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430. Mating habits of the domestic judge, Ohio version

The Florida Supreme Court recently ruled that for a judge to deny justice to victims of intimate partner violence and sadistically toy with them in open court, is, to be entirely candid, just not altogether top-drawer form.  (See post 429.) 

But what if the judge goes one step beyond re-victimizing by knocking off the "re-"? Consider Cleveland  Juvenile Court Judge Joseph Russo:

According to the Supreme Court’s ruling. Russo and his girlfriend became embroiled in an argument while driving home after dinner and drinks at a restaurant in the early morning hours of September 6, 2006. When the argument escalated into a physical altercation, they stopped at a gas station, where the fight continued. Both were arrested and charged with “disorderly conduct intoxicated,” a minor misdemeanor. Later that month, Russo signed a waiver admitting his guilt and paid a $100 fine.

Then in the early morning hours of July 4, 2007, another physical altercation ensued after an argument between Russo and the girlfriend at the couple’s condominium. A neighbor called police, but by the time police arrived, Russo had left the condominium to check into a nearby hotel.

Police interviewed the girlfriend, who asked for a domestic violence temporary protection order. Police also interviewed Russo, who initially denied the fight. When police told him of the domestic-violence charge, however, he claimed that his girlfriend had attacked him. The next day, the Rocky River Municipal Court granted a domestic-violence temporary protection order against respondent.

In early March 2008, the domestic-violence charge was amended to “disorderly conduct persistent,” a misdemeanor of the fourth degree. Russo pleaded no contest and was convicted. Later that month, Russo received a 30-day suspended jail sentence and was ordered to continue counseling for alcohol abuse and anger management. He was also placed on probation for one year and was fined $250.

There was no fight, officer, but she started it.  So he's a liar as well as a batterer (sorry - disorderly conductor). 

And as a result, the Ohio Supreme Court ruled sternly, he would be allowed to stay on the bench.  However, the high court decreed, the meaningless six-month suspension of Judge Russo's law license recommended by the disciplinary board wasn't enough.  After all, it was a purely symbolic suspension so long as the judge remained in his full-time juvie court position.

"A sanction more rigorous than the board's recommendation is required."  So the court sternly upped it to a meaningless twelve-month suspension of the judge's law license, and then suspended the suspension, restoring the status quo.  Take that, Judge Russo!


429. The brush-off

It's not often that you can watch video of a really bad judge abusing his power on TV, but Seminole County, Florida, offers a Mickey Mouse judge, Ralph Eriksson, to go with the nearest big roadside attraction.  To fully grasp the piquancy of this video, you need to know that the defendant, Mr. Watson, was originally arrested for possession of cocaine as well as driving while intoxicated.

The case stalled, in the usual way, as everybody waited for the lab results to come back.  (The U.S. Supreme Court last year ruled that drug cases weren't delayed enough, and sought to address the problem by requiring technicians to spend more time on the road between courthouses, but it must be said that the problem of excessive celerity was not universally recognized.)

Then surprise, surprise - the "white powdery substance," in universal cop-speak, turned out not to be cocaine, after all.  So the drug charge was dropped.  Unfortunately, the video of the arrest contained numerous mentions of the apparent cocaine.  The prosecutor and defense attorney agreed the video needed to be edited to delete those references.  But as they hadn't done so yet, they agreed that the case should be continued -- or (for those of you who insist on speaking the common tongue) that the trial be postponed.

The judge denied the joint motion for continuance, which is pretty crazy already.  If the people involved in the suit don't mind, why should the judge, who supposedly is neutral?  Maybe they don't have enough to do in misdemeanor court in the Orlando exurbs and Judge Eriksson was afraid of getting bored.

Mr. Watson, though, thought he detected another source for the craziness.  He asked his attorney to move for a recusal -- that is (for you lingua francans), to allow a different, less emotionally-involved judge to preside.  That's where the clip picks up:


Yes, that's right, Judge Eriksson jailed a man to punish him for asking the judge to step aside.  You have to admit Mr. Watson had a point about the judge's unfairness.

The judge, it must be said in his defense, has perfected the demeanor of a self-satisfied creep.  Many self-satisfied creeps retain tell-tale marks of former personhood, but Judge Eriksson is way past that.  He could play a movie alien without makeup.

Anyway, Mr. Watson was just one person.  Then there was the time Judge Eriksson presided over a whole docket's worth of abused women seeking injunctions against their abusers.  Most of the women appeared without a lawyer, a pretty good indicator of their financial status.  The judge decided to give himself a little amusement:

Judge Eriksson: Patrice Taylor, who will be your first witness?

Patrice Taylor: Your honor, I have none. My son was not in any shape to come. I don‘t have any witnesses except for the police report and the witnesses who expressed to the police what happened because I was too distressed to explain.

Judge Eriksson: You can‘t use a report because the other side can‘t question what‘s on that paper. You need to produce that person, whoever they are, so the other side can question them.

Patrice Taylor: I was unaware of that, your Honor.

Judge Eriksson: Well, I wasn‘t the one who was supposed to give you advice.

Patrice Taylor: I‘m sorry.

Judge Eriksson: So let‘s go back and explore that statement. Where did you get the idea to file a petition?

Patrice Taylor: I filed a petition.

Judge Eriksson: Did somebody suggest it to you?

Patrice Taylor: No. I filed it because he was having some depression issues with —

Judge Eriksson: No, not why did he —

Patrice Taylor: The police department told me after I had repeated complaints of harassing and stalking and disturbances at my house.

Judge Eriksson: Did they tell you that you would need to bring a witness or two —

Patrice Taylor: No.

Judge Eriksson: —testify so the other side could crossexamine?

Patrice Taylor: No. I thought that the arrest would be enough. My son was in no shape to be here.

Judge Eriksson: If you are arrested, does that mean you‘re guilty?

Patrice Taylor: No, your Honor.

Judge Eriksson: Okay. So unless you‘re going to produce any witness or have anybody testify here today, I‘ll have to deny your motion —or your petition. Do you understand that?

Patrice Taylor: Not quite, your Honor. He was arrested for stalking.

Judge Eriksson: That is not proof on your petition. That might be the start of a criminal proceeding, but —

Patrice Taylor: [cell phone rings]  I do apologize, your Honor. I‘m scheduled to be at work.

Judge Eriksson: All Right. Are you too busy to be here?

Patrice Taylor: No, your Honor. This is my second time to be here. You were not able to hear the first time because he was never served the paper. And it‘s been a nightmare trying to find this guy to locate him while he works —

Judge Eriksson: Just stay on course. Will you be presenting any evidence today on your petition?

Patrice Taylor: I‘m sorry?

Judge Eriksson: Will you be presenting any evidence on your petition?

Patrice Taylor: I have –written documentation, if that‘s what you mean. I don‘t know.

Judge Eriksson: If it‘s written, no. He can‘t cross-examine whoever wrote it.

Patrice Taylor: I don‘t know what else to say, your Honor. I just want this guy to leave me alone. That‘s all I want, is for him to just stay away from me and my family. That‘s all I want.

Judge Eriksson: Having presented no evidence here today, I‘m going to have to deny your petition for injunction for protection against repeat violence. If each of you would step through —just step through the audience and you‘re finished here today and you‘ll have a copy of this in just a moment. And that will complete that hearing.

What makes that all so delightfully amusing is that the clinically depressed victim of repeat violence could have testified on her own behalf.  Ho, ho, ho!

And he told her to "stay on course" immediately after jerking her around with bizarre questions about who told her to file the petition.  Ho (etc.).

At his hearing before the Florida Judicial Qualifications Commission, Judge Eriksson defended himself by saying he thought it would be inappropriate for him to become involved in the proceedings to the point of advising the women they could be their own witnesses.  But, evidently, he didn't consider it inappropriate for him to make a preemptive hearsay objection on behalf of the abusive man.

In short, Judge Eriksson deliberately withheld the protection of the law from some of the most vulnerable people in his community.

At least he was hauled (or "haled", as the Supreme Court insists on saying) before the Florida Supreme Court.  That takes us to the punchline: his punishment was a public admonishment.

Which just goes to show the judge was right.  The people he considered too unimportant for his time -- too female, too victimized, too depressed, too poor -- were confirmed unimportant by the Florida Supreme Court, which viewed re-victimizing them as no more than an unfortunate breach of judicial etiquette.


428. Fatuity Watch

CNET has been covering a Third Circuit case that seems to involve a novel legal issue when all it really involves is a no-longer-new technology:

The FBI and other police agencies don't need to obtain a search warrant to learn the locations of Americans' cell phones, the U.S. Department of Justice told a federal appeals court in Philadelphia on Friday.

A Justice Department attorney told the Third Circuit Court of Appeals that there is no constitutional problem with obtaining records from cellular providers that can reveal the approximate locations of handheld and mobile devices.

There "is no constitutional bar" to acquiring "routine business records held by a communications service provider," said Mark Eckenwiler, a senior attorney in the criminal division of the Justice Department. He added, "The government is not required to use a warrant when it uses a tracking device."

This is the first federal appeals court to address warrantless location tracking, which raises novel issues of government surveillance and whether Americans have a reasonable expectation of privacy in their--or at least their cell phones' --whereabouts.

Judge Dolores Sloviter sharply questioned Eckenwiler, saying that location data can reveal whether people "have been at a protest, or at a meeting, or at a political meeting" and that rogue governments could misuse that information. (See transcript excerpts below.)

If cops can follow you to a protest, or a meeting, or a political meeting--and I hate to break the news, but they can, which might explain that strange uncanny feeling you've been having--then cell phone data isn't telling them anything they couldn't acquire with the expenditure of shoe leather. 

(But the weary tedium of a stake-out, and the delicate high-speed drama of following a car, both seem more fair, more sporting, than getting a business record from the phone company, don't they?--or at least better TV.)

Not the case itself but Judge Sloviter's questioning, as excerpted on CNET, achieves the status of "foolish or silly, especially in a smug or self-satisfied way.

Apparently believing in all earnestness that she was making an important point, she pursued this line of questioning:

Sloviter: There are governments in the world that would like to know where some of their people are, or have been. For example, have been at what may be happening today in Iran, have been at a protest, or at a meeting, or at a political meeting. Now, can the government assure us that -- one, it will never try to find out that information, and two, whether that information would not be covered by (d). [Ed. Note: Sloviter seems to be referring to a 2703(d) order.]

Eckenwiler: Your honor, I can't speak to future hypotheticals in terms of what might happen.

Sloviter: But don't we have to be concerned about that? If the statute would permit the government -- not this government right now but a government -- to get information as to where... Wouldn't the government -- a government -- find it useful if it could get that information without showing probable cause?

Eckenwiler: Your honor, the information at issue in this case certainly is useful, that's why the government's applying for it here.

Sloviter: But without showing probable cause. Because it's relevant. Your papers admit that the showing that needs to be made for a subsection (d) order is less than the showing that needs to be made for a warrant.

Eckenwiler: That's correct, your honor.

Sloviter: So the question is, can (d) be used for that purpose?

Eckenwiler: Yes, your honor. It can be used constitutionally for that purpose. And the reason I understand your honor's concern about those future cases, those hypotheticals. But I think it is clear from the Supreme Court's caselaw that Fourth Amendment issues must be measured on the basis of the facts before the court.

The fatuous part isn't saying that if certain information would help the government of Iran oppress its people, comparable information must be kept from the government of the United States, given their similarities. 

Nor is it proposing to decide a case on the basis of paranoid political fantasies rather than concrete reality--law professors spend whole careers training their students to think about the law in precisely such terms.

No, the fatuous part is the belief that abuse by "the government" could be prevented by requiring the government to convince a judge that it had probable cause for obtaining the phone records--that is, by requiring "the government" to receive advance blessing from...one of its employees.

Judges' paranoid political fantasies only go so far.  The President and the Attorney General and all their faceless minions might be in thrall to Sauron, or Ahmadinejad, but even in the darkest days we will always count on the incorruptibility, the stern rectitude, of the Untouchables in black robes.

And, of course, when Sauron's and Ahmadinejad's minons take over the elected branches of government they'll do what judges tell them to do.



427.  Bluegrassed

There are always new ways to be corrupt.  That's the wonderful thing about it.  Like April, the cruellest month, treating yesteryear as so much mulch (after having the droghte of march perced to the roote), corruption is always springing anew with renewed newness.   And it's only going to get better after the Supreme Court rules that the Constitution prohibits criminalizing the money-making habits of rich white men.

From Clay County, Kentucky (searching Google for it brings up a sad little sponsored ad for "File for Unemployment"), which wasn't named after the Great Compromiser but his cousin with the unfortunately easy-to-visualize name of Green Clay (unless Wikipedia, not otherwise known for its sense of humor, is pulling our collective leg), comes this story:

The circuit judge in Clay County discussed how an election officer could steal votes in 2006 when the judge was trying to help his son-in-law win a county office, a witness testified Thursday.

D. Kennon White said then-Circuit Judge R. Cletus Maricle had backed White's wife, Wanda, to become an election officer in the Manchester precinct.

In the May 2006 primary, Maricle's son-in-law, Phillip Mobley, was running for property valuation administrator.

Maricle and others met with Kennon and Wanda White and said people would be confused about how to use the county's new voting machines, presenting an opportunity to steal votes.

The machines had a "Vote" button that allowed people to review their choices, but they had to push another button to record the selections and finish voting.

That allowed corrupt election officers inside the polling place to dupe voters into thinking they were done after pressing the first button, then change their votes, White testified earlier.

Why would anyone design machines like that except to allow votes to be changed?  (Aren't you curious to know what company made them?  Here's my utterly uninformed and irresponsible guess.)  The machine seems designed not just to facilitate not just switching votes, but to make it easy to confirm a purchased voter stays bought.  This is how it worked:

Typically, Day said, candidates gave large sums of cash to vote-buyers, who then approached people as they came to polling places and offered them money. If the voters agreed, the buyers sent them to a complicit elections officer inside, who looked to make sure they voted the right way, then signaled to the vote-buyer outside to pay them, Day said.

"Every election I ever worked, it went on," said Day, who bought votes at the Burning Springs precinct.

In Kentucky, the circuit court is the trial court of general jurisdiction, i.e., a real court. Former Judge Manicle - I'm sorry, but it just wouldn't seem right not to make some juvenile remark about that name - seems like he knew what was what, all right.  But the real political boss was a-settin' over at the school district HQ:

Kennon White said that when he considered running for jailer in the 2002 Republican primary, Maricle told him he would have to spend about $120,000 for a "sure thing."

White said he also checked with [then-school superintendent Douglas] Adams about the race, and Adams told him if he would put up $60,000 to buy votes, he could be in the group of candidates backed by the politically powerful school board.

In the end, White said, he stuck with another faction and spent more than $50,000 to buy votes, distributing it through a number of people, including Bowling and Bart Morris.

White lost his 2002 race. He said he was told Adams used his influence through the school system, a major employer, to turn election officers away from then-county Clerk Jennings White, and that sunk him as well.

Running for jailer?  The politically powerful school board

If the testimony is to be believed, they play for keeps in Clay County.  A one-time drug dealing witness testified that "former Clay County Clerk Jennings White" - relationship to Kennon White unknown, and perhaps unknowable -- "once asked him to plant drugs in Adams' vehicle to get him arrested."  Shades of Louisiana's Judge Bodenheimer.  (See post 78 and post 12.

That particular drug dealer claimed he had protection from the once and would-be future sheriff, Edd Jordan, a/k/a Unindicted Co-Conspirator - he's running to regain his old position - because of the zeal with which he bought votes for him.  What makes it especially easy to believe are the comments from Clay County, uh, activists on Topix (e.g., here and here). 


426. System justification

Every state has a judicial standards commission of one sort or another.  It's easy for people like to stand on the outside and criticize them with the benefit of hindsight, but the fact is that many hard choices have to be made, priorities established, resources wisely utilized, and cliches recited. 

For example, take a look at the dilemma facing the Pennsylvania Judicial Conduct Board.  It had before it allegations against three judges from Luzerne County, and limited resources.  Which complaint or complaints should it investigate?

Allegations against one judge were that she (significant pronoun) was "'impatient, undignified and discourteous' to her staff, created a tense atmosphere in her chambers, badgered witnesses and attorneys and arrived late to court sessions."

The allegations against the other judges were that they -- both of them male -- took kickbacks in exchange for sentencing juveniles who hadn't done anything subjecting them to detention to a private detention center in proceedings that didn't rise to the dignity of kangaroo courts, blighting the kids' futures while imposing devastating pain on both them and their parents.  (See post 417 and post 400 and post 390 and post 389.)

It was a stark choice, as attorney George Michak pointed out.  On the one hand, "a judge who was accused of having a bad attitude."  On the other hand, "serious allegations against two judges accused of serious ethical breaches and even criminal conduct."

Given the limited resources of the board, which do you go after?  Hint: the two male judges helped the board's efforts against the female one. 

During the period of time that elapsed between the Board receiving complaints against gangster judges Conahan and Ciavarella and those two reaching the since-rejected plea agreement with federal prosecutor, "Ciavarella might have sentenced more than 2,000 juveniles to the for-profit detention centers he and Conahan were allegedly paid off to support."

That's 2,000 juveniles sold for kickbacks -- or what Ciavarella, with the chilling ingenuous of the true psychopath, called "finders fees" -- as a direct consequence of the Board's decision to put all their resources into reinforcing the old boys' network against Judge Lokuta.

The role of judges is to enforce the status quo.  That's not a criticism; the law is the status quo.  So perhaps it's not surprising that a judicial standards board would take the same approach, defending the way things are, no matter how corrupt.

The same mindset can be found in a case from Kermit, Texas.  (I'd never heard of it either, but it turns out to be on the corner of my own state - it's apparently pretty flat down there.)  The New York Times story on the shameful felony prosecution of two nurses for reporting concerns about a bad doctor to appropriate medical authorities can be found here

Over at ScienceBlogs, Mark Dunford has interesting insight on the broader problems exposed by the case

And the local Winkler Post has a wonderful take on the whole shebang.

Adding another twist to the case, the state was represented by an Odessa private attorney because the one-person district attorney's office was experiencing poor health, according to the Times.  Hmmm.  I  hope he gets well soon, or alternatively acknowledge the diplomacy with which he passed the cup from his lips, whichever is more appropriate.

The Pennsylvania's Board was acting on the same impulse as the Texas sheriff who arranged the absurd charges against the nurses, and the hospital administrator who fired them for going over his head to state disciplinary authorities.

One name for the impulse is "system justification," a theory that explains much about the American legal system -- though judges and lawyers are usually pretty good at burying  the tell-tale signs under piles of self-righteous, self-serving rhetoric.  I'm inclined to think the Pennsylvania Board decided to go after Lokuta because the two male gangster judges were under investigation for acts 1,000 times worse than anything she was accused of. And that made sense.

Exposure of the gangster judges, after all, was also exposure of the Pennsylvania Judicial Judicial Conduct Board.


425.  Yadkinville

There are certain subtle advantages to living in a city best known to the outside world for the way Bugs Bunny pronounces it.  One is that you learn not to make fun of other cities' names.  Such as Yadkinville.  Even though Booger Swamp Road meets up with Main Street just west of town. 

Instead, you make fun of other cities' judges.  Or I would, if they didn't do it for me:

E-mails between Yadkin County officials and a judge who was prodding them to build a new jail show that county officials had repeatedly asked the judge to intervene and help quell opposition to the jail’s location.

In November 2007, then-County Manager Eric Williams wrote Superior Court Judge John Craig III and Judge Ed Gregory, the senior resident Superior Court judge for the judicial district that includes Yadkin County. County commissioners voted 3-2 in November 2006 to build a new jail, but one commissioner, Brady Wooten, has continually opposed plans to build the $8.2 million, 150-bed facility about four miles from the courthouse....

That's called "ex parte-ing the judge."  It's unethical in the highest degree for a judge to talk to one side in private, excluding the other side from the discussion.

Then comes the really delightful juxtaposition:

[Judge] Craig mentioned Wooten in a December 2007 e-mail to [former County Commissioner] Phillips.

“I must admit privately that I despise demagoguery and attempts at political tyranny,” Craig wrote. ...

Craig scheduled a hearing last month about the county’s failure to build a jail, telling commissioners he could fine them, remove them from office, or jail them until they agree “to properly carry out the duties of their office and get the jail project underway without further delay.”

His comments alarmed Wooten and Kevin Austin, the county commissioners who had opposed the jail site. They hired attorneys to represent them at county expense. Craig canceled the hearing after commissioners agreed to move forward with plans to build the jail.

“If it hurt their feelings I’m sorry, but they just needed to know how much inherent authority the superior court had,” Craig said.

Failed attempts at political tyranny by elected officials are, it must be agreed, despicable.  Successful assertions of political tyranny by judges are anything but.  Judge Craig, for example, ordered a committee of the County Commission not to meet.

No, really.  I'm not kidding.  The judge prohibited the elected government of the county from meeting in committee.

"They just needed to know how much inherent authority the superior court had."  Inherent authority, of course, is authority the superior court wasn't granted by the state or federal Constitution or by any statute.  (See post 32 and post 261.)  It's power without law, and for a Yadkinville judge to use his illegitimate power to bully and threaten elected officials is the Christmas pageant version of one of the major themes of this blog.

A lot of the dispute, apparently, is that the judge wanted the jail built out of town, like a Wal-Mart, and the town leaders wanted it downtown, like a family-run store.  (Click here for a rather sad little resolution, a tattered flag of a plea for democratic self-rule.) 

The judge, you won't be surprised to learn, got his way.

To change the topic abruptly, the gangster judges of Luzerne County ordered the state-run juvenile facility shut down in exchange for kickbacks from the operator of a private facility.  (See post 389.)  Not sure what reminded me of that.

Apologies for the digression.  Back in Yadkinville,

Yadkin County resident Larry Long said in December that he filed a complaint with the state Judicial Standards Commission about Craig. Long said recently that the commission told him it found no wrongdoing by Craig. The commission wouldn’t confirm this

Even whitewashing a judge has to be done in secrecy.  Otherwise the people those elected officials are representing might get the right idea.

(Conscience requires a link to an explanation for the name of that road.)


424. Hissy fitting?

ABC's Jake Tapper, who almost certainly dislikes the Elvis Costello song "Brilliant Mistake," has a blog entry with a prediction from University of Texas professor Lucas Powe.  Unfortunately, the quotation doesn't answer the mystery of why he didn't drop the final "e" from his surname, like Al Green.  Wouldn't Lucas Pow be a great name?  As good as Morris Zapp.

Maybe the professor does pronounce it "pow."  I'd advise him to, if he ever goes to spend a year as a guest scholar at a German university.

 Anyway, here's the professor's prediction about next year's State of the Union:

“I’m willing to bet a lot of money there will be no Supreme Court justice at the next State of the Union speech.”

Added Professor Powe, who clerked for Supreme Court Justice William Douglas, “you don’t go to be insulted. I can’t see the Justices wanting to be there and be insulted by the president.”

(Isn't it pathetic that a distinguished white-haired professor, author of several well-received books, would still be known by a one-year internship he served before ever practicing law?)

(And for Douglas, of all justices -- a compulsive liar and self-mythologizer who didn't bother with legal reasoning.  You'd think a person would want to keep that kind of thing quiet.)

Anyway, it'd be wonderful if it works out the way Professor Powe predicts.  I can't think of any better way to demonstrate for the benefit of the entire nation exactly why the justices show up at State of the Union addresses, dressed in their medieval costumes: to express their amour propre. 

And not, needless to say, because they give a shit about the nation or its government.

In the legal world, it is all about them.  In the constitutional law classes Professor Powe teaches, and in his books, it's also all about them.  Within the airless bubble it makes sense to say that telling the Supreme Court it's wrong is nothing but an insult.

Unless, that is, it's said by a member of the court.  Chief Justice Rehnquist once published a tally sheet: "Over the past 21 years, for example, the Court has overruled in whole or in part 34 of its previous constitutional decisions."

The Constitution is just over 8,000 words long.  For any group of nine judges to misread it in public 34 times over just 21 years is pretty remarkable.  It's not like they're making snap evidentiary rulings from a trial bench or anything.  They spend months making up their minds. 

And it's not like they have much to make up their minds about.  The nine of them, with their four clerks each, produced just 83 opinions last term.   Divide that by 45 lawyers and you get... lots and lots of time to get it right. 

Should we nonetheless assume, based on Rehnquist's figures, that they totally screwed up at least one and probably two of those cases because the 45 of them, putting their pointy heads together, couldn't figure out what a 8,000-word document says?  Man, talk about pathetic.

Anyway, if it's an insult to say the Supreme Court is wrong about the law (unless you're a justice of the court, in which case it's a typical day of tidying up around the office), it must equally be an insult for the court to say the Congress and President are wrong about the law.  Co-equal, remember?

But then, Justice Kennedy didn't say they were wrong about the law.  He said they were wrong about the reality of the political world in which they spend their working (and in many cases their waking) lives:

[W]e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.

That's not even arguably an opinion on a question of law. It's an opinion about rabbit-punching, eye-gouging politics.

(I don't think it's an opinion on a question of fact, either, to use the jargon.  [In the legal world, there is no third alternative to issues of fact and law.]  It's hardly possible that Kennedy and his co-concurrers, or any sentient being, for that matter, actually hold that opinion.  The words are just something they, or their clerks, plugged into their work product because they thought it made their result seem more plausible.  If they thought other words would have worked better, they would have plugged them in, instead.)

What Professor Powe was saying, and also Justice Alito, I'm pretty sure, is that the Supreme Court gets to insult Congress and the President by telling them just how ignorant they are.  But no tag-backs.

Oh, I'd love it if the justices made a point next year of underscoring just how petulant and childish and self-absorbed they can be!  I hope Professor Powe is right.


423. So who's scarier?

The San Francisco Chronicle recently reported:

The Assembly approved legislation Wednesday that would make it a crime to not report violent attacks...

Assemblyman Pedro Nava, D-Santa Barbara, the measure's author, said the bill closes a loophole in state law, which previously required people to report a violent crime only if it is being committed against a child younger than 14.

If the Senate passes Nava's measure, witnesses would have to report any rape, murder or violent crime they see, regardless of the age of the victim.

You can read a marked-up version of the bill here and a legislative analysis here.

Arlen Specter, the party-switching Pennsylvania Senator, recently proposed that witness intimidation be made a federal crime, though it seems pretty useless to backstop ineffectual state laws with an identical federal one.

Specter was inspired by a Philadelphia Inquirer series that vividly explained how the criminal justice system works, or rather doesn't work, in real life.

According to the paper, talking about itself in the third person as if it were a professional athlete, "The newspaper reported that criminal cases routinely collapse because of witnesses have been frightened or harmed. Prosecutors, judges and defense attorneys told the newspaper that witness recantations have become the norm in city courtrooms."

Back on the other side of the country, Assemblyman Nava's bill would place the witness squarely between the devil and the deep blue sea, the rock and the hard place, the hammer and the anvil, the... how could I have run out of cliches so quickly? 

Anyway, the witness would have to ask him- or herself, who's more likely to carry out the threat?  The guys in this video?  Or the justice system that can't enforce the various weapons and drug laws they're not just violating but clowning about violating? 

The choice would be even easier if you shared a neighborhood with them.

Nava's bill would use the legal system to threaten witnesses for not trusting the legal system to protect them.  It would inflict harm on them in retaliation for their not believing the system capable of saving them from harm. There's much to recommend the bill, but only for a certain class of connoisseurs.


422. Non-Judging Crimes

Immigration judges aren't, as their name might otherwise imply, judges.  They're Department of Justice employees, complete with union

They're not judges in another sense, too, according to a South Florida Sun-Sentinel (in Miami, even the sun needs a sentinel) article posted by Sonia Ansari over at Our Curious Immigration Laws.  They don't have to follow the law but can just indulge their mood swings:

Of South Florida's 26 immigration judges who saw large numbers of asylum seekers, grant rates ranged from 22 percent to 98 percent.

By way of comparison, here's a chart of the rate at which Bernalillo County (i.e., Albuquerque) Metropolitan Court judges dismissed drunken driving charges in 2006.  The rate varied from 20% to 51%, a mere 31% swing.  Amateurs.  Florida's immigration non-judges had a swing two and a half times that.

And then you toss in New York's Immigration (Non-)Judge Margaret McManus, who denied just 9.8% of the petitions presented to her, according to this chart put together by researchers at Syracuse University.

Want to know just how arbitrary and lawless immigration judges can be?  One of them just granted political asylum to a German couple who claimed they were being persecuted by school-attendance laws.  (The story got a lot of ink in the German press last spring when the application was filed, but I don't see any reaction to the ruling yet.)

If even-handed enforcement of democratically-enacted child-welfare laws is political persecution, then what should we call deporting people because a non-judge has an upset stomach?

Back in 2006, the Eleventh Circuit reversed a decision by Immigration (Non-)Judge Bruce Solow (78.2% denial rate) to deny asylum to a Chinese practitioner of Falun Gong, because 

Solow's denial "was based on his own knowledge of Falun Gong, and was not supported by the record."

The Circuit Court's opinion stated that, "The Immigration Judge [found] Zheng's responses to questions regarding the nature of Falun Gong insufficient to show that 'he kn[ew] anything', declaring Zheng's responses to be 'as instructive as opening a fortune cookie' and 'quite off-the-wall.'" ...

Even worse, one of the reasons Judge Solow questioned Zheng's credibility was because he was "sniffling like crazy" during the hearing, even though Zheng had, in Solow's words, practiced Falun Gong because it "fixed him up."

According to the Eleventh Circuit opinion, Solow "commented on Zheng's sniffling twice during the hearing. The second time, he appeared almost hostile about it: 'Still sniffling, huh?... Here, I'll give you a tissue. Yeah. Go ahead, have a nice tissue on the Court. Go ahead.'"

That's from either Frank Houston or Emily Witt, or both, in the Miami New Times news blog from 2006.  The post includes a link to the opinion.

In another case, involving a former cop named Roscoe Campbell from the Bahamas who claimed his life was in danger because he blew the whistle on corrupt ex-colleagues, the Eleventh Circuit affirmed Solow's denial of the asylum petition despite the following:

While it is true that the IJ [more properly, I(N-)J] interrupted Campbell's testimony throughout the hearing, a review of the record indicates the purpose of most [!] of the interruptions was to gain more clarification with regard to his testimony.  The IJ's inappropriate conduct was not limited to Campbell, but was directed toward the government's attorney, too, and, therefore, it does not necessarily show bias against him as much as improper conduct generally.

Oh, if it's just improper conduct generally, that's okay, then.  The Eleventh Circuit added:

While it is true the IJ appeared impatient and annoyed by some of Campbell's responses and made some unnecessary and unprofessional comments at the hearing and in his oral decision, Campbell has not shown that the outcome would have been different in the absence of those comments and interruptions.

How would one show that an outcome would have been different if a judge, or non-judge, had behaved professionally?  Hard to tell if the Eleventh Circuit is being serious in this passage, or when it observes that Campbell's attorney didn't "object[] to the IJ's questions," as if objecting to the judge about the judge's questions in order to obtain a ruling from the judge concerning the judge was an option.

As most of you have probably guessed, the Eleventh Circuit's opinion, while making Solow sound pretty bad, actually downplayed what he'd done.  A complaint Campbell filed with the DOJ's Office of Professional Responsibility,

described Solow's behavior during the Campbell hearing as "abusive and intemperate." The transcript showed, he said, that the judge had "commandeered" the entire direct examination. Campbell's attorney asked only 13 questions but the judge asked more than 200 "in rapid fire fashion -- each time interrupting Mr. Campbell's answer to the previous question." He continually accused Campbell of lying and made mocking jokes, such as asking Campbell whether he spoke to fictional characters from detective novels, for example Zelda Jones (from a series of books by Sharon Duncan), at the U.S. Embassy.

At the close of evidence, said the complaint, the judge stated, "This is so vague and general you could vomit and I could vomit because I can't, he wants me to become a magician here and grant it merely based on this kind of testimony," and "I think this case, quite frankly, I hate to use the word but I think it stinks. It smells bad because there's no way, this is pie in the sky."

Somehow, I get the impression that he didn't really hate using the word "stinks."

The amazing thing is that, after the passage of years, the Board of Immigration Appeals actually came down on Solow, siding with the abused rather than the abuser.  Campbell will get a new hearing before a new non-judge.

Meanwhile, Solow remains on the non-bench.  He's defending himself on the ground that he has absolute discretion to do anything he wants short of taking bribes.  In other words, that the Department of Justice "has no jurisdiction to investigate immigration judges unless there is an allegation of corruption." 

An agency has no jurisdiction to investigate - not adjudge, but investigate - one of its own employees??  The fact that Solow would pursue such a defense might strike some as further proof of his unfitness for office. 

How do people like Solow get appointed in the first place?  The Washington Post answered that question in 2007.  A significant percentage of immigration (Non-)Judges are party loyalists with law degrees who couldn't get approved for real judgeships.

Another significant percentage, doubtless, is composed of dedicated immigration lawyers with the kind of temperament that suits them better for a position behind rather than before the non-bench. 

Solow, I think it's safe to say, doesn't belong in the second group.

Marcia Cole's National Law Journal article adds that "A number of immigration lawyers who have practiced before him for many years insist that is undeserved punishment of a judge who is demanding, compassionate and objective."

But then, if Solow is really as "unprofessional" as the Eleventh Circuit says - meaning nasty,  unreasonable and abusive - and you had to appear in front of him, wouldn't you line up to the be the first to tell the reporter what a gem of a prince of a gentleman and scholar he is?

After all, the very worst judges are the ones most likely to do favors in return to public sycophancy. 


421. They do things differently over there

Braving the pigeons, thousands of photographers demonstrated in Trafalgar Square against the "stop and search" laws granted British police by a 2000 anti-terrorism law. 

In December Guardian reporter Paul Lewis was stopped and searched while taking pictures of the Gherkin building in London and Grant Smith, an architecture photographer, was apprehended around the corner while photographing Sir Christopher Wren's Christ Church.

Other recent cases include Jeff Overs, a BBC photographer who told the Andrew Marr Show he was stopped under suspicion of terrorism reconnaissance while photographing St Paul's Cathedral, and Andrew White, an amateur photographer questioned by two police community support officers for photographing Christmas lights in Brighton.

Last April two Austrian tourists were forced to delete their shots after being stopped by police in Walthamstow; and Alex Turner, an amateur photographer, was arrested under section 44 after taking images of a fish and chip shop in Kent.

Well, the fish and chip shop, that's understandable.  But the Gherkin Building?  Who'd want to blow that up? 

Tragically, however, the same article 44 stop and search powers are sometimes used to investigator people considerably less suspicious than newspaper photogs.  You can read the act here, starting with paragraph 28, but the Irish Times description gets the idea across:

Under the 2000 Act a senior police officer may issue an authorisation, if he or she considers it “expedient for the prevention of acts of terrorism”, permitting any uniformed police officer within a defined geographical area to stop any person and search him or her and anything carried by him or her.

The authorisation must be confirmed by the Secretary of State within 48 hours. A search can be carried out by a constable in an authorised area whether or not he has grounds for suspicion, but may only be “for articles of a kind which could be used in connection with terrorism”.

The police officer may request the individual to remove headgear, footwear, outer clothing and gloves and place his or her hand inside pockets, feel around and inside collars, socks and shoes and search hair. The search takes place in public and failure to submit to it amounts to an offence punishable by imprisonment or a fine or both.

Of course, the officer on the beat's discretion isn't unfettered.  He's supposed to get authorisation (no zeds, please, they're Brits), and that "may be given only if the person giving it considers it expedient for the prevention of acts of terrorism."

Here's a story about how the stop and search powers operate in real life.  First, let's set the scene: "Between 9 and 12 September 2003 there was a Defence Systems and Equipment International Exhibition (“the arms fair”) at the Excel Centre in Docklands, East London, which was the subject of protests and demonstrations."

Okay, so we have an "arms fair" (bet the cakewalk was something else), an organized demo, and a statute authorizing cops to stop and search when "expedient."  Put them together and turn them over to the testosterone-influenced and, as Gary Larson might have said, there was bound to be trouble brewing.

[Kevin] Gillan was riding a bicycle and carrying a rucksack [on his way to the demonstration] when stopped and searched by two police officers. [Pennie] Quinton, a journalist, was stopped and searched by a police officer and ordered to stop filming in spite of the fact that she showed her press cards.

The two brought an action in the European Court of Human Rights, a 7-judge panel of which unanimously sided with them against the English police in an unusually wide-ranging opinion.

So far, nothing too out of the American lawyer's experience.  But then you get to the remedy portion of the opinion:

92.  The applicants submitted that they had felt harassed and intimidated by the police actions and that it would be appropriate for the Court to award compensation of GBP 500 each in respect of non-pecuniary damage.

93.  The Government submitted that, in view of the short duration of the stop and search, no monetary compensation should be awarded.

94.  The Court agrees with the Government that the finding of a violation constitutes sufficient just satisfaction in the circumstances of the present case.

The next paragraphs, it must be said, go on to award attorney's fees in the equivalent of $50,000, roughly a year and a half of the U.K.'s average annual salary.

In America the same net result would be considered, all in all, a victory for the government.