JUDGING CRIMES

Christopher L. Eisgruber (I don't mean to be rude, but with a last name like that, is the middle initial really necessary?) has written The Next Justice: Repairing the Supreme Court Appointments Process, a well-meaning, mildly interesting and thoroughly exasperating book. 

Eisgruber comes across as a likeable, intelligent guy aswarm with good intentions.  His basic theme is that the Supreme Court is perfect and everyone else needs to accommodate themselves to that.  The problem is, I'm not sure he understands that's his theme. 

I can't figure out who the book is written for.  Part of it is an introduction to (cue Sousa march) The Supreme Court, Paladin of Liberty, written for the semi-informed general reader.  But the concluding chapters are full of  (thoughtful, well-meaning) advice to the members of the Senate Judiciary Committee, a rather more specialized audience.  In the middle an entire chapter is composed largely of quotations from Supreme Court opinions.    Throughout, Eisgruber has smart, modest things to say. 

In short, there's an Atlantic Monthly article inside this book screaming to be let out.

Eisgruber gets real close to proposing a genuine solution to the contentious-yet-contentless confirmation hearing when he suggests that if a nominee refuses to answer certain carefully-calibrated questions, "skeptical senators would be well justified in voting against confirmation." 

This tiptoes right up to a genuine insight: confirmation hearings will become meaningful when the Senate, asserting its prerogatives as an institution, demands meaning.  If a nominee's refusal to answer means rejection, nominees will answer.  There's nothing mysterious about it.

But Eisgruber doesn't seem to realize what he's saying, because in the next chapter he tells us that "senators and the American public will have to give up the tantalizing but bogus concepts, such as 'judicial restraint,' that are now commonly invoked to evaluate nominees."  

Oh, I see.  Just reeducate everyone.  What is it that Bertolt Brecht, der Mann ohne (Redeeming) Eigenshaften, suggested to the East Germany government?  Why not just "dissolve the people / And elect another?" 

That's what's so exasperating about the book.  Eisgruber understands that political hardball will instantly end confirmation-hearing farces.  But he can't bring himself to recommend any course of action that genuinely challenges the status quo.   It's just not in his nature.  His talk about the American people giving up tantalizing concepts is just a word-processed way of drifting into irresolute silence.

It's as if Eisgruber - who, I'm sure, is the very soul of stability - has two personalities: the smart one who notices things and the conventional one who shushes the first.  And they took turns writing this manuscript.

An example: he says (several times) that Eisenhower was the last President who disregarded the ideology of his nominees, choosing justices based solely on perceived legal ability.  He also notes that two of Eisenhower's appointees, Brennan and Warren, were leaders of a Court that "rendered a series of ideologically charged decisions ensuring that no future presidential candidate [after Eisenhower] would be able to ignore the Court."   (He repeats that thought, too, in various phrasings.)

Elsewhere, Eisgruber notes that it's unlikely any future President will nominate someone from the opposing party (as both Eisenhower and Truman did), "given the Court's role and visibility in the post-Warren Court era". 

But he never ties together these various observations.   It's true that the Warren Court increased the Court's role and visibility, but that's just a polite way of saying it asserted vast new powers over the democratic branches of government, buying off Congress by giving it increased power over the states, and buying off state-court judges by giving them increased power over the other branches of their governments. 

Eisgruber notes the most obvious example of this process when he writes that for 20 years groups on both the right and the left "have cared above all else about what Supreme Court nominations will mean for the future of Roe and abortion policy in the United States."   After Roe v. Wade, there was no other way for abortion opponents to seek to change national policy.  By eliminating democratic change as an option, the justices practically insisted that all future vacancies on the Court would occasion intense political campaigns devoted to the issue.  The Court did that - it changed the nomination hearings into referenda on abortion.

The same is true of criminal law, the area of American life in which the Court has exerted the greatest influence in the past 50 years but a subject Eisgruber hardly mentions.  (Princeton men don't do criminal law, darling.   Their security guards take care of it.)

Starting during Eisenhower's second term, the Supreme Court took away a significant part of every local community's authority to order its own society.  The only way for local communities to regain the autonomy they enjoyed (and sometimes abused) in the early 1950s is to (1) ignore / work around the Supreme Court; or (2) attempt to influence the nomination and confirmation of Supreme Court justices.

Think of your favorite political cause.  The Supreme Court has left grubby fingerprints all over it, hasn't it?  You have to search hard for an unsmudged cause in modern America.  That's why I think confirmation hearings for Supreme Court nominees ought to be at least as contentious as congressional and presidential campaigns.  After all, in our post-democratic nation, members of Congress and Presidents don't have any power to make ultimate decisions about an ever-lengthening list of issues.

But although I think Eisgruber understands this, he's wholly committed to the Goodness and Rightness of all things Supreme Courtish.  The law operates like a religion (see post 332) and former Supreme Court clerks, who owe their careers to having been singled out by a justice, tend to be worshipful acolytes.  (See post 204.) 

So Eisgruber winds up saying, in consecutive paragraphs: "Unlike other federal courts, the Supreme Court has a discretionary docket.  The justices, in other words, have the power to choose which appeals they will hear.  ... The Supreme Court's docket ... require[s] the justices to make politically controversial judgments."  (My italics.) 

Freud would have made much of the juxtaposition of such  obviously contradictory sentences just a few lines apart.   (Page 28 if you're following along at home.)  It's necessary for Eisgruber's policy prescription ("try to make the best of it") to pretend that the justices have no choice but to nullify democratic choices.  But he knows that's just not true.  He's honest enough not to hide what he knows, but too successfully conventional to integrate it into his recommendations.  (See post 329.)

The late Meg Greenfield's last book, Washington, includes a taxonomy of Washingtonians that includes the Grown-Up Good Child - those handy, capable people who live to please powerful mentors.  Grown-Up Good Children prosper in  hierarchies - think of the former Supreme Court clerks that have gone on to become Supreme Court justices (Roberts, Stevens, Rehnquist, Breyer).  Greenfield put herself in that category, and I suspect Eisgruber belongs, too.   Grown-Up Good Children don't bite the hand that fed them.  

Then again, maybe it's simply the case that, after mature reflection, he approves of our reversion to a government of unaccountable elders.  After all, that's the way our ancestors did it in the Pleistocene, so evolutionary psychology supports it.  I mean, just look at street gangs, Mafia families and prestigious law firms.  You trying to tell me the similarities are coincidence?

"Are you planning to follow a career in Magical Law, Miss Granger?" asked Scrimgeour.

"No, I'm not," retorted Hermione.  "I'm hoping to do some good in the world."

Henry Fielding was a lawyer and judge as well as among the first and greatest English novelists.  Many a literary man has read the law to please his parents, including two of the authors I read with purest pleasure, LeFanu and Stevenson.  But Fielding, unlike them and most law-trained authors, made his living from the profession. 

While he was not a rousing success as a barrister (but then, most barristers aren't – bell-shaped curve and all that – Boswell never made it to the top of the greasy pole, either), he became magistrate for Westminster, and he and his brother John, also a magistrate, helped organize London's first effective police force, the Bow Street Runners.  (Fielding's courtroom was in Bow Street, across from Covent Garden.)

(On that map you'll find the geographic inspiration not only for The Jam's "A-Bomb in Wardour Street" – Wardour is the street on which the Marquee was located – but also, if you look closely, for the Kinks' "Denmark Street," which captures once and for all the soul of a pop music producer: "You go to a publisher and play him your song. / He says, 'I hate your music and your hair is too long / But I'll sign you up because I'd hate to be wrong.'")

Toward the end of his very short life, Fielding wrote a book, or rather a pamphlet, called Examples of the Interposition of Providence in the Detection and Punishment of Murder, Containing, above thirty Cases, in which this dreadful Crime has been brought to Light, in the most extraordinary and miraculous Manner; collected from various authors, ancient and modern.  Here's "Example XXX":

The following fact was told me by a gentleman whose great-grand-father was an Irish judge, before whom the thing happen'd.  The particulars have been preserved in the family by tradition ever since, but the name of the person that was executed is purposely omitted, as being of no inconsiderable family in that nation.

A gentleman was tried in Ireland for killing his friend in a duel, and the circumstances appearing very favourable on his side, a verdict was brought in manslaughter.  This crime being within benefit of clergy, the prisoner had the book offered him to read; of which he started and hesitated in such a manner, that those who stood near him asked him why he did not proceed.  He answered, he could not see the words, they were so stained with blood.  He added, that he wonder'd they should use him in such a manner, and desired there would give him a fair book.  Several people standing by look'd on the book, and all declared, that not the least drop of blood appear'd on it, but the words were perfectly legible.  The prisoner, on that, fetch'd a deep sigh, and said, "I plainly perceive the vengeance of God is pursuing me; for although I declare myself innocent of the death of my friend, any otherwise than by being forced into it for self-defence, yet I confess herself worthy of public punishment; for some years ago I barbarously murdered my own father."

He then related all the particulars of the Murder, and his confession was so full, that he must of been condemn'd on that account, had he taken his tryal; but his incapacity for reading in any book they offered him, by the appearance of blood before his eyes, still continuing, no other tryal was necessary, and he was executed by virtue of his first conviction.

He died very penitent, persisting in his confession of the Murder of his father, allowing the justices punishment, and acknowledging the hand of God, and forcing him to confession of his horrid crime.

Example XIX told of a man whom got away with murder for 20 years.  After that passage of time he felt confident enough to return to his old haunts, so to speak.  But

the very evening that he landed in a wherry at Queenhithe-stairs, walking up to Cheapside, in order to get into a coach, just in the dusk, and by the very door of his murdered friend, he heard a voice cry out, "Stop him, stop him, there he is."  On this he ran as fast as he was able, and soon found himself followed by a large mob.  He was soon overtaken and seized, on which he cried out, "I confess the fact, I am the man that did it."  The mob on that said, as he had confessed the crime, they would proceed to execution; and, after making him refund the stolen goods, would give him the discipline of pumping, kenneling and the like [that is, holding him under a pump or in a 'kennel' or open sewer]: on which he said he had stolen nothing, for though he had murdered Mr. L----, yet he had no intention of robbing his house.  By this answer, the mob found themselves mistaken, for their pursuing a pickpocket, and seeing this man run hard, believed him to be the pickpocket; but now were for letting go as a person distracted, that knew not what he said.  One man however who lived in the neighbourhood, and had heard of the murder of Mr. L----, desired that this gentleman might be examined before a magistrate, and he was accordingly carried before the Lord-Mayor, who took confession of the fact, for which he was soon hanged: and he declared at the gallows, that the day of his execution, was the happiest day he had known since he had committed that horrid, treacherous, inhuman act, the murder of a friend, who loved him, and to whom he lay under the highest obligations.

It might seem strange at first that the ribald satirist Fielding should have morphed into the earnest moralist championing God's wrath against "this sin of murder."  Here's one Victorian assuring us, presumably metaphorically, that "Fielding the magistrate and Fielding the playwright were two different persons".  But it seems to me obvious that the satire and the moralizing were the same tune played in different keys. 

For an artistic genius and pioneering judge in London in 1752, the detection of murder, and the murderer's penitence as expressed in his gallows confession, were presumed to be the handiwork of God: "the Almighty hath been pleased to distinguish the atrociousness of the Murderer's guilt, by levelling his thunder directly at his head, in this world."

Many things have changed in the succeeding 255 years, not least of all the attitudes of judges.   Today's Supreme Court presumes that a murderer's confession is the result of a civil rights violation.  From the hand of God to a tort: now there's a fall from grace.

In 1968 Justice Byron White deplored "the Court's fuzzy ideology about confessions, an ideology which is difficult to relate to any provision of the Constitution and which excludes from the trial evidence of the highest relevance and probity."

But that was a lawyer-centric way of putting it.  Describing an ideology in terms of categories established by the law of evidence is like describing liberalism as an ideology that favors Volvos - not wrong, but kinda missing the point.  The Court's ideology, which is by compulsion the ideology of all American criminal courts, is an ideology about punishing murderers who have confessed to their crimes.

And even that isn't quite right, because people really do confess falsely, and no one (or no one we need to respect) is in favor of locking up the innocent.  So we can put the innocent confessors to one side.  The Court's ideology is against punishing guilty murderers who have confessed to their crimes.

This ideology is imposed upon us by a group of people who want us to believe they respect the intentions of the framers of our Constitution.  (See post 79.)   Do you suppose they really know more about what people were thinking in the 18th century than Henry Fielding did?

These and other adjectives - I keep the best ones in the back room for my best customers - are available to any publisher who cares to send me a review copy of a good book.  Putnam/Penguin/Perigree/Plume/Portfoilio was the first to take advantage of this offer - indeed, one might even say the acceptance preceded the offer - by sending me a copy of Kevin Flynn's Relentless Pursuit: A True Story of Family, Murder, and the Prosecutor Who Wouldn't Quit.

It's the kind of subtitle that makes you feel empathy for the author.  I mean, you spend years working on this book, you put yourself through the ritual humiliations of finding an agent and publisher, you get lucky, you even get  the big publicity push - even bloggers, by gum! - and .... your publisher insists on a subtitle like that.  No wonder Flynn looks like a depressed Calvin Trillin in his author's photo.

Family is important.  Murder is even more important.  But - drumroll, please - most important of all: this government employee didn't quit!  He's hanging on until retirement!!  Then he'll be out of there like a shot!!!

Janet Maslin, reviewing the book in the New York Times, trying to sound like a TV actor addressing a jury of extras, writes: "And what happens when a federal prosecutor tries to make his biggest criminal case sound like the work of a dramatist? Ladies and gentlemen, a lot can go wrong. The prosecutor may embrace all known crime clichés without using them to attain clarity."

Without using them to attain clarity?  Does Janet Maslin think you can use cliches to attain clarity?  Apparently so, because she proceeds to show Flynn how it's done: "What he does have is a case so open and shut that rendering it suspenseful is a Herculean feat."  That's three cliches in 19 words.  Top that, you JD-wielding novice!

It was not, in fact, an open and shut case.  Flynn (at least in his telling) came within an eyelash of losing it at the suppression hearing (though he would have had a good pretrial appeal).  The circumstantial evidence was fairly strong but far from conclusive, and the theory of motive was extremely weak. 

The victim's friends who emerged after the murders to "remember" hearing threats by someone they had long disliked would not, perhaps, have struck a jury as quite as credible as they apparently struck Ms. Maslin.  One theory of human behavior says that people plotting bad deeds usually don't first detail their plans to their enemies.  (But maybe it's different at the Times.  Was anyone in the newsroom surprised by Judith Miller?)

What got me about Maslin's slam, though, was her confusion about the concepts of "fiction" and "non-fiction."  Criticizing a murder for embodying "crime cliches" is -  Put it this way.  It's appropriate to the times we're living in.  One of the victims was murdered next to a box of diapers, which Flynn knows from the crime scene photos.  Maslin thinks that's a cheap symbol. 

And she concludes: "'Relentless Pursuit' claims to offer a glimpse into the way prosecutors work ... What it captures more accurately is the way writers work when trying to package real life as drama and give it more weight than it actually has."  But - you don't mind my talking about the book as if it were non-fiction, do you? - it does offer a glimpse into the way prosecutors work.   It captures the experience pretty exactly.  (Even though Flynn is a fed - in D.C. they do real crime, not just drugs and immigration.) 

And - at the risk of exposing my hick roots here - there's a part of me that thinks that murder trials are dramatic.  And that murdering two people, and putting a third in prison for life, are things that have a certain inherent weight.  Of course, I don't mean to compare those things to an "aging heavy-metal star buy[ing] a haunted suit over the Internet."

An insight into Maslin's failure of imagination is offered by her sneer at Flynn's "contrived efforts to be close to the [victims'] family."  Flynn was extremely close to the victims, and through them to their family.  He learned a lot about the victims' lives - and everything about their deaths, including a great deal more than their relatives would ever want to know.  Their deaths dominated his professional life for a year or more.

The most impressive thing about the book is the way in which it captures the prosecutor's intense relationship  with the dead, the sense of personal responsibility far beyond professional duty.  I know a prosecutor who has on her office wall a framed photograph of a baby.  Not her baby, but a baby who was killed by her own parents and uncle.  And since the family didn't care enough to take any photos of their baby during her five months of life, it's actually an autopsy photo.  But a retouched autopsy photo, with the bruises photoshopped away.  

(After this was first posted, a prosecutor told me he that when he visited two murder victims in the graveyard - also a mother and child - and saw that the family could only afford small plaques laid in the ground, he paid for proper granite headstones.  It's not exactly a personal relationship, but it's a close one.)

It's perhaps not really surprising that Maslin, in her book-lined cocoon of privilege, is unable to understand what Flynn is writing about.  But too bad that she's so nasty in her ignorance.  The Washington Post's reviewer was prepared to read the book as it is, rather than the novel it isn't, and gets a lot closer to its essence.

Did I mention that the book reads like a combination of Scott Turow and Alan Dershowitz, kept me reading far into the night, you won't be able to put it down, it's a roller-coaster - no, a Zipper! - of an emotional ride.  Four stars!  Two enthusiastic thumbs up!  Don't miss it!  You will never be the same.  But in a good way.

Ulysses isn't usually thought of as a legal thriller on a par with, say, Grisham, but it does unexpectedly contain a legal anecdote with the ring of observed courtroom reality.  After describing the unfortunate Denis Breen, "passing the door with his books under his oxter and the wife beside him and Corny Kelleher [the undertaker] with his wall eye looking in as they went past, talking to him like a father, trying to sell him a secondhand coffin", the anonymous narrator of the "Cyclops" episode picks up the story:

--How did that Canada swindle case go off? says Joe.

--Remanded, says J. J.

One of the bottlenosed fraternity it was went by the name of James Wought alias Saphiro alias Spark and Spiro, put an ad in the papers saying he'd give a passage to Canada for twenty bob. What? Do you see any green in the white of my eye? Course it was a bloody barney. What? Swindled them all, skivvies and badhachs from the county Meath, ay, and his own kidney too. J. J. was telling us there was an ancient Hebrew Zaretsky or something weeping in the witnessbox with his hat on him, swearing by the holy Moses he was stuck for two quid.

--Who tried the case? says Joe.

--Recorder, says Ned.

--Poor old sir Frederick, says Alf, you can cod him up to the two eyes.

--Heart as big as a lion, says Ned. Tell him a tale of woe about arrears of rent and a sick wife and a squad of kids and, faith, he'll dissolve in tears on the bench.

--Ay, says Alf. Reuben J was bloody lucky he didn't clap him in the dock the other day for suing poor little Gumley that's minding stones, for the corporation there near Butt bridge.

And he starts taking off the old recorder letting on to cry:

--A most scandalous thing! This poor hardworking man! How many children? Ten, did you say?

--Yes, your worship. And my wife has the typhoid.

--And the wife with typhoid fever! Scandalous! Leave the court immediately, sir. No, sir, I'll make no order for payment. How dare you,sir, come up before me and ask me to make an order! A poor hardworking industrious man! I dismiss the case.

The theme of the "Cyclops" episode is prejudice - the refusal to see -  as exemplified by truly awful character of "the Citizen."  The weeping judge's refusal to listen to the (Jewish) landlord fits right in.  But what strikes me as truest to life is the contempt with which the beneficiaries of the judge's prejudices regard their benefactor.  Prejudiced judges are hated by one side, but despised by the other.

(For definitions of some of the slang from the passage, check out this list.)

How should one respond to a libel?  File suit?

Mrs. Marwood. What, and have your name prostituted in a public court; yours and your daughter’s reputation worried at the bar by a pack of bawling lawyers? To be ushered in with an oyez of scandal; and have your case opened by an old fumbling lecher in a quoif like a man-midwife, to bring your daughter’s infamy to light; to be a theme for legal punsters, and quibblers by the statute; and become a jest, against a rule of court, where there is no precedent for a jest in any record; not even in Doomsday Book: to discompose the gravity of the bench, and provoke naughty interrogatories in more naughty law Latin; while the good judge, tickled with the proceeding, simpers under a grey beard, and fidgets off and on his cushion as if he had swallowed cantharides, or sat upon cow-itch.

Lady Wishfort. O, ’tis very hard!

Mrs. Marwood. And then to have my young revellers of the Temple take notes, like prentices at a conventicle; and after talk it over again in Commons, or before drawers in an eating-house.

Lady Wishfort. Worse and worse.

Mrs. Marwood. Nay, this is nothing; if it would end here ’twere well. But it must after this be consigned by the shorthand writers to the public press; and from thence be transferred to the hands, nay, into the throats and lungs of hawkers, with voices more licentious than the loud flounder-man’s: and this you must hear ’till you are stunned; nay, you must hear nothing else for some days.

That's from Congreve's The Way of the World, which after three centuries remains unsurpassed in its comic abuse of lawyers and judges.  (If you're wondering about the cantharides or cow-itch, follow the links.)   But there are layers of irony in Mrs. Marwood's  speech,  because she's one of the villains of the piece.   Layer one, which is apparent to everyone in the theater except Lady Wishfort: her advice is deeply self-interested.  Layer two, which is mainly apparent to lawyers: it's still good advice.