Justice Scalia Defends His Viewpoint to the ACLU

The other day, U.S. Supreme Court Justice Antonin Scalia went before 1,500 member ACLU conference to defend his legal viewpoints to an auditorium full of critics.

Justice Scalia believes that legal documents should be read literally. This principle of law is currently known as “textualism.” It used to be known as “literalism.” Textualist believe that the history behind a law should not be considered when determining its application. Textualist also believe that many of the traditional Cannons of Statutory Construction (e.g. that penal law should be strictly construed, the remedial laws should be liberally construed, that ambiguous laws should be construed in favor of liberty) are a “butcher’s thumb on the scale.” (Justice Scalia’s viewpoints have been strongly followed by a four judge majority on the Michigan Supreme Court. Michigan Supreme Justice Corrigan defended her viewpoint in an article called “Dice Loading” published in the New York University Law Review).

While Supreme Court Justice Breyer’s book Active Liberty has done a far better job of attacking the theoretical theories than I ever could, the biggest problem with the theory in the real world is that it encourages special interest to make promises to the Legislature or the People that they never intend to keep. What is said on the legislative floors stays on the legislative floors. I’ve personally been in Legislative hearings when more than one spokesperson for a bill or an act responds to critics by saying that they never intended the law to apply to “x” scenario and as soon as the bill is passed, litigate for precisely that result.

In many respects, Justice Breyer’s criticisms of textualism mirror the critics of Islamic Literalism. Many literalists clerics preach viewpoints abhorent to all modern standards of civilization and then deny responsibility for their edicts by claiming that this it does not matter what they think, this is what the Koran says and they are merely reading the document literally.

Despite its superficial appeal, textualism is a theory designed to remove morality and humanity from  the law. It ignores the original purpose of judging and permits a return to all of the abuses of yester-year.

More Problems At Detroit Police Homicide Department

The Detroit Free Press and Ann Arbor News reported that a Detroit Police Homicide Detective was under investigation for conning an Ann Arbor family out of $12,000 while conducting the homicide investigation of the family’s son, Joe Wagner. Mr. Wagner was murdered while attending a fair in Detroit. The homicide detective told the family that he needed an alternative source of funding for housing of a witness. The Ann Arbor News article suggests that the FBI was working on the assumption that this statement was false and that the police officer pocketed the money. The Detroit Free Press stated that the officer’s name was Lance Newman and that he had been suspended from the force pending the investigation.

Even assuming the statement was true, however, this conduct is troubling. If the money was paid to the informant through these back channels, it is highly unlikely that this payment was disclosed to the defense. Even more troubling is the apparent continuation of problems in the Detroit Police Homicide Division. The Detroit Police Department only recently agreed to a serious of reforms to try and fix this highly troubled department. In this highly competitive culture of Detroit Police Homicide, there has been an unfortunate belief that the rules do not apply to them. For many years, the Detroit Department has engaged in massive round ups to try and force confessions out of individuals and/or to force witnesses to give statements.

This is not just the opinion of criminal defense attorneys, but the United States Department of Justice as well. Courts, however, continue to turn a blind eye towards their misconduct. Only when courts are willing to focus the judicial light of day on this Department can true reform begin. Additionally when a homicide prosecution is dismissed because of police misconduct, newspapers need to have the courage to run articles with headlines like “Homicide Detective’s Misconduct Destroys Homicide Prosecution,” rather than “Court Dismisses Murder Prosecution on Technicality.”

Welcome to Version 2.0 of CrimApp.Com

Welcome to Version 2.0 of crimapp.com. I started crimapp.com in 2000 using a naked webhosting service and standardized on a format similar to the modern blog. My articles were one to two paragraph summaries of interesting rulings with links to the rulings. Unfortunately, it was difficult to maintain the format with a standard web editor and my basic html. With the coming of blogging software and services, I have decided to scrap the old format and start fresh. In the coming weeks, I intend to focus on important rulings and developments of interest to Michigan practitoners.

Stuart Friedman