The Independent Magistrate

Joel Cohen

When a layman attends a ball game and sees a manager rush an umpire to challenge an adverse call hoping to get it reversed, he thinks nothing of it. Litigators, however, see life through the narrow-minded prism of the law's practices and protocols. The lawyer is reflexively -- perhaps, subconsciously -- offended that the manager is trying to ex parte the umpire into changing his decision, and notably without the opposing manager given the opportunity for input (or at least until the reversal is a done deal).

So much for baseball and the lawyer's oddity. For the most part, the law, lawyers' ethics and judges' ethics simply do not allow for ex parte communications with a judge that are designed to influence her decision on a substantive issue. And if the unilateral communication with the judge was particularly significant to resolving an issue before the judge, it might be the "ball game" that requires appellate reversal.

The truth, though, is that ex parte communications can be critical to the duties of the magistrate -- and here "magistrate" describes the lower court judge (federal, state or local) who is often called upon to issue orders after having only heard one side of the story -- typically, from a prosecutor or the police, since no one would reasonably expect a judge who is asked to issue an arrest or search warrant to first hear from the target's or defendant's attorney to decide if the warrant is justified. As the law sees it, the merits will surface during the adversary process -- but only after the search warrant is executed and the evidence secured, or the defendant is in custody.

So, should this mean that the ex parte communicators (prosecutors or police) have carte blanche to simply put their best face forward with the evidence they present to the magistrate? After all, it will all "come out in the wash," won't it, when the defense attorney has his opportunity to tell his client's side of the story?

Recently, an outrageous case in Georgia illustrated the problem reductio ad absurdum. There, Murray County's chief magistrate judge, Bryant Cochran, distributed pre-signed warrants to local law enforcement officers to use when he was out of town -- meaning, the police were essentially given blanket authority to execute what amounted to their own pocket warrants, albeit with Cochran's signature on them. All they had to do was wait until Cochran was on the road. And given Cochran's willingness to betray his duty thusly, one can just imagine how undemanding he likely would have been with the evidence presented to him by the police when he was in town and actually reviewing it. Cochran's action was, thus, a wholesale violation of his duties as an independent magistrate.

Putting aside for the moment the quality of the evidence that the police placed above Cochran's signature, one must agree that the mere willingness of a judge to effectively "outsource" his judicial discretion to a party litigant raises a fundamental "appearance" question -- pretty much like a home plate umpire asking a batter to decide if the pitch to him was a ball or strike. Fortunately for the public, Cochran resigned his judgeship, upon facing an investigation into the pre-signed warrants and assorted other allegations of misconduct which he denied.

One suspects that Cochran's practice was largely sui generis in the United States. Still, the "independence" problem that faces magistrates has reared up in other ways. Indeed, in 1977, the U.S. Supreme Court was asked to reverse an almost equally horrendous practice, also in Georgia. There, under the Georgia Code at the time, a justice of the peace was paid $5 each time he issued a search or arrest warrant, but nothing if he said no. Indeed, his only compensation was from the per-warrant "commission," as it were, that he received under Georgia's system. In fact, the magistrate acknowledged during a hearing in the case that he had signed some 10.000 warrants at $5 per, during the relatively short period before appeal -- 50,000 bucks!

So, for the defendant in Connally v. Georgia whose drug conviction evidence was procured via a $5 warrant, one can only imagine what might have gone through his head: "This judge got paid only because he signed a warrant against me. He would have gotten squat if he had told the police 'no.' I was denied justice by a judge literally paid by the police to hang me." Quickly, the Supreme Court unanimously reversed the Georgia procedure, doing so per curiam.

Even if the practice in Connally is now relegated to the law library, and even if Cochran's idiosyncratic practice was simply rogue or aberrant, one can assume that problems of magistrate independence still exist in different, more subtle ways. A magistrate may become exceptionally, maybe excessively, close to some ex parte applicants for warrants. This may be only by dint of their peculiar judicial role whose daily functions require that they routinely entertain ex parte applications, maybe even at their homes after hours. There may exist a danger of a certain degree of institutional chumminess or clubbiness between law enforcement officers and magistrates that may sometimes compromise the independence of the judicial function.

Surely, even in an adversary proceeding where both sides are represented, a judge of any station may be persuaded by the mere fact that the lawyer on one side has proven himself credible before her time and again, rightly or wrongly, that credibility from past experience may carry the day, even when the adversary attorney is both present and articulately vocal for his client. Just imagine how influential an ex parte litigant, prosecutor or policeman can become -- especially if he appears before the judge week after week, or even day after day.

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.