JUDGING CRIMES

The February 27 New Republic has a review of a book about neoconservatives that includes a passing reference to "the madmen at AEI", meaning the American Enterprise Institute.  On the same page, just one column over, is a long, meandering review by someone described as "a psychiatrist [and] a resident scholar at the American Enterprise Institute." 

Pace the prior article, this author is not technically a madman, to judge from her photograph on the AEI website.  Just a mad-doctor.

Anyway, the issue also has a review of a new Yale Press book by Yale Professor James Q. Whitman called The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial, which appears to be one of those academic books in which the author points out an interesting overlooked aspect of the past and then insists that it provides the key for understanding everything, everything, do you understand, everything!  You know, the usual scholarly thing.

The book is reviewed by the Joyce Carol Oates of the legal academy, the graphomaniac Judge Richard Posner, whom Nassim Nicholas Taleb terms "one of those people who should spend more time reading and less time writing".   The TNR review confirms Taleb's judgment (which he immediately softens with some nice and well-deserved compliments - Posner is an extremely interesting and intellectually curious person, even though he is a judge).  The review's first sentence is adapted from the first sentence of the publisher's advertising copy, while the review's second sentence reads:

To punish an innocent person is more costly than to acquit a guilty one, since convicting an innocent person imposes heavy costs of punishment on him and on the criminal justice system (the cost of administering the sentence) while the main consequence of acquitting a guilty person is merely to reduce, probably slightly (unless such acquittals become very common), the deterrent and incapacitative effect of the criminal law.

As it happens, I was induced to read the entire review because I was trapped on an airplane.  I couldn't help wondering, just a tiny little bit, if it were really true that the costs of acquitting a guilty person are quite as low as Posner assumes.  For instance, upon landing at Logan I walked by Boston Herald newsstands featuring this story:

The serial sex fiend busted for allegedly stalking a woman in a Braintree bookstore bathroom left a trail of escalating depravity encompassing nearly a dozen incidents over seven years, including a violent attempted rape.

Judge Richard T. Moses knew twisted sex freak David Flavell’s history of arrests from New Hampshire to Fairhaven when he set free the Level 3 offender in 2006, ruling he posed no danger to the public, according to court filings obtained by the Herald.

Well, it's a tabloid.  But the heated-up, mad-editor style doesn't mean it's wrong.  A follow-up article said the suspect was separately charged "with making obscene or harassing phone calls for dialing the National Center for Missing & Exploited Children to report he had just indecently assaulted a 6- or 7-year-old girl, a Boston police report said."  A Sunday article listed other Massachusetts sex offenders who have been re-arrested for sex crimes after being found not to qualify for sexual predator status.  

Well, okay, that's Boston.  How about in Judge Posner's hometown of Chicago?  Three hours in O'Hare on the way home gave me time to read the Daily Herald, the paper for the northwestern suburbs, where the above-the-fold headline was "The hurt doesn't go away: Parents remember daughter who lost life in a single moment of violence."  The story was about Matthew Cunningham, whose months-long murder trial is set to finally end in the next few days:

Every day Bill Albu reads about people dying -- in drive-by shootings, in car accidents, on college campuses.

He thinks of the victims' families and how their lives will never be the same. Sorrow will follow them to the grocery store, to family weddings, everywhere.

He knows.

His daughter, former Arlington Heights resident Katie Albu Spain, 28, was spending a quiet night at home with her son when she heard a smoke alarm go off somewhere in her building.

She opened her front door and ran into Matthew Cunningham, who had just killed his roommate, Robert Barker. Cunningham then stabbed Albu more than 30 times. She died in the hallway of her Phoenix apartment building in Arizona.

Bill Albu, the father, said about other parents of murdered children: "'There are people who walk around with unbelievable sorrow in their lives and you'd never know it,' Bill said.  'These are the most compassionate people.'"  He described the awful moment at parties when new acquaintances ask about his kids.

On page 4 was a story with this lede: "A 16-year-old boy accused of stabbing an Elgin High School teacher appeared Friday in Kane County circuit court on sex assault charges, offenses prosecutors allege took place about five months before the school attack."

And on page 6 was the headline: "Sister's words bring killer to tears" over this story:

For weeks, Eric C. Hanson remained composed while facing a DuPage County jury that will decide if he lives or dies for killing his family.

He never broke down despite horrific details of the quadruple homicide, a grueling five hours on the witness stand, or when he heard the word "guilty" for the first time.

But the Naperville man's stoical expression changed Friday when his older sister, Jennifer Williams, described the sad irony of his crimes.

"Eric murdered the only people in his life that loved him unconditionally -- my mother, father and sister," she said, "the most wonderful people that I was so fortunate to have called my family." ...

Hanson, like most of the worst killers, had a troubled childhood.  The jury heard this about his past:

As he aged, Hanson was convicted of home invasion, retail theft and, in 1999, aggravated battery. Three girlfriends described how he lied, stole and, on a few occasions, became violent.

Most disturbing, though, was a 911 call involving his sister, Kate, on Feb. 10, 1993, when she told police he held a knife against her throat when they lived in Burnsville, Minn. Eric was 16. 

"(He) got very mad at me and grabbed the top of my hair and threw me down on the hardwood floor," said officer Eric Gieseke, reading Kate's statement. "His face turned color because he was so angry. He said, 'I might as well kill you because as soon as my probation officer finds out, I'll be sent away anyway.' He said, 'I can cover it up. No one will know.' "

Kate got away. Twelve years later, she did not.

On Sept. 29, 2005, police discovered the bludgeoned bodies of Katherine "Kate" Hanson-Tsao, 31, along with her husband, Jimmy, 34, in their upscale Aurora home.

Terrance Hanson, 57, and his wife, Mary, 55, also were found slain there. The elder couple was shot in their bed in Naperville, where son Eric also lived, then taken to Kate's home five miles away.16.

Okay, but that's the suburbs.  How about Chicago itself?  The Sun-Times headline yesterday was: "Unforgiven".  This was the story:

On June 7, 1969, [Terence] Knox was a young cop nicknamed "Tinsel" because he wore braces. He was on patrol when he saw Pannell and thought maybe the youth was playing hooky from high school. Knox tried to question Pannell, but Pannell answered with bullets.

Knox was hit in the right arm.  At the time, Pannell, a Navy deserter, told investigators he was a member of the Black Panthers. Pannell never went to trial. Instead, he fled to Canada, where he assumed a different identity, married, had four children and became a respected member of his community. ...

[Knox] spoke of the "excruciating pain" that sometimes causes him to stand up and leave the room during business meetings. Knox said he hides his wounded arm beneath long sleeves. He showed reporters the fingers of his right hand -- puffy and purplish in color.

And Knox talked about the mental pain of seeing Pannell on Friday -- the first time since 1973.

"I had a hard time sitting in court today, very hard because it brought back memories I've tried to block out, and I don't want them back," Knox said.

The main consequence of acquitting the guilty, Posner writes in the review I happened to have just finished as I walked past these various news boxes, "is merely to reduce, probably slightly ... [the] incapacitative effect of the criminal law."  He meant: is merely to leave the guilty criminal free to commit additional crimes. 

I don't know if Cunningham or Pannell had prior records, but it's safe to say that the absence of any incapacitative effect on Flavell and the others featured by the Herald, the 16-year-old teacher-stabber and Hanson had costs that could be described in somewhat less-abstract terms than Posner chose to use.

But then, those costs aren't borne by judges, are they?  It's possible Posner was being ironic (though irony, and humor in general, seem generally beyond his range), because the book he was reviewing argues that "the reasonable doubt formula was originally concerned with protecting the souls of the jurors against damnation."

Acquitting the guilty has low costs for judges.  In fact, if the judge takes care not to inform him- or herself about the remote consequences, it need not have any costs at all.  The key thing is to avoid reading papers like the two Heralds or the Sun-Times, which might suggest the disturbing possibility of life outside the courtroom.

We met Florida's Judge Michael E. Allen in post 272.  He got in trouble with the otherwise-rational Florida Judicial Qualification Commission by poaching on its turf.  As the Commission explained in its complaint, it's unethical for a judge to let the public know about what goes behind the smooth blond wood paneling  of its appellate courts, because the judge is supposed to tell the Commission instead. 

Of course, there's larger issues at stake, too.  Like: letting the public know what really goes on in its courts would tend to diminish public confidence.  It's striking that the Commission doesn't contend that Judge Allen said anything false, or even inaccurate.  The supposed ethical violation is simply that he said it about his colleague, in contravention of the convention of unctuous displays of brotherly (well, brethrenly) esteem.

Anyway, ABC News has picked up on it with a story that quotes other court employees venting their feelings about Judge Allen's antagonist, Judge Charles J. Kahn, whose publicity photo seems designed to create the impression of someone who doesn't know how to relax.   The story reports that Judge Kahn "was described by his colleagues as acting, at times, 'volatile,' 'irrational' and 'schizoid.'"

Let's see.  The DSM list of symptoms for schizoid personality disorder include "Social withdrawal, or continual avoidance of social activities / Flattened emotions or lack of expressivity / Having little to say".   You can see where combining that with irrational volatility might be somewhat disorienting to coworkers.

But, hey, we only pay 'em to sound like they know what they're talking about when they use fancy words in their opinions.  I think what the speaker - Chief Judge Edwin B. Browning - meant was something more along the lines of Dr. Jekyll and Mr. Hyde, or perhaps Boopsie and Hunk-Ra.

Really, the competition for a featured place in this blog is getting out of hand.  I want to assure all my judicial readers that, whatever you might think, it's not necessary to go to the lengths of Las Vegas Judge Nicholas Anthony  Del Vecchio to get your name featured here.

First, some background on the man who would choose such a remarkably unflattering photograph as his official face to the world.  This is from Las Vegas Review Journal for November 19, 2000:

Del Vecchio, a Las Vegas lawyer, lost seven previous elections before winning a race this month for a new judgeship in Clark County Family Court.

He also sought appointments to four other judicial positions without success. And on yet another occasion, he filed as a candidate for a nonexistent judgeship, later losing a court battle over the issue.

Oh yeah, and it took him five tries to get into law school.

"I was the last of six boys to go to law school," Del Vecchio said during a recent interview in his office. "I did not have the most stellar academic record. I always believed that C stood for commencement, that D stood for diploma, and I graduated 'magna thank godem.' "

Del Vecchio, who often uses that kind of self-deprecating humor, said he graduated from the College of St. Thomas in St. Paul, Minn., in 1979 with a bachelor's degree in sociology. He had a grade point average of 2.71.

"Being a student was always hard for me," he said.

That year Del Vecchio applied for the first time to the William Mitchell College of Law in St. Paul. He continued to apply every year thereafter, until he was finally accepted in 1983. 

You might wonder if the reporter was misreading the new judge when she assumed his self-deprecation was intended humorously.   Certainly some reassessment might be in order following more recent articles:

The special prosecutor for the Judicial Discipline Commission has accused Family Court Judge Nicholas Del Vecchio of sexual misconduct and abuse of power, including coercing a judicial assistant into having a sexual relationship with him.

The complaint alleges that the relationship dates to before Del Vecchio was a judge, when the judicial assistant, the daughter of his ex-wife, was 14.

Del Vecchio took nude photos of the girl when she was between the ages of 14 and 16 and had her perform oral sex on him, the 38-count complaint states. The complaint adds that Del Vecchio kept the photos after he became a judge but later destroyed them.

The document, which is not a criminal complaint, also accuses Del Vecchio of using racial slurs against black and Hispanic court staff and of coercing staff into buying him lunches and airline tickets.

Again with the photographs.  Didn't he learn anything from Woody Allen's experience?  But then, so far as my doctors-waiting-room and supermarket-checkout-line reading has informed me, Woody never "made audio recordings of the [sexual] encounters without the woman's permission." 

Then there's Judge Del Vecchio's (alleged, alleged!) campaign technique, honed in all those unsuccessful bids:

He told a family court employee, Beata Funk, that he wanted to have sex with her and wanted her to wear tight shirts while campaigning for him, the complaint says.

Should we assume from the casual way the subject is introduced that it's part of a court employee's job in Las Vegas to campaign for her boss?  Well, it's an American tradition.  One we can trace all the way back to Andy Jackson, and he's on the twenty dollar bill, after all.

The complaint even alleges he asked one co-worker to take men to dinner saying he "could tell they were interested in her and she could solicit and obtain campaign contributions." The judge allegedly told the worker that "she should dress nice" or "seductively."

The complaint isn't up on the Nevada Commission on Judicial Discipline website yet. 

I've never understood the rationale for applying a beyond-a-reasonable-doubt standard in judicial removal proceedings, though it goes all the way back to Samuel Chase.  Removal from office doesn't mean the offender goes to jail.   

And it's not like reversing the decision of the electorate, either, even in those states that elect their judges in partisan races, because judicial candidates are "ethically" obliged not to tell us in advance what they plan to do with the power they seek.  (Del Vecchio's eight races should have told the voters that he wanted the power too badly to be trusted with it.)

When a judge is removed from office, all that happens is that he or she has to spend the rest of his career standing in front of the bench instead of sitting behind it - a fate many of us think no disgrace.

I think that when there's serious reason to believe a judge has sexually exploited his 14-year-old stepdaughter - when, in the jargon, there's probable cause - that's more than enough reason to remove the judge from the public payroll.  And you know what?  I'd say the same thing about murder, too.

Not real babies, of course.  They never say anything deserving of scorn.  But recently the Kansas appellate courts have ingenuously revealed things that more worldly-wise judges have learned to cloak in wordy euphemism.  The first case is officially "unpublished" and Kansas is one of those states that continue to hide their unpublished opinions, presumably because their authors have something to hide.

Here's the opening passage:

On December 16, 1994, an information was filed alleging that Downey had sexually abused S.R., a 2-year-old girl, in Reno County, Kansas, during September 1994. This is the fifth appeal. ...

At trial in March 2006, Downey did not deny he had sexually abused S.R. Downey's counsel argued instead that what “Downey did to that little girl was despicable. Absolutely despicable. But it didn't happen in Kansas.”

You can see why a case as complicated as that would take 11+ years to decide.  Downey thought his latest conviction should be overturned on the basis of prosecutorial misconduct, namely an improper argument by one of that tribe of evil trolls:

Downey first complains of the prosecutor's statement during closing arguments that the case was about the “innocence of a little two-year-old girl,” which Downey “stole ... for nothing more than greed, self-gratification, and his personal pleasure.” ..

[T]he effect was to argue the moral turpitude of Downey's actions rather than criminal liability under the elements of the crimes charged. Since trials are conducted to determine criminal liability, prosecutors “should refrain from argument which would divert the jury from its duty to decide the case on the evidence.”

I don't think I've ever before seen a court come right out and say that morality has nothing to do with the criminal law, and that it's wrong to "divert" jurors from their task by reminding them that there's a point to it.  

(Maybe all the court meant was that there wasn't any proof that the 2-year-old was innocent about sex prior to the  moment she found herself alone in Downey's company, so that the prosecutor was arguing facts not in evidence.)

But that's nothing in comparison to what the reliably-fatuous Kansas Supreme Court (see post 284 and post 299) wrote in a recent opinion that more self-aware fatuous judges would have hidden in the convenient "unpublished" file. 

The case concerned a difficult constitutional question: whether a criminal defendant has a right to lie under oath to the jury without fear of contradiction.

The answer, as every lawyer active in the field of criminal law knows, depends on what form the contradiction might take.  If it's, say, in the form of the defendant's own prior words saying exactly the opposite of what he's sworn to from the witness stand, then it's pretty iffy, thanks to a 1964 Supreme Court opinion that outlawed the practice of recording the unguarded things people say even when charges are pending against them. 

(It's unconstitutional to record such unguarded words only if the defendant is represented by a lawyer, so indigent defendants, required to wait for the creaky wheels of the public defender bureaucracy to turn, have a window of vulnerability that those with a lawyer on call need not worry about.  The point, I should hasten to add, isn't that the wealthy are more deserving of protection from the law, but that lawyers have a right to be protected from a client who blows his own case.)

So here's the Kansas Supreme Court explaining why it was wrong to allow a jury to learn that the defendant said something in private that completely contradicted what he said under oath from the witness stand:

Although trial judges are called upon to determine the admissibility of evidence to effectuate the courts' truth-seeking function, there is nothing in our federal or state constitutions that requires us to make truth-seeking the overriding principle that trumps our constitutionally protected rights. ...

The purity of justice under our Sixth Amendment's constitutional right to counsel cannot be polluted by the subversive conduct of deceitful acquisition of evidence.

There you have it.  Truth cannot be allowed to pollute the pure justice that only court-approved lying under oath can achieve. 

Note a couple of other things.  The acquisition of the evidence was "deceitful" only in the sense that the informant allowed the defendant to assume he wasn't an informant, and the police allowed the guy's lawyer to assume they weren't employing the informant.  (Which, under Supreme Court precedent - or, if you prefer, under the sixth amendment - they shouldn't've.)  But any time a judge suppresses evidence, he or she is being deceitful in exactly the same way, by allowing the jury to assume that there isn't any additional relevant evidence to learn about.

And the defendant's much more direct deceit - his outright lying in court - is less polluting to the purity of justice than permitting the jury to learn about it.

The interesting question is: Do you think anyone at the Kansas Supreme Court actually thought about any of these things before publishing the opinion? 

Good ol' Anonymous posted a comment to the main road of this post explaining the origin of the Judge Pregerson Memorial MixMaster, even supplying a link to a New York Times article explaining the judge's deep involvement in the development of the project.   As a district judge, Pregerson oversaw litigation that fattened the Westlaw database by 13 opinions over the course of 25 years, even continuing to sit as trial judge by designation after his elevation to the Ninth Circuit.

I'm pretty sympathetic to the goal of ameliorating the community disruption caused by freeway construction.  Community-buster Robert Moses, I'm convinced, bore more responsibility than any other individual for New York's decline into the ungovernable city. 

Still, I can't help but suspect that it's within the realm of possibility that the California Department of Transportation, which signed the consent decree overseen by Pregerson, didn't put up much of a fight when its legal opponents demanded it receive $2.2 billion to spend. 

Consent decrees, by which executive branch agencies pretend to lose lawsuits in order to bind their legislatures without all the muss and fuss of the democratic process, give judges the glory of increasing spending in the public eye while leaving to legislators the unpleasant task of trimming other budget items during contentious late-night committee meetings. 

Consent decrees are another type of community-busting: replacing Jacobean mob rule with the more decisive rule of a king and his lawyer-courtiers.  Still, dubious methods frequently produce beneficial effects.  It's just money, after all.

So the green sign dedicating the freeway interchange to Judge Pregerson can be viewed as a reward for his his hard judicial labor ordering other people to perform hard real labor.  Viewed in that way, it's an odd honor - even if, as I suggested, a cheap and rather ambiguous one.  Naming rights are apparently considered valuable things, in some contexts.  Isn't there something a bit ... odd about a federal judge accepting something of value as additional compensation for doing his job?

But, I think, that's not the right way to look at it.  I think the interchange was named for him in very much the same spirit in which the airport freeway itself is officially named the Dan Ryan Freeway, or Glenn Anderson Expressway, or whatever.  

It's the true Chicago spirit.  On my first visit to Chicago, every downtown street corner had paint on the pavement reminding me to visit "Mayor Jane Byrne's ChicagoFest."  You could register your car or renew your driver's license at "Secretary of State JIM EDGAR's" storefront operations.

Pregerson's name on the interchange isn't a monument to his judicial service.  It's an acknowledgment that he was the political boss in charge of the project.

When I was in Los Angeles this past week, I had occasion to drive the rental car through the Harbor Freeway / I-105  interchange.  Curiously enough, I-105 seems to have acquired at least three nicknames: the Century Freeway, the Glenn Anderson Freeway (distinctly Chicagoish, that one) and the airport freeway.  The last, which you won't find on any map, is the only one I ever heard anyone use.

Not only that, but the interchange itself has a name: The Judge Harry Pregerson Memorial Interchange.  The "Memorial" bit would give me the creeps if I were Judge Pregerson, who remains on active duty at age 84.

I guess they've run out of courthouses to name after judges, and anyway politicians like to clap their own names on those.   (Note the cute orange accent in that previous link.)  Still, it seems a sensationally chintzy sort of memorial - nearly a random one, really.  Why not the Judge Harry Pregerson Memorial sidewalk, or the Judge Harry Pregerson Memorial elevator shaft and boiler room?  The signs would have been even less expensive and the symbolism just as meaningful.

(See the Update.)

And I can tell you that at rush hour one's state of mind upon entering the interchange is not necessarily conducive to reflections on a distinguished judicial career.   It's a little like contemplating the majesty of the law from the Judge Harry Pregerson Memorial dentist's chair. 

There are really only two things I know about Judge Pregerson.  One is that he and his son have combined the concept of dynastic succession to the traditional divine right of federal judges.  The other thing is that he's a liar.

I don't say that in the spirit of half-insane recklessness evident in, say, this indication that the Pregersons are  high-profile enough to feature in a paranoiac's belief system.  (Can a mention in a James Ellroy novel be far behind?)

No, I say that because the United States Supreme Court said it first.  They didn't use the word "liar," of course.  They phrased it like this:

All of the mitigating evidence, and all of counsel's prejudicial actions, that [Judge Harry Pregerson's opinion for] the Ninth Circuit specifically referred to as having been left out of account or consideration were in fact described in the California Supreme Court's lengthy and careful opinion.

But I think that means "liar."  (See post 11 and post 210.)  (And here's Pregerson's opinion, if the link works.)

The fascinating thing is that lying is considered perfectly acceptable behavior in a federal judge, at least in some contexts.  The pertinent context, it's hardly necessary to say, is that Pregerson was lying about the record in a death penalty case - it was just his way of preventing the machinery of death from lurching forward. 

By the standards of the legal profession, lying in the pursuit of abolition of the death penalty is no vice, or at least not such a vice as would disqualify one from having one's name cursed daily by rush hour drivers.

(Here's part 1 of this epic.)

How can you tell when a judge is up to something?  One sure giveaway is the emotive adjective or adverb.  I always tell my students that the strongest argument is the quietest: "The Supreme Court just decided this issue last week."  You don't have to raise your voice or work on anyone's emotions on those rare occasions when the law has truly boarded up all the escape routes.

When federal judge Jerome Frank went on about the "satanic" police serving the "brutalistic" regime in Coney Island, it was because he couldn't carry the day by calmly setting forth the facts and the law.  The hysteria (or, if you're feeling generous, faux-hysteria) of his language was intended to justify the result he reached. 

As a federal judge, he had no authority to substitute his view of the facts for those of the jury and New York state judges, but he got around that by claiming the Nuremberg defense in reverse: I was only disobeying orders.   If he had discussed the facts calmly, as the federal district judge had done (see post 338), it would have been obvious that he wasn't, after all, faced with the same moral imperative as an Auschwitz prison guard.

When Noia's case was argued (and argued) before the Supreme Court, it fell to Justice Brennan to explain why a congressional statute that said "shall not" meant "may."   (See post 339.)  To do so he reached deep into his bag o' modifiers:

Our decision today swings open no prison gates. Today as always few indeed is the number of state prisoners who eventually win their freedom by means of federal habeas corpus.   Those few who are ultimately successful are persons whom society has grievously wronged and for whom belated liberation is little enough compensation. Surely no fair-minded person will contend that those who have been deprived of their liberty without due process of law ought nevertheless to languish in prison. Noia, no less than his codefendants Caminito and Bonino, is conceded to have been the victim of unconstitutional state action. Noia's case stands on its own; but surely no just and humane legal system can tolerate a result whereby a Caminito and a Bonino are at liberty because their confessions were found to have been coerced yet a Noia, whose confession was also coerced, remains in jail for life. For such anomalies, such affronts to the conscience of a civilized society, habeas corpus is predestined by its historical role in the struggle for personal liberty to be the ultimate remedy. If the States withhold effective remedy, the federal courts have the power and the duty to provide it. Habeas corpus is one of the precious heritages of Anglo-American civilization. We do no more today than confirm its continuing efficacy.

Pretty affecting, isn't it? -- so long as you keep yourself from remembering just exactly how society "grievously wronged" Noia: it allowed him to confess to a murder, a confession that the jury found to be voluntary and which was corroborated by the confessions of his two co-conspirators, and then it allowed him to choose not to appeal his resulting conviction. 

Fay v. Noia was a 6-3 decision, with Justice Black in the majority.  Harlan, Stewart and Clark dissented.  Six years later, however, the composition of the Court had changed with Thurgood Marshall replacing Clark and Abe ("Pete Rose") Fortas replacing Goldberg.  

When he wrote the majority opinion in Kaufman v. U.S., Brennan didn't need either Goldberg or Black, and so he could dispense with the cloak of humility.  Black dissented in Kaufman.  In response, Brennan wrote that habeas corpus "contributes to the present vitality of all constitutional rights whether or not they bear on the integrity of the fact-finding process."

The second part of that sentence is very important, for reasons given below.  But look again at the first part: have you ever seen anything so exquisitely devoid of meaning?  Just think for a moment about how you'd go about "contributing" the capacity to live, grow, or develop to an inanimate object.  The real significance of that  string of words becomes apparent only when you look at what it was written in response to.  In his dissent, Black had written:

Surely, it cannot be said of Kaufman, an admitted armed robber, that he is a person whom "society has grievously wronged and for whom belated liberation is little enough compensation."

Black was quoting Brennan's own words of six years earlier.  He was even using Brennan's rhetorical trick of starting his sentence with "Surely."  Brennan's response - that bit about contributing to the vitality of an abstraction - was his way of breaking the news that he hadn't meant a single word of his heart-tugging peroration in Fay v. Noia.  Whether or not Noia had been a "victim," one "whom society has grievously wronged", was entirely beside the point.

Because, according to Brennan, the accuracy of a verdict should not distract one from the real purpose of habeas corpus, which has nothing to do with justice to any individual.  Rather, its purpose is to provide a mechanism for enforcing constitutional rights "whether or not they bear on the integrity of the fact-finding process." 

That means: whether or not a criminal is truly guilty of killing or raping or robbing another human being.  It also means: whether or not the freed criminal will interpret his liberation as permission to kill, rape and rob some more.  It means: justice, either to the individual defendant or to his past and future victims, isn't the goal of our justice system.

The goal, for Brennan, was the concentration of power in the federal judiciary.  And if you think that's going too far, remember that Justice Brennan is also the judge who wrote that a federal judge has the "inherent power" to act as prosecutor, victim and judge in the same case.  That code phrase "inherent power" means power not granted by the Constitution, of course.  (See post 32 and post 261.)  

Brennan was committed to a vision of a nation ruled by judges.  Fay v. Noia and Kaufman v. U.S. reveal that he viewed any sort of intellectual dishonesty as a justified means to that all-worthy end.

I was inspired to set out on this epic by Christopher L. Eisgruber's (see post 333) description of Brennan: "his jurisprudence depended so thoroughly on functional considerations about the judiciary's role as a defender of vulnerable minorities and individuals".  

This is yet another example of Eisgruber's uncritical adoption of every received idea about the law.  (See post 329.)  The chief distinguishing feature of Brennan's jurisprudence was his utter contempt for the most vulnerable of individuals, those whose vulnerability was objectively demonstrated, a grossly disproportionate number of whom were members of minority groups: victims of crime.

What Eisgruber is referring to is Brennan's sentimental rhetoric in such cases as Fay v. Noia.  That rhetoric was, indeed, in tune with the received ideas of law professors of the era - that was why Brennan wrote like that. 

What Eisgruber overlooks, because it's impossible to reconcile with what his professors told him and he's unable to consider the possibility that his valued mentors could be wrong, is Brennan's occasional confession, in cases such as Kaufman, that he didn't mean a word of his own gushing stuff.  He wrote like that because it worked: it successfully manipulated those same unsophisticated professors and assorted naive journalists into accepting the judiciary's authority to shrug off attempts at control by what Brennan called "the political branches" -- his perjorative term for democracy.

In 1972, Noia was arrested for conspiracy to transport stolen Post Office bonds.  He told both the arresting officer and the judge that he was the Noia, but I haven't been able to find out what happened to him after that.