When someone is indicted in criminal law, the meaning of the indictment is that a grand jury has found that it is more probable than not that the accused has committed a specific criminal offense. An indictment is an accusation by the government. The accused cannot be brought to trial without it. One ought to take note of an indictment, but one ought also to recognize that different standards of proof govern indictments than criminal trials and that little in the way of evidence is often needed to obtain an indictment. Lastly, there is generally no opportunity to present exculpatory evidence or make any pre-trial motons in the indictment process. The indictment is the prosecutor's instrument alone. I know that most posters here will know this, but I thought it might be useful to clarify the specific and limited quality of a legal indictment since, as Rob notes below, Bishop Finn was indicted under a Missouri statute. I believe, but am not sure, that the statute is section 210.115.1 of the Missouri Code, which states:
When any . . . minister . . . has reasonable cause to suspect that a child has been or may be subjected to abuse or neglect or observes a child being subjected to conditions or circumstances which would reasonably result in abuse or neglect, that person shall immediately report or cause a report to be made to the division in accordance with the provisions of sections 210.109 to 210.183 . . . .
One of the reasons that I think it important to emphasize the particular and somewhat arcane legal meaning of an indictment is because of columns like this one by Anthea Butler, a professor of religion at the University of Pennsylvania, who titles her piece, "Bishop Finn-dicted For Protecting Pedophile Priest."
Professor Butler properly notes the fact of Bishop Finn's indictment, but then makes some statements which, at least from a legal perspective, are not sound. She claims, for example, that "the indictment is another warning shot aimed at the enclave of the Vatican." The expression of symbolic minatory messages is not the purpose of a legal indictment. She connects the indictment to "[c]hanges to the liturgy" which she believes "have many up in arms[.]" Again, liturgical preferences have nothing at all to do with this indictment. She claims that "Cardinals and Bishops like Philadelphia’s Bishop Chaput can only whine about how terrible the press is, without being accountable for the actions that have caused the press to scrutinize the church so intensely." If this is a reference to the indictment of Bishop Finn, I'm afraid it is misplaced. "Cardinals and Bishops like Philadelphia's Bishop Chaput" had no legal duty to report child abuse under the Missouri statute.
And Professor Butler concludes with this: "The church does not need another plan; what’s needed is action and more indictments to get the attention of an institution that has sacrificed children to protect its rotten hierarchy. I for one cannot wait for the real purge of tainted clerics to happen." Once again, Professor Butler's excitement for the coming purge and the issuance of "more indictments" has nothing to do with the legal indictment of Bishop Finn.
Obviously Professor Butler is interested in indictments of other kinds -- political, social, cultural, religious -- but these are not legal indictments, and I think it important to keep the difference clearly in view.
ADDENDUM: The state prosecutor in the case, Jackson County Prosecutor Jean Peters Baker, rightly notes what this criminal indictment is all about. From the linked report: "Baker emphasized that the pursuit of the case was the result of a grand jury investigation. 'I've done my best to make sure that this was a fair process,' she said. 'This has nothing -- nothing -- to do with the Catholic faith. This is about the facts of the case, nothing more. This is about protecting children.'"
Sunday, October 16, 2011
This is an interesting piece by J. Peter Nixon about how traditional views of hell are increasingly seen as tiresome, motivationally inefficacious, and generally outré. The story neglects an important piece of the banalization of hell, of course. From Sartre's No Exit -- as you remember, the scene is a drawing room decorated in Second Empire furnishings (which I've always kind of liked, though to Sartre's modernist taste, it looked "rather like a dentist's waiting room") in which three people are trapped with nothing but each other:
Garcin: Will night never come?
Inez: Never.
Garcin: You will always see me?
Inez: Always.
Garcin: This bronze. Yes, now's the moment; I'm looking at this thing on the mantelpiece, and I understand that I'm in hell. I tell you, everything's been thought out beforehand. They knew I'd stand at the fireplace stroking this thing of bronze, with all those eyes intent on me. Devouring me. What? Only two of you? I thought there were more; many more. So this is hell. I'd never have believed it. You remember all we were told about the torture-chambers, the fire and brimstone, the "burning marl." Old-wives' tales! There's no need for red-hot pokers. Hell is -- other people!
Friday, October 14, 2011
It has been difficult for me to get a fix on the government's position in Hosanna-Tabor. I posted some initial questions about it here. Leslie Griffin offers thoughts about what Assistant SG Kruger should have said, but did not say, here.
Here is another piece of the puzzle (courtesy of Chris Lund, with whom I've been trying to hash some of this out), from the government's brief (40-41):
Cases in which the religious employer offers a reason relating to an evaluation of the plaintiff's performance of religious functions for an adverse action pose the greatest risk of entanglement. If, for example, Petitioner in this case had claimed it fired Perich because she was insufficiently spiritual, it would be constitutionally problematic for Perich to challenge that assessment in precisely the same way that an employee of a nonreligious employer might attempt to challenge a comparable subjective defense in a secular setting, e.g., that she was insufficiently professional. By contending that she was in fact just as spiritual or more spiritual than other teachers, Perich's claim would risk entangling the Court in religious questions beyond its adjudicative capacity. In such cases, the district court could limit the pretext inquiry to cordon off challenges to the religious organization's religious assessment. If Plaintiff's only pretext evidence consisted of a challenge to that assessment, then the suit might have to be dismissed altogether.
I'm having trouble with this view -- not even from the point of view of agreement or disagreement, merely from the perspective of understanding it. Some questions after the jump.
Continue reading
Wednesday, October 12, 2011
If you have a little time to spend with this paper by Prof. Charles Reid, I highly recommend it. It's a historical treatment of a late-nineteenth century Kansas case which, Prof. Reid argues, was one of the first to grapple with some of the ideas of privacy which have since become watchwords of our substantive due process law. It's a long piece, and I haven't finished it yet, but it's well worth it and loaded with interesting historical nuggets.
Monday, October 10, 2011
My colleague, Mark Movsesian, is at a conference in Prague organized by Vaclav Havel, and posts some thoughts about a question that he has fielded three times already. For what it's worth, my memory of my own experiences on the legal academic market is that this question was asked of me a few times. I don't think there is anything especially objectionable about the question, and at the time I tried to answer it forthrightly, but I have noticed that it is not generally asked of people with other academic interests that intersect with law.
