New York Times – by Charlie Savage
WASHINGTON — After a jury found a man guilty of several gun and drug offenses, he took his case to the Court of Appeals for the District of Columbia Circuit. In the spring of 1998, two of the judges on a panel that heard his case agreed to vacate two of his convictions, saying that the evidence was too thin to support one, and the trial judge had made a mistake that tainted the other.
But the third judge on that panel, Merrick B. Garland, a former federal prosecutor whom President Bill Clinton appointed to the court a year earlier, sharply disagreed. In a dissenting opinion, Judge Garland — who is now President Obama’s nominee for the Supreme Court — insisted that the evidence was good enough, and that the trial judge’s supposed mistake did not matter.
Four months later, Judge Garland was assigned to a different panel hearing an appeal in another drug-related case. The two other judges threw out a conviction, saying that a prosecutor had violated the defendant’s right to a fair trial by misquoting a witness’s testimony during closing arguments in a way that suggested the evidence was stronger than it was.
Once again, Judge Garland dissented. The prosecutor, he wrote, had made an “innocent” mistake, and the appeals court should overturn the results of a trial only for “the most egregious of these kinds of errors.”
Those two early dissents in split-panel decisions established a pattern in Judge Garland’s career: In close cases involving criminal law, he has been far more likely to side with the police and prosecutors over people accused of crimes.
Of 14 criminal cases identified by The New York Times in which Judge Garland voted differently from at least one fellow judge, he came down in favor of law enforcement 10 times. There were no occasions in those cases in which he favored a criminal defendant, going against a fellow judge and Democratic appointee who sided with the government.
Like Judge Garland’s pattern of deferring to the government in cases about Guantánamo Bay detainees, his approach to criminal law cases has contributed to his image as a moderate. That image is providing political fodder to Mr. Obama as he denounces Republican senators for refusing to give Judge Garland a hearing.
But it has also prompted some liberals to respond tepidly. Senator Bernie Sanders of Vermont, a Democratic presidential hopeful, recently told MSNBC’s Rachel Maddow that while he strongly supported confirming Judge Garland this year, the judge was “probably not the most progressive pick.” If Republicans keep the seat open and he wins the election, he said, he will ask Mr. Obama to withdraw the nomination so he can name someone else.
Judge Garland continued his introductory tour on Capitol Hill on Tuesday, meeting with Senators Chuck Schumer of New York and Bob Casey of Pennsylvania, both Democrats. Mr. Schumer said the resolve of Republicans not to consider Judge Garland was crumbling, citing the 11 Republican senators who have said they will meet with him.
“Once you meet Judge Garland, I think it’s hard for any human being — Democrat, Republican, liberal, conservative — to say, ‘I’m not going to vote for this person,’ because he’s so qualified and so honorable and so decent,” Mr. Schumer said.
Stephen A. Saltzberg, a former federal prosecutor who teaches criminal law at George Washington University, said Judge Garland was “fair minded,” adding that “in criminal cases, he’s not liberal — he’s not ideologically conservative, either.” That likely stemmed from Judge Garland’s experience as a federal prosecutor, he added.
“I think he genuinely understands some of the pressures on prosecutors and police that perhaps non-law-enforcement judges may discount,” he said. “I’m not saying he’s giving them a pass. I’m saying when it comes time to say ‘This is reasonable,’ he may find something to be reasonable where someone with less experience may say, ‘I don’t see why they had to do that.’ ”
Three of Judge Garland’s cases that resulted in a split decision involved whether to suppress evidence in situations in which a police officer discovered a gun during a search without a warrant. In two — a 2003 caseinvolving an officer who opened a car door, and a 2007 case involving an officer who put his head into an open car window — he voted to permit prosecutors to use the disputed evidence.
In the third, however — a 2008 casepending before the full court and involving an officer who had unzipped a suspect’s jacket — Judge Garland agreed with the defendant’s claim that the officer had committed an illegal search. Even so, he stood apart from his fellow Democratic judicial appointees by declining to join portions of the majority opinion that inveighed against warrantless searches in general, rather than focusing on that episode.
Judge Garland also ruled for law enforcement in several other split decisions involving gun or drug cases. These included a 1998 case and a 2000 case that each raised a different type of evidentiary dispute: a 2004 case in which prosecutors appealed a trial judge’s decision to impose an unusually low sentence, and a 2012 machine gun case in which a defendant argued that prosecutors had to prove that he knew his gun could fire automatically, not just that he possessed it.
White-collar criminal cases in which Judge Garland sided with prosecutors included a split decision in a 2001 bank fraud case in which a defendant argued that his act did not sufficiently affect interstate commerce to be a federal offense. There was also a 2007 bribery case in which a detective argued that looking up information in a police database of license plates did not count as the sort of “official act” covered by an anti-corruption law.
Two other exceptions in which he voted more favorably to defendants than other judges were minor disputes about how to interpret sentencing rules: a2002 loan fraud case and a 2009 drug case. But the final exception was particularly notable.
That case involved whether the police needed a warrant to attach a GPS tracker to a suspect’s car, a novel issue that led to a landmark Supreme Court ruling later. Judge Garland dealt with it in 2010, when the Justice Department asked the full court to rehear a panel ruling suppressing evidence from the tracker. He was among the majority who declined to rehear the case.
Daniel C. Richman, a former prosecutor who teaches criminal law at Columbia Law School, said Judge Garland’s vote in the GPS case complicated the analysis of his criminal law philosophy. The Supreme Court, he said, is far more likely to take cases that can establish or clarify a broad rule than the more routine cases often found in appeals courts.
“The idea that we can look at how a judge like Garland in close cases is willing to tolerate prosecutorial mistakes when it comes to ‘harmless error,’ or how he is willing to give the police the benefit of the doubt in close search-and-seizure cases, I don’t think easily translates to any predictive value when it comes to the kinds of cases the Supreme Court takes,” Mr. Richman said.
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