135. The deterrence assumptions

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.

Comments

[S.cotus]

You provide a nice introduction, but your promise of providing easy answers awaits another post.

Since you admit that your first assumption is probably weak (and fact-sensitive), it will suffice to say that it is an undetermined factual matter as to whether officers know about the suppression of illegally or corruptly obtained evidence. In my experience, when evidence is completely suppressed, they do find out. Where only part of it is suppressed, it is partially suppressed, the results may vary. But, your conclusions would be stronger if you gave some proof of this.

Secondly, you cite a high reversal rate as a reason that corrupt or reckless officers are not deterred from illegally obtaining evidence. You argue that they can’t have too much confidence in the law, if there are constant reversals from appellate courts. However, 1) you don’t state the grounds on which the appellate courts are reversing (for instance, if they are reversing by holding that a taint is dissipate, then this is handing no accolades to the officer, but rather making what is essentially a judgment call); and 2) You don’t answer the more axiomatic objection, that the “law” is whatever the highest court to review the case says it is. An officer operating in good faith who nevertheless illegally (but not corruptly) collects evidence thought he knew what the law was, but there was disagreement, and therefore the matter needed to be resolved by the courts.

But, there is nothing wrong with this. A defendant may believe that his behavior is completely legal. He may, like many officers, have an elaborate means of stating that “the ends justify the means.” The officer may disagree with him, arrest him. and collect evidence. Assuming that the officer inflicts no punishment of his own, the ultimate question of what is “the law” will be determined by the highest court (and perhaps the governor via a pardon), and if the defendant is ultimately convicted, other individuals will be deterred from that behavior.

So, you are, to some extent treating the citizenry worse than the police. You expect them to be deterred by final adjudications by courts, but somehow the officers are not so deterred.

(I know we like to tell non-lawyers that judges don’t make law, but we only say this when we lose. When we win, we say that they judges applied the law correctly. The public always buys this line. I imagine that lawyers in Las Vegas the contribute to judges say that the judges “applied the law correctly.”)