Joel Jacobsen

Wrong judicial decisions make you ask one set of questions: Is the judge who wrote this stupid? biased? lazy? taking money? trying too hard to impress someone?  All of the above?  Is this really the best he or she can do?

Correct judicial decisions post a different and potentially far more difficult set of questions.  Consider the case of Angela Lewis, who was "indicted for assault with a deadly weapon inflicting serious injury on [81-year-old] Nellie Joyner Carlson (Carlson) and felony breaking and entering into Carlson's residence at 1312 Glenwood Towers, a public housing development for senior citizens located in Raleigh, North Carolina. On 7 October 2002, a subsequent grand jury indicted defendant for robbery of currency valued at approximately $3.00 from Carlson perpetrated through use of a dangerous weapon at the time of the assault."

A neighbor found the elderly Ms. Carlson sitting slumped over in a badly "tore up" apartment.  Ms. Carlson's eye was "bloody and swollen."  She told the neighbor "that girl come in and just about beat me to death."   The neighbor called 911, and the officer who responded observed that Ms. Carlson's face and arms were "badly bruised and swollen."  In her conversation with the officer, this is how Ms. Carlson described what Angela Lewis did to her:

"I opened the door and she pushed me inside. She grabbed my hair and pulled my hair. She hit me with her fist. She also hit me with a flashlight, phone and my walking stick. She hit me in the ribs with my walking stick. She took a small brown metal tin that I had some change in. I also had some change on the table that she took."

According to the defense brief on appeal, "It was subsequently determined that Carlson had suffered a bruise over her left eye, a contusion to the right frontal lobe of the brain, a contusion to the right lower lobe of the lung, and three cracked ribs." 

Unfortunately for Ms. Lewis, Ms. Carlson had recognized her: Ms. Lewis frequently visited one of Ms. Carlson's neighbors in the Glenwood Towers project.  (Here's a more flattering view.)   When the cops spoke to the neighbor, he unhesitatingly "told them that the person they were looking for was Angela Lewis. " 

Bizarrely enough, Ms. Lewis herself next called the police, reporting that she was the victim of a strong-arm robbery.  She was bleeding from the head - bleeding heavily enough to leave a trail from a car to a pay phone.  (I sincerely regret that I can't tie together the strands of this story.)

Anyway, a detective assembled a photo array, took it to Ms. Carlson at WakeMed (it sounds like a pharmaceutical competitor of Starbucks, but that's what they call their hospitals down there in Raleigh), and she picked out Ms. Lewis as her attacker.  Ms. Lewis, who was in the same hospital at the same time, finally "said it didn’t matter anymore, just take her to jail."

Some weeks after the attack, Ms. Carlson, who was already suffering from lung cancer, contracted pneumonia.  She died 48 days after the robbery, well before Ms. Lewis could be brought to trial.

That meant there were no surviving witnesses to the robbery.  The trial judge allowed the police officers to tell the jury about their conversations with Ms. Carlson.  When coupled with all the peculiar circumstantial evidence, that was plenty to support a conviction.  The North Carolina Court of Appeals reversed, finding that Ms. Lewis had been deprived of her constitutional right to cross-examine her deceased victim, but the state Supreme Court reinstated the convictions.

So Ms. Lewis took her case all the way to the United States Supreme Court, and that court reversed her convictions again, sending the case back to the North Carolina Supreme Court for a second go-round.  (The Court calls that "G.V.R.ing" a case.  No, really, "G.V.R." is a verb.)   On August 24, the N.C. court gave up trying to salvage the conviction.

I think, from a purely legal point of view, that the state supreme court was right to vacate Ms. Lewis's convictions.  It's just wrong - or, I should say, "wrong" - to convict a person of assaulting an elderly person, if that elderly person dies before trial without ever having been cross-examined by her attacker's attorney.  

That's what the Framers wanted, you see.  Madison laid it all out in the Federalist Papers, or maybe during the ratification debates, or was it Jefferson?  -  Anyway, it was that famous bit about punching old ladies, bruising their frontal lobes and cracking their ribs.  How the Constitution, once ratified, would prevent people from getting convicted for that kind of thing.  Maybe it was Adams.

The U.S. Supreme Court has never said that it's lawful to beat up and rob old people.  All it's said is that in some circumstances - specifically, when the old person dies before being cross-examined and there aren't any other eyewitnesses - the perpetrator can't be punished for beating up and robbing an old person.

The distinction between declaring an action lawful, on the one hand, and declaring it beyond the reach of criminal punishment, on the other hand, is very important to judges.   It's what relieves them of moral responsibility for the consequences of their own actions.  It's what allows them to suppress the disorienting sensation of cognitive dissonance when they condemn an antisocial act as unlawful and simultaneously declare it immune from the law.   

It's another illustration of the modern judicial world's Shelleyan contempt for reality and indifference to consequences.  (See post 305.)   The distinction between the lawful and the non-punishable is highly significant when you're examining the motives of the judges who insist upon it.  ("Motive pure?"  "Check!")  But it's completely beside the point when you're talking about the safety of elderly cancer patients living in housing projects. 

What if they don't want to live in a society that accepts the beating of old people as something beyond the reach of criminal punishment?  What if none of us do?  Why shouldn't our wishes matter?  Just because our Supreme Court has such great plans for us?