Interesting Comment On Pennsylvania v. Dunlap:
It's tricky ground to credit anonymous blog comments, but the earlier thread on Chief Justice Roberts's dissent from denial of certiorari in Pennsylvania v. Dunlap brought out an interesting comment by "Anon Philly ADA" that I wanted to highlight. An excerpt:
I argue Dunlap motions every couple of days, so . . . I thought I'd share a few thoughts for some of the commenters above.A few readers in the thread were also puzzled as to why Roberts wrote the dissent in such an exaggerated style. I can't be sure; perhaps it was just to be entertaining. But I would think that a dissent from denial of certiorari that gets a lot of media attention would be highly likely to be read closely by the Pennsylvania Supreme Court Justices. In contrast, I'm not sure sure that the same would be true with a dissent from denial of certiorari that the media ignored. While I personally think that first paragraph was a bit much — did we really need "tough as a three dollar steak" to enter the legal lexicon? — it was entertaining enough to have been picked up by the MSM and read pretty widely around the legal blogosphere.
First, Dunlap probably doesn't let a lot of drug dealers go free. It lets a lot of drug users go free. Our office refers to Dunlap motions as "first buyer motions" because it's pretty difficult to get the first buyer convicted. The second and third and fourth buyers are no problem, and neither is the dealer if there are several observed sales. Usually the cops will wait around for a couple of observed sales anyway (or will use a confidential informant, not an undercover officer, over a period of time), or will get some other evidence of dealing (scales, large amounts of cash) through a search warrant.
. . . . The makeup of the PA Supreme Court has changed since Dunlap and it's possible that they'll reverse the decision themselves when the right case is brought up on appeal. Or at least that's what we're all hoping for. Until then, don't worry, we'll keep trying to put away the bad guys.
It seems to me that when you're the Chief Justice of the United States, joined by the Court's swing vote, you don't have to worry about state judges being turned off by a paragraph of gimmicky language followed by several pages of pretty devastating legal analysis.
Shakespeare, Timon of Athens
In addition to Professor Kerr's point, is there any evidence that this is really true? Several people mentioned Flood v. Kuhn in the earlier thread-- writing gimmickry if there ever was any-- and yet as far as I know, Flood is good law on the issue of legislative acquiescence and stare decisis.
Do you view that as an abuse of his judicial role? It seems like Roberts might be pulling a Breyer (thinking of the "letters to Congress via S.Ct. opinion" discussion of a while ago).
Maybe this was just a shout out from JRob to his boy John McCain to bolster the R law-and-order street cred in PA.
"Letters to a state S.Ct. via Public opinion"?
So what's all this complaining about "gimmickry" just because Roberts adapted a well-known literary model to make his basic point in an arresting way (pardon the pun)? Since when has boring and dull become a virtue in judicial writing, just because that's (unfortunately) what we've all become used to?
This is exactly the problem. Kent Scheidegger states the point well, there's no need to include any literary allusions in there.
I just have a problem with any opinions that contain poetry, stories, or pop culture references. If you want to entertain, write a short story for a magazine. I'm sure they will publish it.
Certiorari was also denied in Marlowe's case the same day, Justice Scalia dissenting.
Of course, everything looks criminal when phrased in the language of pulp crime novels.
We could just as well write the scene from the point of view of the defendants:
"I step outside my house for a smoke and see my buddy Vinny. Nice evening he says and wishes me good luck at the interview -- I shake his hand and apparently that's all the proof they need."
Robert's literary flourish is just a fancy way of begging the question.
Um, no, you're wrong. Probable cause is measured from the perspective of the police, not the defendants.
Thank you for crediting my anonymous (but highly credible!) thoughts. I think you may be right about Roberts's motivation.
PC is measured from the perspective of the police, based on evidence that they know.
and In the instant case, nobody disputes the evidence or the fact that there was no evidence of illegal activity. What the police had was an inference and the test, if I'm not mistaken, is whether that inference is reasonable.
IMO, in this case, the inference that two gentlemen meeting briefly at night in a high crime neighborhood must be exchanging drugs is borderline since there are so many innocent explanations.
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