JUDGING CRIMES

One of the truly gratifying things about maintaining a blog is the way judges clamor to see their names up in pixels.  They compete with each other to find themselves immortalized in the Squarespace servers.  You can sense the spirit of determination underlying such spectacular and ultimately successful efforts as this, brought to my attention by two different readers:

2.    Respondent presided in the Domestic Violence Part on a weekly basis from 1999 through March 11, 2005.  The Domestic Violence Part handles cases of defendants who, after arraignment on charges involving violence against family members, have been screened to determine whether they are eligible for a court-supervised, 26-week program of counseling and education.  If accepted into the program, defendants are required to refrain from using drugs or alcohol, to undergo counseling and testing, and to report to court on a weekly basis so their progress can be monitored.  As a matter of practice, defendants in the Domestic Violence Part are released each week on their own recognizance unless they violate a condition of participation, in which case they face the possibility of sanctions, including the revocation of their release and the imposition of bail.  When defendants appear in the Part, they are generally required to remain in the courtroom until the completion of all the proceedings that day, even after their own cases have been concluded.

3.    Shortly after 9:00 AM on March 11, 2005, respondent took the bench in the Domestic Violence Part.  About 70 cases were scheduled, and approximately 70 people were in the courtroom.  In addition to defendants, also present were defense attorneys and prosecutors, court administrative personnel, court security officers, and representatives from counseling programs.  The courtroom was open to defendants and others entering and leaving.

4.    For about 45 minutes, respondent handled in a routine manner eleven cases involving defendants who were participants in the Domestic Violence Program.  In accordance with the customary procedures, respondent questioned the defendants, released them on their own recognizance and directed them to remain in court until the proceedings were concluded.  At approximately 10:00 AM, a device that appeared to be a cell phone rang in the back of the courtroom.  Addressing the defendants in the courtroom, respondent stated:

Now, whoever owns the instrument that is ringing, bring it to me now or everybody could take a week in jail and please don’t tell me I’m the only one that heard that.  Mr. Martinez, did you hear that ringing?...

Everyone is going to jail; every single person is going to jail in this courtroom unless I get that instrument now.  If anybody believes I’m kidding, ask some of the folks that have been here for a while.  You are all going.

 5.    When no one took responsibility for the ringing phone, respondent directed that everyone remain in the courtroom and then took a five-minute recess while court security attempted to locate the phone.  An officer stood at the doorway to prevent anyone from leaving the courtroom.  Prior to that time, there had been traffic in and out of the courtroom.

6.    Notwithstanding the recess, respondent did not withdraw his threat to send all of the defendants to jail if the owner of the phone was not discovered.

7.    When respondent returned to the bench, he was told that the phone had not been located.  Respondent then asked Reginald Jones, the defendant who had been standing before him when the phone had sounded, if he knew whose phone it was.  Mr. Jones replied, “No.  I was up here.”  Although respondent knew that Mr. Jones did not have the phone that had been ringing, he revoked Mr. Jones’ recognizance release, set bail at $1,500 and committed him into custody.

8.    Respondent proceeded to call the remaining cases on the calendar and then to recall the cases of the eleven defendants who had been released on their own recognizance earlier that morning.  Respondent questioned each defendant as to his or her knowledge of the phone.  After each defendant denied having the phone or knowing whose it was, respondent revoked the defendant’s recognizance release and reinstated bail; he set additional bail for two defendants who were previously released on bail.  In total, he committed 46 defendants into custody.  In five of the cases, he revoked the defendant’s release and committed the defendant with little or no discussion.

9.    Three of the defendants committed into custody were making their first appearance in the Domestic Violence Part that day.  The remaining defendants had regularly appeared in the Part as required; 15 defendants had previously appeared on at least a dozen occasions as required in connection with the program; one defendant had appeared 25 times and was one or two weeks away from completing the program.  Only one of the defendants committed into custody had an attorney who was present.

The Respondent in all this was Judge Robert M. Restaino of the Niagara Falls City Court, who had apparently been driven insane by the discordance of the constant clashing rumbles of the falls and the tour busses and was consequently hypersensitive to noises.  Here's the New York Times on the episode, and here's the AP.

Once again we're reminded just how far a judge has to go before he or she faces a serious risk of being removed from the bench.  You have to go to the extreme of experiencing "two hours of inexplicable madness" in a packed courtroom with a court reporter present before the Commission on Judicial Conduct will take the least notice of you.  Sort of like a teenager trying to shock her old hippie Mom, or Damien Hurst - really, you have to try so hard.

And even then there will always be defenders of a judge's right to abuse people "without any semblance of a lawful basis": the Commission's ruling drew a dissent as to the sanction of removal.  Its chair, a well-known divorce lawyer, declared that Judge Restaino had "has an impeccable reputation as a dedicated, fair, hard-working jurist with great integrity" - an opinion as weirdly inexplicable as the neighbors who insist the serial killer was "pretty nice."  I'm sure Judge Restaino has many fine qualities, but an impeccable reputation is no longer one of them.

Ever since Jacob Weisberg took over as boy-wonder editor of the Washington Post's farm team, Slate, we've missed the minutes of the media conspiracy.  Instead, we get the complacently-recycled conventional wisdom straight, without the kibitzing. 

Some of us regret the change, but maybe we're wrong to do so.  Maybe it's just the inevitable process of journalistic growing up.  Maybe we should be happy for Jacob instead that he's found such a comfortable home in corporate media.  Why, I bet the Charlie Rose show wouldn't even misspell his name again if he were invited back today.

The latest evidence that Weisberg has gone over to the other side of the mockery barrier was last week's column by David Greenberg.  Greenberg is great - fabulous, even - when writing about his subject, which is American political history viewed as a manifestation of popular culture.  But that's also his limitation: he sees all American history, including pop culture itself, as an expression of American politics.

Last week's column asked what Ronald Reagan's audience heard when he talked about "state's rights" in  Mississippi during his 1980 campaign.  I don't dispute Greenberg's thesis insofar as it concerns Reagan, Nixon, Goldwater, Wallace or any other politician.   But they weren't the only people alive in 1980.

That was was 27 years ago.   The majority of voting-aged Americans in 1980 had no difficulty skipping back in time another 27 years, to 1953.  To us, living in 2007, 1953 America seems like another planet.  For example,  people slept outdoors in the public parks during heat waves.  The link is to a picture from 1936 Detroit, but Eric Klinenberg's great Heat Wave: A Social Autopsy of Disaster in Chicago includes a similar photo from Chicago, 1963 (follow the Amazon search inside feature to figure 20 on page 57).  And I'm pretty sure the custom survived during the interval between those photos.

No one was sleeping outdoors during heat waves in 1980, unless they had no choice.  America had, in fact, changed from 1953 to 1980, and the change was not necessarily for the better in every detail.  For the entire decade of the 1950s, the national homicide rate was between 4.1 and 4.9 per 100,000 inhabitants.  In 1953 there were 7,210 recorded homicides in the 48 states.  In the year of Reagan's speech, by contrast, the national homicide rate was 10.2 per 100,000.  The total number of homicides in 1980 was 23,040, a three-fold increase from 1953.

Keep in mind the rapidly falling lethality rate of knife wounds and gunshots during the post-penicillin era.  Wounds that would have been fatal in 1953 could be survived in 1980.  The three-fold increase in homicides from 1953 to 1980 meant a greater-than-three-fold increase in the incidence of extreme violence.

With that background, here's Greenberg analyzing Reagan's 1980 speech.  In 1980, he writes,

racial inequities had become intricately woven into many policies and structures of American life—from housing patterns to popular notions about crime and welfare—and any discussion of these issues invariably carried a racial subtext.

Invariably?  Any discussion?  It was impossible to talk about, say, the murder of an acquaintance without talking about race?  Or about how inadvisable it had become to sleep in the park?  Well, perhaps so, but how does Greenberg demonstrate it?  What sort of evidence satisfies the academic historian's exacting standards?  He tells us: authors he admires have written books asserting that

Reagan's success hinged on forging messages to Americans—not just Southern whites, incidentally, but also Catholic blue-collar workers and neoconservative intellectuals—that eschewed explicit racism while still tapping into sublimated resentments of blacks or anger at racially fraught policies like busing, welfare, and crime.

Homicide is racially fraught?  Crime is a policy?  People were angry at that policy, rather than at crime itself?  Well, okay, if you say so.

On one issue after another, Reagan's image and appeal was shot through with a hostility to assisting minorities with positive measures—affirmative action, legal protections for criminal defendants, welfare programs (which mainly helped whites but were perceived as mainly helping blacks).

Legal protections for criminal defendants are a positive measure assisting minorities?  That (I'm convinced) was a primary motive for the Warren Court's federalization of criminal procedure.  But isn't it possible that good motives might produce unintended consequences?  Who, exactly, does Greenberg think was being killed as the homicide rate tripled?  Neoconservative intellectuals?

According to Greenberg - and many, many other liberal intellectuals before him - Reagan succeeded by his deft use of "code words."  Again, I wouldn't be surprised to learn that Reagan's handlers thought in those terms.  That's not my point. 

But notice the projection.  The academic historian of 2007 thinks of Reagan's words as symbols, conveying a message that contrasted with the common understanding of their meanings as words.  Therefore Reagan's listeners in 1980 understood them that way, too.

The academic historian of 2007 has no concern at all about becoming a victim of violent crime in 1980.  Therefore Reagan's listeners in 1980 weren't worried about becoming victims of violent crime, either.

The historian doesn't believe for one second that Reagan was sincere.  Therefore Reagan's listeners didn't believe it, either.

More than that, he believes Reagan's supporters were, without exception, warped idealists, in that they didn't vote to further their own personal interests but rather to advance a racial agenda.  After all, if the voters had genuinely been concerned about crime, Reagan's appeal to them wasn't hidden in "code words."  Greenberg's thesis depends on assuming the paradoxical selflessness of Reagan's nasty-minded voters - all 43,903,230 of them.

In short, the historian despises Reagan and everyone who voted for him.  Therefore he assumes they all thought just like him. 

The liberal academic believes that when millions of Americans told themselves they were alarmed at the rising crime rate, they were either lying or (at best) kidding themselves.  And so here's one more paradox: the academic brand of liberalism, championed by Weisberg's Slate, defines itself by its contempt for citizens of the poorest section of the country and members of the working class (or at least the Catholics among them), and views as unworthy of notice the sufferings of victims of violent crime - people who are, by definition, the most vulnerable among us.

Twenty-seven years from today, will another academic historian find in Greenberg's article a clue as to how the Democrats succeeded in excluding themselves from the White House during 19 of the past 27 years?

Sometimes judges say ludicrous things earnestly, without the extra dollop of smug self-congratulation necessary for inclusion in the coveted Fatuity Watch category.  Take, for example, the opinion written at the end of August by Philadelphia's 76-year-old federal District Judge Jan DuBois, shown here eavesdropping on a conversation between an earnest David Letterman and Ed Harris wearing an overcoat in this fall's hottest color, dung.

The opinion, a 59-page thing, was merely a pretrial order.  But it was entered in United States v. Kofsky, the prosecution of a bariatric doctor, i.e., someone who could afford a ream-devouring defense.   Here's the pdf.  Dr. Arthur Kofsky was "charged in a 476-count Second Superseding Indictment in connection with the distribution of prescription diet pills, phentermine and phendimetrazine, though his medical practice." 

476 counts sounds like a number settled on for the purpose of proving, once and for all, that everything defense lawyers say about prosecutors "overcharging" cases is true.  But, according to an affidavit in support of an application for search warrant, Dr. Kofsky "purchased 32,000 pills the week of June 29, 2004" - so this is a case of Big Numbers all the way around.

A federal magistrate issued the search warrant and federal agents took it into the doctor's office.  While there, they talked to the patients in the waiting room.  At the subsequent suppression hearing, Dr. Kofsky argued that the agents violated his fourth amendment rights by talking to the patients since "the search warrant 'did not contain any language authorizing the agents to extend their intrusion by interrogating patients.'" 

The fourth amendment is concerned with "searches and seizures".   The critical question in every case is whether the defendant "'has a legitimate expectation of privacy in the invaded place.'"  Dr. Kofsky's argument was that he had a legitimate expectation of privacy in the contents of his patient's heads (though presumably his lawyer phrased it rather more artfully).

And Judge DuBois bought it.  He held, in practical effect, that Dr. Kofsky owned his patients' memories.  He had the right - the constitutional right - to prevent his patients from being asked to talk about their own lives.

Of course, Judge DuBois didn't phrase it quite like that, either, though in his case I suspect the imprecision of his language was the result of artlessness.   There's nothing in the opinion to suggest that either he or his clerk understood what their opinion said.  

Whoever wrote the judge's opinion relied on the mechanical mental process lawyers learn in law school.  The syllogism makes sense on its own terms: (1) the agents could lawfully seize only such evidence as was specifically mentioned in the search warrant; (2) the interviews constituted a form of evidence; (3) therefore by obtaining the interviews the agents unlawfully seized evidence not mentioned in the warrant.  

In order to avoid becoming aware of the ludicrousness of recognizing a doctor's constitutional right to control access to his patients' axons and dendrites, it's essential to close your mind to the existence of any facts not stated in the syllogism's two premises.  And Judge DuBois or his clerk successfully did so.  They refused to let themselves be distracted by the possibility that a doctor's patients could conceivably be autonomous human beings rather than two-legged filing cabinets.

John Ferling's book Adams versus Jefferson: The Tumultuous Election of 1800 is one of those books of serious popular history that requires you to first plough through a prolonged introduction designed to bring up to speed everyone who dozed through 10th grade history.  But once you get past the World Book-style pen portraits of the protagonists - and so long as you can tolerate the author's spendthrift use of derogatory adjectives to describe James Madison - you can find a lot of information and insight. 

While the judiciary as an institution is hardly mentioned, Ferling provides this extremely useful summary of the dominant political outlook of our third branch (well, third in the order in which it's mentioned in the Constitution, if in no other sense):

[A]s was true of most Federalists, [John] Adams was alarmed by signs that America was democratizing. Before political parties existed in the 1790s, Adams had published warnings about how partisan electioneering – what he called the "Cankerworm" that had brought down every previous republic – would corrupt the American political system.  When caught between powerful rival interests, democratic politicians inevitably would be driven to deceit, he had predicted.   Virtue and integrity would vanish.  Revenge and malice would prevail.  Voters would be duped and the press misled, pushing the system toward an unsavory end – a democratic tyranny in which the majority plundered the minority.  For Adams, the notion that government could realize the will of the people was disingenuous.  Society was divided into so many competing interests that a single popular will seldom existed.  Furthermore, while humankind was all one species, Adams insisted that "Man differs by Nature from Man almost as much as Man from Beast."  It was impossible that all could have their way or be fulfilled.  Instead, Adams favored a system in which the brightest and most virtuous men could be drawn into public life but then be insulated from the necessity to pander to the popular thirst.  If somehow the independence of good men could be preserved, so that they could govern prudently and judiciously, the result would be good government for the greatest number.

Those last two sentences come closer than anything else I can remember reading to describing the politics of the judicial branch. 

Most judges don't see it as a question of politics, I think.  At most, they might grudgingly admit that those two sentences capture something of their idealized self-image.  They might even say that they "strive" (a favorite judge's word) to achieve that ideal.

But the Federalist concept of good government is politics, all right.  It's big-picture politics, not the poll-tested where-we-stand-on-the-issues politics of "pander[ing] to the public thirst", but politics all the same.

All the tedious, predictable studies about "drifting" Supreme Court justices look at the issues between the parties and ignore the meta-politics of the Court itself.  Supreme Court judges "drift" in only one direction: toward greater concentration of power in "the brightest and most virtuous men" (and, grudgingly and only lately, women) in the name of preventing "democratic tyranny" - although the justices and their lower-court servants prefer the adjective "majoritarian."  (See post 54.)

The odd thing about Ferling's book is that he seems to think the Jeffersonian Republicans won the election of 1800.  For the first 28 years, that was true enough.  But looking back on it from the perspective of 207 years, it seems obvious that the Federalists are in charge.

Here's one of the accusations against Texas federal judge Samuel Kent with regard to his former case manager, Cathy McBroom:

McBroom was summoned to the judge's chambers on Friday, March 23, at about 3 p.m.

Her hands were full of legal papers when the judge — a former high school athlete who is more than 6 inches taller and at least 100 pounds heavier — asked for a hug.

She told him she didn't think that was appropriate, but reluctantly approached.

The judge grabbed Mc-Broom, pulled up her blouse and her bra and put his mouth on her breast. Then, Kent forced her head down toward his crotch.

As McBroom struggled, Kent kept telling the married mother of three what he wanted to do to her in words too graphic to publish. The papers fell to the floor. The pet bulldog Kent kept in his chambers began to bark.

The incident was interrupted by the sound of footsteps from another staff member in the corridor, and the judge loosened his grip. As she left, the judge said McBroom was a good case manager and then made suggestions about engaging in a sexual act.

McBroom ran out crying.

McBroom filed a complaint with the Fifth Circuit's Judicial Council, which conducted an investigation, held some kind of hearing, and apparently found the accusation substantiated.  "Apparently" because the Fifth Circuit order in the matter is so extremely - and, of course, deliberately - vague. 

After McBroom came forward, other women did likewise: "[Felicia] Williams and at least three other women later gave statements to 5th Circuit investigators regarding Kent's alleged abuse of employees."  Ms. Williams, Kent's former case manager,

told the [Houston] Chronicle that over the years she frequently had seen Kent appear inebriated at work after long lunches with lawyer friends, was regularly asked for "hugs" and subjected to lewd remarks.

The judge said he could "service me when my husband was being treated for prostate cancer," Williams said. "He told me sexual dirty jokes, and (I) was expected to listen to his rude comments regarding other people."

I can't tell if the Fifth Circuit considered these additional allegations.  At any rate, the court's Judicial Council came down on the judge like a ton of bricks.  It placed him on a four month paid leave of absence. 

That's right, the judge's punishment is to accept $55,000 - one third of his annual salary - while relaxing on the beach.  (How many of you just asked: Where do I sign up?)

The Houston Chronicle, and especially its columnist Rick Casey, has been all over the story and doing a superb job, but the story has received virtually no attention in the national media.  I couldn't find any stories in the Washington Post, New York Times,  LA Times or USA Today, although it's made the Wall Street Journal's law blog, if not the paper itself.  You have to read the hometown paper or the Volokh Conspiracy to find out what's going on.

But this isn't a case about a local crime, or the misbehavior of a single local official.  The key thing isn't what Judge Kent did - and the Fifth Circuit's Judicial Council's order certainly tells us that he did something, even if we don't know what, exactly - but that he was allowed to do so much.  For instance, he was allowed to do everything he did to all those other women before McBroom.

Judge Kent had to go to the extreme of - apparently - committing an out-and-out felony against a person willing to risk her good federal job (all jobs in the federal judiciary are good jobs) by talking to the newspaper before the barest possibility arose of his facing negative consequences.

The institution of the federal Judicial Councils, it's hardly necessary to point out, exists to prevent discipline of federal judges by creating an illusion to the contrary.  It exists as a trash receptacle.  It has no power to do anything except attempt to shame a person who wouldn't have gotten to that position if he retained any ability to feel shame - rather like trying to appeal to the conscience of a sociopath.  Punishment by the Judicial Council is exactly the same as non-punishment by the Judicial Council, except the former involves less work.

Even more than that, though, Judge Kent thought he could get away with sexual violence because he's gotten away with abusing his power so often in the past, and not just against female staffers, as my old ethics teacher Steven Lubet documented six years ago.  

Mary Flood, the Chronicle's legal blogger, refers to Judge Kent's "national reputation for training his biting wit on lawyers".  For a judge to train "biting wit" on lawyers who appear in front of him is very similar to a prison guard exercising his knack for hilarious practical jokes on the job, with this difference: the guard has power only over the prisoner, while the judge holds both the lawyer's career and his or her clients hostage. 

A judge can be "bitingly witty" to lawyers for one reason and one reason only: because he possesses the power to hurt the lawyers personally, and hurt their clients for years or decades to come, even put them out of business, if the lawyer should respond with anything but "heh heh." 

Imagine what a riot Judge Kent would be as a night orderly in a nursing home.

In short, Judge Kent's national reputation isn't for "biting wit" - it's for sadistically abusing his power.  Even if the lawyers themselves are too self-protective, and protective of their clients, to say so in public, there's no reason for a non-practicing lawyer such as Ms. Flood to use such euphemisms.  Judge Kent is a person who cannot be trusted with power.  He evidently suffers from a serious mental illness - the delusion that his power is unlimited.  He has no business being on the bench.

One of the truly shocking elements of the story, though, is the joint statement from three Congressmen on the Judiciary Committee.  They responded to a query about possible impeachment by referring to the possibility of criminal charges and then adding:

"While the alleged conduct is disgraceful, it is, nonetheless, the practice of the House Committee on the Judiciary to defer formal action until available intermediate remedies have been pursued," the congressmen said.

A felony prosecution is an intermediate remedy?!?

The Constitution says that federal judges "shall hold their offices during good behaviour".  That's not lifetime tenure.  Nor does that require a showing of high crimes or misdemeanors for impeachment, despite two centuries of lamentable precedent to the contrary.  It would be crazy to hold a minor appointed official to the same high standard required for nullifying a presidential election, and the Constitution didn't do so, although craziness has been a distinguishing hallmark of our attitude toward federal judges at least since Samuel Chase.

If Kent were impeached, all that would happen would be that he would return to the practice of law.  That's the horrible, dreadful punishment that the three members of Congress consider more serious than a felony prosecution. 

Now why, do you suppose, would members of Congress would be so reluctant to establish a precedent for removing a public officeholder from his (and I do mean "his") position merely for committing sexual assault?

Terry v. Ohio might be both the most influential and least-understood of the Warren Court criminal procedure extravaganzas.  It came very late in the day, just a year before the Super Chief's retirement.  The facts of the case were simple enough: a cop saw some people casing a jewelry store, so he rousted them and found that one of them, Mr. Terry, a convicted felon, was packing heat.  (See post 314.)

Terry was charged with being a felon in possession of a firearm.  His defense wasn't that he was innocent, but rather that Officer McFadden shouldn't have been allowed to find out he was guilty.

The Ohio Court of Appeals didn't buy that argument.  Its analysis was pretty simple.  The fourth amendment regulates searches and seizures.  Under longstanding law, "seizure" meant "arrest."  Terry wasn't arrested when McFadden began talking to him.  He was arrested only later, after the officer found the gun, and the gun was proof of Terry's guilt.  So there wasn't any illegal seizure.

Moreover, once you accept the general principle that police officers have the right to talk to people, it's only a tiny little step to the principle that they can disarm the people they're talking to.  If an angry man is running around the neighborhood with no shirt on, screaming at the top of his lungs while waving an AK-47, can the police take the gun from him before inquiring what's eating him? 

If so, it must be because of the threat the person poses: officers have the right to talk to people without supplying illustrations for a forensic pathologist's article about stippling.   And, if so, then they must have that right even if the gun in question is a pearl-handled derringer concealed in the breast pocket of the suspect's elegantly-retro Brooks Brothers suit.  Where the gun is located prior to the cop-shooting can't be the decisive factor - by the time the gun is in the open, in the suspect's hand, it's too late. 

The rest of us can avoid talking to dangerous people.  The government requires police officers to talk to them as a condition of employment, often on the express orders of a judge (in the form of a warrant).  For the same government, acting through those same judges, to deny police officers the authority to disarm the people they're talking to would be the same as giving people the right to shoot cops, provided they're prepared either to pay the price afterward or take their chances at getting away.

(And if you find yourself internally debating whether that's a good approach, striking the proper balance between individual liberty and the state's "interests in pursuing legitimate law enforcement objectives" in rather the same way we allow the media to print whatever they want so long as they're prepared to pay damages later, then strike the word "cops" from that last sentence and substitute "you, personally, and your children."  Try saying it out loud, your honor.  See if it feels any different.)

The Ohio court told its readers that "police officers seem unanimous in stating that ‘frisking’ is done for self-protection and not as a mere evidentiary ‘fishing expedition.’" [ 214 N.E.2d 114]  That, the court thought, was the key point.  A frisk, by the court's definition, wasn't a search for something.  It was self-protection.   Accordingly, the court concluded, permitting the guilty Mr. Terry to be found guilty "by no means authorizes a search for contraband, evidentiary material, or anything else in the absence of reasonable grounds to arrest."  

In short: because a frisk isn't a search, it can't be an illegal search.  No seizure, no search, no fourth amendment issue.

Terry v. Ohio presented a long sequence of problems for the U.S. Supreme Court.  As in accounts of military campaigns, we're so familiar with the result that we find it hard to appreciate that there were numerous turning points.  The result wasn't inevitable. 

After all, with better weather, Suleyman could have dragged his artillery up to the walls of Vienna.  Nothing but a fine disdain for reality prevented Napoleon from holding off on invading Russia.  The pickets might have recognized Stonewall Jackson before firing, or at least missed, allowing the South to win the Civil War on the battlefield instead of having to suffer through a 31-year self-siege before the Supreme Court finally issued the North's unconditional surrender in the guise of a constitutional ruling.

And the Supreme Court could have decided Terry differently.  There were any number of possible pivot points.  This was the first: 

1.  Does the Constitution give the justices (and their deputies, the lower federal judges) authority to tell city police officers how they must conduct themselves while on duty?

This was, constitutionally, the most momentous question, but for the swinging justices of the go-go years it was also the easiest to answer.   All those who were in the habit of reading this blog in the spring of 1968 (unfortunately they hadn't invented hyperlinks yet) knew exactly what to expect: the Supreme Court was nearly certain to rule in the way that did the most to increase its own power and that of judges, especially federal judges.  (See post 250 and post 275.)  So the answer to question 1 was "you betcha."

2.  Okay, then tell me this: how were federal judges - there were just 342 federal district judges in 1968, after all - supposed to ensure their instructions were obeyed by, or even communicated to, the local cop on the beat?

For law professors today, that's an easy question to answer: 1961's Mapp v. Ohio, also a Cleveland case, decreed that state courts had no choice but to adopt the federal rule of procedure that required concealing evidence from the jury, if the evidence was discovered in violation of the fourth amendment.  (Mr. Terry wasn't being ridiculous with his defense that Office McFadden should have been prevented from discovering his guilt.)  So therefore, the professor would tell you (in considerably more words than this), the state courts had no choice in the matter.

But that conventional answer just refines the question without answering it.  How were federal judges supposed to ensure that state judges enforced Mapp v. Ohio, in whatever new permutations it acquired or discarded?

The basic concept of Mapp v. Ohio is that criminal convictions are to police officers what fish are to trained seals.  You give the cop his conviction to reward him for balancing the ball on his nose.  If he violates the fourth amendment, no fish.  If the judge is consistent, the cop eventually gets the idea.

When Chief Justice Warren ordered his clerks to draft the Terry opinion, he and they had seven years of experience to reflect upon, and that was enough time for reality to pluck up courage to voice its complaints against doctrine.  In words that get too little attention today, Warren's opinion acknowledged reality's lack of cooperation:

Regardless of how effective the [judge-made, post-1961 exclusionary] rule may be where obtaining convictions is an important objective of the police, it is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goal.

If the cop is a racist bully who only wants to harass someone, then the stop and search is itself the goal.  Discovery of contraband is just lagniappe.  Similarly, a cop who supplements his income by shaking down drug dealers  has no interest in seeing the cooperative among them go to prison.  Quite the contrary. 

The Mapp v. Ohio judge-made exclusionary rule performed its magic only on the good cops, the earnest and sincere ones, the ones who didn't need reining in.  The more Ellroyish the cop - the more likely he was to be portrayed by Russell Crowe in the movie version of his life - the less vulnerable he was to the berobed seal trainer's withholding of the conviction.

And, most to the point, an officer who genuinely fears for his or her own safety but is dissuaded from patting down a squirrelly suspect because of worry about what some judge is going to think six months from now is all-too likely to have his or her ID photo posted on this page. 

In my view, preservation of an officer's life is a higher priority than prosecuting any bad guy, and far worthier of respect than any judge's pronouncement on any topic whatsoever.  So the possibility that evidence might be suppressed should never be a reason for a cop to forego a pat-down. 

But even if you disagree with me on that -  we can agree to disagree, can't we, judge? - you can see that many a cop will, in the heat of the moment, be strongly tempted to line up on my side of the issue regardless of the risk of learning at second hand some months down the road that some judge has written severely disapproving words in an unpublished suppression order that the cop will never actually read.

What's fascinating about Terry, though, is that Warren acknowledged the judge-made exclusionary rule's built-in ineffectiveness as a tool for disciplining bad cops (he described the "wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain") even while expanding its use. 

That sounds like a paradox, or at least an irony, but it wasn't.  It was the corner into which the Supreme Court had painted itself.

In sum, the law professor is right.  The answer to # 2 is: The Supreme Court said so.  End of discussion.

More anon.

In an 1885 rape case, the Indiana Supreme Court approved this instruction as a correct statement of the law:

Evidence has been introduced as to the moral character of the prosecuting witness, and as to her reputation for chastity and virtue.  You are not to understand from this that a rape cannot be committed on a woman of bad moral character.  A woman may be a common prostitute, and may still be the victim of a rape.  This evidence has been introduced only for the purpose of affecting her credibility as a witness, and as a circumstance affecting the probability of the act of intercourse being voluntary or against her will, -- upon the theory that a person of bad moral character is less likely to speak the truth as a witness than one of good moral character, and that woman who is chaste and virtuous will be less likely to consent to an act of illicit carnal intercourse than one who is unchaste.  [State v. Anderson, 4 N.E. 63]

Fast forward 122 years:

A defendant accused of forcing a prostitute at gunpoint to have sex with him and three other men got lucky, so to speak, last week.

A Philadelphia judge dropped all sex and assault charges at his preliminary hearing.

Municipal Judge Teresa Carr Deni instead held the defendant on the bizarre charge of armed robbery for - get this - "theft of services." ...

Deni told me she based her decision on the fact that the prostitute consented to have sex with the defendant.

"She consented and she didn't get paid . . . I thought it was a robbery."

The prostitute, a 20-year-old single mother, agreed to $150 for an hour of oral and vaginal sex on Sept. 20, according to assistant district attorney Rich DeSipio. The arrangements were made through her posting on Craigslist.

She met the defendant, Dominique Gindraw, 19, at what she thought was his house, but which turned out to be an abandoned property in North Philadelphia.

He asked if she'd have sex with his friend, too, and she agreed for another $100.

The friend showed up without money, the gun was pulled and more men arrived.

When a fifth man arrived and was invited to join, DeSipio said, he asked why the girl was crying - and declined. He helped her get dressed so she could leave. ...

"Did she tell you she had another client before she went to report it?" Deni asked me yesterday when we met at a coffee shop.

"I thought rape was a terrible trauma."

A case like this, she said - to my astonishment - "minimizes true rape cases and demeans women who are really raped."

Women who are "really raped," of course, are women who don't perform sex acts for money.  If the woman is "of bad moral character," forcing her at gunpoint to have sex with four men is not rape.  It's theft.  She's not a person - she's candy displayed on the drugstore shelf for kids with sticky fingers to pilfer.

One point about Judge Deni's refusal to follow the law is pretty obvious: she revels in the self-righteous feeling that she has outraged people:

Deni acknowledged that her ruling and remarks would be controversial.

"I know I'm going to get killed on this."

But she said she has to "sleep at night with what I decide."

And on the night of Oct. 4, when she ruled in the preliminary hearing of this case?

"I slept well."

This attitude - self-righteousness bizarrely divorced from any concept of righteousness - is a pretty common judicial syndrome, the third most frequently-encountered of the classic vocational  ailments of judges.  It's not simply a matter of épater les bourgeoisie, though I suspect there's an element of that: you can't get more bourgeois that being a judge, and pretending to be a little bit racy beneath the black robe is titillating.  More than that, though, it's a tell-tale symptom of Post-Civil Rights Era Syndrome, a psychological condition expressed (appropriately enough) in a syllogism:

The southern judges who upheld morality, decency and the grand principles of constitutional government by ruling against segregation in the 1950s and 1960s were heroes, whose example all judges should strive to emulate;

the rulings of those judges were met with great public uproar;

therefore, any judge whose ruling is met with great public uproar is a hero, whose example all judges should strive to emulate.

Well, it makes a great deal of emotional sense, which after all is what counts.  As Oliver Wendell Holmes said, "The life of the law has not been logic; it has been the self-satisfaction of judges."

But how did we get to the point where the Philadelphia of 2007 is so much more reactionary with respect to violence against women than the near-frontier Indiana of the 1880s?

Because our collective consciousness has been so lowered.

DNA "exonerations" almost exclusively free males convicted of sex crimes against females, and it takes little imagination to realize that DNA testing will only rarely point unequivocally to a single perpetrator when the victim had sex with someone else in the day or two before the attack - a category that includes not only prostitutes but, you know, people with boyfriends and husbands.  (See post 246.) 

Liberal Slate has come out foursquare in favor of a return to the pre-1960s doctrine that rape convictions should never be based on the woman's testimony alone.  (See post 280 and post 290.)

A Nebraska judge made national news by prohibiting the victim of a rape from using her own words to tell the jury about what happened to her, on the ground that allowing the female to speak for herself might encourage the jury to convict the male defendant.

In my own New Mexico, a liberal legislature in 1975 removed "absence of consent" from the rape statute, so that any sexual penetration accomplished by force or coercion was criminal.  The idea back then was that in sex crimes, as with all other crimes, the only thing that counted was what the perpetrator did.  But in 2005, the Supreme Court rewrote its uniform jury instructions to reinsert (so to speak) that element, so that today, as 50 years ago, rape is lawful unless the prosecution can prove beyond a reasonable doubt that the victim isn't a slut who was practically begging for it.

There is a common thread to all these developments.

It may still be possible to believe the criminal justice system is not being transformed into an institutionalized backlash against the women's movement.   It requires a lot of faith, though.  Such unshakeable faith can be heartbreaking when manifested by, say, a 4-year-old cancer victim.  It's a little less touching when encountered in an otherwise-healthy adult.

I should add that the Philadelphia Bar Association's chancellor, Jane L. Dalton, has said what ought to be obvious, and was (I believe) the actual point of Judge Deni's ruling, even if the judge hid it from herself: "The victim has been brutalized twice in this case: first by the assailants, and now by the court."

The Supreme Court has long been in the habit of using the phrase "political branches" to describe the democratically-elected branches of government.  Westlaw counts 141 SCOTUS opinions making use of that phrase.   As a propaganda trick - excuse me, I mean talking point - it's comparable to the Court's use of the word "majoritarian" as a pejorative.  (See post 54 and post 265.) 

Not only is "political" frequently charged with a negative meaning in America ("playing politics," "politics as usual"), but calling the executive and legislative branches "political" implies the Court isn't  - it's just a government agency that decides issues of "public policy."  (1,805 SCOTAL mentions of that phrase.)  As to any superficial definitional similarity between "political" and "policy" - look!  An oyez!  Three of them!  Now, then, moving on to the next case, counsel ...

Our courts are even more political in a big-picture way, though.   Their policies - which never, ever work out the way they're intended, anyway - are in some respects the least of it.  I found a wonderful encapsulation of the meta-politics of the American judiciary in a most unlikely place: Simon Winder's The Man Who Saved Britain: A Personal Journal into the Disturbing World of James Bond.  It's a book about Britain in the post-War years, and particularly during the No Future 70s, when the author was growing up.  Amid much Tim Moore-style humor, James Bond is diagnosed as a nation's final instrument of post-Imperial denial.  And then we come to this:

What should we make of Bond's chief, the remarkable M?  He is a figure in the Bond mythology on a par with Blofeld and retains as astonishing potency.  If post-war Britain had expressed its debt to Bond in a landscape dotted with temples then M would undoubtedly get a substantial building to himself (this is an easy and enjoyable game with any number of temple layouts - at its best played with a more Asian sense of duality, forces of evil or violence also getting their place: it is easy to imagine a slightly disturbing folk cult growing up around Oddjob, say, and a lovely alcove for Pussy Galore).  In a sense, M is more of a religious force than Bond himself - a Jupiter to Bond's Mercury; Wotan to Bond's Loge.  The books in effect make him the father of the nation, the figure who is always awake and alert and who, through silent coup after silent coup (delivered via the figure of Bond), keeps us all safe.  He therefore incarnates in its perfect form the Conservative ideal: of patrician omnipotence over a silent, uncomprehending, safe, passive flock.

It was only as I read that last sentence that I realized who M reminds me of: the person the average American judge sees in the mirror.

Hi!  I'm back!

Um.  Back.  From being away.  See, I've been --

Well, okay.  *ahem*  Yes, indeed.  I have my notes right here -- just take me a second --

One of the advantages of being on-the-verge-of-a-nervous-breakdown busy and overwhelmed - though not, I hasten to add, quite to the laced-gezpacho verge - is that others step in to do the arduous research necessary to keep this blog going. 

For instance, from one loyal reader - okay, my brother, if you must know, but he still counts - I learned that the validity of post 317 has been scientifically demonstrated.  The eerie thing is that it was demonstrated even before it was written!  In 1999, Justin Kruger and David Dunning published a research paper in the Journal of Personality and Social Psychology entitled: "Unskilled and Unaware of It: How Difficulties in Recognizing One's Own Incompetence Lead to Inflated Self-Assessments."  Here's the abstract:

People tend to hold overly favorable views of their abilities in many social and intellectual domains. The authors suggest that this overestimation occurs, in part, because people who are unskilled in these domains suffer a dual burden: Not only do these people reach erroneous conclusions and make unfortunate choices, but their incompetence robs them of the metacognitive ability to realize it. ...  Paradoxically, improving the skills of participants, and thus increasing their metacognitive competence, helped them recognize the limitations of their abilities.

That, I think, explains a great deal about our legal system, or at least that part of it with which I have professional contact.  To take an example from the media, The New Yorker last spring had a story about the NYPD crime lab's hair and fiber unit (or what the magazine insisted on calling its "hair-and-fibre" unit).  A pair of FBI scientists described a review they performed of 170 hair comparisons, which resulted in 80 "associations" (which, as anybody who's dealt with hair-comparisons knows, is always presented to the jury in terms of "cannot be eliminated" rather than as a "match"):

But subsequent mtDNA tests of the hairs showed that in nine cases—more than ten per cent—the samples could not have come from the same person. The number of errors was concerning, Judge [Harry T.] Edwards said. According to his calculations, he added, the study’s error rate was actually close to thirty-five per cent.

Now, Edwards is one of those people inevitably described as "respected," a term that when applied to a person who has spent many decades exercising near-arbitrary power means little more than that he's never actually been indicted.  Despite all that respect, I'm nonetheless prepared to accept that Judge Edwards is perfectly competent within the sphere of his expertise, that is, the correct standard of review to be applied in an appeal from an agency decision.  (I'm not being snide.) 

But what are the odds that he understands statistics better than a pair of scientists?  Any scientists, it doesn't matter.  Edwards spent five years in the actual practice of law a couple generations ago, then ten years bullying law students, and the rest of his career receiving lawyers bowing and scraping and tugging their forelocks.  He could be a whole lot less ignorant about statistics than the average lawyer and still know less than any recent recipient of a B.S. degree.  By orders of magnitude.

If Edwards had any metacognitive ability to assess his own knowledge of statistics, he wouldn't have spoken so confidently to Jeffrey Toobin about the calculations he scribbled on his hotel-ballroom napkin.   As it is, I'm confident he didn't understand that he was embarrassing himself in a national magazine.  He was too clueless to know he was clueless - and, I suspect, too accustomed to being treated like royalty even to perceive the possibility. 

As it happens, Professor Dunning can explain the second part of that disrespectful evaluation, too, judging from the abstract of a paper in press.  Called "Faulty Self-Assessment: Why Evaluating One’s Own Competence Is an Intrinsically Difficult Task," it makes the point that "although people receive feedback over time that could correct faulty self-assessments, this feedback is often biased, difficult to recognize, or otherwise flawed."  Think for a second about the kind of "feedback" judges get: determined attempts to manipulate by flattery.  And that's just about it.

Arrogance is ignorance backed by power, and American judges are often arrogant.  Imagine, if you can, a world in which judges were required to understand a field of human activity before asserting their authority to regulate it.  For example, what if judges weren't permitted to rule on the reasonableness of a search pursuant to a warrant until they had been the first officer through the door a couple dozen times?