JUDGING CRIMES

It's a good bet your local paper and evening news will have "Safety tips for Halloween."  Here's the word from Detroit, America's no. 2 city in crime as well as baseball:

• Let your children know not to cut through back alleys and fields. Make sure they know to stay in populated places and don't go off the beaten track. Stay in well lighted areas.

• Stop only at familiar houses in your own neighborhood unless they are accompanied by an adult.

• Small children should never be allowed to go out alone on Halloween. Make sure an older sibling or adult is with them.

• Instruct your children not to eat any treats until they bring them home to be examined by you

• Instruct your child to never go into the home of a stranger or get into their car.

This isn't just a crotchet of the big cities.  The Thomasville Times ("Serving the City of Roses and Surrounding Areas Since 1921!") provides its own set of tips for rural Alabama kids.  The Alabama paper, at least, puts more emphasis on the responsibility of adults, as perhaps befits a paper published just down the road from Harper Lee's Monroeville.

(However, the Thomasville Times also runs perhaps the creepiest internet ad I've seen yet: "We Help to Cure Child Behavior / Helping parents make their child easy and cooperative. / radconsultancy.com".  Child behavior needs to be cured??)

The Illinois state government issues its own set of Halloween safety tips, and something called the Ohio Crime Prevention Council advises parents to "report any suspicious activity to police, even if it appears to be just be some mischievous, older kids".

Yes, it's that time of year again, the one day of the year when the privatization of law enforcement crawls out from behind the platitudes and legalisms.  When the kids put on their masks, the mask drops from our country's bizarre experiment in privatizing law enforcement.  These well-intentioned tips reveal that the primary responsibility for ensuring the safety of society's most vulnerable citizens falls squarely on their own shoulders - and, in the case of small children, those of their parents, as well.

The safety tips are a measure of how normal violence against children has become.  The Ohio group says: "This is the time of year kids tend to jump on the smaller kids and take their candy, no matter what neighborhood you're from."  While of course the group is deploring it, they are also saying that in American society it is expected.  Whether or not it's acceptable, it's accepted.

Privatization of government services is universally understood to be a conservative movement when the services in question are anything except protection against violence.  But when the social interest involved is the physical safety of people demographically unlike the speaker, privatization becomes, through a miracle of political prestidigitation wholly appropriate to All Hallows Eve, sublimely progressive. 

In a hotel workout room, trying desperately to find something to watch that was more interesting than a treadmill, I ran across a CNN segment about Jeffrey Toobin's CNN show about judges.  (Asking if it was a news segment or a promo would imply there's a difference.)  There, exuding unearned complacence through half-closed eyes, was Justice Breyer, who told us that criticizing judges was a recipe for majority oppression of minorities.  He reminded us of Orville Faubus, and Toobin played along by inserting a clip of federal troops escorting the Little Rock Nine to school.

But - of course - Faubus wasn't defying the Supreme Court.  Or rather, he wasn't only defying the Supreme Court.  He was defending the Supreme Court, too.  It's just that he chose to defend the Supreme Court of 1896 rather than the newly-reconstituted Court of 1954, or rather the "all deliberate speed" Court of 1955.  Faubus was either a racist pig or shameless opportunist, or both, but he rather than the Warren Court had the weight of American judicial history on his side.

(Here's the evangelical origins of that famous oxymoron, deliberate speed.  The original isn't exactly great literature, but the irony at least was deliberate, unlike the wishy-washy Court's uncredited borrowing.)

The Civil Right struggle against Jim Crow is always the last resort of the defender of judicial supremacy, and frequently the first resort, too.   I always wonder if people who use it, such as Breyer, are aware of their self-contradiction.  Based on many dreary years trying to figure out what Breyer is saying in his opinions, I'm inclined to think the answer is no - he just isn't capable of thinking very clearly about anything.  (And why should he?  He's fabulously wealthy and rose to the top of a profession he practiced for only a couple of years in his youth - pretty sweet.)

But the rest of us should remember that the Supreme Court's three most consequential gifts to the American people are the Dred Scott decision, worked out in collusion with the man almost unanimously accepted as the worst President of all, the measure by which all subsequent bad presidents will forever be measured; the case that decreed that the privileges and immunities clause of the 14th amendment could not be enforced in American courts, a decision that has never been overruled (the ironic history of that case is described in this superb book); and 1896's separate-but-equal Plessy decision, which marked the Supreme Court's final surrender of the Union victory in the Civil War.

By 1896, the justices had returned American society to its pre-Civil War condition, minus only the kind of slavery memorialized in deeds of sale.  For justices to invoke the Court's involvement in American apartheid in defense of its power ought to, at least, provoke a certain cognitive dissonance.  It's another State of Denial in American public life.

Breyer's words translate into: "It took us 60 years after Plessy to acknowledge our own depravity.  It's taken the next 50 years for the other branches of government to make significant progress in cleaning up the mess we made.  That makes us such a powerful force for the moral good that we get to do whatever we want."

The ABA tells us: "A study in Washington and Arizona found 19 percent of lawyers suffer from alcoholism, and another 3 percent are addicted to cocaine and other drugs—a cumulative 22 percent rate of addiction."  The article continues: "These numbers are staggering."    The Oklahoma Bar pegs the addiction rate at 15%, while the Ohio Bar says it rises to 25% after 20 years in practice (insert rude Cleveland joke here) (or, perhaps, Oklahoma Baptist joke ...).

One theory is that the high rate of substance abuse in the profession is related to lawyers being constantly bombarded with depressing statistics about the profession.  Another theory, which I first encountered in a Steven Brill column in American Lawyer probably about 18 years ago, is that the sort of people who do exceptionally well in biology class get streamed into medical school at a young age.  But the sort of people who do exceptionally well in English and history get streamed into ...

Well, if they're smart and lucky, or find a sympathetic mentor, or have a real gift for brown-nosing, they might get to spend four years teaching undergraduates for almost enough money to pay the interest on their student loans.  At some point in their grad school careers, they look up from grading English 101 papers long enough to realize that the only well-paid profession in which their skills of research, writing and passing oral exams might actually be useful is ...  (Cue the quavering violins and cut to picture of sinister clouds scudding across the full moon.) 

So a whole bunch of bright, high-achieving people, used to being the best in the class at whatever they do, wind up in a field they have essentially no interest in.  No wonder studies show law students start the first year in a relatively normal state of mind, and finish it with rates of depression several times the national average.

Of course, there might be a connection to the fact that the law is the only profession in which entering students are subject to hazing by the teachers.  They can tell us it's the Socratic method all they want, but they still don't remind anyone of Socrates.  It's ritual abuse - hazing by another name.

My first-year contracts teacher at the University of New Mexico, where I began law school,  liked to ask, "Clear as mud?  Good."  He told us "consideration" was such a difficult concept that we would have to wait for an advanced class to approach it.  Now, for those spared the misery of first-year contracts classes, I can tell you that "consideration" means nothing at all except giving something of value in exchange for value received.  It's what distinguishes a sale from a gift.   The concept takes longer to explain than to grasp.  The teacher was just bullying us, enlisting us as unwilling extras in his private fantasy life, the one in which he possessed a formidable intelligence.

Years later the professor went into private practice in Albuquerque.  I knew a lawyer who briefly worked for him.  She said he was constantly upset with her either for (1) doing things without permission, or (2) failing to anticipate what he wanted her to do.  If she turned right, she should have turned left.  If she looked up, she should have looked down.  After a short and no doubt depressing time, she realized she was living in a permanent first-year contracts class, a hell remarkably similar to that imagined by Flann O'Brien in The Third Policeman.

But after hearing a talk by the phenomenal saxophonist James Carter - who can do everything that's ever been done with a saxophone, and quite a bit more besides (he channels Hendrix through his tenor) - I think I may have found another theory about the chronic unhappiness of so many lawyers.

Carter said that he believed there was no divide between music and life.  They are one and the same.  Lawyers, by contrast, are trained to think in categories, to slice up reality into chunks.  Most legal argument isn't reasoning, although judges call it that, but categorization: the issue is not this, but that.  The important fact isn't that, but this.  (See post 137.)  The lawyer's job is to argue on behalf of others, which means trying to be convincing even when saying what we don't believe, or even know is false.  (See post 180.)  None of it has much to do with real life.

The best advice I received as a young associate was to leave my professional skills at the office.  When you catch yourself cross-examining your spouse, you've got problems.  So does your spouse, but his/her problem requires only another lawyer's touch to solve.

Listening to Carter, a genuine musical genius who also comes across as both funny and approachable, it occurred me to that perhaps the deliberate dis-integration of the legal life, the consciously-willed submergence of identity, might go a long way to explain all those pickled lawyer livers. 

The Seattle Times' series on "Your Courts, Their Secrets" deserves a couple Pulitzers: one for the reporting, and a second one for proving that it's possible, after all, for newspapers to write sensibly about the courts.  (See post 183.)  Earlier articles in the series documented judges illegally sealing cases to protect their buddies on the bench or in the profession.  (See post 157 and post 94.)

Last Sunday the Times' latest entry described the enormous lengths to which officials in the Northside School District, just north of Seattle, went to avoid dealing with a predatory elementary school teacher.  The principal, upon being told of the teacher's gropings, promptly set about reinforcing the lesson about betrayal of trust, calling the 10-year-old girl into the his office where he confronted her with the molester at his elbow.

The teacher did everything humanly possible to demonstrate his unfitness.  His application letter was barely literate, he touched prepubescent girls' breasts in front of witnesses, he demeaned his students and taught them sexually-charged words - and yet his principals protected him, because "principals don't like problems." 

For a careerist bureaucrat, not having problems is the ultimate goal, and the principal who called the 10-year-old into his office was suitably rewarded for his determined efforts not to deal with, or even know about, what was going on in his school: "He's now principal of Skyline High School in Sammamish, one of the state's top high schools."

Families of three of the girls, who had to endure nearly-daily gropings - one described how much she dreaded sitting at the computer in the classroom, because there was no escape, and another wore heavy sweatshirts even on the hottest days - sued the school.  The amazing thing isn't that the district shoveled tons of money their way, but the type of secrecy the district insisted on:

It required the families and their attorneys to gather whatever documents they had about their allegations, and turn them over to be destroyed. They also had to "purge all computer records" related to their claim.

Even though the Northshore School District is a public entity — making its finances public record — the agreement forbade the parties from disclosing the settlement amount. It also prohibited any party from disparaging another, and set the penalty for any violation at $10,000.

According to the Times, "The secrecy agreement even restricts what they can tell any therapist."  The school district had two levers with which it could extract that agreement out of the families.  First, as mentioned by the families' lawyer, unless they accepted the settlement "these 'very vulnerable girls' would have been exposed to depositions and a possible trial".  That is, the school district was applying the same pressure routinely exerted by pedophiles, who hold their victims' psyches hostage during plea negotiations: agree to my terms or we'll really give her something to cry to her therapist about.

The second reason, of course, was that the lawyer himself was mostly interested in getting top dollar.  For his clients, I mean.

A superior court commissioner (apparently a kind of adjunct judge) agreed to seal the court file, "signing an order that violated the rules governing open court records."  So here you had the court system using its power and prestige illegally to threaten schoolgirls with $10,000 fines if they opened up to their therapists. 

The parents and taxpayers of the school district weren't to know what their principals and teachers did to their children.   The public wasn't to know what its government was doing, when it was doing the public's business.  The institution that exists to educate the young was teaching them instead a bitter lesson about justice.  And the institution that exists to enforce the law was violating it.

The Northside District has posted a letter to parents that largely avoids the temptation to blast the Times for raking this muck.  I don't believe for a minute that there's anything really out of the ordinary about the district.  Nor do I think there's anything out of the ordinary about the casual way King County courthouse officials violated the law about sealing court files.  Which is to say, your courts are doing it, too.  You just don't have a Seattle Times to tell you about it.

I visited Vancouver in the 1980s, and as I was lingering over a long dinner in one of that city's many delightful downtown restaurants, I noticed a woman walking alone on the sidewalk outside.  The unbidden thought crossed my mind: "Canadian hookers are very well-dressed."

Almost as soon as the thought formed, I experienced a kind of shock of shame, because of course the woman wasn't a hooker at all, just someone walking from point A to point B.  She was well-dressed because she was a business person or maybe a lawyer.   Seeing her (and other well-dressed women, too) walk downtown in a big city after dark was, I'm sorry to say, something unusual in my North American experience. 

That was the moment when I first understood that crime, and the enforcement of the criminal law, is social policy.  (See post 160.)

Lawyers are trained to think in terms of boxes.  "Torts" are here, "criminal law" is there, and "social programs" are way over there, on the other side of the fence surrounding the judicial branch.  But, like so much else we learn in law school, that's just words, not reality.  When you read an anecdotal report of sex workers' interactions with police officers it's easy enough to see that the police are enacting the government's attitude toward certain of its citizens - specifically, the government's rejection of any responsibility for their well-being.

What bullying cops do to victimized streetwalkers is just a one tiny aspect of what the entire criminal justice system does to all victims of crime.  It's all social policy, every bit as much as spending on the schools.

The crime rate is a measure of a society's willingness to protect its vulnerable members from harm.  It tells us whether society's most powerful members - a group that, by any criterion, includes judges - are willing to accept responsibility for the well-being of the least powerful.

Victims of violent crime are, by definition, the most vulnerable members of society.  They are overwhelmingly  poor.  (See post 148.)  Members of minority groups, the young, the seriously mentally ill, the Deaf, illegal immigrants - these are the people who are seriously endangered by violent crime.

In the 1980s, women who weren't hookers avoided walking alone at night on downtown streets because it was so dangerous.  (It was, of course, extremely dangerous for sex workers, too.)   I'm inclined to think the situation has improved slightly in the intervening years, because I notice more women walking alone after dark in the dangerous city where I live - but then, the reason I notice increased numbers of solitary female walkers is because they remain relatively unusual.

It's not that Americans are so much more criminal than Canadians, or anyone else.  Our overall crime rate, including all types of property crime, is pretty much in the international ballpark (or pitch).   We're just more violent, or, to put it more precisely, our government doesn't protect the vulnerable from violence.  And the unit of government that's most resistant to protecting the vulnerable is our criminal court system. 

Recently our Supreme Court has come down hard against prosecuting domestic violence and child abuse cases.  (See post 148 and post 155.)  The hostility of the courts to female victims of violence is notorious.  (See post 47  and post 139.)   Lawyers, judges and law professors think of these as legal issues, to be analyzed by legal means, producing legal results.  And that's all.

When we debate policies put in place by the democratically-responsive branches of government, we look at their effects, not just their good intentions.  An example is the debate produced by the National Intelligence Estimate reporting that the war in Iraq is producing more terrorists than it eliminates - something The Economist said was "stating the obvious."

Or, to pick an example more palatable to conservatives, there's the perverse economic incentives of welfare programs that, with the noblest of intentions, wind up encouraging socially-destructive behaviors.

But, oddly, we don't debate judicial policy in terms of its effects, but only of its intentions.  The Supreme Court discovers a problem, treats it with a new rule fetched from one of the dustier corners of the suprisingly-cavernous Constitution, and announces the problem to be cured or remedied - and for lower court judges, reporters and law professors alike, that's usually that.  There are no consequences, except perhaps the difficulty of implementing the rule in the lower courts.

But whether judges choose to recognize it or not, there is a reality outside the courtroom.  And the consequences of judicial decisions can no more be confined within the four walls of the courtroom than cosmic rays can be blocked by the courthouse roof.

The reason the US is more violent than Canada is that our government tolerates more violence.   And by "our government," I mean: our courts.  Our democratically-responsive branches of government have enacted policies against violence, but our judicial branch resists their enforcement.  The judges themselves would say they are only enforcing the Constitution (with "the Constitution" defined as the collected works of the Supreme Court), but that - of course - only explains why they do it, not what they are doing.

Judges have determined that we should live in cities where women don't walk alone at night, unless they're hookers.  And the fact that most of our judges don't understand that they've done so - and would even deny the reality that they have - is perhaps the truest measure of their institution's dysfunction.

If a judge gets removed from the bench, he or she returns to the practice of law - which, some of us think, is not such a hideous fate.  I'd even be inclined to think it preferable to public humiliation.  But that's not how judges see it.  They are, as a class, insanely committed to clinging to power.  And judicial disciplinary commissions are extremely reluctant to pry away their fingers.  (See post 60.)

A couple examples.  Meet Albany's City Judge William A. Carter.  When a defendant representing himself went on about the illegality of the proceedings, as pro se defendants are wont to do, Judge Carter

became angry and, without adjourning the proceeding, abruptly removed his glasses, got up from the bench, removed his judicial robe and dropped it to the floor and proceeded rapidly in the direction of the defendant, in a manner indicating his purpose was to confront the defendant.  [Carter] was upset at the time of the incident and does not recall what he was thinking at the time he proceeded toward the defendant, but agrees that his conduct indicated his intent to confront the defendant.

            One witness present in the courtroom heard [Carter] say of or to the defendant, “You want a piece of me?”  [Carter] does not recall making this statement, because he was upset at the time of the incident, but he does not deny making the statement.

            As [Carter] left the bench, Police Officer Timothy Corbitt, who was responsible for guarding the defendant in the courtroom, quickly removed the defendant from the courtroom through a clerk’s office.  Another police officer, Mark Leonardo, physically blocked [Carter]’s path by placing himself in front of [Carter], who was headed in the direction of the clerk’s office.  [Carter] tried to go around Officer Leonardo by stepping to one side and then another, but Officer Leonardo continued to block [Carter]by sidestepping along with him each time.

See?  That's why we need cameras in the courtroom.  I've never previously heard of a deputy guarding a defendant from the judge.

In another case, Judge Carter released a repeat offender on his own recognizance in violation of New York law.  When an officer complained that the defendant, in the spirit of the judge's order, had flipped him off inside the courtroom, the judge said: "If you are so upset about it, why don’t you just thump the shit [out] of him outside the courthouse, because I am not going to do anything about it."

So: knowingly violating the law; encouraging cops to beat up prisoners; challenging a defendant to fisticuffs.  Is that the kind of thing that makes you wonder about a judge's fitness for office?  Not for a majority of the New York Commission on Judicial Conduct, who voted for the purely symbolic "punishment" of censure.

Then there's Florida's Judge Richard H. Albritton, Jr., who managed to collect a particularly colorful variety of charges against him.  The Florida Judicial Qualifications Commission charged:

8.  In a juvenile delinquency case involving a female defendant in court who had turned 18, but who had committed a crime when she was a juvenile, you made a comment from the bench as to how attractive she was.  You then gave her a lighter sentence than you ordinarily would have given. ...

10.  Following a pattern, you inquire of mothers, "What are your drugs of choice?" in open court when this has nothing to do with the matter in question.  You do this to humiliate female defendants.  ...

12.  A teenage girl had been charged with a crime and had served time in juvenile detention.  The girl told you she was pregnant.  You asked her who the father was and when she wouldn't tell you, you put her back in juvenile detention and said she could stay there until she told you who the father was.

13.  In [another case], you jailed a young mother who came before you on a dependency court hearing after stating that she had had contact with the other party in the domestic violence matter.  The attorney for the mother objected as she had no notice that the domestic violence matter would come up.  You jailed her for 15 to 20 days.

14.  You are often very demeaning to attorneys, and especially DCF attorney Tara Melton, Esquire, who is of African-American ancestry. ...

20.  You told one lady named [she doesn't need to be named here], on the record and in open court, that she needed to close her legs and stop having babies.

28.  You would allow your clerk, Sue, to make comments and act like a mini-judge.  For example, if you were talking about child support, Sue would remark under her breath, but loud enough for everyone to hear, "Obviously got money for cigarettes."  She would also participate in hearings and would remind you what had happened in a prior hearing.  For example, she would say, "remember, this is the guy who last month said ..." ...

35.  In order to avoid ex parte communications with you, the public defenders send their investigator, Jerry Glass, to talk with you about pending cases because he is not an attorney.

Sadly, though, Judge Albriton entered into a stipulation with the Commission in which he admitted various allegations against him, but the admitted allegations didn't include any of the foregoing.  This is a partial list of the charges the judge did admit:

4. ... [D]uring breaks in trials, you entered and sat in the public defender's office in the Jackson County Courthouse in your robe.

5.  ... [Y]ou required as a condition of probation that a defendant attend church.  When advised by the staff attorney that this was unconstitutional, you responded, "I know that's wrong, but the defendant doesn't know it." ...

9.  On an ongoing basis, you are late to hearings and trials.  For example, when a matter is noticed for 1:30 p.m., it will typically not begin before 2:30 p.m.  You also take purportedly short breaks of fifteen minutes and do not return for as much as one to two hours. ...

11.  ...  [Y]ou put a young mother in a holding cell for most of the day because she could not recall what her address was. ...

Then there's the judge's freeloading, which he also admitted: inviting a group out to lunch and sticking one of the attorneys with the tab; directing the same attorney to give $100 to the PD's investigator for a party in the judge's honor, then accepting a $150 gift certificate (to Wal-Mart) from the party attendees; and ordering another attorney to wrangle the judge an invitation to a party. 

And then there's his habit of coaching lawyers who appeared in front of him, telling them  how to draft proposed orders for his signature, and what objections they should make in open court.  The judge admitted all that, too.

The Florida Supreme Court noted that the judge's ethical violations were "extreme not only in their number and seriousness, but also in the plethora of code violations they encompass.  This conduct demonstrates not only a lack of judicial temperament but also, and more importantly, Judge Albritton's use of his office to pressure individuals to act for his own benefit.  This conduct clearly falls far and inexcusably short of the high standards of integrity and independence we demand of our judicial officers."

That's a pretty dramatic drumroll.  And it leads up to: a 30-day unpaid suspension, plus a $5,000 fine, costs and public humiliation. 

So we still don't know what a judge has to do to get removed from the bench, but at least we have a clearer picture of the type of judicial behavior that is tolerated.

Deval Patrick, former Assistant Attorney General for Civil Rights, is running for governor of Massachusetts, and his opponent is on the attack.   And that's got Massachusetts lawyers riled up.  According to the Boston Globe, "The Massachusetts Association of Court Appointed Attorneys is circulating a memo calling Lieutenant Governor Kerry Healey's attacks an assault on the Constitution."  Sounds pretty dire.

Here's the Globe's description of the ads:

The source of the ire: two ads from the Healey campaign that highlight Patrick's legal work. One takes aim at Patrick's defense of Carl Ray Songer , an escaped convict who murdered a state trooper on a Florida highway in 1973. As a lawyer for the NAACP Legal Defense Fund in 1985, Patrick argued successfully that Songer was not able to present evidence of his character and education in court, and Songer's death sentence was reduced to life in prison.

"While lawyers have a right to defend admitted cop killers, do we really want one as our governor?" the ad asks.

The other ad spotlights Patrick's efforts, as a lawyer in private practice, to support the parole petition of Benjamin LaGuer , who was convicted in 1984 of binding his 59-year-old neighbor with a telephone cord and raping her.

"What kind of person defends a brutal rapist?" the ad asks.

You can watch the ads on the Kerry Healey website here.  (I think the one of the frightened woman walking through a deserted parking garage at night is particularly effective.)

Now here's Davis L. Yas, a lawyer and editor of Massachusetts Lawyers Weekly, describing the outraged reaction of Massachusetts lawyers:  "Yas said lawyers 'regard these ads as misinformed, distasteful, and insulting and in some ways they might even be disingenuous.'"

"Misinformed, distasteful, and insulting" are just the windup to the hammer blow, the accusation so ferocious Yas virtually apologizes before making it: in some ways, they might be, they might even be ...  Oh, I can't repeat it!

(Am I justified in assuming that other Massachusetts politicians employ only tasteful attack ads?  Ones that avoid insulting the opponent?)

If you're not a lawyer, you've probably never heard the word "disingenuous" used in conversation.  But a Westlaw search shows that, just since 1990, American appellate courts have used the word "disingenuous" no fewer than 10,256 times.  (No doubt the total is higher today.)  In the vast majority of those 10,256 cases, the appellate court was insulting some lawyer. 

"Disingenuous" is the ultimate legal insult.  It means "lying."   The word is used to describe a statement or argument by one's opponent.  It means: even he or she isn't so dumb as to actually believe that.  It's intended to place the opponent on the horns of a dilemma.  In a profession that places a high value on savvy (or, less charitably, on cunning), no lawyer will admit to being the opposite of disingenuous.   ("No, really, I am that dumb!") 

But, if the statement is false or the argument sophistic, what lawyer will want to own up to being the conscious and calculating author of it?  ("No, really, I didn't believe it, either.  I just said it.")

Lawyers like dropping the "d" word because it conveys a thought ("lying sack of shit") while permitting the person using the word to - disingenuously - deny any intention of conveying it.  To be extra careful, lawyers often employ circumlocutions such as "approaches the disingenuous" or "borders on disingenuous" - or "in some ways they might even be disingenuous."

The word "disingenuous" embodies some of the contradictory feelings lawyers live with every day: the competitiveness that makes you want to squash your opponent like a bug, coupled with a nervous anticipation of possible adverse consequences if you actually stomped.

As for the Healey ads, I don't know how accurate or inaccurate they are, and the ambiguity of the tag line ("While lawyers have a right to defend admitted cop killers, do we really want one as our governor?") is smarmy at best.  But, taken all in all, I don't actually perceive the Constitution imperilled by them. 

The idea that the choice of legal work reflects something about the person making the choice is far from outrageous.  Lawyers judge each other that way.   Listen sometime to an insurance company lawyer talking about "plaintiffs' lawyers" - you'd think they were a different species.  Or go into a conference of lawyers involved in death penalty litigation and introduce yourself as a representative of the other side. 

What the protesting Massachusetts lawyers are saying, I'm afraid, boils down to something like this: The public is not allowed to draw inferences from the type of work we do, because that implies criticism, and the work we do is beyond criticism by non-lawyers.

Every lawyer knows how wretchedly our mass media covers the courts.   On the relatively few occasions when the newspapers cover one-third of the government - leaving to one side celebrity murder trials - they do so in a way that often makes it difficult for lawyers to understand what happened.  I don't mean using the "incorrect" terminology.  Frequently you can't even tell who was seeking what relief, or what legal point was at issue, or even what the judge actually ruled.

I don't think it's primarily a problem of reporters not understanding what they're seeing, although that's part of it (and crime and courts is traditionally a rookie's beat).  Most of the time, what goes on in a criminal courtroom isn't difficult to understand.  Even the most "difficult" issues usually boil down to something as straightforward as: Should the jury be allowed to hear this evidence, or not?

The problem, I think, lies not with the law but with the newspapers.

The August 26 Economist's cover story asked: "Who killed the newspaper?"  Oddly, though, the accompanying leader and article didn't name the culprit: The Columbia School of Journalism.  Wikipedia provides a nice potted bio of the school, but the gist is conveyed by the title of this book: The School of Journalism in Columbia University: The Book That Transformed Journalism from a Trade into a Profession.

The Columbia Journalism School was founded in 1912.  The number of daily newspapers in America hit its all-time peak in the next couple of years - either in 1912 or 1919, depending on which website you believe.  It's been downhill ever since.   I don't think that's coincidence.

Over at the wonderful Gall and Gumption, Kia Penso writes (or wrote - I'm way behind on this):

Journalism is a priestly vocation," said a teacher of journalism from a certain prestigious Graduate School of Journalism with which I have some acquaintance, let's call Combluia shall we?.

This is something to ponder. Please excuse me for a while, I must go and ponder.

[Several minutes pass. Sound of flushing.]

Well. I've pondered.

1) If journalism is a priestly vocation then that means a certain section of New York's Upper West Side must be Vatican City. Seems reasonable enough.

As Kia, a journalist who's written for both American and Caribbean papers,  goes on to explain, the view of journalism as a priesthood - or even as a profession as opposed to that contemptible thing, a trade - is an invitation for the reporter to take himself seriously.  Very seriously:

The journalist is a Promethean, tragic figure, who fetches back the objective news at the risk sometimes of having his own guts ripped out. (O! Tragic hero journalist!) To illustrate this point the priest of the church of journalism will tell a story or two. At least one of them, strike me blind if I lie, will feature 1) a starving African orphan or 2) the parent of three children who died in a fire. What? You are against orphans? I might have guessed.

Anyone who criticizes the journalist in pursuit of objective news is a Rube - and (great phrase) "categorically irrelevant."

The Columbia Journalism School teaches its students that there is only one way to do journalism right.  All good journalism is the same.  It's objective.  It tells both sides.  It lays out the facts for the reader to decide. 

But if all good journalism is the same, why would anyone read more than one newspaper?  And, indeed, most Americans don't.  Evening newspaper circulation dropped by  three-quarters between 1960 and 2004.  I'm sure the number is even lower today.  There is simply no reason to read an evening paper that's exactly the same as the morning paper. 

To blame radio, TV and the Internet misses the point: those other media are more attractive because they offer variety.  Not just variety in the sense of sound and pictures, though of course that's part of it, but variety in the sense of other points of view, other ways of telling the story, something beyond the deliberately gray, oatmeal-like texture deliberately cultivated by the priests of print journalism.

"Objectivity" sounds great, but unless you're God, you can't achieve it, and ever since Job people have been wondering about Jehovah's objectivity, too.  In American journalism, "objectivity"  means "presenting both sides", which of course presupposes that there are - always - two sides.  The best illustration of this principle in action is the experience of Deborah Lipstadt, the historian who called David Irving a Holocaust denier, only to be sued by him in English court - and win, because truth is a defense.

Anyway, let Deborah Tannen tell the story:

Deborah Lipstadt, a professor at Emory University, documents how this happened in her book, Denying the Holocaust. When it was published, she was invited to appear on national television--in many cases if and only if she would debate Holocaust deniers!

She refused because there was nothing to debate. She did not want her book to become a pretext for giving a national forum to deniers trying to convince people of what the producers knew were lies. One producer, reluctant to accept Lipstadt's refusal, challenged, "Don't you think viewers have a right to hear the other side?"

Which exposes the fallacy at the heart of the cult of "objective" journalism: that there is no truth.  There are only arguments pro and con.  So if one scientist denies the evidence of Greenland ice cores, while 999,999 accept the evidence, then we have a scientific debate about climate change.

This is the model of journalism that reporters bring to the courthouse.   So now imagine a reporter determined to "get both sides" reporting on lawyers arguing in court.  The problem for the reporter is that he or she must present both sides' arguments "fairly", giving equal space to them and treating them as equally valid - giving the objective facts for the reader to decide.

But, of course, the whole point of courtroom hearings is precisely that the two sides are not equally valid.  So on the one hand, you have lawyers who are skilled at making their points seem plausible; and on the other hand, you have a reporter trained to believe it's his quasi-religious duty to reject the idea that one side is right, or more right, than the other.  And so the article begins in incoherence even before going through the editorial process of dumbing-down for readers who are presumed incapable of understanding the way their government actually works.

And that's why courtroom coverage in our newspapers is, when it's not actively misleading, such a soggy waste of time to read.

ABC News' website ran a story on Thursday headlined, "Startling New Stats Show Cross-Country Crime Spike."  Now, that's a good headline.  The alliteration is satisfying, and beginning with "startling" and ending with "spike" produces a pleasing symmetry, not just of sibilants but of bookended promises of drama.  And "cross-country crime," with its echo of that evergreen the cross-country crime spree, adds a subtle overtone of menace.

Anyway, here's one of the startling spike stats: "Murder was up in 26 of 53 cities".  Now, I agree that rising murder rates anywhere are worrisome.  But ABC's stat tells us that murder rates stayed the same or dropped in 27 cities.  If I were to tell you that 26 cities saw an increase in the number of Italian restaurants, while in 27 cities the number of Italian restaurants stayed the same or dropped, what would you conclude about the nationwide trend in Italian restaurants?

Crime statistics are always subject to intentional massaging, as the New York Times reported recently in a story headlined: "A Very Violent School, or Just Very Honest?", reporting that Rome Free Academy in upstate New York was listed as one of the 10 most dangerous schools in Gotham's state, which is just laughable.   Apparently, only one principal in the state failed to get the memo about reporting violent incidents.

A teacher at a notoriously violent high school in Albuquerque once told me the administration had established a firm policy that teachers were not to  break up fights.  I used to assume that policy was intended to avoid injury to the teachers, but I now suspect it also serves the purpose of permitting the administration to pretend it was unaware of the incident when compiling statistics.

But given a couple grains of salt, changes in crime statistics tell us a lot.  The problem is that it's not always easy to be sure what, exactly.  Arguments about whether this or that initiative "works" or not look at single variables, and of course there's no single variable that explains more than part of the story.

The nationwide drop in murder rates during the 1990s and continuing for the first few years of the new century was certainly welcome, but it was just a drop from a hideous high.  Washington had 81 homicides in 1960 and 482 in 1991, even as the city's population dropped by about 165,000 - and despite concurrent advances in emergency response services and medical care that vastly reduced the "lethality rate" - the percentage of shooting and stab victims who die from their wounds.  2000's number of homicides (241) was just half the 1991 figure - but it was also three times the 1960 figure.

One obvious reason why the murder rate dropped in the years following the peak - no more than part of the story, but a part I haven't seen emphasized anywhere - is that by the late 1990s, so many dangerous people were dead.  At any given time, in any given population, there is only a small number of people - or, rather, teenaged boys and young men - who are prepared to kill, or to participate in the kill-or-be-killed gang culture.  A city can't lose several thousands of them in just a few years without some effect.

If there's any validity to that partial explanation, you'd expect the murder rate to start creeping up again as a new generation of dangerous people grows into - well, not into maturity, exactly.  Interestingly, the District itself doesn't show an uptick, according to these statistics, but Maryland's Prince George County, just across the border, certainly has.  Last year its number of recorded homicides topped the all-time record set in 1991.

Flavia Colgan of the Philadelphia Daily News nicely sums up one of the plot points of the movie usually credited as the first of the gross-out comedies, although it's pretty sedate and decorous by contemporary standards:

In "Animal House," the evil Dean Wormer, in his quest to get rid of the nuisance of the Delta fraternity, puts them on "double secret probation." It was a made-up term that just made his desperation even more hilarious.

From Louisiana, always a rich source of material for this blog, we read this news story:

The state's highest court ordered Orleans Parish Criminal Court Judge Charles Elloie removed from the bench until a full hearing into alleged misconduct involving the setting of bonds can be heard.

Elloie has come under fire for years for his lenient and sometimes erroneous bond setting practices.

As the old saw has it, the easiest way to make money is to be standing around when it changes hands, and bail bonds involve a good deal of money changing hands.  It was a federal investigation into Jefferson Parish bail bond practices that wiretapped Judge Ronald Bodenheimer ordering a minion to plant OxyContin in the car of a man who had opposed the judge's request for a zoning variance on a little business he ran on the side.  (See post 12 and post 67.) 

Fellow south Louisiana Judge Alan Green was sent to prison for steering defendants to a particular bail bond company in exchange for kickbacks.  (See post 67.)  So whatever it was that Judge Elloie was allegedly up to, he was stepping in some big footprints.

For the cognoscenti, apparently, Judge Elloie's troubles aren't altogether surprising:

When Elloie ran for office in 1986, he was already on probation from the Louisiana Bar Association. During that election and in his early years in office, he repeatedly ran afoul of the Louisiana Judiciary Commission.

The commission placed Elloie on secret 3-year probation and later called on the Louisiana Supreme Court to censure him.

Secret probation?  As Flavia Colgan says, double secret probation and its governmental equivalents sell out the principles of representative democracy to protect the powerful.  The Louisiana Judiciary Commission, which imposed secret probation on Judge Elloie, is itself a highly secretive organization, whose activities are generally hidden from the public - as we find out from the website of the Louisiana Supreme Court, which apparently oversees the body appointed to oversee it.

The underlying concept is straightforward: the people have no right to know what one-third of the government is doing.  As to what, exactly, Judge Elloie was doing, here's a clue:

During the week he spent attending a continuing legal education seminar at a posh resort in Jamaica three months ago, Criminal District Court Judge Charles Elloie approved 11 bail reductions for defendants, court records show.