About This Blog

Entries beginning with a number are a continuation of the old Judging Crimes blog, which was long focused on the two meanings of its name: the way crimes are judged in America, and the, uh... occasional defalcations and derelictions of the berobed.

Judging Crimes took a long hiatus for some of the reasons explained here.

Entries beginning with Book 'em! are book reviews and commentaries. No attention is paid to the imperatives of book marketing. As Calvin Trillin once pointed out, the average shelf life of a book in a bookstore falls somewhere between milk and yogurt, but in these days of long-tail online marketing that matters less to everyone, and I don't see why it should matter at all to reviewers. Most posts will be about books that have been around long past the time when yogurt would have solidified.

Other entries will be... well, I'm curious to find out what the others will be.

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432. Near-term career-related uncertainties

My law school has been scaring me recently, which is pretty impressive considering it's been more than 24 years since I last darkened its doors, and nearly as long since it darkened my life.  For instance, the dean recently emailed me:

The current economic environment presents significant employment-related difficulties for all law schools, and I am cognizant of the anxiety that many of you face in confronting the near-term career-related uncertainties.

Frightening, isn't it? - the thought of "employment-related difficulties for all law schools."  I mean, if even a law school can't land a job...  Then again, "career-related uncertainties" are a lot less worrying than career uncertainties, and facing anxiety is better than feeling it.  Then again again, how can you face anxiety and at the same time confront ("to face in hostility or defiance") uncertainties? - by being two-faced, I guess.

The law school recently offered a "an alumni-oriented career webinar" (pronounced uh-oh) and the university-wide alumni association is chirping about "encore careers," presumably for those shown out the door to a prolonged standing ovation.

In the midst of this attack of insufficiently-opaque euphemisms, the University of Massachusetts-Dartmouth announced plans to open the state's first public law school, setting its tuition and fees at "about $23,500 for in-state students and $31,000 for out-of-state students."

Actually it's taking over a non-ABA accredited law school (remind me again how the ABA, a trade group, acquired such authority in the academic world) and proposing to double its size.  That appears to be a trend, according to the AmLaw Daily:

Negotiations are also underway between the University of California at San Diego and California Western School of Law, as are long-running merger discussions between the University of New Hampshire and the Franklin Pierce Law Center.

Want to know where it all leads?  Big Debt, Small Law explains it all for you.  (Hat tip, Ben Barlyn.)

One convincing explanation was offered by the former president of the University of Puget Sound, Susan Resneck Pierce, explaining the university's 1993 decision to sell its law school to Seattle University for what the website discreetly calls "an undisclosed sum."  At the time of the sale in 1993, President Pierce disclosed that "the law school was generating nearly $700,000 per year for the university’s operating budget."

Now, for a university administrator to admit that a unit of the institution produced a positive cash flow is as rare and remarkable as a Hollywood accountant admitting that a movie turned a profit.  The figure named, while not princely, nonetheless probably put Puget Sound's law school in a league with the library's copy machines as a profit center.

A law school's economics of scale are awesome.  A single lawyer equipped only with an overhead projector connected to a PC can teach a class of 100 students each paying "about $23,500" and northwards.   And there's never any shortage of lawyers eager to land a teaching gig, with all that implies about downward pressure on salaries.

Jeff Jacoby buys the claim that the law school will require subsidies.  The funny thing is, he thinks he's being hard-headed and cynical.


431. Mating habits of the domestic judge, Pennsylvania version

Pennsylvania's Judge C. Joseph Rehkamp was foolish enough to drink the water at the Luzerne County Courthouse, that ill-proportioned lump of architectural notions, when he was persuaded to venture down from his roost in Perry County to fill in for the gangster judges caught collecting "finders' fees" for selling children. 

We already learned the lamentable results of Judge Rehkamp's ill-advised sip.  (See post 417.)  But the domestic violence charges against him were dropped when -- all together now -- his wife declined to testify against him at preliminary hearing.

According to the Scranton Times-Tribune,

[Magisterial] Judge Whittaker overruled prosecutors who argued he could compel the victim to testify and/or allow the case to proceed based on the testimony of the arresting officer and Mrs. Rehkamp's 18-year-old son, Lee Elliot Egenlauf, who allegedly witnessed the assault.

The testimony of an eyewitness isn't enough to establish probable cause?!? Let that be a lesson to all you young judges out there: always be nice to the magistrates, even if like Pennsylvania's magisterial judges they're not necessarily lawyers, because you never know when they'll be in a position to return the favor.

18-year-old Lee saved his mother when the judge was strangling her, according to this Wilkes-Barre Citizens' Voice story, which also contains the magistrate's charmingly fatutous metaphysical flight and the prosecutor's untoppable comeback:

Magisterial District Judge Donald L. Whittaker dismissed the charges moments after Valerie Rehkamp, sitting on the witness stand, said she did not want to proceed.

Assistant District Attorney Nancy Violi had subpoenaed Mrs. Rehkamp and other witnesses and asked Whittaker to allow her a chance to question them.

Whittaker refused.

"No victim, no crime, the case is dismissed" Whittaker said.

"If that were the rule, we'd never prosecute a homicide case in Luzerne County," Violi said.

The Citizens' Voice adds this interesting detail about the first prelim:

Rehkamp's defense attorney, William Costopoulos, told the Voice that Rehkamp and his current wife, Valerie, were discussing a financial arrangement under which she would drop criminal charges and they would move for a divorce. ...

Valerie Rehkamp, 50, initially agreed to cooperate with prosecutors, then refused to testify at Rehkamp's Feb. 16 preliminary hearing.

We can do this divorce the easy way or the hard way.  It's up to you, Valerie.  Is testifying at the prelim really worth years of hellish litigation? 

Anyway, nothing daunted, the prosecutor refiled charges, adding a bit more detail and asking for a new magistrate (a real one this time, please):

Judge Charles Joseph Rehkamp admitted to grabbing his wife, Valerie, by the neck and pushing her into a chair during an argument at their Plymouth Twp. home on Jan. 16, a police affidavit says. ...

The affidavit filed Tuesday includes ... an allegation that police photographed red marks on his wife's neck.

It all happened on the couple's first anniversary, sweetly enough.

The judge was able to see the silver lining in this dark cloud: he used his suspension from office as an excuse for skipping alimony payments to his first wife

According to court documents, Rehkamp's assets include: an investment retirement account at a Juniata bank worth $165,580 as of a Dec. 31, 2008 accounting; an investment portfolio with Oppenheimer and Co. of unknown value; a Porsche 911 sports car; $28,000 worth of jewelry he purchased on a single day in 2008 and 45 acres of land in Perry County.

The judge reportedly shelled out $218,000 to pay off his daughter's tax debt, which might show admirable familial loyalty, though if I were the first wife's lawyer I'd be very suspicious.  Maybe where the daughter lives it's customary for tax officials to require first-degree relatives to pony up in cash rather than establishing a payment plan with the taxpayer herself.  Then again....

Nonetheless, there is a somber side to the story.  That Porsche.  That $28,000 in jewelry bought on a single day during the months before his second marriage.  I'm afraid the diagnosis is unavoidable: late-onset midlife-crisis clichedom.

But the judge isn't taking the refiling of charges lying down: today he filed a motion to dismiss, claiming selective prosecution.  After all, other husbands in Luzerne County are allowed to choke their wives, so why's the prosecution picking on him?


430. Mating habits of the domestic judge, Ohio version

The Florida Supreme Court recently ruled that for a judge to deny justice to victims of intimate partner violence and sadistically toy with them in open court, is, to be entirely candid, just not altogether top-drawer form.  (See post 429.) 

But what if the judge goes one step beyond re-victimizing by knocking off the "re-"? Consider Cleveland  Juvenile Court Judge Joseph Russo:

According to the Supreme Court’s ruling. Russo and his girlfriend became embroiled in an argument while driving home after dinner and drinks at a restaurant in the early morning hours of September 6, 2006. When the argument escalated into a physical altercation, they stopped at a gas station, where the fight continued. Both were arrested and charged with “disorderly conduct intoxicated,” a minor misdemeanor. Later that month, Russo signed a waiver admitting his guilt and paid a $100 fine.

Then in the early morning hours of July 4, 2007, another physical altercation ensued after an argument between Russo and the girlfriend at the couple’s condominium. A neighbor called police, but by the time police arrived, Russo had left the condominium to check into a nearby hotel.

Police interviewed the girlfriend, who asked for a domestic violence temporary protection order. Police also interviewed Russo, who initially denied the fight. When police told him of the domestic-violence charge, however, he claimed that his girlfriend had attacked him. The next day, the Rocky River Municipal Court granted a domestic-violence temporary protection order against respondent.

In early March 2008, the domestic-violence charge was amended to “disorderly conduct persistent,” a misdemeanor of the fourth degree. Russo pleaded no contest and was convicted. Later that month, Russo received a 30-day suspended jail sentence and was ordered to continue counseling for alcohol abuse and anger management. He was also placed on probation for one year and was fined $250.

There was no fight, officer, but she started it.  So he's a liar as well as a batterer (sorry - disorderly conductor). 

And as a result, the Ohio Supreme Court ruled sternly, he would be allowed to stay on the bench.  However, the high court decreed, the meaningless six-month suspension of Judge Russo's law license recommended by the disciplinary board wasn't enough.  After all, it was a purely symbolic suspension so long as the judge remained in his full-time juvie court position.

"A sanction more rigorous than the board's recommendation is required."  So the court sternly upped it to a meaningless twelve-month suspension of the judge's law license, and then suspended the suspension, restoring the status quo.  Take that, Judge Russo!


429. The brush-off

It's not often that you can watch video of a really bad judge abusing his power on TV, but Seminole County, Florida, offers a Mickey Mouse judge, Ralph Eriksson, to go with the nearest big roadside attraction.  To fully grasp the piquancy of this video, you need to know that the defendant, Mr. Watson, was originally arrested for possession of cocaine as well as driving while intoxicated.

The case stalled, in the usual way, as everybody waited for the lab results to come back.  (The U.S. Supreme Court last year ruled that drug cases weren't delayed enough, and sought to address the problem by requiring technicians to spend more time on the road between courthouses, but it must be said that the problem of excessive celerity was not universally recognized.)

Then surprise, surprise - the "white powdery substance," in universal cop-speak, turned out not to be cocaine, after all.  So the drug charge was dropped.  Unfortunately, the video of the arrest contained numerous mentions of the apparent cocaine.  The prosecutor and defense attorney agreed the video needed to be edited to delete those references.  But as they hadn't done so yet, they agreed that the case should be continued -- or (for those of you who insist on speaking the common tongue) that the trial be postponed.

The judge denied the joint motion for continuance, which is pretty crazy already.  If the people involved in the suit don't mind, why should the judge, who supposedly is neutral?  Maybe they don't have enough to do in misdemeanor court in the Orlando exurbs and Judge Eriksson was afraid of getting bored.

Mr. Watson, though, thought he detected another source for the craziness.  He asked his attorney to move for a recusal -- that is (for you lingua francans), to allow a different, less emotionally-involved judge to preside.  That's where the clip picks up:


Yes, that's right, Judge Eriksson jailed a man to punish him for asking the judge to step aside.  You have to admit Mr. Watson had a point about the judge's unfairness.

The judge, it must be said in his defense, has perfected the demeanor of a self-satisfied creep.  Many self-satisfied creeps retain tell-tale marks of former personhood, but Judge Eriksson is way past that.  He could play a movie alien without makeup.

Anyway, Mr. Watson was just one person.  Then there was the time Judge Eriksson presided over a whole docket's worth of abused women seeking injunctions against their abusers.  Most of the women appeared without a lawyer, a pretty good indicator of their financial status.  The judge decided to give himself a little amusement:

Judge Eriksson: Patrice Taylor, who will be your first witness?

Patrice Taylor: Your honor, I have none. My son was not in any shape to come. I don‘t have any witnesses except for the police report and the witnesses who expressed to the police what happened because I was too distressed to explain.

Judge Eriksson: You can‘t use a report because the other side can‘t question what‘s on that paper. You need to produce that person, whoever they are, so the other side can question them.

Patrice Taylor: I was unaware of that, your Honor.

Judge Eriksson: Well, I wasn‘t the one who was supposed to give you advice.

Patrice Taylor: I‘m sorry.

Judge Eriksson: So let‘s go back and explore that statement. Where did you get the idea to file a petition?

Patrice Taylor: I filed a petition.

Judge Eriksson: Did somebody suggest it to you?

Patrice Taylor: No. I filed it because he was having some depression issues with —

Judge Eriksson: No, not why did he —

Patrice Taylor: The police department told me after I had repeated complaints of harassing and stalking and disturbances at my house.

Judge Eriksson: Did they tell you that you would need to bring a witness or two —

Patrice Taylor: No.

Judge Eriksson: —testify so the other side could crossexamine?

Patrice Taylor: No. I thought that the arrest would be enough. My son was in no shape to be here.

Judge Eriksson: If you are arrested, does that mean you‘re guilty?

Patrice Taylor: No, your Honor.

Judge Eriksson: Okay. So unless you‘re going to produce any witness or have anybody testify here today, I‘ll have to deny your motion —or your petition. Do you understand that?

Patrice Taylor: Not quite, your Honor. He was arrested for stalking.

Judge Eriksson: That is not proof on your petition. That might be the start of a criminal proceeding, but —

Patrice Taylor: [cell phone rings]  I do apologize, your Honor. I‘m scheduled to be at work.

Judge Eriksson: All Right. Are you too busy to be here?

Patrice Taylor: No, your Honor. This is my second time to be here. You were not able to hear the first time because he was never served the paper. And it‘s been a nightmare trying to find this guy to locate him while he works —

Judge Eriksson: Just stay on course. Will you be presenting any evidence today on your petition?

Patrice Taylor: I‘m sorry?

Judge Eriksson: Will you be presenting any evidence on your petition?

Patrice Taylor: I have –written documentation, if that‘s what you mean. I don‘t know.

Judge Eriksson: If it‘s written, no. He can‘t cross-examine whoever wrote it.

Patrice Taylor: I don‘t know what else to say, your Honor. I just want this guy to leave me alone. That‘s all I want, is for him to just stay away from me and my family. That‘s all I want.

Judge Eriksson: Having presented no evidence here today, I‘m going to have to deny your petition for injunction for protection against repeat violence. If each of you would step through —just step through the audience and you‘re finished here today and you‘ll have a copy of this in just a moment. And that will complete that hearing.

What makes that all so delightfully amusing is that the clinically depressed victim of repeat violence could have testified on her own behalf.  Ho, ho, ho!

And he told her to "stay on course" immediately after jerking her around with bizarre questions about who told her to file the petition.  Ho (etc.).

At his hearing before the Florida Judicial Qualifications Commission, Judge Eriksson defended himself by saying he thought it would be inappropriate for him to become involved in the proceedings to the point of advising the women they could be their own witnesses.  But, evidently, he didn't consider it inappropriate for him to make a preemptive hearsay objection on behalf of the abusive man.

In short, Judge Eriksson deliberately withheld the protection of the law from some of the most vulnerable people in his community.

At least he was hauled (or "haled", as the Supreme Court insists on saying) before the Florida Supreme Court.  That takes us to the punchline: his punishment was a public admonishment.

Which just goes to show the judge was right.  The people he considered too unimportant for his time -- too female, too victimized, too depressed, too poor -- were confirmed unimportant by the Florida Supreme Court, which viewed re-victimizing them as no more than an unfortunate breach of judicial etiquette.


428. Fatuity Watch

CNET has been covering a Third Circuit case that seems to involve a novel legal issue when all it really involves is a no-longer-new technology:

The FBI and other police agencies don't need to obtain a search warrant to learn the locations of Americans' cell phones, the U.S. Department of Justice told a federal appeals court in Philadelphia on Friday.

A Justice Department attorney told the Third Circuit Court of Appeals that there is no constitutional problem with obtaining records from cellular providers that can reveal the approximate locations of handheld and mobile devices.

There "is no constitutional bar" to acquiring "routine business records held by a communications service provider," said Mark Eckenwiler, a senior attorney in the criminal division of the Justice Department. He added, "The government is not required to use a warrant when it uses a tracking device."

This is the first federal appeals court to address warrantless location tracking, which raises novel issues of government surveillance and whether Americans have a reasonable expectation of privacy in their--or at least their cell phones' --whereabouts.

Judge Dolores Sloviter sharply questioned Eckenwiler, saying that location data can reveal whether people "have been at a protest, or at a meeting, or at a political meeting" and that rogue governments could misuse that information. (See transcript excerpts below.)

If cops can follow you to a protest, or a meeting, or a political meeting--and I hate to break the news, but they can, which might explain that strange uncanny feeling you've been having--then cell phone data isn't telling them anything they couldn't acquire with the expenditure of shoe leather. 

(But the weary tedium of a stake-out, and the delicate high-speed drama of following a car, both seem more fair, more sporting, than getting a business record from the phone company, don't they?--or at least better TV.)

Not the case itself but Judge Sloviter's questioning, as excerpted on CNET, achieves the status of "foolish or silly, especially in a smug or self-satisfied way.

Apparently believing in all earnestness that she was making an important point, she pursued this line of questioning:

Sloviter: There are governments in the world that would like to know where some of their people are, or have been. For example, have been at what may be happening today in Iran, have been at a protest, or at a meeting, or at a political meeting. Now, can the government assure us that -- one, it will never try to find out that information, and two, whether that information would not be covered by (d). [Ed. Note: Sloviter seems to be referring to a 2703(d) order.]

Eckenwiler: Your honor, I can't speak to future hypotheticals in terms of what might happen.

Sloviter: But don't we have to be concerned about that? If the statute would permit the government -- not this government right now but a government -- to get information as to where... Wouldn't the government -- a government -- find it useful if it could get that information without showing probable cause?

Eckenwiler: Your honor, the information at issue in this case certainly is useful, that's why the government's applying for it here.

Sloviter: But without showing probable cause. Because it's relevant. Your papers admit that the showing that needs to be made for a subsection (d) order is less than the showing that needs to be made for a warrant.

Eckenwiler: That's correct, your honor.

Sloviter: So the question is, can (d) be used for that purpose?

Eckenwiler: Yes, your honor. It can be used constitutionally for that purpose. And the reason I understand your honor's concern about those future cases, those hypotheticals. But I think it is clear from the Supreme Court's caselaw that Fourth Amendment issues must be measured on the basis of the facts before the court.

The fatuous part isn't saying that if certain information would help the government of Iran oppress its people, comparable information must be kept from the government of the United States, given their similarities. 

Nor is it proposing to decide a case on the basis of paranoid political fantasies rather than concrete reality--law professors spend whole careers training their students to think about the law in precisely such terms.

No, the fatuous part is the belief that abuse by "the government" could be prevented by requiring the government to convince a judge that it had probable cause for obtaining the phone records--that is, by requiring "the government" to receive advance blessing from...one of its employees.

Judges' paranoid political fantasies only go so far.  The President and the Attorney General and all their faceless minions might be in thrall to Sauron, or Ahmadinejad, but even in the darkest days we will always count on the incorruptibility, the stern rectitude, of the Untouchables in black robes.

And, of course, when Sauron's and Ahmadinejad's minons take over the elected branches of government they'll do what judges tell them to do.



427.  Bluegrassed

There are always new ways to be corrupt.  That's the wonderful thing about it.  Like April, the cruellest month, treating yesteryear as so much mulch (after having the droghte of march perced to the roote), corruption is always springing anew with renewed newness.   And it's only going to get better after the Supreme Court rules that the Constitution prohibits criminalizing the money-making habits of rich white men.

From Clay County, Kentucky (searching Google for it brings up a sad little sponsored ad for "File for Unemployment"), which wasn't named after the Great Compromiser but his cousin with the unfortunately easy-to-visualize name of Green Clay (unless Wikipedia, not otherwise known for its sense of humor, is pulling our collective leg), comes this story:

The circuit judge in Clay County discussed how an election officer could steal votes in 2006 when the judge was trying to help his son-in-law win a county office, a witness testified Thursday.

D. Kennon White said then-Circuit Judge R. Cletus Maricle had backed White's wife, Wanda, to become an election officer in the Manchester precinct.

In the May 2006 primary, Maricle's son-in-law, Phillip Mobley, was running for property valuation administrator.

Maricle and others met with Kennon and Wanda White and said people would be confused about how to use the county's new voting machines, presenting an opportunity to steal votes.

The machines had a "Vote" button that allowed people to review their choices, but they had to push another button to record the selections and finish voting.

That allowed corrupt election officers inside the polling place to dupe voters into thinking they were done after pressing the first button, then change their votes, White testified earlier.

Why would anyone design machines like that except to allow votes to be changed?  (Aren't you curious to know what company made them?  Here's my utterly uninformed and irresponsible guess.)  The machine seems designed not just to facilitate not just switching votes, but to make it easy to confirm a purchased voter stays bought.  This is how it worked:

Typically, Day said, candidates gave large sums of cash to vote-buyers, who then approached people as they came to polling places and offered them money. If the voters agreed, the buyers sent them to a complicit elections officer inside, who looked to make sure they voted the right way, then signaled to the vote-buyer outside to pay them, Day said.

"Every election I ever worked, it went on," said Day, who bought votes at the Burning Springs precinct.

In Kentucky, the circuit court is the trial court of general jurisdiction, i.e., a real court. Former Judge Manicle - I'm sorry, but it just wouldn't seem right not to make some juvenile remark about that name - seems like he knew what was what, all right.  But the real political boss was a-settin' over at the school district HQ:

Kennon White said that when he considered running for jailer in the 2002 Republican primary, Maricle told him he would have to spend about $120,000 for a "sure thing."

White said he also checked with [then-school superintendent Douglas] Adams about the race, and Adams told him if he would put up $60,000 to buy votes, he could be in the group of candidates backed by the politically powerful school board.

In the end, White said, he stuck with another faction and spent more than $50,000 to buy votes, distributing it through a number of people, including Bowling and Bart Morris.

White lost his 2002 race. He said he was told Adams used his influence through the school system, a major employer, to turn election officers away from then-county Clerk Jennings White, and that sunk him as well.

Running for jailer?  The politically powerful school board

If the testimony is to be believed, they play for keeps in Clay County.  A one-time drug dealing witness testified that "former Clay County Clerk Jennings White" - relationship to Kennon White unknown, and perhaps unknowable -- "once asked him to plant drugs in Adams' vehicle to get him arrested."  Shades of Louisiana's Judge Bodenheimer.  (See post 78 and post 12.

That particular drug dealer claimed he had protection from the once and would-be future sheriff, Edd Jordan, a/k/a Unindicted Co-Conspirator - he's running to regain his old position - because of the zeal with which he bought votes for him.  What makes it especially easy to believe are the comments from Clay County, uh, activists on Topix (e.g., here and here). 


426. System justification

Every state has a judicial standards commission of one sort or another.  It's easy for people like to stand on the outside and criticize them with the benefit of hindsight, but the fact is that many hard choices have to be made, priorities established, resources wisely utilized, and cliches recited. 

For example, take a look at the dilemma facing the Pennsylvania Judicial Conduct Board.  It had before it allegations against three judges from Luzerne County, and limited resources.  Which complaint or complaints should it investigate?

Allegations against one judge were that she (significant pronoun) was "'impatient, undignified and discourteous' to her staff, created a tense atmosphere in her chambers, badgered witnesses and attorneys and arrived late to court sessions."

The allegations against the other judges were that they -- both of them male -- took kickbacks in exchange for sentencing juveniles who hadn't done anything subjecting them to detention to a private detention center in proceedings that didn't rise to the dignity of kangaroo courts, blighting the kids' futures while imposing devastating pain on both them and their parents.  (See post 417 and post 400 and post 390 and post 389.)

It was a stark choice, as attorney George Michak pointed out.  On the one hand, "a judge who was accused of having a bad attitude."  On the other hand, "serious allegations against two judges accused of serious ethical breaches and even criminal conduct."

Given the limited resources of the board, which do you go after?  Hint: the two male judges helped the board's efforts against the female one. 

During the period of time that elapsed between the Board receiving complaints against gangster judges Conahan and Ciavarella and those two reaching the since-rejected plea agreement with federal prosecutor, "Ciavarella might have sentenced more than 2,000 juveniles to the for-profit detention centers he and Conahan were allegedly paid off to support."

That's 2,000 juveniles sold for kickbacks -- or what Ciavarella, with the chilling ingenuous of the true psychopath, called "finders fees" -- as a direct consequence of the Board's decision to put all their resources into reinforcing the old boys' network against Judge Lokuta.

The role of judges is to enforce the status quo.  That's not a criticism; the law is the status quo.  So perhaps it's not surprising that a judicial standards board would take the same approach, defending the way things are, no matter how corrupt.

The same mindset can be found in a case from Kermit, Texas.  (I'd never heard of it either, but it turns out to be on the corner of my own state - it's apparently pretty flat down there.)  The New York Times story on the shameful felony prosecution of two nurses for reporting concerns about a bad doctor to appropriate medical authorities can be found here

Over at ScienceBlogs, Mark Dunford has interesting insight on the broader problems exposed by the case

And the local Winkler Post has a wonderful take on the whole shebang.

Adding another twist to the case, the state was represented by an Odessa private attorney because the one-person district attorney's office was experiencing poor health, according to the Times.  Hmmm.  I  hope he gets well soon, or alternatively acknowledge the diplomacy with which he passed the cup from his lips, whichever is more appropriate.

The Pennsylvania's Board was acting on the same impulse as the Texas sheriff who arranged the absurd charges against the nurses, and the hospital administrator who fired them for going over his head to state disciplinary authorities.

One name for the impulse is "system justification," a theory that explains much about the American legal system -- though judges and lawyers are usually pretty good at burying  the tell-tale signs under piles of self-righteous, self-serving rhetoric.  I'm inclined to think the Pennsylvania Board decided to go after Lokuta because the two male gangster judges were under investigation for acts 1,000 times worse than anything she was accused of. And that made sense.

Exposure of the gangster judges, after all, was also exposure of the Pennsylvania Judicial Judicial Conduct Board.


425.  Yadkinville

There are certain subtle advantages to living in a city best known to the outside world for the way Bugs Bunny pronounces it.  One is that you learn not to make fun of other cities' names.  Such as Yadkinville.  Even though Booger Swamp Road meets up with Main Street just west of town. 

Instead, you make fun of other cities' judges.  Or I would, if they didn't do it for me:

E-mails between Yadkin County officials and a judge who was prodding them to build a new jail show that county officials had repeatedly asked the judge to intervene and help quell opposition to the jail’s location.

In November 2007, then-County Manager Eric Williams wrote Superior Court Judge John Craig III and Judge Ed Gregory, the senior resident Superior Court judge for the judicial district that includes Yadkin County. County commissioners voted 3-2 in November 2006 to build a new jail, but one commissioner, Brady Wooten, has continually opposed plans to build the $8.2 million, 150-bed facility about four miles from the courthouse....

That's called "ex parte-ing the judge."  It's unethical in the highest degree for a judge to talk to one side in private, excluding the other side from the discussion.

Then comes the really delightful juxtaposition:

[Judge] Craig mentioned Wooten in a December 2007 e-mail to [former County Commissioner] Phillips.

“I must admit privately that I despise demagoguery and attempts at political tyranny,” Craig wrote. ...

Craig scheduled a hearing last month about the county’s failure to build a jail, telling commissioners he could fine them, remove them from office, or jail them until they agree “to properly carry out the duties of their office and get the jail project underway without further delay.”

His comments alarmed Wooten and Kevin Austin, the county commissioners who had opposed the jail site. They hired attorneys to represent them at county expense. Craig canceled the hearing after commissioners agreed to move forward with plans to build the jail.

“If it hurt their feelings I’m sorry, but they just needed to know how much inherent authority the superior court had,” Craig said.

Failed attempts at political tyranny by elected officials are, it must be agreed, despicable.  Successful assertions of political tyranny by judges are anything but.  Judge Craig, for example, ordered a committee of the County Commission not to meet.

No, really.  I'm not kidding.  The judge prohibited the elected government of the county from meeting in committee.

"They just needed to know how much inherent authority the superior court had."  Inherent authority, of course, is authority the superior court wasn't granted by the state or federal Constitution or by any statute.  (See post 32 and post 261.)  It's power without law, and for a Yadkinville judge to use his illegitimate power to bully and threaten elected officials is the Christmas pageant version of one of the major themes of this blog.

A lot of the dispute, apparently, is that the judge wanted the jail built out of town, like a Wal-Mart, and the town leaders wanted it downtown, like a family-run store.  (Click here for a rather sad little resolution, a tattered flag of a plea for democratic self-rule.) 

The judge, you won't be surprised to learn, got his way.

To change the topic abruptly, the gangster judges of Luzerne County ordered the state-run juvenile facility shut down in exchange for kickbacks from the operator of a private facility.  (See post 389.)  Not sure what reminded me of that.

Apologies for the digression.  Back in Yadkinville,

Yadkin County resident Larry Long said in December that he filed a complaint with the state Judicial Standards Commission about Craig. Long said recently that the commission told him it found no wrongdoing by Craig. The commission wouldn’t confirm this

Even whitewashing a judge has to be done in secrecy.  Otherwise the people those elected officials are representing might get the right idea.

(Conscience requires a link to an explanation for the name of that road.)


424. Hissy fitting?

ABC's Jake Tapper, who almost certainly dislikes the Elvis Costello song "Brilliant Mistake," has a blog entry with a prediction from University of Texas professor Lucas Powe.  Unfortunately, the quotation doesn't answer the mystery of why he didn't drop the final "e" from his surname, like Al Green.  Wouldn't Lucas Pow be a great name?  As good as Morris Zapp.

Maybe the professor does pronounce it "pow."  I'd advise him to, if he ever goes to spend a year as a guest scholar at a German university.

 Anyway, here's the professor's prediction about next year's State of the Union:

“I’m willing to bet a lot of money there will be no Supreme Court justice at the next State of the Union speech.”

Added Professor Powe, who clerked for Supreme Court Justice William Douglas, “you don’t go to be insulted. I can’t see the Justices wanting to be there and be insulted by the president.”

(Isn't it pathetic that a distinguished white-haired professor, author of several well-received books, would still be known by a one-year internship he served before ever practicing law?)

(And for Douglas, of all justices -- a compulsive liar and self-mythologizer who didn't bother with legal reasoning.  You'd think a person would want to keep that kind of thing quiet.)

Anyway, it'd be wonderful if it works out the way Professor Powe predicts.  I can't think of any better way to demonstrate for the benefit of the entire nation exactly why the justices show up at State of the Union addresses, dressed in their medieval costumes: to express their amour propre. 

And not, needless to say, because they give a shit about the nation or its government.

In the legal world, it is all about them.  In the constitutional law classes Professor Powe teaches, and in his books, it's also all about them.  Within the airless bubble it makes sense to say that telling the Supreme Court it's wrong is nothing but an insult.

Unless, that is, it's said by a member of the court.  Chief Justice Rehnquist once published a tally sheet: "Over the past 21 years, for example, the Court has overruled in whole or in part 34 of its previous constitutional decisions."

The Constitution is just over 8,000 words long.  For any group of nine judges to misread it in public 34 times over just 21 years is pretty remarkable.  It's not like they're making snap evidentiary rulings from a trial bench or anything.  They spend months making up their minds. 

And it's not like they have much to make up their minds about.  The nine of them, with their four clerks each, produced just 83 opinions last term.   Divide that by 45 lawyers and you get... lots and lots of time to get it right. 

Should we nonetheless assume, based on Rehnquist's figures, that they totally screwed up at least one and probably two of those cases because the 45 of them, putting their pointy heads together, couldn't figure out what a 8,000-word document says?  Man, talk about pathetic.

Anyway, if it's an insult to say the Supreme Court is wrong about the law (unless you're a justice of the court, in which case it's a typical day of tidying up around the office), it must equally be an insult for the court to say the Congress and President are wrong about the law.  Co-equal, remember?

But then, Justice Kennedy didn't say they were wrong about the law.  He said they were wrong about the reality of the political world in which they spend their working (and in many cases their waking) lives:

[W]e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.

That's not even arguably an opinion on a question of law. It's an opinion about rabbit-punching, eye-gouging politics.

(I don't think it's an opinion on a question of fact, either, to use the jargon.  [In the legal world, there is no third alternative to issues of fact and law.]  It's hardly possible that Kennedy and his co-concurrers, or any sentient being, for that matter, actually hold that opinion.  The words are just something they, or their clerks, plugged into their work product because they thought it made their result seem more plausible.  If they thought other words would have worked better, they would have plugged them in, instead.)

What Professor Powe was saying, and also Justice Alito, I'm pretty sure, is that the Supreme Court gets to insult Congress and the President by telling them just how ignorant they are.  But no tag-backs.

Oh, I'd love it if the justices made a point next year of underscoring just how petulant and childish and self-absorbed they can be!  I hope Professor Powe is right.


423. So who's scarier?

The San Francisco Chronicle recently reported:

The Assembly approved legislation Wednesday that would make it a crime to not report violent attacks...

Assemblyman Pedro Nava, D-Santa Barbara, the measure's author, said the bill closes a loophole in state law, which previously required people to report a violent crime only if it is being committed against a child younger than 14.

If the Senate passes Nava's measure, witnesses would have to report any rape, murder or violent crime they see, regardless of the age of the victim.

You can read a marked-up version of the bill here and a legislative analysis here.

Arlen Specter, the party-switching Pennsylvania Senator, recently proposed that witness intimidation be made a federal crime, though it seems pretty useless to backstop ineffectual state laws with an identical federal one.

Specter was inspired by a Philadelphia Inquirer series that vividly explained how the criminal justice system works, or rather doesn't work, in real life.

According to the paper, talking about itself in the third person as if it were a professional athlete, "The newspaper reported that criminal cases routinely collapse because of witnesses have been frightened or harmed. Prosecutors, judges and defense attorneys told the newspaper that witness recantations have become the norm in city courtrooms."

Back on the other side of the country, Assemblyman Nava's bill would place the witness squarely between the devil and the deep blue sea, the rock and the hard place, the hammer and the anvil, the... how could I have run out of cliches so quickly? 

Anyway, the witness would have to ask him- or herself, who's more likely to carry out the threat?  The guys in this video?  Or the justice system that can't enforce the various weapons and drug laws they're not just violating but clowning about violating? 

The choice would be even easier if you shared a neighborhood with them.

Nava's bill would use the legal system to threaten witnesses for not trusting the legal system to protect them.  It would inflict harm on them in retaliation for their not believing the system capable of saving them from harm. There's much to recommend the bill, but only for a certain class of connoisseurs.