Stroock & Stroock's 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.
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jdx
I would be more impressed with the author's plea for transparency if he avoided repeatedly writing in a dead language. It might be good for his ego but it does nothing but confuse and belittle the people who need to see clearly.
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