Judiciary

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Last news: April 9, 2009 03:59:21

Total news: 60
Last news: January 30, 2008 12:00:00

The mass media has a simple rule of thumb for measuring the newsworthiness of any story about the judiciary: its not news unless its been done to death already.

Thats why you hardly heard about about Knowles v. Mirzayance, decided two weeks ago, and what little coverage there was missed the only particularly significant thing about it. The Associated Press dutifully sent out a dispatch that manages, in good AP style, to make it bland and boring. Google News doesnt reveal any other mass media coverage.

And yet theres something noteworthy about the opinion. Mr. Mirzayance confessed to police that he stabbed his niece 19 times and shot her 4 times, which, from a defense lawyers point of view, can be considered the kind of thing that might reduce the likelihood of acquittal below the threshold of optimism.

The only real shot for the defense was insanity - that Mirzayance was so disturbed he didnt know what he was doing - which is hard to sell to jurors even with the strongest case. And Mirzayances wasnt the strongest of cases:

Mirzayance initiated the crime after entering the victim’s bedroom with a knife in hand and a pistol in his pocket; he had waited until he was alone with the victim in the house before he closed the curtains and commenced the fatal stabbing and shooting attack; immediately after the murder he collected the knife and some of the spent bullet shell casings; he then returned to his apartment where he showered and put the bloody clothes into a trash bag; he concocted a false alibi on a telephone answering machine; then drove to a Burger King where he dumped the bag containing the bloody clothes into the restaurant’s trash container.

Its almost as if he appreciated that some people might think he had done wrong, isnt it?

Such intra-familial overkills are also the kind of thing that can cause divided loyalties within the family. After the jury found Mirzayance of first degree murder, rejecting his mental illness defense in the first stage of Californias strange two-phase insanity-defense trials (see page 22 of this pdf), his parents surprised his attorney by declining to testify at the second phase.

A three-judge panel of the Ninth Circuit heard his appeal. District Judge Lonny Suko, dissented from the ruling reached by Judges Proctor Hug (a strong contender for the owner of the most ridiculous name in history) and Kim Wardlaw, who found Mirzayances attorney professionally incompetent for failing to get the parents on the stand:

Further, although counsel claims that Mirzayance’s parents refused to testify, the district court’s finding that the parents did not refuse, but merely expressed reluctance to testify, is correct. Competent counsel would have attempted to persuade them to testify, which counsel here admits he did not.

The unanimous Supreme Court reversed, with this comment:

According to the [Ninth Circuit], Mirzayance’s “parents did not refuse, but merely expressed reluctance to testify.” And because they may have been willing, “[c]ompetent counsel would have attempted to persuade them to testify, which counsel here admits he did not.”

At best, the Court of Appeals’ characterization of counsel’s efforts to persuade the parents to testify is misleading. According to the Magistrate Judge, counsel testified that he did attempt to persuade the parents to testify but that their response “‘was kind of flat, and I had no influence over them.’” In his efforts to convince the parents to testify, counsel told them that Mirzayance “had no chance of securing an NGI verdict [not guilty by reason of insanity] without the ‘emotional quality from nonprofessional witnesses’ that Mr. and Mrs. Mirzayance’s testimony could provide; and ‘that they were abandoning their son.’”

The nine justices of the Supreme Court, in other words, agreed that Judges Hug and Wardlaw were liars.

Judges love to go on and on about maintaining public confidence in the judiciary. Heres a Ninth Circuit example from this year (partial dissent warning about "impact on the public’s perception of the rule of law"), and heres one from last year (refusing to take step that would "damage the publics perception of the judiciary").

The Supreme Court sounds the same note with wearying frequency. Heres Justice Alito describing "grossly prejudicial errors of law that undermine confidence in our legal system."� Justices OConnor and Stevens each sound the same note in their separate opinions here.�

Cases such as Mirzayance tells us how wrong we are to have such confidence.� There is no pressure on federal judges to be even minimally honest in their opinions.� Most are, but only because of the people they are, not because of the institution they serve.� And most, as Judges Hug and Wardlaw remind us, isnt all.

In New Mexico Territory, an Army colonel faced a court of inquiry - the equivalent of a grand jury or preliminary hearing - looking into his conduct. It seems that he marched his troops into town where they laid siege to the private residence of a person against whom the colonel had taken a personal dislike. The house was set on fire and the inhabitants shot at as they fled, causing several deaths although one man, known as Bill Bonney, escaped.

Even before the inevitable result of the court of inquiry was announced, a lawyer pursuing the matter in civilian court blogged about it, 19th century style, by commenting to the press. Military courts of inquiry, this lawyer said,

are an expensive and stupendous farce, and are conducted on mutual admiration principles, and if there is the least possible excuse for applying the white-wash to a military man, it will be done, without regard to the beauty and symmetry of the job, and this is especially so when the complaint comes from a civilian.

I was reminded of that quotation when I learned how swiftly the New Jersey Supreme Court dealt with the prosecutors complaint against "the bad boy of the N.J. Supremes," Justice Rivera-Soto. (See post 371.) As blogger Bob Ingle observed in a post about the white-wash - which was, indeed, neither beautiful nor symmetrical - "Supremes take care of each other."

In a letter explaining the courts decision that its not improper for a supreme court justice to violate a sealing order,

[t]he chief justice explained that Rivera-Soto said he was not aware of the sealing order when he named the officer and that it was entered administratively without any involvement by the justices. Rabner also wrote that one partys legal briefs identified the superior officer by name.

So the orders of the New Jersey Supreme Court arent actually entered by members of the court, but by the drones in the clerks office, and dont have to be obeyed.� That will save a whole heap o compliance costs, wont it?

And then, if one partys legal brief violates the sealing order, then everyone else can join in for free. Thats nice to know, too, isnt it?

And, yeah, right, he didnt know about the order. Thats why he reacted by saying: "I just violated that sealing order. Let’s talk about Captain Hunt." Isnt that how you respond when you discover youve just committed a faux pas? "So I just made a raucous joke about STDs at a crowded party in front of a person whose divorce was precipitated by her husband giving her one. Lets talk about it."

If Rivera-Soto didnt know about the sealing order, he hadnt read the case file before solemnly waddling into court for the oral argument. Not only that, but he apparently hadnt read the Appellate Division opinion, either, which contains passages like this one:

When the court has completed its analysis, it shall enter an appropriate protective order to secure the materials released to defense counsel, as well as any materials that may be released in future discovery. In particular, the protective order should include very substantial sanctions to truly deter intentional or even inadvertent release of the documents to the press or anyone else. The protective order must limit possession of the documents to defense counsel with an absolute prohibition against copying or distributing the documents to anyone, including defendant. Moreover, since defense counsel has acknowledged that defendants wife has frequently released information to the press that defendant and his counsel were prohibited from releasing, the protective order should contain a specific prohibition against defendant and his counsel allowing Mrs. Williams to have any access whatsoever to the documents or discussing their contents with her. This prohibition extends to anyone with whom defendant or his counsel may have contact. The sanctions should be sufficient to dissuade defendant, his counsel, his wife or anyone else from disclosing the contents of the discovery to anyone, including the press.

Admittedly, thats a pretty dense block of prose.� But if you glanced over it, would you maybe take away the impression that maybe there was some concern about leaking the information to the press?

So Rivera-Sotos defense, in essence, was that he was too lazy to prepare for the argument: "I didnt violate the order out of an arrogant belief that Im above the law.� Im just a bad judge, thats all."� Its s reminiscent of the defense tendered by Floridas Judge Sloop, who thought he should be allowed to keep his job because his attention deficit disorder made him unfit for it. (See post 87.)

Can you make yourself believe that any of the other members of the New Jersey Supreme Court believe Rivera-Soto?� Me, neither.� But still, I have to agree its not unreasonable for them to take care of themselves, when you view the matter from their point of view.� After all, whats better, being subject to the law or immune from it? If sacrificing self-respect is the price that has to be paid for immunity, then so be it.

One last source of amusement about Rivera-Soto, who has already, most appropriately, become a campaign issue.� Rivera-Soto was vetted by the then-governors "one-man search committee, former Justice Alan B. Handler." Ex-Justice Handler has made this blog before. He served as the head of the "ethical" committee convened to determine if Judge Bill Mathesius violated the canons of judicial conduct when he wrote an opinion critical of ... Justice Handler. (See post 287.)

Handler, in short, is a person without any ethics at all, and he was the sole adviser to a rotten governor. Put em together and you get someone "not fit for even this national laughing stock of a court."

CQ Press used to be Morgan Quitno but thats not where the names Q comes from. CQ, as opposed to MQ, had something to do with Congressional Quarterly once, but apparently no more, unless the companys history was written by Tony Gilroy, writer-director of Duplicity, in which case it might mean Congressional Quarterly will now be published from MQs hometown, William S. Burroughsburg, Kansas.

Anyway, CQ, whatever that sinister appellation might mean, released its (or "its") annual rankings of most dangerous states, and as always states reach the top only by resembling New Mexico in at least three of the following four areas: poverty, political corruption, frantic sprawl, and hot summers.

Its easy to understand how Nevada and Louisiana beat New Mexico at its own game, but I was a little puzzled by South Carolina sneaking ahead of us. After all, Wikipedia assures us that "Violence was relatively low in the state."

Heres a handy online flip-chart of the top- and bottom-ranked from AOLs Wallet Pop. Compare it to the same sites list of unhealthiest states. Notice any similarities?

And then we can go over to the Centers for Disease Control and Prevention site and take a look at this map of heart disease and stroke death rates.

Its easy to think of reasons why some states and regions are more violent than others. I picture the enraged North Dakota ex-husband climbing into his pickup, determined to kill the new boyfriend, but after half an hour he has to stop and buy gas. Then he passes a cafe and realizes hes getting kind of hungry. Then, since hes near the Wal-Mart, he might as well pick up a few things he needs. By then its getting dark and more snow is forecast - not really a good time to be on the roads. So he heads home. Another homicide averted.

For those of us used to getting our information from such unreliable sources as judicial opinions, its a little harder to think of reasons why cardiovascular health should have a geographical relationship to violence.

And then we get to accidental deaths. Accidents, of all things, ought to be randomly distributed. How could chance occurrences occur other than by chance? And yet... The map is pretty blotchy for motor vehicle deaths, too. The most violent states are also the states with the most accidents and the highest rates of death by cardiovascular disease.

Of course, people die elsewhere. Suicide, for example, turns out to be a Rocky Mountain thing. (A new slogan for New Mexico: Where Southern violence meets mountain despair!) And all those inhibited New Englanders suffer the burden of not dying young, or perhaps of not killing: check out colorectal cancer rates. I happen to live in the nations liver disease capital (New Mexico, Land of Big Livers!) but other violent states such as Louisiana are at the other end of that particular scale.

But the correspondence between violent death, accidental injury and death, and cardiovascular disease isnt coincidence, I think. A powerful clue is suggested by yet another map: low birth weight births by state. Another hint is offered by figures 4, 5 & 6 of this report, which illustrate the depressing finding that "[f]etal and perinatal mortality rates vary considerably by race and Hispanic origin of mother." Self-evidently, race and Hispanic origin arent the cause of those particular variations.� Those categories are capturing something about the women and children that goes deeper than skin color or last name.� But what?

Does the criminal justice system have anything to do with public health?� Most people dont, in fact, think of them as related, much less as the same thing.� But the topics discussed at the CDCs website sound like the names of divisions in a DAs office: Child Abuse / Maltreatment, Intimate Partner Violence, Sexual Violence, Youth Violence.

Ive spent much of the past several months, to my own astonishment, discovering what a wonderful laboratory the criminal justice system has created for social scientists who study the effects of trauma on human beings.� Did you know we have regular academic journals with titles such as Violence against Woman and Child Maltreatment?�

Future posts will describe the things that we (that is, they) have learned about what violence does to people.� Many effects last long after the bruises, and even the scars, fade.� Low birth weight,� fetal/infant mortality and cardiovascular disease are three of the lingering effects.� Lower academic achievement and consequent lower lifetime earnings are two more.� Risk-taking behavior is another.�

The strongest statistical link of all tells us that weve finally discovered the cause of violent crime: previous violent crime.� Tolerating violence now means encouraging it in the future.�� Much as with Plessy v. Ferguson, Im afraid its going to take many generations to begin to undo the damage the Supreme Court inflicted with just a few pompous-yet-careless words.�

Future posts will develop these themes.

The manuscript of For the Sake of Argument was sent off to the publisher earlier this month and came back copy-edited a little over a week later - a bit more quickly than in the old hand-set letterpress era of the 1990s. Back then, we mailed paper to each other, if you can imagine that.

Not only was the new ms. transmitted electronically, but the copy editor worked directly on the Word files I had created, rather than by hand on page proofs. The famous "track changes" feature, so potentially catastrophic for lawyers, turns out to be very handy for editors.

(Incidentally, you can already preorder the book on Amazon. Be the first in your office! You might notice, though, that the subtitle on the cover is different from the subtitle on the book description. And if anyone can explain precisely what the broken gavel symbolizes, Id appreciate hearing from you. Not that I mind the graphic - given the limited repertoire of standard images signifying the legal profession, the image is surprisingly surprising, isnt it? Besides, broken two-pan scales would just look like fossilized spaghetti.)

Much of one chapter is devoted to the hidden conflicts of interest built into the profession. The Model Rules of Professional Conduct dont begin to address the really significant ones. For instance, the biggest beneficiaries of punitive drug laws, and especially forfeiture laws that exempt legal fees, are criminal defense lawyers: "You can either give it to me, your last friend, or you can let the cops take it." (Check out footnote 5 of this.)

Similarly, the biggest beneficiaries of expanding tort liability (after the insurance companies, who sell more insurance) are the insurance defense lawyers, who see their caseloads increase in steady and predictable ways.

But the most pervasive conflict of interest is even more camouflaged than those. Thats the need to stay on the good side of judges. It requires lawyers to weigh their duty to their own careers against their duty to their clients.

In a small community, kissing ass is an absolute imperative - you cant function if the local judge is going to rule against you out of spite. Appellate attorneys spend their days trying to appeal to the 5 or 7 members of the state supreme court, or to the three members of an intermediate courts panel. A bad personal relationship with any one of them can make you a hazard to your own clients.

I always figured thats why they call it a "court" - because the lawyers act like courtiers. They pay court to judges. Judges who are sufficiently ruthless about holding clients hostage can even turn lawyers into courtesans.

But then, as with that supremely satisfying moment in A Christmas Story when Farkus gets his, sometimes lawyers will stand up to a judicial bully. One of my colleagues tried it here in New Mexico, only to be told - off the record, on the Q-T, and very hush-hush - that the super-secret Judicial Standards Commission didnt act against appellate judges. After all, the top appellate judges ran the agency.

Is it different in New Jersey? We may find out:

A Hunterdon County assistant prosecutor has filed a complaint against Supreme Court Justice Roberto Rivera-Soto, charging him with violating a court order sealing the identity of an investigator who used a racial slur while discussing former NBA star Jayson Williams.

In the complaint filed to the Advisory Committee on Judicial Conduct, Assistant Prosecutor Bennett Barlyn accuses Rivera-Soto of "inappropriate, contemptuous and injudicious conduct" that constituted a "willful and deliberate violation of the courts sealing order."

The justices name might sound familiar. Rivera-Soto has made this blog before, for using his position to bully a school administrator. (See post 287.) (And no, he still doesnt have sufficient self-respect to admit in his official biography the name of the governor who appointed him - a man whose sexuality is the least interesting thing about his public career, but the only thing hell be remembered for - pretty effective spin, really.)

As to why the investigators use of what the paper so discreetly calls "a racial slur" - apparently, "the N-word" is too loaded to be effective as a circumlocution - is even remotely relevant to the prosecution of the person who owned the 30,000 square foot building (I dont think "home" is quite the right word for anything the size of a grocery store) in which a working-class person was shotgunned to death ...

Unless McGreeveys boy on the bench merely wanted to make the point that our legal system is always prepared to offer an O.J. defense to anyone who can put up a star athletes money - which, truth be told, most Americans already know - I dont see why he wanted to talk about the investigator with the racist vocabulary.� But he did.� He said: "I just violated that sealing order. Lets talk about [the cop]."

Ever since I first heard about the episode Ive wondered if Justice Rivera-Soto was trying to encourage someone to kill the cop. That might seem extreme if you havent listened to sports radio recently. Telling obsessives how to track down someone responsible for injuring the object of their obsession seems, at a minimum, negligent.�

But to impute bad motives to the justice, a "veteran casino lawyer" described in the papers as "pompous," would imply a greater level of self-awareness than he seems to possess.� (More about the justices pre-judicial career here.)

So lets ignore his motives and just look at what he said: "I just violated that sealing order." His readiness to admit that can only mean that he considered himself privileged to violate it, and further privileged to require a lawyer appearing in front of him to violate it, as well - which he did by demanding, point-blank, that Barlyn confirm the investigators identity.

In short, whatever his subjective reasons might have been, Rivera-Sotos point was that members of the Supreme Court arent bound by the same law that applies to less-exalted personages.

Richard Nixon, we were reminded this past Christmas movie season, once expressed the same view: "When the President does it, that means that it is not illegal." Another, more recent (but distinctly Nixonian) politician said something similar, too, but only "as a general proposition." Its interesting that Rivera-Soto would bracket himself with that pair - but, once again, it might be giving him too much credit to suggest hes capable of perceiving that hes doing any self-bracketing.

As for the complaint, well, I hate to be pessimistic about things like the rule of law, but, you know, the doctrine of rex non potest peccare is pretty well-established in America. (See post 208.) My guess is that if anything happens to Justice Rivera-Soto, it will be because his colleagues on the New Jersey Supreme Court are tired of having him around.

But if anything happens to Bennett Barlyn ... what with Jersey being Joisey, at least on HBO... I know a place much favored by the witness protection program, according to the writers of In Plain Sight.

(Supposedly you can watch a video of the argument here, though for whatever reason I couldnt get it to play.)

From a fatuous Slate article I learned that Michigans Chief Justice Clifford Taylor was ousted by the voters. Taylor was a contemptibly bad judge, already featured twice in these hallowed pixels. (See post 216 and post 144.) Heres what the Trial Lawyers had to say about him. It includes an amusing/appalling story about thuggish backstage maneuvering, as described in more detail by fellow justice Elizabeth Weaver.

Weaver has been highly critical of Taylor and he retaliated in public with sexist derision, characterizing her detailed complaints as "sort of strange rantings ... of an unhappy human being" and the venting of "a sad and angry woman." (You know how emotional women get.) In a draft opinion circulated among his fellow justices he suggested she launch a hunger strike "as it seemed to have the potential for everyone to be a winner." (Speaking of sad, Above the Law swallowed the Chief Justices poison.)

The papers call it a "feud" but in every instance thats come to my attention, Weaver was clearly in the right. It wasnt even arguable, except in the sense that everythings arguable to a lawyer who wants something for him- or herself. Its incredible that the Michigan newspapers dont see where their own interests lie - in governmental openness. (If this isnt enough for you, heres Justice Weavers own website.)

But to return to the Slate article, which used Taylors well-earned, thumping defeat as the take-off point for complaining about democracy and openness in government. What makes the article, by the head of an anti-democracy and anti-transparency organization, particularly "delusive; unreal" isnt just its premise that "the business sector" is unable to perceive its own best interests, or even its see-through pretense of offering disinterested and helpful advice.

No, its that while accurately summarizing the corrosive effect of money in judicial races, it fails to consider why people are prepared to pour so much money into campaigns that attracted no interest at all just a few years ago.� It reports that a union official supposedly said, "We figured out a long time ago that its easier to elect seven judges than to elect 132 legislators," without drawing the logical conclusion: the official was saying that one was as good as the other.� The seven justices are now doing things that not so long ago were done by 132 legislators.

People who run for office with an "ethical" commitment to not informing voters about what they plan to do with the power entrusted to them (see pp. 11-12 of this handbook for New York judges) now routinely substitute their policy views for those of legislators who laid out their programs, or at least their slogans, in expensive campaigns.� The word for that is "de-democratization."

So whats the alternative to judicial elections?� "Merit selection," of course, means appointment by backroom politics. It means sale of judicial appointments.� (See post 229.)� In New Mexico (state motto: "Because thats how weve always done it"), weve cleverly managed to combine the worst aspects of both systems, and a good 85% of the time the scuttlebutt among lawyers accurately predicts who will win the "merit selection" competition for an open judgeship.�

Thats not because were a particularly clairvoyant lot, but because we belong to a relatively small bar.� To calculate in advance whos going to be appointed you first have to suppress your wistful hope that this time it might be different.� Instead, you just need to glance at the list of people applying, then look up political contributions on Followthemoney.org and keep your ears open to learn whos been seen palling around with the governor or his big supporters, and youll be able to guess with remarkable accuracy who will be appointed.

If the prediction is a little more difficult in other states, its only because you have more members of your bar, making it harder to get a handle on the relationships.

Money and connections - thats what "merit selection" means. Ive heard the general concept defended on the ground that it weeds out the absolutely incompetent, the complete morons, but thats not even entirely true on the federal level, where the Senators and White House judge-pickers are under a degree of scrutiny.� Its certainly not true in any system that doesnt receive sustained media attention.

In short, "merit selection" means the non-democratic appointment of people to make anti-democratic policy decisions.

Lawyers like merit selection for the same reason they like the concentration of power in judges hands: the goo-goo types enjoy the delusion that they can exert some influence over the final result through the application of sufficient earnestness and commitment to the process.�

The realists know they can get what they want from enlightened despots without all the inefficient muss and fuss of democratic self-government.� Thats why they make the contributions.�

Big contributions arent the cause of the corruption.� Theyre a symptom.

Californias Proposition 5, which would do all sorts of strange things to the states Penal Code, changing the way Californians actually live, has predictably been overshadowed by Prop 8, which has only symbolic importance for its most ardent, passionate and aroused supporters. (Yes, but what symbols!)

Prop 5 is massively long - 57 sections over 20 pages of small type - making it difficult even for those of us trained to endure long statutes to be sure exactly what it does.

But the California Secretary of States website does include this very amusing "rebuttal" to arguments against Prop 5 from Orange County Superior Court Judge James Gray, who (according to his own website) ran for Congress as a Republican and for the Senate as a Libertarian without having to hang up his robe:

Under Prop. 5, judges make the call as to which nonviolent offenders get into treatment and which don’t. Judges know how to separate dangerous offenders from deserving cases. We do it every day.

Nothing in Prop. 5 prevents judges from sentencing dangerous offenders for the crimes mentioned by opponents.

Its not really a criticism of judges to say: balderdash and blatherskite. No ones particularly good at predicting future violence except in the obvious, Tasmanian Devil cases. But judges are demonstrably bad at it.

From Englands reliably excited Daily Mail we learn (if thats the right verb to use in connection with the Daily Yell):

Criminals on probation commit a murder every week, official figures show.

In the past two years, offenders under supervision have been convicted of 121 murders.

Meanwhile, 44 have been convicted of manslaughter, 103 of rape and 80 of kidnapping.

(Nice short paragraphs, no?)

In comparatively unpopulated New Mexico, our number of homicidal probationers is much more modest, according to my local paper, the Albuquerque Journal:

At least 13 people sentenced to probation in the past five years have been charged with committing homicide while serving their sentences, according to a survey of court records.

Two of them have been charged with multiple killings while on probation, bringing the total number of deaths to 16.

(Those monstrously long paragraphs!� They wind on and on like mountain roads!)

Sixteen deaths is pretty horrible, but I dont think anyone should be surprised that probationers (allegedly) committed them.� As the best recent justice of our Supreme Court mildly observed in a Halloween op-ed, "The unpredictability of behavior of an unpredictable population is a real challenge to those working in the system."

Its hard to know when some people are done being dangerous.� That works both ways, of course.� We learn about the dangerous people judges let out, but not about the undangerous sent away to prison.

There may be some excellent reasons for voting for Prop 5, but faith in the ability of judges to predict the future dangerousness of drug-abusing criminals isnt one of them.

Senator Ted Stevens declared yesterday in a debate that "I have not been convicted.”� And never mind that he was convicted of seven felonies.

I can think of two explanations for his logic: hes clinically insane; or, hes so confident his convictions will be reversed on appeal that he considers them as good as reversed already.� Or, I suppose, both.

Assuming the second explanation, his confidence is well-placed, I think.� Our appellate courts are extremely reluctant to uphold the conviction of anybody whos demographically like the average judge: white, male, middle-aged or older, and part of the governing class.

If I remember right, Oliver North said during his Virginia senatorial campaign that he hadnt been convicted, since a federal appeals court had reversed his conviction (on grounds that have, ever since, handicapped mob and gang prosecutions around the country).� So theres a precedent for Stevens position.

Stevens will be appealing his conviction to the same D.C. Circuit court that recently intervened in the presidential campaign by sparing the GOP potential embarrassment regarding congressional subpoenas to Harriet Miers and Joshua Bolton.� The panel consisted of the pot-smoking Reagan Supreme Court nominee Douglas Ginsburg and G.H.W. Bush appointee and Ford Administration assistant solicitor general Arthur Randolph.

Their purported reason for refusing to decide the case is that the Republicans might take control of Congress, mooting the entire issue.� (Although, being judges, they phrased it in a more roundabout way.)� To justify their position, they first had to (nearly) run out the clock on the current Congress.

I think Stevens is correct in assuming that the D.C. Circuit will do everything it can to reverse his jurys verdicts.� In the meantime, were treated to the entertaining spectacle of Alaskanas rallying around their highest-ranking federal official with t-shirts saying, "Fuck the feds."� So far as the Anchorage Daily News article reveals, they apparently exempted one particular formerly-influential fed from their sexual threat.

On Wednesday a Tennessee judge, Ronald E. Darby, was indicted. He sits on the court of General Sessions - what used to be called JP court, hearing misdemeanor and small claims cases - in Benton County, up in the northwest part of the state, not so very far from the southern tip of Illinois.

Benton County is a rural area of the state. Its population density ranks it 74th among Tennessee counties, and its poorer than the average county, too. Wikipedia says it is known locally "for its duck hunting and fishing industries" - which I didnt even know were industries.

Judges in such isolated areas can establish despotisms. The most extreme example is the psychopathic David Lanier (scroll down), who presided over family court in another western Tennessee county, Dyer, for the opportunity it provided him to rape female litigants in his soundproofed, windowless office.

Darby isnt accused of anything remotely as bad as that. But I wonder if a judges great power in an isolated area combined with a lack of adult supervision might have given him an exaggerated (even if less-exaggerated) sense of either entitlement or invulnerability.

According to the Camden Chronicle:

In May of 2007 Darby started a drug court in Benton County that would allow participants to participate in a program of rehabilitation. The program was designed for non-violent drug offenders who were seeking to rehabilitate their lives by getting off drugs. The program required the participants to provide community service and encouraged participants to seek employment. The program allowed participants to remain out of jail as long as they complied with the requirements that were set forth by the court. Funding for the program was provided by the State of Tennessee.

On September 4, Darby held a graduation ceremony for eight of the drug court members who had completed the program. During the ceremony Darby stated that these eight had completed all of the requirements of the three- phase program. They had remained drug and alcohol free for one year and 40 days and one couple had regained custody of their children. Graduates were presented with a certificate and a bible.

(Do judges in your neck of the woods hand out Bibles?)

Anyway, the allegation is that the "community service" the probationers performed tended to be concentrated on land owned by Judge Darby himself.

Darbys surrender to temptation reminded me of a summertime story about another rural judge who found it hard to resist picking up a few extra perks of the job.

Judge Brooks E. Blitch, III, hailed from Clinch County, Georgia, which gave him jurisdiction over a portion of the Okefenokee swamp, meaning that his constituents included Albert, Porky, Churchy and Pogo himself.

An Atlanta Journal-Constitution article from April sets the scene, and vividly illustrates just how much power a judge can wield in rural counties:

Ted Smith could tell you about Superior Court Judge Brooks E. Blitch III. But Ted Smith isnt talking.

Hes fidgeting. His eyes wont meet yours, and hes rubbing his lips with a rough callused hand.

"He aint gone yet," he says, referring to the judge whose office is just a few blocks away. "Hes still got power —- and I aint talking until he aint."

People not talking and suddenly nervous at the drop of the Blitch name has become commonplace in this sleepy little town (pop. 2,803) that suddenly isnt so restful in the rural southeast corner of Georgia, about 250 miles from Atlanta.

Judge Blitch is 73 years old and has sat on the bench since 1980.

He grew up in a family that has wielded power over this corner of the world for six decades.

His late mother, Iris Blitch, was elected to the state Legislature in 1947 and later served eight years as a U.S. congresswoman. His wife, Peg Blitch, served 12 years in the state Senate before leaving office in 2004.

Unfortunately, although Blitch is now gone, it doesnt appear the Journal-Constitution has gone back to hear what Mr. Smith might have to say.

In July, when youd think it would be far too hot in Okefenokee for anything but fishin, the FBI arrested Judge Blitch "on federal corruption charges that he illegally paid employees with court fees, gave high-paying jobs to friends and fixed cases."

I was particularly intrigued by the judicial slush fund alleged in the indictment:

The indictment says Blitch and Sutton ordered more than $73,000 in illegal payments to county employees that came from $15 and $10 fees charged to criminal defendants between 2001 and 2007. The fees were collected into a bank account kept secret from county budget officers, and payments made to employees were never taxed.

I imagine it would be remarkably easy to set up something like that. In effect, it allowed the judge to control the countys budget to a remarkable degree, at least according to the county commissioners.

Also alleged: he created no-show courthouse jobs for friends. And, inevitably,

The indictment also lists dozens of cases in which attorneys and friends of criminal defendants sought favors from Blitch outside of court. In many cases, prosecutors say, Blitch granted them by reducing sentences, terminating probation sentences and ordering defendants early release from jail or prison — often without hearings or notifying prosecutors.

There were even - allegedly - fixers working the courthouse, accepting fees for getting Blitch to take favorable action. Blitch resigned from the judgeship just ahead of the Georgia Judicial Qualifications Commission hearing.

How could things have gotten so bad and gone on so long? Easy. No Georgia Superior Court judge has been removed from office "in almost 50 years." That means: Georgia Superior Court judges arent subject to any serious risk of disciplinary proceedings until things get bad and go on a long time. Which means: theyre free to ignore the law and ethical rules so long as they dont get carried away.

All three cases - the monster Lanier, the (alleged) little chiseler Darby, and the (alleged) swamp capo Blitch - all seem to me to present the same basic story. If you give people unrestrained power, some percentage of them will use it without restraint.

The abuse of judicial power is easiest to get away with it in rural counties, far from the nearest investigative reporters, where local lawyers understand how suicidal it would be to complain (and how� dangerous to ones clients, whom the judge holds hostage) and everyone else can be easily snookered with legal mumbo-jumbo.

For every judge like that we hear about, there are many, many more hiding and multiplying behind our courthouse walls.

How can a state that produced Scott Fitzgerald, Giants in the Earth and my father produce politicians like these? First the Congresswoman. Now the Minnesota Supreme Court candidate.

First theres Congresswoman Michele Bachmann. Her remarks about Obama and other Congress members got the press. Her explanation ("I never called all liberals anti-American") made it worse.

But I thought the weirdest thing about her Chris Mathews interview was her affect. There appears to have been a bit of a transmission delay, but even so - that smile! Imagine meeting someone at a party whose eyes and lips wore such dramatically different expressions.� And then imagine that this person says bizarrely nasty things in a second-grade teachers sing-song. Shes Jokerishly creepy.

Ive long thought that the biggest hurdle for any incumbent is not to embarrass ones constituents. Now the story is that the Republican congressional campaign is pulling its money out of Bachmanns race, apparently figuring the embarrassment shes caused has doomed her reelection effort.

As for the candidate for Supreme Court, Deborah Hedlund - you can see a YouTube video of her here, as she lounges around her living room in her robe (Ive long suspected the nuttier judges do that, but never previously seen it demonstrated) - she received an email filled with all the ugly Obama-is-a-Muslim-and-Islam-is-evil drivel that seems to be making the rounds among Governor Palins wing of the GOP.

(Heres a story about a New Mexico Republican busily doing her part for the campaign.)

So what does a sitting judge do with an email filled with that kind of brayingly ignorant bigotry and hatred? She writes, "Matt, We speak the same language. And I still need to let voters know they have a choice to Seek Justice, Vote For Experience for the Minnesota Supreme Court."

And then she accidentally hits "reply to all", sending it to many, many people.

Mark Cohen of Minnesota Lawyer Blog gives a kind account of the incident here, claiming to find Hedlunds explanation - by "we speak the same language" she meant to say she wanted to order yard signs from the guy who sent her the email - "plausible."

Well, Im not so kind. I think its about as plausible as the rumor (you heard it here first!) that John McCain is a Manchurian candidate, brainwashed during his captivity to aspire for the presidency in order to fulfill the sinister will of the long-dead Ho Chi Minh. I mean, wouldnt that explain a lot? Can you prove it didnt happen like that?

Hedlund said she "disavow[ed]" the email she forwarded to the world and his wife.� But, the story continues, when asked whether she thought Obama was a �Muslim, Hedlund said: "I have no idea what he is. My level of information about the presidential candidates would not fill a thimble."

Again, kindly Mark Cohen takes her at her word as the worlds most ignorant political candidate.

I think shes just a liar.� I think she spread the filth intentionally and she played coy with the reporter to give it maximum exposure without actually endorsing it.

Her explanation is exactly - exactly - like that of the Maine nutcase featured on CNN.� Its almost as if they and the New Mexico Republican official were following the same script.� What a coincidence!

I recently ran across the profile of the eponymous hero of the Brennan Center for Justice, which begins:

Justice William J. Brennan, Jr. is universally regarded as one of the most influential and liberal justices of the second half of the 20th century.

If the liberal Brennan was so influential, it must mean that we live under a liberal government.� But who believes that?� Well, sure, theres those whack-jobs who show up at McCain / Palin events, to at least one of the candidates embarrassment.� But somehow I dont think the Brennan Center meant to refer exclusively to those people with its "universally."

If you agree that the American polity under Reagan and the Bushes has been markedly conservative, and that Clinton was politically successful in part precisely because he "triangulated" between the left and the right, its difficult to see in what sense any American liberal has been conspicuously influential in recent decades.

In short, the Brennan Centers two adjectives are self-contradictory.

But then, if you look more closely, the bio might be saying only that, among liberal justices, he was the most influential, which might be a little like saying that among lefthanded knuckleballers in low-A, so-and-so gave up the fewest home runs.� But Im pretty sure the Brennan Center didnt intend such faint praise.

What the Center means by "influential," of course, is that Brennan is hero-worshiped in the legal academy while his brand of aggressive judicial supremacy is embraced by many other judges, many of them ideologically very conservative indeed.� In other words, hes influential in Law World, the entirely artificial domed city in which so many of us spend our professional lives.

He was "liberal" in the sense that he sought to concentrate power in the judiciary, a concentration that furthered the liberal cause during the Civil Rights Era.� Bizarrely enough, the Brennan Center seeks to prove his influence by quoting the National Review:

According to the conservative National Review in 1984, "there is no individual in this country, on or off the Court, who has had a more profound and sustained impact upon public policy in the United States."

The National Review, writing as Reagan was running for reelection (or after his landslide), didnt mean its hyperbole as a compliment.� It was charging that Brennan had succeeded in wresting power away from elected leaders.� It meant that he wasnt a judge at all.

Probably the staffers at the Brennan Center felt pretty smug about using the National Reviews words, as they believed, against it.� But that just makes it weirder that the profile launches its final paragraph with: "Justice Brennans devotion to core democratic freedoms was unwavering."

If he truly had more profound and sustained impact upon public policy in the United States than Ronald Reagan or any other elected official, its safe to say that Justice Brennan had no devotion to democracy at all, but on the contrary undermined it by exalting himself.

The striking thing about the profile isnt the shrill exaggeration of the National Review article it quotes, but that the authors - and we can be confident it was a committee effort - were unable to perceive the incoherence of their product.� Its hard to imagine a clearer example of the way in which attending law school teaches people how to talk without thinking - to maneuver into place prefabricated slabs of words.

This blog has recently been sadly remiss in documenting the many judges in this great land who put their reputations on the line - and, oftentimes, succeed successfully to achieve success blowing them up - merely for the honor of a mention here.

My friends, I offer no excuses but when elected I will immediately fire somebody for it.

Samuel Kent, whom we met in post 322, was indicted at the end of August.� His career demonstrated just how much grit and determination is necessary for a federal judge to risk consequences for his actions.� Merely being a contemptible� drunk who regularly abuses both lawyers and staff wasnt nearly enough.

You wont be surprised to learn that the out-of-district judge presiding over the prosecution has issued a gag order that would be wildly unconstitutional if the defendant were anyone but a fellow judge.� It actually bars witnesses from talking about their own lives.

The judge, you see, carefully balanced the reputation of the judiciary against the publics right to know what its government is doing.� Hmmm.� But I like it that the judge relented to the extent of allowing court personnel to divulge dates of hearings.� Now thats balance!

Meanwhile, unbelievably, the indicted judge continues to sit on the federal bench.� James Gill of the Times-Picayune reported that, as of late last month, there was no move to impeach him or even send him on another paid vacation.

The Fifth Circuits Judicial Council did come down hard on another judge, Thomas Porteous, sternly ordering him to take a two-year vacation with the following findings:

Judge Porteous repeatedly committed perjury by signing false financial disclosure forms under oath ...�

Judge Porteous repeatedly committed perjury by signing false statements under oath in a personal bankruptcy proceeding ... This perjury allowed him to obtain a discharge of his debts while continuing his lifestyle at the expense of his creditors. ...

Judge Porteous wilfully and systematically concealed from litigants and the public certain financial transactions by filing false financial disclosure forms ...

Judge Porteous violated several criminal statutes and ethical canons by presiding over In Re: Liljeberg Enter. Inc. v. Lifemark Hosps. Inc., No. 2:93-cv-01784, rev’d in part by 304 F. 3d 410 (5 Cir. th 2002). In that matter, which was tried without a jury, he denied a motion to recuse based on his relationship with lawyers in the case, in violation of 28 U.S.C. § 455 and Canons 3C(1) and 3D of the Code of Conduct for United States Judges. In denying the motion, he failed to disclose that the lawyers in question had often provided him with cash. Thereafter, while a bench verdict was pending, he solicited and received from the lawyers appearing before him illegal gratuities in the form of cash and other things of value in violation of 18 U.S.C. § 201(c)(1)(B). ...

Judge Porteous made false representations to gain the extension of a bank loan with the intent to defraud the bank and causing the bank to incur losses...

Heres the House Judiciary Committee harumphing about him.

Interestingly, a number of other Fifth Circuit district judges actually dissented from the Judicial Councils suggestion that taking bribes on the bench might be an impeachable offense, writing an opinion revealing a good deal about themselves, and not just in their display of there-but-the-grace-of-God solidarity:

The Framers of the Constitution provided that federal judges, both of the supreme and inferior courts, shall hold their offices during good behavior and shall be removed from office only upon impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors; ...

Thus, the founders intended for judges to have a high degree of independence and to be removable only upon constitutionally specified grounds; they did not intend for judges to serve simply at the pleasure of a majority of the Congress.

The standard for removing a patronage appointment in the judicial branch is the much lower one of� "good behaviour", for the obvious reason that removal by impeachment means only that a judge returns to the other side of the bench and resumes a career in a profession the practice of which many of us dont actually believe is inherently disgraceful.

The dissenting judges were actually relying upon an act of constitutional interpretation made by the U.S. Senate in 1805.� Can you think of any other context in which judges defer to the constitutional rulings of Congress?

But I especially love the phony choice between "high crimes and misdemeanors" and "serve simply at the pleasure of a majority of the Congress."� What other option could their possibly be?� (Surely not good behavior!)

When political spin artists present issues in such outrageously dishonest ways, they usually do so with a wink to journalists and other insiders.� When judges do it, especially in a memo circulated only to other judges, you have to wonder if they might actually have convinced themselves.� I have to admit, though, its probably easier than thinking about what youre writing.

A long, long article in last Sundays Times Magazine began: "Every generation gets the Constitution that it deserves."� That, I guess, explains Plessy v. Ferguson and the whole legal structure of Jim Crow.��

The article, entitled "When Judges Make Foreign Policy," continues with the following helpful summary of attitudes about international law:

One view, closely associated with the Bush administration, begins with the observation that law, in the age of modern liberal democracy, derives its legitimacy from being enacted by elected representatives of the people. From this standpoint, the Constitution is seen as facing inward, toward the Americans who made it, toward their rights and their security. For the most part, that is, the rights the Constitution provides are for citizens and provided only within the borders of the country. ...

A competing view, championed mostly by liberals, defines the rule of law differently: law is conceived not as a quintessentially national phenomenon but rather as a global ideal. The liberal position readily concedes that the Constitution specifies the law for the United States but stresses that a fuller, more complete conception of law demands that American law be pictured alongside international law and other (legitimate) national constitutions. The U.S. Constitution, on this cosmopolitan view, faces outward. It is a paradigm of the rule of law: rights similar to those it confers on Americans should protect all people everywhere, so that no one falls outside the reach of some legitimate legal order. What is most important about our Constitution, liberals stress, is not that it provides rights for us but that its vision of freedom ought to apply universally.

On Monday morning in Tijuana, 12 bodies were found piled up on the street.��

The grisly discovery capped four days of violence that has shaken the sprawling Tijuana metropolitan area and forced Baja California state officials to plead for more federal police to help control the city. Police on Monday also discovered four bodies in a vacant lot in eastern Tijuana. They had been carefully arranged in a circle and, like other such scenes, carried a narco-message.

(Excuse me.� Rommel?)

All of them, of course, were victims of Americas war on drugs.� Its longstanding U.S. policy to maintain a lucrative black market in untaxed goods.� As Misha Glenny shows in his entertaining, disturbing, altogether brilliant McMafia: A Journey Through the Global Criminal Underworld, the one thing the worst thugs around the world have in common is their dependence on� government.

Of course, governments (well, most governments) dont intend to subsidize their thugs.� Its typical of the American way of looking at the world to focus exclusively on the intention and ignore the result.� Anyone who works in the criminal justice system sees it every day.�

The exclusionary rule is intended to deter police misconduct, so it does. Its not intended to encourage criminal misconduct, so it doesnt.� For most judges and lawyers, thats enough.� More than enough.

But its not a failing unique to our little courtroom corner of solemn make-believe.� I was reminded of it when my local newspaper republished a different LA Times piece, this one having to do with the drinking age.

Scanning the article, I was struck by arguments that proceeded from the premise that a drinking age of 21 prevents people younger than that age from drinking.� Proponents of the current drinking age cite evidence - or pseudo-evidence - that 18-20 year olds shouldnt drink, and consider their point made.� The fact that the drinking age doesnt actually stop younger people from drinking seems to be beside the point.

(Among the pseudo-evidence is the claim that raising the drinking age in 1984 is responsible for a 13-percent drop in traffic fatalities.� Air bags didnt contribute?� Improved medical care didnt contribute?� Crackdowns on DWI, and the invention of cell phones with which those sharing the road might call 911, didnt contribute?� Thirteen percent is pretty pathetic, really.� Just imagine how much greater the drop would have been if their parents hadnt bought SUVs for them...)

Binge drinking on campuses is an expression of the weird neuroses Americans have about alcohol, and have had at least since Prohibition seemed like a good idea.� The annual deaths of college students who overdose on alcohol is also due to their lack of awareness that marijuanas suppression of the vomit reflex has its downside, too.�

There are times when its actually a good thing to throw up.� Tainted fish and an entire bottle of tequila are the two that jump immediately to my mind, although Im sure you have your own memories of near-death experiences.

The war on drugs is, at least ostensibly, intended to put drug lords out of business.� In practice it creates a business for them.� Also, many millions of incentives for enforcing it with mass violence.�

But then, which is more important?� Good intentions, or mere reality?

Tanae and her cousin, Mishay Williams (Mishay), were standing on the porch outside Tanaes house.� [FN3. Tanae was 14 years old and Mishay 12 years old at the time of trial.] ...� Tanaes 16-year-old brother, Deron Calhoun (Calhoun), and their mother walked to an ice cream truck at the corner of 41st and Naomi Streets. A few minutes later, Tanae saw Vince walking up Naomi Street toward the ice cream truck, holding a “long black gun.” Tanae ran into the house with Mishay, got on the floor, and heard gunshots. ... After the shooting, there was a hole in the front window of her house.

It was a routine case - just another shooting.� What got me was kids, younger than 14 and 12 at the time of the incident, knowing exactly what to do when they saw a man coming up the street with a rifle.� They ran into the house and dropped below the level of the windows.

For those kids, gunfire and sudden violent death was, if not exactly normal, something that could reasonably be anticipated.� For a caregiver, part of responsible parenting was teaching children how to recognize and respond to such potentially lethal threats.

I think that the process of normalization is the single most important variable in establishing the rate of a communitys violent crime.� What people expect influences what actually happens, and not in some semi-mystical Heisenberg Uncertainty Principle sort of way.� (Besides, Im talking about the macroscopic world - the one with bullets.)

I can best explain what I mean with an illustration, and luckily one comes readily to hand:

My brother Peter Jacobsen wrote a paper a couple years back called "Safety in numbers: more walkers and bicyclists, safer walking and bicycling."� It was published in Injury Prevention magazine and became a kind of instant classic in the field of traffic safety.� The World Health Organization, for instance, flew him to an Oslo conference on the strength of it.

As described in this Transportation Alternatives article,

The research suggests that the relationship between increased cycling and increased safety varies according to “PJ’s Law”, named for Peter Jacobsen, the California engineer who documented it in an article in Injury Prevention. He found that doubling the number of cyclists on the road tends to bring about a 1/3 drop in the per-cyclist frequency of a crash with a motor vehicle. By the same token, tripling the rate of cycling cuts the crash rate in half.

It seems counterintuitive at first, but its really not.� If the driver of a car expects to see lots of bicycles, he or she will be on the lookout for them, and that much less likely to turn right in front of them, push them off the road, clip their rear wheels, open doors on them, and all those other things cars regularly do to bicycles.� As bicycle riding becomes normal, it becomes safer.

I think something similar helps to explain the phenomenon of violent crime rates dropping precipitously in some places (such as New York) while rising in others.� Heres one article on the phenomenon. � Over the summer, U.S. News reported:

Okay, heres a new one on me.� I wonder how long this sort of thing has been going on:

�

�Two Rhode Island lawyers, including the brother of Providences mayor, and a co-conspirator were sentenced in U.S. District Court in Boston for conspiracy to obstruct justice, obstruction of justice and making false statements. ...

The lawyers, plus a co-conspirator and a legal assistant, made an illegal deal with a couple who were facing drug trafficking charges in federal court in Boston. They promised to give the clients information they could pass along to the government to avoid prison if the couple paid them tens of thousands of dollars.

The couple who were facing drug trafficking charges paid Bevilacqua and Giraldo $100,000, according to a statement from the U.S. Attorneys Office in the District of Massachusetts. Instead of giving the couple the promised information, Bevilacqua, Giraldo and Cicilline told the clients theyd need to plead guilty first.

�

Cicilline asked the couple for another $50,000 to make sure that Bevilacqua and Giraldo followed through on their end of the deal.

I know what youre thinking.� Youre worried that the two lawyers might have received the sort of sentence federal courts regularly impose on drug dealers - 240 months, that kind of thing.� Never fear.� These guys were lawyers, remember?

Compared to selling cocaine for a fair price, whats so bad about taking advantage of vulnerable people by suggesting they defraud prosecutors and the court, only to cheat them when they bite?�� 18 and 21 months did the trick.