Good intentions - Bad Decision

Jonathan Gresham was put on trial twice for having oral sex with E.T., a 14-year-old girl. Generally, the Double Jeopardy Clause would prohibit that. There's a pretty good case for saying that it should have prohibited it this time, though the court of appeals didn't buy it - and it's not particularly clear that Gresham's lawyer made it.

Gresham was a security officer at a public housing complex in Dayton, Ohio. The jury apparently believed the evidence that one evening he arranged to meet with E.T., and they had oral sex. She told her aunt. He got arrested and charged with Unlawful Sexual Conduct with a Minor.

During the trial, Gresham testified in his own behalf. His lawyer asked him if there were complaints about E.T. that were investigated. His answered.

A resident that I don’t recall who the resident was, informed me that she was sexually active in the building and that she was a drug addict and that she was trading sex for drugs.

The prosecutor objected and called for a mistrial. The judge, deeply troubled by the answer, granted the request, sent the jury home, and rescheduled the trial.

Here's the relevant law.

The crime Gresham was charged with makes it an offense to having sex with someone between the ages of 13 and 16 if he knew or should have known the person's age. It doesn't matter who started it, whose idea it was, who seduced whom. You just can't do it. There's apparently no dispute that Gresham knew E.T.'s age. So the only legal question is whether they in fact had oral sex. Whether she was a drug addict who traded sex for drugs all day just doesn't matter. If she gave Gresham a blow job, he broke the law. So the allegation is irrelevant if it's meant to suggest a legal defense.

On the other hand, if she's a drug addict and prostitute, then her testimony might not be worth much. Her story about telling on Gresham because she was deeply troubled by the sex they had wouldn't seem particularly believable. And if she was being investigated, then turning the tables on the authorities and making her a victim might serve her purposes. She would have had a motive to make up the story. That might well make the information relevant not to the charge itself but to her credibility.

On the third hand, there's the rape shield law, a part of the rape statute, and applicable to certain other offenses under an evidence rule, which says that, in trials for those offenses,

Evidence of specific instances of the victim’s sexual activity, opinion evidence of the victim’s sexual activity, and reputation evidence of the victim’s sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim’s past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

Admitting the allegations about E.T. would violate that statute if Gresham were being tried for one of those offense, but he wasn't. Still, the point, one that has some social value and seems sensible, is that there's something offensive about accusing a victim of bad behavior. The courts frown on that.

Finally, on the fourth hand, there's the hearsay rule. Hearsay is a legal quagmire, but the idea is simple enough. Unless there's some exception that applies (and there are dozens of exceptions), statements made out of court aren't admissible in court in order to prove the substance of the statement. So, for instance, "Fred told me that Joe shot him" won't normally be admitted into evidence at Joe's trial for shooting Fred.

Everyone in this case was deeply upset by the hearsay. Except it wasn't hearsay because Gresham wasn't saying that E.T. was a drug addict and prostitute. He was saying that there had been complaints about E.T. being a drug addict and prostitute. It's a subtle distinction, perhaps, but not even a close call in this case. But nobody - including it seems Gresham's lawyers - noticed it.

The trial judge was horrified by what Gresham had said.

My problem isn’t just the hearsay part of it. My problem is the bell is rung and there’s now accusation [sic] right now flying out there that are completely unfounded, completely uninvestigated, completely inappropriate and inadmissible in this case.

The prosecutor took a hint and asked for a mistrial. The judge agreed, dismissed the jury, and announced that the case would be tried again.

That's where the whole double jeopardy thing kicks in. After all, the state had taken a shot at trying Gresham, then the state asked to stop the trial and start over. Double jeopardy ordinarily prohibits that sort of thing. But it happened. A different judge did the trial this time, and Gresham was convicted.

In his appeal, Gresham argued that the state had no right to try him a second time. The court of appeals disagreed. It said in a correct statement of the law, that there's an exception to double jeopardy protections where the judge orders a mistrial out of "manifest necessity" (which the court is careful to explain is less necessary than actual necessity; think of it as close enough to necessity for goverment work).

In this case, the court said

Gresham’s testimony, however, that he was told by an unnamed resident that E.T. was sexually active and trading sex for drugs was clearly hearsay prohibited by Evid. R. 802, as well as inadmissible character evidence under Evid. R. 404(A)(2).

Except, again, the statement was clearly not hearsay, nor is it prohibited under Evidence Rule 404(A)(2). And, in fact, if it were prohibited by those things, the prohibition might be unconstitutional in violation of Gresham's rights under the Sixth Amendment.

But the court wasn't done.

The trial court, however, found that the taint from the objectionable testimony was so great that a curative instruction would not suffice. Under the circumstances presented in the instant case, we agree.

Got that? The jury was so tainted by the mere fact that the allegation had been made against E.T. that they'd never have been able fairly to judge the evidence and decide whether Gresham actually got that blow job from her.

Rape shield laws - and, again, despite the best efforts of everyone involved to make it apply, neither the rape shield law nor the expansi0n of it in Evidence Rule 404(A)(2) is actually implicated here - were adopted out of noble purposes. A victim of sexual assault shouldn't have to be victimized again in court by having her character trashed by the guy who assaulted her.
The downside of those laws is that they assume that the person claiming to have been assaulted actually was. And they interfere greatly with the ability, the constitutional right, of the accused to demonstrate that the accuser has no credibility. Good intentions make bad law.

This is even worse, since the law doesn't apply.

And then there's the fact that the same allegations came in during the second trial and the jury somehow found Gresham guilty anyway. Doesn't matter, the court of appeals says. It was still manifestly necessary to stop the first trial because of the allegation.

[T]hat fact, standing alone, is irrelevant to our review of the first judge’s decision to grant a mistrial in light of the highly inflammatory and prejudicial hearsay testimony offered by Gresham.

Let's review.

It was OK to try Gresham twice because the court had no real alternative. The hearsay and rape shield violation (which violated neither the hearsay rule nor the rape shield laws) was so irrelevant and prejudicial that no jury could have convicted Gresham once they heard it. And it's wholly irrelevant to that decision that Gresham was convicted by a jury that heard it. And because the only way to give the state a fair trial was to stomp on the defendant's protection against double jeopardy, they did that.

I don't know what did or did not happen that night. And I'm not particularly concerned with whether Gresham should have been prosecuted for what E.T. said happened. But the guy got shafted by the courts. That happens too much in sex offense cases - especially when the purported victim is a kid and everyone assumes the guy must be guilty.

Resting up

What is it with these folks who snooze at death penalty trials? Sure, the trials aren't like TV dramas. They're slow and often boring with a lot of not terribly articulate folks speaking in great detail about matters of what can seem like stultifying trivia. ("Patrolman Smith handed me the bag, I signed my name to the chain-of-custody slip attached to it, signed it right below what looked like Smith's name, then I carried it to the property room and gave it to Sergeant Jones who I watched sign the slip and then put the envelope in the safe." That sort of thing, which can go on for four or five witnesses and take the better part of an hour in some cases.)

But still. Sleeping?

I want to talk about Calvin Burdine and Joe Frank Canon and George McFarland and John Benn. I want to talk about Arif Majid and Juror No. 1. And I want, especially, to talk about Judge Doug Shaver and Judge Kathleen Sutula.

Burdine and McFarland ended up on death row after their lawyers (Canon and Benn) slept through substantial portions of their trial. Both cases were tried before Judge Shaver in Houston, Texas, who explained to a reporter, in the context of McFarland's case that

The Constitution says everyone's entitled to the lawyer of their choice, and Mr. Benn was their choice. The Constitution doesn't say the lawyer has to be awake.

Shaver can't have been too surprised by Benn's sleeping. According to an article in the Los Angeles Times in July 2000, Shaver explained,

"I knew John Benn. I knew he wasn't competent," Shaver said in a courthouse interview in late June. The judge said Benn had the appearance of "a heavy drinker. . . . His clothes looked like he slept in them. He was very red-faced; he had protruding veins in his nose and watery red eyes. . . . I can't imagine anyone hiring him for a serious case."

Benn himself said,

I'm 72 years old. I customarily take a short nap in the afternoon.

After years of struggling, Burdine got a federal judge to agree that when your lawyer sleeps through your trial, it's like you had no lawyer at all and you're entitled to a new trial. Although a panel of the Sixth Circuit disagreed, the entire court ultimately overruled them in a 9-5 vote.

So far, McFarland hasn't been so lucky.

That extra lawyer may have made a crucial difference. Although he was young, and specifically appointed to assist Benn, not replace him, he ended up trying almost the whole case by himself. And though he made some efforts to wake Benn, he eventually gave up the effort to concentrate on the trial.

But the Texas Courts have said that no matter what Benn did, McFarland had that other excellent lawyer, and that's enough. In fact, he may actually have wanted Benn to sleep:

We might also view Melamed's decision to allow Benn to sleep as a strategic move on his part. At the new trial hearing, Melamed stated that he believed that the jury might have sympathy for appellant because of Benn's "naps."

So, at least, said the Texas Court of Criminal Appeals.

McFarland sits on death row in Texas. The federal courts are next for him.

Arif Majid has a different story. His lawyer didn't sleep through his death penalty trial (he got life) - Juror No. 1 did. Judge Sutula, who tried the case, knew it but did nothing about it. Let's consider the difference, for a moment, between a sleeping lawyer and a sleeping juror.

The sleeping lawyer cannot make decisions about the evidence. He can't decide to object or not. He can't decide whether to cross-examine based on what a witness said, because he doesn't know what the witness said. He is, in every meaningful respect, not present. The sleeping lawyer makes an unfair trial because the adversary system under which we operate collapses. There's just a one-sided presentation. The trial shouldn't count because it wasn't fair.

A sleeping juror isn't listening to the evidence. He cannot weigh it because he doesn't know what it was. He cannot decide whether the witness is lying or telling the truth or maybe just confused because he never observed the witness. His vote is a coin toss and his verdict shouldn't count because it can't have properly been voted by the juror who, in effect, might as well have stayed home.

They didn't put it that way, but that's what the Eighth District Court of Appeals said last week. And good for them. But here's what the Judge Sutula, who tried the case, said.

I saw it. So what. Let him sleep. You guys picked this jury, I didn’t.

Got that?

One judge thinks your right to a lawyer is satisfied even if the lawyer sleeps through the trial. Another judge thinks its OK if the jury sleeps through the trial.

I don't know either Judge Shaver or Judge Sutula. In fact, you now know absolutely everything I do about them. Perhaps they have, in other cases, demonstrated themselves jurists of the highest wisdom and integrity, paragons of the profession, virtually the Platonic ideal of Judge. But you gotta wonder.

Oh, you should wonder about this, too. Both Texas and Ohio elect judges.

Are they really self-evident?

Consider these words:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

They are, of course, from The Declaration of Independence. It's quite an extraordinary document, one well worth reading every now and again - say, on Independence Day.

They say that "all men" (and one can only wish that "all" were meant to include people of color, including those who were enslaved, and that "men" were intended to include women) "are created equal" which really leaves no room for invidious discrimination.

They say that those equal men have certain rights that are "unalienable," that is, they cannot be alienated or taken away. They say that among the unalienable rights are "Life, Liberty, and the pursuit [not the attainment, however, since that's beyond guarantee] of Happiness." They say that government exists "to secure these rights."

And they say, and these are amazing words today, but we must remember that the landed gentry who signed this document were not just the establishment - they were an establishment teeming with enlightenment ideals and with revolutionary ardor, they say that when governments don't do that job, then it is the right and the duty of the people to overthrow the government. Revolution is obligatory.

So: The Declaration says that government cannot take away the life of a citizen (not a subject, since it is government established by the people - a bottom up, not top down system) but must secure it. No death penalty. Period. (They didn't mean that, of course, though Jefferson was generally opposed to the death penalty.) No encroachments on "liberty," though that's more difficult since "liberty" is less clear a term than "life" (which has its own ambiguity - consider abortion) and besides freedoms can collide and something will have to give. And no interference generally with people's activities. That last is something like what Justice Brandeis said (in dissent, alas) in Olmstead v. United States:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men.

As Brandeis understood the goal, so he understood the threat:

Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.

Brandeis understood that. Those revolutionary land and slave owners who signed the Declaration understood it viscerally if not literally.

It's a good day, this 4th of July, to recall all of that. But we need, too, to remember that the Declaration is not law. The Constitution is. And where the Declaration is a campaign speech for overthrow of tyranny, the Constitution is what they put in its place.

My seventh grade history teacher told us (and this is probably the only specific thing I remember from the class) that "Democracy is the system that allows you to choose your dictator."

Happy Independence Day!!

FEAR AND DETERRENCE

Over at Sentencing Law and Policy, Doug Berman directs attention to this column from the NY Times and wonders what his readers think about the 150 year sentence handed down to Bernie Madoff.

In response, I posted this comment.

I suspect, based on very little empirical evidence (though there might be studies), that significant prison sentences can serve as a deterrent to white collar crime where they really don't to street crime (about which I have somewhat more empirical evidence). But sentences that cannot be served seem silly rather than forceful. A formal sentence of life might be more meaningful than any absurd number of years could be. If it required rewriting the statutes, though, I'd be wary, since once Congress gets at that, they're liable to wreak all sorts of havoc. And I don't have much faith in the Sentencing Commission, either.

I'm not changing my mind about that, but I want to say a bit more.

I addressed an aspect of this a couple of weeks ago (here), after his lawyers filed their sentencing memorandum suggesting that he should get 12 years. Then I was looking at victimology and the personalization of criminal law, the idea that the prosecutor and the judge are somehow agents for the victims of crime, that their job is to make victims feel better. But I want to focus now on the effects of sentences.

Let me be clear about this. I'm offering a view from the trenches and a lot of gut feeling rather than any sort of academic analysis. The studies I've read about sentences (not all that many, frankly) have mainly been about whether the death penalty or executions (they're not the same thing) serve as a deterrent.

While some of the studies are suggestive, I think a fair reading is that none of them really prove much of anything. There studies showing that the death penalty and executions deter homicides. There are studies showing that executions actually increase homicides. I think they're a wash. The academic analysis just can't be done properly. The conclusion, then, is that there's no good evidence the death penalty deters homicides, but also no good evidence it doesn't.

So we leave academics and enter the real world. There's no question that some people have killed because of the death penalty. They've killed witnesses in the hope that they wouldn't be convicted and face death. They've killed as part of a plan to be sentenced to death and thereby get, in effect, an assisted suicide. By the same token, it strikes me as self-evident that at least a few people have refrained from killing in order to avoid the risk of a death sentence. On balance, again, it's a wash.

But why? Why shouldn't the ultimate penalty reduce killing? For that matter, why do horribly long sentences not seem to reduce drug trafficking or sexual abuse of kids - or homicides?

CAVEAT: The rest of this is broad generalizations. Lots of street criminals aren't like what I'm about to write. Plenty of white collar criminals aren't like this, either. Don't take any of it personally.

Because people don't expect to get caught. Because people don't think it through and do the cost-benefit analysis that the economists think people do all the time. Because so much street crime is really acting out of passion or fear or bravado rather than calculation. And because the people who do the actual calculating tend to imagine that their calculations will ensure they'll never be convicted.

Moreover, my clients are my clients, for the most part, because they made terrible choices. If they were good at making choices, they wouldn't end up being my clients. Why would we think that harsher penalties will make more thoughtful criminals?

And there's this. The repeat offenders sort of understand that prison is part of the process and just the price of doing business. Hey, if half your family is in custody and the other half has been or likely will be, it may not seem all that daunting. But that's street crime.

Bernie Madoff isn't your basic street criminal. The folks who embezzle and commit tax fraud and engage in multi-million dollar securities shenanigans - or multi-billion dollar ones - the guys at Enron and Adelphia, the Bernie Madoffs of the world, they're different.

They don't expect to get caught, either, of course. And they're quite sure that if they do get caught, they'll get at most a slap on the wrist. (And they don't think much about any of this, anyhow.)

But for them, prison - at least serious prison surrounded by what they'd think of as "real criminals," is something else. You know about real criminals. They're those street criminals I was talking about. The folks Arlo Guthrie was put next to at his draft physical (in his song Alice's Restaurant) when he was asked if he'd ever been arrested, people who

may not be moral enough to join the army aftercommitting your special crime, and there was all kinds of mean nasty uglylooking people on the bench there. Mother rapers. Father stabbers. Fatherrapers! Father rapers sitting right there on the bench next to me! And they was mean and nasty and ugly and horrible crime-type guys sitting on the bench next to me.

The Bernie Madoffs of the world are, mostly, terrified of those guys. They may not exist, but the fear is real.

You give Bernie a life sentence. You hand out a few others. You make clear that life means life and that it means hard time. Maybe, just maybe, you can deter some of those guys.

Now, let's think for a few minutes. Person on death row killed a couple of people without much remorse in the midst, say, of a spree of robberies. Horrible. Deserves condemnation. Bernie Madoff destroyed the lives and hopes of thousands, inflicted some sort of real harm to millions. He did it with a pen and a smile and a string of accountants. Guy on death row did it with a gun.

Who did more harm? Who's more callous? Who is deserving of more punishment?

We don't kill the Bernie Madoffs, and we shouldn't, not any more than we should kill the vicious street punk or the guy who got in over his head and got scared and . . . . Heck, you know the story.

But 150 years? We know that's a sham. It's not a real sentence. He can't serve it and it doesn't really make any broader point. Now, a life sentence, that's something else: I sentence you to die in prison - however long it takes.

That's frightening. Might just deter a few of the white collar criminals.

R.I.P.

I'm too late for the anniversary in the Eastern Time Zone, but a moment of silence, please, for the 1168 men and women who have been executed by the states and the federal government since the Supreme Court said, on July 2, 1976, that death penalty laws adopted by Texas, Florida, and Georgia passed Constitutional muster.

NOT GUILTY - UNLESS I CHANGE MY MIND

When I started this blog, I clicked some box agreeing to Blogger's terms of service. I'm a lawyer. I know all about reading every word of the fine print. Sometimes I do. I'm pretty much certain I didn't in this case. (My recollection, admittedly vague, is that I stopped at the part about not using dirty words. Shit, maybe I should have kept reading.)

OK. If the evidence is to be believed (and I repeat that I'm a lawyer, a criminal defense lawyer at that, and I'm rarely inclined to think the evidence is all that reliable), Lori Drew is a terrible person who cooked up a scheme to use MySpace.com deliberately and viciously to harass, humiliate, and scar for life her daughter's former friend, Megan Meier. She did the job so well that Megan's life ended with a suicide, Lori Drew's words over the internet apparently the proximate cause.

Horrible. Horrible. Horrible. A young girl dead for no good reason. Not even any apparent remorse from Ms. Drew. People (not least Megan's parents) wanted blood. But, it seems, no crime. (See this story from the NY Times a couple of years ago.)

Except that while the Missouri prosecutors couldn't find a criminal offense, the feds could. The then-47-year-old Drew, they charged in California, committed conspiracy to use a computer fraudulently to intentionally inflict emotional distress. That's a felony. They also charged three misdemeanor counts of computer fraud for using MySpace.com in violation of its terms of service. (You can read the indictment here, at The Smoking Gun.)

It was an original idea. The relevant laws had been used before this only to go after computer hackers and the like. But a girl was dead; the public was outraged; something had to be done. The jury said no to the felony. But they returned guilty verdicts on the three misdemeanors.
(Story here.) Thursday, the judge threw out the verdict. (Story here.)

If violation of terms of service is a crime, the judge said, then internet service providers and other private entities effectively get to decide what the law is. That can't be right.

Good for him. Maybe cyberbullying should be a crime. (I don't think so, but that's a different issue.) But it isn't now, and that wasn't really the charge, anyhow. So a gutsy decision to go against public sentiment and do the right thing.

Except, of course, he said he might change his mind before he writes it up. A tentative acquittal.

If he goes back on it, I'll read my terms of service. Fuck. (Ooops. Violated 'em again.)

Sometimes they surprise you

The "they" in the title of this post is judges (justices, too).

We predict and predict, speculate and speculate. And mostly, of course, we're right. Those who wear the robe are, basically, as predictable as can be. And the more you know, the more predictable they are.

So, at the U.S. Supreme Court, we know (or think we do) that on every controversial decision, civil or criminal, the vote will split 4-4 with Stevens, Souter (I'm being retroactive here), Ginsburg, and Breyer on one side; Roberts, Scalia, Thomas, and Alito on the other. As Justice Kennedy goes, so goes the America, or as Adam Liptak puts it in today's NY Times:

The Constitution, it turns out, means what Justice Kennedy says it means.

Like I say, we all know that. But aside from the Kennedy part (and even there), it's not really true.

Scalia, for instance, believes pretty much absolutely in the consequences of the Sixth Amendment right to jury trial in criminal cases. That would seem to put him in the camp with the 4 alleged liberals, but Breyer refuses to join them. Alemendarez-Torres v. United States, Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker.

Of course, Scalia and Breyer would both explain that these cases are typical of them. Scalia says the Constitution requires juries to find facts relevant to guilt and punishment. Period. Breyer (and this is seriously troubling) seems to say that although the Constitution does require that, fairness, which is a Constitutional goal, doesn't. To be fair to Breyer, here's what he says in Apprendi:

The majority holds that the Constitution contains the following requirement: "any fact [other than recidivism] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Ante, at 24. This rule would seem to promote a procedural ideal--that of juries, not judges, determining the existence of those facts upon which increased punishment turns. But the real world of criminal justice cannot hope to meet any such ideal. It can function only with the help of procedural compromises, particularly in respect to sentencing. And those compromises, which are themselves necessary for the fair functioning of the criminal justice system, preclude implementation of the procedural model that today's decision reflects. At the very least, the impractical nature of the requirement that the majority now recognizes supports the proposition that the Constitution was not intended to embody it.
. . .
Nonetheless, it is important for present purposes to understand why judges, rather than juries, traditionally have determined the presence or absence of such sentence-affecting facts in any given case. And it is important to realize that the reason is not a theoretical one, but a practical one. It does not reflect (Justice Scalia's opinion to the contrary notwithstanding) an ideal of procedural "fairness," ante, at 1 (concurring opinion), but rather an administrative need for procedural compromise. There are, to put it simply, far too many potentially relevant sentencing factors to permit submission of all (or even many) of them to a jury.
. . .
At the same time, to require jury consideration of all such factors--say, during trial where the issue is guilt or innocence--could easily place the defendant in the awkward (and conceivably unfair) position of having to deny he committed the crime yet offer proof about how he committed it, e.g., "I did not sell drugs, but I sold no more than 500 grams." And while special postverdict sentencing juries could cure this problem, they have seemed (but for capital cases) not worth their administrative costs.
. . .
By placing today's constitutional question in a broader context, this brief survey may help to clarify the nature of today's decision. It also may explain why, in respect to sentencing systems, proportionality, uniformity, and administrability are all aspects of that basic "fairness" that the Constitution demands. And it suggests my basic problem with the Court's rule: A sentencing system in which judges have discretion to find sentencing-related factors is a workable system and one that has long been thought consistent with the Constitution; why, then, would the Constitution treat sentencing statutes any differently?

Constitutional goals trump actual Constitutional directives for Breyer, as he explains at length, though not so bluntly, in his book Active Liberty: Interpreting Our Democratic Constitution. So the two disagree strenuously and, to those who haven't been paying attention, each took a surprising view. (The same atypical voting pattern came in last week's Confrontation Clause case, Melendez-Diaz v. Massachusetts.)

All of that - and I'm going to have more to say about Constitutional interpretation and about the three justices (Scalia, Thomas, and Breyer) who actually claim to have (and at least sometimes seem to apply) actual methodologies for interpreting the Constitution - is by way of preface for an observation that led to the title of this post: Sometimes they really do surprise you. It's like you just cannot know enough to figure out how they'd ever have come down that way on an issue.

Case in point, and what set me off: Spangler v. State, decided yesterday by a panel of the 11th District Court of Appeals.

Spangler is one of the literally thousands of cases around Ohio challenging on various grounds the Constituitonality of retroactive application of Ohio's Adam Walsh Act (S.B. 10). The Act, the latest version of Ohio's sexual offender registration and notification law, makes very substantial and onerous changes to the prior law and imposes those changes on people who had been registering under the prior law.

While a few Ohio trial courts have found the Adam Walsh Act unconstitutional when applied retroactively, the appellate courts have generally not. (They won't have the last word. The Ohio Supreme Court is hearing four or five, depends on how you count, cases challenging the law, and dozens of others are working their way to the court and being held for the decisions in those cases.)

But the 11th District, in Spangler did find AWA unconstitutional. Two judges thought it violated principles of res judicata. One of them thought it also violated the separation of powers. The other thought it violated constitutional prohibitions on ex post facto laws and on certain retroactive laws. The third judge thought the Act was constituitonal. That's interesting, but hardly the stuff of this post. Rather, what surprised me (and "surprised" is really too weak a word) is that one of the judges in the majority, the one who thought there was a separation of powers problem, is Judge Diane Grendell.

That's the Judge Diane Grendell who never met a punishment she didn't like or a criminal defendant whose conviction she couldn't affirm. (OK, maybe there have been a few exceptions, but sure not many.) More to the point, that's the Judge Diane Grendell whose husband, State Senator Timothy J. Grendell, I debated last year on the constitutionality of the law. That's the Senator Grendell who was a sponsor of the legislation.

Did she get integrity? Does she know a sex offender? Did executive branch official screw with one of her decisions? I don't know. And I can't explain it. But I'm awfully glad she did the right thing.