Wednesday, March 23, 2005

Judge Greer's Mistakes, part II

A commenter points to this Ann Coulter column from 2003:

"Judge Greer's finding on Terri's wishes may be immune from legal review, but it's not immune from criticism. He's a finder of fact; he's not God. A few years ago, Judge Greer found that Helene Ball McGee did not have reasonable cause to believe domestic violence was imminent and denied her an order of protection. Two weeks later, Mrs. McGee was stabbed to death by her husband. So judges can make mistakes."


Lawjedi said...

The point is that Judge Greer found what he wanted to find. These kinds of rulings are not subject to review unless there was clear error. And Judge Greer was fairly careful to avoid the appearance of at least reversible error. And that's all it takes to make a good (or bad) ruling stick.

Jay D. Homnick said...

Wow, Ann is absolutely amazing. I know TWS spoofed her hyperbole, but she is really a champ and we are damned lucky to have her.

Reece said...

What a moronic thing to say. Whether Judge Greer was right or wrong in his determination about Mrs. McGee is not validated by events after the fact.

If you come into court saying ghosts are telling you that you will be killed by your husband every single court in the nation and probably the world will decide that you don't have reasonable cause to believe you will be killed. If you are then killed, is it wrong the for the judge to have made the determination? No, it's not. It's absolutely correct for the very simple reason that it's not rational to believe that ghosts are telling you things.

Unless you have read the Mrs. McGee's case and evaluated her evidence produced in court, you cannot correctly critize Judge Greer's decision as being incorrect.

Jimmie said...

rcd - So you know for a fact that what Coulter said was untrue, or is it merely a knee-jerk reaction?

Her point, though bombastic, is a pretty basic one. Hiding behind the reasoning of "a judge said it so it must be correct" is an uncritical and thoughtless dodge. Judges do make mistakes and when we believe they have, we ought to be able to challenge those mistakes - any of those mistakes - without having our challenges rebuffed.

Reece said...

Jimmie, Coulter's point is this: Judge Greer was wrong about Mrs. McGee's belief *because* she was later killed by her husband.

On that statement, Coulter is factually wrong. Again, it is wrong to criticize a judicial decision by things that happen after the decision. The criticism comes down to, "Greer couldn't see the future, and had he been able to, he would have ruled in a different way. Therefore, he was wrong in his judgment."

Show me one single person who can see the future and maybe I'll reconsider.

You are absolutely correct that judges do make mistakes, but you are wrong that they can't be challenged. What do you think the appeals process is all about? Factual issues are not directly reconsidered and trial judges have some discretion in making their determinations--but so do juries and other triers of fact.

If you want to get rid of their discretion in deciding factual issues, then you are going to undermine the entire judicial system. I suspect, even if you believe all the right wing dogma about activist judges, that you still want the judicial branches of our government to run effectively.

And that is precisely why appeals courts have limited abilities to review factual determinations. Appeals Courts simply cannot be retrying every case just because the trial court decision is adverse to one party. If they did, nothing would ever get done.

It's not a perfect system, but it's pretty damn good in practice.

And if you have a reason to think a judge made a mistake, you have to show that their his was based in the proceedings and evidence before him--not just based on your third hand reading of the case and your idiosyncratic beliefs.

Jimmie said...

What you're saying, I believe, rcd, is that the only thing we may ever question abotu a judge's decision is whether he made a procedural or technical error. We may never question a judge's...err...judgement in any case because that would undermine his "discretion" and thus bring down the entire judicial system.

The problem here, with the Schaivo case, is that Judge Greer's factual decision has never been reviewed on a factual basis. The appeals which have happened thus far have only addressed matters of procedure or legality, never whether the Judge reviewed all the pertinent material or whether the Judge's decision was just factually incorrect.

As for "seeing the future", it's always worth noting that judges are far from perfect, which runs counter to the current rhetoric coming from those who want to see Terri dead. Their point of view is that the judge's decision is inviolable. That's just a ridiculous assertion, no matter how you want to couch it. Coulter points out that the Judge is capable of making a bad, even fatal, decision and that because of that, perhaps it wouldn't be a bad idea to conduct a de novo review of the case.

Reece said...

"Coulter points out that the Judge is capable of making a bad, even fatal, decision"

But you haven't shown that Greer's decision about McGee was bad.

That's my entire point: you can't say a decision was wrong without considering the standards by which that decision should be, forgive me, judged.

Your standard is apparently "A decision is wrong when the decision leads to unforeseeable consequences that are harmful."

That's not the right standard for judicial decisions of the sort at issue in McGee. At the very least, the standard is something like: the decision correctly applied the relevant law to the factual evidence presented in court.

If, in fact, Greer applied the relevant law correctly to the facts presented, then his decision in McGee was correct, regardless of the subsequent events.

This is true of the Schiavo situation as well.

Furthermore, no state court reviews facts de novo, except in Louisiana. I'm not saying that factual decisions can't be reviewed, and in fact they are reviewed by appellate courts quite frequently, but the standards for reversing a jury's or a judge's factual findings are quite difficult to satisfy. And it is like this for precisely the reason you and I cannot really tell whether Greer has made the right decision in Schiavo: Appellate courts do not have access to all the evidence and they are not as intimately involved in the issue as the trial court's fact finder.