Judiciary

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In the Davis v. Washington decision of a couple years ago (see post 127), Justice Scalias opinion for the Supreme Court contained a footnote explaining that suppression of evidence under the sixth amendment has no deterrent effect on police officers:

Police investigations themselves are, of course, in no way impugned by our characterization of their fruits as testimonial. ...  The Confrontation Clause in no way governs police conduct ...

Thats a bit odd, because for the past 47 years the Supreme Court has been telling us that suppressing evidence under the fourth amendment has the effect of "deterring official misconduct and removing inducements to unreasonable invasions of privacy". 

So suppressing evidence under the fourth amendment affects police behavior in a way that suppressing evidence under the sixth amendments confrontation clause doesnt.  Identical judicial actions produce opposite results. 

This is what I worry about: What if Scalia really believes it?

Have you ever seen late de Koonings?  Well, I havent, since I live so far from New York.  But in reproductions, all the sometimes-hateful intensity of the earlier works is gone.  In the late paintings, the lines are loose, the colors simple - and many people have wondered whether the new style was the result of de Koonings Alzheimers (or alcohol-induced dementia) rather than artistic inspiration.

Comparing opinions like Davis to almost any of Antonin Scalias opinions from the 1980s produces a disturbingly similar memento mori sensation.  The tight logic has come unwound, the careful use of language replaced by meaningless catchphrase: "testimonial statements are what they are".  That last phrase is lame coming from the mouths of losing football players, and they have the excuse of playing through repeated concussions. 

But then again, maybe theres a deeper meaning to Scalias words.   Maybe he meant to imply that suppressing evidence under the fourth amendment doesnt affect police conduct, either.  But, no, Im sorry - hes been a fairly enthusiastic fourth amendment suppressor recently.

The whole idea that suppressing evidence under the fourth amendment has any deterrent effect on cops has always struck me as more a matter of hope than experience.  After all, if after 47 years the rats still arent pressing the right lever, wouldnt even the most die-hard behaviorist consider the possibility that the experiment is a failure?  (See post 6.) 

What percentage of officers ever learn of the existence of judicial orders denouncing their actions?   Of those that do, how many see any point in ploughing through page after page of lifeless prose to discover what the judge said about them?  And of those who do that, how many can recognize themselves in the judges words? - that is, how many trust the judges reconstruction more than their own memories, retroactively shaped as those have been by the need to defend ones actions? 

Furthermore, why wouldnt an officer say exactly what lawyers say all the time, that the judge is full of it? biased? clueless? chummy with / intimidated by the other side? so scared of getting reversed that he bases his rulings on his perception of the bias of the next court up the ladder? 

Besides, is it altogether rational for a person in any profession to follow the advice of someone with no training or experience in that particular profession?  

You wouldnt trust your car to a mechanic whose only training was reading books written by people who had never themselves worked on cars.  You wouldnt trust your health to a physician whose only knowledge of medicine came from reading the works of his predecessors, whose sole experience came from studying the written works of their predecessors.   I mean, thats so 14th century.   

But, nonetheless, the Supreme Court has told us that police officers will trust their lives to judges, changing their future behavior in response to the signals given by judges a year or two after the officers previous behavior, and so its true that they do so - or, rather, its not open for debate, which inside the pyramidal hierarchy of our courts is even better than true.

Scalias Davis opinion is magical thinking - the belief that words can control reality - and, I suspect, a symptom of a cerebral event, probably a small stroke, thats been kept from us.  But magical thinking is hardly unique to Justice Scalia.  In 1961, the Supreme Court announced the result of its experiment before beginning it, telling us what they were about to accomplish before attempting it.  Abracadabra, my Brethren.

Although I try to avoid focusing on parochial interests -- and, to be frank, theres something liberating about writing about people who dont have the power to revoke my license to practice my profession -- nonetheless Albuquerques ex-Presiding Judge John Brennan has already rated a mention, thanks to his  arrest for cocaine possession.  (See post 38.) 

That would be enough for some people.  But certain personalities, once they taste the intoxicating liquor of mention in this blog, find themselves unable to resist the temptation to sip it again:

According to police reports:
    Officers heard screams shortly after arriving in Brennans neighborhood. After determining they were coming from what turned out to be Brennans house, they approached the front door and heard a woman scream, "Please let me go" and "Ouch, you are hurting me." They also heard a male curse at the woman and say, "Because of you and your big mouth, the cops are going to come."
    The woman responded, "Why are you doing this? Please let me go. Youre hurting me" as country music blared in the background.
    The officers then heard what sounded like the woman escaping and heard her scream, "Help! Help!"
    Two officers then peeked through a set of French doors and saw Brennan with his hand over the womans mouth and his arm wrapped around her throat.
    The officers drew their guns, kicked open the door, ordered Brennan to let go of the woman and placed the former judge in handcuffs. At the same time, a third officer was forcing his way through a back door.
    "I immediately recognized the male subject as former 2nd Judicial District Judge John Brennan," one of the officers wrote in a report.
    The woman told police that Brennan was upset because he wanted her to have sex with a prostitute and she refused.
    He then chased her through the house and grabbed her by the hair and neck several times, she told police. At one point, the woman locked herself in a bedroom and removed a window screen in an attempt to escape, but the window was too high.
    The woman told police that Brennan grabbed her hair and was going to "snap" her neck. She told police that she thought Brennan was going to kill her.
    When questioned by police, Brennan said, "I didnt touch her" several times. He also told officers, "I would never hurt a woman."
    "Mr. Brennan did emit an extremely strong odor of alcoholic beverage and his eyes were blood shot and watery and his speech was slurred," one officer wrote in his report.
    Brennan was chief judge in the 2nd Judicial District in Albuquerque for nearly 20 years. On Memorial Day weekend 2004, he was arrested on suspicion of driving while intoxicated and cocaine possession. He resigned from the bench shortly afterward.

Thats all from the Albuquerque Journal.  Needless to say, Brennan responded to the earlier arrest by going to a rehab center, but as the news story tragically reveals, he has since backslid into listening to country music again.

The next time you find yourself dressed down by a judge, its worth imagining him or her dressed up like Judge Brennan when the police kicked in his door, "wearing only a mock turtleneck and gray underwear".  No word on whether the underwear was gray when it came from the store.

Brennan, as the story says, was an extremely powerful judge for a very long time, with the power of assigning cases to fellow judges who played along with him. 

Its hard to read the recent news stories without (a) feeling a tinge of pity for him; (b) feeling a great deal more pity for his wife (who was out of town -- you dont suppose Brennan was basing more than his wardrobe choices on Risky Business, do you?); and (c) suspecting that his cocaine problem is/was a very severe one.  Long-term cocaine use destroys the brain, and Brennans brain seems pretty much destroyed by this point.

Our Supreme Court responded to the scandal of his 2004 arrest by adopting the approach used by Catholic Church bureaucrats to deal with pedophile priests, treating it as a personal failing to be addressed with sorrowful discretion.  (See the appendix to this opinion.)

The real scandal wasnt Brennans use of cocaine.  It was his use of power.  No matter how one tries, its not easy to avoid the suspicion that for some part of 20 years the court system in New Mexicos only large city was presided over by a cocaine addict.  If so, then obviously his suppliers knew it.   Of course, most cocaine dealers would be too scrupulous to take advantage of such information.  Still ...

Theres nothing remotely unique about the New Mexico legal establishments reluctance to engage in such irresponsible speculation.  Prayer and penitence -- thats the ticket.  Oh, and harumph, too.

Courtesy of the always-worthwhile New York Supreme Court Criminal Term Library - I keep thinking there must be a clever pun in there somewhere; I mean, its the name of a blog, isnt it? - heres an NPR story about privatizing the police:

In the past, remote communities like this one [i.e., Wintergreen Resort, Virginia, along the Appalachian Trail] were ripe for thieves. But since residents started paying for their own private officers, crime has dropped 70 percent.

Many of the residents also did something else: They installed burglar alarms. Nationwide, one in four homes now has one. The alarms and an explosion of other devices, like steel bars, stronger doors and security glass, make it more of a hassle to break into homes, criminologists say.

Even locks, the most basic anti-burglary device, have undergone major changes since the 1970s.

"Good locks make all the difference," locksmith Rahm Bunnag says.

Locks are far more secure than they were 30 years ago, he says. Theyre far more intricate, he says, holding up two keys.

One, made by Ossa, has a second set of cuts on the side. Another, made by Medico, "looks like a normal key, but when you look down at the cuts, notice that its cut at an angle. Theres a 98 percent chance that says you cant pick it," Bunnag says.

The 1970s also saw the widespread introduction of the deadbolt. But the biggest change when it comes to locks, criminologists say, is that people started using them.

I have never understood why so many liberals, who are ideologically opposed to deregulation and privatization in other areas of life, are so comfortable with the idea that law enforcement should be an individual activity.  Security is a tax on the honest, as Bruce Schneier says (see post 52), and the folks in Wintergreen Resort are paying it, with their locks and private police force. 

The NPR story also mentions the "1 million private police and security guards at work in residential communities" - a mind-boggling number.  Thats a million people who have jobs because the government cant be counted on to perform its most basic function, which is to protect its citizens from harm.

Meanwhile, Justice Stevens recently wrote about how a state can "grant its citizens broader protection than the Federal Constitution requires".  By "protection" he meant concealing reliable, relevant evidence from its juries, on the theory that when a state prevents itself from convicting a lawbreaker of breaking the law, the state is protecting its citizens from unconstitutional actions by police committed many months earlier - your basic space-time anomaly.

The fact that a states citizens might feel the need to hire private police forces and make their homes into little castles in fact as well as in rhetoric is neither here nor there.  The little dears might think they need protection from criminals, but the Supreme Court knows better: they need protection from the states own courts, which might otherwise convict them.

Then again, the basic concept of "more protection under the state Constitution" is hardly new: Ludwig Mies van der Rohe expressed it in a three-word slogan many decades ago.

A few weeks ago I suggested, at tedious length, that the patron saint of all that is twinkly, Irish and liberal about the American judiciary appeared in public badly underdressed at certain points during his long career.  (See post 337, post 338, post 339 and post 340.)  So, to even the score, its time to turn attention to that lowering vulture of American judicial conservativism, the late Chief Justice.  But this time, as Louise Lasser said, with great pith.

In 1992, anti-abortion activists made a big swing at Roe v. Wade but - to the tremendous subsequent benefit of the religious right, which came within an eyelash of losing its defining issue - missed, thanks to the apostasy of Justices OConnor, Kennedy and Souter, who voted just like all those suburban Republicans who are ideologically committed to banning abortion so long as there is no realistic possibility of it actually being banned. 

OConnor, Kennedy and Souter - who were chicken-hearted enough to publish a "joint opinion", so no one of them could be blamed - argued that the Courts legitimacy (by which they meant the willingness of Americans to be dictated to) would suffer if it were to "surrender to political pressure" by overruling Roe v. Wade.

Rehnquist wrote a bitter dissent, alternatively mocking and deriding the three justices professed devotion to the principle of stare decisis - that is, adherence to prior decisions.  Rehnquists opinion goes on and on.  Heres a handful of representative snippets:

The joint opinion of Justices OConnor, Kennedy, and Souter cannot bring itself to say that Roe was correct as an original matter, but the authors are of the view that "the immediate question is not the soundness of Roes resolution of the issue, but the precedential force that must be accorded to its holding." ...

[It is] our duty to reconsider constitutional interpretations that "depar[t] from a proper understanding" of the Constitution. ...  Our constitutional watch does not cease merely because we have spoken before on an issue; when it becomes clear that a prior constitutional interpretation is unsound we are obliged to reexamine the question. ...

But this perceived dilemma arises only if one assumes, as the joint opinion does, that the Court should make its decisions with a view toward speculative public perceptions. If one assumes instead ... that the Courts legitimacy is enhanced by faithful interpretion of the Constitution irrespective of public opposition, such self engendered difficulties may be put to one side. ...

Fast forward eight years.  In his opinion declaring that the Miranda warnings are actually required by the Constitutions amendment V.V (see post 275) -  the one between V and VI that was omitted from so many copies for so many decades due to a printers error back in Philadelphia in 1791 - Rehnquist wrote:

Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now.  ... 

We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. ...

So speculation about public opinion is utterly unacceptable as a tool of constitutional decision-making, while speculation about our national culture is A-OK.  Everyone clear on that? 

In abortion cases, its wrong for justices to adhere to precedent unless convinced of the correctness of the original ruling.  In criminal cases, it doesnt matter whether the adherents agree with the adhesive in question.  

And, you know, thats clear enough, too, really.

During the past week Ive been preoccupied with preparing a PowerPoint talk about Crawford to a training conference for victims advocates and allied professionals.  Its not easy trying to make Crawford make sense to non-lawyers (or to lawyers, either, but then you dont need to: lawyers have been trained to accept without questioning arbitrary pronouncements from the Supreme Court).

The problem isnt so much the theory behind Crawford, which is elegant in its reductionist and intellectually dishonest (see post 238) way.  Its how the Supreme Court has implemented its revolution.

Anyway, trying to think of ways to explain what our courts have recently been doing to domestic violence and child abuse cases - because thats what Crawford is all about, practically speaking (see post 148) (well, and DWI, too) - has been a useful exercise.  Ive finally realized something I should have seen many years ago, which is the extent to which our current criminal law system relies on treating different things as if they were the same. 

Its a type of pretend-algebra: if suppressing evidence equals X, and protecting a defendants constitutional rights equals Y, then X = Y.

Which means, if you were paying attention in 8th grade (and most future lawyers could still get decent grades in math right up to the second semester of that year), 2X = 2Y. 

I think that, and nothing intellectually more sophisticated, is in the back of many decisions in the criminal law.  It can be expressed in a good old-fashioned syllogism:

Protecting the constitutional rights of the accused is a noble and praiseworthy thing for a judge to do, especially if the crime is particularly atrocious. 

A judge protects the accuseds constitutional rights by hiding evidence from the jury. 

And so, therefore, a judge acts most nobly and is most worthy of praise when ...

The problem, of course, is that in the real world X equals Y only in the same sense that shopping at Whole Foods equals living a radically-simple, eco-friendly lifestyle.  Or, say, invading Iraq equals smashing al-Qaeda.   

The constitutional algebra of X = Y not only confuses the means and the end, but assumes a connection between the two based solely on the judiciarys good intentions.   Or wishful thinking.  Or willful self-deception.  Or contempt for the weaklings who allow themselves to become victims.  Or whatever you want to call it.

In short, it involves treating two different things as if they werent different, refusing even to consider the possibility that theyre not the same, and proceeding from there.

I was started down this line of thought by, of all things, the back pages of my local alternative free weekly, the Albuquerque Alibi.  Back among the phone-sex ads and personals that seemed designed to make the bored Flying Star patron wonder whether its more likely to be a scam or just a joke, the paper runs Cecil Adams Straight Dope.

Far be it from me to question the font of all knowledge.  But still.  Recently the Alibi ran his column recycling the studies that purport to show that sugar doesnt have any effect on the behavior of children, contrary to the observations of millions upon millions of parents - as well as of anyone who has gone without lunch and then, mid-afternoon, washed down a doughnut with a Dr. Pepper. 

Ah, but thats real life.  The studies Cecil cited put mothers and children together in artificial laboratory conditions, and then gave the children either sugar or artificial sweeteners, and then tried to see if the mothers could tell which group their kids belonged to.

Now, it seems obvious to me that: (a) theres no reason to assume without evidence that artificial sweeteners have no effect on childrens behavior; and (b) no one cares whether sugar has a different effect than artificial sweeteners - the question is whether it has a different effect than real food; and (c) the kids behavior will change when in unusual situations, such as those of the experiments; and (d) the parents behavior will change when told to watch for signs that their child is beginning to get out of control, especially if they feel their parenting skills are being judged by the psych students or fellow-parents; and so on. 

The studies answer question A: Whether parents can tell  if their kid has been given a sugary drink or an artificially-sweetened drink in highly artificial conditions.  The premise of Cecils column (and, of course, the studies he was writing about) is that the answer to question A equals the answer to question B: Whether a kid can sit around the house all day and eat tons of sugary things without getting all weird.

Personally, I think an argument could be made that the two questions are not actually the same.

 A similar example, also from the fringes of science, was the recent meta-study, given huge publicity, that purported to show the inefficacy of SSRI antidepressants in treating depression, contrary to the experience of millions of patients and mental health providers.

But if you read down to the 9th paragraph of this article, youll find that what the meta-study really examined was changes in patients scores on "the Hamilton scale."  The study concluded - and I have no reason to doubt the validity of the conclusion, for all that I wonder if the authors had an agenda - that treatment with antidepressants generally doesnt result in significant changes in the Hamilton scale. 

(Possible agendas involve the secrecy-bordering-on-wholesale-deception of the drug companies - more here - and the allocation of public health monies in the U.K. as between talk therapy and drug therapy.)

Now, the Hamilton scale is a screening device used by mental health professionals to determine if a person is seriously depressed.  It assigns the patient a score, varying from 0-2 to 0-4, on 21 subjects such as suicidal ideation, and then adds up the scores.  

The Hamilton scale is doubtless useful for a triage nurse trying to figure out whether a person is an immediate danger to him- or herself.  But its an extremely crude method for measuring the emotional and mental state of a human being.   Its a little like asking your colleague if she prefers Italian or Chinese food - good information to have when choosing a restaurant for lunch, but not all that revealing about the persons inner life.

So what the meta-study was measuring was changes in patients responses to simple questions repeated over time.  The premise of the meta-study is: when M equals changes in the patients answers to repeated questions, and N equals the patients mental health, then M = N.

My only objection to the study is: No, it doesnt. 

At this point in our legal history, Im afraid that too many judges and staff attorneys have too much emotionally invested in the idea that X =Y to begin questioning the equation now.  Because if it turns out that concealing evidence from the jury isnt the same thing as protecting a defendants constitutional rights, then they have a lot of splaining to do.

The February 27 New Republic has a review of a book about neoconservatives that includes a passing reference to "the madmen at AEI", meaning the American Enterprise Institute.  On the same page, just one column over, is a long, meandering review by someone described as "a psychiatrist [and] a resident scholar at the American Enterprise Institute." 

Pace the prior article, this author is not technically a madman, to judge from her photograph on the AEI website.  Just a mad-doctor.

Anyway, the issue also has a review of a new Yale Press book by Yale Professor James Q. Whitman called The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial, which appears to be one of those academic books in which the author points out an interesting overlooked aspect of the past and then insists that it provides the key for understanding everything, everything, do you understand, everything!  You know, the usual scholarly thing.

The book is reviewed by the Joyce Carol Oates of the legal academy, the graphomaniac Judge Richard Posner, whom Nassim Nicholas Taleb terms "one of those people who should spend more time reading and less time writing".   The TNR review confirms Talebs judgment (which he immediately softens with some nice and well-deserved compliments - Posner is an extremely interesting and intellectually curious person, even though he is a judge).  The reviews first sentence is adapted from the first sentence of the publishers advertising copy, while the reviews second sentence reads:

To punish an innocent person is more costly than to acquit a guilty one, since convicting an innocent person imposes heavy costs of punishment on him and on the criminal justice system (the cost of administering the sentence) while the main consequence of acquitting a guilty person is merely to reduce, probably slightly (unless such acquittals become very common), the deterrent and incapacitative effect of the criminal law.

As it happens, I was induced to read the entire review because I was trapped on an airplane.  I couldnt help wondering, just a tiny little bit, if it were really true that the costs of acquitting a guilty person are quite as low as Posner assumes.  For instance, upon landing at Logan I walked by Boston Herald newsstands featuring this story:

The serial sex fiend busted for allegedly stalking a woman in a Braintree bookstore bathroom left a trail of escalating depravity encompassing nearly a dozen incidents over seven years, including a violent attempted rape.

Judge Richard T. Moses knew twisted sex freak David Flavell’s history of arrests from New Hampshire to Fairhaven when he set free the Level 3 offender in 2006, ruling he posed no danger to the public, according to court filings obtained by the Herald.

Well, its a tabloid.  But the heated-up, mad-editor style doesnt mean its wrong.  A follow-up article said the suspect was separately charged "with making obscene or harassing phone calls for dialing the National Center for Missing & Exploited Children to report he had just indecently assaulted a 6- or 7-year-old girl, a Boston police report said."  A Sunday article listed other Massachusetts sex offenders who have been re-arrested for sex crimes after being found not to qualify for sexual predator status.  

Well, okay, thats Boston.  How about in Judge Posners hometown of Chicago?  Three hours in OHare on the way home gave me time to read the Daily Herald, the paper for the northwestern suburbs, where the above-the-fold headline was "The hurt doesnt go away: Parents remember daughter who lost life in a single moment of violence."  The story was about Matthew Cunningham, whose months-long murder trial is set to finally end in the next few days:

Every day Bill Albu reads about people dying -- in drive-by shootings, in car accidents, on college campuses.

He thinks of the victims families and how their lives will never be the same. Sorrow will follow them to the grocery store, to family weddings, everywhere.

He knows.

His daughter, former Arlington Heights resident Katie Albu Spain, 28, was spending a quiet night at home with her son when she heard a smoke alarm go off somewhere in her building.

She opened her front door and ran into Matthew Cunningham, who had just killed his roommate, Robert Barker. Cunningham then stabbed Albu more than 30 times. She died in the hallway of her Phoenix apartment building in Arizona.

Bill Albu, the father, said about other parents of murdered children: "There are people who walk around with unbelievable sorrow in their lives and youd never know it, Bill said.  These are the most compassionate people."  He described the awful moment at parties when new acquaintances ask about his kids.

On page 4 was a story with this lede: "A 16-year-old boy accused of stabbing an Elgin High School teacher appeared Friday in Kane County circuit court on sex assault charges, offenses prosecutors allege took place about five months before the school attack."

And on page 6 was the headline: "Sisters words bring killer to tears" over this story:

For weeks, Eric C. Hanson remained composed while facing a DuPage County jury that will decide if he lives or dies for killing his family.

He never broke down despite horrific details of the quadruple homicide, a grueling five hours on the witness stand, or when he heard the word "guilty" for the first time.

But the Naperville mans stoical expression changed Friday when his older sister, Jennifer Williams, described the sad irony of his crimes.

"Eric murdered the only people in his life that loved him unconditionally -- my mother, father and sister," she said, "the most wonderful people that I was so fortunate to have called my family." ...

Hanson, like most of the worst killers, had a troubled childhood.  The jury heard this about his past:

As he aged, Hanson was convicted of home invasion, retail theft and, in 1999, aggravated battery. Three girlfriends described how he lied, stole and, on a few occasions, became violent.

Most disturbing, though, was a 911 call involving his sister, Kate, on Feb. 10, 1993, when she told police he held a knife against her throat when they lived in Burnsville, Minn. Eric was 16. 

"(He) got very mad at me and grabbed the top of my hair and threw me down on the hardwood floor," said officer Eric Gieseke, reading Kates statement. "His face turned color because he was so angry. He said, I might as well kill you because as soon as my probation officer finds out, Ill be sent away anyway. He said, I can cover it up. No one will know. "

Kate got away. Twelve years later, she did not.

On Sept. 29, 2005, police discovered the bludgeoned bodies of Katherine "Kate" Hanson-Tsao, 31, along with her husband, Jimmy, 34, in their upscale Aurora home.

Terrance Hanson, 57, and his wife, Mary, 55, also were found slain there. The elder couple was shot in their bed in Naperville, where son Eric also lived, then taken to Kates home five miles away.16.

Okay, but thats the suburbs.  How about Chicago itself?  The Sun-Times headline yesterday was: "Unforgiven".  This was the story:

On June 7, 1969, [Terence] Knox was a young cop nicknamed "Tinsel" because he wore braces. He was on patrol when he saw Pannell and thought maybe the youth was playing hooky from high school. Knox tried to question Pannell, but Pannell answered with bullets.

Knox was hit in the right arm.  At the time, Pannell, a Navy deserter, told investigators he was a member of the Black Panthers. Pannell never went to trial. Instead, he fled to Canada, where he assumed a different identity, married, had four children and became a respected member of his community. ...

[Knox] spoke of the "excruciating pain" that sometimes causes him to stand up and leave the room during business meetings. Knox said he hides his wounded arm beneath long sleeves. He showed reporters the fingers of his right hand -- puffy and purplish in color.

And Knox talked about the mental pain of seeing Pannell on Friday -- the first time since 1973.

"I had a hard time sitting in court today, very hard because it brought back memories Ive tried to block out, and I dont want them back," Knox said.

The main consequence of acquitting the guilty, Posner writes in the review I happened to have just finished as I walked past these various news boxes, "is merely to reduce, probably slightly ... [the] incapacitative effect of the criminal law."  He meant: is merely to leave the guilty criminal free to commit additional crimes. 

I dont know if Cunningham or Pannell had prior records, but its safe to say that the absence of any incapacitative effect on Flavell and the others featured by the Herald, the 16-year-old teacher-stabber and Hanson had costs that could be described in somewhat less-abstract terms than Posner chose to use.

But then, those costs arent borne by judges, are they?  Its possible Posner was being ironic (though irony, and humor in general, seem generally beyond his range), because the book he was reviewing argues that "the reasonable doubt formula was originally concerned with protecting the souls of the jurors against damnation."

Acquitting the guilty has low costs for judges.  In fact, if the judge takes care not to inform him- or herself about the remote consequences, it need not have any costs at all.  The key thing is to avoid reading papers like the two Heralds or the Sun-Times, which might suggest the disturbing possibility of life outside the courtroom.

We met Floridas Judge Michael E. Allen in post 272.  He got in trouble with the otherwise-rational Florida Judicial Qualification Commission by poaching on its turf.  As the Commission explained in its complaint, its unethical for a judge to let the public know about what goes behind the smooth blond wood paneling  of its appellate courts, because the judge is supposed to tell the Commission instead. 

Of course, theres larger issues at stake, too.  Like: letting the public know what really goes on in its courts would tend to diminish public confidence.  Its striking that the Commission doesnt contend that Judge Allen said anything false, or even inaccurate.  The supposed ethical violation is simply that he said it about his colleague, in contravention of the convention of unctuous displays of brotherly (well, brethrenly) esteem.

Anyway, ABC News has picked up on it with a story that quotes other court employees venting their feelings about Judge Allens antagonist, Judge Charles J. Kahn, whose publicity photo seems designed to create the impression of someone who doesnt know how to relax.   The story reports that Judge Kahn "was described by his colleagues as acting, at times, volatile, irrational and schizoid."

Lets see.  The DSM list of symptoms for schizoid personality disorder include "Social withdrawal, or continual avoidance of social activities / Flattened emotions or lack of expressivity / Having little to say".   You can see where combining that with irrational volatility might be somewhat disorienting to coworkers.

But, hey, we only pay em to sound like they know what theyre talking about when they use fancy words in their opinions.  I think what the speaker - Chief Judge Edwin B. Browning - meant was something more along the lines of Dr. Jekyll and Mr. Hyde, or perhaps Boopsie and Hunk-Ra.

Really, the competition for a featured place in this blog is getting out of hand.  I want to assure all my judicial readers that, whatever you might think, its not necessary to go to the lengths of Las Vegas Judge Nicholas Anthony  Del Vecchio to get your name featured here.

First, some background on the man who would choose such a remarkably unflattering photograph as his official face to the world.  This is from Las Vegas Review Journal for November 19, 2000:

Del Vecchio, a Las Vegas lawyer, lost seven previous elections before winning a race this month for a new judgeship in Clark County Family Court.

He also sought appointments to four other judicial positions without success. And on yet another occasion, he filed as a candidate for a nonexistent judgeship, later losing a court battle over the issue.

Oh yeah, and it took him five tries to get into law school.

"I was the last of six boys to go to law school," Del Vecchio said during a recent interview in his office. "I did not have the most stellar academic record. I always believed that C stood for commencement, that D stood for diploma, and I graduated magna thank godem. "

Del Vecchio, who often uses that kind of self-deprecating humor, said he graduated from the College of St. Thomas in St. Paul, Minn., in 1979 with a bachelors degree in sociology. He had a grade point average of 2.71.

"Being a student was always hard for me," he said.

That year Del Vecchio applied for the first time to the William Mitchell College of Law in St. Paul. He continued to apply every year thereafter, until he was finally accepted in 1983. 

You might wonder if the reporter was misreading the new judge when she assumed his self-deprecation was intended humorously.   Certainly some reassessment might be in order following more recent articles:

The special prosecutor for the Judicial Discipline Commission has accused Family Court Judge Nicholas Del Vecchio of sexual misconduct and abuse of power, including coercing a judicial assistant into having a sexual relationship with him.

The complaint alleges that the relationship dates to before Del Vecchio was a judge, when the judicial assistant, the daughter of his ex-wife, was 14.

Del Vecchio took nude photos of the girl when she was between the ages of 14 and 16 and had her perform oral sex on him, the 38-count complaint states. The complaint adds that Del Vecchio kept the photos after he became a judge but later destroyed them.

The document, which is not a criminal complaint, also accuses Del Vecchio of using racial slurs against black and Hispanic court staff and of coercing staff into buying him lunches and airline tickets.

Again with the photographs.  Didnt he learn anything from Woody Allens experience?  But then, so far as my doctors-waiting-room and supermarket-checkout-line reading has informed me, Woody never "made audio recordings of the [sexual] encounters without the womans permission." 

Then theres Judge Del Vecchios (alleged, alleged!) campaign technique, honed in all those unsuccessful bids:

He told a family court employee, Beata Funk, that he wanted to have sex with her and wanted her to wear tight shirts while campaigning for him, the complaint says.

Should we assume from the casual way the subject is introduced that its part of a court employees job in Las Vegas to campaign for her boss?  Well, its an American tradition.  One we can trace all the way back to Andy Jackson, and hes on the twenty dollar bill, after all.

The complaint even alleges he asked one co-worker to take men to dinner saying he "could tell they were interested in her and she could solicit and obtain campaign contributions." The judge allegedly told the worker that "she should dress nice" or "seductively."

The complaint isnt up on the Nevada Commission on Judicial Discipline website yet. 

Ive never understood the rationale for applying a beyond-a-reasonable-doubt standard in judicial removal proceedings, though it goes all the way back to Samuel Chase.  Removal from office doesnt mean the offender goes to jail.   

And its not like reversing the decision of the electorate, either, even in those states that elect their judges in partisan races, because judicial candidates are "ethically" obliged not to tell us in advance what they plan to do with the power they seek.  (Del Vecchios eight races should have told the voters that he wanted the power too badly to be trusted with it.)

When a judge is removed from office, all that happens is that he or she has to spend the rest of his career standing in front of the bench instead of sitting behind it - a fate many of us think no disgrace.

I think that when theres serious reason to believe a judge has sexually exploited his 14-year-old stepdaughter - when, in the jargon, theres probable cause - thats more than enough reason to remove the judge from the public payroll.  And you know what?  Id say the same thing about murder, too.

Not real babies, of course.  They never say anything deserving of scorn.  But recently the Kansas appellate courts have ingenuously revealed things that more worldly-wise judges have learned to cloak in wordy euphemism.  The first case is officially "unpublished" and Kansas is one of those states that continue to hide their unpublished opinions, presumably because their authors have something to hide.

Heres the opening passage:

On December 16, 1994, an information was filed alleging that Downey had sexually abused S.R., a 2-year-old girl, in Reno County, Kansas, during September 1994. This is the fifth appeal. ...

At trial in March 2006, Downey did not deny he had sexually abused S.R. Downeys counsel argued instead that what “Downey did to that little girl was despicable. Absolutely despicable. But it didnt happen in Kansas.”

You can see why a case as complicated as that would take 11+ years to decide.  Downey thought his latest conviction should be overturned on the basis of prosecutorial misconduct, namely an improper argument by one of that tribe of evil trolls:

Downey first complains of the prosecutors statement during closing arguments that the case was about the “innocence of a little two-year-old girl,” which Downey “stole ... for nothing more than greed, self-gratification, and his personal pleasure.” ..

[T]he effect was to argue the moral turpitude of Downeys actions rather than criminal liability under the elements of the crimes charged. Since trials are conducted to determine criminal liability, prosecutors “should refrain from argument which would divert the jury from its duty to decide the case on the evidence.”

I dont think Ive ever before seen a court come right out and say that morality has nothing to do with the criminal law, and that its wrong to "divert" jurors from their task by reminding them that theres a point to it.  

(Maybe all the court meant was that there wasnt any proof that the 2-year-old was innocent about sex prior to the  moment she found herself alone in Downeys company, so that the prosecutor was arguing facts not in evidence.)

But thats nothing in comparison to what the reliably-fatuous Kansas Supreme Court (see post 284 and post 299) wrote in a recent opinion that more self-aware fatuous judges would have hidden in the convenient "unpublished" file. 

The case concerned a difficult constitutional question: whether a criminal defendant has a right to lie under oath to the jury without fear of contradiction.

The answer, as every lawyer active in the field of criminal law knows, depends on what form the contradiction might take.  If its, say, in the form of the defendants own prior words saying exactly the opposite of what hes sworn to from the witness stand, then its pretty iffy, thanks to a 1964 Supreme Court opinion that outlawed the practice of recording the unguarded things people say even when charges are pending against them. 

(Its unconstitutional to record such unguarded words only if the defendant is represented by a lawyer, so indigent defendants, required to wait for the creaky wheels of the public defender bureaucracy to turn, have a window of vulnerability that those with a lawyer on call need not worry about.  The point, I should hasten to add, isnt that the wealthy are more deserving of protection from the law, but that lawyers have a right to be protected from a client who blows his own case.)

So heres the Kansas Supreme Court explaining why it was wrong to allow a jury to learn that the defendant said something in private that completely contradicted what he said under oath from the witness stand:

Although trial judges are called upon to determine the admissibility of evidence to effectuate the courts truth-seeking function, there is nothing in our federal or state constitutions that requires us to make truth-seeking the overriding principle that trumps our constitutionally protected rights. ...

The purity of justice under our Sixth Amendments constitutional right to counsel cannot be polluted by the subversive conduct of deceitful acquisition of evidence.

There you have it.  Truth cannot be allowed to pollute the pure justice that only court-approved lying under oath can achieve. 

Note a couple of other things.  The acquisition of the evidence was "deceitful" only in the sense that the informant allowed the defendant to assume he wasnt an informant, and the police allowed the guys lawyer to assume they werent employing the informant.  (Which, under Supreme Court precedent - or, if you prefer, under the sixth amendment - they shouldntve.)  But any time a judge suppresses evidence, he or she is being deceitful in exactly the same way, by allowing the jury to assume that there isnt any additional relevant evidence to learn about.

And the defendants much more direct deceit - his outright lying in court - is less polluting to the purity of justice than permitting the jury to learn about it.

The interesting question is: Do you think anyone at the Kansas Supreme Court actually thought about any of these things before publishing the opinion? 

Good ol Anonymous posted a comment to the main road of this post explaining the origin of the Judge Pregerson Memorial MixMaster, even supplying a link to a New York Times article explaining the judges deep involvement in the development of the project.   As a district judge, Pregerson oversaw litigation that fattened the Westlaw database by 13 opinions over the course of 25 years, even continuing to sit as trial judge by designation after his elevation to the Ninth Circuit.

Im pretty sympathetic to the goal of ameliorating the community disruption caused by freeway construction.  Community-buster Robert Moses, Im convinced, bore more responsibility than any other individual for New Yorks decline into the ungovernable city. 

Still, I cant help but suspect that its within the realm of possibility that the California Department of Transportation, which signed the consent decree overseen by Pregerson, didnt put up much of a fight when its legal opponents demanded it receive $2.2 billion to spend. 

Consent decrees, by which executive branch agencies pretend to lose lawsuits in order to bind their legislatures without all the muss and fuss of the democratic process, give judges the glory of increasing spending in the public eye while leaving to legislators the unpleasant task of trimming other budget items during contentious late-night committee meetings. 

Consent decrees are another type of community-busting: replacing Jacobean mob rule with the more decisive rule of a king and his lawyer-courtiers.  Still, dubious methods frequently produce beneficial effects.  Its just money, after all.

So the green sign dedicating the freeway interchange to Judge Pregerson can be viewed as a reward for his his hard judicial labor ordering other people to perform hard real labor.  Viewed in that way, its an odd honor - even if, as I suggested, a cheap and rather ambiguous one.  Naming rights are apparently considered valuable things, in some contexts.  Isnt there something a bit ... odd about a federal judge accepting something of value as additional compensation for doing his job?

But, I think, thats not the right way to look at it.  I think the interchange was named for him in very much the same spirit in which the airport freeway itself is officially named the Dan Ryan Freeway, or Glenn Anderson Expressway, or whatever.  

Its the true Chicago spirit.  On my first visit to Chicago, every downtown street corner had paint on the pavement reminding me to visit "Mayor Jane Byrnes ChicagoFest."  You could register your car or renew your drivers license at "Secretary of State JIM EDGARs" storefront operations.

Pregersons name on the interchange isnt a monument to his judicial service.  Its an acknowledgment that he was the political boss in charge of the project.

Alas, my friends, the time has come. After nearly two years of tumult (broken occasionally by brief periods of boredom), Bench Conference will end today with this post. It has been a fascinating experience, and I am truly grateful for the opportunity. As I mentioned in my very first post, when I was in college I corresponded briefly with Art Buchwald and told my mom that I would one day write for The Post. And I hope to do so again. In the meantime, I want to thank so many of you -- even you, Constitutionalist, and especially you, Ex-AUSA! -- for taking the time to write such passionate and often elegant posts. I read as many as is humanly possible, honest I did, and what struck me most was how eager so many of you were to engage for so long with one another on points I had raised - [Read more]

Jose Padilla, the once-upon-a-time-but-not-really "dirty bomb" suspect, was sentenced today in federal court in Miami to 17 years and four months for his role in a terror conspiracy that barely got off the ground. The sentence is shorter by far than the 30-years-to-life sentence recommended under the federal sentencing guidelines. Why the break for the guy introduced to us in 2002 as the face of terror? Easy: U.S. District Court Judge Marcia G. Cooke, a Bush appointee, was never convinced that the government had a strong case against Padilla and two other convicted in the case. As she said today, "There is no evidence that these defendants personally maimed, kidnapped or killed anyone in the United States or elsewhere." - [Read more]

Former Justice Department official John Yoo, author of our nations most ill-conceived and damaging terror-law policies, wants your sympathy. Hes being sued in civil court by former "dirty bomb" suspect Jose Padilla, who alleges that Yoo was behind his designation as an "enemy combatant" and the torture he endured while in military custody. The suit, Yoo wrote Wednesday in a touchy-feely op-ed in the Philadelphia Inquirer, is an example of how terrorists use law to wage war on Americans. "They use cases such as Padillas to harass the men and women in our government, force the revelation of valuable intelligence and press novel theories that have failed at the ballot box and before the president and Congress," Yoo laments. "Lawfare has become another dimension of warfare." - [Read more]

Taking a position that will delight horny, late-night bar patrons everywhere, the American Civil Liberties Union is arguing that people who have consensual sex in bathroom stalls in public places have a reasonable expectation of privacy and thus a 1st Amendment right to engage in a little sumpin-sumpin. Citing a 38-year-old case as precedent, the ACLU took this position in the Sen. Larry Craig (R-Idaho) toe-tap case. The ACLU filed a brief yesterday on Craigs behalf in Minnesota, the scene of Craigs infamous sex-sting adventure last year. The senator (yes, he is still in office despite promising to resign last year) is fighting to overturn his own guilty plea on disorderly conduct charges and now has card-carrying ACLU lawyers helping to argue his case. What a country! - [Read more]

Cody Miyler is a fellow with an abundance of gall. After being dismissed as police chief of East Galesburg, Ill., Miyler sued the town of 900, claiming a violation of his constitutional due process rights. Apparently East Galesburg has an ordinance decreeing that the town "president" must sign off on police chief firings, and Miyler claimed that the then-president - who happened to be his mother - hadnt given her consent. But gall only gets you so far with the law (just ask OJ Simpson). And so it was that the 7th U.S. Circuit Court of Appeals last week decided to end Miylers curiously-long quest for satisfaction from the town he briefly served. The court declared in a five-page opinion that there was no "due process" right to the job and that, even if there were, it would not generate a "property interest" sufficient to trigger constitutional protection. - [Read more]