Judge Milton Hirsch shows how it's done

 I can't do this Order justice in a short blog post.  I recommend reading the whole thing here.  A quick summary on this incredible opinion:

The Hialeah Police Department ran a reverse sting. They didn't pose as buyers. They posed as sellers, used a paid informant to lure in would-be buyers, then seized the buyers' cash, kept 75 percent for the department, and paid the informant a 25 percent commission. Judge Hirsch's questioning exposed that the undercover detective handed out free cocaine to close deals. Over seven years, once or twice a month. By the judge's own math at the hearing, that's a quarter kilo of cocaine put onto the streets. "You don't know if it ended up in the hands of children?" the judge asked. "Correct," the detective said. The informant, meanwhile, had a rap sheet that included a decade in federal prison for cocaine trafficking, a conviction for conspiracy to export stolen cars to Colombia, and a stint as a fugitive. The detective who supervised him had never run a background check. "Not in depth," he testified. "Not at all," counsel pressed. "No, ma'am. No, ma'am."

Judge Hirsch found two independent due process violations. First, the police committed crimes to make their case. The legislature exempts law enforcement from drug laws for "bona fide law enforcement purposes," but no statute authorizes handing out free cocaine at an IHOP. No police chief, no governor, no president can authorize that. "If the constitutional promise of due process of law does not protect against such governmental outlawry," he wrote, "it is difficult to imagine what it protects against." Second, the informant was paid a 25 percent bounty on every dollar seized. The Florida Supreme Court struck down a 10 percent bounty arrangement in Glosson as a due process violation. This was two and a half times worse. On top of that, two jurors told the court they would hold it against Elysse if he didn't testify. His lawyers left them on the jury anyway. He didn't testify. They convicted him.

The conclusion is worth reading in full. Judge Hirsch opens with Thomas Erskine, one of the giants of the English bar: "Unjust prosecutions lead to the ruin of all governments. Whoever will look back to the history of the world in general, and of our own particular country, will be convinced that exactly as prosecutions have been cruel and oppressive, and maintained by inadequate and unrighteous evidence, in the same proportion, and by the same means, their authors have been destroyed instead of being supported by them." Then comes the line that will be quoted for years: "Jason Elysse may be a villain, but he is a villain possessed of due process rights." He invokes Hamlet — the State, like King Claudius, is "still possessed of those effects for which it violated the law in this case: the conviction and imprisonment of Jason Elysse. 'That cannot be.'" He closes with Justice Kogan's dissent in a Florida Supreme Court case: "Drugs injure some of us. The loss of liberty injures all." Motion granted.

Here's some of Judge Hirsch's questioning of the police officer (you really missed out if you didn't see Judge Hirsch in action as a lawyer):

BY THE COURT:

Now, you are in narcotics, you said, for seven years?

A:

Correct.

BY THE COURT:

Do I understand you – you tell me. During that seven-year period, you regularly – with some regularity engaged in reverse stings, is that correct?

A:

Correct.

BY THE COURT:

Throughout the seven-year period?

A:

Correct.

BY THE COURT:

And in connection with each of them, you were – as part of playing your role of a drug dealer, you – you gave sample cocaine away.

A:

Yes, I did, sir.

BY THE COURT:

Over the seven-year period, if we said once to twice a month, on average, is that a fair ballpark average?

A:

Yeah.

BY THE COURT:

You tell me.

A:

Yes, sir.

BY THE COURT:

Okay. So if we give out one to two grams of coke one to two times a month, say, eighteen grams – eighteen times would times one to two grams, so between a hundred and twenty-six and two hundred and fifty-two grams over a seven-year period. Would that be correct?

 

BY THE COURT:

So if we say two – a hundred and twenty-six to two hundred and fifty-two – two hundred and fifty would be a quarter of a kilo, correct?

A:

Yes.

BY THE COURT:

So in the seven years you were there, you – you may have given out a quarter of a kilo in cocaine?

A:

Fair – fair to say.

BY THE COURT:

Once you gave it away, there was no way to know what happened to it?

A:

Correct.

BY THE COURT:

You don’t know if the person you gave it to used it?

A:

Correct.

BY THE COURT:

You don’t know if he sold it?

A:

Correct.

BY THE COURT:

You don’t know if he gave it away?

A:

Correct.

BY THE COURT:

You don’t know if it ended up in the hands of children?

A:

Correct.

BY THE COURT:

You made no effort to find out?

A:

Correct.

BY THE COURT:

There was no way to find out?

A:

No, no way.

BY THE COURT:

It was just a risk you took as part of doing this business?

A:

Yes, sir.