Kafkaesque Konstitution

Ashen Justice: Charges Dismissed, Arrest Him!

What's going on here? Kafka? Der Prozess? Ja?

I admit it: I am a johnny-come-lately. But this (see below) is really too much.

Flash!: NYTimes, p. 1 September 26, 2003 (as paraphrased & disbelievingly interpreted by Prof. P. Tillers) :

In the unlikely event that the U.S. Court of Appeals for the Fourth Circuit upholds the federal trial court's apparent ruling that the U.S. government's refusal to allow Moussaoui to interview prosecution witnesses violates M's constitutional rights and that this constitutional violation requires dismissal of the criminal charges against him, my government(!) intends to "move[] Moussaoui to a military tribunal."

Can this be? [Hmm... The newspaper in my hands certainly looks like the New York Times ....]

If the story is true -- and I have my doubts that it is: the story is intrinsically implausible --, but if this unlikely story is true, the only principle I can extract from it is the following: You -- i.e., Mr M and other denizens of this great and grand country, -- y'all have constitutional rights, BUT if we [my government] think it's important enough, we'll imprison you anyway, without regard to any such rights. But we have overstated the point here. (We are a bit excited.) Yes, Mr M, you can have your constitutional rights -- at least in a U.S. District Court, perhaps ["perhaps," we say!] -- BUT, in any event, you can't have those rights in our military tribunals, b'gosh!

By what right does anyone call such a military agency or entity a "tribunal"?

You see, Mr M (my government seems to be saying), we won't be denying you any rights if we send you there, to Guantanamo -- because there, you see, you don't have any rights. [Of course, by the grace of the Supreme Commander, we have chosen to confer certain procedural privileges on unlawful combatants, but only those privileges, of course, that suit Our Glorious Supreme Commander, and only as long it suits us to let them have those freely revocable privileges. {You will recall that the operative language is somewhat like the following, which, as you will see, we have borrowed from health club contracts: "Grantor retains unbridled and absolute discretion to revoke, at any time and without notice and without cause, any of the privileges enumerated herein and nothing said anywhere shall be construed to the contrary."}])

Ach, weh! (Forgive me: I occasionally lapse into New Yorkese.) One of my worst fears has come true. A year or so ago I thought I was being a bit paranoid, a bit overwrought, a bit of a Chicken Little. But no, hindsight suggests that's not the case: I wasn't overly anxious 'tall. For my government really, truly, and actually wants to deny criminal defendants (not to speak of "unlawful combatants" waiting in their legal black holes for "trials" -- "hearings"? "events"? -- in military "tribunals") --, my government wants to deny such targets of its prosecutorial activity the right to prepare their cases and defenses prior to trial.

Need I say this?: A right to a trial without a right to pretrial preparation and meaningful pretrial investigation is a paper right, and such a paper right is not worth whatever paper it's written on. Every trial lawyer who knows anything knows this. (Perhaps the Supreme Court does too. We shall see. But some people will probably spend years in prison -- indeed, they already have -- before the Supreme Court deigns to speak to this issue. [But perhaps I'm being unfair: Surely the Supreme Court will act just as decisively and as quickly as it did during the Vietnam War crisis. So I take it back! Really!])

BTW: The government thought that the normal criminal process was good enough for it and for Mr M -- until, of course, the government found that it couldn't have its way with Mr M.

It is a scandal; it is an outrage.

Immanuel Kant once said that it is better for the world to perish than for one innocent person to suffer unjust punishment. Mr. John Ashcroft has his own moral principle: he apparently believes that it is better for most of the U.S. to suffer great pain than for one guilty terrorist to escape punishment.

What price security? And whose security is being purchased? Apparently Mr. Ashcroft's. Perhaps Pres. Bush's. Anyone else's?

Who but Mr. Ashcroft really believes that pretrial interviews of imprisoned terrorists by counsel for Mr M will severely imperil national security?

Well, o.k., o.k., I will grant you that in this grand country of ours -- perhaps particularly in Missouri? -- we can always find some people who will believe any crackpot thesis that you care to name. Furthermore, it is possible that the imprisoned terrorists ["alleged" terrorists?] that Mr M wants to interview --, it is possible that those guys have telepathic powers or electronic transmitters implanted in their shin bones. Or perhaps Mr M, by interviewing them through his craven surrogates, his untrustworthy counsel, -- perhaps Mr M, acting through such devious agents, can manage to supply those imprisoned unlawful combatants with the guts that they need to fend off our government's determined efforts to win their hearts and unlock their mouths: perhaps Mr M, clever fellow that he is, has the magic potion. Who knows? Anything is possible, you know. And we CAN'T TAKE ANY RISKS.)

It's an outrage, I say.

I have an announcement to make: I have made up my mind. Yes, I have. This is my decision: I will not -- I cannot --, I WILL NOT vote for a Presidential candidate who will grant us four more years of Attorney Ashcroft.

Mr A's title, BTW, is not "general" -- as in "General Ashcroft." Mr A -- I am informed -- is an attorney, an attorney general. But he is not a "general." See William Safire, NYTimes, Section 6; p. 20; col. 1 (Late edition, July 20, 2003) (Citing & quoting my Cardozo colleague & office neighbor Prof. Michael Herz). BTW: Did Mr Ashcroft disabuse the interrogators from the media? Did he tell them, "You know, I'm not really a general. I wouldn't want to put on airs or pretend to be what I'm not"? To balance things out, I will not use the word "general" when referring to Mr Ashcroft here. I think "Mister Ashcroft" is sufficiently dignified. [If this displeases him, he is free to call me "mister" rather than "professor."])

As I recall, Mr. Ashcroft's immediate predecessor also seemed to enjoy the title "general." Vanity has no party affiliation.

Are you listening, President Bush? My message: Because of Mr. Ashcroft, I will vote for ANYONE other than you, Mr. President Bush -- and I will do so despite my intense distaste for some of the Democrats who want to take your place. (It's a shame! [Well, o.k., it's not a great shame: because I admit I would like this country to have a decent health care system. But, still, it's a bit of a shame that Pres. Bush has no chance to capture my vote because he wants to have Attorney Ashcroft be the Guardian of this country's security and liberty. {I think Mr A forgot the 2d part -- the "liberty & rights" stuff.}])

Fatal Disease: "Punch those Chads -- but Don't Muss Your Hands with Evidence!"

Yesterday, courtesy of MSNBC, I watched oral arguments before the 9th Circuit's en banc panel about the postponement or non-postponement of the California recall vote. I am only a lowly Evidence teacher, but, with the greatest humility and the utmost diffidence, I would like to make a suggestion to the high-minded counsel -- scholastic counsel, practically -- who do reform litigation about matters such as chads, punch card voting machines, and similar matters. I would like to suggest that sometimes you pay a bit more attention to evidence. Now I realize that mundane matters such as evidence are beneath you; I do appreciate that you feel you should be talking about high constitutional principle, and not about uninteresting stuff such as evidence and facts. But, you see -- if I may be so bold -- even in the noblest crusades constitutional crusaders sometimes just have to muss their hands with earthy [i.e., evidentiary] matter. For example, in the proceedings regarding the California recall, you might just want to make sure that the record amply supports -- that the evidentiary record amply supports the reasonable-sounding but potentially a priori proposition that punch card voting machines are more prone to error than are alternative voting systems, such as the electronic ones that are apparently in use in some other parts of California. (I keep thinking of my Mother, who gets flustered by a TV set, not to speak of an electronic voting machine.) I offer my advice with humility and charity. "Charity?," you might say. I would reply: Yes, well, you see, the sentiment of charity arises in my breast because it was extraordinarily painful to watch you struggle to find some way to assert that punch card machines are less accurate than alternative electronic voting methods without, apparently, actually having any good evidence that what you claimed to be true about punch card voting machines (in comparison to alternative voting systems) is actually true. Your strong aversion to evidence is what apparently accounts for your stratagem of emphasizing that some California official or other had concluded that punch card machines are less accurate than available alternatives. Your difficulty -- the source of which you may not yet realize, which is why I go to the trouble of offering my humble opinion here -- the source of your difficulty in the California oral argument before the 9th Circuit panel was reminiscent of the agonies and embarrassment that your fellow crusaders experienced in Florida, in Bush v. Gore, when, in that lowly Florida trial court, it was finally time for the pro-Gore lawyers to put up or shut up -- i.e., to show, with evidence, that some of the things they had been saying about punch card voting and similar matters were actually true -- and what we got instead, after all of the millions of dollars that had been expended on the pro-Gore legal campaign, were [a mere] four or so pro-Gore witnesses, including one expert on statistical aspects of voting systems who was so badly prepared by the pro-Gore lawyers that today he might well wish that he had never met a lawyer. The point I wish to make, my dear legal brothers and sisters, is that even when it comes to high constitutional principle, evidence and facts do matter. You really must learn this lesson. Otherwise I expect to see further legal shipwrecks -- such as the one I witnessed yesterday.

Mistrial by "Withdrawal" of Juror

The following snippet of oral argument was reported in Sacher v. United States, 343 U.S. 1 (1950):

Mr. Sacher: The point I am making is that in every available means your Honor is conveying to the jury your lack of sympathy if not hostility to the defendants, their counsel's presentation of the case, and in these circumstances I want certainly to note on behalf of my clients a vigorous objection to your Honor's conduct and I wish to join Mr. Gladstein in the motion to declare a mistrial by the withdrawal of a juror.

In Sher v. Stoughton, 666 F.2d 791 (2d Cir., 1981), the U.S. Court of Appeals referred to the following statement made in a New York State murder trial:

Defense counsel then moved for the withdrawal of a juror and for a mistrial ....

In United States v. Russel Means, 513 F.2d 1329 (8th Cir., 1975), the court stated (footnote omitted):

In 1815 Justice Story, sitting as a Circuit Justice, in United States v. Coolidge, 25 F. Cas. 622 (No. 14,858) (C.C.D. Mass. 1815), approved the withdrawal of a juror, creating a technical mistrial in a situation where the jury could not agree on a verdict.

From Wood v. Allstate Ins. Co., 1997 U.S. Dist. LEXIS 14663 (E.D. Pa. 1997):

In response, the [federal trial] Court gave Defendant the option of moving for a recess in the trial so that Defendant could depose Mr. Ashby or moving for the withdrawal of a juror, which would result in a mistrial.

Summers v. State, 2003 Md. App. LEXIS 114 (2003):

Not every trivial act on the part of a juror during the course of the trial amounts to such misconduct as requires the withdrawal of a juror and the continuance of the case. A contrary holding would result in a multiplication of mistrials ....

Third Degree in Oakland

Sam Spade: "Johnny, you can go home once you tell us the truth."

Johnny: "But I've told you the truth. I really have!"

Sam Spade: "Now Johnny, we can sit here as long as you like -- we can sit here until hades freezes over. We'll sit here as long as it takes -- we'll just sit here until we get to the bottom of this."

...[long pause]..

Johnny: "O.k. I'll tell you what you want."

Sam Spade: "Now, Johnny, that's not the way this game is played. We just want the truth, you know. That's all we're after. Do you understand?"

...[long pause] ...

Johnny: "O.k., o.k. I vote guilty. He's guilty. Now can I go home?"

Jury forewoman: "Good work, Sam. Call the bailiff. Tell him the jury has agreed on its verdict. We can all go home now."

Mutiny on the County!

Defense attorneys in the "Riders" case (see earlier posts) said that jurors could become "mutinous." (San Francisco Chronicle, Final Edition, September 20, 2003.)

Free the Alameda Twelve! [or Six, as the Case May Be]

Do you suppose the Alameda County jurors (see first post for 9/21/2003) -- ah yes, I see: there are 12 of them --, do you suppose those jurors have an action for false imprisonment? For intentional infliction of emotional distress? Could they bring a habeas corpus action? In an appropriate case, an action to recover damages for loss of employment? An action for the alienation of the affections of their spouses (if any), children (if any), and friends (if any)? Would they have a good defense -- necessity, for example -- if they simply failed to appear for their next tour of duty? Would a joint juror decision not to appear for further jury duty -- the word "duty" takes on new meaning here -- amount to a conspiracy to obstruct justice?

The situation is rife with possibilities (and immunities and privileges, I suppose)!

In the old days trial judges would achieve a judicially-desired mistrial by ordering the "withdrawal of a juror." I don't know when this quaint and thoroughly non-transparent language disappeared from U.S. courtrooms.

How Hard Is Hard Science?

New York Times, Week in Review p. 2 (September 21, 2003):

"There's a Reason It's Called Hard Science

"Apparently the life of the typical scientist isn't filled with 'Eureka' moments ... 'There are aspects of science ... that sound at best distateful and at worst unbearable,' William Speed writes [in Popular Science].

"High on the list of most-unpalatable professions ... [is] 'dysentery stool-sample analyzer' .... Most of the other jobs are too disgusting to print here."

California Will Go to Any Length for (In)Justice

"After nearly four months of deliberations, exhausted jurors said they remained hopelessly deadlocked in the trial of three former Oakland police officers charged with beating suspects and lying on police reports.

"... The seven-man, five-woman jury has deliberated since May 29, when the judge gave them 122 pages of instructions.

"...

"[Alameda County Superior Court Judge Leo Dorado] ... ordered [the jurors] to get back to work Monday."

CNN.com/Law Center (September 19, 2003)