Trust Us, We're Judges

1959.  The Heights Art Theatre in Cleveland Heights, a suburb of Cleveland.  Les Amants (The Lovers is the English title), a film by French director Louis Malle.

The keepers-of-morals were out in force, and the manager, one Nico Jacobellis, was arrested, then convicted for showing it.  See, it showed Jeanne Moreau having an orgasm, and very briefly, it showed one of her nipples.  Perhaps more to the point, it showed her abandoning her husband and child to run off with her lover - and not suffering horribly for that.

Anyhow, Nico was busted for showing an obscene film.  Convicted by a three-judge panel.  Conviction affirmed by the court of appeals.  Affirmed again by the Ohio Supreme Court.  Then on to Washington, where the 9 berobed ones reversed (Jacobellis v. Ohio)

In the scheme of things, Jacobellis isn't really all that important a case.  The win was resounding but incoherent with no opinion garnering more than two votes.  Still, it provided more room for artistic expression and free speech.  No small thing.  Mostly, though, it provided us with Justice Potter Stewart's landmark explanation of why he was voting to reverse the conviction (footnotes deleted).

It is possible to read the Court's opinion in Roth v. United States and Alberts v. California, 354 U. S. 476, in a variety of ways. In saying this, I imply no criticism of the Court, which in those cases was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions since Roth and Alberts, that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

There's a principle in the criminal law known as the Rule of Lenity.  The idea is that if there's any ambiguity in whether something is a crime, it's not.  It's just fundamentally unfair to punish someone for an act that fairly considered might not be criminal.  The Rule of Lenity is codified in Section 2901.04(A) of the Ohio Revised Code.

Except as otherwise provided in division (C) or (D) of this section, sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.

In the simplest form, the idea is that ties go to the defendant.  Which was sort of Potter Stewart's point.  But not quite.  Because his actual point, and the reality of what the Court did for several years, was that a bunch of old guys in Washington would decided by watching allegedly obscene movies in a screening room at the Supreme Court whether this film or that was actually obscene.

Call me old-fashioned or a bleeding-heart or a damned communist if you like, but I don't think that's the way it should work.  If the law isn't clear (and the law of obscenity isn't frankly all that much clearer today than it was in 1964 when gut instinct was good enough for Potter Stewart, though what was shocking then is routine now), then nobody can be certain it's being violated.  And if nobody can be certain, then nobody should be convicted (or prosecuted, really, but that's probably too much to ask).

That principle, the Rule of Lenity, is central to the argument of, say, Harvey Silverglate's Three Felonies a Day: How the Feds Target the Innocent.  But it comes up all the time in this business.

Anyway, over at Simple Justice this morning, Scott Greenfield has an important post about how cops lie to induce confessions and why it's a problem but the cops don't think so and how it is that the New York Court of Appeals (its high court) has apparently agreed to grapple with the issue in a case involving New York's law of "depraved indifference murder." 

Leave in the Thomas case sets up a potentially huge issue, an acknowledgement that while lying by police may be enormously effective, it does so by undermining constitutional rights in the process. The same effectiveness that provides confessions by the guilty provides confessions by the innocent, and without constitutional rights to protect both, the latter will suffer along with the former. This cannot be tolerated by our system.

As I say, it's an important post.  You should read it.  But it's not the important subject that got me going here.  It's the aside at the end.

At Friday's in-chambers argument, after considerable discussion on the issue, [defendant's lawyer Jerome] Frost asked Smith: "Your honor, can you tell me what a depraved indifference murder is?"
Smith replied: "No, but I can cite some cases."

Yeah. As Scott notes,

Never have so few words damned the criminal justice system so well.

If the judge can't explain it, how can the jury know?  How can the defendant?

Which brings us full circle.  Back to obscenity.  Back to Nico Jacobellis and to Jacobellis v. Ohio.  And back, especially, to Potter Stewart who had the right answer but whose rationale was really little more than "trust me."

Antonin Scalia says that the problem with any approach to the Constitution other than some version of textualism or originalism is that it's untethered.  What it means is no more than what 5 folks on the Supreme Court say it does.  And what they say today may bear no relationship to what they might say tomorrow.  The randomness of predilection.  

Scalia's right about the risk, though he's wrong to believe that his magic bullet does anything to alleviate it.  But there are principles that can be applied, and should be.  One is the Rule of Lenity.  
Ties go to the defense.

Because "Trust me" isn't good enough.  I can cite some cases isn't good enough.  Knowing it when Potter Stewart sees it isn't good enough.

Though people have spent decades in prison, and some been executed, for less.