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Half the truth that's fit to print

Joan Biskupic has this article in USA Today on Justice Thomas's record in criminal cases.  Her theme is accurately reflected in the headline, "Clarence Thomas takes hard line on defendants."  That is true in many ways, many of which are summarized in the article.

But how does Biskupic deal with Justice Thomas's key role in the Apprendi and Crawford lines of cases?  Those two pro-defendant lines have made revolutionary changes, and Justice Thomas has had a major role, including providing the decisive fifth vote in Apprendi.  This term he refused to join Justice Sotomayor's opinion in Michigan v. Bryant, which may have significantly undercut Crawford, although he agreed with the result on narrower grounds.  What does the USA Today story say about that?

The story also seems to imply that Justice Thomas's own difficult early life is somehow inconsistent with his low regard for "bad childhood" excuses by people who have committed horrible crimes of violence.  I think it is quite consistent.  In my experience, the people who wring their hands and accept the claptrap that a person's bad childhood destined him to crime are more often people who had privileged backgrounds themselves.  Graduates of the school of hard knocks are less likely to accept the defendant's hard knocks as an excuse.  That is why, I believe, appellate judges tend to be more impressed with an ineffective assistance claim that the lawyer left out the abuse excuse evidence than the jury would have been if the lawyer had presented it.

The story says in the recent Pinholster case "Thomas referred disapprovingly to an 'infatuation with "humanizing" the defendant.' "  That is actually a quote from Judge Kozinski's dissent in the Ninth Circuit.  Here it is in context:

There comes a point where a defense attorney will reasonably decide that another strategy is in order, thus "mak[ing] particular investigations unnecessary." Id., at 691; cf. 590 F. 3d, at 692 (Kozinski, C. J.,dissenting) ("The current infatuation with 'humanizing' the defendant as the be-all and end-all of mitigation disregards the possibility that this may be the wrong tactic in some cases because experienced lawyers conclude that the jury simply won't buy it"). Those decisions are due "a heavy measure of deference." Strickland, supra, at 691.
That is entirely correct.

The dumbest quote in the story is from Cornell professor John Blume: "Some of his opinions reveal a failure to appreciate the facts and circumstances of (a defendant's) life," Blume said, "and a myopic focus on the crime itself."

It's not a "failure," professor, it's a recognition of the limited relevance of those circumstances.  As for "myopia" (nearsightedness), there are times when it is essential to focus on the close up and not the far away.  When the surgeon is cutting me open, I certainly hope he is focused on the close-up work at hand and not on the bird in the tree outside the window.  Similarly, the crime itself is exactly what judges should be focused on.


Thomas also cast an alleged "pro-defendant" vote in Melendez-Diaz -- a 5-4 decision.

I submit it is Professor Blume who cannot see the forest through the trees.

True justice must focus on the crime its' victims. Holding an offender accountable for his crime supersedes all other goals of sentencing. To put a primary focus on the facts and circumstances of a defendant's life is social justice and a perversion of true justice.

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