Not a Eulogy - a Reminder

No man is an island, entire of itself; every man is a piece of the continent, a part of the main; if a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend's or of thine own were; any man's death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bell tolls; it tolls for thee.

From Devotions Upon Emergent Occasions, Meditation XVII, by John Donne
When Osama bin Laden was killed, I quoted Kathleen Parker from the Washington Post.

Ten years of waiting and wondering where in the world was Osama bin Laden, the question nagged: Was he even alive? Then, voila. He was hiding in plain sight in a compound in Pakistan. We had been observing him for months. And now he was dead, said the president.
Whereupon the strangest thing happened. People began congregating outside the White House and cheering, celebrating the death of bin Laden. Young people, mostly, chanted “USA” and waved the flag. I wanted very much to share their joy and to feel, ah yes, solidarity in this magnificent moment, but the sentiment escaped me. Curiosity was the most I could summon. How curious that people would cheer another’s death.
Not since Dorothy landed her house on the Wicked Witch of the East have so many munchkins been so happy. My 20-something son explained ever so patiently that OBL was his generation’s Hitler and that of course he was happy. Why wasn’t I?
I don’t know. To me, the execution of bin Laden was more punctuation than poetry — a period at the end of a Faulknerian sentence. That is, too long and rather late-ish. To the 9/11 generation, if we may call it that, OBL wasn’t only the mastermind of a dastardly act; he was evil incarnate and the world wouldn’t be safe until he was eliminated.
Would that justice were so neat and evil so conveniently disposed of.
Perhaps it is a function of age, but I find no solace in revenge. What I do experience at such times is overwhelming sadness about the human condition, our bloodlust and attraction to spectacle.

When Muammar Qaddafi was killed, I wrote again about the cheers.

And there was, again, rejoicing - though in this country nothing on the scale of the cheers that greeted the murder of Osama bin Laden. But in Libya the cheers and the gawkers.

And I added:

How do you measure?
Who do you kill?
Not who do you want to kill. Who do you? And are you better for it?
Are any of us?
Muammar Qaddafi is dead.
I'm sorry. That's not a cause for rejoicing. Not ever.

I've noted several times that  

When Ted Bundy was killed, Time reported that

some 200 bloodthirsty revelers gathered outside the penitentiary in Starke, Fla., for a ghoulish celebration. They lit sparklers, cheered and waved signs reading BURN, BUNDY, BURN and ROAST IN PEACE.

It is said* that when John Kennedy was killed Fidel Castro responded,

Only a fool would rejoice, for systems, not men, are the enemy.

Antonin Scalia died this morning.  Apparently of natural causes.  One imagines in his sleep.  
He was, of course, a polarizing figure with a distinct view of the Constitution and how it ought to be understood and interpreted.  He was a force among the Supreme Court's so-called conservatives, a major player driving the wins in cases reviled by so-called liberals, including probably the two most recent ones: District of Columbia v. Heller in which he wrote the majority opinion and Citizens United v. Federal Election Commission  in which he simply joined the majority.  

And he believed, deeply, in the power of the state to kill its citizens, in the power of the state to prohibit its citizens from having abortions, and in the power of the state to prevent same sex couples from doing pretty much anything - most especially getting married.

At the same time, he was the voice on the Court leading the call for juries, not judges, to make the decisions that controlled how long people could be incarcerated for their crimes and whether they should be executed.  And he led a not particularly enthusiastic Court to acknowledge that the Confrontation Clause actually required confrontation.  (Yes, the Court's been backing away from that, but he even when he thought it didn't apply he argued that it should count.)

He was, as I said, a polarizing figure.  And it was clear that he relished the role.  To liberals, he was often viewed as something close to pure evil.  Hell, I've done my share of savaging his jurisprudence. (See here, for instance.)  But he got stuff right, too.

In any event, he's dead now.

As soon as I heard the news, I sent word around to some criminal defense listservs.  A friend wrote back.

Great News.

Of course, it's not.

Whatever one thinks of his jurisprudence, he left behind a widow, children, grandchildren who loved him.  He had friends who will mourn him.

If he were your client, if he were to be executed, you'd fight like hell to save his life.  Because it was his life.

Want a change in the Court?  Hope that Obama will or won't succeed in appointing a replacement? Fear or fantasize about how the court will be different in the coming years?  Sure.

But hey, he was one of us. 

No rejoicing in his passing.

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*By Phil Ochs in his notes on the back of one of his albums.  I've never had occasion (and I'm not taking it now) to confirm what Ochs wrote.

On Not Reading the Fucking Record

When one of the justices of the Ohio Supreme Court (as they say, there is no justice in the lower courts and there are no judges on the Supreme Court)* recuses herself, they bring in a visiting judge from one of the courts of appeals so that there will be still be seven folks to hear the case.  

One of those VJs, one who sat on a death penalty appeal, said afterwards that he was appalled by the fact that none of the others, not one of the six, read the transcript of the trial.  How, he wondered, could they fairly determine exactly how the case went down, what the evidence did and did not show.  In particular, how could they decide whether the aggravating circumstances outweighed the mitigating factors - the question that's the basis of the life/death decision in Ohio, if they didn't read the record for themselves?

I was in court with a guy, back for resentencing after the Supreme Court had thrown out his death sentence.  The judge, a successor to the trial judge who was no longer on the bench, started to pronounce sentence.

Wait, your Honor.  You can't decide on the sentence without having read the record.
Oh, yeah, I suppose. 

Not just capital cases.  commonly, all that appellate judges know about the record in the case before them is what the parties said in their briefs.  Maybe they'll read a few pages if something catches their attention or raises a question.  Not often, though.  And not the whole damn thing.

Trial judges, too, ruling on motions in civil cases where there may be hundreds, even thousands of pages of depositions and exhibits.  Rely on the briefs.  Oh, and the law clerks (often called "staff attorneys" these days to distinguish them from law students who may do the same work) will sometimes slog through the record.  But sometimes not.

Sure, there are exceptions.  Too few.

Our vision of the dispassionate judge, sitting on the bench, dispensing Solomonic justice after full and careful reading of the whole and independent legal research.  I'm not saying it doesn't happen. 

But

It's not that long ago that the U.S. Supreme Court (OK, The Supreme Court of the United States) heard argument and issued opinions in 150 or 175 cases a year.  And then the 9 folks in their robes took July, August, and September off.  They're down to about  80 cases a year now.  They still take those months off.  And they're up to 4 law clerks/staff attorneys each.

From the oral argument before the court Monday morning in Brumfield v. Cain, about how Louisiana deals with (and in Brumfield's case dealt with) questions of mental retardation which relate directly to whether folks (like Brumfield) who face capital charges or actual death sentences can be executed. The 8th Amendment, according to the Court, says they can't.  But how to implement that?

The lawyer for the state, Premila Burns, is at the podium trying to answer questions.

JUSTICE BREYER:  No, no.  I think we're all on the same page here, and I think we've made some progress in this, because I agree with you, and I agree with Justice Scalia that what we have to do is to look at the whole record and see, keeping in mind the fact that it was a pre-Atkins record, and they didn't know about Atkins, but looking at the whole record, is the Louisiana court clearly wrong?  Is it unreasonable in saying there wasn't enough evidence, even though there has to be some, which is up to them pretty much how they say the some, but they're unreasonable in saying that there wasn't some evidence justifying a hearing.  And the only way to do that is for us to read it.  Is -- is that right?
MS. BURNS:  The record has to be read.
JUSTICE BREYER:  Would you agree with that?
MS. BURNS:  I would agree that the ­­--
JUSTICE BREYER:  I agree with that.
MS. BURNS:  ­­ -- entirety of the record has got to be read. It cannot be taken in a vacuum as counsel would have you believe that this judge was myopic.
JUSTICE SCALIA:  I haven't read the whole record, you know, and I doubt that I'm going to.  And ­­ and I doubt that this Court is going to read the whole record in all of these Atkins cases in the future.  I mean, what ­­-- what you're saying is ­­-- is­ -- you don't think it's -- it's fantastical?

Sure, the record in Brumfield is somewhere around 20 volumes long.  And it's mostly tedious.  And will mostly prove irrelevant to the question if anyone actually bothers to read it all.  

Mostly.  Not entirely, though.  Except who'll find out? 

Shit, we're only dealing with life or death.  And constitutional rights.  And a bunch of folks doing half the work they used to but with a larger staff and still managing to take three months off a year.

Dahlia Lithwick, and probably not she alone, was struck by Scalia's brazen admission that he won't do it.  

To be sure, 20 volumes is a big, big record. And probably lots and lots of reviewing judges don’t bother to read the record every single day across this great land. But it takes a certain kind of something-something to say it out loud, right there at the highest court in the land.

Well, yeah.  It's one thing for us to know.  One thing for the child who knows no better than to speak the truth to point out that the emperor has no clothes.  

It's something else for the emperor to admit it.

They want our respect.  They work so damn hard.  The ones you like and the ones you don't.

And they just can't be bothered.  Which means they really do just pull it out of their collective asses.

But hey, they're supreme.

Law of Rule.



------------------
*Which is properly, if pompously, called the "Supreme Court of Ohio," a term slightly less pompous than the high court in Massachusetts which is the Supreme Judicial Court to distinguish it, perhaps, from those supreme courts which are not judicial - like perhaps the courts of New York where the Supreme Courts are the trial and intermediate appellate courts while the high court is the Court of Appeals, which is at least properly descriptive if not terribly grand sounding.  Of course, the court that just declared Amanda Knox and Raffaelle Solecito innocent is the wonderfully (and in this case aptly) named Court of Cassation.  (Look it up yourself if you want to know what it means.)  

Stephen Breyer's Buccal

Winning entry in Monday's Stupidest Remark by an Elected Official competition:

This is a resounding victory for both law enforcement and civil libertarians.

That's Maryland's Attorney General, Douglas F. Gansler, reaacting to the fact that Stephen Breyer continues to believe in the idea of the Constitution rather than the Constitution itself.  OK, OK, I'm maybe being unnecessarily obtuse.

The Supreme Court on Monday issued its opinion in Maryland v. King. The Fourth Amendment, Justice Kennedy said writing for a 5-4 majority, is perfectly happy to have cops take buccal swabs of everyone arrested for serious crimes, use them to generate DNA profiles, and then search to see if their DNA matches the DNA on file from unsolved crimes.  

That's fine, Kennedy said, because it's not particularly invasive to actually take a buccal swab, and it's important to check and see if the guy arrested today might have committed any other crimes because that's how we can be sure the guy we arrested today is the guy we arrested today which is both reasonable and necessary and golly gee, who would object.  And besides, if they'd taken a DNA sample when they arrested Tim McVeigh for not having a license plate on his car, they'd have figured out that he was the guy who'd just blown up the Murrah Federal Building and so been able to prevent it from having happened a little earlier instead of how they figured out that he was the guy who'd blown up the building when they arrested him but because they didn't get a DNA sample that would take up to a month to analyze they weren't able to stop him from doing what he'd done before they arrested him.

Really, that's what he said.

Of course, he dressed it all up in fancy legal gobbledygook and scattered citations to irrelevant Supreme Court decisions and the like.  But he had to do that because the alternative would have been to write something like this.

You never know when the guy you've arrested might have committed other crimes, and we have a chance of figuring it out if we take DNA samples from everyone we arrest.  (We'd do even better if we simply took DNA from everyone, but Maryland hasn't enacted that law yet.)  And since innocent people won't be fingered, they can't possibly mind having their DNA in a big national database, and if they do, well, who really cares what they think if we can maybe catch an extra bad guy or two.  And the Constitution's constraints on that sort of thing are messy, but we're talking about catching bad guys, so things like the Fourth Amendment just have to give way.  I mean, that whole thing about warrants and probable cause just interferes with law enforcement, so we can ignore it.

Which he couldn't really say.

Antonin Scalia, on the other hand, writing the dissent, pretty much said just that.  The Maryland law at issue specifically prohibits using the DNA samples for the purposes Kennedy claims can justify the law.  And as a practical matter, it's worthless for those purposes even if they were legal.  No, Maryland wants to take DNA samples from everyone arrested simply to solve crimes.

Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.

Which is, I have to say, exactly right. 

What, you may rightly ask, has this to do with Stephen Breyer?  And where in the world did Attorney General Gansler get the idea that King was a win (a "resounding" one) for civil libertarians?

The short answer to the Breyer question is that he's responsible for the decision.  Oh, Kennedy wrote the opinion, and he's the standard swing vote.  He was joined, as you'd expect, by law and order types Roberts and Alito.  Clarence Thomas signed on, too, because the Fourth Amendment just like all those other parts that try to prevent government agents from doing what they want to individuals.  His Constitution was to defend the prerogatives of rich white guys and whatever they want to do to folks they think are maybe criminals (or, really, anything other than rich white guys) is just fine (as long as it doesn't advance the interest of those folks).  Really, you could imagine Kennedy voting either way on this one, but Alito? Roberts? Thomas? You knew where they'd come out.

You might imagine you'd find Scalia there, too.  But he switched sides on this one.  His dissenting opinion isn't particularly originalist.  He doesn't explain what the framers did, spends just a couple of sentences mentioning their attitudes.  Rather, he's pretty clearly offended at Maryland's (and Kennedy's) brazenly dishonest position.

The problem child here is Breyer.  He of the allegedly liberal bloc.  He who as a child had people "stick things in [his] underwear."  He who was attacked by a machete wielding desperado.  He signed onto Kennedy's opinion, which gave it a majority.  That's not what's supposed to happen.  Breyer's supposed to be this staunch liberal.  Which is, of course, hogwash.

Breyer, as I've said before, sees the job of the Court as helping government be efficient, especially if it can be done without it being too overbearing on individual rights.  Buccal swab?  No big deal.  Catch bad guys?  Big deal.  Rules for police to follow? Excellent.  Sign me up.  The Fourth Amendment? Feh. Not this afternoon.


Sure, the Fourth might prohibit this.  But the idea of the Constitution, the sort of government you'd like to have (he'd like to have)?  The idea trumps the reality which is clumsy and inefficient.  We're talking a fucking buccal swab.  And it won't be in his buccal.

Unfair & Unconscionable: The Capital Jurisprudence of Antonin Scalia

He'll get a chance because his lawyers abandoned him.  So said 7 of 9.  Ginsburg wrote the opinion.  Alito (no pushover he) joined but wrote also his own concurrence to point out that it was the lawyers who were at fault and not the deeply flawed Alabama system of providing (or not providing) capital representation. 

Scalia dissented.  Joined by Clarence Thomas, Scalia explained that really, he was abandoned by only some of his lawyers.  And sure it's all unfair but then if we demanded fairness of our criminal justice system it would be the end of the republic.

OK, he didn't actually say that.  What he said was this.

But if the interest of fairness justifies our excusing Maples’ procedural default here, it does so whenever a defendant’s procedural default is caused by his attorney.That is simply not the law—and cannot be, if the states are to have an orderly system of criminal litigation conducted by counsel. Our precedents allow a State to stand on its rights and enforce a habeas petitioner’s procedural default even when counsel is to blame.

That is to say if we demanded fairness, then it would be the end of "an orderly system of criminal litigation conducted by counsel."  The republic would survive, but our whole system of criminal justice would collapse.  (Which he might think would destroy the republic, but he doesn't say that.)

So fairness be damned.

The case is Maples v. Thomas, and I've written about it before.   It's the sad saga of Cory Maples.  He's on death row in Alabama.  He got Sullivan & Cromwell, a fancy-ass, white-shoe, big-shot law firm in New York to represent him in state post-conviction proceedings because Alabama can't be bothered actually paying lawyers to do that sort of work.  But S & C dropped the ball.  Horribly.  Inexcusably.  Their lawyers abandoned Cory without telling him.  Alabama sent word to the lawyers that Cory had lost a round of his case which started a clock by which he had to appeal.  S & C returned the letters unopened because the lawyers who'd been working on Cory's case left the firm.  And then Alabama did nothing.  Until the deadline passed.

And SCOTUS today, in an opinion that really does nothing much to break any legal ground but really is no more than a correction of a monstrous and self-evident wrong, by a vote of 7-2, said to give Cory a chance.  Because, after all (although they didn't say this), the alternative is unfair.

Which left Nino to stammer and threaten the end of criminal law (if not the republic).

There's nothing much new in any of this.  On those occasions when 5 members of the High Court are sufficiently appalled by what the system did to the convicted guy, he wins.  Because it's only fair.

On those occasions when 5 members of the High Court are more appalled by the crime than by the unfairness of what was done to the convicted guy, he loses.

Well, 5 members of the Court who don't understand that a fair system means anarchy, criminals running rampant through the streets.  

Bar the gates.

Hide the silverware.  

Lock up the women and children.

A year and a half ago, it was Holland v. Florida.  Then, too, the poor guy's lawyer had, effectively, abandoned him.  If it's sufficiently gross abandonment, said a 7-2 majority of the Court, not just garden variety negligence, but negligence with cooties, he gets a chance to be heard.

Scalia would have none of it.  The problem he identified then wasn't that the republic (or at least the system of criminal law) would crumble if we tried to make it fair.  The danger then wasn't fairness.  It was conscience.  Judges, he said, might have a conscience.  But its dangerous and must be tamped down.

The Court’s impulse to intervene when a litigant’s lawyer has made mistakes is understandable; the temptation to tinker with technical rules to achieve what appears a just result is often strong, especially when the client faces a capital sentence. But the Constitution does not empower federal courts to rewrite, in the name of equity, rules that Congress has made. Endowing unelected judges with that power is irreconcilable with our system, for it “would literally place the whole rights and property of the community under the arbitrary will of the judge,” arming him with “a despotic and sovereign authority,” 1 J.Story, Commentaries on Equity Jurisprudence §19, p. 19(14th ed. 1918). The danger is doubled when we disregard our own precedent, leaving only our own consciences to constrain our discretion. 

So fairness is out.  Conscience is out.  What's left?

Oh, yeah.

Let them eat cake.

Interpreting the Constitution - Part VI - The Fear of Too Much Fairness

It was just a single comment by Justice Scalia during oral argument yesterday.  He serious.  He wasn't being sarcastic or ironic, wasn't poking fun.  Still, I'm not sure that he really meant what he said - or at least what it implies.  But it gets at a major problem with how we think about the Constitution, the closest thing we have to a sacred text.

A bit of context.

The case is Missouri v. Frye.  You can find the entire oral argument transcript here. Here's the plot.

Galin Frye was charged with driving without a license, a felony.  The prosecutor offered a plea bargain.  to a misdemeanor with 90 days in jail if he accepted the deal promptly.  Frye's lawyer didn't tell him about the offer, and after it had expired, Frye entered a guilty plea to the charge and was sentenced to three years.  While he was in prison serving that 3-year sentence, Frye learned about the 90 day misdemeanor offer.  

Nobody seriously disputes that his lawyer should have told Frye about the offer.  It's an absolutely basic rule:  The lawyer conveys every offer (civil case, criminal, doesn't matter, every offer) to the client.  Why?  Because it's always the client's call whether to take it.  We can advise.  We can browbeat.  But we can't decide.  That's for the client.  So the lawyer fucked up.  Then what?

The Missouri courts concluded that Frye was denied his Constitutional right to effective assistance of counsel and that he should be allowed to withdraw his plea and have a trial or plead again (though not to the misdemeanor plea which is long since off the table.

Here's the legal mess.

Missouri says that however much his lawyer screwed up, Frye entered a lawful and proper plea to what he did.  Since he can't show that he didn't know what he was doing when he entered the plea - or that it was somehow involuntary - he really can't complain about it now.  Frye says that he should be able to get that misdemeanor plea that he would (presumably) have jumped on if he'd known about it at the time.

So what to do?

That original plea offer is long-since off the table.  And if you let everyone take back a plea (or undo a trial, for that matter) when they realize that they passed up a chance at a lesser sentence, well, there's no stopping place.  (Or so says Missouri.)  Which led to this exchange between Scalia and Frye's lawyer, a man with the Dickensian moniker Emmett D. Queener.  (In fact, I have to start with Justice Ginsburg to have this make any sense.)

       JUSTICE GINSBURG: But you are -- you are leaving out of the picture the prosecutor's prerogative to withdraw or flip. You said that the court, that it lacked authority to order the State to offer any bargain, but also the court said, I'm not going to require the prosecutor to renew an earlier offer.
One thing is clear in this case; the prosecutor did nothing wrong. The wrong was on the part of defense counsel. So why should the judge disarm the prosecutor, take away the prosecutor's right to change his mind?
       MR. QUEENER: The -- this is a remedy for the Sixth Amendment violation, and that is to put the defendant back into the position as nearly as possible as he would have been in at the time; and at the time the offer was open -- this is not a situation where the prosecutor is being ordered initially or the first instance to make an offer; it -- this is being viewed as the offer that was originally made is still available and open to the defendant.
       JUSTICE SCALIA: Yes, but at the time that offer could have been withdrawn by the prosecutor. And you are saying now it can't be withdrawn. So you are really not putting him back in the situation he was in.
       MR. QUEENER: There -- there is never going to be a perfect remedy for any of these violations, I don't believe.
       JUSTICE SCALIA: I think that's right.
       MR. QUEENER: Right.
       JUSTICE SCALIA: And that's one of the things that causes us to be suspicious of whether there is a constitutional violation -
       MR. QUEENER: Well -
       JUSTICE SCALIA: -- because there really isn't any perfect remedy.

In 1803, in Marbury v. Madison, Chief Justice John Marshall, for a unanimous Supreme Court, wrote this.

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

In the 3d vol. of his Commentaries, p. 23. Blackstone states two cases in which a remedy is afforded by mere operation of law.

In all other cases," he says, "it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, when ever that right is invaded."

In fact, Marshall held that Marbury's rights were, in fact, invaded but that he couldn't sue.  That is, Marbury said that if there's a right there must be a remedy except that there doesn't have to be, proving that the law could be as incoherent and disingenuous and outright dishonest in 1803 as it can be today.

It was probably 15 or more years ago that I was arguing a case in the court of appeals.  The judges agreed with me that what the trial judge did was wrong.  But they couldn't find (and frankly, neither could I) any way to even hint at its having made a difference in the trial.  

What can we do?  We can't tell the judge he was wrong without reversing and we have no basis to reverse?

Which was just silly.  As I told them, they do it to me all the time.

Yeah, you're right, but the error was harmless so live with it.  Do it this time.  You want the judge to stop doing this, but the only way tell him to stop is to say it was wrong.

Which makes perfect sense.  Except the court wouldn't do it.  And to this day, I should add, the judge is still doing the same damn thing.  Because the court took the same position.  No remedy, therefore no error.

Anyway, what I'm interested in today is Scalia's claim that if there isn't a perfect remedy, then it seems there must not have been a constitutional violation.  That feels intuitively wrong, and I think it is.  I think (as I suggested at the beginning) even Scalia wouldn't really buy it.  For while his statement seems to channel Blackstone's (and Marshall's) formulation of the rule (if not Marshall's application of the rule), it doesn't.  The problem is that you can't work backwards that way.

To see why, it's necessary merely to offer a more generalized rule.  Here are two versions.

• If it can't be fixed, it isn't broken.
• If it can't be undone, it didn't happen.

You know immediately that those are wrong.  Lots of broken things cannot be fixed.  (Consider Humpty Dumpty.)  And lots of things that can't be undone did indeed happen.  (Princess Di is, in fact, dead.)

Yet if those counter-examples demonstrate why Scalia is wrong, they don't exactly say how to solve his dilemma:

What do you do when the Constitution is violated but there seems no quick and dirty remedy?

Start by looking at it in the context of Frye's case.  The Sixth Amendment says that he had a right to effective assistance of counsel, which means a lawyer whose performance was not objectively deficient.  That was violated.  His lawyer was objectively deficient in not reporting the plea offer to him.

The Supreme Court says that there is no relief for a Sixth Amendment violation unless there is a reasonable probability of a different outcome had counsel's performance been adequate.  OK then.  On that test, Frye would have to prove that if his lawyer had told him (in time) about the misdemeanor plea offer, there's a reasonable likelihood he would have taken it.  That is, he'd have to show that he isn't just suffering buyer's remorse from the sentence he got after his plea but that he ended up entering this plea because his lawyer was incompetent and didn't tell him about the earlier one.

Ah, but that might open a mess.  People who got sentences they don't like might claim that they would have taken deals if they'd known they were offered or if their lawyers had pushed them harder or something.

Damn.

Breyer suggested that maybe there could be a special test for these cases just to avoid that problem.  Nobody asked why it was a problem.  Because, I suppose, and this is deeply distressing, all nine of the Justices were wary of inflicting too much fairness on the system.

The risk of too many people asking to have their rights vindicated.

But of course, that's what we're supposed to be about.  We embrace that risk.

Unless we're the Supremes (or your local trial, appellate, or supreme court much of the time).  If we're them, we think of floodgates.

The remedy crosses the board.  If someone's constitutional rights have been violated, there really is a remedy.  Put the person her back as close to the position she'd be in if they hadn't been as possible.  Will the remedy be imperfect?  Sure.  Most of the time.  But it's something.

The alternative is to assert that only some constitutional violations - ones that lend themselves to congenial remedies - count.  But that's the cafeteria, not the Constitution.

Back to Galin Frye.  If he can show that he'd likely have taken the deal if he'd known of it (and apparently the Missouri courts were convinced), then do what the Missouri courts wouldn't do and  give him the deal he would have taken.  It's not perfect now.  But it's the best that can be done.

Because Blackstone was right, and Scalia wrong.

And either way, bitch slap his lawyer around some.

Half-Empty Glass

Some people focus on the silver lining.

Justice Stevens' opinion (sorry, Bennett, I prefer the visual aesthetic of omitting that final "s") in Padilla v. Kentucky is really a wonderful thing. Regardless of whether he announces his retirement this month - as many, perhaps most, expect - Padilla should justly be viewed as a highlight.

The very short version: Lawyers have an obligation to tell non-citizen clients about the immigration consequences of a plea if those consequences can be readily determined. When they can't be, a more general warning, something on the line of "There may be adverse consequences; you should check with someone if that matters to you," is required. Mark Bennett's summary is even simpler than mine.

The gloss is no longer enough. Now, if the law clearly requires deportation, the law (and not just ethics and conscience) requires the lawyer to tell the client.

He adds, rightly,

It’s about damn time.

In fact, Padilla is a terrific opinion for more than just the formal holding.

There's the reminder that although the lower courts have routinely said that the right to effective assistance of counsel doesn't include the right to effective assistance in regard to collateral consequences of pleas or convictions, the Supremes have never said that. (Russ Bensing's post this morning spins out, with focus on Ohio, some of the collateral consequences to which criminal defense lawyers ought to be paying more attention.)

There's the recognition that ABA standards for defense counsel

may be valuable measures of the prevailing professional norms of effective representation.

That's particularly notable in light of the almost cavalier dismissal of the significance of those standards just a few months ago in Bobby v. Van Hook.

There's the recognition that "deportation is intimately related to the criminal process," which has led at least one person to suggest that the case lends itself to challenging Miranda-free interrogations by ICE with the statements then being admitted at criminal trials.

All this and more. It is, as I say, a great opinion.

But if some people focus on the silver lining, I can't help paying lots of attention to the cloud.

The other day it was Clarence Thomas suggesting that in the right case he'd be happy to reconsider the claim that it's unconstitutional to insist that juries must actually represent a "fair cross section of the community." Why not go back to the framer's idea? White, male, property owners from nearby.

Today it's Scalia (joined by Thomas) hinting that the Constitution does not mandate counsel for anyone and certainly doesn't mandate that counsel be competent.*

The Sixth Amendment as originally understood and ratified meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel. See, United States v. Van Duzee, 140 U. S. 169, 173 (1891); W. Beaney, Right to Counsel in American Courts 21, 28–29(1955). We have held, however, that the Sixth Amendment requires the provision of counsel to indigent defendants at government expense, Gideon v. Wainwright, 372 U. S. 335, 344–345 (1963), and that the right to “the assistance of counsel” includes the right to effective assistance, Strickland v. Washington, 466 U. S. 668, 686 (1984). Even assuming the validity of these holdings, I reject the significant further extension that the Court, and to a lesser extent the concurrence, would create.

The boldface is mine.

Forget that appointed counsel stuff. Oh, sure, states (and even the feds) can provide counsel if they want. There's nothing inherently unconstitutional about public defenders. (At least, they haven't yet suggested that.) But required? Don't be silly. The Sixth Amendment just says counsel's allowed. Defendants who manage to get themselves lawyers can have the lawyers defend them. But it's the defendant's burden to find (and pay) willing counsel.
In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.

And, by god, the defendant who manages to arrange counsel certainly has no right to have the counsel be even marginally competent.

Today only Scalia and Thomas are going there. And there's a fair chance that only Thomas would actually vote to overturn Gideon or Strickland. But time has an ugly way of catching up to the worst possibility.

Yet more need for the PD Revolution.

----------------
*Bennett noted their wariness in his post on Padilla, but didn't focus on it.

ON BURYING ONE'S HEAD IN THE SAND

Let's start with this question: Who's the ideal, the Platonic model of the judge/justice?


She is clear-eyed, totally free of preconceptions, open to reasoned argument and the law. She's fair, smart, wholly without biases but widely experienced in life and law. She treats everyone with equal dignity and respect from the lowliest beggar to the king to the major corporation to the vicious killer. If she is elected, she does not even know who served on her campaign committee or contributed to her campaign. If she is appointed, she is beholden to nobody because . . . well, because she's not. Her judicial philosphy is neither broad nor cramped. She understands that the judiciary is but one branch of the government but that, like each of the branches, it has powers unique to its function. And she's wholly fearless in her judging concerned neither for her personal welfare nor her future preferment and entirely indifferent to the clamorings of the public.


You want that person to be elected or appointed judge, but you might not want to appear before her. Why? Because as lawyer or litigant, you want to win, and as citizen you want judges who will reach the conclusions you favor. So the ideal judge, the one you want to have making decisions in the abstract, isn't perhaps the one you want making the decision in this or that particular case.


Now let's ask a different question: Who should we allow to make judicial types of decisions in the real world? And when?

Think jurors for a minute. The Ohio Rules of Criminal Procedure (which are pretty much like, though not identical to, the Civil Rules and the Federal Rules and the rules of most states in this regard), list 13 specific reasons why a prospective juror may be challenged for cause:

1. That the juror has been convicted of a crime which by law renders the juror disqualified to serve on a jury.
2. That the juror is a chronic alcoholic, or drug dependent person.
3. That the juror was a member of the grand jury that found the indictment in the case.
4. That the juror served on a petit jury drawn in the same cause against the same defendant, and the petit jury was discharged after hearing the evidence or rendering a verdict on the evidence that was set aside.
5. That the juror served as a juror in a civil case brought against the defendant for the same act.
6. That the juror has an action pending between him or her and the State of Ohio or the defendant.
7. That the juror or the juror’s spouse is a party to another action then pending in any court in which an attorney in the cause then on trial is an attorney, either for or against the juror.
8. That the juror has been subpoenaed in good faith as a witness in the case.
9. That the juror is possessed of a state of mind evincing enmity or bias toward the defendant or the state; but no person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that the juror will render an impartial verdict according to the law and the evidence submitted to the jury at the trial.
10. That the juror is related by consanguinity or affinity within the fifth degree to the person alleged to be injured or attempted to be injured by the offense charged, or to the person on whose complaint the prosecution was instituted; or to the defendant.
11. That the juror is the person alleged to be injured or attempted to be injured by the offense charged, or the person on whose complaint the prosecution was instituted, or the defendant.
12. That the juror is the employer or employee, or the spouse, parent, son, or daughter of the employer or employee, or the counselor, agent, or attorney, of any person included in division (C)(11) of this rule.
13. That English is not the juror’s native language, and the juror’s knowledge of English is insufficient to permit the juror to understand the facts and the law in the case.

It's not perfect and we can certainly argue about particulars, but it's a fair starting point. The idea is that people who are altogether unreliable or are so enmeshed with things that either the defense or the prosecution would naturally expect them to be unable to lay their biases aside shouldn't be allowed to serve. The individual truth won't matter. My son shouldn't be on the jury when I try the case. He's too tangled up emotionally (for better or worse) with his father and it would just be hard for people to believe he could really be fair to all sides in the case even if he could be.

Now let's talk about judges again, and justices. But we have to start with a fact that has essentially nothing to do with who should be making decisions. Judges and justices have no enforcement power.

Thus, when the Court refused Georgia's attempt to seize Cherokee lands (Wooster v. Georgia), a defiant President Jackson is said (although it's probably apocryphal) to have responded, "John Marshall has made his decision; now let him enforce it." Regardless of whether he said it, Jackson sent in troops to remove the Cherokee demonstrating that he meant it. And after Brown v. Board of Education, the schools in Little Rock, Arkansas got integrated only because President Eisenhower sent in troops to enforce the Court's orders.

Ultimately, the authority of the courts (not just the Supreme Court, all courts) rests on a public perception of integrity.

And so it is that when we speak of who should judge and when, we need to speak of respect for the integrity of the judicial process and the judicial system.

Of course, we know that judges and justices are human. They have biases and points of view. But we want to believe that they don't act on them. They are, we must mostly believe lest the system implode, generally honest, above it all. Justice must not be for sale. When it is, as it was recently in Pennsylvania (see here) or as it was implied in Ohio (see here), and it must not be seen to put its thumb on one side of the scale (see here and here) the system shakes.

It's why the courts are so hard on those who question their integrity. Consider the saga of Geoffrey Feiger (latest installment, with summary, here) or the disciplinary proceedings against Mark Gardner (here). The Gardner ruling is particularly disturbing. He said many intemperate things about the Cuyahoga County Court of Appeals and certainly impugned the integrity of the judges who decided one of his cases. But he was disciplined with the clear statement that it was irrelevant whether his charges of dishonesty, corruption, and bias were true.

[W]e hold that an attorney may be sanctioned for making accusations of judicial impropriety that a reasonable attorney would believe are false.

And so it came to pass that Antonin Scalia went duck hunting with Dick Cheney.

At the same time, Cheney was petitioner before the Supreme Court in an ongoing dispute over whether the government could be forced to reveal information regarding an advisory committee on energy policy that Cheney, as Vice President, headed. ONe of the parties to the case, the Sierra Club, asked that Scalia recuse himself. He declined with a 21 page opinion explaining that recusal would be proper only if reasonable people might think him biased, and while many people did think he would be biased . . . . Well, he never explicitly said that the editorial boards of major newspapers around the country were unreasonable, but that's pretty much what he was saying.

The point, you see, is that if he were to recuse himself when it wasn't absolutely necessary, then justices would be urged to on other occasions when it might not be absolutely necessary. Actually recusing without necessity will lead people to think less of the justice system:

While the political branches can perhaps survive the constant baseless allegations of impropriety that have become the staple of Washington reportage, this Court cannot. The people must have confidence in the integrity of the Justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, and in an atmosphere where the press will be eager to find foot-faults.

And then there was Caperton v. A.T. Massey Coal Co., Inc. The underlying dispute involved allegations of misconduct by Massey Coal. A jury awarded Caperton and others $50 in damages. Massey appealed to the West Virginia Supreme Court. Massey's chairman, Blankenship, spent some $3 million in a successful effort to unseat an incumbent justice of that court and, in his place, elect a different justice (Benjamin). As the Court noted:

To provide some perspective, Blankenship’s $3 million incontributions were more than the total amount spent byall other Benjamin supporters and three times the amount spent by Benjamin’s own committee. Id., at 288a. Caperton contends that Blankenship spent $1 million more than the total amount spent by the campaign committees of both candidates combined.

The West Virginia Court, by a 3-2 vote with Justice Benjamin in the majority, reversed the lower courts and vacated the $50 million judgment. The Supreme Court, in an opinion by Justice Kennedy, said it wasn't fair.

Repeatedly emphasizing that this is an extraordinary case, that the amounts at issue in themselves and as a percentage of spending were "grossly disproportionate," and given the timing were so extraordinary (he does keep saying it) that due process required Benjamin to recuse himself.

Although there is no allegation of a quid pro quo agreement, the fact remainsthat Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause. And applying this principle to the judicial electionprocess, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.

Only this was, Kennedy says, can the public's belief in the integrity of the system be confirmed.

Except, say the dissenters, this will weaken the public's faith in the integrity of the system. Chief Justice Roberts bookends his opinion for the dissenters with that point:

I, of course, share the majority’s sincere concerns about the need to maintain a fair, independent, and impartial judiciary—and one that appears to be such. But I fear that the Court’s decision will undermine rather than promote these values.
. . .
I am sure there are cases where a “probability of bias”should lead the prudent judge to step aside, but the judge fails to do so. Maybe this is one of them. But I believe that opening the door to recusal claims under theDue Process Clause, for an amorphous “probability ofbias,” will itself bring our judicial system into undeserved disrepute, and diminish the confidence of the American people in the fairness and integrity of their courts.

If the need of the justice system is not merely to avoid partiality, but to avoid the appearance of partiality, then you pretty much have to agree with Kennedy.

Unless . . . unless . . . unless. See, here's the thing. A bunch of rich, successful, professional men who do not believe that they can be bought, cannot imagine that anyone believes other like them can be bought. But if you allow recusal based on the possibility of being bought, then you're acknowledging it could be true. So you turn, at last, to the old duck-hunter himself, Justice Scalia, who's made one up.

What above all else is eroding public confidence in the Nation’s judicial system is the perception that litigation is just a game, that the party with the most resourceful lawyer can play it towin, that our seemingly interminable legal proceedingsare wonderfully self-perpetuating but incapable of deliver-ing real-world justice. The Court’s opinion will reinforcethat perception, adding to the vast arsenal of lawyerly gambits what will come to be known as the Caperton claim.

No doubt the public sneers at lawyering as a game. But I'm pretty sure that what they fear is judging as a profit-making enterprise, justice for sale to the highest bidder.