JUDGING CRIMES

A prosecutor friend told me this story.  A young woman was murdered, and a man was convicted of killing her.  Many years later, the federal courts reversed his murder conviction (that is, granted a writ of habeas corpus).  The prosecution elected to re-prosecute, always a difficult task after the passage of so many years.

The defense lawyer persuaded the judge to suppress some important evidence - statements made in a private conversation by a co-perpetrator who exercised his fifth amendment right not to testify at the retrial.   I'll call the co-perpetrator Abel Baker. The judge granted the defense attorney's request to prohibit the prosecution from telling the jury anything Baker said.

At the end of the long trial, the defense attorney made his closing argument to the jury, and in the course of it said something like: "Ladies and gentlemen, I want you to think for a moment about some evidence that you didn't hear.  Did you hear the testimony of Abel Baker?  Did anyone - any single one of these government witnesses - come into court and tell you anything that Abel Baker said?  Doesn't it make you wonder what they are trying to hide?"

I suppose my friend objected, but he would have provoked a mistrial if he had made a "speaking objection" - saying in front of the jury: "Counsel knows full well that he is responsible for keeping that testimony away from the jury!"  Instead, he would have had to approach the bench for a whispered conference that could only have played into the defense attorney's hands:  "Did you see him repressing me? You saw him, didn't you?"

After the jury retired, my friend made some bitter remark.  Defense counsel smiled and said, "Just representing my client!"

I was reminded of that story by a recent attack ad launched by my sitting member of Congress, Heather Wilson, against her opponent, Patricia Madrid, who happens to be my boss.  Here's an Albuquerque Journal story about the ad:

Republican Rep. Heather Wilson is airing a new TV attack ad claiming that Democratic Attorney General Patricia Madrid let a man caught attempting to rape a teen girl "walk" on the charges.
 

Although the defendant didn't serve prison time after a making a plea deal, the "victim" in the case was actually an adult detective posing as a teen on the Internet. No physical assault ever took place.

Court records show that the plea deal the AG's office reached with 41-year-old Matthew Ward cut his potential prison time from three years to 18 months, but left it up to a judge whether to lock Ward up or give him probation.

Records show that District Judge Albert S. "Pat" Murdoch last month gave Ward 18 months of probation and required him to register as a sex offender.

You can see that the Wilson ad is, just barely, not-false.   Just as the defense lawyer's closing argument was not-false.

One of the worst developments of the past half-century is lawyerization: the way values and modes of thinking that are appropriate for law courts have come to define acceptable behavior outside the courtroom.  This can be seen in the Interior Department's ethics office saying that any conduct that's not outright criminal is ethical enough for government work.  (See post 173.) 

It can be seen again when a cricket blog asks, "Whatever happened to the presumption of innocence?", as if a fan who formed an opinion about a cheating scandal were transformed into a judge with the black handkerchief on his wig, about to tell some poor sod, "May the Lord have mercy on your soul." 

And it's seen again in the Wilson attack ad.  The decision to invest so much money in the running of such a deeply dishonest ad was made without regard to honor, honesty, or even the avoidance of shame.  The only question was whether its falsity could be so easily demonstrated that it was liable to backfire politically.   If not, there was nothing wrong with it.  Just like the defense lawyer's zealous representation of his client.

Just days after a post talking about the post-modern society in which laws replace morality (see post 173) we get this AP sports page story:

Tennessee defensive tackle Albert Haynesworth was ejected in the third quarter Sunday after he stomped on the head of Dallas center Andre Gurode. ...

Julius Jones had just scored on a 5-yard run ... Gurode's helmet came off, and Haynesworth, standing over him, used his right foot to kick Gurode in the face. ...

A flag was thrown, and Haynesworth protested as he followed an official toward the sideline.

Haynesworth pulled off his helmet and slammed it to the ground, prompting another flag. ...

[Tennessee coach Jeff] Fisher called Haynesworth's actions unacceptable and promised he would be punished by the Titans even if the NFL disciplines him.

"It's ridiculous to get to that point. Two back-to-back penalties like that, there's no place for it," Fisher said.

A couple weeks ago I attended a faculty workshop led by Mark Taylor, an entertaining speaker who had a lot to say about the experiences and expectations of people born in the 1980s, a cohort he calls (with the requisite cutesiness) Generation NeXt.  He pointed out, for example, that today's high schoolers are the first generation of Americans who can go shopping while sitting in class, thanks to cell phone web connections.

One of the features of post-modern society he mentioned is that laws assume the place of morality.  Or, as my notes read: "No morality, only laws."  Sound too pat?  Here's the Interior Department's Inspector General earlier this month:  "Short of a crime, anything goes at the highest level of the Department of Interior." 

A New York Times editorial about the scandal spelled it out: "The office of government ethics eventually ruled that [the Interior Department's Steven] Griles had not violated any laws."  Even the Times' professionally indignant editorial page writers didn't notice anything odd about something called an ethics office giving a pass to conduct so long as it was not actually illegal.

Then today we learn that Republican leaders of the House have known for the better part of a year that Republican Congressman Mark Foley engaged in what might be called IM-sex with an adolescent page but took no action.  The GOP honchos excused themselves this way: 

Rep. Thomas Reynolds, head of the House Republican election effort, said Saturday he told Speaker
Dennis Hastert months ago about concerns that a fellow GOP lawmaker had sent inappropriate messages to a teenage boy. Hastert's office said aides referred the matter to the proper authorities last fall but they were only told the messages were "over-friendly."

Now that Foley has resigned, Hastert declared with righteous indignation that his "resignation must now be followed by the full weight of the criminal justice system."  So Hastert excuses his reluctance to protect teenagers working in the Capitol by saying he was informed it's not a crime for a middle-aged authority figure to ask them about masturbation techniques.  But then he shows his enthusiasm for protecting the pages by encouraging someone to prosecute the non-crime.

The criminal law is the absolute lowest standard of socially-acceptable conduct.  Drop below this standard and you can't be a full member of our society any more.  You can't vote, or carry firearms, or run for many offices.  You might have to live for years in a hideous little room surrounded by people even more dangerous than you.  Or, if you're lucky, maybe you'll get to stay home with an ankle bracelet, allowed out of the house only on Sunday mornings to go to church.  Check in with your probation officer weekly, or even daily.  Oh, and pee into the cup, if you please.

To equate ethics with the criminal law is the same as saying we have no ethics at all.  It means anything goes so long as it's not (1) specifically prohibited and (2) so serious we won't even let you live freely among us any more.