Worried about Sotomayor? Consider Andre Davis
By: Byron York
Chief Political Correspondent
June 11, 2009
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We've heard a lot about Supreme Court nominee Sonia Sotomayor lately. But you probably haven't heard of Andre Davis. Yet Davis, as much as Sotomayor, is a telling indicator of the direction in which President Obama seeks to steer the federal judiciary.
Davis, 60, is a judge on the U.S. District Court in Maryland. Originally appointed by Bill Clinton, he's been on the court since 1995. Now, Obama has nominated Davis for elevation to the Fourth Circuit Court of Appeals.
Davis has already been approved by the Senate Judiciary Committee by a 16 to 3 vote, and his confirmation by the Democratic-controlled Senate seems assured. But before senators confirm Davis, they might want to examine his record of handling dangerous criminals, beginning with the case of United States v. Kimbrough.
The story began in 2005, when Baltimore police got a tip that two men were selling drugs in front of a house. A short time later, officers watched as the men made a deal with people who had pulled up in a car.
The men told police they were visiting a friend who lived in the house. When cops knocked on the door, they met a woman named Yolanda Kimbrough, who lived there with her son Damon and several other relatives. She swore there were no drugs in the house and signed a consent form allowing officers to look around.
At that point, there was some sort of commotion in the basement. The police headed downstairs, where, according to court documents, they found Damon Kimbrough, "sitting on a bed, apparently dividing cocaine with a razor blade." They arrested him and put him in cuffs.
Yolanda Kimbrough came downstairs. She seemed shocked, the officers recalled, becoming angry and yelling at her son. "What's this?" she shrieked at him.
The officers began to read Damon his Miranda rights. Yolanda Kimbrough continued yelling at her son. As the cops struggled to finish the Miranda warning, Yolanda Kimbrough asked, "Is there anything [else] down here?" and Damon told his mother there was a gun hidden in the sofa. Sure enough, there was. Firearm charges (the gun was stolen) were added to the drug charges against Kimbrough.
The case went before Judge Davis. Kimbrough argued that his admission about the gun should be excluded from the trial. Including the statement would violate his Fifth Amendment right against self-incrimination, Kimbrough claimed, because he had not been fully given his Miranda rights. Prosecutors reminded the judge that Kimbrough was answering questions posed by his mother, not the police -- and there is no constitutional protection against answering questions from your mother.
Davis sided with Kimbrough. The cops knew Yolanda was "upset, was really coming after her son, was angry at him," the judge wrote. The mother was essentially asking the cops' questions for them, Davis argued, "so this was official interrogation."
The case went to the Fourth Circuit Court of Appeals, which unanimously slapped down Judge Davis. "Ms. Kimbrough, not the police, initiated the exchange with [Damon Kimbrough]," the appeals-court judges concluded. Therefore, Kimbrough's answers "were not the result of police interrogation -- either by express questioning or its functional equivalent."
Thus ended Andre Davis' effort to extend the Fifth Amendment to questioning by mothers everywhere.
Davis has made other, equally striking mistakes. There was the 2004 case in which a drug dealer used a Mail Boxes Etc. branch to pick up packages of cocaine. Police confiscated one package and discovered that the man had keys to several other boxes which investigators knew had been used to receive drugs. The cops also had eyewitness testimony linking the man to the boxes. Yet Davis ruled police did not have probable cause to arrest and search the man. The judge's decision was unanimously overturned by the Fourth Circuit.
Then there was the 2006 case in which Davis virtually begged three violent drug offenders to plead guilty so they could get lighter sentences. It was a near-total abdication of a judge's role as neutral arbiter, which the Fourth Circuit, in unanimously overturning Davis, said "affects the fairness, integrity, and public reputation of judicial proceedings."
In all, Davis' decisions on criminal matters have been overturned 13 times, more often than not because Davis erred by siding with accused criminals.
Now, President Obama has nominated Davis to the same Fourth Circuit that repeatedly overturned him, where, if confirmed, he will be responsible for correcting the sort of errors that he himself made so often.
Byron York, The Examiner’s chief political correspondent, can be contacted at byork@washingtonexaminer.com. His column appears on Tuesday and Friday, and his stories and blog posts can be read daily at ExaminerPolitics.com.
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