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287. Rosebirds in the Garden (State)

 Lawyers of a certain age -- say, those about the average age of members of the New Jersey Supreme Court -- will remember Rose Bird.  She was California's first female chief justice, appointed in 1977 (by California's current Attorney General, who, when he still had hair, used to be governor) directly from the appellate defender's office.  Her timing meant she presided over the reintroduction of the death penalty in the state. 

California reintroduced capital punishment in 1974, in reaction to the US Supreme Court's wildly-successful effort to turbocharge the conservative movement.  (See post 270.)  (Well, I suppose it's possible the justices didn't actually intend to goose the radical right into its era of dominance, though it seems a bit disrespectful to imagine they were that clueless.)

So the first death penalty cases were wending their weary appellate way to the state Supreme Court just as Chief Justice Bird took office.  In 61 consecutive decisions, she reversed the jury's decision to impose the death penalty. 

That streak would be easier to explain if we could believe that Bird was a mole for the right, and that all during her years in the public defender's office she was a one-woman sleeper cell waiting for the moment when she was activated to destroy the Democratic Party in California.  But it's far more probable that she was merely a gift to the right, not a secret member of it. 

That remarkable streak made it easy for California Republicans to trash Democrats as pro-crime, which they did enthusiastically for the next 15 years or so.  (It's hard to remember that California was once as safely Republican as it is now safely Democratic.)  After # 61 hit the books, it just wasn't possible any longer to argue with a straight face that Bird was actually interested in enforcing the law. 

After all, what are the odds that 61 trial judges could screw it up every single time?  Seventy percent of the time, sure.  (That's roughly what we have today, according to some studies, although only the naïve would think that figure says much about the trials involved.)  Maybe even 80 or 90%, because everybody in California in the late 70s was on drugs, if Isla Vista was an accurate microcosm of the whole.  But at some point, wouldn't the law of averages mean that some trial judge would eventually get it right by accident?  As Bill Clinton would say, even a blind hog sometimes finds an acorn.

At any rate, Rose Bird's struggle against the death penalty got herself and two of her colleagues recalled from the Supreme Court in 1986.  (It's interesting to note that since her ouster, California has executed 13 inmates, despite a death row population of 660, which suggests that the ex-Chief Justice's efforts weren't nearly as decisive as both sides seemed to believe at the time.)

I suspect the memory of Rose Bird has a great deal to do with the New Jersey Supreme Court's bizarrely over-the-top reaction to Judge Mathesius's 64-page decision in the Ambrose Harris death penalty case.  (See post 285.) 

The state Supreme Court suspended Judge Mathesius for a month without pay, the equivalent of fining him $11,750 (well, before taxes).  One of the reasons for coming down so hard on him was that, according to an opinion published by Justice Jaynee LaVecchia in 2004, his written opinion  included "gratuitous personal attacks against current and former members of the Court."

Justice LaVecchia appended a footnote (no. 1) in which she explained that feelings of delicacy forbade her from actually quoting what Mathesius wrote.  The real reason for her reticence, as one might guess, was that she had no evidence to back up her charge.  Mathesius's opinion didn't include personal attacks, free of charge or otherwise, against any justice.  If she had actually quoted the words he used,  she would have made herself look foolish, because all Mathesius said about current and former members of the Court is the following:

If actual imposition the death penalty requires such a Herculean effort as has been herein endured in terms of time, mental anguish and emotional expense, research, and writing (not to mention the hundreds and hundreds of thousands of public dollars in accrued actual cost in this case alone), it strongly invites, nay, compels, the pragmatic conclusion that the penalty which imposes such an extravaganza, be finally legislatively or judicially annulled as opposed to being merely nibbled to death by state and federal ducks. ... When coupled with the proliferation of occasions were members of reviewing courts possess an unalterable predisposition, if not an outright predetermination against the death penalty such as exhibited by Justice Long and Justice Handler before her, it seems even more unwise to perpetuate the myth that such a penalty can, in any practical sense, provide any of the intended purposes of punishment or general deterrence, much less be actually meted out.  The death penalty process has devolved into a noirish Rube Goldberg contraption that seems to metastasize regularly with each novel ruling.

(I wouldn't be doing my duty as a blogger if I didn't call your attention to that last sentence.  While I'm in total agreement that the idea of Rube Goldberg contraptions traveling from "an original site to one or more sites elsewhere in the body, usually by way of the blood vessels or lymphatics" is pretty scary, I think current death penalty jurisprudence is less like film noir and more like Buñuel or David Lynch.)

The above is what Justice LaVecchia called "personal attacks".  But if it's an attack, it's singular rather than plural, and it's directed against the justices' professional rather than their personal lives.  And it's not really an attack, anyway.  Mathesius might have been more pedantically accurate if he had written that the two named justices seem to possess an unalterable predisposition, or vote so consistently that an observer would be hard-pressed to avoid drawing the conclusion that they possess an outright predetermination.  But any reasonable reader would understand that's what he meant. 

Mathesius meant, as far as I can tell, that the two justices always voted against the death penalty, without exception and regardless of circumstances.  That's a factual observation, the accuracy of which can be objectively measured.  If it's false, it's false, but I'm pretty sure it's not, both because Mathesius cited numerous cases to back him up and because LaVecchia so carefully avoided disputing it.

Presumably Justice LaVecchia isn't actually illiterate or mentally subnormal, and so we must assume she knew perfectly well that what the words she wrote in her 2004 opinion were inaccurate.  Why would a justice of a state's highest court lie in a published opinion? 

Rose Bird.

The problem with Mathesius's opinion wasn't that he personally attacked Justices Long and Handler, but that he publicized a fact that could be detrimental to the careers of members of the New Jersey Supreme Court.  His transgression got right to the bottom-line question for judges: Is it more important to have a good reputation, or to deserve one?  (See post 272.)  Mathesius created the risk that New Jersey's Supreme Court would have the reputation it deserved, rather than the reputation its members wanted.  And that, the justices concluded, was intolerable.

To ensure that Mathesius, and every other trial judge in New Jersey, got the point, the Supreme Court assembled an advisory committee to look into Mathesius's supposed violations of the Code of Judicial Conduct headed by none other than retired Justice Handler.  And the panel that heard the committee's recommendations included Justice LaVecchia, although she had announced her prejudgment some two years previously.

No judge in New Jersey could have missed the point: if you mess with us, don't expect mercy.  Don't expect justice, fairness or due process, either.  As for avoiding the appearance of impropriety, don't make us laugh.  To paraphrase Lucy giving her little brother encouragement in his thespian accomplishments, the New Jersey Supreme Court gave every judge in the state five good reasons for staying in line.

Just to make sure everyone understood the whole thing wasn't a serious ethical hearing, the opinion that ordered Mathesius's suspension was written by none other than Justice Roberto Rivera-Soto (whose self-authorized biography hilariously omits the name of the governor who appointed him).  Yes, that Justice Rivera-Soto, the one who made the national news for trying to intimidate officials at his son's school. 

(I admit I'm of two minds about that – I sympathize both with parents dealing with dismissive school bureaucracies and with teachers and administrators dealing with nutso parents.  I also don't doubt that every other lawyer in Jersey would have at least thought about trying to scare the administrators in more or less exactly the same way.  Still, it's a bit worrisome whenever a judge fails in such slapstick fashion to foresee such obvious consequences of a course of conduct.  It means the judge has become a bit unclear on the distinction between being treated like a god and actually being one.)

The saga reveals unethical behavior by New Jersey's judges.  But  Mathesius's suspension wasn't punishment for it.  On the contrary, the suspension was the ethical violation.  There's a scandal here, but it involves the state's Supreme Court, not the Superior one.

Oh, yeah. While in prison Ambrose Harris stomped a fellow death-row prisoner to death.  He claimed self-defense and was acquitted.

Reader Comments (1)

Keep up the good work. This is wonderful stuff.
July 16, 2007 | Unregistered Commenterneilalice

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