Crime & Federalism

Religion in the Court

While I don't think anyone has made a strong case that the five Catholic members of the Supreme Court are imposing their religion on us, I do think religion plays a role in their views.  I also think this point is banal.

Does your religion or life philosophy influence your actions in life?  We generally expect Christians to give to charity and to not adulterate.  We expect environmentalist to recycle and drive energy-efficient cars.  We hope that advocates for the common man actually, you know, advocate for the common man.

Of course, people often fail to practice what they preach.  So knowing someone's religion or worldview isn't always probative.  For example, a couple of weeks ago my dog and I were almost run over.  The driver was in a hurry and didn't seem to mind that my dog and I were in a crosswalk and that he almost killed us.  Why was the driver in such a hurry?  He had to go to church, of course! (I gave him a nice "talking to."  I bet the man who nearly killed me to arrive at church 10-seconds sooner said something like, "That kid needs Jesus!")

But "Sunday-morning" Christians are not to be lauded.  They, like liberals who cheat on their taxes and live lavish lifestyles or "environmentalists" who don't recycle, are simply people who refuse to practice what they preach.   Indeed, the very sincerity of their beliefs are rightfully doubted.  What's my point?

Isn't this discussion of whether the religion of Supreme Court justices influences their decisions nonsense?  The answer should be rather banal: Yes, if they believe what they purport to believe; though most people lack the self-discipline to remain steadfast in their beliefs.

Much bloviating to the contrary, Supreme Court justices make up the law.  Sure, they are bound by precedent and public opinion.  But these are weak binds.  Not a single Supreme Court justice has not contradicted his supposedly firmly-held beliefs.  There is a reason no law professor has ever been able to write: "A Unified Theory of Justice X's Jurisprudence."  Square pegs cannot be fit into round holes - no matter how good the hammer.

If someone believes that using drugs is immoral, then this will be reflected in his jurisprudence.  If someone believes in affirmative action as a policy matter, this will be reflected in her opinions.  And if someone believes that abortion is murder, then, of course, this will be reflected in his judicial opinions.  Again, it's utterly banal making this claim. 

Yet there are people actually arguing that the religion of a Supreme Court justice will have no view on his jurisprudence.  Members of the Supreme Court, just like the rest of us, are a hodge-podge of inconsistent views informed by religion, ethics, culture, and family upbringing.  Some, like former Justice O'Connor and Justice Kennedy, have a deeply-rooted belief that it's important to be liked by the intelligentsia.  And it showed. 

None of us can fully escape our personal views.  And when we are making up laws, the temptation to give into those views is that much stronger.  That people argue otherwise is truly baffling.

Catholic Justice?

Five members of the United States Supreme Court voted to disallow partial-birth abortions.  Those five members were Catholics.  QED, the papacy has overtaken One First Street.

But what evidence is there that the jurisprudence of the five Catholics on the bench comports with Catholic doctrine?  The recent partial-birth abortion case is but one case.  Let's look at some departures from Catholic doctrine.

The Catholic Church has long recognized a just-wage doctrine.  Under the just-wage doctrine, employers should pay their employees not simply market wages, but just wages.  Appeals to the free market, under the just-wage doctrine, is to pray before a false god.  And arguing that "just wages" is but a synonym for "market wages" is sophistry.

As The United States Conference of Catholic Bishops noted in this letter asking for an increase in the federal minimum wage (emphasis added):

Work has a special place in Catholic social thought. Work is more than just a job; it is a reflection of human dignity and a way to contribute to the common good. Most importantly, it is the ordinary way people meet their material needs and community obligations. In Catholic teaching, the principle of a just wage is integral to our understanding of human work. Wages must be adequate for workers to provide for themselves and their families in dignity.

Although no case like Lochner v. New York (which held that the law must respect markets over "just" wages) has come before him, Justice Thomas has rationally been viewed as a Justice supportive of Lochner's rationale.  He was grilled on this very issue during the confirmation hearings.  (See page 6 of this document.)  If Justice Thomas jurisprudential pen is guided by Rome, why would he support free markets over just wages? 

And in Planned Parenthood v. Casey, Justice Kennedy (a Catholic) voted to allow abortions. 

Justice Antonin Scalia is so much a fan of the death penalty that citations to specific cases would use up all the Internet's bandwidth.  Yet the Catholic Church has taken the position that the death penalty, as least as undertaken in America, is unjust.   Does anyone seriously think this has or will change Justice Scalia's viewpoint on the death penalty?  Of course not. 

Which is why the recent discussion about Catholicism and the partial-birth abortion opinion are lame.  If critics want to make the case that Catholic members of the Supreme Court are imposing their religion on us, they need to make a much stronger case.

Hand Grenades, Anyone?

There's a poster on display in the waiting area of the State's Attorneys' Office in the New Britain Superior Court in Connecticut.  It portrays the gradual transformation of the world "violence" into one of its anagrams -- "love nice." So why is there also a hand grenade on display in the waiting area? Is that loving nice, too?

I received a facsimile from a lawyer over the weekend asking me to write about this. The lawyer is troubled. The grenade is obviously a fake, and it is anchored on a plaque that reads: "Complaint Dept." and "Take a Number."

I've seen both the poster and the plaque many times. Frankly, I am too dense a block of wood to have noticed the dissonance.  But the lawyer wonders whether the State's Attorneys' Office is sending a mixed message. "New Britain has a large Spanish speaking population that does not read English well.... If a picture is worth a thousand words, what is the worth and message of a hand grenade?," the facsimile reads. The writer also wonders whether the device intimidates folks.

Again, I am a block of wood. I don't initimate easily enough -- more testosterone than brains most days.

But the writer does have a point. In the wake of the slaughter at Virginia Tech, displaying a fake hand grenade in a courthouse seems an awful lot like encouraging people to smoke while pumping gas. Get rid of the hand grenade.

A Temper Lost

I shouldn't have snapped, but when the prosecutor called my client a "scum bag," I saw red. Initially, I let the remark pass, but as the pre-trial continued I got more and more angry. I finally lost my temper. "You want to step outside and say that again?" I asked the prosecutor. I made sure my meaning was clear by asking my adversary to take a walk out to the parking lot.

I was spoiling for a fist fight. Not exactly a stellar day in my legal career.

The client's issues are challenging. He is an illegal immigrant, having snuck back into the country after mulitple deportations. He was arrested as part of a controlled drug buy. When pinched, he gave a false name. An officer recognized him, and it turns out the client had a dozen or so pending cases, ranging in seriousness from threatening, to failure to appear, to being a felon in possession of a firearm. The feds are preparing to charge him criminally for having snuck back into the country.

But a scum bag? He's near 50 and very ill. In the time I have had to get to know him, I've come to understand his perspective on the world. He may live outside the law, but the world he lives in is nonetheless principled. He loves and is loved, and he cares for his loved ones.

Criminal law is trench warfare. But lawyers are mere ambassadors for the parties they represent. I sometimes pity prosecutors for not having a client they can get to know. I wonder whether they would come to regard with horror some of the sentences they seek if they represented flesh and blood clients.

My client's future is not bright. It is unclear how much good I can do him. But I can fight for him. And I can take umbrage when he is called names by a state official charged with doing justice.

I was lucky not to have been held in contempt this morning. Even more lucky is the fact that we did not take that trip to a parking lot. I'm not sure how I would have fared fist to fist, but I know the conduct would have amounted to a crime.

I've since apologized to both the prosecutor and the judge for seeking to pick a fist fght in the judge's chambers. I'll save my fighting for the trial, and do it in the forms permitted by law.

Speculation, Fear, Reality, and Guns

I generally avoid blogging political topics, but this post at a legal blog is so asinine that it deserves highlighting:

In the aftermath of the Virginia Tech tragedy, the issue of gun control is being kicked around.

At the University of Utah, students with concealed-weapons permits are allowed to carry their guns around campus.

Though the context is surely different, the renewed debate about whether students should be allowed to arm themselves took me back to the tragic killing of 4 Kent State students in 1971. The students were protesting America's invasion of Cambodia. The shooters were Ohio National Guardsmen. The events at Kent State marked the end of the rebellious '60s and the restoration of law and order.

But imagine a replay of Kent State today at a state university where carrying concealed weapons is legal.

Hundreds of students gathered to protest the president's Iraq policy. Hundreds of National Guardsmen with M-16 pointed at the students.

Because the M-16 can be fired with as little as 2.2 pounds of pressure, a sympathetic response by one guardsman because his left arm tired could trigger his weapon. By comparison, a Remington .12 gauge pump-action shotgun requires about 3.5 pounds of pressure on the trigger to fire a shell.

And then all hell would literally break loose. We'd have a wild west shootout.

Maybe Kent State could never happen again. But I'm not so sanguine.

To sum up the post: Because a "wild west shootout" could occur, we should presumably not allow students to carry guns.  While there are very strong arguments against arming students, this sort of fear mongering is embarrassing to respectable debate.

First the premise is off.  After all, the students at Kent State were murdered.  The National Guardsmen at Kent State were, if anything, just one rung above the shooter at Virginia Tech.  If those students had been armed, maybe (just maybe), the National Guardsmen would not have murdered them.  Maybe, realizing they faced an armed audience, reason rather than weapons would have been employed.  In any event, why would preventing another 4 dead in Ohio be a bad thing? 

Second, just because we can conceive of something horrible does not mean that the horrible thing is likely to occur.  Every night before falling asleep I conceive the idea that a serial killer is going to put sleeping gas under my door before capturing me.  (Yes, really.)  While it's possible this could happen to me, it's not likely - at all.  So while I lock up every night before bed, I don't sleep in a "safe room" or stay up all night in preparation for a battle with the serial killer.  We have to base our decisions on what is likely to happen.  We have to balance the risks and rewards.  (Installing good locks is sensible.  Installing a ventilation system to prevent the sleeping gas from effecting me is not so sensible.)

It's also not likely that arming students would lead to a "wild west shootout."  Why not?  Well, students in many places have been armed.  Thus far, there has never been a "wild west shootout" involving criminals and armed citizens.  If we are to base policy on something, shouldn't it be based on what is actually happening rather than what could happen? 

There are, of course, some notable exceptions.  Just because a terrorist hasn't ever detonated a nuclear bomb doesn't mean we should not prepare for such an attack.  But we do know that there are a) terrorists out there who b) are searching new and unconventional ways to destroy the United States.  But where are these students who want to have "wild west shootouts"?   In light of the fact that there are 250 million guns in the country, why haven't' more law-abiding Americans lived their dream of the O.K. Corral?

Third, the actual facts go against the "wild west shootout" argument.  As one blog notes, several mass murderers had their blood sport shortened by armed citizens.  In each instance, a killer who had every intention of continuing his killing spree was killed or subdued before killing another innocent person.

So on one hand, there has never been a "wild west shootout" the poster wants us to fear.  On the other hand, armed students have stopped mass murderers dead in their tracks.  Based on that record, is it more sensible to prevent students from being armed?

Again, there are good arguments for reasonable gun control.  There are good arguments against arming students.  But the post highlighted does nothing to further the discussion.  It's an example of fear mongering - not reasonable discourse.

Letting Prosecutors Think For You

Early on in the Duke lacrosse case, bloggers and journalists had to make an important decision: Do you identify the accuser?  The Associated Press' position is to never identify an accuser in a sexual assault case on the theory that it would deter other victims from coming forward.  Although the AP supposedly respects the presumption of innocence, they nonetheless identify the defendants.  This has always seemed backwards: By not identifying the accuser, you are presuming she was a victim: You are, in a word, presuming guilt.  But that is an argument for a different day.  I'd like to focus on a more specific issue.

Why did bloggers like K.C. Johnson and other media outlets only identify the Duke accuser after Roy Cooper had declared the Duke defendants innocent?  (It's worth noting, of course, that the AP will still not identify the false accuser.)  K.C. Johnson, a trained historian, author, and professor knew as much about the Duke case as almost anyone else involved.  (The defense lawyers would have known more, of course, due to their access to the defendants)  Why would Johnson wait until a prosecutor cleared the Duke defendants before identify the Duke accuser as a false accuser?  He did not need Roy Cooper to tell him the facts of the case.  The attitude, sadly, is part of a broader problem: People let prosecutors think for them.

If someone is accused of a crime, people assume he is guilty - or at least morally blameworthy.  "Where there is smoke, there is fire."  Yet people are charged with crimes based on the view of a prosecutor that a defendant is guilty.  That is all.

Responsible people need to stop relying on the assertions of essentially political animals.  If they want to identify an accuser, they should.  If they don't, they shouldn't.  Yet their decision should be based on their own understanding of the facts.

Roy Cooper's statement didn't change the fact that the Duke defendants were and are innocent.  His statement and assessment of the case did not change the fact that the complaining in this case bore false witness.  Prosecutor's words are not magic.  Their brains do not shape reality.  Truth is truth.

In the future, informed people should have the courage to trust themselves and not wait on someone like Roy Cooper to tell them what to think.

It's a Miracle!

Law.com has an interesting story involving this question: When you are defense counsel in a civil case who discovers the plaintiff's claim is fraudulent, when do you have a duty to disclose this to the trial court?  Here are the facts:  In April 2005, lawyers defending a medical malpractice case obtained video evidence that a woman claiming to have been paralyzed through a doctor's negligence, could walk.  It wasn't until January 2007 that they disclosed this evidence to the trial court.

The plaintiff's lawyers have cried foul, noting:

"If they had shown that videotape to us, we wouldn't have spent another 21 months of litigation time, cost, stress to the doctors involved and waste of the court's time," [John K.] Lawlor said. "I don't have any clue what they were thinking or why anybody would go forward other than to try to set a trap for my law firm."

Is Mr. Lawlor's protest genuine? 

[After learning of the fraud] Lawlor and his law firm did not withdraw from the case or ask that the case be dismissed. Lawlor unsuccessfully argued against the defense motion to dismiss based on fraud. He also filed errata sheets to Davis-Johnson's two depositions seeking to change her testimony.

What would you have done?  So long as the defense lawyers disclosed their finding to the client (thus allowing the client to make to decision whether to incur further legal fees defending the action), I think they made the right choice.  By sitting on the evidence for a while, they prevented the plaintiffs from explaining it away.

Report On Death Involving Second Circuit Judge

Last winter, John M. Walker, Jr., a senior judge on the United States Court of Appeals for the Second Circuit, was involved in a vehicular homicide. The man killed was a popular New Haven policeman who was on duty at the time.

The case caused a stir in Connecticut, where some thought that Walker was not charged with a crime because he was a judge. Others suspected that he was not charged because he is a cousin of President Bush.

In fact, the accident was just that, and Judge Walker engaged in no misconduct. Here's a recap of the accident as reported by today's Hartford Courant. Here Come The Judge

Connecticut Lawmakers Overreach

I just don't get it. The judiciary has all but rolled over and died. Lawmakers are now aching to call the shots on court rulemaking, as though we need more hooplah from the part-timers over in the legislature. Have we not already learned that the legislature is the most dangerous branch of government?

Perhaps former Supreme Court Chief Justice William "Taco" Sullivan was right, lawmakers really can't be trusted to use judgment. They are prone to overreact and seek political advantage over trifles.

Sullivan's decision to delay publication of a controversial Supreme Court decision is by now the stuff of legend. He wanted to help along the nomination of Associate Justice Peter Zarella. Both Sullivan and Zarella had taken a position in the decision Sullivan thought might offend lawmakers. So he sat on the case for awhile.Then the law of unintended consequences kicked in.

Fellow justices tattled to the legislature. They probably expected some clucking and cooing by the Judiciary Committee. What they got was a holy war. The co-chairs of the committee, state Rep. Michael Lawlor and state Sen. Andrew McDonald, are now trying to run the courts. Can't someone tell these two to sit back down and shut up?

Lawlor scares me. He strikes me a Huey Long in the making. He's tapped into some populist vein and he's milking it for all it is worth.

Not long ago, I represented a young man arrested after taking photographs of Gov. Jodi Rell. His name is Ken Krayeske. Within a day or so of his arrest, lawmakers got their hands on a police report that mentioned Krayeske's name was on a list of potential threats to the governor.

Lawlor took it upon himself to call the State's Attorney's office in Hartford to say that the Krayeske case should be dropped. When I heard about this, I was less than pleased. It appeared to me there was no case against Krayeske. But it also seemed obvious that when the legislature calls the Executive Branch on such a matter, lines were being crossed.

To my naive way of thinking, Lawlor's call was far more offensive than Sullivan's pocket pool with a decision. Why no prosecution of Lawlor for obstruction of justice? Why not hearings, replete with subpoenas and threats of lost pensions?

In part that is because the different branches of government have different functions. It takes a case or controversy to engage a court's attention. The Judicial Branch does not have the equivalent of a Judiciary Committee sitting at will with a mandate as broad as the imagination of the lawmakers presiding over it.

We have lifetime appointment of federal judges to insulate them from political pressures. Jefferson, Hamilton, Madison might well look at the state's Judiciary Committee as little more than low-rent thugs bent on self-aggrandizement.

I don't comprehend why so few see the proposal to turn rulemaking power for the courts over to lawmakers as something akin to a constitutional crisis. It is akin to calling for the popular election of judges.

I keep thinking that if Lawlor called the prosecutor on the Krayeske case, he must be making other calls. His tentacles are reaching into places they do not belong.

Giving rulemaking power to the legislature would be a disaster. In an uncanny way, Taco was right: You really can't trust what the part-timers will do once their passions are aflame. •

Reprinted courtesy of the Connecticut Law Tribune.

Day Three: Georgetown

Erwin Chemerinsky mesmerized the conference with his brilliant review of Supreme Court decisions of interest to 1983 practitioners. For 90 minutes, he spoke without notes, diseecting each case in terms of voting blocs and relation to precedent. He did it all with child-look good humor and a sense of wonder.

Herewith the highlights of his presentation:

The Court decided fewer cases in the most recent term than in any term in more than a century. Sixty-nine cases resulted in decision last year. Chemerinsky expects even fewer this year. He wonders whether this is a function of the new justices' learning to work together before fully hitting stride.

As for the cases decided by the Court, Chemerinsky regards this not as the Roberts' Court, but as the Kennedy Court. Kennedy voted with a 5-4 majoriy 8 times in the past year; Kennedy was the only justice to be in the majority all eight times. Savvy practitioners know that Kennedy's vote is the swing vote.

In First Amendment cases, Chemerinsky shared the gloom of J. Michael McGuinness, an employment lawyer from Elizabethtown, North Carolina, who also spoke at the conference. Both view almost all speech by public employees made in the course of employment as no longer protected in the wake of Garcetti iv. Cabellos, 126 S.Ct. 1951 (2006). However, the at least one case in the Second Circuit challenges that doom and gloom: Barclay v. Hughes, et al., recently survived summary judgment in the District of Connecticut. In that case, the plaintiff was a nurse at a psyhiatric hospital who complained about imporper restraints and contact with patients. Thereafter, she was disciplined. It is a case litigated by my firm and is expected to go to trial this summer.

The case of Morse v. Frederick, as yet undecided, could shed new light on qualified immunity. In this case, a student was suspended for posting a sign that read "Bong Hits 4 Jesus" along a parade route. Chemerinsky wonders whether this case will yield a more aggressive qualified immunity standard which encourages courts to decide the immunity issues without reaching the underlying merits of the claims.

An underreported case is Wallace v. Kato, 127 S.Ct. 1091 (2007), holding that the statute of limitations in a false arrest claim accrues at the time of the arrest, and not at the time the case is disposed of. This rule has not yet been applied to malicious prosecution claims and most likely cannot be as a key element of a malicious prosecution is favorable termination.

In general, I've never been much on going to CLE events. What law I know I learned in the trenches. The Georgetown seminar changed my perspective. It even made me less cynical about law professors. It was nice to see areas of law in which I practice discussed in clear, doctrinal terms, uncluttered by the often irrational demands of clients.

I am not looking for a CLE seminar on the federal Sentencing Guidelines. The Guidelines may not be mandatory any longer, but they still set the terms of sentencing in federal criminal cases.