Roberts Files Dissent in United States v. Jackson:
Judge John Roberts filed a dissent in a Fourth Amendment case today that is pretty interesting as an example of his style as a jurist. The case, United States v. Jackson, is very fact-specific: the only issue is whether the facts of a particular traffic stop amounted to probable cause to search the trunk of a car. Judges Judith Rogers and Harry Edwards, two of the more liberal judges on the D.C. Circuit, said no. Judge Roberts said yes.

  On the merits of the probable cause determination, my own sense is that this was a pretty close call. Based on current law, I think Roberts was probably right. At the same time, the doctrine calls for a judgment of probabilities, and reasonable people with different experiences can disagree.

  In this case, the defendant was driving a car with stolen tags and the license plate light out. He didn't have a driver's license on him, and his license was suspended. The police tried to find a registration for the car, but found no evidence the car was validly registered. The police arrested the defendant, and then — and here's the tricky part — they searched the trunk of the car, and found a gun. The defendant was then charged with a gun possession crime.

  The legal question is, at the time that the officers searched the trunk, was there a fair probability that there would be additional evidence in the trunk? In the majority opinion, Judge Rogers says no — it's just pretty unlikely that there would be additional evidence of the crimes the police knew about at the time of the search. Judge Edwards concurs, offering his own sense of the low likelihood that there would be evidence in the trunk, and adding in some rather grand rhetoric about the importance of upholding the Fourth Amendment.

  In his dissent, Judge Roberts argues that the common sense of the facts created a fair probability that some kind of evidence would be in the trunk of the car. The situation at the traffic stop was pretty darn suspicious, he notes, suspicious enough that there was a pretty good chance evidence of crime would be in the trunk. The officers had pretty good reason to believe the car was stolen, for example — it was, as it turns out — and if it was, some kind of evidence of who owned the car and who had stolen it would probably be in the trunk. Given the facts of the situation, the officers were justified in looking there.

  What is particularly interesting about Roberts' dissent is its style. He uses a number of techniques to emphasize that this is a fact-bound common-sense inquiry, not a question of high theory. For example, at one point he uses humor to break through the formal reasoning and draw attention to the common sense of the situation:
Sometimes a car being driven by an unlicensed driver, with no registration and stolen tags, really does belong to the driver's friend, and sometimes dogs do eat homework, but in neither case is it reasonable to insist on checking out the story before taking other appropriate action.
  He makes much the same point through a citation to Holmes:
The majority doubts the rationale for replacing a stolen vehicle's real tags with stolen tags and therefore discounts the inference that the car might have been stolen. Op. at 10. But lawyers learn early on that "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.). Officer Garboe's history with stolen tags had confirmed that they, more often than not, led to real tags in the trunk. The reported cases confirm that criminals often use stolen tags on stolen cars. This history is enough to support the officers' inferring from the stolen tags and the lack of any registration (current or expired) linking Jackson to the car that the car might well have been stolen.
  Finally, Roberts goes out of his way to express his view that the right answer in the case should derive from a straightforward lawyerly question of applying law to the facts, not of a general commitment to the Bill of Rights or of helping the police fight crime. Here is how he responds to the rhetorical passages in Judge Edwards' concurrence:
  I wholeheartedly subscribe to the sentiments expressed in the concurring opinion about the Fourth Amendment's place among our most prized freedoms. See Conc. Op. at 1, 5. But sentiments do not decide cases; facts and the law do. There is no dispute here on the law: if the officers had probable cause, they did not need a warrant; if they did not have probable cause, no warrant would issue in any event. As for the facts, the officers encountered at 1:00 a.m. an unlicensed driver operating an unregistered car with a broken tag light and stolen tags. The experienced district court judge concluded — and I agree — that "the circumstances were suspicious enough to amount to probable cause to search the trunk." Memorandum Order, at 5. Right or wrong, nothing about that determination reflected insensitivity to constitutional values, any more than a contrary determination would have reflected insensitivity to the needs of law enforcement.
  I respectfully dissent.
  A nice touch, I think. Thanks to Howard for the link. (Oh, and it may be worth pointing out that the case was argued in April, and Roberts has been sort of busy recently, so the chances are very high that he wrote this dissent long before he was nominated.)

  UPDATE: One more notable aspect of the opinion is the paragraph criticizing Judge Rogers for discussing what the police should have done to get probable cause. It's a very Harlan-Bickel-Legal Process point about not wanting judges to go beyond the facts and law of the case. He writes:
  Finally, my colleagues' insistence that police should have further questioned Jackson amounts to prescribing preferred investigative procedures for law enforcement. We have neither the authority nor the expertise for such an enterprise. See United States v. Montoya de Hernandez, 473 U.S. 531, 542 (1985) ("creative judges engaged in post hoc evaluations of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished" (internal quotation marks omitted)). In the end, I would leave the judgment as to what lines of inquiry ought to be pursued to the officer himself, and judge probable cause on the facts as they are, rather than on what they might have been had the officer pursued a different course.
Thanks for providing the quotes. Good piece.
7.22.2005 1:50pm
bld (mail):
There is no dispute here on the law: if the officers had probable cause, they did not need a warrant; if they did not have probable cause, no warrant would issue in any event.

It would be nice if the law didn't make the 4th a dead letter when people enter the door of a car, but apparently that's too much to ask.

As an aside: the court's interpretation of the 4th has been somewhat generous to the home, much of the time ( for instance). What happens when it collides with motor homes? I realize the demographic prone to drive motor homes is unlikely to be, say, operators of a meth lab, but given the near complete lack of protection from searches (or 'non-searches' that reveal criminal activity) when one is driving, I wonder what happens when one's automobile is also one's home. Any case law on Grandpa's rights when he sells the farm to go see Old Faithful before he dies? (I know it sounds trite, but my grandfather actually did so, after my grandmother died.) Terry and Brown would seem to run into problems when one lives in one's automobile, but perhaps there's an out.

-- not a lawyer, but considering law school of this business doesn't go well.
7.22.2005 2:13pm
bld (mail):
Sorry, if this business doesn't go well.
7.22.2005 2:15pm
Greedy Clerk (mail):
I thought Supreme Court nominees recuse themselves from all cases once nominated. I know this is what Souter did. What is Roberts doing? Even if the opinion was written prior to nomination (which it most certainly was), shouldn't he still not be doing anything in the lower courts right now?
7.22.2005 2:19pm
I think that is an absolutely great dissent, and it really makes me that much more confident about what kind of Justice he'll be.
7.22.2005 2:34pm
Jim Rhoads (mail):

I will leave it to others who are more familiar with the specific rules applicable to nominees for a definitive response to your comment, but it seems to me that if decision and supporting opinion is written before the nomination, the timing of the publishing of that decision is not in the control of the dissenting judge, but of the author of the majority opinion.

It may even be that the clerk controls this process, not the judges.

In any case, Robert's opinion in this case, in my view, is extremely well done, and I agree with its conclusions.

I thought the nomination was a good one, and I still do.
7.22.2005 2:38pm
Mark (mail):
I think the majority got this one right, and that Roberts is far too willing to let warrantless searches stand.
7.22.2005 2:44pm
Justice Fuller:

Would you care to explain *why* you think that?
7.22.2005 2:52pm
gab (mail):
So the police can apply common sense to searching a stolen vehicle, but have to abide strictly to the letter of the law and handcuff a teenage french-fry eater?
7.22.2005 3:00pm
Osvaldo Mandias (mail):
I could be wrong, Mr. Gab, but I don't believe Judge Roberts thought that the Constitution _required_ the police to arrest teenagers eating a french fry.

Nor, I imagine, would Judge Roberts had objected if the police in this case had decided to _not_ act with common sense and not search the trunk. The Constitution is the the Constitution and foolishness is foolishness, and the first doesn't proscribe the latter.
7.22.2005 3:08pm
David Berke:
I'm not entirely sure how I feel about Roberts, but that particular dissent seems to be very well crafted. I think that he made the right decision; When a police officer runs into an apparently stolen vehicle driven by someone without a valid license, it is quite reasonable to check the vehicle - trunk included. Safety concerns aside, the instrumentalities of the theft could easily be hidden in the trunk.
7.22.2005 3:20pm
"But sentiments do not decide cases; facts and the law do."

It seems to me that both sides have defensible, common sense arguments about whether there was a fair probability that the trunk contained contraband or evidence of a crime. In other words, both sides have defensible "facts" here (and no one disputes the legal standard). In such a close case, it really is just a question of sentiment.

In that respect, I appreciate Edwards' opinion for pointing to the general policy that drove his decision. As for Roberts' suggestion that common sense tilts only one way here, I find it not entirely candid.
7.22.2005 3:47pm
Splunge (mail):
I guess I'm a bit bewildered by one aspect of this case: if the crime the officers had probable cause to believe had occured was theft of the car, then (it would seem) they had good reason to believe the car was not the property of the driver.

If it's not his property, then how is the 4th Amendment involved? The police were not searching his property but rather that of the owner of the car. Is there some kind of legal presumption that the driver of a car is its owner, or at least its owner's agent, even if the facts at hand (the stolen plates, missing registration) suggest otherwise?

Which brings up a hypothetical: what if the police knew the car was stolen, e.g. because they checked the VIN and, lo, it had been reported snatched? Could they then search the car without the driver's permission, since in this case it's clear the driver is neither the owner nor the owner's agent?
7.22.2005 4:08pm
42USC1983 (mail):
Splunge, you are the [wo]man. I think you spotted a major standing issue. I haven't read the opinion, though, so I can't comment.
7.22.2005 4:12pm

That's a very good question. Generally, a person does not have an REP in a car they have stolen. I don't know if this issue was argued by the government below, though, so it may have been waived.
7.22.2005 4:12pm
The officers had pretty good reason to believe the car was stolen, for example — it was, as it turns out — and if it was, some kind of evidence of who owned the car and who had stolen it would probably be in the trunk.

Huh? Evidence of who owned the car and who had stolen it would probably be - in the trunk? Back there with the spare tire and the jumper cables and the rope and duct tape?

I think I see your point, and would totally agree with looking for such evidence in the glove compartment or probably even map pockets and such, but what kind of "ownership evidence" should a cop reasonably expect to find in the trunk of a car?
7.22.2005 4:13pm
42USC1983 (mail):
Splunge, in a related context: check out United States v. Cunag (CA9), which discusses whether a person has a REP in a hotel room he obtained through false pretenses. Answer: Generally, no.
7.22.2005 4:16pm
Colin Fraizer (mail):
Layman question: if Roberts is confirmed and, say, this case is appealed to the Supreme Court, does he get to vote?

Another: don't justices have some circuit-specific duties/responsibilities? What happens if there is an appeal to a former circuit appeals court judge from his previous court?

(Sorry if these are bogus questions.)
7.22.2005 4:22pm
David Berke:

Evidence of theft. Instrumentalities of theft. Maybe he used a wire hanger, maybe he used a specialty tool. But do I know? No. Do you know? No. Could someone driving around in a stolen car have popped the trunk and thrown his tools in there to avoid further suspicion? Sure. If you're pulled over for suspicion and the cop sees that you have an odd looking tool on the passenger seat, you're obviously in worse shape.

Splunge - I think you make an excellent point with your hypothetical. Let me propose one of my own - if they knew it was stolen, and searched it, what happens if they found something incriminating the owner? (Say, MJ)

My main problem with your theory is that I believe that the constitutionality of a search should be governed by the information available to the officers at the time, not by what subsequently turns up. Otherwise, this grants unfettered discretion to the police to examine vehicles when they think such might be stolen. Those who are innocent will suffer searches needlessly, and without the ability to meaningfully seek recompense. Essentially, this would abrogate the protections offered by the 4th Amendment in this context.
7.22.2005 4:32pm
With regard to the REP question, isn't a defendant afforded automatic standing to challenge unreasonable searches and seizures in crimes of possession? I may be mistaken...
7.22.2005 4:49pm
Robert Schwartz (mail):
I loved the last paragraph. The more I read about this guy, the more I like. Imagine a Justice who does not believe that he is God's vice-regent on earth. Be still my beating heart.
7.22.2005 5:22pm
Bryan DB:
I don't think it matters if the police knew the car was stolen. Let's assume they DID know. If they then searched without probable cause, whose 4th Amendment rights did they violate? The car owner's if I'm thinking correctly. Isn't there a whole line of cases saying that the only person who can challenge the search is the person whose rights have been violated, and that doesn't necessarily include the person against whom the evidence is used? i.e. Break into A's house, violating THEIR rights, but then use the evidence against B, who has no standing to challenge the search. This may go to jurispride's post, as well.
7.22.2005 5:22pm
Mark (mail):
if the crime the officers had probable cause to believe had occured was theft of the car, then (it would seem) they had good reason to believe the car was not the property of the driver.

But they didn't have probable cause to believe the car was stolen. The majority opinion addresses this issue quite clearly:

Turning to the officers’ professed need to search the trunk for evidence of ownership, the district court justified the search on the grounds that “the information available to the officers [did not] establish that [the car] was not stolen.” The lack of evidence indicating that the car was stolen cuts against, rather than supports, a finding of probable cause to search the trunk because the result would authorize officers to search a vehicle anytime it is unregistered, a proposition the government does not
advance. The officers must have probable cause to believe that documentation demonstrating that the driver was not authorized to drive the car would be in the trunk; searching the trunk for documentation establishing or confirming that the driver properly possessed the car would not constitute contraband or evidence of a crime as is required under the probable cause standard. See Acevedo, 500 U.S. at 579-80. But that is exactly what the officers did here.

And so forth--the relevant portion of the opinion begins on page 9 of the link Orin provides.

In general, the majority opinion addresses all of the issues raised in Roberts' dissent which Orin, and others, find so compelling. IN particular, they note that:

our dissenting colleague, although acknowledging the values underlying the Fourth Amendment, see Dissenting Op. at 9, posits the most incriminating interpretation of the circumstances, as though the existence of countervailing probabilities was irrelevant.
7.22.2005 6:09pm
Splunge (mail):
Well, Mark, IANAL, but sure, if the facts are insufficient to give the police probable cause to think the car was stolen, then they cannot logically have given the police reason to think the driver was not the owner or his agent, and so the Fourth Amendment applies, ipso facto.

But I gather from reading the opinion that Roberts disagrees with this conclusion, that is, he believes the facts did give the police probable cause. Even the majority agrees the police had some cause to think the car stolen. What do I think? I tend to think I wasn't there on the scene (and neither was the Court), and I'm not an experienced police officer (and neither are the judges), and the officers turned out to be right (the car was stolen), and so second-guessing their on-the-spot judgment is a pretty intellectually arrogant bit of judicial oversight of the functions of the executive. Roberts seems to concur.

The core distinction in what each side says is not stated outright, but almost seems to be the question of whether and how far Giuliani's "broken window" theory of crime is correct. That is, the majority denies, but Roberts finds plausible, the notion that someone who has taken serious steps to conceal the ownership of the car he's driving can not unreasonably be suspected of doing something naughty with the car, and evidence of the naughtiness -- for example an illegal gun, or a dead body -- might reasonably be found in the car's trunk.

As a citizen, I can see the case either way. No, I surely don't want police authorized to search my car's trunk just because I can't produce my registration. But, on the other hand, perhaps through having watched too many thriller movies in which the bad guys do something terrible (plant the bomb, dispose of the body) using a stolen car with bogus tags (to avoid being stopped by cops on the street, or muddy the trail), I don't find it implausible that if you're using a tool as powerful and useful as a car, on a public road, in conditions in which legitimate users are required to carry and produce proof of license to do so, and the police find out you're doing so fraudulentially -- well, it isn't so unreasonable that they check the tool out thoroughly to, if nothing else, maintain public safety.

No one actually addresses my question of whether, if the car was or could reasonably be suspected of being stolen, the driver would lose the protection of the Fourth Amendment with respect to searches of (what turned out not in fact to be) his property. Maybe that's because it's a dumbass question, I dunno.

Anyway, having read the opinion, and agreeing I could see it either way, I nevertheless like this guy Roberts, as his humility and pedestrian common-guy common-sense character shines through, whereas the majority sound all too much like gods pompously declaiming from Olympus.
7.22.2005 7:44pm
Bryan DB:
No one actually addresses my question of whether, if the car was or could reasonably be suspected of being stolen, the driver would lose the protection of the Fourth Amendment with respect to searches of (what turned out not in fact to be) his property. Maybe that's because it's a dumbass question, I dunno.

As I noted above, I think it matters if the car was stolen. The driver has no reasonable expectation of privacy in the car, so his rights were not violated. Even if *someone's* rights were violated (i.e. the owner's) the driver would not have standing to challenge the search.
7.22.2005 8:00pm
Isn't the evidence going to come in through inevitable discovery after the police make an inventory search of the car once its been impounded?
7.22.2005 9:11pm
Anderson (mail) (www):
My rather lazy conclusion after sitting through Crim Pro was "don't leave anything in your car that you wouldn't want to see photographed/reprinted on the front of tomorrow's paper." So I would have to lean towards Roberts' take.
7.22.2005 9:26pm
Splunge (mail):
Sorry, Bryan DB and possibly others, I didn't mean no one on the VC Comment Circuit had addressed my question but rather that no one on the DC Circuit Court had.
7.22.2005 10:59pm
42USC1983 (mail):
"No one actually addresses my question of whether, if the car was or could reasonably be suspected of being stolen, the driver would lose the protection of the Fourth Amendment with respect to searches of (what turned out not in fact to be) his property."

Splunge, he wouldn't have standing - regardless of whether or not the search was without probable cause. A person can't have a reasonable expectation of privacy in goods to which he doesn't hold title or have a possessory interest. A person does not hold title to or have a possessory interest a stolen car. Thus, no standing. So it doesn't matter, as to the thief, whether the search was reasonable. He can't assert the rights of the owner.

Like I noted earlier, you spotted a major issue. I can't understand why the government didn't argue it (fresh AUSA on the case?), since I've never seen the government miss a standing argument. Hell, even if you have standing, they'll argue that you don't. It's required boilerplate or something. Relish your victory.
7.22.2005 11:28pm
John Jenkins (mail):
I'm going to disagree. The possesor of personal property has good title against all the world save the true owner. He has standing because, at the time, he was the possessor of the vehicle and as the possessor of a vehicle he has a reasonable expectation of privacy.

We don't know how he stole it, but he might even be able to sell it and the purchaser would take good title under U.C.C. § 2-403(1) if he took it under false pretenses. I think he had good enough title to be able to assert 4th Amendment rights.
7.23.2005 12:52am
Jim Rhoads (mail):
With the caveat that I have not practiced criminal law for 35 years and never as a civilian, I see a problem with the standing issue.

As far as the record in the case was concerned, the car was not in fact stolen. The Defendant was not charged with possession of a stolen vehicle or car theft. There apparently was no evidence in the record proving that the defendant was not authorized to drive the car. Absent such evidence, it seems to me he was an authorized driver as far as the case is concerned and had the same right to whatever expectation of privacy the owner might have had had [s]he been driving.

Have I missed something here?
7.23.2005 1:10am
42USC1983 (mail):
Mr. Jenkins, I always enjoy learning something new. If you would, please cite me a case or two to read this weekend. No, I'm not being curt. I would seriously like to read a couple of opinions where the court holds that a thief has an expectation of privacy in stolen goods. I'd prefer Sct. or CTA. Thanks.
7.23.2005 1:14am
Carl Pham (mail):
The possesor of personal property has good title against all the world save the true owner.

Hmmm. So once the guy was cuffed and in the wagon, the cop could have taken possession of the car in his personal capacity, and -- his title now being no less "good against all the world save the true owner" -- exercised a possessor's right to look through his own belongings...including the trunk...or, better yet, as possessor waive Fourth Amendment rights and consent to a search of the trunk by the other cop...?

Or, how about the reverse hypothetical? Suppose I park my Mercedes E class with tinted windows next to a seedy public park and, forgetting to lock the front door, go use the public phone. The police come cruising by and ask a scruffy-looking teenager who's now getting grease all over my nice leather seats, muttering "vroom! vroom!" to himself as he works the gear shift and twists the wheel, whether he's the owner of the car he's sitting in.

"Huh? Sure!" he says, batting off invisible spiders.

"Got your driver's license handy? No? How about the registration? No? Hmm. Can we look in the trunk?"

"Sure! I, uh, lost the keys. But lemme just pop the trunk for you..."

In other words, at this point a reasonable person would have reason to doubt whether this guy is really the car's owner, although no conclusive proof that he is not.

But the cops assume he is, and that he has the owner's right to waive any Fourth Amendment rights, so they look in the trunk and find 60 kilos of cocaine stacked in neat bricks. At that foul moment, alas, I arrive back, and, having finally run the plates, they arrest me.

Can the fact that I had all that coke in the trunk be used to support a charge of possession against me?
7.23.2005 2:34am
John Jenkins (mail):
Okay, I just blew up a longer post, but there are at least two cases (10th Cir &9th Cir) that say you have no REP in stolen personal property. The 10th Cir. case was a car, the 9th Cir. case was a computer hard drive. My only other hypo is that the U.S.A. didn't care about the standing issue and wanted the court to decide the issue actually presented so didn't preserve or argue the standing issue. After that, I will have to fall back on incompetence.

Carl, that's third-party consent and is a separate issue (though I would say no b/c the officer's knew better, however I've seen stranger shit, like a judge ruling that a witness's perjury was not relevant to credibility).
7.23.2005 10:00am
Lester Weil (mail):
If a murder occurs in a living room, is it now inappropriate to search the bedroom?
7.23.2005 12:43pm
Bruce Hayden (mail):
Another take on this, that may be some indicia of Judge Roberts' legal philosophy. Essentially, Roberts was saying that their job is not to second guess the trief of facts, but rather to defer to him, as he was the one hearing the evidence. And that is what it looks like the majority was doing, second guessing the trial judge.

The problem is that the majority wasn't there sitting in court. They don't know how reputable the police involved are. The trial judge may have, as many do, formed opinions about the reputability of different police over time, having seen them on multiple occasions before him. If this is was a cop who was experienced and had been straight with him before, when he said he often found evidence of ownership or of theft in the trunk, then he might be more willing to believe the cop, than if he was a rookie, or the judge had seen him shade the truth before him on previous occasions.

To some extent, the majority opinion seems to be discounting police intuition. But that is how cops operate and survive, by their instincts, and, thus, intuition. And a trial judge, hearing day in day out, a cop say, "in my experience, evidence of X is likely to be found at Y", and then, voila, it was found there, might be likely to say, well, this guy's intuition is often right. But here, the majority is saying, essentially, that they, sitting on appeal, having never seen the witnesses, know better than the cop on the street, using their law abiding, middle class, logic, what is likely to be found in that trunk.
7.23.2005 2:15pm
Bruce Hayden (mail):
Lest you think I am naive, I also believe that cops do sometimes shade the truth, and this precisely where it is most likely to happen. I think a good example of all this was the O.J. case. Bells went off in my head when Furhman (however you spell his name) went over the wall at O.J.'s house to "warn" him that someone had just killed his former (?) wife. And, lo and behold, what did he find after going over the wall? Well, a bunch of very incriminating evidence. Surprise, surprise. But then, the trial court did not exclude the evidence. They deferred to the cops on the street, the guys who had been there. To this day, I think that judge had his eyes wide shut.
7.23.2005 2:20pm
Matthew G.:
I agree that this is a close call, and I don't think the panel majority's holding is unreasonable, but I agree with Judge Roberts' inclination to affirm -- for one reason that he articulates and one that (unless I missed it) he doesn't.

First, there seems to be one big logical gaffe in the majority's reasoning. The majority appears to reason thus: There are three possible reasons why a car may be sporting the wrong tags, and two of them suggest authorized use of the vehicle, so there was no probable cause to search the trunk. This conclusion appears to rest on the assumption that the one incriminating explanation is outweighed by the two innocuous explanations simply because two is greater than one.

Roberts notes that this isn't so. But as far as I can tell, he doesn't mention the main reason to defer to the district court: the district judge listened to the officers' testimony and clearly credited their statement that the presence of stolen tags makes the incriminating explanation quite likely, in their experience.

In criminal procedure cases that are less close on the facts than this one, I am a strong believer in aggressive appellate review. But cases such as this, where there is little or no disagreement on the law, and the decision turns on the credibility of a party's justification, I believe there should be substantial deference to trial judges.

I think a deferential appellate philosophy serves the interests of justice for both the government and defendants (after all, there are many cases in which circuits reverse district grants of suppression motions, and in gun possession cases as this, essentially guarantee conviction). If district judges are to be more than magistrates, and district court more than a formality before the trial really happens at the appellate level, circuit judges ought to be content to rule on the law while trusting their Article III brethren in the trenches to make the difficult credibility determinations that are at the heart of most suppression motions.

So I agree with Judge Roberts' judgment, but I wonder whether his lack of a criminal law background caused him to overlook a more fundamental reason for affirmance here.
7.24.2005 12:28am
Jim Rhoads (mail):

Although I think Judge Roberts is a fine selection for the Supreme Court, not only does he lack criminal law experience, but he also lacks trial experience and trial judge experience.

Trial lawyers and trial judges instinctively understand that credibility decisions should be left to trial courts. Second guessing such findings at the appellate level should always be discouraged.

IMO, a glaring weakness on all levels of state and federal appellate benches is the lack of judges with extensive trial experience. I do not believe any of the Supreme Court Justices have much experience trying cases.

Can anyone remember the last Supreme Court Justice who was an experienced trial lawyer or trial judge?
7.24.2005 1:56am
Mark (mail):
Can anyone remember the last Supreme Court Justice who was an experienced trial lawyer or trial judge?

Well, Lewis Powell had been an attorney in private practice for most of his life when Nixon appointed him to the Court. John Paul Stevens had a lengthy career in antitrust law before his appointment to the 7th Circuit in 1970. Going back further, Earl Warren was in the DA's office of Alameda County in California for 18 years.
7.24.2005 2:18am
Jim Rhoads (mail):

I will give you Earl Warren. Powell, however was primarily a corporate attorney (transactional and deal maker) as I recall, not a litigator, and antitrust practice typically has not been heavy on trials.

I understand Sutor was briefly a trial judge and an attorney general, but not noted as a trial attorney.

Justice Jackson had a reputation for having superior courtroom skills, which showed themselves in the Nuremberg Trials after WWII.
7.24.2005 3:32pm
Guest Observer (mail):
Jim Rhoads critiques Roberts: "Second guessing such findings at the appellate level should always be discouraged."

I'm not sure I followed the whole legal trail, but it seems you're confused. Isn't Roberts acting consistent, and not contradictory to your view? He's saying that the lower court judge should not be second-guessed--that decision should stand (even if another decision may well have been reasonable); and that it is the majority that was second-guessing the decision.
7.24.2005 5:30pm
Mark (mail):

Thanks for noting the details about Powell--the sources I checked weren't very specific about his practice.

In addition to Warren and Jackson, I believe that Harlan II had a lot of litigation experience, and of course so did Thurgood Marshall (of a very particular nature, of course).
7.24.2005 6:30pm
Bruce Hayden (mail):
Rhoads and Guest,

Yes, as I read the case, Judge Roberts was the one in favor of deferring to the trial judge as the finder of facts, while the majority, in essence, second guessed him in this capacity.
7.24.2005 10:48pm
Jim Rhoads (mail):

I was not critiquing Judge Roberts' result. Indeed that result did support the trial court's findings. His reasoning, however, expressly supported the police officer; only implicitly did it support the trial judge.

I believe he could have simply upheld the trial court's resolution of the issue, expressly stating that it should only be reversed if it was an abuse of discretion and that that finding was not such an abuse.

The inherent logic of the policmen's testimony could have been in support of that express holding.
7.25.2005 1:01am