BeldarBlog

Having the guts to shut up

Knowing when to shut up takes excellent judgment, confidence in oneself, and confidence in the judge or jury before whom one is arguing.

But when one has those qualities and the guts to apply them, it's sublime. And the judges and juries are genuinely grateful.

Why'd some rabid Dems vote for Griffith, and "moderate" Dems against him?

Edward Whelan, writing on NRO's Bench Memos blog, points to peculiarities in the roll-call vote on the confirmation of Thomas Griffith to the United States Court of Appeals for the D.C. Circuit:

It should come as no surprise to learn that Bayh, Byrd, Johnson, Landrieu, and Salazar were on one side, and Biden, Dodd, Durbin, Levin, and Schumer on the other. But what was a surprise — to me, at least — is that the former set of five more moderate Democrats voted against Griffith’s nomination, and the latter set of five very liberal Democrats voted for the nomination.

I'm by no means "closer to the Griffith confirmation battle" than Ed, but I'm going to hazard a guess as to an explanation anyway.

The main objection to Mr. Griffith's nomination was his bar status — his arguable practicing of law in Utah without a proper license there, and his neglect in ensuring that subordinates had properly paid the fees to maintain his license in the D.C. Bar.  Although I was briefly on an unauthorized practice of law committee of the State Bar of Texas some years ago, I'm not a real expert in that subject. But from what I know of it and of Mr. Griffith's situation, I'm inclined to accept that since he wasn't regularly appearing in court in Utah, and since his "office practice" as an in-house university lawyer there was conducted along with licensed Utah lawyers, the first criticism isn't valid. I think the second is a far more troubling problem, however, given how long it persisted. It was a serious lapse in professional diligence on his part. But I think it's ultimately excusable in, and outweighed by, the context of his entire career and record, and I'd have voted to confirm him were I a senator.

Whether valid and outcome-determinative or not, however, these criticisms aren't issues of politics, ideology, and judicial philosophy, but of personal competence and professional character. If one credits Bayh, Byrd, Johnson, Landrieu, and Salazar with principled concern for personal competence and professional character, that could explain their votes.

No one, however, would ever be confused into believing that Biden, Dodd, Durbin, Levin, or Schumer care much about anything except their party's success on matters of politics and ideology. Their votes were cynically political, a recognition that the Griffith fight was a loser for their side; and as such, solely to reduce the public perception of monolithic Democratic opposition to Dubya's judicial nominees, they threw their votes to the "aye" side without regard to Mr. Griffith's individual merits and problems.

My instinct toward snark as a blogger counsels against ever ascribing principle to any political opponents. But that would explain the "moderate" Democrats' votes. Snarky instincts and my willingness to sometimes rise above them notwithstanding, however, you'll never persuade me that the normally rabid group came to a measured, sincere conclusion that Mr. Griffith is duly qualified and that they therefore should put aside partisan politics to confirm him. That a rabid dog didn't bite one potential victim does not mean the dog has been cured, even temporarily, of its rabies.

"If we gang-mimed the guy ..."

James Lileks is the snark-master. Good snark is built on extreme sarcasm that reveals underlying truths, though. And so, as part of a post in which "the true horror of American Torture has been revealed," Lileks correctly explains that 9/11's would-be-20th-hijacker Mohammed al Qahtani "was broken by the concise application of cultural insensitivity." Read the whole thing, but not while drinking any beverages capable of nasal irritation.

A critique of Justice Souter's Miller-El v. Dretke death penalty opinon (and a Beldar war story about picking juries)

I'll tell you what's wrong with the United State Supreme Court's 6/3 decision today in Miller-El v. Dretke. And if you understand how our state and federal trial and appellate courts are supposed to work, you'll see that it's wrong — regardless of whether you support or oppose the death penalty.

And, because I'm a crusty old trial-lawyer writing for a blog instead of a law review, I'll tell you a war story to help make my point.

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Thomas Joe Miller-El is black. He was convicted of capital murder by a Dallas County jury and sentenced to death. Today's majority opinion, written by Justice David Souter, held that he's entitled to federal habeas corpus relief — essentially a federal order commanding the State of Texas to either retry or release Mr. Miller-El — on grounds that the prosecutors impermissibly used racial discrimination in exercising their peremptory jury strikes, with the result that some black potential jurors weren't selected. The resulting jury that convicted and sentenced Mr. Miller-El comprised seven white females, two white males, and three other males who were, respectively, black, hispanic, and Filipino (although you must turn to Justice Thomas' dissent, in which Justice Scalia and Chief Justice Rehnquist joined, to find that out.)

Let me say up front that I do not know, one way or the other, whether these prosecutors in this particular case were or were not acting out of racial bias when they made their peremptory jury strikes. Plausible arguments can be made that they were — and such arguments fill almost all of Justice Souter's 33-page opinion. Plausible arguments can be made that they were not — and such arguments fill almost all of Justice Thomas' 36-page dissent. My criticism does not at all depend on which of those arguments is true, or more true, or more likely correct than the other, in this particular case.

Mr. Miller-El's arguments and Justice Souter's opinion were based on a 1986 Supreme Court decision about race and the jury selection process, Batson v. Kentucky. To say that Batson itself has spawned confusion and chaos — in both criminal and civil cases, state and federal, trial and appellate — would be a considerable understatement.

How bad is the mess? Well, I've read Batson, and I've read some (but only a fraction) of the appellate precedents that have tried to interpret and apply it. Yet I picked a jury in a civil case in Harris County District Court back in March — and I have absolutely no idea whether anything I did or didn't do in that jury selection, or that my opponent did or didn't do, violated Batson.

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That's because like every other trial lawyer, in deciding how to exercise peremptory strikes on my client's behalf, I relied in that case upon my observation and intuition and experience. But all of that was filtered through and undoubtedly affected to some extent by a whole bunch of stereotypes. Sex-based stereotypes; age-based stereotypes; class and occupational stereotypes; geographic stereotypes; religious stereotypes; grooming stereotypes. And yes, racial stereotypes.

I'm pretty sure my opposing counsel did too. But I don't even understand fully what stereotypes I used and how much weight I gave each of them, so I certainly can't claim to know that about my opposing counsel's exercise of discretion.

Now, in this particular trial, I was representing the plaintiff in a car-crash personal injury case. This was a very simple case. Neither side was using "jury consultants" or "shadow jurors"; we hadn't done any demographic studies or taken any polls or conducted any "focus groups." I've done those things in big cases, though, and I know that what they would have produced — while perhaps very impressive and polished — would ultimately have been a series of guesses and hunches, partly also based on stereotypes.

The way civil juries are selected in Houston, each side submits its list of peremptory strikes simultaneously, and the clerk seats the first twelve potential jurors who haven't been either excused for cause (by the judge) or stricken peremptorily (by either side). So it's quite common for there to be "double-strikes" — jurors whom neither side could persuade the judge to excuse (and may not even have attempted to do so), but whom both sides "spend a strike" on.

I used one of my side's strikes on a well-dressed white female bank manager because — according to the "conventional wisdom" and trial-lawyer lore and stereotypes — she was a "model defense juror" for a PI case. But I only had six strikes to use, and there were several other "model defense jurors" whom I didn't strike. So why her?

I just didn't like the way she looked at me. Sorry, that's the honest, best, and most complete answer I can give. Would she have turned out to be a "defense juror"? I have no idea, and neither does anyone else, including her.

It turned out, though, that my opposing counsel had also stricken her. "Why'd you strike Number 14?" I asked him. "She's a model defense juror!" I said.

"Yeah," he said, "but I just didn't like the way she looked at me."

One prospective juror in the front row was a tall young man, white, late twenties, with a long straggly beard and long hair down to the middle of his back. He was wearing a t-shirt, jeans, and sandals. Single, no religion listed. "Occupation: music sound engineer." Fidgety; wouldn't look at either lawyer or any of the parties, just stared at his lap. Very close-mouthed in response to questions. The instant short-hand reference my team used for him — sorry, this is crude and likely to offend some — was "Jesus." When going through the list with my team to pick our strikes, I said to them, "We don't need to spend any time talking about 'Jesus,' he's a certain defense strike, and based on his demographics and conventional wisdom, he's probably a pretty good plaintiff's juror anyway." So we skipped him.

My opponent didn't strike "Jesus," though, and he made it onto the jury. I asked him, "Why didn't you strike 'Jesus'?" (He instantly knew who I meant.)  "Dunno," he answered, "just a feeling."

"Jesus" became the jury's eventual foreman. Interviews with other jurors after the verdict suggest he was a big tort reformer, intensely skeptical of all personal injury plaintiffs, and very articulate in persuading the other jurors to return a damages verdict that I thought was shockingly tight-fisted by historical Harris County standards.

I didn't have any reason to think that the racial composition of the jury was going to be particularly important, given the parties and issues. But yeah, I factored that in, to some extent, in deciding how to exercise my strikes. How? I dunno, and I couldn't tell you if I tried. I'm certain that my opponent did too, but I can't tell you how, and doubt he could either.

So did race have any impact on this absolutely garden-variety civil trial? I dunno. I tend to think not, but I can't absolutely exclude that possibility. But nothing happened to tickle my radar; neither I nor my opposing counsel mentioned anything about the race of anyone to each other or the judge, much less trying to mount a "Batson-challenge" to each other's use of our peremptory strikes.

I can tell you that this jury was unique in my experience in one way, however: twelve eleven men ended up being seated.\^*/ I was happy with that at the time, based on the "conventional wisdom" that women can tend to be harder on, and less sympathetic to, other women — and my client was female. With this particular jury, though, the "conventional wisdom" didn't pan out — and maybe that particular piece of wisdom is just a load of crap.

Was I disappointed in this particular jury's verdict. Oh, yes, I was indeed — we won, expected to win, and deserved to win on liability, but I thought these jurors were really miserly (based on my wholly subjective comparison to jury verdicts in other cases I've either tried or seen tried). But were they "unfair"? I don't have any reason to think so. Was the trial fair? Oh, yes — it was a remarkably clean trial, with experienced lawyers on both sides who weren't trying to break any of the rules, and an experienced judge who appreciated that and therefore was able to let us try our cases pretty much the way we wanted to. The whole thing took a day and a half, start to finish. Neither side had any legal grounds for an appeal — not based on jury selection, or evidentiary rulings during the trial (there were only a couple of those that were even disputed, and we worked out compromises on both), or on the court's charge to the jury. I was disappointed with this result, but I certainly can't say that "justice was not done."

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I'm not saying that this trial I've just described was "typical" or in any way "uniform." I'm emphatically not denying that historically, trial lawyers everywhere, in both criminal and civil cases, have used and continue to use race and racial stereotypes. I'm not saying that Batson is "bad law," at least in principle. And I repeat, I don't know whether the prosecutors who handled Mr. Miller-El's case stepped over the appropriate line.

But I'm pretty sure they don't know for sure either — didn't at the time, don't know now. I'm quite sure that anyone who operates exclusively on the basis of racial stereotypes or any other "conventional wisdom" is going to do a lousy job of jury selection because whatever "art" is involved in exercising peremptory strikes requires more sensitivity and open-mindedness than that.  And my strong (albeit entirely subjective) sense and my personal experience over the last 25 years has been that those stereotypes have become less and less valuable as predictors of jury outcomes.

But back, at last, to Judge Souter and the proper role of the United States Supreme Court. That Court does not exist to right individual wrongs — not even in death penalty cases. Anyone who thinks that the Supreme Court could do that, or even approximate doing that, is a fool. The Supreme Court's job is to announce the rules for other judges, and for the lawyers who practice before them, to follow. And friends and neighbors, the Hon. David Souter's opinion for the Court in Miller-El v. Dretke completely fails in that regard.

The Supreme Court's decision today means a lot to Mr. Miller-El and his lawyers, I'm sure, and I don't mean to mock or belittle him or them. But no lawyer or judge reading that opinion is going to have a clue what it means for any other case. Any time an appellate decision contains long, long quotes from the trial transcript and not many case citations, that's a pretty good hint that the decision will be of little precedential value. And that's almost all Justice Souter's opinion is.

That's not the only problem, though. Mr. Miller-El's case has gone up and down through the Texas trial and appellate court system, and then through the federal district court and the Fifth Circuit. But now the Hon. David Souter — joined by five other Justices — has looked at the record (some of which the Texas state courts never saw), and he's come to the conclusion that these particular prosecutors stepped over the line, wherever it is. And to do so, he's engaged in juror-by-juror, question-by-question, line-by-line second-guessing of the prospective jurors, the prosecutors, and the trial judge! So we read, for instance, this:

[Potential juror] Fields should have been an ideal juror in the eyes of a prosecutor seeking a death sentence, and the prosecution's explanations for the strike cannot be reasonably accepted.

Are you kidding me? Here's a Justice of the U.S. Supreme Court deciding — years after the fact and on a cold written record — that a prosecutor must have been lying about his intentions because he deviated from the "conventional wisdom." You're damned if you stereotype; and now, you're damned if you don't.

Leave aside the fact that Congress passed a law specifically designed to prohibit the federal courts (including the Supreme Court) from doing that sort of second-guessing. (This point, regarding the Antiterrorism and Effective Death Penalty Act of 1996, is in my view the strongest and most appropriate argument in Justice Thomas' dissent. I think Justice Thomas also couldn't resist the temptation to get into the "I saids" and "He saids" with Justice Souter, but that's just not what the Supreme Court is supposed to do.) Completely apart from that statute, if any federal court should be doing this second-guessing at all, it should be the federal district court, with the circuit courts available to correct those occasions when a federal district judge has gotten something conspicuously and obviously wrong. For the Hon. David Souter to reach into the maelstrom, pluck out one case, and say, "I've come to a different conclusion from reading this record" is a misuse of the Supreme Court's resources. It certainly encourages every litigant to seek Supreme Court review. It diminishes, or at least randomizes, the roles of the federal district courts and courts of appeals. It's bad policy — whether you're for or against the death penalty. It's the kind of confusion about the proper role of the Supreme Court that you might excuse in a former appellate court justice whose job has been to do that sort of fact-specific review of the record; but it's been a long time since Justice Souter was in that job, and with due respect, he needs to rise above that role.

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And so I find myself in the unusual position of saying something nice about Justice Stephen G. Breyer. Justice Breyer concurred in Justice Souter's opinion, but also wrote separately and fairly briefly. And I think he, at least, "gets it" — he understands that regardless of the Court's good intentions, Batson has been and continues to be a disaster:

... Miller-El's challenge has resulted in 17 years of largely unsuccessful and protracted litigation — including 8 different judicial proceedings and eight different judicial opinions, involving 23 judges, of whom 6 found the Batson standard violated and 16 the contrary.

(The six being, of course, Souter, Stevens, O'Connor, Kennedy, Ginsburg, and Breyer himself — all on the Supreme Court, so their six votes count more than the other 16 votes combined.) He continues:

The complexity of this process reflects the difficulty of finding a legal test that will objectively measure the inherently subjective reasons that underlie use of a peremptory challenge. ...

... [Among other problems,] Batson asks judges to engage in the awkward, sometime[s] hopeless, task of second-guessing a prosecutor's instinctive judgment — the underlying basis for which may be invisible even to the prosecutor exercising the challenge. ... In such circumstances, it may be impossible for trial courts to discern if a "seat of the pants" peremptory challenge reflects a "seat of the pants" racial stereotype.

Now, Justice Breyer has to be cute here, because he's just signed on to Justice Souter's opinion which purports to have done the "impossible" — and to have done it better, in some mysterious way, than all of the lower state and federal courts did. I'd rewrite that last sentence just to state the obvious — it is impossible to do with any precision or predictability whatsoever.

Justice Breyer's proposed solution is to eliminate peremptory challenges altogether — which would mark a very, very radical change in centuries-old jury trial practices, civil and criminal. I think that would be a serious mistake. It would amount to a statement that "this part of the art of practicing trial law has been abused by some practitioners (although we can't come up with any rules that would let everyone agree as to when) — so we're going to abolish this part of the art." I'd hate to see that happen, because I believe that as whimsical and subjective as jury selection is, it still contributes in a mostly-positive way to that fuzzy goal we call "justice."\^**/

No, I'd propose something quite different. I'd propose that we keep peremptory challenges, but that we leave the prevention of their abuse virtually entirely to trial judges. They have broad, enormous discretion in all sorts of other fuzzy, subjective areas, subject only to restricted review by appellate judges. It's a sad historic truth that some trial judges used to be racists too, and that they failed to follow their instincts or uphold our common national principles; and to the extent that Batson has moderated those excesses, that's some justification for its past transaction costs (in terms of uncertainty and confusion). But the Supreme Court can't — can't, not even if it wanted to, not even if you think it should — be relied upon to fix these problems individually, not even in death penalty cases. If anyone should be allowed to second-guess how trial lawyers use their peremptory challenges, it should be the trial judges who've seen the faces, heard the tones of voice, and assessed everything that's happened using all of the soft, squishy, and invaluable subjective experience that accrues from presiding over many, many trials.

You can't take "seat of the pants" decisions out of the practice of law, folks. But having the Hon. David Souter serve as "tailor-in-chief," picking at decades-old threads in the crotch of someone else's pants, hurts rather than helps the system.

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\^*/Rereading this, I realized that I misremembered this detail. It was actually eleven men and one woman — still unique in my own experience.

U 2 can B smart if U read The New York Times Magazine

Jeffrey Rosen sports degrees from Harvard, Oxford, and Yale, and he's a tenured Professor of Law at The George Washington University Law School. His short biography on that law school's website reveals that he's the legal affairs editor of The New Republic, and he's a contributor to The New York Times Magazine, The Atlantic Monthly, and The New Yorker (where he has been a staff writer). Clearly, this is a man so smart that he can choose to work and write only for institutions that include a capitalized indefinite\^*/ article as part of their names. I almost feel like I should refer to him as "The Jeffrey Rosen."

Prof. Rosen's latest effort is in today's The New York Times Magazine. In an essay called "Center Court," Prof. Rosen takes this data for his premise:

An independent poll conducted by Quinnipiac University found that 55 percent of respondents thought the filibuster should be used to keep unfit judges off the bench, as opposed to 36 percent who thought it should not... [And i]n the days before [what Prof. Rosen earlier has described as "the compromise reached by a bipartisan group of senators last month that defused, or at least delayed, a showdown on judicial filibusters"], a CBS News poll found that 68 percent of respondents said that Congress ''does not have the same priorities for the country'' as they do. By contrast, the Quinnipiac poll found that a 44 percent plurality approved of the way the Supreme Court is handling its job.

Now, although I never have attended Harvard, Oxford, or Yale, I do claim to have heard of them before. But I'm certain that it must be some deficit in my own education which prompted my puzzlement over Quinnipiac University. The power of Google has permitted me to learn this morning that Quinnipiac is "a community of more than 8,000 students, faculty and staff located in Hamden, Connecticut." And in the case of CBS News' poll in particular, I'm reminded of a bit of wisdom that I'm told is a part of the core curriculum at Harvard, Oxford, and Yale: "Even a blind hog can sometimes find an acorn." So let us presume and stipulate for purposes of my own essay this afternoon, gentle readers, that Quinnipiac University and CBS News are both trusted and respected institutions whose polling results, as quoted and compared by Prof. Rosen, may safely be taken as gospel — a sound basis from which to draw profound conclusions about the current state of the American polity, including its public's opinions of and relations to various branches of its federal government.

For that is what Prof. Rosen has done. He writes (boldface mine):

[I]t would seem that, on balance, the views of a majority of Americans are more accurately represented by the moderate majority on the Supreme Court, led in recent years by Justice Sandra Day O'Connor, than by the polarized party leadership in the Senate, led by Bill Frist and Harry Reid. Congressional Republicans and Democrats are pandering to their bases, wooing conservative or liberal interest groups that care intensely about judicial nominations because they're upset about the current direction of the Supreme Court. Meanwhile, the country as a whole seems to be relatively happy with the court and appears to have no interest in paralyzing the federal government over a confirmation battle that would do little to affect the court's overall balance — a battle that is likely to take place this summer if Chief Justice William Rehnquist steps down.

How did we get to this odd moment in American history, when unelected Supreme Court justices are expressing the views of popular majorities more faithfully than the people's elected representatives?\^**/

And he restates his conclusion a few paragraphs later, in case you missed it the first time:

[T]he conservative interest groups have it exactly backward. Their standard charge is that unelected judges are thwarting the will of the people by overturning laws passed by elected representatives. But in our new topsy-turvy world, it's the elected representatives who are thwarting the will of the people, which is being channeled instead by unelected judges.

Well, golly. This struck me at first as more than just a little bit odd, momentary or not. As I once heard the Chancellor of Harvard University say (or maybe it was the Dean of the Yale Law School), "I never woulda thunk it!" But lookie at Prof. Rosen's proof, friends and neighbors: not one, but two — two! — polls. One of them has a "plurality" — and that sure sounds to me like a bunch.

(I'd have looked up that word "plurality" on Google, but I got distracted by a sidebar in Prof. Rosen's article that quotes the results of another poll, this one by some outfit called Gallup, which sez that 16% of the public trusts the Supreme Court "a great deal," and 25% trust it "quite a lot." Another 38% trust it "some," sez this Gallup group. And 19% of Americans trust the Supreme Court "very little to none." This got me all confused into thinking that if you take five average Americans, two will give the Supreme Court a thumbs-up, and three won't. But I apologize for this diversion. Math isn't my strong suit, and certainly the clever editors of The New York Times Magazine wouldn't print a poll showing that the, umm, biggest single chunk (whatever that's called) of Americans only trust the Supreme Court "some" — certainly not in the very same article where Prof. Rosen has already proved that the Supreme Court and the whole danged American public are purty much exactly on the same wavelength.)

But the really important thing that Prof. Rosen has taught me from this logical exercise, gentle readers, is how you can take these poll results from Quinnipiac and CBS News and use 'em to prove even more. Now, I'm not quite sure how he gets there — maybe the editors trimmed out the math part — but Prof. Rosen warns us that if "the president and Congress may try to push the courts toward the extreme right to please their base," then

the Supreme Court, over the long term, could become just as much in the thrall of ideological extremists as the White House and Congress. And then the views of a majority of the American public might not be represented by any of the three branches of the United States government — an alarming prospect for the world's leading democracy.

I'm going to step way out of line here and criticize Prof. Rosen for one thing: He's figured out and proved, it appears, that the White House and Congress are "in the thrall of ideological extremists" and that neither of them represent the views of a majority of the American public! Now that's big news, it seems to me! It ought to be up at the top of his article, I'd say. And I think the editors of The New York Times Magazine should have left in the math parts where Prof. Rosen proves that a majority of the American voters last Nov. 2004 actually voted for John Kerry and the Democrats.

That leads me to one last thing I need to explain, though, so that Prof. Rosen's points will all be clear to you. You may have heard, from time to time, people talk about "polls" meaning those places where people vote in elections to pick presidents and senators and congressmen and such. Those aren't the same kind of "polls" that Prof. Rosen's article is based on. He uses the ones that really count — the ones from CBS News and Quinnipiac University. Don't get confused by that. If you'd been to Harvard, Oxford, and Yale and were a Professor of Law and wrote for all those "The" publications, you'd understand pretty much automatically that those "vote"-kinda polls, where everyone who's registered can cast a ballot, don't matter. And if you pay attention to them, you'll just get all confused, and then you won't understand that Sandra Day O'Connor and The Jeffrey Rosen know what you're thinking even better than you do.

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\^**/I don't want to give away here the surprise answer that Prof. Rosen's come up with to this question, but I'll give you a hint: It's mostly due to the efforts of a former exterminator from Sugarland, Texas. But don't worry, because The Terminator will save the day in the end.

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UPDATE (Sun Jun 12 @ 4:30pm): Andy McCarthy makes the same points I did, and some more, but with way less snark.