331. Judicial indiscretion

In Delaware, it's pretty big news that the state Supreme Court upheld the murder conviction of Michael Jones.  Shortly after a warrant was issued for Jones' arrest for homicide, he got into a car with a couple friends, one of them named Cedric Reinford:

While the three were in Reinford’s car, Jones killed Reinford by shooting him three times in the head. Page and Jones then dowsed Reinford and his car with gasoline and set it on fire. Afterwards, they went to Reinford’s house to steal drug money from a safe in Reinford’s home. There, Jones shot and killed Reinford’s fiancée, Maneeka Plant, and shot Reinford’s brother, Muhammad, in the face.  Muhammad miraculously survived and called 911 ...

You can see at once, can't you, why Professor Miller over at Evidence Prof Blog thinks it's such a shame that Jones' conviction was upheld?

(That's an unfair, nasty, cheap shot, of course: all professors think their subject is more important than the lives of people they don't know.  Besides, the whole point of the law of evidence is to prevent the jury from learning relevant information.  Expecting a professor of evidence to approve of a jury hearing unfiltered information is like expecting Bishop Ussher to embrace Agassiz's theory of the Ice Age.) 

(And, you know, Professor Miller might even be right, in the other-worldly terms in which right and wrong are debated in evidence classes and during bench conferences.  It's pipefitting: what flows through the pipe is beside the point.)

But what's really interesting about the case the meal the judge, Peggy Ableman, enjoyed at Feby's Fishery during the trial.   Here's a 2005 post from Crime & Federalism:

One witness said she told her husband that "she would get the last word" and that the man on trial before her "would get the death penalty." 

So much for a neutral and detached magistrate in that case. The defendant was subsequently sentenced to death.

Lawyers for the man filed a motion for a new trial claiming judicial bias. Judge Ableman would have none of it. Her recollection of the dinner conversation was that she was disappointed in the performance of defense counsel. Listen to part of her ruling:

"Defendant has not cited, nor am I aware of, any authority that would prevent a judge from telling her husband, 'An attorney has so botched the death penalty case that I am trying that I am going to be stuck with a ten-two jury vote to execute a juvenile." Temper, temper, judge.

So here we have a judge talking about an ongoing case in a public place, speaking in a loud enough voice for others around her to overhear and know exactly what she was talking about.   (Feby's website tells us the restaurant has a "full-service bar", and from the looks of it there's much service to savor.)  

We can have no doubt the incident happened: the judge admits as much  with her blame-the-lawyer defensiveness.  But, she later explained on the record, her use of profanity when describing the defense lawyer didn't mean she was biased against the defendant.  Oh, no.  Honest Injun, stack of Bibles, stick-a-needle-in-my-eye: she was expressing her bias against the prosecution:

My “animosity” toward [defense counsel], which would be more accurately termed disappointment, is not a reasonable basis for assuming I was biased against his client. The aforementioned instances . . . provide a more than reasonable basis for the Court to have become dissatisfied with the way [defense counsel] tried this case. That feeling, however, sprang from the Court’s judicial desire to ensure that Jones received a fair penalty hearing. I also had a strong personal desire to avoid a recommendation from the jury so strong that failure to issue a death sentence would appear to substitute my opinion of the juvenile death penalty for that of the law of Delaware and the conscience of the community. I did not intend to use my disappointment with [defense counsel] as an excuse to impose the death penalty regardless of Jones’ mitigating evidence. Instead, I was dissatisfied with [defense counsel] because his poor performance made it practically inevitable that the jury would strongly vote death, a recommendation that I would have probably had to follow regardless of my personal convictions.

In other words, she wanted to substitute her "opinion of the juvenile death penalty [Jones was 17 and 8 months when he murdered Reinford and Plant] for that of the law of Delaware and the conscience of the community."   She hoped and intended to do so.  But defense counsel's supposedly poor performance was going to make it politically difficult for her to get away with it.  The problem was so acute that she feared it would actually "appear" that she was doing what, in fact, she was doing.

Gee, no wonder she was upset.  Who can blame her?  No one likes to be held accountable for their choices.  I mean, go ask Michael Jones.  He suffered from appearances, too, such as the appearance that he killed the man he shot three times in the head.

And then the judge, apparently concerned that people might still take her seriously, added this:

She further defended her conversation because “it is simply too much to ask that a judge not utter a word to anyone about a case that may extend, like this one, for months, and to completely abstain from the support of family and friends when faced with difficult legal and moral decisions on matters of life and death.”

Now what, do you suppose, did she tell the jurors every evening when court recessed?   Do you suppose she gave the jurors "a general admonition that the jurors should not discuss the case with others"?  Of course she did.   All judges do.  Here's how a Hawaii judge did it when taking a 17-day break:

During your recesses from deliberations, when you are released to go home in the evening, you must not discuss this case with anyone or permit anyone to discuss the case with you. You must not read or listen to news accounts about this case, if there are any. You must not discuss this case with any person other than your fellow jurors.

So what Judge Ableman meant was that it is "simply too much" to expect a judge to conform to the same conduct demanded of jurors.  And, you know, she might be right.  Judges abuse jurors: they threaten to arrest them, then make them sit around dingy waiting rooms for hours, then hide evidence from then, even lie to them.   The nightly coerced vow of omertà might be compared to the tennis ball in the Far Side cartoon of the dentist who tells his patient: "Now open wide, Mr. Stevens ...  Just out of curiosity we're going to see if we can also cram in this tennis ball."