Thursday, March 22, 2007


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!

Monday, March 12, 2007


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.

Saturday, March 3, 2007


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.