My Favorite Judge.

Whenever I am asked why I became an appellate judge, I answer, "It's all Charlie Moylan's fault!"

I first met Judge Charles E. Moylan, Jr. of the Maryland Court of Special Appeals in 1982 when I sat in one of the many audiences he addressed over the years and all over the country on the Fourth Amendment and a variety of other subjects. He has written several books on Fourth Amendment jurisprudence and is regarded as the guru of search and seizure issues.

A few years after our initial meeting, I too began to lecture around the country, mostly to prosecutor associations, on several CLE subjects and my path would often cross Judge Moylan's and somewhere along the way, we became friends. I used whatever influence I had to make sure he was invited annually to speak to my state's prosecutors and, I suspect due at least in part to his influence, I was often invited to speak to the Maryland prosecutors. Over the many years (and more than a few beers) that we have shared, I learned that we both had very similar backgrounds and my career path has been largely identical to his.

It was Charlie more than anyone who influenced me to aspire to the appellate bench. I recently contributed to a textbook on appellate advocacy and Charlie was kind enough to surface from retirement long enough to say some nice things about me in the book's Forward.

Judge Moylan has been a mentor and my model as an appellate judge - roles that I know he has played for others. He is an icon in the State of Maryland and I am not, and never will be, in his class but when I grow up, I want to be a judge just like Charlie Moylan.

During the 1980's and early 1990's, Judge Moylan's name was often mentioned for vacancies that occurred on the Fourth Circuit and even as a dark horse for the Supreme Court. Unfortunately, Charlie was that most unconfirmable species of potential federal judge or justice, a relatively conservative Democrat.

A bout with cancer a few years ago caused him to suspend his CLE lectures and in 2000, Maryland's mandatory retirement age forced him from active service on his court but fortunately for the sovereign State of Maryland and its citizens, it now appears that they still have enough sense to allow Charlie to sit by designation.

His latest opinions, to my knowledge the first he has written since beating cancer, have brought back all of these memories and as an aside, they show that he hasn't lost a step:

From State v. Brown, decided yesterday, on the issue of whether the length of a traffic stop was unreasonably long such as to amount to an unreasonable detention:

"In the time elapsed, the officer could have written the (traffic) warning in cuneiform...."

"The State, for the first time on appeal, has come forth with an alternate theory of Fourth Amendment justification. It is not necessarily to little, but it is too late...."

"Unfortunately for the State, there was neither a peep nor a glimmer of any independent Terry rationale advanced at the suppression hearing...."

And from Joseph v. Bozzuto Management Company, decided on March 15, 2007, we get this little gem:

"To the otherwise foreclosing effect of having proffered no evidence of actual or constructive knowledge of a hazardous condition in the stairwell, the appellant's only response is to resort to wishful thinking. He looks to Brooks v. Lewin Realty III, Inc. (citation omitted) as a deus ex machina descending on the courtroom just in the nick of time. He pins his hope upon an illusion."

Probably my favorite Moylan opinion is this masterpiece which begins as follows (the whole thing is worth the read):

"The play's the thing, Wherein I'll catch the conscience of the King"
... Hamlet
Act II, Scene ii

Taking that version of the facts most favorable to the
State, what unfolds is the melodrama of an estranged
wife, desperate to free herself from a marriage gone stale,
leaving a trail of false clues and staging her husband's
death so as to make it appear a random accident. As with
"The Murder of Gonzago" in Hamlet or "Pyramis and
Thisbe" in A Midsummer Night's Dream, there is within
this real-life drama a play within a play. In the real-life
drama, the husband was lured to the scene of his fatal
poisoning by the reconciliatory promise of a romantic St.
Valentine's weekend at the Harbourtowne Resort in St.
Michael's. A highlight of the getaway weekend was a
dinner-theater murder mystery which the dinner guests
were invited to solve. That play within a play was called
"The Bride Who Cried." Our real-life drama may well be
called "The Widow Who Lied."

"Sleeping within my orchard,
Upon my secure hour thy uncle stole,
And in the [***2] porches of my ears did pour
The leperous distilment"
... Hamlet
Act I, Scene v

Charlie is not large in stature but as you can see, he has a giant intellect and is a gifted writer.

Charlie, it's good to see you back in the saddle. Keep up the good work.