JUDGING CRIMES

The United States was founded on a contradiction: all men are created equal; our Constitution enshrines slavery.  (See post 239.)  The Civil War was an attempt to resolve that contradiction.  To this day that's not fully understood.  There are still books being written, and plenty of university lectures being given, showing that Lincoln "really" wasn't opposed to slavery, since he did nothing to abolish it before the Emancipation Proclamation, and that only applied in the Confederate states.

But when Lincoln became President he took this oath:

"I do solemnly swear (or affirm) that I will faithfully execute the office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

That meant he swore to protect and defend slavery.   If Lincoln can justly be charged with hypocrisy on the issue of slavery (real hypocrisy, as opposed to political trimming, or talking like a 19th-century man) it's because he took that oath.  His inauguration was the moment when he compromised with evil.

The Civil War was a massive federal intervention in the internal affairs of the states.  The Southern politicians with their constitutional theories - John Calhoun and Alexander Stephens poured a lot of energy into theorizing, and Jefferson Davis elaborated on their theories after the war - had a point: the pre-war Southern order was constitutional.  That was the problem. 

The Confederacy was, in a dark and (to this day) disturbing sense, a constitutional movement.  When modern Americans reject out of hand the pre-war Southerners' constitutional arguments, we engage in political denial.  The evil at the heart of pre-War Southern culture wasn't that it was based on bad constitutional doctrine.  We'd like our law to be moral, but that wish doesn't make law and morality coextensive.  There are still those who insist it was lawful for Cromwell to massacre the citizens of Drogheda, too, as if that were the point. 

In a constitutional sense, the North rather than the South was the rebellious party.  The North used overwhelming violence to smash the pre-war constitutional order.  After the war the Constitution was fundamentally rewritten to institutionalize the North's victory.  That was the meaning of the three Civil War Amendments.

Don't let their brevity fool you.  They fundamentally changed the American political structure.  The Bill of Rights, when originally drafted (Justice Scalia's historical fantasias aside - see post 238), restricted only the power of the central government.  The 14th amendment's privileges or immunities clause made it a restriction on state governments, too. 

The 15th amendment reads:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

It's easy for modern Americans to think of that as little more than pious boilerplate, like the want ads that assure you Company X is an equal opportunity employer and that University Y "encourages applications from women and persons of diverse ethnic backgrounds."  Who could be opposed to that?

But when you pause to remember what Martin Luther King was doing in Selma - nearly a century after the 15th amendment's ratification - you realize one reason why the 15th was the last of the Civil War amendments to achieve ratification.  

But there's another reason 19th-century American conservatives - even those relatively without racial prejudice, the solid Lincoln men - found it difficult to accept the 15th amendment.  That other reason is contained in the little phrase "by any State."   This, rather than the guarantee of voting rights itself, enshrined the Union victory.  It meant that the federal government could intervene in the operations of state government.  It was a threat to send Sherman down to Georgia again, if the readmitted states attempted to reimpose their pre-war political systems.

There really can't be much doubt that the pre-war Southern state governments faithfully reflected the wishes of a majority of their states' voters.  If "democracy" is defined as majority rule by registered voters, the seceding states were democracies.  And that means that the Union victory overthrew democratic governments to impose a form of political rule that - seemingly by definition - was other than democratic. 

One answer is to say that Lincoln was himself democratically elected, and that the  principle of majority rule must mean the aggregate majority prevails over each subsidiary majority.  Another answer is to say that the Southern states restricted the franchise so drastically - no women, no Blacks, no propertyless white trash - that they weren't true democracies, anyway.  The country club's membership committee might operate by majority vote, but that doesn't give the gentlemen in white cleated shoes the right to tell the rest of us how to live our lives (even if no one has broken the news to them yet).

A third answer is that democracy is a means for achieving a relatively just society, while slavery prevents that achievement, making its eradication a precondition to true democracy.  But the fourth and, I think, conclusive answer is simply that the South lost the war.  The Civil War, rather than the founding - rather than Marbury v. Madison - was the decisive event in America's constitutional history. 

That sounds jarring, but only because we - at least, the lawyers and judges among us - like to pretend that law is based on something other than force.  The real-world authority of judges is wholly dependent upon precisely those law enforcement officers they condescend to in their opinions - and an imperfectly-suppressed awareness of that dependency explains much of the condescension, I think.  People don't obey judges because the judges possess unassailable moral authority, but because they don't have any choice.  Moral authority is indeed a great and good thing, but moral authority backed by Kevlar-suited SWAT teams is even better. 

Judicial power consists of eliminating freedom of choice.  (I tell my paralegal students that the way to distinguish primary and secondary sources of the law is that primary sources can make you do things you don't want to do.)  The Union's military victory in the Civil War was an injunction on a massive scale.  (Talk about class actions!)  The Union eliminated the white Southerners' freedom of choice - which is what any effective law does to anybody subject to it.

The great tragedy that befell the United States in the second half of the 19th century was the Supreme Court.  The post-war  Court bent its energies to reconstituting the pre-war political order, the one familiar to the justices from their salad days at the bar.   It must be said in their defense that they didn't outright prohibit the enforcement of the 13th amendment, abolishing formal slavery, but perhaps only because no one litigated the issue all the way up.  (They did, however, rule that the amendment had no effect on pre-war contracts for the sale of slaves, since anything else would be a taking of slave property without just compensation.) 

But they drew the line at the 14th and 15th amendments.  American courts, the Supreme Court ruled, could not be permitted to enforce those.  Otherwise, the legal system would be fundamentally altered.  (See post 244.)  As Justice Field ossified, he came firmly to believe that the Civil War amendments altered the pre-War order only with regard to slavery.  For example, in denying the right of the federal government to coerce a Virginia official into permitting Blacks to serve on juries, Field wrote:

I cannot think I am mistaken in saying that a change so radical in the relation between the Federal and State authorities, as would justify legislation interfering with the independent action of the different departments of the State governments, in all matters over which the States retain jurisdiction, was never contemplated by the recent amendments. The people in adopting them did not suppose they were altering the fundamental theory of their dual system of governments.

His mode of argument, that the meaning of constitutional provisions is to be divined from the intent of the framers rather than from the meaning of the words on the page, and that individual Supreme Court justices can confidently determine the single intent that motivated millions of people, has, strangely enough, not yet been ridiculed into oblivion.  (See post 79.)

Working on their conviction that neither the Civil War nor the Civil War amendments altered the fundamental theory of the American system of government, Field and his fellows finally succeeded in surrendering to the Confederacy 31 years after Appomattox.   (See post 244.)

It was only two decades later that some of the justices - including that Union veteran Oliver Wendell Holmes - began to have second thoughts about the long surrender.

A 3rd Infantry Division after-action report explains part of the ongoing catastrophe: "The president announced that our national goal was 'regime change.'  Yet there was no timely plan prepared for the obvious consequences of a regime change."  The result was "a power/authority vacuum created by our failure to immediately replace key government institutions."

Even the 3rd ID's lawyers staked out a relatively definite position, which is somewhat unusual for members of a profession reputedly addicted to the use of so-called weasel words.  The judge advocate's section of the report said: "The failure to  act after we displaced the regime created a power vacuum, which others immediately tried to fill."

In retrospect, of course, this is obvious stuff.   We all knew that, right?

When I first read about that report in Thomas E. Ricks' extremely good, extremely sad book Fiasco: The American Military Adventure in Iraq, I was reminded of something Justice Jackson said in 1949:

I suppose no one would doubt that our Constitution and Bill of Rights, grounded in revolt against the arbitrary measures of George III and in the philosophy of the French Revolution, represent the maximum restrictions upon the power of organized society over the individual that are compatible with the maintenance of organized society itself.

He was talking about the Constitution and Bill of Rights we had in 1949, which were considerably different from the current documents going by those names.  (Like Toyota, the Supreme Court recycles the old names when it rolls out the new models.)  

Starting in 1961, the Supreme Court committed the United States to a prolonged experiment to see if Jackson was right.  For the next 46 years it has imposed ever-greater restrictions upon the power of American society over the antisocial individual.

The Court's experiment coincided with LBJ's Great Society housing program.   This, like the daycare center moving next door to the dingo farm in the Far Side cartoon, was not an ideal confluence of circumstances. 

What happened when the Court diminished the community's power to police the projects?  More or less exactly what has been happening in Iraq since 2003:  a power vacuum was created,  and it was filled by organizations even less responsive to democratic politics than the Chicago City Council.  Justice Jackson was proved correct: further restrictions on the power of society to police itself were, as it turned out, incompatible with continued earthly existence for many thousands of the most vulnerable Americans. 

In short, it turned out the Supreme Court didn't have a Phase IV plan, either.  Like the Bush administration, it produced a power vacuum and considered its mission accomplished.  One difference is, the Bush administration is belatedly paying a political price, but the Court has so far managed to make others pay its political bills.

Want to amaze your friends with your ability to predict the outcome of cases argued in the United States Supreme Court?  Now you, too, can master the arcane arts of American Kremlinology.  There are only a handful of rules to learn, and they fit snugly in just three categories.

The first category consists of gimmes - the easy cases, the ones that require no more thought than the justices themselves give to them.  The second category are the negative rules: the classic mistakes.  The third category contains the rules of prediction proper. 

(But all, it must be remembered, are subject to the 5% rule – even the gimmes.  In roughly 5% of cases, the justices will predictably depart from their settled patterns just to prove they can.  Grand jurors do the same thing.)

Category One: The gimmes.

Capital litigation.  Scalia and Thomas will always vote to uphold a death penalty.  (See post 131.)

Justice Ginsburg's magical thinking.  Justice Ginsburg is committed to the idea that any federal judge is, by virtue of that little ceremony involving pixie dust that traditionally concludes Senate confirmation hearings, superior to any state court judge.  She will always vote in favor of increased federal oversight of state criminal courts.  (See post 243.)  Except, that is, when she votes to slap down the Ninth Circuit, when a greater principle is at stake.  (See "cui bono", below.)

Ninth Circuit slapdowns.  Whenever the Supreme Court agrees to hear a Ninth Circuit decision in a habeas corpus case, it means the Ninth Circuit will be slapped down, usually by a unanimous opinion.  Most recent example: last month's Bockting decision, in which not one of the nine could find a good word to say about the Ninth Circuit.  This isn't because the Ninth Circuit is particularly "liberal" (see "the classic mistakes," below), but because it's so large.  Its judges know the numbers are on their side.  The Supreme Court can't - or, more accurately, can't be bothered - to review more a tiny percent of their decisions, so they don't have any incentive to do what the Supreme Court says.  They can make up the law as they go along.  As a practical matter, the Ninth Circuit is the Supreme Court in the far West.

Every year, the Supreme Court goes through the ritual of showing what it could do to the Ninth Circuit, if it wanted to.  The Ninth Circuit, you'll notice, is not intimidated.  Its judges know they're going to be reversed every time the Supreme Court grants certiorari in one of their habeas cases, but they'll have issued several dozen additional decisions by then.

Category Two: The classic mistakes.

Republican / Democrat.  (Note: Bush v. Gore is the 5% rule in operation.)  Newspaper reporters constantly make the mistake of assuming that because the Court is "turning right"- a turn it has been making since Clement Haynsworth - it will seek to accommodate Republican talking points.  But the justices consider it very vulgar to be seen doing partisan politics.  Not because that would be improper for members of the Court - if they did it, then by definition it wouldn't be improper - but because it's beneath the Court's dignity.  Being above the fray is the mark of the Court's superiority to democracy.  And if the Court weren't superior to democracy, what possible justification could it have for thwarting the people's will so often?

Right-left ideology.  This classic mistake is related to the last, but it's not the same.  While it's easy to guess the presidential votes of the justices - after all, they voted in public in 2000 - few of the cases heard by the Supreme Court are useful fodder for, say, the sort of questions used to vet prospective Iraq rebuilders during the heady first days of the occupation.  Most Supreme Court cases can be made to fit into the freeze-dried categories familiar from Heritage Foundation press releases only by trimming them of exactly those subtle and pseudo-subtle intricacies most calculated to excite the minds of Supreme Court clerks.

It's a category mistake to think of the world of the courtroom as part of the real world.  The courtroom is its own little biosphere.  Analyzing Supreme Court decisions with the template used to analyze congressional politics is like applying NBA rules to Nintendo.

The legal merits.  Unlike the first two, this classic mistake is most commonly made by lawyers, not journalists.  The legal merits of a case in the Supreme Court aren't necessarily irrelevant to the decision reached, but at most they serve as tiebreaker.  That's not a cynical remark.  The Court makes the merits meritorious.  Referring to the "merits" of the Supreme Court cases like referring to the artistic value of a canvas after stretching and prepping but before the first color has been added.  The Court doesn't decide cases on the merits; it decides cases and then tells us what the merits were.

The decision-making matrix

Now, as Mick Jagger said, we get down to the nitty-gritty.  Once you're sure you've avoided the classic mistakes, and you've put the gimmes to one side, you're ready to predict Supreme Court decisions.  It's a three-step process, as simple as A-B-C.

A.  Cui bono?  "Let Cassius's famous question, Who benefited? be asked about these people."  In the overwhelming majority of Supreme Court cases, this is the decisive consideration.  Just ask yourself these questions:

1.  What result would be best for the individual justice writing the opinion or the Court as an institution?  If the answer is clear, that is the result of Court will reach.  If the answer is unclear, proceed to the next question.

2.  What result would be best for the federal judiciary?  If the answer is clear, that is the result of Court will reach.  If the answer is unclear, proceed to the next question.

3.  What result would be best for judges generally, state as well as federal?  If the answer is clear, that is the result of Court will reach.  If the answer is unclear, move on to "status of the parties."

B.  Status of the parties.  If the cui bono decision-making matrix doesn't lead to a clear answer, the justices look to the respective social statuses of the parties.  Probably they don't do this quite consciously, but middle class, middle-aged, educated white male defendants do very well in the Supreme Court, as long as their victims are people the justices (and their clerks) find it less easy to identify with.  The important thing isn't the defendant's status per se, but his status relative to that of his victim.  (See post 102 and post 228.) 

When applying both A and B, keep in mind that judges are, by self-selection, people who enjoy wielding power.  In fact, "wield power" is a judge's job description.  It's not a bad thing that judging attracts people who find power attractive.  On the contrary, there are few things more useless than an indecisive judge.  But it means that the self-interest of judges will always bias them to favor the ruling that increases their own power, or the power of their institution.  That's the cui bono rule.  After all, you have to possess power before you can use power to do good.  So if you want to do the maximum good, you first have to maximize your power.  In fact, maximizing your power is the same as acting for the good of the Republic.  (See "Justice Ginsburg's magical thinking", above.)

The other side of the coin, however, is that people who like power tend to have little time for weaklings.  The conditions that manufacture "born victims" are well-understood but the psychology is of less than no interest to those in whom self-defeating behavior arouses revulsion rather than pity.

C.  Legal arguments.  This is where the lawyers come in.  We'd like to think we have greater influence than this placement suggests, but that's vanity talking.  I do believe we have a marginal influence in many cases, and a marginal influence will make all the difference in marginal cases.  But, as every lawyer knows, you can only play the cards you've been dealt.  Even your opportunities for cheating are seriously circumscribed.

Suitably modified to accommodate local conditions, these simple rules explain the inner workings of every other court in the country, too.

And now you know!

Admittedly, the following news story would get better traction in American media if San Francisco, the site of the American Bar Association's 2007 annual meeting, were substituted for Lahore:

Police stood ready in major cities to act against angry lawyers and succeeded in keeping the protests under control in all cities, except in Lahore, where they baton-charged lawyers breaking through police barricades, causing injuries to 40 and arresting about 25.

Aristotle divided the world of poetry into the comic, the tragic and the epic.  Here in America, lawyers, whenever they gather in large groups, show a strong preference for the comic.  The ABA's House of Delegates, for example, is reliably good for a laugh, although it's the same joke every year: the cosmic disparity between the delegates' self-importance and the utter indifference of everybody else in the world.

In Pakistan, however, it's not yet certain if we're in the midst of a tragedy or an epic.  The Sydney Morning Herald has a striking photo of tear-gassed suited lawyers bathing their eyes in a public fountain, dating from yesterday's second day of rioting.  The Morning Herald also provides some much-needed background for those of us coming late to the story:

The second day of clashes between police and lawyers on Saturday over the suspension of Iftikhar Chaudhary on March 9 prompted the President, Pervez Musharraf, to say conspirators were stirring up trouble.

The attempt to get rid of Justice Chaudhary has united disparate opposition parties against the President.

Justice Chaudhary's suspension fuelled suspicions that General Musharraf feared the independent-minded judge would oppose any move by him to retain his role as army chief, which constitutionally the President should relinquish this year.

Pakistan's English-language paper Dawn is all over the story, with at least six articles in today's edition.  Bloggers have picked it up, with Swaraaj Chauhan at The Moderate Voice providing an overview and a link to an extremely useful, short background article from the South Asia Analysis Group.  It should not be surprising that the story intertwines at least three familiar Pakistani themes: corruption; military dominance of government; and CIA / al Qaeda.  A long list of possible explanations - politics is not simple in Pakistan - is offered at Chowrangi.

Mayank Austen Soofi at Blogcritics tells President Musharraf how he can still save the situation.  (I like the name of Soofi's own blog, Ruined by Reading, and can recommend his compilation of sex tips from Jane Austen.)  (Come to think of it, isn't "Austen" an unusual middle name in New Dehli?)  And speaking of unusual names, Teeth Maestro lays it all out in a single breathless sentence:

There is no doubt in any ones mind that Chief Justice Iftikhar Mohammad Chaudhry was corrupt to some degree, and the all mighty and powerful (read Musharraf) actually believed that taking him out would have been an easy walk in the park, it would not be any more difficult then the coop he served up to roust the Pakistani hero Abdul Qadeer Khan, Musharraf I felt honestly believed if he could get away with Qadeer, Iftikhar was going to be more like easy play dead dogie style rampage.

"So," the Maestro adds, "he took a swipe at the Supreme Court."  My personal feeling is that Musharraf honestly believed it was going to be like easy play dead dogie style rampage, he's getting what he deserved.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What can you do if a state government enacts legislation that clearly - no apologies and no doubt - violates the first amendment?  Why, you wait until a court declares the legislation unconstitutional. 

But what happens if the unconstitutional legislation is enacted by a court?

That's not supposed to happen, given our separation of powers.  But, then, "[i]t will not be denied, that power is of an encroaching nature".  After distinguishing in theory between legislative, executive and judicial power, James Madison wrote in The Federalist that

the next and most difficult task is to provide some practical security for each, against the invasion of the others.

What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated[.]

The uselessness of parchment barriers is demonstrated by the practice, now universal among state supreme courts, of promulgating rules.  Modern lawyers' lives are so bound around by court-promulgated rules that most don't even know that court-made rules are a recent phenomenon, like zits on a preteen's nose.  Here's a useful short description of the sort of legislation courts enact these days, tracing the history of the practice all the way back to ...  1934.  Blackstone, it ain't.  The modern rules regime is as traditional as a tract home. 

Legislation is easily distinguished from adjudication.  One is forward-looking and of universal application.  The other is backward-looking, applying only to the parties actually before the court.  

A rule issued by a state supreme court is forward-looking, of universal application.  (One might quibble and say it's actually administrative rulemaking rather than legislation, but that just complicates the separation of powers analysis without producing a different result.)

A court that enacts legislation is acting in a legislative capacity.  That, I think, is self-evident.  It's when courts enact plainly unconstitutional legislation that things gets interesting.  Take, for example, Oregon's  Uniform Trial Court Rule 3.120.  It says that "parties, witnesses or court employees must not initiate contact with any juror concerning any case which that juror was sworn to try."  (Lawyers are defined as "parties" for purposes of this rule.  UTCR 1.110(1).)

We've learned recently that judges have a first amendment right to hit up lawyers for campaign contributions, even when those lawyers have cases pending in front of the judge.  (The Arkansas Supreme Court recently observed: "While a regulation limiting solicitation or acceptance of campaign contributions may seem to limit a judicial candidate's conduct rather than his political speech, precedent of the United States Supreme Court instructs otherwise."  [See the Simes decision on this list.]  It's that po-faced word "instructs" that gives the irony its bite.)

If the judge's solicitation of money is protected by the first amendment, how is it even possible to think that the Oregon rule is constitutional?  It prevents a lawyer or a party - a party, just a plain ordinary mossbacked Oregonian - from asking an ex-juror to talk about the only thing they have in common.  The rule is what is known - and here we really are talking Blackstone - as a "previous restraint" on speech, or what's generally called today a prior restraint, and those are prohibited except for reasons as compelling as the prohibition on publicizing troop movements in wartime.  

I don't think it's possible even to argue that the Oregon rule is constitutional as written.  It's not on the border.  It's way out there in the middle of Siberia, about as far from any border as it's possible to get. 

So what's a nice state like Oregon doing with rule like that on its books?

The explanation is one Madison would have no trouble understanding.  According to the Oregon judiciary's website, the rule is enacted by a single person - called, with the proper note of tribal subservience, "Chief."  Yes, the Oregon chief justice is personally credited with enacting the whole panoply of rules governing the practice of law in Oregon's trial courts. 

What trial judge is going to say that the chief justice's own personal rule is illegal?  There's no check.    There's no balance.   So a patently unconstitutional law is maintained in place by the people whose job it is to see that the law complies with the Constitution.

(I don't know of any other state that describes its rules as the accomplishments of the chief justice personally.  You could hardly ask for a more straightforward declaration that government by the judiciary has nothing to do with democracy.)

There's currently a proposal in Oregon to amend the ridiculous rule and it seems to have picked up a fair amount of support.  Here in New Mexico it's customary for the judge to tell the jurors they can stick around if they want, but don't have to.  Usually a few accept the invitation, frequently because they have questions of their own.  What they have to say can be extremely useful.

And it's not just useful in the sense of letting a lawyer know that scratching the interior of his ear with the barrel of his pen distracts from his opening statement, or that heavy sarcasm plays better among his lawyer buddies over drinks than it does on cross-examination of a trembling witness answering in a little tiny voice.  Jurors notice everything, but they often process it in a way that wouldn't even occur to lawyers, who tend to run like slot cars in a single track.

One woman I knew was a juror in a case tried by a fairly well-known attorney.  The judge ruled that a certain item of evidence was inadmissible and the lawyer spent the next half-hour trying to backdoor it, attempting various clever stratagems to get around the judge's ruling.  The jurors thought, I know the judge won't let it in, how come he doesn't get it?  They thought: What an idiot!  (His client didn't win.)

Then there was the parental-kidnapping case in which the husband admitted striking the wife, producing a gusher of a bloody nose.  There was the eyewitness testimony of the neighbor and photographs of blood spattered all over the white door.  There was basically no defense to the charge of battery, so defense counsel devoted her closing to other, winnable points, and the prosecutor hardly said more.  But the jury acquitted on that count.

The acquittal seemed to make no sense, especially since the same jury convicted on other, more complex and contested charges.  But then the prosecutor talked to the jurors after the trial was over and heard: "He didn't intend to hurt her, he just intended to kidnap the kid."   The verdict was actually perfectly logical, if you started from the (mistaken) premise that  "intent" means "motive."

These types of insights can't come from any source but the jurors.  Once their service is over, they and the parties and the lawyers are released from the magic spell of courtroom decorum.  They become ordinary American citizens again.  And American citizens are allowed to converse.

I've long noticed that a very high percentage of the "exonerations" engineered by the Innocence Project - the name is an excellent example of "unspeak" - seem to involve violent sex crimes.  If a lesson is to be drawn, it's that it's too easy to convict men of sex crimes against women.

Do you believe that?

Innocent people are sometimes convicted.  I don't think anyone can doubt that, any more than anyone can doubt that guilty people are sometimes acquitted.  (I once had to respond to a brief that cited Barry Scheck's book, and I was happy to concede that Scheck's most famous case showed that juries do, indeed, sometimes reach irrational verdicts.)  No human institution is perfect.  The legal system isn't even in the top 40.

The Innocence Project website claims "195 exonerated."    In 2005, America had the grotesquely high number of 2,193,798 people in our prisons and jails.   So it appears we have an error rate in our criminal courts of 195/2,193,798, or .000088%.

Do you believe that?

If all the Innocence Project did was prove that only a tiny fraction of 1% of all American prisoners are wrongfully convicted, it would actually be establishing how fantastically accurate our judiciary's factfinding mechanisms are.  Yet that's not the lesson people draw from the Project's publicity machine.

In the Washington Post review I cited in the last post, Patrick Anderson wrote:

The recent past has not been kind to America's prosecutors; the growing number of innocent people freed from prison by DNA testing has demonstrated that at least some are overzealous, incompetent or simply corrupt.

Well, a good number of prosecutors are incompetent - the low pay sees to that - but they aren't the ones responsible for the wrongful convictions.  "Overzealous" is an euphemism for dishonest, but I don't know why an euphemism is needed: some prosecutors are dishonest, just like some reporters.  And, you know, prosecutors whose dishonesty is discovered tend to become ex-prosecutors, and another name for "ex-prosecutor" is "defense attorney." 

My point isn't that Anderson doesn't appear to have given the matter much thought, but that an intelligent person who doesn't give the matter much thought is very likely to believe implicitly in the Innocence Project's self-promotion.  

But is there actually any reason, other than the self-promotion, to believe that the Project is freeing the innocent, as opposed to the guilty whose guilt can't be re-proved beyond a reasonable doubt after the passage of many years?  (This question, unlike the earlier ones, isn't entirely rhetorical.  Newspaper accounts of the legal system are notoriously unreliable.  See post 183.   Judges, when they're on their high horses, are even worse.  And true-believer lawyers are the absolute worst, because their lies are in service of a higher truth.  That doesn't leave many sources of information.)

I tried looking on the Innocence Project website for statistics about the nature of the crimes for which the "exonerated" had been convicted.  What percentage of the "exonerated" had been doing time for sex crimes against women?  Maybe the statistics are there and I just didn't find them, or maybe you'd have to tote up the figures yourself.

But, luckily, George Soros paid a gaggle of law professors to assemble the figures for me.  This 2004 report, looking (I think) at a different dataset of freed prisoners, states that "93% of the exonerations for non-homicidal crimes [were] concentrated among the rape cases".  Moreover, "all but a couple" of the murder exonerations "included rape as well."

Why should that be?  A clue is offered by the CBC's deeply touching account of the 26 Vancouver women whose remains were found on Pickton's pig farm.  It's no coincidence that they share much in common with the victims of Ridgway, the Green River Killer.  Sex workers, everyone knows, are at extremely high risk of becoming victims of violence.  Imagine for a moment that the victim of a 10-year-old murder was a prostitute, and testing of samples taken from her body shows the DNA of someone other than the convicted killer.  Does that exonerate the killer?

Yes, of course, provided you use "exonerated" as the Innocence Project does.  

Now, imagine instead that the woman wasn't a prostitute but happened to have unprotected sex with someone the day before she was murdered by someone else.  Ten years later, testing reveals sperm from the first someone.  Does that exonerate the second someone?  Or does it, instead, add one more difficulty to the already-difficult task of retrying a case after so many years, encouraging the prosecution to give up?

The Wisconsin Innocence Project achieved the release of Steven Avery - he's one of the 195 on the national website - and just weeks later the charred remains of a young woman were found scattered around his family's junkyard.  (See post 17.)   Avery's nephew described how he and his uncle tortured, raped and murdered the woman - and how his uncle watched him take his turn, congratulating him on his rape technique.  Supposedly his computer contained all sorts of violent pornography.  (Avery is on trial now.) 

So how does one explain the amazing coincidence that the victim of the earlier rape "wrongly" identified a man who, if the stories are to be believed, not only enjoys sexual violence against women but likes to watch other men committing it, too?

Realizing they were on a roll, the Wisconsin Innocence Project next turned their attention to Ralph Armstrong, whose rape conviction the Wisconsin Supreme Court overturned despite "a mountain of evidence" against him.   Armstrong is well-known here in New Mexico:

On the night of October 3, 1971 at about 11:15 the prosecutrix was returning home. She had parked and locked her car when another car drove up and stopped behind hers. A man, later identified as the defendant [i.e., Armstrong], got down and called to her and as she turned he walked up and took her by the arm. He had a knife in his hand which he held close to her stomach. He ordered her to get back into her car on the passenger side. Defendant then got in and drove to an isolated area east of Albuquerque where the acts complained of were committed.

Defendant does not dispute the fact that the sexual acts complained of took place.  (511 P.2d at 561)

Armstrong's defense, almost hilariously, was that New Mexico's sodomy statute was unconstitutional because it criminalized consensual acts as well as the particular type of anal sex he preferred.  (Almost hilariously, because he got one judge to agree with him.) 

(Incidentally, saying that a person "got down" from a car is a common New Mexico usage, but I've never heard anyone from anywhere else use it.)

Armstrong was on parole from the New Mexico conviction when, according to the jury in his Wisconsin case, he acted on the lesson learned: leave no witnesses.   Four members of the Wisconsin Supreme Court thought the jury's verdict wasn't reason enough to keep Armstrong in prison, given DNA evidence that the victim had had sex with her fiance some time before her murder. 

As pointed out by the dissenting justice,

There is another fact that bears on the testimony about semen.  [The victim] was raped anally and vaginally with a hard object.  Her injuries were not caused by being raped with a body part.  Therefore, it is understandable that semen from the perpetrator of this crime was not left at the crime scene.

So, just like the Avery case, it turns out that a person who was "wrongfully" convicted of this sex crime just happened to be a man who is extremely dangerous to women.  Gee, what are the odds?

Why does "misidentification" happen so frequently with sex crimes?  The Colorado Court of Appeals explained in 1891:

Conviction of [rape] is seldom or never allowed upon the unsupported evidence of the prosecutrix. She is allowed to, and is generally the only witness who can, testify directly to the principal facts,-the perpetration of the offense; but to warrant conviction the evidence of the main fact must be corroborated by other evidence of circumstances and facts sustaining the principal charge. The injured party is legally competent as a witness. “But her credibility must depend upon the circumstances of the case which concur with her testimony; whether she is a person of good fame ..."  (Bueno, 28 P. at 249)

Cases like Avery's and Armstrong's are taking us back to the world in which a woman's testimony is automatically viewed as suspect.  Judges reversing rape convictions no longer write about what a dangerous precedent they would be setting if they allowed a conviction to rest on the woman's "unsupported evidence."   Instead they talk about the unreliability of eyewitness identification.  But it amounts to the same thing.

And judges are too discreet these days to say a woman's "ill fame" makes her testimony unbelievable as a matter of law.  But these two Wisconsin cases show that some judges still believe it.  The slut defense remains a get-out-of-jail-free card: "Look, she had sex with someone else, too, so what I did wasn't rape."

These and other adjectives - I keep the best ones in the back room for my best customers - are available to any publisher who cares to send me a review copy of a good book.  Putnam/Penguin/Perigree/Plume/Portfoilio was the first to take advantage of this offer - indeed, one might even say the acceptance preceded the offer - by sending me a copy of Kevin Flynn's Relentless Pursuit: A True Story of Family, Murder, and the Prosecutor Who Wouldn't Quit.

It's the kind of subtitle that makes you feel empathy for the author.  I mean, you spend years working on this book, you put yourself through the ritual humiliations of finding an agent and publisher, you get lucky, you even get  the big publicity push - even bloggers, by gum! - and .... your publisher insists on a subtitle like that.  No wonder Flynn looks like a depressed Calvin Trillin in his author's photo.

Family is important.  Murder is even more important.  But - drumroll, please - most important of all: this government employee didn't quit!  He's hanging on until retirement!!  Then he'll be out of there like a shot!!!

Janet Maslin, reviewing the book in the New York Times, trying to sound like a TV actor addressing a jury of extras, writes: "And what happens when a federal prosecutor tries to make his biggest criminal case sound like the work of a dramatist? Ladies and gentlemen, a lot can go wrong. The prosecutor may embrace all known crime clichés without using them to attain clarity."

Without using them to attain clarity?  Does Janet Maslin think you can use cliches to attain clarity?  Apparently so, because she proceeds to show Flynn how it's done: "What he does have is a case so open and shut that rendering it suspenseful is a Herculean feat."  That's three cliches in 19 words.  Top that, you JD-wielding novice!

It was not, in fact, an open and shut case.  Flynn (at least in his telling) came within an eyelash of losing it at the suppression hearing (though he would have had a good pretrial appeal).  The circumstantial evidence was fairly strong but far from conclusive, and the theory of motive was extremely weak. 

The victim's friends who emerged after the murders to "remember" hearing threats by someone they had long disliked would not, perhaps, have struck a jury as quite as credible as they apparently struck Ms. Maslin.  One theory of human behavior says that people plotting bad deeds usually don't first detail their plans to their enemies.  (But maybe it's different at the Times.  Was anyone in the newsroom surprised by Judith Miller?)

What got me about Maslin's slam, though, was her confusion about the concepts of "fiction" and "non-fiction."  Criticizing a murder for embodying "crime cliches" is -  Put it this way.  It's appropriate to the times we're living in.  One of the victims was murdered next to a box of diapers, which Flynn knows from the crime scene photos.  Maslin thinks that's a cheap symbol. 

And she concludes: "'Relentless Pursuit' claims to offer a glimpse into the way prosecutors work ... What it captures more accurately is the way writers work when trying to package real life as drama and give it more weight than it actually has."  But - you don't mind my talking about the book as if it were non-fiction, do you? - it does offer a glimpse into the way prosecutors work.   It captures the experience pretty exactly.  (Even though Flynn is a fed - in D.C. they do real crime, not just drugs and immigration.) 

And - at the risk of exposing my hick roots here - there's a part of me that thinks that murder trials are dramatic.  And that murdering two people, and putting a third in prison for life, are things that have a certain inherent weight.  Of course, I don't mean to compare those things to an "aging heavy-metal star buy[ing] a haunted suit over the Internet."

An insight into Maslin's failure of imagination is offered by her sneer at Flynn's "contrived efforts to be close to the [victims'] family."  Flynn was extremely close to the victims, and through them to their family.  He learned a lot about the victims' lives - and everything about their deaths, including a great deal more than their relatives would ever want to know.  Their deaths dominated his professional life for a year or more.

The most impressive thing about the book is the way in which it captures the prosecutor's intense relationship  with the dead, the sense of personal responsibility far beyond professional duty.  I know a prosecutor who has on her office wall a framed photograph of a baby.  Not her baby, but a baby who was killed by her own parents and uncle.  And since the family didn't care enough to take any photos of their baby during her five months of life, it's actually an autopsy photo.  But a retouched autopsy photo, with the bruises photoshopped away.  

(After this was first posted, a prosecutor told me he that when he visited two murder victims in the graveyard - also a mother and child - and saw that the family could only afford small plaques laid in the ground, he paid for proper granite headstones.  It's not exactly a personal relationship, but it's a close one.)

It's perhaps not really surprising that Maslin, in her book-lined cocoon of privilege, is unable to understand what Flynn is writing about.  But too bad that she's so nasty in her ignorance.  The Washington Post's reviewer was prepared to read the book as it is, rather than the novel it isn't, and gets a lot closer to its essence.

Did I mention that the book reads like a combination of Scott Turow and Alan Dershowitz, kept me reading far into the night, you won't be able to put it down, it's a roller-coaster - no, a Zipper! - of an emotional ride.  Four stars!  Two enthusiastic thumbs up!  Don't miss it!  You will never be the same.  But in a good way.