JUDGING CRIMES

The scientist and science writer Bob Park recently published a column in the New Scientist containing this passage:

Richard Feynman described science as "what we have learned about how not to fool ourselves". Science depends on openness: we expose our scientific findings, including the details of how they were obtained, to the scrutiny of the scientific community. This sounds like a prescription for chaos, but the result is the opposite because it reinforces the idea that science is conditional - always subject to being replaced by better information. This can be frustrating to non-scientists, who ask why science can't make up its mind, but the alternative is dogma. Openness provides a mechanism for self-correction, setting science apart from other ways of knowing. Science is, in fact, the only way of knowing. Anything else is just religion, which is all about authority.

(The column is in the locked-down part of the website, so if you're not a subscriber you're going to have to trust me in a decidedly unscientific way.)

This is just one of the ways in which law is an anti-science (see post 129 and post 14), but it may be the most important for any attempt to understand the way in which our courts distort our society.  Law - or at least the opinions of judges - is all about self-deception.  That's the point.

That sounds so negative that it's likely to provoke defensiveness, so I'll put it a more abstract way: law is about preventing yourself from thinking about reality except in terms of legal categories.  The insistence on perceiving reality in terms of a priori categories is the defining intellectual technique of American law.  (See post 137.)  It's what law professors teach. 

So Professor Miller, victim of the  cheap shot in the previous post, would say that his point had nothing whatever to do with Michael Jones shooting people in the head.  The fact that Jones shot people in the head is, in fact, entirely immaterial to the question whether his conviction for shooting them should be upheld.  You have to focus on the legal problem, as defined by the a priori categories, and blot out your awareness of any broader reality.

(It really is unfair to single out Miller, since every other law professor and judge and most practicing lawyers  accept with equal intellectual passivity that this is a reasonable way for the rulers of a modern society to process information concerning the physical well-being of society's members, or rather that its reasonableness is not open to question.)  (The law meets Park's definition of a religion.  Law professors teach theology, judges enforce orthodoxy.)

This intellectual method means that the law is not open to new information.  Or, more precisely, new information is acceptable only insofar as it can be slotted into pre-existing categories.  The metaphor of a letterpress printer's drawer is pretty exact: who needs a character that doesn't already have its own little compartment?

A quote I've seen attributed to Catherine McKinnon, but which I can't find on the Web, says that the law doesn't prohibit rape, it regulates it.  I think that's true of all violent crimes.  Yet - and this is the critical thing - the people doing the regulating (judges) would deny that they're engaged in any such activity.  And they'd sincerely believe it, too, or at least profess to, as an article of faith.

Here's a line from the Supreme Court, almost as familiar to criminal law practitioners as a Coca-Cola jingle: "the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."

But look at those familiar words more closely.  The issue, in practical terms, was whether certain relevant evidence should have been concealed from the jury.  (Only relevant evidence is affected by judge-made exclusionary rules.  If the evidence wasn't relevant, it would be inadmissible for that reason alone, and the prosecution would have no reason for even offering it - or the defense for objecting to it, except on the ground that trials are tediously long enough already.)  

Judges who decide to hide relevant evidence from the jury don't describe it to themselves in those words.  They tell themselves they're engaged in "deter[ring] police misconduct by preventing the introduction of evidence obtained through police illegality." 

Look at that sentence structure.  In real life, what's happening is that judges prevent the jury from hearing evidence.  They do so in hopes - specifically, the Supreme Court's hopes - that deceiving the jury will influence the behavior of people who aren't present and may never learn about it.   But in the way judges phrase it to themselves, the wish comes first.   It's the important thing.

The Supreme Court pulled a similar trick of self-deception, only a bit more subtly, in the sentence quoted above.  By "permissibility of a particular law enforcement practice", it meant: "admissibility of evidence obtained by a particular ..."  They weren't deciding what law enforcement practices to permit; they were deciding whether to allow the jury to learn what the cops found out when they engaged in one particular practice.   Judges Photo-Shop the portrait and call it plastic surgery.

That's just the beginning of the self-deception packed into that sentence.  Whenever judges use any form of the word "balancing", what they mean is: choosing.  The Court was telling judges to choose which of the two (and there is rarely more than two - the metaphor controls the variables) "interests" he or she considers more significant. 

What, you may ask, is a "legitimate governmental interest[]"?   When you're talking about a Terry stop frisk for weapons (see post 321 and post 314), the interest in question is the earthly existence of the police officer.   When a judge "balances" governmental interests, what he's really doing is deciding the marginal value of the officer's life. 

That sounds extreme, but only because we're so used to the euphemisms that blanket the facts, as Orwell said, "like soft snow, blurring the outline and covering up all the details."  Self-evidently, in every encounter the cop's life is at greater risk if the person he is confronting has a gun, knife or club.  The cop's safety is increased if he disarms an armed person. 

With me so far?  That's really all there is to it.  The cop's safety would be maximized if he patted down everybody he came into contact with.  So if judges actually control police conduct - which judges tell themselves they're doing - then when they tell cops they're not allowed to pat down people in certain circumstances, they mean that officers mustn't maximize their safety.  They must accept a greater than minimal risk of being injured or killed. 

If the judges are competent in their calibration of risk, they're imposing only a minor marginal increase in risk.  But a small risk spread over a large population - say, 675,734 sworn officers - becomes numerically significant pretty quickly, especially to those attending the funerals.

So when judges decide cases about frisks, they're asking themselves: How many murdered policemen is too few?  And how many is too many?  How many official funerals with long motorcades is just right?

Once you strip away the fuzzy language, you can see why judges use it so obsessively.  They want to distance themselves from what they're doing.  "This isn't just a gut feeling, you know - I've weighed it.  The scales don't lie."

But this is barely scratching the surface of the superstructure of deception and self-deception the Supreme Court has built over our criminal justice system.

Sometimes judges say ludicrous things earnestly, without the extra dollop of smug self-congratulation necessary for inclusion in the coveted Fatuity Watch category.  Take, for example, the opinion written at the end of August by Philadelphia's 76-year-old federal District Judge Jan DuBois, shown here eavesdropping on a conversation between an earnest David Letterman and Ed Harris wearing an overcoat in this fall's hottest color, dung.

The opinion, a 59-page thing, was merely a pretrial order.  But it was entered in United States v. Kofsky, the prosecution of a bariatric doctor, i.e., someone who could afford a ream-devouring defense.   Here's the pdf.  Dr. Arthur Kofsky was "charged in a 476-count Second Superseding Indictment in connection with the distribution of prescription diet pills, phentermine and phendimetrazine, though his medical practice." 

476 counts sounds like a number settled on for the purpose of proving, once and for all, that everything defense lawyers say about prosecutors "overcharging" cases is true.  But, according to an affidavit in support of an application for search warrant, Dr. Kofsky "purchased 32,000 pills the week of June 29, 2004" - so this is a case of Big Numbers all the way around.

A federal magistrate issued the search warrant and federal agents took it into the doctor's office.  While there, they talked to the patients in the waiting room.  At the subsequent suppression hearing, Dr. Kofsky argued that the agents violated his fourth amendment rights by talking to the patients since "the search warrant 'did not contain any language authorizing the agents to extend their intrusion by interrogating patients.'" 

The fourth amendment is concerned with "searches and seizures".   The critical question in every case is whether the defendant "'has a legitimate expectation of privacy in the invaded place.'"  Dr. Kofsky's argument was that he had a legitimate expectation of privacy in the contents of his patient's heads (though presumably his lawyer phrased it rather more artfully).

And Judge DuBois bought it.  He held, in practical effect, that Dr. Kofsky owned his patients' memories.  He had the right - the constitutional right - to prevent his patients from being asked to talk about their own lives.

Of course, Judge DuBois didn't phrase it quite like that, either, though in his case I suspect the imprecision of his language was the result of artlessness.   There's nothing in the opinion to suggest that either he or his clerk understood what their opinion said.  

Whoever wrote the judge's opinion relied on the mechanical mental process lawyers learn in law school.  The syllogism makes sense on its own terms: (1) the agents could lawfully seize only such evidence as was specifically mentioned in the search warrant; (2) the interviews constituted a form of evidence; (3) therefore by obtaining the interviews the agents unlawfully seized evidence not mentioned in the warrant.  

In order to avoid becoming aware of the ludicrousness of recognizing a doctor's constitutional right to control access to his patients' axons and dendrites, it's essential to close your mind to the existence of any facts not stated in the syllogism's two premises.  And Judge DuBois or his clerk successfully did so.  They refused to let themselves be distracted by the possibility that a doctor's patients could conceivably be autonomous human beings rather than two-legged filing cabinets.

Some of the corruptions of the War on Drugs are obvious, like dirty cops and (much harder to detect and therefore, I suspect, proportionately even more common) dirty judges.  (See post  53.) 

But another type of corruption is more pervasive and much harder to perceive.  If a judge suppresses drugs in one case, or dismisses charges against some life-wasting addict, what difference does it make?  Trying to arrest our way out of the drug problem is like Cúchulainn fighting the waves, or Herakles against the Hydra if Iolaus hadn't been so handy with the cautery.

The evident futility of so much of their working lives takes a toll on federal judges, I think.  Not just in an existential, meaning-of-it-all way (though maybe in that way, too), but in the loss of any sense of connection between events inside the courtroom and events outside it.

Forty-nine percent of federal prisoners are locked up for drugs, and another 19.3% because of their immigration status.  (Table 14 in this report.)  How can a federal judge mete out the ferocious federal sentences for those offenses day after day without beginning to suspect that none of it makes the slightest difference to the prevalence of either drug use or illegal immigration?

Add to that sense of futility the moral corruption that always accompanies too-easy gratification.  A business executive who can get his company to pay for whatever he wants soon discovers he wants more things.  By self-selection judges are people who place a higher value on the gratifications of power than on money, as our Chief Justice somewhat back-handedly reminded us at the New Year.  (See post 25.)

In drug cases federal judges can achieve the gratification of proving they're more powerful than Congress without paying the psychic price of responsibility for what happens next.  What happens next was going to happen, anyway.  "She should have died hereafter."   It just doesn't matter.

Except to the individual defendant, of course.  The real significance of victimless crimes, for judges, is that there's only one person in the courtroom.

This is, I think, the most corrosive form of corruption imposed on our society by the War on Drugs.  There are  powerful, internal psychological and emotional forces driving federal judges to think up ways to avoid imposing ridiculously-long sentences on people who are dangerous only to themselves and those unlucky enough to be related to them, or foolish enough to love them.  Judges want to resist confronting the reality that a significant part of their professional lives is devoted to cruel futility; they enjoy the Oklahoma-judge-like rush that the exercise of power gives them; and they feel sorry for the poor schmucks standing in front of the bench.

Against these powerful, personal currents is nothing but the impersonal imperative that they should subordinate themselves to the will of Congress.  Really, it's not a fair fight.

One of the strongest evidences of judicial pathology is the nearly-universal practice of federal judges of referring to the prosecution as "the government."  (See post 13.)  The obvious implication is that the judiciary is not part of "the government" but something else.  The less-obvious implication is that the judiciary isn't on the side of "the government." 

I think most judges like to see themselves as standing between the people and "the government."  It's a puerile fantasy, of course, but the unreality isn't the worst of it.  The fantasy is based on an unexamined assumption that the people aren't the government: that democracy doesn't exist, or isn't legitimate.   The most explicit statement of this mindset is found in the decision that held that the people can't control the influence of money in their elections:

In the free society ordained by our Constitution it is not the government, but the people - individually as citizens and candidates and collectively as associations and political committees - who must retain control over the quantity and range of debate on public issues in a political campaign.

What this means is that the government is not "the people ... collectively", but something alien, imposed upon them, from which they need to be protected.

With search and seizure law, judges promote themselves as the blue helmets in the War on Drugs.   They consider themselves morally neutral.

The problem is that while it's easy to pretend the Constitution says this-that-or-the-other, once you start the pretense you can't stop, unless you're the Supreme Court.  And the pose of moral neutrality that makes psychological sense for federal judges confronted with an endless conveyor belt of drug cases also requires a pose of moral neutrality as between rapists and rape victims, between murderers and murder victims.   (See post 259.)

It means, above all, taking no responsibility for the consequences of tolerating extreme violence. 

There aren't many truly universal rules of human nature, but I think this is one of them: If you give a group of people power, a certain percentage of them will abuse it.  It's true of professors, petty bureaucrats, judges, and nannies.  Shocking new evidence suggests that it's also true of young men with guns.

The Bureau of Justice Statistics today issued a study of traffic stops called Contacts between Police and the Public, 2005.  According to the press release, the study found, contrary to the experience of many who think they've been pulled over for Driving While Black,

that whites, blacks and Hispanics were stopped at similar rates.  Male drivers were pulled over at higher rates than female drivers, and younger drivers were more likely than older drivers to be stopped.

It's what happened next that separated the races and ethnic groups: 

In both 2002 and 2005 police searched about 5 percent of stopped drivers.  Male drivers were more likely than female drivers to be searched by police.  In 2005 police searched 9.5 percent of stopped blacks and 8.8 percent of stopped Hispanics, compared to 3.6 percent of white motorists.  Drivers younger than 30 (8.4 percent) had a greater likelihood of being searched than drivers 30 or older (2.7 percent).

That's from the press release, which adds that the study "did not take into account other factors that might explain these disparities."  In the case of Hispanic drivers, other factors might include, say, being one of two young Colombian males in a rental car.  But it's difficult to see any similarly obvious reason for the disparity involving Black drivers.  Except, of course.  You know.

(Here's Orrin Kerr commenting on the study at the Volkh Conspiracy, and here's a CNN report.  I'm sure there will be many other reports tomorrow.) 

About 11% of searches uncovered evidence of criminal wrongdoing, but the study doesn't say whether the figure is constant across groups.   If it is, wouldn't that suggest that police were acting in a racially-neutral manner?   But it's a good deal likelier, of course, that Black motorists are discriminated against.

Now, here's my Plan™ for ending this discrimination.  So long as the cops are simply harassing the motorist, and the search is just an exercise in roadside humiliation that produces no evidence, it shouldn't concern us.  But if the search actually uncovers evidence of criminal wrongdoing, proving objectively that it was justified at least in one narrow sense, then we need to subject it to closer scrutiny.

Under my Plan™, American courts would adopt a decision-making matrix in the form of an ever-expanding flow-chart with approximately 4,000 boxes.  (That's one for every page of Professor La Fave's masterpiece of scholasticism, his 6-volume commentary on the fourth amendment.)   Then we can exchange congratulations for acting so decisively to achieve something so accomplished.  A certain degree of institutionalized smugness will, I think, be permissible at that point.

Law enforcement agencies and judicial systems must refrain from adopting the Plan™ prior to the execution of a mutually-satisfactory royalty agreement.  Remember, piracy is theft!

Christopher Paul Moore's Fighting for America: Black Soldiers - The Unsung Heroes of World War II is mostly a collection of anecdotes drawn from interviews, medal citations, newspaper accounts and battlefield reports.  It gives a ground-level view of the war, entirely unlike conventional histories that attribute every military action to the commanders.

One story describes the experience of the 827th tank destroyer battalion, which destroyed 11 German tanks one day and 4 the next, and was soon afterward relegated to noncombat duties at the instigation of its own white officers, some of whom had actually fought with their men. 

Pfc. Charles Branson, an assistant gunner on one of these Hellcat Tank Destroyers, told Moore:

"Any white unit that accomplished what we did against the Nazis would have been commended generously.  They [the white officers] just had to be in charge," said Branson.

"I don't think some would have minded losing the war outright, just so they could puff up their chests.  They just had to be in charge."

I don't buy that the racist officers wouldn't have minded losing the war.  Rather, I think, the white officers wanted to win the war in the long term, but in the short term they were mainly interested in puffing out their chests and being in charge.

In the war, there was more than one struggle going on.  At a virtually abstract level, there was the Allies against the Axis powers.  On the ground there were Allied soldiers against Axis soldiers.  And, as Coppola's Patton dramatized, there were also struggles between jodhpur-wearing generals and English military celebrities who got better press coverage. 

Within each national Army, there were other power struggles. 

In any Army, the relationship between officers and enlisted men is always based centrally on power, though one hopes it also includes respect, admiration, loyalty, dedication to a common goal, etc.  Branson, I'm sure, is right that some white officers of Black troops were overly focused on the immediate power struggle, because (1) some people are just like that, as everyone who's ever worked in an office knows; and (2) the type of dominance racist whites wanted over Blacks was much more complicated (and complete) than a soldier's obedience. 

When I read - or, rather, listened to, in the excellent Recorded Books version - Moore's Fighting for America, the analogy suggested itself.  When courts consider a criminal case such as the quadruple murder described in post 224, many adversarial relationships based on power are at issue, not just that between prosecution and defense.

 At the most fundamental level - and, to my mind, by far the most significant level - there was the power relationship between Ealy and his four victims.   But it makes people uncomfortable to think about the strangulation of a pregnant woman, two teenage girls, and the rape and strangulation of a 3-year-old boy.

Luckily, there are abstractions galore to think about instead. There's what the Supreme Court melodramatically termed "the unceasing contest between personal liberty and government oppression."   Of course, the attentions of the police can indeed be oppressive.  One only needs to remember what the "po" in Gestapo means.  But in concrete terms, the Court was referring to the "unceasing contest" between  cops and robbers.  How much power should the cops have in that contest? - a question that gets more difficult when you phrase it the other way around: How much power should the robbers have?

But of course the criminal justice system doesn't end with the arrest.  There's the trial, and the appeal, and the habeas corpus.  Murder cases routinely go on for years, even decades.  At every step of the way, there's a new set of power relationships.  There is perhaps only one institution in American life as rigidly, unforgivingly hierarchical as the military, and that's the judiciary.  (Like this, this and this, too.)

The Ealy case enacts the power relationship between courts, of course - the appeals court overturned the trial court.  Big brother beat up little brother.  Many murder cases (though not Ealy's) then go on to illustrate the power relationship between intermediate appellate courts and state supreme courts, and between state supreme courts and the U.S. Supreme Court, and between state supreme courts and federal habeas corpus courts, and so on.  At each step of the way, there's another power relationship that has nothing to do with the crime.

The Ealy case also illustrates yet another power relationship: that between branches of government.  In Ealy's case, the judicial branch condemned - in fact, nullified - the actions of the executive branch, and forbade the enforcement of the laws against murder enacted by the Illinois legislative branch.  The judiciary was enforcing its supremacy over the other branches. 

The rhetoric of judicial opinions traditionally acknowledges only one of the many power relationships involved in judges' decisions.  The fourth amendment, courts never tire of telling us, requires them to weigh competing interests, in order to achieve "a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers."  Cops and robbers.

But fourth amendment decisions about the legality of an arrest also - automatically and unavoidably - require "balancing" (that is, choosing) between the exercise of power by the police over criminals and the exercise of power by the courts over the police.

Once it's understood that not just one but two power relationships are directly on the line, decisions such as that of the Illinois Appellate Court in James Ealy's case become much easier to understand.  It's not that the judges were on Ealy's side.   They were on their own side.  What was at issue wasn't what Ealy did to the Parkers, but who was going to be in charge as between three judges and a bunch of ill-educated blue collar types who say "dis" for "this."

In the long term, no doubt, the judges the Appellate Court wanted the police to defeat the murderers.  But in the short term, they wanted to puff up their chests.  They just had to be in charge.

In 2005, the Utah Supreme Court - that hotbed of liberal activism - decided a case in which police officers, responding at 3:00 a.m. to a report of an extremely loud party, saw a fistfight in progress through the window.  As Justice Matthew Durrant, who looks like he's about to turn 30, framed it, the issue raised by the case was

whether police officers who personally witness an ongoing physical altercation in a residence may enter that residence in order to prevent bodily harm, or whether those officers must remain rooted onlookers, waiting passively for violence to escalate to a point at which severe harm is likely to occur.

From the way he phrased it, you can guess how he would have voted, but he was voted down.  The U.S. Supreme Court reversed, but Justice Stevens wrote separately to characterize the case as "an odd flyspeck" - as if the Supreme Court didn't "play it safe," in Lisa Kloppenberg's formulation, by ducking most of the significant cases presented to it.  Stevens' remark also reveals the justices' attitude toward the ordinary practice of judging cases.  (In case you need reminding, here's a definition of "flyspeck.")

But what's particularly interesting about Stevens' crotchety little concurrence is his remark that "the Utah Constitution provides greater protection to the privacy of the home than does the Fourth Amendment." 

(Stevens went on to predict that the Utah Supreme Court would duplicate its prior result on the basis of the Utah Constitution - even though the Utah court devoted five paragraphs of its prior opinion [paragraphs 10-14] to lamenting the fact that the issue was not presented to it under the state Constitution.  When you're a member of the United States Supreme Court, you have no obligation to be honest with your readers.)

Judges are extremely susceptible to fads, and one such fad making the rounds is the interpretation of state constitutions to provide "more protection" or "greater protection" than the federal Constitution.  Assigning new meanings to the state constitution might be compared to Yu-Gi-Oh, a mature but still strong franchise, while school funding formulas, a prior fad that has just about run its course, is more like Pokemon.  (This is not to denigrate Yu-Gi-Oh and Pokemon, which demand a great deal of intellectual effort - ask your kid to explain them.)

To take examples from the past few months, here are cases from states with notoriously liberal political climates talking about the  "greater protection" afforded by their state constitutions:  Texas, Wyoming, Montana, Utah, Ohio and Indiana.

But what does "protection" mean?  The dictionary definition of the noun form begs the question by utilizing the verb form, which in turn is defined as "To keep from being damaged, attacked, stolen, or injured; guard. See synonyms at defend."  So the cases must be talking about keeping something from being damaged, attacked, stolen, or injured.  By whom?  Who is the would-be damager, attacker, thief or injurer?

Two of the linked cases address nude dancing and unguarded remarks to police officers (another kind of nakedness, I suppose).  But usually when state courts talk about "more protection" they're talking about searches and seizures, that is, about cops barging into a judge's five-bedroom home in a nice quiet neighborhood.  (I know none of the cases actually involve a judge's home, and very few involve five-bedroom houses, but that's what the judges are thinking and writing about.)  So, it would seem, the state constitutions offer more protection against the cops, those damagers, attackers, thieves and injurers of the constitutional right to privacy. 

Except, of course, that the cases themselves offer no protection at all against the cops.

After all, the cops' intrusion is ancient history by the time the case gets in front of an appellate court.  Your complacent assumption that you could have a fistfight in front of your lighted window without interruption has long since been shattered.  Back in the 1880s in southwestern New Mexico, the Silver City Enterprise once jeered that the cavalry arrived at the scene of an Apache outrage, as usual, in time to bury the bodies.   State appellate courts protect their citizens from the cops in the same way.

There have been a surprising number of rationales for the exclusionary rule, from the U.S. Supremes' deterrence rationale to the euphemistically-phrased position of some state courts that getting away with crime is a remedy intended to compensate the victim of a constitutional tort, just as money does in civil rights cases.  (Example:  "the purpose of the exclusionary rule is not to deter or ensure judicial integrity, but to 'effectuate in the pending case the constitutional right of the accused to be free from unreasonable search and seizure.'")

But whether the purpose is to deter cops from doing something bad in the future, or to make judges feel good about themselves ("judicial integrity"), or to take the place of money damages, or because the fourth amendment is a sub-section of the fifth (that's what the U.S. Supremes originally ruled), or just because the Court is composed of a bunch of social Darwinists who despise the thought of government regulation of business (as here and here) - whatever the rationale, it doesn't actually stop bad officers from doing bad things to you. 

In a classic Chas. Addams cartoon, a patent attorney is aiming a strange-looking device out of his window.  With a mildly irritated expression he glances over his shoulder at the bearded inventor: "Death-ray, fiddlesticks!  Why, it doesn't even slow them up."  I say: More protection, fiddlesticks!  Why, reinterpreting the state constitution has never stopped any testosterone-addled insecure bully with a badge from beating, raping, sexually tormenting, harassing or racially profiling anyone!  (It does, however, give bad cops another incentive to lie in court.)

No, if these appellate decisions offer us any protection at all from bad cops, it's in the long run.  After 45 years, I'd say the very long run.   But those decisions do offer a more immediate type of protection, as well.  In the immediate, concrete sense, they protect the accused from having their cases decided by fully-informed jurors.  So there's one type of "more protection": from reality.  The law school subject called "Evidence" consists almost exclusively of the study of types of relevant information kept from juries, and the non-textual exclusionary rules are simply ways of widening the gap between the real world and the courtroom version.

That, in turn, means that the jurors' decision is less likely to be accurate - which is just another way of saying that more guilty people will be found not guilty, or have charges dropped before trial.  I don't think anyone would dispute that that's the practical effect of "more protection."  So when you get right down to it, what all these state courts are promising is more protection from the law.

The inimitable Dahlia Lithwick once spilled the beans about Opinion Bingo, a game among appellate court law clerks (recent law school grads hired to assist the judge, not to be confused with court clerks, who actually clerk).  In Opinion Bingo, "[p]oints are earned for working a randomly selected word from Webster's into any published opinion."  The clerk who scores a lot of points gets free beer and pizza from his or her fellow clerks.

One Ninth Circuit opinion from 2000, signed (but apparently not read) by Judge Ferdinand F. Fernandez, originally a a Reagan appointee, described difficulties as "sempiternal," an argument as "aduncous", and capped everything by announcing the court's unwillingness to "rely on some resident numen or wait for Fulgora to light our way."  Just think how much free beer and pizza those words represented!

The Supreme Court had to reverse, of course, if only out of embarrassment for Judge Fernandez.  It did so unanimously, just a month and four days after argument, which is remarkably quickly for the Court.

The opinion written by Judge Fernandez's clerk was comic in other ways, too.  The basic facts of the case were these:  The Napa County Sheriff's Department suspected Mark Knights was responsible for repeated acts of vandalism against Pacific Gas & Electric equipment.  One of the attacks knocked out power to the Napa County Airport, causing more than a million dollars of damage and endangering aviation. 

As it happened, Knights was on probation for a drug offense.  As a condition of probation he had signed an agreement that permitted "any probation officer or law enforcement officer" to search his apartment without warrant "at anytime."  Believing the agreement meant what it said, deputies searched Knights' apartment. 

The search "turned up detonation cord, ammunition, unidentified liquid chemicals, instruction manuals on chemistry and electrical circuitry, bolt cutters, telephone pole-climbing spurs, drug paraphernalia, photographs and blueprints stolen from [a] burglarized building, and a brass padlock stamped PG & E."

You can see why Knights' prosecution on federal arson and explosives charges had to be stopped.  Can't you?

While agreeing that Knights had agreed to random searches when he signed the probation agreement, Judge Fernandez pointed out that the deputies weren't trying to "advance the goals of probation, the overriding aim of which is to give the probationer a chance to further and to demonstrate his rehabilitation …"  Instead, the deputies "were interested in investigating the string of crimes of which Knights was thought to be the perpetrator."  

In short, it was the deputies' interest in investigating crime that, to a Reaganite judge, made the search unconstitutional.

The prosecutors in Knights' case argued that the constitutionality of the deputies' actions ought to depend on the actions themselves, not on some judge's after-the-fact guess about what the deputies were thinking at the time they performed the actions.  Fernandez was unswayed:

Here the issue is not whether a search or seizure with probable cause should be invalidated because of an officer's subjective intentions.  It is, rather, whether, without another basis for a warrantless home search, there was consent to the search in the first place.  That is a different question entirely.

This passage is an excellent reminder that power is a useful substitute for insight – it ends the debate just as completely.  According to Fernandez, Knights consented only to searches motivated by the earnest wish to further his rehabilitation.  The search was not within the scope of his consent because the deputies entertained a different subjective intention.  That is, the issue was whether a search with probable cause should be invalidated because of the officer's subjective intentions. 

The distinction Fernandez pretended to be drawing was no distinction at all.  The passage is another example of "the first distemper of learning, when men study words and not matter."  (See post 129.) 

If the officers had been thinking good thoughts while they searched Knights' home, the search would have been A-OK under the Constitution.  Nothing the cops did – nothing that affected Knights, or was even perceptible to him – was a problem, but only the hidden thoughts and impressions that Judge Fernandez believed were flitting across their minds.

There is an almost universal tendency among judges to make the legality of police actions turn on the subjective thoughts and feelings of officers, rather than the actual experience of the suspect.  A cop who latex-gloved hand is patting you all over is equally invading your space whether she's thinking judge-approved thoughts or not.  The cop's thoughts and feelings are matters of complete indifference to the suspect -- he or she is only interest in the cop's actions.

The Ninth Circuit's opinion in Knights was particularly silly, but the impulse it reveals is anything but.  Whose interests do judges think they're enforcing with their rulings?  If they were solely interested in protecting the rights of suspects, they would examine the event from the suspect's point of view, asking what the officers did and when and why they did it.

But if, on the other hand, judges are primarily motivated by the fantasy that they control the police, then they would naturally look at the event from the cop's point of view.  And if certain insecure judges were to become concerned that they were being outwitted by working-class guys in clip-on ties (the clip-on prevents choking), they would come to see themselves involved in a contest in which their task was to invent new rules to prevent sneaky cops from evading the prior rules.

The more judges fixate on the subjective states of mind of individual police officers, the more they reveal that their primary concern is not the rights of the suspects, but the subordination of police officers to their own authority.

Judge Fernandez's peroration in Knights ended with this peculiarly unself-conscious self-revelation:

In making this decision we need not rely on some resident numen or wait for Fulgora to light our way.  We can, instead, rely upon the wisdom of the ages and upon the sagacity of the numerous Ninth Circuit judges who have written before us. If we do not heed all of that history and learning, who will?

Kinda makes you hope he didn't read it before he signed it, doesn't it?

David J. Krajicek, the blues trombonist and crime writer, describes what it felt like to have a story spiked by his editor at the Daily News.  The editor was spooked because a competing news source had contradicted the gist of Krajicek's story.  The competing source?  The Enquirer.

"The Philadelphia Inquirer?" Krajicek's inquiring mind wanted to know.  No.

Not an altogether undepressing experience for a journalist.  So how did Krajicek take it?  "Over time, I convinced myself that it was better for my mental health and professional standing [i.e., remaining employed] to pretend that the incident had not happened."

Most lawyers, I think, can identify with that.  Just as a reporter understands that some stories are going to be spiked - they're overtaken by events, or turn out to be less interesting than imagined, or the sources just don't come across with the goods - a lawyer understands that she's going to lose some cases. 

When I teach legal research and writing to paralegal students, I have to coax them into making losing arguments.  Their impulse is to say, "That will never work."  But if bad arguments are all you have, your duty to your client is clear: act like you haven't noticed the goldfish is floating upside down.

I try to make this point by asking the students what percentage of cases they should expect to lose, statistically speaking.  After a moment's thought they inevitably arrive at the correct answer.   In America the law is a zero-sum game.

So as a lawyer you expect to lose some.  You know which cases are sure losers, and which ones could go either way.  When you lose one of those you might feel a twinge of regret for the client or victim, you might second-guess yourself a little, you might even call one of your friends to complain about it.  But you get over it.

But then comes the case you lose because of something the National Enquirer printed, metaphorically speaking.  The judge goes off on some weird tangent, opposing counsel plays some slimy trick, a witness takes a dive, or you learn too late that the judge and opposing counsel are buddies from way back.  (See post 122 and post 125.)  Some losses are just bitter.   And they're bitter because you didn't deserve them.

Most of us know, like Krajicek, that it's better for our mental health and professional standing (i.e., continued membership in the bar) to forget about it.  It's almost a kind of meditation, learning to let it go.  It's what baseball players call "mental toughness."  For them, it's the ability to go out the next day after committing two errors in one inning, or striking out four times, or giving up 7 runs with two outs.  For lawyers, it's the ability to keep on trying even when you doubt the honesty or intelligence of the judge.

All of this is a roundabout way of approaching some of the key assumptions justifying the non-textual exclusionary rules.  The U.S. Supreme Court's justification for hiding evidence from juries is that doing so will deter police officers from doing the same thing again.   That justification, in turn, relies on any number of assumptions, none of which really stand up to much scrutiny.

The first assumption is that the officer responsible for making the decision will find out that a judge has condemned it.   I wonder how often that's true.   I suppose it might depend on whether it's a one-cop highway bust or a multi-agency sweep, and whether the case gets heard before the cop retires or moves to another agency, and whether the judge rules from the bench or issues a written order months after the hearing.  But I suspect there are many cases in which the officer theoretically subjected to the deterrent effect never even learns about it.

The second assumption is that the trial judge's decision to suppress evidence is right, so that a cop should feel chastised by it.  If that were a safe assumption, I don't think we'd see quite so many published appellate decisions grappling with fourth amendment issues.  (See post 6.)  For many years now, the published search and seizure opinions of the New Mexico Court of Appeals have been remarkably consistent: the trial court is reversed almost exactly half the time.  

No doubt the figure is lower when you factor in the unpublished decisions (unfortunately not available on Westlaw), but the point is that trial judges are reversed by appellate judges at a pace that perhaps bears some comparison to the rate at which police actions are ruled unconstitutional by trial judges.  Objectively speaking, is there any reason why officers should trust the judgment of judges?

The third assumption is that cops who genuinely believe themselves in danger are going to worry about what some judge, sitting on his or her fat bottom, will say six months down the road.  My expert legal advice to cops is always: don't.  If lives are at risk, protect them.   Some judge's future opinion is a trivial thing by comparison.

The fourth assumption is that cops who don't genuinely believe themselves in danger, but are prepared to testify to the contrary under oath, are the sort of people who care about anything a judge says or does.

The fifth and, it seems to me, most problematic assumption is that police officers won't respond the way lawyers do, or as Dave Krajicek did.  That after a judge who knows nothing about police work tells them they're unreasonable for doing the job they way they were trained to do it, they won't decide that it's best for their mental health and professional standing to pretend it never happened.

Last week's Hudson v. Michigan decision, the Supreme Court's knock and announce case, is the place where a lot of strands of our criminal law come together.  (See post 126 and post 124.)  I think there's no function of government - no reason for government's existence - more basic than protecting society's members from physical harm.  That's why our ancestors first started hanging around in groups.

But the whole point of the various exclusionary rules, both the textual (fifth amendment protection against coerced confessions) and non-textual ones (all the rest), is that some things are more important than enforcing the criminal law.  And one of those things, we've been told, is to protect the reasonable expectation of privacy.

Knock and announce cases all involve valid search warrants, issued by a judge and supported by probable cause - if they didn't, the evidence would be suppressed for that reason alone.  So whatever expectation of privacy the occupant has is pretty much illusory to begin with - the cops already have permission to enter, one way or the other. 

The dispute in knock and announce cases always boils down to (1) whether the cops knocked and announced at all, and, if they did, (2) whether they waited long enough before kicking in the door.  "Long enough" means some figure between 5 and 20 seconds, pretty much.  (See post 126.)  So the expectation of privacy that's more significant than enforcing the criminal law is 15 seconds or less of knowing that the cops are going to break down your door if you don't open it at once.

Of course, the cops sometimes raid the homes of the innocent.  There's a description of one such fiasco in Edward Conlon's Blue Blood - the cops recognize immediately that the information they received was bad, but once they're inside they don't have any choice but to see the raid through to its dismal end.  So a good argument could be made that we need a rule to protect the innocent from rampaging cops.

Unfortunately, the knock and announce rule isn't it.  Those who are innocent - those who don't have drugs, or stolen property, or murder weapons in their homes - get no benefit at all from a rule that suppresses (i.e., conceals from the jury) evidence of such things.  We've developed a remedy for innocents that doesn't help them at all, like treating pneumonia with wrist splints.

The only people who receive any benefit from suppression of evidence found during a premature police raid are those with evidence to suppress.  Those, in short, who actually had a motive either to destroy evidence or to shoot the officers coming through the door. 

So with the announced intention to protect those who don't have such a motive, we've created a rule that protects only those who do.  It's nearly perfect in its way.

When the only thing the police discover inside the home is drugs, it's easy to believe in a sort of half-thinking way that no real harm comes from letting the poor defendant get away with it.   Not all drug traffickers are antisocials, some are probably pretty harmless (see post 93) and we know for a fact that the overall availability of drugs in the neighborhood isn't going to change whether this dealer walks or rots in federal prison.

But when you start down the road of pretending that the Constitution requires you to hide evidence from the jury, you're stuck with hiding it, even when the crime involved isn't something as comfortably quaint (or so it probably seems to many baby-boomer judges) as selling pot.  If the knock, announce and wait rule is actually written (in invisible ink) in the fourth amendment, then it applies equally to the person carving up fresh cadavers in his bathtub to feed to the alligators.

Assuming you're not a drug dealer, the risk of police kicking down your door is pretty slight today, but before the war on drugs it was just about exactly nil.  The knock, announce and wait rule is one more way in which the war on drugs has damaged American society.

Most significantly of all, the knock, announce and wait rule, justified as a way to protect homeowners from property damage and to compensate them for injuries to their dignity,  is essentially a tort claim.  The government prosecutes you, but you sue the government for damages.  But - and this is the really interesting part - the damages to which you claim legal entitlement is the right to break the law.

Our legal system considers money an adequate compensation for the mill worker whose arm is ripped off by the machine, or the parent who loses a child to medical malpractice, or the policyholder confronted with a crooked adjuster.   But one class of victims receives something even better than money.  They receive a get-out-of-jail free card. 

The underlying, unspoken and unexamined assumption is that it's not possible to provide compensation to victims of police misconduct and still enforce the criminal law.  But why not?  It's true, as a practical matter, that juries aren't much inclined to award damages in civil rights actions brought by guilty people, as Norm Pattis points out.  But the solution suggests itself: a mechanism for providing predictable monetary compensation in a non-jury proceeding, like workers comp. 

There's no political will for such an obvious solution because our definition of "crime" has diverged so far from the fundamental purpose of criminal law.  As long as violent crime and drug possession are treated as the same thing, we're going to continue to have judges who invent new constitutional doctrines out of thin air to counteract the sentencing laws that are so ferocious in part because judges have spent much of the last 30 years inventing new constitutional doctrines out of thin air.

Here's the lede from an AP story about the Supreme Court's decision this week in Hudson v. Michigan (see post 124):

The Supreme Court made it easier Thursday for police to barge into homes and seize evidence without knocking or waiting, a sign of the court's new conservatism with Samuel Alito on board.

Conservatives, you see, like police barging into their homes.  Many, in fact, keep a sherry goblet waiting on the sideboard in the entrance hall, to greet the officers who splinter their carved doors in the middle of the night.

The AP reporter assured us that the decision was "a significant rollback of earlier rulings protective of homeowners", by which he or she must have meant the 1995 decision written by Justice Thomas.  Since three of the justices who participated in the 1995 decision voted with the majority in Hudson,  that means they were rolling back their own prior decision. 

But doesn't this make the story a sad example of burying the lede?  Isn't the really big news that three justices were retreating from the position they staked out just 11 years ago?  When's the last time you can remember Justice Scalia admitting he was wrong?

Well, perhaps it's asking too much to expect an AP reporter to know anything about recent constitutional history - the Constitution is such a squirmy, changeable thing.  1995 is ancient history, constitutional criminal procedure-wise.

But if the Hudson decision made it easier for police to barge into people's homes, you have to wonder how the knock and announce rule made it hard.  Was it a kind of temporary force field?  Was it pixie dust that transformed cops from barges into gliding sloops?  Should we picture a judge in his black robe standing beside the front door, stopwatch in his hand, giving the signal to the battering ram after exactly 15 seconds?  Or 30?  Or whatever that particular judge thought was about right?

(Doesn't "battering ram" suggest something more like this or maybe even this?  Here's the disappointing reality, here's it in action, and here are the specs.)

The AP story might have been more accurate if it had started:

The Supreme Court ruled today that truthful information is not necessarily such a terrible thing to provide to jurors, a sign of an increased commitment to reality with Samuel Alito on board.

Or:

The Supreme Court ruled today that judges, who have no training or experience in law enforcement, and are too chicken to accompany cops serving warrants they themselves have issued, might not be ideally qualified to establish standard operating procedures for law enforcement agencies.

Or:

The Supreme Court ruled today that any expectation of privacy a homeowner has after a squad of Kevlar-jacketed cops armed with a valid warrant deploy around his house is illusory, at best.  Writing for the majority, Justice Antonin Scalia held: "There is considerable folk wisdom in the lyric, 'If you've got a warrant, I guess you're gonna come in.'  Whether it's now or ten seconds from now doesn't really matter, does it?"

Suppressing evidence as a result of a "violation" of the knock-announce-and-wait rule didn't stop police from barging in.  It just meant juries didn't learn what the cops found once they were inside.  It's understandable that lawyers and judges act as if they can't perceive any difference between the two - the Supreme Court has told us there's none, and the law is a hierarchy as strict as the military.  We follow orders.  But I never understand why reporters feel compelled to go along with our game of constitutional make-believe.

I put "violation" in quotes because no one actually knows what it takes to violate the knock and announce rule.  Over at Crime & Federalism, we read:

Absent extreme circumstances, the Fourth Amendment prevents police officers from kicking down a citizen's door when executing a search warrant.  The police are required to knock on the door, announced their presence, and wait from 20-30 seconds before kicking down a citizen's door. 

But in 2003, the Supreme Court said 15-20 seconds was okay, given exigent circumstances - and the mere possibility that the cocaine dealer would destroy evidence was exigent enough.  (The poor guy was actually in the shower.)  Is 10 seconds too little?  My local Court of Appeals said it was, based on the specific facts of the case, while remarking that it was a "close question."  But the Sixth Circuit upheld a wait of just 5-10 seconds.

In the case of the showering cocaine dealer, the Ninth Circuit's Judge Fisher wrote:

15 to 20 seconds is not an insignificant amount of time to wait after a loud knock and announcement. Knock, then count out the time to see for yourself.

It's a useful exercise.  15-20 seconds is about how long most phones ring before rolling over to voice mail.  And remember that any cocaine or meth dealer who isn't heavily armed is a fool - think for a minute about the type of people who know best about the cash and drugs he keeps in his home.  And remember, also, that any cocaine or meth dealer who uses the product isn't very good at assessing his own long-term best interest - and that was before he had used enough to display the chronic user's characteristic paranoia. 

Now, how comfortable are you with lining up your body with the rectangular frame of the doorway, knocking on it and yelling, "Police!  Shoot now or face twenty years in prison!  Last chance!"