JUDGING CRIMES

We live in the Romantic Age of judging.  I'm not referring to the mash notes judges sometimes send each other, e.g., "the sagacity of the numerous Ninth Circuit judges who have written before us."  That's from Ninth Circuit Judge Ferdinand F. Fernandez, and the only whiff of the sage he gives off comes from dinner.  (See post 143.)   That level of infatuation, or self-infatuation, qualifies as romantic in some sense, or even several senses, but only one of them is the sense I have in mind.

I'm talking about the lit-crit kind of Romanticism.   The New Yorker recently reviewed Ann Wroe's paean to Percy Bysshe Shelley.  Ms. Wroe was apparently concerned that Shelley, one of the original better-to-burn-out-than-to-fade-away types, hadn't written a sufficient number of such paeans to himself.   In his review, Adam Kirsch described Shelley's politics, which were ahead of his time in rather distressing ways, such as his  enthusiasm for liquidating the intolerant in order to usher in an era of universal tolerance.

Another hallmark of Shelley's politics, according to Kirsch, was his "indifference to reality."  And that's what first reminded me of the characteristic American style of judging.  The idea that courts should occupy themselves with courtroom representations of reality, and hold reality itself at bay, is at the very heart of the judicial project. 

Jurors in every American jurisdiction are told, in no uncertain terms, to base their verdicts strictly on what they hear in court.   What they hear is filtered by the rules of evidence - in their codified form, a 1970s phenomenon - which after defining "relevant evidence" are mostly devoted to cataloguing types of relevant evidence that must be concealed from the jury.  

The phrase "constitutional criminal procedure"  refers to a body of case law developed since the 1960s that consists of almost nothing but the systematic widening of the gap between the reality outside the courtroom and its representation inside.   And a juror who possesses relevant information before the trial begins will be "struck" from the panel, the violent term indicating something of the horror with which such independent knowledge is viewed. 

There are elaborate reasons for all of this, and some of the reasons make sense.  My point isn't to argue with them, but to point out their common denominator: the Shelleyan indifference to reality.

Kirsch's review includes another passage striking, so to speak, even closer to the Romantic heart of judging:

But his political beliefs demonstrated the same contempt of consequence, the same elevation of pure motive over practical effects, the same lack of self-awareness.  These qualities helped to make Shelley a genuinely illiberal thinker, whose politics verged at times on the totalitarian.

Who else do we know that trumpets pure motives while demonstrating a contempt of consequence?  Our violent crime rate today is three times what it was in 1960, before the decisive judicial intervention in law enforcement.  Have you ever heard a judge acknowledge the possibility that the two phenomena might be related?  

Our prison population has grown incredibly since 1980.  Have you ever heard a judge acknowledge the possibility that the difficulty of convicting guilty people might have some connection to the length of sentences eventually imposed?  Increasing sentences is almost the only lever the legislative branch has for controlling the judiciary's disposition of criminal cases, which makes increasing sentences for drug crimes a rational - if, as I believe, socially-destructive - response to judicial decisions suppressing physical evidence virtually at random in the name of an ever-morphing fourth amendment.  (See post 126 and post 53.)

Judges' rhetoric distances them from the consequences of their acts.  Justice Scalia, for instance, acknowledged that one of his decisions would "have the effect of allowing the guilty to go free" - implying that the only consequence would be a reduction in the judicial system's efficiency and not, for instance, the repeated infliction of physical pain on vulnerable people.  (See post 274.) 

The Court could only forestall that unfortunate outcome, Scalia wrote, if it were impermissibly to "vitiate constitutional guarantees" - although the constitutional guarantee in question was invented just two years earlier in another opinion written by the very same Justice Shelley.  So he recognizes in himself the power to invent new constitutional guarantees, but when faced with their unfortunate consequences says he's powerless to alter them.

Again, perhaps this two-facedness - which is deeply ingrained in American judges at all levels, and accepted without demur by virtually all American legal academics - can be justified doctrinally.  But it's far easier to explain on psychological grounds: power is gratifying, responsibility isn't.

(I actually would reverse Kirsch's terms in one particular, though: I think it's more accurate to say judges express contempt for reality and indifference to consequences rather than vice versa.)

Alabama Judge Stuart DuBose, with a name out of Tennessee Williams and ethics out of Warner Brothers' 1930s gangster films, was profiled in post 191.  Back then I mentioned the consideration shown by the Alabama disciplinary board, which thoughtfully scheduled DuBose's suspension to occupy the dead time between his election to a judgeship and his ascension to the bench, so as not to disqualify him from an office he was so theatrically unfit to assume.

The voters of southern Alabama knew that DuBose, if not strictly speaking crooked, wasn't exactly straight.  But they elected him anyway based on his campaign's hints that his opponent wasn't straight, either - was, in fact, an Idaho Republican, if-you-get-my-drift.  (In fairness to the voters, DuBose probably drafted on the name ID earned by his mom the county commissioner.)

Last Friday those same voters got to hear the next shoe drop in the will case:

A Washington County judge has been ordered to repay $1.2 million to a woman he represented in an estate case and give her back 600 acres of land, according to a Mobile County Circuit Court ruling.

Stuart DuBose, who was elected last year to serve as circuit judge over Choctaw, Clarke and Washington counties, responded in a letter faxed to Mobile County Circuit Judge John Lockett by saying that Lockett's ruling was "not legal" and "immoral."

"This order must not become public knowledge," DuBose wrote. "It must not be recorded. It will ruin me professionally and further ruin me financially."

DuBose's fax is an example of what is called in the trade "ex parte-ing the judge" (no, really, we say that - we can't help it).  And while lawyers' ethical rules are written with such care that it's nearly impossible to violate most of them, ex parte-ing the judge is probably the clearest-cut ethical violation that doesn't involve outright criminality.   

It's also what Latvian super-lawyer Andris Grutups is (if you read between the lines) accused of doing - though Grutups at least had the sense to do it (allegedly!) by phone rather than in writing.  (See post 305.)   Isn't it thrilling how quickly the ex-Communist countries are developing legal cultures as sophisticated as our own?

Latvian journalist Lato Lapsa, who (if you follow the link) once resembled a red-headed Jack Nance from Eraserhead,  now wears more-becoming non-nonsense steely gray hair.  His name is more literary than most.  A Dogpile search for stories about him brings us Virgil:

bina manu lato crispans hastilia ferro. Cui mater media sese ... aetheria quos lapsa plaga Iovis ales aperto. turbabat caelo; nunc terras ordine longo...

and Ovid:

neve sit errandum lato spatiantibus arvo, conveniant ad busta Nini lateantque sub umbra ... dumque fugit, tergo velamina lapsa reliquit. ut lea saeva sitim ...

Lapsa recently ignited a pretty spectacular judicial scandal in Latvia:

Journalist Lato Lapsa has unveiled a series of transcripts that are allegedly wiretapped phone conversations among prominent figures in Latvia’s judiciary system from 1998 to 2000. ... The tapes primarily concern conversations between high profile lawyer Andris Grutups and high ranking members of the judiciary. If they are found to be authentic, then the tapes could imply corruption in the political elite, business elite and the judiciary system as a whole.

That cautious report, carefully refraining from saying what is actually contained in the transcripts, is from the Baltic Times, which a day earlier had described the transcripts this way:

The transcripts date back several years and appear to originate in the office of leading lawyer Andris Grutups. They record conversations between Grutups and various members of the judiciary suggestive of a relationship that is more collusory than would generally be considered acceptable.

The Finnish Helsingin Sanomat is also circumspect in describing the recordings:

In the recordings, the lawyer and the judges engage in confidential discussions of the kind that violate rules of professional conduct. If the tapes prove genuine, they would call the impartiality of the system of justice into question.

 One judge whose voice was said to have been heard on a tape, has reportedly submitted his resignation.

Anyway, you get the general idea.  The Baltic Times reports that the country's prime minister responded in a classically Stalinist way, interpreting the revelations as a kind of treason:  "'This is an opportunity to destabilize the political situation in the country, to ruin trust in the prosecutor’s office and justice system. Obviously somebody is interested in such destabilization,' he said."  It just goes to show that you can take the Baltic nation out of the USSR but you can't take the USSR out of its politicians. 

But if the prime minister could have plausibly contended the tapes were fake, wouldn't he have chosen to spin the story that way instead?  The lawyer supposedly implicated also indirectly confirmed the authenticity of the transcripts, asking "if 'placing a phone call' was a crime."

Lapsa received the transcripts anonymously at the end of last year but held on to them until he could publish a book about their revelations.  Without knowing anything at all about either him or Latvian politics, his explanation for the delay is so true to small-state politics in the US that I believe him:

Lapsa told journalists that he published the transcripts in order to ensure public opinion would weigh in on the matter and that the case was thoroughly investigated. The aim of the book was “to raise enough public interest and awareness about the case, so as not to allow our dear investigation and law enforcement institutions to drown this case as has happened with other cases,” Lapsa said. The journalist said that he remembers a number of cases in which information had been sent to the prosecutor’s office, but the case was not launched and “died naturally.” He explained that these cases indicate that it is not enough – “not in this country, not at this time” – to simply send the information to the prosecutor’s office, and that public awareness about the case must be raised as well.

As an indication that his strategy might just possibly produce some results, we have this story from today's LETA:

Prosecutor General's Office has requested from Riga Regional Court information on civil suits reviewed between November 1, 1998 and April 1, 2000 by seven judges whose names possibly correspond to those mentioned in the new book "Tiesasanas ka kekis" ("The Court Case Kitchen"), released in Latvia last week.

(The Court Case Kitchen has a distinctly Babelfishy smell to it.  The Baltic Times goes with Cookhouse Legislation, which isn't any better.  The Court's Kitchen, maybe?  Or Cooking Up Cases?)

Stereotypes are odious, yet first impressions are often correct.  For instance, in high school I learned that if a boy who presented himself as dangerous wished to occupy the square foot of the hallway in which I was then located, it was best to cede the territory to him for the duration of the passing period, or however long he wanted it.  He would lift his leg, mark it as his, and further unpleasantness was avoided. 

Now, I didn't know anything about the boy as a human being.  I hadn't taken the trouble to find out what made him tick.  My reaction was based entirely on superficialities of dress, manner, psychopathic stare, and so on.  Shallow?  No doubt.  But wrong?  I'm not convinced.

Similarly, when I see a person younger than 30 smoking a cigarette, I admit that I immediately jump to the conclusion that the person is either (a) stupid or (b) trying too hard.  Pre-judging?  You bet.  But wrong?

Now, take someone who drives a Hummer.  Is it wrong to assume without further evidence that such a person is not deeply concerned about the environment, and untroubled about causing inconvenience to other drivers (not just endangering the people behind them by blocking their view but worsening rush hour by occupying excess pavement)?  Is it mere prejudice to think that no one would willingly drive an expensive but fragile car that gets 10 mpg except as an expression of some fundamental psychological impairment?

No, it's not.  Take, for example, Dover, NJ, Municipal Judge George Korpita.  In 2003 he was in the news for driving a Hummer.  Recently he was in the news again in connection with his new (or additional) vehicle, a Maserati, another vehicle marketed to take advantage of the over-compensating:

Hartzman's complaint states that on May 4, he and two friends were at the Cafe Navona Restaurant in Rockaway Borough, where Korpita has been the judge for 10 years. At about 11:20 p.m., one of Hartzman's friends asked him to join her in the parking lot while she had a cigarette. While in the lot, Hartzman "may have been leaning against an automobile" but denies scratching it, according to the complaint.

Korpita soon came out of the restaurant, yelling, threatening violence and using profanity, according to the complaint. "Get the fuck off my Maserati," said the judge, who called the plaintiff an "idiot" for not knowing how valuable the car was, according to the suit.

Hartzman responded by calling the judge an "asshole" and a "pompous jerk," then went back inside. A few minutes later, two Rockaway Borough police officers handcuffed and arrested him, and took him to a municipal holding cell, the suit says. Hartzman claims he was not photographed, fingerprinted, advised of his offense or read his Miranda rights.

Hartzman seems to have looked into the judge's soul with a good deal more perceptiveness than our President looking into the Tsar's.  But it's what happened next that separates the garden-variety self-important judge from the sort of seriously-damaged person who should never be trusted with a judge's power over other human beings:

Hartzman's criminal defense attorney, Morristown solo James Porfido, entered his appearance before Korpita on May 10. Korpita called the defense lawyer later that day to discuss the case, and Porfido says he expressed concern that the judge's involvement was a conflict of interest. Korpita said he would transfer the matter to another municipal court, but he repeated that he would not agree to a dismissal unless Hartzman paid the bill, according to the suit. Porfido confirms that Korpita conditioned the dismissal on Hartzman's payment.

On May 17, the judge wrote to Porfido and enclosed an estimate from Ferrari/Maserati of Central Jersey for repair of the scratches. According to the suit, Korpita's letter read in part: "I would be willing to end the matter if he pays me the restitution, agrees not to go to Navona which I frequent and apologize. I am not happy with his actions but don't want to see him have a problem with his securities license."

Hartzman is a securities dealer and says he paid the money because he feared a conviction would endanger his license.

That's right.  According to the complaint, Korpita heard his own case, conditioned the judiciary's handling of the case on monetary payment to himself personally, demanded that his victim be banished from a public restaurant, and capped it all by threatening his victim's livelihood.

But, I'm glad to say, our legal system has leaped to the rescue.  Not in the form of judicial disciplinary proceedings, but in the good old-fashioned American way: a tort suit.  Hartzman has already succeeded in making all of America aware of Korpita's hilariously-self-advertised (but entirely accurate) sense of personal inadequacy.  Hopefully he'll get a car out of it, too, which he can trade in for something useful.

The ABA Committee's daft proposal to institute a regime of secret trials in America - even if only some prosecutions would be made secret, and then only after the fact (see post 300) - shows how far we've evolved from medieval concepts of justice:

"The common view of the medieval justice system as cruel and based around torture and execution is often unfair and inaccurate," said University of Cambridge historian Helen Mary Carrel. Most criminals received gentle sentences merely meant to shame them, Carrel said, with the punishments often carried out in the open so townspeople could bring them charity.

That's from LiveScience.  The whole point of the ABA Committee's suggestion was to reduce the shame factor.

Over at German Joys (German Joys?) law professor (I mean, Herr Doktor Professor) Andrew Hammel reproduces a chart from a subscription-only scholarly journal giving German murder rates from the 1300s to the present. 

The medieval era, in addition to being smelly, was extremely violent and dangerous; in most places, the murder rate was between 20 and 100 per 100,000. Now, in all European societies, it's declined to around 1. Hooray for modernity!

I came across this table while looking for a similar table for England that I saw recently in a review of Gregory Clark's controversial A Farwell to Alms, a kind of Freakonomics-goes-to-history-class.  I couldn't locate the chart on the Web (and I can't remember where I saw it originally) but it gave comparable figures, which is what started me on this post.

From a 1994 International Herald Tribune account of an academic conference, we read:

Eric H. Monkkonen, a professor of American urban history at the University of California at Los Angeles, said: "What we are finding is that violence is not an immutable human problem. There really has been a civilizing process" in which, scholars say, an increase in state power and courtly manners beginning in the 16th and 17th centuries helped curb impulsive, violent behavior.

New data presented at the conference by a Dutch scholar, Pieter Spierenburg, showed that the homicide rate in Amsterdam, for example, dropped from 47 per 100,000 people in the mid-15th century to 1 to 1.5 per 100,000 in the early 19th century.

The late Eric Monkkonen was a true giant, a tireless researcher and skillful writer, full of insights.  (And for those who doubt the data are there  - wouldn't it be more surprising if our ancestors didn't keep records of things like murders and executions?)

Of course, definitions of "murder" vary tremendously from age to age, and country to country (even state to state, in the U.S.), and some places have efficient and honest law enforcement and tidy record-keeping bureaucracies.  Others don't.  And some murders just go undetected, depending on such things as the ease of concealing a body.  (Deserts, such as New Mexico's, are quite useful.  I imagine jungles, like Colombia's, are even better.)  

So comparing statistics, even for such a relatively unambiguous offense as murder, is at best inexact.  Still, looking at  current international rates provides a certain perspective. 

According to this collection of statistics, the latest available figures have Colombia as the most homicidal nation in the world, though you have to assume the "War on Drugs" death toll is included in those numbers (in contrast to the German figures reproduced at German Joys, which filtered out such statistical blips as the Thirty Years War).   However the number was derived, Colombia's homicide rate was calculated at just under 62 per 100,000. 

Then there's South Africa at around 50, Jamaica and Venezuela at 32, Russia at 20.  It drops pretty precipitously after that, with the US sliding into 24th place at about 4.3 per 100,000.  (The Bureau of Justice Statistics pegs it at a little more than one funeral per 100,000 higher than that.)

Now here's a Los Angeles Times story from last Sunday:

Homicide is not fair, hitting hardest among Latinos and especially among blacks. Latinos are killed at more than three times the rate of whites, while blacks succumb to homicide at three times the rate of Latinos, the Times analysis shows.

Adult males are the eye of the storm. The national homicide rate is about six deaths per 100,000 people each year. But for Latino men in their 20s in Los Angeles County, the rate is 52 deaths, and for black men, 176 deaths.

That's right.  176.  And that's a great deal more than 76% worse than medieval Germany, because in medieval Germany they didn't have medicine, much less modern medicine.  If you were stabbed, it was time to work out whether to address angels with "Sie" or "du."  Today, in the City of Angels itself, our Second City, we tolerate a rate of violent death that would have shamed Henry the Lion.

Imagine if, say, federal judges were murdered at that rate.  According to the Administrative Office of the U.S. Courts, there are "about 2,000 judicial officers, including active and senior appellate and district court judges, bankruptcy judges, and magistrate judges" currently reveling in the lavish perks.   If federal judicial officers were murdered at the same rate as young Black men in LA County, we'd have 3.5 additional vacancies on the federal bench every year.

That, needless to say, would be a crisis.

This is an almost-embarrasingly old-fashioned style of rhetoric (it dates from the 1920s), but it pretty much captures the obeisance paid to the Supreme Court by the American legal profession:

None of us desires or is able to dispute the judgments of the Supreme Court. The Court in the last analysis is always right, because the Court is the single constitutional instrument given to the American people for the solution of its basic problems. ...  One can be right only with the Court, and through the Court, for the Constitution has no other way of being in the right. The English have a saying: “My country – right or wrong.” With far more historical justification we may say of the Supreme Court, whether we agree with its decisions in individual cases or not, it remains our Court ...  And if the Court reaches a decision which one or another of us thinks unjust, he will say: just or unjust it is the Court, and the Constitution, and I shall support the consequences of the decision to the end.

Justice Jackson made the same point much more pithily, and with far greater wit (the 1924 speaker was reputed to be totally humorless): "We are not final because we are infallible, but we are infallible only because we are final. "

Of course, Trotsky wasn't really talking about our Supreme Court - I've retouched his speech about fealty to the Party.   The block quote links to an old Trotskyite essay with the title, "Trotsky on substitutionism," and substitutionism (of which the 1924 speech is cited as an example) is something very familiar to American lawyers.  The mode of thought signified by that unwieldy name is drummed into us in law school, and few lawyers question it thereafter. 

According to Yigael Gluckstein / Tony Cliff, 

 Quite early in his political activity, when only 24 years old, Trotsky prophesied that Lenin’s conception of party organisation must lead to a situation in which the party would “substitute itself for the working classes”, act as proxy in their name and on their behalf, regardless of what the workers thought or wanted.

Lenin’s conception would lead to a state of affairs in which “the organisation of the party substitutes itself for the party as a whole; then the Central Committee substitutes itself for the organisation; and finally the ‘dictator’ substitutes himself for the Central Committee”.

Stalin, of course, proved Trotsky right.

American lawyers do it differently: we substitute "majority opinions of the Supreme Court" for "the Constitution."  In practical terms, we accept the Court is the Constitution: the meaning of the Constitution really does change with each new opinion coming out of that mausoleum-shaped pile of marble - even when accepting the legitimacy of the new doctrine means accepting the illegitimacy of the Court's previous doctrine.   The Court is serially infallible.

Each of the state supreme courts has similarly, if less-convincingly, tried to meld its identity with that of its state's constitution.  And lawyers, like the surviving remnant of Stalin's Central Committee, are sufficiently intimidated that we act as though we really think Chiffon is butter.

Last Wednesday the feds indicted Pennsylvania Superior Court (i.e., appellate court) Judge Michael T. Joyce

on three counts of mail fraud and six counts of money laundering related to insurance claims he made after an August 2001 auto accident. Judge Joyce said he was so seriously injured after an SUV rear-ended his Mercedes Benz that he was unable to golf, swim, jog, scuba dive or otherwise exercise regularly. He received $440,000 from Erie Insurance Exchange and State Farm insurance companies.

After an 18-month investigation, the FBI and IRS said that while making those claims, Judge Joyce was golfing, scuba diving and otherwise doing what he said he couldn't do. He even applied for, and received, a pilot's license. On that application, he ''indicated he had no injuries, physical problems or physical limitations,'' according to the indictment.

Judge Joyce routinely presides over Superior Court cases involving insurance, yet, he had the audacity to use his judicial letterhead to press for compensation. ''He clearly presented himself as a judge,'' noted U.S. Attorney Mary Beth Buchanan, ''and it is possible the insurance company considered that in weighing his claim.''

That's from the Allentown Morning Call.  In the press release from the office of Pittsburgh's U.S. Attorney Mary Beth Buchanan, additional details are given:

According to the indictment, during the same time period that Joyce made these claims[ of being unable to play golf or exercise], he played multiple rounds of golf in Runaway Bay, Jamaica, Tampa, Florida, Findley Lake, New York, and Fairview, Pennsylvania; went scuba diving in Runaway Bay, Jamaica and renewed his diving instructor certificate with the Professional Association of Diving Instructors; went roller blading on multiple occasions; and exercised at the Nautilus Fitness and Racquet Club, in Millcreek Township. 

The press release also alleges that the car accident was a low-speed affair - 5 mph, says the AP - and that "neither medical nor law enforcement personnel were called to the accident scene".  Sound like a $440,000 claim to you?  My guess is that the insurers decided to pay up without fuss because he was a judge - and launched their investigation at once.   (Wonder if their investigator got an expense-account trip to Jamaica, or if they hired a local tec?)

It's worth remembering that U.S. Attorney Buchanan narrowly escaped the honor of being axed last winter, which to a cynical person might suggest she's someone who, under pressure, agreed to play ball.  (See post 275.)  And Republican politics do seem to be involved in the Judge Joyce case, though perhaps not in the way you'd expect:

In addition, the indictment alleges that Joyce, in support of his claims, asserted that he had received the Republican endorsement and nomination in the 2001 election for a seat on the Pennsylvania Supreme Court in 2002.  In fact, he had neither the endorsement nor the nomination.

His claim, apparently, was that he would be sitting on the Supreme Court, pulling down the bigger salary, but for the debilitating pain of the car accident, which curtailed his campaigning.

All very entertaining, provided you don't have any appeals pending in Pennsylvania's appellate courts.  But now listen to "Joseph A. Massa Jr., chief counsel for the state Judicial Conduct Board, which investigates and prosecutes charges of misconduct by judges."  He told reporters that "Joyce is not legally required to step down because of the indictment since the charges do not directly involve his court-related duties". 

I don't doubt that Massa is correct on the law (and, even if he's wrong, it's unfair to accuse him of "foggy thinking"), but it's an interesting law.  The AP quotes Judge Joyce himself saying "he is innocent until proven guilty" - which of course is bogus.  He's presumed innocent, a different thing altogether, and then only for purposes of a criminal trial.   

There's an excellent reason for the presumption: "[i]f convicted, Judge Joyce could be sentenced to 120 years in prison and fined up to $2.25 million."  (Oh, those federal sentencing laws!)   On the other hand, if he's removed from the bench, his maximum sentence is: practicing his profession, the same as he did before he ascended the bench.  And many of us consider practicing law to be qualitatively different from a stretch in stir, for all that it can be a trifle unpleasant to appear in front of certain judges.

Should we really apply the same burden of proof to 120-year sentences and removing a lawyer from the public payroll?

The Philippine Supreme Court thinks so.  As explained by the Bohol Chronicle under the charming headline: "'Kissing' Judge Acquitted",

The Supreme Court yesterday dismissed the sexual harassment charges filed against a judge of Davao City Regional Trial Court Branch 16 by a court stenographer for her failure to prove her allegations beyond reasonable doubt.

The kissing judge himself,  Emmanuel Carpio, was anything but charming.  According to the Supreme Court order, the court reporter alleged that the judge cornered her when she was alone and forcibly kissed her.  When she didn't respond as he wished he made his chambers into what might be considered a hostile work environment: "There were times when respondent judge would place his gun on top of her table which would give her a scare."

An investigating judge found the charges substantiated and recommended Judge Carpio be suspended for three months.  But the Supreme Court disagreed:

In administrative or disciplinary proceedings, the burden of proving the allegations in the complaint rests on the complainant.  While substantial evidence would ordinarily suffice to support a finding of guilt, the rule is a bit different where the proceedings involve judges charged with grave offense. Administrative proceedings against judges are, by nature, highly penal in character and are to be governed by the rules applicable to criminal cases. The quantum of proof required to support the administrative charges or to establish the ground/s for the removal of a judicial officer should thus be more than substantial; they must be proven beyond reasonable doubt.  To borrow from Reyes v. Mangino:

           Inasmuch as what is imputed against respondent Judge connotes a misconduct so grave that, if proven, would entail dismissal from the bench, the quantum of proof required should be more than substantial.      

Of course, three months' suspension isn't exactly "dismissal from the bench", but that's only one example of slippery language: a moment before hearing about dismissal from the bench, we're told that proceedings against judges are "highly penal in character."  There you have it: dismissing a judge is "highly penal", the equivalent of a penitentiary term.  And since removal (or, apparently, even a temporary suspension) is the equivalent of being thrown in a Philippine prison, naturally the two must be treated the same.

Returning to Erie, Judge Joyce is an appellate judge, which means that his word is - quite literally, as lawyers know - law, in most of the cases that come before him.  A grand jury made of Pennsylvania citizens found probable cause to believe he's a crook and a liar.  Why should the people of Pennsylvania be forced to submit to the law as announced by someone they have good reason to believe is a crook and a liar? 

If Judge Joyce's guilt can't be proved beyond all reasonable doubt, then fine, let him practice law and defend against the insurance companies' civil suits.  But probable cause to believe a judge is a crook is too much - way too much - evidence to allow him to remain on the bench. 

The Pennsylvania Supreme Court agreed, sort of.  The justices suspended Judge Joyce with pay.  As the Philadelphia Daily News observed, "With suspension, judge has more time for golf".  This morning Judge Joyce announced his retirement, last week's bravado having largely seeped away over the weekend.

The cultural illiteracy of lawyers, a highly-educated and hyper-articulate lot, is a mystery to me.  How can  intelligent people know so much and so little at the same time?   Take, for example, Chief Justice Rehnquist quoting Iago, literature's greatest lying defamer, to demonstrate the preciousness of reputation. 

Shakespeare thought he was being ironic, making the groundlings shout, "Don't listen to him!", and demonstrating how overblown rhetoric can contribute to a sensible man losing his senses.  (Who honestly believes his or her purse is "trash"?)  But our Chief Justice proved as gullible as Othello himself.

The latest example comes from an ABA Committee: "A criminal conviction is, in a very real sense, a 'mark of Cain,' which sets its bearer permanently and indelibly apart from the rest of society."   The committee's sole cited  source for that allusion was a newspaper article by blogger Webb "I shoulda stayed a judge" Hubbell (whose notoriety, it might be argued, makes his experience a wee bit atypical among convicted felons, and whose credibility, one might have thought, would be relatively low among lawyers, in particular). 

The committee didn't cite to the other, better-known source for the phrase: 

 And the LORD said unto him, Therefore whosoever slayeth Cain, vengeance shall be taken on him sevenfold. And the LORD set a mark upon Cain, lest any finding him should kill him.

Or, if Tyndale is too 16th-century for your taste, here's the New International Version:

Then the Lord put a mark on Cain so that no one who found him would kill him.

The Contemporary English Version (a/k/a Today's English Version) may win the award as the clearest of all:

So the LORD put a mark on Cain to warn everyone not to kill him.

The "mark of Cain" was placed upon its bearer to protect him, not to cast him out from society.  The protection was necessary because he was already set apart from the rest of society ("a fugitive and a vagabond shalt thou be in the earth"). 

So when the ABA committee said that a criminal record is "in a very real sense, a 'mark of Cain,'" it was saying the opposite of what it meant.   Furthermore, since the original mark was, you know, a mark (here's a variety of translations of 'owth from the Hebrew), the committee was using "in a very real sense" to mean "figuratively speaking" - a wordier version of the illiterate use of "literally" as an intensifier. 

The committee's proposal was to seal all criminal court records, in defiance of the sixth amendment's guarantee of a public trial:

The commission wanted the ABA to favor legislation at all levels, "to the extent permitted by the First Amendment," to restrict access to records of dismissed or acquitted indictments, and records of past convictions after a period of time, to law enforcement agencies only.

Now, even someone as commercially-inept as myself can see that if the government records were sealed after initially being made public, a private market would instantly develop.  The committee's proposal would  make criminal records as unreliable, as difficult to correct, and as routinely relied upon as credit reports are today.  (Hey, but you could hire a lawyer to clear up the misunderstandings!)

But its absurdity is the least-interesting thing about the proposal.  Like Whitman, it contained multitudes.   It was  an anthology of the modern American judiciary's greatest hits.  First, there's the preference for constructed reality over truth.  The whole point of the proposal, after all, was to prevent people from discovering truthful information, and instead to trick them into believing in an alternative reality - exactly what criminal court judges do to juries when they suppress or otherwise exclude relevant evidence.  Truth is not a legal value.

Second:  But above all else, truth about the legal system is to be tightly-controlled.  The people shouldn't be told more than is good for them.  It's more important for the judiciary to have a good reputation than to deserve one.  (See post 272 and post 287.)   So information about what actually goes on in one-third of the government needs to be parceled out on a need-to-know basis.  And, tcha, you know what? - you don't need to know.

Third: There is no reality outside of the courtroom.  If a person is found not guilty of embezzlement, that means the person didn't embezzle.  Therefore, if a prospective employer declines to hire the acquitted embezzler to keep the company's books, it's "unfair discrimination", and drastic steps must be taken to ensure that future decisions are based on less information. 

Fourth:  The job of the legal profession, whether acting through its judges or its trade associations, is to control the behavior of non-lawyers.  Specifically, its job is to prevent people from acting in ways that the people consider rational.  That's why, for example, relevant evidence is concealed from juries - to prevent them from drawing rational conclusions from it.  (See post 40.)  So if a person hiring a bookkeeper would think it rational to consider whether the applicant had a history of arrests for embezzlement, then the legal profession's job is to prevent the person from becoming aware of that fact.

Fifth:  So long as you profess your noble intentions, unintended consequences are of no concern.  Since the committee wanted to stop one type of discrimination, and stopping discrimination is good, therefore it simply didn't matter what other effects its proposal would have had.   In the same way, allowing a person to get away with raping and murdering a child, for example, is trivial in comparison to the glory of advancing an important principle - even if the principle in question had to be invented on the spot.

Sixth:  All decisions of significance to the legal system are made by legal professionals.  If a decision is made by anyone else - say, a prospective employer or landlord - then, by definition, it's not something the legal system needs to respect.  That's what the committee was saying when it proposed that the records be sealed "to the extent permitted by the First Amendment."  They meant: to the extent permitted by judges interpreting the first amendment, which is the same as saying: to the extent permitted by judges, period. 

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

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

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

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

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

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

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

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

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

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

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

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

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

So now you know what "prosecutorial misconduct" means.

With what exclusive demeanor may one be remiss?  Sadly.  And that's what this blog has recently been with respect to half the task assigned by its title, that of chronicling the crimes of judging.  (Please note: We use the term 'crimes' in its colloquial, rather than any technical legal, sense:  "An unjust, senseless, or disgraceful act or condition: It's a crime to make fatuous decisions that damage other people's lives.")

First prize goes to whoever correctly guesses, without reading the story or possessing previous knowledge of its subject, the meaning of this BBC headline: "Brazil judge in gay football row".   Last prize goes to whoever can read the following sentence once and explain the technical basis of the judge's ruling.  Hint: The article involves a libel suit brought by the Brazilian football star Richarlyson against someone who called him gay.  Here's the sentence: "In reaching a decision to effectively set the case aside, Judge Manoel Maximiniano Junqueira Filho said football was a virile masculine sport and not a homosexual one."

In Britain, judges obsess less about gay football stars and more about money.  Judge Peter Smith, who embarrassed himself by concealing a lame Da Vinci Code-like cipher in the opinion belatedly clearing Dan Brown of plagiarism charges brought by people who had written a book they previously had hawked as non-fiction, make the mistake recently of not resorting to cipher when he would have been well-advised to do so.  As explained by the Telegraph:

Last November, [the big-deal City law firm] Addleshaw Goddard approached the judge with an offer of a job. Under this plan, Sir Peter would retire early from the Bench and join the firm. This sort of thing was, after all, encouraged by Lord Falconer when he was Lord Chancellor. Talks continued until May, when the firm decided that Sir Peter would be too expensive. His current salary is £164,430. Reports, not denied by either side, say that Sir Peter and his judicial assistant would have cost the firm £750,000 a year - though that was not a figure that the judge himself demanded. In any event, Simon Twigden, head of the firm's Contentious Group emailed the judge to say that "the level of investment required cannot be supported".

Sir Peter's reply, quoted by the court last week, showed "considerable disappointment". The judge "stressed the considerable advantages of being associated with him as a judge who had recently given judgment in 'a landmark decision on corruption' which 'also has an impact on Banking and Corporate' ".

When he was again turned down, the judge told Mr Twigden: "I found your first email insulting and your second one condescending." He added: "I feel you have wasted my time for several months. I am extremely disappointed because, contrary to your fine words, you have allowed the bean-counters to prevail."

Shortly after being told that his services weren't worth the cost, the judge found himself assigned to a case involving allegations of wrongdoing by the very same Mr. Twigden.  When asked to recuse himself, he refused, telling the firm's barrister, "It is about time you grew up." 

In response to the Murdoch Times' account of the affair, a defender of the judge wrote in: "If however every Judge is hounded from office for losing their temper we would have a backlog of cases and the system would break down."  Now, that's  rhetorical inflation (see post 297): if you remove a single judge for using his official power to settle a private score, the legal machinery of the state will ground to a halt - I guess because once you start, there's no logical stopping place, and soon there won't be any judges left to wear the cute red dresses of the High Court.

Meanwhile, "Italy's top criminal court on Friday upheld a corruption conviction in February against Cesare Previti, a former defense minister and close associate of ex-premier Silvio Berlusconi, Italian news reports said.  [¶]  The Court of Cassation upheld the appeals' court sentence of 18 months in jail for Previti, as well as prison sentences for two lawyers and a judge, news agencies ANSA and Apcom reported."

That's the problem when judges start running with the big dogs: they don't even get their names in the papers.  Two other, equally-anonymous judges had their convictions overturned, according to Forbes, which describes the new American phase the litigation is taking, in the form of a forfeiture action.  (Here's a little more about the underlying tangle.)

Back home, former Washington County Circuit Judge Annette Ziegler was sworn in as a justice of the Wisconsin Supreme Court.  The noteworthy part about that?

The state Judicial Commission is investigating Ziegler for her handling of 16 cases in which she had a potential conflict of interest. Ziegler acknowledged wrongdoing in some of those cases in May as part of a separate investigation.

Of course, "potential conflict of interest" is a notoriously vague category, which is why a separate category needs to be invented for Justice Ziegler, because what she did wasn't vague at all:

Seven of the cases the Judicial Commission is investigating involve West Bend Savings Bank, where her husband sits on the board of directors. Nine of them involve companies in which Ziegler owned more than $50,000 in stock.

The state judicial code bars a judge from handling a case if his or her spouse is a director for a party involved in the case. The code also bans judges from hearing cases involving parties in which they have more than a minimal financial interest.

The state Ethics Board also looked into the bank cases this spring. Ziegler settled that matter in May for about $17,000, which consisted of a $5,000 forfeiture and state legal fees of about $12,000.

The $5,000 forfeiture was the largest penalty in an Ethics Board case in 14 years.

An editorial in the Madison Capital Times - the headline gets right to the point - explains how a crook like that got elected to the Supreme Court of a state that has generally has a reputation for scrubbed-cheek clean government:

But the most serious problem with Ziegler taking a place on the court is not her scandalous behavior as a jurist. It is the fact that she lied to the people of Wisconsin in order to secure a place on the bench.

When the issue of her unethical behavior arose, it was a classic case of judicial wrongdoing. Any first-year law student could have looked at the record and known that Ziegler was going to face sanctions for deciding cases involving the family business. Indeed, as Professor Geyh says, "Everybody knows you don't do that."

Yet, Ziegler and her supporters claimed in the weeks before the April election that she had done no wrong.

The Ziegler campaign asserted that the charges against her were nothing more than political rhetoric at election time.

Ziegler and her supporters actually went so far as to impugn the motivations of civic organizations that expressed concern about the prospect that a judge with such severe ethical problems would be seeking a place on the state's highest court.

The lies worked. Ziegler was elected. Then, within weeks after securing a 10-year term on the court, she admitted she had done what she solemnly told the voters of Wisconsin she had not done.

At that point, there was no longer any question that Ziegler obtained her position under false pretenses. And when she solemnly swears an oath today to uphold the laws of the state, Wisconsinites will be justified in asking whether anything this woman says -- or any ruling by the court in which she participates -- can be trusted.

But you have to admit, Justice Ziegler cleverly figured out how to beat the rap.  First, the "avowed conservative" raised a ton of cash, and from what we know about her it seems a good bet that those who gave her the money look forward with justified confidence to a handsome return on their investment.  Second, now that she's been sworn in, we have to assume the disciplinary case has been wrapped up.  (See post 198.)  My prediction: a year or two goes by, to create the illusion of continued investigation, and then an "admonishment" settles like dust on her robe.