Law & Justice: November 2004 Archives

The sentencing phase of Scott Peterson's murder trial begins today, and he's stuck with the same jurors who convicted him of murdering his wife and unborn son. If I were on the jury I'd purposefully stall just so I could deliver the verdict on the anniversary of the murders: "Merry Christmas Scott, you get the death penalty. Sucka!"

Jim Price, in a comment here, points to a story about a fake document scandal perpetrated by Dan Rather over a decade ago.

Here's a brief history of jury nullification -- the ultimate bastion of democracy. You should read up on it for when you serve on a jury and are called upon to enforce what you believe to be an unjust law. In short: you can vote to acquit no matter what anyone tells you.

(HT: either Mister District Attorney or CrimLaw, I forget.)

Orange County Assistant Sheriff Donald Haidl's son, Greg Haidl, has had his bail revoked. You may remember the younger Mr. Haidl from the earlier post in this series, in which I wrote:

This hasn't been a big national story, but the alleged gang-rape of a teenaged girl by three boys at a party -- one of whom is the son of an Orange County assistant sheriff -- has been pretty closely watched here in Southern California. The details are pretty simple: the girl passed out at a party and the boys then videotaped themselves having sex with her and sodomizing her on a pool table. Straight-forward, right? Nope, there's been a mistrial.

Why? The alleged crime is on video tape, but rape is inherently hard to prove and guilt hinges entirely on the state of mind of the woman involved, which is impossible to prove scientifically (until we get magical time-traveling mind-reading machines). Our system of justice doesn't require scientific proof, it only requires "reasonable doubt" proof, but even that's hard to come by when it's one person's word against another's (or three others). ...

The potential for a misunderstanding is rather high when the girl admits that she had sex with at least two of the boys willingly within the week before the alleged rape. There was also some controversy over whether the girl was actually unconscious at the time of the video taping, or whether the whole event was a staged attempt at making a porno, as the girl had previously indicated she wanted to do.

So what'd he do now? Just a little drunk driving, vandalism, trespassing, drug possession and statutory rape -- but at least this time it was consensual, other than the fact that California doesn't let 16-year-olds consent. Now his $200,000 bail has been revoked and he has twice attempted suicide, thereby further devestating his family... just like Scott Peterson. Haidl and Peterson... does anyone really doubt that the former wouldn't eventually become the latter? I bet an investigation of Peterson's childhood would reveal a lot of similarities.

And finally, the jurors from Mr. Haidl's mistrial are being hired by his defense lawyers to help prepare them for the retrial. Since the first jury was deadlocked 11 to 1 in favor of acquittal, it doesn't seem likely that Mr. Haidl will spend much time in jail.

Wow. This massacre is the kind of thing gun-control advocates claim would run rampant if we had more liberal gun laws.

BIRCHWOOD, Wis. — A Wisconsin (search) hunter is accused of killing five people and wounding another three after he allegedly shot them over a fight involving a tree stand, authorities said.

The dead included a teenage boy, a woman and a father and son, County Chief Deputy Tim Zeigle said. Some of the victims were shot more than once.

Hideous.

Here's a cool live-blogging transcript of a Q&A with Justice Scalia. He takes a lot of questions and tackles a bunch of issues (including a persuasive case against using legislative intent to interpret laws), and here's an argument against Roe v. Wade that I hadn't considered before. (All paraphrased.)

Q: Strict originalism, powers to states -- divisions between states? Lots of them? Even more divided society?
A: Court spends ~1/3 of time sorting out federal system. "Running a federal system is one big pain in the neck." France's system run out of Paris is easier. Ours is worth the trouble b/c federalism produces more happy people. eg. abortion: 51-49, 49 unhappy people. Divide into subgroups of 10. Can't possibly have more than 40 unhappy people. Phenomenon magnified when divisions not random, but geographic. Why should NY have to adopt Utah's approach to abortion? What's the use of a fed'l system if we don't allow states to apply their own views?

Laziness: need 5 votes on the S.Ct. and things are fine, instead of going to 50 state legislatures. He doesn't understand the aversity to diversity.

"My answer is yes, and a good thing too."

(HT: Orin Kerr and Will Baude.)

Clayton Cramer responds to my earlier post in which I argued that we should consider amending the Constitution to institute limited terms for federal judges of, say, 15 years, rather than give them lifetime appointments.

This is a very tempting position to take, at least when conservatives seem to be in political ascendancy. I have a theory, however, that lifetime appointments for federal judges has a positive effect of buffering the rate of change--and this is actually a good thing, overall.

Consider what happened when FDR tried to ram through the New Deal. A bunch of federal judges, including most of the Supreme Court, were appointed by Republicans, and had a view of the government's role that is often characterized (not entirely accurately) as "strict constructionism." They hindered substantially FDR's well-intentioned by foolish attempts at making the federal government master of the economy. They hindered FDR's efforts, but they could not delay them indefinitely. Still, without these delays, I suspect that FDR and Congress might have gone quite a bit farther down the road to government control than they did.

My understanding is that "strict constuctionism" was coined by Richard Nixon and William Rehnquist during the former's 1968 presidential campaign, and I don't think any of the justices opposed to FDR closely aligned with the theory. (But Mr. Cramer is the historian, not I!)

Anyway, I agree that long terms for judges are useful as a check on the other branches, but it's also important to remember that people lived much shorter lives in the 18th century when the Constitution was written. Who would have guessed, then, that in 2004 we'd have a Supreme Court with an average age of 70 years and not a single resignation in over a decade? Perhaps Mr. Cramer has some knowledge of the average amount of time served (before death or resignation) by federal judges in the 18th and 19th centuries as compared to the 20th and 21st.

Update:
Mr. Cramer responds via email,

The term strict constructionist may be that young, but the theory it
promotes--that judges should only use the explicit language of the
Constitution in deciding what is Constitutional--goes back much earlier
than that. I used the language that I did to emphasize that many of
these judges didn't strictly follow their own theories on this.

Take a look here for the duration of various chief justices of the Supreme Court.
Marshall served for 35 years, from 1801 to 1836.

That's a long time... probably too long, I say. According to the table, for whatever it's worth, Chief Justices nominated to the Chiefship in the 18th century served an average of four years, those nominated in the 19th century served 21.8 years, and those nominated in the 20th century served 11.75 years. This doesn't count time spent as a federal judge, if any, before being made Chief Justice. Really, these averages indicate nothing, other than the known fact that I like using Excel to play with numbers.

I'd be very interested in a larger data set of federal judge tenures.

Update 2:
I just saw the earlierly-misposted comment by Tom Round who has some excellent data, quoting The New Republic:

In 1787, the adult life expectancy was less than 39 years. Today the number is nearly double that. Stays on the Court have lengthened almost exactly in sync, the first nine justices… served an average of 8.6 years, while the last nine to leave… have presided an average of 16.7 years. With the median age of the population at 32 years, the median age on the Supreme Court is now 67.

It's time to consider amending the Constitution to impose limited terms on federal judges, all the way to the top at the Supreme Court. The terms should be nice and long, say 15 years, but considerably shorter than the lifetime tenure now enjoyed by our judicial aristocracy. The idea that whomever President Bush appoints during his second term could still be making law for my grandchildren is ridiculous. Maybe in an ideal world judges-for-life work, but in reality they're no better than presidents-for-life.

The idea behind life terms is that the judiciary shouldn't be politicised, but take a look around -- it's a little too late for that. I don't think federal judges should be popularly elected (as many state judges are), but I don't think we should have to impeach them be rid of them. Limit judges to one 15-year term, and then let them ply a useful trade in the public sector.

Scott Peterson was convicted of first and second degree murder this afternoon for killing his wife and unborn son. All the evidence against him was circumstantial, but few people seemed to have any doubt about his guilt. There were no eye witnesses, no murder weapon, no blood stains, no DNA. Nevertheless, the circumstances of the crime pointed convincingly towards Mr. Peterson, and possibly even more important in the eyes of the jury, he was a real scumbag.

The worst parts of the crime are, of course, the murders, but secondarily don't forget just how badly Mr. Peterson has screwed his family. They sold everything they owned, mortgaged their homes, and emptied their retirement and college accounts to hire Mark Geragos to put on a million-dollar defense for their son and brother, and he let them annihilate their lives in a futile attempt to get him off when he knew he was guilty. Now they'll never touch him again, and never see him except through maximum security prison glass.

Rather than simply flee his family -- as thousands of selfish and pathetic fathers do every year -- Scott Peterson found an even lower road to travel, and I hope he fries for it. He thought he could, for his own convenience, murder the ones who loved and depended on him; he was too smart to ever get caught. When he was picked up, with dyed hair and $15,000 in cash, he then conned his family into ruining their own futures to cover his despicable acts. What clearer picture of depravity can there be? Saddam Hussein writ small, but no less evil for it.

An Australian man gets to deduct stolen drug money from his income for tax purposes (second item). Does American tax law work similarly?

An Australian court ruled Wednesday that a convicted heroin dealer can claim a $165,000 tax deduction for money that was stolen during a drug deal. ...

The ATO had been trying to make La Rosa — who served a 12-year jail term for dealing heroin and amphetamines — pay tax on his 1994-95 income, which it estimated at $337,000.

But La Rosa insisted his taxable income should be reduced because half that sum had been stolen.

The money had been buried in La Rosa's backyard and was dug up to spend on a drug deal in May 1995, but was stolen during the transaction by unknown people, the court was told.

First, do you have to pay income tax on illegal income? Wouldn't the government just seize all the money involved? Or do you then have to pay taxes over and above the seizure? Wouldn't the Fifth Amendment prevent you from having to declare illegal income? Second, I wasn't aware that stolen property is tax deductable.

Update:
Make sure to read Ron's comment.

My father was in the Criminal Investigation Division of the IRS for 20 years. Their job is to find criminals that aren't paying their taxes on illegal income and arrest them for tax evasion.

When he was in the Audit division he said he'd often seen returns that said things like "$100,000 smuggling" and as long as they paid the right amount of taxes they wouldn't do anything to them.