Judge Weinstein Takes on Testilying

During a keynote speech at Cato’s Criminal Justice at a Crossroads conference, former federal judge for the Middle District of Tennessee, Kevin Sharp, spoke of why he resigned his life-tenured post: he just couldn’t continue to impose outrageous sentences on defendants because the law stole his authority and forced him to do so.

Everyone in the room understood. Everyone in the room felt inspired by what Kevin Sharp had to say, and the personal hit he took by walking away. But for one person in the room, it wasn’t  quite good enough. There are things that can be done by a sitting judge that can’t be done by anyone else. By resigning, no one was saved. If Judge Sharp didn’t impose the Draconian sentence, someone else would. But Judge Sharp can raise hell about it. Kevin Sharp cannot.

Judge Jack Weinstein sits in the Eastern District of New York. He’s never going to be appointed to the Second Circuit or the Supreme Court. He’s got nowhere to go. He’s got nothing to lose. And he’s not going to waste his bench.

A federal judge in Brooklyn has told the city to prepare for a court hearing regarding the prevalence of lying by New York City police officers and whether the New York Police Department has done too little to discipline officers who testify falsely.

For years, federal judges in New York City have been issuing rulings in individual criminal cases casting doubt on the credibility of some police testimony. But the opinion issued on Tuesday by Judge Jack B. Weinstein of Federal District Court in Brooklyn may signal a broader judicial inquiry into police perjury.

It’s a shot across the bow at this point, but it’s a bow on a ship that’s been sailing forever without any judge calling out what every judge already knows. That cops lie on the stand. Not all the time. Not about everything. But routinely, and they routinely get away with it, no one ever wanting to be the judge who finally says, “enough.” Until now.

In his decision on Tuesday, Judge Weinstein did not make any determination himself about the extent of police lying. But he cited a number of newspaper articles in recent years about accusations of false statements and perjury by the police.

Moreover, Judge Weinstein suggested that giving a jury the question of whether the department has permitted widespread police perjury could prompt important reforms. “It may indicate the need for more careful tracking of individual police officer’s litigation history and a more effective discipline policy to avoid repeated lying by a number of officers,” his ruling stated.

It’s not that there haven’t been perjury scandals in the past, but they tend to be attributed to one bad cop rather than an institutional failure of brutal honesty by police. The one bad apple gets outed, maybe docked a few hours’ pay, and the forces of truth and justice pat themselves on the back for having cleaned up the system. And all the other cops smile and go back to work, putting the bad guys behind bars for the good of society. If they have to fudge a detail here and there, well, something about cracking eggs to make an omelet comes to mind.

Like Kevin Sharp, Judge Weinstein has issues with his job. Unlike Judge Sharp, Judge Weinstein didn’t walk away, but used his bench to do something about it. Mandatory minimums? Judge Weinstein went after them. And even told the jury about them. Where Judge Sharp hated imposing sentences he believed to be wrong, Judge Weinstein refused to do so.

The question of cops lying to judges and juries has been on Judge Weinstein’s mind for quite a while. For many years, judges were able to hide from lies, as the only evidence to the contrary came from a defendant’s mouth, and nobody believes defendants. But video changed things. We thought it might change things enough to put an end to testilying, but it hasn’t. And maybe Judge Weinstein has had enough of it and will use his bench to go all in much as Judge Shira Scheindlin did with stop and frisk.

The point is that these judges saw systemic problems and rather than walk away, used their offices to do something about them. They took huge risks. They suffered the castigation of their circuit superiors. They got reversed, chastised, criticized and spanked. And still they didn’t walk away.

It’s easy to understand, and appreciate, why Kevin Sharp decided to resign from a life-tenured position where he was taller and more handsome, funnier and more erudite, than he will ever be again. And many of us can feel his pain and empathize with his choice not to be complicit in a system that does so much knee-jerk harm.

I can understand, but I cannot applaud. Kevin Sharp could have chosen to follow Judge Weinstein’s path, to use his bench to speak out, to hold hearings, to do whatever he could to make bad law, a bad system, better. Walking away changes nothing. Judges like Judge Weinstein might.

12 thoughts on “Judge Weinstein Takes on Testilying

  1. JRP

    I am not a lawyer so excuse the ignorance. Why can Judge Weinstein not ever be elevated? Are not some of those postitions nominated and confirmed by elected representatives?

    Looking at his picture he is old but what does that manner (other than politically).

  2. Richard Kopf


    Judge Weinstein is a man of virtue. Mr. Sharp is in all probability a good man, but his preferences should not be confused with virtue.*

    All the best.


    * Oddly, in my view, his law firm refers to him as “Judge Sharp.” The firm’s website states: “Judge Sharp is the Managing Partner of Sanford Heisler Sharp’s Nashville office, which opened in the spring of 2017. He joined Sanford Heisler Sharp after serving as a judge on the U.S District Court for the Middle District of Tennessee from May 2011 through April 2017, serving from 2014 to 2017 as the Court’s Chief Judge.”

  3. womanwarrior

    Judge Weinstein has been a personal hero of mine since I appeared before him as a first year law student. And that is a long time ago. He still persists, and does it brilliantly.

  4. B. McLeod

    There is something to be said for understanding a job when you take it. There isn’t any perfect job that comes with only things you want to do. That’s why they’re called “jobs,” and people get paid to do them.

  5. Billy Bob

    What you do not understand is that there is no “middle district of Tennessee”. There’s the Eastern District and the Western District. The Middle District is a No Man’s Land, a will o’ the wisp, something to be longed for, but never found. It’s so far into the Deep South that you cannot find it. A Black Hole in the geography.

    It may be on the Google Maps, but just go there. You’ll be driving in circles trying to get outta there and back home. It’s like that Broadway play where they go back 100 years, what’s the name of it? (Early onset Allah Zheim Disease where the synapses relapse without warning or notice.)

    Finally, there’s only one other state with as many double consonants as TN, and we reside there. Ha. Hint: It’s north of the Mason-Dixon Line. No, not Pennsylvania!

  6. Pingback: Police roundup - Overlawyered

Comments are closed.