Sunday, August 28, 2011

All Rise

From time to time in this blawg I've touched on the subject of sovereign immunity.  Essentially, sovereign immunity is what protects the sovereign, which in this country is understood to be the government and its agents, from being sued. 
Sovereign immunity comes in two forms, one more completely protective than the other.
  • Absolute immunity.
  • Qualified immunity.
There are some situations in which the government agrees to be sued, but those are exceptions and are carefully constrained.  The simple truth is that it's really tough to sue the government.  The other simple truth is that sovereign immunity in this country was made up out of whole cloth by the courts.  It has no constitutional foundation.  When "[w]e the People . . . ordain[ed] and establish[ed]" the Constitution, they didn't see the point in protecting the government from them.  Their idea was to protect themselves from the government.
But the sovereign, in the form of the Supreme Court (which has absolute judicial immunity, a creation of its own), thought better.
It gave immunity to the federal government and, for the most part, to its agents.  And then it gave immunity to the state governments and, for the most part, to its agents.  Because they're the sovereigns. And because it has long been settled that the sovereign operates by divine right.  Therefore, the rule.
Rex non potest peccare.
The King can do no wrong.
Of course, we don't have kings and don't believe in the divine right of the government.  (At least, not officially.)  But those who make the rules are not entirely stupid.  They figured out they could protect themselves, and they did.
This is not a post about sovereign immunity.  This is a post about judges and the rules of evidence.  But it builds on the same rule.
Rex non potest peccare.
The King can do no wrong.
Because in the courtroom, the judge is the sovereign, the king.  And the king judge gets it right.  Even when he doesn't.  Here's how the Ohio  Supremes put it in State v. Post, a death penalty case, back in 1987.
We further stated that this court indulges "* * * in the usual presumption that in a bench trial in a criminal case the court considered only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary." Id. at 151, 44 O.O. 2d 136, 239 N.E. 2d 70. See United States v. Impson (C.A. 5, 1977), 562 F. 2d 970, 971, certiorari denied (1978), 434 U.S. 1050; United States, ex rel. Placek, v. Illinois (C.A. 7, 1976), 546 F. 2d 1298, 1304-1305; United States v. Hughes (C.A. 5, 1976), 542 F. 2d 246, 248. See, also, United States v. Busch (C.A. 10, 1985), 758 F. 2d 1394, 1398; United States v. Greathouse (C.A. 7, 1973), 484 F. 2d 805, 807; McCormick, Evidence (3 Ed. Cleary Ed. 1984) 153, Section 60; 1 Wigmore, Evidence (Tillers Rev. 1983) 212-216, Section 4d.1. See, generally, Note, Improper Evidence in Nonjury Trials: Basis for Reversal? (1965), 79 Harv. L. Rev. 407.
I've purposely left the string of citations and the links from Google Scholar in place to make the point that this wasn't something the court dreamed up that day in order to uphold a death sentence.  (Not that the court was is above cooking up new rules when it suits their purposes, just that this wasn't one of those times.)  The rule is widespread and well-established.  Here it is, one more time, the excess stripped away.
[I]n a bench trial in a criminal case the court considered only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.
Let's explore that for a minute.  Judges, you see, know and understand the law perfectly.  And they are unbiased.  And not subject to outside influences.  Therefore, when they make decisions, they consider only proper evidence.  They don't screw it up.
On some rare occasions, a judge may prove imperfect.  But that's OK.  We'll catch it every time because the judge will say,
I'm now considering something improper.
In Ohio, the defendant always has the option of waiving a jury and trying a case to the judge.  (That's not universally true.  In the federal system, for instance, the prosecutor has to agree to a bench trial, a fact that came as a shock recently to at least one lawyer member of the listserv of the National Association of Criminal Defense Lawyers.)  Rex non potest peccare is one reason it's generally a mistake to take that option.  Because errors in the admission of evidence are irrelevant on appeal.
Here's a real life example from State v. Knuckles, decided Friday by the court of appeals in Cleveland.  (Thanks Russ, for pointing me to it.)
Knuckles was charged with Aggravated Burglary and a couple of specifications that could increase his sentence.  He waived a jury and tried the case to a judge.  His defense was that, yeah, he was in the house to take stuff, but he thought he had a right to do it.  Honest mistake.  (Hey, maybe it's even true.  You don't know.)
But he had these prior burglary convictions, and the state introduced them and argued their importance.  The argument was that they showed his (Latin alert) modus operandi, which tended to prove that he was burglarizing rather that making a mistake.
Except the court of appeals said no.  (This time I'm omitting citations.)
A modus operandi provides a “behavioral fingerprint” for the other acts, which can be compared to the behavioral fingerprint for the crime in question. In other words, the State may use a common modus operandi to prove identity by showing that the accused has committed similar crimes and used the same distinct, identifiable scheme or plan as was used in the commission of the charged offense. However, evidence of a modus operandi is generally used only if the identity of the perpetrator is at issue. Since Knuckles admits he was present at the scene of the crime, identity is not an issue. Further, “[t]o be admissible to prove identity through a certain modus operandi, other acts evidence must be related to and share common features with the crime in question.”
The evidence of Knuckles’s other crimes was not related to the charged offense and did not share any distinct features that would establish an identifiable scheme. The State contends that in each of Knuckles’s prior convictions, he “broke into the home of someone he did not know, usually through a window, with intent to steal and ended up fighting with the homeowner in two of them.” The State claims this evidence proves “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” However, because there is nothing unique about these actions, they fail to distinguish Knuckles from any other burglar. This “other acts” evidence served no purpose but to imply that Knuckles has a propensity to commit criminal acts and that he acted in conformity therewith when he committed the charged offense. This is precisely the “other acts” evidence Evid.R. 404(B) seeks to exclude.
Got that?  The judge shouldn't have let the evidence in.
Fortunately, judges are beyond error when they actually make decisions.
See, the judge admitted the improper evidence perhaps thinking it was proper, but when it came time actually to decide the case, the judge knew that the evidence wasn't proper and carefully ignored it.
We agree the “other acts” evidence was admitted in error but find the error was harmless because the remaining evidence weighs strongly in favor of Knuckles’s guilt and he stipulated to his prior convictions. . . . Moreover, the trial court, as the trier of fact, would only consider proper evidence.
The law indulges in many fictions.  ("Legal fiction" is actually a term of art in the law.)  We presume people intend many things they clearly don't intend.  We pretend that jurors will follow instructions no sane person can even understand.  We believe in fertile octogenarians and actually have legal doctrines based on their existence.
Subjects bow before the crowned and robed king with his scepter.  Subjects stand in admiration and awe before the majesty of the berobed judge with his gavel. 
Rex non potest peccare.
The King can do no wrong.

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