374. Your dishonor

The mass media has a simple rule of thumb for measuring the newsworthiness of any story about the judiciary: it's not news unless it's been done to death already.

That's why you hardly heard about about Knowles v. Mirzayance, decided two weeks ago, and what little coverage there was missed the only particularly significant thing about it. The Associated Press dutifully sent out a dispatch that manages, in good AP style, to make it bland and boring. Google News doesn't reveal any other mass media coverage.

And yet there's something noteworthy about the opinion. Mr. Mirzayance confessed to police that he stabbed his niece 19 times and shot her 4 times, which, from a defense lawyer's point of view, can be considered the kind of thing that might reduce the likelihood of acquittal below the threshold of optimism.

The only real shot for the defense was insanity - that Mirzayance was so disturbed he didn't know what he was doing - which is hard to sell to jurors even with the strongest case. And Mirzayance's wasn't the strongest of cases:

Mirzayance initiated the crime after entering the victim’s bedroom with a knife in hand and a pistol in his pocket; he had waited until he was alone with the victim in the house before he closed the curtains and commenced the fatal stabbing and shooting attack; immediately after the murder he collected the knife and some of the spent bullet shell casings; he then returned to his apartment where he showered and put the bloody clothes into a trash bag; he concocted a false alibi on a telephone answering machine; then drove to a Burger King where he dumped the bag containing the bloody clothes into the restaurant’s trash container.

It's almost as if he appreciated that some people might think he had done wrong, isn't it?

Such intra-familial overkills are also the kind of thing that can cause divided loyalties within the family. After the jury found Mirzayance of first degree murder, rejecting his mental illness defense in the first stage of California's strange two-phase insanity-defense trials (see page 22 of this pdf), his parents surprised his attorney by declining to testify at the second phase.

A three-judge panel of the Ninth Circuit heard his appeal. District Judge Lonny Suko, dissented from the ruling reached by Judges Proctor Hug (a strong contender for the owner of the most ridiculous name in history) and Kim Wardlaw, who found Mirzayance's attorney professionally incompetent for failing to get the parents on the stand:

Further, although counsel claims that Mirzayance’s parents refused to testify, the district court’s finding that the parents did not refuse, but merely expressed reluctance to testify, is correct. Competent counsel would have attempted to persuade them to testify, which counsel here admits he did not.

The unanimous Supreme Court reversed, with this comment:

According to the [Ninth Circuit], Mirzayance’s “parents did not refuse, but merely expressed reluctance to testify.” And because they may have been willing, “[c]ompetent counsel would have attempted to persuade them to testify, which counsel here admits he did not.”

At best, the Court of Appeals’ characterization of counsel’s efforts to persuade the parents to testify is misleading. According to the Magistrate Judge, counsel testified that he did attempt to persuade the parents to testify but that their response “‘was kind of flat, and I had no influence over them.’” In his efforts to convince the parents to testify, counsel told them that Mirzayance “had no chance of securing an NGI verdict [not guilty by reason of insanity] without the ‘emotional quality from nonprofessional witnesses’ that Mr. and Mrs. Mirzayance’s testimony could provide; and ‘that they were abandoning their son.’”

The nine justices of the Supreme Court, in other words, agreed that Judges Hug and Wardlaw were liars.

Judges love to go on and on about maintaining public confidence in the judiciary. Here's a Ninth Circuit example from this year (partial dissent warning about "impact on the public’s perception of the rule of law"), and here's one from last year (refusing to take step that would "damage the public's perception of the judiciary").

The Supreme Court sounds the same note with wearying frequency. Here's Justice Alito describing "grossly prejudicial errors of law that undermine confidence in our legal system."  Justices O'Connor and Stevens each sound the same note in their separate opinions here. 

Cases such as Mirzayance tells us how wrong we are to have such confidence.  There is no pressure on federal judges to be even minimally honest in their opinions.  Most are, but only because of the people they are, not because of the institution they serve.  And most, as Judges Hug and Wardlaw remind us, isn't all.