Rule 3.3(d) of the Model Rules of Professional Conduct requires that "[I]n an ex parte proceeding, a lawyer shall inform the tribunal of material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse." Many lawyers, however, would argue that too many prosecutors who present warrant applications based on law enforcement affidavits do not adequately comply with this ethical obligation. Moreover, in many jurisdictions the search warrant application is actually presented directly by the law enforcement officer. Meaning, there is no attorney, bound by ethical restraints to present relevant facts on both sides, on duty as a gatekeeper between the magistrate and the zealous police officer who in his heart "knows" that the target is guilty. Accordingly, independent magistrates, to exercise the punctilio of "independence" required of them, must be vigilant in their duty as silent advocates for the absent adverse party when only one side appears seeking a court order.
To conclude, a personal anecdote that may have relevance here: Many years ago, as a somewhat experienced prosecutor, I appeared before a freshman magistrate for a search warrant I needed immediately, and badly. This magistrate had been a colleague of mine as a federal prosecutor. In my personal experience, this may have been the strongest warrant application I ever presented. Time was ticking that cold wintry evening. Like many freshman magistrates at the time, she may have lacked the confidence she now, so many years later, so thoroughly (and deservedly) exudes. She quibbled with almost every word in the application, both substantive and linguistic -- and the document was long indeed. Tick tock. After an hour or so, unheard of in my experience, she began a handwringing monologue that appeared to be sending me to my office and back to the drawing board. I had no time for that! So, knowing I would take the application elsewhere (as was proper protocol), I boldly asked her to simply deny the application and endorse the warrant application with her name saying: "DENIED." She did, but she also noted in a handwritten sentence the issue that principally troubled her. I needed that like a hole in the head -- but I knew and planned my next move.
As the clock was getting perilously close to 7 p.m., when, I knew, the other on-duty magistrate would routinely leave for home (with no district judge in the courthouse), I tore down the hall for his chambers. Nearly breathless, I now presented the application to him. The second magistrate, while not a former colleague of mine, had previous experience with me as a litigator before him -- some good, some not-so. He was certainly no shill for prosecutors, but I felt confident that my facts were strong enough and that, as a more experienced judge at the time, he would see them as such. He read the papers quickly but diligently, as always. I saw a faint smile on his face when he got to the end, where he saw the word "DENIED" and the notation and the identity of his colleague who had authored it. He too inquired about what troubled his colleague and made a full, permanent record of my response. He then signed the warrant without batting an eye. After he completed that, he bid me adieu and (as was often his custom) said: "Go do justice!"
I have never questioned in my own mind the righteousness of what occurred that one evening in that courthouse. The second magistrate, since deceased, was a person of high integrity (as was the first) even though he was being asked to basically reverse his colleague. I do believe the facts were clearly sufficient and that the first magistrate was simply hypercritical given her then-limited experience. Still, everyone properly performed their duties that evening, and the system worked. The two magistrates came to different results, independently and with independence. They both performed their duties with an ex parte litigator before them at arm's length with a record kept of what occurred.
Back to baseball: What happened that evening wouldn't occur at home plate at Yankee Stadium. But what happens in a courthouse chambers doesn't happen before 50,000 fans and a television public. The public must be ever confident that what occurs behind closed doors is as exacting and demanding as what happens when the public is watching. Independence -- scrupulous independence -- is the only meaningful substitute for 50,000 pairs of eyes trained on an umpire with a vociferous manager in his face.
Joel Cohen is a partner in the New York office of Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He also teaches Professional Responsibility at Fordham Law School. The author is a regular columnist for Law.com. The views expressed are his personal opinions.