Patterico's Pontifications

11/28/2006

Did the Judge in Atlanta Rubber-Stamp the Search Warrant in the Johnston Case?

Filed under: General — Patterico @ 7:30 am



I mean literally rubber-stamp it?

Orin Kerr looks into the possibility.

UPDATE: Radley Balko has a fun, LGF-style graphic that helps make the point.

34 Responses to “Did the Judge in Atlanta Rubber-Stamp the Search Warrant in the Johnston Case?”

  1. Actually, Orin is suggesting that the warrant never existed, and was forged after the shooting. His evidence is 1) that the alleged informant said he was contacted by police only after the shooting; and 2) that there is no reason for the affiant’s signatures to be identical, outside of skullduggery.

    Kevin Murphy (0b2493)

  2. Looks like there’s an online system for warrants. LEO uploads the warrant and the judge clicks the OK box. Doesn’t sound like a very detailed oversite/check on the executive branch by the judicial.

    Joe (066362)

  3. These electronic systems could create serial numbered, secure-hash labeled, time-stamped paper versions at every significant step in the process. The only question in my mind is why that’s not a minimal and absolute requirement.

    htom (412a17)

  4. […] Patterico’s Pontifications Bookmark to: Filed in: Law Enforcement | No Comments » […]

    Flopping Aces » Blog Archive » The 92 Year Old Criminal, Update (986d71)

  5. An automated warrant system might seem like a great idea for efficiency’s sake, but it seems like it would encourage laziness in terms of judges carefully considering whether a warrant is justified.

    David (d5b245)

  6. An automated system might encourage laziness, or it might encourage more care because more time is available to spend on the important things. It comes down to whether the judge takes his job seriously. Without that, any system will fail.

    roy (2c80ed)

  7. Is the “judge” really that, or a magistrate. In upstate New York, there is a scandalous “legal” system – fully authorized and empowered, that uses magistrates, many of whom have never set foot in a law school. Ultimately, some of the off-the-wall decisions reach the mainstream court system to be overturned, but that takes money and time.
    If any appointed/elected official can approve a warrant simply because his letterhead says magistrate, then the “duly-constituted authority” approval concept has become meaningless.

    great unknown (71415b)

  8. Nice graphic from Balko… brings back fond memories of Memogate and Dan Rather.

    TheNewGuy (114368)

  9. Many laymen don’t realize that there’s nothing intrinsically magical in a pen-and-ink signature.

    The question is purely one of intention on the part of the signer — does he intend for the mark from his ballpoint pen, or ink-stamp impression, or checking of box on the computer screen, to be something that represents his approval and agreement?

    I filed three pleadings today in three separate lawsuits in which I signed the names of six different lawyers besides myself — in each case with my own initials and an indication that it was being signed in their names “by permission.” Now if it turned out that I actually lacked permission, I’d be in serious hot water — probably at risk of losing my bar card. And for that reason I’m very careful — my personal policy is to have at least an email confirming my authorization, after I’ve sent at least a very-nearly-final-form draft for the lawyer in question to review. But assuming I do have the permission I’m representing to the courts that I have, those signatures are every bit as effective as if those lawyers had signed them with $200 Mont Blanc fountain pens themselves and then applied an embossed wax seal with red and blue ribbons. It’s all a question of intent.

    Ditto, of course, for most endorsements on bank checks, which are routinely and quite literally done with rubber stamps, even in transactions involving millions of dollars.

    It’s silly to suggest that a pen-and-ink signature is likely to ensure closer scrutiny. Whether warrant applications do or do not receive close scrutiny doesn’t depend on how the judge evidences his assent, but on how seriously he takes his job.

    Beldar (a463e1)

  10. Beldar lives!

    spongeworthy (45b30e)

  11. As an Atlanta resident I would like to remind everyone when reading various sources through the web that our lovely rag here – the Journal Constitution – is the same paper that gave the world Richard Jewell.

    Do not trust our local paper to get this story right. It’s far beyond their capabilities. High School football scores? Well that’s another story.

    Larry (c7359c)

  12. @beldar:
    so you signed for these other lawyers, with their “permission”…
    after sending them for their review an “at least a very-nearly-final-form draft”…
    with the obvious implication that those lawyers never saw the ultimate, end, final-final product, which could have been edited subsequently to the “very-nearly-final-form” version they saw, in which case their “permission” would be meaningless.
    it’s not like it would be too difficult to get them to sign off on the final version, or to get them to sign a one-page document associating them with you as counsel of record in these matters, so…..
    what’s the story here? are you the head of a whole law firm full of coneheads?

    assistant devil's advocate (8b58f9)

  13. The review of an application for a warrant, and the signature affixing, at a distance, is an opportunity for skullduggery. Perhaps a more direct, face to face, application for a warrant, in no-knock requests, should be required.

    Here we have another example of how the courts are stretched, and strapped, by the drug wars.

    RJN (e12f22)

  14. An automated system might encourage laziness, or it might encourage more care because more time is available to spend on the important things.

    This makes no sense at all. The premise that the automatic warrant system saves times with issuing warrants–to be explicit it means less time dealing with warrants. Hence more time for other things…not related to warrant issuing. Hence the above statement is nonsensical from the stand point of being careful in regards to issuing warrants.

    Many laymen don’t realize that there’s nothing intrinsically magical in a pen-and-ink signature.

    I don’t think anybody is suggesting a pen-and-ink signature is magical. And I doubt few are suggesting it is necessarily superior to an electronic system. What I think has many people disturbed is that to get a no-knock warrant it is basically a point-and-click process–i.e. it has become so routine that it is now just like filling out one’s time sheet or signing up to gain access to an online newspaper. The difference being that no-knock raids almost always come with a high level of violence and force which can, and in this case, result in tragic outcomes. Hence your example is basically irrelevant.

    It’s silly to suggest that a pen-and-ink signature is likely to ensure closer scrutiny.

    It isn’t that, but that an electronic system where all the principles are quite removed from one another and seems to ensure less scrutiny isn’t a goog thing.

    Do not trust our local paper to get this story right. It’s far beyond their capabilities. High School football scores? Well that’s another story.

    Yes, but some of the more disturbing facts are coming form sources other than the AJC and are being corroborated by the Chief of Police.

    Steve Verdon (94c667)

  15. Mr. Advocate, as an example of the changes I made in the final-form versions of the documents I signed on behalf of other counsel today, I deleted the line in the footer on each page that said “WJD Draft #1A — 2006-11-27.” Where the draft I forwarded had said “November ___, 2006,” I filled the blank in with today’s date, “November 28, 2006.” In his email to me authorizing me to sign his name, one lawyer asked that I update his signature block to reflect his new fax number; I did that, and in the process caught and fixed a typo that he hadn’t noticed in his street address, and I did so without either interrupting the deposition he was in this afternoon or delaying my filing by another day.

    In each of these instances, I’m willing to stake my license — and have effectively done so — on the proposition that my opposing counsel and any court reviewing those changes would agree that they’re non-substantive.

    You write that “it’s not like it would be too difficult to get them to sign off on the final version, or to get them to sign a one-page document associating them with you as counsel of record in these matters, so ….” Well, actually, one of the signatures I did today was for a trial lawyer in the Solicitor of Labor’s Department, and the person who I was ultimately signing for was Elaine Chao, the Secretary of Labor (whose minions are suing one of my clients). Madame Secretary’s delegation of authority to her subordinates lets her do her job; said trial lawyer’s delegation of much more limited authority meant he didn’t have to look at three revised versions of that document as I got comments from other players, which means he had more time today to concentrate on stuff that matters. It would not be impossible, but it would be stupid and inefficient, and I would annoy people by being such a pedant.

    There is a level of trust among active members of the trial bar, and including our former brethren who now sit on the bench, without which the system would grind to a halt. If I were, for example, to change the numbers in a final judgment to add $100k (after getting my opposing counsel’s approval to sign her name to a document with a lower figure), I’d probably lose my license and deserve to. If I monkeyed with a deadline in a pretrial order to give myself more time or my opponent less time than we’d agreed, I might not lose my license, but I’d probably endure a suspension — and no judge in Harris County would ever again trust me on anything, meaning my license would be worthless.

    I appreciate that you may just be trying to get a rise out of me, but you simply know not of what you speak, sir. If you were better informed, I might take offense.

    Mr. Verdon, I know lawyers and executives who delegate extensively to their staffs on matters of considerable substance, and who sign hundreds of documents every day that they never actually read. Depending on their skill in choosing personnel and supervising them, that may or may not work out. But my point is that pointing and clicking requires no more or less thought than putting pen to paper to scribble a unique pen-and-ink signature, and neither signing nor stamping nor clicking is necessarily more connected to either principles or principals. Don’t assume that just because you may point and click “I agree” on some End User License Agreement on the latest piece of software you installed, a judge whose job it is to evaluate search warrant applications acts the same way. It depends on the judge.

    When I was a law clerk on the Fifth Circuit some twenty-five years ago, on one holiday afternoon I was the only person in chambers when an emergency application for a stay came in on a death penalty case. I tracked down the only circuit judge I could find — as it happened, not even the judge for whom I was clerking, but instead the then-Chief Judge of the Fifth Circuit, whose normal office was down the hall from my judge’s, meaning I could get access to the bulletin board where he’d posted his vacation phone number for his staff — at a fishing lodge in Arkansas (not a state within the Fifth Circuit). I summarized the grounds stated in the application. He made a snap decision — one required by the circumstances — and told it to me, and I told it to the Clerk of the Fifth Circuit in New Orleans over the phone, who told it to the prison warden and the lawyers. A man’s life hung in the balance, but the care with which the decision was reached had nothing to do with whether that judge put a pen-and-ink signature on paper. It had to do with whether I cared enough to be in chambers on a Saturday afternoon before New Year’s, and whether I read the stay application carefully, whether I related its contents faithfully, and whether the judge listened and paid attention and then brought to bear his accumulated experience and judgment in making a ruling. That I then transmitted the ruling through another phone call was, ultimately, irrelevant to the merits. Some of the circumstances were important — outside my own or the Court’s control, a function of a death warrant that expired at midnight on New Year’s Eve, and so forth — but that one circumstance wasn’t important at all.

    Beldar (a463e1)

  16. I know lawyers and executives who delegate extensively to their staffs on matters of considerable substance, and who sign hundreds of documents every day that they never actually read. Depending on their skill in choosing personnel and supervising them, that may or may not work out. But my point is that pointing and clicking requires no more or less thought than putting pen to paper to scribble a unique pen-and-ink signature, and neither signing nor stamping nor clicking is necessarily more connected to either principles or principals. Don’t assume that just because you may point and click “I agree” on some End User License Agreement on the latest piece of software you installed, a judge whose job it is to evaluate search warrant applications acts the same way. It depends on the judge.

    Does anybody ever read, completely, the end user agreements on websites? I don’t think even a judge would read those.

    And again, an end user agreement isn’t going to bash down your door, toss in flash bang devices, point guns and you, throw you on the floor, scream at you and the rest of your family. And if you mistakenly conclude that it is armed intruders wishing you ill will and not the cops and try to defend yourself and/or family…well you’ll be lucky if you aren’t killed. Do end user agreements do that? Just curious. The analogy is so faulty it is simply astonishing.

    When I was a law clerk on the Fifth Circuit some twenty-five years ago….

    Again, I don’t really see much relevance here. The example is one where lots of activity and effort when into it. This isn’t the problem. Let me repeat that: This isn’t the problem. That you used up to date technology also is not the problem. The problem that many seem to have is that technology may make things so simple for obtaining a no-knock raid warrant that the kind of effort you put forth no longer is put into the obtaining such warrants. In short, your example doesn’t appear to help the argument that a system should be in place to make obtaining a no-knock raid warrant simple, fast, and with little or not thought or effort. In fact, I want exactly the opposite. Is your position all that different from mine?

    Steve Verdon (4c0bd6)

  17. Whether the signature was pen-and-ink, ink-stamped, or digital is almost certainly irrelevant under any State’s law. See, e.g., Article 3, part 4, of the Uniform Commercial Code, esp. § 3-401(b):

    A signature may be made (i) manually or by means of a device or machine, and (ii) by the use of any name, including a trade or assumed name, or by a word, mark, or symbol executed or adopted by a person with present intention to authenticate a writing.

    Although from a commercial instead of a criminal context, this restates the common law on signatures and endorsements generally.

    Beldar (a463e1)

  18. In my experience, in Illinois, only one “original” has a signature or embossed seal –that which will go in the Court file. In the case of process, the affidavit of service with original signature will be stapled to it when it is “Returned, Served”. All other copies, including those served, have simple stamps with maybe the clerk’s initial lazily scribbled on it. The affidavit of service is blank. So which version of the search warrant was released to the public? The “original” or a “copy”?

    nk (06f5d0)

  19. Are affidavits used to get warrants like this usually so sloppy?

    1. It does not affirmatively say that the affiant ACTUALLY SAW the CRI go up to the house, interact with “Sam” and make the exchange. Could this have been based on hearsay? Shouldn’t it have specified?

    2. The narrative says that only “Sam” went into the house–not the CRI. So, how did the CRI know that there were surveillance cameras that “Sam” closely monitored? Had the CRI been there before? Did he see them through the door? Did he see Sam monitoring them or did Sam tell him that?

    3. Did the Judge issue the warrant as a no-knock one based on the cameras? If so, shouldn’t she have been asking the above questions?

    This just seems careless and haphazard to me.

    Jerri Lynn Ward (611b99)

  20. […] Radley Balko, Patterico and Orin Kerr have information on the affidavit. Go read all three. […]

    Sue Bob’s Diary » The Warrant and Affidavit (1b383c)

  21. Also, why doesn’t the Magistrate Judge’s order have to specify the reasonable grounds underlying the designation of the warrant as a “no knock” warrant? Is this usual?

    Jerri Lynn Ward (611b99)

  22. I sympathize with those who want search warrants to be carefully investigated, written and reviewed but I doubt that many judges (except maybe judges in small towns) can spot a bad raid at the warrant stage. The American legal system isn’t like the French system, for example, where the judge is also an investigator. American judges have limited oversight in the investigatory phase and depend on the police to bring them truthful affidavits.

    If the police do a poor job or lie about the information in the search warrant affidavit, it’s unlikely the judge will figure it out. Furthermore, few systems are redundant enough to prevent outright fraud. Our best protections come from having professional and highly trained law enforcement AND strict sanctions when wrongdoing occurs.

    DRJ (0df497)

  23. DRJ

    To the degree that what you say is true, you give another good argument why the drug laws should be rewritten.

    RJN (e12f22)

  24. Also, why doesn’t the Magistrate Judge’s order have to specify the reasonable grounds underlying the designation of the warrant as a “no knock” warrant? Is this usual?

    The warrant application (not the warrant itself) in this case does so specify. The problem is that the only item specified is the alleged surveillance system.

    I sympathize with those who want search warrants to be carefully investigated, written and reviewed but I doubt that many judges (except maybe judges in small towns) can spot a bad raid at the warrant stage. The American legal system isn’t like the French system, for example, where the judge is also an investigator. American judges have limited oversight in the investigatory phase and depend on the police to bring them truthful affidavits.

    If the police do a poor job or lie about the information in the search warrant affidavit, it’s unlikely the judge will figure it out. Furthermore, few systems are redundant enough to prevent outright fraud.

    I think you’re missing the point here. The problem isn’t that the magistrate failed to do an independent investigation; the problem is that the information provided by the cops was facially inadequate. That’s what the magistrate should have noted here.

    David Nieporent (7291ac)

  25. DRJ at 11/28/2006 @ 6:19 pm wrote:

    I sympathize with those who want search warrants to be carefully investigated, written and reviewed but I doubt that many judges (except maybe judges in small towns) can spot a bad raid at the warrant stage. …

    If the police do a poor job or lie about the information in the search warrant affidavit, it’s unlikely the judge will figure it out. …

    If you look at #18 above by Jerri Lynn Ward — 11/28/2006 @ 5:48 pm, you will see exactly what the judge could have used to deny the warrant or the no-knock.

    I pointed out the same in comments yesterday in a previous thread. Basically, there is absolutely no sworn statement in either affidavit that the CI ever actually entered the house. Yet on the no-knock application, affiant states that CI reported there were video cameras inside the house, as if that made perfect sense.

    I’m not a judge, and I doubt that Jerri Lynn Ward is, but if we each independently can spot that in a two minute scan of the affidavits, then surely a judge could do as well.

    Occasional Reader (c35fd9)

  26. David Nieporent at 11/28/2006 @ 6:37 pm wrote:

    …the problem is that the information provided by the cops was facially inadequate. That’s what the magistrate should have noted here.

    Bingo!

    Occasional Reader (c35fd9)

  27. To DRJ,

    Issuing warrants is what this judge is charged to do under the Georgia Statutes. She reads affidavits on a regular basis and hears the trial of cases. Surely she can pick up on the fact that there is no underlying basis given in the affidavit for the CRI’s knowledge about the cameras. Surely she can see that the narrative given by the affiant never places him in a position (in the house) to see the monitors or the cameras.

    She’s not an investigator–but she is supposed to assess and weigh the evidence that she is presented before issuing a warrant.

    You say:

    “Furthermore, few systems are redundant enough to prevent outright fraud. Our best protections come from having professional and highly trained law enforcement AND strict sanctions when wrongdoing occurs.”

    She is supposed to be part of that system. She is part of the checks and balances that our system of government provides to prevent abuses. And, she’s supposed to prevent such an abuse in advance by competently doing her job–though, of course, we’ll never have perfection.

    All I can say, is that if this is what affidavits look like in the case of no knock warrants (and if said affidavits are the only thing considered by the judge)–it certainly raises questions in my mind about whether the judges are doing a good job of requiring adequate evidence and basis for them.

    Jerri Lynn Ward (611b99)

  28. RJN and David,

    First, I probably didn’t make it clear (and I apologize for that) but my coments were not intended to apply to this warrant. We don’t know how warrants are handled in this magistrate’s court. Maybe it is customary to file a search warrant affidavit that alleges basic facts and the magistrate asks questions to flesh out the circumstances. Maybe affidavits are signed in absentia, like a conveyor-belt, with no real oversight. Maybe it’s somewhere in between. I have no idea and my guess is that neither do you.

    Second, I agree with an earlier comment (I think by TheNewGuy) that to effectively evaluate no-knock raids, we need some idea of how often they go wrong vs. how often they are used. We know from Mr. Balko some of the numerator (the “gone wrong” part) but I can’t tell what the denominator is (the “how often used” part). I believe Prof. Klinger mentioned there are thousands, or more, of these raids each year. If so, we may be talking about a very small percentage of raids that go wrong. As tragic as that seems, especially in this case, there is nothing in human existence that works perfectly. We might be far better served to enhance and refine police training and procedures to avoid this kind of problem than to throw out the system completely and start over. (BTW, I view Prof. Klinger’s suggestion to adopt a containment approach as a refinement rather than a start over solution.)

    I’m sorry my thoughts touched a nerve with both of you. I’m sure there is room for improvement at every stage of the process, including at the magistrate level, but my point was that I’m not sure magistrates are the cure-all some hope they might be.

    DRJ (0df497)

  29. It’s not the signing, but that alterations in the paper document might be more detectable than in the one that had been clicked. I know a great deal more about alterations in electronic documents than in paper documents, though, and it may be that I fear the devils I know.

    htom (412a17)

  30. Mr. Verdon asks: “Is your position all that different from mine?”

    Yes, it’s 180 degrees different, if you continue to insist that the apparent lack of a pen and ink signature plays any role in the after-the-fact determination of whether this warrant should or shouldn’t have been issued, or if you continue to insist that requiring pen-and-ink signatures would improve the system in some way that would result in more consistent justice.

    First you fault my analogy to click-wrap contracts like those on EULAs for not being sufficiently serious to be compared to this situation. (And yes, in fact judges and lawyers do read those, and there are a whole series of reported appellate decisions on them; I just finished a 1-1/2 hour continuing legal education course on their enforceability. In commercial applications where software has failed, their enforceability can translate into millions of dollars.) But then when I give a personal anecdote in which a much more informal method of judicial decision thank point-and-click — a phone call twice removed — directly resulted in a man’s deliberate execution by lethal injection, you say that’s not analogous either. Yours is a slippery argument, sir, a Goldilocks standard in which you’re the sole judge of whether the mattress is appropriately firm or the porridge appropriately warm.

    We could insist that magistrates wear wigs and write with quill pens. We could insist that they only sign warrants when in open court, after the bailiff has knocked three times with a large door-knocker. We could insist that a blue and red ribbon be attached to every warrant with purple wax impressed with the seal of the court. And if the magistrate still isn’t paying proper attention to the details of the warrant application, it won’t make a damn bit of difference.

    Or we could permit warrants to be authorized by text messages sent over cell phones. The legal standard is the judge’s intent, not the device he uses to signify it. See, e.g., Article 3, part 4, of the Uniform Commercial Code, especially § 3-401(b):

    A signature may be made (i) manually or by means of a device or machine, and (ii) by the use of any name, including a trade or assumed name, or by a word, mark, or symbol executed or adopted by a person with present intention to authenticate a writing.

    Although from a commercial instead of a criminal context, this restates the common law on signatures and endorsements generally. If the cell phone text-messaging magistrate has actually read the application, held it to the proper standards (whatever one may think those are), and done a careful job in performing his sworn duty before he intentionally punches the transmit button, then the result will indeed be justice.

    The whole issue of whether the signatures were pen-and-ink, rubber-stamped, or affixed digitally bespeaks a sort of seventeeth-century legal mentality, or a lay view of the law that even Blackstone would have found antique. Unless the judge or magistrate’s signature here was an outright forgery — something he never intended to sign in any form — then this whole issue of how his signature got on the warrant or whether it’s gee-almost-identical to other signatures on warrants he’s signed is simply silly.

    Beldar (a463e1)

  31. I think you are clearly right, Beldar. Unfortunately, there is a suggestion that the warrant may have been prepared after-the-fact. In addition, several commenters are concerned because they believe the allegations of the warrant are facially insufficient to support a raid of this type.

    I think these and other issues have been conflated in these comments and some of us are talking at cross purposes. We probably need a legal eagle to separate the various legal issues, frame them, and take them on point-by-point. While I did attend law school, I certainly can’t claim to be one of Charles Alan’s Legal Eagles – either on or off the field – so I’ve probably added all I can add.

    DRJ (0df497)

  32. Beldar:

    The important thing is not the manner of affixing a signiture, but the distance between the people requesting a no-knock search warrant and the person authorized to sign the warrant. All of the tech mech makes it easier to fool the one authorizing a warrant.

    RJN (e12f22)

  33. Of signatures and rubber-stamps, oaths and Bibles…

    Since returning to active blogging, I have, of course, stepped up my reading of some of my other favorite blogs. And I’ve been unable to resist the urge to comment on them. A little bit of that is fine. But of course, your long-winded host at this blo…

    BeldarBlog (72c8fd)

  34. Beldar at 11/28/2006 @ 7:38 pm wrote:

    We could insist that magistrates wear wigs and write with quill pens. We could insist that they only sign warrants when in open court, after the bailiff has knocked three times with a large door-knocker. We could insist that a blue and red ribbon be attached to every warrant with purple wax impressed with the seal of the court. And if the magistrate still isn’t paying proper attention to the details of the warrant application, it won’t make a damn bit of difference.

    Of course it wouldn’t. That’s because we didn’t make the judge wear a silly wig too. Nine out of ten judges who have to wear silly wigs in public pay more attention to what they’re doing than the one that doesn’t. Everybody knows that!

    ;^)

    Occasional Reader (38a7ef)


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