Related: Q&A: Posner on Judicial Writing, Law School and Cat Videos

Posner challenged the majority ruling’s “great deference” to the magistrate judge who found probable cause to approve a warrant to search Dessart’s home.

Why “great”? Posner asked. He cited previous decisions by the U.S. Supreme Court and the Seventh Circuit that called for “great deference.”

Posner questioned that deference to magistrate judges, who he wrote are “the most junior judicial officers.” Police and prosecutors can “shop” for magistrates who are more likely to sign off on a warrant, Posner said, and the Fourth Amendment didn’t say anything about preferring search warrants.

“The passages from judicial opinions that I’ve quoted thus far invite judicial haste and carelessness,” Posner wrote. “But wait a minute—I am objecting to propositions enunciated by the Supreme Court. That may seem impertinence on my part, forcing me to invoke the old proverb that ‘a cat may look at a king,’ one meaning of which is that an inferior is or should be allowed to criticize a superior.”

Other legal phrases Posner objected to: “actual guilt” and “actual innocence.” Posner questioned how they differ from just “guilt” and “innocence.” And “abuse of discretion”? “Abuse” was a strong word for what might be just an disagreement between a trial judge and an appeals court judge, Posner wrote.

Posner also questioned why a defendant faced a “nearly insurmountable burden” to challenge evidence in his or her case and why evidence in criminal cases had to be viewed “in the light most favorable to the prosecution.” He cited a 1991 decision by the Seventh Circuit that said that appeals judges couldn’t reverse a conviction unless they had reason to think that the trial judge was “irrational” to credit the testimony.

“Yet often the study of a trial transcript reveals not that the judge was irrational but that there was no basis for believing or disbelieving the witness—the judge was guessing, and while the guess was rational it can’t realistically be thought to have determined guilt or innocence,” Posner wrote. He added farther down: “Why in short are the dice so heavily loaded against defendants?”

Judge Diane Sykes, who wrote the majority opinion in Dessart’s case, was not immediately reached for comment. Judge Frank Easterbrook also heard the case.

Read the Seventh Circuit opinion below. Posner’s concurrence begins on page 17.

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