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JoelJacobsen.com

Sunday
Nov012009

400. How it's done

This blog has periodically asked what it takes to fire a judge.  (See post 60 and post 185.)  It's also frequently pointed out the extremes many judges have to go to before attracting the attention of disciplinary commissions.  (See post 326 and post 343.)  A couple items recently have spelled out the way in which judicial independence can mean independence from more than political interference.  It can mean independence from scrutiny and from the law, for instance.

First is the acquittal (in part by directed verdict) of former Alabama Judge Herman Thomas.  In an editorial that might qualify for the adjective "judicial" but for the icky associations of that word, the Birmingham News/Huntsville Times (newspaper websites are getting increasingly difficult to narrow down to a geographic location) wrote:

Although he was acquitted, the scope of misconduct in office remains disturbing — even more so now that testimony from the trial revealed a regular pattern of checking young black male inmates out of the Metro Jail and, at the very least, directly intervening in their cases.

There is still the question of how, according to testimony, semen from two inmates came to be lodged in the carpet of Mr. Thomas' special private office, where it was alleged that he paddled inmates on their bare buttocks.

Also, how was Mr. Thomas able for years to manipulate cases by taking them from other judges, alter rulings of other judges and, most appalling, personally take inmates out of jail? Granted, the power of any judge is extensive and often goes unquestioned, but didn't anyone in the courthouse notice what Mr. Thomas was doing and think it was wrong?

The first part of the last sentence answers the two "how" questions.  The second part suggests a different "how" question: how could anyone in the courthouse intervene and yet remain employed (and employable--I imagine there's nothing quite like a negative reference from a judge to close doors in the legal world).

The Philadelphia Inquirer takes a look at the ways in which the gangster judges of Luzerne County (see post 390) got away with committing what sure looks like a long list of crimes--much longer than the charges against them--in plain sight of the county's entire law enforcement apparatus.  It turns out to have been easy:

Judge Chester B. Muroski, who succeeded Ciavarella as president judge this year, ... said Conahan and Ciavarella had packed the courthouse with relatives. Conahan's cousin was the court administrator, a brother-in-law was jury management supervisor, and another brother-in-law was paid $1.1 million in public funds for court-ordered psychological evaluations.

According to Muroski, other court-related workers knew they were "there at Conahan's pleasure."

"When I bucked them in 2005, they reassigned me," he added. "That was a message to everyone: Keep your mouth shut."

Simply bullying also worked, too.  Being a judge means you can bully without breaking character.  Often it's hard for an outsider to know what's ordinary courtroom business and what's abuse--they look exactly the same, even down to the detail of the lawyer bleating, "Thank you, your honor."

Abuse of power also worked.

To further the kickback scheme, the center said, Conahan shut down Luzerne County's juvenile detention facility in 2002, contending it was unsafe. Then he persuaded the county commissioners to enter a 20-year, $58 million agreement with PA Child Care L.L.C. to lease the new private facility. Soon Ciavarella was filling the prison beds with delinquents, allegedly in exchange for kickbacks.

"Conahan had no power to close the center like that," said Ronald P. Williams, a member of the interbranch commission and a former commissioner in nearby Wyoming County. "Why did the commissioners allow him to get away with it?"

Well, I can think of a number of reasons why, some of them the same sort of thing Florida county commissioners routinely do in Carl Hiaasen novels.  Whatever the explanation, it shows that boldly violating the law can be an extremely effective technique for a judge.

Big helpings of self-righteous bullshit are always indicated:

Ciavarella's "zero tolerance" policy was warmly embraced by school administrators, teachers unions, and many teachers, Muroski and Williams said. "Everybody loved him," said Muroski. "He was putting bad kids away. That's how it was perceived."

Black-hole disciplinary boards are extremely helpful, by tricking would-be whistle-blowers into whispering their secrets into a drainpipe:

The Pennsylvania Judicial Conduct Board, which is charged with investigating and prosecuting complaints of wrongdoing by judges, received an anonymous complaint about Conahan in 2006. However, the board has strict confidentiality rules, and it has refused to say whether it followed up on these allegations.

The Board had information that should have triggered an investigation long before 2006.  In 2001, Ciavarella told the Wilkes-Barre Times Leader that "Even if they come in and tell me they don't want a lawyer, they're going to have one."  That is, the judge publicly acknowledged that he wasn't informing juveniles of their right to an attorney.  Not a matter of interest to the Board, so far as we can tell.  (Yeah, yeah, yeah, it's bound by confidentiality rules, imposed by the people it's supposed to be investigating.)

Then, as the New York Times reported, there was "the 56-foot yacht in front of the judges’ Florida condo."  If the Board didn't know the judges were crooked, it was only because it didn't want to find out.

And that's why the law is optional for judges.

Thursday
Oct292009

399. My, aren't we special

I think it's probably coincidence that these two items appeared within days of each other.  But I don't think their results aren't coincidental.  First, from D.C. federal court:

The Federal Trade Commission cannot force practicing lawyers to comply with new regulations aimed at curbing identity theft, a federal judge ruled today at the U.S. District Court for the District of Columbia.

The decision offers a reprieve to law firms across the country, which faced a deadline this weekend to put in place programs to meet so-called “Red Flags Rule” requirements. The rules would have forced firms to verify the identities of potential clients.

Then, from down South, there's this:

In a case of first impression, a federal appellate court ruled Monday in the prosecution of prominent Miami attorney Ben Kuehne that criminal defense lawyers can't be charged with taking ill-gotten proceeds from defendants as legal fees.

The 11th U.S. Circuit Court of Appeals affirmed a decision by U.S. District Judge Marcia G. Cooke, who dismissed a money-laundering conspiracy count against the attorney for vetting money that went to Miami celebrity attorney Roy Black to defend Colombian drug kingpin Fabio Ochoa.

Kuehne, who has represented a number of high-profile clients including Vice President Al Gore in the 2000 presidential recount, was charged along with two Colombians. Prosecutors charged Kuehne knowingly sent drug money through Colombia's black market peso exchange to pay Black and his team.

Cooke ruled in December that defense attorneys are exempt from prosecution under the money-laundering statute. Congress in 1988 carved out an exemption for lawyers to protect a defendant's Sixth Amendment right to counsel of their choice.

As far as I know, both rulings are legally correct, or at least "correct" in the sense of not being subject to getting overturned anytime soon.

Still, it's comforting, isn't it, to know that the people who apply law to lawyers take such good care of us?  For example, in all my assiduous reading of Crawford decisions (see post 63)--and all my non-assiduous reading, too (fed habe cases can be insanely boring to read)--I've only discovered one category of civil proceeding in which the full evidence-suppressing regime is enforced.  It involves disciplinary actions against members of one particular profession.  Here's a hint: it's not the medical profession.

Tuesday
Oct272009

398. Regal condescension

Over the summer New Scientist reported on research by Don Moore about the effect of the advice-giver's confidence on the willingness of humans to accept the advice:

EVER wondered why the pundits who failed to predict the current economic crisis are still being paid for their opinions? It's a consequence of the way human psychology works in a free market, according to a study of how people's self-confidence affects the way others respond to their advice.

The research, by Don Moore of Carnegie Mellon University in Pittsburgh, Pennsylvania, shows that we prefer advice from a confident source, even to the point that we are willing to forgive a poor track record. Moore argues that in competitive situations, this can drive those offering advice to increasingly exaggerate how sure they are. And it spells bad news for scientists who try to be honest about gaps in their knowledge.

It explains a lot about TV and talk radio, doesn't it? 

But also about Victoria's Chief Judge Marilyn Warren.  By saying her absurdly empty things in a tone of haughty, indeed regal, condescension, she successfully cowed an Australian political editor.  (See post 397.)  But there was a real meaning half-hidden in her words, one that was expressed more forthrightly by the Washington Supreme Court when it construed a statute containing this definition:

"Agency" includes all state agencies and all local agencies. "State agency" includes every state office, department, division, bureau, board, commission, or other state agency.

That definition, the state's highest court found, did not encompass courts. (That's a link to the dissent, because it's the only opinion of three that manages to maintain contact with reality--the TZ effect makes links to the other two opinions unstable.)

State courts aren't state agencies in the same sense that judges aren't public servants (see post 397), and for the same reason that federal courts refer to the prosecution as "the government," as if they were something else.  (See post 267 and post 13.) 

Such statements do more than express the judges' vanity.  They also relieve judges from the cognitive dissonance of wielding undemocratic political power in a democratic polity.  Judges can tell themselves that, although they exercise the power of the polity, yet their power isn't political, because it's legal, see?  It's an entirely different word.  I mean, except for the "al" and the other "l" they have nothing in common.

It's telling that Chief Judge Warren referred to the "fundamental constitutional principle upon which our democracy is built."  Whenever judges start talking about democracy it means they've become self-conscious on the subject, which should always make you wonder why.

The Washington Supreme Court, similarly, explained that by declaring themselves to be something other than a state agency, office, bureau, division, department, etc., they were humbly acquiescing in the will of the Legislature, which, after all, hadn't seen fit to amend the statute in order to correct the implication of an obscure dictum from a 1984 decision.  (What makes you think I'm making fun of their reasoning?) 

Monday
Oct262009

397. The power of the wig

In the cinders of Victoria, Australia, "The Hon. Rob Hulls MP, Attorney-General and Minister for Racing" (what makes you think I'm making fun of his titles?) gave a speech in which he said:

I challenge the assumption that a truly independent and robust judiciary should not be able to withstand an element of public scrutiny - an engagement with the community that enables it to be stronger and more effective.

I see judicial independence as a sword rather than a shield, and a strong judiciary as one that is on the front foot - out in the community, explaining the principles behind decisions without having to make excuses, bringing the population with it.

The AG further said that the legal profession as a whole needs to ''descend from its lofty view of itself as a detached and immutable system'' and instead ''embrace its true purpose as a service available for those who need its assistance''.

Finally, he added:  "As especially well-remunerated public servants, people look to judges for exemplary behaviour - and they do so in the assumption that those who sit in judgment upon others cannot do so properly if their own conduct is tarnished."

Them's fightin' words, mate.

Frankly, I don't understand how anybody can take seriously a person who dresses like this.  But Australians, apparently, have figured out a way.  Maybe it's the cultural cringe or something.  Who knows.

Anyway, in her blistering response to the AG, Chief Judge Marilyn Warren zeroed in on the truly offensive part of the AG's speech:

"Let me dispel these misconceptions,'' the Chief Justice declared. Which ones? ...  that judges are ''lofty''; and that they are especially well-remunerated ''public servants''.

''Certainly judges are well remunerated by community standards,'' she said. ''However, judges serve the public; we are not 'public servants'. To suggest so displays a complete misunderstanding of the structure of government.

''The judiciary is a separate arm of government and not part of the executive, which public servants are. It is a fundamental constitutional principle upon which our democracy is built.''

I'm just about certain she was being serious. It's a fundamental constitutional principle upon which Australian democracy is built that you can't be a public servant unless you're assigned to the executive branch.  An understanding of the structure of government requires learning the distinction between "serving the public" and being a "public servant."

The peculiar thing is that the silly wig works.  How else to explain the apparent reality that The Age's political editor thought the chief judge was saying something, and not merely confirming the pinpoint accuracy of Hulls' speech.

Wednesday
Oct212009

396. Settlement authority

My computer and I have taken turns being sick recently.  The computer, though, was under warranty, because it was a replacement for the one that ran afoul of the Death Panel.  How well I remember sitting in the uncomfortable plastic chair, too intimidated to shift my weight in case my thighs squeaked.

Then, with the tread of doom, a phalanx of gray-suited bureaucrats wearing surgical masks came down the hallway.  They stopped immediately before me.  "Mr. Jacobsen," the one at point said, but not as a question.  Holding up a card, similar to a cop's Miranda card, he read without emotion: "We understand and deeply empathize with your attachment to your grandmotherboard.  But the Panel has determined that the social utility of continued existence is outweighed by inconvenience and cost of computer-store over-utilization."

I must have looked confused in the ensuing silence, because one of the junior 'crats near the back made a slicing motion across his neck: "Qcrchchchch!"

The new computer did great guns for a good month.  Well, actually fairly-good guns.  Kind of okay-guns, really.  The front USB ports couldn't be counted on to gun at all, and they were ruthlessly replaced.

But when I tried to get a USB-board replacement for myself, guess what?  "Elective surgery."  I was invited to initiate the 2-stage appeal process.  My "Patient's Bill of Rights" guaranteed that the second ruling upholding the denial would be by a genuine human being who would actually look at the file.  But it all sounded too much like my day job and I bagged it

Meanwhile, in Cleveland, life is interesting for Judge Bridget McCafferty, and not just because she's still (apparently) using her high school graduation photo as her official portrait.  Here's an online version of her ego wall.  Interesting how the faint whiff of the Tammany tiger exhibit carries through the Net.

She practiced law for four years, from '01 to '05, before taking the water-carrying political jobs that got her where she is today.  The result is, it would seem, a judge about as bad as you would expect.  Her website repeats at tedious length her wish to have every case before her settle. Twice she requires counsel to have "settlement authority."  It doesn't matter if the client wants to go to trial.  Counsel's first duty of loyalty is to the judge and she enjoys her free time.

And, according to a recently-filed civil suit, she takes her role as mediator quite seriously:

Letter Perfect Group Inc., which had sued D-A-S Construction over nonpayment of $237,000 worth of subcontract work at Cleveland Browns Stadium, settled for an undisclosed amount in 2008.

But in the lawsuit filed Wednesday in Cuyahoga County Common Pleas Court, the company cited information uncovered by federal investigators suggesting that McCafferty and Dimora each spoke privately with D-A-S's then-owner Steven Pumper and promised a favorable resolution to the suit.

Pumper has resigned from the company and pleaded guilty in July to nine corruption-related crimes, including bribery, obstruction of justice and lying to the FBI.

Pleading guilty to nine charges - my, my.  That's guiltier than the average contrite federal defendant.  But who's Dimora?  (That one's easy.)  And what's it have to do with Judge McCafferty? 

Among the information contained in the federal charges against Pumper were transcripts of secretly recorded phone conversations in which a voice believed to be Dimora's promised Pumper he will talk to McCafferty's staff attorney and "try to get things worked out" in the case.

In conversations after the settlement hearing, McCafferty apologized to Pumper for not helping the case settle at a lower cost to him.

"I know it's more than you wanted to pay but I hope you can live with it," McCafferty said. "I was trying to get it out at $175,000, but I just couldn't get it done."

Later in the call, McCafferty told Pumper she would see him soon, to which he replied, "Next fund raiser." 

One thing about those blue-collar Cleveland pols.  None of this effete beating around the bush. 

Having shaken the dustiness of civil practice from my shoes years ago, I admit it hadn't actually occurred to me that settlement conferences provide ideal settings for shakedowns and bribe-solicitations.  The judge tells the tightwad or otherwise-disfavored that the odds of success are small, and since the judge is in a position to fulfill the prophecy with summary judgment or eccentric evdientiary rulings (you're welcome to spend $100,000 on an appeal), the suggestion gets results.

Perhaps we'll see if there's any truth to the wiretaps, and just how badly the judge's words have been taken out of context.  But don't count on it.  You know who makes the rules about immunity from suit.

Sunday
Oct112009

395. No P.A.I.N., no reform

Daniel Gilbert, author of Stumbling on Happiness (and even a blogger, sorta), gave a talk at the Pop!Tech conference a couple years ago in which he explained why humans have such a hard time appreciating global climate change as a threat. I think it also goes a long way to explain things like today's heartbreaking LA Times package fo stories about throwaway children. 

"At least 268 children who had passed through the child welfare system died from January 2008 through early August 2009, according to internal county records obtained by The Times. They show that 213 were by unnatural or undetermined causes, including 76 homicides, 35 accidents and 16 suicides."

I'm not suggesting the kids' deaths are like global warming, of course.  But our response as a society is almost identical.  Gilbert gives good reasons for that.  Here they are from the horse's mouth, while my bullet-point summary follows.

First, to borrow from Frans de Waal: "The human species is what zoologists call 'obligatorily social', that is, its survival is closely tied to group life and cooperation."  Major portions of our brain are devoted to figuring out other people, intuiting what they're thinking, what they're about to do next, and so on.  We don't respond the same way to threats that lack faces.  After showing pictures of Saddam Hussein, Hitler, bin Laden and Stalin, Gilbert says that if global warming were caused by "veddy, veddy bad men with mustaches," we would be declaring war on global warming.

Second, we perceive abrupt changes much more readily than gradual change, as he illustrates with a short video-within-the-video, starting around 4:10 from the end (the silo and barn).  The more accurate way of phrasing the point is that we are much more sensitive to relative rather than absolutely change, which (Gilbert explains) is the difference between our perception of lighting one candle in a dark room and lighting three of them in a brightly-lit room.

Third, we respond much more strongly to things that strike us as immoral, indecent, wrong in a button-pushing way, like  or the examples Gilbert gives, gay sex and eating dogs.  Gilbert points out that sex and food are things our species has spent a lot of time obsessing about for millions of years (he might have added death), but the examples of taxes, guns and Nazi-Communists taking over our nation suggest a million years isn't a strict evolutionary requirement.

Fourth: For obvious evolutionary reasons, our brains are especially well-designed to detect immediate threats, such as predators, other humans, etc.  Only the frontal lobes, that last-second addition stuffed in behind our foreheads, a retrofit feature that cost us our cool streamlined shape, worry about the future.  They occupy only a small fraction of the brain mass.

Gilbert even provides a handy acronym to remember the four features of a threat that our brain will respond to immediately and effectively: P.A.I.N., for present, abrupt, immoral, now.

LA County's child welfare system doesn't possess even one of those features.  Treating thousands of poor children badly is immoral, but not in the taboo-breaking sense of eating puppies while having gay sex.  That's why the Times provides profiles of two particular children, knowing readers won't empathize unless the statistics come with faces - treating two children badly is wrong in the taboo-breaking way. 

But, even so, there's no face to the institutions and attitudes that killed them (unless TV reporters find a scapegoat to hound out of office).  There's no threat that our brains are programmed to perceive as a threat, even as we know that thousands of children are threatened.  We even know, in a statistical kind of way, that the maltreatment increases the risk that their futures could intersect with our own in ways that are deeply unfortunate to ourselves.  But if the worst happens (to us), our survivors will have P.A.I.N. galore.

The deaths of children in the county's care isn't anything abrupt.  It's more like a slowly leaking faucet.  Here's a list of 98 fatalities from January to August of this year.  Imagine if a quarter as many kids had been killed all at once in a school massacre.  That would be different, wouldn't it? - and for once I'm not being sarcastic when I ask a question in this blog.  I think the news would feel very different.  It's the difference between horror and despair.

As for the "N as in now," as Gilbert says we accept gradual change that we would be up in arms about if it happened all at once.  His examples include smog alerts and fish that are dangerous to eat.  The enormous increase in our incarceration rate since 1980 and our rate of violent crime since 1960 are, I think, even more telling examples.

The LA Times packages shows that we live in a society that tolerates the maltreatment of children, much as we prefer not to believe that.  Those of us who work in the criminal law know that out government tolerates or even excuses the perpetration of violence against people who share certain demographic characteristics.  (Take-home safety tip: be middle-aged, male, well-to-do and white - in short, as much like the average judge as possible.) 

Gilbert's insights suggest that the refusal of those with authority to accept responsibility for their official actions might be more, or rather less, than mere hypocrisy slathered with sanctimony.  It might be the hunter-gatherer brain asserting itself.

Wednesday
Oct072009

394. Without consent

The ever-present (for lawyers) danger of thinking that legal categories have real-world significance (see post 392) is shown again by Emily Bazelon and Rachael Larimore's Slate article about false accusations of rape.  The author's never get around to explaining what makes an accusation "false," so I'll do it for them.

Many states still require the prosecution to prove "lack of consent" beyond a reasonable doubt.  That's the usual lawyer's way of phrasing it, and the phrase shows up in the article.  But the phrase disguises its own meaning.  What it really means is that violently coerced sex is presumptively lawful.

In jurisdictions that require the prosecution to prove lack of consent, the law presumes the lawfulness of any sexual act, no matter how violent, and even if accomplished with a gun or knife.  Men are allowed to force women (and other men) to have sex - unless a prosecutor can prove a negative beyond a reasonable doubt many months or years later.

In practical terms this means that, with limited exceptions, rape is lawful in America.  The numbers prove it.  The National Violence Against Women Survey, sponsored by the Centers for Disease Control,  found that "[o]nly 19.1 percent of the women and 12.9 percent of the men who were raped since their 18th birthday said their rape was reported to the police." 

Of that number, less than half, and according to one study as few as 19%, are referred for prosecution.  Of that number, only a certain percentage - between 46% and 72%, depending on the study - is actually prosecuted.  (These last figures are taken from this article by Rebecca Campbell et al.

All told, Campbell et al. summarize, "only 14% or 18% of all reported sexual assaults are prosecuted."  If we use only the higher numbers, that's 18% of 19.1%, which works out to 3.4%.

Given these numbers, it's entirely accurate to say that 29 out of 30 times, violently coerced sex is non-prosecutable.  And what's the difference between that and non-criminal? 

Words.  That's the only difference.

The "false" claims of rape Bazelon and Larimore are writing about include 96.6% of all rapes plus the actual incidents when a person, acting out of spite or neurotically seeking attention, fabricates an entire encounter. 

Of course false accusations occur - people are capable of anything.  But by the same token, false recantations occur, and I think it's safe to say they are far, far more common.  The legal system goes out of its way to provide reasons for falsely recanting.  Judge Peter Paul Olszewski Jr., the Luzerne County buddy of gangsters and gangster judges (see post 390), ordered a victim to undergo an involuntary psychiatric examination.  What to guess what crime was (allegedly) committed against her?

Now try to imagine him ordering an involuntary psychiatric examination of a man whose memory was spotty after he was beaten outside a bar.  Can't do it, can you?

I've long thought that rape crisis centers are tort suits waiting to happen.  If a counselor recommends that a victim of rape report it to police, or cooperate with a prosecutor, I think the counselor could be vulnerable for intentional infliction of emotional distress

Three of the four elements could hardly be contested: a counselor who encourages participation in the criminal justice system is likely causing what clinicians call "secondary victimization," and no counselor with any experience could fail to foresee that result.

Here's the abstract of one study of "predominantly low-income, African American female veterans and reservists."  (Black, poor, female - three strikes.)  About two-thirds of the rapes occurred in civilian life.  The researchers found:

Most victims who sought help from the legal or medical systems (military or civilian) reported that this contact made them feel guilty, depressed, anxious, distrustful of others, and reluctant to seek further help. Secondary victimization was significantly positively correlated with posttraumatic stress symptomatology.

We can only assume that the 19.1% of victims who report their victimization to authorities are either iron-willed and prepared to endure a war of attrition (like the woman Judge Olszewski was persecuting - the case against her [alleged] attacker has dragged on for four years already), or else they don't understand what they're subjecting themselves to. 

Falsely recanting is be the only way to stop the ordeal.  It's precisely equivalent to a torture victim falsely confessing.

An objection can be raised to that 19.1% figure.  That's 19.1% of women (and 12.9 of men) who say they were raped.  But we have only their word for it.  How can we know they're telling the truth?

The obvious rejoinder is: what would be the point of lying to the researchers conducting the survey?  What advantage would it confer on the liar?  Besides, doesn't it seem psychologically more plausible that people would conceal pain and humiliation than that they would boast of it? 

(In fact, researchers consistently find that adults underreport their experience of sexual abuse in childhood, as can be determined by comparing their recollections to contemporary protective services records.)

The less obvious but, I think, more pertinent rejoinder is: That's the point.  Of people who believe themselves to be the victim of one particular serious violent crime, more than 80% conclude they're better off not reporting it.  In terms of their own psychological health, almost certainly that conclusion is justified.

One reason it's justified is the high likelihood that the legal system will conclude that the man was allowed to use violence to force her to have sex, because she "consented," in the only-in-Law-World sense that the prosecution was unable to prove beyond a reasonable doubt that it didn't happen like that.  If the prosecution can't prove that beyond a reasonable doubt, her claim of rape was "false" whether or not it accurately reflected reality. Reality is irrelevant.

When Bazelon and Larimore talk about false claims, they're talking about a legal label and not the behavior of human beings.  Unfortunately, they don't seem to have recognized the difference.

Sunday
Oct042009

393. The three-toed magistrate

From time to time I regret mean things I've said and done, such as in chapter 13 when I described federal magistrate judges as a special category of retired-in-place judges.  Not all magistrates give in to the job's vast inducements to intellectual sloth, I wrote, but many do.  The chapter goes on to explain the occupational dynamics that cause federal magistrates "to cluster around the two poles of great and no skill."

Since I've been updating the Crawford outline for the NCPCA, part of APRI, a unit of NDAA (the weird thing is that sentences composed of strings of apparently-random letters can begin to look normal after awhile), I've gotten to read judicial opinions from all over the country, an average of about 4 new ones every work day.

Thank goodness for that, because it introduced me to the work of San Diego's federal magistrate (i.e., assistant) judge Louisa S. Porter, who kindly helped me get over my momentary sentimental regret. In a decision dated September 11, 2009, available on Westlaw but lamentably not on the free Web, in a habeas corpus case called Norris v. Dexter, she analyzed the confrontation clause implications of a private conversation between acquaintances.

I can't recall if the friends were also what lawyers call coconspirators (it means "conspirators"), but it doesn't matter.  Whether they were or not, analyzing the confrontation clause issue is easy: there is none under Crawford (part IIIA and footnote 9).

Or, at least, it's easy for people other than Magistrate Porter.  After correctly reaching the conclusion that the statements at issue weren't "testimonial hearsay," the only type of evidence with which the sixth amendment is concerned (see for yourself - though you might need to squint to read the tiny type between the printed words), she then continued:

Even if Ms. Norris's statements are deemed "testimonial," the confrontation clause permitted the use of her out-of-court statements. ....  The confrontation clause permits the use of out-of-court statements when 1) the declarant is unavailable and 2) the statements bears indicia of reliability.  Roberts, 448 U.S. at 66 ...  The reliability is inferred when the evidence falls within a firmly rooted hearsay exception.

This is gibberish on so many levels it would be tedious to list them.  Suffice to say that Roberts, the case she cites, was overruled by Crawford, the case she had cited just a paragraph earlier.  "Indicia of reliability" and "firmly rooted hearsay exception" have been of only historical significance for five and a half years.

This isn't an obscure area of the law, either.  Westlaw's database contains over 7,000 decisions construing Crawford during the past 63 months, and of course trial courts have made tens of thousands of additional decisions that haven't made the database.  Heck, there's even a whole blog devoted to it

How is it even possible for a person who expects to be addressed as "your honor" to maintain such complete ignorance about an active area of the law for half a decade?  Even more basically, how is it possible for anyone to perform a job for five years without learning how to perform it?  The answer is up there in the first paragraph, I'm afraid: intellectual sloth.

If you have sufficient contempt for the parties and lawyers, and/or a sufficient lack of self-respect, being a magistrate judge is the easiest job in the world.  Pays well, too.

Sunday
Oct042009

392. "Deciding a case"

One of the real problems of being a lawyer is that, if you're not careful, you might begin to think that legal categories are meaningful outside of the artificial world of the courtroom.

For example, the New York Times recently ran an article on the number of "cases" decided by the Supreme Court.  Left unexamined was the assumption on which the article rested: that "deciding a case" is a fixed and meaningful category, and therefore a rational way to analyze the court's output.

But it's not.  Here's one way of demonstrating why not.  As lawyers know, the Supreme Court's official reporter is called United States Reports.  It's the only bound collection of judicial opinions published by the federal government. 

Volume 150 of the United States Reports appeared in 1893, 106 years after the Constitution was ratified.  The Court then hit a steady pace, requiring 44 years to hit volume 300 (1937) and exactly the same number of years to reach volume 450 (1981). 

But in the succeeding 25 years, 97 new volumes were churned out.  The most recent bound volume is number 547, covering what the court insists on calling its 2005 term, although most of the opinions from that term appeared in 2006.  If that pace is maintained, the current 44-year period will produce 171 volumes, an increase of 21 volumes from the previous two 44-year periods.  That's an increase of 14%.

But while the pace of new volumes has increased by 14% since 1981, the number of "cases" decided has plummeted by half, as the Times' graphic shows.  That implies that the average length of each opinion has more than doubled.

Now, I recognize that "volume" is an imprecise measurement of output, since the size of volumes varies.  But while it's an imprecise measurement, I think it's a valid one, because the variation is within certain broad limits, and those broad limits are enough when you're talking about such a huge different.  If the number of pages increased by 50% rather than over 100%, the point would be unchanged.

Besides, anybody who follows the court already knows it's true: the court's opinions today are on average longer - much longer - than the opinions of a hundred years ago.  Just looking at the final opinions from last June, we find one clocking in at 89 pages.  Here's 93 pages.  Going back two years we find one that topped 150 pages.

It seems self-evident that such opinions aren't a record of the justices "deciding cases" - resolving a legal dispute between two parties.  It wouldn't be possible to fill up 150 printed pages with a discussion of a case already resolved by a succession of lower judges except by resorting to the technique employed by Jack Nicholson's The Shining character

The enormous length of modern opinions means the justices aren't writing about the particular case.  They aren't "deciding cases."

Common law courts have always made new law.  Elected politicians who try to score points by pretending to believe the opposite are only eroding their own power by promoting the same idealized vision of the judiciary that judges themselves use to poach on the domains of the democratic branches. 

So my point isn't that the Supreme Court is making law. It's never done anything else.  Rather, my point is that the modern court makes law in a much different way than previously.  It maintains only the outward forms of the old way, complete with case caption and so on.

 

Originally the common law system worked unconsciously, so to speak, with judges deciding individual cases until a sufficient number were decided that unifying abstract principles could usefully be drawn from them.  When I was teaching paralegal studies I would illustrate this by asking the students:

  • If all you know about a legal problem was that 17 judges, after hearing from 17 sets of lawyers, said the answer was "yes," while only 3 judges, after hearing from 3 additional sets of lawyers, said "no" - if that was the only thing you knew - which answer do you think is more likely to be the better one?
  • Also, given that 20 judges had reached their decisions after hearing from 40 lawyers, how likely is it that another triad of lawyers/judge will think of anything that hasn't already been considered?

That doesn't mean the 17 judges are necessarily right, or that the 61st head would never think of something overlooked by the previous 60, but the probabilities are pretty clear.  That was how the common law system worked.  It was law derived from experience.

(BTW, I think that was what Holmes meant with his famous apothegm "The life of the law has not been logic; it has been experience."  But it was entirely typical of his style that the sentence seems so brilliantly clear on first hearing, and progressively less clear on each repetition.  He had a knack for what might be called disguised obscurity.)

The increased length of the Supreme Court's recent decisions means that it's doing something different from what the common law courts did.  It's not deciding cases and then retrospectively abstracting doctrine from the decisions.  It's doing the opposite: announcing new abstract doctrine and then applying it (increasingly in a slapdash, perfunctory way) to the particular case that provided the excuse for announcing the doctrine.

The Supreme Court's opinions have become so long because the court isn't deciding cases at all.  The Times' mistake was to assume that the phrase "deciding cases" had some fixed meaning that could be used to compare the Supreme Court of today with that of 20 or 30 years ago.  It doesn't.

Thursday
Oct012009

391. Et tu, Minnesota?

Minnesota judges have made a poor showing in this blog.  Sure, there was Minneapolis's Judge Hudlund embarrassing herself in her campaign for the Supreme Court and then trying to lie her way out of it (see post 366), but that was a campaign gaffe (=moment of unintended candor).

Now, as if to prove that there's more to the state than hot dish, a gangster past (see post 43) and, well, you know, comes Timothy L. Blakely, who used to work as a judge in this dorky courthouse (I admit I kinda like it - it's different, y'know?) - and, sadly, will starting doing so again next March, unless he has a sudden attack of self-respect and resigns.

While going through an apparently bitter divorce, Blakely ran up legal bills totaling $109,501, of which he paid only 41%, his lawyers writing off the balance.  His lawyers, meanwhile, operated a mediation service, of which anybody who runs up $109,501 in legal fees for his half of a divorce really should have given a little more consideration.  Particularly when, as Judge Blakely claimed after the fact (NB: up front! get your fees up front!), he couldn't afford to pay for more than 41% of the services he contracted for.

In a series of e-mails, the judge pressured the firm to write off his bills - to give him something, but not for nothing.  He offered something in return: "There is also very substantial past, and future, benefit to you from significant business referrals we have made in excess of the compromise we are asking for."  (Did he really use the royal we - the majestic plural - in his private emails to his lawyer?!  Maybe not, as we'll see.) 

How, you might wonder, did the arrangement ever come to light?  Remember, it was a nasty, expensive divorce, with husband and wife paying what must have been in the neighborhood of $200,000 to their respective lawyers to avoid behaving like human beings to each other.  And the judge's ex revealed the nature of the discount to the Minnesota Board on Judicial Standards.

Blakely at first tried to brazen it out, but something happened - an attack of conscience? a subpoena for his computer's hard disk? a lawyer who didn't care to fall on her sword for him? - to make him come clean.  His supplemental response to the Board is a small masterpiece of North Country weaselry:

I don‟t recall that this was my intention at the time that I wrote the email, but I clearly decided to include these words and a reasonable inference from their use could be that I was offering a quid pro quo.

Offering a quid pro quo - i.e., demanding a bribe - would be bad enough, but I think the judge was doing something more aggressive than that.  I think he was threatening.  I gather the firm's revenue depended in significant part on the goodwill of judges referring cases to them for mediation.  If so, the prospect of displeasing a judge would be an uncomfortable one. 

Blakely sat in the Twin Cities' southeastern suburbs, and a few quietly critical words among his fellow judges could be expected to devastate an uncooperative mediator's bottom line.  That, indeed, could be the meaning of his use of the plural "we" - it might not have been the megalomania talking.  He might have been suggesting that he was speaking on behalf of his benchmates.

It's interesting to note that his attorney hasn't been disciplined for giving in.

At any rate, the Minnesota Supreme Court came down on Blakely like a feather pillow: six months' suspension without pay.  Randi James points out that the amount of pay he loses is actually less than the discount on his legal bills, meaning that he turns a profit on the transaction.

The Supreme Court announced, with the orotund pomposity characteristic of these things, that "a sanction of censure and suspension from judicial duties for 6 months without pay is sufficient to restore public confidence in the judicial system."

Of course, they didn't ask the public's opinion about the public's confidence.  I'm strongly inclined to believe the Minneapolis Star-Tribune is a better judge of that:  "The judge's actions over several years betrayed the public's faith in the judiciary. For that, he should have been permanently relieved of judicial duties."   

The Supreme Court's stated reasoning is lame almost beyond belief: "although extremely serious, Judge Blakely‟s misconduct is not as egregious as the misconduct in the three cases in which we have exercised our power to remove a judge."  The justices were saying that the standard for removal of judges was set by judges who were removed.  Those disgraced ex-judges led by example. 

Good thing they weren't all murderers.  Otherwise no lesser felony would provide grounds for skimming the scum off the top of the judicial pond.

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