Baby Steps

When I posted at 12:35 this morning, I quoted from "The Love Song of J. Alfred Prufrock."

In a minute there is time
For decisions and revisions which a minute will reverse.

The thing about this business (one thing about it) is that you never know.  Who would have thought?  Frankly, not me.
I wrote

The Court of Criminal Appeals can grant a stay and order testing.

And to the surprise of, I suspect, almost everyone, they half did.  And, at least for the moment, it's the more important half.
Skinner Stay - CCA
That's a stay.  Not for DNA testing, but to give the court a chance to determine whether the DNA testing statute, amended in part "because of this case," should apply.  And how.
That is, the Court is going to decide whether to give Skinner the test.  And it'll keep him alive long enough for the decision.
Rob Owen, one of his lawyers, explained.

The Court of Criminal Appeals with its decision today, has ensured that Mr. Skinner's request for DNA testing will receive the thorough and serious consideration it deserves. We are grateful for the Court's action and look forward to the opportunity to make Mr. Skinner's case for DNA testing in that forum.

Sometimes, not always but sometimes, they do the right thing.
This is one of those times.
And though I don't say this often, I offer these words to the Judges of the Texas Court of Criminal Appeals.

Good job this time!

Of course, now they've got to order the testing.
But one thing at a time.

Sure it's racist. What's your point?

Here's Samuel Alito, that's Associate Justice Samuel Alito of the Supreme Court of the United States, explaining the problem.

The petition in this case concerns bizarre and objectionable testimony given by a “defense expert” at the penalty phase of Buck’s capital trial.

"[B]izarre and objectionable."  You won't see that sort of language often from the most conservative, law and order, member of the Supreme Court in his summary of the facts about which a condemned guy complains.  Of course, there aren't that many cases like Buck v. Thaler.  Or, sadly, maybe there are.  It probably depends on how you're counting.

I've written about Duane Buck before.  Here's the summary plot from one of those posts.

Seven people in Texas were sent to death row in part because psychologist Walter Quijano told their juries that as blacks or Hispanics they were more likely to commit future violent crimes than if they had been white.

Quijano shouldn't have done that.  What he said is factually wrong; there is no basis for the conclusion that blacks and Hispanics are more violent than whites. What he said is morally offensive; it is racism in action, regardless of whether Quijano thinks so.  What he said, in the context of a trial, is legally improper; considerations of race have no place in the criminal justice system.  What he said, in the context of a trial, is unconstitutional; it made the sentences, at least in part, dependent on race in violation of the Equal Protection Clause of the Fourteenth Amendment.

Then Texas Attorney General John Cornyn (he's now a U.S. Senator) recognized that what Quijano did was inexcusable and its effect on the sentences unacceptable.  He supported vacating those sentences.  Of the seven people whose death sentences were infected by Quijano's claims, six had their death sentences vacated and received new sentencing hearings.  The seventh is Duane Buck.

I wrote that on September 13th.  Texas had planned Buck's murder on the 15th, but that day, and some two hours into the killing window, the Supreme Court called a halt so it could decide what to do.  I wrote then:

In a few months, the Court will decide whether to hear the case. 

Until then, Duane Buck lives.

And maybe, just maybe racial injustice moves one baby step toward its demise.

Nah.  That's too much to hope for.

Today's the day.  And even Alito (joined, I should add, by Scalia and Breyer), recognizes the basic truth.

Bizarre and objectionable.

Wait.  No.  That's not the basic truth. That's a pesky complication. The basic truth is that Texas should get to kill Duane Buck because his trial lawyer's the one who got Quijano to say that Buck was more likely than most folks to commit crimes because he's black.  Alito (joined by and his band of brothers) explained.

Dr. Quijano’s testimony would provide a basis for reversal of petitioner’s sentence if the prosecution were responsible for presenting that testimony to the jury. But Dr. attorney, not the prosecutor, who first elicited Dr. Quijano’s view regarding the correlation between race and future dangerousness.

Alito doesn't use the term, but he's talking about a close cousin of what's called invited error.  The idea, and it's not absolutely nuts, is that you can't complain that the judge was wrong to grant your request or motion or objection or whatever.  You can't, that is, complain that you shouldn't have gotten your way.  This isn't quite the same thing, but you can see the connection.

Buck's trial lawyer had a report from Quijano saying that one of the things he looks at in assessing future dangerousness is that black's are especially dangerous.  [That's nonsense, of course, but a different issue.]  So when he asked Quijano, 

[i]f we have an inmate such as Mr. Buck whois sentenced to life in prison, what are some of the factors, statistical factors or environmental factors that you’ve looked at in regard to this case?

He pretty much either knew what he was gonna get.  Hell, he put Quijano's report into evidence even though the prosecutor objected.  Of course, the prosecutor didn't exactly shy away from the racism of it all.

Q. You have determined that the sex factor, that a male is more violent than a female because that’s justthe way it is, and that the race factor, black, increasesthe future dangerousness for various complicated reasons; is that correct?
A. Yes.

But, as Alito said,

[T]he responsibility for eliciting the offensive testimony lay squarely with the defense.

And you really should have learned the basic rule by now.

If the lawyer fucks up, kill the client.

In Parents Involved in Community Schools v. Seattle School District No. 1,  Chief Justice Roberts  wrote  about racism, and though his point in that case was both wrong and offensive, the words he used have some resonance.

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

He had nothing to say about Duane Buck.  Nor did the only African-American Justice, Clarence Thomas who once complained that he was the victim of a "high tech lynching." Nor the Court's longest serving woman, Ruth Bader Ginsburg, the one who as a powerful advocate before the Court almost single-handedly (yes, I'm exaggerating, but not all that much) forced it to confront and begin to redress discrimination against women.

Sonia Sotomayor, on the other hand and joined by Elena Kagan, dissented.

Today the Court denies review of a death sentence marred by racial overtones and a record compromised bymisleading remarks and omissions made by the State of Texas in the federal habeas proceedings below. Because our criminal justice system should not tolerate either circumstance—especially in a capital case—I dissent and vote to grant the petition.

Which is something, I suppose.  

But not nearly enough.

And cold comfort to Duane Buck.

In the Room, the Women Come and Go/Talking of Michaelangelo

LET us go then, you and I,
When the evening is spread out against the sky
Like a patient etherized upon a table;
Let us go, through certain half-deserted streets,
The muttering retreats
Of restless nights in one-night cheap hotels
And sawdust restaurants with oyster-shells:
Streets that follow like a tedious argument
Of insidious intent
To lead you to an overwhelming question….
Oh, do not ask, “What is it?”
Let us go and make our visit.

It all happened near the end of the week.

• Judge Frost said he believes them.
• A nearly unanimous Ohio Supreme Court said they don't think any of it matters.
• Judge Emmert said he doesn't want to know, either.
• Dudley Sharp said he already knows, though much of what he knows is wrong.

And the days grew shorter.  And fewer.

I didn't want to write this post.  I've been resisting it, because one of the things everyone who pays even a little attention, and certainly everyone involved in it know is that you never really know what will happen. 

And indeed there will be time
For the yellow smoke that slides along the street,
Rubbing its back upon the window panes;
There will be time, there will be time
To prepare a face to meet the faces that you meet;
There will be time to murder and create,
And time for all the works and days of hands
That lift and drop a question on your plate;
Time for you and time for me,
And time yet for a hundred indecisions,
And for a hundred visions and revisions,
Before the taking of a toast and tea.

As I said, I didn't want to write this post.  I hoped I wouldn't have to.  And there is still time.

But it draws short.

On Friday, Judge Frost explained, that the State of Ohio seems to have got religion.

You'll recall that back in July, the judge explained that 

It is the policy of the State of Ohio that the State follows its written execution protocol,
except when it does not. This is nonsense.

More than just "nonsense."  Judge Frost said it violated the equal protection rights of Kenny Smith who was about to be executed.  And he called off the killing.  Now, several months later, and with a new protocol in place and Reginald Brooks due to be killed a week from Tuesday, the judge held several days of hearings and decided that he thinks they've come up with a system he can trust.  This time, he says, they seem to mean it.

This litigation has too often supported the inherent truth of the adage that those who
cannot learn from history are doomed to repeat it. With some caution, the Court today reaches the conclusion that the State of Ohio has apparently learned the lessons of its prior embarrassments and corrected its course in order to pursue court-ordered implementation of its latest written execution protocol.
. . .
After the Smith rebuke, it appears that the state officials involved have finally recognized that subject adherence to the protocol and too much discretion to depart from core provisions or safeguards are neither laudable nor constitutionally permissible approaches. Thus, “the perplexing if not often shocking departures from the core components of the execution process that are set forth in the written protocol” appear to be relegated to the past, obviating the conclusion that Ohio’s execution practices offend the Constitution based on irrationality and disturb fundamental rights that the law bestows on every individual regardless of the depraved nature of his or her crimes.

Yeah, well, maybe.  Or maybe not.

And maybe we'll find out as the killings resume.  Which the Ohio Supremes seem to be just fine with.

Because on Friday, they refused three motions to stay the Brooks murder.

Brooks entry refusing stay

Which about covers it.

Should we hold off on killing him until we're sure he's competent to be executed as the Constitution requires?  No. Except Judge O'Donnell, and he alone, would wait for an appellate court to decide that one.

She we hold off on killing him until we've decided whether the evidence the state has just now revealed, after he's been in prison for getting on toward 30 years now entitles him to a new trial?  No, of course not.  O'Donnell doesn't think so, either.

Should we hold off on killing him while the commission established by this very court to figure out if we're doing the death penalty fairly and properly issues a report?  No.  Are you crazy?  Why would we do that?  Again, O'Donnell agrees with the rest of them.

Which puts it pretty squarely in the laps of the federal courts and Governor Kasich.  The Guv has proved himself surprisingly willing to not kill people over the last few months as he's commuted sentences and granted reprieves.  Perhaps I should be optimistic.  I'm not.

And indeed there will be time
To wonder, “Do I dare?” and, “Do I dare?”
Time to turn back and descend the stair,
With a bald spot in the middle of my hair—
(They will say: “How his hair is growing thin!”)
My morning coat, my collar mounting firmly to the chin,
My necktie rich and modest, but asserted by a simple pin—
(They will say: “But how his arms and legs are thin!”)
Do I dare
Disturb the universe?
In a minute there is time
For decisions and revisions which a minute will reverse.

And then there's Texas.  Where it's looking more and more like it's up to the Governor who would be President.

The good people of the Lone Star State want to kill Hank Skinner on Wednesday.  At least, Lynn Switzer does.  Here's the very short version of the problem from Radley Balko at Huffington last week.  If they kill Skinner, he says,

[I]t may be the biggest travesty of justice in the modern death penalty area. That isn't necessarily because Skinner is innocent. He may be guilty. I don't know. The problem is that the state of Texas also doesn't know.

Well, yeah.  I've talked about Skinner a fair amount over the last couple of years.  There's this DNA he's been trying to have tested for the last 10 years.  For the last 10 years, the state has fought tooth and nail to prevent the testing.  He's been to the US Supreme Court over the damned DNA testing.  And he won his case.  The Texas Legislature f'rgodssake passed a law to ensure that he could get the DNA tested.  In response, DA Switzer asked the court to set a date to kill him.  Which it did.  This coming Wednesday.  This week, a Texas court said it didn't care about the new law.  No testing.  Let him die.

Dudley Sharp, a free-lance death penalty enthusiast, wrote in the Austin American-Statesman that Skinner is gaming the system with a last minute bid for a stay.  Of course, that bid has been going on for 10 years, and if they'd tested all the stuff back then, he'd either have been exonerated or killed years ago.  They refused.  It's not Skinner who's responsible for the delay.

And who's gaming what system?

Of course, Sharp makes clear that Skinner doesn't really want the DNA tested.  If only he'd ordered his lawyers at the time of the trial, they'd have had to test it, Sharp says.  Which isn't true.

Or he could have jumped up and demanded that the judge order the lawyers to test it, and of course the judge would have - or would have given him new, more compliant lawyers.

Anyone who does this work knows that ain't how it happens.  Sharp lives in a fantasy world, of course.  But then he's certain.  The details really don't matter.

Here's the truth.  If they'd tested the DNA 10 years ago, just like if they test it now, one of three things happens.

1. It proves Skinner is innocent.
2. It proves Skinner is guilty.
3. It proves to be inconclusive.

So now let's look at Texas and Lynn Switzer and why there's this unwillingness to test the DNA.

Is it because they're sure he's guilty and the DNA will prove it and it's been worth 10 years of legal wrangling and expense and bad publicity because they don't want proof that will lay public suspicions to rest but would rather have it look like they're callous and don't give a shit about killing a maybe innocent guy?

I don't think so.

Here's what I think, and it's the only even close-to-rational explanation:  They're afraid it will prove he didn't do it.  And then they've got a guy they've been calling a monster and trying to kill for about 16 years now and damn will they look foolish.  So better to trust the jury and kill him than take a chance.

Leonel Herrera said he was innocent and shouldn't be killed, but Texas was adamant.  In 1993, the Supreme Court said

Bah, humbug.  Let him die.

And Harry Blackmun dissented.

I have voiced disappointment over this Court's obvious eagerness to do away with any restriction on the States' power to execute whomever and however they please. See Colemanv. Thompson, 501 U. S. 722, 758-759 (1991) (dissenting opinion). See also Coleman v.Thompson, 504 U. S. 188, 189 (1992) (dissent from denial of stay of execution). I have also expressed doubts about whether, in the absence of such restrictions, capital punishment remains constitutional at all. Sawyer v. Whitley, 505 U. S., at 343-345 (opinion concurring in judgment). Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder.

Perilously.

The Court of Criminal Appeals can grant a stay and order testing.  So can the governor.

Or they can, in effect, join Lynn Switzer on the hypodermic's plunger.

For I have known them all already, known them all:
Have known the evenings, mornings, afternoons,
I have measured out my life with coffee spoons;
I know the voices dying with a dying fall
Beneath the music from a farther room.
So how should I presume?
And I have known the eyes already, known them all—
The eyes that fix you in a formulated phrase,
And when I am formulated, sprawling on a pin,
When I am pinned and wriggling on the wall,
Then how should I begin
To spit out all the butt-ends of my days and ways?
And how should I presume?
And I have known the arms already, known them all—
Arms that are braceleted and white and bare
(But in the lamplight, downed with light brown hair!)
Is it perfume from a dress
That makes me so digress?
Arms that lie along a table, or wrap about a shawl.
And should I then presume?
And how should I begin? .      .      .      .      .      .      .      .
Shall I say, I have gone at dusk through narrow streets
And watched the smoke that rises from the pipes
Of lonely men in shirt-sleeves, leaning out of windows?…
I should have been a pair of ragged claws
Scuttling across the floors of silent seas. .      .      .      .      .      .      .      .
And the afternoon, the evening, sleeps so peacefully!
Smoothed by long fingers,
Asleep … tired … or it malingers,
Stretched on the floor, here beside you and me.
Should I, after tea and cakes and ices,
Have the strength to force the moment to its crisis?
But though I have wept and fasted, wept and prayed,
Though I have seen my head (grown slightly bald) brought in upon a platter,
I am no prophet—and here’s no great matter;
I have seen the moment of my greatness flicker,
And I have seen the eternal Footman hold my coat, and snicker,
And in short, I was afraid.
And would it have been worth it, after all,
After the cups, the marmalade, the tea,
Among the porcelain, among some talk of you and me,
Would it have been worth while,
To have bitten off the matter with a smile,
To have squeezed the universe into a ball
To roll it toward some overwhelming question,
To say: “I am Lazarus, come from the dead,
Come back to tell you all, I shall tell you all”—
If one, settling a pillow by her head,
Should say: “That is not what I meant at all;
That is not it, at all.”
And would it have been worth it, after all,
Would it have been worth while,
After the sunsets and the dooryards and the sprinkled streets,
After the novels, after the teacups, after the skirts that trail along the floor—
And this, and so much more?—
It is impossible to say just what I mean!
But as if a magic lantern threw the nerves in patterns on a screen:
Would it have been worth while
If one, settling a pillow or throwing off a shawl,
And turning toward the window, should say:
“That is not it at all,
That is not what I meant, at all.” .      .      .      .      .      .      .      .
No! I am not Prince Hamlet, nor was meant to be;
Am an attendant lord, one that will do
To swell a progress, start a scene or two,
Advise the prince; no doubt, an easy tool,
Deferential, glad to be of use,
Politic, cautious, and meticulous;
Full of high sentence, but a bit obtuse;
At times, indeed, almost ridiculous—
Almost, at times, the Fool.
I grow old … I grow old …
I shall wear the bottoms of my trousers rolled.
Shall I part my hair behind? Do I dare to eat a peach?
I shall wear white flannel trousers, and walk upon the beach.
I have heard the mermaids singing, each to each.
I do not think that they will sing to me.
I have seen them riding seaward on the waves
Combing the white hair of the waves blown back
When the wind blows the water white and black.
We have lingered in the chambers of the sea
By sea-girls wreathed with seaweed red and brown
Till human voices wake us, and we drown.

From "The Love Song of J. Alfred Prufrock"        by T.S. Eliot

And a Little Child Shall Lead Them - Unless the Judge Won't Let Her

A Connecticut judge will hold a hearing later this month to determine whether a 9-year-old girl can testify about her father -- who has called a "monster" in newspaper headlines -- in an effort to save him from being sentenced to death. 

So reports Anne-Marie Dorning for ABC News.   Which raises the basic question:

What the fuck?

It's maybe relevant that the father here is Joshua Komisarjevsky who, along with Steven Hayes, raped and pillaged and burned and killed in the home invasion of the Petit family.  No, really it isn't relevant who the father is except that by all accounts he loved his daughter.  

OK, the kid is 9.  In Ohio, that would mean that the judge ought to determine whether she's competent to testify.  That's because of Ohio Evidence Rule 601 which says 

Every person is competent to be a witness except:
(A) Those of unsound mind, and children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.

The Ohio Supreme Court said that to decide whether a child is competent to be a witness, the judge must hold a hearing and then consider

(1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of truth and falsity and (5) the child's appreciation of his or her responsibility to be truthful. 

I'm not a Connecticut lawyer and don't know whether Connecticut has a similar rule.  But whether it does or not, the girl's competence apparently isn't the issue the judge will be taking up. Instead, the judge will be trying to decide, or so it appears from Dorning's report, whether letting her testify will be in the child's best interest.

An attorney hired to represent the girl, Raymond M Hassett, would not say whether or not he is in favor of the girl testifying, although he has submitted a motion to quash the subpoena. But Hassett told reporters outside the courtroom today that they "shouldn't read too much into that" because he would "leave it up to the court to weigh all the factors."
Those factors would no doubt include the psychological impact on the girl of testifying and the type of questions she would have to answer. Blue is expected to hear testimony from a mental health professional during the closed door session on Nov. 14.
. . .
A number of studies have been done on the effects of testifying in a trial on children. "Criminal court testimony is associated with fear and anxiety for a substantial subset of children," according to a study done in the 1990's at University of California, Davis. "The adversarial, formal, and possibly even hostile court environment during a hearing and especially a trial is a source of a child witnesses' fear and distress."

The law is, at least formally, solicitous of what it grandly refers to as "the best interests of the child."  (That's the law, not necessarily judges, as anyone who's seen the horrible video of a judge beating his 16-year-old daughter, like Mark Bennett I couldn't watch the whole thing, can attest.)  And I suppose it might be hard on a 9-year old girl to get on the witness stand, look at a dozen jurors and a courtroom filled with haters and reporters and Dr. Avenging-Angel Petit and they all think her dad is, well, monster is probably too positive a term, and say to them 

Please don't kill my daddy.

Sure that might be tough on the kid. Dorning reports that

[a]lthough it is becoming more common for children to testify in court, it is almost unheard of for a child to testify in a death penalty sentencing hearing. 

Almost, perhaps.  But not unheard of.  We did it in a case about 10 years ago, though only after serious debate and with great care.  It's the sort of thing that can easily backfire.  If the jury thinks it's a cheap trick at the expense of the kid, that's just one more reason to think the father deserves to die.  On the other hand, it can be, and was in the case where we did it, incredibly moving testimony.

But all of that is, ultimately, beside the point.

Here's the point.  Komisarjevsky has a right, an absolute right, to provide the jury with any evidence relevant to whether the death penalty is appropriate in his case.  As the Supreme Court explained in Lockett v. Ohio, at a capital sentencing proceeding, the defendant must be allowed to present and the jury allowed to consider

as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.

And of course the Sixth Amendment assures him the right

to have compulsory process for obtaining witnesses in his favor

Really, there's no question that the law allows him to call the child as a witness.

But what about what's good for the child?  Doesn't that matter?  What about this story reported by Dorning?

In 2001, in Los Angeles, four children were called by a prosecutor to testify against their father, Marco Barrera, who had been convicted of killing several of his other children. The situation caused outrage among child advocates.

Yeah?  What about it?

First, the prosecutor doesn't have a constitutional right to put on whatever evidence it might like that the guy should be killed.  Second, and really this shouldn't be hard to grasp, there's a difference between asking a child to urge the jury to save her father's life and asking it to kill her father.  Damn right that those advocates were outraged.

But even if they'd be outraged by Komisarjevsky calling his daughter, it shouldn't matter.  The law really is clear that he has a right to do it.

I said before that I'm not a Connecticut lawyer.  I also have no inside information about the defense strategy.  And I haven't read any of the filings in the case.  I don't know, except what I can glean from the press reports, why the judge has called for a hearing, what's on his mind, or what issues have been raised regarding the child's possible testimony.  What I know is that the law on the subject is remarkably clear.

Komisarjevsky's aunt testified that his execution "would not be good for his daughter."  

And so I have to tell you about Brian and Barbara Siler and their son Nathan and the Honorable Jeffrey Runyan.

In 2001, Brian Siler brutally murdered his estranged wife Barbara.  During the investigation of the crime, police took statements from the couple's three-year-old son Nathan.  

an officer testified to those statements at trial, and they pretty much assured Brian's conviction of aggravated murder with death specifications.  The jury said Siler should die, but Judge Jeffrey Runyan thought otherwise. 

In sentencing Siler to death in prison (LWOP), the judge explained in thorough and moving detail, why the aggravating circumstance did not outweigh the mitigating factors and how it is that a death sentence would disserve the memory of Barbara Siler.

Then he said this.

The final and determinative mitigating factor is Nathan Siler. Nathan is the one party here who bears no responsibility whatsoever for his mother's death.
The court must inquire objectively what sentence is in the innocent Nathan's best interests?
At some point in his future, Nathan will undoubtedly begin to blame himself for his mother's death. Is there something I could have done, he will say. That's human nature. But there is nothing young Nathan could possibly have done to save his mother.
Now young Nathan's words through the testimony of an officer have convicted his father. But today this court stands between young Nathan and the thought that he has caused his father's death as well. That would be a result of this case that is unthinkable.

The Perverse (Or Not) Law

Scott Greenfield says, almost, that he'd never pay for a book by a law professor.  I do from time to time. 
This time, though, I didn't have to.  I got an invitation to review NYU law prof Leo Katz's new book, Why the Law Is So Perverse, and I jumped on it.  Yes, please send me a free copy to review, I said.  I really liked his earlier Bad Acts and Guilty Minds:Conundrums of the Criminal Law which I thought both interesting and suggestive.  I was excited.
Except maybe I'm just too old now.  Or not old enough.  Maybe I've spent too much time in the trenches where real juries and real judges make real decisions about real people who did (or didn't do) real things.  Or maybe I'm just weird.

The problem isn't that I think Katz is wrong about what he concludes.  I think he's mostly right.  And it's certainly not that I think he's uninteresting.  Rather, it's that I keep wanting to argue with him about his examples.
Let me back up and explain what I'm talking about.  To do that, I have to begin with a very quick (really, trust me on this) peek at what Why the Law Is So Perverse is about.
Katz talks about four peculiarities in the law.

• It forbids some of what he calls "win-win" transactions such as selling bodily organs;
• It's filled with loopholes, and lawyers aren't condemned for exploiting them;
• Legal decisions are mostly either/or- guilty or not, liable or not; and
• We don't make criminal lots of stuff we condemn.

These are all, he says, perverse.  Why should the law be as it is when these things all make so little sense?  His answer, addressed with remarkable clarity and not a little charm in his book, is that they are all, ultimately, logically unavoidable in the real world.
He may or may not be right.  There's considerable logic to what he says.  But logic only takes you so far in getting to what's right.
As every first-year philosophy student quickly learns:  If your premises are false, the conclusions that follow from them are worthless.  If those conclusions happen to be correct, it's mere chance.  Take the standard Logic 101 syllogism.

All men are mortal.
Socrates is a man.
Therefore, Socrates is mortal.

(For obvious reasons, philosophers like to talk about Socrates.)
Now take the equally logical but worthless syllogism.

All mortals are men.
Elephants are mortal.
Therefore, elephants are men.

Well, no.  They're not.  The logic is unassailable.  The conclusion is nonsense because the major premise (All mortals are men) is false.
Back to Katz.  Here's the thing.  The things he finds "perverse" and therefore in need of justification don't strike me that way at all.  To find them so requires a mind set I don't have.  Again, maybe I once would have.  Maybe not.  But if you don't find the underlying perversity. . . .
And then there's the problem of the examples.
Start with one that is, coincidentally, offered in his guest post from this mornin at The Volokh Conspiracy where he's (and yes, this is unfair) shilling for his book this week.  The issue is why the law mostly demands either/or results.  The answer he offers is that the alternative leads to such untenable positions as that it's better for a physician to keep 1,000 brain dead people on life support with the understanding that they will never be other than brain dead than it is for that physician to maintain the life and health of an altogether hale and hearty person.  Since we won't buy that, it follows that there must be an absolute dividing line in the law between life and death (though it doesn't much matter where that line is).
Katz gets to that conclusion by observing that we'd all agree it's better to keep two slightly defective (some minor organ doesn't work perfectly) people in that condition than to keep one not at all defective person in perfect health.  The rest is just a reductio ad absurdum.  Which is fine, except that we don't all agree with the underlying premise.
We all agree, he says, that coercion by threat of burglary is both worse and more coercive than by threat of reckless driving through one's neighborhood.  Follow it out and you get the same reductio.  But we don't all agree.
The either/or instances are no different than the others.  Take loopholes.
We all agree, he says, that it's wrong to hide assets in bankruptcy.  But we all also agree that it's fine to move to Florida, where you can keep more of your assets when you file for bankruptcy than you can in some other states, and then file.  So even though loopholes are ultimately inescapable, they're also just fine and there's no moral or ethical problem with exploiting them.  Except, of course, we don't all agree.
Undercriminalization.  We all agree, he says, that disclosing long-ago private misconduct in revenge for a personal slight is wrong but shouldn't lead to either criminal or civil liability.  So the fact that the law doesn't punish that is exactly as it should be (and although he's kind of incoherent on this point) as it has to be.  Except that (1) the law does sometimes punish that activity, and (2) once again, we don't all agree.

All of these are examples or counter-examples.  But he builds his case in large part inductively from those examples.  And if they're false, well then, he's got little besides conclusions. 
Frankly, I think Katz is mostly right about the conclusions.  It would be incoherent for the law to deal with these supposed perversities ("supposed" is really his point: The law isn't perverse at all, or at least not in these ways) in any other way.  But I simply don't share his intuitions about what people think; in fact, I think he's mostly wrong about that stuff.  The consequence is that my copy of the book is now filled with sticky notes and pen scratchings that say "NO!" or "I disagree," or "Nonsense," or the like.  And I kept tossing the book aside in disgust because he was so often wrong about the examples even though the conclusions seemed mostly (not always, but mostly) correct.
See, after all the flawed examples and after all the faulty premises, Katz actually has a theoretical model that makes some sense.
When you have to make up decisional rules about dealing with things that have multiple characteristics and criteria, things like real people with real problems in the real world, you're going to end up with a system that approximates and leaves gaps and is kind of arbitrary and makes some people unhappy muchof the time and almost everyone unhappy some of the time.  Which points toward that basic rule of legal practice, the proper answer to every legal question:

It depends.

Katz gets there through social choice theory which mostly applies even when his examples don't work.  That's not bad.  And it's good to have an background explanation.
OK, but what does any of this have to do with the actual practice of law?  I mean, I'm interested in legal theory and jurisprudence for their own sake.  But for all the hanging out I do with academics and at universities (I'm actually in a university library as I'm typing this paragraph), I'm neither a philosopher nor an etherealist law professor.  I'm a practicing lawyer.  I represent real people charged with or convicted of real crimes - often facing death in prison one way or another.  Does Katz help me?  In practical terms, for the most part, no.
Oh, in some absolute sense he does.  After all, there's no such thing as worthless experience.  Reading, studying, thinking carefully about anything is valuable. It makes the mind nimble.  It gives extra stuff to draw on for examples and counter-examples.  I'm a better lawyer for having spent several years immersed in the study of medieval and renaissance English literature in general and The Faerie Queene in particular - even though I don't know just how or why.
So I'm glad I read it.
But if you want tips on cross-examination or on how to use the business record exception or on what the hell to make of the Rule in Shelly's Case (and to tell you the truth, I have no idea what that rule is - I lost it within five minutes of the bar exam, if I even had it then); if you want to know what's wrong with cross-racial eyewitness identification or how to explain reasonable doubt; if you're trying to explain to the client why 8 years in the slammer is or isn't a good deal that he should or shouldn't take, Why the Law Is So Perverse isn't what you need.
Which probably won't surprise anyone.  Least of all, Leo Katz.

Interpreting the Constitution - Part VI - The Fear of Too Much Fairness

It was just a single comment by Justice Scalia during oral argument yesterday.  He serious.  He wasn't being sarcastic or ironic, wasn't poking fun.  Still, I'm not sure that he really meant what he said - or at least what it implies.  But it gets at a major problem with how we think about the Constitution, the closest thing we have to a sacred text.

A bit of context.

The case is Missouri v. Frye.  You can find the entire oral argument transcript here. Here's the plot.

Galin Frye was charged with driving without a license, a felony.  The prosecutor offered a plea bargain.  to a misdemeanor with 90 days in jail if he accepted the deal promptly.  Frye's lawyer didn't tell him about the offer, and after it had expired, Frye entered a guilty plea to the charge and was sentenced to three years.  While he was in prison serving that 3-year sentence, Frye learned about the 90 day misdemeanor offer.  

Nobody seriously disputes that his lawyer should have told Frye about the offer.  It's an absolutely basic rule:  The lawyer conveys every offer (civil case, criminal, doesn't matter, every offer) to the client.  Why?  Because it's always the client's call whether to take it.  We can advise.  We can browbeat.  But we can't decide.  That's for the client.  So the lawyer fucked up.  Then what?

The Missouri courts concluded that Frye was denied his Constitutional right to effective assistance of counsel and that he should be allowed to withdraw his plea and have a trial or plead again (though not to the misdemeanor plea which is long since off the table.

Here's the legal mess.

Missouri says that however much his lawyer screwed up, Frye entered a lawful and proper plea to what he did.  Since he can't show that he didn't know what he was doing when he entered the plea - or that it was somehow involuntary - he really can't complain about it now.  Frye says that he should be able to get that misdemeanor plea that he would (presumably) have jumped on if he'd known about it at the time.

So what to do?

That original plea offer is long-since off the table.  And if you let everyone take back a plea (or undo a trial, for that matter) when they realize that they passed up a chance at a lesser sentence, well, there's no stopping place.  (Or so says Missouri.)  Which led to this exchange between Scalia and Frye's lawyer, a man with the Dickensian moniker Emmett D. Queener.  (In fact, I have to start with Justice Ginsburg to have this make any sense.)

       JUSTICE GINSBURG: But you are -- you are leaving out of the picture the prosecutor's prerogative to withdraw or flip. You said that the court, that it lacked authority to order the State to offer any bargain, but also the court said, I'm not going to require the prosecutor to renew an earlier offer.
One thing is clear in this case; the prosecutor did nothing wrong. The wrong was on the part of defense counsel. So why should the judge disarm the prosecutor, take away the prosecutor's right to change his mind?
       MR. QUEENER: The -- this is a remedy for the Sixth Amendment violation, and that is to put the defendant back into the position as nearly as possible as he would have been in at the time; and at the time the offer was open -- this is not a situation where the prosecutor is being ordered initially or the first instance to make an offer; it -- this is being viewed as the offer that was originally made is still available and open to the defendant.
       JUSTICE SCALIA: Yes, but at the time that offer could have been withdrawn by the prosecutor. And you are saying now it can't be withdrawn. So you are really not putting him back in the situation he was in.
       MR. QUEENER: There -- there is never going to be a perfect remedy for any of these violations, I don't believe.
       JUSTICE SCALIA: I think that's right.
       MR. QUEENER: Right.
       JUSTICE SCALIA: And that's one of the things that causes us to be suspicious of whether there is a constitutional violation -
       MR. QUEENER: Well -
       JUSTICE SCALIA: -- because there really isn't any perfect remedy.

In 1803, in Marbury v. Madison, Chief Justice John Marshall, for a unanimous Supreme Court, wrote this.

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

In the 3d vol. of his Commentaries, p. 23. Blackstone states two cases in which a remedy is afforded by mere operation of law.

In all other cases," he says, "it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, when ever that right is invaded."

In fact, Marshall held that Marbury's rights were, in fact, invaded but that he couldn't sue.  That is, Marbury said that if there's a right there must be a remedy except that there doesn't have to be, proving that the law could be as incoherent and disingenuous and outright dishonest in 1803 as it can be today.

It was probably 15 or more years ago that I was arguing a case in the court of appeals.  The judges agreed with me that what the trial judge did was wrong.  But they couldn't find (and frankly, neither could I) any way to even hint at its having made a difference in the trial.  

What can we do?  We can't tell the judge he was wrong without reversing and we have no basis to reverse?

Which was just silly.  As I told them, they do it to me all the time.

Yeah, you're right, but the error was harmless so live with it.  Do it this time.  You want the judge to stop doing this, but the only way tell him to stop is to say it was wrong.

Which makes perfect sense.  Except the court wouldn't do it.  And to this day, I should add, the judge is still doing the same damn thing.  Because the court took the same position.  No remedy, therefore no error.

Anyway, what I'm interested in today is Scalia's claim that if there isn't a perfect remedy, then it seems there must not have been a constitutional violation.  That feels intuitively wrong, and I think it is.  I think (as I suggested at the beginning) even Scalia wouldn't really buy it.  For while his statement seems to channel Blackstone's (and Marshall's) formulation of the rule (if not Marshall's application of the rule), it doesn't.  The problem is that you can't work backwards that way.

To see why, it's necessary merely to offer a more generalized rule.  Here are two versions.

• If it can't be fixed, it isn't broken.
• If it can't be undone, it didn't happen.

You know immediately that those are wrong.  Lots of broken things cannot be fixed.  (Consider Humpty Dumpty.)  And lots of things that can't be undone did indeed happen.  (Princess Di is, in fact, dead.)

Yet if those counter-examples demonstrate why Scalia is wrong, they don't exactly say how to solve his dilemma:

What do you do when the Constitution is violated but there seems no quick and dirty remedy?

Start by looking at it in the context of Frye's case.  The Sixth Amendment says that he had a right to effective assistance of counsel, which means a lawyer whose performance was not objectively deficient.  That was violated.  His lawyer was objectively deficient in not reporting the plea offer to him.

The Supreme Court says that there is no relief for a Sixth Amendment violation unless there is a reasonable probability of a different outcome had counsel's performance been adequate.  OK then.  On that test, Frye would have to prove that if his lawyer had told him (in time) about the misdemeanor plea offer, there's a reasonable likelihood he would have taken it.  That is, he'd have to show that he isn't just suffering buyer's remorse from the sentence he got after his plea but that he ended up entering this plea because his lawyer was incompetent and didn't tell him about the earlier one.

Ah, but that might open a mess.  People who got sentences they don't like might claim that they would have taken deals if they'd known they were offered or if their lawyers had pushed them harder or something.

Damn.

Breyer suggested that maybe there could be a special test for these cases just to avoid that problem.  Nobody asked why it was a problem.  Because, I suppose, and this is deeply distressing, all nine of the Justices were wary of inflicting too much fairness on the system.

The risk of too many people asking to have their rights vindicated.

But of course, that's what we're supposed to be about.  We embrace that risk.

Unless we're the Supremes (or your local trial, appellate, or supreme court much of the time).  If we're them, we think of floodgates.

The remedy crosses the board.  If someone's constitutional rights have been violated, there really is a remedy.  Put the person her back as close to the position she'd be in if they hadn't been as possible.  Will the remedy be imperfect?  Sure.  Most of the time.  But it's something.

The alternative is to assert that only some constitutional violations - ones that lend themselves to congenial remedies - count.  But that's the cafeteria, not the Constitution.

Back to Galin Frye.  If he can show that he'd likely have taken the deal if he'd known of it (and apparently the Missouri courts were convinced), then do what the Missouri courts wouldn't do and  give him the deal he would have taken.  It's not perfect now.  But it's the best that can be done.

Because Blackstone was right, and Scalia wrong.

And either way, bitch slap his lawyer around some.