When  Orin Kerr noted the unusual opinion out of Fourth District Court of Appeals in Florida in Ruiz v. State, it reflected the sort of exasperation with the system that those of us in the trenches have long endured.

Cases like this one call into question the fairness of some trial court proceedings. On the pages of the record, the story told by the police is unbelievable—an anonymous informant gives incriminating information; police surveillance uncovers no criminal conduct; the defendant is “nonchalantly” and “casually” approached by the police on the street; the defendant cooperatively leads the police back to his apartment to obtain his identification and invites the police inside, where a detective sees contraband in plain view, a fact certainly known to the defendant when he issued the invitation; after his arrest, the defendant tells the police about all the hidden drugs in the apartment.

Yet, as an appellate court, we must defer to the express finding of credibility made by the trial court. We were not there. We did not see the witnesses testify. If believed, the detectives’ testimony supports the court’s ruling. This case demonstrates the importance of an independent judiciary. This case involves the search of a person’s home, but were the factors bearing on the voluntariness of the consent scrutinized “with special care?” Without an unbiased and objective evaluation of testimony, judges devolve into rubber stamps for law enforcement. The judge may have punctiliously performed the duties of his office in this case, but, when considering the large number of “consent” cases that have come before us, the finding of “consent” in so many curious circumstances is a cause for concern.

Constrained by deference, the court had to accept the hearing court’s credibility determination, despite it’s belief, strong enough to compel the court to write this benchslap, and affirm the denial.  For every criminal defense lawyer who has presented a facial challenge at a suppression hearing of a defendant’s testimony against a cops, we know the frustration.  Absent extrinsic evidence, courts always back cops in a swearing contest.

My reaction to this decision was Reagan-ish, there they go again, another judge who took the easy path and avoided finding the word of a defendant was more credible than that of the police, and another appellate court that hid behind deference to affirm a ruling they believed to be wrong.  What else is new? 

It came back on my radar when I read a post about the Ruiz decision at Turley’s blog, There have been some changes over there, with former regular commenters now writing the blog posts so that Turley can keep the blog going without actually having to do the heavy lifting.  It’s unclear who these posters are, or where they come from, making their “take” on the subjects under discussion curious. 

David Drumm posted about the Ruiz case at Turley’s blog, and offers this reaction:

The testimony of the officers does not have the ring of truth. The prosecutors surely recognized this, yet they allowed to testimony anyway. That’s how the game is played. The trial judge played his part. It’s judicial theater and it mocks the Constitution.

Whether Ruiz granted consent or not is a finding of fact and that determination should have been left to a jury.

This sadly simplistic assessment does a disservice to the problem.  Aside from the lack of procedural understanding, that juries don’t determine the facts belying suppression, and thankfully so given that it would require defendants to testify at trial to vindicate constitutional violations, plus, given our chances with a jury believing a defendant over a cop, no evidence would ever be suppressed, his blame is misplaced.

The adoption of the “ring of truth” paradigm isn’t a reason to blame prosecutors, or even judges.  Trial lawyers understand that there is no magic red light that goes off over the witness stand when someone is lying.  The nonsensical belief that people can tell a lie from the truth befuddles the system, as if judges are imbued with mystical powers to discern truth from falsity.  They don’t know. We don’t know. Nobody knows.  We hear lies with such frequency, whether wholesale or merely colored truths, that we start believing that everyone is totally full of it.  Our clients lie. Our witnesses lie.  Our co-counsel lies and maybe we lie to ourselves. 

What do the judges know?  Some know that it all smells, but they don’t have the good to hang a lie on a cop.  When we give them that hook, and we happen to be before a judge with some gumption, we can get the right ruling.  But when the best we can offer is he said/she said, almost no judge will ever side with the defense.

Why?  “Ring of truth?”  Has he ever heard the preposterous stories our clients tell, the aberrational tales that strain even the most ardent supporters of the accused?  And yet they may well be absolutely true.  In fact, the more outrageous the tale, the more likely it is that it’s true.  After all, if someone was to make up a story, they would craft one that was more believable than the bizarre tale our clients tell.

Truth isn’t always clean, neat or normal.  Truth can be the one in a million shot, the ridiculous oddity that we would never expect.  They say “you can’t make this stuff up,” and we find that to be the case over and over.  It never bears the “ring of truth.”  It bears the ring of absurd.  Yet it’s true.

Life in the trenches bears no resemblance to life in the choirloft.  We conduct suppression hearings because we must, even knowing that offering two competing versions of the truth will do little to win over the judge.  It’s not enough that they know that cops lie, or that a defendant’s testimony has more “ring of truth” than the cop’s. 

Before a judge will find that a police officer lied on the witness stand, committed the crime of perjury by knowingly and materially testifying falsely, we need to give the judge something hard to hang his decision on.  Offering truthier testimony than the other side isn’t a good enough reason to condemn the cop.  Those of us charged with defending the accused know this.  We realize what we’re facing.

I recall a suppression hearing I had before a federal district court judge who went on to become the Attorney General of the United States of America.  The agents testified about their pristine and lawful conduct, ultimately procuring the defendant’s consent to enter his home and find evidence of a crime that he knew to be present.

The defendant, who was educated, smart and accomplished, notably in asserting his rights with federal agents based on his numerous prior experiences in dealing with arrests, searches and seizures, testified that he knew precisely what to do, asserted his right to remain silent and right to counsel immediately upon arrest, and in response to the agent’s request to enter his home, reasserted his right to counsel in clear and unequivocal words.

The judge, after hearing the testimony, asked me what I would have him do given the swearing contest based on this irreconcilable testimony.  I argued that we, the judge, defendant and I, were painfully well aware that this hearing would be a swearing contest between defendant and agent, but what would he have me do?  He knew the defendant was well-versed in the invocation of rights.  He knew that the defendant had long ago memorized the mantra that precluded any possibility that the agent’s testimony was truthful.  He knew that I would never have put the defendant on the stand to testify had there been any extrinsic proof.

But it was just the agent and the defendant in a car, by themselves, without camera or disinterested witness, and aside from the testimony of the defendant, there was nothing to offer.  It was ether sit quietly and let the court rubber stamp the agent’s version or fight.  There were no other options.

The judge looked at me as if I had just told him he was a fool.  Sure, the defendant’s testimony was more credible than the agent’s, whose version was so obviously tailored, so clearly sanitized, that it could have come out of a textbook.  And yet I gave the judge nothing with which to call the agent a perjurer.  Other than the truth.  The motion to suppress was denied, as the defendant and I fully anticipated it would be.

There’s neither magic nor evil involved.  This is the system that keeps us warm at night and allows us to sleep peacefully in our beds, knowing that there are good guys and bad guys, and that we need not think too hard about which is which because we will never really know.  This is the fight in which criminal defense lawyers engage every day.