On What Judges Should Not Say About the Police
Files
Description
On January 22, 1996 in an otherwise obscure drug case, U.S. v. Bayless, Judge Harold Baer, Jr. threw out evidence consisting of an enormous quantity of drugs as well as Bayless' confession. Enforcing the exclusionary rule under the Fourth Amendment, Judge Baer held that the police had not had a ‘reasonable suspicion’ that would justify stopping Bayless' car and questioning her. The decision prompted an unprecedented storm of criticism. Newt Gingrich and other Republican leaders called on the President to ask for Baer's resignation, and members of the bar and bench rallied to the defense of the independence of the judiciary. Mayor Giuliani and former Police Commissioner Bratton, as well as former Commissioner Raymond Kelly, had rushed into print immediately after the first decision to denounce it, even before Newt Gingrich got on the bandwagon. Finally, after weeks of controversy, Judge Baer reversed himself and let the evidence in on April 1, 1996 (is there some cynical joke in the choice of the day?). The question is: why was the January decision the subject of such controversy and why in 1996? The exclusionary rule, which after all is now some eighty years old in the federal system, has long been a whipping-post for politicians sounding the alarm on crime and denouncing the courts for coddling suspects. Yet, as Bayless' attorney said, ‘Never before have the President of the United States, the Speaker of the House, 140 members of Congress and a Presidential candidate sat in on a case and said that a Federal judge should be impeached or resign’. To answer the question, I surveyed news reports in New York City surrounding Baer's decision, as well as another decision about the exclusionary rule a few days later, by state judge David Friedman, that had an outcome both the same and curiously different. I have used news reports, for the most part, rather than legal sources, because I am concentrating more on the public reaction than on the merits of the legal dispute about whether Baer's decision was justified. It would be easy to claim that the attack on the initial Bayless decision was just one more sign of the triumph of a long trend toward reversing ‘formalistic’ protections for defendants. To be sure there were attacks on other judges who made decisions that favored defendants. And it is true that the furor over Baer's decision coincided with the publication of the book Guilty: The Collapse of Criminal Justice, by New York Justice Harold Rothwax, who castigated just such ‘rigid’ protections as the exclusionary rule. I do not disagree with the claim; I think that the criticism of Judge Baer was part of a trend. But it is important to see, in a fine-grained way, just how that trend is taking hold. An examination of the argument, taken in the context of other contemporaneous news about law enforcement, points toward the conclusion that the demonization of Judge Baer was being used to turn aside and quiet a counter-discourse, which, in criticizing the police for violence, corruption and prevarication, might suggest that protection for suspects is important. The implied dialogue between criticism of the judiciary for coddling criminals on the one hand and criticism of law-enforcement for violating rights on the other could be read in the news even during the weeks that Judge Baer was under the most intense attack. On February 11, police in Queens pulled Lebert Folkes, an unarmed black man, out of a car, based on a report that the car was stolen. During the ensuing altercation, the police shot and wounded Folkes. It later turned out that the stolen car report was false; the car had been reported returned, but the police failed to correct the report in their computers. The following day, the police department apologized to. On March 9, a state judge in New Jersey excluded evidence seized by the state police in 19 drug cases on the ground that the police had ‘singled out black drivers’ for investigation. And the next day, a New York City police officer went to trial charged with recklessly shooting a black plainclothes policeman four times in the back when he mistook the black officer for a robber. Other stories might be drawn from the same period to the same purpose—but the interesting thing about them is that no one drew any systematic conclusion from them; although their implications are not exactly obscure, they were treated as just so many interesting news stories. So far as my research shows, not one of the stories, nor all of them taken together, were used by any writer, either in a news or editorial capacity, to explain judicial hesitation about the reliability of law-enforcement determinations, much less in defense of Judge Baer's decision. I suggest that the reason is that opinion leaders, police and politicians as well as some journalists, were resisting the limits on state power that was implied by a vigorous criticism of police abuse and by the exercise of the exclusionary rule itself; they were avoiding the implications of the criticism and of the practical sources of the exclusionary rule itself.
Source Publication
States, Citizens, and Questions of Significance: Tenth Round Table on Law and Semiotics
Source Editors/Authors
John Brigham, Roberta Kevelson
Publication Date
1997
Recommended Citation
Chevigny, Paul G., "On What Judges Should Not Say About the Police" (1997). Faculty Chapters. 1140.
https://gretchen.law.nyu.edu/fac-chapt/1140
