JUDGING CRIMES

Courtesy of the always-worthwhile New York Supreme Court Criminal Term Library - I keep thinking there must be a clever pun in there somewhere; I mean, it's the name of a blog, isn't it? - here's an NPR story about privatizing the police:

In the past, remote communities like this one [i.e., Wintergreen Resort, Virginia, along the Appalachian Trail] were ripe for thieves. But since residents started paying for their own private officers, crime has dropped 70 percent.

Many of the residents also did something else: They installed burglar alarms. Nationwide, one in four homes now has one. The alarms and an explosion of other devices, like steel bars, stronger doors and security glass, make it more of a hassle to break into homes, criminologists say.

Even locks, the most basic anti-burglary device, have undergone major changes since the 1970s.

"Good locks make all the difference," locksmith Rahm Bunnag says.

Locks are far more secure than they were 30 years ago, he says. They're far more intricate, he says, holding up two keys.

One, made by Ossa, has a second set of cuts on the side. Another, made by Medico, "looks like a normal key, but when you look down at the cuts, notice that it's cut at an angle. There's a 98 percent chance that says you can't pick it," Bunnag says.

The 1970s also saw the widespread introduction of the deadbolt. But the biggest change when it comes to locks, criminologists say, is that people started using them.

I have never understood why so many liberals, who are ideologically opposed to deregulation and privatization in other areas of life, are so comfortable with the idea that law enforcement should be an individual activity.  Security is a tax on the honest, as Bruce Schneier says (see post 52), and the folks in Wintergreen Resort are paying it, with their locks and private police force. 

The NPR story also mentions the "1 million private police and security guards at work in residential communities" - a mind-boggling number.  That's a million people who have jobs because the government can't be counted on to perform its most basic function, which is to protect its citizens from harm.

Meanwhile, Justice Stevens recently wrote about how a state can "grant its citizens broader protection than the Federal Constitution requires".  By "protection" he meant concealing reliable, relevant evidence from its juries, on the theory that when a state prevents itself from convicting a lawbreaker of breaking the law, the state is protecting its citizens from unconstitutional actions by police committed many months earlier - your basic space-time anomaly.

The fact that a state's citizens might feel the need to hire private police forces and make their homes into little castles in fact as well as in rhetoric is neither here nor there.  The little dears might think they need protection from criminals, but the Supreme Court knows better: they need protection from the state's own courts, which might otherwise convict them.

Then again, the basic concept of "more protection under the state Constitution" is hardly new: Ludwig Mies van der Rohe expressed it in a three-word slogan many decades ago.

I was reminded of Daniel J. Martinez (see post 327) by the case of Judge Restaino (see post 326).  Soon after Martinez was acquitted of two extraordinarily brutal crimes that he almost certainly committed, setting off an entirely justified uproar, a friend of the Martinez family wrote a letter to the editor of the Santa Fe Reporter, the alternative weekly.

Unfortunately the Reporter's online archives don't go back beyond 2000 and so I can't link to or even quote from the letter.  But I remember the gist: the writer had known Daniel for years, and he was a great guy except for when he lost his temper, and that didn't happen very often.

I was reminded of that by Raoul Felder's dissent from the order determining that Judge Restaino should be removed from office.  Felder wrote:

The record establishes that respondent, after a long period of personal stress, while presiding in a domestic violence part, simply “snapped” when he heard a cell phone go off in his courtroom and engaged in what can only be described as two hours of inexplicable madness.  The record also establishes that his conduct over those two hours was a total aberration from his character and demeanor as a judge for eleven years (and previously as public defender for ten years) and that he has received the support and praise of his judicial colleagues, court personnel and community leaders.

So just as Daniel Martinez was a great guy when he wasn't mad enough to rape or shoot anybody, Judge Restaino was a fine judge when he wasn't outrageously abusing his power.  You know, I don't really have any reason to doubt either evaluation.  (Though I do note that, at least in Felder's listing, Restaino's supporters didn't include lawyers who had practiced before him.)

Felder's dissent is actually quite thoughtful and he makes the powerful point that other New York judges have managed to keep their jobs despite behavior that would shame Bob Ewell.   But he also recycles a couple tired themes. 

First: "I cannot find it within myself to destroy this individual’s professional life over this regrettable episode."  Leaving aside the one-free-bite attitude, and the hint of moral preening, how does removing a judge from the bench destroy his professional life?  Only if "professional life" is used as a synonym for "career as a judge."  By that standard, every time Felder's firm informs an associate it's time to move on, the firm is destroying that person's professional life, because his or her career at the firm is over.  Has Felder ever found it within himself to do that? 

Being a judge is a job.  All that will happen to Restaino is that he returns to his prior job, practicing law.  The very fact that he voluntarily exposed himself to all the publicity his case has garnered shows how important his current job is to him.  From his point of view, it probably feels like the destruction of his professional life.  But when the exercise of power becomes that important to a person - more important, self-evidently, than avoiding public humiliation - it's time to relieve him of it.

 Second:

I am constrained to comment on Commission counsel’s attempt to belittle respondent’s explanation that he “snapped” because of personal stresses in his life. Although Commission counsel argues that such an explanation is not believable because no single triggering event in his personal life had occurred that morning and that prolonged stress cannot explain a temporary loss of reason, I believe that simple human experience has shown that that is simply untrue.

I don't know if Felder has ever been a judge, but he's mastered judge-speak: he's "constrained" to comment in the sense that that word means "want."   And I rather doubt that Commission counsel would have described his argument as an "attempt to belittle" Restaino's explanation. 

It's classic judge-sniping to say a person tried but failed to accomplish something that in itself is disreputable.  My favorite example is Justice Brennan on a majority opinion written by Justice Rehnquist in a criminal case: "The Court's attempted obfuscation in Part II, ante, at 135-139, of its total disregard of the statutory mandate is a transparent failure." 

You can practically hear Rehnquist muttering, "Foiled again!  I thought that this time, at long last, my disregard of the statutory mandate would be sufficiently obfuscated to slip past him!"  In the same way, no doubt Commission counsel said in a voice thick with frustration: "Curses!  I thought I could belittle the judge's explanation, but it remains the same size as when I began!"

In real life, probably Commission counsel was actually arguing something more along the lines of what the Commission eventually declared in its majority opinion: "every judge is obliged to set aside his or her personal problems upon entering the courtroom".   

You only have to scratch the surface of Felder's remark to see something else.  Restaino's defense, in essence, was that he shouldn't have been on the bench at all that day, because he was mentally unfit to perform the duties of his office.  That was very like Florida Judge Sloop's defense of his similar behavior (he ordered the arbitrary imprisonment of a bunch of people called for jury duty) on the ground that his mental handicaps rendered him incapable of professional competence.  (See post 87.) 

I sympathize with anyone who's feeling overwhelmed and stressed-out on the job.  But when those feelings become too huge to contain within the vessels of our skins, it's time to look for another job.  Mental or emotional incapacity is a reason for removing a judge from a position he can't handle, not a reason for keeping him there.

"Prosecutorial misconduct" is one of those great phrases, like "right to life" and "right to choose," that settles the argument before it begins.  It's an example of "unspeak," or more formally of framing.   The phrase "prosecutorial misconduct" is all over the internet, as it is all over the legal world.  A Westlaw search of national criminal law cases found 9,574 usages of the phrase since 2004.  (Westlaw won't return more than 10,000 hits for a search.)

Prosecutors shouldn't feel too paranoid, though.  "Ineffective assistance" is the roughly corresponding term applied to defense lawyers.  It means that the defendant was only convicted because his (or, occasionally, her) defense lawyer "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"   That's an essentially vegetative standard: it means the lawyer was so hopelessly incompetent that he or she really was Brendan Sullivan's potted plant.  

The phrase "ineffective assistance" has appeared in 8,315 opinions in the Westlaw database just since the beginning of this year.  No joke. 

Obviously, then, we have an epidemic of incompetent defense lawyers out there to go with our epidemic of evil prosecutors.  Either that or we have a lot of people in prison who want to get out.

The LA Times recently ran an article on prosecutorial misconduct.  My first thought was that the humor was in poor taste, but on second reading I perceived internal clues raising the disturbing possibility that it may not have been intended as a parody of legal journalism.  The article reads:

[Santa Clara University law professor Cookie] Ridolfi, the director of the Northern California Innocence Project, told the commission that judges had found prosecutorial misconduct in 443 of more than 2,100 California cases over the last 10 years. Ridolfi said that figure was just "the tip of the iceberg," because about 97% of criminal cases are resolved by plea bargains. ...

But Michael Schwartz, a deputy district attorney in Ventura County, countered that a close look at the available data shows that prosecutorial misconduct occurs in less than 1% of all cases.

Sounds like a pretty stark disparity, doesn't it?  Wouldn't you expect the reporter to, say, spend a moment or two attempting to explain where the truth lies, or to explain why the speakers were both providing accurate and even non-contradictory numbers? 

And wouldn't it be helpful to the reader to know what the subject of their debate - "prosecutorial misconduct" - means?  The reporter, Henry Weinstein, doesn't think so - or, more likely, doesn't himself know.

Patterico provides a hilariously-thorough takedown of Weinstein here.  Despite Professor Ridolfi's anti-feminist credentials as frontwoman for the Rape-Decriminalization Project (hey, two can play at the unspeak game) (see post 246 and post 290), there's no reason to think that the figures dug up by her work-study helper Jessica Marz are skewed.  Ms. Marz simply concluded that out of 2,130 cases in which prosecutorial misconduct was alleged, appellate judges agreed with the defense 443 times.  But during the same time period, of course, California's many appellate courts heard vastly more than 2,130 criminal appeals.  So the professor's figures didn't actually contradict those of the deputy district attorney. 

How hard would it have been for the LA Times to explain that to its readers?  Ah, but that's not a journalist's job, you see.  We're objective, we just report the facts.  If our presentation of the facts deprives them of all meaning, well, that's because our task is so sacred, you see.  (See post 295.)  As everyone knows, mystery is always at the heart of the sacred.

Anyway, as to the even more basic question (what is prosecutorial misconduct?), we can turn for guidance to the reliably-entertaining Kansas Supreme Court.  (See post 284.)   In the course of affirming Martin Miller's conviction for murdering his wife - a very  big story in Lawrence, home of the two Bills, Burroughs and James - the court found the prosecutor had committed misconduct.  You see, in his closing argument, the prosecutor referred to the murderer as ... a killer! 

No, really.  Horrible, isn't it?  It gets even worse.  The prosecutor, in the summation of the prosecution's case,  used the word "killer" to describe a murderer no fewer than six times.  It almost makes you weep, doesn't it? 

So now you know what "prosecutorial misconduct" means.