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The Stacked Deck

The system isn’t fair. It’s something those of us who pay attention all know, but sometimes it’s more apparent than others.

I’m working on a case where the state appealed a lower court judge’s ruling granting a motion to suppress. It’s an uncommon situation due in large part to the fact judges don’t grant motions to suppress all that often. They stretch to find whatever facts best support a denial, knowing that the reviewing court must defer to them. They scour the books for cases that support the state’s position, no matter how old. I’ve seen more rulings for the state finding facts that weren’t really presented or citing ancient cases despite the existence of recent controlling case law than I ever would’ve believed as a naive law student or a brand new lawyer. Appellate courts then stretch just as much to figure out some way to rationalize lower courts’ obvious mistakes.

I used to figure it was some sort of brotherhood of judges doing their best to avoid embarrassing reversals for each other, but then I started looking into cases that the state appeals. On those rare occasions when a judge does grant a motion to suppress, higher courts overturn them with astonishing frequency. Perusing about two hundred cases in one particular jurisdiction, I saw that the state won every single one of its appeals from lower court rulings granting motions to suppress. On the other hand, every single criminal defendant who appealed a lower court’s denial of a motion to suppress ultimately had his judgment and sentence affirmed. Digging deeper, in many of those cases I saw that the reviewing judge ruled for the state in its successful appeals based on grounds it never even raised. How’s that for inspiring confidence in the impartiality of the judiciary?

A lot of my friends and colleagues previously clerked for various judges. When I mentioned the fact I was defending an appeal by the state, they looked worried. They told me I should be careful. They said that, during their clerkships, appeals by the state were by far the most likely to succeed. My impression was that it had nothing to do with the merits of the state’s claims or its careful selection of only those cases that were in fact wrongfully decided. The data I found suggests the advice I got was right. My impression probably was too.

As much as the standard of review encourages deference to a lower court’s findings, and as much as judges might be loathe to overturn each other, it would seem that courts are even less willing to approve lower court rulings against the state. The writing on the wall became quite apparent to me after only a few hours of cursory research, so I can’t imagine how painfully apparent it is to judges whose primary career stressor is the fear of reversal. The message for trial court judges who might be inclined to grant a motion to suppress comes across loud and clear.

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