284. Baked fairness

However much the overly-elaborated Freudian edifice revealed about Freud himself, his technique of free association remains one of the most revealing windows into the human soul.  For example, if I were to say the phrase "3-year-old girl with gonorrhea," someone outside the legal system might think: "heartbreaking - family dysfunction - years of therapy - what happens when she grows up and has kids of her own?" 

A prosecutor might think: "emotionally-wrenching - system rigged against the victim."  A Wall Street Journal editorial page writer would think: "McMartin Preschool - hysteria - intrusive nanny state - out-of-control feminists - must recycle the same column again."

A justice of the Kansas Supreme Court, by contrast, would think: "eating cake."

See, that's what makes judges different from you and me.  Some people think in images, some people think in words, some people allow reflexive ideology to substitute for thinking, and a select minority think in terms of festive desserts.  Only the latter can ascend to the highest rung of the judicial hierarchy in Kansas.

(I've been told that within the concrete-bunker walls of Topeka's Judicial Center, medical malpractice is lime Jell-O with embedded fruit cocktail, but I haven't been able to confirm that.)

I'm not kidding about the cake.  Ridiculing, but not kidding.  The Kansas Supreme Court really and truly did issue an opinion last week in which the justices compared prosecuting the case of a three-year old with gonorrhea to the eating of cake.

Without a dissent.  All seven of the justices thought that was a perfectly reasonable thing to put in a published opinion.

Of course, in the inconceivable event that the justices were asked to explain themselves, they would say they were just using one of those clichés, like "the exception swallowing the rule," with which judges assure us that their mental slot cars remain on the track.  

The issue in front of the Kansas court was whether hearsay evidence should be admitted against the man who, the jury found beyond a reasonable doubt, was the source of the little girl's gonorrhea.  "Hearsay" means essentially everything you know.  How do you know your own name and address?  Somebody told you.  How did the justices of the Kansas Supreme Court find out they had been appointed?  Somebody told them.  How do you know I wrote those words?  You just read them.

In fact, judges theoretically decide all their cases on the basis of nothing but hearsay, which they call "authority" or "precedent."  When judges want to compliment a colleague they credit the colleague with writing  a "scholarly" opinion, which means an opinion stuffed like a French goose with hearsay in the form of quotations from other, previous cases.

Yet every American jurisdiction prohibits juries from hearing "hearsay."  Because the prohibition would be so silly if taken literally, lawyers and judges tacitly agree that most forms of hearsay (names and addresses, job titles, and so on) don't count, and of the few items remaining, most are admissible under one of literally dozens of exceptions.  The hearsay rule might be compared to a shower curtain made out of cheesecloth - it's a barrier, all right, but it doesn't keep your bathroom floor dry.

Kansas, for instance, recognizes 25 official exceptions to its hearsay rule, some of which have subparts and one of which includes "statements admissible on ground of necessity generally", which in technical legal parlance is called a "gaping loophole."

In the case of the three-year old with gonorrhea, the Kansas Supreme Court ruled that the jury should have been prohibited from hearing some hearsay.  (The precise legal issue doesn't matter, although the Kansas court managed to get it preposterously wrong.  The two things I would have thought no one could possibly believe about Justice Scalia were that he was unsure about his meaning or shy about expressing it.  But I would have been wrong - the Kansas justices evidently believe one or the other.)

All you need to know is that the court rejected an argument to the contrary made in a friend-of-the-court brief by the American Prosecutors Research Institute.  Here's the cake quote from last week's opinion:

We also observe that under the Institute's argument, the prosecution is allowed to have its cake and eat it too: The victim is too young to be competent to testify, as the district court found with 3-year-old F.J.I., but not too young to have her statement placed in evidence by the State with no attendant defense right to confront and cross-examine.

Exactly -- precisely -- the same point could be made about almost all hearsay ever admitted at any trial, civil or criminal.  That's the thing about hearsay: it's a statement made outside of court.  Except when it's used to attack or bolster the credibility of a witness, or jog the witness's memory, the opposing party has no opportunity to cross-examine the speaker, because by definition the speaker spoke the words while not sitting in that straight-backed chair next to the judge's desk.

The weird thing is that Kansas Justice Lawton Nuss, who wrote the opinion (and who sports a Wyatt Earp mustache, perhaps out of defensiveness about the German meaning of his name), apparently thought he was making some kind of crushing retort to the Institute, when in fact he was saying the most obvious thing that could possibly be said about hearsay evidence.

But that doesn't mean that Nuss's opinion is merely fatuous.  It's extraordinarily revealing, as if Justice Earp had revealed on YouTube that he was naked under his robe.  What he was saying was that the court's job isn't to seek justice, or enforce democratically-enacted laws, or protect small children from harm.  No, the court's job is to keep the playing field level between the parties in court.

This is the sense of "fairness" employed in too many American criminal courts, taking into consideration only what happens inside the courtroom and trying to make the lawsuit a fair fight.  The ideal is parity between the parties.  The Uncle Wiggily Game is fair in this sense - your kid can beat you even if you don't throw the game.   (See post 115.)

Nuss's Nusskuchen remark reveals that he sees the judiciary's role as making criminal trials resemble the Uncle Wiggily Game, keeping the odds of victory relatively even between the players - that is, between the lawyers.  It was unfair for the trial judge to permit the prosecution to introduce the child's statement (which I think is what Nuss was trying to convey by selecting that particular cliche from the court's supply closet) because it increased the likelihood that the defense lawyer would lose.  (Professor Barton helped to explain this mindset - see post 275.)

And, when you get right down to it, who can blame the justice for caring above all else about keeping his fellow lawyers from getting stuck with loser cases.  After all, what could be ickier than allowing yourself to identify with a raped child?