In the comments to my post on Cormac Carney’s remarkable decision in the Ruehle/Broadcom trial, Chuck questioned whether I went over the top in my applause of the decision.

But I’d wait to canonize the judge until he gets around to applying the same principles in a case without corporate white-collar defendants.

There’s a sense amongst criminal defense lawyers that the only defendants whose rights are shown respect are of the white collar variety.  This perception has some awfully good basis in reality, as we are all made painfully aware on a regular basis of how judges blow off significant issues, ranging from actual innocence to constitutional violations, without breaking a sweat.  How many judges lose sleep wondering if their efforts that day put an innocent in prison, enabled the government to run roughshod over the Constitution or empowered a cop to lie his way to a conviction.

Some of the judges I know realize that these things happen, but insulate themselves from the actual effect of their decisions by taking comfort in the odds.  Odds are that the defendant is guilty, that the cop, though perhaps a liar, is more truthful than deceitful.  They don’t think of their decisions as reflecting a lack of respect for the Constitution, but rather a pragmatic approach.  After all, just because the cops can’t do anything right isn’t a good reason to let criminals run rampant.

But to say that things like the Carney decision never happen outside of white collar cases is wrong.  As I read Carney’s decision, I immediately thought of a drug case I did many years ago, where SDNY Judge Ken Conboy, who has since left the bench to make his fortune at Latham, ripped the lungs out of the government and the DEA for rampant dishonesty in their handling of a drug case.  I also recalled a white collar case in the SDNY where the judge couldn’t have cared less about obviously lying federal agents, where his reaction was “so what?”

My initial reaction to Chuck was to not look a gift horse in the mouth.  It was a great decision.  That it didn’t involve Clarence Earl Gideon was hardly a reason to be critical.  They can’t all involve Clarence Earl Gideon.  But the real issue wasn’t that this decision, concededly great as far as it went, didn’t inure to the benefit of the common defendant, but that only the rich, the powerful, the clean, have a shot at a great decision that preserves and elevates constitutional rights over ease of conviction. 

It does seem that way, sometimes.

There are some factors that need to be considered before one tarnishes Judge Carney’s opinion.  Initially, there is no question but that white collar defendants are inherently more sympathetic to federal judges.  Had they not been indicted, they might have met at a cocktail party, or perhaps dined together.  The pain of damage to their family life is easier to feel when your children share the same school and play on the same lacrosse team or crew together.

This isn’t likely to change anytime soon, given the nature of how federal judges are selected.  There aren’t many senators who hang in the ‘hood, inclined to urge the President to appoint one of their homies.  And when a regular guy finds himself on a federal bench, there’s an inclination to be more like the other judges than make waves.  That said, there are some exceptions, as there always have been.  And they render opinions, and grant suppression, and trial orders of dismissal, that favor normal defendants.

The problem is that these rulings don’t make the papers.  Broadcom is a big, high profile, white collar case.  When you get a decision in a case like this, it’s going to make a splash.  It’s going to hit everybody’s radar and be the subject of a hundred newspaper stories and a thousand blawg posts.  It’s big news.

When there’s a good decision in a case involving some murderer or drug dealer, nobody knows.  It doesn’t make the front page, and even if it becomes the subject of a blawg post, it seems to be forgotten relatively quickly, largely because it’s viewed as the anomaly.  Then, when a decision like Judge Carney’s comes along, the cries go out about how it’s only the white collar defendants who get a break.  It’s just not necessarily the case.  Good decisions, whether for white collar defendants or not, are rare.  Strong statements of fealty to the Constitution are rare.  Brave decisions that cut against the popular devotion to order are rare.

Rather than complain about the unfairness of it all, it’s better to raise awareness of those good decisions, without reservation.  By doing so, we empower judges to take their positions more seriously, to take the violations of the Constitution perpetrated against our clients more seriously, and to join with those brave judges who have done so and received appreciation rather than approbation for it. 

To the extent that our voices matter, let them be heard to encourage the best that our judiciary has to offer.  No, it isn’t likely to start a tsunami of judicial interest in safeguarding the constitutional rights of all defendants, and no, it isn’t likely to change the predominant belief that their best path is to go with the odds, and no, it won’t encourage presidents who campaign on a promise of change to appoint judges who might conceivably bring about change.  But it’s got a greater chance of encouraging those judges who are on the cusp to do the right thing.

Judge Carney did the right thing, in a decision that will, and should, be played as loudly as possible.  Why do anything to muffle the sound?  Just play the music and show appreciation where it’s due.