Money, the Courts, and Real Priorities

A wise woman once said, "money talks, and bullshit walks." Sadly, more and more it's the money that drowns out everything when it comes to judicial elections.  But it's important to pay attention to the bullshit, too, and particularly to who is pushing it and why.

But first, let's get a few things clear.  Judges should not be elected.  They are not politicians, in the traditional sense.  They should not - and cannot - promise to voters to rule in particular ways on certain issues.  Most importantly, judges need the independence to apply the law as it exists, even when it's unpopular to do so.  Most often, that comes in criminal cases.

In fact, as this lengthy article from The Atlantic (and The Marshall Project), criminal cases, and fear mongering about them, tends to be the them of the millions of dollars of advertising outside groups pour into modern judicial elections.  The theme is simple and familiar - one candidate is "soft on crime" because she was either a defense attorney at one time in her career or, as a judge, she ruled in a vaguely pro-defendant way.  That the claims are exaggerated or, at least, more nuanced than presented is a feature, not a bug.

One of the many examples they discuss is one from West Virginia featuring a big player who is now a criminal defendant himself:

When coal executive Don Blankenship wanted to unseat an unsympathetic West Virginia justice in 2004, he didn’t run ads in the name of Massey Energy Co. He funneled nearly $2.5 million to a PAC called “And for the Sake of the Kids” to produce commercials alleging the incumbent had freed a child rapist and allowed him to work as a school janitor. In reality, Justice Warren McGraw had voted with the majority that a juvenile sex offender already on probation should have been sent to rehab instead of back to jail when he was caught drinking and smoking pot. The judge Blankenship helped elect reversed a $50-million ruling against Massey Energy, culminating in a landmark Supreme Court ruling that found the campaign contributions constituted 'a serious risk of actual bias.' (More recently, Blankenship was indicted in November over a 2010 mine explosion that killed 29 miners.)

This is an interesting development, for two reasons, one disturbing and one more revealing (but ultimately disturbing, too, in its own way).

It's taken as a given that these ads influence voters - if not, why run them?  Ilya Somin has written a lot about the rational ignorance of voters.  That is, basically, that the value of any single vote is so minimal that it's rational for would be voters to devote their time to things other than learning about politics, candidates, etc.  If that's true (and I'm somewhat convinced) for regular elections, imagine what it must be like for judicial elections.  After all, most folks will never appear before a judge they vote for or against, so how much thought will they give to that choice?

But even worse is that evidence is mounting that the ads are changing the way judges make decisions:

A growing body of research suggests that soft-on-crime attack ads may be changing how judges rule on criminal cases. In the American Constitution Society’s study of state-supreme-court races, Emory University law professors Joanna Shepherd and Michael Kang concluded that the more TV ads aired, the less likely individual justices are to side with a defendant. The impact was fairly small but statistically significant, showing that doubling the number of TV ads in a state with 10,000 ads increased the likelihood of a vote for a prosecutor by an average of about 8 percent.

* * *

Previous studies have found that Pennsylvania judges handed out longer sentences as an election approached, and that Kansas judges chosen in partisan elections gave harsher punishments than those who kept their seats in nonpartisan retention elections. A 2013 survey of seven states with judicial-election spending of $3 million or more, conducted by liberal organization Legal Progress, asserted that 'as campaign cash increased, the courts studied began to rule more often in favor of prosecutors and against criminal defendants.'

While judges deny any kind of influence, numbers don't lie.  They may not be as damning as they appear at first blush, but they aren't good.  It's bad enough for a would-be judge to use "tough on crime" language to get on the bench.  It's even worse for a judge to worry about keeping his seat while making a ruling in a case, criminal or otherwise.

The other thing, the more revealing thing, about all this spending is where it's coming from.  The article chronicles how most of this money comes from out-of-state groups that, for the most part, don't really seem to have anything to do with criminal justice.  In fact, most are pro-business groups using crime as an issue to support pro-business jurists.  For example, one group that spent nearly half a million dollars in a Michigan election was actually based in Virginia and formed by ex-tobacco company execs to fight smoking regulations.

But in some cases, it's worse than that, because the groups funnelling in money for these fearful spots that raise the spectre of child molesters running amok or killers being set loose at least make noises that they care about criminal justice reform:

Koch Industries, owned by the conservative activist Koch brothers, gave $460,530 this year to the Republican State Leadership Committee and $50,000 to the North Carolina Chamber of Commerce’s PAC—money that helped fund an ad promising 'no leniency' for violent criminals in Illinois and one praising a North Carolina candidate for 'putting murderers, drug dealers, and sex criminals in jail,' among others. In the same year, they’ve emerged as champions of due process and indigent defense, announcing a 'major' grant to the National Association of Criminal Defense Lawyers* and sponsoring a forum on the problem of mass incarceration.

Another wealthy family took part in that Michigan campaign, while also giving millions of dollars to an organization that fights mandatory minimums.

While you might argue that tactics are not the same thing as principled positions, it's a little disturbing to see people who claim to care about criminal justice reform stoke the fires of fear and misunderstanding that will keep it from happening.  Not to mention, the studies above show that there might be some actual impact on the judging, which makes the criminal justice system worse, not better.

It also provides evidence for those who argue that organized libertarians are really only concerned with money and property issues.  While they may say the right things about decriminalization or our exploding prison population, where are they putting their resources?  Where they think it will benefit their own bottom line.

Like I said - money talks, bullshit walks.

* Full disclosure - I am a member of NACDL.

An Adversary Is Not a Panacea

Of the many features that separates and Anglo/American legal system from the civil code system that most of the rest of the planet uses, the one that really sets it apart is that ours is an adversarial system.  Two parties enter the courtroom, battle it out from their own perspectives and, most of the time, a winner emerges.  If the "truth" (if you follow me) comes out in the process, so much the better.  Key to this system is that each party controls its own agenda.  Neither the court nor the public at large gets a say in how a case is presented (or not).

Now, one of the few exceptions to this is the grand jury process, which is decidedly one sided.  The prosecutor runs the show.  The defendant usually doesn't have anything to do with it, much less the defense attorney.  Which is part of what makes the grand jury decisions in Ferguson and Staten Island so unusual.  As a result, some folks are wondering whether all that prosecutorial discretion isn't such a good thing, particularly if the prosecutor doesn't seem to want to get an indictment.

There's a discussion to be had there, but one thing that would not improve results, if we're assuming a prosecutor soft-pedaling things, is the presence of a defense lawyer.  This column at Slate offers a refrain I've heard before, but is worth repeating:

The version of Michael Brown’s shooting that the grand jurors heard was engineered by the prosecutors, who vigorously questioned witnesses when their testimony contradicted Wilson’s story and barely questioned witnesses whose testimony supported the officer’s version. Wilson received especially lenient treatment by the lead prosecutor. The final question he asked was whether there was anything else that Wilson wanted the jurors to know. He did:

'One of the things you guys haven’t asked that has been asked of me in other interviews is, was he a threat, was Michael Brown a threat when he was running away. People asked why would you chase him if he was running away now. I had already called for assistance. If someone arrives and sees him running, another officer and goes around the back half of the apartment complexes and tries to stop him, what would stop him from doing what he just did to me to him or worse ... he still posed a threat, not only to me, to anybody else that confronted him.'

There was no defense attorney to question Wilson’s self-serving statement to the jurors.

Emphasis mine.  This after the author lauds preliminary hearings as an alternative to grand juries because:

These 'prelims' are open to the public, and they are adversarial. Witnesses are questioned and cross-examined by prosecutors and defense attorneys, all of whom must abide by the rules of evidence.

All that's true, but what would it have changed?  Why on Earth would a defense attorney in the grand jury have questioned Wilson about his "self-serving statement?"  That's not the defense attorney's job.  Nor would a prelim have made things any better.  Sure, it all would have been public, but, again, if the prosecutor is not inclined to grill the defendant (if he testifies), why would defense counsel do so?

There's an awful lot wrong when it comes to police getting away with horrible behavior, for various reasons.  Those need to be addressed.  But call to completely revamp the grand jury process - one that, like most other parts of the Bill of Rights, doesn't actually apply to the states - seems awfully short sighted.

The problem isn't that, occasionally, when a cop is involved, grand juries act as the kind of brake on state action they were intended to be.  The problem is that, in the run of the mill case involving a regular civilian, they hardly ever act that way.

On Prosecuting the Torturers

In the wake of the Senate report on torture by the CIA (and its contractors - leave it to we Americans to privatize our atrocities), there hasn't been a whole lot of ink spilled on what should be done to those who engaged in illegal behavior.   Generally that means prosecution, but should it?  There are at least a couple of arguments that it shouldn't, even if the folks are guilty as sin.

The first, and more persuasive argument, was set out by Anthony Romero, head of the ACLU* in the New York Times the day the report was released.  Although the ACLU has been in the forefront of trying to get all the details of our torture programs out in the open, he argues against prosecuting those involved (up to and including Bush, Cheney, and Rumsfeld).  It's not a matter of giving up - it's a more clever gambit:

with the impending release of the report from the Senate Select Committee on Intelligence, I have come to think that President Obama should issue pardons, after all — because it may be the only way to establish, once and for all, that torture is illegal.

* * *

Mr. Obama is not inclined to pursue prosecutions — no matter how great the outrage, at home or abroad, over the disclosures — because of the political fallout. He should therefore take ownership of this decision. He should acknowledge that the country’s most senior officials authorized conduct that violated fundamental laws, and compromised our standing in the world as well as our security. If the choice is between a tacit pardon and a formal one, a formal one is better. An explicit pardon would lay down a marker, signaling to those considering torture in the future that they could be prosecuted.

Problem is, I don't think pardons really work that way.  For one thing, I don't think one needs to formally "accept" a pardon for it to become effective, much less do so with conditions attached.  For another, I don't think accepting a pardon would concede that the conduct at issue was a crime.  

In fact, just the opposite could be true.  I might take a pardon precisely because I think my conduct wasn't criminal, in order to head off politically-motivated prosecutions in the future.  It would be no different than the West Memphis Three agreeing to enter an Alford plea to a lesser charge in order to be released from prison (and death row, for one guy), even though they maintain they're innocent.

So, while Romero gets some credit for creative thinking, I don't think handing out pardons would get him where he wants to go.

Eric Posner, on the other hand (writing over at Slate), has a much more disturbing take.  He argues that there should be no prosecutions because, well, in essence, politicians are untouchable:

But Obama’s best argument for letting matters rest is the principle against criminalizing politics. This is the idea that you don’t try to gain political advantage by prosecuting political opponents—as governments around the world do when authoritarian leaders seek to subvert democratic institutions. Of course, if a Republican senator takes bribes or murders his valet, the government should prosecute him. But those cases involve criminal activity that is unrelated to the public interest. When the president takes actions that he sincerely believes advance national security, and officials throughout the government participate for the same reason, then an effort to punish the behavior—unavoidably, a massive effort that could result in trials of hundreds of people—poses a real risk to democratic governance.

Obama’s problem is that if he can prosecute Republican officeholders for authorizing torture, then the next Republican president can prosecute Obama and his subordinates for the many questionable legal actions of the Obama administration—say, the drone strike that killed Anwar al-Awlaki and three other American citizens.

The full impact of Posner's reasoning is that no politician could ever be held accountable for a crime he or she commits, aside from something like garden-variety murder.  Crimes committed in the service of a political office can be committed with impunity, because of the danger of political justice.  I certainly agree that a series of bilateral criminal investigations done only for political motives would be bad for the country (although, honestly, how much worse?).  But that doesn't mean winning an election means immunity from wrongdoing just to avoid that fate.  Surely there's a line - doesn't sanctioning and carrying out a regime of torture that includes acts previously prosecuted as war crimes by this very country cross it?

One thing that both Romero and Posner say, and that I agree with completely, is that no prosecutions will actually happen. it's naive to think otherwise.  That doesn't mean we have to shrug and accept it or, much worse, justify it.

* Full disclosure - I am a card carrying member.

How to Get Away With Anything

The breakout hit of the new TV season, to the extent there is such a thing anymore, is How To Get Away With Murder, the latest product of the Shonda Rhimes ratings factory.  It's about a law prof who's also a practicing defense attorney (not completely unheard of), who uses four students every semester as part of her defense team (very much unheard of).  We've already learned that, in addition to helping win murder cases, they're deeply involved in one.  It's fun, in a silly, don't-think-too-much-about-it kind of way.

However, as a friend of mine pointed out on Facebook the night of the premiere, it is deeply deeply unrealistic.  As he noted, there's a handful of glaring ethical failures in just the first episode, so anybody who thought the show's title held the promise of accurate advice, think again.  Come to think of it, if your legal knowledge is gleaned solely from primetime TV, remember the old MST3K mantra: it's only just a show, you should really just relax.

Having said all that, last week's episode entered my playground - the appellate court - and completely shit all over it.  Trust me, neither the Pennsylvania Supreme Court nor any other appeals court is ever going have parties calling witnesses, much less engaging in hyperbolic cross examinations in their courtroom.  Oh, and the guy whose fate their arguing over, the defendant?  Nowhere near the place.  Prisoners don't get transported for oral arguments.  It would have been easy enough to get all this right (move the hearing to a trial court), so one wonders why they don't.

Now . . . where was I . . .

Primary among the ethical slips we've seen so far is how some of the students lie about who they are in schemes to get information to help win their client's freedom.  This might seem bold, or even clever, but it's something you simply cannot do as a defense lawyer.  That's a good thing, but it results in a odd imbalance in the criminal justice systems.

You see, cops can and will lie to you.  This recent Christian Science Monitor article sums up the situation well:

Bluffing is a common – and legal – tool in police interrogation rooms, and the art of artifice in obtaining confessions is a standard part of police training. The parameters for what police can lie about are broad, and lies can range from claiming to have evidence that does not exist to fibbing that a witness was at the scene.

Still, per US Supreme Court rulings, confessions must also be 'voluntary,' introducing a possible point of contention between an officer’s right to lie to a suspect and his or her obligation to serve justice.

'The question is, at what point does the amount of lying make the confession involuntary?' Professor Shanks says. 'There’s just no bright line on it.'

Defense attorneys, and those employed by them (like, say, young eager law students) don't have that luxury.  Rule 4 of the WV Rules of Professional Conduct (which are similar enough to others in the country to serve as an example), is labelled "Transactions With Persons Other Than Clients."  It says:

Rule 4.1.  Truthfulness in statements to others.
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

So, where cops can lie about who they are and what information they have, defense attorneys and their investigators can't.  It's a simple as that.

Which leads to cops being involved with all kinds of shenanigans that would get a defense lawyer disbarred, if not locked up.  Like this latest outrage (via) in the War on (Some People's) Drugs:

The Justice Department is claiming, in a little-noticed court filing, that a federal agent had the right to impersonate a young woman online by creating a Facebook page in her name without her knowledge. Government lawyers also are defending the agent’s right to scour the woman’s seized cell phone and to post photographs — including racy pictures of her and even one of her young son and niece — to the phony social media account, which the agent was using to communicate with suspected criminals.

The woman had been arrested and ultimately pleaded guilty to a minor drug charge, for which she received probation.  Her phone was seized as part of her arrest.  She was never told about the fake profile using her information (she learned about it from a friend).

Why would the DEA think they could do such a thing?

The experts also agreed that the case raises novel legal and ethical questions. There is a long tradition of deceptive practices by police that are legal, they noted. For example, officers assume a false identity to go undercover. 'What’s different here,' said Ryan Calo, a professor at the University of Washington School of Law, is that the agent assumed the identity of a real person without her explicit consent.

'The technologies we have now are enabling all sorts of new uses,' said Neil Richards, a professor at the Washington University School of Law. 'There are a whole bunch of new things that are possible, and we don’t have rules for them yet.'

I'd beg to differ only in that the rules are already there and the cops (which includes the DEA) knows they don't need to follow them.  The slow destruction of the Fourth Amendment, combined with the desire to let cops do absolutely anything in the name of the War on (Some People's) Drugs leads precisely to this kind of behavior.

So, while ABC may want to show us how to get away with murder, the way to get away with most anything else is pretty clear - be a cop going after drugs.

Ignorance Is No Excuse . . . Unless It Is

The old maxim goes that "ignorance of the law is no excuse."  That's certainly true when it comes to us plebs, but what about the cops?  Or does "almost" count for law enforcement, the way it does for horseshoes, hand grenades, and atomic weapons?  The Supreme Court, in a case that kicks off the 2014 term Monday, is about to tell us.

Nicholas Heien was driving in North Carolina when he got pulled over for having a busted tail light.  A subsequent search uncovered drugs, which lead to Heien being prosecuted for, among other things, the busted taillight.  But the North Carolina courts determined that state law only required one working tail light, regardless of how many lights the car was supposed to have.  One busted one, therefore, was not a crime, so long as the others were working.

So much for Heien's driving charge. But what about the drugs?  Was the stop good, now that we know it was based on an incorrect interpretation of the law?  The state supreme court decided almost was good enough - so long as the cop's mistake of law was "reasonable," the stop doesn't violate the Fourth Amendment.  Because state law on tail lights was uncertain, the cop's stop of Heien in this case was reasonable.

Orin Kerr lays out the issues and why he thinks the defense should prevail. I agree that they should, but that doesn't mean much in modern Fourth Amendment law.  That being said, this case does have two interesting angles that might lead it to buck the trend.

First, a lot of the modern cases stripping the Fourth Amendment deal not with the amendment itself but with the exclusionary rule - the rule that says that evidence discovered during an unconstitutional search can't be used at trial.  The Supreme Court (and the lesser courts) has, for the past few years, expanded the once-limited "good faith" exception to the rule, giving cops more room to make mistakes and not pay a price for it.  Heien can't be viewed through that lens because North Carolina, in its state constitution, explicitly rejected the good faith exception.  So the Supremes will have to deal with the issue head on.

Second, and hanging over the whole thing, is the goose/gander angle I mentioned above.  As Kerr explains:

it seems only fair to apply the same rule to the police that applies to regular citizens. Mistake of law is a classic subject taught in first-year Criminal Law. Students read cases like People v. Marrero, 69 N.Y.2d 382, 507 N.E.2d 1068 (1987), in which a federal prison guard was convicted of possessing a weapon in violation of a state law that had an express exception for 'corrections officers . . . of any penal institution.' After Marrero was charged, a divided lower court ruled that 'any penal institution' only meant a state penal institution, which to his shock excluded Marrero. New York’s high court then ruled that Marrero could not assert a mistake of law defense in light of this ruling. Ignorance of the law was no excuse, even if 'the law' was handed down in a surprising way only after the defendant’s arrest. This was a harsh result for citizen Marrero, perhaps, but it was needed to give individuals an incentive to learn the law.

That’s the usual rule in criminal law, and I’m not sure why the same thinking shouldn’t apply in criminal procedure.

I wouldn't expect a generic Fourth Amendment case to really catch the public's attention.  We've let it atrophy so much over the past few decades that I wouldn't blame most folks if they thought it had just vanished into thin air.  But I'd expect there to be an uproar if the Supreme's give the cops more leeway when it comes to knowing the law than they do regular citizens.  If the fear of that is what it takes for them to get this one right, so be it.

UPDATE: Scott over at Simple Justice has a more pessimistic take.  Having read about half of the oral argument transcript, he might be right to worry.

Eric Cartman Pens an Op-Ed

Since the killing of Michael Brown by a police officer in Ferguson, Missouri a couple of weeks ago, a lot of words have been written.  I can't claim to have read them all, but I can say without hesitation that this piece in the Washington Post has to be one of the most outrageous.  Strangely, it has nothing to do with the specific facts of the Brown shooting, but it says an awful lot about how the police view the world around them and the people who live there.

Sunil Dutta is now a professor of "homeland security" at a for-profit university, but before that he spent 17 years as an LAPD officer.  Last week, Dutta wrote a column entitled:

I’m a cop. If you don’t want to get hurt, don’t challenge me.

Provocative, yes?  However, if you know anything about journalism you know that, quite often, the person who writes the article doesn't write the headline and the headline is crafted to be sensational and generate page views.  Hell, some places like Slate are so bad about it that the percentage of time the headline matches the article contents probably hovers around the Mendoza Line.  So, maybe, give Dutta the benefit of the doubt and assume he has a more nuanced point to make.

Not so much:

Even though it might sound harsh and impolitic, here is the bottom line: if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge. Don’t scream at me that you pay my salary, and don’t even think of aggressively walking towards me. Most field stops are complete in minutes. How difficult is it to cooperate for that long?

In other words:

To be fair, Dutta "side[s] with the ACLU" and argues that all officers should wear body cameras and all police cars should have a camera, too (although, as Radley Balko points out, those are hardly a panacea).  And he writes this:

And you don’t have to submit to an illegal stop or search. You can refuse consent to search your car or home if there’s no warrant (though a pat-down is still allowed if there is cause for suspicion). Always ask the officer whether you are under detention or are free to leave. Unless the officer has a legal basis to stop and search you, he or she must let you go. Finally, cops are legally prohibited from using excessive force: The moment a suspect submits and stops resisting, the officers must cease use of force.

Emphasis very much mine.  This, while nice in theory, directly contradicts the "respect my authoritah" mantra he relies on earlier.  If a cop says he's going to stop me and I don't think he has the right to do so, what do you think will happen if I don't "submit" to it?  We're talking about a relationship with a serious imbalance of power between the two people.  The officer has the gun, after all, and, as we've seen, generous legal cover should he or she use it.  I, on the other hand, am likely to at least wind up arrested for something vague like "disorderly conduct," of not worse.

Ken at Popehat is right.  Dutta's attitude, and the fact that we generally accept it without much objection, is "servile and grotesque."  If anything good comes out of this whole mess, maybe it will be that society starts to rethink the hands off attitude we have toward the way the police do their job.

Second Thoughts From An Unlikely Source

In 1989, 11-year-old Jacob Wetterling was snatched off the street by a stranger, the paradigmatic example of the kind of abduction that gives parents nightmares.  He was never found and his abductor never captured.

All that prompted Jacob's mother, Patty, to become involved with the issue of sex offender registries.  At the time, a few states had registries, but most did not.  Patty's efforts paid off in 1994, when Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, the first comprehensive national sex offender scheme.

In the years since, state registries have exploded and Congress has repeatedly enacted new laws that expand the nature of the registries and provide harsher punishments for offenders who don't follow the registration scheme.  Now more that 750,000 people are on sex offender lists in the United States.  If it works, great, but what if it doesn't?

It's not surprising that people in my line of work would argue that sex offender registries are overbroad, prevent ex-cons from being able to reintegrate back into society, and generally constitute extensive punishment beyond their prison terms.  What is surprising is that Patty Wetterling is starting to have second thoughts, too:

These registries were a well-intentioned tool to help law enforcement find children more quickly,' she told us. 'But the world has changed since then.' What’s changed, Wetterling says, is what science can tell us about the nature of sex offenders.

What the science says is that, contrary to popular myth, sex offenders are not egregious recidivists.  In fact, they commit new crimes at a lower rate than burglars, fraudsters, and (naturally) drug offenders.  In addition, we know now that the overwhelming number of victims of sexual abuse are victimized by people close to them - family, friends, or community figures.  Jacob's kidnapping out of the blue is such a terror precisely because it is so rare.

Fear has played an important role in getting us where we are now:

Wetterling remembers watching this spiral of fear after Jacob’s disappearance. 'The fear was real. It was devastating,' she said. 'People became absolutely terrified. There were people in my community who wouldn’t let their children bike anymore or play in the park.' Twenty years on, she has come to see this reaction as 'not information-based.' And two decades after she succeeded in persuading Congress to pass Jacob’s Law, she’s now asking people to take a second look to see whether laws like the one named for her son are doing more harm than good and should be curbed.

Jeralyn at TalkLeft has pointed out before that laws named after people are generally a bad idea:

Let us not enact laws out of grief and passion, or in response to a singular criminal event, however horrific it might be. Cooler heads are needed where our fundamental liberties are at stake.

But she, and I, after all are criminal defense attorneys - what would you expect us to say?  Which is why Patty Wetterling's voice is so important on this issue.  She knows the pain of losing a child, but has come to realize that the anger and desire to do something - anything - in the wake of such a tragedy doesn't always produce good results.

The State Calls the Deceased to the Stand

All right, so why is this funny?

OK, it's funny for lots of reasons, most of them absurd.  But the most absurd bit involves a barrister seeking testimony from a dead man.  You just don't do such things.

Or do you?

A NPR story from last week tells of a crime in Brazil in which the victim came back from the grave to testify.  It involved a love triangle - two guys, one girl - that turned violent, leaving one of the male suitors, Rosa, dead.  So far, so straightforward and downright cliched.  And then:

Lenira is riven with guilt — she still loved Rosa — and so she goes to see a medium, a very famous one. She receives a letter from Rosa from the beyond.

'In the letter, channeled by this medium, the deceased confesses,' de Lima explains. 'He says his jealousy was the reason for his death. The letter includes details that only people close to him could have known.'

Nice injection of woo into the story, but here's where it gets really strange.  The letter was actually introduced in court on behalf of the shooter.  He was acquitted.

Turns out, this is not such an unusual occurrence in Brazil, particularly in the region where these events took place:

Judge Hertha Helena Rollemberg Padilha de Oliveira (no relation to Lenira) says there are many cases involving spirits in Brazil.

'If the proof is not illegal, it is lawful — you have to accept it in the process,' she says.
So when individuals present letters from the dead, written by a medium, de Oliveira says the judge has to accept it. 'He has to accept the proof in the process,' she says. 'He can't say, 'Take the letter away from the process.'

'[Brazil] is a very spiritual society,' the judge explains. 'Ninely percent of people probably will believe in some kind of spiritual influence. Most of the people believe in life after death.'

It's hard to argue with the defense attorney for introducing the letter - it worked, after all (let's hear it for zealous representation!).  It's harder to accept a court of law treating it as anything other than the trumped up sham it is.  Putting to one side that mediums are bunk (or giant douches), how on earth is the letter admissible as evidence?

In an American court, I think you'd have a serious problem getting around a hearsay objection.  True, there is an exception to the hearsay rule for statements made by a person against his own interest, but the justification for that is firmly rooted in the here and now.  The theory goes that no person would say something incriminating about himself if it wasn't true, so such statements are generally trustworthy.*  I'm not sure that justification applies to a statement from beyond the grave - if the declarant's already dead, what's the risk in making an incriminating statement?  Not to mention, those left behind and charged with a crime would have a hell of a motive to fabricate such a thing.

As it happens, according to at least one source, Brazilian law doesn't include a prohibition against hearsay, so that might not be a problem in cases like this one.  And, assuming you believe the woo involved, I suppose it's highly relevant.  It's certainly persuasive, although the two aren't always the same thing.

It's tempting to look at a story like this and dismiss it as something that happens elsewhere.  Indeed, the NPR pieces calls it "a tale of Brazil" that brings to mind the work of Gabriel Garcia-Marquez.  Only the use of spectral evidence is hardly limited to Brazil.

On January 23, 1897, Zona Shue was found dead in her home in Greenbrier County, down along the border with Virginia.  Suspicion almost immediately fell on Zona's husand, Erasmus (or Edward, if you prefer), thanks to his taking care of the body for burial, rather than leaving the task to others in the community.  The doctor who pronounced Zona dead made only a cursory examination.  Nonetheless, Zona was buried, with the cause of death listed first as "everlasting faint," and then simply "childbirth."

Shortly after Zona was buried, her mother Mary Jane reported that her daughter's ghost appeared to her, described what a cruel and otherwise shitty guy Erasmus was, and that he had broken her neck, killing her.  Mary Jane wen to the prosecutor, who had the body exhumed and a proper autopsy (such as those things were in 1897) done.  Sure enough, Zona's neck had been broken.

Erasmus was charged with murder and, at trial, Mary Jane was the main witness for the state.  In a clever bit of trial strategy, the prosecutor stayed away from the ghost stuff, but the defense attorney cross examined her about it anyway, allowing the jury to hear the story in all its glory.  Erasmus was convicted of murder and escaped a lynch mob, only to die in the Moundsville penitentiary a few years later.

Which just goes to show that woo, and its ability to seep into what should be deadly serious matters, knows no boundaries.  And it's pretty funny.

* The rules of evidence aren't necessarily based on modern psychological science or the evidence of fairly routine false confessions.

How to Coerce a Confession (Amateur Edition)

Many times before I've written about false confessions and how police obtain them.  They're professionals, after all, and have at their disposal a frightening array of psychological and legal tricks that make such things possible.  But it's easier than that to force someone into making an untrue statement, as a recent case from Texas (highlighted by Radley Balko) shows.

Alfred Brown was a suspect in the murder of a Houston police officer.  The grand jury investigating the case brought before it Ericka Dockery, who had been Brown's girlfriend for about six months.  She told the grand jury that Brown was asleep on her couch when investigators thought he was meeting with other suspects.  But the grand jury didn't believe her and, by the time trial came around, Dockery was the state's star witness.

What happened - which we know only thanks to the fortuitous release of a usually secret grand jury transcript - is that Dockery was beaten down emotionally to the point where she did what most people who give false confessions do: she told her inquisitors what they wanted to hear.

Naturally, they suggested she was lying, asking the prosecutor about the penalty for perjury, before going on:

'I'm just trying to answer all your questions to the best of my ability,' Dockery says.

A bit later, a female juror asks pointedly: 'What are you protecting him from?'

'I'm not protecting him from anything. No ma'am. I wouldn't dare do that,' Dockery eventually responds. As [prosecutor] Rizzo and the grand jurors parse Dockery's every word and challenge each statement, she complains they're confusing her.

'No, we're not confusing you,' a grand juror says. 'We just want to find out the truth.'

But things get really nasty when the grand jurors raise the spectre of Dockery's children being taken away if she doesn't tell the "truth" they seek:

When the grand jury returns, the foreman says the members are not convinced by Dockery's story and 'wanted to express our concern' for her children if she doesn't come clean.

'That's why we're really pulling this testimony,' the foreman tells her.

The foreman adds that if the evidence shows she's perjuring herself 'then you know the kids are going to be taken by Child Protective Services, and you're going to the penitentiary and you won't see your kids for a long time.'

That was the crack in the wall, which the grand jurors then exploited with the flair of a seasoned attorney locked in cross examination of a hostile witness, with admonishments to "[t]hink about your kids, darling," and that "what we're concerned about here, is your kids."  Eventually, not only did Dockery recant Brown's alibi, she admitted making a call to another one of the suspects.  One grand juror even said she thought Dockery was in on the murder itself.

As a reward for her truthiness, Dockery was charged with perjury, anyway.  She was kept in jail for 120 days, released only when she agreed to give more evidence against Brown (she even had to check in with a detective every week).  Once she testified and Brown was convicted and sent to death row, Dockery's perjury charge evaporated and she went on with her life.

What makes this situation particularly repugnant, is, as Balko explains, grand juries aren't supposed to work this way:

Grand juries are supposed to protect us from false allegations, but the old saying that prosecutors could get a grand jury to 'indict a ham sandwich' reflects the reality that most fail on that front. Instead, as this study from the Cato Institute explains, they’re often used to harass and intimidate.

Keep in mind that the traditional rules of evidence don't apply in grand juries and witnesses don't have a right to have counsel with them while testifying.  In addition, it's an entirely one-sided affair, as there is no opposing counsel to try and keep things in line.  There's not even a judge - the prosecutor runs the show.

By the way, remember that phone call that Dockery said Brown made from her house originally?  Balko again (with my emphasis):

seven years later, a phone record showed up proving that Brown had called Dockery from her apartment on the morning of the murders, supporting his story — and hers, before she was pressured to change it. That important bit of exculpatory evidence was found in the garage of a Houston homicide detective. Brown is still waiting to learn if he’ll get a new trial.

It's perhaps not surprising that grand jurors, regular citizens who get pulled into doing this kind of duty, start acting like cops or prosecutors in pursuit of convictions over all else.  After all, if the cops don't have play by the rules, why should they?

I Was Going to Say That

So, when the Supreme Court announced the decision in the Hobby Lobby case, I was immediately seized by the need to write something satirical about it.  I got about this far, before I ran out of spunk (as often happens with satire):

SCENE: A boardroom on a bright summer morning.  Sunlight streams through an animatronic stained glass window depicting Eric Idle singing the "Money" song.

My closely held brethren in profit, welcome to this, the annual feast day of the holy Hobby Lobby.  Before I go further, let me thank the sisters for the wonderful coffee and baked goods upon which we feast this day.  Although, please, ladies, no more danishes?  The Danes, of course, are godless communists and we have no room for that here at GloboCorp.

And sisters, if you wish to stay while we speak, please sit down in the back of the room and be quiet?  Blessed are thou.

It would have continued in that vein, feasting the holy Hobby Lobby as the paragon of how to make even more money by appealing to the name of God.  As I had written up for insertion later:

Muhammad, my brothers, may have moved the mountain, but he did not increase the bottom line.

But, as I said, I ran out of spunk and it sat there for a bit.  Then, along comes Kathryn Pogin, writing at the New York Times philosophy blog (it's a thing) and she, while not aiming for the snark I was going for, hit what I think are all the high points of why the whole Hobby Lobby thing is such a miss.

To begin with, science and the actual world has little to do with Hobby Lobby's objections:

Some corporations that have objected to the contraceptive requirements of the Affordable Care Act, like Hobby Lobby, claim that they do not wish to discriminate against women by denying them access to contraceptives generally, and that their opposition is merely to abortion. However, their understanding of which medications act as abortifacients rests on an outdated understanding of medical science and is at odds with the facts of the matter. Use of these contraceptive methods is not tantamount to abortion, and moreover, providing women with access to safe, reliable contraceptives for free drastically reduces the actual abortion rate.

Nor does it matter that Hobby Lobby's concern about particular contraceptives is of recent and dubious vintage:

Hobby Lobby offered coverage for some of the contraceptives it now claims its religious faith forbids it to have any association with, until shortly after the Becket Fund for Religious Freedom asked it if it would be interested in filing suit. The company continues to profit from investments in the manufacturers of the 'objectionable' contraceptives through the 401(k) plan it offers its employees. Recently, Hobby Lobby has faced legal trouble for false advertising. It has built a fortune, in large part, by selling goods manufactured in China, infamous for its poor labor conditions and related human rights violations. These are the practices of a corporation that will emphasize the Christian faith of its owners when convenient and profitable, but set that faith aside when it would be costly to do otherwise.

What Pogin overlooks, or ignores (it's a philosophy blog, after all, not a legal one), is that none of those considerations were relevant to the Supreme Court.  Neither the majority or dissent were willing to take on the substance of the company's stated beliefs and how they interacted with the real world.  This, quite correctly, is a feature not a bug - the government, including the courts, shouldn't be in the business of deciding the truthfulness or sincerity of religious or similar beliefs.  But therein lies the rub - because those beliefs are off limit from official inspection, neither can they be a basis for a get-out-of-obeying-any-regulation-I-don't-like card.  The Supreme Court got it right in Smith.  Unfortunately, Congress saddled us with RFRA (which was the controlling law - not the First Amendment), another nasty gift of the Clinton era that keeps on giving.

Having said all that, Pogin also gets exactly right the actual impact of the decision on women and why the "it doesn't ban anything" argument rings hollow:

This is economic coercion. Opponents to the contraceptive mandate have insisted that women remain free to purchase whatever health care services they choose, but this is woefully insensitive to the reality that low-income women and families face. For these women, there is a very large difference between what is available to them for purchase in principle and in effect. It is easy for those who do not regularly face desperate decisions due to financial insecurity or medical complexities to forget the difference. An intrauterine device, for example, can cost a low-income full-time worker more than a month’s wages. For some women, this is both the safest and most effective medical option, yet hopelessly unaffordable.

Pogin has another interesting angle, too, that being that Hobby Lobby isn't even a good Christian, but that's a hunt in which I have absolutely no dog.

At the end of the day, the question is whether Hobby Lobby is as limited in its impact as the Court seems to think it will be.  I, honestly, can't see a way to distinguish the exemption approved there from the ones the Court seemed to clearly think were different, but I sometimes lack imagination.

I guess we'll have to wait and see after GloboCorp finds Jesus, huh?

I Will Never Win Elected Office

The fact that I have no future in politics is not something I spend a lot of time crying about.  Just about any position I have on things disqualifies me in the eyes of most of the American electorate.  I'm an atheist.  I favor the legalization of drugs.  I'm against the death penalty.  I couldn't go through the motions of wearing the flag pin 24/7, engage in the religious rites that permeate public political life, or step up to explain how my team is right today when I thought the other team was wrong for doing the same thing during the last administration.  Plus, I'd probably say "fuck" on TV and that would be it.

Nonetheless, it disturbs me that, in addition to all that, people may want to hold the job I do against me.  Since, you know, it's required by the Constitution and all.

Recently there's been an upsurge in political rhetoric going after politicians for their prior lives as lawyers, particularly when they've done criminal defense work.  Over at Volokh Conspiracy, Jonathan Adler, who's been on this issue for a while, discusses the latest flap, involving Hillary Clinton's work as appointed counsel for a rapist way back when (for more examples see here).  Adler, who's unlikely to be a Hillary voter, cuts right to it:

What should we make of this story?  Perhaps nothing more than that Hillary Clinton represented someone in need and fulfilled her duty as a member of the bar to provide a zealous defense of her client.  This is not something for which she should be attacked.  We are all the worse off if the message sent to young lawyers is that representing guilty or unpopular clients is likely to be a political liability down the road.  Ably and effectively representing a criminal defendant — even one you believe to be guilty — is not 'scummy' or inappropriate. Forcing the state to prove its case before it deprives an individual of their life, liberty or property is a noble endeavor.  So while I think the story is newsworthy, I think most of the attacks on Clinton for this episode are misplaced, and a bit opportunistic. [Note that some attacking Clinton are also calling for more more due process protections for college students accused of rape.]

He does point out that it's fair game to look into how someone represented criminal clients.  That is, if she was unethical or broke the law herself, that's a problem.  But so long as Hillary or anyone else did what criminal defense attorneys are supposed to do - zealously represent their clients - there's nothing to criticize.

That is, unless you want to go after the Sixth Amendment itself.  Counsel for someone accused of a crime is a cherished right, one that was important enough to go in the Bill of Rights, after all.  And while the concept of public defenders and required appointed counsel are of more recent vintage, the idea that everyone, even the most despised, deserve representation has deep roots in this country.

On March 5, 1770, an angry crowd in Boston surrounded a British soldier.  He was eventually joined by eight others, who then fired into the crowd, killing five and wounding six.  Most people know about that - it's the Boston Massacre, one of the foundational events of the American Revolution.

What fewer people know is that the British soldiers were put on trial.  Given the furor over the shootings and the general anti-British sentiment in the colonies, it was hard to find a lawyer to defend them.  Finally, a local lawyer named John Adams agreed to defend them.  He obtained a good result - six of the soldiers were acquitted, while two others were convicted only of manslaughter.  Adams did not shrink from his representation, saying three years after:

The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently.

I have the bolded portion of that quote hanging in my office.*  It perfectly encapsulates what defense attorneys do.  It didn't hurt Adams any - he went on to be president, after all.  So, go after Hillary or whoever else based on their politics, not their long ago role as a criminal defense attorney.  If it was good enough for John Adams, it's good enough for you, too.

* Along with other "inspirational" quotes from Frank Zappa, Matt Groening, Dick Neely, and King Crimson!

Someone Gets Convicted Because of GM's Faulty Cars

But it's not who it should be.

In November 2004, Candice Anderson was driving along with her fiance, Gene Erikson, in Texas.  There was a crash - the car veered off the road and hit a tree.  Anderson was injured, Erikson was killed.  Naturally, prosecution followed, as it does when someone dies:

Because there were no skid marks, authorities believed Anderson was at fault and charged her with negligent homicide, according to the lawsuit. Believing she was to blame, she pleaded guilty and was sentenced to 5 years of deferred punishment and 260 hours of community service. She also was required to pay for Erikson's funeral and $3,500 in court costs . . ..

Want to take a guess at what kind of car Anderson was driving?  A 2004 Saturn Ion, one of the numerous GM models equipped with a defective ignition switch that's caused accidents killing (at least) 13 people over the years.

Thankfully, Anderson didn't go to prison.  Nonetheless she was coerced into doing 260 hours of community service for a crime she didn't commit.  And, although this is coming out because Anderson is now suing GM, there appears to be little doubt where the fault really lies:

The National Highway Traffic Safety Administration, the government's road safety watchdog, confirmed last week for Erickson's mother, Rhonda, that the crash was caused by the bad switch

Anderson lived with the guilt of having caused the death of a loved one for years, not to mention the stigma of having been a convicted criminal.  Hopefully, she'll get something out of GM, because it's unlikely anyone actually responsible for that crash will ever actually see the inside of a criminal courtroom.

Why the Mummery Matters

A couple of weeks ago I took someone to task for criticizing the "legal mummery" involved in the Supreme Court deciding a case based on a particular record.  The case at issue there involved one kind of mummery, but the fact is, the legal system is full of sound and fury that, often, signifies nothing.  A few recent decisions makes the point.

Early last month, the Fourth Circuit dealt with a case where a prison inmate was charged with possessing two "homemade weapons" in his cell.  On one item there was no dispute it was a weapon, but the defendant argued he didn't possess it.  On the other, there was no dispute he possessed it, but the inmate argued it wasn't a weapon (it was a shoe repair tool).  So, the trial court directed the jury to answer two questions: (1) was the first item a weapon? and (2) did the defendant possess the second item?

What it didn't do was ask the most important question - was the defendant guilty or not guilty on either count.  This is a problem because, at the end of the day, that's the question the jury is supposed to answer.

The Fourth Circuit reversed the convictions (the jury answered "yes" to both questions), even after apply the harsh "plain error" standard of review (citations omitted):

In the instant case, we do not hesitate to conclude that Appellant’s right to have a jury determine his guilt beyond a reasonable doubt was violated.

* * *

Instead of asking the jury to determine whether Appellant was guilty, beyond a reasonable doubt, of each element of the charged offense, the district court instructed the members of the jury that they need not concern themselves with certain elements of the crime.

* * *

The jury neither determined whether the remaining facts essential to conviction were established beyond a reasonable doubt, nor did it find Appellant guilty of the charged offense.

As we have explained, 'the jury’s constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence.'  Here, the district court erred when it treated the jury as a mere fact finder with respect to the elements the court considered to be in dispute, and thereby prevented the jury from making the ultimate, indispensable conclusion of whether Appellant was guilty or not guilty.

Going further, in concluding that his error was one that, if left uncorrected, would impact the "fairness, integrity, or public reputation of judicial proceedings," concluded (citations omitted):

The Sixth Amendment’s jury trial guarantee, which includes,'“as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of ‘guilty,' is fundamental. Here, Appellant did not waive his fundamental right to a trial by jury, yet no jury has declared Appellant guilty, and he has been sentenced to 33 months’ incarceration based upon a judge’s determination of guilt. Regardless of the evidence presented against Appellant at trial -- which we acknowledge was substantial -- we cannot condone this practice. To do so would undermine the integrity and public reputation of the judiciary.

In other words, it doesn't matter if everybody in the room - including the jury! - thinks the evidence is overwhelming and the defendant is guilty, it doesn't matter unless the jury actually issues a verdict declaring him to be so.  The mummery is important because the jury has a role to play and has to play it, even if the result is a foregone conclusion.  Because sometimes, it won't be.

The Fifth Circuit confronted a similar situation, in which after the defendant took the stand at trial and basically confessed to the crime, the trial court told the jury to "go back and find the Defendant guilty."  Not surprisingly, the Fifth Circuit reversed those convictions, too, for reasons similar to the Fourth's.

The Supreme Court encountered another kind of important mummery in a bizarre case out of Illinois.

The defendant was charged with various offenses (including the wonderfully vague "mob action" - presumably the opposite of "Love Action") and scheduled to go to trial in March 2009.  Trial was repeatedly delayed, however, because the prosecution couldn't bring the victims of the alleged offenses in to testify.  Finally, more than a year later, the trial court decided enough was enough, although it delayed the start of trial on that particular day as much as it could (and helpfully suggested that the prosecutor "might want to send the police out of find these two gentlemen").

But when it came time to start trial, the witnesses weren't there:

THE COURT: . . . . It’s a quarter to eleven and [the witnesses] have not appeared on their own will, so I’m going to bring the jury in now then to swear them.

[The Prosecutor]: Okay. Your Honor, may I approach briefly?

THE COURT: Yes.

[The Prosecutor]: Your Honor, just so your Honor is aware, I know that it’s the process to bring them in and swear them in; however, the State will not be participating in the trial. I wanted to let you know that.

THE COURT: Very well. We’ll see how that works.

Here's how it worked.  The jury was sworn, the judge asked the prosecution to make an opening statement, and the prosecutor said:

Your Honor, respectfully, the State is not participating in this case.

The prosecutor said the same thing when the judge asked the state to present its first witness.  After that, the defense moved for a judgment of acquittal based on the state's failure to present any evidence.  Again, the prosecutor refused to participate, so the defendant was acquitted and the charges dismissed.

The issue for the Supreme Court arose when the state appealed and the defendant argued that the Double Jeopardy clause - which bars the prosecution from having repeated bites at the apple - precluded any retrial.  Amazingly, the Illinois state courts agreed with the state that jeopardy hadn't attached because the state didn't actually participate in the trial once it started.

The Supreme Court rejected that conclusion in the harshest way possible - in a unanimous per curiam (meaning "by the court" - it was so easy nobody had to sign a name to it) opinion without even waiting for full briefing and oral argument.  It reversed only on the cert pleadings - which happens, but is pretty rare.

It was so easy because this is one of those situations where there's a rule that says jeopardy attaches once a jury is sworn.  If you get acquitted after that, you're home free.  In fact, the Court held that there were "few if any rules of criminal procedure clearer" and the Illinois courts messed up by finding "anything other than a bright line when jeopardy attaches."  As in the cases discussed above, whether the defendant actually did what he was accused of is irrelevant - he was acquitted.  End of story, quite literally.

All of these cases show not only that there exists legal mummery in our criminal justice system, but that it relies upon it.

Mummery With Purpose

I wrote the other day that one of the reasons I like doing appellate law is that I like dealing with a settled factual record.  You can challenge factual findings on appeal, of course, but the standard of review is very tough and you're not likely to prevail.  Which means that, once a fact is found by the trial court, it's pretty much a fact for all time, even when it doesn't reflect actual reality.  It leads to some difficult conversations with clients who don't always grasp (or want to grasp) the difference between "legal" facts and "real" facts.

The most important "legal" fact is the fact that, once convicted, you're guilty of the crime.  Even if you didn't really do it (see Alford pleas, for instance), for all the courts care, you're guilty.  It works in reverse, too - if you've been convicted, but that conviction is set aside and you're not retried, you're innocent, at least in the eyes of the law.  That's one reason that it bugs me when pro-death penalty people try to poke holes in exonerations by arguing that those folks aren't innocent, they just had their convictions overturned.  No conviction means legally innocent, dipshits.

Which is a circuitous way of getting to this article by Garrett Epps over at The Atlantic about the Supreme Court's recent decision in Navarette v. California.  The case arose when someone called 911 to report she had been run off the road by a particular pickup truck, giving a description that included the license plate number.  Officers found the truck, driving down the road, a while later and, without observing anything illegal or problematic, pulled the truck over, supposedly to make sure the driver wasn't drunk.  He wasn't drunk, but he was hauling a good amount of marijuana.  He tried, unsuccessfully, the suppress the marijuana as the fruit of an illegal stop.

The issue for the Supreme Court, therefore, was whether the tip to 911 provided enough evidence of wrongdoing to provide reasonable suspicion to support a stop.  In making that analysis, it's important that the Court figure out whether the tip was from a known informant or whether it was anonymous.  A tip from a known source who has proven to be reliable in the past is pretty much iron clad - it's going to provide reasonable suspicion.  An anonymous tip not so much.  In a case back in 2000, the Court held that an anonymous tip that does no more than identify a person and make a claim of illegal activity isn't enough to support reasonable suspicion.

So that distinction is kind of important, and it played a role in Navarette.  As Epps explains:

As it reached the Supreme Court, thus, Navarette was a case about anonymous 911 callers. But the 911 call in Navarette was not, in what for lack of a better word I will call fact, anonymous at all.

According to the record in the case, the caller gave the 911 operator her name. But at the outset of the trial, the prosecutor summoned the wrong 911 operator and wasn’t able to get the actual recording of the call into evidence. The case had to progress as if the call had been anonymous.

Epps gets the process right, but doesn't appreciate what it means.  He argues that judges "get to live in the land of 'conjecture or fiction.'"  He goes on:

The majority relies on the idea that anonymous tips won’t happen; in a case where one didn’t happen, is there really any basis to assess whether one will? The dissent says that we don’t know whether the caller in 'the present case' knew that her call wasn’t anonymous. Except, well, we do, since she, well, gave her name. So 'the present case surely' suggests none of the [parade of horribles] Scalia claims it does.

What Epps misses, willfully or otherwise, is that, legally speaking, the call was anonymous.  It doesn't matter what some out of court information tells us.  The prosecution has a burden of proving the reliability of a tip.  One way to do that is to show that it's not anonymous.  The prosecution failed to do so in this case, for whatever reason.  Therefore, it's an anonymous tip.  To treat it otherwise would allow the prosecution to shirk its burden and make its case easier.

Which is not to say that Epps doesn't make some good points.  He's correct that both the majority and dissent (a Thomas v. Scalia affair) need to do some mental gymnastics (or "legal mummery" - good phrase) to make their arguments because the tip is treated as anonymous, but that's par for the course.  What matters is who stuck the landing at the end of their routine?  On this one, it's Scalia.

Think of it in a sporting sense - replay after replay may show that that guy who just scored to knock your team out of the World Cup was offside, but the only reality that matters is that the linesman didn't call it.  Same thing in the game that is law - once something becomes a fact, reality takes a back seat.

A Shocking Litigation Strategy

When I was in law school I didn't plan to be an appellate specialist.  Hell, I didn't even know such beasts existed outside of a few big money firms where I would almost certainly not go to work.  I planned to be a litigator, to be the guy indignantly objecting in front of a jury, rather than the one calmly discussing the issue with a panel of judges months later.  But I've come to enjoy how appeals rely on a set universe of facts (for the most part) and are fairly predictable, at least when it comes to how arguments proceed.

I can confidently say that I will never experience anything like this while arguing before the Fourth Circuit.

A lawyer in Utah named Howarth was cross examining an expert witness, Dr. Meliopoulos.  It was, according to a court decision, an "aggressive" cross examination, which is one of those things that don't always come across on the cold written page of a transcript.  At some point, Howard handed the doc a pen, only it it wasn't actually a pen.  It was, as the court described it:

an electronic device disguised as a retractable pen, and Mr Howarth represented it to be a pen.

The court further described the device as one that:

is sold as a novelty item and is designed to give unsuspecting individuals an electric shock if they press the button to extend or retract the pen cartridge.

The product came with multiple warnings about health conditions, including that it was "not recommended" for those over 60 years of age.

Guess how old Dr. Meliopoulos is?  Over 60, at any rate.

Howarth proceeded to question the doctor in a way that required him to press the button and get shocked.  It's unclear why this was relevant to the proceedings although Above the Law has some more details:

Dr. Meliopoulos explained that a person wouldn’t even feel it if they completed the circuit on a 1.5 volt AAA battery. That prompted Howarth to say the following:

a. 'Sir, you just told the jury that if you completed the circuit with this AAA battery, you wouldn’t even feel it right?'

b. 'Sir, in this pen, I put a AAA battery. The circuit will be completed when you press the back of the pen. Would you like to see whether you can feel the AAA battery, Sir?'

c. '[g]o ahead and push the back of the pen and tell the jury whether you feel it or not.'

Meliopoulos complied, which he probably shouldn’t have. Because electric shock pens like this may run on 1.5 volt AAA batteries, but they also contain a transformer to convert the DC power of the battery to AC current. Delivering up to 750 volts. That is more than enough to kill someone with certain health conditions. Given that Dr. Meliopoulos is over 60, Howarth probably should have asked about his health before jolting him.

Even if it was relevant, being sneaky about it was probably the wrong way to go.

That's certainly what the court concluded.  It found that Howarth had displayed a "lack of candor to the tribunal," which is legalese for he bullshitted it, and that he battered Dr. Miliopoulos during his cross examination.  As a result, Howarth was prohibited form cross examining any more witnesses and forced to pay a $3000 fine.

I have a couple colleagues who had civil practices before they moved into a public defender office.  Without fail, they do not miss the chicanery and stubbornness that seems to rule the world of civil litigators.  Given the stories they've told, I'm not sure that Howarth is as much of an outlier as the court seems to indicate.

I guess I'll stick to the more refined world of appellate practice!

Some Thoughts on Town of Greece

Last week the Supreme Court decided the Town of Greece case, in which it blessed the appropriateness of regular sectarian prayer during city council meetings.  I'll not go over all the details here, but rather point folks to good writes ups here and here (via) that explain what the holding was and how the majority got there.  I do have a few additional thoughts, however.

Given that everybody on the Court accepts the continuing validity of the Marsh decision, which approved of an opening prayer in a state legislature, the majority didn't have far to go to reach the same conclusion here.  That was partly due to the plaintiffs themselves.  Per the majority, this was their goal in bringing suit:

They did not seek an end to the prayer practice, but rather requested an injunction that would limit the town to 'inclusive and ecumencial' prayers that referred only to a 'generic God' and would not associate the government with any one faith or belief.

In light of that litigation strategy, I think it was doomed from the start.  Reasonable compromise may be an effective political strategy (although see), but rarely a legal one.  Compared to what the plaintiffs were asking for, what the town of Greece was already doing wasn't all that different.  At most, it was a difference in degree, not in kind.  Hard to force a court to see the injustice in allowing the status quo to continue.

Having said that, I think Kagan does a good job of showing how the situation in town of Greece was really quite different from Marsh and provided a basis to come to a different conclusion.  Unlike Marsh where, by the prayer defenders' own argument, the prayers at issue were directed only at legislators (and where it was changed in response to a single objection from a Jewish legislator), the context of the town of Greece's prayers were as part of, and prelude to, proceedings in which citizens directly interact with their government.  As she put it in her introduction:

Yet our Constitution makes a commitment still more remarkable— that however those individuals worship, they will count as full and equal American citizens. A Christian, a Jew, a Muslim (and so forth)—each stands in the same relationship with her country, with her state and local communities, and with every level and body of government. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American.

Note, however, that in her paean to inclusiveness, Kagan skips over/ignores the atheists, agnostics, or other folks who simply aren't religious.  It's an effective reminded that, for all the various religious squabbles that happen in this country, we nonbelievers aren't even considered in most instances.  Kagan has beautifully written about the need for the government not indulge both country and western, but leaves out any mention of the techno jazz trip-hop folks.  And so it goes.

I would have joined Kagan's opinion.  Actually, I'd probably gone all liberal Thomas and write a separate opinion going back to the underlying law and calling it out for being wrong.  Having said that, I think the space between the majority and dissent in this case is pretty tight.  I also think the knock-on effects of the ruling are pretty obvious.  Already we've had the irreligious and minority religious folks chomping at the bit to be included, while at least one Christian in a position of authority has decided to exclude anybody he doesn't like.  This is what happens when we turn regular business meetings into places of worship.

One thing that I find odd about Marsh, and the majority opinion on which it was based, is that it rests heavily on the practice of the initial Congress in having opening prayers.  I understand the appeal of looking at what the Founding Fathers did, but they weren't great about following their own constitutional commands.  How else do you explain the Alien and Sedition Acts, which criminalized dissenting political views?  As Justice Brennan put it in a book, “the ink had barely dried on the First Amendment” when Congress passed those acts.  Those acts were so repugnant to a modern understanding of the First Amendment that the Supreme Court recognized that:

[a]lthough the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.

Politics happens and it has always happened.  Looking to the behavior of elected officials as a guide to our higher Constitutional principles is a fool's errand.

While it's important to note that the plaintiffs in Town of Greece weren't trying to stop the prayers, one of the plaintiffs was (so I've read) an atheist.  I sometimes see, particularly in Facebook discussions, Christians who wonder (sarcastically, I assume) why atheists get so "scared" about things like this when they don't really believe in God anyway.  Speaking only for myself, atheists aren't "scared" about the content of prayers themselves, but we are concerned about the power of the state being co-opted by religious groups.  We're angry that the First Amendment seems to mean so little in such situations.

And the harm suffered goes beyond mere hurt feelings:

the harm is that the legal relationship between a government and its citizens has been altered, so that minorities now stand in relation to government as minorities, rather than simply as Americans. Government prayer renders them separate members of the political community, regardless of how they feel subjectively. Justice Kagan is careful about this in her dissent. Every time she describes the harm, she says that citizens of Greece “become partly defined by their creed,” or that the town’s prayer 'alters a dissenting citizen’s relationship with her government,' or that the member of a minority faith 'becomes a different type of citizen ... she stands at a remove, based solely on her religion, from her fellow citizens and from her government.' Constitutional harm of this type is not about the subjective feelings of sensitive minorities, and it is not something that can be avoided by desensitizing them.

Kagan goes through several hypotheticals where a non-participant in the prayer then has to turn around and ask the governing body to take some action on their behalf.  There are reasons we'd never allow a trial to be begun with a prayer, lest any of the parties feel they were behind the theological 8-ball from the very beginning.  Why should a town council meeting be different?

At bottom, what we nonbelievers can't quite figure out is what the purpose of these prayers are.  Why start a business meeting with a plea to the almighty?  Here's what Kennedy says it's for:

As practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society.

If that's the goal, then I think we can safely conclude that these kinds of prayers are empty exercises.

Which means, in the end, this might all be a bunch of sound and fury (with the requisite helping of idiots) signifying not an awful lot.  I hope so.

Sweet Juicy Justice

I've waffled on before about how the criminal justice system really isn't about "justice" all that much, in the end, at least.  Over at a public defender, Gideon examines that concept in relation to a trio of high-profile cases in the news recently.

One is the story of an heir to the du Pont family fortune, Robert H. Richards, IV, who received no (active) prison time after pleading guilty to sexually abusing his three-year old daughter, which is causing outrage because the sentencing judge indicated that the guy "will not fare well" in prison.  No kidding.

Another is the story of a guy who murdered a doctor during a robbery gone bad.  He "had a long history of delusions about communicating directly with God," which some folks might find just a bit crazy.  He was convicted anyway, partly based on logic (loosely defined) like this:

'He’s sick, but I feel like he knew what he was doing,' said a juror, Dana Torres, 27, a construction worker. 'For me, if he had said Satan told him to do this, it would have been a different story.'

Yikes.

Finally, there's the story of a homeless woman who left her children in her car while she went inside for a job interview.  She was arrested for child endangerment.

Is there a common thread that runs among these cases?  Gideon says:

The three stories are disparate and the memes surrounding each are indisputably different, but don’t be fooled: they are, at essence, about one thing – the utter uselessness of our prisons and the inability of our justice system to hand out anything that should remotely be considered 'justice'.

He's right.  At best, the system is designed to provide something vaguely like justice most of the time, through a procedural scheme that applies in every case.  But no system is perfect (consider just the human element) and even if it does well enough in the mine-run of cases, it won't work all the time.  Getting "justice" in every case would require wide discretion and constantly shifting standards that would make anybody nervous.

Gideon also does a good job digging into the facts of the first case, which are much more complicated than most media screamers indicate.  And, anyway, the meaning is lost in the shouting:

That’s not to say that there isn’t a problem with wealth. Mr. Richards got to go home because he needed treatment and he was able to afford to go to a clinic in MA to get that.

The real take[a]way from this should be not that Mr. Richards got a break, but that he got fair treatment for himself because he was rich and thus, there are hundreds who deserve the same but can’t get it because they are poor.

He goes into even more detail about the case and the outcome here.

While I'm harrumphing Gideon, I want to point out another thing he says:

As I’ve said repeatedly, prisons aren’t a fun place at all. They’re miserable, dank, scary and smell of piss and shit and blood and tears. I’d probably try to kill myself within the first 24 hours and who are you kidding, so would you.

A thousand times this.  Anybody who talks nonsense about how good inmates have it or about "country club" prisons has never been in one or talked to anybody who has.  Which is one reasons why, sometimes, it's so hard to figure out just what "justice" is.

Ghost Dope Strikes Again

A little while back I mentioned the concept of "ghost dope" in federal criminal cases, which is the relevant conduct that the Government tries to load on a defendant during sentencing.  I made a passing reference to the fact that evidence about ghost dope doesn't need to be presented to a jury (or, in fact, the judge in the case I was talking about) and can even be rejected by a jury.  A recent decision from the DC Circuit brings that part of the phenomenon into stark relief.

Doug Berman has the basics:

Ball put the government to its burden of proof concerning allegations of a massive drug conspiracy and murders; a very lengthy jury trial led to Ball being acquitted in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment save for one crack distribution count related to a $600, half-ounce, hand-to-hand crack-cocaine deal in 2001.

In spite of the jury's verdict, the district court took all of that acquitted conduct into consideration at sentencing, imposing a 225-month sentence, near the statutory maximum for the single offense for which he was convicted.  Berman argues that recent Supreme Court decisions imperil the ability of judges to do just that - consider acquitted conduct at sentencing.  Over at The Volokh Conspiracy, Paul Cassell (himself a former district court judge) argues differently, that what happened to Ball is perfectly OK under existing law.

In terms of what the law is, I'm afraid Cassell is right.  Ball was convicted of a charge that carried a sentence of anywhere from zero to 20 years in prison.  Sentencing law (federal in particular, but most states work the same way so far as I know) is designed around providing the judge with all the information he could possibly want when making a decision about what sentence to impose.  As it exists now, it's hard to argue that some facts should be off limits because a jury failed to find they existed beyond a reasonable doubt, a higher standard than applies at sentencing.

However, in terms of what the law should be, Berman is on the right track.  Ask 10 people on the street if you could be sentenced to a longer prison term based on stuff a jury said you didn't do and most, if not all of them (assuming there were no lawyers in the sample), would say no.  It goes against something very fundamental to our criminal justice system to just ignore what the jury finds and move along.

The problem here is largely attributable to one person - Ruth Bader Ginsburg.  In 2005, the Supreme Court decided that the Sentencing Guidelines - mandatory at the time - violated the Sixth Amendment right to a jury trial because they forced judges to increase sentences based on facts found by the judge.  That was a 5-4 decision.  In the second half of that opinion - also a 5-4 opinion - the court remedied the problem by making the Guidelines advisory, rather than requiring the Government to prove all the sentencing facts beyond a reasonable doubt.  

Why blame Ginsburg?  Because she was the only justice in the majority in both decisions.  Not only that, she didn't write a separate opinion explaining her position.  As a result, we're left with a system designed by people who didn't think there was a problem with the system in the first place.  That's not a recipe for success, or at least one that makes sense to the general public and, more importantly, individual defendants.

I'll be the first one to admit that the legal system is complex enough that "lay people are confused by that" is not a good reason to do away with something.  On the other hand, when most of the public has a gut feeling that something is "wrong" in a moral sense with the way the law operates, it might be time to reconsider how its done.

UPDATE: Will Baude, also writing at Volokh, has a different angle on this case:

If appellate courts affirm a long sentence only because of the judge-found facts, then they are essentially creating a new common-law maximum sentence; they’re implying that a 19-year sentence for simple possession would be unreasonable, but that sentence for a massive conspiracy would be reasonable.

That means that there’s a maximum sentence imposed on the district judge from above, unless the judge finds a fact that justifies a higher sentence. This kind of imposition, Apprendi and Blakely and Booker said, was unconstitutional. It’s not the district judge’s decision to issue a long sentence that’s the problem; it’s the requirement that the judge justify that sentence using judge-found facts.

 That comes from a concurrence by Scalia and, while Baude is correct that the Supreme Court has not rejected Scalia's take, neither has it adopted it in a majority opinion. It's certainly an argument worth making, but it isn't a clear winner.

Playing In A Rigged Game

When people talk about our Anglo-American justice system, in contrast to civil law systems around the world anyway, the word they most often use is "adversarial."  That is, it's based on the idea of two interested parties of relatively equal strength battling it out so as to allow the fact finder (be it judge or jury) to ferret out the truth.  That's as opposed to the inquisitorial system of continental Europe, which is driven by the judge herself.

It's a nice idea, but it very rarely works out that way in the real world, particularly when it comes to criminal justice.  Truth is, in terms of resources the prosecution and it's related agencies - state or federal - have much more power than most defendants.  Moreover, prosecutors often have the unfettered discretion of charging decisions, which can turn a minor controversy into a major prosecution.  In addition to all that, there's the simple fact that the rules of the game don't apply equally to both sides.

That's something I wrote about a long time ago on a blog far, far away.  But I'm motivated to write about it again thanks to a recent decision of the Fourth Circuit that really puts things into sharp relief.

The defendant in US v. Robinson pleaded guilty to several drug offenses, including conspiracy to distribute crack cocaine.  The case is not about his guilt, but about his punishment.  Under the US Sentencing Guidelines (which, while not mandatory are nonetheless given great weight) a sentence in drug cases is largely driven by the amount of drugs involved.  How much crack did Robinson admit to selling during his guilty plea?  It doesn't matter, because the Guidelines are based on "relevant conduct" - that is, everything you've done in relation to a particular crime, whether found by a jury or not.*

Relevant conduct often ranges far beyond the facts of the offense itself because it only has to be proven by a preponderance of the evidence, rather than beyond a reasonable doubt.  In the trade we even have a term for the drug weights that come out of nowhere following a conviction to bolster the relevant conduct finding.  We call it "ghost dope," for reasons that should become obvious.

When the presentence report came back in Robinson's case it attributed more than 1.4 kilograms of crack to him based entirely on statements from a witness named Battle.  Robinson objected, arguing that Battle had given conflicting stories in the past.  In addition, Battle had specifically said Robinson sold him PCP cigarettes during a particular period of time when Robinson was in another state.  In other words, Robinson argued that Battle wasn't reliable and his statements - nothing produced under oath, mind you - should be disregarded.

At sentencing the Government did not produce Battle to testify, even though it had notice that his reliability had been questioned and the Federal Rules of Criminal Procedure provide for such things to be hashed out at sentencing.  Instead, it argued that there were three other witnesses, also not present for the hearing, who could provide information that would make Robinson's situation even worse - i.e., attribute even more ghost dope to him.  Their statements somehow did not "make their way" to the probation officer who prepared the presentence report.
As I wrote over at the Fourth Circuit blog:

The district court presented Robinson with two alternatives.  First, it would conclude the sentencing that day 'with what's here and now, and I'll make the decisions that I need to make by a preponderance of the evidence.'  Second, it would continue the hearing, 'unwind the whole thing,' and get a revised PSR that would include the Government's new witnesses.  Robinson chose to go ahead, after again asserting that Battle was not credible.

Robinson was sentenced to 140 months in prison.

On appeal, he renewed his argument that Battle wasn't credible and he should not have been attributed all the relevant conduct found by the district court.  This is a hard argument to make in the first place - it's a factual question, subject to a very deferential standard of review.  But in this case, the Fourth Circuit didn't even consider it, concluding instead that Robinson waived his right to challenge the relevant conduct determination by choosing to go forward at sentencing.

If something seems amiss about to you, you're right.  Judge Diaz, who dissented, pointed to why:

The majority declares that Robinson made a considered decision and should have to live with the consequences. But that rationale upends the equities--and, indeed, facts--of the case before us. It is not Robinson who seeks a mulligan, but the government. 

When Robinson objected to the PSR--before the hearing--the government was put on notice that its 'evidence' was suspect. Yet it did not produce Battle. Nor did it produce the probation officer who interviewed Battle. And it had never even submitted the other witnesses’ statements to the probation officer in the first place. Despite its lack of preparation, the government was presented--as the majority sees it--with a win-win scenario: either it would have a second chance to do the job right (securing an even longer sentence), or it would get a pass on the evidentiary standard.

Remember, the burden of proof is supposed to be on the prosecution.  One could argue that it's always better for the court to have more facts when it makes a decision, but that's not the way an adversarial system works.  The parties are - or, rather, should be - stuck with what they present to the court.  There shouldn't be do overs in order to achieve the "right" result.

I wonder sometimes if the fact that our criminal justice system is basically a game - one with high stakes, no doubt - doesn't hurt defendants who are caught up in and and truly guilty as charged.  It's easy in such circumstances to focus in on the game itself, the players, and how they're not following the rules, rather than your own culpability.  If we care at all about rehabilitation, that's probably a bad thing.

I suppose I'm guilty of that too, when it comes right down to it.  Like the song says, "it's just a game, and all I can do is play."  The least the powers that be can do is make sure the rules apply to all the players equally.

* In fact, even if a jury acquits you of a particular transaction, a court can still hold it against you at sentencing.  That's a topic for another day.