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439. Armed incoherence watch

The Chicago gun control decision was a great liberal triumph, the culmination of nearly 50 years of such triumphs.  It shows the wonderful influence William Brennan continues to exert beyond the grave.  (See post 365.)  

Justice Brennan spent much of the 1960s and 1970s voting to make this or that portion of the Bill of Rights "applicable to the states."  Sadly, he died with his great work unfinished.  Now soulmate Samuel Alito has picked up the torch.  Brings a tear to the ol' liberal eye, doesn't it?

Just look at the glee with which Alito rubs liberals' noses in it:

Third, JUSTICE BREYER (he means "Justce Breyer") is correct that incorporation of the Second Amendment right will to some extent limit the legislative freedom of the States, but this is always true when a Bill of Rights provision is incorporated. Incorporation always restricts experimentation and local variations, but that has not stopped the Court from incorporatingvirtually every other provision of the Bill of Rights. “[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U. S., at __ (slip op., at 64). This conclusion is no more remarkable with respect to the Second Amendment than it is with respect to all the other limitations on state power found in the Constitution.

Sad to say, the hack is right.

The point of the decision isn't that citizens have an unrestricted right to bear arms, but only that limitations on the right to bear arms must be imposed or approved by judges rather than through democratic means. 

Justice Scalia had said just that very thing in the earlier decision striking down gun control legislation in that notably firearm-starved zone, the District of Columbia.  In typical Scalian fashion, he said it twice, first in positive terms, then by bombastically refuting himself:

First the positive statement of the point: "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

Then the belligerent reversal: "The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon."

Can't you just hear Scalia explaining why that's not a self-contradiction?  Judges don't have the power to decide on a case by case basis whether the right is really worth insisting on, but only to decide whether the weapons at issue are of the sort "typically" possessed by, etc.  Which is an entirely different thing in every way ... except in the one way that matters.  Under either formulation, judges have the final say.  On a case-by-case basis. 

I love Scalia's string of weasel words.  How does a judge access the data necessary to determine what weapons citizens "typically" keep?  They do so the old-fashioned judicial way: they make it up.

The really cute thing is the "law-abiding" and "lawful," since almost by definition the Supreme Court's second amendment rulings will benefit only those citizens who don't abide by gun-control laws.  So a "law-abiding citizen" is, it would seem, one who decides which laws to obey.  And suddenly we're playing footsie with the sovereign individuals.

Professors David S. Cohen and Maxwell Stearns, writing in The National Law Journal, point out that the city of Chicago actually won both of its constitutional arguments and still lost the case.  The lesson they draw? 

What the Court needs is someone who can forge consensus, not only by uniting with her natural allies but also by occasionally persuading those on the other side. An effective coalition builder might have avoided the McDonald outcome by convincing at least one conservative member of the Court of the importance of an agreed-upon rationale as a precondition to upsetting long-standing urban policies throughout the United States concerning gun control.

The assumption from which the professors proceed is that the justices make up constitutional rationales as they go along, and have absolute freedom to adopt or discard constitutional principles as the most persuasive of their colleagues urges them.  The source of constitutional authority is the "coalition."

In other words, the justices aren't enforcing a written Constitution.  They're writing it.


438. Resisting reality

Recently I completed a series of all-day training sessions for law enforcement in outlying areas of New Mexico, a state with more than its share of outlying areas.  My fellow-instructor was a retired officer, and it was interesting to hear the assembled officers, from a variety of forces, complain about prosecutors and their reluctance to take cases to court.

For the last 90 minutes of the day, when everyone was impatient and tired and hot and ready to go, I talked to them about preparing a case for the prosecution.  I'd begin by telling them that everything they've been saying about prosecutors, prosecutors say about them.  That would get a couple uneasy chuckles.  And then I'd try to explain the lack of communication.

The key point I wanted to get across is that when prosecutors use the term "evidence," they don't mean the same thing cops mean.  My PowerPoint would show three images of a horse-zebra cross - first the image from the web, then the same pictured fuzzed up with PhotoShop Elements.  The first, I'd say, was reality - what actually happened to the victim.  The second was what law enforcement learned about the crime, which is never everything.  Complete knowledge isn't humanly possible.

And then I'd show a third slide, fuzzed up even more, to the point that it was difficult even to be certain it depicted an equine of any type.  That, I'd say, is what judges allow jurors to learn about what law enforcement has learned about reality.  That's the distance from reality at which prosecutors are forced to work.

The single richest source of appellate reversals in New Mexico is reality.  When jurors get an excessively clear picture of what actually happened, the judges get nervous.  The grounds for reversal might be Rules 403 or 404, or the hearsay rules, or any of various constitutional provisions, modified on the spot as needed to justify reversal -- the details are of no interest to anyone but lawyers, and little enough interest to them.

The only thing that matters is that convictions are reversed if jurors are allowed to learn everything law enforcement has found out about a crime.  In New Mexico, that's pretty close to automatic, at least in cases against women and children.  Our district judges know it, and any district attorney interested in how conviction rates will play in the local papers will learn soon enough.  (Hey, you don't get to be #2 by accident!)

To illustrate the point, I used a notorious example.  After Shawn Jacobs, a sadistic killer of a teenaged girl, was arrested for the crime, he filled out magazine subscription cards from prison and sent a gift subscription, in the murdered girl's name, to her mother.  He also subscribed to various magazines in the girl's name and sent them to the mother. That way she would be made to think of Jacobs taunting her from prison every time an unwanted magazine -- or an invoice -- showed up in her mailbox.

Jacobs' defense attorney stipulated that it was his handwriting on all the subscription cards.  There was no doubt that he was responsible, and that he was motivated by a particularly vile combination of sadism and narcissism.

The New Mexico Supreme Court reversed his death penalty because the jury had been allowed to learn that indisputably true fact about Jacobs and what went through his mind.  (Paragraphs 66-69.)  The objectionable point was that the evidence was not only true but, the justices concluded, likely to have been considered important by the jurors.

The Rules of Evidence and the ever-morphing exclusionary rules exist to prevent jurors from becoming fully-informed about the cases they're called upon to decide.  That's not a side effect.  It's the point.

Now, in many ways it's not a perfect illustration, because the Supreme Court was going to reverse the death sentence no matter what.  The actual reason for the reversal was coincidental, and if it hadn't been the magazine subscriptions it would have been something else. 

The justices were deciding the case strictly on emotion, specifically their feelings about capital punishment.  I would have respected them more if they'd come out and admitted that they just refused to permit a prisoner to be executed, regardless of the laws enacted through democratic means, but the conventions of the profession being what they are, and the profession being so convention-bound, I understand why they felt constrained to express that meaning in code.

Nonetheless, the Jacobs case remains a vivid illustration of the broader point, and telling the story keeps the audience's attention even at the end of eight hours.

But at one training, in Española, one of the attendees raised her hand and said she had served on the Shawn Jacobs jury.  The magazine subscription information, she said, played no role in the decision to impose the death penalty.  "It didn't once come up in our deliberations."

Not only did the Supreme Court's opinion hold that a jury's decision should be based on ill-informed suppositions in preference to verifiable information uncovered by law enforcement, the opinion itself was an example of just such ill-informed supposition.  It was too perfect.


437. Megalomania watch

From Seattle, where you'd think they'd really have better things to do with their time:

A King County judge has been accused of violating the state's Code of Judicial Conduct for speaking out and writing on behalf of Amanda Knox during her murder trial in Italy.

Superior Court Judge Michael Heavey was outspoken in his criticism of the Italian judicial system and steadfast in his belief that Knox was being railroaded.

The Commission on Judicial Conduct, in allegations filed Tuesday, said Heavey's widely publicized opinions violated fundamental canons of judicial integrity and objectivity.

The allegations say Heavey, a 10-year veteran of the Superior Court bench, attempted to influence the outcome of Knox's trial by writing to a trio of Italian judges on King County court stationery. He also allegedly directed county court staff to write letters.

He tried to fix the ticket, and predictably enough says, as every judge who ever fixed a ticket for a friend likewise says, "my actions were to serve the interests of justice."  As we all know, "justice" is an exact synonym for "whatever result a judge wishes to achieve on a given day."

The Washington Commission on Judicial Conduct accused Heavey of violating two of the nebulous ethical rules governing judges.  The first is the stricture that "Judges shall uphold the integrity and independence of the judiciary."  You don't need to be a lawyer to see the loophole: it doesn't say which judiciary, and Heaney's remarks (the Italian judicial system "bordered 'on diabolical'") were directed toward the Italian judiciary, and surely there's no reason the Washington judicial discipline system should be worried about upholding their integrity and independence?

(Incidentally, what borders on the diabolical?  The tenth and eleventh circles of hell, the ones Dante overlooked?  Hell's suburbs? - hey, I've been there.)

The second charge accuses Heavey of violating the pseudo-rule that says "Judges should not lend the prestige of judicial office to advance the private interests of the judge or others,"  which is pretty much what Heavey admitted doing: going to bat for someone who had been his daughter's classmate at a private school.

The reference to the private school fills in the backstory a little.  In America, we have a strong tradition that no one well-to-do enough to hire his or her own PR firm may be convicted of a crime.  Furthermore, we prefer our attractive young women to be victims rather than perpetrators.  In fact, even if a court finds them to be perpetrators, we'll insist on treating them as victims

Curiously, though, the Washington commission failed to give the best and most obvious reason for removing Heavey from office: he's delusional.  The guy believed people in Italy would care that he believed they had made "illegal and false statements." He even thought the phrase "illegal statements" had meaning, and that professionals in Italy would alter their behavior after hearing the Honorable Michael Heavey use it.

Megalomania is the most debilitating of the common occupational diseases to which elevation to the bench exposes a lawyer.  Its public manifestation ought to qualify any judge for an instant pension.  "Here's your plaque, Judge Nero, and the men in the white coats will show you where we're going to hang it."  And then change the locks, quickly.

But going nuts on a daily diet of power isn't against the Code of Judicial Conduct - an omission that is itself a symptom.


436.  Astorga

On Friday, Michael Astorga was convicted of murdering Deputy Sheriff James McGrane in an Albuquerque courtroom.  I wrote about Astorga in the not-quite-published book Whatever Happened to Justice?  This is what I wrote a couple years ago, updated to reflect developments since then:

I worked on a case involving the Astorga brothers, Michael and Matthew.  They did something to irritate a drug dealer named Jose Maldonado Sigala, street-named Chemo.  Chemo shot up a truck belonging to one of them.  So they armed themselves with a sawed-off shotgun and spent five hours hunting their tormentor.  When they finally found him, Matthew blasted him five times at very close range.  It worked. 

At trial, their story was that Chemo somehow got the drop on Michael and was about to shoot him in the head.  Matthew heard the pistol cock and, knowing his brother's very life was at stake, fired first (and second, and third ...). 

Others were present at the scene and none observed a gun in Chemo's hand.  No gun was found at the scene.   But the brothers stuck with their story.  Matthew got on the stand and said he would do it again in the same circumstances: "I saved my brother's life is what I did."  The jury didn't buy it and convicted him of murder, although it acquitted his brother.

The New Mexico Court of Appeals reversed Matthew's conviction, holding that the trial judge should have instructed the jury on manslaughter, a crime that carries a much shorter prison term.  The appeals court's theory was that maybe Matthew made an honest mistake when he thought his brother's life was in danger – the exact opposite of what he said in his testimony, when he flat-out testified he would do it again. 

[All you lawyers out there know that manslaughter traditionally requires the killing be done in the heat of passion, before a reasonable person would have had time to cool down.  New Mexico's manslaughter statute follows the traditional line.  So the Court of Appeals was holding that a reasonable person could - Excuse me, I should have said, an ordinary New Mexican would arm himself with an illegal sawed-off shotgun and spend five hours hunting for the person who pissed him off, and shoot him five times, without calming down.]

In practical terms, the appeals court gave him the chance to tailor his testimony at a second trial to support an alternative strategy, letting him see if a different false story might prove to have greater jury appeal.  After the case was sent back to the trial court, Matthew was allowed to plead guilty with a sentencing cap and was out of prison in a few years.

I have no doubt the court would have decided the case differently if the victim had been someone the judges identified with – some middle-aged lawyer, say – rather than a gun-toting drug dealer with a nickname like Chemo.  [Note: I also think the jury would have convicted him of first-degree deliberate intent murder, which is what it obviously was - an assassination.]  But the reversal didn't really matter to my life.  After venting to sympathetic colleagues I moved on to the next case.

For the Astorga brothers, Matthew's victory on appeal was obviously a far more significant event.  What lesson did they learn from it?  Just a year or two afterward, a third brother, Anthony, learned that his wife, whom he was divorcing, had a boyfriend.  He shot and killed the boyfriend in front of two young children, one of them his own.  He eluded police for months before finally getting caught during a traffic stop. 

Next, according to police, Michael shot and killed a childhood friend in a dispute over a car.  He, too, managed to stay on the run for months before being stopped by a sheriff's deputy for a traffic infraction.  But, having learned from Anthony's experience, he shot and killed Deputy McGrane.

And then, on the day after Christmas, 2008, Matthew was in the news again, arrested in Kansas on a charge of shooting a man to death.  He went to the man's house, lured him outside, and shot him - another assassination.  In Kansas, though, he was convicted of first degree murder.

That's four more gun deaths attributed to the Astorga brothers, three of which have already resulted in murder convictions, since the New Mexico Court of Appeals reversed Matthew's conviction for blasting a man five times point-blank with an illegal shotgun. 

It's almost as if the lesson the Astorga brothers drew from Matthew's and Michael's experience at the trial for killing Chemo was that the risk of getting caught for shooting a man to death isn't sufficient reason to refrain from shooting a man to death. 

If that's the conclusion they reached, it wouldn't have been irrational.  But it was wrong.  Matthew got lucky the first time, and Michael got even luckier, but you can't count on luck.  Anthony and Matthew are already in prison for life, and Michael will share their fate pending appellate and habeas review.  [In theory he also faces the possibility of execution, though I can guarantee you it won't happen unless he volunteers.]

The Astorga brothers neatly illustrate how America achieved the industrialized West's highest rates in both homicide and incarceration: with its willed incompetence, our criminal justice system alternates between declining to punish and punishing severely.  We encourage violent criminals to feel invulnerable, then savagely demonstrate how mistaken they were to feel that way. 

Given the tender sensibilities of certain government officials, it might be necessary or at least prudent of me to spell out the obvious: I'm not saying the Court of Appeals caused the four subsequent gunshot deaths - the Astorga brothers were quite capable of causing them on their own.  (And I would hardly be surprised to learn that "four" is an undercount.)

But is it possible for anyone to believe the jury's and appellate court's decisions in the Chemo killing had no influence on the subsequent lives of the brothers?  After all, if the criminal justice system doesn't influence the behavior of criminals, why do we have it?  Of course the decisions influenced the brothers' lives.  The only question is: how?  What lesson did they learn?

The killing of Chemo was first degree murder all the way.  The jury gave one brother what amounted to a public-service pardon for it -- retroactive permission to hunt down and kill a person, when that person was a drug dealer with a sinister nickname who had shot up a car, so long as he didn't personally pull the triggers. 

The ultimate effect of the Court of Appeals' decision in the other brother's case turned out to be indistinguishable from a commutation, cutting the sentence by half.  (That was ultimately the prosecutor's decision, of course, not the COA's - in New Mexico, for some reason, a step-down plea bargain is traditionally offered following appellate reversal.) 

At the very least, we have to agree that Matthew's and Michael's experience with the legal system following the assassination of Chemo didn't deter the three brothers from committing the same crime again.

Is it really a stretch to suggest the lesson they took from the experience was the opposite of deterrence?


435. Talk as tough as you fight

It was refreshing to travel to South Carolina, the eighth most conservative state in the country.... Yeah, I know, I figured it would score higher than #8, too, but that's what Gallup says its surveys find

The campaign signs don't just identify candidates as "Republican" but as "conservative Republican."  Segregationist Strom Thurmond's child (one of the white ones) is running for Congress, and so is a weirdly ruby-lipped, dewlappy retired lieutenant colonel whose slogan is "Don't hope for a better America... demand it!"  They're both up against the child (white, judging from the pictures) of a former governor.  Chuck Berry once wrote, and Keith Richards frequently performed, a song about the last one's father (or maybe it was the grandfather).

And then there's a woman named Katherine Jenerette, whose slogan is "Fight as Tough as You Talk," which sounds like a bar challenge.  Indeed, it sounds exactly like the bar challenge attributed to ex-PM Gordon Brown by the Guardian in a magnificent April Fool's joke ("Step Outside, Posh Boy").

Ms. Jenerette's name brings to mind another South Carolina politician, the bribe-taking one who had sex on the Capitol steps (not with them, so far as is publicly known).  Still, Ms. Jenerette's  enthusiasm for Random Capitalization and run-on sentences really ought to compensate for the unfortunate echo of her name:

Between an out of control Federal Government in Washington D.C. and a Good Old Boys Club here at home, we need to Stand Our Ground and get Government out of our day-to-day lives so we can retain our God-given freedoms and businesses can grow, and people can get jobs and hold on to their hard earned money without being taxed to death and more, so I'm asking for your vote June 8th...

Doesn't it make you wonder what's more than death? It will be interesting to see if her Strong Philosophical Opposition to government interference with BP's day-to-day management of its oil wells turns out to be a winning electoral strategy.  (What?  Surely you're not suggesting she might make exceptions to her Philosophy?  That wouldn't be as Tough as She Talks.)

If we were to apply Ms. Jenerette's political philosophy to the regulation of violent crime in American society, what would we end up with?  We'd get government out of our day-to-day lives, so that, for instance, men could discipline their wives and children as they see fit.  We'd get government out of the business of regulating sexual relations, too.  If history is any guide, murder ranks high among traditional freedoms.  Such a criminal justice system would not attempt to "correct" imbalances in power by enlisting the state on the side of the weak against the strong.

A criminal justice system that put Ms. Jenerette's political philosophy into operation would bend over backwards to excuse the killing of human beings, for example by requiring self-defense instructions to be given on minimal evidence.  It would work hard to prevent government from interfering in sexual relations, for example by preventing juries from learning what a raped child said when, for a few moments, she felt unthreatened.

In short, a criminal justice system based on Ms. Jenerette's 19th century survival-of-the-fittest political philosophy would function exactly like New Mexico's 21st century criminal justice system.   The refreshing thing about being in South Carolina is that the politicians there talk openly about the principles that government officials here merely put into action.


Resilience project (a belated apology)

A truly concerned blogger would have posted this long ago.  To make it up to you, I feel terrible.  But I've been running myself ragged recently doing a new type of project, making myself into a reporter.  I'm gathering material for a book on resilience.

It all began with my idea to write a book about the exciting, cutting-edge science about the long-term effects of violence, the kind of thing our courts (including, let it be said, even the second candidate for sainthood named John Paul) (try Googling "John Paul Stevens big shoes" and watch what happens) take absolutely no, as in zilch, responsibility for requiring the rest of us to live with.

My agent pointed out, with the ruthless logic of the consumer society, that no one other than me could be other than repelled by a book about the long-term effects of violence and other trauma.

"Okay, how about resilience, the children who grow up in the worst sort of environments and nonetheless make their guardian angels proud by succeeding beyond all reasonable dreams?"

That, my agent thought, showed a certain degree of promise.   It would be uplifting.  Chicken soup for the intellectual's parched soul.  And it would still tell the same story about what the brutality embraced by our criminal courts is doing to the most vulnerable among us.

So last week I was in southern California - you know that earthquake in San Diego?  it was for my benefit, striking just as I was checking into the hotel - and the aftershocks, once I got to my room, were 25 cents cheaper than Magic Fingers - interviewing one victim of epic trauma and a startlingly original researcher into the long-term effects of adverse childhood experiences

This week I'm off to the Bay Area to interview in depth a couple other survivors.  A more dedicated blogger wouldn't allow that to distract him from his real life's work.  And, you know, my cats like it when I sit in front of the cat-sized radiant heater that is my antique cathode-ray monitor, so it's kind of ungrateful to them that I don't do it more often.  But (*sigh*) such is life, or (paraphrasing Elvis Costello) something quite like it.

Anyway, if you know of other resilient survivors of trauma, from refugees to the victims we churn out every day here in the U.S. of A., who would like to talk to a writer about how they overcame it, could you have them contact me, or tell me how to contact them?   (JudgingCrimes@gmail.com)

This is a preliminary description of the project (with the catchy working title of - wait for it - Resilience), prepared for my agent, bless her commercially-savvy heart:

Cutting-edge research in the last 20 years has finally proven Freud right, at least in his original insight.  Early childhood experiences can alter a person's entire life course, and even lifespan.  Children who suffer adverse experiences – including neglect or abuse, but also death of a parent, poverty, or parents' divorce – exhibit changes in their blood chemistry and brain structure that only in the past few years have become measurable by medical technology. 

Long-term studies on huge populations show a strong, proportional relationship between the number of adverse experiences in a child's early life and cardiovascular disease, some forms of cancer, hallucinations, obesity, depression, IV drug use, autoimmune diseases, sexually-risky behaviors and suicide attempts.  The list, unfortunately, goes on.

While the science is exciting, the results seem at first depressing – until one looks at the other side of the coin.  To say that children who grow up in adversity are at a greater risk for dire outcomes is another way of saying that many of them avoid such outcomes.  Many children with rotten childhoods are damaged profoundly, but many others are amazingly resilient.  They are, as the title of one landmark book puts it, Vulnerable but Invincible.

Resilience is a hot topic of research in the social sciences.  New discoveries come tumbling off the presses of a dozen scholarly journals.  From a professional point of view, it's easy to understand the scientists' excitement.  If we could bottle the essence of resilience and sell it as an elixir, we would provide a cure for many of the leading causes of premature death. 

But for a reader, the science means little until it is put into the context of individual lives.  Above all, resilience is the triumph of individuals, and the amazing human capacity for adaptation that allows some of us to thrive in the least-nurturing environments.  

Resilience tells the stories of remarkable individuals, describing their triumphs over trauma and adversity.  Interwoven with their stories are the related tales of a different series of triumphs – those of the scientists, from molecular biologists to anthropologists, whose discoveries have made resilience the 21st century's most exciting field of research.  Connecting lines are drawn from the science to the lives of individuals and back again.


434. Britney, Charlie and John

Isn't it exciting, in a guilty-pleasure kind of way, when celebrities live down to your worst opinion of them?  You know, like Britney Spears, Charlie Sheen, and Chief Justice John Roberts?

Texas Professor Lucas Powe predicted the justices would skip the State of the Union next year because their feelings were hurt that the mere President of the United States said, rather more concisely, what their own most senior colleague had just said about the Onion-worthy campaign finance decision.  (See post 424.) 

And, sure enough, Chief Petty is threatening to watch from home next year so he can keep his finger on the mute button.

Incidentally, the President's annual message to Congress, which the chief ridiculed as juvenile stuff - "a pep rally" - is actually required by the Constitution.  Unlike, say, the campaign finance ruling, or indeed most of what the Supreme Court does with its days.

"Onion-worthy" isn't an insult.  The Onion has high standards.  For instance:

WASHINGTON—In a landmark decision that overturned decades of legal precedent, the U.S. Supreme Court ruled 5-4 Tuesday to remove all restrictions that had previously barred corporations from holding public office. "This is an unfair, ill-advised, and tragic mistake," Sen. John McCain (R-AZ) said before boarding a flight to Arizona in response to primary poll numbers that show him trailing the Phoenix-based company PetSmart by a double-digit margin.

Why, after all, can't insurance companies hold political office directly, instead of buying their seats through intermediaries?  We have it on the authority of Justice Whatshisname, the one with the glasses, that corporations are persons.  How can "the Government" (as he calls popular rule) be permitted to discriminate between persons based on nothing but their reality or unreality?

The constitutional logic of the campaign finance ruling is that the people of the United States aren't permitted to make decisions concerning their own democracy, unless any five members of the Pantheon  think it's a good idea.

Compare this facade to this, make yourself forget that "facade" has a non-architectural meaning, and perhaps you can put yourself in the right frame of mind to believe the Constitution actually requires that result.  But I doubt it. 

Anyway, by ridiculing the very institutions of the Presidency and Congress, suggesting it's beneath the justices' dignity to step down from their friezes to mingle with that noisy rabble of elected representatives, Roberts underscored the anti-democratic essence of the decision, and indeed of all constitutional rulings.  The Supreme Court exists to protect the United States from democracy.

Roberts' very public defensiveness, like Alito's (see post 424), reveals his lack of confidence in the legal merits of the opinion he joined.  The opinion does speak for itself, but unfortunately it sounds like a young Jerry Lewis.

And by mixing it up on the political stage in this way, Roberts confirms his enemies' point: he's a political actor, and the ruling was a political act.

His point is that it's not just power without responsibility.  It's without accountability, too.  And don't you forget it.


433. Inexcusable and excusable

From a suburb of Seattle with one of those early-settler's-wild-guess-at-Indian-word names comes this story:

A King County District Court judge could be suspended for 90 days based on his conduct in an Issaquah courtroom.

Judge [name withheld] was censured April 10 by the state Judicial Conduct Commission for disrespectful behavior. Commissioners recommended to the state Supreme Court a 90-day, unpaid suspension for him.

The commission said Eiler belittled defendants and interrupted them while they were speaking.

I changed the pronouns in that excerpt just to allow you the surreal experience of imagining a male judge facing suspension on account of arrogant, belittling behavior.  The judge in question is named Judith Eiler.

In my book I tell the story of Judge Earl O'Connor of Kansas City, Kansas.  After his death, colleagues and proteges lovingly described him as someone who was always "in control," who had "a gruff persona on the bench and put lawyers through their paces." 

He didn't face judicial discipline for his rudeness.  On the contrary, the Tenth Circuit's website includes a long adulatory profile of him - which omits any mention of the single most important datum in his biography, which is that he was a murderer.  But then, Judge O'Connor "only" killed his wife before shooting himself - the pathological control freak's signature form of suicide. 

In just in the last few posts we've had one judge twice twice convicted in connection with incidents in which his female companions appear to have been treated ungently (see post 430) and a second judge who maliciously withhheld the protection of the law from female victims of abuse unfortunate enough to appear in his courtroom.  (See post 429.)

Neither of them was suspended from office for 90 days without pay, as the Washington Commission on Judicial Conduct recommends be done to Judge Eiler.

Across the country, it will be recalled, the Pennsylvania Judicial Conduct Board declined to investigate a detailed complaint about male Luzerne County judges selling children in exchange for kickbacks.  When it decided to give the male judges a pass, it was relying on them to provide evidence against their colleagues who was alleged to have a bad attitude, which the Board considered a more pressing matter.  Want to guess the other judges gender?  (See post 258, keeping in mind that the allegations against Ann Lokuta were made by black-robed psychopaths and their sycophants.


432. Near-term career-related uncertainties

My law school has been scaring me recently, which is pretty impressive considering it's been more than 24 years since I last darkened its doors, and nearly as long since it darkened my life.  For instance, the dean recently emailed me:

The current economic environment presents significant employment-related difficulties for all law schools, and I am cognizant of the anxiety that many of you face in confronting the near-term career-related uncertainties.

Frightening, isn't it? - the thought of "employment-related difficulties for all law schools."  I mean, if even a law school can't land a job...  Then again, "career-related uncertainties" are a lot less worrying than career uncertainties, and facing anxiety is better than feeling it.  Then again again, how can you face anxiety and at the same time confront ("to face in hostility or defiance") uncertainties? - by being two-faced, I guess.

The law school recently offered a "an alumni-oriented career webinar" (pronounced uh-oh) and the university-wide alumni association is chirping about "encore careers," presumably for those shown out the door to a prolonged standing ovation.

In the midst of this attack of insufficiently-opaque euphemisms, the University of Massachusetts-Dartmouth announced plans to open the state's first public law school, setting its tuition and fees at "about $23,500 for in-state students and $31,000 for out-of-state students."

Actually it's taking over a non-ABA accredited law school (remind me again how the ABA, a trade group, acquired such authority in the academic world) and proposing to double its size.  That appears to be a trend, according to the AmLaw Daily:

Negotiations are also underway between the University of California at San Diego and California Western School of Law, as are long-running merger discussions between the University of New Hampshire and the Franklin Pierce Law Center.

Want to know where it all leads?  Big Debt, Small Law explains it all for you.  (Hat tip, Ben Barlyn.)

One convincing explanation was offered by the former president of the University of Puget Sound, Susan Resneck Pierce, explaining the university's 1993 decision to sell its law school to Seattle University for what the website discreetly calls "an undisclosed sum."  At the time of the sale in 1993, President Pierce disclosed that "the law school was generating nearly $700,000 per year for the university’s operating budget."

Now, for a university administrator to admit that a unit of the institution produced a positive cash flow is as rare and remarkable as a Hollywood accountant admitting that a movie turned a profit.  The figure named, while not princely, nonetheless probably put Puget Sound's law school in a league with the library's copy machines as a profit center.

A law school's economics of scale are awesome.  A single lawyer equipped only with an overhead projector connected to a PC can teach a class of 100 students each paying "about $23,500" and northwards.   And there's never any shortage of lawyers eager to land a teaching gig, with all that implies about downward pressure on salaries.

Jeff Jacoby buys the claim that the law school will require subsidies.  The funny thing is, he thinks he's being hard-headed and cynical.


431. Mating habits of the domestic judge, Pennsylvania version

Pennsylvania's Judge C. Joseph Rehkamp was foolish enough to drink the water at the Luzerne County Courthouse, that ill-proportioned lump of architectural notions, when he was persuaded to venture down from his roost in Perry County to fill in for the gangster judges caught collecting "finders' fees" for selling children. 

We already learned the lamentable results of Judge Rehkamp's ill-advised sip.  (See post 417.)  But the domestic violence charges against him were dropped when -- all together now -- his wife declined to testify against him at preliminary hearing.

According to the Scranton Times-Tribune,

[Magisterial] Judge Whittaker overruled prosecutors who argued he could compel the victim to testify and/or allow the case to proceed based on the testimony of the arresting officer and Mrs. Rehkamp's 18-year-old son, Lee Elliot Egenlauf, who allegedly witnessed the assault.

The testimony of an eyewitness isn't enough to establish probable cause?!? Let that be a lesson to all you young judges out there: always be nice to the magistrates, even if like Pennsylvania's magisterial judges they're not necessarily lawyers, because you never know when they'll be in a position to return the favor.

18-year-old Lee saved his mother when the judge was strangling her, according to this Wilkes-Barre Citizens' Voice story, which also contains the magistrate's charmingly fatutous metaphysical flight and the prosecutor's untoppable comeback:

Magisterial District Judge Donald L. Whittaker dismissed the charges moments after Valerie Rehkamp, sitting on the witness stand, said she did not want to proceed.

Assistant District Attorney Nancy Violi had subpoenaed Mrs. Rehkamp and other witnesses and asked Whittaker to allow her a chance to question them.

Whittaker refused.

"No victim, no crime, the case is dismissed" Whittaker said.

"If that were the rule, we'd never prosecute a homicide case in Luzerne County," Violi said.

The Citizens' Voice adds this interesting detail about the first prelim:

Rehkamp's defense attorney, William Costopoulos, told the Voice that Rehkamp and his current wife, Valerie, were discussing a financial arrangement under which she would drop criminal charges and they would move for a divorce. ...

Valerie Rehkamp, 50, initially agreed to cooperate with prosecutors, then refused to testify at Rehkamp's Feb. 16 preliminary hearing.

We can do this divorce the easy way or the hard way.  It's up to you, Valerie.  Is testifying at the prelim really worth years of hellish litigation? 

Anyway, nothing daunted, the prosecutor refiled charges, adding a bit more detail and asking for a new magistrate (a real one this time, please):

Judge Charles Joseph Rehkamp admitted to grabbing his wife, Valerie, by the neck and pushing her into a chair during an argument at their Plymouth Twp. home on Jan. 16, a police affidavit says. ...

The affidavit filed Tuesday includes ... an allegation that police photographed red marks on his wife's neck.

It all happened on the couple's first anniversary, sweetly enough.

The judge was able to see the silver lining in this dark cloud: he used his suspension from office as an excuse for skipping alimony payments to his first wife

According to court documents, Rehkamp's assets include: an investment retirement account at a Juniata bank worth $165,580 as of a Dec. 31, 2008 accounting; an investment portfolio with Oppenheimer and Co. of unknown value; a Porsche 911 sports car; $28,000 worth of jewelry he purchased on a single day in 2008 and 45 acres of land in Perry County.

The judge reportedly shelled out $218,000 to pay off his daughter's tax debt, which might show admirable familial loyalty, though if I were the first wife's lawyer I'd be very suspicious.  Maybe where the daughter lives it's customary for tax officials to require first-degree relatives to pony up in cash rather than establishing a payment plan with the taxpayer herself.  Then again....

Nonetheless, there is a somber side to the story.  That Porsche.  That $28,000 in jewelry bought on a single day during the months before his second marriage.  I'm afraid the diagnosis is unavoidable: late-onset midlife-crisis clichedom.

But the judge isn't taking the refiling of charges lying down: today he filed a motion to dismiss, claiming selective prosecution.  After all, other husbands in Luzerne County are allowed to choke their wives, so why's the prosecution picking on him?