In response to the question of why, Nebraska Senior District Court Judge Richard Kopf provided a candid and detailed answer. His answer consists of nine points, delivered with his usual aplomb and sense of humor, and with remarkable honesty.
This is noted because it’s easy to offer pat answers, the ones we fall back on regularly to win the point and avoid reproach, but which aren’t true. Judge Kopf has answered with unvarnished truth, which is why he gets himself into a jam on the interwebz so often.
By my reading, Judge Kopf has largely validated Harold’s revelations, that it’s just a matter of going with the odds, and the odds favor the police. A commenter notes that the explanations bear the scent of rationalizations, to which Judge Kopf asks, what, then, would be his motive to rationalize? I’ll take a stab.
There are judges who are malevolent, incompetent and venal, the righteous avenging angels or the stamp-lickers in party boss’ offices who were ignored as buffoons before they got a robe. None of these descriptions apply in any way to Judge Kopf. He is a judge who deeply desires to do his job fairly and well.
The problem isn’t the man, but the job. We demand they be magicians, omniscient yet tempered by our expectations that the person in the robe has abilities beyond those of any other human being. Upon accepting the responsibility, the virtuous judge tries to fulfill these expectations. In his head, he must believe the he is doing so, or at the very least trying his very best to do so. The alternative is unthinkable, as he cannot accept the premise that his best efforts to be fair produce the same results as the venal judge, the idiot judge.
And indeed, to the extent his motives are pure, he is by no means that evil judge. But does that mean the outcome is any different, because he labors under the constraints that apply to all humans, rather than those possessed of magical powers?
So why might the explanations be rationalizations? Because no one, not judge, not jury, has the capacity to see into the hearts and minds of others to determine truth, and that isn’t a reality with which a good man charged with exerting life and death authority over others can live with.
And so, while he may have no choice but to accept that he is not always right, he must similarly believe that he tries to be right, and that he is right more often than not, because he wouldn’t be able to sleep otherwise. It’s the dilemma of a good man in a bad job. Some, like Judge Denny Chin, characterize it as “rule and roll.” Others can’t shake it off so blithely. Gestalt demands a reason, and the mind does what it can.
But Judge Kopf offers hard reasons as well. In bullet point 3, the judge notes that defendants rarely testify, leaving the judge with little choice but to credit police testimony. In one of the final cases heard by then-Judge Michael Mukasey before he left the bench to eventually assume the rank of General at the DoJ, I put my client on the stand in a suppression hearing.
The defendant was a fascinating guy, having made millions by purchasing stock in emerging technologies, like AOL, but whose bipolar issues prevented him from exercising the judgment needed to stay clear of drug deals. He spent half his life in prison, and the other half in a Bel Air mansion. He was always a fun lunch date, with a fondness for caviar, though we argued constantly over whether osetra was better than sevruga.
He took the stand fully aware of the fact that he had essentially no chance of winning. It wasn’t about whether he did the crime, but whether he waived his right to be questioned without his attorney present. He was a very smart, very experienced defendant. He knew exactly how to exercise his rights, and the agent lied through his teeth about his waiving them. He didn’t mind going for a rest at the government’s expense, but he couldn’t bear doing so because of the agent’s lie.
After the hearing, I argued the defendant’s cause to Judge Mukasey. The short of it was that we were well aware that we had just engaged in a pissing match with the government, a doomed he said/she said, that was not only unlikely to suffice, but would give rise to an obstruction of justice enhancement claim by the government for the defendant’s temerity in exercising his constitutional right to testify and challenging the perfect veracity of the agent.
Judge Mukasey muttered a couple of words of no consequence, looked down, looked around, then looked down at the bench again, silent. For a brief, shining moment, I thought perhaps we cracked the veneer. He then announced that he found the agent credible and suppression was denied. But then he added that he didn’t find the defendant incredible, such that his testimony was false and obstructed justice, and quickly left the bench.
In the comments to Judge Kopf’s post, there is a discussion about the relative incentives to lie, raised by the judge’s second bullet point. While it’s a good discussion, I think it misapprehends the nature of who lies about what and why. There are lies about the ultimate outcome, whether the crime happened and whether the defendant did it, and then there are lies about the process of getting to the ultimate outcome, the search, the statements, the identifications.
The risk/reward ratio is very different for the agent and the defendant. The argument, why would an agent lie, is easily knocked down. He does so because he believes the defendant guilty and that it’s his job to move the case to that conclusion. He can do so because there is essentially no risk that he will be found incredible, and even if he is, no risk that his deceit will be found intentional.
And that’s because
While I do not think of myself as “pro prosecution,” I deeply fear for our society because of the many predators I see on a daily basis. I suppose that if I am going to err, I err on the side of what I see as order.
As does almost every judge, just as Harold explained.