Former Council Presidents in Defense of Judge Block
By Robert A. Anello, Steven M. Edwards, and George B. Yankwitt
Last December, the New York Post wrote a series of articles harshly criticizing Eastern District Judge Frederic Block for a decision he made on a suppression motion. We thought the criticism was intemperate and misplaced, so we wrote this opinion piece to inform the public and put the matter in perspective. Unfortunately, the Post did not see fit to publish it, so it is being published here. Although it is tempting to let the story die, articles such as the articles that appeared in the Post become part of a historical record, and we believe it is important to set the record straight.
We are litigators and former bar association presidents in New York. We write with regard to several articles and an opinion editorial that appeared recently in the Post (December 4 and 6) regarding a ruling by federal judge Frederic Block in which he granted a motion to suppress evidence of a gun that was found on a suspect in a stop and frisk. The Post’s articles and editorial are unfortunate because they do not correctly describe the context in which Judge Block made his ruling, they attack him personally, and they could have a chilling effect on what we hope is a strong and independent judiciary.
The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures. The U.S. Supreme Court has interpreted this to mean that a person cannot be stopped and searched on the street unless the officer reasonably suspects that the person has committed a crime and may be armed and dangerous. If a person is stopped and searched in the absence of “reasonable suspicion,” the Supreme Court has directed federal district judges to rule that anything uncovered in that search is not admissible in evidence.
In a suppression hearing, the arresting officers typically take the witness stand and testify about the facts that support their reasonable suspicion. The Supreme Court has held that the government has the burden of demonstrating through that testimony that the officers’ suspicion is based on objective facts. Among other things, this requires the judge to evaluate the credibility of the arresting officers in deciding whether the government has met its burden.
In the case in question, the arresting officers testified that they were in an unmarked car in a high crime neighborhood when they saw two men walking toward them. When the men were about 15 feet away, one of them allegedly lifted his sweatshirt to reveal a gun tucked into his waistband. The officers got out of their car, approached the men and pulled the gun out of the defendant’s waistband. The officers acknowledged that they did not pull their guns even though they claimed that the defendant was armed; nor did they ask the two men to put up their hands. The officers also could not agree on which of them held the defendant’s hands while the other took out the gun. One of the officers conceded on cross-examination that the whole story sounded “crazy.”
In a three-page opinion, Judge Block granted the motion to suppress because he found that the government had not met its burden of demonstrating that the warrantless search was supported by reasonable suspicion. He did not explicitly state that the officers were lying, possibly out of deference to them, but he obviously found that their testimony was not credible. At the end of his opinion, Judge Block stated:
The Court recognizes the difficulty of police work and the benefits derived from the removal of a firearm from the streets of New York City, however, in light of the circumstances surrounding the underlying search, the Defendant’s motion is granted.
The judge’s decision was simple: He was required by the law to consider the credibility of the arresting officers, and he did so. He could have ignored the evidence and denied the motion to suppress because he thought the defendant was clearly guilty, but he chose to follow the standards laid down by the U.S. Supreme Court. Although we may not like the result, the remedy for that lies with the Constitution and Supreme Court; a federal district judge should not decide on their own to ignore the rules.
The Real Issues
Unfortunately, instead of disagreeing with the result and explaining the reasons for its disagreement, the Post chose to attack the judge, calling him a “lunatic” who “defended a defendant” because he “doesn’t give a s–t.” This language has the effect of diverting attention from the real issues and suggesting that there is something seriously wrong with this particular judge. Our system of justice depends on the vast majority of the people voluntarily complying with the law and police officers performing their duty consistent with our constitution – which thankfully is usually the case. Personal attacks and the demeaning of judges breed disrespect for the law, making it more difficult to achieve compliance.
Personal attacks such as the one leveled against Judge Block also threaten judicial independence. One of the strengths of our system is the ability of judges to stand up to the legislative and executive branches. We want judges to do what they think is right, even if it is unpopular. This includes telling the executive branch that it cannot use the fruits of a search if it has not complied with the Constitution. This is what distinguishes our country from other countries where people can be thrown in jail simply because they have offended the powers that be.
Even though judges are appointed for life, they are human beings. No human being likes to be humiliated and ridiculed simply because they have made an honest decision. It should not surprise anyone if, at some point, a person might alter a decision rather than being held up to public scorn. We don’t want that; the Post – which zealously and properly safeguards the important Constitutional provisions that protect it – should not want that either. A decision can be criticized on the merits, in a way that helps the public to understand the issue, without engaging in unwarranted personal attacks against the judge who wrote it.