Good morning, Walter,
I hope those state attorneys general are treating you well, laughing at all your jokes, and spilling lots of state secrets for you to share.
Lots to talk about this morning—before the decisions come down—and yes, the dog mauling case is a good place to start.
I completely agree with you about the result: There’s little doubt in my mind that the murder conviction for Marjorie Knoller was just not supported by the evidence. A second-degree murder conviction requires some element of intent that simply wasn’t present. But I disagree with you on two other points: I think Judge Warren shouldn’t have used his authority to overrule the jury after the fact. He could and should have kept the murder charge from going to the jury from the outset (or even at the end of the trial!) if he didn’t believe it could be proved. As a result he just looked ham-fisted to me, not courageous. I also disagree that people are upset merely because they these defendants are such grotesque human beings. I suspect even if the defendants were more attractive, the public would be dissatisfied because we rely on the courts to provide perfect justice (often pronounced “vengeance”), and a mere manslaughter conviction for such carnage just does not meet the “eye for an eye” gut test.
Of course today’s big legal story is the Justice Department’s claim that Yaser Esam Hamdi, an American citizen, can be detained for all time, without the right to any meaningful judicial review. Here’s the Post’s editorial. We talked yesterday about the impossibility of trying Zacarias Moussaoui in a way that is both constitutional and safe. And many of us who write about the law have come under justifiable fire (you should read my recent Frays!) for writing pieces that careen wildly between wanting to prevent future acts of terror and fearing even the smallest erosions of constitutional freedoms. But Hamdi is an easy one. No hand-wringing for me here: Precluding judicial review by fiat, even in wartime, is inexcusable, unless you lack confidence in either your evidence or your justice system.
And now I must ask you a question in your capacity as the guy who made every Al Gore “short-list” for a Supreme Court gig, two short years ago: What do you make of the rumors last week that Chief Justice Rehnquist is leaving? What do you make of the odd Post story suggesting that Justice Kennedy is ramping up for the chief’s job by giving lots of speeches? Are these just the perennial retirement rumors that pop up each June like my lilies? Are you on some short-list list that speculates about such matters? C’mon, Walter. You can tell me. I’ll keep it under my hat.