The email from Jordan Rushie had a Lowering the Bar, the 11th Circuit’s majority decision in Holsey v. Warden clocks in a 104 pages. No, I have no clue what it says, as there is no way in hell I plan on reading 104 pages just to see if it’s anything that matters to me. Sure, I read the first sentence, that “[i]n the early morning hours of December 17, 1995, Robert Wayne Holsey robbed a convenience store in Milledgeville, Georgia, and fled,” and sure it was certainly enticing. But if I’m going to spend my time reading, this isn’t what I want to read.
Even the concurring judge has a problem with the opinion.
Was the issue in Holsey so complex, so sophisticated, so difficult as to compel Judge Carnes to write 104 pages in order to explain the decision. Don’t ask me, I didn’t read it. But if Judge Edmondson says so, I’ll take his word for it. As he explains in his concurrence, he just isn’t willing to take the time either.
Although he concurred in the result of the decision last Thursday in Holsey v. Warden, Judge J.L. Edmondson of the 11th Circuit wrote separately to say he did not join in the opinion itself only because, at 104 pages, it was just too long:
I stress that [my refusal to join is] not because the opinion says something that I am sure is wrong or I am sure is even likely wrong. I agree with much of the opinion, at least. But the opinion says a lot and says more than I think is absolutely needed.
It’s not easy to write a solid opinion, which explains why so few meet their lofty goal. While many offer sweet rhetoric of the sort that warms the cockles of many an angry commenter here, they neither provide a clear rule nor comprehensible language. Despite the superficial appearance of meaning, they string vague words together that are susceptible to any subsequent interpretation as a court might want. And, as Judge Edmondson points out, the more words used, the less clarity they offer.
Furthermore, no one wishes to join in an opinion that they do not understand fully. It is hard, time-consuming, painstaking work for the panel’s other judges to check long opinions, line by line, cited case by cited case. (Of course, always other cases are awaiting decision and also demand the judges’ time and attention.)
Why did Judge Carnes murder so many words in his Holsey opinion? As Dan Hull often reminds us, brevity is hard work, a point with which Judge Edmondson agrees:
When the government doesn’t want the defense to have a clue what the relevant evidence is, they don’t withhold it, but bury the defense in it. When a litigant hasn’t got a decent argument to be had, he moves for an oversized brief and then uses every page of it. When teachers want to push schoolboys to their limits, they assign a ten page paper. The magic of length is drilled into our heads when we’re too young to appreciate the lie. Longer is not better. Better is better. Longer is just longer.
In my experience, longish opinions always present a strong possibility of error lurking somewhere in the text. That the opinion writer is a skilled and careful judge does not eliminate the risk….
I should say that I, broadly speaking, do not agree that the length of an opinion necessarily reflects the thought, labor, and care that has been invested by judges in their endeavor to decide the case correctly. The shorter opinions often reflect the greater study and thought leading up to the ultimate decision. Mark Twain touched on a related idea: “If you want me to give you a two-hour presentation, I am ready today. If you want only a five-minute speech, it will take me two weeks to prepare.”
Granted, every case can’t be decided in a three word decision. And most shouldn’t, as the courtesy of a thoughtful explanation is warranted before putting someone to death, for example. There are times when a unduly terse decision conceals the reality that there just isn’t a viable rationale for affirming a conviction, but the is just no way the court is letting a guilty defendant walk. Try to explain and it looks like crap. Better to just type “affirmed, no opinion,” and move on to more fun activities.
An opinion requiring 104 pages, without pictures, presents a problem. You see, as Kevin Underhill noted in a follow-up post, raising issues from the Holsey dissent (which came in at a whopping 44 pages), this was hardly a no-account case.
What gets lost in Judge Carnes’ 104 page majority opinion is that a defendant who was “borderline mentally retarded” and defended by a lawyer who “drank a quart of vodka every night” of the trial is going to be executed. This is a decision that needs reading. Yet by making it unbearably long, no one, not even the concurring judge, wants to do so.
It seemed worth a second post on Holsey v. Warden to mention the dissent’s view that the Georgia Supreme Court was wrong to hold that the defendant was not prejudiced by ineffective assistance of counsel at trial. She noted that it was undisputed that Holsey is “borderline mentally retarded” (the State’s experts agreed he was not faking) and that he had been abused so severely as a child that neighbors called his home “the Torture Chamber.” And she pointed out that rather than investigating and presenting this evidence at sentencing, “Holsey’s lead defense lawyer drank a quart of vodka every night of Holsey’s trial while also preparing to be sued, criminally prosecuted and disbarred for stealing client funds.” In light of these facts, she believed, the state court’s finding that Holsey had not been prejudiced was unreasonable and he should have received a new sentencing hearing.
I didn’t mention it before so as not to overshadow Judge Edmondson’s very good point that (at least with legal work) longer is not necessarily better, but Holsey had been sentenced to death.