Ah, Brady.  It’s the carrot always dangling just a bit too far in front of criminal defense lawyers to reach.  So much promise.  So little process.  It’s the most illusive of rights ever given by the Supremes, what I once called the  worst joke ever played by  William O. Douglas.

Nathan Burney (of royal blood, no doubt, thus explaining his use of the majestic “we”, as opposed to the more common explanation of schizophrenia)  explains the gamesmanship surrounding Brady disclosure:

What happens often enough, unfortunately, is that prosecutors try to game the rule.  Any game-playing by a prosecutor is abhorrent, beyond unethical, as it abuses the overwhelming power of the government.  But gaming the very rule intended to prevent such game-playing is perverse.

How do they do it?  One simple way is to just not hand it over, secure in the expectation that the defense won’t ever find out.  The prosecutor can justify this by claiming it wasn’t really Brady material.  Perhaps they spin it as something that isn’t really helpful to the defense, as if their perspective is the only correct one.  Perhaps they spin it as just discovery-type stuff, which unfortunately is not discoverable at this time, if ever.  Or they can just cross their fingers and hope nobody ever gets wise.

And it goes on and on, there being no shortage of games to play when it comes to failing to disclose and finding excuses, justifications, explanations and rationales for depriving the defense of exculpatory evidence.

The bottom line of it, of course, is that no matter what path is taken to deny either its existence or its turnover, or its turnover in a timely fashion so that the defense can actually make use of it, is that Brady is one of the best sounding rights that never happens.  And somehow, miraculously, no judge has ever lost a minute of sleep worrying about what might have been.

So the ABA, our shining White Knight, steps into the breach to fix what ails us.  Do they issue a blanket condemnation of unethical prosecutors and their deliberate concealment of exculpatory evidence in order to convict the innocent?  Nah. Not that it would give rise to more than a hearty belly laugh, but nah.  Do they demand that courts enforce Brady disclosures at the earliest opportunity with the most severe sanctions possible?  Nah, not that it would fix the underlying gamesmanship, though the time of disclosure has always been problematic.

So what does the collection of the most important lawyers in our nation, at least in their own minds, beloved of committees and consensus, come up with as the ultimate solution to the Brady debacle?  A resolution to create a committee to make a checklist.  You can’t make this stuff up.

RESOLVED, That the American Bar Association urges federal, state, territorial, tribal, and local courts  to adopt a procedure whereby  a criminal trial court shall, at a reasonable time prior to a criminal trial, disseminate to the prosecution and defense a written checklist delineating in detail the general disclosure obligations of the prosecution under Brady  v. Maryland, 373 U.S. 83 (1963), and its  progeny  and applicable ethical standards.

FURTHER RESOLVED, That the American Bar Association urges  federal, state, territorial, tribal, and local courts in implementing the above procedure to require a criminal trial court to create a standing committee of local prosecutors and criminal defense attorneys to assist the court in formulating and updating the written checklist delineating in detail the prosecution’s general disclosure obligations.

FURTHER RESOLVED, That any omissions or deficiencies in the written checklist provided by the court should not relieve either the prosecutor or defense counsel of their legal and ethical responsibilities with respect to providing and seeking disclosures.

Lest you think this was a slam dunk, they struggled over this resolution, and finally added in the third decretal paragraph, as there would be open war lest the resolution didn’t uphold the primacy of legal and ethical responsibilities.  As if anybody cared.

Let’s be clear, the relevance of this resolution to the practice of law is dubious at best.  Any prosecutor disinclined to comply with the Supreme Court and the occasional admonition of a trial judge isn’t likely to melt because of an ABA resolution to create a checklist.  But let’s suspend reality for a moment and pretend that the ABA carries some persuasive authority.

A checklist?  Because it works so well for grocery clerks? 

What about the idea of dealing with the reasons why Brady has been such a monumental non-starter, like prosecutors playing games with Brady, or courts ignoring the disclosure coming in the middle of trial, or a day after the verdict?

The Nathans, perpetually optimistic, try to find the positive in this resolution.

So it was with some cautious optimism that we saw the resolution that the American Bar Association adopted today, basically telling courts to devise detailed laundry lists of things that count as Brady material in their courthouse, and to provide them to prosecutors and defense counsel in the cases that come before them.  If adopted, this practice would make it at least more difficult for prosecutors to claim ignorance of material that could have existed.  And it would make it easier for defense attorneys to spot particular bits of police paperwork and other kinds of evidence that they might not have known to ask for, if not disclosed.  It would help the hard-working defense lawyer to root out the Brady that might be there, and it would help the ethical prosecutor collect such material that they might not otherwise have obtained.

I’m constrained to disagree with both the Nathans optimism and the efficacy of being optimistic.  One reason Brady has been such a miserable failure in action is that efforts to make it real seem to invariably fall into the lawyerly fantasy that it’s not that prosecutors don’t want to give the defense exculpatory evidence, but that they just really can’t figure out what it is.  If only someone would hold their hand, wipe their brow, show them the way, then the prosecution would happily fulfill its duty to the defense.  Gag me.

So here’s my checklist:

1. Find anything that could possibly show, or lead to something that could possibly show, the defendant isn’t guilty or that a prosecution witness is wrong.
2. Hand it over.
3. Now.

Let’s see how that pans out.

The first post at Simple Justice appeared on February 13, 2007, entitled Justice is a funny thing.  The first  comment to that post came from Paul Kennedy, about two and a half years later.

Since then, I’ve published 3,976 posts.  There have been nearly 30,000 comments.  The blawgosphere has changed over a few times and we’ve had some pretty good discussions.  Hopefully, it has served some purpose for you, as it’s been cathartic, fun, frustrating and educational for me.

Thanks to all for four years of Simple Justice. 

And if you’re so inclined, please say something nice about me to the parole board.  I really am rehabilitated.  No, really.  Though I may blawg again.

My guess is that he owed back some overtime, which is why Baltimore Police Officer James Fowler’s signature was on red light tickets, the ones issued after cameras caught motorists running red lights.  The way it’s supposed to work is that an officer reviews the images and issues tickets only to those who earned them.  The issuing officer then signs the ticket.

From Packratt at Injustice Everywhere, a  WBAL-TV 11 News story exposed a bit of a problem with 2,000 of the tickets signed by Officer Fowler.

The problem concerns the sworn statement that appears on the citations confirming a police officer has reviewed the camera images to verify a violation has occurred.

On the citations in question, that signature belongs to Baltimore Officer James Fowler, who was killed in a car accident in Pennsylvania on Sept. 27, I-Team lead investigative reporter Jayne Miller said.

The Police Department said it does not blanket approve citations, and only the violators got the erroneous copies. A department representative said internal copies show the name of the officer who actually reviewed the violations.

Carolyn Elefant takes up the gauntlet of the free-ride blogger, those who author content which others than use for their own benefit.

Conventional, 21st century wisdom says that content wants to be free. That content isn’t worth paying for. That “exposure” in exchange for content is sufficient reward.

Funny thing is that those who try to sell you this line don’t have content. And not only do they want yours free, but they want to profit off of it as well.

Some, like [Molly] Secours, are simply cutting their ties, while others, like one blogger on the Hey Arianna Facebook Page is trying to determine whether there’s any legal basis for a lawsuit for retroactive compensation in recognition of how the bloggers’ collective efforts contributed to the success of the site.

As Jay Foonberg, author of How to Start and Build a Law Practice famously says:

Would you rather do the work and not get paid? Or NOT do the work and NOT get paid.

My 21st century spin on Jay’s old Chestnut is this:

If you get paid, I get paid.

Maybe that’s an old-fashioned sentiment in a free-wheeling, crowdsourcing kind of world. But then again, so is freeloading.

If you’re going to blog for free, then blog for yourself.  Your slice of the pie may be worth nothing, but at least it’s your pie.

The anecdotes were interesting, particularly that Justice John Marshall, who gave us the seminal Marbury v. Madison establishing the primacy of the Supreme Court in determining the constitutionality of laws, was simultaneously the Secretary of State for the first month of his tenure.

It was not ever thus. John Marshall, undoubtedly the greatest chief justice ever, spent his first month on the court as the secretary of state of the United States. That’s right, the chief justice and the secretary of state were the same person — an arrangement permitted by the Constitution, which only prohibits members of Congress from holding other offices. Marshall’s most famous decision — Marbury v. Madison, which established the principle of judicial review — arose from Marshall’s own failure as secretary of state to deliver the obscure William Marbury his commission as justice of the peace in the waning hours of the Adams administration. No one cared.

But Noah Feldman’s op-ed in the New York Times, which seizes on such upon the medieval influence of robed monks to the justices who played poker with presidents (Robert Jackson), asserts the obvious and then takes a blind leap into oblivion.

It is absurd for conservatives to criticize the cosmopolitan forums where judges from around the world compare notes. And it is absurd for liberals to criticize the conservative justices for associating with people who share or reinforce their views. The justices are human — and the more we let them be human, the better job they will do. Let the unthinkable be said! If the medieval vestments are making people think the justices should be monks, then maybe, just maybe, we should to do away with those robes.

But of course they’re human.  Of course they have beliefs.  And nobody suspected they holed themselves up in their rooms when they weren’t on the bench, cloistered from society and its myriad influences.  How that leads to the conclusion that “the more we let them be human, the better job they will do,” however, remains unclear.

Disconnected from any other aspect of his argument, Feldman states that Supreme Court Justices are too “isolated” from the rest of society, leading to their making “isolated” decisions.

The disengagement from public life that followed has had real costs. Isolated justices make isolated decisions. It is difficult to imagine justices who drank regularly with presidents deciding that a lawsuit against a sitting executive could go forward while he was in office, or imagining that the suit would not take up much of the president’s time. Yet that is precisely what the court did by a 9-to-0 vote in the 1997 case of Clinton v. Jones. The court’s mistaken practical judgment opened the door to President Bill Clinton’s testimony about Monica Lewinsky and the resulting impeachment that preoccupied the government for more than two years as Osama bin Laden laid his plans.

Does Feldman really believe that the absurd notion that Bill Clinton’s administration wouldn’t be, oh, “busy” dealing with the penumbras of Monica Lewinsky’s blue dress was due to their lack of political engagement?  Hey, they’re allowed to read the Times in chambers.  The error of judgment there, and if Feldman is paying attention, in a plethora of criminal cases where the notion of New Professionalism in policing informs their decisions, isn’t because they don’t have access to the same information as the rest of us.

Noah Feldman asserts that if we let Supreme Court Justice indulge in their politics like anyone else, because they are human, you know, they will somehow manifest a connection to the rest of society that will make their decisions more meaningful, real and effective.  And two plus two equals banana.

First the flaw: If justices were given free reign to openly become advocates for political positions, then we would have no reason to expect them to do otherwise.  They would hold firm to politicized positions, which would immediately become their justification for appointment, and would reflect nothing more than the party with the clout and opportunity to load the court with its adherents.  It would be like Congress, except with life tenure.

Of course, it might well be argued that this is what we have already, although it’s kept somewhat under cover to avoid the flagrant appearance of impropriety.  Nobody suspects that appointments ignore the justices political views, even though they proclaims impartiality before the Senate by mouthing the words on the script. 

While it’s somewhat true, and more true in certain cases such as Justices Alito and Thomas, it’s not nearly as true as most of us suspect.  Associate Justice Antonin Scalia, for all the flak he takes, has been on the right side of some of the most pro-defendant decisions around, authoring Crawford for example.  While the left hates him dearly, he’s added greatly to trial fairness. 

By stripping our preconceived biases for the justices, the truth is that most haven’t voted as predictably along political lines as we believe.  It may be more a matter of judicial philosophy than politics, assuming the two are separable, but the outcomes show that we take our heroes where we find them.  I’m still waiting for a decent decision out of Justice Alito too, but hey, no one promised that every justice would eventually get something right.

The better solution to address Feldman’s beef isn’t to allow rank politics to permeate the Supreme Court, but to appoint people to the court who reflect the experience of real people in the real world.  When the universe of potential justices comes only from the most isolated of the elite, whether the ivory tower, the halls of justice (the Department of Justice, that is) or the Whitest of White Shoe firms, any complaint that they lack a sense of how life works on the streets has nothing to do with their wearing black robes.

Feldman would have done better to join the  Trench  Lawyer  Movement if he wants to expose the court to the real world.  Of course, Feldman, a professor at Harvard Law School born shortly after I purchased my first pair of earth shoes, may not be aware that more real lawyers, the ones connected to that public life he reads about in the Ivory Tower, can be found in the hallways of courthouses than anywhere else.

And having enjoyed a seat at the longest running floating poker game on the Long Island Railroad, any president inclined to let a trench lawyer cum justice into his poker game better know how to play cards.  We’re hard to bluff.

The newspaper headline after the verdict played up the politics: Tea party member gets 8 years for attacking Obama supporter.  Of course, sensationalist headlines are nothing new, and certainly the political angle made for a more interesting story.

But the headline his lawyer would have written was more disturbing.

Headline should have read: Tea Partyer Gets 8 years for Attacking Obama Supporter, Despite Efforts of His Liberal Blogger Lawyer.  That’s right, I had to defend this tea partyer, who destroyed the nose of an Obama supporter with a pool cue.

a 50-year old attorney and former judge living in suburban Atlanta. My passions are classical music, constitutional law, poetry and macroeconomics.

His passions don’t interest me in the slightest.  What does is his inability to see how his political zeal both influenced his defense of his client, and his disgraceful post-trial conduct.  A disease has infected many on the internet who find themselves incapable of distinguishing between their politics and their duty. 

Brighton, it appears, does some criminal defense law.  Given the outcome of the case, there’s no reason to assume he does it very well, though a loss isn’t indicative.  Rather, it’s Brighton’s patting himself on the back for being able to defend this tea party miscreant, proving how big a person he is as a liberal.

I did not defend his actions by bashing the President; not only would that have been phony for me, it wouldn’t have worked.  Under Georgia law, there is no jury nullification, and you can’t justify a physical attack with a political argument.

All in all, I tried very hard to just be a good lawyer, hold my nose, and leave the politics out of it.  Before the jury came back and put my client in jail, Mr. Morgan told me I did a good job. I was satisfied that I had not let my politics infect my obligations as a defense lawyer.

According to Brighton, indigent defense in his neighborhood is handled by experience lawyers assigned to represent the poor.  Is there a box to check off about political party affiliation?  Clearly, this was a critical aspect of the defense, given that Brighton was constrained to “hold his nose” while defending this scum.  How proud he was that he muddled through it, “did a good job,” despite the defendant’s abhorrent politics. Maybe he should get a statue attesting to his political benevolence.

When a lawyer defends a person accused of murder, does he concern himself about being a phony?  Is the defense contingent on what the lawyer thinks of the crime?  Or the politics of the criminal?  Never.  At least never if the lawyer belongs in the trenches, entitled to hold another person’s life in his hands.  That Brighton would think to mention it, that he had to “hold his nose and leave politics out of it” to defend his client, smacks of his incapacity to be a criminal defense lawyer.

We do not support the crime by defending the criminal.  We do not concern ourselves with his politics, eating habits, television preferences or favorite color. 

One of my friends pointed out that by losing, I disqualified a Republican voter (convicted felons can’t vote).  But defense lawyers always feel bad when their clients are sent off to prison, even when they are of questionable political orientation and engage in violence. I don’t know why.

Even when they are of questionable political orientation?  Are you nuts?  Brighton is infected with the disease of politics, a malignancy that preclude his ability to recognize how his political fervor colors his thinking.  It causes blindness to ones faults and inability to understand and fulfill one’s duty.  In his case, it appears the disease is terminal.

This isn’t the perspective of the criminal defense lawyer.  This isn’t the perspective of a real liberal, not that it matters.  This is what becomes of a person when politics infects their very being to the point where they are incapable of comprehending how their misguided zeal has undermined their obligation to their client.

The internet is filled with political zealots who suffer from this disease.  The wells of courtrooms should not be.  Your politics are your own business.  Keep it out of the trenches.

H/T Ken at Popehat

When I was a puppy law clerk working for an old time criminal defense lawyer, a call came into the office seeking help with a social security disability claim.  My boss, affectionately known as Uncle Milty, told me to send it to Harry Binder.  Even then, representing claimants in social security disability was a specialty niche, and the guy who did it was Binder.

That would be Binder & Binder today.  While talk of branding today is mostly hogwash, the name Binder & Binder has long been the established name in the New York bar, and maybe the country, for handling that very specialized sort of work.  They didn’t have the flash of Harry Lipsig, who was the dean of personal injury, but there was never any question about where to send a SS case.

So if someone wanted to challenge Binder in the social security market, they would have to do some very hard work, establish their bona fides and really produce to knock the king off his thrown, right?  Or they could just pay off Google.

From the Legal Skills Prof Blog,

A California federal district court just held that a law firm specializing in disability law was liable under the Lanham Act for purchasing the law firm name “Binder & Binder” as a Google search term in order to drive traffic to its website.  The case is Binder v. Disability Group Inc., C.D. Cal., No. 07-2760, (1/25/11). 

Having concluded that Binder & Binder held valid trademark registrations, the court applied the eight-factor test for likelihood of confusion as set forth in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 204 USPQ 808 (9th Cir. 1979). The court found that the factors addressing similarity of the marks, the strength of the plaintiff’s marks, the similarity of services, the intent of the defendant, and marketing channels all weighed in favor of likelihood of confusion.

The court also found actual confusion, based on the results of a survey, witness testimony, and other evidence.

The  court awarded Binder & Binder $292,000.00 in lost profits and enhanced damages for willful infringement by the competing law firm.

There aren’t many of us who have names worthy of such interest, that competitors would actually pay Google to drive people seeking them to another place, a place where people are not looking, are not interested, are not desirous of their services. 

Notably, the court found “actual confusion,” not merely theoretical or the threat of confusion.  When someone searches for something on Google, they expect Google to deliver an honest response, the real answer to their question.  They sometimes forget that Google is just another business selling whatever it can, including the results to your search.

More to the point, however, is that this is where lawyers have turned to make a living, sponging off the hard work and reputation of others, anticipating that enough people will be confused and mistaken click on the wrong link so that they will get business intended for another. 

Lawyers have happily become cannibals, eating their own for a buck.

Thirty years later, I would still send a case to Harry Binder if someone called seeking representation for a social security disability claim.  I certainly wouldn’t take the case, as it falls way outside my area of practice, and Binder has continued to perform with excellence in its niche.  But I would likely Google the name to get the telephone number, and I would fully expect Google to send me to the right place.

For those of you inclined to buy the Binder name, or my name, or some other lawyer or firm’s name, you’ve demonstrated two things: You’re unworthy of whatever traffic you’ll get and you’re a sleazeball.  You want the traffic that seeks Binder and Binder?  Be as good as Binder & Binder.  Establish your competence the way Harry Binder did, case by case, year after year.  Get the traffic because people out there want you, not because you bought a better lawyer’s name.

Unless, of course, you’re in Canada, where  being sleazy was held not to be deceptive and received the court’s seal of approval.

The mantra of the Slackoisie has become “you are what Google says you are.”  Baloney.  Any fool can buy a search term on Google.  For the moment, internet users remain relatively naive about what they’re spoonfed by Google and why, ignorantly assuming that whatever the search engine spews is reliable.  I’ve urged the start of the Fifth Page Movement as a way to defeat the incentive to be as sleazy and deceitful as possible.  It’s yet to take off, but I hope that people will come to realize its efficacy.

In the meantime, if the best you hope to achieve as a lawyer is to deceive enough people to make a living, or make a killing, then you deserve to be called a sleazeball.  When you sat in law school and dreamed of what you would be ten years down the road, did the name “Binder” come up?  What about the word “sleazeball?” 

Or did you dream of being a great lawyer?

I wasn’t going to write about this.  When I read the emails and twit (just one, not scores) alerting me, I responded, “so what, who cares?”  I refused to elevate it to a position of significance by writing about it, making it worthy of my time.

But then I read Eric Turkewitez’s post at  New York Personal Injury Law Blog about Dominic Barbara’s having been suspended from the practice of law, and changed my mind.  Barbara isn’t an important lawyer.  He’s loud.  He’s one of the foremost self-promoters on Long Island.  Aside from that, he’s inconsequential.

But being loud was good enough to get a handful of “high profile cases.

[Barbara] represented Howard Stern (and is a regular side-kick, call-in guest on his show). He also represented  Joey Buttafuco, Jessica Hahn, and Michael Lohan, each of whom had more than their allotted 15 minutes of fame. New York Magazine once called him the “biggest, brassiest lawyer on Long Island.” And last year he was retained for a headline making crash on the Taconic Parkway that killed eight people.

For more than 35 years, The Barbara Law Firm has performed at the highest level of quality legal representation in the fields of Family, Matrimonial, Criminal, and Civil Law.

First, as to Barbara. He was suspended this week after “an avalanche of Grievance Committee sanctions” (nine Letters of Caution, nine Admonitions, and two Advisements). That’s a lot of baggage, and as a consequence of the latest round he was handed an 18-month suspension.  Among the charges, and these seem to be the straws that broke the camel’s back, are that he failed to issue itemized bills as required, failed to supervise the lawyers in his office, failed to timely refund a portion of a fee that had not been earned after the client fired him, and engaged in conduct that adversely reflects on his fitness as a lawyer by failing to adequately communicate with that client (or her new counsel).

On retrial, Luis was acquitted.  You know Luis, don’t you?  His last name is Melendez-Diaz, as in Melendez-Diaz v. Massachusetts, requiring an actual living, breathing person to take the witness stand in order to put laboratory reports into evidence.  You know, confrontation and all.

I learned that Luis was acquitted from Brian Tannebaum, who made the point that Melendez-Diaz isn’t merely a case name, like Gideon or Miranda, but a person.  Sure, they live in perpetuity in hornbooks and briefs, but each was an actual person who was dragged into court one day with a whole lot on the line. 

After a glorious victory with the Supremes, Luis had to go back to court and face retrial.  We tend to forget about the people after the big story has been told.  After all, the Melendez-Diaz decision changes the landscape for those courts where papers proved the crime instead of people.  But for Luis, the celebration wasn’t quite complete.  He may have won the point, but he still had a trial to face.

And he was acquitted.  Not that he walked out of court afterward, as he is serving a ten year sentence for another drug case, but it beats a consecutive sentence any day. 

This small part of a big decision isn’t likely to be worthy of a lot of consideration.  After all, while every criminal defense lawyer knows about Ernesto Miranda, how many know what became of him?  After his big win at the Supremes and his statement suppressed, he was retried and convicted.  Some win, huh?

But in other news today, the Nassau County, New York, Crime Lab, previously  the only crime lab on probation in the country, has now had its drug chemistry lab shut down.  Closed.  Out of business.  The report is cursory, but nonetheless interesting.

New York officials have ordered the immediate shutdown of the drug chemistry section of the Nassau County crime lab.

District Attorney Kathleen Rice says the lab, which is currently under probation by a national accrediting agency, has produced a series of errors in its analysis of controlled substances. Nassau’s is currently the only crime lab in the country under probation.

Naturally, Rice then goes on to detail the heinous criminal behavior of the people she can’t prove to be guilty.  Gotta love Rice’s ability to make lemonade.  Without valid scientific evidence to prove that a substance is a controlled substance, Rice has nothing.  No case. No crime. No nothing.

Actually, she does have something.  There’s a piece of paper, a very official looking paper, that says it’s a laboratory report.  The very official looking piece of paper says that scientific tests were performed.  Maybe it even names the tests.  It most certainly provides an ironclad assurance that the substance in question is bad stuff, illegal, criminal.  It’s scientifically proven, the report says.

Except the lab “has produced a series of errors.”  It doesn’t say that anywhere on the report.

Notably, what happened in Nassau County, first the probation and then the closure, is unique.  Maybe it’s the worst in the nation.  Maybe it’s the only one where action has been taken to shut down a lab.  Maybe others are just as bad, or slightly less bad.  But if one crime lab was so bad that it had to be shut down, is it possible that others aren’t as perfect as the reports they issue would have us believe?

Lest we forget, the National Academies of Science  isn’t impressed with crime labs.  It’s report was damning.  Nothing has changed.  Nothing except that labs have to produce living, breathing witnesses in court so that they can’t just submit the official looking piece of paper that conclusively proves that a very scientific test was performed and the defendant is guilty as sin.

And Luis was acquitted.

Making sausage is messy.  Making law, if one follows the orderly process, shouldn’t be.  But then, judges would be required to squint their eyes really hard and pretend that nothing they did had any impact on the real world to ignore the consequences of their actions and go along for the ride.  Magistrate Judge James Orenstein in the Eastern District of New York isn’t going down without a fight.

Via Volokh, Orin Kerr notes that Mag. Orenstein is a naughty boy.  Again.

Back in August, I had a long post, Fourth Amendment Stunner: Judge Rules That Cell-Site Data Protected By Fourth Amendment Warrant Requirement, about a recent Fourth Amendment decision by Magistrate Judge James Orenstein. I wasn’t subtle in expressing my view that it was wrong: I called Magistrate Judge Orenstein’s decision ” an extraordinary opinion, in my view: It’s an extraordinary result, reached in an extraordinary way, and based on an extraordinary number of errors.” …District Judge Roslynn Mauskopf had reversed the decision.

Prior to being appointed to the District Court by President George W. Bush, Judge Mauskopf was a prosecutor, rising to United States Attorney for the Eastern District of New York, a position she held for five years before being appointed judge.  This by no means suggests that she’s unfair, but you ought to know.   Mag. Orenstein was also a prosecutor for most of his career as well.

After being benchslapped, Mag. Orenstein was presented with an almost identical case, sent from another judge.

Despite the order reversing his earlier order and granting the government’s application, Judge Orenstein decided to stick to his guns and deny the application on the ground that he was right before and the District Court was wrong.

Perhaps not surprisingly, my take on Mag. Orenstein’s initial decision was a bit more favorable than Orin’s.  I was  a fan of the Warshak decision, if not fully supportive of its rationale, and still harbor this wild notion that Congress doesn’t get to pass laws enabling warrantless access to anything technologically analogous to the Pony Express to avoid Fourth Amendment scrutiny.  But that’s just me.

The issue here is whether a magistrate judge, after having been “reversed” by a district court judge, can stick to his guns.  We’ve recently discussed the question of slavish adherence to precedent, which would compel a judge to issue an order that he concluded was unlawful. 

For those who believe that the orderly development of the law, by adherence to such precedent despite a sufficient belief that it’s wrong to endure the likely reversal, is put at risk, and that judges should adhere to precedent no matter what until a higher court reverses, Mag. Orenstein’s decision is “anarchy.”

But then, the relationship between a magistrate judge and the district court is somewhat different.  While Judge Mauskopf had the authority to “reverse” Mag. Orenstein’s decision, it was neither really a reversal nor a decision.  The case “belonged” to Judge Mauskopf, and she referred it to the magistrate for hearing and determination.  He then reported back to the judge from whence the case came, and she, as the assigned Article III judge, was responsible for approving or disapproving the magistrate’s recommendation.  It was nothing more than his recommendation, subject to the assigned judge’s approval.  She didn’t approve.

In the decision, Mag. Orenstein recognizes that Judge Mauskopf wasn’t enthralled with his ruling and addresses it:

Nevertheless, for reasons I have explained elsewhere under similar circumstances, Judge Mauskopf’s decision is not controlling authority, particularly where, as here, she is not the district judge currently on miscellaneous duty, to whom any review of this order will be assigned under this court’s rules. Moreover, deferring to the decision of a single district judge on a matter normally litigated before a magistrate judge on an ex parte basis-and thus not subject to further review where the government’s challenge to the magistrate judge’s adverse decision is successful-would needlessly “freeze the development of the law in [this] district, and possibly in [this] circuit, in a way that would not be possible with respect to motions normally made in the first instance to a district judge.”

He additionally notes support out of the Third Circuit and elsewhere, that bolsters his position.  The question remains, however, whether a magistrate judge is “empowered” to hold to his decision in the face of disapproval of a district court judge, even if on a different case.  More importantly, from the orderliness perspective, is whether this would “freeze the development of the law.”

The “freezing” point goes very much to the argument in favor of a judge taking the risk of ignoring precedent and issuing a principled ruling.  Evolution of the law begins at the bottom, where a judge hitches up his pants and does what he’s got to do.  Only then does the issue present itself, properly formed and fleshed, for consideration above.  It would be easy, and safe, to just cite to the precedent and shrug.  Even noting that, but for precedent, the decision would be otherwise fails to tee up an issue adequately except in the rarest of instances. 

Judges will disagree.  Judges should disagree, if agreement violates the principles they believe correct.  And judges may well find that those with the authority to give them a good smack will disagree with them.  It’s the rationale, the argument in favor or against a particular interpretation of law or the application of the Constitution, that generates change.  Even then, it’s awfully hard to come by, but without it, it’s impossible.

Not only do I happen to agree with Magistrate Judge Orenstein’s decision, which likely doesn’t count for anything, but I applaud his willingness to stand firm in his belief that the Constitution, the document to which he swore fealty, demands that decision.  I admire his willingness to face reversal, to look squarely at the possibility that a higher court will say mean things about his intellect and motives, because he believes that the Constitution, and more particularly the Fourth Amendment thereto, demands that the warrant clause be enforced, even if Congress forgot about it.

If nothing else, Mag. Orenstein’s decisions give rise to decisions by district judges that compel their consideration of the constitutional issue, whether to accept or reject his interpretation.  If he was to accept Judge Mauskopf”s spanking and run away with his tail between his legs, it would produce a more orderly decision-making process, and one more likely to be wrong.