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.

OR SO WE PRETEND.

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.

Because I'm the Judge, That's Why

On Friday, after 15 hours of deliberations, a jury in Cleveland found Anthony Sowell guilty, guilty, guilty.  All those bodies, the folks who escaped, kidnapping, and on and on.  82 counts!  (Acquitted of one, I should add, and the judge earlier entered acquittals on 2 others.)  Next up, after a week to regroup, everyone will reassemble to consider the sentence.

Under Ohio law, it works like this.

• The judge will decide the sentences to be imposed for all the crimes other than the aggravated murders with death specifications.
• The judge will decide whether the sentences should run consecutively or concurrently.  And he can mix and match, making some consecutive and others concurrent.
• The jury will decide, sort of, whether Sowell should be murdered by the state of Ohio, and how often.  And if not, or not always, what life sentence to impose.

That last probably requires a bit of explanation.

For each aggravated murder with death specifications, there are four possible sentences.

1. Life with eligibility for parole (at the discretion of the Parole Board) after serving every day of 25 years in prison.
2. Life with eligibility for parole (at the discretion of the Parole Board) after serving every day of 30 years in prison.
3. Life without the possibility of parole (LWOP or Death in Prison).
4. Death.

Each count is determined separately.  So the jury can, at least in theory, say death for this murder, LWOP for that one, 25 - life for another, death again, 30 - life here, and so on.  And, again, the judge decides whether to make the sentences consecutive or concurrent.  (Kill him 11 times in a row or kill him 11 times simultaneously?)

But there's another bit of the law, which is why I said that the jury would "decide, sort of," whether Sowell should get death.  Any of the life sentences chosen by the jury is the sentence that must be imposed for that murder.  But the judge has the authority to overrule a jury's death sentence and impose any of the life sentences he chooses.

So, if the jury says for one of the killings Sowell should serve a full 30 years and then be eligible for parole, Sowell will get that sentence.  The judge cannot reduce it to 25 years before eligibility or enhance it to LWOP or death.  But if the jury says death, the judge can impose any of the four possible sentences.  That is, a death verdict from a jury is, technically, a recommendation.

The idea is that the jury speaks for the community, but if the jury is swayed by passion and blood lust, a wise and dispassionate judge can fix it.  But when the jury (that is, the community) says life, overruling that would be unjust, unfair, undemocratic.

Not surprisingly, Ohio judges don't like to overrule juries.  In fact, and in a couple of hundred (I'm too lazy to count them but it's pretty clearly over 200 jury death verdicts) cases where juries have said death since the law went into effect in October 1981, Ohio judges have instead said life a total of 8 times.

Why "not surprisingly"?  Is it because juries are so good?  Because they never get it wrong?  Because nobody ends up on death row who doesn't deserve to be there?

Uh, no.  Not even close.

In a small way, it's a function of judicial deference to juries.  In a larger way it's because judges are too lazy  or (and here's where we finally get to the point) too scared or too busy pandering to do what they know they should.

See, our judges in Ohio are elected for six year terms.  And while they aren't supposed to make decisions based on how they'll play with the voters at the next election (or when they seek election to a higher court), it's always a consideration.  Unconscious perhaps (or maybe that should be "subconscious") but a consideration.

Don't believe me?

One day years ago, from his seat behind the marble (granite?) bench in the Rhodes Office Tower before the Supreme Court had its own special building, one Ohio Supreme Court Justice looked down on counsel for a capital defendant during during oral argument and asked

But what would people say if we reversed?

Not perhaps the most judicious of questions, but it was before they started recording all the arguments and making them available for posterity.

But pandering (and no, I say invoking the Mark Gardner Rule, no sitting Ohio judge or Justice would ever pander that way) reaches heights undreamed of in lesser locales in the Yellowhammer State (Alabama, for the uninitiated).

There are 3 states where judges can impose death after a jury says life: Alabama, Delaware, and Florida.

No one is on death row in Delaware as a result of judge override. Delaware judges - who are not elected - typically use override to impose life sentences. In Florida, six people are on death row as a result of override. No Florida judge has imposed death through override in 12 years. Whereas more than 20% of the people on Alabama’s death row were condemned by override, judge override accounts for less than 2% of Florida’s current death sentences. Florida judges have used override to impose life sentences in 87 cases, compared to only nine in Alabama.

That's from a report, The Death Penalty in Alabama: Judge Override released a couple of weeks ago by

the Equal Justice Initiative.

The report explores the numbers in some detail. It analyzes the standards - both theoretical and as applied - in each of those three states.  It examines geography.  It looks at politics and the way judicial elections are run.

These political pressures produce the appearance and reality of a judiciary that is insufficiently independent to provide a fair and impartial hearing on controversial issues or enforce the rights of politically unpopular minorities. Because trial judges have almost unlimited discretion in capital sentencing, and because reviewing judges also are subject to reelection pressure, the override decision is perhaps the most vulnerable to political pressure. Scholars observe that, in a state where the majority of people favors the death penalty, “a judge who declines to hand down a sentence of death, or who insists on upholding the Bill of Rights, may thereby sign his own political death warrant.”

Well, yeah.

But most telling is when the judges admit the truth.

In his order condemning John Neal to death despite the jury’s life verdict, Baldwin County Judge Charles Partin determined that Mr. Neal’s 65 IQ score classified him as having mild mental retardation, but the judge asserted that “[t]he sociological literature suggests Gypsies intentionally test low on standard IQ tests.” After Mr. Neal’s case was reversed on appeal because the prosecutor illegally excluded people of color from the jury, the State agreed that Mr. Neal is exempt from the death penalty because he is mentally retarded.

Then there's Judge Dale Segrest.

After hearing evidence about 19-year-old Bobby [Waldrop]’s addiction to crack cocaine, his deep remorse over the killing of his grandparents, and the love between him and his grandparents, the jury decided that life in prison without parole was the appropriate punishment. Judge Segrest was facing re-election at the time of sentencing, and he overrode the jury’s verdict. in open court, he explained that he sentenced Mr. Waldrop (who is white) to death to show he was not racially biased in his past cases: “If I had not imposed the death sentence [on Bobby Waldrop], I would have sentenced three black people to death and no white people."

Is racism the main reason for the overrides?  The report doesn't answer that, and I can't.

Here's what I know.

Death sentences are inherently arbitrary.  There's simply no consistent, fair, rational way to determine whether this person should be executed for this criminal homicide but that person should be sentenced to life for that criminal homicide.  Like all weighing tests in the law, like all balancing tests in the law, the decisions are inherently arbitrary.  When made by a jury of 12, there's some hope that the various juror's individual views will temper each other.  Frankly, the hope that the result will be fair and just is vain, but there's at least a chance that the juror's biases and prejudices and predilections will even out.  When a single judge can toss that aside, with no real oversight, with no real standards, there's no real hope.

After a couple of decades on the bench, Harry Blackmun concluded that the death penalty simply could not be imposed fairly and rationally.

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants "deserve" to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, 507 U. S. 463 (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, 509 U. S. 350 (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

That was 1994.

And it's today. 

Alabama's a particularly ugly example, but it's just an example.

H/t Russ Bensing

Graham & Comstock & SCOTUS, Oh My!

I'd thought I might wait until tomorrow to offer first thoughts.  You know, let opinions float about in the mental ether for a day before I started blowing hard about them.

But hell, I'm a blogger and this is a blog so it's on to instant (more or less) punditry.

First the shorthand results:

• Graham v. Florida - 8th Amendment prohibits LWOP for any kid who doesn't kill (5-4, opinion by Kennedy); 8th Amendment prohibits LWOP for Graham, but maybe not for all kids who don't kill (Roberts concurring); don't be silly (Thomas, joined by Scalia and for the most part by Alito) (Alito briefly and alone explaining that Roberts is as off the tracks as Kennedy & Co, though he doesn't put it that way).
• US v. Comstock - Necessary and Proper Clause of the Constitution means Congress can do pretty much whatever it thinks is necessary and proper including, as relevant here, impose civil commitment on the mentally ill, sexually violent who have finished serving their federal prison terms and whom the states would obviously just let roam about raping and pillaging at will (7-2, opinions by Breyer [joined by Stevens, Ginsburg, Sotomayor, &; Roberts], Kennedy [the Clause doesn't really let Congress do just anything but this is within it 'cause gosh darn it somebody's got to do this, and if the states would just step up . . . .], & Alito [it's necessary for the federal government to ensure that people who commit federal crimes and don't get rehabilitated also don't get out even when their sentence is over, that's the whole point of the sentence: it's only the prison part that has to end just because the sentence does]); nonsense: that's necessary and proper to what's specifically authorized by the Constitution, and there's nothing in the Constitution that authorizes Congress to prevent random raping and pillaging as long as it doesn't cross state boarders - and maybe even it does (Thomas, mostly joined by Scalia).

OK, I probably haven't been totally fair in my descriptions - especially of Comstock - but the general idea is right.  And if you haven't picked up on it yet, I think Graham is clearly right and Comstock clearly wrong.

Let's start with some thought of how these decisions are supposed to be made.  Graham is an 8th Amendment case.  That Amendment says

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 

Graham deals with the "cruel and unusual punishment" part.  There's been a lot of carping about it over the years from Scalia and Thomas, but the Court has accepted for decades now the plurality's statement in Trop v. Dulles.

The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. 

There are problems with that rule.  As a practical matter, Scalia is right that a punishment is cruel and unusual, at any moment merely because of the happenstance that five members of the Court happen to find sufficiently offensive to prohibit.  For all the blather and purported legal analysis that surround the Court's opinions, it really does come to that.  Of course, it always has.  And if plucking out the eyes (see Oedipus Rex and King Lear for two literary instances of eye destruction as a form of punishment, albeit not a judicial one) should happen to become something with which five members of the court are comfortable, then it will be constitutional.  (Though I suspect that if it were before the Court today, Scalia would find it unconstitutional while Thomas might well not.)

But it is the rule, and its repudiation doesn't really take us very far.  Even Thomas, the most strident voice for another rule, says that the 8th is intended to prohibit punishments intended to be torturous.  But how does one decide?  Oh, yeah.  By asking what's beyond the pale.  Which is pretty much what the "evolving standards" thing does.

So the question is whether LWOP for a non-homicide offense by a kid is beyond the pale.  Frankly, it seems to me an easy call.  I've taken a stab at answering it before, and I'm not going to repeat that whole thing here.  So here's the really short version: LWOP is death in prison.  It's the death penalty without the formal end being a murder.  We don't kill kids (Roper v. Simmons) and we don't kill for non-homicide (Kennedy v. Louisiana).  Kennedy explained it this way.  

[W]hen compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability. The age of the offender and the nature of the crime each bear on the analysis. 

But that's really too easy.  The reality is that we shouldn't be doing the functional - if not machined - equivalent of the death penalty for anyone.  Certainly not kids.

Is there no hope of redemption?  No chance of rehabilitation? No reason we'd wish to provide even a possibility?  Is our goal to provide hell?  (See the words over the gates of Hell, Dante's Commedia, Inferno 3.009: "Lasciate ogne speranza, voi ch'intrate," Abandon all hope, you who enter here.)

LWOP should be unconstitutional across the board. Certainly for kids and for those who don't kill.

And then there's Comstock.  Here the technical question is not whether the government should be allowed to lock people up forever because they might commit crimes if they are released.  If that question had been posed, I suspect the answer might have been different.  The question, however, was whether the Necessary and Proper Clause of Article I of the constitution.

The Congress hall have power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. 

You can read that broadly or narrowly, which is pretty much how you can read every abstract statement.  Typically, the so-called liberals on the Court read the Necessary and Proper Clause broadly. From their perspective, Congress has the power to do pretty much whatever it wants unless there is something that specifically constrains it.  The so-called conservatives are inclined to read the Clause narrowly.  From their perspective, Congress can do nothing that isn't specifically authorized.*

The formal argument was whether the authorization to have federal crimes, which requires prisons to hold federal criminals, makes it necessary for the feds to ensure that prisoners who are released but dangerous will not be released upon states that aren't sufficiently interested in preventing the danger.  It strikes me as self-evident that the answer is "No."  The connection's too weak, too attenuated.  There are too many steps.  Of course, if you believe that the government exists to protect everyone from everything and can (or must) do whatever is possible to achieve that protection, you come to a different conclusion.

But you really don't need to be a government minimalist to say that Comstock reads the Clause too broadly.  The question is really what enumerated power cannot function if even a dangerous federal prisoner is released from custody.  The answer, of course, is that there's not a one.

It's about that simple.

Doug Berman and Scott Greenfield and I'm sure others note the mix of today's opinions.  Berman explores the political and PR implications.  Greenfield notes that the two, "taken together,  offer no coherent penal philosophy."  Sure enough.  But then, what would we expect from a court that itself has no coherent philosophy at all.

Justice Brennan used to speak of the Rule of Five.

With five votes, you can accomplish anything around here.

Yep.  It's not particularly powerful as a judicial philosophy, but yep.

 ______________

*Both groups, of course, are completely hypocritical about this.  Congress can do what they favor and cannot do what they oppose.  Jeffrey Toobin captures that hypocrisy nicely in this week's New Yorker.

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?

Did Texas Blink

Just when you were thinking maybe the Supreme Court would tell the Texas Court of Criminal Appeals to grow up (OK, maybe you weren't thinking that, but maybe the CCA was), the CCA seemingly finds a way to dodge the (potential) bullet.

For the last few days, the media and the blawgs (including this one) have been talking about the case of Charles Hood. He's the guy on death row in Texas after a trial presided over by a judge who had had what sounds like a pretty tawdry affair with the guy prosecuting the case. If that suggests possible bias and conflict of interest to you, join the club. Only the Texas courts seemed insufficiently concerned.

Those who follow death penalty cases obsessively had been watching the Hood train wreck for quite a while. We'd seen the CCA doing gyrations to avoid addressing the issues. We'd been wondering how the case might look to the Supreme Court But the sudden uptick in the news this week came when an amicus brief from 21 former judges and prosecutors was filed urging the Court to hear the case and Adam Liptak wrote about it.

That was then.

Today, the CCA, in a split decision, granted Hood a new sentencing hearing.

The official explanation is that he was entitled to what is known as Penry relief. Penry was actually two cases.

In Penry I (1989), the Supreme Court held that mental retardation was not an absolute disqualifier for death (a position on which the Court reversed itself in Atkins v. Virginia). Relevant here, the Penry I court also said that Texas death penalty law at the time of Penry's trial didn't allow the jury to consider whether his mental retardation and abusive background should, in his case, have prevented a death sentence. Back he went to Texas where a new jury again sentenced him to die.

And then back to the Supreme Court which, in Penry II (2001), decided that the Texas solution to the problem of how to let jurors give effect to mitigation evidence (just ignore the actual questions you are formally asked and give a dishonest answer that will prevent death - I'm oversimplifying, but not by much) was itself unconstitutional.

Anyway, Hood now gets Penry relief because his jurors would have had to lie to prevent a death sentence.

Why now? And why Hood?

Maybe, just maybe, because the CCA really didn't want to be told just how slimy they were. Or, of course, maybe they just wanted to do the right thing. (Giggling allowed here.)

Cartographer's Plot

There's a line in Rosencrantz and Guildenstern Are Dead, Tom Stoppard's great reworking of Hamlet, where, while they are on a boat heading for England, one says to the other something like, "What is this England, anyway? I don't believe in England." The other responds with my favorite question in all of literature. "What do you think it is, a cartographer's plot?" I want to talk about Law (with the uppercase "L" intentional).

As Greenfield points out with regularity (here, for instance, and here), there's a huge disconnect between what happens in law school and what happens in the real world of legal practice. He's clearly right about that. Whether it's a problem is, I suppose, a question of what you imagine law school ought to be.

If it's graduate school goal, aimed at the intellectual endeavor of learning theory and understanding jurisprudence and "learning to think like a lawyer" (whatever that method of thought might be), then traditional law school education is probably an adequate model. If it's the trade school goal, aimed at turning out actual lawyers who can represent actual clients in actual legal practice, that traditional law school education is probably somewhere between worthless and dangerous.

In days of yore, the standard way of becoming a lawyer was to be apprenticed to one. You'd "read for the law" by working for a practicing lawyer, and at some point you'd become certified (or certifiable, perhaps). Along about 1850, we got the stand-alone law school and shortly thereafter the idea that one learned law not by doing it but by studying judicial opinions and being grilled on what they meant and how they might apply in other contexts.

Since that educational model bore no clear relationship to the practice of law, it became wedded to the bar exam. Passing the test, which serves as the final hoop to jump through in the certification system, would demonstrate not that you'd learned the law (which is what a law degree was supposed to demonstrate) but that you had some idea about what to do with that learning. So there you have it, the newly minted lawyer, learned (and degreed) in the law and tested in practice. Except, of course, without necessarily having either exposure to or actual testing in practice. Pass the bar exam, take the oath, and you can immediately start ruining the lives of real people.

Frankly, I'm enough of a pointy-headed intellectual to think that all that theoretical schooling has some value. My concern is that we don't add a mandatory component of some sort of real internship at the end of it. Like the physician who cannot practice without some supervision upon licensing, so for the lawyer. BigLaw and agency law and being a prosecutor supposedly provide that, though the problems with the way law is often practiced at BigLaw and agencies and prosecutors' offices indicate that they often do a bad job.

But all that's by way of introductory "going to the sheep" (a lovely phrase meaning "a digression" I learned last night at the dinner accompanying a conference of Romance Language professors).

Onto the Law.

I have, over the years, spent a fair amount of time with young lawyers and with law students. One of the things they tire of hearing me say is that I don't believe in the Law. That is, I don't believe in the law school idea of Law. It's interesting. I sometimes enjoy studying it. I spend a lot of time, perhaps too much, thinking about it. I even use it in my legal work. But it's nonsense, as much a fiction as the emporer's new clothes, and nearly as worthless as they for the legal equivalent of staying warm and dry.

I know of no better way to explain this than with the troublesome case of Paul House. House was charged, convicted, and sentenced to die for the 1985 rape and murder of Carloyn Muncey. Through years of appeals and post-conviction proceedings, he maintained his innocence. A federal district court, though concluding that he'd procedurally defaulted his innocence claim (by not pursuing it at all the proper times in state court), nevertheless held a hearing to see if he could present enough evidence of innocence to overcome the default. It concluded he did not.

Eventually, the case made it to the en banc Sixth Circuit. That mean that all fifteen of the active judges on the court would hear the case. In House v. Bell, the court issued three conflicting opinions (available here), which together say pretty much all there is to say about law and politics and fundamental fairness, here's what happened.

Judge Norris, writing for eight judges appointed by Republican Presidents, held that House should die:

Despite his best efforts, the case against House remains strong. We therefore conclude that he has fallen short of showing, as he must, that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.

Judge Merrit, writing for six judges appointed by Democratic Presidents, said that House was obviously innocent and should be released from prison immediately:

I regard this as the rare or extraordinary case in which the petitioner through newly discovered evidence has established his actual innocence of both the death sentence and underlying homicide.

The final vote was Judge Gillman's. He, too, was appointed by a Democratic President. He concluded that it was a really close case and House should get a new trial.

Because the majority voted to affirm the district court, absent further action, Paul House would be executed.

Let's summarize: Fifteen judges, each of whom claims to be following the same legal tests established by the same laws and clarified by the U.S. Supreme Court reach three different conclusions. Every Republican judge believes Paul House should be killed. Six of Seven Democratic judges believe he should be set free immediately. The seventh Democratic judge thinks it's too close to call and that he should get a new trial. The result is that House should have been killed.

In any rational system, in any fair system, this could not be the outcome. Judges would not split perfectly along party lines. There would be some consideration on the part of those who think he should die that, given the astounding degree of difference on the other side, perhaps they should look again, even give up a bit of their certainty. Same for the folks who thought he should be freed immediately.

What the Sixth Circuit's House opinion teaches is that the law is not about the Law or about fairness or about justice. It's about politics, pure and simple. At least, it is much of the time. At least, it was for House.

House's is an extreme case, and the Sixth Circuit is, in this regard, an extreme court. But we see much the same thing in SCOTUS. It may not be precisely that ideology trumps legal analysis, but you know, if you pay any attention to these things, where most of the Justices will align themselves on most controversial issues long before they vote. And the number of 5-4 decisions from the Court indicates just how broad and stark these divisions are.

What they teach you in law school is that the rules matter and the precedents matter not basically for their own sake but because that's how the law works. Judge's apply precedent fairly. There may be some ideological underpinning, but basically if you have the case law on your side, you win.

But you know, spend some time where I've spent it, in the criminal courts in Texas and Ohio, and you come to see that just isn't true in any consistent way. Politics, ideology, courage, the local newspaper, disgust. These control.

I was arguing a case in the Sixth Circuit. The first words from one of the judges indicated that he'd conducted his own testing of what the evidence showed and concluded that my representations of its significance were wrong. He's supposed to be limited to the record below. He's not supposed to conduct an experiment. But I knew going in that I would lose even though I was legally right. The court wasn't going to rule for my client unless the other side completely screwed up. The law be damned.

And so it is with the Law. It's the framework used to justify the decision otherwise made. It's the excuse, not the basis. They don't teach that enough in law school, don't teach enough about power, don't teach enough about politics.

And it's not just that the traditional law school model, and even the ever-more-common clinical classes plugged into that model don't really teach how to craft an opening statement or pick a jury or decide on a theory of the case or even how to ask questions on cross-examination. It's that they don't teach the real skills, whining and pleading.

They don't teach you in law school how to get on your metaphorical knees and beg a judge to let you have the money to hire an arson expert when the government claims that your client is guilty of arson because, hell, why bother. After all, the government had an arson expert and he concluded the fire was arson. You expert would just agree, so what's the point. No cash, sorry.

They don't teach how to ask the judge to give your client less time when the newspaper's just put out an editorial calling for a sentence greater than that allowed by law. They dont teach you how to deal with the media, how to say "no comment" without looking like you're afraid to comment or how to comment in a sound bit short and clear enough to get onto the 11 o'clock news.

And they don't teach you that the Law is something you have to use, but not something to believe. "[T]he law," Mr. Bumble said, "is a ass, a idiot." Often that seems to be so. More often though, the Law is a sham.

Mike, at Crime & Federalism has the best tag line in the blawgging business,

Because everything I was ever told was a lie.

As Stephanie Plum would say, "Damn skippy."

--------------------------
Paul House is, by the way, alive today and out of prison. The U.S. Supreme Court took in his case and reversed the en banc Sixth Circuit. By a vote of 5-3 (Alito not participating, but given the rest of the lineup it's clear that he would have voted for death given the opportunity) and in an opinion by Justice Kennedy, the Court said that House did not prove he was innocent but made enough of a showing that the lower courts had to attend to the merits of his claims. (Opinion here.)

Ultimately, he won a new trial and the State of Tennessee, after some posturing, dropped the charges.

THE HEARINGS YET AGAIN

So now they're blathering again. They're all saying what you knew they would, of course. (Were there any doubt, they've all issued statements explaining how they would vote.)

Still, you do wish someone would break ranks and say something unexpected. But of course the exercise is designed to be tedious and, ultimately, meaningless. That said, it's probably worth saying one more time that the job of justice is more complex than either Judge Sotomayor (she ain't a justice yet) or any of the senators were prepared to acknowledge.

In that spirit, it's worth reading this column by Burt Neuborne, "Judging Is Both Robotic and Discretionary." He writes:

Surely, it would have been a good idea to probe how Justice Sotomayor would approach a case for which clear guidance does not exist. But no senator wanted to go there.

Neither did she.

As I'm typing this, Senator Spector is explaining how wonderfully these hearings educate the public. That's so obviously false it's hardly worth mentioning. But it's a damn shame.

Legal Reasoning and Legal Reality

I want to write about legal reasoning and the realpolitik of courts and about oral argument.

Defending People's Mark Bennett is pushing a discussion about the Boucher case which involves a grand jury subpoena and the effort to get Boucher to unlock the z drive on his computer and show the grand jury that he has child porn on that drive. It's an interesting case on the merits and might prove important.

I'm not interested, here, in talking about the Boucher case itself. (You can learn about it - and if you've got something incriminating on a computer you probably should learn about it, from Bennett's site, where you can also find, in the comments, my take on it.)

What does interest me here is the underlying jurisprudential question Bennett raises: How do judges decide things. I'm not talking here about how they decide who to believe (the cop in a criminal case, for instance, just because he's a cop) or principles of constitutional interpretation. This is both less grandiose and, on a day-to-day basis for practicing lawyers and their clients probably far more important.

Here's the model of a legal argument presented in the form of a brief oral argument on a motion before a trial judge - and the sort that too often shows up in law school textbooks and, phrased differently, on law school exams.

ATTORNEY A: Your Honor, this case is just like Humpty v. Dumpty. My client's leg is shattered and cannot be put together again. Therefore the defendant must pay for the loss of my client's leg.

ATTORNEY B: Your Honor, that's just silly. This case is nothing like Humpty. First, we're talking a leg, not a whole body. In fact, this case is exactly like and controlled by the outcome in Jigsaw v. Puzzle. The leg is broken, but any competent surgeon can put the pieces in order and bind them together.

ATTORNEY A: Body, schmoddy. The thing is shattered and can't be repaired, which is the essence of Humpty.

ATTORNEY B: No, no, no. Humpty is about total loss. This is Jigsaw.

The argument, you see, isn't ordinarily about whether Humpty or Jigsaw correctly states the law. It's about whether this broken leg is more like the story of Humpty Dumpty or more like a jigsaw puzzle, knowing it's not actually all that much like either. It's about analogies.

And when we argue to the court that it should do this or that, what we're mostly doing is finding the analogy we like and explaining that it's the one the court should think is closest to the case at hand, not the analogy the prosecutor is pointing to. But it's complicated because the analogy is not the thing itself, and you can usually find something for just about any point.

[In this way, law is to be distinguished from, say, Swedish society as described in the crime fiction of Maj Sjowal and Per Wahloo. In one of their books (I'm doing this from memory and don't have the book before me, so I may have a detail wrong), a character explains that in Sweden "all things are either required or forbidden." In the law, by contrast, and as a consequence of the sheer mass of case law out there, it's not much of an exaggeration to say that all things are both required and forbidden. You can, that is, find authority to support almost any argument if you can just figure out how to shoehorn your facts into the right analogy.]

A couple of hours before Bennett posted about Boucher yesterday, a friend and I were speaking about oral argument. He observed that if a case is well briefed and if the judges read the briefs before argument (neither a sure thing, but it was in the case he had and the court where he most practices), the judges have already made up their minds before oral argument, so why not waive it. You're more likely to dig a hole or say something stupid or give the prosecutor a chance to save his case than to benefit from argument, he said.

Of course, the first rule is that there are no rules. Everything depends on the particular case and the particular court. But for reasons I've never fully understood, appellate judges really believe oral argument matters. As them and they'll say so. Poll them and the results are overwhelming. Typically, what you hear is that argument makes a difference in something like 20% of the cases. I've always found that figure astounding, but as another appellate lawyer once speculated, "Maybe 20% of the time the briefs are so bad that the judges don't have any idea what the case is about until oral argument."

Actually, I think it means something more like, 20% of the time an individual judge finds that oral argument helps clarify the decision that judge has already reached. It's a confirmatory 20%, not an outcome changing 20%. And it's probably easier to lose a case during argument (by saying something really stupid) than to win one.

Here's what Justice Scalia and Bryan Garner have to say in Making Your Case: The Art of Persuading Judges:

Many lawyers view oral argument as just a formality, especially in courts that make a practice of reading th briefs in advance. Sure it gives counsel a chance to show off before the client. But as far as affecting the outcome is concerned, what can 20 minutes or half an hour of oral argument add to what the judge has already learned from reading a few hundred pages of briefs, underlining significant passages and annotating the margins?

This skepticism has proved false in every study of judicial behavior we know. Does oral argument change a well-prepared judge's mind? Rarely. What often happens, though, is that the judge is undecided at the time of oral argument (the case is a close one), and oral argument makes the difference. it makes the difference because it provides information perspective that the briefs don't and can't contain.

Well, maybe. Scalia operates in a pretty rarified world - one where judges may (do they, really?) actually read, underline, and annotate hundreds of pages of briefs before argument. And his is a world where the Court decides few cases, and those raising issues that have often split lower courts. Most of what we do in the appellate courts isn't like that. Mostly we're arguing for some sort of error-correction. We get 30 pages to the side for the brief. No amicus in all likelihood. And the case is likely something close to a sure loser.

That much said, the process is the same. Humpty is like this case. No it isn't, Jigsaw is.

Except that the court has probably already decided whether it's Humpty or Jigsaw that controls. And I'm not likely to get far in changing their mind unless I have some fresh approach or focus or something. And that goes to the underlying question I started with: How does the judge decide which analogy to buy?

There are two possibilities. The judge can reason forward or backwards. If the judge reasons forward (which is what all judges claim to do and most believe they do), it looks at the facts and studies the law and determines, ultimately, whether this is more like A or like B. If the judge reasons backwards (which is what a very large percentage of judges do much of the time - often subconsciously, I think), the judge looks at the facts and decides what the right outcome will be and then concludes that of course the case is more like A or like B.

If that's so, if my real world understanding of how judges decide (or commonly decide or something) is so, then my job as appellate advocate is complicated. Because while I have to make the argument going forward, I have to convince the judge going backward.

You want, Your Honor, to find for my client. And here's the case law/legal reasoning that lets you do it.

And that, when you get down to it, is why I go to oral argument.