JUDGING CRIMES

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.