He Walks the Walk It Seems

This is Judge Cormac Carney. 

He sits on the United States District Court for the Central District of California.  He was nominated by George W. Bush who seems, in this case at least, to have done something right.  See, Carney actually seems to mean that thing about upholding the Constitution.  More importantly, he seems to think the government should uphold it, too.

There is, of course, a story.  The story is an Amended Order he issued Wednesday in Islamic Shura Council of Southern California v. Federal Bureau of Investigation.  That's the case where the government's lawyers lied to him.  When he called them on it, they said they had every right to do that.

This isn't the first time lawyers for the government got caught lying in court.  There was, for instance, Rachel Cannon in USA v. Freeman (discussed here and here).  And there are the occasions when the judge and prosecutor conspire to lie to the jury (see here).  But it's rare for the Government to just come right out and claim that it has a right - even a duty - to lie to the court.

So, one of the two things remarkable about Judge Carney's Amended Order is that it's in part a response to just that claim.

The Court indicated that it did not believe that the Government had any authority to mislead the Court. The Government argued otherwise . . . .

Really. 

The Government argued otherwise.

The other remarkable thing about Judge Carney's Amended Order is that he didn't buy it even after the Government said that national security required it.  Here are some highlights.

• The Government’s in camera submission raises a very disturbing issue. The Government previously provided false and misleading information to the Court. . . . The Government’s representations were then, and remain today, blatantly false. . . . The Government asserts that it had to mislead the Court regarding the Government’s response to Plaintiffs’ FOIA request to avoid compromising national security. The Government’s argument is untenable. The Government cannot, under any circumstance, affirmatively mislead the Court.
• The Government contends that the FOIA permits it to provide the Court with the same misinformation it provided to Plaintiffs regarding the existence of other responsive information or else the Government would compromise national security. That argument is indefensible.
• The Government has no legitimate basis for deceiving the Court. . . . The Court can be trusted with the truth.
• The Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it.

This is not the first opportunity I've had to recognize that Judge Carney meant it when he took that oath of office.  Back in December 2009, he dismissed the charges in the Broadcom conspiracy.

    Based on the complete record now before me, I find that the government has intimidated and improperly influenced the three witnesses critical to Mr. Ruehle's defense.  The cumulative effect of that misconduct has distorted the truth-finding process and compromised the integrity of the trial.
     To submit this case to the jury would make a mockery of Mr. Ruehle's constitutional right to compulsory process and a fair trial.  The Sixth Amendment to the United States Constitution guarantees the accused the right to compulsory process for witnesses in its defense.  For this constitutional right to have true meaning, the government must not do anyting to intimidate or improperly influence witnesses.  Sadly, government did so in this case.
     . . .
     Now, I'm sure there are going to be many people who are going to be critical of my decision in this case and argue that I'm being too hard on the government.  I strongly disagree.  I have a solemn obligation to hold the governemnt to the constitution.  I'm doing nothing more and nothing less.  And I ask my critics to put themselves in the shoes of the accused.
     You are charged with serious crimes and, if convicted on them, you will spend the rest of your life in prison.  You only have three witnesses to prove your innocence and government has intimidated and improperly influenced each one of them.  Is that fair?  Is that justice?  I say absolutely not.

I praised him, but wondered

if he'll be as concerned when he sees the government engage in these tactics when the charges involve murder or trafficking in drugs and the defendants are dressed in hoodies and sagging pants rather than thousand dollar suits and gold cuff links.

Technically, I suppose Islamic Shura Council doesn't answer that question.  But in every non-technical way, it does.  No special favors for the government, not even when it screams "national security."

There are two kinds of good judges.  

There's the judge who'll rule my way.  On this issue.  In this case.

And there's the judge who'll follow the law.  Wherever it takes her.  Whatever's required.  Regardless. She'll be smart and fearless and honest.  She'll treat everyone with respect.  She'll be flexible with rules and procedures to accommodate both the parties and the particulars of the cases before her. (One size doesn't fit all.  In fact, five sizes don't.)  She'll be humble enough to know that she'll sometimes get it wrong and insofar as she can, she'll correct them.  She won't always do what I want, won't even do what I think she should do all the time since there are real ambiguities in the law that can be resolved in different ways and now and again she'll make a mistake and her analysis will differ from mine (dammit!)

On any given day, of course, I want to be in front of the first kind of judge, the one who's going to rule my way, today, on this issue, in this case.

But in absolute terms, I want a bench filled with the second sort.  I'll take some lumps (though I'll win my share), but I'll know, and so will everyone else who pays attention, that her courtroom is a place where the law is done right and where justice and mercy and fairness will actually reign.

There's probably nobody out there who fully qualifies as that Platonic judge.  But for fearlessness and a kind of rough integrity, Cormac Carney may be as close as they come.  

Islamic Shura Council v. FBI

Carney may be a terrible judge in all sorts of ways.  He might be a martinet.  He might be the harshest sentencer on the federal bench.  He might have no idea how the Federal Rules of Evidence work and might rape small children in his spare time.  He might be a first rate asshole.

I don't know.  I've never met the guy and I've never asked for a personal report from those who appear before him.

But here's what I know.  He won't let the government intimidate defense witnesses.  He won't let the government lie to him.  

You'd like to think no judge would.

If you actually did think that, you'd be wrong.