The tricky sex offender case that could trip up one of the judges on the short list to replace Souter.
By Emily Bazelon
Posted Monday, May 4, 2009, at 6:41 PM ET
Judge Diane Wood
Barack Obama has said he wants a Supreme Court nominee who will think hard about how his or her rulings will affect people's daily lives. "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives—whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation," Obama said Friday.
When he taught constitutional law at the University of Chicago, Obama also worried that "democracy could be dangerous," and "that the majority could be 'unempathetic'—that's a word Barack has used about the concerns of outsiders and minorities," as Geoffrey Stone, former dean of Chicago's law school, told Jodi Kantor in the New York Times on Sunday.
Sometimes, these values can be in tension with one another. Protecting the rights of a minority can mean exposing the majority to potential risk. That tension is very much present in a 2004 opinion in which Judge Diane Wood participated, a case called Doe v. City of Lafayette. Wood, a 58-year-old Clinton appointee, is at the top of just about everyone's short list because of her reputation as being supersmart and her ability to go toe-to-toe with Judges Richard Posner and Frank Easterbook, two of the other big intellects of her court, the U.S. Court of Appeals for the 7th Circuit.
The opinion Wood joined in Doe v. Lafayette was written by Judge Ann Williams, who is getting some play for the Supreme Court, too. (Reagan put Williams on the district court, and Clinton elevated her to the appeals court.)
Doe is a tough one: It's about a convicted sex offender who cruised a park in Lafayette, Ind., admitting to "having urges" about a group of kids he saw there, although he didn't actually molest them. The city banned him from its parks. The district court upheld the ban based on his criminal record, his own deposition, and his psychologist's testimony that while she thought he'd learned to control himself, she couldn't guarantee he wouldn't offend again. The ruling Wood joined, and Williams wrote, defends the rights of what may be the most despised minority of all: pedophiles. But John Doe's thoughts took him right to the brink of harming real kids.
Williams and Wood framed the case as being about Doe's freedom of thought and his right to some procedural protection. The other judges, who eventually overturned their ruling, framed it as being about his dangerousness. Which was it?
John Doe, as the court calls him, had a long history of sex offenses, most involving child victims. In 1978 and 1979, he forcibly had oral sex with a 10-year-old in the locker room of a school and with a 12-year-old in a school parking lot. He was arrested for masturbating in view of children in 1986; for peeping into the windows of an apartment in 1988; and for beckoning three boys to come into an alley, asking whether they wanted oral sex, and then unzipping his pants in front of them in 1990. He was on house arrest from 1992-96 and on probation until January 2000. He had no convictions on his record after 1991.
In January 2000, Doe's probation officer got a call reporting that Doe "had been 'cruising' parks and watching young children." Doe, in a deposition, explained that he parked his car across from Murdock Park and saw a group of kids on the baseball diamond. Doe says "I stood there and watched them for a while, probably 15 minutes, maybe a half-hour, I said to myself: I've got to get out of here before I do something, I left."
Pause there for a moment: Doe didn't hurt the kids or even approach them. He turned around and got out of the park. Then he paged his psychologist and told her he was upset.
In other words, this is a man with a terrible mental illness who desperately tried to control himself—and who, in this instance, succeeded. But the rest of his deposition reveals just how close to failing he came. Asked why he went to Murdock Park that evening, Doe answers: "I guess I was, for whatever reason, I was in the mood of cruising." He admitted that he was looking for kids and that he was having urges. In response to a question about what he was thinking when he walked into the park, he answered:
When I saw the three, the four kids there, my thoughts were thoughts I had before when I see children, possibly expose myself to them, I thought about the possibility of, you know, having some kind of sexual contact with the kids, but I know with four kids there, that's pretty difficult to do. It's a wide open area. Those thoughts were there, but they, you know, weren't realistic at the time. They were just thoughts.
When John Doe's probation officer got the anonymous tip about the cruising, he took it to the police chief and other city officials, and they decided to ban Doe from Lafayette's parks and schools. The ban had no end date, and it covered a sprawling territory, because Lafayette's park system includes large parks, small neighborhood ones, a golf course, a baseball stadium, and several pools.
Doe didn't question the city's decision to ban him from the schools. But he wanted to go to the parks to play softball, go on a company outing, and (this one is harder) watch the teen baseball league play games. So Doe challenged the ban on two grounds: Under the First Amendment, on the premise that he was being punished for his thoughts. And under the 14th Amendment, arguing the ban took away his right "to enjoy and wander through a public park."
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