One of those VJs, one who sat on a death penalty appeal, said afterwards that he was appalled by the fact that none of the others, not one of the six, read the transcript of the trial. How, he wondered, could they fairly determine exactly how the case went down, what the evidence did and did not show. In particular, how could they decide whether the aggravating circumstances outweighed the mitigating factors - the question that's the basis of the life/death decision in Ohio, if they didn't read the record for themselves?
I was in court with a guy, back for resentencing after the Supreme Court had thrown out his death sentence. The judge, a successor to the trial judge who was no longer on the bench, started to pronounce sentence.
Wait, your Honor. You can't decide on the sentence without having read the record.Not just capital cases. commonly, all that appellate judges know about the record in the case before them is what the parties said in their briefs. Maybe they'll read a few pages if something catches their attention or raises a question. Not often, though. And not the whole damn thing.
Oh, yeah, I suppose.
Trial judges, too, ruling on motions in civil cases where there may be hundreds, even thousands of pages of depositions and exhibits. Rely on the briefs. Oh, and the law clerks (often called "staff attorneys" these days to distinguish them from law students who may do the same work) will sometimes slog through the record. But sometimes not.
Sure, there are exceptions. Too few.
Our vision of the dispassionate judge, sitting on the bench, dispensing Solomonic justice after full and careful reading of the whole and independent legal research. I'm not saying it doesn't happen.
It's not that long ago that the U.S. Supreme Court (OK, The Supreme Court of the United States) heard argument and issued opinions in 150 or 175 cases a year. And then the 9 folks in their robes took July, August, and September off. They're down to about 80 cases a year now. They still take those months off. And they're up to 4 law clerks/staff attorneys each.
From the oral argument before the court Monday morning in Brumfield v. Cain, about how Louisiana deals with (and in Brumfield's case dealt with) questions of mental retardation which relate directly to whether folks (like Brumfield) who face capital charges or actual death sentences can be executed. The 8th Amendment, according to the Court, says they can't. But how to implement that?
The lawyer for the state, Premila Burns, is at the podium trying to answer questions.
JUSTICE BREYER: No, no. I think we're all on the same page here, and I think we've made some progress in this, because I agree with you, and I agree with Justice Scalia that what we have to do is to look at the whole record and see, keeping in mind the fact that it was a pre-Atkins record, and they didn't know about Atkins, but looking at the whole record, is the Louisiana court clearly wrong? Is it unreasonable in saying there wasn't enough evidence, even though there has to be some, which is up to them pretty much how they say the some, but they're unreasonable in saying that there wasn't some evidence justifying a hearing. And the only way to do that is for us to read it. Is -- is that right?Sure, the record in Brumfield is somewhere around 20 volumes long. And it's mostly tedious. And will mostly prove irrelevant to the question if anyone actually bothers to read it all.
MS. BURNS: The record has to be read.
JUSTICE BREYER: Would you agree with that?
MS. BURNS: I would agree that the --
JUSTICE BREYER: I agree with that.
MS. BURNS: -- entirety of the record has got to be read. It cannot be taken in a vacuum as counsel would have you believe that this judge was myopic.
JUSTICE SCALIA: I haven't read the whole record, you know, and I doubt that I'm going to. And and I doubt that this Court is going to read the whole record in all of these Atkins cases in the future. I mean, what -- what you're saying is -- is -- you don't think it's -- it's fantastical?
Mostly. Not entirely, though. Except who'll find out?
Shit, we're only dealing with life or death. And constitutional rights. And a bunch of folks doing half the work they used to but with a larger staff and still managing to take three months off a year.
Dahlia Lithwick, and probably not she alone, was struck by Scalia's brazen admission that he won't do it.
To be sure, 20 volumes is a big, big record. And probably lots and lots of reviewing judges don’t bother to read the record every single day across this great land. But it takes a certain kind of something-something to say it out loud, right there at the highest court in the land.Well, yeah. It's one thing for us to know. One thing for the child who knows no better than to speak the truth to point out that the emperor has no clothes.
It's something else for the emperor to admit it.
They want our respect. They work so damn hard. The ones you like and the ones you don't.
And they just can't be bothered. Which means they really do just pull it out of their collective asses.
But hey, they're supreme.
Law of Rule.
*Which is properly, if pompously, called the "Supreme Court of Ohio," a term slightly less pompous than the high court in Massachusetts which is the Supreme Judicial Court to distinguish it, perhaps, from those supreme courts which are not judicial - like perhaps the courts of New York where the Supreme Courts are the trial and intermediate appellate courts while the high court is the Court of Appeals, which is at least properly descriptive if not terribly grand sounding. Of course, the court that just declared Amanda Knox and Raffaelle Solecito innocent is the wonderfully (and in this case aptly) named Court of Cassation. (Look it up yourself if you want to know what it means.)