Words To Live By?

Years ago, long before I went to law school, I occasionally imagined myself making a living writing fiction.  I kept a notebook with snippets of interesting conversation I happened to overhear ("Really?  What do you mean it won't break?"), odds bits and pieces of whatever that I stumbled across (unsigned note left on a message board at a major academic convention:  "Raul, I won't be able to make it tonight"), and potential book titles ("Death in Provo").

I no longer have that notebook.  It was consigned to the trash decades ago, and though I occasionally regret the loss, a few of its bits (including those I offered parenthetically in the previous paragraph), I hesitate to call them pearls, have stuck in my memory.  Including this from a list of potential opening sentences of something or other.

The mirror is the dominant image.

The somethingorother never got written, of course.  At least not until now, and even here it isn't the opening sentence (though I considered putting it there just for the decades delayed satisfaction).

Anyhow.

This isn't a post about mirrors or old notebooks or the career fantasies of graduate students in English.  This is a post about . . . .  Hmm.  We'll see where it ends up.  But here's where the substance of it begins with this guy.

His name is David Ferrante, and as you might infer from the picture, he's in some trouble.  In fact, that's his mug shot, taken yesterday when he turned himself in to the Police Department in Parma, a small city just outside Cleveland.

Ferrante knew how to get the police station because, well, because he worked there.  See, that's ex-police sergeant David Ferrante.  He's been charged with tampering with records and with falsification because when he applied for the force in 1994, he cheated on the part of the test having to do with distinguishing colors.  Ferrante, don't you know, is color blind, and that's a no no.

How does one cheat on a color-blindness test, you may wonder.  One has his father-in-law find out who administers the test.  One then has his father-in-law take the test, memorize the correct answers, and pass them on to one.  Who then takes the test having previously learned the answers.  Or so, it is alleged.  Ferrante, of course, is the one.  (Story here.)

All of which is pretty much beside the point.  I mean, and for just one instance, back in July, we had the director of the FBI tell Congress about how maybe hundreds of agents cheated on a test regarding new surveillance rules and policies.*  So cheating by law enforcement is hardly unheard of.  (I'm not talking about testilying or beating the shit out of innocent people or shooting pets while executing search warrants or arresting folks for tape recording what cops say to them or planting evidence . . . ; you know, this is garden-variety, high-school peeking at someone else's answer sheet while taking a multiple choice test.)  And it's far from the most seriously bad stuff cops do.

And, of course, I need to be clear about this.  Ferrante may not have done it.  Hell, he may not even be color blind.  Still, when the allegations surfaced earlier in May, he is said to have confessed and then resigned from the force.

But see, what's interesting about this case has nothing whatever to do with whether Ferrante knows when the light is red and when it's green.  Ferrante isn't just a cop on the beat.  He trains new cops.

According to WKYC-TV:

Ferrante was also the Field Training Sergeant responsible for overseeing the training and evaluating of rookie officers and the lead advisor for a youth group of police explorers.

So he's in charge of making sure the young cops learn how to do their job right.  Which perhaps isn't the ideal position for a cop who is himself, er, ethically challenged.  But perhaps he's learned.  That cheating on the test thing was, after all, 16 years ago.  Ferrante is also an author.  He's written two books, in fact.  The latest, just out in August, is apparently a novel, To Protect and Serve Abuse.  

But it's the first that's interesting, and that got me started here.  WKYC, again.

He is also the author of "Police Ethics is Not an Oxymoron." According to the book cover, Ferrante is quoted as saying that "Image is everything in law enforcement."

Here, according to Police-Writers.com, is the description of Police Ethics is Not an Oxymoron.  

Image is everything in law enforcement! These innovative techniques and tips for training cops are ground-breaking. Police Ethics is Not an Oxymoron is great manual to guide Police Officers, Police Supervisors, Chiefs, Security Directors, and Training Coordinators. The keys to successful hiring, training, and retention are clearly presented. Law enforcement agencies typically neglect what they take for granted-ethical behavior. A strong foundation begins with this book!

See, it's all about image.  The look of the thing is what matters.

• Fancy uniforms.
• Badges.
• To Serve and Protect.
• This Car Was Seized from a Drug Dealer
• DARE to keep your kids off drugs.

That sort of thing.

It applies here, too, of course.  Scott Greenfield is fond of reminding us all of what we should have learned from the great Peter Steiner cartoon in The New Yorker.

And Mark Bennett and Brian Tannebaum have made a virtual cottage industry of outing the dogs who pretend to be real lawyers.

But it's more than just the cops or the blawgosphere the whole blogosphere.

I'm no sociologist (and my wife, who in fact is a sociologist, has told me on more than one occasion that I have virtually no sociological insight, but this much I understand:  We live in an age of image.

Consider, for just a minute:

Maybe it started with

Well, damn.  I can't find a video of the original of Ella Fitzgerald breaking the glass:  Is it live?  Or is it Memorex?  But if you're old enough, you'll remember it.

Of course, maybe it started with cave men.  Or something back in the Garden of Eden. Hell, maybe it was Adam's post-lapsarian fig leaf.  But there's a difference between the use of imagery and imagery itself.

The image, after all, is not the thing itself.  Maybe it's a substitute.  Maybe a reflection.  But not the thing.

Which brings me, to perhaps where I've been heading all along:

Judicial Impropriety

I've talked around the subject a few times.  It comes up in the context of the Mark Gardner Rule.  (A lawyer can be punished for saying bad things about judges even if they're true because, according to the Supreme Court of Ohio, truth is an absolute defense but truth is what reasonable lawyers believe and reasonable lawyers don't believe bad things about judges.)  I discussed it at length when the Supremes decided Caperton v. A.T. Massey Coal Co., Inc. last year.

After talking about Gardner, and Geoffrey Feiger and Andy Jackson and Chief Justice John Marshall, I got around to, well, let me just copy in a bit of what I wrote then.

And so it came to pass that Antonin Scalia went duck hunting with Dick Cheney.

At the same time, Cheney was petitioner before the Supreme Court in an ongoing dispute over whether the government could be forced to reveal information regarding an advisory committee on energy policy that Cheney, as Vice President, headed. ONe of the parties to the case, the Sierra Club, asked that Scalia recuse himself. He declined with a 21 page opinion explaining that recusal would be proper only if reasonable people might think him biased, and while many people did think he would be biased . . . . Well, he never explicitly said that the editorial boards of major newspapers around the country were unreasonable, but that's pretty much what he was saying.

The point, you see, is that if he were to recuse himself when it wasn't absolutely necessary, then justices would be urged to on other occasions when it might not be absolutely necessary. Actually recusing without necessity will lead people to think less of the justice system:

While the political branches can perhaps survive the constant baseless allegations of impropriety that have become the staple of Washington reportage, this Court cannot. The people must have confidence in the integrity of the Justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, and in an atmosphere where the press will be eager to find foot-faults.

And then there was Caperton v. A.T. Massey Coal Co., Inc. The underlying dispute involved allegations of misconduct by Massey Coal. A jury awarded Caperton and others $50 in damages. Massey appealed to the West Virginia Supreme Court. Massey's chairman, Blankenship, spent some $3 million in a successful effort to unseat an incumbent justice of that court and, in his place, elect a different justice (Benjamin). As the Court noted:

To provide some perspective, Blankenship’s $3 million incontributions were more than the total amount spent byall other Benjamin supporters and three times the amount spent by Benjamin’s own committee. Id., at 288a. Caperton contends that Blankenship spent $1 million more than the total amount spent by the campaign committees of both candidates combined.

The West Virginia Court, by a 3-2 vote with Justice Benjamin in the majority, reversed the lower courts and vacated the $50 million judgment. The Supreme Court, in an opinion by Justice Kennedy, said it wasn't fair.

Repeatedly emphasizing that this is an extraordinary case, that the amounts at issue in themselves and as a percentage of spending were "grossly disproportionate," and given the timing were so extraordinary (he does keep saying it) that due process required Benjamin to recuse himself.

Although there is no allegation of a quid pro quo agreement, the fact remainsthat Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause. And applying this principle to the judicial electionprocess, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.

Only this was, Kennedy says, can the public's belief in the integrity of the system be confirmed.

Except, say the dissenters, this will weaken the public's faith in the integrity of the system. Chief Justice Roberts bookends his opinion for the dissenters with that point:

I, of course, share the majority’s sincere concerns about the need to maintain a fair, independent, and impartial judiciary—and one that appears to be such. But I fear that the Court’s decision will undermine rather than promote these values.
. . .
I am sure there are cases where a “probability of bias”should lead the prudent judge to step aside, but the judge fails to do so. Maybe this is one of them. But I believe that opening the door to recusal claims under theDue Process Clause, for an amorphous “probability ofbias,” will itself bring our judicial system into undeserved disrepute, and diminish the confidence of the American people in the fairness and integrity of their courts.

 The key part of all this, and how it's relevant here (or maybe how it is that what I'm writing now was relevant there) is that thing about the appearance of impropriety.  Because what Kennedy and Roberts and Scalia were all arguing about in Caperton wasn't whether West Virginia Supreme Court Justice Brent Benjamin was actually bought-and-paid-for-Justice-Brent-Benjamin.  Of course he wasn't almost surely all nine of the SCOTUS Justices would declare if pushed.  The judiciary is a meritocracy, after all.  We, you can imagine them saying, understand that.  But the poor unwashed might misunderstand so we must

• Refuse to acknowledge that one could believe ill of high-court judges, thereby helping to assure the public that it is impossible even to imagine that a high-court judge could be corrupt and, thereby, guaranteeing that there cannot be an appearance of impropriety; or
• Admit that the ignorant public might foolishly and wrongly believe that it is possible for a high-court judge to be corrupt and therefore do everything possible to make the public aware that we will crush anything that even the most-evil believing person could think just might look problematic; because that way, the public will be reassured that nothing even seeming to have the appearance of impropriety will be tolerated.

Got that.  Either you deny that an appearance of impropriety is possible or you acknowledge that there is such a possibility and stop whatever you can.  Or something like that.

OK, that's all stupid.  Call me a member of the great unwashed on this one.  Of course there's a possibility of judicial corruption.  Hell there's a reality of it.  Not everywhere.  Not all the time.  But it happens.

Judges take bribes.  (See, for instance, Operation Greylord and Luzerne County, Pa. juvenile judges.)  They masturbate on the bench (at least in Oklahoma).  They do all manner of weird shit.  So, for that matter, to lawyers who aren't judges and also physicians and morticians and politicians and all the other icians you can think of.  And plumbers and dishwashers.  And folks who hang out in singles bars.  And the folks who don't.

No limits, as they say.  There are bizarre people and dishonest ones in every group.  What else is new?

But judges, you see, are special.  They (and they alone but maybe lawyers, too, and doctors and morticians and accountants and bankers and teachers and pretty much everyone else except maybe those people hanging out in singles bars) are required not just to behave properly (though we overlook a hell of a lot) but to appear to behave properly.

The appearance of propriety.

Which is really more important than propriety itself when you get right down to it.

Don't ask.  Don't tell.

David Ferrante got it right. The image really is everything.

That's why they wear the robe.  And the badge.

-----------------

* Mueller told Congress that, despite the cheating investigation, the FBI understands the rules and is following them. 

"I do believe that our work force absolutely understands what can be investigated, how it must be investigated, what predication is necessary for a particular investigation in this day and age," Mueller said.

Mueller, himself, appeared shaky on the rules during the questioning, however. He told Sen. Dick Durbin, D-Ill., that the FBI cannot conduct surveillance unless it suspects wrongdoing. FBI rules require no such standard. They allow agents to conduct surveillance proactively, without any evidence that a crime has been committed.

After the hearing, the FBI said, Mueller sent a note to Durbin saying he misspoke. The FBI must have a proper purpose before conducting surveillance, but suspicion of wrongdoing is not required, he said.

Under the Domestic Investigations and Operation Guidelines, FBI agents can also consider race when opening early inquiries. For instance, the FBI could look into whether the terrorist group Lashkar-e Taiba had taken hold in a city if it had a large Pakistani-American presence.

The cheating investigation has heightened skepticism that the FBI understands its own policies.

"They're not actually even doing their homework to know what the rules say," said Michael German, policy counsel at the American Civil Liberties Union and a former FBI agent.