207. Hot buttons
It's a custom of the Supreme Court to kick off the term with unanimous reversals of dishonest Ninth Circuit decisions. Here (and here, and here) are some selections from previous years. (The Sixth Circuit gets unanimously reversed nearly as often, but with much less publicity - but that's another story post.) This year, as the December days kept getting shorter, I began to worry that that young whippersnapper Roberts was going to break with tradition. But my curmudgeonly fears were laid to rest earlier this week when the Supreme Court decided Carey v. Musladin on a 9-0 vote.
Way back in May, 1994, in San Jose, Mr. Musladin came to his house belonging to his estranged wife's mother to pick up his 3-year-old son for a scheduled visit. He brought a gun with him. The estranged wife was at the house with her new fiance, Tom Studer. See any potential for conflict there?
Musladin knocked down his wife, then pulled out the gun. The wife and Studer scrambled back to the house and Musladin fired, hitting Studer in the back. Studer crawled into the garage, attempting to get beneath a car. Musladin followed him and shot him in the head, killing him.
Musladin didn't deny any of that, but claimed he thought Studer and his wife's brother were attacking him with a gun and a machete (usually people faking a self-defense just claim to have seen "something 'metallic' in [the dead man]'s hand", but Musladin was very specific that the family came after him with a big ol' jungle-hacker). You can find a fuller statement of the facts in the dissent to the Ninth Circuit's original panel decision.
On the first day of Musladin's trial, three members of Studer's family wore buttons with a picture of him. Here's his parents holding a larger-sized copy of the very same photo. There were no words on the buttons, simply the picture: a photograph of a young man.
Studer's parents say that three family members wore the buttons on the first day of trial, and that the buttons were two inches wide. Make the OK sign with your thumb and middle finger and you'll have an idea of the buttons' size. Here's a picture.
Musladin's defense attorney asked the judge to tell the three family members to remove the buttons, but the judge said no, and the lawyer let it go, not getting any but the vaguest information about them into the record. As Justice Thomas's opinion for the Supreme Court reveals, the Ninth Circuit knew next to nothing about the matter it decided:
The record contains little concrete information about the buttons. The buttons were apparently two to four inches in diameter and displayed only a photograph of Studer. It is not clear how many family members wore the buttons or how many days of the trial they wore them.
Musladin, naturally enough, disliked being in prison for killing someone who self-evidently deserved to die - after all, Studer stole his woman. Eleven years after the murder, ten years after his conviction, he managed to convince a judge that those buttons made his trial unfair.
The Ninth Circuit found itself asked to decide which was worse: (1) shooting a wounded man in the head; or (2) being tried by a jury that might possibly have observed three members of the dead man's family wearing two-inch buttons with a picture that might theoretically be discernible from the jury box by a juror with exceptionally sharp eyesight or the aid of binoculars. Naturally, the Ninth Circuit plumped for door # 2.
(Of course, the court didn't admit in so many words that it was deciding which was worse, but it did explicitly rule that the one infraction must be punished before you can even consider punishing the other - and what else can that mean except that the first is worse than the second?)
The fact that the Ninth Circuit could reach that result only by violating the very statute that gave it authority to review the state court opinion was no impediment, so long as the case remained on the west coast. But then it traveled east. Not one justice could be found to defend a line of reasoning that commanded the respect of a majority of the Ninth Circuit's judges.
(Here's Dahlia Lithwick's report of the oral argument. She's obviously much more sympathetic to Mr. Musladin than I am - note her description of the way in which Musladin followed the crawling Studer into the garage before executing him. If her description were the full story, then he didn't commit first degree murder at all.)
The case brings together a number of the threads that run through the modern American criminal justice system, such as:
1. The people whose rights are being decided should not be given notice or an opportunity to be heard. The gist of the Ninth Circuit's ruling was that, by stepping into a courtroom, Studer's family members surrendered their first amendment rights. (That, indeed, is what Justice Stevens came right out and said.) (See post 206.) The Studers were given no notice that their rights were being decided, and much less were they permitted to participate in the decision-making process.
2. Jurors are impressionable, overly-emotional morons who should not be permitted to decide cases, if it can be prevented. For example, the sight of a grieving parent wearing a tiny photograph of their dead child will put them in such a tizzy that they won't be able to think again for the rest of the trial.
3. Facts can be manufactured to suit any need. Such as: the 12 jurors in Musladin's trial were put into a tizzy. The Ninth Circuit had absolutely no evidence that any of the jurors even noticed the buttons, and much less that the slightest tizziness had occurred. The complete absence of evidence didn't matter: the Ninth Circuit simply pretended it existed, and that was good enough. That is, the Ninth Circuit relied on non-evidence to conclude that the jurors had done the same thing.
4. In our democracy, the people have no authority to control the administration of justice. Your beliefs, feelings and sense of justice don't count unless you are (in descending order of significance) a Supreme Court justice, a federal judge, a state court judge, a lawyer, or, in certain unusual circumstances, a party to the proceedings.
5. The trial is everything. There is no big picture. There is no reality - or no reality a judge needs to respect - outside the courtroom. That's why, 11 years after Studer's death, after Musladin's jury convicted him and the conviction was upheld on appeal, the Ninth Circuit put quotation marks around the word "'victim'" when used to describe the dead man. A person who is shot to death doesn't become a shooting victim when he's shot, but only when a judge decides to recognize that fact.
I usually don't post in response to comments because I have no desire to emulate - or even appear to be emulating - those mean-spirited professors in the New York Review of Books or The New Republic responding to letters-to-the-editor. However, Young PD's thoughtful comment to post 206 raises too many interesting topics to pass up. He or she wrote:
But if they formed a cheering section they would disrupt the trial, and that would be different. If a banner was strung across the back of the courtroom, as Justice Kennedy suggested, then obviously the courtroom staff was involved, either in hanging it or in not taking it down, and that's different again.
But if Justice Stevens is right, and spectators have no first amendment rights at all, then the judge could have prohibited Studer's family from carrying his photograph in their wallets and purses. (It's no answer to say a judge wouldn't know about concealed photographs - as everyone who has visited a courthouse in the last few years knows, non-judges have absolutely no fourth amendment rights inside a courthouse.)
Then, too, do families of murder victims really come to the courthouse to cheer on the state? I think it's always a mistake to think of crime, violence, death, justice, suffering and grief in terms of trials. The trial is an itty-bitty part of a very big thing. The victim's family doesn't attend the trial out of enthusiasm for the prosecution. (Indeed, in my experience, families are often suspicious of prosecutors, even hostile, expecting at any moment to have the rug pulled out from beneath them.)
The family attends the trial because it's one part of the worst thing that has ever happened to them. They don't want the prosecution to win; they want justice for their loved one, and peace within their own souls. The verdict is no more than a signpost along that very long road. For the lawyers and the judges, it's the destination.
That's not because we're shallow, but because we're involved in the case only through our professional lives. The deaths of strangers have very little emotional meaning to anyone, anywhere. Lawyers and judges can read about Musladin's execution of Tom Studer with the same emotion with which they - and everybody else - scan the obituary page. If you don't recognize the name, it really doesn't mean very much. Tom Studer's family can't do that.
It's not that the victim's survivors are viewing the case emotionally, while lawyers and judges are objective. Rather, the emotion experienced by the lawyers and judges is inward-directed. (Monitor your emotions as you scan the obituary page. It's not that you're emotionless, it's just that your emotions are occupied with things other than the names of dead strangers.) During the trial, it really is all about me, about the impression I'm making on the jurors, about what I need to accomplish with this witness, and what I need to do after dinner to get ready for tomorrow.
For a majority of the judges of the Ninth Circuit, Tom Studer's death was an opportunity to act out the public ceremony of self-righteous superiority while simultaneously experiencing the illicit thrill of exercising arbitrary power - apparently a mixture of speedball-like addictiveness. I imagine it's rather like the emotional experience of priests who preside over solemn mass knowing they'll be fondling the altar boy in the sacristy before the last parishioner is out the door.
This is all very different from the emotional experience of the victim's family, which is outward-directed. They're not more emotional; their emotion is more noble.
The great error of judges and lawyers - the error that I think is right at the heart of so much that has gone haywire in our system - is the solipsistic self-importance of thinking that what we do is the important thing. It's as if UPS, DHL and FedEx drivers all became convinced that the highest priority of a package-delivery service is to load the truck well. If it's not well-loaded, a proper sense of priorities requires us to unload and start all over again. As for those people who make such a big deal about wanting to receive their packages? Tell 'em to take off those damn buttons or we'll empty the truck again.
Saturday, December 16, 2006 at 03:06PM in Courtroom ethos, De-democratization, Holding reality at arm's length, Judging the judges, Judicial self-interest, Which is worse?
Reader Comments (2)
Your articulated position seems to be (and not just in this post, I should probably add), that whether Musladin had a fair trial is essentially irrelevant because the only significant question is whether he got his just desserts. That's an interesting question, perhaps, but as you know it isn't the one addressed by any reviewing court because, except when addressing sufficiency or manifest weight claims - or engaging in the mystical and solipsistic enterprise of harmless error review - that isn't their job.
Trials are, at some level, about truth. Appeals, even habeas, are ultimately about process. You don't have to like that fact. Still, it's not really fair to condemn appellate judges for evaluating process rather than truth when that's their job. (Of course, it's fair to carp when they get it wrong).
If fairness is the question, then the issue isn't whether Musladin did or did not commit any particular offense. It is, instead, whether he had a fair trial. And while the 9th Circuit may have reached too far in concluding that he had not - if the record really indicates nothing much about the buttons (not their their size, number, or effect on anyone), then it's hard to argue from the record that their consequence was an unfair trial for Musladin. But it's equally hard to argue, I think, that if the record showed that the buttons were 4 inches across, worn by a dozen family members every day, and those family members sat within a foot or so of the jury and the buttons were worn at the instance of the prosecutors (there was a case in Ohio where one of the prosecutors brought flowers and gave them to the family of the victim in the courtroom), then the buttons would likely not have had a prejudicial effect on the sentencing.
In any event, Musladin at SCOTUS was really about neither fairness nor truth. Instead it was about how far Congress has gone in restricting the ability of courts to address fairness. Has Congress said that an unfair trial due to buttons shouldn't be of concern unless the Supremes have previously addressed the wearing of buttons? That's the question the Justices answered. With varying degrees of enthusiasm, all of them said that Congress had done something very like that.
I'm not sure they read AEDPA wrong. I'm quite sure that, if they read it right, it's a shame.
This is not about "restricting the ability of courts to address fairness." Musladin had his day in the court with the primary responsibility to decide the issue, and that court decided that the buttons did not render the trial unfair. That decision, incidentally, was in accord with the overwhelming weight of authority in this country. The Ninth decided, in its usual fashion, to substitute its own idiosyncratic view of what's fair for the mainstream view of the state court. That is exactly what Congress intended to prohibit.
My brief in the case is here:
http://www.cjlf.org/briefs/Musladin.pdf