In a curious twist of rhetoric, Judge Patrick F. Dugan acquitted Philadelphia police lieutenant Jonathan Josey of assaulting Aida Guzman at a Puerto Rican Day Parade,  announcing “This is not a social media contest, this is not trial by video.”

For as long as I can remember, the argument was that a video of the conduct of an alleged crime was the gold standard, the thing every wished would exist, because otherwise trials relied on witnesses, who memories and motives were inherently suspect. If only there was a video.

And here there was. A video that went viral, and was scrutinized within an inch of its life.  When it was discussed here, it was in relation to the reaction of other police officers, who strained mightily to explain why Josey’s conduct was nearly as bad as every non-cop in the world thought it was.

The cops who came to Josey’s defense had two things in common: they had no issue with the fact that Josey smacked Guzman down and they had no doubt that he smacked Guzman down.  No one question what the video showed, but only that she deserved what she got.

Jonathan Josey was charged with assault for sucker punching Guzman. That wasn’t the plan initially, but pressure brought to bear resulted in Josey’s being charged.  At the three-hour bench trial, one would have expected the video to be damning. 

[Judge] Dugan, however, cited Josey’s testimony that the 19-year decorated police veteran was trying to swipe a beer bottle from Guzman’s hand and accidentally hit her. Josey said he acted in the context of an escalating melee in which some spectators were throwing beer bottles at police trying to arrest a driver doing “donuts” in the middle of the intersection.

The judge also cited other police testimony and character witnesses and an defense expert on police procedure who approved of Josey’s conduct.

This is where the judge ridiculed video and proclaimed this would not be trial by video.  The defense, that Josey did not intentionally sucker punch the woman who he believed sprinkled liquid on him, but was merely trying to swipe a beer bottle from her hands and accidentally punched her in the fact instead, might have been different than anything anyone else had ever seen in the video, but the judge made it clear: this would not be trial by video.

There are two possible reactions to a verdict like this. On the one hand, the judge who acquitted might be viewed as incredibly bold, standing up against the tidal wave of criticism across the country for having defied the nearly universal belief of those who don’t strap on their Sam Browne every day to face the maddening crowds.  After all, don’t we often argue that judges should succumb to popular will, which generally supports the conviction of any defendant who is portrayed as evil to the public.

But this time is a little different, because there was a video. And it was different because the defendant was a cop.

The other possible reaction is that the fix was in. Philly has a long and sordid history of police abuse of people of color, going back to the good, old Rizzo days, The City of Brotherly Love didn’t love the brothers very much. Or the sisters. Or the Puerto Ricans, or anyone else whose tint was a little darker than Frank’s. But Lt. Josey was black, showing how far Philadelphia had come with regard to race relations.  The question remained whether it had come as far with regard to police.

As might be expected, outrage followed the acquittal of Josey.  After all, the video of what happened was there for all to see, and the judge not only saw it differently than anyone else, but showed open disdain for the very sort of evidence that had invariably been held out as the best it can get.

Thoughts immediately turned to why Judge Dugan, “52, a judge since 2007 and a decorated Army captain who served in Iraq and Afghanistan,” didn’t see what everyone else did. A hook was soon found :

Does it matter that he’s married to a cop?

A chorus of criticism swelled Wednesday after word spread that Dugan is married to Philadelphia Police Officer Nancy Farrell Dugan, who has been on the force since 1997, city payroll records show.

She also attended Josey’s Feb. 12 nonjury trial, sources said.

While it might have been prudent for Dugan to have recused himself in such a controversial case to avoid the appearance of impropriety, there was no basis for mandatory recusal here. Judges always come to the bench carrying baggage, often from their careers as lawyer, their friends, their families, their connections, supporters and haters. The question is impartiality, and the answer is that a judge who feels that he cannot be impartial is obliged to recuse himself. Few judges feel that way, believing themselves bastions of impartiality, no matter how biased they may be.

That Judge Dugan slept with a cop shouldn’t be the bone of contention, any more than a judge who is married to a defense lawyer. Or prosecutor, for that matter. Had Dugan not been married to a cop, would his verdict have been more palatable?  The problem is bias is an affliction that pervades the bench and defies easy explanation.  It’s understandable that people feel the need for some extrinsic explanation for how something could go so wrong, but it’s wholly unnecessary. It can go this wrong without any outside explanation at all. It happens all the time.

Or more to the point, it doesn’t get any better than trial by video. That is not only enough of a reason to criticize Dugan, but a much better one. If a video of a cop sucker punching a woman in Philly isn’t good enough to convict, then no evidence will suffice.

My old buddy, co-author, of-counsel, fellow blawger at What About Clients? and muse, Dan Hull, is hanging up his disco shoes.

Labor of Love Ended. We’ll soon do a parting post about our 7.5 years. We can’t tell you how much the blog and our readership meant to us. It permitted us the honor to meet in the flesh–here and abroad–some vibrant and inspirational people, and to trade ideas about getting life and work right. Je vous remercie de tout cœur.

Erudite and urbane, intolerant of the stupid, the lazy, the cowardly, and occasionally  wild, the blawgsophere will be much poorer for his absence.  Having coined the phrase “slackoisie,” and drilled into our minds “ease of use” as a mantra for dealing with clients, Dan has done his job well.

Will there ever be another blawger to remind us so well of “sensitive litigation moments,” or that the only reason lawyers exist is to serve our clients?  Maybe, but not as well or as boldly as Dan Hull.

And What About Paris?

Attorney Eric D. Puryear was just a passenger in a car passing through Prairie Grove, Illinois, when the pickup in which he and his family were traveling was stopped by Officer James G. Page. His day got worse.

In October 2012, my wife, our daughter, and I flew from Iowa to McHenry, IL, in order to attend a birthday party and spend time with my wife’s family. As we were headed back to the airport, we drove through Prairie Grove, IL. I was seated in the front passenger seat of my brother-in-law’s pickup truck, which he was driving. My wife was seated behind me, and our daughter was in a car seat behind my brother-in-law. A Prairie Grove, Illinois Police Officer named James G. Page, Badge Number 8227, stopped the vehicle and claimed that he saw me not wearing my seatbelt. I was most certainly wearing my seatbelt, as I always do when in a vehicle (I’m a very safety-conscious person).

After running my ID, Officer Page returned it to me and began walking back to his vehicle, ending the traffic stop. I politely asked Officer Page for his name and badge number, as I wished to address this improper stop with the Village of Prairie Grove. In response, Officer Page demanded my ID again, stated that he would write me a ticket with his name and badge number written on that ticket, and proceeded to do exactly that. Myself, my wife, and my brother-in-law all observed that I was wearing my seatbelt throughout the trip in my brother-in-law’s truck.

Through Freedom of Information Act requests, I eventually obtained video from Officer Page’s squad car, which revealed that he pulled over several Ford pickup trucks in a row, as if he were looking for someone in particular and using pretextual reasons like a supposed missing seatbelt as an excuse for the traffic stops. I say that I “eventually” obtained that video, as the Village of Prairie Grove initially tried to say that it was unavailable due to an “error,” and it took my submission of multiple Freedom of Information Act requests to finally obtain that video. In court and under oath, Officer Page later admitted that he wrote me the ticket as retaliation for my request for his name and badge number.

Officer James Page has attempted to have Facebook remove the Prairie Grove Justice Facebook page that I created. This is one of many attempts that Officer Page has made to block my right to free speech and to attempt to stop my firm from providing free legal representation to those who he has wrongfully stopped. As expected, Facebook denied Officer Page’s meritless request. More information, including the emails between Officer Page and Facebook, can be seen here: http://www.pgjustice.com/facebook.html

At Puryear Law P.C. we have decided to handle Prairie Grove, IL matters (and Bull Valley, IL matters involving Officer James G. Page) on a pro bono (free) basis, in situations where a person has been wrongfully ticketed, charged, or had their civil rights violated. We cannot handle every case for free, and therefore select the cases where we believe our time is best spent to seek justice. Should your case be selected, Puryear Law P.C. will represent you without charging you legal fees for our services.

About five years ago, I wrote about how the same things that happen to other people  suddenly become real when they happen to you. Now that Eric Puryear has felt the sting of a false accusation, the smack of a cop who didn’t care for his failure to respect his authority, he has decided to do something about it. Good for him.

Some of the reactions to this have been less supportive.  After all, it was just a seat belt ticket, for crying out loud, not a killing or even a beating.  He didn’t spend days in jail, no less years in prison, for a lie.  And this is true, in the scheme of bad things that can happen at the hands of cops, this barely makes a ripple.

But as Amy Bach pointed out in Ordinary Injustice, it’s the little things, the millions of little injustices, that have made us “so accustomed to a pattern of lapses that they can no longer see their role in them.”  Maybe Puryear saw them before, but it’s different when it happens to you. The little thing wasn’t so little anymore.

Just as every prosecutor should spend some time in jail to appreciate what it means when she argues for the need to imprison someone, and every judge so she knows the suffering of the sentence, maybe every defense lawyer should be both the victim of a crime and the victim of police misconduct and lies, so we can know what our clients know. Eric Puryear now knows the feeling, and it has moved him to act.

Sure, this may not be the biggest instance of impropriety, or the worst pain inflicted by a cop on an undeserving person. But every bit of extra effort in the fight helps. By channeling his frustration into pro bono representation of people who had their rights violated in Prairie Grove, Eric Puryear is putting his anger and frustration to good use by helping others who might not otherwise have representation.

Every little bit helps, even if you never realize it until it happens to you.

When its door first opened, law professors were outraged. Both because of what it said, that law schools were indeed running a scam, and because of who said it, an anonymous lawprof. Or at least someone who certainly appeared to be a lawprof. The lawprof soon came out, and Paul Campos became an instant pariah.

When it first appeared, it was somewhat underwhelming from the standpoint of its revelations, despite the outrage it cause in academic circles, but it offered something that had never before existed: an insider validating the otherwise insane and childish rantings of the scambloggers.

Keep an eye on Inside the Law School Scam, as there may be revelations yet. And even if not, his recognition of the problems that compel discussion and redress may prove to be the start of a beautiful solution. As he offers in his post discussing Elena Kagan (who never stepped foot in a courtroom until she was appointed Solicitor General):

Someone should inscribe the phrase Fake It Till You Make It (in classical Latin naturally) on the façade of Harvard’s fancy new law building – and on that of every law school in America.

That explains an awful lot about the state of the law, and may be the most revealing, and important, thing exposed.

19 months and 499 posts later, it turns out that the core message of this blog – that legal academia is operating on the basis of an unsustainable economic model, which requires most law students to borrow more money to get law degrees than it makes sense for them to borrow, given their career prospects, and that for many years law schools worked hard, wittingly or unwittingly, to hide this increasingly inconvenient truth from both themselves and their potential matriculants – has evolved from a horrible heresy to something close to conventional wisdom.

Professor Campos:

I have a feeling you get a lot of e-mail messages like this, and you probably do not have time to respond to them all, but I thought I would give it a shot. I will try to give you an abbreviated version.

I graduated from [elite university] with a B.A. in [social science major] in 1994. I was on scholarship, so I managed to graduate with no debt.

After my clerkship, I went into private practice. I have taken more than 200 depositions, argued motions in court more than 100 times, conducted several multi-day trials, propounded and answered more discovery than I care to think about, and drafted countless briefs, motions, and pleadings…

I was laid off in late 2010, and I have been out of work ever since. There were no accusations of misconduct, no complaints about my work. The law firm was downsizing, and that was that.

I’m 41 years old, I’ve been out of law school for 13 years, and I do not have a book of business, so evidently, my career as a lawyer is over. I have a wife and 2 kids who need me to work, but I don’t know how to do anything other than practice law.

Since I was laid off, I have floundered around, applying for jobs, representing a few clients as a solo practitioner (not that that has been lucrative – think very low five figures per year), and trying to figure out “What happens to all of the lawyers?” 

I am a real, live lawyer with a J.D., a license, and years of experience. But no one will pay me to practice law anymore, and I don’t know how to do anything else. Yes, of course, big changes are coming to law schools and the legal profession, many reforms need to be implemented, and prospective law students need to be warned. It’s not that I am not interested in those things, but I have more immediate problems to solve. I have 2 kids, a mortgage, and 25 more years to work – I can’t waste time being angry at my alma mater, wallowing in my sadness, or pontificating about law schools and my profession. I need to find a way to earn some money SOON. Do you have any suggestions for someone like me?

No, not Simple Justice. A really   if you want to make oodles of dough on the interwebz
.


It already comes with tons of really cool, ready-made advertisements. Like this one:



Get it?  And don’t worry, as I’m sure they have releases from all those guys who look swell in orange for the commercial use of their image. Or this one:



It’s got everything. Sex. Ethos. Pathos. And the latest in men’s undergarments. Better grab it. And don’t let that whole ethics thing stand in your way. Forget about those pikers who merely claim to be the best. With a domain like this, you can  own the best defense. Page 1 of Google, here you come!

This is a hot property and somebody is going to make a fortune with this domain. Just throw in a video with a  girl in a bikini and you can order that new Mercedes you’ve been eyeing.

H/T David

It’s hard to come up with a truly novel defense for having coerced a confession and put an innocent 16-year-old in jail for three years, but Worcester managed to pull it off.  Way to go, Worcester!

The lawyer for a woman suing the city alleging a host of civil rights violations has, in an unusual legal turn of events, himself become a defendant in the civil case he filed.

In answering the lawsuit brought late last year by Nga Truong, who was charged by Worcester Police with killing her infant son four years ago based on what was later ruled to be a coerced confession, city lawyers have hit back with a third-party complaint against her lawyer, Edward P. Ryan Jr.

The city’s complaint in federal court claims that if Ms. Truong is entitled to damages for the nearly three years she spent in jail awaiting trial, then Mr. Ryan is as much to blame as the city because he took too long to get the coerced confession tossed out of court by the judge.

“Ryan’s breach of his duty was a direct and proximate cause of plaintiff’s alleged injuries and damages,” according to the city’s claim.

“Her lawyer allowed almost two years to pass before he made a motion to get her released by suppressing her confession. While there are numerous defenses in this case, our position on this point is that, if the city is somehow found liable for the excessive incarceration, then the lawyer who represented her also bears liability for her time in jail,” [City Solicitor David M.] Moore said.

Legal observer David E. Frank, a lawyer and managing editor of Massachusetts Lawyers Weekly, called the city’s effort to include the lawyer who got her released from prison in any damages resulting from her confinement an unusual one.

Mr. Frank noted that Mr. Ryan likely had to watch the video tapes of his client’s questioning many times, carefully review recent Supreme Judicial Court cases involving confessions and collect testimony from expert witnesses before filing a motion to suppress.

“Is the city saying that the lawyer should have just whipped something together and filed it quickly in a case where a 16-year-old girl was looking at life in prison? That argument seems like a stretch to me,” Mr. Frank said. “The stakes couldn’t have been higher.”

The  doctrine of Standing is generally a pretty good one. Derived from the Constitution’s Article III requirement of a case or controversy for jurisdiction, It prevents some guy in Des Moines deciding he doesn’t like what some guy in North Carolina did, and suing him for it, forcing the North Carolina guy to have to defend a case against some guy who has nothing whatsoever to do with the claim.

Yet when a good doctrine is combined with those dreaded words, the majority opinion written by Justice Alito, it’s enough to send chills down one’s spine.  That happened in the Supreme Court’s 5-4  reversal in Clapper v. Amnesty International, challenging the constitutionality of §1881a surveillance under the Foreign Intelligence Surveillance Act of 1978, as amended in 2008.

Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA),50 U. S. C. §1881a, added by the FISA Amendments Act of 2008,permits the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not “United States persons” and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court’s (FISC) approval. Surveillance under §1881a is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment.

To establish Article III standing, an injury must be “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U. S. ___, ___. “[T]hreatened injury must be ‘”certainly impending” ’ to constitute injury in fact,” and “[a]llegations of possible future injury” are not sufficient. Whitmore v. Arkansas, 495 U. S. 149, 158.

More broadly, the ruling illustrated how hard it is to mount court challenges to a wide array of antiterrorism measures, including renditions of terrorism suspects to foreign countries and targeted killings using drones, in light of the combination of government secrecy and judicial doctrines limiting access to the courts.

“Absent a radical sea change from the courts, or more likely intervention from the Congress, the coffin is slamming shut on the ability of private citizens and civil liberties groups to challenge government counterterrorism policies, with the possible exception of Guantánamo,” said Stephen I. Vladeck, a law professor at American University.

Justice Alito wrote that the prospect that no court may ever review the surveillance program was irrelevant to analyzing whether the plaintiffs had standing. But he added that the secret court does supervise the surveillance program.

It is also at least theoretically possible, he added, that the government will try to use information gathered from the program in an ordinary criminal prosecution and thus perhaps allow an argument “for a claim of standing on the part of the attorney” for the defendant.

Mr. Jaffer said the situations were far-fetched.

“Justice Alito’s opinion for the court seems to be based on the theory that the secret court may one day, in some as-yet unimagined case, subject the law to constitutional review, but that day may never come,” Mr. Jaffer said. In many national security cases, he added, the government has prevailed at the outset by citing lack of standing, the state secrets doctrine or officials’ immunity from suit.

There’s a discussion brewing at Concurring Opinions around a book by lawprofs   James Fleming and Linda McClain entitled  Ordered Liberty: Rights, Responsibilities, and Virtues, which has raised a troubling question. Should the federal government be allowed to compel schools to teach children to be patriots?  No, not your kind of patriots. Not my kind either. The kind of patriots who yell “America, love it or leave it.”

Kent Greenfield questions the propriety of forced patriotism:

[Fleming and McClain] use  as an opening foil an op-ed I wrote in the New York Times in 2011 arguing that Constitution Day is a bad idea and “probably” unconstitutional. In that essay and in a couple of others, I have revealed Constitution Day to be a bete noire of mine. Constitution Day, as you probably know if you’re an academic, is a federal mandate dating from 2005 that any school receiving federal funds — public or private, kindergarten or law school — conduct some kind of educational program on the constitution on or about September 17 of each year. My basic argument is that it operates as a federal content-based mandate on those schools and thus amounts to coerced speech under the First Amendment. More broadly, I argue that coerced patriotism is a Bad Thing, using as my text Justice Jackson’s admonition in West Virginia v Barnette: “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds.”

Greenfield poses the question, “Does our judgment of what constitutes a valid exercise of the federal government’s power to encourage civic virtue depend on the content of what is being encouraged?” Our answer is, yes, it most certainly does. As we put it, quoting the Supreme Court, government may “inculcate fundamental values necessary to the maintenance of a democratic political system.”

You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you — a light bulb doesn’t go off in your head and say, This is a drug deal.

Tell the truth. There are plenty of you out there who are thinking to yourselves, “well, yeah. Duh.” It’s just like that old joke, “what do you call four black men in a Cadillac? Grand theft auto!” Because that’s what blacks and hispanics do. They’re mostly criminals. And welfare cheats. And lazy. And violent. Not all, of course. Some of your best friends are black and Hispanic, but those are the ‘good” ones. They’re different.

Some white folks try their best to recognize their inherent prejudice and fight it. They realize that the black and Hispanic experience is very real. They aren’t proud of themselves for their inability to think of others with different skin color or ancestry, or gender or sexual preference, without imposing some degree of bias, but they are sufficiently aware to make the effort to not let their prejudice manifest itself in a statement like the quote that starts this post.  They try to be better. They hope that the day will come when these ideas no longer exist in the deep recesses of their mind.

But the fellow who uttered these words didn’t see the problem.  When Supreme Court Justice Sonia Sotomayor, who sits on the Hispanic seat, read these words, she was sufficiently offended that she wrote about it.

It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century. Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice.

She was not so offended that she voted for the court to hear the case, however. Nor was she sufficiently offended as to include the name of the offending government official.  As Jeff Gamso notes, so much for there being any consequences for doing wrong. Well, at least if you’re a government official. Otherwise, there are consequences aplenty.

Rather than merely bemoan the grievous wrong of such an inflammatory and prejudicial statement, Ken at  Popehat did what no one in the media or on the Supreme Court (or any lower court, for that matter) was willing to do.  He typed the letters that spelled out a name and identifying information of the person who uttered those offensive words.

Assistant United States Attorney Sam L. Ponder of the U.S. Attorney’s Office for the Western District of Texas in San Antonio

While Sam Ponder isn’t the only man in America who lacks the metacognitive skills to recognize his prejudice, or the interest to overcome it, the fact that he’s a federal prosecutor and exercises the power of his office in furtherance of his prejudice is a matter of great public concern.  It should be important enough that the media identify the prosecutor who said it, that the courts identify the person who said, that the Supreme Court Justice who was so offended identify the person who said it. 

Yet, no one did except Ken.

At the juncture of guts and media, former fuzzy-slipper wearing blogger turned Huffington Post media celebrity, Radley Balko, was moved by Ken’s boldness.

Ken at Popehat is right — those of us who cover these issues need to do a better job of identifying prosecutors who cross the line. But this is also information that should be readily and publicly available. These are public officials. They work for us. And they have incredible power — the power to ruin lives. There’s really no good reason why their misconduct should be obscured.

To that end, I’m going to start a recurring feature at this blog that will — as Popehat puts it — “name and shame” misbehaving prosecutors.

Radley points out, correctly, that questions and statements uttered in the course of a prosecution that play upon the incipient prejudice that remains at the core of whites is just one aspect of the wrongdoing that gives rise to Gamso’s “no consequences.”

Distasteful as Ponder’s question was, prosecutors frequently get away with far more damaging misconduct — withholding or even manufacturing evidence, for example — and thanks to this habit of not naming them in appellate opinions, they not only escape professional sanction, but public accountability.

The problem goes even further than this, extending to the remedies provided by courts in those rare instance where misconduct is found.  Forget naming the evil-doer. Forget the evil-doer suffering real-world consequences, whether getting fired or suffering financial liability for his conduct. The typical remedy is a do-over, where the government gets a second chance to do it the way it should have been done in the first place.  The message is if you do wrong and get caught, a big “if” to begin with, the worst that will happen is that you will have to do it again the right way.

Those of us who type out words while  wearing a bathrobe  may not be considered serious by those who get paid to type out words on subjects about which they know little, but we have one thing going for us that more important voices lack.  We have an appreciation of the fact that the courts protect those who do wrong while receiving a government paycheck. They may speak ill of their conduct, like a parent chastising a child for the 397th time to not put his elbows on the table, but never imposing any more of a punishment than making them get their darn elbows off the table.

Ken did what a Supreme Court justice lacked the fortitude to do.  Gamso made the point that a Supreme Court justice failed to do when, despite her offense, she completed a unanimous denial of certiorari.  Radley did what journalists who write for widely read “legitimate” media are loathe to do, compromising their access to power by taking a stand that will anger important government officials.

Putting Sam Ponder’s name into the title of this post isn’t sufficient.  He should no longer be in the government’s employ, but he is. The best the blawgosphere can do is impose our own brand of incentive to prevent prosecutors who do wrong from never suffering any consequences, not even the most minor of public exposure.

But at least we’re trying and doing something. Otherwise, you would never know the name of Sam Ponder, the guy who thinks that blacks and Hispanics plus a bag of money equals drug dealing.  And Sam’s name deserves to be known, at the very least.

While not the only amendment in the bill of rights of importance to criminal defendants, it’s certainly the one the generates the most litigation by a mile.  The Fourth.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In what is quite possibly the most (only?) useful post ever written in the legal blogosphere, John Wesley Hall, author of a massive treatise of 4th Amendment Law, gives us a preview of the next edition with 13 “realities” of the 4th Amendment obvious to him after reading a shit-ton (that’s a legal term) of cases. Don’t be fooled. This is essentially a primer for 4th Amendment law. He’s giving away the outline here.

13. If you find you don’t completely understand the Fourth Amendment, you’re not alone because hardly anybody does any more. To me, much of the Fourth Amendment has turned into a Rorschach test that means different things to different people, all depending on how they want it to come out. How did just 54 words generate untolled [sic] millions of words in cases, treatises, and law review articles? The U.S. Supreme Court alone has decided about 250 Fourth Amendment cases.

It isn’t accidental that Hall suggests that doctrine takes a back seat to outcome. If there is one factor that is most significant in determining the outcome of a suppression motion, it’s the inclination of the judge. It’s not the facts. It’s not the law. It’s the willingness of the judge to do the dirty deed of telling the prosecution that they can’t use the great evidence that nails the coffin shut on the guilty defendant.  The criminal goes free because the constable stumbles.

A great many thoughtful people will find this astounding, contrary to the beloved platitude that we are nation of laws, not men.  But words can wiggle, and no word wiggles better than “unreasonable.” With minimal effort, there is always an argument to be made that the great value of public safety trumps the minor intrusion on individual rights.

The black letter law is that a warrantless search is per se unreasonable. This line will appear in almost every decision involving the 4th Amendment.  The rest of the decision will explain why it doesn’t apply. When it comes to search and seizure, the exceptions to the doctrine have completely overwhelmed the rule.

For a judge to come out on the wrong side of the equation is to risk personal ruination.  Consider Southern District of New York Judge Harold Baer’s 1996 ruling in Bayless.

After his decision was issued in late January, Judge Baer was widely criticized by public officials, including Mayor Rudolph W. Giuliani, as well as by radio talk show hosts and others, who said it was an example of a judiciary that cared more for the rights of criminals than for the rights of the public.

Much of the criticism focused on a comment he made about four men who the police said had dropped two duffel bags stuffed with $4 million worth of drugs in Ms. Bayless’s trunk on April 21, 1995. The judge said he considered it reasonable and not suspicious for the men to flee when they saw police officers in Washington Heights, a neighborhood that he said was beset by police brutality and corruption.

“Had the men not run when the cops began to stare at them, it would have been unusual,” he wrote, adding that the act of fleeing was not enough to justify police officers’ pulling over the woman’s car.

Calls for his impeachment came from all quarters, including the Clinton White House. Miraculously, the judge decided to revisit his ruling “in the interest of justice,” and reversed himself, thus staving off his impending trial in the Senate.  And that’s how Judge Baer saved his future as a Supreme Court Justice. Or a Second Circuit Judge. Or still a district court judge with no future potential of ever being named to a higher bench.

Still, the occasional unlawful search and seizure will result in suppression. It happens.  And it’s those rare cases, those rare judges, who inexplicably yet boldly decide to honor the Constitution and rule in favor of the defendant despite all incentives to do otherwise, that make this area of criminal law so confounding.