June 20, 2005

Why Howard Bashman Rocks

by Sean Sirrine

Man, you might just be sitting around trying to read the six cases the Supreme Court doles out in one day, and then blamo, Howard Bashman posts something at How Appealing that is so titillating you can hardly believe your eyes:

Two criminal law rulings of note today from the U.S. Courts of Appeals: Click here to learn who is more forgiving of police tampering with a search warrant -- Ninth Circuit Judge Alex Kozinski or Ninth Circuit Judge William A. Fletcher.

You can hardly believe your eyes. "What case is this?", you think.

You don't even read what the next case is, but now you have to click on one of Bashman's four links for this case. You know Kozinski, Fletcher and the Ninth Circuit well enough, you get a warm feeling in your stomach because you know the other link is the actual case, not some hyped up interpretation by some law geek, you think, "yes, I'm going to actually get to read this thing right now!"

You click "click here" and find yourself reading an interesting case on 4th Amendment Rights and the exclusionary rule, and guess what, it is de novo!

“Holy crap”, is all you can think, “this opinion is seriously interesting!” You are reading along thinking” well this is pretty pertinent law info”, (I'm a 9th Circuit Guy), -- then whamo -- you get to Kozinski's dissent and stop thinking about anything else:

He starts with:

Everything seized under this sham warrant must be suppressed.

Then moves on into why what the police officer did in this case is amazingly stupid and contrary to anything that could be maintained as common sense. Then he launches into what has to be raising eyebrows somewhere:

The danger that the wrong file will be selected, or that the right file will be altered, is not trivial. This is especially true where, as here, the officer deliberately prints a file he knows is not the one he used to print the original document. Exacerbating the problem is the fact that there is no good way for a reviewing court to distinguish between inadvertent and intentional alterations.

Damn! Did he just call that officer a lier?!? Your eyes are swimming, you can't believe you are getting to read this. Kozinski ends this section with:

There was simply no need for Officer Kasper to play mix-and-match with the pages of the search warrant after it had been considered and authorized by Judge Louie.

Is there more, this is pretty juicy, oh yes, there is more:

Without the approved list of seizable items, the warrant was a legal nullity; it was as if Officer Kasper had attached his grocery list as Exhibit A.(Exhibit A was the warrant the police officer manufactured.)

Man, this police officer is really having a bad day, and it just goes on and on:

What we have here, by contrast, is an officer who doctored a judicially-approved warrant and told no one what he had done. This conduct was completely unauthorized, quite dangerous and could easily have remained undetected. Now that it’s come to light, it just won’t do to say “close enough for government work.” We must make sure that no police officer even thinks of pulling a stunt like this again.

"Pulling a stunt like this again", wow, pictures of the Wild West and a judge laying down the law in black and white silent picture movies start cascading through your mind. You find yourself saying, "yeah, yeah, yeah", in your head over and over. Then the case ends, it is a sad ending, (aren't all dissents?), but it is patriotic in it's very nature:

Fourth Amendment rights are individual, not collective; I am aware of no doctrine that provides a different remedy for their violation depending on whether the rights of others are similarly violated. If Officer Kasper’s conduct was impermissible and resulted in a violation of defendant’s rights, as the majority eventually recognizes, see id., then defendant is entitled to the same relief whether he is the lone victim or one of many. Antiseptic suppression of the seized evidence—and a stern warning that this conduct will never be tolerated—is the only appropriate remedy.

Wow, only 19 pages and a wealth of information and amazing writing that you were in no way prepared to read or interpret. There was no build up, you didn't know it was coming and were just as surprised as the other 90% of Bashman's readers, but when it came, it made your eyes water.

Who said blogging isn't the same as news? I got more law info from this one sentence post than I do from all the other "real" news sources. One stop shopping for the real deal. While everyone else is telling you what they think things are, Bashman gives you a chance to read it for yourself.

You actually get to think and make your own decision, you gotta love that.

Thanks Howard Bashman, you made my day!

June 20, 2005 06:55 PM | TrackBack

I think this is what is commonly known as "jock-sniffing."

Posted by: T-money at June 20, 2005 11:22 PM


"Jock-sniffing" is defined as: "hanging around the athletes just for the thrill of being in their company, and that you'd never write anything negative, even if it was warranted."

What makes your comment so funny is the fact that Bashman takes the time to make sure his posts are news items rather than personal opinions. (Very different from my writing.) Trust me, I love to take the opportunity to contradict many of my favorite legal writers. Unfortunately, the way Bashman writes I'll probably never get an opportunity to debate him. (Maybe I'll see him in court someday.)

I'd look pretty stupid saying, "that damn Bashman is giving us links to news worthy legal events again, and the shame of it, he is even posting more information than I need to make my own mind up! That bastard, why can’t he give me his own opinion?”

Posted by: Sean Sirrine at June 21, 2005 03:02 AM


You posted anonymously on a blawg, accusing the author of the dreaded j-sniff.

As S.S. points out, the accusation is probably misplaced. He was raving about the opinion - which was exciting because it contained novel statements, the sort of things defense counsel mutters to each other but that you seldom see an appellate federal judge uttering for publication - rather than, say, how hot Kozinski is, or how awesome Howard's appellate boutique is. I would think that A3G is the better gusher on those points in any case.

But I accuse you, T$, of ankle-biting. Or anonymous carping.

Yeah, I'm anonymous, but I leave an email address that isn't "@nospam.org" and I tell people where my blawg is so they can flame me back.

Eh Nonymous

Posted by: Eh Nonymous at June 21, 2005 09:18 AM

Eh Nonymous,

Thanks for leaving a link to your site. I have already put it in my reader, so I'll be reading it.

Like you said, anonymity it okay if your willing to have a discussion, "ankle-biting" is pretty lame.

By the way, I agree with you on Kozinski. I'd love to see him on the short list. I've mentioned before that I'd like to see Volokh on the 9th Circuit. I'm not sure if you know this, but he is known as a Kozinski Clone.

Posted by: Sean Sirrine at June 21, 2005 02:35 PM
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