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Now That's an Angry Dissent:
The Sixth Circuit is well-known for its ideological divides and sometimes-nasty dissents in habeas cases, but the dissent in Tucker v. Palmer last week from Judge Damon Keith seems to set a new standard. The issue in the case was whether under the deferential AEDPA standard, the state court had unreasonably determined that there was sufficient evidence to uphold the verdict in a state burglary case. The majority concluded that under the doubly-deferential standard, the evidence was sufficient for the state court to have upheld the verdict. Judge Keith disagreed. Here's how he began his dissent:
  The majority's opinion flagrantly violates the Fourteenth Amendment. I therefore vehemently DISSENT. It is “[b]etter that ten guilty persons escape than that one innocent suffer.” 4 William Blackstone, Commentaries at 358. This powerful and wise axiom reveals that a court commits the ultimate injustice by convicting and imprisoning a person based on insufficient evidence. Such a judicial transgression contravenes the most important right our Constitution affords the accused: “the Due Process Clause [of the Fourteenth Amendment] protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); U.S. Const. Amend. XIV, § 1. Apparently neither the state trial judge nor the majority ever read or understood the Constitution, for in the instant matter, they recklessly disregarded this fundamental requirement of proof beyond a reasonable doubt by convicting Defendant Raymond Tucker of home invasion without any evidence sufficient to prove his guilt.
  Wow. There's nasty, and then there's "accusing the other judges of never having read or understood the Constitution" nasty. In case you're wondering, the majority opinion was by Senior District Judge Harold Ackerman, a Carter appointee to the District of New Jersey, joined by Jeff Sutton, who as many readers know was a Bush 43 appointee to the Sixth Circuit.

  Thanks to Steven Wells for the link.
titus32:
There's nasty, and then there's "accusing the other judges of never having read or understood the Constitution" nasty.

It seems too puerile to qualify as nasty. I don't think I've ever seen anything like it in a federal appellate opinion.
9.8.2008 6:24pm
Steve:
Maybe the defendant's mistake was agreeing to a bench trial. I certainly would not have voted to convict upon this record, and I'm a pretty law-and-order person. Somewhere along the line the definition of "reasonable doubt" got lost.
9.8.2008 6:31pm
Dissenter:
I agree. The "never read the Constitution" attack doesn't sound like a judicial opinion, it sounds like a blog comment. (hmm....)
9.8.2008 6:31pm
titus32:
Dissenter, I wasn't going to go there, but that's what I was thinking.
9.8.2008 6:33pm
Rodger Lodger (mail):
' I therefore vehemently DISSENT.'

Odd usage of vehement to describe oneself; vehemence is normally only attributed to others. This follows another similar misusage in recent days: "I'm outraged". Used to be you could be described as outraged only by others. Someone thought they could pump up their volume by saying of themself they're outraged, and that usage caught on with women's and other identity advocacy groups. Next week: I take on "it's unacceptable."
9.8.2008 6:34pm
Rodger Lodger (mail):
' I therefore vehemently DISSENT.'

Odd usage of vehement to describe oneself; vehemence is normally only attributed to others. This follows another similar misusage in recent days: "I'm outraged". Used to be you could be described as outraged only by others. Someone thought they could pump up their volume by saying of themself they're outraged, and that usage caught on with women's and other identity advocacy groups. Next week: I take on "it's unacceptable."
9.8.2008 6:34pm
Steve P. (mail):
I was used to reading hilarious stories like this almost every day. Anyone else wish the pseudonymous Robert Loblaw would unretire?
9.8.2008 6:35pm
OrinKerr:
Steve P,

The legal blog world definitely needs a new Robert Loblaw.
9.8.2008 6:38pm
Malvolio:
It's puerile and nasty -- and wrong. Person A comes home, sees Person B fleeing his house, goes inside, and there's stuff missing. Admittedly, there might be some innocent explanation, but for most accusations, there is some innocent explanation -- that's why there is defense counsel, to present that explanation. Unless Person B has a good story, he's facing a long prison term during which to choose additional letters for his name. Perhaps a juror (or in this case, the trial judge) might disagree in a particular case, but it's hardly appropriate for an appellate justice to assert no reasonable trier could draw the obvious conclusion, let alone to mock and insult his colleagues for failing to likewise overreach.
In an English court a man named Home was tried for slander in having accused his neighbor of murder. His exact words were: "Sir Thomas Holt hath taken a cleaver and stricken his cook upon the head, so that one side of the head fell upon one shoulder and the other side upon the other shoulder." The defendant was acquitted by instruction of the court, the learned judges holding that the words did not charge murder, for they did not affirm the death of the cook, that being only an inference.
-- Ambrose Bierce
9.8.2008 6:43pm
TomH (mail):
Well, the majority (bottom of page 5), in describing the adequacy of the circumstantial evidence does rely on the seminal "But wait, there's more," exception to the reasonable doubt standard.
9.8.2008 6:44pm
Adam J:
Malvolio- purile and nasty sure... but wrong, that's a little unclear. There only evidence is one witness, the victim, there no evidence the rings ever existed, the witness never saw the fella enter the home, the witness had bad eyesight and no glasses, the witness already apparently thought this fella was responsible for a rash of breakins... despite the fact that he hadn't lived in the area in several years, and the fact that he hadn't lived in the area in several years. Oh yeah, and the fact that the fella decided to steal two rings, but didn't take the watch lying in the open.
9.8.2008 6:51pm
Dave N (mail):
Reading the facts from both the majority and the dissent, it does seem like a very circumstantial case. I am at a loss as to why Tucker waived a jury trial--that decision borders on the bizarre.

Judge Keith's dissent does seem a bit over the top, though I have no doubt he feels that this case is a profound miscarriage of justice.

Was Tucker guilty? Without reading the actual trial transcripts, I have absolutely no idea.
9.8.2008 6:52pm
Dilan Esper (mail) (www):
We're not too far removed from starting a dissent with "Jane you ignorant slut".

That said, I would argue that even though this was a liberal judge (or a judge arguing for a "liberal" result) doing this, a lot of conservatives bear some responsibility for this sort of rhetoric. For political reasons, they have described their method of interpretation as the ONLY possibly correct one, and described their opponents as not only wrong on the merits but of not even caring what the Constitution says. It's been going on for years, and it's poisonous.
9.8.2008 6:53pm
OrinKerr:
Dilan,

If past conservative rhetoric bears some responsibility for this liberal rhetoric, then doesn't past liberal rhetoric bear some responsibility for the past conservative rhetoric? And I guess it's turtles all the way down.
9.8.2008 7:02pm
Dilan Esper (mail) (www):
Professor Kerr:

I don't think so. While individual liberals certainly have bashed on conservative judging (and often properly so), there hasn't been a movement to paint conservative judges as making up the law and not caring about what the Constitution says.

In contrast, every conservative talk show host and politician in America lobs that slander at liberals.
9.8.2008 7:11pm
one of many:
Reading the facts from both the majority and the dissent, it does seem like a very circumstantial case. I am at a loss as to why Tucker waived a jury trial--that decision borders on the bizarre.

Because jury trials are always a crapshoot, and his defense attorney knew there was no way he would be convicted by a reasonable judge. If you read the dissent it appears that a lot of evidence that Tucker was a not very nice person would have been presented to the jury, and a jury may very well have convicted him on his record instead of his actions.
9.8.2008 7:11pm
Adam J:
Dilan- I'm not buying that, and I'm pretty liberal. Perhaps the judge feels he's justified because of Scalia's oh so friendly dissents, but that doesn't mean he is justified. This is far worse that anything I've seen from Scalia, and I don't think escalation is a responsible response to the rhetoric that some judges seem to use in their opinions these days. It's ineffective too, you're not going to change anyone's mind when you begin your argument with an insult.
9.8.2008 7:13pm
Adam J:
I agree with one of many... if you think you've got a strong case and you're not particularly likable, you pick the bench, not the jury.
9.8.2008 7:15pm
Dilan Esper (mail) (www):
Adam:

I agree this judge's rhetoric is horrible and makes Scalia look like a piker.

I am just saying that we live in a world where the conservative movement has decided that they way to win elections on the judicial appointments issue is to continuously slander liberals as not caring about what the law actually says and making up whatever they want to be the law. And in that world, the rhetorical ante has been upped and not in a good way.
9.8.2008 7:15pm
NickM (mail) (www):
I think the majority would be justified in amending their opinion to create a SCHMUCK footnote.

Nick
9.8.2008 7:18pm
OrinKerr:
Dilan,

You seem quite confident in your personal sense of cause and effect. I vehemently DISSENT.
9.8.2008 7:24pm
OrinKerr:
there hasn't been a movement to paint conservative judges as making up the law and not caring about what the Constitution says.

Have you picked up a law review recently? If so, I'm guessing the articles said that conservative judges made up the law and didn't care what the Constitution says. Of course, you may believe that talk radio must hold it self to higher standards than tenured professors.
9.8.2008 7:27pm
Mike& (mail):
The majority's opinion is pretty embarrassing. The majority found that the defendant entered a home and stole some rings because the defendant was seen jumping a fence, and because the back door to the home was left open. That's how we prove cases beyond a reasonable doubt these days?
9.8.2008 7:29pm
Michael person (mail):
Orin, you're very clever, but you do acknowledge that it's turles all the way down., so how can we believe you?
9.8.2008 7:30pm
OrinKerr:
Mike&,

I'm curious -- in your view, gIven the standard of review, what was the correct outcome? It's a weak case, yes, but then AEDPA and sufficiency challenges require the courts to uphold a lot of weak cases.
9.8.2008 7:31pm
Dilan Esper (mail) (www):
Professor Kerr:

You are equating what some liberal law professors are arguing (in law reviews and supported with citations to authority) with a talking point that has been adopted by the conservative movement and is spread to the general public (20 million people listen to Rush Limbaugh alone), unsupported by any authority and in fact untrue.

They don't equate.
9.8.2008 7:33pm
Dave D. (mail):
...Dilan, liberal judges blame conservative judges for NOT making up the law, and for caring about what the Constitution says way too much.
9.8.2008 7:43pm
Mike& (mail):
I'm curious -- in your view, gIven the standard of review, what was the correct outcome? It's a weak case, yes, but then AEDPA and sufficiency challenges require the courts to uphold a lot of weak cases.

I think the case is more than weak. The trial court's inferences were unreasonable.

Let's look at the two pieces of evidence: The defendant jumped the fence, and the back door was open. How does either establish, beyond a reasonable doubt, that the defendant entered the home?

Let's even couch the question in AEDPA terms: Is it not unreasonable to suggest that an open door and jumped fence establishes unlawful entry beyond a reasonable doubt?

It's one thing to say that an open door and jumped fence might establish entry. I can actually buy into that reasoning in an informal sense. If I saw a kid jump my fence, and a door I thought I shut was opened, I'd keep an eye out on the kid. I might even say there are 50-50 odds that the kid entered my house.

But that's far away from proof beyond a reasonable doubt.

I understand the dissent's frustration. The current view of the AEDPA is that every state court verdict, no matter how ridiculous, must be affirmed. But the AEDPA only requires deference. There is plenty of play in the joints.

In this case, no rational trier of fact could have found unlawful entry beyond a reasonable doubt. Thus, even under the AEDPA, the lower court's ruling could not stand.
9.8.2008 7:44pm
A. Zarkov (mail):
From the Chicago Tribune:

Tucker, who had a previous criminal record, is housed at a state prison in Ionia. His earliest release date is February 2011.
It would be nice to know if Tucker had prior convictions for home invasion or burglary. Of course you can only use a criminal record in setting sentence, but I will guess that justice has been done in this case, and everyone is better off with Tucker behind bars, expect perhaps Tucker.
9.8.2008 7:51pm
Anderson (mail):
The problem with "beyond a reasonable doubt" seems to be that, in fact, we routinely convict people for much less.

Maybe the court should've pretended that it was an insurance company jumping the fence. In that case, he might've found that not even a preponderance supported the prosecution's case.
9.8.2008 7:52pm
OrinKerr:
Dilan,

I've recently found it tremendously hard to have discussions with you, so maybe I'm not being sensible by responding further. But these talking points are universal on both sides: see the confirmation debates over Roberts and Alito. It is true that Rush Limbaugh has more listeners than law reviews have readers, but you haven't explained why that should matter:the point is that this is a nearly universal talking point, certainly what I hear everyday from both sides in the debate with near mirror opposites of each other.
9.8.2008 7:53pm
Mike& (mail):
I will guess that justice has been done in this case

That, of course, is the attitude that leads to wrongful convictions. Find someone who has a bad rep (deserved or not) or who has a prior conviction, and pin a crime on him.
9.8.2008 7:55pm
Mike& (mail):
I've recently found it tremendously hard to have discussions with you,

It seems to me you're both right. You're just arguing different points. Dilan's point seems to be that the "liberal activists" meme is most popular in the general public. You're arguing that it's actually very popular in the law reviews to call conservative judges activists. When two people are right, but are arguing different points, it's impossible to have a discussion.
9.8.2008 7:58pm
Anderson (mail):
Find someone who has a bad rep (deserved or not) or who has a prior conviction, and pin a crime on him.

Then write a Chicago-style "law &economics" article about how, given the odds that a prior offender needs to be locked up anyway, the result is economically sound.
9.8.2008 8:00pm
Nathan_M (mail):

I am at a loss as to why Tucker waived a jury trial--that decision borders on the bizarre.

In my humble opinion, which I think is widely shared, one is more likely to get a highly unexpected verdict in a jury trial than a bench trial. So if you have a very strong case (as the defendant seems to have had here), and the judge has a good reputation, then it can be a good decision to opt for a bench trial.

I agree that the judge's decision doesn't seem to make much sense, but many jury verdicts are no better.
9.8.2008 8:00pm
Mike& (mail):
Incidentally, the Esper-Kerr debate could be solved empirically - and pretty easily.

Just do a Lexis-Nexis search using variants of [liberal /p /p jud! activis!] and [conservative /p jud! /p activs!]. Then compare the search results.

The number of hits would determine the issue - at least as regards to the popular/mainstream press.
9.8.2008 8:00pm
Lior:
Prof. Kerr: this case is beyond weak. It's non-existent.

AEDPA does require the courts to uphold weak cases. But does this extend to cases where the conviction could not conceivably have been supported by the evidence?
9.8.2008 8:01pm
Anderson (mail):
When two people are right, but are arguing different points, it's impossible to have a discussion.

Agreed; also, while Dilan is flogging the horse a bit more than I would, his original claim -- "bear some responsibility" -- is too weak to be false.
9.8.2008 8:01pm
OrinKerr:
Mike,

Not to get too side-tracked, but I'm not arguing that this is just a point in the law reviews; It seems to me that it is the mainstay of liberal discussion of conservative legal thought, from Democratic senators to the ACS to Slate.com. I just picked the law reviews as an example because it seemed amusing to compare Rush Limbaugh and law professors.
9.8.2008 8:05pm
Dilan Esper (mail) (www):
I've recently found it tremendously hard to have discussions with you, so maybe I'm not being sensible by responding further. But these talking points are universal on both sides: see the confirmation debates over Roberts and Alito. It is true that Rush Limbaugh has more listeners than law reviews have readers, but you haven't explained why that should matter:the point is that this is a nearly universal talking point, certainly what I hear everyday from both sides in the debate with near mirror opposites of each other.

I thought I explained it.

1. Claims in legal scholarship are made with citations to authority. If / when a conservative says that particular decisions were wrong and says why they were wrong, I can respond to that argument. On the other hand, "liberal judges don't care what the law is" is a generality that can't be responded to.

2. Claims made by movement conservatives reach a bigger audience. Even if we assume that liberal scholars are making some false or misleading claims about conservative judges, they aren't making it to 20 million people. In contrast, not only are these claims made about liberals by talk radio types AND conservative politicians, but in my experience, ordinary conservatives believe them. In other words, I have met people who have never read a judicial opinion in their life but who are convinced that conservative judges apply the law faithfully and liberals make it up. I have seen such people comment in this very site's comments threads.

All my adult life, I have watched conservatives in the media and politics effectively slander liberal judges as a bunch of unprincipled dictators who impose their will on the public without regard to the content of the law. It's false, but people believe it. It's a huge, successful lie, and it distorts public policy debates. Is it any wonder that I am a little bit more upset about this than I am about the claims of some liberal law professors in law review articles?

3. This may be personal, and I don't expect you to necessarily agree with me, but I really have an aversion to political talking points-- including even those I agree with. In other words, when a conservative says "Roe v. Wade is wrongly decided because whatever you think about abortion, the due process clause of the constitution wasn't intended to protect a right to have one", I may or may not agree with it, but I think that's a perfectly legitimate, thoughtful, potentially persuasive, reasoned argument.

On the other hand, when I read "you liberals don't care about what the law says, you just write your policy preferences into law", I get upset not only because it is false and because so many people who don't know any better believe it, but also because it's the worst kind of focus-grouped oversimplification of an issue.

In a sense, when you ask what the difference is between claims made on law reviews and those made on talk radio, you are missing this entire point. It's the difference between treating an issue seriously and treating it as a slogan.

I don't like slogans to begin with, but this particular one has had a particularly pernicious effect on public discourse by painting liberal judges as a bunch of dictators with robes on, when in fact the debates between liberal and conservative judging go far beyond and have little to do with the simplistic slogan about "following the law as written" vs. "writing one's personal preferences into law".
9.8.2008 8:09pm
Mike& (mail):
It seems to me that it is the mainstay of liberal discussion of conservative legal thought, from Democratic senators to the ACS to Slate.com

Even this seems narrower than Esper's claim. Esper seems to suggest that "liberal activism" is a meme throughout all of society. It's dinner table discussion for conservatives. Is "conservative judicial activism" dinner table discussion for the average liberal?

Within the context of judges, I usually think of liberals talking about conservative judges being outside of the "mainstream." Not much about activism, though. Outside of Balkin's blog, I don't even see much in the blogosphere about conservative judicial activism.

That said, a few minutes with "all news" (or whatever it's called) in Lexis-Nexis or Westlaw should answer resolve the issue of how popular the conservative activism meme really is.
9.8.2008 8:11pm
OrinKerr:
Dilan,

I'm curious, what are your thoughts on how the New York Times editorial page (which reaches millions of people) covers conservative legal decisions?
9.8.2008 8:14pm
Mike& (mail):
AEDPA does require the courts to uphold weak cases. But does this extend to cases where the conviction could not conceivably have been supported by the evidence?

No. I'm running out of time, so this will be sloppy. Excuse me.

1. AEDPA prevents judges from granting habeas unless the state court acted unreasonably, in light of cleary established federal law.

2. There is clearly established federal law stating due process requires that a defendant may only be convicted when there is beyond a reasonable doubt.

3. The defendant was convicted under a standard below beyond a reasonable doubt. Maybe he entered the home. But no rational person could say, beyond a reasonable doubt, that he dis so.

4. Hence, even under the AEDPA, habeas should have been granted.
9.8.2008 8:15pm
Dilan Esper (mail) (www):
Professor Kerr:

I don't like it. In fact, I think most of the mainstream media basically covers the Supreme Court as a policy debating society rather than as a legal tribunal.

But while it may "reach millions", I would argue that for all my problems with the New York Times, it isn't nearly as effective in misleading its audience, because there's nothing comparable in its readership to the millions of dittoheads who repeat the talking point that liberal udges make up the law.

I really don't think there is any lie or falsehood about the American judiciary that is pervasive or pernicious than the one about liberals being the ones who don't care about what the law says and instead enacting their personal preferences by judicial fiat.
9.8.2008 8:17pm
PLR:
In case you're wondering, the majority opinion was by Senior District Judge Harold Ackerman, a Carter appointee to the District of New Jersey, joined by Jeff Sutton, who as many readers know was a Bush 43 appointee to the Sixth Circuit.

I've not found that knowing the identity of the appointing chief executive gives much insight into a specific decision. Actual prior decisions of that judge, absolutely.
9.8.2008 8:19pm
Serenity Now (mail) (www):
Dilan - ... the conservative movement has decided that they way to win elections on the judicial appointments issue is to continuously slander liberals as not caring about what the law actually says and making up whatever they want to be the law.

Does the following strike you as "slander"?
Republican Presidents have consistently considered the Court as a law court, members of which should have past experience on lower Federal or state courts. Democratic Presidents have seen the Court as a policy court, and have consistently appointed to it men from public life with substantial experience.
- link
9.8.2008 8:25pm
Dilan Esper (mail) (www):
Serenity:

As of 1976 (when it was said), there was some truth to that statement as it applied to Supreme Court appointments, in that Democrats appointed Byron White and Thurgood Marshall and Abe Fortas and supported the Republican appointees Earl Warren and William Brennan.

As of now, that statement would be incorrect even in that respect, as more recent Democratic appointees have had long judicial careers.

In any event, it is a totally different issue from whether Democrats, once they get to the bench, "make up the law".
9.8.2008 8:28pm
Dilan Esper (mail) (www):
Also, Serenity, note that Clarence Thomas had not exactly had a long judicial career when he was appointed to the Court, and he is one of the right's favorite justices.
9.8.2008 8:29pm
OrinKerr:
But while it may "reach millions", I would argue that for all my problems with the New York Times, it isn't nearly as effective in misleading its audience, because there's nothing comparable in its readership to the millions of dittoheads who repeat the talking point that liberal udges make up the law.

I disagree.
9.8.2008 8:29pm
Jim Rose (mail) (www):
I have always wondered where the logic of the quote stops. Is it better that 100 guilty men go free than to convict one innocent man? How about 1000? If we let all guilty men go free, we will never convict an innocent man.
A chief assistant district attorney I used to work for once kiddingly said: "So what if we occasionally let a guilty man go free? We'll convict a few innocent men to make up for it."
9.8.2008 8:33pm
Oren:
Jim, I believe one of the Volokh clan cataloged the depths of Blackstone's maxim about as deep as it goes.
9.8.2008 8:55pm
D.R.M.:

there hasn't been a movement to paint conservative judges as making up the law and not caring about what the Constitution says.


Um, yes, yes there has. Read any history book that talks about the decisions of U.S. courts in the late 19th and early 20th centuries.

You see, the side that gets accused of imposing their policy preferences regardless of the law is the one that's ascendant. And though there has been some rowback recently (provoking the in-journal accusations against the conservatives), we're still in the post-FDR era of liberal judicial interpretation.
9.8.2008 8:56pm
wm13:
"I would argue that for all my problems with the New York Times, it isn't nearly as effective in misleading its audience, because there's nothing comparable in its readership to the millions of dittoheads who repeat the talking point that liberal judges make up the law."

Wow, and the preachers at Ethical Culture try so hard. Seriously, you ought to attend some parents' cocktail parties at Ethical Culture or Rodeph Sholem.
9.8.2008 9:02pm
Ohio Scrivener (mail):
"Apparently neither the state trial judge nor the majority ever read or understood the Constitution . . ."

This hyperbolic criticism is a bit embarrassing. It takes what should be a disagreement over the law and turns it into an undeserved ad hominem attack.

To me, the nub of the disagreement is the degree to which a federal court in habeas review should step on a state court's findings of fact. The majority's argument is rooted in principles of federalism and the strict standard of review (any rational trier of fact). The dissent argues that while the standard sets a high bar it is not insurmountable.

At the end of the day, I think the majority has the better argument. The controlling standard sets a very difficult hurdle to overcome on habeas review and is designed to discourage second guessing from federal courts. The dissent makes some good points (when not stooping to personal attacks), but this is not a case it can decide from scratch.
9.8.2008 9:43pm
FlimFlamSam:
Dilan = Wrong.

Orin = Right.

But then what do I know, I'm just a mind-numbed, dittohead robot.
9.8.2008 10:25pm
ReaderY:
Given that the watch wasn't taken, it seems plausible that the homeowner could have misplaced the rings. And I'm surprised that the judge wouldn't have insisted on some sort of corroboration at least on the question of whether the rings ever existed. The action of any such proof, let alone any connection between the rings and defendant, is as troubling as the absence of proof the defendant ever entered the home.
9.8.2008 10:30pm
A. Zarkov (mail):
"That, of course, is the attitude that leads to wrongful convictions. Find someone who has a bad rep (deserved or not) or who has a prior conviction, and pin a crime on him."

Absent some special circumstances (Nifong) why would a prosecutor risk a frame up? I don't see that as a problem.

The accused prior record does bear on the probability of his guilt, how can anyone argue otherwise?
9.8.2008 10:51pm
David M. Nieporent (www):
Maybe the defendant's mistake was agreeing to a bench trial. I certainly would not have voted to convict upon this record, and I'm a pretty law-and-order person. Somewhere along the line the definition of "reasonable doubt" got lost.
I think the evidence of guilt was pretty weak -- trespass, yes, but burglary, no -- but I think that Keith was applying the wrong standard. And yes, claiming other judges haven't read the Constitution sounds more like a blog post than a judicial opinion.
9.8.2008 11:31pm
JustSomeDude (mail):
All my adult life, I have watched conservatives in the media and politics effectively slander liberal judges as a bunch of unprincipled dictators who impose their will on the public without regard to the content of the law. It's false, but people believe it.

People believe it because those specific beliefs have penumbras, formed by emanations from those cases that serve as abject examples.
9.8.2008 11:33pm
Mark Field (mail):
I agree with Dilan.
9.8.2008 11:35pm
AST (mail):
Judge Keith should run for Congress. He'd fit right in with Maxine Waters, Babs Boxer and Nancy Pelosi.

My main objection to his distemperate remarks is his characterization of the Due Process clause as "the most important right our Constitution affords the accused." Basically, he's accusing the trial court and the appellate court of denying the defendant a fair trial, which is a pretty subjective judgment. I'm not sure you can break down the elements of the Constitution into separate distinct units and then rank them.

I've thought for a long time that the purposes stated in the Preamble have been given a lesser status by the courts, resulting in a undue emphasis on the Bill of Rights and the rights of criminal defendants vis-à-vis the rest of us, particularly the victims. If you include the Declaration, I'd say the Right to Life is right up there along with Liberty. Those rights are the reason fairness to defendants is so essential. It stems from them.
9.8.2008 11:38pm
David M. Nieporent (www):
There only evidence is one witness, the victim, there no evidence the rings ever existed
No evidence... except the testimony of that one witness, the victim.

While we'd always like to have multiple witnesses, we convict based on one witness all the time. If it were rape, I'm thinking that good liberals would be less squeamish about that notion.
, the witness never saw the fella enter the home, the witness had bad eyesight and no glasses,
But knew the guy, and the guy passed within six feet of him anyway.
the witness already apparently thought this fella was responsible for a rash of breakins... despite the fact that he hadn't lived in the area in several years, and the fact that he hadn't lived in the area in several years. Oh yeah, and the fact that the fella decided to steal two rings, but didn't take the watch lying in the open.
And? What's the significance of that last point?

You're applying the same wrong standard as Keith; you're supposed to look at the evidence in the light most favorable to the prosecution, not the defendant.
9.8.2008 11:41pm
tsotha:
I vehemently (heh) disagree with Dilan. Conservatives believe liberal judges take liberties with the constitution because, far from being slander, it's true.

No matter how hard I squint at my copy of the constitution I don't see any right to abortion, nor indeed any hint the framers and subsequent amenders intended those kinds of questions to be decided at the federal level at all, let alone by the judiciary.

And how about that commerce clause? Is there any action by Congress that doesn't fit through that gaping hole?
9.8.2008 11:48pm
Splunge.:
I believe Mr. Esper's argument is classified by logicians as a tu quoque ("you too") argument, a more verbally sophisticated version of the old playground defense but he started it.

I don't see how any thoughtful person could take such an argument seriously, although I appreciate its emotional appeal.
9.8.2008 11:56pm
vinnie (mail):
Dissenter:
I agree. The "never read the Constitution" attack doesn't sound like a judicial opinion, it sounds like a blog comment. (hmm....)


Meaning what? Easy to understand? Readable? accessible to the layman? Succinct? I solicit comments from anybody who has never had a similar thought when reading a brief. I expect most of us (layman at least) have had similar thoughts. Or somthing like:

You keep using that word. I do not think it means what you think it means

9.9.2008 12:31am
Humphrey Bogus (mail):
"I vehemently dissent?" Is that how it works? Hmm? "I dissent."
"Outvoted."
"No, no. I vehemently dissent."
"Oh. You vehemently dissent. Then I'll take some time and reconsider."

cf A Few Good Men
9.9.2008 12:38am
HeadedWest (mail):
I think that most judges and prosecutors don't give a rat's ass about the correct outcome of a trial. So long as *somebody* gets convicted, it's all good.

That explains (in a way nothing else can) the absolute opposition to reversing the outcome of a trial sometimes even in the face of incontrovertible evidence.
9.9.2008 1:12am
lkcjpd:

On the other hand, when I read "you liberals don't care about what the law says, you just write your policy preferences into law", I get upset not only because it is false and because so many people who don't know any better believe it
Even liberals.

Most American voters (60%) agree and says the Supreme Court should make decisions based on what is written in the constitution, while 30% say rulings should be guided on the judge’s sense of fairness and justice. The number who agree with McCain is up from 55% in August.

While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree.
9.9.2008 1:17am
lkcjpd:
Dilan, care to explain why even liberals believe the big lie? Not only do they believe it, they assert it candidly if the polls are to be believed. Which makes the "lie" meme a bit thin . . .
9.9.2008 1:20am
Bruce:
Humphrey Bogus, I thought of the exact same thing.

There's a tactical point here. What is Keith hoping to achieve with this dissent? That he's going to attract votes to his side down the road someday? I don't get it, just like I don't get Scalia's mocking of O'Connor and Kennedy. Is it just because they can't help themselves?
9.9.2008 1:26am
Jay Myers:
Dilan Esper:

I am just saying that we live in a world where the conservative movement has decided that they way to win elections on the judicial appointments issue is to continuously slander liberals as not caring about what the law actually says and making up whatever they want to be the law.

So both of these guys must be conservatives slandering liberals. Glad to know that.

"Do what is right and let the law catch up"
Justice Thurgood Marshall

"[The Supreme Court] is a totally different ball game. ... A circuit court judge is bound by stare decisis. They don't get to make new law."
Senator Joe Biden
9.9.2008 4:18am
Bloviator:
According to the Sixth Circuit's website, Keith is 86 years old (born 1922) and was appointed as a district judge under Johnson and a circuit judge under Carter. Those kinds of angry outbursts have no place in a judicial opinion. Maybe it's time for Keith to retire.
9.9.2008 10:06am
titus32:
No. I'm running out of time, so this will be sloppy. Excuse me.

1. AEDPA prevents judges from granting habeas unless the state court acted unreasonably, in light of cleary established federal law.

2. There is clearly established federal law stating due process requires that a defendant may only be convicted when there is beyond a reasonable doubt.

3. The defendant was convicted under a standard below beyond a reasonable doubt. Maybe he entered the home. But no rational person could say, beyond a reasonable doubt, that he dis so.

4. Hence, even under the AEDPA, habeas should have been granted.


This is an incorrect statement of the law -- among other things, it omits the double deference due under AEDPA. Jackson v. Virginia supplies the first level of deference: the verdict cannot be reversed for insufficient evidence unless no rational trier of fact would have found the defendant guilty beyond a reasonable doubt, viewing all evidence in favor of the prosecution. AEDPA then supplies the second level of deference: the state court's decision cannot be reversed unless the state court unreasonably applied Supreme Court law (here, Jackson v. Virginia) to the facts of the case. Thus, in this case, the test was something like: did the state court unreasonably determine that no rational trier of fact could find the defendant guilty beyond a reasonable doubt, viewing all evidence in favor of the prosecution?

Of course, it's difficult to assess what practical effect, if any, AEDPA has in cases governed by Jackson v. Virginia, given that the standard is only met in egregious cases.
9.9.2008 11:26am
submandave (mail) (www):
As an outside observer (IANAL) it seems that Dilan Esper's position is best summed up as:

Academics and scholars discussing how wrong and out of tough conservative justices are amongst ourselves and in out professional journals is one thing, since, after all, we are the professionals and know best. But open discussion of liberal justices approach to the law (and especially Constitutional reading) among the public, especially when engaged in by popular personalities, is simply gauche. Don't they know their place? How can those plebians' opinions on judicial review or the Constitution possibly have any value or importance?
9.9.2008 11:51am
Mark Field (mail):
submandave, you may not be a lawyer, but you have a lawyer's gift for mis-stating your opponents' position. If you ever need a letter of recommendation to law school, I'll be happy to say so.
9.9.2008 11:59am
Paul A'Barge (mail):
Judges are wankers.
9.9.2008 12:27pm
Oren:

It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.
SCOTUS, In Re Winship
9.9.2008 12:44pm
zippypinhead:
While there may be colorable arguments on the merits for both sides in this case, I find Judge Keith's outburst to be so out of line that it makes me wonder — what, if any, supervisory mechanism exists to discipline or at least chastise Judge Keith's inappropriate ad hominem attack on his fellow Circuit Judges? If a District Judge accused his peers of never having "read or understood the Constitution" and "recklessly disregared" fundamental proof doctrines, I would think the Circuit would quite possibly go out of its way to make an example of him. Has anything similar ever happened to a Court of Appeals Judge? And by whom? The Supreme Court? the Circuit Justice? The remainder of the Court of Appeals en banc? The Chief Judge? All/none of the above?

/bad humor> Incidentally, in the spirit of Judge Keith and/or Dan Ackroyd, I have to point out that Professor Kerr left out an important phrase in one of his comments above:
"OrinKerr:
Dilan,

You seem quite confident in your personal sense of cause and effect. I vehemently DISSENT, you ignorant slut!"
/bad humor off>
9.9.2008 1:33pm
Joel Rosenberg (mail) (www):
If I look at the evidence in the light most favorable to the prosecution, it seems likely to me that Tucker did it.

Heck, I don't even need that -- all I've got to do is believe that Sutliff isn't mistaken when he says he saw Tucker leaping over the fence in the direction that he did, and that he recognized him, to think it more than a little likely that Tucker committed the crime, as described in the law.

What the heck else would he be doing leaping over Sutliff's fence? Is he filling his time on parole with recreational fence jumping? Maybe Sutliff's wrong (or making stuff up) about the missing property; as long as Tucker went into the house for a criminal purpose, he committed the crime, even if (say, hypothetically), he heard Sutliff coming back home and fled.

So, sure -- he did it.

But let me back up a second. Since I'm not lawyer -- nor an appellate court judge -- I'm allowed to do that. (So are y'all, actually.) Isn't there something fundamentally upgefuckt about putting a guy (even, say, a jerk who already had a criminal record) in prison for seven to fifteen years on evidence of wrongdoing that's this weak?

Isn't there something fundamentally wrong with the majority upholding -- in the less inflammatory, albeit not much, language of the dissent -- the "outrageous and unbelievable finding that Tucker is the 'person he saw' entering the house" when, well, Sutliff never said he saw Tucker enter, exit, or inside the house?
9.9.2008 3:01pm
Random Juror (mail):
You know, I was in the jury pool for a guy charged with a driveby shooting that killed some folks in a not-so-nice neighborhood in DC. He came into the courtroom and looked just like the bad guy from Friday (the giant bald guy), except he had a scar that ran from one corner of his mouth all the way around his head. That dude was like 6'6", and 300 lbs of muscle, and he looked at the jury with burning hate in his eyes. I'm no wimp, but I seriously started thinking about what his homeboys were going to do to the jury if they convicted.

I'm not proud of it, but it took me about 3 seconds to decide not to let that guy back out on the streets. Ever. I didn't get selected for the jury, but I couldn't have been alone because that guy got a big, fat guilty.
9.9.2008 3:59pm
Joel Rosenberg (mail) (www):
Maybe -- maybe -- it was because, instead of (or in addition to) him looking like some sort of killer, it was because there was enough evidence produced in court that, you know, he kind of like, err, murdered the guy that he was charged with?

One of the nicest, best-spoken people I know is one of my local self-defense activists, a fellow named Bruce Krafft. He's 6'4", with a shaved head, long red beard, and has a tendency to scowl when he's thinking something through. By profession, he's a mildly disgruntled postal worker.

Heaven help him if he's ever accused of a crime...
9.9.2008 11:43pm