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A high-court memory of the retiring Byron Warnken

Byron L. Warnken, a criminal defense attorney and professor at the University of Baltimore School of Law who wrote a treatise on Maryland criminal procedure, said the high-profile nature of the Freddie Gray case and the circumstances involved make it likely the defense will seek a change of venue. (The Daily Record/Maximilian Franz)

Byron L. Warnken. (The Daily Record/Maximilian Franz)

My colleague Anamika Roy’s article on Byron Warnken’s pending retirement reminded me of my first encounter with the longtime University of Baltimore law professor.

It was more than 20 years ago at the U.S. Supreme Court. Warnken was arguing on behalf of car passenger Jerry Lee Wilson, whom police ordered out of the vehicle when they pulled the driver over for speeding in Baltimore County. As Wilson exited the car, he dropped cocaine to the ground.

The legal argument, that police had violated Wilson’s constitutional right against unreasonable seizure, had won in the Maryland Court of Appeals, prompting the state’s appeal to the high court.

Warnken was being opposed Dec. 11, 1996, by two attorneys of greater renown: Maryland Attorney General J. Joseph Curran Jr. and U.S. Attorney General Janet Reno, who had taken the state’s side as a friend of the court. I was reporting on the case for the dearly departed West’s Legal News.

During his argument, Warnken played foil to a de facto comedy routine by Justices Antonin Scalia and David H. Souter.

Scalia told Warnken that rather than feeling their rights were violated, passengers might instead be grateful to the police officer who orders them out of the car.

“Thank goodness,” Scalia suggested these passengers might say. “This guy was speeding.”

Souter, without missing a beat, interjected, “With Justice Scalia (driving), you can see what the passengers are feeling.”

The Supreme Court ultimately ruled for the state on a 7-2 vote in Maryland v. Wilson.

Fast forward to May 4, 2009.

Warnken and I were in-studio guest commentators on WYPR’s “Midday with Dan Rodricks” discussing Souter’s recently announced retirement from the high court. Rodricks asked about my recollections of Souter’s treatment of attorneys and his fellow justices during oral arguments.

It took me no time to come up with an anecdote. Warnken remembered it well.

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