Saturday, July 19, 2008

The Last Little Bit Of Heaven

Adam Liptak has an ominous column up in today's NY Times. It has to do with the "Exclusionary Rule" in American jurisprudence. Evidence illegally obtained (i.e., in violation of the defendant's Fourth Amendment rights) must be excluded in a criminal trial. The rule is unique to the United States, one of those things that really does make this country "exceptional." Unfortunately, that last little bit of heaven may very well be about to go down the tubes.

The United States is the only country to take the position that some police misconduct must automatically result in the suppression of physical evidence. The rule applies whether the misconduct is slight or serious, and without regard to the gravity of the crime or the power of the evidence. ...

But there are signs that some justices on the United States Supreme Court may be ready to reconsider the American version of the exclusionary rule. Writing for the majority two years ago, Justice Antonin Scalia said that at least some unconstitutional conduct ought not require “resort to the massive remedy of suppressing evidence of guilt.”

The court will soon have an opportunity to clarify matters. The justices will hear arguments on Oct. 7 about whether methamphetamines and a gun belonging to Bennie Dean Herring, of Brundidge, Ala., should be suppressed because the officers who conducted the search mistakenly believed he was subject to an outstanding arrest warrant as a result of careless record-keeping by another police department.
[Emphasis added]

Now, I'm a little sensitive about that last little bit, having spent last weekend in jail because a traffic court appearance I made and fine I paid were not properly entered in the County's computers. While the entire experience was enlightening, with many positive moments, it also was, shall I say, inconvenient. I was released as soon as a judge looked at the court file, and I got an apology from her, but that's not the point. The records should have been accurate, and, even more importantly, I should have been secure in my home as guaranteed by the Fourth Amendment.

The counterargument, of course, is that I was innocent and what happened to me was outrageous. The truly guilty, those who have committed a crime, should not be set free to commit more crimes just because of a "technicality." That, however, was precisely the situation in the momentous decision from which we got the Exclusionary Rule, Mapp v Ohio. The decision was issued by the Warren Court in 1961. Here's what the Supreme Court held, as properly noted by Mr. Liptak:

... “The state, by admitting evidence unlawfully seized, serves to encourage disobedience to the federal Constitution which it is bound to uphold,” Justice Tom C. Clark wrote for the court. Only the exclusion of evidence could do the job, he said; other remedies had proved “worthless and futile.” [Emphasis added]

Exactly so.

Now, however, that rule is being categorized like so many others as "quaint" and "pre-9/11". Justice Scalia has already indicated that he considers the rule outdated.

Right now, detainees in Guantanamo Bay are facing trials in which evidence was obtained by torture, either of the defendant or of those who implicated them. That evidence will be used to prove their guilt, if the prosecutors have their way. Is that the kind of "justice" system we want?

I certainly hope not.

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Anonymous Anonymous said...

Those who proclaim American Exceptionalism the loudest are the same that strive hardest to put an end to it.

5:07 AM  
Blogger shrimplate said...

What if some left-leaning progressive democrat, who also just happened to be a policeman, were to pull over Justice Scalia for running a light and this policeman subsequently tossed a handy bag of smack into Scalia's car? Then busted him for it.

That would be a good thing, no?

3:22 PM  
Anonymous Anonymous said...

Considering that these people call themselves conservatives, you would think that they would have a little respect for a precedent that's 47 years old and has served the nation well for those 47 years.

But I forgot. This is the same Court that eviscerated Brown v. Board of Education, which is 54 years old. Age of precedent has nothing to do with their calculations, which are entirely political and of the cheapest, most short term variety.

3:53 PM  
Blogger Diane said...

Heh, Shrimplate, you made me laugh very loudly.

However, no, that would not be a good thing. That is exactly the action the Warren Court was trying to stop (and, yes, I know you know that and were just being snarky).

What I think is happening is that once again we Americans are being pushed into an "us versus them" paradigm, with "us" being defined as white, middle class, employed, and doing just fine thank you.

The problem is that "us" are soon going to find that we aren't doing just fine thank you, and we have already had the straw men set up.

Even with a dramatic change in the administration of this nation (and I'm not so sure that will happen, regarless of the election results), I think we are in for some troubled times ahead, especially when it comes to constitutional guarantees.

This is one of those times that each night I pray that I am wrong.

5:32 PM  
Anonymous Anonymous said...

Call it a feeling, but I suspect they will suppress the evidence in the case you mention. But don't expect that kind of respect for the Constitution in traffic court.

4:33 AM  

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