277. Deviant is the new normal

Last week the New York Times ran several stories on New Jersey crime, including one headlined "Newark Battles Murder and its Accomplice, Silence."  It's already hidden from prying eyes in the archives, but it didn't say anything much, anyway.  (You can, however, still check out the cop-show atmospherics on the slide show and video.)  Could anyone really regard the following as news?

 With 40 shootings so far this year, investigators in the Fifth [Precinct, a 4-mile square area] have a practiced if unsatisfying routine.  A battalion of officers question potential witnesses, often turning up little more than blank expressions.  In recent years, there have been several chilling instances of witnesses being killed before they could testify, and the Essex County prosecutor has become increasingly wary of cases that lack physical evidence.

"No one wants to be accused of snitching," Sergeant Laterza said after even the victims at Seth Boyden [Terrace, a housing project] insisted they had seen nothing.  "These people have become so desensitized to the violence, it's almost become a way of life."

"Desensitized" seems a somewhat insensitive word to describe "a 14-year-old silently clutching his left thigh as he bled on the sofa of his aunt's disheveled apartment".  (Think what a difference it would make if only the aunt's apartment were heveled!)  As the article notes, most of Newark's murder victims are "young black men".  And where have we heard before about young black men being insensitive to pain?  Oh, yeah.  The South.  Before the Civil War.

 Well, I'm sure the quoted cop - to the extent he wasn't just saying what he expected the reporter wanted to hear - meant the bystanders were desensitized, not the victims.  But the bystanders who treat cops "like a band of pesky door-to-door salesmen, shrugging that they had witnessed nothing", are in fact being extremely sensitive to the reality that there are two governments in Newark: the one that occupies run-down government-owned buildings, and the one that actually makes things happen on the street.  

By coincidence (one supposes), just five days before the Times article appeared, New Jersey's intermediate appellate court issued its opinion in State v. Byrd.  The case involved a prisoner who had shared some advice with a fellow prisoner.  The fellow prisoner (Mr. Bush) had previously described to police how Mr. Byrd had killed someone.  Mr.  Byrd, upon learning this fact, expressed his concern for Mr. Bush's health, should Mr. Bush repeat his statement in court.  Mr. Bush took the advice in the spirit in which it was offered and refused to testify at Mr. Byrd's trial.

The Appellate Division announced that the issue before it was whether Mr. Byrd was entitled to have his manslaughter conviction reversed on the ground that he successfully intimidated Mr. Bush.  (That's not quite the wording the Appellate Division used - "The question presented is whether the trial court properly allowed introduction of an inculpatory out-of-court statement of a witness who refused to testify because defendants had threatened him with bodily harm if he testified against them." - but it amounts to the same thing.)

The New Jersey court ruled: If a thug successfully intimidates a witness against him, the thug is entitled to all the benefits naturally flowing from his initiative.  (Again, that's not quite the words the court used - "because N.J.R.E. 804(b) does not permit the State to introduce an inculpatory statement from a witness who refuses to testify because of threats to his or her safety made by the defendant, the trial court should not have permitted Detective Manzo to testify as to Bush's out-of-court statement" - but, again, it amounts to the same thing.) 

The court's reasoning is lame (lameness seems to be a habit with the Appellate Division - see post 254).  Its reason for deciding that it was wrong for the trial judge to allow the jury to hear evidence of Mr. Byrd's crime was ... that the issue was too important for it to decide.  I'm not kidding: "we are satisfied that given the significant and far-reaching implications of this proposed hearsay exception, such a change in the Rules of Evidence should be accomplished by our Supreme Court in accordance with [quasi-legislative rulemaking procedures] rather than by judicial opinion."

The change would be "far-reaching" in the sense that it would affect all defendants who intimidate or kill witnesses against them, and according to the Times that's a lot of defendants, so maybe the court was onto something, after all.   Why, if witness intimidation ceased to be a get-out-of-jail-free card, the number of shootings in Newark's Fifth Precinct might decrease!  Seth Boyden Terrace might become less dangerous for 14-year-olds!  Far-reaching indeed.

But the court's lameness goes beyond the comical incoherence of deciding an issue on the basis that it lacked authority to decide it - because, as the court actually admitted, it possessed that authority.  The New Jersey Rules of Evidence give it power to modify the rules "to the end that the truth may be ascertained and proceedings justly determined".   The judges just didn't want to. 

And this is the same set of judges that, just last March, invented out of thin air a rule that criminal defendants waive their sixth amendment rights unless they jump through a certain hoop.

So we have a court that uses its power to modify rules of practice only when the modification is insignificant and short-reaching?  That must mean that the sixth amendment right to confront witnesses in court is less significant than the right to benefit from killing the witness outright. 

Halfway across the country, and just three days later, the Indiana Court of Appeals confronted a similar issue and said, simply: "Although the Indiana Rules of Evidence do not contain a [provision specifying that a defendant who kills a witness forfeits his right to object on hearsay grounds to admission of the dead witness's statement to police], we see no reason why the doctrine of forfeiture by wrongdoing may not be applied as a matter of common law." 

The difference between the New Jersey and Indiana courts is that one accepts threatening and killing witnesses as normal, and accordingly regards any attempt to discourage the practice as a "significant and far-reaching" alteration in the state's legal culture.   The other doesn't.