors were offset by the fact that she was -- as the New Jersey Supreme Court was at pains to tell us -- a virgin when Harris raped her.  (The stereotyped sexual morality of teenage slasher movies finds real-world expression in our criminal courts.)   And she was white, and from a higher social class.  So the objective markers tipped against Harris, and his death sentence was upheld on direct appeal.

Next came the petition for postconviction relief.  Judge Mathesius rejected it with a painstaking 64-page opinion.  I read the whole thing, but I admit I was looking for the good bits.  You see, the New Jersey Supreme Court found the opinion so horrible, so utterly vile, that it could not even bring itself to quote more than a single passage from it.  Justice LaVecchia explained with a theatrical shudder:

We find the comments of [Judge Mathesius]... be wholly devoid of any function in the judicial discourse of our death penalty jurisprudence.  Hence, we will not quote any other portion of [Judge Mathesius]'s oral or written statements that inform our present analysis, as we conclude that such statements deserve no place in the published decisions of this State.

Not only that, but the "balance of the court’s statements contain what only can be described as outrageous, sarcastic, and pejorative comments".  Sounds promising, doesn't it?

Imagine my disappointment, then, when I reached page 64 and my hair still hadn't curled.  I wondered if I had accidentally read the wrong opinion.  The only thing that struck me as particularly noteworthy about the opinion is the vividness of Mathesius's prose style.  The writing style affected by Justice LaVecchia and her colleagues might be compared to the computer-flattened prose found in middle school social studies textbooks. If Mathesius wrote a social studies textbook, it would read more like Tim Cahill.

I went back and searched for the nasty bits more closely, and found two or three sentences that a sensitive soul might think went past vividness into sharpness.  But that was it.  It only then, after I'd wasted all that time, that I finally understood what should have been obvious from the beginning: the reason the New Jersey Supreme Court refused to quote from Mathesius's opinion was that it wasn't outrageous. 

The justices had just enough sense to realize that if they tried to back up their highly-wrought characterizations of the opinion with actual excerpts from it, their indignation would have come off as interestingly defensive.  By declining to prove the validity of their characterizations, they encouraged gullible readers (such as myself) to let their imaginations go.

It's at this point that the story begins to reveal a great deal about the New Jersey Supreme Court.   Tune in tomorrow, same bat time, same bat channel.

I recently traveled to Washington to attend a conference on Supreme Court practice put on by the National Association of Aspiring Governors (a joke, I'm sure, only a few seconds younger than the oldest state attorney general's office).   As explained on the NAAG website, the conference featured "[p]anels of experienced Supreme Court practitioners [who] addressed oral argument, written advocacy (including petitions for writs of certiorari and oppositions thereto, merits briefs, and amicus briefs) and more."

One of the extremely distinguished panels even included Tom SCOTUSblog himself.   Roger Daltry might have been talking about our conference when he sang, "The crowd went crazy when Tommy hit the stage".  Security was able to restore some semblance of order after just a few minutes, though I have to say the screaming sometimes made it hard to concentrate on what was being said.

Other stars of the Supreme Court bar who shared stories and advice with us included Donald Ayer, Virginia Seitz, Carter Phillips, Michael J. Wahoske, Beth Brinkmann, and a whole bunch of other ex-Supreme Court clerks now billing the big bucks at various mega-firms.  All of them very nice, well-spoken, funny, informative, somewhat clannish, and respectful. 

Deeply respectful.  They seemed as much in awe of the Supreme Court and its godlike members today as they must have been on their first day of new clerk orientation.  In the two days of the conference I didn't hear a single disparaging word, or even a cynical joke, about the justices or their institution.  The tone was more than just respect for power; it was closer to hero-worship.  It's hard to imagine a similar group of lawyers who represent clients in high-stakes matters before, say, the United States Senate having quite the same reverential attitude, though an argument could be made that the Senate is among the world's top-1o deliberative bodies.

I could think of three explanations for the gee-whizness of it all.  The first and most heart-warming is that the Supreme Court is the only institution of government that has earned the unadulterated respect of everyone who has benefited from its infinite resources of disinterested sagacity, which is to say everyone.  (With a single exception.  See post 196.)  In this age of weary cynicism, isn't it refreshing to know that one institution of government remains a ________ [insert hackneyed image here.  Example: beacon in the darkness.].

A second and somewhat less inspiring explanation is that the importance of Supreme Court practitioners depends wholly on the importance of the institution they serve (or perhaps service).  Members of the in-group talk up the Court as a way of talking up themselves.  Emphasizing all that is unique and demanding about litigating in the Supreme Court is a form of boasting.

Both those explanations might have an element of truth, but I think a third goes further than either, and that looks at the sorts of people who become Supreme Court specialists.  As mentioned, most of them are former Supreme Court clerks, and you don't win a position as a Supreme Court clerk with an attitude. 

The clerks are all people who graduated near the top of the class at one of the elite law schools.  (Tony Mauro published some famous articles a few years back demonstrating that the justices think along the same lines as U.S. News and World Report, hiring most of their clerks from the magazine's top 10 schools.)  That tells you right away that all the clerks are smart, hard-working and focused. 

They're not people who waste time questioning why they're doing what they're doing.  In law school, they weren't the type of people inclined to fritter away precious study hours attending concerts, visiting galleries or museums, engaging in meaningful relationships with fellow human beings, reading for pleasure, or any of the other frivolous things that so often distract students from their work.

Furthermore, they're people who have learned the knack of winning the approval of powerful people, and have then applied themselves to exercising that knack systematically.  References from professors got them clerkships with tied-in judges of the federal courts of appeals, and recommendations from those strategically-placed judges led to the Supreme Court clerkships, and the approbation of the justice will cast a golden glow over the entire future legal career of the 27-year-old ex-clerk.

Now, I've worked with two ex-clerks, both of whom have been fabulously successful, and both of whom I greatly admire.  Both are far more disciplined than myself, exhibiting a capacity for work far surpassing my own. 

I can illustrate my point by describing my law school experience.  I was glad to get high grades in the law classes I enjoyed, which were taught by professors I respected, but didn't much mind low grades in boring classes taught by the bad teachers.  People would laugh when I'd say, "I'm not going to let classes get in the way of my education," but I wasn't really joking.  I'm confident that thought never occurred to my ex-clerk friends.  Or if it did, they successfully suppressed it.

The club of ex-clerks that make up the Supreme Court bar is composed of people who bought into the system completely during law school, and in the critical first two years after graduation.  In some ways it's actually rather touching to discover that the same mode of unquestioning acceptance that got them the clerkships has helped them to the very pinnacle of professional success.  The formula works.  All you have to do is buy into it, and then keep buying, and never look up.

What would be the characteristics of an ideal U.S. Supreme Court?  First and foremost, a majority of the justices would have been trial judges for a minimum of five years each.  After about five years a trial judge has seen most of what there is to see and will have gotten a pretty good handle on the job.

A joke I heard ascribed to U.S. District Judge Bruce Black, but which is probably an ancient chestnut, has a law professor, an appellate judge and a trial judge together in a duck blind.  A flight of fowl appears on the horizon.  The law professor is first up.  He says, "Those look like ducks.  I think I'll have my work-study students collect some pertinent materials and over the summer maybe I'll see about working it up into a law review article ..."  and the birds are gone.

The next flight of birds appears on the horizon.  This time it's the appellate judge's shot.  He says, "Those look like ducks.  I think I'll have my clerk write a memo on it and then I'll circulate it to my colleagues and maybe next month we can discuss it in conference..." and the birds are gone.

Now it's the trial judge's turn.  The next flight of - BLAM!!!  "I hope those were ducks," he says to his startled colleagues.

That, I think, captures the essence of the trial judge's life.  Problems blow up out of nowhere, the lawyers' arguments are disjointed and emotional, you don't have any time to look anything up, the jury is waiting, the witness is staring at you ... and some appellate judge is going to say you abused your discretion for not having thought of something that didn't occur to anyone until nine months afterward.

A Supreme Court justices who has served at least five years on the trial court bench will understand something about the way courtrooms function.  He or she will try to craft clear rulings that don't require hours of study to understand, and will be able to foresee some of the unintended consequences of the ruling and take some sensible steps to contain them.  He or she will, in short, do a better job than a justice who lacks that experience.

An ideal Court would have a solid majority - at least six, I would hope - of former trial judges.  The current Court has exactly one, David Souter.  The other eight often don't know what they're doing, not because there's anything wrong with them but because they have no experience to draw on, just as I wouldn't know what I was doing if I found myself in bankruptcy court, or in the middle of a commercial property closing.

An ideal Court would have a majority of members who served in the state judiciary.  It's natural for people who devote years of their lives to any bureaucracy to identify with it.  As Jefferson wrote in 1820, "Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. " 

So the last thing we should want is a Supreme Court composed of former federal appellate judges, who would naturally tend to decide every case in the way that enhances the power and prestige of federal judges.  Former state court judges, by contrast, will have conflicting loyalties: to their former bureaucracies and to their current one.

But, sadly, all nine of the current justices are federal judicial bureaucrats.  Souter is the only one of the bunch that ever served in a state judiciary.

On an ideal Supreme Court, several (at least) of the justices would be experienced in criminal law.  It doesn't matter if they gained their experience on the defense or prosecution side, as long as we weed out the true believers.  Criminal law is, far and away, the most important thing our courts do.  People die on a daily basis as a result of judicial decisions.  Many other people are spared death or pain because of other, better judicial decisions.  Innocent people are imprisoned, guilty people are set free. 

Not only are the stakes often extremely high, but it's a complicated field made more complicated on a yearly basis by Supreme Court rulings.  (We can expect a bunch of bombshells in the next week or so, as the justices wrap up before their three-month summer break.)   The Supreme Court regularly issues new decisions that totally remake the face of criminal law - civil practitioners have no idea how everything can, and routinely does, change overnight.

And so how many of our current nine justices have a criminal law background?  You guessed it. Justice Souter, take another bow.  The guy really is a loner.

What we have today, in short, is something very close to the photo negative of an ideal Supreme Court.  My personal belief is that you could can all nine of them and replace them with any nine federal appeals court justices chosen at random and no one would notice a difference.  Except the reporters, who'd miss Scalia.