Monday, February 17, 2014

108th Installment. Three strikes against the California Supreme Court: Forsaking standards of candor for the sake of political correctness

Comparing the cases

Many conclusions are obvious from the three January 2014 State Bar cases reviewed by the California Supreme Court; but they were obvious years ago. Among them: the Supreme Court doesn’t review cases to reverse convictions, and the Supreme Court is supremely concerned with managing its status and manipulating its public image. But some new trends do present, so I won’t belabor the obvious. The most important and unexpected trend is the Supreme Court’s refraining—in each of the three cases, Garcia, Grant, and Glass—from inferring moral turpitude from deficient candor during the hearings themselves.

A related trend: the prevalent defense in California State Bar moral-turpitude matters may seem to be “My lawyer said it was OK.” At least that’s so if we generalize from the three decisions. Although the recipients were, in all cases, trained lawyers, they, in each, blamed bad legal advice for their egregious conduct (Glass and Garcia) or false confession (Grant). The court never generalized (or even noted) the issue of whether lawyers can rely on counsel for their ethics; how could it, when no consistent policy can be extracted from the results, the court’s placing considerable weight on the excuse, in one case, and discounting it, in the others. The court’s doctrinal evasion and inconsistency reveals, nonetheless, a tenacious purpose: increasing its liberty to make political decisions (without inconvenient ethical considerations) and increasing its opportunity to issue “politically correct” dicta. In each case, the court should have found moral turpitude based on the candidate or respondent’s conduct in the hearing process itself. The court refrained from repudiating the lawyer-blame theory, to avoid either deciding against the candidate (Garcia) or sacrificing opportunity to expound its politicized dicta (Grant and Glass). The court (expressly in Garcia, tacitly in Grant and Glass), allowed the lawyer-blame defense to excuse lack of candor.

A final point for comparing the cases is the inconsistent role of character witnesses, who are taken very seriously in Garcia and given no apparent weight in Grant or (ultimately) in Glass.

In re Garcia

The most flagrant acceptance of the blame-the-lawyer excuse was in Garcia, the candidate who is an illegal immigrant. After living in Mexico for eight years, Garcia returned to the United States (where he had previously been brought illegally) in search of employment. Garcia landed the job that got him started toward respectability by lying about his immigration status, but he avoided the bar-examiners' questions about the job application by claiming his memory of the events was hazy. (Who could fail to remember obtaining their first employment under conditions of illegality?) He subsequently checked with the former employer to determine whether a record of the application endured, and on finding it did, he supplied a copy to his attorney, who advised him to withhold the information. Two weeks later, Garcia’s attorney had (for reasons unremarked) a change of heart, and he disclosed the evidence. The court should have denied Garcia admission for this flagrant lack of candor.

But the Garcia case was a political event, staged by the entire California establishment. If you’re chafing at the bit to give illegal immigrants citizenship, it’s inconvenient to admit that their unlawful presence is inconsistent with their practicing the best ethics. Garcia was a heavily networked test case for open-borders jurisprudence; he even had a pro bono lawyer (the one who supposedly provided the bad advice and who apparently isn’t being targeted for discipline for advising the candidate to suppress evidence).

By disregarding Garcia's turpitudinous lack of candor as well as ignoring its implications for the credibility of his other claims, the court could focus on subjective interpretation. The opinion apprises readers that the Bar had conducted a very thorough investigation; then, why hadn't the investigation uncovered Garcia’s deceitful application? The opinion extols Garcia’s character references, such as his law professors, who testified to his sterling moral character; but what does a night-school law professor learn of a student’s moral character? With a networked candidate like Garcia, character witnesses are inevitably favorable; they should be discounted accordingly—especially when the court is presented with immediate evidence of the candidate’s lack of candor.

In re Grant

Before the Supreme Court reversed, the Review Department had found a failure of proof that Grant knew child pornography was saved to his computer, despite Grant's pleading guilty to possessing it knowingly. Grant explained that he had erred in his plea: he—and his lawyer—had believed that the offended statute equated bare possession with knowing possession. The excuse is preposterous.

The Grant court downplayed Grant’s disingenuousness because condemning deceptiveness isn’t as opportune as espousing political correctness. The court expatiated on how possessing child porn demonstrated moral turpitude, to twist the meaning of that term, disassociating it from fitness to practice law.

The court’s arguments, the standard fare on the subject, are worth rehearsing because the court evidently believed saying it important. The court denied that possessing child porn is a victimless crime because the porn industry (like any industry) is driven by a market; but being part of an abstract “market” doesn’t constitute a proximate cause for the production of pornography. The court added the second standard argument: possessing porn perpetuates the child’s degradation. This invokes an artificial harm that doesn’t bear on the child’s actual well-being. To prescribe that the consumer of child porn is guilty of bestowing market share and perpetuating degradation is, essentially, to create a thought crime: the same logic applies regardless of the existence of a physical representation. If the user trashes the images, should he not be prosecuted if he doesn’t take measures to forget them? The creation of these purely mental images is the end goal of the pornography industry, but that never justifies punishing the mere consumption of information. (Moreover, how can you ban a practice in a democracy and prohibit citizens from exploring the object of the ban?)

Laws against consuming images (or texts) are blatantly unconstitutional. As Justice Brennan wrote in dissent in the case that, regrettably, validated child-porn-possession laws, Osborne v. Ohio (1990) 495 U.S. 103 [quoting Stanley v. Georgia (1969) 394 U.S. 557]: 
If the First Amendment means anything, it means that the State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.
Although the California Supreme Court’s decision was predictable, to conclude that possessing child porn is moral turpitude takes a step further than its simple criminalization. The Osborne court’s mistake was to apply an ordinary balancing test (rather than a clear-and-present-danger test) to a core First Amendment right. The California Supreme Court turned the policy decision into a moral manifesto, one corresponding to the current politically correct California orthodoxy.

Grant produced character witnesses, all the more impressive because of his own status as a “registered sex offender”; the court downplayed their significance.

In re Glass

Glass, of course, never had a chance, public image having become the overriding purpose of character-and-fitness evaluations. From what planet hails an observer who thinks the Supreme Court will permit the world to joke that Glass was too dishonest to be a journalist—but is fine as a lawyer? Glass showed remarkable lack of candor about the extent of his cooperation in disclosing his falsehoods, blaming his failure to make full disclosure on, whom else, his lawyer. Glass did worse than claim that he delegated to that attorney performance of his promises about the clean-up effort: he misrepresented his (purported) acts of delegation as his personal compliance. Glass had also failed to reveal many of his lies when he applied to the Bar in New York.

But denying Glass admission for lack of candor doesn’t appeal to the demagogic temperament of California’s Supreme Court justices. Why waste an opportunity on mundane defects of character when there are grave matters of political incorrectness to denounce? By paying scant regard to Glass’s lies to the court, the court expanded its opportunity to incite political sentiment. It exposed Glass as a racist, some of his published lies having put blacks in a disagreeable light! The court again created a thought crime—the objectionable racist motive—with which it compounds Glass’s bare perfidy to his readers, much in the manner of hate-crime laws, which are also obviously unconstitutional. The court implies that those with Glass’s views on race are unfit to practice law.

Glass’s character witnesses had been worshiped by Judge Honn in the Hearing Department, but they were often disdained by the Supreme Court. (But some of Glass’s character witnesses were undeservedly respected, such as his psychiatrist, who offered an optimistic prognosis completely at odds with the evident reality.) Some of their comments truly discredited these witnesses. A Georgetown University law professor couldn't grasp the propriety of inquiry into Glass’s having claimed credit, on his law-school application, for journalistic awards that Glass garnered by means of fraud; the professor became indignant. But while the fact is relevant that Glass’s very standing for bar admission depends on his lies in getting accepted to law school, the point could also be made (but wasn't) that Garcia, too, got his start through an act of undeniable moral turpitude.

The Glass court refrained from drawing conclusions about the trustworthiness of orchestrated character references.

In its pretended supervision of the State Bar, the California Supreme Court is concerned only with its own posturing, now expressed in a strident political correctness, which has become so important to the Supreme Court that, for the sake of its expression, the court will downplay even candidates or respondents' lack of candor, letting their lawyers assume blameless responsibility.