JUDGING CRIMES

A friend of mine once got himself elected district attorney in a border-South state.  On his first Monday in office, he asked for a rundown on the weekend's mayhem and was told: "Not much, just another stabbing down in N-----town." 

It was an eye-opening moment.  My friend discovered upon inquiry that for as long as anyone could remember the office had never treated Black-on-Black violence seriously: premeditated murders were pled down to manslaughter, manslaughter to battery, battery to disorderly conduct, domestic violence to sleep-it-off-in-a-cell. 

This was the early 1980s, which many of us (rather strangely) considered post-Dark Ages.  My friend changed the policy, as well as the workaday vocabulary of the office, and even managed to serve two full terms before being voted out.  But the attitudes he discovered in the woodwork of the DA's office were by no means unique, and they haven't remotely died out.  They've just camouflaged themselves.

(Really, check out that last link to Desiree Palmen's site.)

There's more than a trace of that attitude in the unthinking vaguely-liberal view that judges are "assisting minorities with positive measures" when they make it easier  for the violent to hurt others without risk to themselves.  (See post  325.)   Weren't the racist prosecutors in my friend's office equally assisting Black men who killed other Black men?  The underlying idea isn't very far from "life is cheap in the Orient."

Fifteen years ago, there was a much-publicized rape and murder in Santa Fe.  The unusual thing is that each offense involved a different victim.  This is how the Tenth Circuit described the basic events:

At approximately 3:00 a.m. on August 8, 1992, [pharmacist Chester] Radecki awoke to the sound of a woman screaming outside his bedroom window in Santa Fe, New Mexico. He looked out the window and heard more screaming and the sound of someone walking around outside. Shortly thereafter, Deputy Barela arrived nearby in a police car with lights flashing. Mr. Radecki left his home, got in his car, and drove to the scene.

When Deputy Barela arrived on the scene, a motorcycle lay on the side of the road. Eric Trujillo drove up in a tow truck. Deputy Barela detected a man in the bushes, and with his flashlight recognized him as Daniel Martinez. Martinez staggered out of the bushes. Martinez, who appeared to be intoxicated, told Deputy Barela and Trujillo that his girlfriend had run him off the road, causing him to wreck. Deputy Barela began to look around the area for other vehicles or injured persons.

Mr. Radecki arrived in a robe carrying a flashlight. He told Deputy Barela that he lived nearby, and that he had heard screams, as if a woman were being raped. Deputy Barela and Radecki explored the scene with their flashlights, with Martinez close behind. When Deputy Barela shined his flashlight on a car in the bushes, Martinez tried to grab Deputy Barela's nine millimeter semiautomatic pistol. The two men wrestled for control of the gun. Deputy Barela yelled to Radecki, "Hit him with your flashlight. Hit him. Get him off me."

It is unclear whether Radecki hit Martinez with his flashlight. In response to Deputy Barela's command, however, Radecki approached the struggling pair. At that point, Martinez wrested the gun away from Deputy Barela, who then fled to the bushes. Martinez turned and shot Radecki in the chest, killing him.

I'm not absolutely sure if fleeing to the bushes is a technique taught in the Academy.  Be that as it may, Martinez was acquitted of both the murder and the preceding rape - although the state paid half a million for supplying the gun that killed Mr. Radecki.

(Martinez learned the only lesson a violent thug could possibly learn from his acquittal: getting arrested isn't something to be feared.  Predictably, he almost immediately got himself arrested for an entirely unrelated offense, and this time the dice came up snake eyes.)

That's an extreme (and notorious) example, but in general Santa Fe juries are very reluctant to convict.  One reason, I'm convinced, is that the place is crawling with well-to-do, vaguely liberal newcomers.  Santa Fe County's population has tripled since 1960, which is pretty remarkable when you consider the cost of moving in - the average house costs  $81,300 more than the average for the state as a whole (and the latter figure, of course, is inflated by Santa Fe County's contribution).  The people who move to Santa Fe can afford their Land Rovers.

"Tolerance" can mean respecting the beliefs of others, but it also means "the allowable deviation from a standard".  When Santa Fe's newcomers serve on the juries that allow people like Daniel J. Martinez to indulge in their deviations from the standards of behavior established by the criminal law, it's in part because they perceive the violence as part of the cool indigenous culture with its unique traditions.  "You have to respect their customs, man.  You can't judge them by the same standards as us."

Which, of course, is much easier to say if you're living on three acres on the east side.

On Monday, as had long been expected, the Supreme Court invalidated California's sentencing statutes.  The case - once again - involved someone who has little in common with the average criminal defendant.  Previous decisions in this line have involved a pharmacist and a millionaire.  (See post 102.)  This one involved a former policeman. 

(Here's SCOTUSBlog's instant case brief - either those Akin Gumpsters fool around with the date and time stamp on their posts, or else they're amazingly quick at being thorough.)

I've long attributed the Court's strong preference for atypical defendants to simple class and racial bias, but perhaps there's a political angle, too, as the justices take care to pick defendants who won't be portrayed in the media as exceptionally dangerous.  They leave it up to the lower courts to implement their decisions by releasing the exceptionally dangerous folks.  (See post 224.)  That way the marble-clad announcement of principle can be separated from the street.

The problem with the California sentencing system, Justice Ginsburg declared, was that sentences imposed by California judges weren't arbitrary.  If California had given judges complete discretion to impose any sentence between 6 and 16 years, and didn't require the judge to have any reason at all to pick the highest number, that would have been just fine with the sixth amendment.

Conversely, if California had given judges no discretion whatsoever, requiring them to impose 12 years in every case without exception, that would have been hunky dory, too.

California's problem is that it gave judges fettered discretion.  Its Assembly tried to promote a certain consistency while leaving judges room to make sure the punishment fit the crime by allowing the judge to impose sentences of 6, 12 or 16 years.  Judges were supposed to impose the middle term in run of the mill cases, but could increase it for particularly dangerous and cruel perpetrators, or reduce it for those whose crimes weren't so bad, really, or who were unlikely to repeat.

That compromise, Justice Ginsburg said - and we can be sure she was serious, because she always is - "denied petitioner his right to a jury trial."

As for those jurors who actually decided the ex-cop's case?  I'm sure Ginsburg didn't mean to dismiss their existence.  It's just that she would have felt silly to to come out and say what she really meant, that the California sentencing scheme "denied petitioner his right to an arbitrary sentence."

It's both laughable and sad that a Court that nowadays hears so few cases (69 cases divided by nine justices and 36 clerks equals 1.5 cases per lawyer-year) should waste its time on such trivia.   California's Assembly could reenact its sentencing scheme tomorrow and win the beaming approval of the justices (except Justice Ginsburg, who doesn't beam) just by choosing its words from the approved vocabulary list:

Verboten:  "The judge shall impose a sentence of 12 years, except that if aggravating circumstances exist the judge may increase the sentence to 16 years, and if mitigating circumstances exist the judge may decrease the sentence to 6 years."

A-OK:  "The judge shall impose a sentence between 6 and 16 years at the judge's sole discretion, but if the judge imposes any sentence other than 12 years the judge shall issue a brief written explanation for the departure so as to permit appellate review for abuse of discretion."

The Court's opinion suggests that it's actually possible to convince oneself that there is a difference of constitutional magnitude between those two hypothetical sentencing statutes.  It's a little like those Magic Eye books that were so popular a few years ago - if you stare long enough, and let your eyes go funny, you can see a grand constitutional principle in the space between them.   (I understand large doses of Placidyl help.)  

But to make the visualization exercise work, you have to think in symbolic terms - that is, you have to commit the customary legal crudity of thinking up categories and then demanding that reality adjust to them.  (See post 137.)  (Nothing personal, Professor Berman.) 

The case is entirely characteristic of recent Supreme Court jurisprudence in several ways.  First, it's a squire, to use Burke's term.   The Court put its own authority on the line with a grand pronouncement in 1970, and has had to spend an inordinate amount of time ever since trying to ensure that its authority is not flouted - dispatching an endless series of little squires to carry the Grand Pronouncement's armor.    (See post 217.)  From flowery prose adorning a noble principle to nitpicking the Legislative Counsel's choice of words - it's a pretty pathetic descent, really. 

Second, it's anti-democratic.  It says - no more and no less than this - that the people of California can't have the type of criminal sentencing system they want.  They can only have the type of system six justices want for them.  And there's nothing Californians can do about it.  "It's water over the deck - get over it!"

Third, it's based on the common-law Constitution - the idea that "the Constitution" is the collected works of the Supreme Court.   It would be silly to pretend that the actual text ratified by the American people prohibits California from having a compromise sentencing system, halfway between rigidity and randomness.  It would be equally silly to pretend that the Constitution has prohibited sentencing schemes like California's since its enactment.  Not the Constitution itself but Apprendi (the racist pharmacist) and Blakely (the wife- and child-abusing millionaire) prohibit them, starting as of, oh, last Monday.

The Framers, you see, understood that the secret to a good afterlife is to stay active.

Yesterday I finally got around to reading Emily Bazelon's recent Slate article about the Duke rape case, which reads as if she slapped her byline on a press release from the millionaire boys' club's PR firm.  And then I read that the North Carolina Bar Association has filed an ethics complaint against the prosecutor for talking to reporters.

Isn't it nice when the news so obligingly illustrates the points made in this blog?  One of the most significant themes running through the American criminal justice system is this one:

The people whose rights are being decided should not be given notice or an opportunity to be heard.  (See post 207.)

The disciplinary case against the DA is concerned with the right of the people to know what their government, and their elected officials, are doing.  But the people themselves have no say in the matter.  They can't decide for themselves how much information they want to receive about a pending case.  That's for the bar's in-group to decide.  (Bar associations are run strictly along the lines of student councils - the chief criterion is sitting at the same cafeteria table with all the other popular kids.)  Which illustrates another important point:

In our democracy, the people have no authority to control the administration of justice.  (See post 207.)

There's a reason the ethical rules for lawyers condemn a prosecutor's action of letting the people know what their government is doing: it supposedly interferes with the accused's right to a fair trial.  Which nicely captures another important theme:

Jurors are impressionable, overly-emotional morons who should not be permitted to decide cases, if it can be prevented.  (See post 207.)

The assumption is that prospective jurors simply cannot be trusted to tell the truth about their biases during jury selection, or to abide by their oaths to decide the case on the evidence after being sworn in.  If they heard the DA say something or other nine months ago, they will have forever lost the ability to function as rational human beings during the trial, assuming it ever happens.

Whether jurors actually react in that way - simultaneously infantile and endowed with superhuman powers of memory - is beside the point, because

Facts can be manufactured to suit any need. (See post 207.)

It's enough simply to say that jurors react that way.

(Note the pleasing whipsaw effect: Bazelon says the DA is incompetent because he didn't exercise his own independent judgment about whether the accuser is credible, while the bar association says he's unethical because he told reporters he had done exactly that: "I am convinced there was a rape, yes, sir."  To be ethical, he should have made that determination but given reporters the impression he hadn't - and the fact that he did give Bazelon exactly that impression is the icing on the cake, the proof in the pudding, the cliche in the dessert.  You've got to admire the symmetry of the reasoning.)

An even more basic theme running through the American criminal law is one I mentioned eight months ago:

As the Duke lacrosse players are preparing to demonstrate yet again, it's very difficult to convict a rich person in the United States.  (See post 102.)

Another news story, also published yesterday, neatly captures another basic point about the American criminal justice system:

The trial is everything.  There is no big picture.  There is no reality - or no reality a judge needs to respect - outside the courtroom.  (See post 207.)

Baseball has, in the past few years, taken great strides to eliminate steroid use.  The players and owners, traditionally sworn enemies, have worked together on this one issue.  Confidentiality is one of the things they agreed upon.  Now the Ninth Circuit - gee, haven't I heard that name before? - has ruled that the results must be turned over to people who are 100% guaranteed to leak them to the press. 

The natural result, of course, will be to give the players' union a powerful incentive to refuse further cooperation.  As Bob Lanza, former general counsel for the NBA players' union, told Jorge Ortiz of USA Today: "I think this could be absolutely devastating to the players associations' ability to agree to this type of testing."

But does that matter?  No.  The only reality is what occurs inside the courtroom, and inside the courtroom the big thing is not the integrity of a sport beloved by millions, but rather ... rather ...  Actually, it's not at all clear what the point of the Ninth Circuit's ruling is, except to prove that federal courts can do whatever they want, and you're going to take it and like it.

Last February we had the entertainingly sordid story of the Sharon Freebery, the local Delaware bigwig who took $2.3 million from a Du Pont heiress who, by coincidence, happened to have a major real estate project pending approval from Freebery's local government.   Freebery, in turn, passed along $600,000 to Delaware's federal judge Joseph J. Farnan, Jr., who introduced her to a loan officer who approved her for mortgages totaling over $1.1 million, despite the crimp the monthly payments might place on a government salary.  (See post 64.)

(Not to worry.  Freebery recently cleared a cool $1.3 million by reselling the properties.  See, she was good for it all along.)

Freebery was charged in two separate indictments.  Because of Farnan's involvement, they were assigned out of district - all the way to Philadelphia.  Federal Judge John Fullam dismissed one of the charges against Freebery and her co-defendant before trial.  The indictment, Fullam ruled, failed to allege a crime. The prosecution appealed, the appeal was argued on May 15, and the Third Circuit reversed 24 days later.   

Now, maybe those East Coast Circuits have a different conception of time than the cud-chewing judges of the laidback west, but where I come from, 24 days from argument to 26-page opinion is a remarkably short time.   Wilmington's News-Journal thought so, too:

Thursday's 26-page decision ... was unusually speedy and blunt, appearing to rebuke the lower court.  The 3rd Circuit can take eight months or more, after oral arguments, to make a ruling but in this case the decision came back in a little over three weeks.

It's almost as if Judge Fullam's decision wasn't just wrong but ridiculous.  Here's some of what the Third Circuit said about it:

[T]hat ruling is clearly contrary to the law of this circuit. ...  The indictment clearly alleges the required violation of a fiduciary duty and deceit ...  The indictment clearly informs the defendants of the conduct upon which the government bases its criminal charges, and it clearly sets forth the duties that the alleged conduct violated as well as the statutory origin of those duties.  We don't know what more the government should have done, given the nature of the alleged fraud.  The allegations are more than adequate ...  [T]he indictment clearly alleges that Freebery had a conflict of interest that should have been disclosed.

That's a lot of "clearlys" in an opinion.  And while it may not seem obvious to readers spared the unpleasantness of attending law school, that's pretty strong language for three judges to to use with respect to another. 

The case shows the four most important variables that go toward deciding cases in America's courts.  They're ranked here in order of priority, but it's important to note that not all of them will be applicable in every case, a point that will be returned to below.

1.  The identity of the judge.  Judge Fullam was also the judge who entered a judgment of not guilty after the jury returned a guilty verdict in one of the Abscam cases.  (Abscam, for those of you born yesterday, is described here.)  How many judges get the opportunity to take not just one but two high-profile public corruption cases from the lamentable proles who serve on federal juries?  Then, too, it's not altogether surprising that a high-status elderly man from Philadelphian (no, not the Bruce Springsteen Philadelphia, I mean the Katherine Hepburn one, from a world in which mainline is spelled as two capitalized words, neither of which has the least connection to needle exchanges) would have a deep regard for the Du Ponts.  The judge himself indicated that he believed (or at least was willing to accept) the testimony of Freebery's "benefactress", that the $2.3 million was just a friendly gesture, like sending a handwritten note on a tasteful card from the Museum of Art gift shop.

Various comments to this blog, including Jay Macke's comments to post 149, make the same point in different ways.  Some judges are biased, as Macke suggests.  Others, we know, are corrupt.  Others are so dumb they think they're more intelligent than everyone else, and take every opportunity to prove it (although "it" is never what they think they're proving).  Some of those who have practiced for a long time in a field with clearly-defined sides, like tort or criminal law ("there's no such thing as an ex-prosecutor," one of my colleagues says, "there's only defense lawyers"), keep fighting for their clients from their new position of power.  Others try so hard to avoid even the impression of bias that their rulings against their former colleagues become sadly/laughably predictable.  Some have ideological axes to grind, a few have political scores to settles, and it's a cold person who isn't influenced to some degree by feelings for individual lawyers involved in a case.

Now, in Judge Fullam's case ...  Well, I'll just pause right here to let you complete that sentence.  I'd sure hate to be sued for libel in a Delaware court.  The case would probably be assigned to Judge Farnan.

2.  The demographics of the defendant.  The more the defendant resembles the judge, the likelier it is that the judge will rule in the defendant's favor.  Freebery and her white, male co-defendant were powerful figures in the political establishment of the Delaware River.   Offenses that are regularly committed by people who share the demographics of your average judge tend to be treated leniently.  That's one of the reasons DWI is so hard to prosecute.

3.  The demographics of the victim.  The less the victim resembles the judge, the less seriously the offense is taken.  That's why rape cases were treated with such contempt by American judges for so long (see post 139), and why judicial "liberals" are hostile to the prosecution of violent crimes, the victims of which are overwhelmingly the disadvantaged.  (See post 148 and post 3.)  In the Freebery case, there's really no victim at all, merely an abstract mass of citizenry living in a different state than the judge.

4.  The merits of the case.

Now, many judges will, in many cases, jump right to # 4.  I don't mean to imply that any of the first three factors will always outweigh the fourth.  Far from it.  But the Third Circuit's flip of Judge Fullam's ruling provides some reason to believe that sometimes they do.

Voir dire (the pronunciation is strictly a matter of geography - people in one place say it differently than those living a hundred miles away) means "speak the truth."  It's the tedious process of questioning prospective jurors in order to select a biased jury.

Of course, the party line is that the ritual is gone through for the purpose "of enabling the court to select an impartial jury", but no one with an interest in the outcome of a lawsuit truly wants an impartial jury, least of all a guilty murderer.  Voir dire is, in practice, one of the many barriers American judges raise against the conviction of the rich: defendants with money hire consultants whose job is to to predict how prospective jurors are likely to vote.  The ultimate goal is to assemble a biased jury - biased, that is, in one's favor.

In Placer County, near Sacramento, Judge Joseph O'Flaherty confronted what he considered a problem.  He had a black defendant in a county whose population was less than 1% black, resulting in a nearly all-white jury pool.  He also knew, from experience, that white jurors who admitted to racism in open court were subjected to hostility, which led him to believe closet Aryan Nation members were unlikely to out themselves on voir dire.  All well and good.

So how to identify the racists?  The judge hit upon a novel approach.  Here's a transcript of the judge instructing the panel members:

I don't want any racism in my court, which most of you know by now, but  I go a little further than that.

I recognize that most people in today's age don't want to raise their hand and say I am a bigot or I'm a racist.  So what I'm going to do, if any of you have the slightest doubt that you might not, for racial reasons, be able to give this defendant a fair trial, I'm going to give you permission to lie.

Those italics were added by the California Commission on Judicial Performance, which as you may gather didn't like the judge's approach, publicly admonishing him.   (There was also a second, nearly identical incident.)  The public admonishment was enough to cause the Sacramento Bee to recommend the ouster of "Placer's renegade judge" in tomorrow's election.

I admit to being of two minds.  The judge's heart seems to have been in the right place.  But the Bee's high dudgeon has a certain appeal: "In a courtroom that requires the truth under oath, no matter how uncomfortable the truth may be, there is no room for lying."

O'Flaherty's point, I gather, was precisely that people who are racist are likely to lie about it, and that seems plausible.  The idea that you can get honest information out of people by singling them out of a large group and asking them straight questions ("Anyone here a dirt bag?  Can I see a show of hands?")  might very well be unrealistic.  Then again, the judge's idea that such people will consult their consciences and then tell a little white (or white-only) lie to avoid giving their racism concrete expression is also perhaps a tad fairy taleish.

More generally, there's plenty of room for lying in courtrooms.  As a rule of thumb, I'd say the percentage of criminal trials that involve deliberate untruths is, oh, somewhere in the range of, let's say ... 100%.  Mind you, that's just a rough guess. 

Cops lie sometimes, for reasons that will be the subject of a later post.  Some victims lie out of malice, others will describe their experience in ways that exhibit the strange knobby growths of obsession.  Guilty defendants who testify almost always lie.  Their buddies who testify that they were shooting pool together at the time of the murder, and they're sure of the times because they kept checking the clock over the bar that night - guess what?   Convicted defendants who stand before the judge to explain how sorry they are and how they've found God - well,  it's probably true sometimes.

But then, how about the lawyer - prosecutor or defense attorney, it doesn't matter - who predicts in opening statement what the evidence will show, and then it doesn't?  Or in closing argument ties all the strands together to tell a story that no one in the courtroom buys for a second?  Are they lying?  Or just not telling the truth?  (We lawyers would say neither, but to understand our reasons you'd have to listen to us some more.  See post 65.)

The chief project in the criminal law since 1961 has been to reduce the flow of information to the jury.  Lies of omission are so common in American jury trials that most lawyers and judges don't find anything remotely unusual about going to elaborate lengths to give jurors a false impression.  (See post 115.) 

And then there's the "consecrated lie" of the Supreme Court itself, claiming that voir dire is a device to seat an impartial jury.  And, speaking of which, do prospective jurors ever lie in order to get out of jury service?  (See post 98 and post 108.)   Here's a whole web page of excuses, with a link to more.  And let's not even get into the topic of Professor Anthony D'Amato's paper, "The Ultimate Injustice: When A Court Misstates the Facts."  (Ultimate?)

So while I think Judge O'Flaherty crossed a line, I don't think it's the line identified by the Bee.  It's more like shhhh, not so loud!

UPDATE (6/7/06):  The one thing we can all agree about is that O'Flaherty showed poor judgment, which one might consider a problematic failing in a judge, but he won his primary race pretty easily.

As the Duke lacrosse players are preparing to demonstrate yet again, it's very difficult to convict a rich person in the United States.  Partly that's because rich people can hire teams of high-priced lawyers, jury consultants and professional mouthpieces who can easily overwhelm the prosecutors with endless motions, intimidate judges with their reputations,  win the public relations war and influence the jury pool with carefully-planned leaks, select a biased jury, and then do an imperious Italian-suit number on the poor schlump of a state employee on the other side, being amiably condescending in full sight of the jury while accepting star treatment from the press.

Partly, too, it's because witnesses, including victims, are so easy to pay off.  Someday, maybe after all the fun with steroids dies down, we'll get a succession of stories about the lawyers who build whole careers out of persuading victims of professional athletes to weigh the advantages of a new Mercedes against the disadvantages of being labeled a pathologically lying nymphomaniac on every sports page in the country.  It's your choice, sweetie: a $70,000 ride -  or a Jim Rome-wannabe in every media market shouting himself hoarse about you, Catherine the Great and horses. 

And maybe, if you're extremely unlucky, you'll even make it to the scream-media big leagues: check out Rush Limbaugh's and Tucker Carlson's enthusiastic class, race and gender solidarity.

But the biggest reason it's difficult to convict a rich person is because that's the way the U.S. Supreme Court wants it.  The Court has, since the 1960s, established a whole succession of rules that favor the clever and well-advised.  As Professor William J. Stuntz recently wrote in The New Republic, "We seem to have created the perfect system for policing the police--if the system's goals are to maximize protection for rich white kids from the suburbs and maximize police authority over poor black kids from central cities." 

Or you could put it the other way around, as Jack Love, a retired judge, did in his blog New Mexico Law and Society:  the constitutionalization of state criminal law "penalizes the weak, the ignorant, the stupid, the frightened, the mentally ill, and those overcome by guilt."

A lawyer called into a case at the moment of arrest, or before, will busy him- or herself with preventing the police from gathering evidence.  That's the defense lawyer's job.  The Supreme Court gave them authority to stop (or, if you prefer, redirect) police investigations in 1977, if not before.  But most public defenders don't get involved in a case until days after the arrest, after bureaucratic hoops have been leapt through, indigence has been established, and so on.  That means suspects who can afford private attorneys are in a vastly superior position even during the investigatory stage. 

This isn't an artifact of our class system, but a policy decided upon by our justices.  It's one more illustration of the cardinal rule of predicting Supreme Court cases: the justices will almost always arrive at the outcome that does the most to advance the interests of the Supreme Court itself, the federal judiciary, the state judiciary, or the legal profession, in that order of priority.  (Accurate prediction is much easier if you disregard the merits of the case, which only confuse the issue.)

The Court's criminal procedure decisions since the 1960s have been consistent.  The Court grants itself  power to control an ever-wider range of actions in state trial courts; and makes the lower federal courts the viceroys of its colonized territories, with authority to supervise state courts through the power of habeas corpus; and compensates state judges for the lessening of their autonomy by authorizing them to oversee the operations of their states' executive branches (see post 5); and gives lawyers the power to prevent police from gathering evidence against their clients, providing a massive incentive for wealthy clients to begin paying huge attorney fees (cash up front is the rule in the criminal defense biz) at the earliest possible moment.

Consider for a moment a couple of the Supreme Court's most consequential recent criminal cases. 

Apprendi v. New Jersey involved a middle-aged pharmacist who admitted shooting up the house of the first black family to move into his neighborhood, relying on the testimony of (expensive, it's safe to say) mental health professionals to support his defense of mental disturbance.  As a matter of cold statistics, middle-aged white professionals are not the most numerous category of violent criminals.

Blakely v. Washington involved a middle-aged man who duct-taped his wife, put her in a homemade coffin in the bed of his pickup truck, and told the couple's 13-year-old son he would shotgun the box unless the boy did Daddy's bidding.  When the boy subsequently climbed into the truck bed in an attempt to rescue his mother, Daddy maneuvered the truck wildly, successfully knocking the boy to the ground.  (47 P.3d 149)

The source of the marital discord was pending litigation over property the Blakelys had acquired in the course of "complex business maneuvers", according to one of the opinions in their epic divorce proceedings.  (44 P.3d 924)  It's safe to assume that relatively few defendants charged with violent crimes in American courts are motivated by a wish to influence the disposition of a "ranch, and development property in Montana; a home and orchard in Grant County[, Washington]; a lake home; and rental properties" being held in a family trust.  (47 P.3d 149)

The husband in Randolph v. Georgia, the laughable recent decision that wives cannot invite police into their homes over hubby's objection, because David Souter, of all socially isolated people, thinks that reflects social norms (see post 91 and post 96), was a lawyer, according to Law.com. 

Just recently the justices heard argument in a drug case in which a defendant hired two sets of lawyers, inducing one of them to fly to Missouri from California.  One might guess that's not an inexpensive thing to do.  At least, it doesn't seem to come up in very many cases involving indigent defendants.

Examples can (and will, in future posts) be multiplied.  Bottom line: if you're thinking about committing a violent crime in America, plan ahead.  Make sure you have lots of money.  If at all possible, be middle-aged, white and male.  Commit your crimes against people with different demographics.  It helps to have a professional degree, but substantial real estate holdings will serve in a pinch, and attending an elite university will (just wait and see) probably do just as well.   Once you've checked off as many items as possible on that list, call your lawyer.  And  you're good to go!

When we describe Supreme Court justices as liberal or conservative, we mean that one (at least) of the factors influencing their decision-making is unrelated to the parties' dispute.  We're suggesting that judges are doing something more than merely resolving the dispute.  They're enforcing their political ideology, making the world conform a little more closely to their preconceived notions.

Empirical evidence of a sort demonstrates the effect.   A recent study suggested that the sentences imposed by federal judges under the old Guidelines broke down along party lines, with Republican judges going easy on white-collar criminals and Democratic judges getting all soft and gooey on street criminals. 

An obvious problem with large-scale studies like that is that they rest on the assumption that the cases being compared are substantially identical.  But they aren't.  One "street crime" might involve grabbing the hot dog and running off without paying, while another might involve 15 youths dragging a man out of his car and beating him to within an inch of his life.  It's hardly meaningful that judges should treat the two crimes differently.  (But then, the Guidelines themselves rest on the same assumption that all crimes within a certain category should be treated alike.)

A less obvious problem with such studies is their assumption about the way in which judges reveal their interest in cases.  The idea is that you can detect a judge's interest by looking at the result of the decision-making process.  If the plaintiff/prosecution wins, it means the judge is pro-plaintiff/pro-prosecution.  If the defense wins, it means the judge is pro-defense - an accusation that carries a vastly different ideological connotation when you're talking about civil rather than criminal cases.

In other words, such studies attempt to measure the interest of judges by examining the interests of the litigants. 

I think that's, at best, indirect.  Jefferson famously wrote that "[o]ur judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps."  He meant that judges get something out of judging.  That shouldn't be a surprise - why else do they do it? - and yet it's apparently not self-evident.  

The familiar division of Supreme Court justices into liberal / conservative / moderate / swing camps is based on the idea that the great motivator in their lives is political ideology.  That, it seems to me, is naive.   Think of the most politically-engaged person you know.  Can you really say that politics is the greatest motivator in that person's life?  More than, say, sex?  Or money?  Or power?  Or hatred of his/her enemies? 

Bill Clinton was, everyone agrees, a politician to the tips of his toes to the hair that John Updike compared to a possum's pelt, but we have Ken Starr's DNA test to prove that even his political instincts sometimes took second place.  It seems that Newt Gingrich, too, sometimes let his thoughts wander away from C-Span.  What's the likelihood that an appellate judge - someone who likes to sit in an office amid stacks of paper and open books - will be more devoted to political ideology than such consummate pols?

Justice Breyer was recently quoted as saying "that he hadn't detected any split on the high court along Republican and Democratic ideological lines.  'I haven't seen that kind of politics in the Supreme Court. Zero. It doesn't exist,' he said."  What he meant was: he sees a much different kind of politics in the Supreme Court.

Rather than trying to gauge the interests of judges by examining the results of the decision-making process, we should examine the process itself.  It doesn't take much imagination to perceive some of the interests judges might pursue in their professional lives.  Here's a short list of possibilities:

1.  Bribery, whether by money (see post 71, post 67, post 60, post 53, post 48, post 36), sex (see post 76), campaign contributions, or what have you.

2.  Friendship, which is a kind of pro bono bribery.   The legal profession has incredibly intricate spiderwebs of good ol' boy networks.

3.  Power.  Any judge who doesn't like power is in the wrong line of work.  Judges exercise power over the parties before them, and over the lawyers, and incrementally over society at large.  They're also in a position to adjust the distribution of power between the branches of government.  A judge who enforces the law is performing the will of the legislature and executive.  A judge who refuses to enforce a law - say, by finding it unconstitutional, or by suppressing evidence - is exerting his or her own will.  (Which, it ought to go without saying, doesn't necessarily mean the judge is wrong to do so.)

4.  Identification with the defendant, or with the victim, or with a lawyer, or (the flip side) contempt for them.  Sometimes, particularly in smaller communities, the feelings are based on personal relationships.  More often, I imagine, the process is akin to the way people decide what they feel about celebrities (every other year the Olympics do it to us: Bode Miller or the girl who will successfully if mysteriously keep puberty at bay long enough to become the next Olympics gymnastics princess.  We know almost nothing about them, but - perhaps for that very reason - our feelings about them run very high.)  For people with a particularly strong power drive, so to speak, it's natural to identify with the powerful and despise the vulnerable.  (See post 57, post 37, post 22, and post 19.)  So maybe this category is just a subset of #3.

Perhaps  some judges are influenced by party politics, too, but I think for any normal person that would be a considerably less powerful factor than any of the above.  

Electoral politics doesn't explain why judges' behavior tends to fall into predictable patterns.  Conspiracy theories are just preposterous.  The answer is hiding in plain sight: judges promote their own interests and gratify their own feelings and appetites, just like you, me, Bill, Newt, and everyone else.

Last month a Lake City, South Carolina, police officer named William Webb pled guilty to a single count of conspiracy to distribute cocaine.  The U.S. Attorney's office charged that he had sold cocaine from his patrol car, and took money from dealers, and sometimes even confiscated drugs from buyers and gave them back to the dealers to sell a second time.  He was accused of accepting a total $75,000 from one dealer over the course of years, although the news stories don't make it clear whether he admitted that.  He was sentenced to 13 years in federal prison followed by five years of supervised release.

This week, former Congressman Duke Cunningham was sentenced.  He "admitted taking $2.4 million in bribes from defense contractors and evading more than $1 million in taxes", according to the LA Times.  In his plea agreement, Cunningham provided prosecutors with "a detailed list of payoffs, including cash, sweetheart real estate deals, antiques, trips, the use of a yacht, a deal on a Rolls-Royce and jewelry for his wife. The bribes from four unnamed co-conspirators came in exchange for Cunningham's using his influence to arrange lucrative defense contracts for high-tech equipment for intelligence gathering and analysis."  Cunningham was so blatant that he actually "kept a 'bribe menu' on congressional stationery indicating how much he demanded in exchange for contracts".  (Here's a selection of Cunningham quotes, which shows that his downfall was much of a piece with his rise.)

Cunningham's sentence, according to the LA Times, is "severe".  It's eight years and four months in federal prison.  Under the terms of the plea agreement, the judge could have sentenced Cunningham to ten years, but gave him a break because of his military record, reasoning that a "message should be sent for service to country."  (Now there's a military recruitment slogan!  Join the service and get a reduced sentence!)  South Carolina's Officer Webb, incidentally, also had an honorable military record, but his sentence is still 56  months longer than Cunningham's and (so far as the news reports reveal) he didn't even get the use of a yacht or "nine armoires, six Persian carpets, three antique oak doors, two candelabras and a china hutch."

Meanwhile, down in soggy south Louisiana, former Judge Alan Green was sentenced to 51 months (see post 67) and former Judge Bodenheimer got 46 months.  (See post 12.)  Both were caught in an investigation into bail bonding practices, which means that, in practical effect, they were using their power of office to shake down arrestees, most of them doubtless extremely poor, in order to line the pockets of their businessmen/partners.  In addition, Bodenheimer was caught on tape conspiring to plant Oxy-Contin in the car of a person who criticized the judge's poorly-maintained commercial fishing dock.  Green - unlike Bodenheimer, Officer Webb, or even Congressman Cunningham - refused to take any responsibility for his wrongdoing.

The New Orleans U.S. Attorney said in a press release following Green's sentencing that "[n]o crime is so disgraceful or shameful as the sacrifice of the integrity of a judicial office, or the violation of the sacred trust which citizens put in judges and other public servants in the criminal justice system."  Judges, those in whom we put our sacred trust, evidently disagree with this fine sentiment.

Whose acts were most harmful to individuals and most destructive of our society and institutions?  What Officer Webb did in his poverty-stricken small town was very bad.  But it was small potatoes compared to what Congressman Cunningham did.  And yet Congress and the military continued to function even with Cunningham forcing the military to buy substandard goods from war profiteers.  Cunningham was a glitch in the system.  But a crooked judge is the justice system for those unfortunate enough to be in his power.  A crooked judge is a negation of the very ideal of justice.  Judges who release dangerous people in exchange for kickbacks from bail bondsmen are sentencing innocent others to extreme terror and pain, even death.  A crooked judge is the world upside down.

Note the symmetry by which the sentences in these cases are upside down: the judges got about four years each, the flamboyant Congressman got twice as long, and the blue-collar, working-class guy got three times as much time.

Even after Booker, federal judges have limited discretion in imposing sentences.  The powerful demographic bias illustrated by these cases is institutionalized, not merely the idiosyncracy of individual judges.

George Carlin captured the spirit of the matter in Braindroppings, where he imagines the low-level Neolithic official - he calls him a primitive sergeant - whose job it is to explain to the band of cave-dwellers that, starting later this week, the corn god will be requiring the regular sacrifice of virgins.  Some members of the clan are less than thrilled.  The primitive sergeant reminds them that "I just make the announcements, OK?  I'm not involved with policy.  It came down from the high priests, that's all you gotta know."  He continues:

OK, one last point: You say, Why does it have to be a young virgin; why can't we throw a wrinkled old man in the volcano?  Lemme put it this way.  Did y'ever get a real good, close look at the high priests?  OK.  Once again, I rest my case.

 

In every town of any size, there's at least one judge of whom it's conventionally said: "Just make sure you put your important witnesses on before lunch."  Because after lunch the judge's alcohol-fuzzed evidentiary rulings become erratic.  The lawyers will crack jokes under their breath about it, but then they deal with it, more or less the same way they deal with stupid judges, or a malfunctioning PA system.  They work around it.

(One of the disillusioning moments of every lawyer's first year of practice is the realization that some judge cannot follow your perfectly clear and well-supported argument.  As a law student you're taught that judges are fonts of wisdom.  As, indeed, some are.)

Drinking has been an accepted part of legal culture at least since the day of the tavern-haunting lawyers parodied in Joseph Andrews (book II, chapter 3).  The ABA says the alcoholism rate among lawyers is twice the rate in the general population.  I'm surprised it's only double.  The law is a liquid profession.

Shortly before the holidays the Washington Post ran this chat about drunk driving with a researcher at the National Highway Traffic Safety Commission.  As the researcher explains, the number of DUI-related deaths remains very high, over 16,000 a year in the United States.  The issue gets a lot of ink and a lot of air time.  Yet the single biggest roadblock to DUI enforcement is never mentioned in public.  It's this: judges go easy on the crimes they themselves commit.

It's a safe bet that most American judges have driven drunk one time or another.   The experiences of Judge Davis and Justice Resnick, detailed in post 36 and post 33, are unusual only in that the cops who stopped them had the resolve to report them.  Those judges who have never committed the crime almost certainly know family members or friends who have. 

It's natural that judges identify with drunk drivers.  And we all know that when you identify with a person, you want to help that person out.  That dynamic plays itself out in America's courtrooms every day.  That's why DUI dismissal rates are reduced when observers are in the courtroom -- the sense of identification is interrupted when the judge gets self-conscious.  But it's also why dismissal is rare in cases involving repeat offenders or grossly high BACs.  What judge wants to identify with an out-and-out, abject loser? 

The more the defendant resembles the judge (or the way the judge remembers himself back in his college days), the greater the likelihood of dismissal or acquittal.