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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Tuesday
Nov242009

412. Most cheering / most nauseating

Earlier this week the New York Times published a cheering article about the criminal justice system, observing--forty or fifty years late--that what's conventionally considered the "left" position on crime is indistinguishable from the "right." 

The headline was: "Right and Left Join Forces on Criminal Justice," but the article itself was an updating of the old joke about law school, where the dean tells the assembled first year students, "Look to the right of you.  Look to the left.  In three years, there won't be any left left."

Norman L. Reimer of the National Association of Criminal Defense Lawyers is quoted as saying: "The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold."

But since when has less government, less intrusion and less regulation been a liberal mantra?  Especially when the particular intrusion and regulation we're talking about has to do with protecting the vulnerable from exploitation or harm at the hands of the powerful.

Reimer was saying that his organization pursues a right-wing agenda.  It's tremendously cheering, a real sign of progress in our society, that defense lawyers are beginning to feel comfortable coming out of their political closet, even if reporter Adam Liptak didn't seem to quite understand what he was hearing.

The article is also among the most nauseating I've ever read about the criminal justice system.  It is illustrated with a photo of Ed Meese, who as President Reagan's closest policy adviser did as much as anyone to inaugurate the modern era of mass incarceration.  Check out this graph--it's easy to spot the moment Meese acquired power.

The federal Bureau of Prisons reports that "[f]rom 1980 to 1989, the [federal] inmate population more than doubled, from just over 24,000 to almost 58,000."  Those were Meese's years.  He helped put in place policies that have kept on giving, successfully increasing the federal prison population three and a half times just since 1989.

Meese and Reagan's influence extended far beyond the federal prisons under their direct control.  Remember just say no?   In 1980, there were 19,000 people in prison for drug offenses.  In 2007, there were 253,300.  (On the other hand, we've completely eradicated illegal drugs... well, okay, at least we've substantially reduced their use... well, okay, at least we've driven up the prices... well, okay, at least we've screwed up a lot of people's lives.  Okay, then!)

This is the same Ed Meese who's now shocked, shocked and appalled to discover that the federal prisons are locking up lots of people?

The last three paragraphs of Liptak's Times story approach the real point of Meese's advocacy:

Some scholars are skeptical about conservatives’ timing and motives, noting that their voices are rising during a Democratic administration and amid demands for accountability for the economic crisis.

“The Justice Department now acts as a kind of counterweight to corporate power,” said Frank O. Bowman, a law professor at the University of Missouri. “On the other side is an alliance between two strands of conservative thinking, the libertarian point of view and the corporate wing of the Republican Party.”

Mr. Meese acknowledged that the current climate was not the ideal one for his point of view. “We picked by accident a time,” he said, “when it was not a very popular topic in light of corporate frauds.”

Who believes Ed Meese has ever "picked by accident a time" to take a public stand on anything?  Meese's point is that it's one thing for Republicans to lock up people who, if they were to vote, would overwhelmingly vote for Democrats.  But it's something altogether different for Democrats to lock up people who not only vote Republican but put their money where their financial interests are.

Meese's remarks can be read as hinting at something a step or two beyond that.  He seems almost to be saying that if wealthy people want to avoid being put in prison for their crimes, they need to do what it takes to get Republicans back in power.  If that's what he is hinting at, there's a word for that.

Monday
Nov232009

411. Sound familiar?

I've had to steel myself to write this post.  It involves more self-revelation than, frankly, I'm altogether comfortable with.  But I must see it through, if you, my reader, are to fully understand what follows. ...  You see, I'm the sort of person who sometimes borrows Teaching Company and Modern Scholar courses from the library and listens to them while driving, walking the dog, even while doing the dishes.

There, I've said it!  It feels good, too.  A sense of relief.  I feel like I can be myself

I had to open my heart that way it to explain how it is that I happened to have transcribed this bit from Professor Lawrence Principe's description of instruction at the University of Paris in the 13th century:

Well, what is Scholasticism, really?  Scholasticism is a method.  It's a method for studying any subject, theology, natural philosophy, medicine, whatever you like.  It is based upon not only on Aristotle's writings, Aristotle's Logic in particular, but also upon the format of medieval university instruction. 

The basic unit of the Scholastic method is the question.  The basic format of the writing is the commentary.  So the question and the commentary, these are basic to Scholasticism. 

Now, let's start with the question.  Students at university heard lectures.  But these lectures were supplemented regularly with disputations.  And the disputation is what is so fundamental about Scholastic method. 

It works something like this.  The master formulates a question very carefully, so there's a binary answer to it.  That is to say, it's a yes/no question.  They tend to begin with the question utrum in Latin, "Whether."  So they can be answered yes or no. A very clear answer is possible, in other words. 

The master's question is then answered by one student, called the respondens, or the respondent.  And he gives his answer to the question. 

After he's finished giving his answer, another student gets up, taking the role of the opponens, or opponent, and tries to demolish the argument of the respondens and answer the question in another way. 

After that's over, the floor goes back to the master, who gives as a verus solutio, a true solution, or a resolutio, a resolution, to the question, and then gives his reason for his answer. 

Now, all students had to participate in these kinds of disputations.

In the intervening 800 years, things have changed.  For example, we now call the master a "professor."  And the professor's question is usually called "the issue."  But the issue is still usually formulated as a yes/no question, and it still frequently begins with "whether" (though only rarely utrum).

And while it remains the case that all students must take their turns answering the question before the entire class, nowadays the role of the opponens is taken by the professor him- or herself.  And class generally ends without any kind of resolutio at all, much less a verus solutio.

I've long known that the style of syllogistic argumentation we're taught in law school is Scholastic to the bone.  And accepting as unchallengeable the latest revelation from the Supreme Court is pure Scholasticism, except that the Scholastics reserved their reverence for distinctly higher authorities.  And everyone knows the typical ridiculously bloated legal treatise is Scholastic--that's why we use terms such as "treatise" and "commentary" in the law. 

But while I knew the scholarly methods of 21st century law professors were medieval, I admit I hadn't realized their teaching techniques were old when Aquinas was young.

Friday
Nov202009

410. Translating the euphemisms

In my former life as a first amendment lawyer (well, as a low-level associate who glommed onto as much first amendment work as I could sniff out) I would, at least once a week, read these words or an excerpt from them:

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

(You can follow that link to the new Google legal website, which would make me feel sick at heart if I were a manager of a certain division of either Reed Elsevier or Thomson Reuters.)

That was from New York Times v. Sullivan, a disguised civil rights case that dramatically altered state libel laws in a way impossible to justify from the text of the first amendment.  (And I speak from the point of view of a first amendment near-absolutist: Black's and Goldberg's positions had the significant advantage of intellectual coherence.)

It took 21 years before a member of the court pointed out the obvious: that uninhibited, robust, and wide-open debate, not to mention vehement, caustic, and sometimes unpleasantly sharp attacks are not restricted by libel laws that require the plaintiff to prove falsity--unless they're also false.

That long string of adjectives in Brennan's majority opinion (Brennan was a master of 19th century sentimental prose) was just one long euphemism for "false." He meant that we had a profound national commitment to the principle that debate on public issues contains false statements.

The underlying theory, as Justice Byron White finally explained, was that "[t]he press must therefore be privileged to spread false information... in order to encourage the full flow of the truth, which otherwise might be withheld."

I was reminded of the baroque elaborateness of judicial euphemisms when I read today's opinion from U.S. District Judge A. Richard Caputo.  (I cannot encounter an initial initial without remember Edward Abbey.)  (F. Scott Fitzgerald excluded, of course.  I mean, if your first names were Francis, Scott and Key, which would you choose?) 

Judge Caputo, as you might have heard, ruled that the gangster judges of Luzerne County were absolutely immune from liability for any action they took while serving as judges, no matter how crooked.  You can find a copy of the opinion here (it's "order 1"). 

Why should judges be immune from civil suit for their dishonest derelictions of duty?  You guessed it: so judges won't be discouraged from fulfilling their duties honestly. "'[I]t is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions without apprehension of personal consequences to himself.'"

"His own convictions," as we know (see post 400 and post 390 and post 389), meant disregarding the law, hurting children in their moments of extreme vulnerability, while lining the judge's pockets with kickbacks and bribes.  So what Judge Caputo was saying--backed up, I should emphasize, by the unanimous opinion of all nine justices of the Supreme Court--is that "a judicial officer, in exercising the authority vested in him, shall be free to disregard the law, hurt children and line his own pockets without apprehension of personal consequences to himself."

I don't think Caputo's ruling was "wrong," legally speaking.  It was only morally wrong.  But it was morally wrong for the same reason the gangster judges' actions were morally wrong: because it put the selfish interest of judges above society's interest in justice and honesty.

Wednesday
Nov182009

409. Let Sarah be Stephen

Sarah Palin has been getting a lot of unfavorable fact-checking attention for her insta-book, proving yet again that there's no such thing as bad publicity, unless you're a news-gathering organization and must explain why you put 11 reporters to the task.  (Perhaps because entering "Sarah Palin fact check" into Google News returns 4,591 articles?)

Here's proof of the lamestream media bias: Stephen Reinhardt of the Ninth Circuit is getting a free ride, despite this week's ritual Supreme Court per curiam slapdown

Here's the background, from the California Supreme Court's 1988(!) opinion affirming a conviction for a  1981(!!) murder:

During the week preceding the murder, Vasquez, Bolanos and others had "partied" at [19-year-old Steacy] McConnell's house. Vasquez "ripped off" a quantity of amphetamine pills from her; the party ended with McConnell throwing Vasquez and his friends out of her house two days prior to the murder. The group subsequently discussed their general dislike of McConnell.

Don't you hate it when people get all angry and stuff when you steal their amphetamines?  Anyway, they decided to burglarize her house. 

En route to Victor, defendant suggested that he alone would approach the house on foot, using the metal bar if needed to force entry. Bolanos pulled over a short distance from the house; defendant left his wristwatch behind, concealed the bar under his jacket and walked to the residence. In accord with the plan, Bolanos and Vasquez waited several minutes, then drove up and backed into McConnell's driveway. Vasquez could not find the key to the trunk. As Bolanos got out of the vehicle to assist Vasquez, he heard repeated knocking or banging noises coming from within the house. They thought defendant was having trouble with the stereo. Vasquez entered to assist him. Bolanos remained in the car, still hearing the rhythmic thumping sounds as Vasquez walked up to the front door.

Shortly, defendant and Vasquez emerged from the house carrying stereo components. Defendant alone was covered with blood sprinkled on his face, pants and shoes. Vasquez "looked like he had seen a ghost." Defendant informed Bolanos he had to "take out a witness" because she was home. He explained that McConnell heard Vasquez and Bolanos drive up, and that he hit her with the bar when she looked away from him, and continued to hit her approximately 15 more times.

 The bar in question was a "steel dumbbell bar."  This is what it did to Steacy McConnell:

He bludgeoned McConnell to death with an iron dumbbell bar; the force of the 15 to 20 some-odd blows leaving her with gaping wounds and a cracked skull. Her defensive wounds plainly evidenced a desperate struggle for life at defendant's hands.

 And if that's not ghastly enough for you, Steacy's parents found her later that same day, still alive but unconscious.  They got her to a hospital, but she

died a short while later from cerebral hemorrhaging due to 15 to 20 gaping wounds to her head which cracked her skull. The pathologist testified there would have been sounds "like a cracked pot" associated with the blows which fractured the skull, and blood would have splattered in a manner consistent with the blood patterns found on the door jambs next to where she was found.

Remember, the sound of the blows was clearly audible to the murderer's accomplices outside in the driveway.  But at least the murder "did not involve ... needless suffering on the part of the victim." 

That's what Ninth Circuit Judge Stephen Reinhardt wrote, in an opinion joined by Judge Richard  A. Paez, though I'm not sure they meant to say Steacy McConnell didn't suffer, or that it was needful that she do so.  At any rate, all nine justices of the Supreme Court professed that they "simply cannot comprehend" that assertion: "McConnell suffered, and it was clearly needless."

Reinhardt and Paez found that the murderer's counsel was ineffective at the death penalty proceeding for failing to introduce mitigating evidence.  The nine justices unanimously disagreed:

We begin with the mitigating evidence [defense counsel John] Schick did present during the sentencing phase. That evidence was substantial. The same Ninth Circuit panel addressing the same record in Belmontes’ first habeas appeal agreed,recognizing "the substantial nature of the mitigating evidence" Schick presented.   It reiterated the point several times. ...

On remand from this Court, the Court of Appeals... changed its view of this evidence. Instead of finding Schick’s mitigation case “substantial,” as it previously had, the Ninth Circuit this time around labeled it "cursory."   [citations omitted]

The Supreme Court pointed out that in 2005 "the Ninth Circuit"--by which they meant Reinhardt, author of both opinions, and Paez, his toady in both--"label[ed] the mitigation evidence Schick presented 'substantial'" while in 2008 they "label[ed] the same evidence 'insubstantial.'"

There's even more but you get the idea.  What struck me as I read the various opinions is the close resemblance between Reinhardt, Paez and Sarah Palin. 

What they have in common is their possession of the truth.  Whether the truth is backed up by the facts  is beside the point.  In the judges' case, their opposition to the death penalty is of such overriding moral significance that the law and the facts don't matter, and in particular the violent death of a 19-year-old girl doesn't matter.  They find it easy to dismiss her suffering, the way other true believers once dismissed the moral significance of "the necessary murder."

The really great thing about Reinhardt's amorality is that it provides him with reason to congratulate himself on his superior morality. 

Palin, too, is in possession of the truth.  She defended her "death panel" claim by saying it "rang true for many Americans."  It rang true because it confirmed what they already knew to be true.  Whether it was actually true was a trivial point compared to that.  She doesn't find it necessary to defend the factual accuracy of her book--she attacks the media for pointing out its inaccuracies.  

And she's right to do so, of course.  Just ask her soulmate, Stephen Reinhardt.

Sunday
Nov152009

408.  Conventions

It's hard for any professional to question the conventional wisdom of his or her field. It's hard even to perceive the things one takes for granted.  The tendency is easiest to see in fields in which one has no emotional or financial investment, such as medicine. 

In Seed, Dave Munger writes: "placebos by definition have no medical effect."  He's paraphrasing this belligerent post by the MD blogger Peter Lipson, who claims to genuinely believe he's delivering "a serious smackdown."  But both pieces demonstrate that, according to standard ways of measuring things, placebos do have a measurable medical effect.   

What the bloggers mean is: placebos, by definition, have no pharmacological effect.  They're proceeding from the assumption that something made up to look like a pharmacological agent can have no medical effect through any mechanism other than pharmacology.  The fact that their own blog posts document the opposite isn't enough to make them question their assumption. 

Here's another example from a field other than law.  The University of Chicago econ prof John Cochrane posted on his website a deeply-felt  response to Paul Krugman's powerful New York Times Magazine piece about the obvious and comprehensive failure of economic theory to explain, much less predict, the real world:

Imagine this weren’t economics for a moment. Imagine this were a respected scientist turned popular writer, who says, most basically, that everything everyone has done in his field since the mid 1960s is a complete waste of time. Everything that fills its academic journals, is taught in its PhD programs, presented at its conferences, summarized in its graduate textbooks, and rewarded with the accolades a profession can bestow, including multiple Nobel prizes, is totally wrong.  Instead, he calls for a return to the eternal verities of a rather convoluted book written in the 1930s, as taught to our author in his undergraduate introductory courses.  If a scientist, he might be an AIDS-HIV disbeliever, a creationist, a stalwart that maybe continents don’t move after all.

It's hard not to feel for Cochrane, who sounds close to tears in this passage.  But can anyone think of any particular reason why everything that fills economists' professional journals and is taught in their Ph.D. programs can't be wrong?

My father was a geologist who got his Ph.D. in the early 1950s.  In his day, continents didn't drift.    When I was in college, cataclysmic events such as (snigger) asteroid collisions had nothing to do with the extinction of dinosaurs

Even Cochrane recognizes this point, though perhaps not consciously: his reference to "the mid 1960s" reveals his belief that everything taught before that time was a waste of time.  Why shouldn't everything after the mid 1960s equally be a complete waste of time?

I think it's likely, and indeed nearly certain, that if humans survive long enough intellectual historians will one day puzzle about the Chicago School the way we wonder today about the Greeks and their gods: did anyone actually believe this stuff?  Or was it just a convenient frame of reference, a prettily decorative screen self-consciously designed to deflect discussion from phenomena they could observe and describe but lacked the intellectual tools to explain?

Still, I was less convinced by Krugman's analysis (I'm sorry, but I just cannot accept his premise that economic theory can be "elegant," much less "beautiful") than by The Economist's take earlier in the summer.  The discipline's reliance on mathematics means that no economic theory can ever be more complex than than the mathematical knowledge of a non-mathematician.  And the world's more complex than that.

The Economist's piece provoked a less-emotional but even-more pathetic rebuttal from Cochrane's colleague, the Nobel Prize winner (always assuming the Economics Nobel should be classified as something similar to the real things) Robert Lucas, who basically argued that no one ever said that macroeconomics can explain, much less predict, the real world, so don't blame him. 

Naturally, he didn't follow his argument to its logical conclusion, which would involve renaming the prize the Sveriges Riksbank Prize in Speculative Bookkeeping in Memory of Alfred Nobel.  After the universities close down their economics departments the decent thing will be to allow people like Cochrane and Lucas to retire in dignity emeritus professors of accounting.

Anyway, there's a field even more trapped in a cocoon of conventional wisdom than economics, and even less capable of accommodating itself to the evidence of observable reality.  One might be tempted to say the law is conventional wisdom, except that it's so frequently unwise.

Law is the only field taught in our universities since approximately the time of Joseph Priestley in which arguments from authority are accepted as dispositive solutions of the problems studied.  But not only do we lawyers take them seriously, we regard them as the best arguments of all.

Law school exists to train students how not to think critically.  Instead, we're taught to cherrypick the catalogued sayings of various poohbahs and rearrange them to make it seem plausible that we should get whatever we want.  The last thing you want to do is examine the validity of authority that supports your side.

In law, knowledge is purely instrumental, of value only insofar as it's useful for the task at hand.  If you challenge the authority cited by the other side, it's only in an effort to displace it with your favored alternative slab o' conventional wisdom.  (Lucas and Cochrane are lawyers, though they might not know it.)

Legal authority isn't subject to challenge because it's demonstrably wrong, incongruent with observable reality, or laughable.  Indeed, none of those features is considered a defect in legal doctrine.  Doctrine can be challenged only on the ground that it's contrary to other legal authority.  And what makes the alternative legal authority preferable isn't its inherent quality, a concept that doesn't even exist in the law, but in its projected usefulness.  The new doctrine can be laughable, too--that doesn't matter, because we've been trained not to laugh.

Saturday
Nov142009

407. Gomorrah (Camorra optional)

Roberto Saviano's Gomorrah has been celebrated as a brave book, and an eye-opening one, and as a beautifully-written one, and even (though this will never stop seeming improbable to me) as the basis for a movie

But it's also a great book because of its universality.  It's a book about the Neapolitan Camorra, but it equally describes what happens anywhere that a "parallel power structure" comes to rival that of the government.  Wherever, that is, an alternative government by violence is instituted.  (See post 72.)

Saviano might have been writing about America, or at least those portions of America judges and lawyers teach their children, as they're learning to drive, never ever to enter. 

About living in any American inner city when a gang truce breaks down:

In a war that is not officially declared, not recognized by governments, and not recorded by reporters, the fear also goes unspoken.  It hides under your skin, making you feel bloated, as after a huge meal or a night of cheap wine.  A fear that doesn't explode in newspapers or on billboards.  There are no invasions, no skies darkened with planes.  It's a war you feel inside.  Almost like a phobia.  You don't know if you should show your fear or hide it.  You can't decide if you're exaggerating or underestimating.  There are no sirens to warn you, but the most discordant information gets through.  They say the Camorra war is fought among gangs, that they kill off each other.  But no one knows where the border is between who's them and who's not.

In Los Angeles, where the homicide rate among African-Americans was recently reported to be 176% that of medieval Germany (see post 303), how many would find something familiar in this passage about a young man killed only because he happened to come from a particular town:

Dario was killed to send a message to the town, a message of flesh sealed in an envelope of blood.  As in Bosnia, Algeria, Somalia, as in any confused internal war, when it's hard to understand which side you're on, it's enough to kill your neighbor, a dog, your friend, or your relative.  The hint of kinship or physical resemblance is all it takes to become a target.  It's enough to walk down a certain street to immediate acquire an identity of law.  What matters is to concentrate as much pain, tragedy, and terror as possible, and the only objective is to show absolute strength, uncontested control, and the impossibility of opposing the real and ruling power.  To the point that you get used to thinking the way they do, like those who might take offense at a gesture of a phrase.  To save your life, to avoid touching the high-voltage line of revenge, you have to be careful, wary, silent.

(A word of advice: if you're a young man in Los Angeles, avoid getting into conversations with other young men that begin: "Where you from?")

After the Supreme Court authorized Southern states to start using their police powers to enforce the color line--that was the meaning of Plessy v. Ferguson--it became customary for deputy sheriffs to investigate crimes against white people by rounding up the first black people they saw and torturing them until they confessed.  For a long time I puzzled about why they seemed so uninterested in identifying the actual criminal.  I would have figured it out sooner if I could have read Gomorrah sooner:

The body of Giulio Ruggiero is found on the evening of January 21, the same night in which Cosimo Di Lauro [a boss] is arrested.  A burned-out car, a cadaver in the driver's seat.  Decapitated.  The head is on the backseat.  It hadn't been cut off with a hatchet, a clean blow, but with a metal grinder...  [E]veryone in the area seemed convinced it was a message.  A symbol.  Cosimo Di Lauro could not have been arrested without a tip-off.  In everyone's mind, that headless body was a traitor.  Only someone who has sold a capo can be ripped apart like that.  The sentence is passed before the investigations even begin.  It doesn't really matter if the sentence is correct or if it's chasing an illusion.

The Southern deputies who tortured confessions out of random black men didn't want to solve a particular crime, but to terrify black people in general.  In criminological terms, it was all general deterrence, no specific deterrence.  Or, within the frame of reference of the deputies (or the Camorra, or the gangbangers killing a snitch), the fact that you became a target for retribution proves you're guilty enough.  At the very least, you have to admit, it's very suspicious.

When a group of Nobel prize winners, including the great Orhan Pamuk, wrote an open letter deploring the threats against Saviano's life, they pointed out that "this is not a mere police case. It's a problem of democracy."  That gets to the nub of it.  Describing the armories of the Camorra, Saviano writes:

Arms trafficking is the latest way to maneuver the levers of power of the Leviathan that imposes its authority through its potential for violence.  Clan armories are filled with bazookas, hand grenades, antitank mines, and machine guns, even though clans almost exclusively use Kalashnikovs, Uzis, and automatic and semiautomatic pistols.   The rest is there to construct their military power and show off their strength.  With all this fighting  potential the clans are not opposing the legitimate violence of the state but rather monopolizing it.

The references in there to Hobbes' Leviathan and Max Weber's concept of the monopoly on violence get down to the political issue presented by violence, an issue our judges are intellectually untrained to recognize, much less deal with effectively.  Our judges are trained to think only in terms of the state's exercise of power over the particular individual brought into the courtroom.  That's not a criticism, or at least not of judges--that's how the American legal system works.

One consequences is that our courts today have become unwitting allies of the alternative governments that govern so much of our cities, a class of useful idiots

The opposite of state authority is individual liberty when, like a judge, you look only at individual court cases.  But when you look at the real world, the opposite of state authority is, all too often, non-state authority.   

That's why, in Newark, the mayor sponsors citizen patrols: it's the democratic state seeking to reassert itself.  The citizens' patrols, like the gangs they seek to disrupt, are trying to fill the power vacuum.

Finally, anyone who has ever been involved in drug prosecutions will recognize this observation:

[E]very arrest and maxi-trial seems more like a way of replacing capos and breaking business cycles than an act capable of destroying a system.

Thursday
Nov122009

406.  Recognition

In the CBS interview (see post 405), David Lisak described one way in which rapists choose their victims, or as the rapists themselves prefer to see them, their conquests.  Writing in the London Review of Books, Jenny Diski captured, in a skin-crawling way, the narcissism of rapists.  She was 14 at the time:

It was also very painful – I hadn’t known that happened either. Several times I screamed with the pain. I was crying throughout, and asking him to stop (I used the word ‘please’ a lot). I still wasn’t scared for my life. He wasn’t violent: he just carried on, refusing to stop, repeating that I was no virgin and paying no attention when I told him it hurt. He wasn’t violent. I mean that he didn’t hit me.

When he’d finished, he stood and straightened his clothes. I pulled down my skirt and sat up. He went to the fridge and got out a bottle of milk, offered it to me, and when I shook my head he drank most of the pint.

‘You came a lot,’ he said, approvingly.

I didn’t know what he was talking about, I didn’t know what ‘coming’ was. I didn’t say anything.

‘All that crying, you were having a good time.’

I've often wondered how violent criminals, and especially rapists and abusers, choose their victims.  Anybody who's worked in the system has noticed how some abused women escape from one abusive partner only to fall in with another.  "She sure knows how to pick 'em," someone might say disapprovingly, but do abused women really sense the violence in men?  Are they attracted to it rather than frightened by it?  Are they psychologically driven to repeat really unpleasant events?

Or do violent men recognize vulnerability in women?  Do they seek to relive experiences they enjoy?  Or that they view as triumphs, to be bragged about in interviews with the curious psychologist who visits them in prison?

Okay, unless abused women belong to an alien species--an assumption that admittedly has much to recommend it, in terms of preserving one's own middle-aged male complacency--we'll have to say the second is approximately ten million times more likely.

But what's the secret of the abusers' uncanny knack for spotting the previously-victimized?  It's not a distortion introduced by the selection bias of the particular convenience sample that finds its way into the criminal justice system. 

We know violent men have that knack because studies galore show that one of the biggest risk factors for violent victimization is prior victimization. We also know that they don't possess the knack because they're so extremely sensitive and understanding.  So what's the secret?

Three researchers from Ontario's Brock University recently published the results of an ingenious study in Criminal Justice and Behavior.  The method was as follows:

Targets arrived in Room A, and after signing the consent form they were directed to another room to complete the rest of the study. While walking to the second room, they were unknowingly video taped from behind by a video camera hidden in the hallway. Video taping targets unknowingly allowed us to capture the participant’s natural gait in a controlled environment while protecting their facial identity. Once they arrived in room B, they were required to complete a demographics questionnaire and responded to two questions: (a) an item asking if they had ever been victimized (yes or no), and (b) an item asking them how many times they had been victimized in the past.

They were told they had been videotaped and asked to consent to allow their images, showing their unself-conscious ordinary gait from behind, to be used in the study.  The number of tapes was whittled down to 12, of which 6 depicted previously-victimized people.

The 6 previously-victimized people were classified as more vulnerable than the never-victimized.  As the researchers explain, "We used victimization history as a proxy for vulnerability because past victimization has been shown to be a strong predictor of future victimization."

Male college students at an unnamed (wink, wink) Canadian university were recruited to watch the videotapes and rate the vulnerability of the 12 people.  Specifically, they were asked to imagine themselves in the role of a mugger and to rate each of the people on a scale of 1 to 10, with 1 being "not at all vulnerable to being mugged" and 10 being "extremely vulnerable to being mugged."

The male evaluators were themselves rated for psychopathic traits.  Results:

Overall, the results clearly support the hypothesis that psychopathic traits enable victim selection. We found a robust, positive correlation between psychopathy scores and accuracy in determining victim and nonvictim target status.

"Target status" meant vulnerability, which the researchers equated with prior victimization.  The results meant that the evaluators who scored highest for psychopathy were most accurate at detecting prior victimization.

All that from a few seconds of watching the person walk down a hallway from behind.

We're moving closer to an answer to the two questions: Why is prior victimization a risk factor for future victimization?  How is it that violent men identify vulnerable women?  The answer appears to be: because those questions are both asking the same thing.

Wednesday
Nov112009

405. Consent defense

CBS News interviewed the psychologist David Lisak about "non-stranger rapes."  In just a few minutes he says a number of very interesting things.  For example, what if we prosecuted other crimes--say, auto theft--the way we prosecute rape?  Imagine the cross-examination:

Q.  It is true, sir, is it not, that you, quote, don't remember, unquote, whether you locked your doors?

A.  But I always do lock them.

Q.  Please just answer the question.  You have no specific memory of locking the car doors on Monday the 11th at approximately 7:15 a.m. when you left your car at the station.  Is that correct?

A.  Yes.

Q.  So you might have left the car unlocked.  Correct?

A.  I guess so.

Q.  Yes, it's possible you left the car unlocked?

A.  Yes.

Q.  Thank you.  And I believe you testified on direct examination that you did not have an alarm installed in the car.  Did I remember that right? 

A.  Yes.

Q.  And yet you were aware that alarms can be an effective deterrent, were you not? 

A.  Yes.

Q.  You knew that a car alarm will sometimes deter those who might want to get into your car and drive it away.  You knew that, right?

A.  Yes.

Q. But even though you knew it was a deterrent against someone getting into your car and driving away, nonetheless you made the conscious decision not to deter people from doing that.  Is that correct?

A.  If you want to put it like that.

Q.  That's a yes?

A.  Yes.

Q.  Thank you.  Now, was your wife upset when she found out your car was gone?

A.  Of course she was.

Q.  Did you hate to tell her? 

A.  Of course.

Q.  Wished you didn't have to confess?

A.  Wished I didn't have to tell her.

Q.  Did you tell her you left the car unlocked?

A.  No.

Q.  You didn't tell her that?

A.  No.  It wasn't true.

Q.  I thought you just said you didn't remember.

A.  I always locked it when I left it at the station.

Q.  But you happen not to remember doing so on this particular day?

A.  I'm sure I did.

Q.  But you don't specifically remember.

A.  No, I don't specifically remember.

Q.  Hmmm.  [Significant glance at the jury.]

And then the closing argument:

Ladies and gentlemen, you heard the so-called victim, sitting in this chair, having taken an oath to tell the truth, telling you that he deliberately chose not to deter those who might want to take his car.  If you choose not to deter something, that's the same as agreeing to let it happen.  You can't have it both ways.  Either you deter, or you consent. 

It's very convenient that he supposedly can't remember whether he left his car unlocked that day.  Very convenient lapse of memory.  But the fact is, ladies and gentlemen, that we didn't hear anything about a so-called "grand theft auto" until all was  all said and done, after he he realized how very upset his wife was going to be.  Once he knew he would be getting in trouble, then, very conveniently, we start hearing about, "Oh, yes, I don't actually remember if I left the car unlocked." 

Well, of course he's going to say that.  You heard him say how much he hated having to face his wife.  He knew what the reaction was going to be.  But that was only afterwards.  Ladies and gentlemen, even if we believe his convenient lapse of memory about leaving his car unlocked, even if we believe his car door locks were saying "no," his lack of a car alarm was telling my client, "Yes, yes, take me."

We ask you to return a verdict of not guilty.  Thank you.

Sunday
Nov082009

404. The highest standards

The last post described the crisis in Slovakia's judiciary, where ethical charges are being imposed to punish politically inconvenient judges.  The purge is being carried out by the Justice Minister of the governing coalition, which includes an explicitly racist party.  It was easy to compare the Justice Minister, Štefan Harabin, to a Stalinist thug, since he looks the very porcine picture of one.  Give him a hat and he's ready to watch a parade

But of course I was being ironic.  Slovakia's use of judicial discipline to punish political crimes is a testament to how far it's come.  Defining disloyalty to a superior judge as "unethical" is, of course, a characteristic shared by all judiciaries in developed countries.

Take, for example, the salutary example made of New Jersey's Judge Bill Mathesius, who spoke about a retired justice of the state supreme court without first planting the obligatory kiss on the justice's red shoes.  In New Jersey as in Slovakia, Mathesius was hauled before a disciplinary counsel chaired by the very man he was accused of dissing.  (See post 287.) 

Then there was Florida's Judge Michael Allen, publicly reprimanded for including in a judicial opinion factually accurate observations about a fellow judge and dysfunction on his court.  (See post 344 and post 272.)  Just as art historians can trace a teacher's influence in an artist's line or use of color, I think I can see where Harabin acquired the exemplary professionalism of his court administration.

And then there's Luzerne County's Judge Ann Lokuta (see post 390), removed from the bench for ethical lapses at the behest of the two child-selling judges whose activities she had reported to the FBI.  As Harabin knows, if you let reporting of crimes and that kind of thing get out of hand, there's no telling where things might end up.

So Slovakia and its Justice Minister Harabin should be saluted.  His determined initiation of judicial disciplinary proceedings to intimidate his enemies shows that his country can proudly compare itself to the ultimate high standard, that set by the United States.  On the 20th anniversary of the Wall coming down, too.  Brings a lump to the throat, it does.

Friday
Nov062009

403. Le droit, c'est moi

From The Slovak Spectator, news of an open letter from 15 judges protesting disciplinary proceedings against one of their number.  Well, of course they don't like it, right?  But this story comes with a twist:

The letter by the 15 judges cites cases of disciplinary proceedings against Judges Anna Benešová, Darina Kuchtová, Milan Ružička and Robert Urban to support their claim that disciplinary proceedings have turned into a tool of intimidation.

“And there are additional ones where it seems that the common denominator is criticism of Supreme Court and Judicial Council head Štefan Harabin,” reads the letter, as quoted by the SITA newswire.

Okay, so they're paranoid, too.  Except they aren't, as Harabin, the Judicial Council head, confirmed through a spokesperson:

One of the cases to cause a judicial stir was that of Supreme Court Judge Peter Paluda, who has been temporarily suspended after filing a criminal complaint against Harabin for alleged abuse of power. Paluda is among the signatories of the letter.

The Judicial Council called Paluda’s complaint a “deceitful and untrue complaint about the Supreme Court chairman” which they said was filed with the intention of harming and dishonouring Harabin.

Helena Kožíková, a member of the Judicial Council, was quoted by SITA as saying that the council suspended Paluda because “whether anybody likes it or not, it is at odds with judges' ethics to file criminal complaints against the chairman of the court or a colleague”.

(The complaint apparently had to do with unpaid compensation owed judges.)

You have to admit, it's a handy and easily-remembered definition of judicial ethics.  Unlike the typical American code based on the ABA model rules, which is nearly impossible to violate without money changing hands on video, it has an admirable combination of brevity and clarity: don't criticize the chief judge. 

So what about it is hard for Slovakian judges to understand?

Stanislav Sojka, a judge at the Michalovce District Court, has now learned that writting letters to the head of state can be a perilous undertaking.

Sojka was found guilty of a serious disciplinary offence by the disciplinary senate of the Supreme Court on October 21.

The court ruled that a letter which Sojka sent to Slovakia’s president, Ivan Gašparovič, constituted a serious violation of judicial ethics. ...

The disciplinary senate said that Sojka’s letter was filled with “semi-truths and invectives” against his boss, Jozef Soročina, attorney Juraj Kus and former justice minister Štefan Harabin, the Sme daily reported.

The Slovak media has not learned the exact reasons why Sojka is now being punished, but his salary is to be cut by 50 percent for the next six months.

That name Harabin seems to keep coming up:

Judge Jana Dubovcová has never hid her opinions about the state of the judiciary in Slovakia and its top representative, Štefan Harabin. Earlier this year, she supported a campaign run by a political ethics watchdog seeking to prevent Harabin’s election as Supreme Court President. She did not sign a letter prepared by 15 Slovak judges charging that disciplinary proceedings were being used against some judges as a tool of intimidation only because she thought that the letter was addressed to the wrong people. The judges sent their letter to the president, prime minister and speaker of parliament hoping to find a sympathetic ear. But Dubovcová, a Banská Bystrica district court judge, suggested in an op-ed published in the Sme daily on September 9 that she held these three officials partially responsible for the current condition of Slovakia’s judiciary.

Shortly thereafter, Dubovcová’s boss, Ľubomír Bušík, submitted a proposal for disciplinary action against her and demanded the strictest possible punishment – suspension. Bušík claimed that by expressing her personal opinion, Dubovcová had questioned the work of the Judicial Council. Bušík also criticised Dubovcová for attaching her name to the “Red Light for Harabin” campaign organised by the Fair Play Alliance NGO to oppose Harabin’s election, according to Sme.

Shortly afterward, the powers that be backed down, while suggesting Dubovcová was really carrying water for her former boss, now an opposition MP.  Both the withdrawal of the charges (treating the female judge more leniently than her male colleagues--check out the ninth paragraph of this story) and the attempted smear (suggesting she's the puppet of a powerful male) strike me as at least presumptively sexist. 

Male judges don't appear to get the benefit of withdrawn charges:

Juraj Majchrák, the former vice president of the Supreme Court and the honorary chairman of the Association of Judges of Slovakia faces yet another, now the third, disciplinary proceeding against him within three months, Sme reported.

Harabin is proposing that Majchrák be suspended as a judge due to what Harabin calls a failure by the judge to handle his duties, claiming violations such as procrastination on cases. Majchrák, who has been a critic of Harabin and also his competitor as a counter-candidate for the post of Supreme Court president in 2003, only learned about the third disciplinary proceeding from journalists who were seeking his response.

The appalling Harabin was formerly Justice Minister for the country.  While serving in that position, two members of Parliament,

[Daniel] Lipšic (KDH) and Lucia Žitňanská (SDKÚ), sought to have Harabin recalled for what they said was being on friendly terms with Baki Sadiki, the alleged boss of a drug gang that operates in Slovakia. Harabin not only survived that motion, but today sits atop Slovakia’s Supreme Court.

Nevertheless the sentence “You will go to jail, you bastard”, which Harabin said to Lipšic, as broadcast by the TA3 news channel, will now remain a symbol of this peculiar era of Slovakia’s judiciary – a throwback to bullying tactics that Slovaks thought they had permanently rid themselves of in 1989. But apparitions from the past still lurk in dark corners, ready to emerge should society lose its vigilance.

Slovakia has long been viewed, at least semi-unfairly, as a smoky blue collar contrast to its beautiful former yokefellow Bohemia -- the Albuquerque to Prague's Santa Fe.  But it borrowed its legal system from Germany, a pretty good model.  And in recent years it's produced more good news than a lot of the former Communist nations.  But relatively good economic times might only have disguised the extent to which Stalinist hoods were still running the country.

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