JUDGING CRIMES

While recently clearing a layer of wood-pulp debris from my office ("Don't toss that!  It might come in handy some day."), I came across a law review article by Richard D. Friedman, Framer of the current sixth amendment. 

Friedman has written a few gazillion articles about the confrontation clause -- in fact, it's difficult to find a recent article about the confrontation clause that he didn't write -- but this one was published before the March, 2004 constitutional convention that amended the amendment.  (Surprisingly few delegates showed up.  Only nine, in fact.)

It's about the forfeiture principle, the subject of a forthcoming Supreme Court opinion, Giles v. California, which is featured prominently in Professor Friedman's blog.  The article was published in the Israel Law Review, and it's called "Confrontation and the Definition of Chutzpa."  (For the missing final "h" in khutspe, see this discussion.)

The article has many excellent things to say.  The alternative to Friedman's approach -- the one adopted by New Mexico courts, in fulfillment of their historical mission to preserve the state's late 19th-century culture -- amounts to a double or nothing bet.  If a criminal feels lucky, he might as well commit a second crime by killing or intimidating witnesses to the first.  If he gets by with the second crime, he gets away with the first one, too.

So basically American courts are faced with a choice between (a) entrusting the physical safety of witnesses and the integrity of their own judicial processes to the discretion of violent criminals, in the hope that they won't feel lucky; or, (b) Friedman's recommended robust forfeiture principle. 

Judges find it a very difficult choice, for a reason well stated in the Friedman article I'm fixing to recycle: they prefer to think of the accused's constitutional rights as absolute.  Toward the end of the article, discussing the victimization of children, Friedman includes these paragraphs:

Fourth, if a child's caretakers are genuinely concerned that, no matter what precautions are taken, testifying will cause the child severe trauma, they simply need not require her to do so.  Of course, if absent her live testimony secondary evidence of the prior statement is inadmissible, the probability of securing a conviction against the accused may diminish to the vanishing point.  And, when the accused is in fact guilty, that is a very unfortunate result.  But it is nothing new.  Often prosecutions are lost, or never brought, because the complaining witness is unwilling to testify.  Again, the case of adult rape provides a prime example.

Finally -- a point that will not have universal appeal -- I find disturbing an approach that says to the accused, in effect, "Well, perhaps you have a fundamental right at stake here, but someone else would be hurt if we allowed you to invoke it against the state and yet insisted on prosecuting you".  Perhaps it is too late in this "age of balancing" to argue against such willingness to balance away the rights of accused against the state.  But I prefer viewing the accused's fundamental rights, at least at their core, as truly fundamental and not subject to be balanced away.

Now, Friedman is obviously a very smart guy, and he's an almost infinitely better writer than the average law professor, and I've been told secondhand that he's a good guy -- a true gentleman -- possessed of a fine sense of humor. 

So how come it's not obvious to him, as it is obvious to me, that his approach involves "balancing" quite as much as the approach he deplores?  ("Balancing," in a judicial context, is an euphemism for choosing, of course.  See post 248 and post 332.)  Specifically, he balances away a child's right to protection from the community. 

I know that in the courtroom, we have to pretend that the particular crime charged is the only one the criminal ever committed, but who believes that about a pedophile?  I think it's safe to assume that a man who's sexually attracted to children will experience that attraction about as often as any other man is sexually attracted to objects of his desire, which is to say, roughly, whenever they come within his field of vision.

Volumes of social science data show that child sexual abusers routinely "report vastly more victim-involved incidents than those for which they were convicted."  (That's from "Child Sexual Molestation: Research Issues," National Institute of Justice Research Report (NCJ-163390, June 1997), which apparently isn't available on-line but can be ordered here.)

So it's not just "a very unfortunate result" when a guilty child sexual abuser goes free.  It amounts to sentencing additional children to sexual abuse.   Friedman proposes balancing away those children's rights, too. 

That has consequences for non-pedophile, peace-loving, minding-their-own-business adults, too, as described here.  The rights of those future adult victims of grown-up abused children are also subordinated to Friedman's elegantly simple conception of the sixth amendment.

At the highest level, Friedman also proposes balancing away the rights of the American people, who are guaranteed a republican form of government in their Constitution.  That means a government controlled by the people themselves. 

Why can't the people of the various states have the type of government they want? -- one in which guilty pedophiles are stopped before they re-offend, and punished before they can make child sexual exploitation seem like a low-risk activity for those so inclined.  (Well, okay, punished so that we can gradually restore the vanishing perception that it's a high-risk activity.)

Friedman's point, or rather his assumption, is that these things don't count.  All he's really saying is that the accused's rights shouldn't be balanced against the prosecution's interest in securing the conviction of a guilty person.  Inside the courtroom, no one else has "standing" to intervene in a criminal prosecution, so therefore (it follows, as night follows dawn) no one else has any rights that a judge is bound to respect.

Friedman, in short, accepts the basic assumption on which our current criminal justice system rests, which is that real life and what happens during the course of a criminal trial must be kept strictly segregated, and only the latter counts. 

His uncritical acceptance of the big-picture status quo is certainly one reason for his incredible influence over the judicial guardians of received wisdom.  Last year, for instance, the Ninth Circuit asked him how to rule in a confrontation clause case and meekly did as they were told, giving him credit. 

He advised them (if the court's paraphrase is to be trusted) to base their decision on policy considerations, in order to prevent prosecutors from getting up to tricks (footnote 8).  Policy considerations are so much more preferable than balancing tests, of course.  Intent of the Framer and all that.

Yesterday's Washington Post featured two apparently-unrelated stories.  One headline read: "Md. Judge Dismisses Sex-Abuse Charges: Clerk Is Unable To Find Suitable Translator In Time."  The article explained how the defendant, a Liberian speaker of Vai, was accused of raping a 7-year-old girl, and the accusations were supported by DNA evidence. 

The clerk of the court found several Vai interpreters, but for various reasons they quit, so the judge dismissed the charges, finding that the defendant's speedy trial rights were violated. 

The right to speedy trial is, of course, protected by the sixth amendment, and also by the Maryland Constitution (art. 21).  I don't doubt that the judge's order of dismissal is "correct" - that is, easily defensible - under Maryland appellate decisions, since charges had been pending against the defendant for nearly three years, although he had been out on bail that whole time.  (Out on $10,000 bail - more than many shoplifters have to put up, I would imagine.)

But there's some little voice inside of me that wonders if, once the two sets of DNA results came back (the defense got their own, too), the defendant really and truly wanted a speedy trial.  Is it possible - just possible - that maybe what he wanted was charges to be dismissed instead?  And isn't that, I dunno, sort of like, you know, the opposite of wanting a speedy trial?   I'm just askin'.

The judge, who surely realized that the defendant was only pretending not to understand English (he had attended high school and college in Maryland), said that she was "mindful of 'the gravity of this case and the community's concern about offenses of this type.'" 

I don't doubt this particular judge's sincerity, but what does that phrase "the community's concern" mean?  The judge's conscious meaning might have been something like: "I really, truly don't want my name to become a catchphrase among talk-radio listeners, so I'm going to make a non-apology apology for what I'm doing to make sure everyone knows it's not my idea, okay?" 

But what she was really talking about, whether she realized it or not, is democracy.  The people of Maryland have said that people who repeatedly rape 7-year-olds should be punished.  The judge ruled - as I said, no doubt "correctly" - that a higher law prohibits the people of Maryland from having the type of government they want.   Under Maryland law, something that exists apart from the consent of the governed and (as the judge recognized) often enough in opposition to it, some things are more deserving of condemnation than raping children. 

One of them is making a man live for three years under the horrible cloud of possibly receiving a fair trial.  

Anyway, the other Post story was: "6 Shootings in 2 Hours Stir Worries About Violence: 11 People Are Injured In What D.C. Police Call An 'Unusual' Outbreak."   Wow.  "Worries."  Pretty strong stuff, huh?  Wouldn't expect the Post to go for such sensationalism, especially considering the shootings all occurred east of the Anacostia River, in an area bordered on two sides by Maryland, a long way from Georgetown.

Is there any connection between the stories?  Not directly - I don't have any reason to think the Liberian child-rapist (alleged child-rapist!  alleged! - doubtless Barry Scheck would back me up on this one, DNA evidence is far too ambiguous to allow anyone to reach any definite conclusions about guilt or innocence based solely on the result - see post 246) was shooting up anyone's house. 

But is it possible that actions taken with the best of intentions might have unintended consequences?  (The better question is: is it possible that they might not? - but that deflating realism would detract from the heightened rhetoric of this peroration.  See post 276.)  Is it possible that a government devoted, with a kind of unquestioning certitude difficult to distinguish from religious faith, to the idea that disregarding "the community's concern" is its "highest duty" - is it possible that such a government might produce conditions conducive to behavior that is  not merely contrary to the community's wishes, but detrimental to its well-being, and even to the continued life of some of its members?

Such as, say, "6 Shootings in 2 Hours"?

British Prime Minister Gordon Brown, speaking to the nation after the terrorist attack on the Glasgow airport, said: "The first duty of the government is the security and safety of all the British people."

American judges disagree.  A system of law that recognized the safety of the people as it highest priority would never conceal evidence of criminal violence from its jurors.  Rather, even as it recognized that preventing violence is better than responding to it, it would act on the principle that responding to violence is better than passively accepting it.

American judges have rejected that concept of government.  Instead, they hold - as a matter of the loftiest principle - that the security and safety of the people must never be permitted to become more than a secondary concern of the government.

The first duty of the government is to protect the constitutional rights of the accused.  That's why, for example, Illinois judges allowed James Ealy to go free after killing four people.  (See post 224.) 

The judges who set him free after he wiped out a whole family told him, in so many words, that there is no act so horrible as to be entirely unacceptable in American society.  Raping a small boy, strangling him and his mother, grandmother and aunt -  American judges are prepared to accept all that.   Protecting the boy and his female relatives from harm, or according them justice after their deaths - those weren't trivial concerns, but they were secondary.  The government's higher duty was to protect James Ealy from ... the government.

The first version of this post sounded angry and bitter, but the idea it was trying to get across is neither.  On the contrary, it's something that lawyers who practice criminal law simply take for granted.  And yet it's that odd thing, an unfamiliar truism.  The whole point of the judge-made exclusionary rules invented since 1961 is that some things are more important than enforcing laws intended to ensure the security and safety of the people.

Criminal law, in America, is always conditional: Thou shalt not kill, unless a judge believes the police wrongfully obtained evidence against you, in which case thou canst go ahead. 

Webster's defines peroration as "the concluding part of a discourse and especially an oration" but that's a curiously flat way to put it.  A literary analysis of sermon structure gets to the real point: the peroration of a sermon is a "[r]ecapitulation and amplification of the argument designed to arouse emotion in the listener."

Much of the religious symbolism of the courtroom is obvious: the cavernous public room, the rows of uncomfortable wooden pews all facing one direction, the figure in the black robe facing the opposite direction, the large wooden structure centered on a raised platform to serve as a focal point, the stereotyped, kitschy artwork, the requirement that the audience stand up and sit down on cue, the bar beyond which only the initiated may venture, even the iconostasis from behind which the black-robed authority figure emerges (though, it must be admitted, judges are more likely to decorate in bordello scarlet than your average vestry committee).

But some of the ways in which the judiciary has assumed the role of state religion are less obvious, such as the high degree of faith necessary to believe that Supreme Court justices really receive regular revelations from the Framers.  (See post 233.)   And the perorations commonly tacked onto the ends of opinions. 

The Judge Arnold rhetoric quoted in post 274 was a peroration: it was the concluding section of his opinion and its elevated tone was intended to have an emotional impact on the reader, as it evidently did on Justice Brennan and the obituary-writers of the New York Times - not to mention the judges of the Second Circuit who recently quoted it twice.  Here's the last three sentences again:

Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced.

This, I think, is far more revealing than insightful.  The rhetorical strategy of euphemism is in full flower: the case involved a pedophile, who had previously been found not guilty of molesting or raping two little girls on the basis that he suffered from an "irresistible impulse" to rape them, and who murdered his most recent 10-year-old victim.  (Opinions in the case refer to him as a "former mental patient", but he was institutionalized by court order and not because it was medically indicated - his only psychological diagnoses were pedophilia and antisocial personality disorder, though you have to read the record to discover that fact.)

So what Arnold was really saying was: "In the long run, the prepubescent girls of America are both freer and safer if a person with the irresistible impulse to rape them, who has acted on that impulse multiple times and who killed at least one of his victims, is permitted to select new victims from among them."

That's not really fair, of course.  Arnold said "in the long run" and he counseled us not to confine our attention to the case at hand.  So what he really meant was: "The prepubescent girls of America are both freer and safer if lots of pedophiliac murderers, not just this one, are set loose among them."

No?  Then how about: "pedophiliac murderers are both freer and safer if the state is prohibited from punishing them."  That makes sense, at least.  But then, as Tonto might have asked, "What do you mean by 'we', Judge Arnold?"

It's not a coincidence that the case involved the murder of a 10-year-old, or that the linked Second Circuit case involved the murder of a crack-using prostitute.  The social status of the victim is critically important to the disposition of criminal cases.  Imagine that the victim in either case was a federal judge.  Do you think we'd hear the same rhetoric about how we'd all be freer and safer if we just accepted that judges get iced from time to time?

Arnold, you'll notice, didn't say "safe" or "free."  He used the comparative forms of those words.  His point was that the actions of the police officer posed a greater threat to our safety and freedom than the actions of the murderer.  The police officer in question asked the murderer to consider whether his victim's parents deserved to give their little girl a Christian burial.  So put on your blindfold, pick up the scales - no, wait, pick up the scales first, then put on the blindfold and tell me if you agree that asking that question poses a greater threat to our freedom and safety than kidnapping and killing one of us.

When Arnold's decision was reversed by the U.S. Supreme Court, Justice Byron White observed that "four Members of the Court, including myself, were of the view that [the detective in the case] had done nothing wrong at all, let alone anything unconstitutional."  So our freedom and safety is more threatened by a policeman doing something that 44% of the justices of the Supreme Court think entirely right and proper than by a pedophile kidnapping and killing a child.

(What does that say about 44% of the Supreme Court? - is that why Justice Brennan found the words so "stirring"?)

Assume for a moment (it's difficult, I know) that Arnold actually thought about the words he included in his peroration.  In that case, the real question raised by his opinion was: Who gets to decide what makes us freer and safer?  There's nothing in the opinion to indicate that Arnold understood that his opinion raised that question, but nonetheless he effectively answered it: The people don't get to decide.  Judges do.  Or, rather, the Founding Fathers do, communicating their desires through the earthly medium of judges.

And so finally we get to the real issues decided by Judge Arnold: Which is better for federal judges, allowing the people to make fundamental decisions about freedom and safety in their society, or making those decisions on their behalf?  Which is better for the legal profession, to allow a client to render his own case unwinnable or to prevent him from doing so? 

No wonder those judges on the Second Circuit like Arnold's peroration so much.

It's - what's the word? validating, I guess - when academics put down the bluebooks they ought to be grading in order to rush out law review articles dedicated to elaborating on some of this blog's posts.   Professor Benjamin Barton of the University of Tennessee Law School - I assume everyone calls him Doogie - is the latest to accept guidance from Judging Crimes.

I refer, of course, to his article "Do Judges Systematically Favor the Interests of the Legal Profession?", an elaboration of post 250.  Considering that just two weeks elapsed between the post and the article, his industry is to be commended, too.

Barton's article will be forthcoming from the Alabama Law Review.  Its abstract on the Social Science Research Network reads:

Many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.

Barton picks examples from around the whole field of law to prove his thesis:

The questions considered include: why are lawyers the only American profession to be truly and completely self-regulated? Why is it that the attorney-client privilege is the oldest and most jealously protected professional privilege? Why is it that the Supreme Court has repeatedly struck down bans on commercial speech, except for bans on in-person lawyer solicitations and some types of lawyer advertising? Why is it that the Miranda right to consult with an attorney is more protected than the right to remain silent? Why is legal malpractice so much harder to prove than medical malpractice?

Answer: because lawyers are more important than other people.  And it's objectively true that we're more important, you know: our importance lies in the fact that we're objects of such judicial solicitude, just as it was objectively true that Buckingham was more important than anyone else in England during James I's reign.

Barton takes four pages (26-30) to make his point about Miranda, and then doesn't quite seem to grasp the point he's making.  The actual right guaranteed by the Constitution - the right to remain silent - exists for the protection of the individual.  That right can be waived simply by speaking.

But in the 1970s, a decade in which nothing went right, the Supreme Court amended the Constitution, adding a new Amendment V I/II (in decimals, V.V), requiring the police to stop investigating the murder or rape or whatever trivial thing is occupying their tiny little ferret brains as soon as the suspect asks for a lawyer.  The Court's reason for creating that right is pretty obvious, really:

Any lawyer who has ever been called into a case after his client has 'told all' and turned any evidence he has over to the Government, knows how helpless he is to protect his client against the facts thus disclosed.

A client who has once uttered the magic words ("I want a lawyer") can't retract them merely by talking to a police officer.  He has to know the secret code to free himself from his self-cast spell. 

There's a simple reason why it's so much harder to rid yourself of the right to counsel than of the privilege against self-incrimination.  The second protects the person accused of a crime from brutality.  The first protects his lawyer from being saddled with an unwinnable case.  And which is more important, really?  (If you're not a lawyer, don't try to answer that question - it's far too technical and involved for you.)

Metaphors and similes are a step removed from reality.  That's their point, and why it's a mistake to think in them.  It's one thing for a politician to describe geopolitical strategy in football terms by saying it's a question of whether the nation plays offense or defense.  But it's another thing for the leader of a country to believe that the purpose of all that global strategizing it to move the ball toward the goal.

Lawyers and judges are trained in a mechanical style of cogitation that isn't quite the same as thinking.  The use of metaphor simplifies that process, because it makes it easier to fight off the intrusive realization that reality isn't cooperating.   In Kevin Flynn's Relentless Pursuit (see post 245), there's a hilarious, awful moment when the judge starts talking about Snow White and the poisoned apple:

"The illegal activity by the police commenced when the PG County police took the man out of the truck, had him out on the ground and in handcuffs.  That's when he was arrested.  And that's when the poisonous tree got planted. ...  The issue is the evidence, the physical evidence.  I found the poisonous tree, and I found how far its roots went.  Now, I want to go through the evidence and determine which evidence either is on the tree or off the tree."

This sounds like gibberish because it is.  What was once a metaphor had, by the time the judge uttered this string of vocables, long since been transformed into more or less random sounds used to signify nothing but the impending exercise of power.

Is that too harsh?  Then explain, please: In how many ways is the nighttime police stop of a person suspected of killing two people, and taking one of their hearts with him, like a tree?  In what respects is looking into the interior of a truck like fruit?  Quick now: list three ways in which a felony stop resembles the roots of a quince bush.

I once heard Charles Addams say in a TV interview that psychiatrists used his famous skier cartoon to test a patient's reality testing.  If the patient could explain it, the doc knew there was a problem.  The questions in the preceding paragraph might serve the same purpose.  But Addams was being funny.  Flynn's judge was deadly serious.

Lawyers and judges don't even notice when their metaphors become meaningless, because the metaphors are used, not to convey thought, but to provide an outward sign of a mechanical mental activity.  The dead metaphor signifies that the speaker is following the ruts in his or her mind, ruts as deep and impervious to passing seasons as the ruts of the Santa Fe Trail.  (Resist the temptation to think about those ruts gradually wearing away, and the landscape of your mind being restored to pristine rationality, as the soothing waters of this blog wash over them.) 

The most pervasive metaphor distorting judges' thinking is the scale.  There's a scale on every courthouse in the country.  (In front of Albuquerque's Metropolitan Court, we have a huge, remarkably ugly scale sculpture that moves, with the all-too-metaphorical result that it often dips out of balance.) 

American judges like to say - they've said it thousands of times, often with exactly the same string of words - that whether the arrest of a suspect or the seizure of evidence is constitutional "depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers."

Picture the clerks huddled around a triple-beam balance scale inside the Supreme Court building.  There's a tense silence until the needle's quivers cease, when one of them speaks up in a voice hoarse with tension: "Scalia's people say the individual's right checks out at 4.581 grams, but all we're getting is 4.215.  I say the public interest definitely tops that.  Who's with me on this?"

When the justices say "balance," they mean: "a choice."  They mean: We decide which is worse, letting the cops get away with what they did, or letting the criminal get away with what he did.

It's not hard to see why judges are uncomfortable with coming right out and saying it.  If you were to ask bluntly: Which is worse, what John Couey did to Jessica Lunsford when he buried her alive, or what the Citrus County deputies did to John Couey when they listened to him confess?  - then you'd have to be some kind of monster to answer the way our courts routinely do.  (You can listen to Couey's suppressed confession here.)  So, obviously, the question can't be asked that bluntly.

Justices Jackson and Frankfurter once hinted that the exclusionary rule should be applied along a sliding scale, by which constitutional rights are viewed not as absolute but as relative, a person accused of a violent crime having fewer rights than one accused of running a numbers game.   Justice Stevens revived the idea in 2001.

But few judges are willing even to start down this road.  If constitutional rights are relative, then judges applying the non-textual exclusionary rules have a choice about how to rule.  They're morally responsible actors.

How much pleasanter to hide one's agency from oneself behind those draping strands of familiar, meaningless syllables.

Christopher Paul Moore's Fighting for America: Black Soldiers - The Unsung Heroes of World War II is mostly a collection of anecdotes drawn from interviews, medal citations, newspaper accounts and battlefield reports.  It gives a ground-level view of the war, entirely unlike conventional histories that attribute every military action to the commanders.

One story describes the experience of the 827th tank destroyer battalion, which destroyed 11 German tanks one day and 4 the next, and was soon afterward relegated to noncombat duties at the instigation of its own white officers, some of whom had actually fought with their men. 

Pfc. Charles Branson, an assistant gunner on one of these Hellcat Tank Destroyers, told Moore:

"Any white unit that accomplished what we did against the Nazis would have been commended generously.  They [the white officers] just had to be in charge," said Branson.

"I don't think some would have minded losing the war outright, just so they could puff up their chests.  They just had to be in charge."

I don't buy that the racist officers wouldn't have minded losing the war.  Rather, I think, the white officers wanted to win the war in the long term, but in the short term they were mainly interested in puffing out their chests and being in charge.

In the war, there was more than one struggle going on.  At a virtually abstract level, there was the Allies against the Axis powers.  On the ground there were Allied soldiers against Axis soldiers.  And, as Coppola's Patton dramatized, there were also struggles between jodhpur-wearing generals and English military celebrities who got better press coverage. 

Within each national Army, there were other power struggles. 

In any Army, the relationship between officers and enlisted men is always based centrally on power, though one hopes it also includes respect, admiration, loyalty, dedication to a common goal, etc.  Branson, I'm sure, is right that some white officers of Black troops were overly focused on the immediate power struggle, because (1) some people are just like that, as everyone who's ever worked in an office knows; and (2) the type of dominance racist whites wanted over Blacks was much more complicated (and complete) than a soldier's obedience. 

When I read - or, rather, listened to, in the excellent Recorded Books version - Moore's Fighting for America, the analogy suggested itself.  When courts consider a criminal case such as the quadruple murder described in post 224, many adversarial relationships based on power are at issue, not just that between prosecution and defense.

 At the most fundamental level - and, to my mind, by far the most significant level - there was the power relationship between Ealy and his four victims.   But it makes people uncomfortable to think about the strangulation of a pregnant woman, two teenage girls, and the rape and strangulation of a 3-year-old boy.

Luckily, there are abstractions galore to think about instead. There's what the Supreme Court melodramatically termed "the unceasing contest between personal liberty and government oppression."   Of course, the attentions of the police can indeed be oppressive.  One only needs to remember what the "po" in Gestapo means.  But in concrete terms, the Court was referring to the "unceasing contest" between  cops and robbers.  How much power should the cops have in that contest? - a question that gets more difficult when you phrase it the other way around: How much power should the robbers have?

But of course the criminal justice system doesn't end with the arrest.  There's the trial, and the appeal, and the habeas corpus.  Murder cases routinely go on for years, even decades.  At every step of the way, there's a new set of power relationships.  There is perhaps only one institution in American life as rigidly, unforgivingly hierarchical as the military, and that's the judiciary.  (Like this, this and this, too.)

The Ealy case enacts the power relationship between courts, of course - the appeals court overturned the trial court.  Big brother beat up little brother.  Many murder cases (though not Ealy's) then go on to illustrate the power relationship between intermediate appellate courts and state supreme courts, and between state supreme courts and the U.S. Supreme Court, and between state supreme courts and federal habeas corpus courts, and so on.  At each step of the way, there's another power relationship that has nothing to do with the crime.

The Ealy case also illustrates yet another power relationship: that between branches of government.  In Ealy's case, the judicial branch condemned - in fact, nullified - the actions of the executive branch, and forbade the enforcement of the laws against murder enacted by the Illinois legislative branch.  The judiciary was enforcing its supremacy over the other branches. 

The rhetoric of judicial opinions traditionally acknowledges only one of the many power relationships involved in judges' decisions.  The fourth amendment, courts never tire of telling us, requires them to weigh competing interests, in order to achieve "a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers."  Cops and robbers.

But fourth amendment decisions about the legality of an arrest also - automatically and unavoidably - require "balancing" (that is, choosing) between the exercise of power by the police over criminals and the exercise of power by the courts over the police.

Once it's understood that not just one but two power relationships are directly on the line, decisions such as that of the Illinois Appellate Court in James Ealy's case become much easier to understand.  It's not that the judges were on Ealy's side.   They were on their own side.  What was at issue wasn't what Ealy did to the Parkers, but who was going to be in charge as between three judges and a bunch of ill-educated blue collar types who say "dis" for "this."

In the long term, no doubt, the judges the Appellate Court wanted the police to defeat the murderers.  But in the short term, they wanted to puff up their chests.  They just had to be in charge.

This is what Rockwell Gardens used to look like - one of those Stalinist Chicago housing projects consisting of multiple high-rises isolated on a kind of dystopian campus, this one three miles west of the Loop.  Apparently, the six buildings have all been demolished in the last couple of years - and the news of their imminent razing was enough to revitalize the entire neighborhood, as the Chicago Reader reported in 2005.

Back in the bad old days, Christine Parker was a pregnant 33-year-old grandmother living in the project with her two daughters, aged 15 and 13, and the 15-year-old's son, Jontae, who was three.  (The mind resists doing the math, doesn't it?)  They were all strangled to death, and Jontae was raped.

The bodies were discovered August 16, 1982, at 12:55 p.m.  Shortly afterward, the police began a canvass of nearby units, knocking on doors and asking if people had heard anything or could provide any useful information.  They went to the apartment James Ealy shared with his mother.  The cops spoke to the mother, but Ealy wasn't home.

That afternoon, police returned to the apartment.  This time Ealy was home and said that he had known the victims, but that was all.  The next day autopsies were performed, and around 5:00 p.m. detectives learned that the victims had been strangled with distinctive cloth ligatures.  Detectives returned to Rockwell Gardens and talked to five people who, they had discovered, were in the habit of spending a lot of time in Ms. Parker's apartment.  One of them was Ealy.

Sometime after 9:00 p.m., Ealy agreed to come to the police station.  They arrived around 9:40 and he was left alone in an interview room for about 20 minutes, then questioned for about half an hour.  He wasn't given Miranda warnings; he wasn't a suspect yet.  When the detective took a break to consult with his colleagues, he noticed Mrs. Ealy waiting for her son.  He let her in to be with him.

Around 11:00 p.m., the detective learned for the first time that Ealy had recently been arrested for an unrelated rape committed in the same Rockwell Gardens building.  This, of course, nudged him up the ladder of suspicion.  The detective returned to the interview room, Mirandized Ealy, and spoke with him for another 30 minutes.  Discrepancies were beginning to appear in his story.  Sometime in there Mrs. Ealy returned home.

Ealy signed a consent-to-search form.  Detectives took it back to the the housing project, showed it to Mrs. Ealy, and for good measure asked if she would consent to let them into the apartment, too.  She also signed a form allowing the police to search without a warrant.  At around 1:45 a.m., they found distinctive cloth items, prepared for garroting with knots on both ends, made from cloth matching the ligatures used on the Parker family.

At this point, I think everyone would agree, there was probable cause to arrest Ealy.

The cops took the incriminating items back to the station and confronted Ealy with them.  It was now the middle of the night.

Thereafter, defendant told the officers that on August 15, at about 11:30 p.m., he was near the Parkers' apartment and saw a large black man running from the apartment carrying a large bundle which he dropped. After picking up the bundle, defendant went into the Parkers' apartment and found the victims' bodies. He said he then left the apartment, taking the bundle with him to his mother's apartment, placed the bundle under his mother's bed and went to sleep.

This, I think everyone would agree, was virtually a confession.  He put himself in the apartment, in the possession of the materials used to kill the family, admitted he didn't alert authorities - and all in a package that a child (and especially not a child raised in Rockwell Gardens) wouldn't believe.

Ealy signed a second consent-to-search form, and detectives went back to Rockwell Gardens to pick up other items from his bedroom.  They discovered that Mrs. Ealy - who had evidently reached the same conclusions - had hidden some things, but when asked to retrieve them she did.  Detectives then returned with the new bundle of items, gave Ealy his Miranda warnings again, and he told them that

on August 15 he had been drinking with friends. He later went to the Parkers' apartment at approximately 11:30 p.m. and several members of the Parker family "made fun of his red eyes." Defendant then described to the detectives how he strangled the four victims.

The Illinois Appellate Court reviewed his four murder convictions, but its decision is opaque.  It reads rather like the mutterings of an eccentric relative talking to himself in the next room, when you overhear sentences and phrases that make sense in isolation but don't really add up to anything.  

My guess is that the judges were trying to say that (1) at some point Ealy was arrested, and (2) at some point police acquired probable cause to arrest him, but (3) those events occurred in that sequence, when they should have occurred in the opposite order.  However, the opinion is very vague as to when the key events occurred.

(You can read a close paraphrase of the opinion here.  The paraphrase faithfully mirrors the original's lack of precision, echoes its idiosyncratic use of the word "continuously" to mean "intermittently", and even repeats its use of "18 hours" to mean "three and a half hours" - Illinois slang, I presume.) 

(It was about three and a half hours from his first stationhouse interview to the discovery of the ligatures under his bed.  However, it was almost 18 hours from the time he left his apartment with police until he finished repeating the confession for a stenographer and signing his name to the transcript.  The latter time obviously has nothing to do with pinpointing the time of his arrest or the time at which his arrest became lawful.  The Appellate Court's use of the phrase "18 hours" was a type of dishonesty.)

The Appellate Court set Ealy free.  Flash forward to 2006, when Ealy is accused of murdering - by strangulation, who would have guessed it? - another person - and, surprise, another female.  During the intervening years, he served time for two rapes (including, it would seem, the one he committed before killing the Parkers), according to Chicago's suburban Daily Herald.  And does anyone believe he was caught every time he committed a crime?

In the last post, I talked about what happens when the police fail to arrest a suspect.  That failure can lead directly to further suffering - so directly that courts are prepared to let cops be sued for the failure.    (See post 223.)  If the logic of those tort cases were applied to the James Ealy case, we would have to conclude that the three judges of the Illinois Appellate Court caused the rape of at least one person, and that there's probable cause to think they caused the death of another, and the orphaning of three children.

It's a custom of the Supreme Court to kick off the term with unanimous reversals of dishonest Ninth Circuit decisions.  Here (and here, and here) are some selections from previous years.  (The Sixth Circuit gets unanimously reversed nearly as often, but with much less publicity - but that's another story post.)  This year, as the December days kept getting shorter, I began to worry that that young whippersnapper Roberts was going to break with tradition.  But my curmudgeonly fears were laid to rest earlier this week when the Supreme Court decided Carey v. Musladin on a 9-0 vote. 

Way back in May, 1994, in San Jose, Mr. Musladin came to his house belonging to his estranged wife's mother to pick up his 3-year-old son for a scheduled visit.  He brought a gun with him.  The estranged wife was at the house with her new fiance, Tom Studer.  See any potential for conflict there? 

Musladin knocked down his wife, then pulled out the gun.  The wife and Studer scrambled back to the house and Musladin fired, hitting Studer in the back.  Studer crawled into the garage, attempting to get beneath a car.  Musladin followed him and shot him in the head, killing him. 

Musladin didn't deny any of that, but claimed he thought Studer and his wife's brother were attacking him with a gun and a machete (usually people faking a self-defense just claim to have seen "something 'metallic' in [the dead man]'s hand", but Musladin was very specific that the family came after him with a big ol' jungle-hacker).  You can find a fuller statement of the facts in the dissent to the Ninth Circuit's original panel decision.  

On the first day of Musladin's trial, three members of Studer's family wore buttons with a picture of him.   Here's his parents holding a larger-sized copy of the very same photo.  There were no words on the buttons, simply the picture: a photograph of a young man.

Studer's parents say that three family members wore the buttons on the first day of trial, and that the buttons were two inches wide.   Make the OK sign with your thumb and middle finger and you'll have an idea of the buttons' size.   Here's a picture.

Musladin's defense attorney asked the judge to tell the three family members to remove the buttons, but the judge said no, and the lawyer let it go, not getting any but the vaguest information about them into the record.  As Justice Thomas's opinion for the Supreme Court reveals, the Ninth Circuit knew next to nothing about the matter it decided:

The record contains little concrete information about the buttons. The buttons were apparently two to four inches in diameter and displayed only a photograph of Studer. It is not clear how many family members wore the buttons or how many days of the trial they wore them.

Musladin, naturally enough, disliked being in prison for killing someone who self-evidently deserved to die - after all, Studer stole his woman.  Eleven years after the murder, ten years after his conviction, he managed to convince a judge that those buttons made his trial unfair. 

The Ninth Circuit found itself asked to decide which was worse: (1) shooting a wounded man in the head; or (2) being tried by a jury that might possibly have observed three members of the dead man's family wearing two-inch buttons with a picture that might theoretically be discernible from the jury box by a juror with exceptionally sharp eyesight or the aid of binoculars.  Naturally, the Ninth Circuit plumped for door # 2.

(Of course, the court didn't admit in so many words that it was deciding which was worse, but it did explicitly rule that the one infraction must be punished before you can even consider punishing the other - and what else can that mean except that the first is worse than the second?)

The fact that the Ninth Circuit could reach that result only by violating the very statute that gave it authority to review the state court opinion was no impediment, so long as the case remained on the west coast.  But then it traveled east.  Not one justice could be found to defend a line of reasoning that commanded the respect of a majority of the Ninth Circuit's judges. 

(Here's Dahlia Lithwick's report of the oral argument.  She's obviously much more sympathetic to Mr. Musladin than I am - note her description of the way in which Musladin followed the crawling Studer into the garage before executing him.  If her description were the full story, then he didn't commit first degree murder at all.)

The case brings together a number of the threads that run through the modern American criminal justice system, such as:

1.  The people whose rights are being decided should not be given notice or an opportunity to be heard.  The gist of the Ninth Circuit's ruling was that, by stepping into a courtroom,  Studer's family members surrendered their first amendment rights.   (That, indeed, is what Justice Stevens came right out and said.)  (See post 206.)  The Studers were given no notice that their rights were being decided, and much less were they permitted to participate in the decision-making process. 

2.  Jurors are impressionable, overly-emotional morons who should not be permitted to decide cases, if it can be prevented.   For example, the sight of a grieving parent wearing a tiny photograph of their dead child will put them in such a tizzy that they won't be able to think again for the rest of the trial.  

3.  Facts can be manufactured to suit any need.  Such as: the 12 jurors in Musladin's trial were put into a tizzy.  The Ninth Circuit had absolutely no evidence that any of the jurors even noticed the buttons, and much less that the slightest tizziness had occurred.  The complete absence of evidence didn't matter: the Ninth Circuit simply pretended it existed, and that was good enough.  That is, the Ninth Circuit relied on non-evidence to conclude that the jurors had done the same thing.

4.  In our democracy, the people have no authority to control the administration of justice.  Your beliefs, feelings and sense of justice don't count unless you are (in descending order of significance) a Supreme Court justice, a federal judge, a state court judge, a lawyer, or, in certain unusual circumstances,  a party to the proceedings.

5.  The trial is everything.  There is no big picture.  There is no reality - or no reality a judge needs to respect - outside the courtroom.  That's why, 11 years after Studer's death, after Musladin's jury convicted him and the conviction was upheld on appeal, the Ninth Circuit put quotation marks around the word "'victim'" when used to describe the dead man.   A person who is shot to death doesn't become a shooting victim when he's shot, but only when a judge decides to recognize that fact.

I usually don't post in response to comments because I have no desire to emulate - or even appear to be emulating - those mean-spirited professors in the New York Review of Books or The New Republic responding to letters-to-the-editor.  However, Young PD's thoughtful comment to post 206 raises too many interesting topics to pass up.  He or she wrote:

I find it hard to believe that you think that cheering sections for parties in trial should be allowed. In my opinion there is a big difference between keeping something relevant from a jury because of its potential prejudicial effect and allowing family and friends of a victim who have been told by the cops and the prosecutor that this is the guy, to come in and cheer for the state.

But if they formed a cheering section they would disrupt the trial, and that would be different.  If a banner was strung across the back of the courtroom, as Justice Kennedy suggested, then obviously the courtroom staff was involved, either in hanging it or in not taking it down, and that's different again.

But if Justice Stevens is right, and spectators have no first amendment rights at all, then the judge could have prohibited Studer's family from carrying his photograph in their wallets and purses.  (It's no answer to say a judge wouldn't know about concealed photographs - as everyone who has visited a courthouse in the last few years knows, non-judges have absolutely no fourth amendment rights inside a courthouse.) 

Then, too, do families of murder victims really come to the courthouse to cheer on the state?  I think it's always a mistake to think of crime, violence, death, justice, suffering and grief in terms of trials.  The trial is an itty-bitty part of a very big thing.  The victim's family doesn't attend the trial out of enthusiasm for the prosecution.  (Indeed, in my experience, families are often suspicious of prosecutors, even hostile, expecting at any moment to have the rug pulled out from beneath them.) 

The family attends the trial because it's one part of the worst thing that has ever happened to them.  They don't want the prosecution to win; they want justice for their loved one, and peace within their own souls.  The verdict is no more than a signpost along that very long road.  For the lawyers and the judges, it's the destination.

That's not because we're shallow, but because we're involved in the case only through our professional lives.  The deaths of strangers have very little emotional meaning to anyone, anywhere.  Lawyers and judges can read about Musladin's execution of Tom Studer with the same emotion with which they - and everybody else - scan the obituary page.   If you don't recognize the name, it really doesn't mean very much.  Tom Studer's family can't do that.

It's not that the victim's survivors are viewing the case emotionally, while lawyers and judges are objective.  Rather, the emotion experienced by the lawyers and judges is inward-directed.  (Monitor your emotions as you scan the obituary page.  It's not that you're emotionless, it's just that your emotions are occupied with things other than the names of dead strangers.)  During the trial, it really is all about me, about the impression I'm making on the jurors, about what I need to accomplish with this witness, and what I need to do after dinner to get ready for tomorrow. 

For a majority of the judges of the Ninth Circuit, Tom Studer's death was an opportunity to act out the public ceremony of self-righteous superiority while simultaneously experiencing the illicit thrill of exercising arbitrary power - apparently a mixture of speedball-like addictiveness.  I imagine it's rather like the emotional experience of priests who preside over solemn mass knowing they'll be fondling the altar boy in the sacristy before the last parishioner is out the door.

This is all very different from the emotional experience of the victim's family, which is outward-directed.  They're not more emotional; their emotion is more noble.

The great error of judges and lawyers - the error that I think is right at the heart of so much that has gone haywire in our system - is the solipsistic self-importance of thinking that what we do is the important thing.  It's as if UPS, DHL and FedEx drivers all became convinced that the highest priority of a package-delivery service is to load the truck well.  If it's not well-loaded, a proper sense of priorities requires us to unload and start all over again.  As for those people who make such a big deal about wanting to receive their packages?  Tell 'em to take off those damn buttons or we'll empty the truck again.

In Cleveland, a prosecutor was late for court and the judge responded by dismissing the case.  Here's how Judge Eileen Gallagher explained her action:

"You don't show up - too bad. Don't treat me like a punk and not show up in court without giving us the courtesy of notifying us where you are."

Gee, think she might have been acting out of anger?  Or spite? - because the article suggests she knew  exactly where the prosecutor was: he was preparing a petition to get her removed from the case. 

I actually agree with Judge Gallagher up to a point.  You can't be 45 minutes late for a trial.  If nothing else, it's terribly rude to all the other people who made sure to be there on time, and inconsiderate of everyone whose cases could have been heard during the down time.  But there's an easy way for a judge to deal with such rudeness: contempt of court. 

Just a week earlier, Judge Gallagher sentenced a 17-year-old to 30 days in juvie for attacking a deputy in court (he was protesting his big brother's sentence, and his outburst reminded the judge that the panic button beneath her bench no longer functioned).  Thirty days might be a bit stiff for showing up 45 minutes late for trial, but a substantial fine would have gotten the prosecutor's attention, and that of his boss.

Instead, she dismissed the case, even though the prosecutor wasn't a party to it.   The prosecutor wasn't even harmed by the dismissal, unless you count the rage he undoubtedly felt.   In the long run he received a personal benefit from it: a nearly iron-clad guarantee that he will never have to appear in front of Judge Gallagher again, because after such a public spitting match, complete with newspaper editorial, it would be unethical for her to fail to recuse herself from his cases. 

That doesn't mean nobody was hurt by the judge's pique.  There was the victim,  a 16-year-old girl.  And the people of Cuyahoga County, what few there are left, who lost a little more of their power to decide for themselves how much sexual violence against children to tolerate in their community. 

The question for the judge was simply: which was more important, (1) her sense of being treated with insufficient respect, or (2) the people's right to enforce democratically-enacted laws against sexual violence?

While the experience makes it less likely the victim, or her parents, will continue to cooperate with the prosecution - the way we treat child victims of sex crimes, it's only a matter of time before some judge concludes that cooperating with the legal system is per se child abuse - at least it appears that the prosecution isn't barred by the double jeopardy clause.

In March, 2001, prosecutors in an Atlanta vehicular homicide trial thought the judge said she would begin the next day's session at 9:30.  They showed up at 9:15, but unfortunately for them the judge had been ready since 9:00.   Forced to choose between upholding her sense of her own importance and upholding the law against one person killing another, since-retired Judge Alice D. Bonner dismissed the homicide charge.

(Seemingly leavening her self-importance with cynicism, Bonner responded to the public uproar by ordering a new trial, although jeopardy had attached in the prior trial when the jury was sworn in.  She then recused herself, leaving it to the next judge to spot the obvious double jeopardy violation.)

In that case, the victim's second-grader wrote a letter that might have reminded the judge that, under one view of the matter, some things are actually more important than her amour-propere.   It's a reminder many other judges could use.