This is a personal reflection, something that this blog does not see much of. I am a reporter of what the courts do on search and seizure cases, and I’ve even criticized decisions that held, what I thought wrongly, that a search was bad. I try to be an objective observer, but, as this blog approaches its fourth birthday, anybody who has been here more than a few times has to know that I favor protecting civil liberties, except where the government’s interest is objectively real and not merely hypothetical.
New Year’s Day is just turning a page in a calendar to some of us. As a criminal defense lawyer, I have always found myself always looking ahead on the calendar, and New Year’s Day becomes just another work day. Being an emptynester, I worked all day Christmas Eve and Christmas Day on a cert petition that was shipped December 27th. My associate and I have a four to six week trial starting February 19th. I had a four and a three day trial in December. After we agree to take a case, our lives are scheduled for us. I confess that I’m a workaholic, but I take my vacations when others do not. [As a friend, a retired public defender, once said: “All work and no play makes John a dead lawyer,” which my late mother made into a needlepoint hanging in my home office. Thank you, Alison, for trying to keep me grounded and sane.]
What was 2006? It was the year of Hudson v. Michigan, 126 S.Ct. 2159 (June 15, 2006), the case that emasculated a case I argued and won as a sole practitioner, Wilson v. Arkansas, 514 U.S. 927 (1995), holding that the knock-and-announce rule was constitutionally mandated, by now holding that the exclusionary does not apply to violations of the rule. When I briefed Wilson, I had this fear in the back of my mind, and I was ready for it at oral argument. I imagined Justice Scalia asking during oral argument about whether inevitable discovery would apply. I even anticipated that questions would arise as to whether the exclusionary rule should apply. Thankfully, it never came up. But, I had the confidence during oral argument that they could not ask a question that I was not ready for. After all, I had spent twenty years getting ready for that oral argument.
Last Term, the Supreme Court decided four Fourth Amendment cases. Government 3, citizens 1. When a cert grant occurs in a Fourth Amendment case, I reflexibly cringe. Odds are that this is not going to be good. I used to write amicus briefs for NACDL on Fourth Amendment issues, and the citizens lost every one of them. Am I bad luck? Term before last, there was one Fourth Amendment case. I sat that one out.
I’ve gotten cert granted in two Fourth Amendment cases. The first was Arkansas v. Sanders, 442 U.S. 753 (1979), when I was a state prosecutor. The case came from our office. The Arkansas AG did not think it was cert worthy, but I did. I had to have them sign the brief. Once cert was granted, that was the last I saw of that case. I’m not even going to tell you about the one pending there now because talking about it would insure cert would be denied. No matter that it is a good issue–one never knows what the Supreme Court will take.
About once a year I try to get to the Court to watch the oral arguments in Fourth Amendment cases. With the argument calendar online, one can try to plan a day. Of all the arguments I’ve seen, there have been good and bad. In one case, the attorney arguing for the state was a hired gun of the “Supreme Court Bar,” and it was obvious he knew the case, but he did not know the Fourth Amendment in the larger sense of how it fits into the fabric of criminal justice. Watching him fumble easy questions was painful, and I was rooting for the other side. That was before 1995, and I knew that I could have argued that case better than he did with about four hours notice.
Hey, I’m a hired gun too. Clients ask whether I will take their case, giving me flashbacks to Perry Mason where he had to be convinced the client was innocent to “accept the retainer” as lawyers used to say, and still say in the U.K. I’ll be blunt: If you can afford my fee, yes, I will represent you. (In that sense, “retainer” means “agreement to represent” and not the money to be paid.)
“Sir, what kind of a woman do you take me for?”
“We’ve already established what you are, ma’am. Now we’re just haggling over the price.”
–George Bernard Shaw
I can’t remake the facts, but I might be able to control the damage or even win. None of us has the luxury of representing only the innocent or prosecutors prosecuting only the guilty. We lose at trial. It is part of the job.
For nearly four years, I’ve gotten up before six and spent virtually every morning, except when in trial, summarizing the cases for posting on this website. Some days it takes over two hours. One case last week took an hour. According to the statistics of this website, the readership spikes between 8-9 am ET. So, work permitting, I try to get everything up before 8:30 am ET. The number of search and seizure cases is actually increasing (U.S. District Court cases are up 130% over last year), so it takes longer.
And what do I have to show for it? I already was a putative Fourth Amendment expert going in. Nevertheless, this daily exercise has enabled me to see patterns and depth that I had never appreciated before. But at what cost? It extends my work day up to two hours. On Thursday, I left work at 6 p.m., and I was tired.
“Of course you’re tired, you moron. You had an eleven hour work day. You’re not as young as you think you are.”
–Me to me, Thursday
I need to take § 34:7 of my ethics book on lawyer burnout to heart. I’m not suffering burnout, but there is wear and tear. I still feel like a kid when I get my brain working on an interesting legal issue. As stated in my ethics book, § 1:1 n. 34, under our common law system lawyers make law, not judges. Without a lawyer making an a well crafted argument to a trial court, an appeals court never gets to see the issue.
I am proud to be a criminal defense lawyer and First Vice-President of the National Association of Criminal Defense Lawyers. And, I don’t apologize for being a former prosecutor because that experience formed my view of the law. And I am even more proud to see myself as a “compleat lawyer” to always see the larger questions of criminal justice first and where the case at hand fits or doesn’t fit. None of this means a damn thing to my clients, and we cannot explain it to them without talking over their head, but it matters to me, and it does to other lawyers.
On a final note, ThatLawyerDude named this website one of his favorites, and he visits everyday. Several other websites link to it. Every prosecutor and defense lawyer should visit at least twice a week. Indeed, I can see by the source coding information from visitors [nothing on the Internets is all that private, folks] that a certain big city prosecutor’s office visits every day. I speculate that the content here becomes a part of an internal e-mail or newsletter on search and seizure law developments. If prosecutors are going there everyday, defense lawyers should, too. Telling the criminal bar here is like the tree falling in the woods. But, since this website changed to a blog format, the number of visitors tripled from August to December.
If I can get a few lawyers to better understand the fabric of search and seizure law and they become better lawyers and better serve justice, then this blog has been successful. Thank you for your readership.
Oh yeah, no cases today.
