David Borden, Executive Director

David Borden

This week I write an editorial that could be written almost any week. What's wrong with judges today?

In Washington, a state where medical marijuana is legal, a judge decided that it isn't. That's technically not what happened, but for all intents and purposes it really is. Judge Anna Laurie convicted patient Robert Dalton for marijuana growing, because she didn't agree with Dalton's doctor's decision to recommend marijuana to him. Where did Judge Laurie go to medical school? How incredibly arrogant of her to play doctor. And how atrocious too -- Dalton, not a well man, could get up to six months in jail. As his attorney told the press, no patient in Washington is safe, if judges will behave that way.

In Sarasota County, Florida, a judge threw away the exclusionary rule for no good reason. A drug dog with the sheriff's office, Zuul, comes up with false positives in vehicles he sniffs half of the time. Judge Charles Roberts ruled that was good enough to justify police searching a vehicle -- but for a very special reason. Judge Roberts was swayed by the state's argument that every time they didn't find drugs, someone in the car admitted to using or possessing drugs in the recent past.

What?!?!?!?!? Along with the clear fishiness of the claim, what does past drug use, even recent, have to do with a drug dog's ability to tell whether drugs are in a car in the present? It would make more sense to argue that police were succeeding in profiling likely drug possessors, and that catching them with drugs actually in the car half of the time is a good enough percentage to justify a search. I would disagree with both those arguments -- partly because it would imply a 100% profiling success rate, which is not very likely, partly because I don't think 50% is good enough -- but it would make more sense than the argument actually used.

In effect the police and prosecutors attributed a "sixth sense" to their drug dog, beyond the sense of smell, enabling the dog to sense which cars don't have drugs in them, but whose owners have used drugs. But dogs don't have extra-sensory perception -- at least the law does not consider them to -- and a sitting judge should be able to recognize when an argument so obviously doesn't make sense.

So what is it that can cause an adult judge to play doctor, or to tacitly endorse a theory of canine "ESP"? Maybe it's that the war on drugs is spectacularly illogical in and of itself, but as judges they get immersed in it each day. To maintain a logical state of mind during drug cases would require judges to consciously acknowledge the corruption of the system they serve in, and the extent to which the law has turned them into perpetrators or at least enablers of injustice, a reality anyone might repress. And one thing gone wrong in the mind leads to another.

I'm not sure if that is really what's wrong with judges today, but something is wrong for all of this to be happening. Enough of overreaching, enough of twisted logic or no logic, enough of corrupted standards and intellectual integrity tossed to the wind. Judges need to stand up for truth and reason, and do so now, or they abdicate their status as arbiters of morality and justice. Wearing a robe to work and carrying a gavel isn't enough.