Judge Baer, Eighty Pounds of Drugs, and an Independent Judiciary

Judge Baer is the New York federal judge who is catching a lot of flak right now for having thrown out the police seizure of eighty pounds of coke and heroin for lack of probable cause. His rationale was that the defendant's actions in fleeing from the police were not sufficient reason for the police to stop and search her--because in New York's Washington Heights, reasonable and law-abiding citizens flee from the police.

Courageous President Clinton, who appointed Judge Baer, is now engaging in an unprecedented act of Presidential posturing: he is asking the Judge to resign unless he reverses his own decision. Senator Dole is calling for Judge Baer's impeachment (although judges can only be impeached for crimes, not bad opinions). The President and his rival are so busy engaging in damage control or popularity contests that everyone is ignoring the harm this sad mess is doing to the independence of the judiciary.

About five years ago, I tried a case before Judge Baer, when he was still on the New York state bench. At the time, I thought he was a little quirky but also very intelligent and fair. I won on some issues and lost on others, but on each point Judge Baer had thought things through and reached the right result. I would need to know a lot more about the Washington Heights case before deciding if I would have come out the same way, but here is some food for thought.

As a middle class white youth in New York, 25 years ago, I was the subject of illegal searches and police perjury, and I witnessed unprovoked police violence. At that age, I would have avoided calling the police for almost any reason, for fear of what they might do to me. I can only imagine what the lives of black and Hispanic people are like in this respect. In the last fifteen years, beside profound, deep-rooted and recurrent police corruption at all levels, we have had numerous incidents of unarmed minority suspects shot, beaten to death or strangled by arresting officers. The Bill of Rights is a stop sign, which tells the police that if they behave a certain way they will suffer the consequences. Since human beings are imperfect and justice cannot be surgical, you must always make a choice between allowing the oppression of some of the innocent and condoning the freedom of some of the guilty. Civil libertarians plainly say that it is better for ten guilty people to go free than for one innocent to go to prison. The law and order types, who appear to me to be very hypocritical, are almost never heard to say that then oppression of the innocent is acceptable. Instead, they loudly trumpet that the innocent are never hurt--something I know to be a lie.

Judge Baer's decision was a loud, clear signal to the police that certain behavior is unacceptable under the Constitution. It may have been the wrong case but it was certainly the right signal. I remember reading a New York case in law school in which a policeman had testified that a marijuana cigarette fell out of the defendant's pocket as he walked by. The judge, in convicting the defendant, complained that it was hard to disbelieve an arresting officer in any one case but that the number of "dropsy" cases before him was statistically improbable. At age 15, a police officer once ordered me to empty my pockets when I was doing nothing more suspicious than walking down the street toward my home. Had I been carrying anything, I am certain I would have become one of those "dropsy" cases. Everyone knows that the police lie; on NYPD Blue, in many ways a gritty and realistic view of police work, otherwise honorable officers have discussions about "whether" the cocaine was in the door pocket or in plain view on the suspect's carseat.

It is reprehensible that Judge Baer's decision is viewed only in light of the eighty pounds of pot (which is off the street in any event) and without reference to the criminal way the police treat the citizenry of New York. Those law and order proponents shrieking the loudest are displaying a huge double standard which makes their conduct all the more detestable. Change the scene from Washington Heights to Montana, and substitute an NRA poster-child like Randy Weaver for a Hispanic city-dweller, and you will see what I mean. The same people howling for Judge Baer's blood would be telling us that, after Waco and Ruby Ridge, its perfectly sane behavior for an armed but law-abiding citizen to run from the police. The only thing worse than being against constitutional rights is desiring them only for the people you favor. What's good for Randy Weaver is good for Carmen Perez as well.

Don't believe me that our politicians are exhibiting a huge double standard? Let me remind you that one of the first acts of the Contract Republicans after assuming power was to pass a bill expanding the circumstances under which illegally obtained evidence could be introduced in court. There was an exception: evidence illegally seized by the Bureau of Alcohol, Tobacco and Firearms--NRA's bete noir--was still required to be excluded by the courts. Rights for gun owners, but none for minorities.

Judge Baer was doing what judges are supposed to do: evaluate the evidence and make a decision without reference to polls, public reaction or other popularity contests. President Clinton is a coward. He is so fearful of not being reelected this year that he has become a political weathervane. He has repeatedly failed to protect employees or appointees of his-- Jocelyn Elders is another example--acting within the discretion granted by their jobs. When he signed off on the Communications Decency Act, he proved he would trade away the freedom of speech for political popularity. His threats to Judge Baer show that the independence of the judiciary means nothing to him either.

Immediately after I originally posted this, Judge Baer reversed himself and admitted the evidence. This is an unfortunate result for judicial independence: even if he would have reached this result in steely, determined solitude, based on new evidence, he cannot avoid the appearance of having given in to political pressure. He would have done better to stick to his guns or to recuse himself, though the latter action would itself have compromised judicial independence to some extent.