I was feeling very confident: the two police officers the prosecutor put on admitted that they had no reasonable articulable suspicion of any crime, let alone probable cause, to justify keeping my client in handcuffs on the side of the road for a half hour before checking to see whether he had any outstanding warrants. The judge would just have to find that illegal (and suppress the evidence allegedly found after the arrest when a warrant was found). And it didn’t faze me that the judge asked for additional post-hearing briefing. The law was on my side, the facts were on my side, the prosecutor couldn’t do anything. He didn’t have to. At the next hearing the judge held that the half-hour in handcuffs did not unnecessarily prolong the initially lawful stop.
Every trial criminal defense lawyer knows this feeling, as eloquently described by Scott Greenfield: “we stand there helpless as judges mangle words, if not concepts, waving them off with an imperial flip of the hand as if the hundred years of caselaw never happened.” And sometimes judges who know the exact words of the standards by heart will proclaim that the standard does or doesn’t apply, contrary to all precedent.
But then there are times when the judge will reconsider as we jump back in and show the judge why they should, must rule for our client. And other times when the judge’s apparent “no” or “that can’t be right” is a request to dig deeper, to explain further, to show why this is the right result. Nothing ever bad happened to a lawyer who respectfully asked to be heard. And then sometimes we win. So we hope. And we fight, but not in anger. And even if we lose one battle, the war is not necessarily over.