One of the great joys of sitting on an appellate bench is that one is never compelled to accept as fact things that were hashed out at enormous length and effort before the trial court.  As Appellate Squawk likes to point out, facts are for kids. But a wave of reality swept over the Second Circuit, compelling them to do the unthinkable: reject the government’s allegations as “unreasonable.”

In United States v. Clark, the defendant, following some drinking at Gonzo’s Bar in Lockport, New York (I swear I didn’t make up the name of the bar), was arrested for being in the vicinity after a fight occurred. He was arrested, searched and placed in the back seat of a police cruiser. His hands were cuffed behind his back.  He was left alone in the back seat for five to ten minutes, then taken out of the cruiser after a one-minute ride to the police station.

Afterward, Police Officer Anthony Giamberdino claims he made a discovery:

Once Clark was out of the police car, Giamberdino lifted the cushion of the back seat out and up, making visible the space between the back of the back-seat cushion and the bottom of the back-seat back rest. In that space he saw a quantity of a white powdery substance that later analysis determined was crack cocaine. Giamberdino also testified that he had checked this space before starting his evening shift, nothing was there at that time, and Clark was the first person to occupy the back seat of the car that evening.

The deputy who watched Clark walk into the precinct said he was clean as a whistle:

Deputy Sheriff May testified that as Clark got out of the car and walked past him, he did not see any white powdery substance on his hands, pants, or jacket. Nor did he see any white powdery substance on the back seat until the seat was lifted up. No glassine envelope or other container was found in the police car or on Clark’s person.

But how could this be?  Judge Jon Newman pondered the same question, but rather than go to the dark side, assuming that it had to because, well, the crack was there, he instead demonstrated that rarest of judicial animals, skepticism.

We fully understand the standards for appellate review of a jury’s finding of guilt…But if we are to be faithful to the constitutional requirement that no person may be convicted unless the Government has proven guilt beyond a reasonable doubt, we must take seriously our obligation to assess the record to determine, as Jackson instructs, whether a jury could reasonably find guilt beyond a reasonable doubt.

We cannot say it is an absolute impossibility for a person with his hands securely handcuffed behind his back to extract a substantial quantity of crack cocaine from his person or clothing and wedge it into the space where the quantity was found without leaving a trace of cocaine on his fingers or clothing, but we can say that the possibility of such an occurrence is so exceedingly remote that no jury could reasonably find beyond a reasonable doubt that it happened.

Reality. How cool is that?

The remote possibility is diminished virtually to zero by the fact that no glassine envelope or other packaging material was found in the police vehicle or on Clark’s person. It taxes credulity to think that Clark carried such a quantity of crack cocaine loose in his pocket and, while handcuffed, extracted it from his pocket and secreted it where it was found, all without leaving a trace on his person or clothing.

This will strike some as so painfully obvious as to be unworthy of comment, but it is neither.  Indeed, not only have courts applied the rule of law in defiance of the laws of physics before when it comes to contraband, but they have similarly done so when it results in a dead suspect in the back seat.  While the judges can’t explain how it happened, that it happened doesn’t ordinarily trouble them.  It did here.

It has been said that it is better to let ten guilty persons go free than to convict one innocent person. In the past, some have favored higher ratios. However one prefers to quantify an unacceptable risk of convicting the innocent, it is difficult to imagine a case where the possibility that an innocent person has been convicted of an offense is greater than the one now before us.

Well, it’s actually not that difficult, but hey, who am I to quibble with Judge Newman. Well done, judge.  Sometimes reality doesn’t square with stories out of Lockport, or any place else for that matter.  Thanks for remembering that fantastic allegations by the government aren’t always true, and for addressing the facts as they came before you.  I applaud your fortitude.

H/T Kathleen Casey, the hinterlands’ voice of reason.