Joel Jacobsen

From time to time I regret mean things I've said and done, such as in chapter 13 when I described federal magistrate judges as a special category of retired-in-place judges.  Not all magistrates give in to the job's vast inducements to intellectual sloth, I wrote, but many do.  The chapter goes on to explain the occupational dynamics that cause federal magistrates "to cluster around the two poles of great and no skill."

Since I've been updating the Crawford outline for the NCPCA, part of APRI, a unit of NDAA (the weird thing is that sentences composed of strings of apparently-random letters can begin to look normal after awhile), I've gotten to read judicial opinions from all over the country, an average of about 4 new ones every work day.

Thank goodness for that, because it introduced me to the work of San Diego's federal magistrate (i.e., assistant) judge Louisa S. Porter, who kindly helped me get over my momentary sentimental regret. In a decision dated September 11, 2009, available on Westlaw but lamentably not on the free Web, in a habeas corpus case called Norris v. Dexter, she analyzed the confrontation clause implications of a private conversation between acquaintances.

I can't recall if the friends were also what lawyers call coconspirators (it means "conspirators"), but it doesn't matter.  Whether they were or not, analyzing the confrontation clause issue is easy: there is none under Crawford (part IIIA and footnote 9).

Or, at least, it's easy for people other than Magistrate Porter.  After correctly reaching the conclusion that the statements at issue weren't "testimonial hearsay," the only type of evidence with which the sixth amendment is concerned (see for yourself - though you might need to squint to read the tiny type between the printed words), she then continued:

Even if Ms. Norris's statements are deemed "testimonial," the confrontation clause permitted the use of her out-of-court statements. ....  The confrontation clause permits the use of out-of-court statements when 1) the declarant is unavailable and 2) the statements bears indicia of reliability.  Roberts, 448 U.S. at 66 ...  The reliability is inferred when the evidence falls within a firmly rooted hearsay exception.

This is gibberish on so many levels it would be tedious to list them.  Suffice to say that Roberts, the case she cites, was overruled by Crawford, the case she had cited just a paragraph earlier.  "Indicia of reliability" and "firmly rooted hearsay exception" have been of only historical significance for five and a half years.

This isn't an obscure area of the law, either.  Westlaw's database contains over 7,000 decisions construing Crawford during the past 63 months, and of course trial courts have made tens of thousands of additional decisions that haven't made the database.  Heck, there's even a whole blog devoted to it! 

How is it even possible for a person who expects to be addressed as "your honor" to maintain such complete ignorance about an active area of the law for half a decade?  Even more basically, how is it possible for anyone to perform a job for five years without learning how to perform it?  The answer is up there in the first paragraph, I'm afraid: intellectual sloth.

If you have sufficient contempt for the parties and lawyers, and/or a sufficient lack of self-respect, being a magistrate judge is the easiest job in the world.  Pays well, too.