Judges weigh in on credibility findings for law enforcement

April 18

Judge Richard Kopf, a perennial subject of posts here at the Conspiracy, has now weighed in on the question that Scott Greenfield and I addressed — why is it so rare for a judge to find law enforcement officers not credible?

The first post is notable mostly for the comment thread, which features comments by several judges or ex-judges with interesting thing to say. One is Alabama Judge Joseph “Rusty” Johnston:

Yesterday I met with our new police chief (city of 250,000) I I told him I was getting tired of not having video or audio recordings of defendants statements. I said I felt juries disbelieved the rendition by the officer (especially a narcotics officer). I added, I was not sure I was going to believe another citizen consented to the search of his vehicle unless I had a written signed consent to search (which they have). The Chief looked like I had kicked his dog. I said “Hey, the jurors expect this in this age of technology.” We will see.

In a later comment he explains his perspective:

Frankly, I am rouge. Always have been (I am a red-head). I have made a number angry by demanded the Alabama Constitution be enforced. While I might be viewed as a “hanging judge” I am actually very protective of defendant’s constitutional rights. I am also concerned the direction the nation appears to be headed and nobody much cares, wiretapping, surveillance, etc. My court, circuit, is the trial court of general jurisdiction in the State. Somewhat like the U.S, District Court. I was an ambitious politician/lawyer until I saw widespread election abuses in the 1994 election here, aided by the State judiciary. I never want to be a judge, because of the pay cut. But I knew fate had steered me here.

As the thread continues, he and Judge Kopf quote Nietzsche to one another.

The other set of judicial comments is by Lorin Duckman, formerly a judge in New York:

One day, hopefully before I die, someone will revisit my judicial execution.

It’s not just about the trials. Jurors don’t want to sit, don’t understand the instructions and cannot consider what the sentence should be. They cannot tell if a person is lying or not and tend to believe those who look like them or wear badges, despite instructions to the contrary. It’s not about did the accused did it or didn’t do it, most of the time. It’s about the penalties, the sentences, and the lack of a future when one tries to put a life together after doing time. It’s about judges who need to move calendars, jailers and bailiffs, court reporters and clerks who depend on a steady stream of defendants; for their livelihood, not to mention the suppliers of the food, drink and office supplies, including the phone calls. It’s about over charging by prosecutors and the favoring of clients of those who can afford counsel. But, most of all it’s the Judges who sit silently, listening to the bartering, accepting the stories for fear that they will be removed if they question, dismiss or offer justice. Break my hear[t], they did.

A comment I made, “cops lie all the time,” was introduced as evidence at my removal hearing and served as the basis for finding me biased. I couldn’t have been the only judge who believed that, could I?

Finally, in a second post, Judge Kopf offers his own answer to the question “Why does Judge Kopf believe cops most of the time?” His post begins:

The following is not intended as an excuse. Indeed, it may be viewed as an indictment. With the foregoing keenly in mind, and in no particular order, here are some of my thoughts on why I have tended to believe cops most of the time.

He then gives nine separate reasons, which you can read here.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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Eugene Volokh | April 18