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Friday Roundup

Work habits. A couple of weeks back, I commented that judge's work habits up here can vary, with some being "morning persons" and others, not so much. Let's leave it at that. But this disciplinary decision indicates that our sister state of Pennsylvania takes a bit more jaundiced view of those things, as Maryesther S. Merlo, the magisterial district judge of Lehigh County, found out. (Despite the fancy title, the magisterial district courts are at the bottom rung of the Pennsylvania judicial system.) I'm guessing that there were some hard feelings after she got re-elected to a second term, because somebody dropped a dime on her right after that: within 10 months she was looking at a seven-count complaint from the Court of Judicial Discipline (and if that name doesn't find its way into a BDSM novel, I'll be amazed), all stemming from Merlo's problems with -- ahem -- time management. (One of the rules requires the judge to "devote the time necessary for the prompt and proper disposition of the business of their office." There's a concept.) Merlo's "chronic absenteeism and habitual lateness in appearing for court" was demonstrated not only by her not showing up at all on 30% of the workdays in the last two years of her first term, but by police officers' testifying that they made it a practice to call her courtroom to make sure she was there that day before bothing to respond to a subpoena.

What probably sealed the deal, though, was that Merlo also had jurisdiction over minor juvenile matters. The irony was not lost on the court:

It is beyond hypocritical for a judge who repeatedly fails to appear, or consistently appears late, for scheduled court proceedings to lecture and impose sanctions upon a juvenile who is appearing before the judge due to truancy issues.

Pressing the Easy button. The nattering nabobs of negativism, as Spiro Agnew lovingly called them, are all atwitter (note to self: check out whether since we now have Twitter, we can still use the word atwitter) about Justice Scalia's latest pronouncement on his constitutional interpretive method. At a speech before the American Enterprise Institute the other day, he explained that most issues are easy to resolve:

"The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state."

Much of the rejoinder was focused on the particulars. Heterosexual sodomy was criminal, too. An originalist view like Scalia's would permit racial segregation and allow bans on interracial marriage. And Scalia has been eager to embrace concepts like commercial speech, despite the fact that the Framers clearly did not intend for the First Amendment to apply to it.

But that's sort of beside the point. Of course many constitutional issues are easy for Scalia, because he's Scalia. Even the more cynical among us still cling to this fantasy about the justices acting as a group of rabbis with the Torah, parsing its words to derive its true meaning. They're not. Every justice comes with an ideological viewpoint, and that viewpoint informs their decision-making. Thomas does. Roberts does. So does Ginsburg and Kagan.

And so does Scalia. In his dissenting opinion in Lawrence v. Texas, which struck down gay sodomy laws, he spoke of the majority having succumbed to the "homosexual agenda. . . directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct," and that Americans had the right to protect "themselves and their families from a lifestyle that they believe to be immoral and destructive." Well, if you believe that the lifestyle is "immoral and destructive," it's a lot easier to uphold a law which is consistent with that belief.

That's not to pick on Scalia; the view expressed by some liberal justices that capital punishment is unconstitutional was the product of their core beliefs, not a careful analysis of the Constitution. But Scalia talks a lot about it, and that's not good. Our present government has been rendered dysfunctional by partisanship; people talk about the president's approval rating being below 50%, but the percentage of the public which approves of Congress is in the low teens, or less than the percentage which believes in UFO's. The Supreme Court has mostly remained above the fray; it's generally been among the most favorably-regarded institutions in the country. But the decisions last year, especially the one on the health care reform act, took a lot of the luster off of that; polls showed that 3/4ths of the public expected that decision to be made on the basis of politics, rather than law. And it doesn't help when you've got a justice going around telling everybody that he has an "easy" time making decisions about constitutional law, and thereby implying that anybody that didn't come to the same decision he did came to the wrong one.

Ooh-ooh, that smell. I had a motion to suppress hearing in drug case a number of years back where the cops claimed that they decided to search my client's car based on the smell of marijuana. It was a pound's worth of the demon weed, but it was in a ziploc bag, and I questioned the olfactory powers of the officer, so I had him open the evidence envelope -- also a sealed bag -- and take out the bag it contained.

At which point, I and the other people in the courtroom got together to make this video:


Now, I knew that the case law held that the odor of marijuana was indeed sufficient to give probable cause to search a car, but I was also familiar with cases that held that an officer must show he had some expertise in detecting the odor. After that experience, I was at a loss to understand why. I mean, within seconds after the cop opened that bag, I was transported so far back into my college days that I almost registered for the fall semester. How could you not know what it was?

Well, there are experts and there are experts, and if you want to find an expert on detecting marijuana odors, as this post from Legal Blogwatch tells us, the guy you want to call is Richard L. Doty. Wikipedia informs us that he is "a researcher in the field of olfactory functioning and dysfunction (anosmia)" and the director of the University of Pennsylvania's Smell and Taste Center in Philadelphia. (Boy, if that isn't a conversation-stopper at a cocktail party. "And where do you work?") His testimony recently won a case in federal court; the cops had claimed that they smelled a strong odor of pot inside a suspect's car, and their search discovered ten grams of the stuff inside a mason jar. Doty testified that the mason jar wouldn't have allowed enough of an odor to get out in order for an officer to smell it.

Bet you he had fun preparing for his testimony. Hey, maybe he has a video.


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