JUDGING CRIMES

Indecisive trial judges are terrible, but at least you can try to get the last word in.  A relatively dumb but emotionally secure judge isn't so bad: you just have to adjust your approach, like a middle-school teacher transferred to elementary school.  (Crooked judges are in a category of their own.)

I've long thought that the defining characteristic of the really, superlatively bad judge is that he's so dumb he doesn't realize he's not smart. 

But, on reflection, I suspect such judges secretly realize it.  They try to suppress their self-awareness, and expend great effort attempting to prevent others from learning their "secret" - which, as with the classic closeted gay of comedy, is no secret, of course - and those self-evasions, rather than the relatively low IQ, cause the worst problems.

I use "he" advisedly because in my experience the superlatively bad judge is always male.  Perhaps that's coincidence, but I think not.  He approaches each case as an opportunity to intellectually dominate others - something he's incapable of doing without the props of judicial office.  (That's why he wanted to become a judge in the first place.) 

Such judges are usually described as "arrogant" but that misses the point, I think.  The air of arrogance, when married to intellectual incapacity, is just the public acting-out of an interior psycho-drama. 

When a lawyer points out to such a judge that he's wrong, it produces symptoms of panic.  If it were true that the judge were wrong, it would mean that his underlying insecurities are justified, which would be emotionally intolerable, and so therefore it cannot possibly be true that he's wrong.  Rather, the person who tried to convince him of his error is a threat, or even a personal enemy, to be dealt with accordingly.

I was started on this line of reflection by a conversation with a law school friend who practices in one of those states with the funny irregular borders - you know, those weird little squiggly shapes over on the right side of the map.  This friend reported that his state has an appellate judge who is well-known in the legal community for two things: he thinks he's an intellectual, and he's not very bright.

So on the one hand you have the sad specimen, the psychological case study, an object worthy of our compassion.  It must be painful to be trapped inside this judge's skin.  On the other hand, you have a stupid judge imprinting his neuroses on the law of his state. 

My friend reports that this particular judge, while viewed as harmless enough by most of the bar, has developed an interesting reputation among appellate practitioners: his published opinions are full of lies.  When he can't refute the arguments of counsel, he misrepresents those arguments and then refutes the misrepresentations.  When the facts are inconsistent with his position, he ignores them or makes up others.  "When you read his opinions, you need to constantly remind yourself that there's no more than a 50/50 chance that he's describing the case honestly."

The judge is running little risk of having his lies exposed because most lawyers reading his opinions (and no one but lawyers will ever read them) know nothing about the case except what the judge himself has revealed.  The only lawyers in a position to expose his lies fall into one of two camps: those who aren't going to risk their client's victory by complaining; and those whose complaints would sound like sour grapes - and would almost certainly provoke retaliation.  (Bad judges hold conscientious counsel's clients hostage in that way.)

In theory, the other judges serving on the appellate panel could check this judge's lying.  But why would they want to?  What's in it for them?  As Judge Richard Posner has pointed out, appellate judges benefit in multiple ways by raising no objections to their colleagues' opinions.  Going along to get along is rewarded by increased leisure, while scruples only mean extra work.  

Perhaps even more importantly, passivity maintains cordial relations among colleagues.  If Judge X points out that Judge Y has misrepresented the facts, Judge Y will retaliate by dissenting from Judge X's next opinion, forcing Judge X to write crabbing footnotes in rebuttal, and so on, until someone boycotts the annual party and the feud becomes a real drag for everyone who works at the court.

You have to decide which is more important: justice for strangers, or a comfortable workplace for yourself.  (Whenever an appellate judge starts talking about "collegiality" on the court, pay attention, because it's a coded confession: he or she is admitting that the judges run the court primarily for their own benefit.) 

Professor Anthony d'Amato once published a paper called "The Ultimate Injustice: When a Court Misstates the Facts."  I think there are plenty of reasons why judges lie (which is what the professor means by "misstates the facts").  Bribes are a powerful incentive, and so is ideology, or friendship to one lawyer or antipathy to another.  But the psychological processes I've described are, I think, the single most common reason for judicial lying.  

After all, what better job than judge for the person who needs reassurance that he's not the intellectual mediocrity he secretly knows himself to be?  The fawning obsequiousness of lawyers provides an oxygen line of reassurance. 

And what better job than appellate judge for the person who feels a psychological need to win every argument but lacks the intellect to win any?  He can pretend to win the argument by lying about the facts of the case and misrepresenting the arguments of counsel, and he can then enlist the entire apparatus of the judiciary to make his pretense seem real.  And for such a superlatively bad judge, the simulacrum is the closest he's ever going to come to the real thing, so of course he seizes every opportunity to experience it.

It's just too bad he can't simulate in private.

A disturbing story from England's Telegraph describes what happened when the police failed to complete the routine processing of evidence:

A serial sex attacker went undetected because police failed to send his DNA samples for analysis, a court has heard.

Mark Campbell, 38, is accused of stalking, raping and assaulting a series of women and teenage girls in Sussex since 1998.

It emerged that four years into his alleged campaign of sexual violence he could have been stopped when he was arrested for a "peeping tom" offence.

Sussex Police took the man's DNA in 2002 but he was not linked to the crimes because an "oversight" led to the swabs not being sent for examination.

Only during an official police review last September were the samples sent for analysis and Campbell was arrested the next month.

In the time that elapsed, Campbell is accused of raping two 15-year-old schoolgirls in his work van, and sexually assaulting several others by breaking into their homes, Chichester Crown Court heard.

It's hard not to think that the police failure was, as we lawyers like to say, a "but-for cause" of the later attacks: but for the failure to analyze the DNA samples, Campbell would most likely have been arrested much earlier, and he could hardly have raped those schoolgirls from a jail cell.

If once we accept that cops' failures can "cause" violent crime, is there any reason to absolve other agencies from responsibility?  For instance, prison officials can, through their negligence, fail to immobilize the dangerous.  Probation and parole officers, too, might fail to act on the obvious need to restrain such people.  If their incompetence leads to another's death or serious injury, is there any reason they shouldn't be held responsible?

Modern judges have little difficulty answering these questions.  Lawsuits against cops and prison officials for failing to protect citizens from criminals are no longer a novelty (though they're hard to win).  But are there any other governmental agencies involved in the enforcement of criminal law who might also be deemed responsible for the consequences of their failures?  Well, let's see.  There's prosecutors and public defenders.  (Warmer ...)  There's bailiffs, tipstaffs and courtroom security guards.  (Getting hot ...)  Who else is left except -?

There are two big differences between judges and other actors in the criminal justice system.  First, judges get to decide who can be sued and who can't.  So, naturally, judges can't.  (No one knows the inadequacies of the legal system better than judges, so they don't trust their fates to it.) 

Second, by definition a judge's ruling is correct at the time it is issued.  It remains correct unless and until it is reversed by another, higher court.  That's why it was lawful, even if unconstitutional, to imprison Martin Luther King.   It doesn't matter how mistaken, corrupt or hopelessly stupid a judge's ruling was.   At the time it was issued, the ruling was justice embodied.  And what could be more perverse than blaming a judge for doing justice?

In an interview, B.F. Skinner, the great apostle of American behaviorism, once summed up the basic concept of the criminal law.  Statutes, he said, are "statements of contingencies backed up by the political systems of the country."  He meant that laws control people's behavior by providing aversive stimuli:

An aversive stimulus is the opposite of a reinforcing stimulus, something we might find unpleasant or painful.

A behavior followed by an aversive stimulus results in a decreased probability of the behavior occurring in the future.

This both defines an aversive stimulus and describes the form of conditioning known as punishment.  If you shock a rat for doing x, it’ll do a lot less of x.  If you spank Johnny for throwing his toys he will throw his toys less and less (maybe).

(That's from a very useful online summary provided by Professor C. George Bouree.)

An ideal system of criminal justice -  I think this is intuitively obvious, but it's also in line with behaviorist theory - would combine a 100% chance of discovery/punishment with a graduated system of punishments:  conditional discharge (i.e., warning); probation; weekend jail sentence; jail; prison.  In such a world, the certainty that committing a crime would produce  an unpleasant or painful stimulus would ensure that only the incorrigible - the psychopaths - would ever need to be sent to prison.

Described like that, my ideal system of criminal justice sounds like a cage with levers in a psych dept laboratory, but I think normal human society ran pretty much along those lines for long stretches of our history.  In his early masterpiece The Pursuit of the Millennium, the late Norman Cohn wrote:

To an extent which can hardly be exaggerated, peasant life [in the Middle Ages] was shaped and sustained by customs and communal routine. ...  Social relationships within the village were regulated by norms which, though they varied from village to village, had always the sanction of tradition and were always regarded as inviolable. 

Familial relationships, of course, added another enmeshing network.  In such a society, it must have been very difficult to commit a violent crime secretly.   The near-certainty of discovery must have been a  powerful disincentive. 

A possible illustration of this point, from a different historical era, is provided by Jill Mocho's terrific Murder & Justice in Frontier New Mexico 1821-1846 . (1821-1846 was the interval between Mexico's independence and the American invasion.)  Mocho's researches uncovered just 11 homicide cases for that entire 25-year span.  Doubtless many other homicides escaped  the archives because the alcalde never found anyone to prosecute - but, if anything, that only proves the point.  Social isolation made villagers vulnerable to mobile strangers, but their social self-sufficiency protected them from themselves.

Also, such tightly-knit communities, with extended kinship structures, were not good laboratories for raising psychopaths.  Too much stability.  Too many other people involved in the child's life.  Too many positive role models.

But watch what happens in behaviorist theory if the risk of discovery/punishment slips much below 100%.  The association between committing a crime and the aversive stimulus is weakened, or even ceases to exist, so that being caught and punished seems less like an effect produced by the commission of the crime and more like a random stroke of bad luck.  A different kind of association is created:

B. F. Skinner’s entire system is based on operant conditioning.  The organism is in the process of “operating” on the environment, which in ordinary terms means it is bouncing around its world, doing what it does.  During this “operating,” the organism encounters a special kind of stimulus, called a reinforcing stimulus, or simply a reinforcer.  This special stimulus has the effect of increasing the operant -- that is, the behavior occurring just before the reinforcer.  This is operant conditioning:  “the behavior is followed by a consequence, and the nature of the consequence modifies the organisms tendency to repeat the behavior in the future.”

When the risk of being caught/punished is reduced, committing crime becomes associated with pleasure: the pleasure of power and dominance over others, the pleasure of sadism, or the various pleasures available to a person who has suddenly come into money. 

It's not hard to see that the two most significant trends in American criminal law for the past half-century have been directed toward (a) decreasing the probability of a guilty criminal being punished (that's the purpose of the numerous  non-textual exclusionary rules invented since the 1960s); and (b) increasing the severity of punishment.  We've been moving aggressively toward a society that is the photo negative (will that useful metaphor survive the disappearance of film?) of the ideal.

What's really interesting is that no one - well, no one who doesn't own stock in private prison companies - believes these are healthy trends.  Given that the criminal law itself is the preeminent example of behaviorist principles in action, how did we arrive at a system that contradicts basic behaviorist principles?  Ironically enough, it's because five justices of the Supreme Court thought it would be a spiffy idea to apply the principles of behaviorism to the criminal justice system.

Here's a story familiar to most criminal lawyers, although this telling is less familiar than the one subsequently published by a different court:

At approximately 2:30 in the afternoon of October 31, 1963, a Cleveland detective with thirty-nine years of experience observed two persons, later identified as John W. Terry and Richard D. Chilton, engaged in behavior, on the corner of East 14th Street and Euclid Avenue (in downtown Cleveland), which immediately attracted his attention and aroused his suspicions. Positioning himself across the street he observed these men for approximately ten to twelve minutes as they alternately left the corner on which the other was stationed, walked several hundred feet up the Huron Road block, peered into the window of either a jewelry store or an airline office and then returned to the corner to converse with the other. In turn the other person would leave the corner, repeat these actions and return to the corner. This procedure was repeated at least two to five times by both men. During this period, a third man, later identified as Carl Katz, approached the corner, spoke briefly to the two men and then departed.

After ten to twelve minutes of this behavior, Terry and Chilton left the corner and proceeded west on Euclid Avenue several hundred feet to where they again met Katz. The three then engaged in a conversation. As the detective testified: ‘* * * I didn't like their actions on Huron Road, and I suspected them of casing a job, a stick-up * * *.’ With this belief in mind, the detective approached the three men, identified himself and asked for their names. Receiving only a mumbled response, the detective turned the defendant around, quickly ‘patted down’ the outside of his clothing, and, perceiving a hard object in the inner breast pocket of his topcoat, inserted his hand and removed a fully loaded automatic. At this point, the detective ordered the three men into a store, told them to face the wall and yelled to a store clerk to ‘call the wagon.’ He then proceeded to ‘pat down’ Chilton and, upon perceiving a hard object in the lefthand pocket of his topcoat, inserted his hand and removed a fully-loaded revolver. A similar ‘patting down’ of Katz revealed nothing. The three men were then taken to the police station where Terry and Chilton were charged with carrying concealed weapons.

That's from the opinion of the Ohio Court of Appeals, Eighth District.  (214 N.E.2d 114) (The asterisks are in the original - I don't know who was the first judge who thought asterisks were better than ellipses for signaling excisions from a text, but until 20-30 years ago that was standard in judicial opinions.)

It's almost sweetly innocent that Officer McFarland (and what a terrible pension plan he must have had!) would hustle his suspects into a store and tell the proprietor to "call the wagon."  That's not far removed from leaping on the sideboard of a car and telling the driver to "follow that car."  Today's Risk Management attorneys would blanch at the mere prospect.  The liability issues!

Mr. Terry was lucky enough to be represented by Louis Stokes, later a longtime congressman from Cleveland and the brother of Carl Stokes, the first Black mayor of a major American city.   (Cleveland was also the place where the American League's first Black player suited up, and where the major leagues' first Black manager dressed in a ghastly all-red uniform.  But there's something about the shape of the word "Cleveland" that makes positive things slide off, while the negatives - that uniform! - stick.)  (Here's a fabulous timeline of the brothers' careers.)

Terry himself was African-American, which I confess I never knew until I read Congressman Stokes' memories of the case.  Stokes said: "I knew Terry from his hanging around with another person I represented, a fellow by the name of Billy Cox.  Billy Cox was a rather notorious individual around Cleveland.  I represented Billy Cox in a couple [!] murder cases and knew Terry from his hanging around Billy Cox, because Terry liked to be around the more notorious type of individuals in the community." 

Here's a little something about a Cleveland hood of the era named Billy Cox, though I couldn't say for sure it's the same Billy Cox.  (I'm pretty sure it's not the Billy Cox who played bass for Jimi Hendrix, although according to Wikipedia, the Stokes brothers were cousins of the late Rick James.)

Since Terry was acquainted with Stokes, he called Stokes from jail.  And that (I always like to include professional tips for my lawyer readers) is how you get to be counsel of record in a landmark Supreme Court case. You know those wannabe gangbangers, the pathetic yet sinister parasites who think they're being an entourage to someone worth entouraging for?  They're your ticket to glory.

In the Ohio Court of Appeals, Stokes argued that Terry was arrested at "the moment the defendant was questioned by the detective", and the arrest was illegal because Officer McFarland didn't have probable cause to think Terry had committed any crime - or, for that matter, to believe that any crime had been committed by anyone. 

But the court didn't buy it.  It ruled that an officer may stop and question a person without arresting him or her.  And once that was established, it followed that the officer could frisk the person: "What is the officer to do in this situation?  Are we to allow him the right of inquiry and then, when this right is exercised, reward him with an assailant's bullet?"

The court also pointed out that suppressing evidence found in the course of a frisk would hardly deter police officers from frisking, since (ex hypothesi) they do so for self-protection rather than to hunt for evidence.  (Defense attorneys should pause at this point to mutter, "Yeah, right.")  Rather poignantly, in 1966 the Ohio court still flew the flag of judicial self-respect.  The resentment state judges felt at the then-recent federal takeover can still be heard:

The exclusionary rule of illegally obtained evidence cannot be interposed solely to provide a tidy "fox hunting" theory of criminal justice. ...

We agree with the District of Columbia Court of Appeals when it stated that it cannot believe that the "Supreme Court has forbidden the police to investigate crime."

Chief Justice Warren's famous ruling upholding the Ohio Court of Appeals' opinion reads like a point-by-point rebuttal of it.

Everybody working in criminal law knows that 1968's Terry v. Ohio was a tremendously significant opinion.  Professor Stephen A. Saltzburg, in a moment of giddiness, called it "a practically perfect doctrine", which I'm almost certain was intended as a compliment.   

But what did Terry do and how did it do it?  It might seem strange to say about such a famous opinion (45,090 citations on Westlaw), but I think the real genius of Terry has largely gone unremarked-upon.  Future posts will remark upon it.

It's infuriating that the Supreme Court considers itself too grand to explain its plans for us.  We just have to wait until they issue the press releases (called "opinions") justifying those plans after they're already put into action.   But from the PR point of view, there's little room to doubt that the justices are better-advised to preserve a silence that the shallow can mistake for profound or principled. 

Consider this object lesson in what happens when a justice tries to explain himself - and does so with unintended thoroughness.  It's from a Washington Post chat with Robert Draper, compiler of Dead Certain, the Bush Administration's weirdly-narcissistic collective self-portrait:

Alexandria, Va.: Given that John Roberts specifically has repudiated your claim that he recommended Harriet Miers for a Supreme Court nomination, why should we rely on the accuracy of anything else in your book?

Robert Draper: I don't blame Chief Justice Roberts for attempting to disassociate himself from an ill-advised recommendation. But two well-placed administration officials told me about Roberts' advice, and I'm confident in their veracity. By the way, his spokesperson's statement was parse-worthy: "Chief Justice Roberts did not recommend Harriet Miers to President Bush." I believe that's correct; according to my sources, Roberts didn't issue his recommendation directly to the president.

I try to think good thoughts about the new Chief Justice, and I'm sure Bush could have done much worse.  Roberts' dabbling in politics from the Court is a throwback to an earlier age, but seems mild enough as such Fortasizing goes.  The prospect of members of the Court selecting their own colleagues is a little more alarming - the last thing we need is an even more insular Court. 

But it's his indulgence in a not-false non-denial that serves as the clearest warning to the rest of us to keep on our toes.  The plan is for this Jack Armstrong to be Chief for a very long time.  But now we know his public words must be examined closely for what they don't say.

In 2003, Justice Kennedy issued an opinion thunderously denouncing the defiantly racist jury-selection policies officially adopted by the Dallas District Attorney's office of 1963.  (See post 57.)  If he had contented himself with that, we could all say: Better late than never.  But the point of his opinion was that stringent policies needed to be applied today to fix the injustices that had escaped the justices' attention a generation ago.

Shouldn't this be seen as an admission by the Court that for 40 years it failed in its duty to ensure equal justice under law in Dallas?  That idea wouldn't occur to most people in the legal world, I think, and especially not to the justices themselves.  They seem to perceive nothing peculiar about their institution's way of arriving late to the party and then announcing loudly that it's both the host and the guest of honor.

Justice Breyer recently called Brown v. Board of Education "this Court’s finest hour."  Given that he  "married into a well-established family of the British aristocracy", we can be sure that his Churchillian echo was intended.  A beleaguered democracy standing alone against Hitler, a court belatedly overturning its own evil decision of 58 years previously - well, I'll take Justice Breyer at his word, he sees a resemblance.  One of those Madonna-in-the-pancake things, I guess.

But what about those intervening 58 years?  Even if one assumes that the justices of 1896 didn't actually sell their souls to the devil - even if we assume they honestly didn't understand they were institutionalizing the racism of their class and genuinely thought they were fairly interpreting the constitutional phrase "equal protection" (big assumptions, I know, but Supreme Court justices tend to be sketchy about reality) - even on those heroic assumptions, the socially destructive effects of Court-approved racial segregation were plainly apparent long before 1954. 

Brown v. Board of Education was a remedy for the injustices of the preceding two generations.  Even apart from the most important point - that the Court itself was largely responsible for those injustices, by barring the courthouse doors against the oppressed - the slowness of the Court's response illustrates the generation-ago rule.  The Court always works in arrears.

Other examples are provided by some of the Court's most controversial decisions.  Its 1972 ruling that capital punishment was unconstitutional came at the end of a 21-year trend of fewer executions every year.  Its abortion ruling of the next year capped a similar trend toward liberalized state laws.  (Both decisions, of course, decisively ended those trends, with consequences still being felt today.  See post 270.)

And I don't think anyone can doubt that the Warren Court's "constitutionalization" of procedures in state criminal courts was a response to the use of the criminal law as a weapon of racial oppression, particularly but not exclusively in the Southern states.  But that systematized abuse was already apparent long before Miranda. 

I think the evidence is pretty strong that Justice Ginsburg hasn't thought seriously about criminal law since before the Civil Rights Act of 1964.  She's still acting on the shared assumptions of her generation and class - the well-to-do Upper West Side intellectuals of Bob Dylan's folk period.  Judging from her votes in criminal cases, I'm quite certain she sees all cops in terms of the legendary Southern lawmen of the day.  She quite sincerely wishes to right the wrongs of a generation or two ago.

Twenty or so years ago, America saw a wave of bizarre sex abuse prosecutions.  (In some instances the abuse alleged was almost as bizarre as the decision to prosecute.)  The Supreme Court stepped right up to the plate in 2004 and decided Crawford, a case that effectively prevents many child sex abuse cases from going forward - which, I think, was the point.  The Court was offering a remedy for the problems of a generation ago. 

Look around you.  Make a note of current social problems.  Future justices of the Supreme Court are assuredly doing so.  In twenty or forty years, when those same justices are too old and cosseted to have any reason to think about anything new ever again, they'll issue constitutional rulings in great clouds of self-righteousness to right the wrongs of 2007.

Last Wednesday the Illinois Appellate Court issued a "vacuously, smugly, and unconsciously foolish" opinion in a carjacking case.  According to the juries that heard their separate trials, Shakina Feazell and Dion Banks (who, supposedly, met in drug rehab, that romantic rendezvous) went to the Ford City Shopping Center on Chicago's southwest side.  (The mall got that funny name - "Ford City" isn't a municipality - because it was the site of a WW II defense plant.) 

Banks and Feazell didn't go to the mall to ride the merry-go-round.  They wanted to trade in the Toyota, which they'd already been driving for three weeks,  for some new wheels.  Three weeks, after all, is a long time to be riding around in a stolen vehicle.  It's just asking for trouble.

Meanwhile, Rose Newburn, a 40-year-old nurse, had just taken her two sons, 4-year-old Quincy and 5-year-old Tyrone, for haircuts, and decided to stop by the mall on the way home.  The boys were in the back seat.  Banks and Feazell pulled up next to her Dodge Intrepid.  Banks got out, pointed a gun at Ms. Newburn, and told her to get out of the car.  Ms. Newburn said no and Banks shot her through the window, opened the door and dragged her out, and left her in the parking lot to bleed to death.

Then Banks got in the car and drove off, with Feazell following in the Toyota.  A neighbor, who apparently heard the story from the boys' father, told a Sun-Times reporter what happened next:

 "He drove to the other side of the mall, and the kids were in shock, and (the youngsters) said something or the driver realized the boys were in the car," Patterson said. "Then he stopped the car and said, `Get out.' "

The carjacker left the boys standing in the mall lot, according to officer Edward Alonzo of police news affairs.

Or, in the no-big-deal words of the Appellate Court, "Before exiting the mall, Banks let Quincy and Tyrone Newburn out of the car.  The boys ran back to where their mother lay in the parking lot."  If you didn't know better, you might think Banks had been operating the carousel or something.   But Banks' jury took a dimmer view and sentenced him to death.   Unfortunately for him the sentence was handed down after Nobel Peace Prize candidate George Ryan had left office - indeed, after Ryan was already under indictment.

His accomplice, Shakina Feazell, got off easier at trial - and hit the jackpot on appeal.  (I don't mean to be disrespectful,  but doesn't "Shakina Feazell" sound like a character out of The Hitchhiker's Guide to the Galaxy?)

The Appellate Court ruled that Ms. Feazell was denied her constitutional right to a fair trial when the trial court allowed a police detective to describe his post-murder interview with her. 

Now, murder confessions are suppressed so routinely that the mere suppression doesn't come close to qualifying an appellate opinion for inclusion in the Fatuity Watch.  Confessions are commonly suppressed when a suspect isn't given Miranda warnings, asks for a lawyer, or is questioned after an illegal arrest.  Less commonly (these days), confessions are suppressed because the suspect was mistreated by police.

None of that occurred in People v. Feazell.  Ms. Feazell didn't even confess: she admitted planning to shoplift at the Ford City mall, it's true, but she wasn't charged with that, since she never got inside the mall doors.  She said she was totally surprised when her boyfriend pulled out the gun and shot Ms. Newburn, and afterwards she tried to get him arrested by attracting police attention.

No, the information that should have been concealed from Ms. Feazell's juries wasn't her answers to the detective's questions.  Rather, it was the questions themselves.

Incidentally, I don't recall ever previously reading another appellate opinion in which the facts are expressly viewed from the point of view of the convicted defendant, ignoring the prosecution's evidence.  I've read lots and lots of cases in which author views the facts that way, but in every case I can recall the author put on a show  of being objective.  This opinion comes right and out and says that the court is adopting the convicted murderer's version of the facts as its own ("For the purpose of simplicity, most of the testimony will be related in the context of the defendant's account of the events.").  I'm not sure if that's commendable honesty about the judges' bias, or merely a technique for concealing from the reader inconvenient facts that would make the court's decision seem even more ridiculous.

Because it's ridiculous to say that a jury is permitted to hear a suspect's answers to a detective's questions, but not the questions themselves.  The Washington Supreme Court, no stranger to fatuity itself (see post 282), explained why earlier this summer.   A person's responses to questions "would not make sense" without the questions.  It's not exactly counterintuitive. 

But in the realm of legal technicalities, where the ridiculous is normal, the argument can be made that the Constitution required the officer to describe his questions without actually letting the jury in on the secret of the precise words he used.  He should have paraphrased himself.  He should, in short, have lied to the jury.  That argument can be made, but only a court steeped in fatuity would buy it.

If only the jury had received a distorted idea of what Ms. Feazell meant by the words she spoke to the detective.  Then she would have had a fair trial.

UPDATE: The court withdrew the original opinion and came out with another one arriving at the same conclusion based on the same comical reasoning.  Presumably there's a difference between the two opinions, but the court itself is careful not to reveal what it might be, since to provide guidance to readers would be to admit that it was capable of producing a flawed opinion.

That's a pretty provocative headline, isn't it?  But it's a common phrase, frequently found in the English-language media in Indonesia.  It's even used by legislators:

There remains a low rate of reform in the Supreme Court and the mafia still exists within its ranks, experts said Thursday.

Mahfud MD, a legislator from Commission III with the House of Representatives, said the court's reform process had failed because of judicial corruption and the court's mafia.

"If reform is measured by the process of cleaning out the mafia, then we must say the Supreme Court under [Chief Justice] Bagir Manan has failed to reform," he said.

In an effort to fight judicial corruption, the legislature created an oversight body called the Judicial Commission - which the Supreme Court, in a casually contemptuous display of what judicial power really means, declared the Commission unconstitutional.  (See post 161.)  The fatal flaw in the concept of constitutional government - the thing that prevents it from ever truly coming into existence - is that someone has to be the final arbiter. 

A law professor gave the principled explanation for the status quo (a duty law professors can generally be relied upon to perform):

Law professor with Airlangga University in Surabaya Jacob Elfinus Sahetapy said, "In order to see a full reform of the Supreme Court, the Judicial Commission must be reinforced so it can discipline corrupt judges".

"But the commission cannot interfere in judges' rulings ... internal supervision is needed.

It's a classic lawyer's way of processing information (I don't think it can be accurately termed "thinking"): first you establish categories, then you slot items into them.  The grid is constructed first, then imposed on reality.  The burden is on reality to conform to theory.  The underlying assumption of Elfinus's categories - that "disciplining corrupt judges" is somehow different from "interfering in judges' rulings" - isn't examined.  It can't be, or his comment would be nonsense.

But, to be fair, the professor also pointed out the fundamental problem of transparency:

Elfinus also said mafia practices were impossible to trace.

"And it's getting darker and darker inside the court, with no obvious reform."

How many Americans can say their judiciary's practices are transparent to outsiders?  Or even insiders?

Mahfud, the Indonesian legislator, referred to the fish rotting at the head:

"The case of Harini Wiyoso is an example and proved mafia practices still exist."

Harini Wiyoso was a lawyer for Probosutedjo, the step-brother of Indonesia's former President Soeharto. Harini tried to bribe Chief Justice Bagir Manan and several other judges in 2005.

This is a pretty cryptic reference, possibly because the Jakarta Morning Post, where all this comes from, didn't care to court a libel charge from Chief Justice Manan.  But here's some background:

In September 2005, Manan headed a panel of judges presiding over Probosutedjo’s appeal against his corruption conviction.  Controversy erupted when the KPK arrested Probosutedjo’s lawyer and five Supreme Court officials on suspicion of involvement in bribery. The lawyer said she had paid a bribe of Rp6 billion – of which Rp5 billion was intended for Manan – in order to have Probosutedjo’s conviction overturned. Probosutedjo admitted to paying the money, as well as another Rp10 billion to lower courts. Manan denied any involvement and appointed a new panel of judges to handle the appeal. Probosutedjo was subsequently jailed and the lawyer is now on trial. Manan has repeatedly refused to cooperate with officials investigating the case.

(In September, 2005, five billion Indonesian rupiah were worth just under half a million dollars.)

Naturally enough, lawyers in the underlying corruption case wanted to hear from the supposed chief beneficiary of the accused's largess:

[J]udges presiding over the ongoing corruption trial of Probosutedjo’s lawyer recently rejected the prosecution’s demand to summon Manan as a witness, even though the case is centered on allegations that he was to have received the lion’s share of the bribe.

So the Judicial Commission can't investigate judicial corruption because, under the Constitution, only the judiciary can investigate its own.  And the judiciary won't investigate it.  Which means ...?  You got it. 

I like one legislator's endorsement of the chief justice, evaluating him in the context of his judicial peers: "Bagir is the best of the ugliest."  Now there's something to carve on a tombstone.

Legislator Almuzamil Yusuf was less enthusiastic ...  "Judges in the Supreme Court must not be so over-confident as to think their prerogative to issue verdicts means they cannot be monitored. If that happens, it means the judges regard themselves as the absolute gods in the world of justice," he said.

Well, yeah.  But that's the point.  It's fun to be an absolute god.

Indonesia Corruption Watch produced a white paper titled Lifting the Lid "Judicial Mafia", the power of which is only slightly undercut by its use of an unidiomatic English typified by that title.  But the author strikes off a very evocative phrase: "justice market" (p. 5).

According to the paper, the corruption begins with the police and extends through the prosecutor's office, and many lawyers find it prudent to keep judges on a kind of retainer, paying monthly fees - which, I think (using a lawyer's classification system), ought to come under the category of "extortion" rather than "bribe." 

Another paper, the 2005 report of something called the IMF/Netherlands Program for legal and judicial reform in Indonesia, provides some history explaining how things got so bad.  It was different in the 1950s, when the Indonesian judiciary performed with a high degree of professionalism and integrity.   Then came The Year of Living Dangerously (the year, not the whitey-centric movie):

Weakened by regional rebellions, cold war interventions, political party conflict, and an increasingly active army with political ambitions, the Parliamentary government fell apart in 1957. President Soekarno assumed increasing political responsibility; under army pressure, in 1959 by decree he replaced the provisional parliamentary constitution of 1950 with the strong presidential constitution of 1945. In the new regime of Guided Democracy (1959-1966), characterized by high levels of political tension, concentration of authority in Jakarta, and street level political conflict, nearly all governmental institutions were rapidly shorn of their autonomy and mobilized for political use. During these years Indonesia’s prosecution and courts were undermined by political engagement and the rapid spread of corruption as they, like other government institutions, were liberated from effective oversight in a fortress government subject to few limits.

Under the New Order regime (1966-1998), following a coup in October 1965, the structural dimensions of Guided Democracy were maintained, but leadership and control were now vested principally in the army as the base of political authority. As it became clear that General (later President) Suharto had no intention of restoring the independence and authority of Indonesian judicial institutions, the condition of the prosecution, courts, and notariat quickly declined further, as the corruption begun under Guided Democracy accelerated along with economic growth. At the same time, the private legal profession grew exponentially during the economic boom of the late 60s onwards, diversifying as it multiplied into distinct classes of litigating advocates and commercial “consulting” or office lawyers. While it retained a number of honest senior and junior attorneys, the profession too was quickly and deeply corrupted, widening by degrees the “judicial mafia” that had begun to develop during the mid-1960s of judges, prosecutors, and advocates. No less was true of the quiet but unavoidable notariat. Over a period of about forty years, judicial corruption had become so imbedded that many judges, prosecutors, and private lawyers conceived it less as corruption than as normal interchange or perquisite or simply the way things were done.

A number of themes make their Linda Hunt-like supporting roles in that description: the corrupting effect of concentration of power, for instance.  And that talismanic phrase "judicial independence", although the major problem with the current Indonesian judiciary is precisely its independence from external control.  Then there's the 1960s vogue for using judicial power to further policy goals unrelated to the guilt or innocence of the accused.

Those themes are, perhaps, not unique to Indonesia's judiciary.

The very preposterousness of representing something as fantastically complex as human society in two dimensions is the great appeal of the right-left metaphor: any reasonable representation would be too complicated to serve the purpose of reliably identifying one's friends and enemies.  So we use the unreasonable but practical Byzantine system of Greens and Blues instead.

Our minds are so accustomed to thinking in terms of the left-right metaphor that most of our political discussion is conducted at the intellectual level of laundry sorting.  But the sorting itself is fascinating, because of course ideas don't come in colors.  How do we decide which viewpoint belongs in which basket? 

Genteel anti-Semitism - its genteelness consisted of a kind of plausible deniability (here's a modern example) - was a hallmark of the house intellectuals of the upper classes during the first half of the twentieth century.  Now the intellectuals who go in for that  kind of thing generally regard themselves as left-leaning.  So which is it, right or left?

The Progressives, such as Brandeis, were, at best, indifferent to civil rights (see post 197), while concern for racial equality has been a defining liberal position since the 1950s.  Does that mean Brandeis and the Progressives were conservative?  Or that the Civil Rights movement wasn't progressive?

Or take a look at the Socialist Party's 1912 platform.  Your average Republican today would find little to quarrel with the Socialists' demand for "a rest period of not less than a day and a half in each week" for factory hands, or "forbidding the employment of children under sixteen years of age."  Nor would "enactment of further measures for general education and particularly for vocational education in useful pursuits" raise many conservative hackles.  So should we conclude the GOP has gone Socialist?  Or was Eugene Debs a Republican?

George Will's column today, which sees the story of the Edsel as a metaphor for liberalism (the similarity is that he doesn't like either one), referred to "the liberal project of expanding government in the name of protecting incompetent Americans from victimization".  If that's what liberalism is all about, then certainly the enthusiastic enforcement of the criminal law is about as liberal as you can get.  What purer example exists of  protecting Americans from victimization?

And, indeed, if you ask the editorial page writers of the Wall Street Journal what they think of throwing People Like Us in jail for the type of crimes whose commission depends upon an ability to speak with apparent knowingness about arcane financials, you can expect a thundering denunciation of overreaching prosecutors.   Rudy Giuliani, in his U.S. Attorney days, was a frequent target.

But, of course, that's not how most people see it.  Representing the interests of the injured victim is, by and large, liberal only in civil suits.  In criminal prosecutions, the liberal position is on the side of the victimizer.  That was the whole initial premise, for instance, of Talk Left: The Politics of Crime.  (It's since developed into a more general political blog.) 

The same laundry-sorting can be seen in a Tony Mauro article from earlier this summer:

The case of Bowles v. Russell did not generate headlines at any point in its journey to the Supreme Court. And when it was decided by the high court Thursday, no justice spoke in angry dissent.

But the low-profile case offers as good a glimpse as any into the sharp conservative-liberal divide emerging this term.

Convicted Ohio murderer Keith Bowles lost the case on Thursday by a 5-4 vote, because he was two days late in filing a federal habeas appeal back in 2004.

After habeas relief had been denied and 30 days passed, federal rules of appellate procedure allowed for a 14-day extension to file an appeal. But inexplicably, the judge in the case, Donald Nugent of the Northern District of Ohio, gave Bowles 17 days to file instead of 14. Bowles appealed on the 16th day, and his appeal was rejected as untimely.

Now, I admit to feeling a passing twinge of sympathy for Mr. Bowles (a person who, according to the appellate opinion I can't find for free on the web, was too scared to fight the people he was angry at, since they were armed, so he stomped a stranger to death instead).  If a lawyer, through ignorance of the law, injures one who relies on him, why should the consequences be visited on the injured party rather than on the one committing professional malpractice?  (Because the lawyer in question is a federal judge, silly.)  

But the really interesting question is: what's so liberal about declaring a deadline non-jurisdictonal?  Think of the most liberal politician you can imagine, say, Ohio's own Dennis Kucinich.  Did he monopolize the YouTube debate with a rant about jurisdictional deadlines?  

I can see only two ways in which the opinion for the four dissenting justices was "liberal": (1) it would have permitted exceptions to a general rule, or in other words would give judges a power to nullify the law on an ad hoc basis, in the interests of justice;  and (2) it would have been a victory for a convicted murderer.  But it's difficult to see any ideological content in # 1 except insofar as it would produce # 2. 

But what, once you get down to it, is so liberal about handing a victory to a convicted murderer?  A clue is offered by Elvis Costello's put-down of a television newscaster: "She takes all the red, yellow, orange and green / And she turns them into black and white."  The very preposterousness of the equation (assisting a murderer = liberal) is the attraction (but not, for you Elvis fans, the Attraction).

Wrong judicial decisions make you ask one set of questions: Is the judge who wrote this stupid? biased? lazy? taking money? trying too hard to impress someone?  All of the above?  Is this really the best he or she can do?

Correct judicial decisions post a different and potentially far more difficult set of questions.  Consider the case of Angela Lewis, who was "indicted for assault with a deadly weapon inflicting serious injury on [81-year-old] Nellie Joyner Carlson (Carlson) and felony breaking and entering into Carlson's residence at 1312 Glenwood Towers, a public housing development for senior citizens located in Raleigh, North Carolina. On 7 October 2002, a subsequent grand jury indicted defendant for robbery of currency valued at approximately $3.00 from Carlson perpetrated through use of a dangerous weapon at the time of the assault."

A neighbor found the elderly Ms. Carlson sitting slumped over in a badly "tore up" apartment.  Ms. Carlson's eye was "bloody and swollen."  She told the neighbor "that girl come in and just about beat me to death."   The neighbor called 911, and the officer who responded observed that Ms. Carlson's face and arms were "badly bruised and swollen."  In her conversation with the officer, this is how Ms. Carlson described what Angela Lewis did to her:

"I opened the door and she pushed me inside. She grabbed my hair and pulled my hair. She hit me with her fist. She also hit me with a flashlight, phone and my walking stick. She hit me in the ribs with my walking stick. She took a small brown metal tin that I had some change in. I also had some change on the table that she took."

According to the defense brief on appeal, "It was subsequently determined that Carlson had suffered a bruise over her left eye, a contusion to the right frontal lobe of the brain, a contusion to the right lower lobe of the lung, and three cracked ribs." 

Unfortunately for Ms. Lewis, Ms. Carlson had recognized her: Ms. Lewis frequently visited one of Ms. Carlson's neighbors in the Glenwood Towers project.  (Here's a more flattering view.)   When the cops spoke to the neighbor, he unhesitatingly "told them that the person they were looking for was Angela Lewis. " 

Bizarrely enough, Ms. Lewis herself next called the police, reporting that she was the victim of a strong-arm robbery.  She was bleeding from the head - bleeding heavily enough to leave a trail from a car to a pay phone.  (I sincerely regret that I can't tie together the strands of this story.)

Anyway, a detective assembled a photo array, took it to Ms. Carlson at WakeMed (it sounds like a pharmaceutical competitor of Starbucks, but that's what they call their hospitals down there in Raleigh), and she picked out Ms. Lewis as her attacker.  Ms. Lewis, who was in the same hospital at the same time, finally "said it didn’t matter anymore, just take her to jail."

Some weeks after the attack, Ms. Carlson, who was already suffering from lung cancer, contracted pneumonia.  She died 48 days after the robbery, well before Ms. Lewis could be brought to trial.

That meant there were no surviving witnesses to the robbery.  The trial judge allowed the police officers to tell the jury about their conversations with Ms. Carlson.  When coupled with all the peculiar circumstantial evidence, that was plenty to support a conviction.  The North Carolina Court of Appeals reversed, finding that Ms. Lewis had been deprived of her constitutional right to cross-examine her deceased victim, but the state Supreme Court reinstated the convictions.

So Ms. Lewis took her case all the way to the United States Supreme Court, and that court reversed her convictions again, sending the case back to the North Carolina Supreme Court for a second go-round.  (The Court calls that "G.V.R.ing" a case.  No, really, "G.V.R." is a verb.)   On August 24, the N.C. court gave up trying to salvage the conviction.

I think, from a purely legal point of view, that the state supreme court was right to vacate Ms. Lewis's convictions.  It's just wrong - or, I should say, "wrong" - to convict a person of assaulting an elderly person, if that elderly person dies before trial without ever having been cross-examined by her attacker's attorney.  

That's what the Framers wanted, you see.  Madison laid it all out in the Federalist Papers, or maybe during the ratification debates, or was it Jefferson?  -  Anyway, it was that famous bit about punching old ladies, bruising their frontal lobes and cracking their ribs.  How the Constitution, once ratified, would prevent people from getting convicted for that kind of thing.  Maybe it was Adams.

The U.S. Supreme Court has never said that it's lawful to beat up and rob old people.  All it's said is that in some circumstances - specifically, when the old person dies before being cross-examined and there aren't any other eyewitnesses - the perpetrator can't be punished for beating up and robbing an old person.

The distinction between declaring an action lawful, on the one hand, and declaring it beyond the reach of criminal punishment, on the other hand, is very important to judges.   It's what relieves them of moral responsibility for the consequences of their own actions.  It's what allows them to suppress the disorienting sensation of cognitive dissonance when they condemn an antisocial act as unlawful and simultaneously declare it immune from the law.   

It's another illustration of the modern judicial world's Shelleyan contempt for reality and indifference to consequences.  (See post 305.)   The distinction between the lawful and the non-punishable is highly significant when you're examining the motives of the judges who insist upon it.  ("Motive pure?"  "Check!")  But it's completely beside the point when you're talking about the safety of elderly cancer patients living in housing projects. 

What if they don't want to live in a society that accepts the beating of old people as something beyond the reach of criminal punishment?  What if none of us do?  Why shouldn't our wishes matter?  Just because our Supreme Court has such great plans for us?