How to win search cases
I got an email from a young lawyer down in Southern Ohio the other day, asking me if I'd take a look at a brief she'd written on a suppression motion. It was about ten pages long, written with the fervor that only a young criminal lawyer can bring to something like that. You have to be a little careful with motions to suppress; sometimes, if you say too much, you're just telling the cops what they need to lie about. But this was pretty straight forward. There weren't any real Most of it was caught on the cops' video-cam, and there really weren't any factual disputes. And the search was way, way over the top. The best part was when the cops finally got Rover, the Drug-Sniffing Dog, to the scene, and had him walk around the car. He didn't alert, so what did they do? The opened the car doors and let him sniff around inside. I've often written that the Cleveland cops have about as much understanding of the rudiments of the Fourth Amendment as they do of the intricate details of Hammurabi's Code, but these guys make the Cleveland cops look like James Madison.
There was one substantive issue, a minor one, that she'd missed, and I also suggested some stylistic changes. A couple of days later, I got a sweet letter from her, thanking me profusely, and telling me that she hoped this "incredibly conservative judge will do the right thing."
Actually, that's a bit easier than it might sound.
One of the most important skills that a lawyer needs to develop is how to deal with people, and a lot of the people you'll deal with are conservative judges. We could get into the reasons for it, which run the gamut from the fact that they're elected to the nature of the position to the nature of law and all kinds of other stuff, but it's a fact. I ran down the names of the Cuyahoga County judges just now, and I'd put more than a third of them in the solidly conservative column. And that's a county that's heavily Democratic. You get away from the big city, and you can find yourself up in front of a judge who makes Scalia look like William Brennan. And here you're going to explain to him exactly why he should throw out the 30 grams of crack the cops found in his car, and let him walk out of the courtroom a free man.
Here's what you need to know about conservative judges. Every third beat in every conservative's heart is libertarian. I'm not talking about the modern "let's abolish the Fed, the IRS, and all the drug laws" Libertarian Party, I'm talking about classic "government is best which governs least, provide for the national defense and leave me the hell alone" libertarianism. When conservatives talk about how the Founding Fathers wouldn't recognize this country today, they're absolutely right. (Although I think Thomas Jefferson would be far less upset with Social Security than with the fact that he needed to get a building permit and zoning board approval for any changes he wanted to make at Monticello.) If there was one thing everybody back then was pretty much agreed on, it was the danger of a powerful central government. So strong was that fear that we didn't let the government have a peacetime standing army of any consequence for the first 155 years of the country's history. "Thanks, but we'll keep the guns, if you don't mind."
So that's what you capitalize on. The argument before a conservative judge shouldn't be about what your client's rights are, it should be about what the government should be allowed to do. (And that's what you call it -- the government. Not "the State." Not "the prosecution." Not "the police." The government.)
Personalize it, too. Yeah, I know that the chances of the judge getting pulled over and rousted by the cops is next to nil, unless he happens to be driving around with some of his Negro friends -- and what's worse, he knows that, too -- but take the shot if you can. Everybody watching the oral argument in U.S. v. Davis, the case two years ago on whether the police placing a GPS device on your car constituted a search, knew it was Game Over when five minutes into the government's argument, Chief Justice Roberts asked,
You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month? You think you're entitled to do that under your theory?
Now, here's another tip. Handle a moderate or liberal judge the same way. Yeah, I know we liberals like Big Government when it comes in the form of social programs, but it's a different story when the guy from the government is wearing a gun. Every fourth or fifth beat in our hearts is classic libertarian, too.
Fear of government is as American as apple pie. Make it work for you.