Stroock & Stroock's Joel Cohen
Katherine A. Helm
Judges come daily to the bench with the same baggage or maybe the same idiosyncratic lenses as the rest of us.
William James elegantly referred to it as being under "the total push and presence of the cosmos." But even better was Supreme Court Justice Benjamin Cardozo's wondrous phraseology in "The Nature of the Judicial Process:" "There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives us coherence and direction to thought and action. Justices cannot escape the current any more than other mortals... . In this mental background every problem finds its setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own." A judge may be down on religion or guilt ridden in favor of the underclass, or may unalterably believe that God, if there is a God, and government should only help those who help themselves. A judge may see legislative fiat as buffoonery and presidents as political whores who will do anything for a victory.
Indeed, a president or lesser executive appoints judges, or an electorate elects them, precisely because of those subjective experiences -- "their own eyes." Judges operate from their own perspectives. A judge cannot be, any more than anyone else can be, defined or encapsulated by their ethnicity, gender, scholarly, political or legal backgrounds, nor by their answers to litmus tests on critical social or political issues by the opposition du jour during confirmation hearings.
It is a small wonder that, in the quotidian workings of the courts and in the thousands of rulings that any one judge makes every year, a judge down the hall or in a different court may come at the real stuff of the judicial process from a completely different perspective, and with a potentially starkly different result. Can we, either as members of the court or as everyday citizens who come before the court, require that the judge undress herself from her robes to tell us what she viscerally thinks because of her life experiences that so inevitably and critically impact her rulings? Certainly, and for some perhaps sadly, not!
The 2nd U.S. Circuit Court of Appeals was recently faced with an unusual appeal in which a criminal defendant raised an intriguing question about the limits on what perspectives a judge can properly bring to bear on the bench. In United States v Bari, No. 09 1074-cr, 2010 WL 1006555 (2d Cir. Mar. 22, 2010), the 2nd Circuit considered whether then-District Judge Denny Chin (now on the 2nd Circuit bench) erred in a supervised release revocation hearing in considering information confirmed by the court's own Internet searching. In other words, can a judge confirm his own hunches by Googling?
Let's look at the facts. Judge Chin had been confronted with a defendant who had allegedly violated his term of supervised release (essentially probation) following a 36 month jail term for bank robbery. The revocation hearing was based on a new bank robbery. While there were questions raised about the identification of Bari, Judge Chin made a number of factual findings based on the evidence present to him. Most relevant to the appeal, though, was Judge Chin's finding that the strongest piece of evidence was that the robber (whom he concluded was Bari) wore a yellow rain hat.
The bank's surveillance footage showed that the robber wore a yellow rain hat. A yellow rain hat of the same type was found in the garage of Bari's landlord. Judge Chin found it "too much of a coincidence" that it wasn't Bari's hat, given the similarity between the hats. But here's the rub -- Judge Chin reasoned "there are clearly lots of yellow hats out there," and "[o]ne can Google yellow rain hats and find lots of different yellow rain hats." Earlier in the hearing, Judge Chin acknowledged that his chambers had done a Google search and found "yellow hats, yellow rain hats, yellow rain hats like this. But there are lots of different rain hats, many different kinds of rain hats that one could buy." U.S. v. Bari, 2010 WL 1006555, at *1.
So what's the big deal? Judge Chin's use of Google confirmed his intuition that not all yellow rain hats are the same, and the one observed in the video footage was the same as the one in Bari's landlord's garage. But Bari sought to controvert Judge Chin's finding for his having gone dehors the record to improperly rely on facts not in evidence in deciding to revoke Bari's supervised release. When you put it that way, maybe it sounds objectionable. But is that really what happened?
Well, what if the results of Judge Chin's search showed instead that yellow rain hats only came in one model, based either on a visit to his favorite search engine, or else by having taken a walk the length of Fifth Avenue on a rainy day in New York and observed only one type. Is there any difference between the two -- a Google search, a walk down Fifth Avenue two months before the hearing, or perhaps a paper he wrote many years ago on the social significance of yellow rain hats? Do we want judges as hermits who come to the pristine laboratory of a courtroom unencumbered by what they can -- or did -- learn in the real world?
The 2nd Circuit affirmed Bari's revocation by concluding that the court's comments were akin to taking judicial notice of a fact. The Court cleanly compartmentalized the evidentiary basis by which a court can take judicial notice of facts into two categories: "matters of common knowledge" and "facts capable of verification." U.S. v. Bari, 2010 WL 1006555 at *3 (citing Federal Rule of Evidence 201). Perhaps given the palpably obvious failing of the second category in these circumstances, the Court concluded that Judge Chin did not err by using an Internet search "to confirm a reasonable intuition on a matter of common knowledge." The court also notably "relaxed the evidentiary constraints" in this instance because that the Federal Rules of Evidence need not apply with normal force in a supervised released revocation proceeding.
So, the message to lower court judges (in the 2nd Circuit) is -- nota bene and carry on, basically. And so it goes. The Bari ruling has already been noted in another case by a magistrate judge, who, in reasoning that it can take judicial notice of articles published on the Internet, cited the following language: "as the cost of confirming one's intuition decreases, we would expect to see more judges . . . confirm hunches with a brief visit to our favorite search engine ..." Gucci America, Inc. v. Guess?, Inc. 2010 WL 1416896, 1 (S.D.N.Y. 2010) (Cott, J.), citing U.S. v. Bari, 2010 WL 1006555 at * 4. The context of that statement was not pursuant to a proceeding with "relaxed" rules of evidence, which suggests the Bari holding may have some legs to validate more Internet use by judges generally.
But it's not all good. Lawyers must not let courts handle the fact-finding process with dispatch at the expense of reliability. We, as officers of the court and counsel for our clients, should want judges to tell us -- on the record -- the sources of their online information. Why? Well, let's assume that if judges use the Internet for an expedient means to confirm their "common sense" suppositions, they may not spend the time diligently reviewing the primary sources of the information upon which they rely. Maybe they've used only the free encyclopedia "Wikipedia" to advance their learning curves, with all of the Internet-flawed frailties that come with anonymous contributors compiling the record. Who's to know if the poster has the qualifications to back what they're writing? This and many other public sources like it, by and large, lack the ability to establish the veracity and objectivity of the information contained in the entries. It is a problem when controversial postings are neither properly sourced nor peer-reviewed.
We must not tut-tut the issue. We do not want judges to avoid appellate litigation of this type simply by confirming online their Cardozian "stream of tendency" intuitions, without due circumspection on their part and without disclosing the Internet research to counsel. It would be a good idea for appellate courts, recognizing the ever-emerging issue, to give trial courts direction that they disclose if/how they independently confirmed their suppositions in an individual case. We want the record to reflect the trial court stating "this is how I verified my hunch that defendant's claim is erroneous." By encouraging that, we not only preserve the issue for appeal but we give ourselves the opportunity to controvert the court's thought processes: "No, your honor, with due respect, your search results do not satisfy the exacting standards of evidentiary admissibility and therefore the conclusions you reached from it are wrong, for the following reasons."
We can't do that regarding what predilections or perspectives the judge brought to the bench when he first became a judge, typically, unless he brings a bias against the litigant himself. But, we should be able to do it based on what the judge independently learns about a case while the case is underway. So why shouldn't we encourage it? If this is the true nature of the judicial process, it is ours to uphold.
Joel Cohen is a partner in the New York office of Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He is a former New York state and federal prosecutor and is an Adjunct Professor of Professional Responsibility at Fordham Law School. He is a frequent commentator and lecturer on criminal law and legal ethics. He can be reached at jcohen@stroock.com. Katherine A. Helm, Ph.D., is a law clerk for a U.S. Court of Appeals judge in Washington, D.C. She previously clerked in a U.S. District Court and worked at a large New York City law firm. She has published numerous articles and commentary on legal issues. She can be reached at kassie.helm@gmail.com. This column is the latest in a monthly series by Cohen and Helm for Law.com.
