THE GOTCHA GENERATION

I confess that I have never seen the TV program To Catch a Predator, but I have seen the
promotions for it. I cannot understand why anyone would want to see these pathetic people humiliated and embarrassed week after week. I suppose the show can be justified on the basis that it provides a warning and serves some deterrent purpose, but it is just as likely to make the predators more cautious, assuming any of them actually watch the program. Finding them and arresting them serves the public good, but televising the moment mystifies me. Joy in the humiliation of others seems like a fairly lame format to justify a TV show (although I suppose American Idol does it for a while).

Which brings me to the case of Senator Larry Craig. First let me concede the irrefutable: yes, he pleaded guilty to a crime, albeit disorderly conduct. Yes, he is a hypocrite, as are all of his friends and colleagues who failed to come to his aid. It is quite ironic that it may be his repressive, anti-gay policies and those of his colleagues which may have created the need to seek gay sex in public bathrooms rather than out in the open. Yes, the police officer was doing his job, and it was not entrapment. Yes, prominent persons should not receive preferential treatment. But, should tapping one's foot and waving one's hand in an effort to solicit consenting sex warrant the death penalty?

There is very little about the Senator's voting record with which I agree. His hypocrisy offends me much more than his conduct. But I am certain that elected officials have been caught for other disorderly conduct offenses and sent home with a warning by the police officer. The solicitation of sex with a prostitute does not seem to bring ethics charges or demands for resignation from public office. His conduct certainly had nothing to do with the performance of his official duties. Let's face it: it's the "gay thing".

Would not a stern warning have sufficed rather than the destruction of an entire lifetime of public service, humiliation for him and his family and his inevitable resignation? Yes, the Senator was stupid and he brought this upon himself, but should we not have some sympathy and compassion for a person in such a high position who feels compelled to seek sex in an airport's men's room? Does the punishment fit the crime; or is this just another TV show celebrating humiliation. Gotcha!

CUT AND RUN OR STAY AND DIE?

Neither is a fair characterization of the alternatives. But the Bush administration mocks the Democrats for either their failure to have any plan regarding Iraq or their proposals for troop withdrawals. The administration (always better at devising advertising slogans rather than actually governing) characterizes the Democratic plan as "Cut and Run", and now points to the consequences of leaving Vietnam, citing the killings that followed our withdrawal.

No one can quarrel with the noble goal that we should attempt to combat the senseless killings of mass numbers of civilians wherever it should occur. But in deciding when and where to intervene, as part of the equation we must calculate how much we are willing to sacrifice. What would have been the cost in lives and wounded if we had remained in Vietnam? No one asks this President: How many American deaths, disabilities and dollars are you willing to expend in this elusive goal of bringing peace and democracy to Iraq?

The administration's position conjures up this analogy for me: Arsonists (the Administration) start fire to a building, and residents and firefighters are killed. When it appears that the building is about to collapse causing further deaths to both groups, the Arsonists (the Administration) who caused the fire in the first place, take their megaphones to the streets and shout at the spectators (the Democrats): "What are you going to do about this?"

Because of the quagmire that this President has created, there may be no adequate solution, but when the Democrats respond with a variety of proposals, only this Administration could say with a straight face-----that proposals to bring the troops home to safety put them in harm's way, while keeping them in Iraq indefinitely---does not!

YOUR MONEY OR YOUR RIGHTS?

Adam Liptak reports in the N.Y. Times (7/16/07) that welfare recipients and applicants in San Diego are subject to unannounced visits and searches to assure that they are not defrauding the government. In other words, those "who want public benefits must give up their privacy", and apparently that means their rights under the Fourth Amendment regarding searches and seizures. Wow, what a great idea!

If that is the law and I were a law enforcement officer, I would be so ecstatic I wouldn't know where to begin. First, I think I would be tempted to bust into the offices of the defense contractors to see what evidence I could find of over-billing. But wait, maybe barge into those oil companies with their large subsidies to see whether or not there is any evidence of price fixing. But hold on, what about the cigarette companies and their tobacco subsidies and the possibility of gazing at those scientific reports they have and comparing them with what they have been saying for years to the public about their products.

The welfare investigators who happen to come across evidence of other crimes pass that information on to the appropriate law enforcement agency. So if any of the above corporate searches don't hit their original targets, maybe we can still find some tax evasion or bribes just by rummaging through their books in the same way the welfare investigators rummage through drawers looking for men's underwear.

However, the corporations receiving tax benefits or subsidies from the government should have the same opt-out options as the welfare recipients. Mr. Liptak points out that "the majority in a divided three-judge panel indicated "that people are free to opt out - by giving up their welfare benefits." In other words, welfare recipients (as in one of those game shows) can keep the money and give up their Fourth Amendment rights, or keep the rights and starve --both themselves and their families. Sounds fair to me.

So, corporations should have the same privilege. They can keep their subsidies, their tax breaks, their government contracts as long as they give up their Fourth Amendment rights, or they can retain those rights and give up the benefits. Right!

The purpose of these unannounced searches is laudable---to root out welfare fraud. But welfare fraud is a crime, and merely because it is "welfare" should not make the Bill of Rights inapplicable. When the poverty line was established it was not meant to provide that those who fall below it surrender their constitutional rights.

THE RESTROOM ATTENDANTS' LOYALTY OATH

In view of the current revelations regarding the administration's suppression and control of the Surgeon General, it is apparent that no branch of the government has escaped politicization. I envision the government's restroom attendants lined up every morning at attention, mops on their shoulders, pails at their sides and hands on their hearts reciting the "Bushie" loyalty pledge.

In respect to both the U.S. Attorneys and the Surgeon General, the President's press secretary has said that the President should be able to carry out his own policies. No one can quarrel with that statement, except when those policies further partisan interests rather than the public interest. The administration can properly establish priorities for United States Attorneys in focusing on particular types of criminal activities, but it cannot and should not seek to use the criminal justice system to accomplish political gains or to protect political allies.

It can encourage and even direct the Surgeon General to focus on particular scientific and medical areas, but it cannot and should not attempt to conceal reports and information which would serve the public interest. The White House has chosen to deny the accusations of Dr. Carmona that he was directed not to speak about stem cell research, sex education and prison health care and that a report on the dangers of second hand smoke was "watered down" and delayed. (NYTimes 7/11/07) But denials by this administration of any wrongdoing or falsity are so automatic that it is fair to treat them simply as admissions. One only need ask what possible motive could Dr. Carmona have for fabricating all of these stories?

But nothing better symbolizes the priorities of the current administration than its efforts to discourage support for the Special Olympics solely because of its historic ties to the dreaded Kennedy clan. Dr. Carmona was asked by a senior official: "Why would you want to help those people?" By those people, he, of course, meant the Kennedys, but in turn, the administration was willing to forgo support of an event and organization that gives encouragement and aid to thousands of special children. But for an administration that would rather see people die than allow stem cell research, it should come as no surprise in a choice between hurting a cause sponsored by the Kennedys or helping that worthy cause because of the good that it does, that they would pick the former over the latter. Politics has infected every corner of this administration, and apparently even the Surgeon General, the country's chief doctor, has suffered from its effects.

SEX v. NATIONAL SECURITY

Everything that could possibly be said about the commutation of "Scooter" Libby's sentence has been said. Whether or not one accepts the reasons for the President's actions, it is the hypocrisy of those who support it and also sought the impeachment of President Clinton that I find so irksome. President Clinton lied in a civil proceeding in an effort to conceal a sexual relationship. True, his conduct and its concealment demeaned the presidency, but it had no relationship whatsoever to the conduct of his office or his administration. Nonetheless, those seeking impeachment were intent upon causing the President of the United States to be removed from office, humiliated and embarrassed, and the nation disgraced in the process.

Compare that with the subject matter of Mr. Libby's conduct in a criminal investigation and what it was he was trying to conceal. The administration sought to discredit a critic of its justification for the war against Iraq; was willing to use secret information to do so, and as a result outed a CIA agent and endangered other operatives as well as our national security. The cover-up involved an outrageous abuse of power to silence opposition to the war and exposed a willingness to take any action to accomplish it, even if illegal.

The crimes of perjury and obstruction of justice are serious and in these two cases may be the same on their face, but Mr. Clinton's lie was to avoid causing him and his family embarrassment. The lies of the Bush administration brought us to war, killing and wounding thousands of our own soldiers and innocent citizens of Iraq, brought about world hatred against us, the loss of the respect of our allies and a government, apparently so intent in spreading democracy abroad, that it has forgotten to practice it here at home.

The irony is summed up by the fact that no one has been indicted or punished for the outing of Valerie Plame, despite President Bush's assurances that he would do so. The sentence of the one person charged and convicted of covering up the underlying crime has been commuted, and the only person imprisoned as a result, was a newspaper reporter for her stand in protecting the First Amendment.

LOST PANTS SUIT v THE SUPREME COURT

It is a toss-up for me as to whether the nation's perception of our judicial system is injured more by the judge who is suing for $54 million over his lost trousers or by the Supreme Court's decision dismissing an appeal that was filed within the time period specifically allowed by a federal judge----on the grounds that it was filed too late!

In Bowles v. Russell the petitioner moved to extend the period for filing a notice of appeal. The District Court granted the motion and granted him 17 days to file, rather than the 14 days authorized by the applicable Federal Rule of Appellate Procedure. He filed within the time period prescribed by the District Court order. The Sixth Circuit dismissed the appeal on the grounds that the notice was untimely, and the Supreme Court affirmed, agreeing that, as a result of the untimely filing and despite the petitioner's reliance upon the District Court's order, the Sixth Circuit had no jurisdiction to hear the appeal.

The basis for the ruling was that the time period prescribed by Congress was "mandatory and jurisdictional". In doing so the majority chose to ignore that line of cases holding that time prescriptions are not jurisdictional, unless Congress has specifically designated them so. But even if the majority's analysis is correct, it not only failed to create an exception based upon the petitioner's reliance upon the District Court's order, but rather chose to overrule existing decisions which would have saved the appeal. I suppose that one cannot argue with the logic that if the time period is "jurisdictional" that a court cannot confer jurisdiction after it ceases to exist, and that neither"unique" nor any other kind of circumstances can confer jurisdiction that has already expired. But this case does not involve a delineation of the kinds of cases that federal courts may hear but rather a rule for processing claims in those matters over which the courts have jurisdiction.

But consider these circumstances: The error was brought about solely by the court. The petitioner neither contributed to nor caused it. Actually it is inaccurate to say that the District Court extended the time to 17 days. The Court actually fixed the date by which the appeal was to be filed, and it turned out be 17 days. The mere date would not have put the petitioner or his counsel on notice unless they calculated the elapsed time. There is nothing to indicate that the notice of appeal could not or would not have been filed within the 14 day period, if the order had required it, nor is there any evidence that any party was prejudiced by the 2 day delay. No objection was made by the respondent to the extension, presumably because neither counsel noticed it.

The bottom line is we have an appeal dismissed in a murder case (notwithstanding that petitioner filed his notice of appeal in accordance with the time specifically granted him by a United States District Court) on the grounds that the Court exceeded its authority in fixing the time through no fault of the petitioner. Has strict construction replaced all sense of fairness?

IS CELEBRITY JUSTICE UNEQUAL?

I cannot believe that I am writing about the Paris Hilton case, but I find that it has some significance. The Sheriff in the Paris Hilton case insists that he did not "re-assign" her to home-confinement because of her celebrity status, but rather that it motivated the severity of the sentence imposed by the court. The Sheriff contends that Paris Hilton received a much stiffer sentence than someone else would have received with the same history and charges. And my question: is there anything wrong with that? Would it be appropriate for a court to impose a lengthier sentence upon a person solely because of his or her public persona or position compared to a lesser known person guilty of the same offense, all other things being equal?

I have always been a skeptic about the deterrent effect of punishment. But in a recent argument before the Supreme Court, in a case in which a prosecutor seeking the death penalty implored the jury to "send a message" to like-minded, potential offenders, Justice Kennedy said deterrence is one of the reasons we have the death penalty. If deterrence is a proper goal of sentencing, would not a severe sentence upon a celebrity such as Paris Hilton or a high public official such as "Scooter" Libby serve that purpose, because the world would be watching and the message would receive far wider dissemination than with some unknown defendant.

Likewise, should not a judge take into consideration that a person who has had every advantage that money, education, position and power can offer, nonetheless violates the law? Would it be inappropriate to treat that person more harshly than the person who has had none of those advantages? Should not a well-educated person holding a high position in the government receive a harsher sentence for obstruction of justice and perjury than an unemployed, uneducated street criminal?

The judge in the Hilton case also might have wanted to dispel the common perception in this country that the rich and powerful can escape the consequences of their actions, while the poor and minorities must suffer punishment for their conduct. We make distinctions all the time in sentencing. We treat the man who robs the grocery store to feed his family differently from the one who does it to feed his drug habit. The crime is identical, but the motive is not.

I spent 15 years imposing sentences---in the hundreds, maybe in the thousands. There is nothing more difficult or agonizing for a judge. Equal treatment under the law is an elusive concept. We do not want the rich and famous to receive leniency because of their status, but is there some justification to treat them more harshly because of it?

AN OPEN LETTER TO THE VOLOKH CONSPIRACY

My thanks to the Volokh Conspiracy for fulfilling my purpose in starting a blog. I did so in the hope that I could engage and encourage reasonable and rational discourse on a number of topics in which I had an interest. Responses to my posts were rather meager until this week when the Volokh Conspiracy at the instigation of my former law clerk, Eric Muller, referred to my post on X-Judge: Interrogatories for Prosecutor Fitzgerald. Frankly, I had hoped that prior posts would have created the same kind of activity, but I have learned as a neophyte in the blogoshphere that they need a boost from such respected and recognized sources as The Volokh Conspiracy or Is That Legal?. I thank you both for launching me. I hope that it is only the beginning.

The irony is that it was a comment to the Volokh Conspiracy on the day that Prof. Orin Kerr was kind enough to announce the launching of my blog, that caused me to consider ending it the moment it began. Apropos of nothing James Fulford referred readers to Jonathan R. to learn how wrong my decision was in granting habeas corpus to Rubin "Hurricane" Carter. I do not know Mr. Fulford or the mysterious Jonathan R or their credentials, but the clear suggestion is that there is where the truth can be found.

The article is entitled: WHAT'S WRONG WITH JUDGE SAROKIN'S DECISION? PLENTY! The "truth" is placed side-by-side with a column entitled: What Sarokin Says. I have no intention nor the time to go back and review my decision (incidentally written almost 25 years ago) to determine whether or not the quotes attributed to me are accurate. But to take just a few for example, I cannot visualize my saying in an opinion:

"Lieutenant DeSimone's testimony on Carter's account of his whereabouts cannot be believed for some reason." or
"Anna Brown perjured herself to help her daughter marry a policeman."

I know a little bit about my own writing style, and those sure don't sound like me. But even if accurate, virtually none of the "inaccuracies and misstatements" have anything to do with the basis for my decision. I found that the prosecutor made an improper appeal to racism in his closing, and that a false report regarding a lie detector test was used to manipulate a witness (Bello) to return to his original testimony at the first trial that he was outside the bar when the shootings took place and not inside as he was prepared to testify at the second trial (and if my recollection is wrong here---the opinion speaks for itself.)

There, indeed, may be factual inaccuracies in my opinion. (The record was over 140,000 pages.)There also are others who disagree with the conclusion, but what astonished and disheartened me was the source of Jonathan R.'s "truth". He did not refer to the lengthy record, the petitioner's briefs and submissions, the unanimous affirmance of my decision by the United States Court of Appeals, nor the denial of cert. by The United States Supreme Court. No, his sole source to conclude that my decision was wrong was the brief of the prosecutor!----the losing party! If that is the test, then I am certain one would conclude that all of my decisions denying habeas corpus relief were also wrong, if one simply compared them against the petitioner's brief.

I do not want to spend my time sticking my thumb in the dike of every criticism that flows out against me, but sometimes when someone else's finger pokes me in the eye, I feel the need to respond. (As I did with the National Review- see X-Judge THE NATIONAL REVIEW RE-TRASHES ME). I know that being out here in space makes me vulnerable, but I hope I can spend the time discussing the issues rather than defending my past---- of which, incidentally I am very proud.

My thanks again to Eugene Volokh, Orin Kerr and Eric Muller for giving me the opportunity to be heard, even though I have found that in blogging ---- it is better to give than receive.

INTERROGATORIES FOR PROSECUTOR FITZGERALD

I. Lewis "Scooter" Libby, Jr. has been convicted and sentenced. The debate rages over the propriety of the prosecution, the severity of the sentence and the probability of a pardon. I wince at those who belittle the charges of perjury and obstruction of justice. But I do agree that the failure to indict as to the underlying charge of "outing" Valerie Plame as a CIA operative requires some explanation.

Federal grand jury presentments are no longer in favor for reasons too complicated to discuss here, but in view of the length and expense of this investigation and the public interest involved, it would seem that the special prosecutor should issue some statement or report as to the result of that investigation, unless there is some prohibition against his doing so. In view of the obvious thoroughness of Mr. Fitzgerald's investigation, he, more than anyone else, has the knowledge of what actually transpired. Here are some of the questions that should be answered:

1. Was a crime committed in the outing of Valerie Plame Wilson? If so, why was no one indicted?

2. If not, what elements were missing?

a. Is it because she was not "covert" as many have claimed?

b. Is it because of the geographic location of her station?

c. Is it because of some time period?

d. What other reasons were there for not prosecuting?

3. Who were the persons responsible for the disclosure of the information regarding her?

4. Was an agreement reached between the prosecution and Robert Novak? If so, what were the terms?

5. Did the prosecutor make any recommendations or referrals for actions (other than criminal) such as disciplinary, to be taken against any individuals other than Mr. Libby, and if so who and what? Would he recommend any now?

Some of these matters were or may have been presented during the course of the Libby trial and reported in the media. However, the country deserves the details in a formal presentation from the official in charge, when it appears that the power of the administration was utilized and abused for the sole purpose of discrediting a critic on an issue relevant to our going to war against another country.

THE DISCRIMINATION HISTORY DEFENSE

Based upon the Supreme Court's decision in Ledbetter v. Goodyear, an employer that is currently practicing pay discrimination can defend against a victim's claim by proving that it had engaged in such discrimination for a long period of time. In other words, incredibly if an employer can demonstrate that it had a history of pay discrimination that was initiated and existed more than 180 days before the employee filed her claim, then the claim will be barred. I visualize this future courtroom scenario:

Plaintiff's Counsel: Your honor, the moment my client discovered that she was being discriminated against in respect to her pay, she immediately filed the appropriate claim and this lawsuit.

Defense Counsel: Your Honor, the Ledbetter decision provides an absolute defense to this action. My client has a long history of discrimination, and its credo is never to pay women, African-Americans or Hispanics what it pays to white males for the same work or position. Since the discrimination begins the day they are hired and we have employed the plaintiff and these other employees for years, although the disparity continues to this day, this complaint must be dismissed, because more than 180 days has elapsed since we started discriminating against her.

The Court: Counsel, in accordance with the Ledbetter case, since you have established that your client has had a long history of discrimination, the motion to dismiss will be granted.

The Court has concluded that the "unlawful employment practice" occurs when the salary is first fixed and that the required claim must be made within 180 days thereafter. Apparently this time line applies "even if the effects of the initial discriminatory act were not immediately apparent to the worker and even if they continue to the present day". (NYTimes 5/30/07) Putting aside the practical problems faced by an employee in attempting to learn about the pay disparity, and the hesitancy one might have to sue despite that knowledge, how can its continuance not be an "unlawful employment practice"?

Supporters of the opinion point out that it eliminates stale pay claims. But this decision does not deal with how far back the claim may go, but rather whether it reaches the threshold of allowing the claim at all. It is inconceivable to me that an employer can be shielded from a continuing pay discrimination claim solely on the grounds that the discrimination has been ongoing for a long time, but that is exactly what this decision holds. A history of discrimination constitutes a defense to a discrimination claim!

WHAT A DIFFERENCE A DAY MAKES

In a previous post (Punitive Damages v. The Death Penalty 3/22/07) I discussed the difficulty I thought the Supreme Court would have reconciling its decision that a jury in awarding punitive damages could not consider prior harm to identifiable victims, while a jury in a death penalty case could consider the possible (and unlikely) effect upon unknown persons. The prosecutor in the Weaver case, in urging the death penalty, had argued to the jury in emotional terms that they should "send a message" to deter others. I think such an argument is totally inappropriate and agree with the Eighth Circuit that it is "unfairly inflammatory" and should warrant reversal.

The dissent from the per curiam opinion which dismissed the writ of certiorari on the grounds that it was improvidently granted, is more interesting in what it says about the Antiterrorism and Death Penalty Act of 1996 (AEDPA) than what it says about the propriety of the prosecutor's closing. Although the history of the matter is somewhat convoluted, apparently everyone agrees that the District Court improperly dismissed the defendant's habeas petition on the ground that he failed to exhaust his remedies, because he expressed his intention to apply for certiorari from the Supreme Court. His original petition was filed pre-ADEPA, but he re-filed after its adoption.

Not without considerable justification, the dissent argues that the matter should have been decided on the merits as to whether or not the Eighth Circuit had exceeded its authority under the Act in setting aside the capital sentence. However, what caught my attention was the following question posed by the dissent: "Is what happened here any less rational, any less fair****than the random fact that one petitioner's habeas action was filed a day before AEDPA's effective date, and another petitioner's could not be filed until one day after?" What a difference a day makes! The logic is compelling, but the consequences of the statute are chilling.

Further logic suggests that what would have been grounds to reverse the imposition of the death penalty on one day might be gone the next. The dissent suggests that the Court's failure to deal with the matter on the merits causes harm by requiring the State of Missouri to try the defendant again after two decades, and "The greatest harm is done to the AEDPA, since dismissing the writ of certiorari leaves the grossly erroneous precedent on the books".

But could it be that the greater harm comes from the Act itself which may serve to deprive a person sentenced to death of grounds for reversal which otherwise would be recognized, but for the more stringent standard of review mandated by AEDPA. Many, who heretofore would have avoided the death penalty, will now face it ----solely by act of Congress. Here today; gone tomorrow.

WHAT DO ALBERTO GONZALEZ AND A CHICAGO DIVORCE LAWYER HAVE IN COMMON?

They both have demeaned the legal profession. A huge billboard in Chicago's nightclub district proclaims: "Life's short. Get a divorce" It features photographs of "a sexy, scantily clad woman on one side and a buff, bare-chested man on the other". (NYTimes 5/13/07) No matter what the message or the motive of the messenger, no one can dispute the right of the lawyer to offer her wares in this fashion. It has met with considerable success. As with the Attorney General, apparently all things are to be judged by whether or not they are working, not whether they are right or wrong. Illegal wiretapping, secret prisons, torture, unlawful detentions, political firings of U.S. attorneys, suspension of habeas corpus, rejection of the Geneva Convention, and undoubtedly a host of other conduct yet to be revealed (such as a coercive hospital visit to the previous Attorney General seeking approval of an illegal wiretapping scheme) are all justified on the basis that no further attacks have occured since 9/11. Ergo, these tactics, like the billboard poster, are working, The only difference being that encouraging divorce is not illegal or unconstitutional, although in this administration it might be one day.

As to the firings of the U.S. attorneys, nothing infuriates me more than the party line that these are political appointments, and the President, as did President Clinton, can replace them all. Yes, these appointments are political as are those to the courts, but once appointed, U.S. Attorneys, Judges and Justices cease to be political agents. To do otherwise violates their oath of office. Prosecutors should not be dismissed for pursuing criminal conduct by members of the party in power or failing to pursue actions for the sole purpose of embarrassing the opposition and affecting the outcome of elections. Justice is not meant to be used as a political weapon.

So look for a billboard with that infamous picture of the hooded prisoner at Abu Ghraib on one side and a smiling picture of the Attorney General on the other saying: "Stop Terror. Torture Works", because there is little that the current Attorney General does not have in common with the sleazy divorce lawyer.

A JUDGE STRIKES BACK

I have followed with some interest the libel suit instituted by a Massachusetts judge against the Boston Herald, which resulted in a $2 million verdict against the newspaper and was recently upheld. (NYTimes 5/8/07) I remember being outraged when I read that the judge, among other reported misconduct, had said about a rape victim: "She's 14. She got raped. Tell her to get over it." If true, it was inconceivable to me that such a person could be permitted to continue serving on the court. Apparently the jury found that it was not true and rendered its verdict accordingly.

What makes this case unusual, is that judges who are criticized rarely have the opportunity to respond in any fashion. Usually, they must remain silent no matter how unfair, unjust or untrue the accusations. I am totally in favor of robust analysis and criticism of judicial opinions and conduct, but the judge's inability to respond should place an enhanced burden on the critic to be accurate and fair.

I strongly believe this, not so much to protect the judge's sensibilities, but to maintain the public's confidence in the judiciary. I have spoken out for years about my concern that this constant barrage against judges, the mantra of "activist", "liberal", "soft-on-crime" and "legislating from the bench", all serve to erode the public's perception of and confidence in the judiciary. These labels which may produce some immediate political gain, in the long run will harm our judicial system if it causes the people to cease to believe in it.

SUSPECTED TERRORISTS CAN BE IMPRISONED BUT NOT DENIED GUNS

I find it ironic, but not surprising, that the NRA opposes a bill that would prohibit suspected terrorists from buying firearms. (AP 5/5/07) I should disclose that I have never seen a gun control bill that I didn't like. I agree with the slogan that: "Guns Don't Kill People; People Kill People", but call me crazy, I think a person who did not have a gun would have difficulty shooting anybody.

But the tens of thousands of deaths every year and the slaughter of innocents by guns doesn't seem to deter the trend of having every American citizen packin'. "A Gun in Every Pocket" is reminiscent of the old slogan: "A Chicken in Every Pot", except there the goal was to feed all people, rather than improve their chances of killing others or being killed.

Having disclosed my bias, the irony that I see is the supposition (maybe incorrect) that many, if not most, of the members of the NRA have no difficulty with the unfettered discretion of the President in detaining "suspected terrorists" indefinitely and denying them many traditional rights. Apparently it is acceptable to incarcerate them on suspicion, but not deprive them of their right to bear arms.

Of course, the ultimate irony may occur when one of those "activist, liberal, soft-on-crime, legislating judges" that conservatives are always complaining about, comes along and agrees with them and declares the statute unconstitutional on the same grounds that they oppose it.

BLINDING JUSTICE

The Ohio Supreme Court (NYTimes 5/3/07) "overturned a law that required a prosecutor's consent to allow felons who had pleaded guilty to seek DNA tests that could prove their innocence". The Times reports that other states have similar legislation. We know that innocent persons are convicted of crimes, and there is probably an even larger number of those who plead guilty to crimes that they did not commit----many in fear of going to trial and receiving a much longer sentence than the plea bargain provides. (Which may explain the reduction in criminal trials reported by Adam Liptak NYTimes 4/30/07.) There is no way to calculate how many such cases exist because the same fear precludes subsequent challenges.

But what is difficult to understand is why a state legislature would enact such a statute even if only one innocent person entered a guilty plea. The proffered justification for the denial is that it interferes with the peace of mind of the victim "if a convict sought a hearing on DNA tests". It is difficult to envision how a DNA test would involve the victim, but even if it did, one would think that a victim would prefer to be inconvenienced rather than run the risk of having an innocent person remain in prison while the real criminal roamed free.

The Ohio Supreme Court wisely overturned the legislation on the ground that it violated the separation of powers and declared that the legislature"may not impede the judiciary in its province to determine guilt in a criminal matter". We should be searching for ways to ease the plight of innocent persons confined for crimes they did not commit, no matter how small the number may be, rather than impose barriers to their exoneration.

MILEAGE POINTS FOR JAIL UPGRADES?

Today's New York Times 4/29/07) reports that minor crime offenders can obtain "pay-to-stay upgrades" at a number of city jails in California. The accommodations ranging from $75 to $127 per day are cleaner and safer and allow for the right to bring certain electronics as contrasted with the those provided the non-paying clientele. The system is justified by the income it generates and sells itself to prospects on the basis "that you are isolated and you don't have to expose yourself to the traditional county system." You don't enter the jail by the same means as the non-paying guests. In other words, even though you have been adjudged a criminal, you don't have to be treated as one, if you can afford it.

Rubin "Hurricane" Carter describes life in prison as being locked in "an iron cage**** I was a prisoner, a number, ******Not a person. Not a human being. But a body to be counted fifteen or twenty times a day." Of course, his confinement followed convictions for murder, not some minor offense. But it is important to recognize the harshness of any jail or prison time and that some offenders should be treated differently--should be isolated from the repeat and violent offenders. However, that selection and segregation should not depend upon the wealth of the offender. The concept is valid but the criterion is not. Just because a criminal can afford to be a frequent flier should not result in a jail upgrade.

NATIONAL REVIEW RE-TRASHS ME

Someone forwarded me an article which recently appeared in the highly respected National Review (Online). It was a re-trashing of me, based upon an opinion that I had written while on the United States District Court some 15 years ago in the Haines case. Also, I haven't served as a judge for 11 years. What a proud moment in journalism that must be! But in all fairness, putting aside the venom in the article, most of it is true. I was criticized by the Court of Appeals, reversed and was removed from the case, and nonetheless, despite my obvious shortcomings was nominated and confirmed for a seat on the Third Circuit Court of Appeals.

The language which prompted my dismissal from the case (after several failed tries by the tobacco defendants) was the following:

"All too often in the choice between the physical health of consumers and the financial well-being of business, concealment is chosen over disclosure, sales over safety and money over morality. Who are these persons who knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and who believe that illness and death of consumers is an appropriate cost of their own prosperity!

As the following facts disclose, although there may be some rising pretenders to the throne, the tobacco industry may be the king of concealment and disinformation."

At my Senate confirmation hearing, I even conceded that if given the opportunity I would probably take that language back if I could (although convinced then and now of its accuracy), because I recognized that despite its truth, it might not be appropriate language for a court opinion, and certainly not, if it was going to cause my removal from cases that I had presided over for almost 10 years.

But in retrospect, strangely enough, though criticized, reversed and causing my removal, I think the decision in the Haines was probably the most important decision of my career. I was informed by Dr. David Kessler that it launched the FDA's investigation into tobacco; a TV documentary suggested that it was the basis of the federal government's case against the industry, and many lawyers representing the states in their claims against the industry (resulting in the largest settlement in history) credit my decision with being the catalyst for their suits.

My decision is characterized by NR as a historical example of "liberal judicial activism". The Court of Appeals found it to be wrong, and I agree with its decision in every respect, except the basis for my removal. But I fail to see what makes it either "liberal" or "activist", unless rulings against the tobacco industry automatically fall under those labels. Also, fairness might have prompted NR to include the following quote from the appellate opinion---although admittedly inserted to soften the blow of my removal:

The district judge in this case had been a distinguished member of the federal judiciary for almost 15 years and is no stranger to this court; he is well known and respected for his magnificent abilities and outstanding jurisprudential and judicial temperament. On the basis of our collective experience, we would not agree that he is incapable of discharging his judicial duties free from bias or prejudice.****

Finally, the judge who authored that opinion removing me from the case was the staunchest supporter of my subsequent nomination to be a member of the very court upon which he served. Surely NR can find some active judges engaged in activism. If not, they might want to review the opinions of the Rehnquist Court which declared unconstitutional more acts of Congress than any Supreme Court in history.

MALPRACTICE MEANS NOT SAYING YOU'RE SORRY

I learned for the first time today that there are laws in many states prohibiting the use of a doctor's apology as an admission in a malpractice claim against the doctor. (AP, R.I. 4/12/07) According to the report, at least 28 states already have the legislation and 8 other states are considering adopting it. Furthermore, the article reveals that insurers warn doctors against the dangers of apologizing or using words such as "error", "mistake", "fault", or "negligence" in talking to their patients.

Is this what our legal system has wrought? Have we so intimidated the medical profession that its members fear admitting their mistakes and offering to correct them; that we need legislation to protect them against the consequences of apologizing? Concededly, doctors are faced with baseless malpractice claims, exorbitant insurance premiums, the expenditure of time and emotion in defending suits and the possibility that their mere threat causes them to practice and prescribe in a manner that they would not do otherwise.

But likewise, there are legitimate malpractice claims. Do we want our medical profession to be more concerned with potential liability than being candid and caring for the health and well-being of their patients. And if morality and principle do not suffice, practically, who is more likely to be sued, the doctor who admits his mistake to the patient and offers to correct it or the doctor who conceals and avoids confessing the error.

I had a doctor for years who had a sign in his waiting room: I HAVE NO INSURANCE. IF YOU PLAN TO SUE ME, PLEASE GO ELSEWHERE. If he made a mistake, I know he would tell me, because he was more concerned with my health than his liability. If we in the legal profession have reversed that then I hope none of us ever gets sick.

PUNITIVE DAMAGES v. THE DEATH PENALTY

The Supreme Court recently decided that the due process clause prohibits calculating punitive damages based upon harm caused to strangers. (Philip Morris USA v. Williams). In other words, when punishing a corporation with money damages, a jury must engage in individualized decision-making, but maybe not so in deciding the imposition of the death penalty. (In re William Weaver, NY Times 3/22/07)

I suggested in an earlier post (Punishing Punitive Damages) that it might not be inappropriate in awarding punitive damages to consider that the corporate defendant had a history of the same wrongful conduct and knowingly continued it, and that an award based upon that history would serve to punish the defendant and deter it and others from doing the same. But the Court having confined a jury's consideration to the individual claimant where only money is involved, it is difficult to reconcile that with the argument that a jury can consider the effect upon "strangers" where life is involved. True, in the punitive damage case the "strangers" were other victims, and here they are potential perpetrators, but in each instance, we are talking about persons not before the court.

It can be debated whether or not the death penalty actually deters anyone. But assuming, as Justice Kennedy stated that "Deterrence is one of the reasons we have the death penalty", the question remains whether or not that policy should be presented to a jury as a reason to execute a particular individual. Assuming a jury is undecided, should the possible effect upon unknown others tip the scales and result in the imposition of the death penalty?

Of course, all of this is played out against the unfortunate and almost insurmountable barrier to habeas corpus imposed by the Antiterrorism and Effective Death Penalty Act. In effect and logically, it permits the prosecutor (and others) the opportunity to claim that the state court decision was not contrary to "clearly established federal law as determined by the Supreme Court of the United States" (as the statute requires), if the members of the Court themselves cannot agree on the resolution of the underlying question!

HOW MUCH ARE WE WILLING TO SACRIFICE IN THE WAR AGAINST TERROR?

How much are we willing to sacrifice in the war against terror? Any criticism of the erosion of our civil rights is met with the argument that it is necessary and it is working. We haven't had an attack since 9/11! The questionable wire taps, secret foreign CIA interrogation prisons, possible torture, prolonged detentions without counsel or hearings, rejection of the Geneva Convention, the gathering of information by the FBI about American citizens and companies (revealed just today), the elimination of habeas corpus for certain categories of persons, etc. are all justified in the name of fighting terror and I believe, although I have nothing to substantiate it, that most of the country approves.

But since when have we tested constitutional violations by asking whether or not they produce favorable results? Do we condone beatings of suspects because they produce confessions? Do we condone unlawful searches because they disclose the whereabouts of illegal weapons or incriminating evidence? Do we condone the concealment of exculpatory evidence because it might aid the guilty defendant? Would we condone any of these practices on the grounds that they were necessary and were working! Or is the fear of terrorism so great that we are willing to sacrifice many of our cherished ideals and rights?

When Prof. Markel invited me to post to his blog and told me his readership was primarily law professors, I told him that my blog (X-Judge) was not "academic", and frankly, with but one exception, I hope never to cite a case again. But I leapt at this opportunity because I would be interested in knowing how law professors feel about these issues; what they are teaching in their classrooms, and what they are they learning from their students. I fear that we are in a constitutional crisis and what we give away now we may never get back.

This post was the result of an invitation to PrawfsBlawg.

THE INJUSTICE DEPARTMENT

Federal judges and prosecutors are concededly political appointments. In concept, judges were to be appointed based upon their competence, experience, integrity and fairness. Unfortunately, judicial philosophy has become the overwhelming criteria. The current administration decries "activist" judges, and then seeks to appoint those who will carry out its conservative agenda. (If that is not activism, I don't know what is.) However, those judges who disappoint by not fulfilling the expectations of their nominators cannot be terminated. President Eisenhower would have loved to discharge Justice Brennan for his liberal decisions, but thanks to life tenure and its guaranty of judicial independence, he could not-----all to the benefit of this country and its citizens.

But not so for federal prosecutors. During my judicial career, I have had the opportunity to see hard-working U.S. Attorneys and their assistants perform their duties in a dedicated and impartial fashion. That seems to be the general consensus regarding those appointees who are now to be replaced by the administration. As abhorrent as I find the practice, I am opposed to requiring the prosecutors to testify before Congressional committees. They should not be put in the awkward position of defending their choices as to past prosecutions and will be prohibited from speaking of pending ones. Few even seem to know why they are being replaced. According to the press, the main complaint does not involve competence, but rather the exercise of their discretion in whom to prosecute or not prosecute. Apparently, they are being removed either for their failure to do the bidding of the administration in prosecuting some or in choosing to prosecute others whom the administration preferred they did not; or merely to replace them as a patronage reward.

Although I am in favor of the Justice Department being called upon to explain and justify these dismissals, I fear that those hearings, as well, will be demeaning to the discharged U.S. Attorneys. The government will parade out a litany of faults and failures to justify and excuse its decision to discharge them. When the hearings are over, we will know what we know today:
The decision to discharge and replace these dedicated public servants was based upon political not personnel considerations.

PUNISHING PUNITIVE DAMAGES

The Supreme Court has decided (in the case of Philip Morris USA v. Williams) that the due process clause prohibits calculating punitive damages based upon harm caused to strangers to the litigation. The closeness of the vote reflects that there are valid arguments on both sides of this issue.

Let us assume that someone has been killed as the result of a defective tire. In the first law suit, the manufacturer learns that the tire is defective. Nonetheless, it continues to manufacture the tire and 100 more persons are killed as a result. Should not the company suffer a greater punishment with each new death? The more deaths; the more egregious the conduct to be punished. Therefore, it would be wrong not to consider harm to others so long as there was adequate proof of the prior deaths and their cause. The purpose of punitive damages is to punish past and deter future wrongful conduct. The continuance of that outrageous conduct in the face of knowledge as to its harmful consequences should certainly serve as one of the bases for calculating punitive damages. The prior conduct and record of a criminal defendant is considered in deciding the severity of punishment, even though the defendant may have already suffered punishment for those prior crimes. Why should it be any different in meting out punishment in a civil matter in which punitive damages are warranted?

But now let us assume that at several trials brought on behalf of those who have died from the defective tire, each jury is told about the 100 deaths as a basis for calculating punitive damages. Each then would be punishing the manufacture for the same 100 deaths. Therefore, it would be wrong to consider harm to others if it resulted in repetitive punitive damage awards for the same conduct and harm.

I wrestled with this very issue in 1989 in the case of Juzwin v. Amtorg Trading Co., 705 F. Supp. 1053, and concluded that multiple awards of punitive damages based upon injuries to others violated the due process clause, the only decision I ever made that was praised by the Wall Street Journal. Despite that praise, I eventually and unilaterally withdrew the decision, concluding that I did not have the power or authority to effectuate such a decision---that it required the Supreme Court or the Congress to do so. The Supreme Court has now spoken, but I continue to have the same concerns expressed above. The ability of citizens to punish others for outrageous conduct in instances in which government cannot or will not is a power worth preserving, but it is essential that guidelines be established so as to lead courts through this current quagmire.

COURT TV OR NOT TO BE

One of the fans of my blog (maybe the only one) suggested that I write about the Anna Nicole Smith case, and I responded that I could not conceive that there was anything left to say about it, but I was wrong. Justice Anthony Kennedy recently appeared before the Senate Judiciary Committee making the repeated and wholly justified (and usually ignored) plea for greater compensation for federal judges. He was diverted from his topic by Senator Specter who again raised the spectre of televising Supreme Court arguments.

Over the years I have been ambivalent about the televising of court proceedings. I recognize the usual arguments about the potential effect upon witnesses, jurors and possibly judges, but I have seen studies that suggest that the presence of the courtroom camera is soon forgotten and its effect minimal. On the other hand, although not a regular watcher, I have caught glimpses of the TV judges---rude, impolite, snide and impatient, rendering decisions from the hip, and fear that the public has come to conflate them with our real judicial system.

I can certainly understand Senator Specter's position. Wouldn't it have been marvelous for the country to see and hear live the arguments in a case that decided who would be President of the United States? Justice Kennedy is properly concerned about the single sound bite at the end of a session, but doesn't that same risk exist with the print media? And at the trial level, the country should be able to observe the "Scooter" Libby trial, one that so clearly demonstrates the workings of the current administration. But I also thought that showing the O.J. Simpson trial was the right decision, so that when he was convicted, the African-American community would have had the opportunity to observe the fairness of the trial.

Televising court proceedings might also serve to deter the real judges who are rude, arrogant and impatient and at the same time demonstrate the respect and fairness usually displayed by most judges serving throughout this country. I have always believed that how the litigants and lawyers are treated is as important as the decision reached. Every case will have its losers. How they feel about their treatment during the process is the true test of the system.

And that brings me back to where I started---the Anna Nicole Smith case. All of the positives things that I thought televised court proceedings might bring to educate the public and engender respect for our judicial system were eradicated watching the Florida proceeding, which was to determine where Ms. Smith was to be buried. I don't doubt the Florida judge's good intentions, but I thought that I was watching a poker game in someone's basement. Lawyers were arguing directly with each other. Witnesses were testifying from a variety of chairs or standing. It was difficult to tell who were the witnesses and who were the lawyers. The judge, despite his oft repeated desire to maintain the dignity of the deceased and the proceeding, seem to do everything to accomplish the opposite while expanding the scope of the proceedings well beyond the issue presented and probably beyond his jurisdiction as well. I suspect to the public this case is already part fact and part fiction, but for the dignity of our court system, I would love to see that TV plug pulled.

WHAT? NO SOFT ON CRIME CHARGE?

My conservative, former college roommate wrote to express his enjoyment at reading my blog, but suggested that I should try to be a little less critical and focus on some of the more positive things happening in the world. I conceded to him that my current writings were somewhat motivated by the years of mischaracterization and misinformation that were frequently used to describe my opinions, while I served on the court. Indeed, the same old chestnuts were roasted the day my first blog entry was published. Senator Obama in his new book, The Audacity of Hope, relates an incident where the mere change of a line in a speech about Lincoln brought down the wrath of the conservative world---suggesting that he was comparing himself to Lincoln.

In that same vain, I had intended to write today about the Supreme Court's decision in the case of Cunningham v. California, but I couldn't help but consider what the famous conservative voices would have done to me or any other judge they considered liberal in a decision that overturned the sentence of a man "tried and convicted of the continuous abuse of a child under 14".

But that aside, and following my roommate's advice to look on the bright side, the Cunningham decision, which requires a jury rather than a judge to find facts beyond a reasonable doubt in order to enhance a sentence under California law, is a recognition by a number of conservative Justices (including Chief Justice Roberts, Justices Scalia and Thomas) of the continued power and viability of the Sixth Amendment. Their presence in the majority may account for the lack of outcry from the conservative world, its failure to focus on the heinous nature of the crime or charge "soft on crime"---its usual practice when the Constitution serves to protect those charged or guilty as evildoers.

How the decision will play out remains to be seen. Many defendants will not want facts relevant to sentencing only presented during the guilt phase for fear of its spillover effect. Bifurcation may be needed frequently; thus extending the length of trials and jury service.

WHY WE SHOULD CARE ABOUT THE GUANTANAMO PRISONERS

When law students ask me what was my greatest case in the 25 years that I was a trial lawyer, I tell them that during the 1967 race riots in Newark, New Jersey, a group of lawyers was organized to represent African-Americans who were arrested during the riots, and I was among those who volunteered. I represented a man who had been swept up with a group of rioters and looters, spent 5 days in prison without being able to tell his family where he was, 7 days without legal representation and a total of 15 days before he had a hearing. At the hearing, he testified that at the time he was arrested, 5 A.M. in the morning (during a curfew) he was waiting for a bus---the same bus that he had taken for the last 16 years to go to his job. Although surrounded by the riots and the fires, he did not want to miss a day's work, because he needed the money to support his family. He was acquitted and released. That was my finest hour.

No one suggested to the Newark merchants that they should not do business with the many law firms that were representing the very persons who were charged with burning their stores and looting their merchandise. It would have been unthinkable. This is what lawyers do and did. For us in the legal profession, it was our proudest moment. It is what one dreams about while in law school.

By now everyone has heard and read about the statements by Charles D. Stimson, the deputy assistant secretary of defense for detainee affairs, suggesting that clients should consider ending their ties with law firms that were representing detainees at Guantanamo, the outrage that followed his statements (except from the President) and the purported apology that he offered. But, in truth, despite the outcry over his outlandish threats, no one should be surprised by the statements. They were uttered in a comfort zone and atmosphere which invited them.

The administration has dealt with any and all criticisms of its erosion of civil rights by charging that they are "unpatriotic", "aid or give comfort to the terrorists", or "injure the morale of the troops". Any judge who upholds the constitutional rights of the accused is pounded with being "a liberal", "an activist", or "soft on crime" (an expression that appears 6,720,000 times in a Google search). With an administration that engages in illegal wire- tapping, the unlawful detention of an American citizen, secret foreign prisons, disregard of the Geneva Convention and hints at permissible torture, ignores Congressional oversight and avoids judicial scrutiny for its actions, is it any wonder that one of its officials would feel free and comfortable suggesting that the pro bono representation of suspected terrorists should warrant sanctions from their clients?

There, indeed, may be be some real terrorists imprisoned at Guantanamo, but as we already know, many are there based upon false accusations, acts of personal or tribal vengeance or other misinformation. Many have been released. But no matter what their guilt or innocence, to threaten those who seek to represent them is to repudiate one of the most basic and fundamental rights now recognized in our democracy. Although we all want to wash Mr. Stimson's mouth out with soap, we should remember that the foul language he used---he learned at home---the White House.