[Congressional Record Volume 142, Number 35 (Thursday, March 14, 1996)]
[House]
[Pages H2309-H2311]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  CALLING FOR JUDGE BAER'S RESIGNATION

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentleman from Michigan [Mr. Upton] is recognized for 5 minutes.
  Mr. UPTON. Mr. Speaker, I would like to bring to the attention of 
this Chamber a rather disturbing element that I have learned about over 
the last couple of weeks and to share my thoughts with those in the 
Chamber with regard to an individual by the name of Judge Baer in New 
York. There is a Wall Street Journal editorial back in the end of 
January, and I will put all of these into the Record, but I just want 
to read a little piece of this article. It says:

       Winning the war on drugs won't be easy if the battles end 
     up in courtrooms that like that of Harold Baer, Jr., of the 
     Federal District Court in Manhattan. Judge Baer ruled

[[Page H2310]]

     Wednesday that 80 pounds of cocaine and heroin that police 
     found in a car in the drug-wracked neighborhood of Washington 
     Heights could not be used as evidence.

  It goes on to say that:

       In his State of the Union address that Mr. Clinton gave 
     here in this Chamber, he told Americans that `Every one of us 
     have to have a role to play on this team.' But the best anti-
     drug legislation and the best law enforcement won't work 
     unless the judiciary is willing to enforce the laws.

  In a New York Times editorial, the end of January; ``Judge Baer's 
Tortured Reasoning'' is the title. It goes on to say that:

       What this judge managed to do through his sloppy reasoning 
     was to undermine respect for the legal system, encourage 
     citizens to flee the police and deter honest cops in drug-
     infested neighborhoods from doing their jobs.

  It goes on to say that:

       Consider the scene described by the officer. As he and his 
     partner sat in their unmarked car, they saw four men approach 
     the defendant's car. With team-like precision and without 
     speaking to the driver, they opened the trunk, dumped two 
     duffel bags in back, and then shut the door, running away 
     when they spotted the officers. Surely these facts, taken 
     together, present precisely the sort of suspicious 
     circumstance police are supposed to be looking out for.

  The police in this case saw these individuals put 80 pounds of drugs 
in the back of the car, 5:00 in the morning, that car. The driver 
admitted she was taking them to Michigan where the street value of 
these drugs was worth $84 million. Eighty pounds. And, lo and behold, 
the judge let them off the hook because it was not unusual for folks to 
run away from the police in New York.
  Well, that is outrageous.
  An article in today's Washington Post, page 3; the title says 
``Accusations of Coddling Criminals Aimed at Two Judges in New York.'' 
The Speaker in a news conference last week is quoted as saying this is 
the kind of pro-drug dealer, pro-crime and police and anti-law 
enforcement attitude that makes it so hard for us to win the war on 
drugs.
  Mr. Speaker, a number of us and my colleague from New York, Mr. 
Forbes, the chairman of the crime subcommittee, the gentleman from 
Florida, Mr. McCollum, and I circulated a letter among House colleagues 
this past week that asked the President to ask for Judge Baer's 
resignation, and I am proud to say that a majority of this House have 
now signed that letter, Republicans and Democrats alike. We are going 
to be sending that letter to the President on Tuesday next, and I would 
ask those of my colleagues that have not signed the letter to please 
find me between now and Tuesday so they can add their names to a 
majority of those in this House.
  My colleague, the gentleman from Michigan [Mr. Stupak] is a 
signatory; my colleague, the gentleman from Ohio [Mr. Hobson], as well 
as the gentleman from Florida [Mr. Foley], are also signatories of that 
letter, so that we can let the President know that this man should not 
serve as a Federal judge for letting these folks on, and we merely ask 
the President to ask Judge Baer to step down based on the decision that 
he made.
  The articles referred to are as follows:

               [From the Wall St. Journal, Jan. 26, 1996]

                             The Drug Judge

       Winning the war on drugs won't be easy if the battles end 
     up in courtrooms like that of Harold Baer Jr. of the Federal 
     District Court in Manhattan. Judge Baer ruled Wednesday that 
     80 pounds of cocaine and heroin that police found in a car in 
     the drug-wracked neighborhood of Washington Heights could not 
     be used as evidence. The drugs, which have a street value of 
     $4 million, are ``tainted evidence,'' he said.
       He ruled that the police had no good reason for searching 
     the car, despite the fact that the four men putting duffel 
     bags into the trunk took off running when they saw the cops. 
     This, the judge ruled, was not suspicious behavior. Reason: 
     the ``residents of this neighborhood tended to regard police 
     officers as corrupt, abusive and violent.'' As a matter of 
     fact: ``Had the men not run when the cops began to stare at 
     them, it would have been unusual.''
       The woman who was driving the car gave the police a 
     videotaped confession. Carol Bayless, a 41-year-old Detroit 
     woman, told police that she expected to be paid $20,000 for 
     driving the drugs back home, and said that she had made a 
     total of about 20 trips to New York to buy drugs. Judge Baer 
     threw out the videotaped confession. Unless the ruling is 
     overturned by the appeals court, the prosecutors say they no 
     longer have a case; Ms. Bayless, who faced 10 years to life 
     in jail, will be free to go.
       The year's young, but we doubt Judge Baer will have any 
     competition for this year's Judge Sarokin Award, named in 
     honor of the federal judge in New Jersey who ruled for a 
     homeless man who used to lurk inside the Morristown library, 
     spreading his ``ambrosia.'' Liberalism manages to deliver us 
     these rulings on a regular basis, so it's appropriate to 
     raise a few concerns.
       The first has to do with community standards. Aren't the 
     mostly minority residents of Amsterdam Avenue and 176th 
     Street, where the incident took place, entitled to the same 
     level of protection as the mostly white residents 100 blocks 
     south on Amsterdam in the heart of New York's Yuppiedom? We 
     suspect the law-abiding residents of Washington Heights might 
     take a different view about whether the bigger threat to 
     their well-being is the police or fleeing drug runners.
       The other issue raised by the Baer ruling is the politics 
     of judicial appointments. Judge Baer is a Clinton appointee, 
     named to the federal bench in 1994 on the advice of the 
     Democratic Senator from New York, Patrick Moynihan. Now, 
     certainly it is the case that Democrats have appointed first-
     rate jurists to the federal bench. But it's also the case 
     that it is at the liberal end of the modern judiciary that 
     communities find their interests trampled by overly expansive 
     and even absurd legal claims for defendants.
       If Mr. Clinton is re-elected, by the end of his second term 
     he will have filled roughly half of the slots in the federal 
     judiciary, including majorities on the federal appeals 
     courts. And that he would get one, two or even three more 
     appointments to the Supreme Court. Mr. Clinton no doubt would 
     separate himself from decisions like Judge Baer's, but one 
     then has to somehow believe that he would actually separate 
     himself from the constituencies insisting that he pick from 
     the same candidate pool that produces such judges.
       As for the war on drugs, we commend Judge Baer's ruling to 
     the attention of drug czar-designate, General Barry 
     McCaffrey. In his State of the Union address Tuesday, Mr. 
     Clinton told Americans that ``every one of us have a role to 
     play on this team.'' But the best anti-drug legislation and 
     the best law enforcement won't work unless the judiciary is 
     willing to enforce the laws.
                                                                    ____


                [From the New York Times, Jan. 31, 1996]

                    Judge Baer's Tortured Reasoning

       With his controversial ruling last week tossing out key 
     evidence and a voluntary confession in a major drug 
     conspiracy case, Federal District Judge Harold Baer Jr. 
     apparently hoped to make a point about the serious problem of 
     police corruption in New York City that he helped uncover as 
     a member of the 1993 Mollen commission. What the judge 
     managed to do instead, through his sloppy reasoning was to 
     undermine respect for the legal system, encourage citizens to 
     flee the police and deter honest cops in drug-infested 
     neighborhoods from doing their job.
       This is not to say that the judge was wrong to be concerned 
     about Fourth Amendment issues and protections against illegal 
     searches. But in this case he went badly overboard.
       Like many Fourth Amendment challenges to police searches 
     and seizures, the case turned on a question of whether 
     officers had a ``reasonable suspicion'' to stop the 
     defendant, a Detroit woman named Carol Bayless, whom police 
     watched as she drove slowly up Amsterdam Avenue in Upper 
     Manhattan in a car bearing Michigan plates at 5 A.M. last 
     April 21. Judge Baer offers defensible, if not entirely 
     convincing, reasons for believing the rendition of events 
     provided by the defendant in her confession just after her 
     arrest rather than the version provided by one of the 
     arresting officers eight months later.
       But even the somewhat less suspicious-looking circumstances 
     described by the defendant would seem to meet the fairly low 
     threshold of ``reasonable suspicion'' for stopping and 
     questioning her. In a high-crime neighborhood, the police 
     need reasonable leeway to question activity that seems 
     unusual. Because the judge found no justification for 
     stopping the car, he did not reach the issue of whether the 
     officers had either the requisite consent from the woman or 
     ``probable cause'' that criminal activity was afoot when they 
     opened the trunk and seized 80 kilos of cocaine and heroin.
       By far the most troubling aspect of the decision is the 
     judge's superfluous finding that even if every detail of the 
     police account were true, it would still not justify the 
     investigatory stop. That is not just wrong, it is judicial 
     malpractice. Consider the scene described by the officer. As 
     he and his partner sat in their unmarked car, they saw four 
     men approach the defendant's car. With teamlike precision and 
     without speaking to the driver, they opened the trunk, dumped 
     two duffle bags in back and then shut the door, running away 
     when they spotted the officers. Surely the factors, taken 
     together, present precisely the sort of suspicious 
     circumstances police are supposed to be looking out for.
       Judge Baer may be correct in observing that the corrupt 
     scandal in upper Manhattan would have made it ``unusual'' had 
     the men not run away. But that does not support a legal 
     finding that flight is not a factor to be weighted in 
     determining whether there is ``reasonable suspicion.'' Judge 
     Baer's logic would guarantee that law-abiding citizens in 
     minority neighborhoods, where tensions with the police are 
     most strained, get a lower standard of policing.
                                                                    ____


[[Page H2311]]

                [From the Washington Post, Mar. 1, 1996]

   Accusations of Coddling Criminals Aimed at Two Judges in New York

                          (By John M. Goshko)

       New York.--Two recent judicial decisions here--one throwing 
     out evidence in a big narcotics case and the other freeing a 
     defendant who then killed his former girlfriend--have ignited 
     a firestorm of outrage about alleged coddling of criminals.
       The controversy has been so intense that many legal experts 
     fear it could disrupt the dispensing of justice in local 
     courts and spread beyond New York to become part of the 
     election year debate about what ails America.
       Several judges and legal scholars, while acknowledging that 
     the decisions were controversial, nevertheless expressed 
     concern that the abbreviated versions provided by much of the 
     media have distorted the public's understanding of some very 
     complex legal issues.
       The unrelenting criticism directed against the two 
     decisions, and the two judges, has put their colleagues at 
     all levels here under heavy pressure to demonstrate in 
     rulings and sentences that they are not soft on crime, these 
     experts said. In an era of growing social conservatism, the 
     rulings are providing fodder for those who think it is time 
     for the courts to stop fine-combing evidence and simply lock 
     up criminals.
       Gov. George E. Pataki (R) recently fired the first salvo in 
     such a campaign when he announced legislative plans to limit 
     the powers of the state's highest court, the Court of 
     Appeals, to impose what he called burdensome restrictions on 
     the police and prosecutors. New York City's law-and-order 
     police commissioner, William J. Bratton, also denounced ``the 
     screwball Court of Appeals,'' saying it ``is living off in 
     Disneyland somewhere. They're not living in the streets of 
     New York.''
       The two decisions at the heart of the controversy did not, 
     in fact, emanate from the Court of Appeals, but from other, 
     widely disparate levels of the criminal justice hierarchy.
       First, in late January, Judge Harold Baer, Jr. of the U.S. 
     District Court that serves Manhattan ruled that 80 pounds of 
     cocaine and heroin found by police in a car could not be used 
     as evidence. The fact that four men seen putting the 
     narcotics in the car ran away when they spotted a police 
     officer was understandable, given fear of the police in many 
     inner-city neighborhoods, and did not constitute cause to 
     search the car; the judge decided.
       ``As long as there are judges like that, criminals will be 
     running wild in the streets,'' said Louis Materazzo, 
     president of the New York Patrolmen's Benevolent Association. 
     That actually was one of the milder comments in the chorus of 
     criticism immediately sounded by Pataki, Bratton and even 
     Mayor Rudolph W. Giuliani (R), an old friend and colleague of 
     Baer from the days when Giuliani was the U.S. attorney in 
     Manhattan and Baer was one of his aides.
       By this week, the ripples from Baer's decision had spread 
     to Congress, where 150 House members signed a letter to 
     President Clinton calling on him to ask for the federal 
     judge's resignation. Among the signers was House Speaker Newt 
     Gingrich (R-Ga.), who told a news conference: ``This is the 
     kind of pro-drug dealer, pro-crime, anti-police and anti-law 
     enforcement attitude that makes it so hard for us to win the 
     war on drugs.''
       On Feb. 12, the dispute about what New York's raucous 
     tabloids dubbed ``junk justice'' took a new turn. Benito 
     Oliver, a convicted rapist with a history of domestic 
     violence, walked into a car dealership where his former 
     girlfriend, Galina Komar, worked, shot her to death and then 
     killed himself. It quickly came out that three weeks earlier, 
     Judge Lorin Duckman of the Criminal Court in Brooklyn, the 
     lowest rung on New York's judicial ladder, had turned aside 
     Komar's request for protection and allowed Oliver to go free 
     while he awaited trial on charges of harassing her.
       In transcripts of the court hearing Duckman sounded 
     dismissive of the injuries Oliver had inflicted on Komar, 
     noting that she had been ``bruised but not disfigured.'' The 
     judge expressed repeated concern about the well-being of a 
     dog that Oliver had left in Komar's care.
       The uproar only intensified when it was further revealed 
     that Duckman, in a similar case last summer, allowed a 
     Brooklyn man, Maximino Pena, to go free hours after a jury 
     had convicted Pena of attacking his former girlfriend. On 
     Feb. 15, Pena was back in jail, this time charged with 
     dragging the same woman down two flights of stairs and 
     punching her in the face.
       Duckman has since gone on an indefinite vacation. But his 
     temporary retreat from the bench has not halted the torrent 
     of denunciations from officials, women's rights advocates and 
     newspaper editorialists. Giuliani said Duckman displayed ``a 
     frightening lack of common sense'' that showed he ``should be 
     doing something else for a living.''
       Pataki, asserting that ``Judge Duckman is unfit to serve,'' 
     called on the State Commission on Judicial Conduct to remove 
     him from the bench. The governor added that if the commission 
     fails to do so, he would ask the state Senate to oust 
     Duckman, a punishment that it has administered only once 
     before, in 1872.
       The churning caused by these two cases has even been given 
     a philosophical counterpoint by the coincidental publication 
     of a new book, ``Guilty: The Collapse of Criminal Justice,'' 
     written by state acting Supreme Court Justice Harold J. 
     Rothwax. Rothwax argues that judges today often apply 
     principles about evidence and defendants' rights so rigidly 
     that the guilty go free.
       However, there is real concern in legal circles that the 
     fallout from these two cases is causing judges to protect 
     themselves against charges of being excessively pro-
     defendant.
       Judith Kaye, New York's chief judge, recently said she was 
     worried that the castigation of Baer and Duckman could subtly 
     affect the way cases are decided. And many lawyers say that, 
     in contrast to just two or three months ago, they now see 
     signs of defendants being subjected to higher bail, rulings 
     that lean heavily toward the prosecution and tougher 
     sentences when found guilty.
       The most glaring example of how these pressures appear to 
     be operating was the agreement by Judge Baer to permit a new 
     hearing on the narcotics evidence that he earlier suppressed 
     to such an outcry. A reconsideration like this is almost 
     never done by federal judges. Moreover, many lawyers said 
     they will not be surprised if Baer finds reasons to rule that 
     the drug evidence is admissible.
       ``I have no idea what he'll do, but you'd have to be 
     superhuman not to be affected by all the criticism and abuse 
     that the man has taken over that ruling,'' said Albert 
     Alschuler, a law professor at the University of Chicago.
       The case turned on a judgment about whether police had a 
     ``reasonable suspicion'' to stop and search a car at 5 a.m. 
     in Washington Heights, a largely Hispanic enclave of 
     Manhattan that is a known center of drug activity. Before 
     becoming a judge, Baer had served on a commission 
     investigating police brutality in that neighborhood. In his 
     opinion, he noted that people there regard the police as 
     ``corrupt, abusive and violent,'' and he said that under 
     those circumstances it was not unusual for the suspects to 
     run away.
       ``I'm a native New Yorker from the East Bronx,'' said Yale 
     Kamisar, a University of Michigan law professor and a leading 
     expert on criminal procedure. ``When we played stickball as 
     kids and hit the ball through someone's window, everyone ran 
     because you knew if the cops caught you, they'd give you a 
     hard time. It's human nature to run from what you think might 
     be trouble.''
       Kamisar said Baer appears to have decided that the police 
     used the flight as grounds for searching the car without 
     following other procedures that might have safeguarded the 
     legality of their actions.
       Even in the Duckman controversy some lawyers think there 
     were legal considerations involved that have been overlooked 
     in the tragic aftermath of the case. ``He made what are 
     undeniably some stupid and insensitive remarks,'' said one 
     lawyer who asked not to be identified. ``But the facts are 
     that this fellow, Oliver, had been in jail for 40 days and 
     the Brooklyn district attorney's office failed to present any 
     strong evidence that he posed a danger to the woman that 
     justified holding him longer in what arguably would be a 
     violation of his constitutional rights.''
       The judge also appeared to be reacting to some ``sloppy 
     handling'' of the case by the prosecutors, and the judge 
     decided to ``teach them a lesson,'' the attorney said: ``The 
     only problem with a judge doing something like that--trying 
     to regulate the way a prosecutor's office works--was that the 
     rights of the victim got overlooked.''

                          ____________________