The Washington Post has a pair of front-page articles coming out tomorrow on the judiciary: one that shows why federal judges are important, and another that shows why Obama will likely remake the federal bench to Democrats’ liking.
Although Republican control will probably persist on a majority of appellate courts for at least several years, some experts say that by the end of Obama’s term, he and the Democratic Congress will flip the 56 percent majority Republican nominees now exert over those highly influential bodies.
“Obama has a huge opportunity,” said Arthur Hellman, a University of Pittsburgh law professor who is an authority on federal courts. “In a very short time, significant segments of the appellate courts, which are the final authority in all but a tiny handful of cases, will be dominated by Democratic nominees.”
I think they’re deliberately trying to depress me.
The extended entry shows how the Post distorts the facts of a case used to bolster its argument about the significance of judges.
In one of the stories, the Post tries to show the effect Republican judges have by describing a case as follows:
Arnold was arrested in 2002 after his girlfriend’s daughter called 911 to say he threatened to shoot her. Arnold, a high school dropout, had spent a good portion of his adult life behind bars after convictions at age 19 for assault, at 22 for grand larceny and at 24 for murder.
His arrest for possessing a handgun — found under the front seat of a car used by Arnold and his girlfriend — occurred four months after he left prison. At trial, however, prosecutors presented no evidence that the gun was his, and the daughter’s accusations to police were admitted at trial even though she refused to testify. She told a private investigator that Arnold had no gun, but that recantation was never disclosed to the jury.
Sutton was initially outvoted on a panel when one other Republican appointee and Karen Nelson Moore, a Democratic appointee, said Arnold’s conviction was unjust.
“I finally got justice — that’s what I thought,” Arnold said in a telephone call from prison.
Then the government appealed. Sutton wrote the en banc majority opinion, which in reversing the verdict said the evidentiary issues were not particularly egregious mistakes and did not seriously affect the trial’s fairness.
“We cannot overturn the jury’s decision merely because it had to draw reasonable inferences” rather than rely on direct proof, Sutton said.
But Moore, a former law professor who once clerked for Supreme Court Justice Harry A. Blackmun, wrote an impassioned dissent that was joined by three other Democratic appointees. They concluded that the jury had an absolute right to know that the daughter withdrew her accusation and that, as a result, Arnold should have been acquitted.
Let’s look at the actual decision, with a particular focus on the Post‘s claim that “prosecutors presented no evidence” that the gun was the defendant’s. Here are some quotations from the majority opinion (.pdf file):
The jury heard evidence that Gordon, her mother and Arnold were at home that morning, that Arnold [the defendant] and Gordon began arguing and that during the argument Arnold retrieved a gun and pointed it at Gordon as she fled to call 911. They learned that Gordon described the gun to officers as a black handgun. They heard that the way Arnold cocked the weapon indicated to the officers that it was a loaded semiautomatic and that it had a round of ammunition in its chamber. And the jury learned that when, moments later, a car containing Arnold arrived at the scene, the police found a gun inches from the passenger seat where Arnold was sitting. The gun in every way matched Gordon’s description: it was black; it was semiautomatic; it was loaded; and it had a round in its chamber. And it was found within easy reach of Arnold.
I’m sorry, Washington Post . . . how is that “no evidence” that the gun was the defendant’s?!
But what about the daughter’s statement to the private investigator? Well, her statements to police came in under a recognized hearsay exception. Her contradictory statements to the private investigator also should have come in, but the attorney screwed up. The question was whether his screw-up was so bad that the conviction ought to be reversed even though he failed to preserve the objection. Reasonable minds can differ on that question, but in order to make your decision, you really should know something that the Post didn’t bother to tell you, but I will — namely, the woman said under oath that she really did see a gun, and told the private detective something different “under pressure” from her mom, the defendant’s boyfriend:
After the trial, Gordon [the daughter] faced a contempt action for failing to appear in court in response to a government subpoena on the first day of Arnold’s trial. The record from the contempt hearing, which is included as part of the record in this case, shows that Arnold’s private investigator spoke to Gordon and obtained the affidavit eight months after Arnold’s arrest. At the contempt hearing, which occurred two-and-a-half months after the trial, Gordon testified under oath that she was “positive,” JA 261, and “absolutely sure,” JA 245, that she saw Arnold with a gun. Acknowledging that she said something else when she met with Arnold’s private investigator, she explained that the statements to Arnold’s investigator were the product of “pressure,” namely pressure from her mom “telling me it wasn’t” a gun that her boyfriend (Arnold) was holding. JA 273. That Gordon thrice told the police that Arnold possessed a gun, that she made these statements when she had no time to contrive, that the police found a gun under the seat of the car in which Arnold was sitting, that she made a different statement eight months later only after pressure from her mother and that she eventually retracted even that statement under oath at the contempt hearing, all show that the exclusion of the testimony of Arnold’s private investigator was not the kind of “particularly egregious” mistake that would justify a finding of plain error.
It’s hard to believe that a jury wouldn’t see the statement to the private investigator for what it was: a statement prompted by the defendant’s girlfriend to save his bacon. Given all the corroboration of the statement by the physical facts, what the daughter told police was clearly the truth.
The message the story tries to convey is that Obama will put judges on the bench who help criminal defendants who have been mistreated by the system.
The message I get, after actually reading the decision that the Post so badly misdescribes, is that Obama will put judges on the bench who let the guilty go free.