JUDGING CRIMES

When the previous Chief Justice talked about Bush v. Gore, he did so with a certain degree of haughty dignity:  "[T]he Supreme Court of the United States became involved [in the presidential election] in a way that one hopes will seldom, if ever, be necessary in the future."  (Seldom?  Like, no more than once every eight years, unless the Democrats get in?)  (Necessary?)

When Justice Scalia spoke about it recently, he said: "It's water over the deck -- get over it!"  I wonder if he meant "water under the bridge" - a nice peaceful image.  "Water over the deck," by contrast, implies storms.  Freak waves.  Swamping.  Boats disappearing in an instant, like the famous cannibal yacht.  The Wreck of the Medusa.  (No, it's not just a Pogues song.)

Scalia was trying to be funny, but as Freud pointed out there's often an undercurrent of hostility in humor, and it's the thuggishness of Scalia's remark that made it newsworthy. But it could hardly be more wrong, and its timing could hardly be more grotesque: he made his "joke" in the same week we learned that 34,000 Iraqi civilians were killed in 2006. 

For my children's sake I hope I'm wrong, but I'm afraid that in the future we'll look back on the period from November 9, 1989 to December 12, 2000 as a heartbreakingly brief golden age, one that we didn't even know was golden as we lived through it.  I'm afraid that future historians will look upon Bush v. Gore as a crucial turning point in national history.  If so, it won't be because of the words the justices used, or the pseudo-constitutional doctrine they announced, but because of the events they set in motion. 

And so Scalia's remark reveals something very basic about the judicial project: judges' responsibility ends with the case.  That's why, to a lawyer's mind, it seems so discordant - so wrong - to suggest that judges who prohibit the punishment of a quadruple murderer (see post 224 and post 225) are responsible for his subsequent criminal career.   They decided the case, and then the case was over.   The subsequent rape, the subsequent murder, the orphaning of three children - all of that was merely a "tragic set of circumstances", as one of the judges put it. 

Well, it's tragic, all right.  But can anyone dispute that it was also the foreseeable result of a deliberate, conscious decision by that judge and his two colleagues?

It's basic to the judicial project, and perhaps necessary for judges' mental health, to believe that nothing that occurs outside of the courtroom is the responsibility of judges.  Only that which occurs inside the courtroom is  real enough for a judge to take notice of it.

That's how Scalia could say, and in a delusional way perhaps even believe, that Bush v. Gore is "water over the deck." 

This blog has frequently remarked on the enormous lengths judges have to go to in order to be removed from office.  It's just not easy to be fired, if you're a judge.  (See post 60 and post 185.)  Luckily, there will always be those intrepid souls out there willing to do whatever it takes.  Like Wendell R. Miller, from Louisiana (state motto: "New Mexico on the Bayou"):

A Jefferson Davis Parish judge was removed from office by the state Supreme Court for violations such as his handling his secretary's divorce while the two of them were having an affair and having sex at the courthouse.

(Note: Jefferson Davis Parish isn't the same as Jefferson Parish.  We're talking a one-judge district in far SW LA, 40 due miles west of Lafayette.  It has its own film commission, though.)

Querae: Would presiding over her divorce while sleeping with her have been enough to warrant the ax?  Or was having sex at the courthouse (the judge "stipulated that these encounters were 'in his chambers, in the conference area, or in the hallway outside of his office'") (the hallway??) a necessary part of elevating the offense to a level warranting removal? 

An appellate opinion in the once-and-future-husband's suit against the judge can be read here.   And here's LA-Legal.com's reaction to the order of removal.  

Judge Miller probably didn't help his case when he was held in contempt of court by a federal judge presiding over the sexual harassment suit filed against him by the ex-secretary, after both their sexual and professional relationships ended and he declined to get the message.  The finding of contempt was upheld by the Fifth Circuit.  One has to admit there is something a bit - is "unseemly" too harsh? - about a judge being in contempt of court.

Then there was the business of issuing press releases in "a thinly-veiled attempt to create a more sympathetic image of him in the minds of ... potential federal court jurors" - it must be said that some people might think that revealed an attitude toward the court system that, in a person entrusted with sole responsibility for running that system in his parish, was less than optimal.

As for taking travel expenses that he wasn't entitled to ... 

Nonetheless, Justice Jeannette Theriot Knoll (who has a lovely singing voice) dissented from the removal order, finding Miller's conduct not nearly as bad as many of the true gangsters who have served on the Louisiana bench (true, true), and making this comparison:

In stark contrast to those removal cases, I draw attention to In re Harris, 98-0570 (La.7/8/98), 713 So.2d 1138, 1141, a case I find far more egregious than the present matter. In that case, Judge Harris not only associated publicly with a known felon, she entered into a extramarital affair with a felon who pleaded guilty in her court and was illegally sentenced by her for his criminal act, which allowed the felon to be paroled. [It was all one felon, apparently an exceptionally hot one.]  Additionally, this relationship became publicized in a lengthy article in the Baton Rouge Advocate which articulated the fact that Jones had been sentenced by Judge Harris for the felony he committed. Toward the end of their extramarital affairs, the convicted felon engaged in a crime spree in East Baton Rouge Parish, including car theft, burglary of an inhabited dwelling, and armed robberies of two fast food outlets and a shoe store before his parole was revoked. In the light of those facts, this Court only suspended Judge Harris without pay for sixty days.

Justice Knoll has a point.  However, she neglected to mention the name of the justice who wrote the opinion in Judge Harris's case.  So, to answer the big question, this is what you have to do to get yourself removed from the bench in Louisiana: get your opinion written by someone other than Justice Knoll.

Last Monday's Cunningham decision striking down California's sentencing statutes, while sadly inadequate as legal reasoning, is marbled with the ridiculous like an artery-cloggingly tender steak.

And if you think that's bad, just listen to this: "Booker’s remedy for the Federal Guidelines, in short, is not a recipe for rendering our Sixth Amendment case law toothless." 

I'm sorry, but a person who can publish a sentence like that in all seriousness just doesn't deserve to be taken seriously.  Certainly not as seriously as Justice Ginsburg takes herself.  (But then, nobody deserves to be taken that seriously.)

Ginsburg's opinion shares the two qualities that Orwell said could be found in most modern political writing.

The first is staleness of imagery; the other is lack of precision. The writer either has a meaning and cannot express it, or he inadvertently says something else, or he is almost indifferent as to whether his words mean anything or not. This mixture of vagueness and sheer incompetence is the most marked characteristic of modern English prose, and especially of any kind of political writing. As soon as certain topics are raised, the concrete melts into the abstract and no one seems able to think of turns of speech that are not hackneyed: prose consists less and less of words chosen for the sake of their meaning, and more and more of phrases tacked together like the sections of a prefabricated henhouse.

A person who writes about a recipe that makes an inanimate object's teeth fall out is obviously not thinking about what she's saying in any sort of precise or concrete way.  As proof of this,  note that Ginsburg doesn't claim to be concerned about making the sixth amendment toothless.  She just doesn't want to make "our Sixth Amendment case law toothless."   She actually comes right out and says - almost certainly without consciously intending to be so self-revealing - that Cunningham is not about the Constitution.  It's about the Court. 

The opinion contains a passage "vacuously, smugly, and unconsciously foolish" enough to deserve special recognition.  Ginsburg twice says that the Supreme Court's precedents have created a "bright-line rule" and then reports that the California Supreme Court opinion "stat[ed], remarkably, that '[t]he high court precedents do not draw a bright line.'"  It's that condescending little word "remarkably" that elevates this to a high level of judicial fatuity.

("Bright line" is one of those odd bits of legal jargon that actually express rather than conceal their meaning.   The foul line is a bright line, and so is the blue line.  You're on one side or the other of a bright line - there's no middle ground.)

The California statute was, according to Ginsburg's opinion, unconstitutional because it permitted "judicial factfinding" when imposing a sentence.   However, just three years ago the Court wrote that the sixth amendment allows "judicial factfinding" when imposing a sentence.  The difference is that in the latter situation, the judge is merely "implicitly rul[ing] on those facts he deems important to the exercise of his sentencing discretion."  Everyone clear on that bright-line distinction?

Further clarifying the bright-line rule, Justice Ginsburg herself cast two votes that, many people have noted, contradict each other.  That in itself isn't remarkable: many other justices have done the same.  But what's different about Ginsburg's accomplishment is that she cast contradictory votes in the same case!  Try it yourself sometime and you'll acquire greater admiration for the accomplishments of this remarkable woman.

She achieved the feat in Booker, involving the much-loathed federal Sentencing Guidelines.   As Justice Alito observed in last Monday's case, "[t]he California sentencing law that the Court strikes down today is indistinguishable in any constitutionally significant respect from the advisory Guidelines scheme that the Court approved in [Booker]."

Ginsburg disagrees with Alito, but her disagreement makes his point: she says the systems are different because the California system (bad) required the judge to choose between three possible sentences based on his or her evaluation of the offense and offender, whereas the Court-modified Guidelines (good) result in a specified sentence unless the judge thinks an adjustment is warranted based on his or her evaluation of the offense and offender.

Everyone clear on that bright-line distinction, too? 

For Ginsburg to claim the Court's recent precedents establish a "bright-line rule" might not qualify as fatuous by itself - it could be defended as harmless wishful thinking, a morale-boosting memo to herself, a way to pretend the Court isn't flailing around making a mess of things for no particular purpose.

What elevates her opinion into the level of fatuity is the arched-eyebrow of her "remarkably".   Sorry to break the news to you, your honor, but your court's precedents still don't draw a bright line.  They are, in fact, as self-contradictory as your own two votes in Booker.

But Ginsburg tops her fatuity with impressive intellectual dishonesty.  That combination makes Cunningham the first-ever opinion to rate inclusion in both the Fatuity Watch and Intellectual Dishonesty Watch categories

There was a time, not so very long ago, when justices of the Supreme Court wrote (and acted as if they believed) that "the highest court of the state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be accepted by federal courts as defining state law".   Justice Ginsburg's dissent in Bush v. Gore criticized the lawless majority opinion on just that ground: Chief Justice Rehnquist, she wrote, had unconstitutionally asserted the power to "revis[e] a state court's construction of state laws". 

The core of her holding in Cunningham, however, is that the California Supreme Court misinterpreted California's sentencing laws.  The California court interpreted its state's sentencing statutes to avoid a  constitutional problem - exactly as the U.S. Supreme Court itself did in Booker.  But Ginsburg revised the state court's construction of state laws.

Ginsburg doesn't even attempt to explain why it was wrong as a matter of constitutional principle for Bush v. Gore to revise Florida's interpretation of its election laws, but right for Cunningham to revise California's interpretation of its sentencing laws.  (It's not nearly enough to say some constitutional right is at stake - the guilty five pretended to believe that in Bush v. Gore, too.  Justice Kennedy is still trying to keep up the pretense.) 

But then, Ginsburg never explained her contradictory opinions in Booker, either, unless declaring last Monday that they established a "bright-line rule" counts as an explanation.

It might seem hypocritical to be feeling sorry for someone pilloried on this blog, but it's judges' presumption in telling other people how to live their lives that makes them deserving targets for more attention - and a great deal more ridicule - than they normally receive.  Once they're off the bench, guarded sympathy may sometimes be in order. 

Even Nixon had his moments of pathos, but they didn't begin until he left the White House. 

Reynold Mason was the former NYC judge who declared the judiciary wasn't bound by the legislature's landlord-tenant laws requiring rulings within certain time limits.  His living-museum exhibit of the distinction between the rule of law and rule by judges didn't cause him any problems.  It was only rent-controlled irregularities in his personal life that brought him down.  (See post 107.)

Now his ex-wife is sharing with the New York Daily News excerpts from her memoir about the ex-judge.  I'm sorry, that's just piling on.  The guy's selling real estate in Georgia - that's punishment enough.  Time to leave him in peace.

UPDATE:  I take it back.  (From the Daily News: "A former Brooklyn judge [Mason] was found in default yesterday for stiffing his kids out of nearly $230,000 in child support, setting the stage for a judge to order his arrest.   ... [Mason's ex-wife] faces eviction from her home in a New York suburb, where she is raising two teens and a 9-year-old on the wages she makes at Wal-Mart.").  No more pangs of sympathy from this blogger!

As I was saying, for someone who's spent his whole career practicing law in New Mexico (state motto: "the Louisiana of the desert"), it's a bit hard to understand what the Daily News calls "the exploding 'judgeships for sale' scandal".  In all honesty, I don't think I had ever stopped to think that there was something criminal about political leaders selling judgeships to the highest bidder. 

In Brendan Gill's memoir Here at the New Yorker - if my memory can be trusted - he describes getting drunk with another staff writer.  He winds up spending the night on the colleague's couch.  In the morning the guy gets up and vomits loudly into the sink.  While Gill comments on it, the guy is genuinely surprised: "Doesn't everyone vomit first thing in the morning?"  That's kind of the attitude I had about selling judgeships.  Doesn't everybody?

The Village Voice has been all over the Brooklyn story, as indicated by this breathless intro:

The haunting whisper in the courthouse corridors of Brooklyn was heard for so many decades it became an axiom, as unchallenged as it was unproven.

It wasn't just that a case could be fixed. The darker secret was that the bench itself had been bought, that its polyester black robes were on a perpetual special-sale rack, that smarmy party bosses, ensconced at 16 Court Street across from the supreme court they ruled, demanded cash tribute to "make" a judge.

And now former Brooklyn political boss (that's too grand a title - bossling, perhaps) Clarence Norman is on trial for selling judgeships.  Well, not directly - the charge is that he "strong-armed" judges into hiring loyal party soldiers (i.e., allowing them to skim off campaign funds) as a condition of their nominations.  But, promises the Times, even juicier allegations are "in the air":

One came from a sitting judge who, law enforcement officials have said in recent days, told a Brooklyn grand jury that he believed that more than $40,000 was delivered to Mr. Norman by a supporter to secure his appointment to State Supreme Court in 2001.

The other came from the ex-wife of an ex-judge, who was quoted yesterday as saying that she saw her ex-husband hand a party official $5,000 to help clinch his spot on the ballot.

In New Mexico, it's simply accepted that a certain percentage of judgeships are doled out to people who have done their share for the person doing the doling-out.  Many judges get on the bench by sheer merit, others win with well-run campaigns, others just luck into it, but there's always rumors of the contributions given, or fund-raisers hosted, to seat certain somebodies (and not necessarily the worst judges, either).

Currently the rumor is that President-elect Bill Richardson, who's killing time before his inauguration by serving as our governor, already has plans to fill the next vacancy on our state Supreme Court with a certain person who long toiled in the darkest corners of the political jungle, where he bedded down with creepy-crawlies - and gave them unnameable diseases.

No matter how much money this person gives our President-elect, appointing him to the state Supreme Court would be like making a convicted pedophile the public face of a ministry that attends to the spiritual needs of the children of inmates  ... No, wait, we do that here, too. 

("'He was not around children,' attorney Dan Marlowe said in an interview after the [parole revocation] hearing. 'He was working at a ministry where children were present.'")

If I were an opposition-research aide for, say, Hillary or Obama, I'd have somebody in New Mexico looking for witnesses who might know something about Brooklyn-style judge-brokering going on down here.  I'll even provide a hint about how to find such a witness: go to downtown Albuquerque during lunch hour on a weekday and ask the first person you see wearing a dark suit.  If you need confirmation, talk to the second person you see in that get-up.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I was given a copy of the new book A Perfect Mess: The Hidden Benefits of Disorder--How Crammed Closets, Cluttered Offices, and On-the-Fly Planning Make the World a Better Place, but unfortunately I lost it on my kitchen counter.  I'm confident it will reappear in the fullness of time, as the piles naturally churn.  In the meantime I take solace in the Economist review:

Untidiness, hoarding, procrastination and improvisation are not bad habits, the authors argue, but often more sensible than meticulous planning, storage and purging of possessions.

That is because the tidiness lobby counts the benefits of neatness, but not its costs. A rough storage system (important papers close to the keyboard, the rest distributed in loosely related piles on every flat surface) takes very little time to manage. Filing every bit of paper in a precise category, with colour-coded index tabs and a neat system of cross-referencing, will certainly take longer. And by the end, it may not save any time.

I've long been a believer - Well, not exactly a believer, a devotee, shall we say, of the horizontal filing system.  I once read a suggestion that the ideal desk would take the form of a gigantic lazy Susan, like those you sometimes see in Chinese restaurants but without the table beneath.   It would be built on a scale to fill the entire office, with room for a couple chairs accessible from the door.  Think of the savings in file folders alone!

 But there's such a thing as taking a good thing too far.  Under the headline "Jurist could lose job over messy habits," the Los Angeles Times reports:

By his own admission, Riverside County Superior Court Judge Robert G. Spitzer's chambers were so messy and disorganized that it frequently took him weeks, if not months, to find his own court orders.

Spitzer would stack overdue orders on the courtroom's windowsills and banisters without making sure his clerk had processed them. As a result, some cases were delayed a year or longer — or never resolved, according to the California Commission on Judicial Performance.

Alas, if only an Oxford don-worthy untidiness were his only sin.  The Commission (its history and powers are well-described here) charged that he failed to act on many matters, true - but also that he backdated documents, on one occasion causing a party's appeal to be dismissed because it appeared the party had missed a crucial deadline.  He's alleged to have had one case - a small claims case involving a roofing company - pending for 6 years, until he eventually conducted a second trial, apparently to remind himself of the facts.  All this time he was routinely signing pay vouchers in which he swore he had no matters that had been pending for over six months - or so the Commission alleges.

He also is said to have based his decisions during trial on conversations he had with people, including witnesses, outside the presence of the attorneys.  He jawboned the mother of a person killed by a drunk driver, trying to get her to agree to a plea bargain that the prosecutor had never offered - and then threatened to dismiss the charges unless the prosecutor changed his tune.  Or so it is alleged.

To top it off, the Commission says, when it sent him a "preliminary investigation letter",  Spitzer didn't respond.   Not so, says the judge.  He claims he actually did file a response, six months after he received the letter.

So what's the judge's explanation for the problems in his office, for improper contacts with witnesses, for trying to use a victim's mother to pressure the DA?  "'In every instance, it was his obsession with preserving judicial resources' and keeping trials from being delayed, [his attorney Reg] Vitek said."

Nkola Motata, a judge of the Pretoria High Court (a trial court of general jurisdiction) had an accident while driving his Jaguar.  It happens.  The judge explained to the Sunday Times:

“I wasn’t drunk at all ... I had been with one of my colleagues earlier that night drinking tea,” he said.

He claimed he had accidentally reversed into the wall after narrowly avoiding a reckless and speeding car.

“I reversed a little further and I knocked into someone’s wall ... I just dented the wall because I sustained a scratch on the bumper and my tail-light is a bit damaged,” said Judge Motata.

He claimed to have been calm and patient throughout the incident but admitted asking “ him [the owner of the property] to settle this matter without the police ”.

Unfortunately for the judge, the crash drew a crowd.  And members of the crowd had cell phones.  And cell phones aren't just for yakking any more.  (I know I'm dating myself, but I can remember a day when telephones didn't have bass control.)  The Jo'burg burghers took pictures of the glassy-eyed judge sitting in the driver's seat of his Jaguar, which had just gone right through a cinder-block wall.

And they recorded the judge's calm and patient exchange with the property owner.  (The recordings are difficult to understand if you're not familiar with the South African dialect / accent, but the Times thoughtfully transcribed them.  The ellipses are all in the original; the triple asterisks show where I've made a jump.)

Driver: I know the law. Let me go to the law. I don’t care about it. Ja, you mustn’t look at me as a black man. Let me go before the law…Fuck him. Fuck him. He mustn’t insult me. Fuck him. Anybody who insults me, I say fuck you.

Homeowner: Who’s insulting you?

Driver: If you insult me…

Homeowner: Who’s insulting you?

Driver: Listen…

Homeowner: But you have to answer. You’re making an accusation…

Driver: Hey! I say listen…

Homeowner: You have to answer the question if you’re making an accusation…

Driver: Ah, fuck you! Please.

Homeowner: You being disrespectful to me.

Driver: Ah, I don’t care about you.

Homeowner: I’m the owner of the house. I’ve come here to see what damage you’ve done.

Driver: Ja. F off…Any damage to your house, don’t insult me.  ***

Homeowner: It is my opinion that you are drunk, yes, because you smell of alcohol, you’ve driven through my wall…

Driver: You talk rubbish!

Homeowner:…You don’t walk straight…

Driver: Don’t talk rubbish!

Homeowner: I’m not talking rubbish.

Driver: I’m telling you now you’re  talking rubbish

Homeowner: One, two, three, four, five…

Driver: I don’t care about your workers…(indistinct)

Homeowner: …Six, seven. There’s eight people here

Driver: I say, don’t talk rubbish.

Homeowner: I don’t have any workers here…(Indistinct as driver shouts him down)

Driver: ...Fuck you...I say fuck you

Homeowner: [My tenant] is a senior manager at one of the banks.

Driver: I don’t care about your senior management. He doesn’t work for me.

Homeowner: He’s my tenant, he's not my worker. He’s a senior manager at one of the banks.

Driver: Oh, get to hell. Get to hell.

Homeowner: Don’t fall over! Whoa! Careful! Don’t fall over! He can’t even stand straight.

Driver: (Indistinct)…senior management at the bank.

Homeowner: But the difference is that he is a senior manager, he’s not a worker. He’s not a worker, don’t insult him.

Driver: But I’m talking to you, not to anybody else. I’m talking to you. You get to hell!

Homeowner: I’m a hard worker…yes, you’re right.

Driver: I’m happy for you. You are doing well for yourself. That senior messenger, you are talking rubbish about him.

Well, okay, it was pretty strong tea. 

Once the recordings became available on the web, the judge changed his tune, and the most recent news is that he's taking a 6-week leave of absence.  No word yet if he's checking into rehab or taking anger management classes like  others brought low by cell phones.

It must be said that by the sixth of the cell phone recordings, the judge had calmed down (but note how he maintained his lawyerly refusal to commit to a definite position on the key issue):

Driver: I say, this guy , there’s no way that I can come in and not knock this wall. I’m wrong. I knocked his wall. I’m wrong. I have got to pay. Not that I’m either drunk or sober. Hey, this is his wall and I’ve got to pay. Sir, do you understand me. I’ve knocked your wall whether I’m drunk or not…

Homeowner: But you have also breached the security that we provide…

Driver: I say, security or whatever. I have knocked your wall. I’ve got to pay.

Homeowner: Ja

Driver: Ja, I’ve got to pay, whether I’m drunk or not, I’ve got to pay. It is not a  question of I’m drunk or sober. I’ve got to pay.

Homeowner: That is not for me to decide…

Driver: No, no I’m telling you. I’m saying I’ve got to pay for whatever I’ve done which is wrong. I don’t want to fight with this man. I don’t. I don’t

Homeowner: Well that is a change in your attitude from earlier on.

Driver: No, no. I’m not changing. I say if I get into your wall, in your wall, whether I’m drunk or sober, one thing that remains: I’ve got to pay. Now I say to you, I give you my particulars, I’ve got to pay, Honestly, I want to give you my particulars and I want to pay for the damage I’ve done to you.

Maybe he should have started on that note.  (Although as of January 9, three days after the wall came down, its owner was complaining he hadn't been reimbursed yet.)   An interesting piece republished in the Independent Online calls the incident a triumph of citizen-journalism.  That's one way of looking at it.

But another article available on the same source (headlined "Do You Know Who I Am?") compares the incident to other examples of South African officialdom acting badly when cell phones were not, alas, readily available - a reminder how easily, and how often, words backed by power can make reality appear no more substantial than themselves.

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.

A year-end AP story provided a list of causes for a recent rise in criminal violence - and it didn't mention the government.  (See post 212.)  But if the Missouri cops had caught Michael Devlin after the first boy was kidnapped, the second boy would have been spared the ordeal.

It's a banal point in itself, but it leads to a point that is not banal - that is, in fact, actively resisted by most lawyers and judges.

Here in Albuquerque a couple was murdered on New Year's Day, shot in their SUV.  The chief suspect - who left tracks in the record snow that dumped on us, leading police directly to his motel room - turned out to be wanted for questioning for a very similar shooting that happened last fall in Lubbock.  If Lubbock police had caught him, he wouldn't have killed the two women in Albuquerque.

This isn't to suggest that either the Missouri or Lubbock police failed to do their jobs.  There may not have been any more that they could realistically do.  But the cause-and-effect relationship between a failure to arrest and subsequent violence is obvious enough that courts are increasingly prepared to say that police can be sued when they don't arrest the bad guys fast enough.

Just a couple years ago, in a decision that was eventually reversed by the Supreme Court, a panel of Tenth Circuit judges ruled that Colorado police could be sued for violating a woman's constitutional rights

when [they] failed to enforce a restraining order against her estranged husband, Simon Gonzales, after he abducted the children. While Ms. Gonzales was seeking enforcement of the order, Mr. Gonzales murdered the children.

On those dreadful facts, the Tenth ruled, Ms. Gonzales was entitled to go to trial on the theory that the cops violated her constitutional "entitlement to have Simon Gonzales arrested."   (Here's the en banc opinion taking up more space to reach the same conclusion.) 

(The phrase "en banc" is meaningless in itself - "on bench" - but for some reason this scrap of gibberish is universally used in the American legal biz to signify all the judges, as opposed to the usual 3-judge panel.)

In 1997, New York's highest court concluded that sometimes survivors could sue the cops for failing to arrest a suspect.  That case once again involved a predictably murderous husband, proving the justice of the Alaska Supreme Court's observation that courts are most inclined to find against the police when confronted with "egregious facts".  That is, the police can't be sued for failing to arrest somebody - unless things turn out really badly.

(Of course, if the cops had arrested the suspect, thus preventing things from turning out badly, the arrestee could have sued for false arrest.  That's the beauty of the legal system - there's money for lawyers either way.)

The idea that a screw-up by the cops can lead to additional suffering is obvious enough.  But isn't it equally obvious that a screw-up by the criminal courts can do the same?  And (this is where it starts to get tricky) isn't it also true that sometimes adherence to the rules - that is, the failure to screw up - can also lead to unnecessary pain, degradation and death?

Tune in tomorrow.  Same bat-time, same bat-channel.