Emily Bazelon discussed a tricky sex offender case that short-lister Judge Diane Wood was involved in where she supported the rights of a convicted sexual predator. A recent article entitled "Sotomayor's Ruling in Child Porn Case Defies Liberal, Conservative Labels" suggests another sex offender case might be useful in judging Sotomayor's record. From the article:
Her decision, lengthy and detailed, at once shows an ex-prosecutor's understanding of law enforcement needs, an appellate judge's deference to Supreme Court precedent, and a liberal's empathy for a defendant ensnared by government primarily because his e-mail address was found in the wrong place.
It concerned a search warrant involving a child pornography investigation, particularly someone who allegedly accessed a website where one can download child porn. This access was used a FBI special agent to obtain a search warrant with the further fact that the person previously pled guilty to the offense of Endangering the Welfare of a Child used to show probable cause, which the federal district court judge granted. Judge Sotomayor wrote the opinion on appeal, deciding:
We are not insensitive to the need for law enforcement to have a certain amount of latitude in conducting criminal investigations. But, requiring the government to gather evidence particularized to the target of the search before the warrant application is made will simply focus law enforcement efforts on those who can reasonably be suspected of possessing child pornography. If this proves to be a hindrance, it is one the Fourth Amendment demands. ... [W]e find no substantial basis for probable cause and reverse the district court's conclusion in this regard.
[Various citations removed] Though the law officers found child pornography during the search, they did not have probable cause to search in the first place. The former crime was not only old, but not directly connected to the specific sex crime charged here. Access to a website, even if that could be proven, is not evidence of actually downloading anything. Overall, "Although Falso might hoard images of child pornography if he viewed and downloaded them, there is no allegation in the affidavit that he was in a position, or was otherwise inclined, to do so."
But ... the officers followed in good faith a search warrant. Per precedent, precedent I think surely dubious but which she was obligated to follow, Falso still is out of luck:
In short, said Miller & Chevalier partner Timothy O'Toole, "it looks pretty mainstream to me." O'Toole, a Fourth Amendment expert and board member of the National Association of Criminal Defense Lawyers, said that for Sotomayor to bow to the Leon good-faith exception is "what you would expect from a former prosecutor and a law-and-order judge, but really any judge would do that. She had to follow Leon." Once on the Supreme Court, Sotomayor might feel less bound to precedent, but it's hard to predict which way she would turn. "Opinions like this show you why the Supreme Court is so important," O'Toole said.
The limits of precedent is an important matter, since there is a tendency to dislike certain results that in the scheme of things are not controversial at all. This does not make Sotomayor's ruling correct, nor does it suggest there was no wiggle room here, but seems like a good example of her moderation:
Both parts of Sotomayor's opinion drew criticism from fellow panel members. Chief Judge Dennis Jacobs agreed with Sotomayor that the FBI agent's affidavit did not give probable cause for the warrant. But unlike Sotomayor, Jacobs said the FBI's misleading affidavit should have deprived it of any "good-faith exception." Judge Debra Livingston disagreed with Sotomayor on the sufficiency of the search warrant, but agreed with her that the FBI was entitled to a good-faith exception.
The 'misleading' argument appears reasonable, but far from slam-dunk. Some will suggest this is an example of her giving the police the benefit of the doubt. A reader of the majority opinion might disagree. Still, this case shows a recognition that the government can overreach, even when the ultimate end promoted is popular, and the person involved is clearly guilty. The defendant loses out here, but the analysis provides a guide to a future district court judge that very well might cause that one to win. This guide for future adjudication is particular important on the Supreme Court level, even if the needs of the specific litigants still must be respected.
Overall, the opinion is an interesting window into her jurisprudence.*
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* A contributor at TalkLeft, a blog on the whole often wary of Obama and includes defense attorneys on its team, provided an interesting comment as part of its analysis of Sotomayor:
It's encouraging to read that a legal aid lawyer who often gave Sotomayor "a plate of pasta or pot roast and a glass of scotch" after work offers this assessment:
"A lot of district attorneys thought they were doing God's work. But she saw it as a civic responsibility," [Dawn] Cardi said. "She was also concerned that if there wasn't enough evidence, someone shouldn't be prosecuted."
Scotch? She has also disclosed that she won some money gambling in Florida. I also didn't know scotch went good with pasta or pot roast, but clearly she likes to have some fun.