Please, No More Laws - UPDATED

Over at Fault Lines today, I expect them to put up a post of mine (I don't do the actual posting there) about the federal prosecution of Dylan Roof for the hate crime of killing people at the Emanuel African Methodist Episcopal Church in Charleston, S.C. after the state has already indicted Roof the underlying crime of killing people at the Emanuel African Methodist Episcopal Church in Charleston, S.C.  Like Scott Greenfield's post at Simple Justice, it's a response to fellow Fault Liner Christian Farias who thinks it's a Jim Dandy idea for the feds to go after Roof because he deserves it.

In this morning's Times, Harpreet Singh Saini writes about how important hate crime laws and prosecutions are.  He isn't writing from theory.

This is not a hypothetical situation. Three years ago next month, a white supremacist walked into the Oak Creek gurdwara, a Sikh temple, and fatally shot my mother, Paramjit Kaur Saini, and five other worshipers.
I was 18 and just about to start college. My mother never got to see me off.

It was a horrible crime.  It's a horrible story.  

The governments (federal and state) need to track hate crimes, he says.  And they need to prosecute people for them.  Because they're terrible things.  And they provide especially harsh penalties for people who commit horrible crimes for bad reasons (as if there were good ones).  Of course, those crimes are already being tracked, as are groups that encourage them.

Research by the Southern Poverty Law Center has found that South Carolina alone is home to six neo-Confederate groups, four white nationalist organizations, two factions of the Ku Klux Klan and three neo-Nazi groups. 

And so, well, that's where it gets hazy.  Here's the next (and last) sentence of Saini's paragraph I just quoted.

It is only a matter of time before a deranged individual or group influenced by their creed of hate strikes again.

Which is surely true.  And which tracking, whether by SPLC or the feds or the state of South Carolina won't change.

Ah, but surely there's deterrence.

This is an opportunity for South Carolina to lead, and the other four states [that don't have hate crime laws] to follow, in enacting laws that could help to deter another tragedy like the ones in Oak Creek and Charleston. An act of hate should always be counted and we must have laws in every state to protect Americans from these heinous acts of violence.

Really?  A law against hate crimes will deter, will protect against "a deranged individual or group"? 

Sure, because one thing about people who are deranged and act on their mental illness is that they do careful cost-benefit analyses first.  It's one reason why people don't commit crimes for bad reasons in the other 46 states.  You know, the states like 

New York, where in 2013 alone (the most recent year for which data is available), state prosecutors reported 149 hate crime convictions.

Saini's Op Ed is titled "There Ought To Be a Law Against Hate."  The title was probably provided by some editor at the Times, so there's no point in blaming Saini for that particular silliness, but it does point to the problem.

You can't stop hate - or any other emotion/attitude - by passing a law.  Even if you name it after someone and make it a crime. 

UPDATE:  See Greenfield at Fault Lines on the Op-Ed making essentially the same (valid) point he does in his comment here.

A Disquisition Upon a Fallacy

Ophadell Williams: Not Guilty.

That's what the jury said on Friday. If the name isn't familiar, Winnie Hu and Nate Schweber lead with the plot in the Times.

A bus driver accused of being so tired that he caused one of the deadliest crashes in New York City’s history was found not guilty of manslaughter and negligent homicide on Friday, underscoring the difficulty of prosecuting drowsy driving despite successful efforts to use the courts to discourage other dangerous habits while at the wheel. 

I don't know squat about New York law, and I paid little attention to the case.  Not my state, not my stuff, didn't know any of the principals (or even the bit players).  I don't really know what the evidence was.  I've got enough shit to deal with in Ohio.

But I heard this news report where the anchor asked the reporter about the "broader implications" of the verdict.   Broader implications?  There are none.  The prosecutors (I think they call them DA's in NY) just didn't prove it.  The reporter of course pontificated about how these things are hard but there's some case in Virginia and the dangers of and blah, blah, blah.

To which I thought.

Ho hum.

And that was kind of the end.  Not my state, not my stuff, didn't know any of the principals (or even the bit players).  I've got enough shit to deal with in Ohio.

This morning, Paul Kennedy (who's been doing really good stuff over on his blawg and you should be reading it if you aren't) took off on Doug Berman over the death of Dallas Cowboy linebacker Jerry Brown as a passenger in his teammate Josh Brent's car. It seems that Brent, who was perhaps driving under the influence while he was allegedly speeding, was charged with a DUI in 2009 in Champaign County, Illinois and entered into a plea bargain.

Berman, Kennedy said, is "on the warpath."  That might be a bit hyperbolic.  Judge for yourself.  Here's what Doug wrote.

I cannot help but wonder if Jerry Brown would still be alive today if Josh Brent had gotten sentenced somewhat more severely for his first DUI. And, looking forward, I think NFL Commissioner Roger Goodell would do more good for both his sport and society if, rather than worry too much about kickoffs, he were now to decree that any NFL player convicted of any DUI charge will be suspended for at least two years (and perhaps even for life).

I suppose it's true that if Brent had been banned from professional football after 2009, the odds go way down (way down) that Brown would have been in his car the other day and, therefore, killed in that accident.  (Frankly, the odds that Brent would have been in that location at that time go down, too, which means the accident probably wouldn't have happened.)  And if Brent was doing 10-15 in the slammer in Illinois, no accident, either.

Kennedy's point is partly about a rush to judgment.  (Brent is merely alleged to have been over the limit - whether he actually was will be revealed by the blood tests, assuming they're done right.)  The rest of Kennedy's point is that ramping up the penalties for a first time DUI will either result in more violations of constitutional rights or, oddly, more not guilty verdicts in DUI cases (which means fewer convictions, though not necessarily fewer drivers over the limit).

But there's another point, and it takes me back to bus driver Ophadell Williams and the not guilty verdict.

I don't know what the jurors thought the DA didn't prove.  (Neither do the Times reporters who say that the jurors wouldn't speak with the press except to say that the deliberations were tough.)  That driving while exhausted isn't that serious a thing? That Williams wasn't actually all that tired?

Or just maybe some third thing.

Here's another possibility.  Image that the jurors believed that  Williams was absolutely exhausted, and that it was just awful for him to be driving that way.  Worse even than if he were blind drunk.  But maybe, just maybe, they thought to themselves

Sure, but they didn't prove that caused the accident.

I spend a fair amount of time in my car.  I see lots and lots of terrible driving.  I'm quite certain that some of the awful drivers I see are stinking drunk.  I'm sure others are half asleep.  Mostly, they get home safely.

They shouldn't be driving, of course.  And prosecuted for driving drunk or for driving while sleeping (it that's a crime) they'd be properly and fairly convicted (assuming factual guilt for the moment).  But we take another step, and its seriously wrong.

We make it a crime for the accident to happen at a time when the driver was drunk. Ignoring the question of whether the one had anything to do with the other.  Because sometimes it doesn't.

I don't know what New York law required the state to prove.  I don't know what the jury struggled with.  I don't know how they decided.  And I don't know why Josh Brent was speeding, if he was.  But I know that just because two thing happen in sequence doesn't mean the first caused the second.

The logical fallacy is called post hoc ergo propter hoc (after this, therefore because of this).  Most drunk drivers get home alive.  And sometimes, when they don't, it has nothing to do with being drunk.

Which leads to a couple of other possibilities in Josh Brent's case.  Even if he was drunk, and even if he was speeding, those things may not have had anything to do with each other.  He may speed all the time.  He may just be a lousy driver who can never control his car well.  Or maybe he just had an accident.  One of those things.  Awful though it turned out to be.  But something that might have happened regardless.

The law may not allow that as a possibility, the law may not care.  The law may not give a shit about causation when someone dies.  But as Dicken said in Oliver Twist  (in a different context)

If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass- a idiot."

Trust Us, We're Judges

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yeah. As Scott notes,

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

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

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

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

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

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

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

Certainly. Though Perhaps Not.

I knew a guy, graduated at the top of his class at a prestigious law school.  Then went to med school and became a neurosurgeon.  He said the UCC drove him to medical school.

For the uninitiated, the UCC is the Uniform Commercial Code.  It's the set of statutes (that's the code part) governing commercial transactions (buying and selling widgets; delivering them on time or not; dealing with the bounced check; leases; secured loans, that kind of thing) that with minor variations have been adopted by all the states (hence uniform).  I know people who find the UCC fascinating and get erections [OK, maybe not] examining the interaction between, say, § 4-107 and § 8-203. [Disclaimer: I don't know shit about the UCC (though I did pass the class in law school) and neither know nor care whether those sections have any relationship to one another or could possibly interact.  This is not legal advice and I am not your lawyer.]

The Anglo-American Legal Tradition, as it's referred to, developed through the so-called "common law."  In the early days of the Anglo part, before the Anglos had any Americans to hyphenate, the law was not codified. There were laws, of course, but they developed by accretion rather than codification.  And judges figured out how to apply the written laws (and the vast store of unwritten ones.  They explained their reasoning which became precedent.  The Law (uppercase here) developed through analysis and reanalysis and reliance on precedent and, as I've explained before, argument from analogy.

It's slow, this legal evolution. And it proceeds by fits and starts. Nor is it certain that what evolves is better than what came before.  There's a reason that Law (uppercase again) is an essentially conservative profession, though it certainly doesn't follow that lawyers are essentially a conservative lot, though a great many, perhaps most, clearly are. 

These days, at least in the American part of the Anglo-hyphenate, codification is king.  The complaints of activist judges and justices (complaints which are often no more than bitching about rulings one does not like) are really complaints about the common law.* No need to figure it out, no need actually to consider, deem, or judge.  The Code is all.  Lifeless. Dull. A damn shame.

In fact, it doesn't work that way. Nothing does.

In reply to a recent comment on a post from early last year, I wrote this.

Irving Younger said it far better than I can:

"The best of all guides to thinking about anything is Oliver Cromwell's adjuration to the General Assembly of the Church of Scotland, 'I beseech you, in the bowels of Christ, think it possible that you may be mistaken.' Life and the affairs of the living are so tangled, the world not only stranger than we imagine but stranger than we can imagine, that all questions are conundrums, no answers 'correct.' Is it certain that parallel lines never meet? No. Does water freeze at thirty-two degrees Fahrenheit? Only probably. Shall I marry? Who can say.

"And yet the world's work must be done. One Oblomov is enough. Thus we learn a conventional certitude, acting as though all were light by blinking the shadow. A simple proof demonstrates that parallel lines meet, but, on the assumption that they do not, the architect builds the skyscraper. Despite extensive knowledge of statistical mechanics, the engineer designs the refrigerator to maintain a constant temperature of thirty-one degrees. 'Le coeur a ses raisons que la raison ne connait point,' and families are raised."

The correct answer to every legal question is "It depends." The correct answer to every significant question of philosophy and perspective is "Perhaps."**

Ferdinand von Schirach's uncle was the presiding judge of German court handling capital offenses. He was known as

a good judge, humane, an upright man with a sense of justice.

He told stories from those cases to Ferdinand who explains in "Guilt," the preface to his absolutely stunning collection of short stories Crime: Stories,

They always began with him saying: "Most things are complicated, and guilt always presents a bit of a problem."

"One day," Ferdinand writes of his uncle, 

he went into the woods, put the double-barreled shotgun in his mouth, and pulled the trigger.  He was wearing a black rollneck sweater; he'd hung his jacket on a branch. His head exploded. I saw the photos a long time later. He left a letter for his best friend, in which he wrote that he'd simply had enough. The letter began with the words "Most things are complicated, and guilt always presents a bit of a problem."

"And yet," as I said, Younger wrote,

the world's work must be done.

Ferdinand von Schirach is, himself, a prominent criminal defense lawyer in Germany and his stories, with their understanding and empathy - capacities very different from approval, though too many people don't understand that - reveal both his uncle's understanding and Younger's. The answers to all the relevant questions, he recognizes, is "It depends."

And they reveal, not surprisingly, a deep understanding of what we do.

Defendants and defense lawyers have a curious relationship. A lawyer doesn't always want to know what actually happened. This also has its roots in our code of criminal procedure: If defense counsel knows that his client has killed someone in Berlin, he may not ask for "defense witnesses" to take the stand who would say that the man had been in Munich that day. It's a tightrope walk. In other cases, the lawyer absolutely has to know the truth. Knowledge of the actual circumstances may be the tiny advantage that can protect his client from a guilty verdict. Whether the lawyer thinks his client is innocent is irrelevant. His task is to defend the accused, no more, no less.

That paragraph, from "Summertime," could have been written here were my prose were as elegant as von Shirach's (and if I thought of locations in terms of Berlin and Munich rather than, say, Toledo and Youngstown).

But understanding what we do isn't really the key to what's so powerful about von Schirach's stories. Nor is it the understanding of our clients. It is, instead, that understanding of ambiguity, of uncertainly, and how it infuses not merely our work but out sensibility.  For the criminal defense lawyer, as distinct from the lawyer who happens to do some criminal defense, looks at the world as a place of risk where it's possible to prevail but tricky.

All our lives we dance on a thin layer of ice; it's very cold underneath, and death is quick. The ice won't bear the weight of some people and they fall through. That's the moment that interests me. If we're lucky, it never happens to us and we keep dancing. If we're lucky.

You read von Schirach and come to recognize, as he does, that there are no easy answers ever and that motivation is never clear or unambiguous and that while there may be evil, it's finally impossible all the time accurately to recognize it. And you see that we all are tainted and that dispassion is a mask. To do our work, we glue it on firmly.

Occasionally, it frays around the edges.

I learned of von Schirach from Glen Steinhauer and Adam Liptak in the Times and then from Norm Pattis.  I'm grateful to all three.

------------------

* There are alternative legal systems where the decisions of the courts have no precedential value. Each is wholly independent of what came before. In a particularly extreme and frankly stupid version, that's the essence of a bill offered a couple of years ago by Iowa state representative Jason Schultz (motto: "I know notting"; ooops, that was Sgt Schultz from Hogan's Heroes).  (I wrote about the bill here.) It was referred to the judiciary committee where it was, I am happy to report, gracefully allowed to die.

** The quote is from Younger's untitled "Commentary" in the first issue ever of the Georgetown Journal of Legal Ethics (1987), p. 285.

Your Money or Your Life

As I said yesterday, there's something else beside the usual so-you-affirmed-a-death-sentence-what-else-is-new about State v. Lang. Unfortunately, I have to dip into the arcana of evidence law, and quote a chunk of trial testimony, to explain.  Here's the trial testimony as reproduced in the opinion.

{¶ 65} Michele Foster provided expert testimony about the DNA found on the handgun used in the killings. She stated that DNA was detected from “at least two individuals” at three different locations on the handgun. The prosecutor then questioned Foster about the comparison of Lang’s and Walker’s DNA with the DNA found on the handgun:

{¶ 66} “Q: Do you have an opinion as to a reasonable degree of scientific certainty as to whose DNA appears on that handgun?
{¶ 67} “A: In this particular case, we can say that Antonio Walker is not the major source of DNA that we detected from the swabbing of the pistol.
{¶ 68} “In this case we, based on our comparison, we can say that Edward Lang cannot be excluded as a possible minor source to the DNA that we found on the weapon.
{¶ 69} “Q: When you say not excluded, what do you mean by that?
{¶ 70} “A: Well, in this particular case, because we had such low level DNA, we can’t say to a reasonable degree of scientific certainty that this person is the source.
{¶ 71} “In this particular case, the chance of finding the major DNA profile that we found on that pistol is 1 in 3,461,” meaning that “1 of 3,461 people could possibly be included as a potential source of the DNA.”

The part to pay attention to is the prepositional phrase

to a reasonable degree of scientific certainty.

If you go to law school and study evidence law (which apparently and bizarrely and stupidly many law students never do), you learn that it's one of the touchstones of expert testimony.  An expert's opinion is to be given

to a reasonable degree of scientific certainty.

So we're trained to ask the question asked here in paragraph 66.

Do you have an opinion as to a reasonable degree of scientific certainty . . . ?

We expect the answer to be "yes."  Then we go on to ask what that opinion is.  But it's all about getting to the 

reasonable degree of scientific certainty.

Except, here the answer was

No, can't do that.  But I can tell you what's possible.

Uh, no.  You're not supposed to do that.  At least, that's the rule we all learned.  It's the general rule.  It's the right rule (because, really, anything is possible - some things are just far more likely than others - and are actually understood based on, say, science.  Other things, well there was that Texas case where they found probable cause because Jesus and the angels spoke to the prophetess so naturally.

Anyway, the evidence came in, Lang was convicted and sentenced to die, and the case went to the Ohio Supreme Court which said that expert evidence of possibility was just peachy keen.

They'd laid out that rule before, in Joe D'Ambrosio's case.  (You remember Joe.  He's the guy who even the dissenter agreed was a victim of repeated lying and cheating and stonewalling by the state of Ohio.  But that was something only the federal courts cared about.  We're talking now about the Ohio Supreme Court in State v. D'Ambrosio, Joe's direct appeal (citations omitted)

While several decisions from this court indicate that speculative opinions by medical experts are inadmissible since they are based on possibilities and not probabilities . . . we believe that the better practice, especially in criminal cases, is to let experts testify in terms of possibility. . . .  Evid.R. 702 allows expert opinion that "will assist the trier of fact to understand the evidence or to determine a fact in issue."  Here, Dr. Balraj's testimony helped the trier of fact to understand that, despite contrary appearances, the size of the wound was consistent with the size and shape of State's Exhibit 8A.  Although Dr. Balraj's testimony does not prove that State's Exhibit 8A was the murder weapon, we believe that is an issue of sufficiency, not admissibility.

To which you can say,

Well, maybe.

Except for the one parenthetical.

[E]specially in criminal cases.

Because, see, in civil cases the evidence still has to satisfy that reasonable degree of scientific certainty standard.  And that's the issue Lang's lawyers picked up on as they raised a claim under the Equal Protection Clause of the 14th Amendment.

No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.

The short explanation of equal protection law is that the law must treat everyone the same.  And because if Lang were a defendant in a civil case that DNA testimony would not have been admissible, the state shouldn't get to admit it in this case.

To which the Supreme Court of Ohio said

Pish tosh.
Sure the rules are stricter in civil cases.  But that's because there's so much more at stake in civil cases.

OK, that's not how they phrased it.  Here's how they phrased it.

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Section 1, commands that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The Equal Protection Clause does not prevent all classification, however. It simply forbids laws that treat persons differently when they are otherwise alike in all relevant respects. Nordlinger v. Hahn (1992), 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1. Lang’s equal protection argument can be rejected because criminal defendants and civil litigants have vastly different stakes and concerns and are not similarly situated. See Mason v. Home Depot U.S.A., Inc. (2008), 283 Ga. 271, 274-275, 658 S.E.2d 603 (rejecting equal protection claim challenging more stringent requirements for admission of expert testimony in tort actions than in criminal cases).

Which is pretty much the same thing.

Oh, of course the folks in Columbus had to search pretty hard for law saying that they can provide less protection to someone facing death than to someone who might have to cough up some cash.  And they found it in Mason, that Georgia case.  The thing is, Mason only gets where the folks in Columbus (Ohio, not Georgia) took it if you do some serious ignoring of why it doesn't apply. 

Mason sued Home Depot over injuries he said he got using a floor covering product he bought there (sued the manufacturer, too).  The defendants wanted to stop Mason's expert doctors from testifying, and under a special law Georgia enacted shortly before trial, they could do that.  Because even though they would have been allowed to testify in a criminal case, the rules for tort cases were stricter and kept the evidence out.  Mason argued that he was being denied equal protection because he couldn't put on evidence that he could have used had he been a criminal defendant.

Said the Georgia Supreme Court:

From the foregoing, we conclude that, for purposes of evidentiary standards, only those accused of the same offense are similarly situated in the criminal law arena, only those asserting or defending against the same cause of action are similarly situated in the civil law arena, and the parties to civil cases are not similarly situated to those engaged in criminal prosecutions.

So, yeah, that's the rule they cooked up.  But even if it's valid (though it strikes me as designed to be outcome determinative rather than constitutionally cogent), rules don't occur in vacuums.  Context matters.  A lot.

And, simply, there's a big difference between saying that you can exclude something that a private litigant wants to use to prove his claim in a civil case when it's deemed unreliable but you have to let the government use equally unreliable evidence to prove its claims in a criminal case.

Put everything else aside.  Criminal defendants have special rights provided by the Fifth, Sixth, and Eighth Amendments.  The idea is that the balances are supposed to be tipped in their favor.  Not so civil plaintiffs.  But applying the Mason reasoning to criminal defendants violates that underlying principle.

Still, when you look at how much is at stake . . .

Criminal - life and liberty
Civil - cash

You can understand why the courts would think civil matters are far more weighty and deserving of extra protection.

As you'll recall, the court affirmed Lang's death sentence.

Did I mention that sometimes it's just embarrassing?

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He Really Doesn't Understand

Another politician with his hand in the cookie jar.  Or so it is alleged.

Are we shocked?  Are we, even the least little bit, surprised?

It depends, I guess, on who "we" are.

If "we" are me and most of the people I hang out with (criminal defense lawyers, of course, but relatively normal people, too), then the answer is that we're not.  Not a bit.  There are, no doubt, honest and honorable men and women who hold elected office.  People of integrity and decency who do not find in public office ways to lard their own coffers (savor, if you will, the taste of the word "lard" in that overused phrase) or cheat on their spouses or otherwise treat the office as a bit of personal aggrandizement.  But there's no shortage of the others.  It goes with the territory.  The old joke about lawyers (How do you know when one is lying?  His lips are moving) is as often targeted at those we elect to office.

If, on the other hand, "we" means the righteous prigs who live in marbled halls with fancy seals on the walls and have no idea how actual human beings think and behave, perhaps there's plenty of surprise.

Carl Kruger is a member of the New York State Senate from Brooklyn.  He's been in office for some 16 years.  Yesterday, he turned himself into the feds.

From the New York Times.

On Thursday, federal prosecutors unveiled a 53-page criminal complaint against Mr. Kruger, 61, that unlocked many of the mysteries of his life — but deepened others. It portrayed a man who had amassed at least $1 million in bribes in return for political favors: helping hospitals seeking to merge, obtaining state money for real-estate developers, expanding the business hours of liquor stores.
And it revealed, prosecutors say, that the seemingly measured senator was using the bribes to bankroll a lavish lifestyle, financing a four-door Bentley Arnage and a $2 million waterfront home originally built for a boss of the Luchese crime family.
Mr. Kruger and seven other defendants — including Assemblyman William F. Boyland Jr., a fellow Brooklyn Democrat, and a prominent lobbyist, Richard Lipsky — were charged by federal prosecutors in Manhattan with what United States Attorney Preet Bharara called “a broad-based bribery racket.”

I don't know any of these folks.  I haven't a clue whether Kruger or any of the others ever came within a hair's breadth of violating a public, or even a private, trust.  This post isn't about them.  It's not about the public trust (though it does sort of seem that way so far when I review it from the top).

It is, instead, about what may be the greatest myth of criminal law.

Go back to the question I began with, whether anyone is surprised.  Then listen to Preet Bharara explaining why he is.

Mr. Bharara expressed exasperation over the unrelenting corruption in Albany, saying lawmakers did not appear to learn.
“Every single time we arrest a state senator or assemblyman, it should be a jarring wake-up call,” Mr. Bharara said. “Instead, it seems that no matter how many times the alarm goes off, Albany just hits the snooze button.” 

You'd think they'd get it.  You'd think they'd be deterred.  Or, at least, he'd think so.  And he just can't understand why they're not.

Don't they understand deterrence?  Don't they get it that they'll get caught?  Don't they understand the humiliation they'll suffer? The punishment?

Answers:

• No.
• No.
• No.
• No.

Of course they don't.

On the one hand, that's just the obvious fact that the people who commit crimes (and of course Bharara assumes everyone charged is actually guilty) were not deterred.  I mean, it's always possible to imagine some state senator who gets deterred.

Damn.  I'd sure like to get rich on graft.  I mean, that's why I ran for office and won this job.  But now that I'm here and see that you can get caught and exposed, I guess I'll do the people's business instead.

We can imagine all kinds of things.  But the reality of deterrence is that it assumes that before committing crimes (or engaging in any sort of misconduct), the potential miscreant conducts a cost-benefit analysis and decides otherwise.

I'd be a fool to say it absolutely never happens.  But I'd be a naive twit to think it happens with any sort of frequency.

See, most people aren't inclined to serious misbehavior.  And those who are - whether state senators taking graft, governors cheating on their spouses, cashiers shortchanging customers (or the boss) and pocketing the difference, or armed robbers, rapists, and murderers - they don't get deterred because they don't believe they'll get caught or are acting on impulse rather than contemplating consequences and doing cost-benefit analyses.

And the getting caught thing.

That only works when there's a cop on the corner watching.

Drive the interstate sometime.  When people see a cop, they slow down to somewhere near, maybe even below, the speed limit.  They do that whether the cop is working the radar gun or actually giving a ticket.  The moment the cop is out of sight, traffic picks up speed again.  Drivers don't slow down because they're reminded they could get caught.  They slow down while they think being caught is a real risk, i.e., while they see the cop.

Our legislators (even while they're taking graft) don't understand that lesson.  So they keep cranking out new crimes and increasing punishments.  

Now the bad guys will be put off.

Except, it doesn't work that way.

Preet Bharara knows it doesn't work.  He just doesn't understand why not.

Really, it's not that hard to figure out.

You just have to talk to psychologists rather than economists.

Who We Are and What We Do - Once More Into the Breach

Think of this as an extended comment on Mark Bennett's brilliant opening entry into the competition for best criminal law blot post of 2011.

Already Matt Brown and John Kindley and the anonymous scold Atticus have weighed in with their own posts on it (and Kindley pretty much made his a comment, too).  Me, I hesitated to weigh in at first because I couldn't think of anything to add beyond what Lee Stonum pointed out (and what I said above): This is a likely nominee for best criminal law blog post of 2011.  But as I've gone back and read the comments (and the posts by Brown and Kindley and Atticus), I started to write my own comment.  Except the damn thing was getting so long, I said (to myself) "the hell with it," and decided to just write my own post.

So, if you're interested enough to be reading this, and if you haven't read Bennett, you should.  Go ahead.  I can wait.

If you won't do that, here's the very quick version:

Prosecutor argues that guy who got convicted of causing a death while driving drunk should do life so as to send a message to others who would drive after drinking more than the law allows.

When the judge sentenced Howard to life in prison, he was not punishing him only for his bad act—driving a car after drinking too much—but also for the unintended and random consequences of that bad act. The difference between DWI and intoxicated manslaughter is nothing more than lousy luck; Jim Howard didn’t get life in prison because of his act, but because of the unforeseen consequence of that act, out of his control once he committed the act. His act would have been the same, and his culpability no less, if he had made it home safe.

But we have this impulse toward retribution.  And it gets in the way of making punishment actually relevant to conduct.  (Here we go back, although Mark doesn't reference it, to Jacqueline Goodman's brilliant punishment argument).  Nobody who drives drunk intends to kill by doing it.  And it almost never happens.  We can't deter people from things they don't intend to do by increasing the punishment for random consequences of conduct.
Then, it turns out that a prosecutor who argued for especially harsh sentences for those convicted of DUIs - on the theory that such sentences would deter others from the same offense - gets busted for a DUI.  And while it's almost instinctive, unless perhaps the arrestee is a friend or relative, to feel a frisson of pleasure in the irony. 

Schadenfreude, don't you know.  And blawger Murray Newman, a former prosecutor and friend of the newly arrested prosecutor, doesn't like it.

But Murray's missing the point.  Human emotions, like schadenfreude, simply aren't relevant to our work as criminal defense lawyers,  And the presumption of innocence isn't a mantra to apply at all moments and in every context.  Defending isn't about sharing our clients' emotional baggage or necessarily believing that they didn't do what they've been charged with.  We separate out the personal reactions we might have and defend.

That's not an altogether fair summary, certainly not as eloquent as what Mark wrote.  But it'll do for my purposes here.

So, First, I don't know any of the players.  I've never met Mark or Murray or (as far as I know) the arrested prosecutor.  I don't think that matters.  Maybe the distance even helps.

Second, the presumption of innocence, insofar as it exists at all, is a legal presumption that has to do with burdens of proof at trial (and is tied to why there's a right to bail/bond in most cases).  It is dangerously naive for a criminal defense lawyer (or a lawyer engaging in criminal defense - not necessarily the same thing) to equate the presumption of legal innocence with an assumption of factual innocence.

I cringe when I hear some wheezing civil lawyer suggest that he'd happily do a bit of pro bono criminal defense just as long as he knew the defendant was factually innocent, as if it would violate some noble principle to take on the defense of one who just might have done something akin to what was charged.

Most of my clients have, in fact, done something within hailing distance of the offense charged.   I've represented the factually innocent; it's not something I much like doing.  I don't know any criminal defense lawyer who does.  And I'm damn sure I'd rather live in a society where most of the folks who are arrested did, in fact, do something like what they are charged with.  I don't know anyone who'd prefer a world in which the cops mostly arrest factually innocent people.

Third, schadenfreude may not be the noblest of sentiments, but it's pretty well ingrained in the human psyche.  It strikes me as a lousy basis for moral judgment, but that's why it's not part of the so-called criminal justice system.  Still, pretending that we're immune to it - or being offended that others feel it too - is a whole different sort of problem.  There's a reason we wonder who watches the watchers, who spies on the spies, who polices the police.  The hypocrisy of the righteous nailed violating precisely the rules they would impose on others (think Eliot Spitzer or Larry Craig or Mark Foley, just to focus on politicians and sex) gives a hint of pleasure to those who appreciate irony and have no personal stake in the case.

Fourth, and this is really the point, neither schadenfreude nor retribution serves as much of a template for how any scheme of criminal "justice" should be employed.

I understand the desire for retribution.  I wrote before about being a crime victim.  I expressed my personal desire then.

And I'd like to see the bastard who did this spend a few years behind bars doing very hard time in the company of folks who are eager, willing, and able to inflict maximum pain and humiliation on him.

I have friends who've been raped, who've been sexually abused by family members, who've been victims of burglary and robbery.  I've known a couple of people who were murdered.  I get it why Michael Dukakis gave perhaps the worst presidential debate answer of all time to Bernard Shaw's question about the hypothetical rape and murder of Kitty Dukakis.

But I also get it that his answer was exactly right in substance.  The law is at its worst when it tries to satisfy our visceral reactions or our fears.  Megan's Law, the Adam Walsh Act, the death penalty, LWOP for kids.  Prohibition.  Censorship. Scope or grope.  Much as we might delude ourselves into believing otherwise, these don't make us safer.  They sure as hell don't make us more free.

We do what we do, we who are criminal defense lawyers, not because we don't have human emotions - fear, love, schadenfreude - and not because we believe that everyone charged with a crime is an innocent victim of police error (intentional or reckless or negligent or whatever).  We do what we do in spite of those things.

I wouldn't defend the guy who broke into my car (aside from that whole thing about being a witness against my client) precisely because I couldn't set my own feelings aside.  Beyond that, setting them aside is what we do.

If we can't do that, we're in the wrong business.

If we don't understand that, we may defend the criminally accused, but we're not criminal defense lawyers.

 

Over at 18

Unless you live in a cave, you know the press version of what happened:  Rutgers University student and accomplished violinist Tyler Clementi committed suicide by jumping off the George Washington Bridge after his roommate, Dharum Ravi, and another classmate, Molly Wei, secretly secretly recorded him engaged in a homosexual encounter and put the video on the internet.  Ravi and Wei have each been charged with multiple counts of invasion of privacy and face at least the theoretical prospect of spending years in prison.  All three were 18 years old.

Tyler Clementi, Dharum Ravi, Molly Wei

I call that "the press version" of what happened because I don't actually know what occurred.  Neither do you.  I have no particular reason to think that the events as reported are not true, but I've seen even good reporters get the facts dramatically wrong often enough - especially in sensationalist, attention-grabbing stories like this - that I'm always wary.  More than that, though, the press version, even if perfectly accurate, is incomplete. 

Why did Ravi and Wei use the webcam and then broadcast the video?  What drove them to it?  What, if anything, did they hope to achieve?  Were they motivated by hatred of Clementi?  Because they thought he was gay?  Because he was a violinist?  Because he snored?  Was it just a prank?  Because it was sex?  Because it was gay sex?  Because the guy he was with was someone they hated?  Or lusted after?  Or told a bad joke at dinner the night before?

And what of Clementi?  Why did he jump?  Because he's gay?  Because he's not?  Because he isn't sure?  Because he was embarrassed by the particular guy he was with?  Because the camera angle was tough?  Because other people were making fun of him?  Because they weren't? For reasons altogether unrelated to the video but coincident in timing?

There are lots of other questions I could add, but I'm alread being a whole lot more flip about this than I intend, so I won't.  Besides, I'm getting sidetracked by the questions, which only deal, after all, with personal motivation.  See, personal motivation, the reasons why they each did what they did, that's only part of the story, too.

Here's another part: We live in a world of surveillance.  There are cameras on busy street corners, cameras in parking lots.  You're photographed at the bank and the post office and when you're in WalMart.  At the bus station and in the subway.  Cameras record your license when you pass through a toll booth.  Other cameras are finding out if you're running a red light or speeding.  There's a camera on the tip of someone's shoe or the end of his cane taking pictures up your dress.  There are cameras recording what goes on in public restrooms (yep, legal ones).  

And we (that's a societal "we"; I'm not talking about you and me, though maybe I'm talking about you) live for it.  Reality TV?  You bet.  Take, for instance, Apprentice contestant and now-former Brooklyn Assistant District Attorney Mahsa Saeidi-Azcuy.  Here's what NBC has to say about her.

Mahsa, 29 (Brooklyn, New York), works as an Assistant District Attorney in Brooklyn, New York, and is the host of two web shows on the side. Dealing with the financial pressures of being the sole breadwinner in her family, Mahsa has gained personal strength in this economic downturn. Before receiving her J.D. at Brooklyn Law School, Mahsa studied biology at the University of Virginia, and film at the New York Film Academy. She passionately fights to promote justice, and is obsessed with beauty, hair and style secrets.

This is not someone who's shy about being a public person.  But it's not just her.  After all, people put their own videos on YouTube. It seems as if everyone (except your humble author) is on facebook, and twitter.  Depending on the study, somewhere between 10 and 30 percent of teenagers have taken pictures of themselves at least partially nude and sent them off over their phones and computers to friends and even strangers.  And even I've got this blog.

So we live in this world where we're all on stage all the time.  We encourage that sort of thing.  And then marvel that someone takes a picture or a video and posts it online for the world to see.

But if we live in a world where everyone's private life is up for grabs, we also live in a world that is too often horrified by homosexuality.  Don't Ask, Don't Tell (and as someone recently wondered, has anyone ever been forced from the military for asking?).  Same sex marriage?  Fred Phelps and his venom spewing family from Westboro Baptist Church will be in the Supreme Court next week arguing that they have a First Amendment protected right to use the funerals of military personnel to attack support for gay rights.  (Disclosure, I represented Shirley Phelps-Roper in her partly-successful challenge to Ohio's prohibition on protests near funerals.)

It's hard to be a teenager.  It's harder still to be a teenager struggling with, or even discovering and reveling in your sexuality.  Harder still to be a teenager struggling with (or discovering and reveling in) you sexuality whose private struggles and (or) discovery are made public.

And yet, who could predict, if all of the above, that Tyler Clementi would take his life?  Even if Ravi and Wei wanted to embarrass him.  Even if they loathed him for being gay.  Even if it was something more than an offensive, ill-conceived, and frankly stupid prank gone bad.  And certainly if it was not.

There's so much more than what they did (if they did) to cause what he did (assuming he did).

Because there's plenty of blame to go around.  And Ravi and Wei, if they deserve any of it, have a wide array of others they can also point to.  If Clementi killed himself because video of him engaged in gay sex was made public, we (that's the societal we, again, not the personal one) have more than our share of blame.  To slough it all off on Ravi and Wei . . . we're letting ourselves off the hook way too easily.

One of the subjects I keep returning to on this blog is that criminal law isn't about righting personal offense.  Insofar as the law is interested in personal offense, it's tort law that shows that interest.  Criminal law is, as I've said repeatedly, about the harm done to the social fabric, to the body politic by criminal acts.

Tyler Clementi is dead.  If someone must pay, that's what torts is for.  And there's plenty of liability (not all of it legal liability, though) to go around.  But crimes?  Should Ravi or Wei really spend years in prison for capturing and showing, all without permission, Clementi having sex?  If they did it, it's wrong.  But years in prison?

Stop the Presses

Here's a sentence I never thought I'd type:  Bill Otis is right.  Not about everything, but still, he's right.

In it's editorial today bemoaning the fact that the Justice Department couldn't find a crime with which to charge Tom DeLay (but praising Congress for making some marginal strides toward cleaning up its own mess), the NY Times offered this.

But many of Mr. DeLay’s actions remain legal only because lawmakers have chosen not to criminalize them.

Otis called that a "howler," and while I'm not certain about the characterization, the Times' statement is both loaded and stupid.  Loaded because it suggests that DeLay's behavior should be criminal.  Stupid because, as Otis explains,

Actions are legal unless they're made illegal!!

(That accurate. Otis really did put two exclamation points at the end of that sentence.)

Yep.

In an earlier post today, I sad that Shannon Williams was charged with serious federal crimes - conspiracy to traffic in millions of dollars worth of marijuana and laundering the proceeds of that trafficking.  John Kindley, in his righteous libertarian mode, added a comment that they weren't crimes at all.  I said that of course they were.  Crimes are, by definition, things that have been made illegal by whatever body dictates such things in a given society.

Kindley was confusing crimes (a purely legal concept) with wrongs (a philosphical/moral concept).  Lots of things are criminal that you (whoever you are) may not think wrong.  Lots of things (you, whoever you are) would think wrong but are not criminal.  

Let the Times be honest and say it thinks Tom DeLay a malevolent and corrupt SOB.  If he's immoral, call him on it.  But don't pretend that he's somehow the beneficiary of a loophole in the law.  We, through our elected representatives, found something that we decided against criminalizing.  Even if it's wrong.

Whatever you think of Tom DeLay, the fact that there's some non-criminal activity left out there is something to celebrate, not condemn.

As for Bill Otis?  Even a stopped clock is right twice a day.

A Constitution for Me, But Not for Thee

Now that they've announced plans to try Khalid Shaikh Mohammed and four other 9-11 suspects from Gitmo on criminal charges in a New York federal court (but to try five others before military tribunals, about which more later), the forces of fear and hate are gathering.

There's Texas Senator John Cornyn, formerly a trial judge and member of the Texas Supreme Court who's supposed to believe in and have actually applied the Constitution, explaining that mass murderers don't deserve criminal trials and that since the accused are guilty, there's really no point to it except "political ideology."

These terrorists planned and executed the mass murder of thousands of innocent Americans. Treating them like common criminals is unconscionable.

The attacks of September 11th were an act of war. Reverting to a pre-9/11 approach to fighting terrorism and bringing these dangerous individuals onto U.S. soil needlessly compromises the safety of all Americans. Putting political ideology ahead of the safety of the American people just to fulfill an ill-conceived campaign promise is irresponsible.

There's the master of personal integrity (don't carp; it's irony) Joe Lieberman, a graduate of Yale College and Yale Law School (does he support his alma mater press's decision to remove the images of Muhammad from the book about the effect of those images?) who's also already determined guilt, but that's OK because we're talking about "war criminals" who don't have that presumption of innocence because they're not citizens. Per CNN:

The September 11 terrorists "are war criminals, not common criminals," he argued. They are "not American citizens entitled to all the constitutional rights American citizens have in our federal courts."

OK, so Lieberman believes only citizens have (or should have) constitutional rights. It's an interesting idea that has no legal support, but then he's just a lawyer and senator so what does he know?

The truth, of course, is that it isn't about constitutional protections at all. No more than it's about safety or about the fear that somehow Mr. Mohammed and the others will be able to "rally their followers" (that's Joe, again) from within the federal court.

Scott Greenfield rightly explained that it's all bull, a political smokescreen blown by people who don't really believe in the Constitution - at least not ours - when it's inconvenient.

Don't blame Cornyn and Lieberman for seizing the opportunity, but question why anyone would take them seriously. For better of worse, the United States has developed a methodology for determining whether anyone who has committed an offense against our nation. Theoretically, this methodology comports with the demands of the Constitution, the fundamental framework for the operation of our government and its assertion of authority over others. These Senators took an oath to uphold this Constitution.

Yet they jump through hoops, blurt out inflammatory claims as if our system only applies to "common criminals," and seek to delude the public with false claims that the system upon which American justice is grounded is suddenly incapable of dealing with an incoming flight from Gitmo? They suggest that there must be another secret America, where trials are conducted in secret to protect our ears from the evils of torture and our people from the threat of still more jihadist bombers?

Here's a newsflash. We already know about the waterboarding. It's been in all the papers. We know that KSM was subject to waterboarding 183 times. That's old news, and the disclosure at trial isn't going to surprise anyone.

Here's another newsflash. If the jihadists want to blow up a building to show us what they think of our system, our "freedoms", there are plenty around. We've got a country filled with big building built from Indiana limestone, and even if KSM is tried in a newly built courtroom on the Island of Cuba, they can still blow one up in Nebraska and capture our attention.

About the only one who's being honest is Kent Scheidegger who admits it's about wanting to kill.

A life sentence for KSM would be a travesty of mammoth proportions. It's bad enough that we have Charles Manson and his classmates of the Class of '72 grinning at us from their inadequate punishment, but to have this killer of thousands do so is close to unthinkable.
. . .
But isn't death so obviously the right punishment for KSM that we don't need to worry about that? No. Although people so adamantly against the death penalty that they would vote against it in every case are supposed to be screened off the jury, some simply lie when questioned about their attitudes.

[That last is an interesting question. Who lies more to get on capital juries: Abolitionist types who want to be on the jury so that they can prevent an execution or pro-death types who want to be on the jury so they can ensure one? Peremptory challenges exist, in part, to help get both sets of liars off the jury. On my side of the aisle, the belief is that the killers lie and the abolitionists tell the truth. If there are actually meaningful studies that try to answer the question, I haven't seen them. End of digression.]

It's true, of course, that most capital prosecutions end in life sentences. Scheidegger thinks they shouldn't, and that they do only because the system doesn't work as it should. He's open about that, and doesn't shy away from it. (He actually includes a list in his post of several men who got life sentences but should, he believes, have gotten death.) It's not about the criminal for him, not about legal niceties like individualized determinations and mitigation.

You did a bad thing. You die.

There's a simplicity to that, a symmetry, many find pleasing. I don't share it, but I understand it. Except it's not our system. We chose, over 200 years ago, a system that says even bad guys get treated well. Some idea of equivalence sets a maximum. It never sets a minimum. And everyone gets treated fairly - not just those who might be innocent.

Hell, it's not even clear innocence is relevant to the law, let alone to the Constitution. The rights attach regardless. The system is ours because we're better than to not have it. And if you want the system, well then, you want some killers not to fry. Even if you want them all to fry.

And see, here's the thing. Those jurors who couldn't unanimously agree on death? The ones you think are dishonest or chickenshit or would-be terrorists or who-knows-what? Yeah, those of your peers? Maybe they're right. Maybe the system was working exactly the way it should when Zacarias Moussaoui got life instead of death, even if Kent Scheidegger thinks it's obvious he should have been killed.

And maybe the real danger to the system isn't that Khalid Shaikh Mohammed won't get death but that five other guys from Gitmo won't get real trials at all. Because Eric Holder's comfortable enough with the odds of at least getting Mohammed convicted, but the guys he's not sure about - they get a system with lower standards.

See, he and his boss, they believe in the Constitution a little. Unlike Bush and Ashcroft and Gonzalez and Mukasey and Cheney and John Yoo and the rest of the gang of however many they think it's OK to actually provide constitutional rights sometimes, when you're sure enough of what the outcome will be. But ultimately, they're with Cornyn and Lieberman. When it gets dicey, go with the tribunals. Better to get a conviction and a death sentence than to honor our system.

Next up, Dr. Hasan.