The Turkeys Are Still Winning

It won't be news to readers of this blawg that once a trial is over, questions of innocence (with rare exceptions) become legal irrelevances.

Reviewing courts, whether on direct appeal or collateral review are concerned with rules and procedures. They talk, some, about how strong the evidence was of guilt. But factual innocence is mostly beyond their proper reach. Indeed, most of the human consequence, of the real world result of decisions rendered by trial courts (and this is as true of civil as of criminal cases) is of no formal interest to appellate judges and justices.

I chose my words with some care in that paragraph. The adjectives in "legal irrelevances," "proper reach," and "formal interest" matter. Innocence and consequence don't formally count because that's not what reviewing courts review. They're not, basically (yes, there are exceptions), in the business of second guessing verdicts. They're in the business of making sure that the verdicts were reached in accord with the rules and statutes and constitutional provisions that control legal process and outcome.

For good or ill, trials are about what happened. Post-trial work is about how the trial was conducted - not about whether it came to the right result.

Of course, it's rarely quite that simple. As I've said repeatedly, the myth of judge or justice as robotic umpire calling balls and strikes is just that - a myth. But myth, albeit fictional, has power. Reality infects, but the claim must be that it does not.

Here's now-Justice Sotomayor explaining to the Judiciary Committee how she's deeply concerned about the real world consequences of her decisions and pays enormous attention to such things because they're vital. But, she's careful to add, those things and her attention to them have nothing whatever to do with the decisions she makes.

Throughout my seventeen years on the bench, I have witnessed the human consequences of my decisions. Those decisions have been made not to serve the interests of any one litigant, but always to serve the larger interest of impartial justice.
In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.
The process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged. That is why I generally structure my opinions by setting out what the law requires and then by explaining why a contrary position, sympathetic or not, is accepted or rejected. That is how I seek to strengthen both the rule of law and faith in the impartiality of our justice system. My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.

Some justices (and judges) advert to the reality from time to time. There was, for instance, DeShaney v. Winnebago County Department of Social Services. Here's the first sentence of Chief Justice Rehnquist's opinion.

Petitioner is a boy who was beaten and permanently injured by his father, with whom he lived. Respondents are social workers and other local officials who received complaints that petitioner was being abused by his father and had reason to believe that this was the case, but nonetheless did not act to remove petitioner from his father's custody.

The facts, Rehnquist went on to say, "are undeniably tragic." But you know, them's the breaks. The law, he said for a majority of the court, provides no comfort. It's that Anatole France line from Le Lys Rouge.
The law, in its majestic equality, forbids the rich as well as the poor, to sleep under bridges, to beg in the streets and to steal bread.
Brennan's dissent is eloquent, bit we remember DeShaney for Justice Blackmun's words:

Poor Joshua!

In fact, we recall them wrong. We remember them as the first words of his dissent; they are not. They are, rather, the first words of the last paragraph. The whole dissent (it's short) is worth reading.

Today, the Court purports to be the dispassionate oracle of the law, unmoved by "natural sympathy." Ante, at 202. But, in this pretense, the Court itself retreats into a sterile formalism which prevents it from recognizing either the facts of the case before it or the legal norms that should apply to those facts. As JUSTICE BRENNAN demonstrates, the facts here involve not mere passivity, but active state intervention in the life of Joshua DeShaney — intervention that triggered a fundamental duty to aid the boy once the State learned of the severe danger to which he was exposed.
The Court fails to recognize this duty because it attempts to draw a sharp and rigid line between action and inaction. But such formalistic reasoning has no place in the interpretation of the broad and stirring Clauses of the Fourteenth Amendment. Indeed, I submit that these Clauses were designed, at least in part, to undo the formalistic legal reasoning that infected antebellum jurisprudence, which the late Professor Robert Cover analyzed so effectively in his significant work entitled Justice Accused (1975).
Like the antebellum judges who denied relief to fugitive slaves, see id., at 119-121, the Court today claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the question presented by this case is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a "sympathetic" reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging. Cf. A. Stone, Law, Psychiatry, and Morality 262 (1984) ("We will make mistakes if we go forward, but doing nothing can be the worst mistake. What is required of us is moral ambition. Until our composite sketch becomes a true portrait of humanity we must live with our uncertainty; we will grope, we will struggle, and our compassion may be our only guide and comfort").
Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, "dutifully recorded these incidents in [their] files." It is a sad commentary upon American life, and constitutional principles — so full of late of patriotic fervor and proud proclamations about "liberty and justice for all" — that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve — but now are denied by this Court — the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U. S. C. § 1983 is meant to provide.

It happens, too, during oral argument - perhaps more often. Justice Stevens provided the moment last week during argument in Magwood v. Patterson when he tried to ground the discussion of whether a claim in a capital case should be heard.

Let me just ask, is this the cases in which the claim is he's ineligible for the death penalty?

No one other than he seemed to find the question even remotely relevant.

Yesterday, as Doug Berman posted (citing Josh Gerstein at Politico) it was Justice Kennedy. The case, Dillon v. United States, involves application of the federal Sentencing Guidelines to a person being resentenced. Kennedy took the opportunity to ask Leondra Kruger, an attorney with the office of the Solicitor General, about another matter. Here's the exchange, taken from the transcript.

JUSTICE KENNEDY: The Petitioner's brief opens with a statement about his rehabilitation. We don't know if that has been contested. You don't respond to it. But let's assume that's all true. He established schools and he helped young people and so forth.
Does the Justice Department ever make recommendations that prisoners like this have their sentence commuted?

MS. KRUGER: I am not aware of the answer to that, Justice Kennedy. It's certainly true that evidence of that type of rehabilitation factored into the government's recommendation in this case that Petitioner -

JUSTICE KENNEDY: And isn't the population of prisoners in the Federal prisons about 185,000 now?

MS. KRUGER: I think -

JUSTICE KENNEDY: I think it is. And how many commutations last year? None. How many commutations the year before? Five.
Does this show that something is not working in the system? 185,000 prisoners? I think that is the number.

MS. KRUGER: I -- I'm not prepared to speak to that question today, Justice Kennedy.

Kennedy's made the point before. Gerstein gives examples.

In a 2003 speech to the American Bar Association, Kennedy said:

The pardon process, of late, seems to have been drained of its moral force. Pardons have become infrequent. A people confident in its laws and institutions should not be ashamed of mercy. The greatest of poets reminds us that mercy is "mightiest in the mightiest. It becomes the throned monarch better than his crown."

The next year, Kennedy wrote in a dissenting opinion: "Among its benign if too-often ignored objects, the clemency power can correct injustices that the ordinary criminal process seems unable or unwilling to consider."

Back in November, I wrote about how, after ten months in office, the only pardon Obama had managed was for a Thanksgiving turkey. I wrote then:

The power to pardon, to grant clemency, is the power of mercy. It can be used for error correction, certainly, but at it's most potent it is something more. An act of grace from the sovereign. Not earned or deserved because one cannot earn or deserve grace. It descends.

Used to be that Presidents (governors, too, but that's a different post) regularly granted pardons, clemency, commutations. No longer. And none has been as chary at granting as Obama, the man of hope and change and empathy.

The scoreboard remains now as it was at the end of November:

Turkeys 1 . . . Humans 0.

We've got health care now, or a version of it.

Isn't it time?

SOTOMAYOR AND INNOCENCE

I've written about the importance of access to post-conviction DNA testing and about District Attorney's Office for the Third Judicial District v. Osborne, that's the case in which SCOTUS decided last week that people who have been convicted of crimes have no constitutional right to DNA testing that might prove their innocence. And I've certainly written about Judge Sotmayor and the reasons I think she looks like a serious net loss for the criminal defense bar (and maybe others) assuming she is confirmed as an Associate Justice. What I haven't done is to address those things together.

I didn't do it when I read this moving story in the Times about Jeffrey Deskovic, an innocent man who spent 16 years in prison for a rape murder committed by another man. Soo a number of those years were because Judge Sotomayor (as part of a panel) denied him the right to DNA testing - testing he eventually got and which proved his innocence - because he filed some papers 4 days late at the direction of a court clerk.

But thanks to a wonderful post at Grits for Breakfast, I've now read Deskovic's own take on his story and on Sotomayor over at Politico, and it's devastating.

Here's the bottom line:

I would like an opportunity to testify at Sotomayor’s confirmation hearings to let the senators — and the country — know that we need a Supreme Court justice who understands the problem of wrongful convictions and is ready to correct them where the facts deem it necessary. Procedure should never be used as an excuse to override justice. The state must not be permitted to take away an individual’s liberty and later argue that his or her actual innocence is no longer relevant. Truth-seeking is central to our understanding of justice.

In my case, Judge Sotomayor did not demonstrate that understanding. If that is her idea of “empathy,” a trait that Obama sought in his appointee, then God help us all, especially those who are wrongfully convicted and possibly sentenced to death. Innocence can never be ruled as out of order in court.

And that, of course, takes us back to Osborne, back to the question of a right to the tools needed to prove innocence.

The Court has never said that it's unconstitutional to execute (let alone convict) the innocent. At least a couple of members of the court are on record as saying that it's not. But on what human scale must they (and prosecutors and lower courts, for that matter) live to think that it's OK, on any basis, to prevent people from trying to prove that the government made a mistake?

*********

Making DNA testing theoretically available is only part of the battle, of course. Related topics I haven't yet discussed are the problems of lost or destroyed DNA-bearing material so that there's nothing to test and the nightmare world of those who are cleared by DNA but who still don't get the vindication - and in at least a handful of cases, even the release from custody - they deserve. More to come in those injustice files.

SOTOMAYOR FOR THE PROSECUTION

I'm starting to feel like a scratched record, playing the same note over and over again. (Yeah, I know everyone today talks about Groundhog Day, but I'm old fashioned that way.) Still, the more I learn about Judge Sotomayor the more I'm convinced that she's going to be exactly who we don't want sitting on the Supreme Court.

OK, she's got a great personal story (detailed and glorified by the White House here). So does Clarence Thomas. So do lots of people. Doesn't make them the right folks to decide Constitutional questions.

She has indicated over the years a personal commitment to the advancement of Latinos, women, perhaps other historically disadvantaged and discriminated against groups. Her politics are, one assumes, generally centrist/left, which is likely what we ought to have expected from a President who, despite the claims of Rush and Newt and Mitch McConnell, and regardless of what his personal preferences might be, is for the most part (yes, you have to ignore the takeover of the auto industry) proving to be resolutely moderate in his approach to governance.

But Felix Frankfurter was clearly a liberal while a professor at Harvard yet disappointed Roosevelt (and other liberals) as a generally conservative Justice. Politics don't tell the whole story any more than do life experiences.

The thing is, there's nothing much stealth about Judge Sotomayor. She may never have ruled on abortion or the constitutionality of the death penalty or gay rights, but she's written hundreds of judicial opinions, given dozens of speeches, taken public stands over the decades on a variety of issues. The vast majority of that is referenced, one way or another, in the 172 page questionnaire and attachments she presented to the Senate Judiciary Committee. If we parse that collection carefully, we can get a pretty good idea of just what sort of justice she's likely to be.

Want a more humanized version? See this story from yesterday's NY Times about a case where she denied habeas relief under AEDPA to an innocent man doing time for murder.

Or you can just look at what was said at a press conference yesterday morning (here) to announce that eight law enforcement agencies were endorsing her for the Court. Surrounded by nine police chiefs, Joe Biden explained what sort of a justice she'd be from their point of view.

So you all are on the front lines. But as you do your job, know that Judge Sotomayor has your back as well.

Form over function. Law enforcement over morality. Empathy only for police and prosecutors.

INTERPRETING THE CONSTITUTION, PART II (EMPATHY)

Everyone's talking about "empathy" and the Court these days.

The President says he wants his appointment to the Supreme Court to be someone with "empathy." Those who have already lined up to trash the prospective appointee, whoever she (or he, though that seems less likely) might be denounce the very idea of empathy as extralegal squishiness.

Obama's initial comments regarding what exactly he's looking for in a replacement for Justice Souter probably didn't help:

Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes.

Frankly, that doesn't sound like a description of someone who puts fidelity to the Constitution first. It sounds like someone who puts "justice," whatever that might be, first. And while one surely hopes that "justice" and fidelity to the text of the Constitution will always coincide, that hope seems unlikely given that we begin with a document by and for landed white men, a document which enshrined slavery, a document which didn't count native Americans at all and counted slaves as three-fifths of a person. (Constitution here. Three-fifths is Article I, Section 2, Paragraph 3.)

Of course, the rest of the paragraph took a different tone:

I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.

But that does little more than avoid the question of just what Obama would see, in an appointee. What, after all, are those "constitutional traditions" and "constitutional values"? Are they aspirational goals or precise limitations imposed by the framers? Is it a living Constitution or a dead one?

I began this discussion last week (here) and noted that the data suggests that most questions the Court decides are relatively simple. The language of precedent, statute, rule, and Constitution often brings the Court to results on which all or nearly all Justices agree. But not always. And while each side in the hotly disputed cases often takes the other to task for lack of integrity to the underlying principles at stake, the truth is that those principles are frequently not all that clear.

It wasn't intellectual dishonesty (by which I don't mean to discount the prospect that Justices are intellectually dishonest some of the time) that led Justices Roberts and Breyer to articulate (and then vote for) dramatically different understandings of what law and precedent and the Equal Protection Clause require in regard to school desegration in Parents Involved in Community Schools v. Seattle School Dist. No. 1 (here). It was a fundamentally different understanding of what the Constitution means and how to decide what it means.

It's a difference Obama's been talking about, using the language of empathy, for a long time. (Here's a compilation, the "Obama Empathy Speech Index.") He's been addressing it in the context of the Court at least since he explained why he wouldn't vote to confirm John Roberts as Chief Justice:

The problem I face -- a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts -- is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

Of course, if you believe that Obama is fundamentally wrong to think that in even 5% of the cases a purely objective look at the language of the Constitution, the statute, the precedent will not resolve matters, then perhaps you'll think anything besides pure logic is irrelevant to being a Supreme Court Justice. With sufficient rigor, the answer will always be clear.

In the second of a series of essays condemning the idea of empathy as a criterion for selecting a nominee to the Court (here), Thomas Sowell retold this story about Justice Holmes:

After a lunch with Judge Learned Hand, as Holmes was departing in a carriage to return to work, Judge Hand said to him: "Do justice, sir. Do justice."
Holmes had the carriage stopped. "That is not my job," he said. "My job is to apply the law."

If it were that easy, a machine could do it.