If you’ve found your way here, welcome and farewell. I haven’t been able to keep up the blog and I am sorry to say that I don’t see that changing. Better to admit it than to slink off to an ignominious death by default. Thanks very much for reading.
Everyone’s buzzing about the scolding you gave Congress in your year-end report on the federal judiciary for playing politics with judicial nominations. In particular, they’re quoting this sentence: “Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes.” It is
a good line a memorable line — all right, it’s a clunker, but you’re spot on about the partisan gamesmanship that is fast becoming the salient feature of our democracy. So good for you. But I was actually hoping to speak to you about a different part of your report.
Respectfully, sir, what’s up with that introduction?
In 1935—in the midst of the Great Depression—many Americans sought respite from the Nation’s economic troubles at their local movie theaters, which debuted now-classic films, such as Mutiny on the Bounty, Top Hat, and Night at the Opera. Moviegoers of that era enjoyed a prelude of short features as they settled into their seats. As the lights dimmed, the screen beamed previews of coming attractions, Merrie Melody cartoons, and the Movietone newsreels of current events. The 1935 news shorts also provided many Americans with their first look at the Supreme Court’s new building, which opened that year.
Verisimilitude is well and good, but telling us the names of three movies, a cartoon and the newsreel producer isn’t color; it’s a slab of white frosting. And: The lights dim, the screen beams? Oh dear. I would have preferred this to come from someone else — you haven’t eliminated law clerks from the budget, have you? — but your prologue
sucks is not very good. It is not simply the overwriting (though the overwriting is surprising. Whatever happened to narrowness?). The main problem is that it’s just silly. Asking us to imagine the new court building glowing in the reflected romance of Astaire and Rogers is silly. Summoning the zeitgeist of a more artless time . . . not silly per se, but silly when you do it (plus, that 1935 court was filled with flinty connivers who were intent on dismantling the New Deal). I could say more but I expect that Justice Scalia has already circulated a parody of your paragraph. It feels unkind to go on.
I hope that these comments will not discourage you (altogether) from further efforts at creative exposition. For instance, although it was goofy, I kind of like what you did with your dissent from the denial of cert in Pennsylvania v. Dunlap.
North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.
Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office.
If I may say, the whole Dashiell Hammett macho-minimalista thing really suits you. Perhaps more efforts along that line in future.
Once again, there were no criminal opinions the week of December 16th but the court did make some eye-catching grants of discretionary review.
Good Cop, Bad Cop
With its sexy first amendment issue and bluestocking amici, State v. Crawley has destined-for-the-United-States-Supreme-Court written all over it. Crawley involved a first amendment challenge to Minn. Stat. § 609.505, subd. 2, which makes it a crime to falsely report police misconduct if the reporter knows the information is bogus. A court of appeals panel divided over Crawley. The majority, consisting of opinion author Judge Minge and soon-to-be-promoted Judge Johnson, found that the statute violated the First Amendment’s prohibition on viewpoint discrimination. The problem, said the majority, was that the statute criminalizes the speech of the person who lies and says the police have behaved badly when she knows they’ve behaved well, but it tolerates the speech of the person who lies and says the police have behaved well when she knows they’ve behaved badly. Dissenting Judge Harten balked at the notion that a “complimentary lie” about police officers is the reciprocal of an uncomplimentary lie. Frivolous complaints of police misconduct, he argued, trigger mandatory and costly investigations, siphoning law enforcement resources away from crime prevention. He concluded that there was governmental interest aplenty to justify the regulation.
An issue that is likely to be re-visited: The government may only regulate certain kinds of speech. What kind of speech is at issue in Crawley? The majority held that it is “expressive action” in the form of “the intentional lie.” Judge Harten worried that this formulation “expands the state’s ability to criminalize speech” (though, ironically, it was Judge Harten who would have upheld the criminalization of speech in § 609.505, while the majority voted to strike it down). Judge Harten argued that § 609.505′s proscription on speech was more coherently understood as a species of defamation. Both majority and dissent agreed that SCOTUS’s R.A.V. v. City of St. Paul, the cross-burning case, was the pivotal precedent.
Form Over Substance?
Speaking of sexy, how about a restitution issue? Later this term, the court will take up the court of appeals’ unpublished decision in State v. Bell. Convicted of burglary and a felony assault occurring inside the victim’s home, Cory Bell was ordered to pay for the security system that the victim installed following the crime. Bell’s counsel apparently cried foul at sentencing when the state asked to have the cost of the security system assessed against Bell, but omitted thereafter to file an affidavit per the restitution statute, which prescribes a deadline of 30 days. The court of appeals declined to entertain Bell’s restitution challenge on appeal, holding that it was procedurally barred. The issue is whether a defendant should be required to file a restitution affidavit in a case in which he challenges a restitution order on legal rather than factual grounds. Bell was not quibbling about the price of the security system; his argument (which did not get reached) was that the levy was outside the statutory definition. Parties submit affidavits in legal proceedings in order to contest facts, not to make legal arguments. The Supreme Court may also consider the real world conditions in which restitution claims arise: the restitution statute says a defendant’s affidavit should be served 5 days before sentencing but frequently the defense has not even received notice of the restitution request by then. Moreover, the vast majority of restitution defenses are handled by public defenders, who carry hundreds of open cases. In these days of chronic shortage and dangerous overwork, who can possibly comply with a regime of austere deadlines?
Form Over Substance Redux?
State v. Campbell raises the same issue as another case which the court elected to review earlier this year, State v. Kuhlmann. The oral arguments in Kuhlmann took place on December 7th. Campbell was convicted of gross misdemeanor violation of a domestic abuse no contact order; Kuhlmann was convicted of felony domestic assault and 2° DWI. Each was convicted of offenses that were made more serious by the existence of a prior record. Both Campbell and Kuhlmann stipulated that they possessed the predicate convictions, but neither man was informed of nor waived his right to have a jury determine the aggravated element of his present offense. In both court of appeals cases, the omissions were deemed to be erroneous but innocuous. Given that the Supreme Court has now granted review in two such cases, it looks as if the high court may view the failure to obtain an explicit waiver on an element of the offense with greater asperity than did the court of appeals.
Date 2010-12-03 17:21:00
Source Lat. 44.9535296 Long. -93.1011354 [Justice Center, St. Paul, MN, US, NA]
S E C R E T SECTION 01 OF 02 ST. PAUL 000771
SUBJECT: CRUNCHING THE NUMBERS, MINNESOTA’S HIGH COURT
1. (S/NF) Introduction: For background, the end-user is referred to the March 2010 preliminary intelligence report (PIR). That document described deepening ideological divisions on the MSC. Reconnaissance continued following issuance of the PIR and was maintained until the end of the Magnuson regime. The data culled therefrom permits us to speak more conclusively about trends and factions within the MSC during the final year of CJ Magnuson’s (“Sparrow’s”) rule. End Introduction.
2. (S/NF) Unanimity. The forty-seven criminal cases decided by the MSC during the 2009–10 term are cataloged in Classified Appendix A. In twenty-seven of the forty-seven cases, or 57.4%, the justices all joined a single opinion, the test of genuine unanimity. A different measure of unanimity encompasses the concurrence cases, in which the justices agreed about the result but not about the rationale that got them there. By this measure, the justices were unanimous in thirty-two of the forty-seven, or 68%, of the cases.
An enterprising agency statistician suggested that the data would be more revealing if we separated the first-degree murder direct review cases from the court of appeals discretionary review cases. As the end-user well knows, the direct review category includes a goodly number of cases in which the facts are so calamitous that any legal irregularities are borne away in a cascade of harmless error analysis. Given this phenomenon — we are tentatively calling it the “hard cases make bad law effect” — one would expect the direct review cases to be more susceptible to consensus than the discretionary review cases. In nineteen out of twenty-nine direct review cases, or 65.5%, the justices were genuinely unanimous. They were nominally unanimous (i.e., adding in the concurrence cases) twenty-one out of twenty-nine times, for a rate of 73.4%. The comparable numbers for the discretionary review cases are 44% and 61%, respectively. The number that stands out is the 44% rate of genuine unanimity in the discretionary review cases. End unanimity.
3. (S/NF) Frequency. The following chart tracks each justice’s frequency in the majority for all criminal cases, unanimous and split, direct and discretionary. Chief Justice Magnuson and Justices G. Barry Anderson, Gildea and Dietzen voted with the majority (and with each other) more than 95% of the time. Justice Paul Anderson dissented at the highest rate.
Frequency in the majority, all cases
|Justice||Majority votes||Total Votes||% in majority|
|C. J. Magnuson||47||47||100%|
|J. P. Anderson||36||47||76.5%|
|J. G. B. Anderson||46||47||97.8%|
The next chart tracks frequency in the majority in the split vote cases, i.e., the cases in which there was at least one dissent. When they could not agree, the justices disagreed with remarkable consistency. There was a distinctive 4-2 split on the court, with Chief Justice Magnuson and Justices Dietzen, Gildea, and G. Barry Anderson on one side and Justices Page and Paul Anderson on the other. There was a less pronounced but still regular 4-3 split when Justice Meyer joined the minority voters. Beleaguered Justices Page and Paul Anderson found themselves holding the short end of the stick with dreary regularity.
Frequency in the majority, split vote cases
|Justice||Majority votes||Total votes||% in majority|
|C. J. Magnuson||15||15||100%|
|J. P. Anderson||4||15||26.6%|
|J. B. Anderson||14||15||93.3%|
DISPATCHES FROM THE NEW REGIME
4. (S/NF) Dispatches. It is early days yet in the administration of Chief Justice Gildea (cryptographers still trying to decide between code names “Allegheny” and “Gerbil”). A listing of the court’s criminal cases to-date appears in Classified Appendix B. Sparrow has alighted elsewhere and Justice Stras remains on the sidelines, so we are looking, for the time being, at a complement of six. The most interesting development of the young term is Justice G. Barry Anderson’s apparent defection from the the conservative fold. So far Chief Justice Gildea and Justice Dietzen have joined forces in concurrence or dissent on five occasions (the CJ ventured out alone in dissent one other time); Justice G. Barry Anderson has sided with the majority in every instance. It is a subject that occasions much conjecture and theorizing on the streets of this city but, pending firmer intel, we will refrain from repeating gratuitous speculation in a diplomatic missive.
A disquieting silence has descended over the MSC of late. Production has been scant. This apparent lull might be the prelude to a burst of prolificacy. Or it may simply mean that the justices of the MSC are engrossed by the gubernatorial re-count. In any event, we shall remain at our post and report back as seems appropriate.
From Mashable. Perfect.
wordier . . .
“The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is often criticized for issuing sweeping and politically polarized decisions. But there is an emerging parallel critique as well, this one concerned with the quality of the court’s judicial craftsmanship.
In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts.
And it increasingly does so at enormous length.”
fuzzier . . .
“Critics of the court’s work are not primarily focused on the quality of the justices’ writing, though it is often flabby and flat. Instead, they point to reasoning that fails to provide clear guidance to lower courts, sometimes seemingly driven by a desire for unanimity that can lead to fuzzy, unwieldy rulings.”
in spite of the aforementioned, arguably less unanimous . . .
“One measure of whether unanimity is authentic is the number of separate opinions in nominally unanimous decisions. This last term set a record for such opinions, known as concurrences, in which justices join or vote with the majority but also issue their own opinions to express qualms about some aspect of the majority’s approach.”
and more ghost-written . . .
“These days, the writing emanating from the court can be bureaucratic and unmemorable.
‘They just don’t make great movie lines the way they used to,’ said Fred R. Shapiro, an associate librarian at Yale Law School and the editor of The Oxford Dictionary of American Legal Quotations. ‘They also don’t make great Supreme Court passages the way they used to.’
With the declining docket, justices have more time to hone their writing. But the available evidence suggests they rely on their clerks to produce first drafts, which the justices then edit.
‘Although today’s Supreme Court opinions are no more poorly written on average than opinions from the era in which the justices wrote their own opinions, there is nonetheless a loss when opinions are ghostwritten,’ Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit wrote in The New Republic in 2006. ‘Most of the law clerks are very bright, but they are inexperienced; and judges fool themselves when they think that by careful editing they can make a judicial opinion their own.’ “
than its predecessors. The shoe appears to fit the present-day Minnesota Supreme Court as well — we can debate about how closely — where verbosity is growing apace, but clarity and elegance seem to be on the wane.
State v. Morales has me thinking about the old Gore Vidal quote about shaking a hand that shook a hand that shook the hand of Lincoln. Like Vidal, Morales can trace its nexus to the ineffable. In Morales’s case, there are two proverbial Lincolns: Learned Hand, who in 1959 authored United States v. Maloney, in which 5 individuals conspired to “pretend falsely” that one of them was an FBI agent in order to blackmail a physician who had performed an abortion; and a trifling matter entitled United States v. Alger Hiss. Maloney and Hiss figure prominently in the Minnesota Supreme Court’s 1964 State v. Mitchell, which can only be described as Morales’s daddy. Pretty storied lineage for a case about the murder of a pimp’s assistant at a desultory Cedar Avenue whorehouse.
Murder of the Pimp’s Assistant
Victor Mesa-Ortiz’s job en la casa de la prostitución was to collect money from the patrons and pay the prostitutes. He was working one evening when Felipe Vega-Lara, Tarun Solorzano-O’Brien (who was not charged) and a man wearing a brown hat with a brim, whom no one save Vega-Lara could identify, came in. Various individuals wandered in and out of the living room while the men were present, but the only eyewitnesses to Mesa-Ortiz’s murder were Vega-Lara and the brown-brimmed hat man. Vega-Lara’s and Morales’s trials were severed; Vega-Lara was tried first. He testified at his own trial that he and Morales intended to rob the brothel and that both carried loaded guns into the house that evening. Vega-Lara went into a bedroom to have sex (a multitasker, apparently). He testified that when he returned to the living room, he saw Mesa-Ortiz and Morales (in his hat) struggling over Morales’s gun. Confronted with this dark tableau, Vega-Lara pulled out his gun and shot Mesa-Ortiz. He was convicted of unintentional second-degree felony murder.
Morales’s trial took place while Vega-Lara’s appeal was pending. The state filed a motion to compel Vega-Lara’s testimony under a grant of use immunity pursuant to Minn. Stat.§ 609.09. Vega-Lara resisted, arguing that he had a valid Fifth Amendment privilege notwithstanding the grant of immunity because the state could charge him with perjury if his testimony at Morales’s trial conflicted with what he said at his own trial. The trial court granted the state’s motion. At Morales’s trial, the prosecutor called Vega-Lara and asked a series of questions that presented a detailed narrative of the state’s theory of the case. Vega-Lara responded to everything with some variation of “plead the Fifth”/”refuse to answer.” At some point, the prosecutor began to also ask Vega-Lara about his testimony at his own trial. The Court’s opinion includes an excerpt from the direct examination:
State: Did you — did Angel Morales point the gun at Victor Mesa-Ortiz for the purpose of robbing him?
Vega-Lara: Refuse to answer.
State: Did you previously testify that he pointed the gun at Victor Mesa-Ortiz –
Vega-Lara: Refuse to answer.
State: — for the purpose of robbing him?
Vega-Lara: Refuse to answer.
State: Did Victor Mesa-Ortiz resist when Angel Morales pointed the gun at him and tried to rob him?
Vega-Lara: Refuse to answer.
State: At that point did you enter the — did you previously tell the jury that Victor Mesa-Ortiz started struggling with Angel Morales over the gun?
Vega-Lara: I refuse to answer.
No License for the Unscrupulous
The trial-by-intransigent-witness phenomenon gives rise to a small constellation of issues. The first of these is whether Vega-Lara retained a Fifth Amendment privilege once the trial court granted him use immunity. The operative question is whether use immunity is “coextensive” with the Fifth Amendment. Relying on United States v. Apfelbaum, Morales holds that it is, even though “swearing falsely” under a grant of immunity will expose one to a perjury prosecution, whereas clamming up and invoking the Fifth would forestall that hazard. The coextensivity analysis focuses on the the Fifth Amendment’s “protections” (against compulsory self-incrimination) as opposed to its “benefits” (remaining silent). You have a constitutional right not to incriminate yourself; you don’t have a constitutional right to lie. A “grant of immunity may be a constitutionally adequate response to invocation of the privilege without perfectly replicating the effect of total silence.” The Court’s holding is in line with the great weight of authority on this issue; still, the reasoning feels forced and sophistic. Denying a Fifth Amendment privilege to an individual with use immunity may have less to do with coextensivity than with prophylacticity. The courts are not about to apply the Fifth Amendment so as to give the unscrupulous a license to lie under oath.
Error of the Second Variety
The Court turns next to the question whether State v. Mitchell applies in a case in which a witness asserts an invalid privilege. Mitchell holds that it can constitute prejudicial misconduct when the state calls and/or questions a witness who refuses to testify. The harm, in the words of Learned Hand, is that “[w]hen a witness claims his privilege, a natural, indeed an almost inevitable, inference arises as to what would have been his answer if he had not refused.” That inference, unlikely to be a flattering one, is liable to rebound from witness to defendant. The Morales Court clarifies that Mitchell applies even when the witness claims an invalid privilege since a defendant may be as wronged by that individual as by the one whose claim of privilege is well-founded.
Mitchell holds that there are two kinds of prosecutorial conduct that can give rise to reversible error. Under the “bad faith” theory, reversible error results, regardless of actual prejudice, “where the prosecution calls a witness for the purpose of prejudicing the defendant in the minds of the jury, knowing that the witness will claim immunity.” Under the “unfair prejudice” theory, reversible error results if the state calls a witness in good faith and the state’s examination so prejudices the defendant that he is denied a fair trial.
Morales involves error of the second variety. The Court holds that the state did not call Vega-Lara in bad faith, though the prosecutor knew “with a high degree of certainty” that Vega-Lara would refuse to testify, because (1) the trial court had previously ordered Vega-Lara to testify, (2) the state believed Vega-Lara’s claim of privilege was specious, and (3) the state could, theoretically, have called Vega-Lara to facilitate the trial court’s holding him in contempt upon his expected refusal (“[w]e acknowledge,” says the Court gamely, “that the State gave no indication that it wanted the district court to hold Vega-Lara in contempt, nor did it make such a request”).
Under the “unfair prejudice” prong, the focus is on the substance and manner of the state’s examination, rather than on the decision to call the witness in the first place. Mitchell prescribes as the relevant inquiry whether the prosecutor’s questions were brief, fact-laden, and directed at the substance of the charged offenses. No, yes, and yes, says the Morales Court. “When pieced together, the State’s questions to Vega-Lara at trial provided the only detailed narrative of the crime that was consistent with the State’s theory of the case.” Absent the interrogation of Vega-Lara, the state’s evidence against Morales consisted of little more than that a mysterious man in a hat accompanied Vega-Lara and Solorzano-O’Brien to the brothel the evening that Mesa-Ortiz was killed.
Prior Inconsistent Statements & the Refusing Witness
Chief Justice Gildea is the sole dissenter. The majority’s unfairness finding, she suggests, is itself unfair. “[I]n the face of Vega-Lara’s refusal to testify,” she explains, “the State attempted to lay the foundation for the admission of Vega-Lara’s testimony from his own trial as prior inconsistent statements under Minn. R. Evid. 801(d)(1)(A).” In order for a statement to be excluded from the definition of hearsay under Rule 801(d)(1)(A), the declarant must testify at the trial or hearing and be “subject to cross-examination concerning the statement.” Until now, it has been an open question in Minnesota whether the “subject to cross-examination” criterion is met when a witness refuses to testify under a claim of privilege. Chief Justice Gildea does not reach this issue; she finds instead that Vega-Lara was subject to cross because he answered in the affirmative to one of the six questions put to him by Morales’s counsel, namely: “Did you testify that you had not intended to kill [Mesa-Ortiz]?” The Chief Justice concludes that Vega-Lara was “subject to cross-examination on the critical issue of intent.” The prosecutor’s effort to admit Vega-Lara’s statements was “allowable under the Minnesota Rules of Evidence and was made necessary by Vega-Lara’s invocation of a nonexistent privilege.” There was, she concludes, no unfair prejudice.
As concerns Chief Justice Gildea’s argument that the prosecutor’s examination was “allowable” the rules of evidence, the Court replies that, even if it was (see infra), the Mitchell standard is whether the state’s questioning was brief, fact-laden and directed at the substance of the charges, not whether the examination might have some other basis in the rules of evidence. Even efforts legitimately grounded in the rules can run afoul of Mitchell’s manner and substance strictures. Infra: In a later section of its opinion, the Court completes the kibosh on “allowable”. It holds that Vega-Lara’s statements were not admissible as substantive evidence under Rule 801(d)(1)(A). The prior inconsistent statement rule requires that a witness “be testable about the statement, meaning that he must be reasonably responsive to questions on the circumstances in which he made it.” The Court is not as impressed as the Chief Justice with Vega-Lara’s affirmative response to one out of six cross examination questions. On the whole, says the Court, Vega-Lara refused to answer the defense lawyer’s questions about his prior testimony, including whether Vega-Lara earlier lied about Morales’s role in order to shift blame away from himself. The Court holds that Vega-Lara was not “reasonably responsive” to questions that sought to probe the circumstances surrounding the prior statements. We now have an answer to the open question: a witness is not “subject to cross-examination” for purposes of the prior inconsistent statement rule when the witness refuses to testify under a claim of privilege.