Two different cases come before the U.S. Supreme Court today, but both are united by some common themes. Theme No 1: Bad facts can break your heart. Both cases offer facts so sympathetic to the defendant, one's half-tempted to toss out years of doctrine to fix it. Theme No. 2: If everyone would just say what they mean, the world would be a lot less stupid. The first case involves a gun law Congress wanted to repeal but didn't; the second involves prospective jurors that prosecutors wanted to bounce for being black and probably did.
But before we even get to the gun case, let me put this out there: Look, gun freaks that lurk in my "Fray" and rant maniacally when I say there's no personal Second Amendment right to bear arms, I have no expectation of changing your minds here, so why don't you skip the whole column and tune into next week's? I'll even provide you with a handy target to take along to your gun club for practice instead.
If I'm a little less than charitable toward the gun freaks today, perhaps it's because I find myself too fearful of a bullet wound to the head to purchase gas anymore.
United States v. Beanhappened because Tommy Bean loves his guns. He was an authorized gun dealer until, one night after a gun show, he drove to dinner in Mexico with 200 rounds of ammunition in his back seat. The ammunition was supposed to have been removed by his assistants. The Mexican authorities arrested him for the felony of importing ammunition. He was sentenced to five years in jail, of which he served six months in Mexico before being returned to Texas, where he served a month before being released on probation.
Section 922(g)(1) of Title 18 makes it unlawful for anyone convicted of a felony to possess a firearm. But Section 925(c) of the same federal statute allows the secretary of the treasury (who oversees the Bureau of Alcohol, Tobacco, and Firearms) to restore guns to former felons in cases, like Bean's, where he determines that the applicant poses no danger to public safety. The statute allows for judicial review in cases where applications are denied.
So, Bean promptly sent a letter to the ATF asking for his guns back ("Please excuse Mr. Bean from Section 922(g)(1) as he was having a bad day ...") but was advised by the ATF that Congress had defunded the gun-restoration program in 1992 in the wake of some embarrassing statistics about the vast numbers of guns that had been restored to rapists, murderers, and robbers, all at a terrific expense to the public. Since Congress had simply defunded, but not repealed, Section 925(c), a federal district judge in Texas took it upon himself to rule that Bean was entitled to judicial review under the program and that Bean was also entitled to gun relief. The 5th Circuit Court of Appeals—coming to a different result than the five other federal appellate courts that ruled on this issue—was so moved by the "incredible plight of Thomas Bean" that they affirmed the lower court's decision.
Bean can only really be said to have a "plight" as opposed to, say, a "problem" if one believes that the inability to get one's guns back is tragic in the way that La Traviata is tragic. And the unspoken irony behind this entire appeal is that Bean, his amicus supporters from the gun lobby, and his opponents in the Justice Department all agree that the right to own a gun is personal and profound. So, while Deputy Solicitor General Edwin Kneedler argues on behalf of the government today, what he's not saying is that his boss, John Ashcroft, would like nothing better than to give Mr. Bean back a gun he'd macraméd himself at home.
Kneedler argues that a congressional decision not to fund an entire program is not the same as a "denial" of an appeal that could trigger judicial review. Chief Justice William Rehnquist asks why Congress didn't just repeal the law instead of shutting off the funding.
Then Thomas Goldstein, one of my favorite court regulars, argues on behalf of Bean. And Goldstein is having a strange day, characterized by repeated insistence that the justices are "wrong, and here's why." He is also having a strange day in that he appears to be advancing perplexing theories: The first is that it's the job of the secretary of the treasury to reinstate guns to former felons, despite the lack of funding and, evidently, to do so by himself. Rehnquist is astonished: "Are you saying that the secretary, on the way to an International Monetary Fund meeting, will grant applications?" And Justice Ruth Bader Ginsburg wonders what kind of bizarre regime he's setting up, wherein judges get to hold spontaneous hearings, without adverse parties, to examine evidence that guns should be restored to ex-felons. Finally, Justice Stephen Breyer says, "I agree, you've found a literal way around the statute. But, my goodness, everyone knows what Congress wants." Congress wanted to stop the program. Is it enough that Goldstein has a loophole with which to reinstate it? Even Justice Antonin Scalia says he can't get past the fact that Bean went to the district court for help, rather than appealing the decision of the secretary.
The second case today, Miller-El v. Cockrell, is another Texas case, this one involving a grisly robbery and murder at a Holiday Inn. Miller-El was sentenced to death by a jury markedly lacking in black jurors. It was lacking in black jurors for reasons that have nothing to do with race (according to the prosecutors) and everything to do with race (according to Miller-El, who is black). And the problem is, the test for whether race was used to impermissibly strike jurors, as set forth in a 1986 case—Batson v. Kentucky—doesn't seem to take into clear account the rather remarkable pattern and practice in Dallas County, Texas, of striking black jurors as a matter of course. Miller-El produced significant evidence, including old manuals instructing prosecutors, "Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury," as well as newspaper articles showing that in all capital murder trials in the county between 1980 and 1986, prosecutors excluded 90 percent of the blacks who qualified for jury selection.
The question in Miller-El is: When is a reason for striking black jurors pretextual, and when is it valid and race-neutral? And how could you ever tell the difference? As Seth Waxman, who argues on behalf of Miller-El puts it, there are some coincidences that are "too incredible" to be "objectively reasonable."
The discussion is almost impossibly fact-based, but the gist of Waxman's argument is that prosecutors struck 10 out of 11 prospective black jurors. (They kept the guy who told the prosecution that execution was too good for murderers and a better idea was to "pour some honey on them and stake them out over an ant bed.") Waxman thinks the lower courts did a very weak job of asking why these jurors were struck. He explains that prosecutors used a "graphic script" describing the horrors of the death penalty to persuade black jurors that they'd be unable to impose it and used other "tricks" to keep blacks off that were not used on potential white jurors.
Rehnquist points out early that the very strong presumption in this kind of case is to defer to the trial judge, who watched the entire jury-selection process, rather than substituting the higher court's judgment. But Waxman argues that the trial court judge erred, as a matter of law, by failing to acknowledge the tricks played by the prosecutors and by wholly ignoring the longstanding policy in Dallas County.
The argument becomes even more technical as Gena Bunn, an assistant attorney general from Texas, begins to argue with the justices over individual jurors and specific questions asked of them. Her answer, to increasingly testy questioning from the justices, seems to be simply that trial judges are due great deference and the trial judge in this case found no racial bias. She's not willing to explain when or how the deference stops. In addition to Justice David Souter, John Paul Stevens, and Ginsburg—all of whom seem to feel that there was something fishy in the way blacks were kept off this jury—Justices Breyer and Anthony Kennedy express frank dismay that the trial judge simply ignored the longstanding practice as laid out in the training manuals.
When Bunn insists again that the prosecutors gave "legitimate race-neutral, case-related reasons" for striking the black jurors, Ginsburg retorts, "A prosecutor can always give a neutral reason!" Courts need to inquire beyond just the pretexts.
There are a few striking differences between Bean and Miller-El, although both involve giving rights back to people who have done rotten things. For one thing, both deal with pretexts, but the intent of Congress was clearly to gut the program restoring guns in Bean, and while they did so in a gutless way, Bean's best alternative was to lobby Congress, not rent a judge who loved guns as much as he did. Whereas in Miller-El, the courts have stated time and again that prosecutors cannot use racial bias to skew a jury, yet they have been unable to articulate what a pretextual reason for striking jurors might actually look like. Finally, even if we accept that mistakes are sometimes made and guys get caught up in rotten situations, Bean stands to lose, at most, his gun, whereas Miller-El will lose his life. I know some of you will disagree with me here, but there is a difference.