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Tuesday
Sep292009

390. How did they get away with it?

Perhaps the most astonishing thing about the gangster judges of Luzerne County, Pennsylvania (see post 389) is how long they got away with it.  It's not like they were sentencing children in secret, or even (if the stories are true) receiving famous mobsters in their chambers in a surreptitious manner.  They were doing it all right out in the open.

One clue is suggested by this self-righteously defensive editorial statement from the managing editor of the local newspaper, the Times Reader, explaining why the paper declined to publish a photograph of a sitting judge - the  court administrator, Peter Paul Olszewski Jr. - vacationing in Florida with "convicted drug dealer Ronald Belletiere alongside then president judge Michael T. Conahan."   (For an introduction to Mr. Belletiere, see post 389.)

That might sound newsworthy, mightn't it?  The managing editor explained that they didn't publish the photo, because it was something voters would consider significant:

Which brings us to the anonymous letter and snapshot. Ask yourself who would have this photograph? Who would send this letter and why?

People have an agenda when they send information to be published. Usually it is innocent. They want to mark an occasion, publicize their bake sale, or take credit for a project. Clearly the anonymous letter was an attempt to undermine Olszewski’s retention vote in the Nov. 3 election.

By publishing it, the media becomes a part of — a tool of — an anonymous attempt to scandalize Olszewski.

It wasn’t new. It wasn’t fair. We decided not to compromise The Times Leader.

By not publishing it, of course, the paper equally intervened in the campaign.  And what difference does it make if it was supplied anonymously?  It's a photograph, not some wild allegation.

But then, it's not hard to understand why it was supplied anonymously: the supplier didn't want to be squashed like a bug.  The paper apparently understood that point all too well.  The managing editor's words, I think, translate into: when in doubt, kiss the ring.  You don't want any $3.5 libel judgments handed down, now, do you?

[BTW, today it was revealed that Judge Olszewski, a former DA (and son and namesake of a prior judge Olszewski, making him another one of those coasting-on-parent's-name-ID judges), flew down to Florida on a flight arranged by "Robert J. Powell, a suspended Hazleton-area attorney who has pleaded guilty to bribing two former county judges in the kids-for-cash scandal."   The judge says he didn't know who arranged for the jet, because Conahan lied to him, which is certainly plausible.]

Whether the paper was intimidated, or angling for favors, or just too tied into the power structure to want to question it - or knew exactly who the "anonymous" supplier of the picture was, and wanted to spite him or her - I can't say.  It's possible the thought process was as the managing editor described, although his picture doesn't make him look like a drooling imbecile. 

But the picture episode suggests one reason the gangster judges got away with it as long as they did: a lapdog press.

But lapdogs come in many colors.  The Pennsylvania Judicial Conduct Board had complaints against the judges (this one is from 2006, and we know about the one from 1991), and in 2002 the state's appellate court chastised Ciavarella for not informing juveniles of their right to counsel before locking them away for months and years.

And then there's former Judge Ann Lokuta, to whom this blog owes at least half an apology.  (See post 258.)  Lokuta claimed that Ciavarella and Conahan conspired to get her removed from the bench because she wouldn't join their reindeer games.  The Judicial Conduct Board responded with guns blazing -- against Lokuta.  Back in post 258 I remarked on the unusual emotion in the disciplinary counsel's brief.  The newest filings are, if anything, even more personal and belittling.

Hank Grezlak from The Legal Intelligencer summed up the meaning of the Lokuta case last spring.  It's not so much a case about her any more. It's about a Judicial Conduct Board that not only failed to notice the stench, but allowed itself to be used by the gangsters -- that is, assuming that a more straightforward, less psychological explanation, such as, say, one involving Big Billy, is out of the question.  Caesar's wife and all that, right?  I mean, it's absolutely impossible that the Judicial Conduct Board...?  Nah.  No way.

Sunday
Sep272009

389. Gangster law

Everyone knows it was pretty bad in Luzerne County (Scranton Wilkes-Barre) when the top-heavy courthouse was presided over by Judges Mark A. Ciavarella and Michael T. Conahan, who last February pled guilty to selling children to a private detention facility, but recently were permitted to withdraw their guilty pleas.

In case you missed it,

Prosecutors allege the two judges participated in a scheme in which Conahan, the northeastern Pennsylvania county's former president judge, shut down the county-owned juvenile detention center in 2002 and signed an agreement with PA Child Care L.L.C. to send youth offenders to its new facility near Wilkes-Barre.

Ciavarella, who presided over juvenile court, sent youths to the detention center and to a sister facility in Western Pennsylvania while he was taking payments, according to prosecutors.

The scandal led the state Supreme Court to overturn hundreds of convictions on grounds that Ciavarella violated the constitutional rights of youths who appeared in his courtroom without lawyers for hearings that lasted just a few minutes. More convictions are under review.

Former PA Child Care owner Robert Powell, a lawyer, pleaded guilty July 1 to paying kickbacks to the judges. Prominent construction company owner Robert K. Mericle, who built the detention centers, pleaded guilty earlier this month to a charge of withholding information of a crime related to the millions of dollars in payments.

But while everyone knows it was pretty bad in northeastern Pennsylvania, it was actually a good deal worse than that.  At a bench conference way back in 1991, Conahan was identified by a federal prosecutor as an "unindicted co-conspirator" - shades of Watergate! - in the prosecution of a man named Ronald Belletiere

According to a transcript of the testimony from April 9, 1991, Hazleton businessman Neal DeAngelo, called as a government witness, had just said he had been tipped by Conahan, “telling me that he had heard my brother’s name mentioned down in city hall there in reference to some drug activity that was going on and he just wanted to advise me of the name being mentioned.”...

Federal authorities had been investigating Conahan for, among other things, his role in arranging a drug deal through Belletiere and the DeAngelos, Mannion acknowledged. Up until that point, the investigation had been secret and Conahan’s case was separate from Belletiere’s, Mannion added.

“I’m sorry, I can tell you frankly that Michael Conahan is an unindicted co-conspirator in this case, and the testimony that this witness will elicit will show that Conahan had involvement in this conspiracy,” Mannion informed Kosik and Sands.

Although he figured prominently in the testimony, Conahan was neither called to the witness stand nor ever charged as a result of the investigation.

The bench conference wasn't publicized, but according to the Wlkes-Barre Times-Leader, the transcript of a subsequent proceeding contained this elaboration:

Neal DeAngelo asked Conahan whether someone was a good source for cocaine. Conahan replied that person was not and said he would provide a “good source” who turned out to be former Hazleton resident Belletiere, Neal DeAngelo testified.

Fast-forward to the new century.  According to the Times-Leader,

Former judge Michael Conahan has not tried to distance himself from convicted felon Ronald Belletiere.

If anything, their bonds seem to have strengthened in the nearly two decades since testimony in federal court linked Conahan to a drug deal in Miami between Belletiere and a trio of Hazleton men.

Belletiere, formerly of Hazleton, received a 55-month prison sentence for his conviction on drug charges in 1991. He received a substantial reduction for his cooperation in two cases, one of them being the investigation of Conahan whom federal investigators labeled an “unindicted co-conspirator” in the drug deal.

Belletiere got a substantial reduction for cooperating in the investigation of his friend Conahan, who wasn't prosecuted because the evidence against him was too thin.  Hmmm.  Almost as if the two buddies had the feds on a line.

As recently as last March, Conahan and Belletiere appeared to be involved in the Jupiter Yacht Club condominium in Florida owned by the Mountain Top company managed by the wives of the former judges. ...

Resident registration forms filed in 2004 with the Jupiter Yacht Club listed “Ron Belletieri” as a permanent guest of both the Conahans and Ciavarellas.

Belletiere wasn't the judges' only underworld connection.  According to the Wilkes-Barre Citizen's Voice (they love their doubled names in Wilkes-Barre), reporting last July:

Reputed mobster William "Big Billy" D'Elia and former Luzerne County president judge Michael T. Conahan were longtime friends who partied together, used courthouse employees as personal couriers and met frequently to talk court cases over ham and cheese omelets at a family restaurant, witnesses testified Wednesday at a hearing over allegations that D'Elia and Conahan conspired to fix a $3.5 million defamation verdict against The Citizens' Voice.

Describing the same hearing, the Philadelphia Inquirer reported:

reputed Bufalino crime boss Billy D'Elia frequently met with Conahan over eggs at a local restaurant to talk about cases, walked unfettered into the courthouse through a private prisoners' entrance, and had a security guard deliver more than 10 large envelopes to Conahan since 2003.

Wikipedia informs us that the Bufalino family is one of the 26 units of the official Cosa Nostra.  (Accept no substitutes!)  Big Billy himself rates his own page, complete with mug shot.  The Allentown Morning Call has more about the family, and Truth, Justice & Peace gives some of the more twisted bits of the backstoryMafia Today lets you track down some details.

The d'Elia angle casts an interesting light on that $3.5 million libel verdict against the Citizen's Voice.  A man named Robert J. Kulick, whom we'll meet again in a couple days,

testified D'Elia claimed to have been assured by Conahan of a "positive outcome" for the plaintiff in the defamation case, Mountain Top businessman Thomas A. Joseph. Joseph, a friend of D'Elia's, claimed he was defamed by the newspaper's coverage of 2001 raids at his home and business and D'Elia's home.

The Pennsylvania Supreme Court designated a judge from a less-dirty part of the state to hold an evidentiary hearing to determine if the paper was entitled to a new trial.  The judge said it was.

In short, not only did Conahan and Ciavarella act like gangster capos inside their courtrooms, but they actually were gangsters, even if something other than capos.  Extremely useful tools, perhaps.

Wednesday
Sep232009

388. Judge Heckler-Sleaze

Yesterday the Washington Supreme Court heard oral argument in Yousoufian v. Office of Ron Sims.  The unusual thing is that it issued an opinion in the case over eight months ago, in an opinion written by Judge Heckler himself, Richard Sanders.  (See post 383.

The case has to do with the size of a penalty that a trial judge imposes on the government (Ron Sims was until earlier this year the King County executive- an office not to be confused, though I find it confusing, with the mayor of Seattle) for a violation of the Washington open records law. 

On January 15, Justice Sanders ruled that the trial court had abused its discretion by shoveling a ton of money to Mr. Yousoufian and/or his lawyers.  The court should have shoveled tons and tons instead.

Sanders' opinion shook up Washington law regarding the public records act.  For instance, it caused the Court of Appeals to order supplemental briefing in Sanders v. State of Washington.  On March 3, the appellant filed a brief that argued the opinion confirmed that he was entitled to a bunch more money:

In Yousoufian v. Offce of Sims ... the Supreme Court outlined a multifactor framework for awarding penalties for PRA violations.  Yousoufian's framework examines the agency's response to the PRA request and prescribes higher penalties where an agency does not strictly comply with the law or creates barriers to accessing public records. In this case, applying that framework mandates a penalty award on the higher end of the scale consistent with Justice Sanders' original request.  [citations and the Roman numeral III omitted]

Yes, that's right.  Two months after handing down his decision, the Supreme Court justice was filing a brief in a subordinate court arguing that his own decision entitled him to bongo bucks.  As in $600,000 more.

I don't see how any person with half a brain can doubt that Sanders ruled as he did to line his own pocket.  Not that I'm doubting his sincerity, exactly.  I don't doubt he was passionately convinced the decision was right.  After all, he had 600,000 reasons for thinking so.

The shamefulness of the ruling is obvious.  But it was pathetically shameful because even months after the fact he couldn't think of any halfway-coherent reason why it wasn't shameful.  First he claimed "he hadn't seen his attorneys' latest legal brief and didn't know they were arguing for more money based on the ruling he wrote."  That's the old I'm-too-stupid-to-live defense.  He was saying he didn't perceive the connection between the two cases and so was entirely oblivious to the ethical issue.

Then in a newspaper column - published on the next-to-last day in the life of what is now Seattle's virtual newspaper (how sad that the paper with the dull name is the one that survived in print) - Sanders stuck with the too-stupid-to-live defense, but this time he switched the facts underlying it. 

Now, instead of saying he didn't even connect the two cases, he said that, on the contrary, he had checked with "the Court’s own ethics advisor" who assured him that changing the law in a way that benefited his own pending case was no different from a justice going through a divorce who hears someone else's divorce case.

I wonder if it was possible for any reader to fail to notice what a lame analogy that was.  The problem, after all, wasn't with the category of case.  It seems deeply unfair to assume that the staffer in question, Nan Sullins, actually made it.  (I wonder if she has considered suing him for defamation, given that he was publicly calling her professional competence into question.)

Anyway, the Court of Appeals, upon looking around the legal landscape left by Sanders, did the sensible thing and kicked the case upstairs to the state Supreme Court

And then, on a Friday in June (Friday is always the preferred day for releasing embarrassing news), the Supreme Court withdrew its January opinion

I've never heard of a court withdrawing an opinion so long after it was issued.  But then, I've never heard of a state supreme court justice quite so openly sleazy as Sanders.  There have been many far sleazier, of course, but they go to great pains to conceal it.

One clue for Sanders' behavior is, I think, offered by the original P-I article, which quoted Sanders as saying: "I'm entitled to the benefit of the law just like everybody else in the state is."  That's a pretty pure expression of judicial egocentricity.  I said it, so therefore it's law.  And the law is grand and majestic, the very foundation of the Republic and the source of all the liberties Americans hold dear.   And since it's law, I'm entitled to benefit from it. 

A second clue is offered in Sanders' rejoinder column, in which he described his opinion in the Yousoufian this way:

The opinion discussed how these factors related to the Yousoufian case but made it clear each case turns on its unique facts and it is up to the trial court judge, not the Supreme Court to come up with something he thinks is reasonable...

But, as you might recall, the actual holding of the opinion was that the trial court had abused its discretion by not anticipating the result favored by Sanders and his fellow Supreme Court justices.  It wasn't, in fact, up to the trial court judge to come up with something he or she thinks is reasonable.

Sanders may deliberately have been lying in his column, but I doubt it.  I suspect he really believes that because he said those things in his opinion, therefore it doesn't matter what the opinion actually did.  In other words, I'm inclined to think he's sincere in his professed lack of perceptiveness.

According to another paper, Sanders "is now recused" from the Yousoufian case - the passive voice makes you wonder whose idea it was, doesn't it?

Oh, and what was Sanders' suit about?  Why, about his previous excursion into sleazy cluelessness, his decision to interview - on an ex parte basis - sex offenders who then had a case pending before Sanders challenging the state's sexual predator laws.  Sanders himself (and I think the euphemism suggested his awareness that he has something to hide) calls it his "tour of a corrections facility."   (See post 198.) 

Rand Koler's Northwest Law blog at the P-I, which was all over the story last June while certain others were preoccupied writing books for disappearing publishers, contains a reader's comment directing attention to a March 14, 2005 P-I article reporting that Sanders "claims in court papers that when [Christine] Gregoire was attorney general her office tried to 'set (him) up' for an ethics charge during an election year."

That was apparently in reference to the ex parte interviews with sex offenders.  Sanders deserved to be removed from office for that, but his colleagues on the court chickened out, settling on a limp admonishment, which only brought more trouble on the court, as instant karma required.

It was after reading Northwest Law that I remembered where I'd seen the movie before.  When the Washington Supreme Court couldn't bring itself to discipline its own Judge Sleaze?   That was the moment when the Fred MacMurray character refuses to back up Jose Ferrer

Friday
Sep182009

387. Who decides?

The New York Times website this evening runs the same story three times, although nothing indicates that the reporters or editors understood it was the same story.  First, with a color photograph of a costumed man statistically likely to die young, is this headline: "Ruling May Blunt Sports’ Anti-Doping Plans."  Click on it and the verb mysteriously transforms to "weaken."  Most mysteriously of all, the Firefox tab uses the verb "undermine."

Michael S. Schmidt's first two paragraphs read:

A federal court ruling has jeopardized [and not blunted, weakened or undermined] the National Football League’s ability to enforce its drug-testing program and raised significant doubts about the programs of other professional sports in the United States. 

The ruling revealed a new door for athletes to challenge their doping suspensions: players in the N.F.L., Major League Baseball, the National Basketball Association and the National Hockey League may now turn to state courts, hampering the leagues’ abilities to discipline players.

Return to the start page and we find another, nearly-identical story with the headline: "A Free Speech Battle Arises From Videos of Fighting Dogs."  The headline is the same in all three iterations, presumably because it's so hard to come up with acceptable synonyms for "arise."  (BTW, is it true that the Times is the only paper that begins headlines with the indefinite article?)  Adam Liptak's article reports:

The next great First Amendment battle in the Supreme Court concerns, of all things, dogfight videos. ...
[Robert J.] Stevens, 69, had nothing to do with the dogfights themselves. But he did compile and sell tapes showing them, and that was enough to earn him a 37-month sentence under a 1999 federal law that bans trafficking in “depictions of animal cruelty.”

Back to the start page.  The third version of the story, by David D. Kirkpatrick, has the headline "Court Backs Outside Groups’ Political Spending."  (The Firefox tab has the rather more descriptive "Ruling Broadens Financial Influence of Independent Groups During Elections," although the headline writer inexplicably left off the internal quotation marks around "independent") (but then, as Dogbert pointed out this morning, it's not a crime if it's not in writing, and "independent" groups can manage that pretty easily).  

The federal appeals court for the District of Columbia ruled Friday that the government cannot restrict independent political spending by nonprofit groups or political committees, accelerating the judicial rollback of regulations aimed at curtailing the power of money in politics.

As readers, our initial tendency is to react emotionally, which is to say against the result that most strikes us as moral or immoral, outrageous or just right.  The editors who topped the webpage with  football players using diuretics (diuretics??) were probably correct that it was the story most likely to produce a strong reaction, either despite its triviality or because its triviality makes it a cozily manageable subject for Jim Romish outrage.

Us lawyers tend to respond by trying to figure out the legal issues actually at stake (not always easy to do when reading newspaper accounts of legal proceedings) and deciding whether the judge(s) got it right.

But both responses begin at the letter M, so to speak.  They skip right over A through L, because before the judge(s) can get it right or screw it up, someone has to decide that the subject is something that should be decided by judges.

Saying the subject is one to be decided by judges is the same as saying either (a) it was already decided by the people, acting through their democratic branches of government, who enacted a law addressing it (that's what the football case is about), or (b) it's something that the people aren't allowed to decide (the other two cases).

Sometimes the judge(s) will make good decisions, other times not.  That's a given.  Sometimes the decision will be legally "correct" and sometimes not (which can mean either of two entirely different things: justified by pre-existing law or not reversed by a higher court).  Those are secondary concerns, just as "Who won the game?" is secondary to: "Who made the rules?"

"It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it."  What restrains the power of judges from passing the limits assigned to it, assuming such limits exist?

Or, rather: Who decides what restrains it?

Wednesday
Sep162009

386. Go figure

Two divisions of the Department of Justice have released crime figures this month.  The press release from the Bureau of Justice Statistics, reporting the results of the National Crime Victimization Survey, says:

The violent crime rate in 2008—19.3 victimizations per 1,000 persons age 12 or older—was unchanged from the previous year, the Bureau of Justice Statistics (BJS) in the Office of Justice Programs, U.S. Department of Justice, announced today. ...

 In 2008, an estimated 4.9 million violent crimes (rapes or sexual assaults, robberies, aggravated assaults and simple assaults) occurred...

That's 1,930 victimizations per 100,000, of course.  Compare that to the figures released by the FBI 12 days later:

An estimated 1,382,012 violent crimes occurred nationwide in 2008... ["Violent crimes" are defined as "murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault."]
There were an estimated 454.5 violent crimes per 100,000 inhabitants in 2008.

The chief explanation is that little word "simple."  About 3,472,590 of the assaults estimated by the NCVS are classified as "simple."  The survey defines simple assaults as those "requiring less than 2 days of hospitalization", a period of hospitalization that might strike some as non-trivial. 

In 1980, according to the CDC, the average length of hospital stay for all conditions was 7.5 days, while in 2006 it had shrunk to 4.7 days (see table 102 on page 392) [researching blogs ain't for sissies], so I wonder if the two-day cap might be a bit outdated.  Among medical insurers, one day is the new two days, but our crime statisticians might not have kept up.

Both the NCVS and FBI basically define aggravated assault as an attack with a weapon, although the wiggle room built into their definitions differs somewhat (NCVS here and FBI here.)   To stir in a bit more confusion, the term is used to designate an act that in many criminal codes, and in the tort system everywhere, is called battery and not assault at all.

Another difference between the two agencies' estimates is that the FBI counts homicides, a class of crime that has proved resistant to the NCVS's information-gathering techniques.

If the "simple" assaults are subtracted, and homicides added, the NCVS figures would work out to  1,720,812 violent crimes, a difference of 338,800 extremely serious violent crimes.  That's a lot of suffering to lose at the margin. 

But the difference is still larger than that figure suggests, because as far as I can make out the FBI figures includes crimes against people younger than 12, who are excluded from the survey for obvious reasons.

And even so I think it's almost a given that the NCVS understates the prevalence of crime, because it depends on what respondents are prepared to say when called up.  Would an abused 13-year-old speak freely to the voice on the other end of the line, when the abuser is waiting for his or her own turn on the phone?  Would the battered wife describe the beating she's ashamed to reveal to her best friend, when her husband is sitting at the kitchen table a few feet away?

The NCVS reports that 41.4% of all rapes and sexual assaults are reported to police.  A 2007 national report focused specially on drug-facilitated rape found that only 16% of rapes were reported to law enforcement, and estimated an annual total of over a million, or more than 4 times the NCVS number.

The amnesiac power of certain drugs was vividly illustrated to me by the orthopedist who set my son's broken arm.  Both bones were completely broken - he looked like Elastic Man - but about five minutes after the horrible grinding setting the doc asked him, "Did that hurt?" and Alex said: "No."  The doctor looked at us and said, "It's kind of scary."  More than kind of, although I'm glad he was spared the traumatic memory.

When you start factoring in rapes facilitated with drugs like that, you have to wonder about the accuracy of any estimate that doesn't include pharmaceutical factory output.

Monday
Sep142009

385. Cold feet, hot type

Fox News reports that authorities have identified the body of Annie Le, the Yale graduate student who disappeared just days before her wedding.  On the same web page they offer a video: "Cold Feet or Foul Play?"  Hey, they just report.  You decide.

Everyone who lived in or visited Los Angeles over the summer will recognize a photograph of Lily Burk. Since June the LA Times has run 22 stories (including blog posts) mentioning her name, according to its search engine.  Her murder even made the National Law Journal, because Lily's mother is an adjunct law professor.

The Times, to its credit, also runs a Homicide Report, updated daily.  Most of the names in that list show up in the paper's search engine fewer than 22 times.  In fact, of the two I checked, neither showed up even once.

Here's how the list begins today (leaving out the black man killed by cops and the two little Latina girls apparently killed by their Jehovah's Witness mother):

Joaquin Madrigal, a 20-year-old Latino, was shot several times ...

Marcelino Pettway, a 25-year-old black man, died Tuesday, Sept. 1 after he was shot three times...

Rene Sandoval, a 22-year-old Latino, died Wednesday, Sept. 2 after he was shot twice...

Brenda Saxton, a 55-year-old black woman, died on Saturday, Sept. 5 after she was strangled...

Daisy Flores, a 26-year-old Latina, died Friday, Sept. 4 from complications related to a shooting eight years ago ...  Flores was shot in the spine in a gang-related shooting. The gunfire left her a quadriplegic...

Reynesha Reed, a 24-year-old black woman, died Monday, Sept. 7, after she was shot...

Jerome Downs, a 21-year-old black man, died Sunday Sept. 6 after he was shot...

Keith Moore, a 20-year-old black man, died Saturday, Sept. 5 after he was shot several times...

Scroll all the way down and you'll read about a 34-year-old white man beaten to death in Sunland (you know, near Tujunga), perhaps by someone driven mad by the fires.  Go back another week and you'll find two more occurrences of the word "white," although one of them refers to a Corolla.

Why is that that the murders of Lily Burk and Annie Le are news in the way these other murders aren't? That's not entirely a sarcastic question.  It's a way of asking: which came first, the callousness or the lack of media coverage?

Sunday
Sep132009

384. The cord is light

The Supreme Court is going to screw up campaign financing again even worse than it already is.  That's a given.  These are the people, after all, who ruled that soft money could have no tendency to corrupt politicians forced to prostitute themselves to get it (see post 133) and that suing a sitting President is "highly unlikely to occupy any substantial amount of [his] time."

In short, the members of the Supreme Court do not approach the "issue" from the angle occupied by reality.  The quotation marks are there because campaign financing is a constitutional rather than political issue only in the sense than the justices say it is.  As the justices explained for all time (or until they change their minds) in their 1976 decision dismantling the post-Watergate reforms):

The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government, but the people - individually as citizens and candidates and collectively as associations and political committees - who must retain control over the quantity and range of debate on public issues in a political campaign.

Those two smug sentences reveal more about the modern Supreme Court than any other words ever allowed to see print in the official reporter.  The justices came right out and said, as clearly as they could without allowing themselves to become consciously aware of the import of their words (otherwise they would certainly have self-censored):

(1) they are not "the government" and therefore it's okay for them to have the final word on the influence of money in our political campaigns; and

(2) the democratically-elected government is not a legitimate representative of "the people." Specifically, when 127 million American people act collectively, they are not the people acting collectively.

Oh, and one more thing: the people "retain control" over their democracy by surrendering it to the Supreme Court.  In much the same way, the court ensured that the people would retain control over term limits for their elected leaders, and over the logrolling that tucks unrelated provisions into massive bills

As Henry Ford might have said, the Supreme Court ensures that the people retain control over their democratic institutions, so long as they don't try to exercise it.

During oral argument, Scalia said:

"Congress has a self-interest. I mean, we -- we are suspicious of congressional action in the First Amendment area precisely because we -- at least I am -- I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don't think so."

No, Justice Scalia, it's not nearly cynical enough, because it ignores the Supreme Court's own self-interest.  Can we expect a majority of Supreme Court justices to rule in a way that leaves ultimate power with anyone but themselves? 

This one is already in the bank: the court is going to rule in favor of its power to prevent the people from regulating their own elections.  Only regulations that meet their own approval can be permitted to operate.

Because we'll be hearing a lot of bleating about the first amendment rights at stake, it's a kind of inoculation to recall what they are.  In 1976 the court ruled that because money helps speech reach a wide audience, therefore money is speech. Because the electrical cord helps your lamp to produce light, therefore the cord is light. (See post 133.)

Also, it's not a bribe if the politician gets the benefit of the money rather than the money itself.  That's a distinction drawn by the first amendment itself.  If you don't believe me, slog through the 178-footnote monster for yourself.

The process liberals of the 1950s and 1960s have their own way of dealing with the Supreme Court's prohibition on the democratic regulation of elections.  Here's Ronald Dworkin (see post 334) in the New York Review of Books:

Bush's choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.

These doctrines aimed at reducing racial isolation and division, recapturing democracy from big money, ...

NYRB was so impressed with this that it reprinted it as a little book

If we're going to take Dworkin's overwrought metaphor literally, we'd have to say that in 1976, the justices were democracy's kidnappers, the goons responsible for turning over the bound prisoner to big money.  The justices developed a doctrine to recapture democracry from big money only in the same sense that campaign contributions are speech: in fantasy.

The difference is that the Supremes' fantasy is self-serving, while Dworkin's is just self-deluding.

Saturday
Sep122009

383. Judge Heckler

CNN is reporting that the Congressman from South Carolina, Preston Brooks, who attacked and beat Massachusetts Senator Charles Sumner with a stout cane, has raised a million dollars from his admirers in just the past couple of days.

I suppose we should be grateful that, while the Palmetto State's tradition of political thuggery remains intact, it has evolved over the decades from attempted murder to Fox News-style attribution of bad motives.

After all, what explanation other than hatred of America could account for disagreement?  "Delusion of reformism," perhaps?  No, seriously.  Want to know how bad the liberals are?  As of 2007, "calling the President of the United States a liar is now a sure way to cement ones bona fide's [sic] in the growing secular progressive community."

But all this indignation about lawyer Joe Wilson, and yet we hear no comparisons to Richard Sanders, the Jack Nance lookalike who serves (if that's the right word for what he does) on the Washington Supreme Court. 

We've run into Justice Sanders before (see post 198 and post 282), and we'll do so again soon.  My opinion of him has risen since I discovered he considers himself a Goldwater conservative.  It turns out that he consistently votes to let vicious people get away with violating laws intended to protect the vulnerable out of his conscious philosophical commitment to survival of the fittest, and not because, like Robert Gordon, he thinks violence against the disadvantaged is a liberal thing to tolerate.

Last fall, attending a black-tie Federalist Society dinner, Sanders heckled then-Attorney General Mukasey, shouting "Sic semper tyrannis," except in English: "Tyrant! You are a tyrant!"

He was responding to a Mukasey laugh line about the Geneva Convention (perhaps you had to be there).  Later, after mulling it over, Sanders reflected that he should have shouted "Tyranny!" instead. 

The incidents have much in common, beginning with their incivility and what that says about our society, and continuing through the challenge to the fundamental legitimacy of the American government itself.

Also, their nonsensicality.  Sanders made his shout on November 20, 2008, 16 days after the election.  We in the 21st century have had a lot of experience with tyrannies, and one thing they have in common is that they don't lose elections.  A government that peacefully hands over power to its ideological opponents is not a tyranny.

Similarly, whether or not Obama's statement in his speech was true is an objectively-verifiable fact, and also something uniquely within Congress's control, since Congress rather than the President drafts legislation. 

But Wilson didn't say: "The current draft would permit illegals to purchase health insurance on the open market!", which is apparently what he meant (assuming he meant anything at all except: "You Democrat, you!")

He said Obama lied: that he intentionally spoke a falsehood with intent to deceive. And what evidence did Wilson have about Obama's inner state of mind?  I mean, other than his party affiliation?

Sanders and Wilson were exactly alike not just in their action, but in the way they used some of the most meaningful words in the English language as empty terms of abuse. 

Monday
Sep072009

382. Happy Labor Day

How better to celebrate Labor Day than with a visit to Big Debt, Small Law?  Subtitled "Dirt poor lawyers in a filthy rich town," it reaches hilarity with its language.  Scrape away the inspired invective (though why would you want to?) and you're left with a thoughtful and convincing economic and social analysis of the condition of recent law graduates from private-but-not-exclusive-enough law schools.

Law schools are profit centers for their universities.  A single professor, with no equipment but a podium and perhaps an overhead projector connected to a single PC, can lecture to a hundred students, all of them going into big-time debt to shovel money like so many steam train firemen into the administration's vault.  No labs, no equipment, no teaching assistants.

In 1993, when the University of Puget Sound sold its law school franchise to Seattle University, "the law school was generating nearly $700,000 per year for the university’s operating budget" - and, one must assume, that was after the walnut-shell accounting that universities, like the Hollywood studios, regularly engage in. 

That sum works out to a little over a million in 2009 dollars, incidentally.  I wonder if even the photocopy machines in the library basement bring in quite so much dough.  It's hard to understand why any university would fail to found a law school.  It's nearly as prestigious as a medical school but at a tiny fraction - does 1% sound about right? - of the cost.

But then, medical schools teach their students how to be doctors.  Law schools don't teach their students how to be lawyers. 

If you haven't gone to law school yourself, that last sentence might read as though a word or two had been left out, or mistyped.  While still a law professor, Judge Patrick Schiltz (whose name sounds like a bar order from a beer-swilling patron who's had enough) wrote a much-cited, 5-times-too-long (i.e., typical) law review article called "On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession."

It includes this sentence on page 873, which might sound bitter and hyperbolic coming from Big Debt, Small Law: "Increasingly, faculties of elite schools and aspiring elite schools consist of professors who have not practiced law, who have little interest in teaching students to practice law, and who pay scant attention to the work of practicing lawyers."  (No fewer than three footnotes omitted.)

Those professors couldn't teach students how to practice law if they wanted to, which they don't.  Information of practical value is, almost by definition, not of academic interest (except to sociologists of work).  And vice versa. 

A law school faculty composed entirely of adjunct professors (=underpaid part-timers) would do a better job of teaching students how to practice law than any of Schiltz's "aspiring elite schools" - which, of course, is still another reason for law professors to hold in contempt a legal education that actually performs the historically useful role of vocational training, and so on around the circle, or rather spiral.

And so, in a bitter irony, law firms are (according to presumptively-suspect-until-confirmed "trend" stories in the legal press) instituting "apprentice" programs to teach law to law school graduates.  First organized law schools, abetted by the ABA accreditation program), largely stamped out the practice of "reading the law" in a lawyer's office, as my grandmother did.  (She read with her husband after he suffered a serious heart attack and eventually took over the practice - something the ABA believes should be intolerable.)  Now, "reading the law" is coming back, on top of three years of law school.

Which ought to make us wonder: what if we cut out the middleman?  It might still be small law, but at least it wouldn't be such big debt.  Better yet, students who quickly realized they couldn't stand it could drop out without already owing so much that they feel trapped - which, I think, is not actually uncommon among first year students at our current university profit centers.

Saturday
Sep052009

381.  Cars

What is it about judges and parking spaces?  65-year-old Judge Robert Nalley of Charles County, Maryland - a bit of Maryland southeast of Arlington - demonstrated the aptness of Above the Law's name when he let the air out of a cleaning lady's tires.

In his defense, the judge explained he's done it before. Note to lawyers who appear in juvie court: that's a sure winner.

The judge received a citation for tampering with a vehicle, and resigned his case-assigning, budget-manipulating, patronage-dispensing position as administrative judge, and was suspended from hearing criminal cases by his presiding judge, a guy with a name that reminds me of Ms. Wildhack.

Judge Nalley explained he was stepping down from his administrative position because of the "stage of my career" he had reached, apparently meaning the stage of becoming a national laughingstock.

If the same act had been committed by, say, a juvenile, it doubtless would have warranted a year or two in the (private) Gulag, at least in northeastern Pennsylvania, at least until this past January.

Here's The B.S. Report on Judge Nalley, and here's a poignantly clueless letter in the judge's defense written by a local supporter, ending: "Let he who is without sin cast the next stone."  A more apt saying of Jesus might have been: Judge not, lest ye be judged.  The point isn't that the judge is a sinner, but that the sinner is a judge - though "arrogant schmuck" might be a slightly more nuanced way of describing his particular condition.

The Washington Post explained how the cleaning lady learned that the judge was letting the air out of the tires of her modest car.  One of two deputies who saw the judge committing the offense went inside the courthouse and told her: "Jean, you need to move your car. Judge Nalley's going to let the air out of it."

But the Post didn't draw the inference: all the judge needed to do was talk to one of the deputies on the scene, who knew the cleaning lady by name and could easily have told her she needed to move the vehicle.  Judge Nalley didn't let the air out because he had no other immediate way to send the message to the "culprit," but only because he wanted to.

Bloganaut pointed out that Judge Nalley's behavior wasn't all that unusual, reminding readers of "the Denver judge who illegally parked in a handicapped parking space, then threatened to have a wheelchair bound lawyer arrested if she did not move out of his way, as well as the Texas judge caught on camera keying a neighbor's car."

You don't even have to leave the comfort of this site to read more stories about judges and cars.  Rhode Island's Judge Marjorie Yashar did a hit-and-run in the judges' own parking lot (see post 60), Michigan's Judge David Bradfield drove up in his Corvette to pick a fight about parking rights with another judge's husband (see post 103 and this link), while Maryland's Judge George Korpita was so upset about someone leaning on his parked Maserati that he violated about half the canons of the Code of Judicial Conduct in retaliation (see post 304)

Florida's Judge Stanley Mills parked his car in such a way that a young woman couldn't leave a courthouse parking lot.  Although it was originally reported that the judge compounded the offense by making her spend the whole day in his courtroom, upon thinking over the elements of the tort and crime of false imprisonment the judge clarified that it was someone else's fault: a bailiff's.

Judge Nalley's deflation illustrates, with what might be called literal symbolism, the way courtrooms reinforce class and status divisions in society.   So far as I can tell, he wasn't inconvenienced by the cleaning lady's car being parked where it was.  It would appear he was simply offended by the presumption.  A cleaning lady!  Harumph, indeed.

Judge Mills, by contrast, at least had the sorry excuse of having to find another parking space, though I'm not sure that would excuse anyone else from committing false imprisonment in his or any other judge's courtroom. 

Nonetheless, looking at the photo of his victim I get the impression, perhaps unfairly, that she didn't hail from Palm Beach's 33480 zip code.  The designated-scapegoat bailiff, needless to say, ranked below the judge in the courthouse hierarchy.

These stories about judges and their cars are just updated replays of the drama involving the too-witty young Voltaire and the Chevalier de Rohan-Chabot

Beyond the direct reinforcement of hierarchy - the squash you like a bug with this gavel - the judges were also concerned with preserving not just the reality but the symbolism of their power. 

I've long thought that judges are particularly sensitive about the symbols of their authority (the black dresses, the absurd obsequiousness required of lawyers) because they know, better than the rest of us, that it's all a bit of a bluff.  That's why a lady in denim overalls and flip-flops who drives an Oldsmobile can seem so threatening, when her actions imperil a symbol.

But there's yet another angle to it, too.  Inside the artificial environment of the courtroom, a judge's word is law.  Literally.  That's got to be gratifying.  It's natural that weak judges should want to reproduce those conditions outside the courtroom doors, too.  I don't think we should be surprised that  inadequate judges would want to colonize reality the way the H1N1 virus wants to colonize new hosts.

The most significant about what the judges did isn't the acts themselves -- those were merely childish, obnoxious and/or criminal.   The most significant thing is this: by committing their obnoxious and/or criminal acts, the judges revealed that they had become fuzzy on the distinction between the courtroom and the real world.  And that is dangerous to the rest of us.