The Legal Times reported Tuesday on Chief Justice John Roberts Jr.'s seemingly whimsical experiment in opinion writing in the style of a hard-boiled detective novel. Dissenting from the denial of review in Pennsylvania v. Dunlap, Roberts painted a noir setting in which police officer Sean Devlin, working in a Philadelphia neighborhood that is as "tough as a three-dollar steak," suspects defendant Nathan Dunlap of selling drugs after viewing a transaction in which Dunlap exchanges small packages for cash. "Devlin knew the guy wasn't buying bus tokens," Roberts wrote in his new literary style. Sure enough, Devlin had sold three bags of crack, and he was arrested.
It made for unusually riveting reading, but not everyone was entertained, it turns out. Blog commentary here and here includes some criticism of Roberts' tone as dismissive of the defendant and the issue he raised. And, "Count us as unmoved," said the folks at the Text and History blog. The Pennsylvania Supreme Court, after all, had ruled that seeing the "single isolated transaction" without specifically seeing drugs was not enough "probable cause" to justify the arrest.
How did defendant Dunlap's own lawyers react to Roberts' literary outing? Assistant Philadelphia defender Mark Cichowicz told Legal Times that he, like others, found it to be "an interesting read" that was "probably meant to appeal to a broader audience." But Cichowicz did object to Roberts' "implication that, 'what else could it be'" but a drug transaction. "He makes a bit light of the possibility that it could have been something else." In the part of Philadelphia where Dunlap was arrested, Cichowicz said, "people do in fact buy bus tokens and cigarettes and other things" that are legal on the street.
Cichowicz cites a Rand Institute report that tracked a large number of police stops of African-Americans that found only 10 percent of those stops resulted in finding contraband. "A lot of people are being frisked and the suspicions are not borne out," says Cichowicz. "It's not a simple matter of what else could it be. A lot of times, the question is, is it anything?" It will be interesting to see if Roberts continues his literary experimentation in the wake of what seem to be mixed reviews thus far.
First reported in The BLT: The Blog of Legal Times
