Pubdate: Mon, 28 Jun 1999
Source: New York Law Journal (NY)
Copyright: 1999 NLP IP Company
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Author: Mark Hamblett

JUDGE GAVE IN TO PRESSURE, LAWYER CLAIMS

The Insulation of federal judges from political pressures was central to
the arguments Friday as the Second Circuit considered District Judge Harold
Baer's controversial 1996 decision to reverse himself on the suppression of
evidence in the case of United States v. Bayless.

Tracy W. Young, the appellate lawyer for Carol Bayless, said there was
little question that the firestorm of criticism following Judge Baer's
decision to suppress 80 pounds of cocaine following a Washington Heights
arrest in 1995 undoubtedly led Judge Baer to reconsider his ruling, reopen
the suppression hearing and allow the drugs as evidence.

Ira M. Feinberg, Chief Appellate Attorney for U.S. Attorney Mary Jo White's
Criminal Division, said it was clear that Judge Baer made his reversal
confident he was immune from outside pressures and to overrule his decision
would have grave consequences for the future of an independent judiciary.

Carol Bayless was arrested at about 5 a.m. on April 21, 1995 after police
saw four men drop two duffel bags into the trunk of her out-of-state rental
car in Washington Heights. The bags were filled with cocaine and heroin
and, in a recorded statement to police, Ms. Bayless confessed she had been
part of a massive drug shipment business in which she transported money
from Michigan and returned from New York with drugs.

A suppression hearing was held in January 1996 in which just one of the
arresting officers testified. Officer Richard Carroll said he saw one of
the men who loaded the duffel bags into the car run when he spotted the
police. Officer Carroll also made a general statement about Washington
Heights being a high crime area and a "hub" for the drug trade.

PUBLIC OUTCRY

Following the hearing, Judge Baer ruled that police did not have
"reasonable suspicion" to stop Ms. Bayless's car and he barred using the
drugs as evidence.

The judge was immediately assailed by politicians of virtually every
stripe, including Mayor Giuliani, presidential candidate Robert Dole and
President Clinton. Some critics went so far as to call for Judge Baer's
impeachment.

Many focused on dicta in the judge's decision in which he said that, given
the distrustful attitude Washington Heights residents had toward the
police, it was not surprising that one of the men ran when he saw the
unmarked car begin to track Ms. Bayless's car.

In March, Judge Baer granted a government motion to reopen the hearing. At
the second hearing, he heard from Officer Carroll's partner and also
accepted a more specific police statement about the extent of drug dealing
in the neighborhood.

This time, Judge Baer allowed the drugs in evidence and also expressed
concern that his earlier dicta had been ill considered.

LACK OF PRECEDENT

"The judge's about-face on his perception of why people run from the police
in Washington Heights is transparent," Ms. Young told a panel that included
Second Circuit Judges Guido Calabresi and Fred I. Parker and Eastern
District Judge David G. Trager.

Ms. Young's client pleaded guilty to three drug charges before Judge Robert
B. Patterson in 1998 and was sentenced to 54 months in prison. Although she
has completed her sentence, she appealed to the Second Circuit on the
grounds that, given the political outcry and his subsequent ruling, Judge
Baer should have recused himself from the case before the hearing was
reopened.

But Mr. Feinberg contended that Ms. Bayless should have asked Judge Baer to
recuse himself before the hearing.

Ms. Young countered by arguing that given the unprecedented criticism,
Judge Baer should have recused himself sua sponte.

"If there has ever been a case where criticism contributed" to "undermining
public confidence in the judiciary, this was the case," she said.

'PLAIN ERROR' STANDARD

But the panel focused on the standard of "plain error" for reversing Judge
Baer's decision and the dearth of case law where publicity and politics
have constituted grounds for recusal.

Judge Calabresi pointedly explored why Ms. Bayless did not seek recusal
before the re-opening of the hearing. Mr. Feinberg had noted that Ms.
Bayless had every reason to believe that in Judge Baer, she had a jurist
who would find a lack of reasonable suspicion for the police stop.

"Do you mean recusal should only come into play when the case is about to
go in one direction?" Judge Calabresi asked Ms. Young.

"Yes, your honor, it may seem odd, but ...." Ms Young said.

"It sounds odd to me," the judge responded.

The arguments focused on the facts of the stop and arrest only to the
extent they bore on Judge Baer's state of mind leading up to his change of
heart.

TESTIMONY CONFLICTS

There was conflicting testimony about whether Ms. Bayless had opened the
trunk of the car for the delivery men automatically through a button in the
glove compartment or whether she had handed the keys to one of the men to
open the trunk. In justifying the stop, the officers said that the lack of
communication between Ms. Bayless and the four men who walked single file
toward the trunk was obviously suspicious because someone having their bags
thrown in the trunk for a long trip to Michigan at 5 a.m. would at least
say goodbye or wave.

Mr. Feinberg acknowledged to Judge Parker that the court should not review
Judge Baer's decision even for plain error and characterized Ms. Bayless's
failure to ask for recusal as more of a forfeiture than a waiver. "It is
nonreviewable when the defendant makes a deliberate choice," he said.

But Judge Parker noted that an issue implicating the integrity of the
courts cannot be "defused or waived off by any defendant."

Mr. Feinberg, however, said it was "important that a judge not be forced
off a case" by criticism and a reversal by the Second Circuit would set a
dangerous precedent.

"It would seriously undermine the independence of the judiciary, because
the effect of that would be to permit opponents to cause a judge to
disqualify himself," he said.
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