Sunday, June 17, 2012

Clap If You Believe in Fairies

There are, at the very least, three views of the role of judge.
  • There's the Balls and Strikes model advocated by John Roberts at his confirmation hearing.  The pitch is a strike or it isn't. There are no ambiguities, no doubts to be resolved, no judgment to be applied.  All that judge needs is good eyesight and absolute integrity.  It isn't just objective, it's virtually content free.  Since there are no questions, there's no need for answers.  It's nonsense, of course, and nobody on the bench for more than an hour or so has ever actually applied that model.  But a whole lot of people endorse it, at least in public pronouncements.
  • There's the rational calculus model advocated by Antonin Scalia.  The one that says judges must carefully avoid fairness or conscience.  Nice things those, but as he argued in a lecture at Harvard (which became an article in the University of Chicago Law Review - take that, Harvard), the "Rule of Law[ is a] law of rules."*  No room in it for such niceties as humanity, morality, fairness, whatever.  If it isn't a rigid rule, it should be eschewed.  There's an apparent rigor to that model appealing to the self-righteous and hyper-intellectual, but it's also a sham.  It's not just that the rules can't really apply to every case (though they can't; there will always be outliers).  It's that even the rigid rules he favors are themselves subject to interpretation.  The objectivity he craves simply doesn't exist in the real world of judging or justicing.
  • And there's the case model, grounded in the Anglo-American heritage of common law.  Judges act case by case.  They look to rules, statutes, constitutions, precedent.  Then they look at all the facts and circumstance.  This is closest to the traditional law school model by which the law is applied through analogy and develops incrementally.
Whether one of these or another, pretty much everyone agrees that, at least in principle, judges should follow the law without fear or favoritism.  Maybe they should temper it.  Maybe they should find ways to bend it a bit this way or that to achieve something like equity or fairness or even justice (whatever that might be).  Maybe they should look to purposes or goals or societal values or national consensus or legislative history.  Or maybe not.  But they ought to be looking to the law.
For the rest of us, it's a bit different.
Criminal defense lawyers, we have but one job: To defend our clients.  (No, I'm not going to get involved broader debates about what's involved or how to explain or consider that here.  If you must read about that, search the archives.)  Hell, that's the job of lawyers in general.  To act zealously (even in Ohio where the Supreme Court has specifically and intentionally determined that zealous representation is not called for) in defense of our clients, albeit within the bounds of the law.
And then there are prosecutors.  Theirs is the unique job because although they represent the government, their role is, actually and specifically, to seek justice.
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.
That's from Justice Sutherland's opinion for the Court in Berger v. United States.
A key part of that obligation is the ability to exercise discretion.  Prosecute this guy, not that one.  Bring these charges, not those.  The idea is not to seek advantage, not to demand however much can be demanded, but rather to go after what's right under the circumstances.  Sure, they're constrained by the law as are all of us in the system.  What they don't do, what they aren't supposed to do, is hide behind it.  The law can never be their excuse for not doing the right thing.  The prosecutor must never say, in the face of injustice (which is much easier to recognize than justice),
My hands are tied.
In 1946, the people of Louisiana strapped Willie Francis in the electric chair for the murder of Andrew Thomas.  He strained, he struggled.  But he didn't die.  Before they could do it again, the US Supreme Court stepped in.  And then stepped out.  By a vote of 5-4, the Court said that Louisiana could electrocute Willie Francis one more time.  And maybe, just maybe, more times after that.  You know, until they got it right.
There is no majority opinion in Louisiana ex rel. Francis v. Resweber. Justice Reed wrote for himself, Chief Justice Vinson, and Justices Black and Jackson.  Justice Burton's dissent was joined by Justices Douglas, Murphy, and Rutledge.  The swing vote, the fifth vote to kill, came from Felix Frankfurter.  Foreshadowing Scalia's trashing of the relevance of conscience, fairness, and justice (though unlike Nino expressing his revulsion at the need to do so), but relying solely on a cramped and narrow, constricted model of how a Supreme Court justice should rule, Frankfurter wrote a concurring opinion.
I cannot bring myself to believe that for Louisiana to leave to executive clemency, rather than to require, mitigation of a sentence of death duly pronounced upon conviction for murder because a first attempt to carry it out was an innocent misadventure, offends a principle of justice "rooted in the traditions and conscience of our people." See Snyder v. Massachusetts, supra, at 105. Short of  the compulsion of such a principle, this Court must abstain from interference with State action no matter how strong one's personal feeling of revulsion against a State's insistence on its pound of flesh.[**] One must be on guard against finding in personal disapproval a reflection of more or less prevailing condemnation. Strongly drawn as I am to some of the sentiments expressed by my brother BURTON, I cannot rid myself of the conviction that were I to hold that Louisiana would transgress the Due Process Clause if the State were allowed, in the precise circumstances before us, to carry out the death sentence, I would be enforcing my private view rather than that consensus of society's opinion which, for purposes of due process, is the standard enjoined by the Constitution.
Of course, as Gilbert King makes clear in his terrific book, The Execution of Willie Francis: Race, Murder, and the Search for Justice in the American South, Frankfurter was wrong on the facts.  The failed exectuion was not "an innocent misadventure," and it's very far from clear that the "consensus of society's opinion" was that Francis should be electrocuted again.  But that's a quibble. 
So, in 1947, Louisiana got it's pound of flesh.
Frankfurter's acquiescence in the ultimate killing of Willie Francis, however grudging and mean and misguided and misinformed, was grounded at least in a recognizable view of his job. He was, he thought, to apply the law as he understood it even if he hated it. He could not bend it to achieve any end, no matter how repugnant the law or its application might be.  After all, despite having the title "Justice," his job was, as he understood it, entirely divorced from the eponymous concept.
Which brings us, at last, to North Carolina.
From Brad Heath in USA Today.
A USA TODAY investigation, based on court records and interviews with government officials and attorneys, found more than 60 men who went to prison for violating federal gun possession laws, even though courts have since determined that it was not a federal crime for them to have a gun.
Many of them don't even know they're innocent.
The legal issues underlying their situation are complicated, and are unique to North Carolina. But the bottom line is that each of them went to prison for breaking a law that makes it a federal crime for convicted felons to possess a gun. The problem is that none of them had criminal records serious enough to make them felons under federal law.
It sounds more callous than I mean it to when I say that these things happen, but they do.  This isn't a case of wrongful convictions but, rather, of a court (one of the most pro-prosecution in the nation) revising how certain sentences from North Carolina courts should be understood by federal courts. Pardon the long quote here, but it's about the only way to make this clear. Brad Heath again, explaining the felon in possession law and what happened.
Congress wrote one national definition of who cannot own a gun: someone who has been convicted of a crime serious enough that he or she could have been sentenced to more than a year in prison.
Figuring out who fits that definition in North Carolina is not as simple as it sounds. In 1993, state lawmakers adopted a unique system called "structured sentencing" that changes the maximum prison term for a crime, based on the record of the person who committed it. People with relatively short criminal records who commit crimes such as distributing cocaine and writing bad checks face no more than a few months in jail; people with more extensive records face much longer sentences.
For years, federal courts in North Carolina said that did not matter. The courts said, in effect: If someone with a long record could have gone to prison for more than a year for the crime, then everyone who committed that crime is a felon, and all of them are legally barred from possessing a gun.
Last year, the U.S. Court of Appeals for the 4th Circuit said federal courts (including itself) had been getting the law wrong. Only people who could have actually faced more than a year in prison for their crimes qualify as felons under federal law.
So what you have is a situation where some number of folks (and frankly, it might be hundreds) were properly convicted of what it has just recently been determined wasn't a crime.  As I said, nobody to blame really, and these things happen.
The question is what now.
The obvious answer is to identify all the wrongfully convicted and, as quickly as they're identified, undo the convictions.  In the first instance, that's kind of what happened.
The Justice Department and federal courts moved quickly to clean up cases that were pending when the 4th Circuit announced its decision. Prosecutors dropped pending charges against people whose records no longer qualified them as felons; the 4th Circuit reversed convictions in more than 40 cases that were on appeal at the time. Some of the men were given shorter sentences; others were simply let go.
But then there are all those guys doing time.
Says the Justice Department,
That's for us to know and them to figure out.
Oh, and they can't be released.
Justice Department officials said it is not their job to notify prisoners that they might be incarcerated for something that they now concede is not a crime. And although they have agreed in court filings that the men are innocent, they said they must still comply with federal laws that put strict limits on when and how people can challenge their convictions in court.
Because, you know, um, you know, it's because, er, what was that again?
I'm probably not being entirely fair.  The folks from Justice Heath quotes all talk about how they'd like to find a way to provide some relief to these folks but how they just can't figure a way that doesn't involve just going to court and saying,
These guys are innocent and we fucked up and so cut them loose ASAP.  Or sooner.
Besides, guys like Terrell McCullum may be innocent, but that doesn't mean they shouldn't be convicted and imprisoned.
"At most," the Justice Department said in an April court filing , McCullum "has become legally innocent of the charge against him." In other words, the law may have changed, but the facts of his case didn't — he did possess the gun, and he had a criminal record — so he isn't entitled to be released.
Even though he's innocent.
Because they need that pound of flesh.
Frankfurter would have understood, perhaps have quoted Shylock this time.
My deeds upon my head! I crave the law.
Scalia would be proud.
Me, I'm with Portia.***
The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:
'Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this,
That, in the course of justice, none of us
Should see salvation: we do pray for mercy;
And that same prayer doth teach us all to render
The deeds of mercy.
And there is that thing about the job of prosecutor being to seek justice, not convictions.  Of course, Tinkerbell is fiction.

*Which is not the same, or even in conflict with, the contrast between the Rule of Law and what I call the Law of Rule.
** The allusion by the Jewish Frankfurter to Shylock's demand in The Merchant of Venice for a pound of Antonio's flesh as provided by contract.
What judgment shall I dread, doing no wrong?
You have among you many a purchased slave,
Which, like your asses and your dogs and mules,
You use in abject and in slavish parts,
Because you bought them: shall I say to you,
Let them be free, marry them to your heirs?
Why sweat they under burthens? let their beds
Be made as soft as yours and let their palates
Be season'd with such viands? You will answer
'The slaves are ours:' so do I answer you:
The pound of flesh, which I demand of him,
Is dearly bought; 'tis mine and I will have it.
If you deny me, fie upon your law!
There is no force in the decrees of Venice.
I stand for judgment: answer; shall I have it?
*** Also  The Merchant of Venice.

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