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. 

John Ferling's book Adams versus Jefferson: The Tumultuous Election of 1800 is one of those books of serious popular history that requires you to first plough through a prolonged introduction designed to bring up to speed everyone who dozed through 10th grade history.  But once you get past the World Book-style pen portraits of the protagonists - and so long as you can tolerate the author's spendthrift use of derogatory adjectives to describe James Madison - you can find a lot of information and insight. 

While the judiciary as an institution is hardly mentioned, Ferling provides this extremely useful summary of the dominant political outlook of our third branch (well, third in the order in which it's mentioned in the Constitution, if in no other sense):

[A]s was true of most Federalists, [John] Adams was alarmed by signs that America was democratizing. Before political parties existed in the 1790s, Adams had published warnings about how partisan electioneering – what he called the "Cankerworm" that had brought down every previous republic – would corrupt the American political system.  When caught between powerful rival interests, democratic politicians inevitably would be driven to deceit, he had predicted.   Virtue and integrity would vanish.  Revenge and malice would prevail.  Voters would be duped and the press misled, pushing the system toward an unsavory end – a democratic tyranny in which the majority plundered the minority.  For Adams, the notion that government could realize the will of the people was disingenuous.  Society was divided into so many competing interests that a single popular will seldom existed.  Furthermore, while humankind was all one species, Adams insisted that "Man differs by Nature from Man almost as much as Man from Beast."  It was impossible that all could have their way or be fulfilled.  Instead, Adams favored a system in which the brightest and most virtuous men could be drawn into public life but then be insulated from the necessity to pander to the popular thirst.  If somehow the independence of good men could be preserved, so that they could govern prudently and judiciously, the result would be good government for the greatest number.

Those last two sentences come closer than anything else I can remember reading to describing the politics of the judicial branch. 

Most judges don't see it as a question of politics, I think.  At most, they might grudgingly admit that those two sentences capture something of their idealized self-image.  They might even say that they "strive" (a favorite judge's word) to achieve that ideal.

But the Federalist concept of good government is politics, all right.  It's big-picture politics, not the poll-tested where-we-stand-on-the-issues politics of "pander[ing] to the public thirst", but politics all the same.

All the tedious, predictable studies about "drifting" Supreme Court justices look at the issues between the parties and ignore the meta-politics of the Court itself.  Supreme Court judges "drift" in only one direction: toward greater concentration of power in "the brightest and most virtuous men" (and, grudgingly and only lately, women) in the name of preventing "democratic tyranny" - although the justices and their lower-court servants prefer the adjective "majoritarian."  (See post 54.)

The odd thing about Ferling's book is that he seems to think the Jeffersonian Republicans won the election of 1800.  For the first 28 years, that was true enough.  But looking back on it from the perspective of 207 years, it seems obvious that the Federalists are in charge.

The Supreme Court has long been in the habit of using the phrase "political branches" to describe the democratically-elected branches of government.  Westlaw counts 141 SCOTUS opinions making use of that phrase.   As a propaganda trick - excuse me, I mean talking point - it's comparable to the Court's use of the word "majoritarian" as a pejorative.  (See post 54 and post 265.) 

Not only is "political" frequently charged with a negative meaning in America ("playing politics," "politics as usual"), but calling the executive and legislative branches "political" implies the Court isn't  - it's just a government agency that decides issues of "public policy."  (1,805 SCOTAL mentions of that phrase.)  As to any superficial definitional similarity between "political" and "policy" - look!  An oyez!  Three of them!  Now, then, moving on to the next case, counsel ...

Our courts are even more political in a big-picture way, though.   Their policies - which never, ever work out the way they're intended, anyway - are in some respects the least of it.  I found a wonderful encapsulation of the meta-politics of the American judiciary in a most unlikely place: Simon Winder's The Man Who Saved Britain: A Personal Journal into the Disturbing World of James Bond.  It's a book about Britain in the post-War years, and particularly during the No Future 70s, when the author was growing up.  Amid much Tim Moore-style humor, James Bond is diagnosed as a nation's final instrument of post-Imperial denial.  And then we come to this:

What should we make of Bond's chief, the remarkable M?  He is a figure in the Bond mythology on a par with Blofeld and retains as astonishing potency.  If post-war Britain had expressed its debt to Bond in a landscape dotted with temples then M would undoubtedly get a substantial building to himself (this is an easy and enjoyable game with any number of temple layouts - at its best played with a more Asian sense of duality, forces of evil or violence also getting their place: it is easy to imagine a slightly disturbing folk cult growing up around Oddjob, say, and a lovely alcove for Pussy Galore).  In a sense, M is more of a religious force than Bond himself - a Jupiter to Bond's Mercury; Wotan to Bond's Loge.  The books in effect make him the father of the nation, the figure who is always awake and alert and who, through silent coup after silent coup (delivered via the figure of Bond), keeps us all safe.  He therefore incarnates in its perfect form the Conservative ideal: of patrician omnipotence over a silent, uncomprehending, safe, passive flock.

It was only as I read that last sentence that I realized who M reminds me of: the person the average American judge sees in the mirror.

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, ... 

 Lawyers of a certain age -- say, those about the average age of members of the New Jersey Supreme Court -- will remember Rose Bird.  She was California's first female chief justice, appointed in 1977 (by California's current Attorney General, who, when he still had hair, used to be governor) directly from the appellate defender's office.  Her timing meant she presided over the reintroduction of the death penalty in the state. 

California reintroduced capital punishment in 1974, in reaction to the US Supreme Court's wildly-successful effort to turbocharge the conservative movement.  (See post 270.)  (Well, I suppose it's possible the justices didn't actually intend to goose the radical right into its era of dominance, though it seems a bit disrespectful to imagine they were that clueless.)

So the first death penalty cases were wending their weary appellate way to the state Supreme Court just as Chief Justice Bird took office.  In 61 consecutive decisions, she reversed the jury's decision to impose the death penalty. 

That streak would be easier to explain if we could believe that Bird was a mole for the right, and that all during her years in the public defender's office she was a one-woman sleeper cell waiting for the moment when she was activated to destroy the Democratic Party in California.  But it's far more probable that she was merely a gift to the right, not a secret member of it. 

That remarkable streak made it easy for California Republicans to trash Democrats as pro-crime, which they did enthusiastically for the next 15 years or so.  (It's hard to remember that California was once as safely Republican as it is now safely Democratic.)  After # 61 hit the books, it just wasn't possible any longer to argue with a straight face that Bird was actually interested in enforcing the law. 

After all, what are the odds that 61 trial judges could screw it up every single time?  Seventy percent of the time, sure.  (That's roughly what we have today, according to some studies, although only the naïve would think that figure says much about the trials involved.)  Maybe even 80 or 90%, because everybody in California in the late 70s was on drugs, if Isla Vista was an accurate microcosm of the whole.  But at some point, wouldn't the law of averages mean that some trial judge would eventually get it right by accident?  As Bill Clinton would say, even a blind hog sometimes finds an acorn.

At any rate, Rose Bird's struggle against the death penalty got herself and two of her colleagues recalled from the Supreme Court in 1986.  (It's interesting to note that since her ouster, California has executed 13 inmates, despite a death row population of 660, which suggests that the ex-Chief Justice's efforts weren't nearly as decisive as both sides seemed to believe at the time.)

I suspect the memory of Rose Bird has a great deal to do with the New Jersey Supreme Court's bizarrely over-the-top reaction to Judge Mathesius's 64-page decision in the Ambrose Harris death penalty case.  (See post 285.) 

The state Supreme Court suspended Judge Mathesius for a month without pay, the equivalent of fining him $11,750 (well, before taxes).  One of the reasons for coming down so hard on him was that, according to an opinion published by Justice Jaynee LaVecchia in 2004, his written opinion  included "gratuitous personal attacks against current and former members of the Court."

Justice LaVecchia appended a footnote (no. 1) in which she explained that feelings of delicacy forbade her from actually quoting what Mathesius wrote.  The real reason for her reticence, as one might guess, was that she had no evidence to back up her charge.  Mathesius's opinion didn't include personal attacks, free of charge or otherwise, against any justice.  If she had actually quoted the words he used,  she would have made herself look foolish, because all Mathesius said about current and former members of the Court is the following:

If actual imposition the death penalty requires such a Herculean effort as has been herein endured in terms of time, mental anguish and emotional expense, research, and writing (not to mention the hundreds and hundreds of thousands of public dollars in accrued actual cost in this case alone), it strongly invites, nay, compels, the pragmatic conclusion that the penalty which imposes such an extravaganza, be finally legislatively or judicially annulled as opposed to being merely nibbled to death by state and federal ducks. ... When coupled with the proliferation of occasions were members of reviewing courts possess an unalterable predisposition, if not an outright predetermination against the death penalty such as exhibited by Justice Long and Justice Handler before her, it seems even more unwise to perpetuate the myth that such a penalty can, in any practical sense, provide any of the intended purposes of punishment or general deterrence, much less be actually meted out.  The death penalty process has devolved into a noirish Rube Goldberg contraption that seems to metastasize regularly with each novel ruling.

(I wouldn't be doing my duty as a blogger if I didn't call your attention to that last sentence.  While I'm in total agreement that the idea of Rube Goldberg contraptions traveling from "an original site to one or more sites elsewhere in the body, usually by way of the blood vessels or lymphatics" is pretty scary, I think current death penalty jurisprudence is less like film noir and more like Buñuel or David Lynch.)

The above is what Justice LaVecchia called "personal attacks".  But if it's an attack, it's singular rather than plural, and it's directed against the justices' professional rather than their personal lives.  And it's not really an attack, anyway.  Mathesius might have been more pedantically accurate if he had written that the two named justices seem to possess an unalterable predisposition, or vote so consistently that an observer would be hard-pressed to avoid drawing the conclusion that they possess an outright predetermination.  But any reasonable reader would understand that's what he meant. 

Mathesius meant, as far as I can tell, that the two justices always voted against the death penalty, without exception and regardless of circumstances.  That's a factual observation, the accuracy of which can be objectively measured.  If it's false, it's false, but I'm pretty sure it's not, both because Mathesius cited numerous cases to back him up and because LaVecchia so carefully avoided disputing it.

Presumably Justice LaVecchia isn't actually illiterate or mentally subnormal, and so we must assume she knew perfectly well that what the words she wrote in her 2004 opinion were inaccurate.  Why would a justice of a state's highest court lie in a published opinion? 

Rose Bird.

The problem with Mathesius's opinion wasn't that he personally attacked Justices Long and Handler, but that he publicized a fact that could be detrimental to the careers of members of the New Jersey Supreme Court.  His transgression got right to the bottom-line question for judges: Is it more important to have a good reputation, or to deserve one?  (See post 272.)  Mathesius created the risk that New Jersey's Supreme Court would have the reputation it deserved, rather than the reputation its members wanted.  And that, the justices concluded, was intolerable.

To ensure that Mathesius, and every other trial judge in New Jersey, got the point, the Supreme Court assembled an advisory committee to look into Mathesius's supposed violations of the Code of Judicial Conduct headed by none other than retired Justice Handler.  And the panel that heard the committee's recommendations included Justice LaVecchia, although she had announced her prejudgment some two years previously.

No judge in New Jersey could have missed the point: if you mess with us, don't expect mercy.  Don't expect justice, fairness or due process, either.  As for avoiding the appearance of impropriety, don't make us laugh.  To paraphrase Lucy giving her little brother encouragement in his thespian accomplishments, the New Jersey Supreme Court gave every judge in the state five good reasons for staying in line.

Just to make sure everyone understood the whole thing wasn't a serious ethical hearing, the opinion that ordered Mathesius's suspension was written by none other than Justice Roberto Rivera-Soto (whose self-authorized biography hilariously omits the name of the governor who appointed him).  Yes, that Justice Rivera-Soto, the one who made the national news for trying to intimidate officials at his son's school. 

(I admit I'm of two minds about that – I sympathize both with parents dealing with dismissive school bureaucracies and with teachers and administrators dealing with nutso parents.  I also don't doubt that every other lawyer in Jersey would have at least thought about trying to scare the administrators in more or less exactly the same way.  Still, it's a bit worrisome whenever a judge fails in such slapstick fashion to foresee such obvious consequences of a course of conduct.  It means the judge has become a bit unclear on the distinction between being treated like a god and actually being one.)

The saga reveals unethical behavior by New Jersey's judges.  But  Mathesius's suspension wasn't punishment for it.  On the contrary, the suspension was the ethical violation.  There's a scandal here, but it involves the state's Supreme Court, not the Superior one.

Oh, yeah. While in prison Ambrose Harris stomped a fellow death-row prisoner to death.  He claimed self-defense and was acquitted.

It's - what's the word? validating, I guess - when academics put down the bluebooks they ought to be grading in order to rush out law review articles dedicated to elaborating on some of this blog's posts.   Professor Benjamin Barton of the University of Tennessee Law School - I assume everyone calls him Doogie - is the latest to accept guidance from Judging Crimes.

I refer, of course, to his article "Do Judges Systematically Favor the Interests of the Legal Profession?", an elaboration of post 250.  Considering that just two weeks elapsed between the post and the article, his industry is to be commended, too.

Barton's article will be forthcoming from the Alabama Law Review.  Its abstract on the Social Science Research Network reads:

Many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.

Barton picks examples from around the whole field of law to prove his thesis:

The questions considered include: why are lawyers the only American profession to be truly and completely self-regulated? Why is it that the attorney-client privilege is the oldest and most jealously protected professional privilege? Why is it that the Supreme Court has repeatedly struck down bans on commercial speech, except for bans on in-person lawyer solicitations and some types of lawyer advertising? Why is it that the Miranda right to consult with an attorney is more protected than the right to remain silent? Why is legal malpractice so much harder to prove than medical malpractice?

Answer: because lawyers are more important than other people.  And it's objectively true that we're more important, you know: our importance lies in the fact that we're objects of such judicial solicitude, just as it was objectively true that Buckingham was more important than anyone else in England during James I's reign.

Barton takes four pages (26-30) to make his point about Miranda, and then doesn't quite seem to grasp the point he's making.  The actual right guaranteed by the Constitution - the right to remain silent - exists for the protection of the individual.  That right can be waived simply by speaking.

But in the 1970s, a decade in which nothing went right, the Supreme Court amended the Constitution, adding a new Amendment V I/II (in decimals, V.V), requiring the police to stop investigating the murder or rape or whatever trivial thing is occupying their tiny little ferret brains as soon as the suspect asks for a lawyer.  The Court's reason for creating that right is pretty obvious, really:

Any lawyer who has ever been called into a case after his client has 'told all' and turned any evidence he has over to the Government, knows how helpless he is to protect his client against the facts thus disclosed.

A client who has once uttered the magic words ("I want a lawyer") can't retract them merely by talking to a police officer.  He has to know the secret code to free himself from his self-cast spell. 

There's a simple reason why it's so much harder to rid yourself of the right to counsel than of the privilege against self-incrimination.  The second protects the person accused of a crime from brutality.  The first protects his lawyer from being saddled with an unwinnable case.  And which is more important, really?  (If you're not a lawyer, don't try to answer that question - it's far too technical and involved for you.)

Orwell long ago observed that unclear prose is usually evidence of unclear thinking.  So what are we to conclude about the following words written by a New Jersey judge?  The judge, Jack M. Sabatino, is describing the effect of Crawford v. Washington, the opinion in which Justice Scalia confessed that for over two centuries the U.S. Supreme Court  wickedly required all lower courts in the country to violate the Constitution's sixth amendment.  (See post 127 and post 238.)

Here's Judge Sabatino:

Crawford has dramatically affected the day-to-day prosecution of criminal trials and appeals across the nation. ... This sea change in criminal practice cannot be underestimated.

In response to Judge Sabatino, I would say: Crawford is no big deal.  There, see?  I've just proven that the sea change can be underestimated.

(Of course, it's possible Judge Sabatino's point was that a "sea change" cannot be estimated, much less under- or overestimated, because the cliche is  completely devoid of meaning.  Non-meaning, by its nature [or non-nature], resists estimation.  But, viewing his words in context,  I don't think that's what he was getting at.)

Sabatino isn't alone in his confusion about the meaning of a relatively simple English word.  A few years ago, England's Guardian ran this correction:

In an item headed, No to a DNA database ... we said, "The seriousness of the threat to individual liberty cannot be underestimated." Yes it can. The writer meant that the threat is so great that it cannot be overestimated or overstated. It is a frequently recurring error.

I picked up the link to the Guardian correction from the U.-Mass. Amherst's Department of Linguistics newsletter (researching a blog isn't for the faint-hearted), which reports the appalling datum that as of January 27, 2005,

A Google search for the two phrases shows approximately 54,200 examples of "cannot be overestimated" vs.132,000 for "cannot be underestimated." ...  Presumably those speakers of English who use "cannot be underestimated" in the sense intended by The Guardian understand "cannot" to mean "should not" or "must not."

So there you have it: statistical proof that a majority of people writing in English today don't speak the language.  The U.-Mass. linguists, who appear to be (like most modern linguists) a descriptive rather than proscriptive bunch, wonder: "Is this another case like 'I could(n't) care less' (but without the stress difference)?"  The "stress difference", as explained by Steven Pinker, the Boston-based linguist who buys his wigs from the same place as Howard Stern, is that "I could care less" is sarcastic.   

But I'm pretty sure Judge Sabatino wasn't being sarcastic, either. 

Evidence that, instead, he just wasn't thinking about what he was saying can be found in the case that inspired him to display his inattention.  The case involved a man accused of injuring his girlfriend's 3-year-old son.  A doctor who examined the boy 

found extensive injuries to the child's head, scalp, eyes, ears and neck, with lesser injuries to his left flank and scrotum. His eyes were dark and swollen, as were his ears. There were also large areas of blood collecting under his scalp. The manifestation of the injuries had worsened significantly from the night they were discovered, on October 18, and the child had lost a lot of blood internally. The doctor testified that the injuries to the child were purposely inflicted upon him and were not the result of a fall, as evidenced by their type and pattern.

The child spent two weeks in a pediatric intensive care unit recovering from his injuries.

Now, as you predict how the case will come out, remember the analytical tools set out in post 250.  The defendant was prosecuted by the executive branch and convicted by a jury.   The Appellate Division could go along with their decisions, or it could exert its own power by reversing the perpetrator's conviction.  Which would be better for the Appellate Division? 

That, however, is only a weak positive result, so we need to proceed to the next step.  The victim was a very young person.  The perpetrator, by contrast, was an adult male.   Who has greater social status? - which is another way of asking: Who would adult male judges find it more psychologically comfortable to identify with, the helpless, terrified and bleeding toddler, or the cleaned-up young man in the business suit sitting beside his lawyer in the courtroom?

The legal question was whether the perpetrator was denied his right to cross-examine the 3-year-old regarding statements the boy made to a social worker.  What the boy said was: "I fell down in my room. I want to go home to grandma" and "Dad says nobody beat me. I fell when I was sleeping in my room".  (The perpetrator wasn't the real father, but as part of his campaign of domination required his victim to call him "Dad.")

Judge Sabatino and his two colleagues ruled that the perpetrator was denied his constitutional right to confront the child about those statements.   In their view, the defense lawyer should have been able to put the boy on the witness stand and, leaning in close for the kill (but with the occasional sly sideways glance at the jury), demand in a voice heavy with menace:

"Now, when you told the social worker that you fell in your room, you meant that you fell in your room.  Isn't that right?"

"Directing your attention to your statement that Dad says nobody beat you.  What you meant was that nobody beat you.  Is that not correct?  Remember, you're on oath now."

"Isn't it true that when you said, I fell when I was sleeping in my room, what you meant to say was that you fell when you were sleeping in your room.  Isn't it?  Isn't it?"

I think it's pretty obvious that the Appellate Division judges weren't thinking in these concrete terms.  It's just silly to think that the defendant had any wish at all to attack the truth of the boy's statements (with one exception, discussed below).  Which explains Judge Sabatino's inability to express himself coherently: "As soon as certain topics are raised, the concrete melts into the abstract and no one seems able to think of turns of speech that are not hackneyed: prose consists less and less of words chosen for the sake of their meaning, and more and more of phrases tacked together like the sections of a prefabricated henhouse."

So let's look at at the abstract level on which the New Jersey judges pretended to operate.  The technical legal question before them was whether the prosecution offered the boy's statements "for the truth of the matter asserted."  Crawford itself says: "The Clause ... does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted."

But although two of the three judges who joined in the decision published opinions, neither opinion gives the least sign that the judge recognized the obvious point that the boy's statements were damaging only because they were so obviously - so piteously - untrue.

The only little bit that might arguably have been offered for the truth was the phrase that began: "Dad says ..."  But if those words were true (as of course they were), then the boy was authorized by Dad to say what followed ("nobody beat me").   It was fake-Dad's own statement, and therefore Crawford didn't apply.  After all, he could always cross-examine himself.  ("Why did you tell the boy to lie?"  "Because I didn't want to go to jail."  "Oh.  Okay.")

It's not as if these are difficult legal doctrines.  It's just that the New Jersey judges were so eager to pontificate about sea changes and Copernican revolutions (yes, that cliche is in Sabatino's opinion, too) that they didn't pause to think about the case in front of them.   The absence of thought explains Sabatino's use of "underestimate" for "overestimate" - although it must be said that the latter word would have been just as absurd as the former, because while Crawford makes it harder to convict the people who drive drunk and beat children and women, it doesn't exactly qualify as "a central and defining epiphany in all the history of science."  By dragging poor Copernicus into it, Sabatino shows that it's every bit as easy to overestimate Crawford's importance as it is to underestimate it. 

Sabatino's opinion came out last December.  Since then, surely, the judges on his court have had time to become deeply embarrassed, right?  He himself, doubtless, spent hours on the telephone with the publishers, trying desperately to withdraw his misbegotten draft?

Of course not.  Just two weeks ago Sabatino's meaningless words were quoted with a pompous show of approval by the Chief Judge of his court.  Time alone is insufficient to introduce judges to English, when thinking about what they're saying would only interfere with what they're doing.

Christopher Paul Moore's Fighting for America: Black Soldiers - The Unsung Heroes of World War II is mostly a collection of anecdotes drawn from interviews, medal citations, newspaper accounts and battlefield reports.  It gives a ground-level view of the war, entirely unlike conventional histories that attribute every military action to the commanders.

One story describes the experience of the 827th tank destroyer battalion, which destroyed 11 German tanks one day and 4 the next, and was soon afterward relegated to noncombat duties at the instigation of its own white officers, some of whom had actually fought with their men. 

Pfc. Charles Branson, an assistant gunner on one of these Hellcat Tank Destroyers, told Moore:

"Any white unit that accomplished what we did against the Nazis would have been commended generously.  They [the white officers] just had to be in charge," said Branson.

"I don't think some would have minded losing the war outright, just so they could puff up their chests.  They just had to be in charge."

I don't buy that the racist officers wouldn't have minded losing the war.  Rather, I think, the white officers wanted to win the war in the long term, but in the short term they were mainly interested in puffing out their chests and being in charge.

In the war, there was more than one struggle going on.  At a virtually abstract level, there was the Allies against the Axis powers.  On the ground there were Allied soldiers against Axis soldiers.  And, as Coppola's Patton dramatized, there were also struggles between jodhpur-wearing generals and English military celebrities who got better press coverage. 

Within each national Army, there were other power struggles. 

In any Army, the relationship between officers and enlisted men is always based centrally on power, though one hopes it also includes respect, admiration, loyalty, dedication to a common goal, etc.  Branson, I'm sure, is right that some white officers of Black troops were overly focused on the immediate power struggle, because (1) some people are just like that, as everyone who's ever worked in an office knows; and (2) the type of dominance racist whites wanted over Blacks was much more complicated (and complete) than a soldier's obedience. 

When I read - or, rather, listened to, in the excellent Recorded Books version - Moore's Fighting for America, the analogy suggested itself.  When courts consider a criminal case such as the quadruple murder described in post 224, many adversarial relationships based on power are at issue, not just that between prosecution and defense.

 At the most fundamental level - and, to my mind, by far the most significant level - there was the power relationship between Ealy and his four victims.   But it makes people uncomfortable to think about the strangulation of a pregnant woman, two teenage girls, and the rape and strangulation of a 3-year-old boy.

Luckily, there are abstractions galore to think about instead. There's what the Supreme Court melodramatically termed "the unceasing contest between personal liberty and government oppression."   Of course, the attentions of the police can indeed be oppressive.  One only needs to remember what the "po" in Gestapo means.  But in concrete terms, the Court was referring to the "unceasing contest" between  cops and robbers.  How much power should the cops have in that contest? - a question that gets more difficult when you phrase it the other way around: How much power should the robbers have?

But of course the criminal justice system doesn't end with the arrest.  There's the trial, and the appeal, and the habeas corpus.  Murder cases routinely go on for years, even decades.  At every step of the way, there's a new set of power relationships.  There is perhaps only one institution in American life as rigidly, unforgivingly hierarchical as the military, and that's the judiciary.  (Like this, this and this, too.)

The Ealy case enacts the power relationship between courts, of course - the appeals court overturned the trial court.  Big brother beat up little brother.  Many murder cases (though not Ealy's) then go on to illustrate the power relationship between intermediate appellate courts and state supreme courts, and between state supreme courts and the U.S. Supreme Court, and between state supreme courts and federal habeas corpus courts, and so on.  At each step of the way, there's another power relationship that has nothing to do with the crime.

The Ealy case also illustrates yet another power relationship: that between branches of government.  In Ealy's case, the judicial branch condemned - in fact, nullified - the actions of the executive branch, and forbade the enforcement of the laws against murder enacted by the Illinois legislative branch.  The judiciary was enforcing its supremacy over the other branches. 

The rhetoric of judicial opinions traditionally acknowledges only one of the many power relationships involved in judges' decisions.  The fourth amendment, courts never tire of telling us, requires them to weigh competing interests, in order to achieve "a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers."  Cops and robbers.

But fourth amendment decisions about the legality of an arrest also - automatically and unavoidably - require "balancing" (that is, choosing) between the exercise of power by the police over criminals and the exercise of power by the courts over the police.

Once it's understood that not just one but two power relationships are directly on the line, decisions such as that of the Illinois Appellate Court in James Ealy's case become much easier to understand.  It's not that the judges were on Ealy's side.   They were on their own side.  What was at issue wasn't what Ealy did to the Parkers, but who was going to be in charge as between three judges and a bunch of ill-educated blue collar types who say "dis" for "this."

In the long term, no doubt, the judges the Appellate Court wanted the police to defeat the murderers.  But in the short term, they wanted to puff up their chests.  They just had to be in charge.

In his speech against a proposal to suspend the New York Assembly in retaliation for the colonists' refusal to knuckle under to prior Parliamentary acts, Edmund Burke helped us visualize the fundamental absurdity:

And then after you have made this Law to enforce your last: you must make another to enforce that - and so on in the endless rotation of Vain and impotent Efforts - Every great act you make must be attended with a little act like a Squire to carry his Armour.  And the power and wisdom of Parliament will wander about, the ridicule of the world.

(I admit that I haven't read quite all of Burke's Parliamentary addresses ...  I have this from Conor Cruise O'Brien's masterful The Great Melody: A Thematic Biography of Edmund Burke.)

I was reminded of the little acts trotting after great acts this morning when I received e-mail notification of today's Supreme Court deci -  Well, opinions.   In one, the court informed the anxiously-waiting world that although it had granted certiorari to tidy up some business left over from 2006, it chose not to decide the case, after all. 

In another, it had granted certiorari to decide whether a technical violation of formalistic rules for drafting an indictment (formalities that have long since been discarded by most if not all state courts) could be "harmless error" - the weird doctrine that says that a judicial act can simultaneously be a violation of the fundamental law of the land and no big deal.  But, in another damp squib, the Court decided not to decide that question, either. 

What the two cases have in common is that both reflect further attempts by the Court to define, once and for all, what is an "element" of an offense - what is sometimes called, in a culinary metaphor that doesn't bear thinking about, an "ingredient" of a crime.  (Seconds, anyone?)  And, once again - no, twice again - the Court has found it can't do it.

Back in 1970, the Court declared that the "proof beyond a reasonable doubt" standard was constitutionally required.   No big deal in itself - everybody had been using that standard for centuries.  But then the question arose: what must be proved beyond a reasonable doubt?  Well, the elements of the crime, which the 1970 case (Winship) defined as "every fact necessary to constitute the crime with which [the defendant] is charged."  Okay.  But what are the facts necessary to constitute the crime?

The succeeding 37 years have seen a ridiculous number of opinions trying to answer that question.  One line of hair-splitting tried to figure out if there was any difference between "elements" and the rebuttal of defenses - after all, if the prosecution is required to prove that the defendant didn't kill his wife in self-defense, doesn't that mean that absence of self-defense is a "fact necessary to constitute the crime"?  (Answer: yes and no.)

How about sentencing?   What's the difference between being locked up because of facts establishing an element and being locked up because of facts establishing a sentencing factor?   If a judge tacks on an extra five years because the defendant mooned the bench during the sentencing hearing, doesn't that mean, in effect, that mooning has become an element of the offense?  (Answer: yes and no.)

There must be at least 15 little cases trotting along behind 1970's big case.  Like Parliament trying to discipline the Bostonians, the Supreme Court is obliged to spend time and energy trying to get its earlier act obeyed.  And that obliges it to spend even more time and energy getting the squire cases obeyed.  Anyone who pays attention to the Court must be struck by how often it returns to the same subjects - a habit that might call to mind an even more disagreeable gustatory metaphor.

Today's two little fiascos weren't the result of the Court trying to do justice, or decide important issues, but of the Court trying (and failing) to defend its own prestige, which it so foolishly put on the line in 1970.  The words Justice Brennan wrote back then might look good on paper, provided you're not allergic to his lilac-scented prose.  But the experience of the last 37 years might nudge a non-judge to the tentative conclusion that, all things considered, it's better to figure out what your grand declaration means before you make it.

It's a custom of the Supreme Court to kick off the term with unanimous reversals of dishonest Ninth Circuit decisions.  Here (and here, and here) are some selections from previous years.  (The Sixth Circuit gets unanimously reversed nearly as often, but with much less publicity - but that's another story post.)  This year, as the December days kept getting shorter, I began to worry that that young whippersnapper Roberts was going to break with tradition.  But my curmudgeonly fears were laid to rest earlier this week when the Supreme Court decided Carey v. Musladin on a 9-0 vote. 

Way back in May, 1994, in San Jose, Mr. Musladin came to his house belonging to his estranged wife's mother to pick up his 3-year-old son for a scheduled visit.  He brought a gun with him.  The estranged wife was at the house with her new fiance, Tom Studer.  See any potential for conflict there? 

Musladin knocked down his wife, then pulled out the gun.  The wife and Studer scrambled back to the house and Musladin fired, hitting Studer in the back.  Studer crawled into the garage, attempting to get beneath a car.  Musladin followed him and shot him in the head, killing him. 

Musladin didn't deny any of that, but claimed he thought Studer and his wife's brother were attacking him with a gun and a machete (usually people faking a self-defense just claim to have seen "something 'metallic' in [the dead man]'s hand", but Musladin was very specific that the family came after him with a big ol' jungle-hacker).  You can find a fuller statement of the facts in the dissent to the Ninth Circuit's original panel decision.  

On the first day of Musladin's trial, three members of Studer's family wore buttons with a picture of him.   Here's his parents holding a larger-sized copy of the very same photo.  There were no words on the buttons, simply the picture: a photograph of a young man.

Studer's parents say that three family members wore the buttons on the first day of trial, and that the buttons were two inches wide.   Make the OK sign with your thumb and middle finger and you'll have an idea of the buttons' size.   Here's a picture.

Musladin's defense attorney asked the judge to tell the three family members to remove the buttons, but the judge said no, and the lawyer let it go, not getting any but the vaguest information about them into the record.  As Justice Thomas's opinion for the Supreme Court reveals, the Ninth Circuit knew next to nothing about the matter it decided:

The record contains little concrete information about the buttons. The buttons were apparently two to four inches in diameter and displayed only a photograph of Studer. It is not clear how many family members wore the buttons or how many days of the trial they wore them.

Musladin, naturally enough, disliked being in prison for killing someone who self-evidently deserved to die - after all, Studer stole his woman.  Eleven years after the murder, ten years after his conviction, he managed to convince a judge that those buttons made his trial unfair. 

The Ninth Circuit found itself asked to decide which was worse: (1) shooting a wounded man in the head; or (2) being tried by a jury that might possibly have observed three members of the dead man's family wearing two-inch buttons with a picture that might theoretically be discernible from the jury box by a juror with exceptionally sharp eyesight or the aid of binoculars.  Naturally, the Ninth Circuit plumped for door # 2.

(Of course, the court didn't admit in so many words that it was deciding which was worse, but it did explicitly rule that the one infraction must be punished before you can even consider punishing the other - and what else can that mean except that the first is worse than the second?)

The fact that the Ninth Circuit could reach that result only by violating the very statute that gave it authority to review the state court opinion was no impediment, so long as the case remained on the west coast.  But then it traveled east.  Not one justice could be found to defend a line of reasoning that commanded the respect of a majority of the Ninth Circuit's judges. 

(Here's Dahlia Lithwick's report of the oral argument.  She's obviously much more sympathetic to Mr. Musladin than I am - note her description of the way in which Musladin followed the crawling Studer into the garage before executing him.  If her description were the full story, then he didn't commit first degree murder at all.)

The case brings together a number of the threads that run through the modern American criminal justice system, such as:

1.  The people whose rights are being decided should not be given notice or an opportunity to be heard.  The gist of the Ninth Circuit's ruling was that, by stepping into a courtroom,  Studer's family members surrendered their first amendment rights.   (That, indeed, is what Justice Stevens came right out and said.)  (See post 206.)  The Studers were given no notice that their rights were being decided, and much less were they permitted to participate in the decision-making process. 

2.  Jurors are impressionable, overly-emotional morons who should not be permitted to decide cases, if it can be prevented.   For example, the sight of a grieving parent wearing a tiny photograph of their dead child will put them in such a tizzy that they won't be able to think again for the rest of the trial.  

3.  Facts can be manufactured to suit any need.  Such as: the 12 jurors in Musladin's trial were put into a tizzy.  The Ninth Circuit had absolutely no evidence that any of the jurors even noticed the buttons, and much less that the slightest tizziness had occurred.  The complete absence of evidence didn't matter: the Ninth Circuit simply pretended it existed, and that was good enough.  That is, the Ninth Circuit relied on non-evidence to conclude that the jurors had done the same thing.

4.  In our democracy, the people have no authority to control the administration of justice.  Your beliefs, feelings and sense of justice don't count unless you are (in descending order of significance) a Supreme Court justice, a federal judge, a state court judge, a lawyer, or, in certain unusual circumstances,  a party to the proceedings.

5.  The trial is everything.  There is no big picture.  There is no reality - or no reality a judge needs to respect - outside the courtroom.  That's why, 11 years after Studer's death, after Musladin's jury convicted him and the conviction was upheld on appeal, the Ninth Circuit put quotation marks around the word "'victim'" when used to describe the dead man.   A person who is shot to death doesn't become a shooting victim when he's shot, but only when a judge decides to recognize that fact.

I usually don't post in response to comments because I have no desire to emulate - or even appear to be emulating - those mean-spirited professors in the New York Review of Books or The New Republic responding to letters-to-the-editor.  However, Young PD's thoughtful comment to post 206 raises too many interesting topics to pass up.  He or she wrote:

I find it hard to believe that you think that cheering sections for parties in trial should be allowed. In my opinion there is a big difference between keeping something relevant from a jury because of its potential prejudicial effect and allowing family and friends of a victim who have been told by the cops and the prosecutor that this is the guy, to come in and cheer for the state.

But if they formed a cheering section they would disrupt the trial, and that would be different.  If a banner was strung across the back of the courtroom, as Justice Kennedy suggested, then obviously the courtroom staff was involved, either in hanging it or in not taking it down, and that's different again.

But if Justice Stevens is right, and spectators have no first amendment rights at all, then the judge could have prohibited Studer's family from carrying his photograph in their wallets and purses.  (It's no answer to say a judge wouldn't know about concealed photographs - as everyone who has visited a courthouse in the last few years knows, non-judges have absolutely no fourth amendment rights inside a courthouse.) 

Then, too, do families of murder victims really come to the courthouse to cheer on the state?  I think it's always a mistake to think of crime, violence, death, justice, suffering and grief in terms of trials.  The trial is an itty-bitty part of a very big thing.  The victim's family doesn't attend the trial out of enthusiasm for the prosecution.  (Indeed, in my experience, families are often suspicious of prosecutors, even hostile, expecting at any moment to have the rug pulled out from beneath them.) 

The family attends the trial because it's one part of the worst thing that has ever happened to them.  They don't want the prosecution to win; they want justice for their loved one, and peace within their own souls.  The verdict is no more than a signpost along that very long road.  For the lawyers and the judges, it's the destination.

That's not because we're shallow, but because we're involved in the case only through our professional lives.  The deaths of strangers have very little emotional meaning to anyone, anywhere.  Lawyers and judges can read about Musladin's execution of Tom Studer with the same emotion with which they - and everybody else - scan the obituary page.   If you don't recognize the name, it really doesn't mean very much.  Tom Studer's family can't do that.

It's not that the victim's survivors are viewing the case emotionally, while lawyers and judges are objective.  Rather, the emotion experienced by the lawyers and judges is inward-directed.  (Monitor your emotions as you scan the obituary page.  It's not that you're emotionless, it's just that your emotions are occupied with things other than the names of dead strangers.)  During the trial, it really is all about me, about the impression I'm making on the jurors, about what I need to accomplish with this witness, and what I need to do after dinner to get ready for tomorrow. 

For a majority of the judges of the Ninth Circuit, Tom Studer's death was an opportunity to act out the public ceremony of self-righteous superiority while simultaneously experiencing the illicit thrill of exercising arbitrary power - apparently a mixture of speedball-like addictiveness.  I imagine it's rather like the emotional experience of priests who preside over solemn mass knowing they'll be fondling the altar boy in the sacristy before the last parishioner is out the door.

This is all very different from the emotional experience of the victim's family, which is outward-directed.  They're not more emotional; their emotion is more noble.

The great error of judges and lawyers - the error that I think is right at the heart of so much that has gone haywire in our system - is the solipsistic self-importance of thinking that what we do is the important thing.  It's as if UPS, DHL and FedEx drivers all became convinced that the highest priority of a package-delivery service is to load the truck well.  If it's not well-loaded, a proper sense of priorities requires us to unload and start all over again.  As for those people who make such a big deal about wanting to receive their packages?  Tell 'em to take off those damn buttons or we'll empty the truck again.