Sotomayor's powers of persuasion.

The law, lawyers, and the court.
May 28 2009 5:03 PM

Sotomayor Sides With the Cops

And persuades a Republican judge to go along with her.

What power does Sonia Sotomayor have to persuade other judges—especially conservatives—of her views? It's a question that will determine her future effectiveness at the Supreme Court, since winning there is all about counting to five votes, which for the liberals and moderate justices in the foreseeable future makes it all about wooing Justice Anthony Kennedy to be their fifth. Sotomayor will leave a far deeper imprint on the court if she can convince Kennedy or another conservative that she's right in cases she cares about. So what does her record suggest about how good she is at the fine art of persuasion?

Sotomayor has been a good emissary for herself, based on the evidence I've gathered from her clerks and other chambers about how she has worked with Republican appointees on her court. What's remarkable isn't just her persuasive abilities, though. It's where those powers sometimes take her. In one case, Sotomayor talked a Republican-appointed judge around to a result that is all about taking the police at their word—even though the disturbing, even wrenching circumstances surrounding the arrest at the heart of the case might point exactly in the opposite direction. Liberals, be careful what you wish for.

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The case is Jocks v. Tavernier, argued in 2001 and decided in 2003. That long gap is the only external clue that the judges who decided Jocks fractured in any way. But they did. (A note about my reporting on this: Clerks and lawyers weren't willing to talk on the record, because of the veil of confidentiality that's supposed to shroud judges' deliberations. Anonymous sniping has already been a huge problem in the reporting about Sotomayor, and I wish I could get around it. But I can't. So I'm doing my best to talk to people from a variety of professional vantage points and to test some of their perceptions against others'. That along with the written opinion is the basis for this story.)

Jocks v. Tavernier starts with the breakdown of a tractor-trailer on the Long Island Expressway in 1994. Thomas Jocks, a truck driver, tried to pull his truck off the highway when his engine failed. He made it onto the shoulder, but about 4 feet of the trailer were jutting out into the right-hand lane. Jocks put up flares behind the truck, as state law requires. But he was worried about causing an accident. Unable to flag down another car, he ran three-quarters of a mile to a gas station, which had an outdoor pay phone (1990s = the pre-cell-phone dark age). Augusto Tavernier was talking on the phone, actually from inside his car, because the phone had a cord designed to be used that way.

Jocks gave the following account of what happened next: He ran up and told Tavernier there was an emergency because his truck was jutting out onto the expressway. Tavernier told him to find another phone. Jocks repeated the emergency part of his story. Tavernier swore at him. Jocks knocked on his windshield and kept urging him to give him the phone. Finally, Jocks went into the phone stand and hung up on Tavernier's call. At that point, Jocks said, Tavernier threw the receiver at him, tried to get out of his car, couldn't because the phone stand was blocking his door, and drove forward. Jocks dialed 911. Tavernier charged him, yelling. Jocks yelled back. Tavernier said, "Why don't I blow your fucking brains out?" and drew his gun. He pressed the gun into the back of Jocks' head, and said, "Freeze, police"; and then an off-duty Nassau County police officer arrived, got the situation under control, and arrested Jocks.

Tavernier, too, proved to be an off-duty cop. After his arrest, Jocks was held for 24 hours and ended up having to make 28 court appearances before he was found not guilty of felony assault. He spent $20,000 on legal fees, lost his truck driving job, and had to give up full custody of his daughter, who went to live with her mother, his ex-wife. That dire, black moment on the LIE truly cost him.

Jocks sued Tavernier, and also the detective who booked him, for false arrest and malicious prosecution. At trial, Tavernier's story was that when Jocks asked for the phone, he didn't say anything about an emergency. He just hung up on Tavernier and started making a call, and then when Tavernier tried to hang up on him, Jocks swung the phone and hit him in the face. At that point, Tavernier said, he drew his gun and arrested Jocks.

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