Tuesday, March 26, 2013
What do you make of a story like the one published last week in the Sun, about a city police sergeant on trial for tape recording a judge during an argument over a search warrant?
The police wanted to search a car in which the victim of an attempted murder was found, asking Judge Joan Gordon to sign a search warrant. She didn't think she should be bothered about it on a Saturday night and argued with a police supervisor, who recorded their conversation without her knowing about it.
A technical violation of the law, yes, but a pretty trivial instance to put before a criminal jury, it seems to me. What are prosecutors trying to prove, exactly, beyond placating an offended judiciary?
I once had a child sexual abuse case in which the mother of the victim recorded an incriminating conversation with the abuser. I couldn't use the recording because the law prohibited the taping and any use of it, to the detriment of my case. But I did not press criminal charges against the mother. The police sergeant who did the taping in this case should have known better, and an administrative consequence is appropriate. But a criminal trial? Sheeze...
The problem between police officers and judges over warrants has been going on a long time and should have been resolved ages ago. That it continues and has come to a criminal trial should shame both the judiciary and the police department, but mostly, in my view, the judiciary.
Baltimore city judges are supposed to take turns being "on duty" for one week at a time. Since there are about 60 of them, this means they should have this duty less frequently than once a year. The duty judge is supposed to be available for such after-hour needs as the review of search warrants.
But judges and police have fussed about this ever since I can remember. Judges feel that police bother them after hours for non-emergencies. It's true that many, if not the majority, of search warrants are the result of investigations that take a period of time to develop, and are not emergencies. However, police officers work shifts around the clock, so it's not possible to always prepare and present warrants during the judge's work day. Since officers have to swear to the truth of what they say before the judge, and may need to answer questions, they can't just send a secretary in with paperwork for the judges to sign.
To minimize their own inconvenience, individual judges often make their own rules for reviewing warrants. Many, for example, refuse to sign any "narcotics" warrants after hours, which they regard as routine. My introduction to this came when police called me for help when a duty judge refused to review a narcotics warrant even though police were actively guarding a house from entry in order to keep a suspected stash of drugs from disappearing. We had to search for another judge willing to do the job of the duty judge.
To me the solution is simple: police officers should do their best to present their warrants during reasonable hours, while judges should resign themselves to the fact that for one week out of every 60 they will be reviewing warrants after they leave the courthouse. They should just go home and be mentally prepared for the police to come over, not whining about officers interrupting them while they are out at dinner or the mall. The judiciary and police department can easily establish a joint review panel to handle complaints about abuses by police officers and by judges. The leadership for that should come from the judges, who hold the power.
I once tried to show some leadership. When I supervised the Central Booking Division of the State's Attorney's Office, I volunteered my division, which worked around the clock, to evaluate whether the police truly faced an emergency situation before waking up a judge in the middle of the night. This meant that I, personally, would be woken up much more frequently than any one judge when my staff called to consult me. And that I, personally, would bear the brunt of judicial anger if they disagreed with my assessment. Yet I volunteered.
The response I got from the District Court judges--the ones who work part-time--was that they would be happy to take me up on my offer, but that they also wanted me to read and review the warrants for probable cause. It wasn't enough that I would prevent their being woken up for non-emergencies. I had to do their job for them, to determine if probable cause existed before they could be disturbed.
I declined their greedy request. And these half-dozen years later, we have a poorly-regarded judge, Joan Gordon, arguing with a police sergeant over whether a weekend warrant could wait until Monday. We have the sergeant, worried about what Judge Gordon might do to him, turning on his recorder so he could prove his version of events if needed, and now facing a criminal conviction and the loss of "everything" for doing so.
And we have a small glimpse into the lazy, egotistical, dysfunctional world of key players in criminal justice system.