JUDGING CRIMES

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.

My local paper ran a story today about a task force designed to eradicate racial profiling by the Albuquerque Police Department.  The first step, the task force declared, is to require police officers to record the race of every citizen with whom they come into contact.

The task force's co-chair, a former judge, explained: "What's not understood is that without data collection, we can't have a plan.  It's the heart of any city's biased-based policing plan."  (Yeah, but can he say "biased-based policing plan" five times fast?)

The logic is impeccable, but you have to wonder if making cops think about a person's race or ethnic identity is really the ideal first step in teaching them not to take a person's race or ethnic identity into consideration. 

In 1986, the U.S. Supreme Court took a firm stand against the systematic racial discrimination that characterized the American legal system of the 1950s and 1960s.  (See post 57.)  In a series of decisions that began that year with Batson v. Kentucky, the Supreme Court has ruled that, in order to prevent lawyers from engaging in racial discrimination during jury selection, lawyers must consider the race or ethnic identity of prospective jurors. 

The essence of the long string of cases interpreting and expanding Batson - Batson is what lawyers, with pre-Freudian innocence, like to call a "seminal" case, with lots of "progeny" - is that if there is any indication that a prosecutor is basing decisions on race during jury selection, the defense attorney has an obligation to call him or her a racist.    "Obligation" is not an exaggeration:  it's professional incompetence for a defense attorney to miss a chance to accuse the prosecutor of racism.  It doesn't matter whether defense counsel actually believes it.

(In theory, what goes around is sauce for the gander, but a prosecutor's successful Batson motion will only lead to a claim on appeal that the defendant was denied his right to challenge jurors.  So tables on this one-way street are only sparingly turned.) 

To eradicate the tendency to think of prospective jurors in terms of race and ethnicity, the courts insist that lawyers think of them in those terms.  Like the biased-based policing plan, the logic of Batson is impeccable and the purpose is noble, and yet one might wonder just a little bit about the real-world effect.

In his insightful book Racism: A Short History, George Frederickson writes: "the essence of racism is not biological determinism per se but the positing, on whatever basis, of unbridgeable differences between ethnic or descent groups".   That is also the essence of Batson.  All prospective jurors must belong to one or another group, and there are objectively-determinable divisions between them.  

Leonard Thompson was writing about the old South Africa when he wrote that "[t]he core assumption is that races are the fundamental divisions of humanity".  But that's the core assumption of Batson, too.  In the name of stamping out the thinking that conceptualized unbridgeable differences between ethnic and descent groups, the Court institutionalized it.

Two basic assumptions underlie the American system of jury trials.  The first is that trial by jury is  "the spinal column of American democracy" (Scalia).   Or, if that's a bit too anatomical for your taste, it's also "the grand bulwark of [our] liberties" (Blackstone) and "the very palladium of free government” (Hamilton). 

The second assumption is that jurors are overly-emotional morons, incapable of thinking clearly about anything. 

For example, a person charged with being a felon in possession of a firearm has a constitutional right to a jury trial.  The bulwark of liberty is there f0r him.  But if the jurors were to learn the name of the person's prior felony, the probability is high that they would be so carried away with shock and abhorrence that they would convict the defendant for that reason alone, regardless of the other evidence, their oaths, the judge's instructions, and any shred of civic or moral responsibility they may possess.  They would, in short, "misuse" the evidence.

The very idea that a jury can "misuse" evidence is a peculiar one.  Any use a jury makes of evidence must, by definition, seem reasonable to at least twelve people.  (Anyway, if we don't assume juries are rational, what's the point of jury trials?  Surely  American democracy doesn't have a twisted spinal column!)  It follows that the evidence is probative of the point for which the jury considers it, because otherwise the jury's use of it wouldn't be reasonable.  Back in 1947, the Supreme Court summed it up nicely: "Much evidence of real and substantial probative value goes out on considerations irrelevant to its probative weight but relevant to possible misunderstanding or misuse by the jury."

To understand why it's "misuse" for a jury to draw reasonable conclusions from "evidence of real and substantial probative value",  you have to turn to the second basic assumption.   In a recent unpublished decision, the Washington Court of Appeals explained: "When evidence is likely to stimulate an emotional response rather than a rational decision, a danger of unfair prejudice exists."  That is, there are occasions when juries are likely to make irrational, emotional decisions.

In the particular case under consideration, one woman - woman A - told a male acquaintance that she suspected he had something to do with woman B's mysterious disappearance.  (In fact, he had killed her, as was subsequently proved.)  Immediately after woman A voiced her suspicion, he attacked her, tried to rape her and eventually wound up masturbating on her.  He was convicted of "indecent liberties." 

The Washington Court of Appeals reversed the conviction, ruling that there was too great a danger that the jury convicted him of indecent liberties against woman A not on the basis of her extremely detailed account of the crime, but rather on the basis of her suspicion that he had committed a different crime against woman B.

If you accept the first assumption about juries, the Washington court's decision is simply ludicrous.  Palladia of free government don't act like that.  But if you accept the second assumption, the decision makes perfect sense.  The ability to toggle back and forth between the two assumptions while keeping at bay any insight into their contradiction is an important skill for any judge to master.

In Bonn I fell into conversation with a recent law graduate who was curious about legal studies in the States.  I described the classes I had taken the previous semester back in Chicago, including Evidence.  He looked puzzled.  "What's there to study about evidence?  Either it's relevant or it's not."  Until that moment I hadn't realized that the very concept of a "law of evidence" is an artifact of the Anglo-American legal system.

Justice Potter Stewart, whom I greatly admire, once wrote: "The basic purpose of a trial is the determination of truth."  If that were really the purpose of trial, we wouldn't need any rules of evidence other than the simple requirement of relevance.

For American lawyers, relevance is only the starting point. The other rules of evidence, the ones that take a full semester to study and years of practice to master, are almost exclusively concerned with ways to prevent the jury from learning information that is relevant to the decision they've been dragged out of their ordinary lives to make.

Or, to put the matter more bluntly, the basic purpose of the law of evidence is to prevent the determination of truth.

My Evidence teacher, the late Jon Waltz,  began the semester by asking students to explain the purpose of a trial.  One young woman gave the Potter Stewart answer, only to be laughed at from the podium.   (And I'm confident she remembers the scene with a smoldering resentment to this day.)  The "correct" answer, from Waltz's point of view, was that trials exist to resolve disputes.  Whether truth emerges is neither here nor there.

But I don't think Waltz's answer goes very far, either.  Keeping out relevant evidence doesn't necessarily make disputes any easier to resolve.  In some cases the censorship of reality might simplify matters, making it easier to fit the case into a pre-established category, but in others it will complicate them by excluding the one piece of information that would make sense of everything.

One of the most significant differences between the German civil law system and the Anglo-American common law system is the jury.  And that difference explains the law of evidence.  In American bench trials, the rules of evidence are only loosely enforced because it is assumed the judge, being a lawyer, will know enough to disregard inadmissible evidence.  The rules of evidence exist to prevent the jury from basing its decision on certain categories of evidence -- or, in other words, to prevent the jury from deciding for itself what evidence is reliable enough to base a verdict on.

The primal power struggle in any trial isn't between the prosecution and the accused, or the plaintiff and the defendant, but between the judge and the jury.  When the jury room door closes, jurors become the only courtroom actors beyond the direct control of the judge.  But while the judge can't control what comes out of the jury room, he can control what goes into it.  That's what the law of evidence is all about.