JUDGING CRIMES

 Sridhar Pappu of the Washington Post began a profile of axed U.S. Attorney David Iglesias with a description of the "the dusty, desolate collection of adobe homes and Vietnamese restaurants that seem to form this city".  This, I think, counts as the single weirdest thing anybody has ever said about Albuquerque.

"Dusty" isn't weird - that's  just accurate.  And "adobe" is an understandable mistake, since the dominant building style uses stucco to gesture architecturally in the direction of traditional adobe.  (Hand-made bricks are, for reasons that will be obvious if you think about it for half a second, a very expensive building material.)  The use of the word "desolate" - "devoid of inhabitants and visitors" - to describe a metropolitan area of 791,000 is a bit loose, perhaps, but the writer's meaning (hideous hick town) is clear enough.

No, it's the bit about Vietnamese restaurants that has everyone here scratching their pellagra and thoughtfully rubbing their goiters. 

I've long thought that there are two unmistakable signs that a small city has become a big city: exit ramp traffic backs up all the way onto the freeway; and the opening of good Asian restaurants.  By these standards, Albuquerque rates.  But barely.  There are, in fact, some good Thai and Vietnamese restaurants (though, for whatever reason, not much good Chinese), but you have to hunt for them.  My yellow pages lists 7 Vietnamese restaurants, or roughly 1 per 18.8 square miles.

I've avoided writing about the U.S. Attorneys scandal, even though it has unexpectedly put New Mexico in the national news as nothing except our Governor's election to the Presidency has recently done.  In part that's because I know some of the people  involved (Iglesias tried real hard to become my boss nine years ago) but mainly because it didn't seem to have much to do with the subjects of this blog.

But certain familiar themes are beginning to emerge from the disorganized mass of information provided by reporters whose vocational major allowed them to get advanced degrees without loading them down with historical perspective or an understanding of American political institutions.

First:  The Washington HQ of the DOJ was/is deeply corrupt, and as with many judges, the corrupting influence is power rather than money.  After the revelation of Gonzales's shameful bullying of the hospitalized prior AG, it's hard to avoid the conclusion that he was named the replacement AG precisely because he was prepared to violate the law in a way that John Ashcroft wasn't.  As if to confirm this view of his character, Gonzales has committed perjury, a criminal offense, on multiple occasions since taking office.  When Monica Goodling, counsel to the Attorney General, said she would invoke her privilege against self-incrimination, she meant that if she testified truthfully she would reveal information that could be used to convict her of crimes.  And - a scandal that seems curiously camouflaged behind the firing scandal - the FBI, an agency of the DOJ,  repeatedly violated the law by J. Edgar Hoovering. 

Second: A concrete manifestation of the DOJ's corruption is the effort to use criminal prosecutions to influence elections.  That's what was going on with Iglesias (look at the second section of the Pappu article, which is more solidly sourced than the lede).   That's pretty obviously what went on in Wisconsin, where  sleazebag U.S. Attorney Biskupic saved his position by his election-timed prosecution of poor Georgia Thompson, a prosecution the Seventh Circuit recently termed "preposterous."   Biskupic is the anti-Iglesias, the U.S. Attorney prepared to sell himself for the glamour of the make-up and short skirts - er, I mean, the dignity of the job.

Third: This specific form of corruption might already have touched the judiciary: From a distance, it sure looks as though Democratic Justice Oliver Diaz was prosecuted (twice) for raising money to fund his race for the Mississippi Supreme Court.  It's at least possible that the real corruption in the case against Diaz involved the prosecutor, not the defendant.  Maybe I'm wrong about that; in some respects I hope I am.

Fourth: As with Guantanamo Bay, extraordinary renditions, secret prisons, and approved torture, the DOJ scandals show again that our courts are all-but-helpless to do anything about genuine abuses by the executive branch.  (See post 262.)  Judges seem to find a great deal of satisfaction in the elaborate role-playing courtroom games in which they get to pretend to discipline police officers and prosecutors, but they're sea anemones, carnivores who must wait for their prey to come to them.   When a contemptuous executive maintains a prudent distance, judges can do nothing but adhere to their (dignified) rocks, waving their tentacles helplessly.

What can you do if a state government enacts legislation that clearly - no apologies and no doubt - violates the first amendment?  Why, you wait until a court declares the legislation unconstitutional. 

But what happens if the unconstitutional legislation is enacted by a court?

That's not supposed to happen, given our separation of powers.  But, then, "[i]t will not be denied, that power is of an encroaching nature".  After distinguishing in theory between legislative, executive and judicial power, James Madison wrote in The Federalist that

the next and most difficult task is to provide some practical security for each, against the invasion of the others.

What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated[.]

The uselessness of parchment barriers is demonstrated by the practice, now universal among state supreme courts, of promulgating rules.  Modern lawyers' lives are so bound around by court-promulgated rules that most don't even know that court-made rules are a recent phenomenon, like zits on a preteen's nose.  Here's a useful short description of the sort of legislation courts enact these days, tracing the history of the practice all the way back to ...  1934.  Blackstone, it ain't.  The modern rules regime is as traditional as a tract home. 

Legislation is easily distinguished from adjudication.  One is forward-looking and of universal application.  The other is backward-looking, applying only to the parties actually before the court.  

A rule issued by a state supreme court is forward-looking, of universal application.  (One might quibble and say it's actually administrative rulemaking rather than legislation, but that just complicates the separation of powers analysis without producing a different result.)

A court that enacts legislation is acting in a legislative capacity.  That, I think, is self-evident.  It's when courts enact plainly unconstitutional legislation that things gets interesting.  Take, for example, Oregon's  Uniform Trial Court Rule 3.120.  It says that "parties, witnesses or court employees must not initiate contact with any juror concerning any case which that juror was sworn to try."  (Lawyers are defined as "parties" for purposes of this rule.  UTCR 1.110(1).)

We've learned recently that judges have a first amendment right to hit up lawyers for campaign contributions, even when those lawyers have cases pending in front of the judge.  (The Arkansas Supreme Court recently observed: "While a regulation limiting solicitation or acceptance of campaign contributions may seem to limit a judicial candidate's conduct rather than his political speech, precedent of the United States Supreme Court instructs otherwise."  [See the Simes decision on this list.]  It's that po-faced word "instructs" that gives the irony its bite.)

If the judge's solicitation of money is protected by the first amendment, how is it even possible to think that the Oregon rule is constitutional?  It prevents a lawyer or a party - a party, just a plain ordinary mossbacked Oregonian - from asking an ex-juror to talk about the only thing they have in common.  The rule is what is known - and here we really are talking Blackstone - as a "previous restraint" on speech, or what's generally called today a prior restraint, and those are prohibited except for reasons as compelling as the prohibition on publicizing troop movements in wartime.  

I don't think it's possible even to argue that the Oregon rule is constitutional as written.  It's not on the border.  It's way out there in the middle of Siberia, about as far from any border as it's possible to get. 

So what's a nice state like Oregon doing with rule like that on its books?

The explanation is one Madison would have no trouble understanding.  According to the Oregon judiciary's website, the rule is enacted by a single person - called, with the proper note of tribal subservience, "Chief."  Yes, the Oregon chief justice is personally credited with enacting the whole panoply of rules governing the practice of law in Oregon's trial courts. 

What trial judge is going to say that the chief justice's own personal rule is illegal?  There's no check.    There's no balance.   So a patently unconstitutional law is maintained in place by the people whose job it is to see that the law complies with the Constitution.

(I don't know of any other state that describes its rules as the accomplishments of the chief justice personally.  You could hardly ask for a more straightforward declaration that government by the judiciary has nothing to do with democracy.)

There's currently a proposal in Oregon to amend the ridiculous rule and it seems to have picked up a fair amount of support.  Here in New Mexico it's customary for the judge to tell the jurors they can stick around if they want, but don't have to.  Usually a few accept the invitation, frequently because they have questions of their own.  What they have to say can be extremely useful.

And it's not just useful in the sense of letting a lawyer know that scratching the interior of his ear with the barrel of his pen distracts from his opening statement, or that heavy sarcasm plays better among his lawyer buddies over drinks than it does on cross-examination of a trembling witness answering in a little tiny voice.  Jurors notice everything, but they often process it in a way that wouldn't even occur to lawyers, who tend to run like slot cars in a single track.

One woman I knew was a juror in a case tried by a fairly well-known attorney.  The judge ruled that a certain item of evidence was inadmissible and the lawyer spent the next half-hour trying to backdoor it, attempting various clever stratagems to get around the judge's ruling.  The jurors thought, I know the judge won't let it in, how come he doesn't get it?  They thought: What an idiot!  (His client didn't win.)

Then there was the parental-kidnapping case in which the husband admitted striking the wife, producing a gusher of a bloody nose.  There was the eyewitness testimony of the neighbor and photographs of blood spattered all over the white door.  There was basically no defense to the charge of battery, so defense counsel devoted her closing to other, winnable points, and the prosecutor hardly said more.  But the jury acquitted on that count.

The acquittal seemed to make no sense, especially since the same jury convicted on other, more complex and contested charges.  But then the prosecutor talked to the jurors after the trial was over and heard: "He didn't intend to hurt her, he just intended to kidnap the kid."   The verdict was actually perfectly logical, if you started from the (mistaken) premise that  "intent" means "motive."

These types of insights can't come from any source but the jurors.  Once their service is over, they and the parties and the lawyers are released from the magic spell of courtroom decorum.  They become ordinary American citizens again.  And American citizens are allowed to converse.

Justice Stevens thought that the question decided by a recent case - whether the federal Constitution prohibits police officers from breaking up a fight in progress - was no more significant than a drop of insect excrement.  (Hey, that's his words, not mine.)  (See post 200.)  So it's worthwhile considering one of the more significant cases the Court has recently decided to decide - and those it has declined to waste its time on.

Among those worthy of the Supremes' attention is: Whether a principal can suspend a student for holding up a banner reading "Bong hits 4 Jesus" or whether a stern talking-to would have accomplished the purpose just as well.  It's possible to think the case is significant if you think of it in purely symbolic terms, like this earnest college student.  After all, we don't want our schools to become "enclaves of totalitarianism", in crooked Justice Fortas's entry in the all-time fatuity sweepstakes. 

But even then a little voice might, just might, remind you that students have been playing pranks for a long time, and high school principals have been suspending them for almost as long.  On the other hand, it's actually kinda new that our country has started running secret prisons, and kidnapping people off the streets of our friendly allies (here's more) and officially approving torture (a "no-brainer" in the Vice-President's no doubt unintentionally ambiguous phrase).

Well, okay, it's true that the Supreme Court can't really do much in the face of an executive unwilling to extend due process rights to prisoners.  Just as the courts can't do anything at all to protect citizens from abuses from lawless policemen.  So maybe we shouldn't complain that the Supremes want to hear a purely symbolic civil rights case that will allow them to pretend to be standing up for something noble, rather than facing their complete inability to deal with the most momentous real-life civil rights issues to have confronted the nation since the fall of the Court's system of segregation.

But it's well to remember that the Court's main job is to not decide cases.  (See post 8.)  That's what the Court does: it doesn't decide thousands of cases every year.  The 80 or so cases it does decide are mere by-products, rather like, oh, I dunno, the specks flies leave after they've flown away.  Take a look at SCOTUSBlog's (gotta love that name) invaluable certiorari petition watch.  To take just the term-beginning conference, almost every case in which cert was denied is more significant, in terms of its intended consequences, than even the most successful high school prank - or the most Dean Wormer-like administrative over-reaction.

Some of the issues the Court has ducked in just the past week include the big tobacco litigation award, vacated amid hints of judicial hanky-panky in the hanky-panky-prone Land of Lincoln, a drug-sniff case that pointed out the inconsistencies in the Court's previous rulings, a 4-3 Missouri decision to overturn the result of a fair trial of witness-killers based on the inferred evil in prosecutor's nasty little minds, a Maine decision prohibiting the use of school vouchers to attend religious schools, a decision ripping a huge loophole through the reporters' privilege to maintain confidentiality, another one of those utterly ludicrous decisions specifying how many conflicting religious symbols must be included before one of them is OK, and on and on.

The best way to get a sense of what the judicial system is doing in this country is to ignore the Supreme Court's grants of certiorari and concentrate instead on the denials.  All you have to do is Google some phrase such as "Supreme Court let stand" and you can get a useful roundup of the most significant things being done by one-third of your government.

Easter and Passover provide us with an opportunity to pause in our busy lives and reflect that federal judges are gods.  Lawyers who regularly appear in federal court don't dispute that fundamental theological point.   True, federal judges aren't the gods most of us would choose - they're not all-wise, for example.  And forgiveness generally isn't a strength.  But then, if you were able to choose them, they wouldn't be gods, would they?  Within the confines of each of the nation's federal courthouse,  each federal judge is all-powerful.

Take Detroit's Chief Judge Bernard A. Friedman.  He was irritated by a letter he received from a self-employed person named William Schramm, who was trying to get out of serving on a grand jury.  The judge summoned Mr. Schramm to his chambers and told him "your letter is all BS - I don't believe it," according to what Mr. Schramm told the Detroit News.

Then, without holding Mr. Schramm in contempt of court (there were no grounds for that), and without even going through the motions of a trial, Friedman ordered him to be incarcerated.  Specifically, he ordered Mr. Schramm to come to the federal courthouse every day the grand jury was in session and sit on a bench in the hallway.  In a particularly sadistic touch, Friedman prohibited Mr. Schramm from reading anything.  He also decreed that he wouldn't receive the $40 per diem ordinarily paid to grand jurors.

So Mr. Schramm has been sitting in the hallway, staring at the opposite wall, for seven hours a day, three days a week, since the end of January.

One of the truly bizarre things is that Judge Friedman talked to a reporter about it.  He lacked the insight necessary to understand that he was shaming himself.  

The other bizarre thing is that Fox News describes the episode as "Like Grown-Up Time Out, but Funnier".  Funny?  There are at least three ways to look at Judge Friedman's behavior, but Fox - possibly misled by an institutional worship of power - missed them all. 

One: it's the tort of false imprisonment.  If Judge Friedman took a look at an opinion that issued from the chambers down the hall a couple of months ago, he'd learn that he's covered his bingo card: he satisfied all the elements of false imprisonment under Michigan law.  (Sterling-Ward ex rel. Sterling v. Tujaka, 414 F.Supp.2d 727, 742  (E.D.Mich.,2006).)  

Two: it's a constitutional deprivation.  In a just world, Mr. Schramm would be able to collect in a federal civil rights lawsuit against Judge Friedman.  Certainly it's easy to imagine the self-righteous rhetoric that would accompany any federal judge's decision awarding damages against an FBI agent who detained Mr. Schramm for an hour - let alone for 21 hours a week, for weeks on end - with a similar lack of legal justification.  "An agent acting - albeit unconstitutionally - in the name of the United States possesses a far greater capacity for harm than an individual [tortfeasor] exercising no authority other than his own."

Third: it's a sign of a serious personality disorder. 

No, I take it back, there's a fourth way of looking at it: All of the above. 

Incidentally, Judge Friedman claimed he possesses "inherent authority" to order arbitrary imprisonment.  "Inherent authority" is a code phrase for the exercise of extra-constitutional power.  (See post 32.)  So his defense of his action is that, because he's a federal judge, he's exempt from the 5th amendment guarantee that no person shall be deprived of liberty without due process of law.  

In fairness, the judge does have a historical precedent to rely on.  "Inherent power" was also King Charles I's justification for imprisoning without trial those who declined to pay the forced loan.  The legal argument against Judge Friedman's position is set out here.

Meanwhile, out in Utah, a magistrate judge got into the habit of summarily holding in criminal contempt of court any lawyer who was even a minute late to a hearing.   The penalty was an automatic $50 fine, to be paid directly to the court.  There was no advance notice, no subsequent opportunity to be heard.   A Special Assistant United States Attorney (i.e., an attorney for some federal agency other than the sclerotically bureaucratic Justice Department) got the green light to appeal.

The Tenth Circuit's opinion on appeal was crushing:

While we are aware of the magistrate judge's "standing policy," the summary contempt order in this case is a paradigmatic instance of an abuse of discretion. First, by no stretch did the contempt occur within the presence of the court. Mr. Petersen simply was absent for five minutes. Just as the record contains not a scintilla of evidence suggesting that the United States Attorney's office (let alone Mr. Petersen, a special assistant) was aware of the magistrate judge's "standing policy," the facts in the record do not suggest that his mere absence was part of a series of larger events suggesting a conscious disregard of the court's procedures.

(For those spared the experience of law school, "paradigmatic instance of an abuse of discretion" and "not a scintilla of evidence" is pretty rough stuff when used by one judge to describe another.)

After listing a couple more legal deficiencies in the magistrate's order, the Tenth Circuit drove a stake through its malignant little heart (unfortunately, the pounding jarred loose its syntax):

Furthermore, as a matter of common sense, let alone the professional implications, we find it more than a little peculiar to punish without the faintest idea of what the precipitating cause of the action may be ­ frivolous or quite serious indeed.

The Utah magistrate's fatal flaw was to think himself a god when he wasn't even an Article III judge.  It was all too reminiscent of Ibrahim signing his letters "Sultan."  Just as Suleiman the Magnificent did over 450 years ago, the Tenth felt obliged to take the pretender down a peg.