Posted on 07/10/2006 11:19:08 AM PDT by curiosity
“Settled law” is a term that liberal jurists reserve mostly for their own use, a seal of finality best left for them to fix on any principle. Ages of precedents are casually disregarded to obtain precedents to their liking, but from that moment on stare decisis is everything, the new doctrine enshrined in law and never again to be doubted. Somehow, though, the doubts keep coming, and most recently centered on the Supreme Court case of Hudson v. Michigan and the settled matter of the exclusionary rule.
Acting on a warrant, Detroit police in 1998 arrived at the door of Booker Hudson, calling out “Police! Search warrant!” They knocked, waited four or five seconds, and entered to find Hudson with a loaded revolver and 23 bags of crack cocaine. The officers, defense claimed, should have waited 20 seconds — enough to satisfy “the Constitution’s knock and announce requirement.”
This requirement was found hiding in the Fourth Amendment in 1995, still panting heavily from a 206-year chase in which it had eluded legal minds before then. But already it is Settled Law, an undeniable and inflexible corollary to “the Constitution’s exclusion-of-evidence requirement” adduced by Weeks v. United States in 1914 and imposed upon states by Mapp v. Ohio in 1961.
In keeping with all these sacred precedents, Hudson’s lawyers argued that the incriminating evidence should have been “suppressed” by the trial court. Hudson would have gone free in that event. But if a man can’t sort his crack and firearms without police barging into the house on such short notice, then none of us are free.
Four justices agreed that police, in their unruly rush into the Hudson residence, rendered the whole search unconstitutional and the evidence hopelessly “tainted.” Justice Stephen Breyer, in dissent, feared for “the Constitution’s knock-and-announce protection.” Justice Anthony Kennedy voted with the majority, but wanted it known that “the exclusionary rule, as settled and defined by our precedents, is not in doubt.” Justice Antonin Scalia reminded us of the “social costs” of suppressing evidence, including in Hudson the release of a guilty man and endless appeals from other felons claiming that police at their doors, too, had shaved a few seconds off the constitutional clock.
Perhaps in deference Justice Kennedy, the majority stopped there, limiting instead of abolishing the exclusionary rule. But of course if you follow the “social costs” line of reasoning a slight step further, it leads directly through the door of coherent thought to a simple truth: It is never in the interest of society or of justice to withhold probative evidence from a judge or jury.
“A Monstrous Price”
Courts are triers of fact, not arbiters of “tainted” or “untainted” evidence. Rules of police procedure are important only to prevent the conviction of an innocent person, and infractions or abuses by police constitute separate offenses to be adjudicated separately. The great and untaintable objective is justice in the case at hand. This will always depend on convicting only the guilty and absolving only the innocent.
The theory behind the exclusionary rule — and it has always has the prissy feel of academic theory — is to deter police misconduct in some future case by imposing injustice in the case at hand. Even in the face of guilt as great as in Coolidge v. New Hampshire, a 1971 case Justice Breyer cites in Hudson as untouchable precedent, the Court’s hands are tied and the Constitution itself demands the appellant be freed. That didn’t square when the Court’s release of Edward Coolidge, the murderer of 14-year-old Pamela Mason, inspired Chief Justice Warren Burger to warn of “the monstrous price we pay for the exclusionary rule in which we seem to have imprisoned ourselves.” It doesn’t square any better today.
The Fourth Amendment, as distinguished from contrived and entirely reversible Fourth Amendment “remedies,” says or implies nothing about excluding evidence, just as the Fifth Amendment gives no hint that confessions voluntarily made and corroborated by the facts are somehow “invalid.” The Fourth Amendment forbids only “unreasonable searches and seizures.” And the reasonable test of a reasonable search is the evidence itself, the very facts that defense attorneys seek to suppress. As Leon F. Scully Jr., my late father and an attorney and author, observed, “The guilt of the defendant and the reasonableness of the search are usually mutually supportive.”
William Rehnquist, as an associate justice in 1979, observed that “Mapp v. Ohio brought to bear in favor of accused murderers and armed robbers a rule which had previously largely had an application to bootleggers and purveyors of stolen lottery tickets.” My father wondered just how this had come to pass, and so examined the trial records of Weeks and Mapp along with other contemporaneous sources, discovering in both instances a pattern of inconsistency between the facts and the official version of events. His findings only add weight to Justice Rehnquist’s belief then — and doubtless Justice Scalia’s belief now — that “a re-evaluation of the so-called ‘exclusionary rule’ enunciated by Weeks is overdue.”
For example, in the narrative of the Weeks opinion, police in Kansas City, Missouri, acting without probable cause, showed up at the home of Freemont Weeks on December 21, 1911, arbitrarily seizing personal effects and papers including lottery tickets, the mailing of which was then a federal felony. Even in law-school textbooks to this day, no other starting point for the case has ever been given, leaving the impression of a random and unreasonable intrusion into the home of Freemont Weeks. Yet on December 22, 1911, the Kansas City Star reported that the lottery tickets were found among various stolen goods following the arrest at 1834 Penn Street of Mrs. Olla Weeks, the defendant’s wife, for shoplifting. So here you have a monumental case that turned on probable cause, and somehow the probable cause that started it all never made into the trial record that went to the Supreme Court.
Unwise and Unjust
Odd, too, was the decision to refuse Weeks’s initial plea of nolo contendere by the U.S. Attorney for the district, a man named Leslie Lyons who at the very moment was facing a federal investigation and disbarment proceedings on charges of splitting fees with defense lawyers in his own courtroom. That decision allowed the case to go directly to the Supreme Court on a writ of error — an institution that has since been abolished, but which at the time obliged the high court to hear an appeal if certain conditions were met. Why would a prosecutor do this, my father wondered — permitting such a minor case, involving a first-time offender, to go before the Supreme Court instead of disposing of it as quickly and efficiently as possible by accepting the nolo contendere plea?
Among those involved in guiding the investigation of Leslie Lyons was Assistant Attorney General Winfred T. Denison, the very man who argued for the government in Weeks. Denison was a protégé of Louis D. Brandeis, whose hand can be observed at work both in Weeks and in the favorable disposition of Lyons’s troubles by the department of Justice. In the short version, my father concluded that Brandeis and Denison, among others, colluded with Lyons — a man in need of a favor — in a manufactured test case, with Brandeis himself orchestrating events.
The idea was to secure a timely precedent to exclude evidence and overturn the conviction of militant union leaders in a labor-violence case then making its way to the Court, Ryan v. United States — known as the “Dynamiters Case” and at the time a subject of fierce debate among Progressives. Weeks replicates the facts and issues of Ryan, but — in the art of all manipulated test cases — presents them in far more innocuous form, so that excluding evidence meant only that a harmless clerk with his lottery tickets would walk free. Ryan is now long forgotten while Weeks lives on, but on the day after Freemont Weeks’s conviction was overturned the New York Times instantly made the connection: “May Not Seize Papers: Supreme Court Makes Ruling That May Affect Dynamiters Case.”
Such conduct would hardly be out of character for “The People’s Lawyer.” Brandeis’s papers have yielded evidence of many similar dealings even after he had joined the Court in 1916, and he was from time to time admonished during his tenure for exceeding the bounds of judicial propriety. The theory would also explain Denison’s perfunctory brief of 200 or so words, as compared with the 67-page brief submitted to the Court by Weeks’s attorney, and why when Weeks was heard Denison did not even show up for oral argument.
Likewise, in the mythology of Mapp v. Ohio, Cleveland police acted without a warrant or probable cause. “Frustrated in their attempt to find any individual involved in an extortion bombing,” as the appellant’s Statement of the Case put it, officers harassed Dollree Mapp and merely pretended to have a warrant. In reality, newspaper and police archives reveal that police Lt. Thomas White not only had a warrant, but with fellow officers executed it with the arrest and seizure of evidence against the suspected bomber, one Virgil Ogletree, which is how they chanced upon the illicit materials in Miss Mapp’s possession.
Exactly how, moreover, did a petty case of possession of lewd materials — a case at first disposed of with a guilty plea and referred to the probation department — become a federal First Amendment case and then, at the last hour, a vehicle for applying the exclusionary rule to the states? Enough to say that between Miss Mapp’s pleas of guilty and innocent the ACLU took an interest in the case. How defense and ACLU attorneys carefully purged the record of probable cause, how they at first conceded the existence of a warrant and then pretended that none ever existed, and how the whole story was tailored and exaggerated to present a worst-case scenario of police bullying, is laid out in Bombers, Bootleggers, and Bolsheviks: A Study in Constitutional Subversion. My Dad left behind a compelling case that Mapp, too, was a suborned precedent, gained by collusion and a suppression of evidence from the Supreme Court itself.
All of which should be of interest to the Court of our own day next time it hears a case involving the exclusionary rule. It is well known that other precedents on other points of law came about by means of contrived test cases, a practice which — however successful it has proved — the Court itself memorably described in Little v. Bowers as “an abuse which courts of justice have always reprehended, and treated as a punishable contempt of court.” The whole idea of stare decisis, after all, rests on the assumption of true cases in controversy argued in good faith before the Court and decided with all the relevant facts at hand. If Weeks and Mapp were bogus cases, involving collusion and concealment of evidence, then the deference accorded them today is even more misplaced, and the exclusionary rule warrants a serious second look on that account alone.
Fraud and intrigue by lawyers before the Court would also provide a charitable explanation for how a majority of justices were ever sold on as unwise and unjust an idea as releasing the guilty on procedural errors. This “settled law” came to us in Mapp by a 5-4 decision, however. And that is all it would take to be rid of it.
— Matthew Scully, the author of Dominion, is a former special assistant and deputy director of speechwriting for President George W. Bush.
“Settled law” is a term that liberal jurists reserve mostly for their own use, a seal of finality best left for them to fix on any principle. Ages of precedents are casually disregarded to obtain precedents to their liking, but from that moment on stare decisis is everything, the new doctrine enshrined in law and never again to be doubted.
Ping.
We will never be rid of Mapp, Escobedo, or Miranda. Too many tv shows are dependant on them.
I do not believe that this is the standard the liberals use for the word "justice." Liberals seems to define "justice" as the poor and illiterate have the same probability as the wealthy and educated for "getting-away" with criminal activity.
I believe knock and announce is very important for the safty of officers as well as the safty of innocent people who may be "in the line of fire".
I don't think a time limit is really helpfull.
If my door flew open and blackhooded masked amed men charged in ... everyone would have a better chance of living through the event if someone had knocked and yelled "police" right before the door flew open.
Allowing time for evidence to be destroyed wouldn't really add to anyones safty that I can see.
The real key would be to stop this kind of warrent service unless it's really the only way. ... which would be pretty uncommon...
Well I strongly disagree that the "rules of police procedure are important only to prevent the conviction of an innocent person." I think there is considerable support in the Constitution and among the public for procedures that protect the public from abuse at the hands of government in general.
As for the second part of his assertion that abuses should be "adjudicated" seperately, that sounds nice, but the public has little faith that will occur, which leads us to where we are now.
This article is bunk. There is no right without a remedy. If the cops don't want evidence to be thrown out, then maybe cops should follow the Constitution (and get at least a high-school education).
This is pretty stupid. Reasonableness isn't judged based on hindsight. It's judged based on the situation and facts that *lead* to the search. The result of the search is irrelevant. A reasonable search doesn't become unreasonable just because nothing is found, nor vice versa.
That's one of the best articles I've ever read. It makes the case that the precedent to exclude evidence is based on fraud.
The idea was to secure a timely precedent to exclude evidence and overturn the conviction of militant union leaders in a labor-violence case then making its way to the Court, Ryan v. United States — known as the “Dynamiters Case” and at the time a subject of fierce debate among Progressives. Weeks replicates the facts and issues of Ryan, but — in the art of all manipulated test cases — presents them in far more innocuous form, so that excluding evidence meant only that a harmless clerk with his lottery tickets would walk free. Ryan is now long forgotten while Weeks lives on, but on the day after Freemont Weeks’s conviction was overturned the New York Times instantly made the connection: “May Not Seize Papers: Supreme Court Makes Ruling That May Affect Dynamiters Case.”
Wow!
Agreed, but this is a minor point in the article. What do you think of its main point?
I see, so what you're saying is the public should be punished when the police violate the constitution.
Yes, that makes a lot of sense./sarc
Why not punish the cops directly (with fines or even jail time) instead of letting murderers and rapists get off?
LOL!
A sweet piece of sarcasm.
i sent this article to a friend, who replied...its too long, summarize it and tell me what it means
so i did
and, of course, i probably got it all mixed up with my own ideas, and, i admit i might have wandered around the article a bit, and perhaps missed a lot of it
so, anyway, here is my opine on the posted article:
the Supreme Court is the ultimate arbitrator of law in this country.
this is important, because this country is one which law is the
ultimate authority. that is law, rather than religion, or a dictator,
or any other conceivable ultimate authority has the final say.
but, what is law?
ultimately, it is a construct of the human mind. as such, it is
subject to the interpretation and implementation by the people who
conceive it. this cycle of construction and implementation is the
strength, and the weakness of our system of governance.
the supreme court is not God. in fact, the supreme court is not even
the same supreme court from year to year, as the membership is varied.
it is clear that the decisions of the court, therefore, are subject
to variations from time to time.
arguments abound about the foundation for decisions of the court.
conservatives argue that the Constitution of the United States, that
is, the written document itself, is the ultimate authority. they want
that nothing that is not specifically contained in that written
document should be allowed in governance in this country.
others, call them progressives, would have it that the Constitution is
the beginning of law, and that law is evolved from it.
the progressives have had it their way for many decades. this
situation has gone on for so long, in fact, that the supreme court has
issued decisions which are difficult to logically trace back to any
written origin in the Constitution. particular examples are those
which the court has referred to the "penumbra" of the meaning of the
written constitution. in these decisions, the court has, in effect,
admitted that there is no specific foundation for their decision, but
that its really their idea of what the constitution should say or
would say, if it was written contemporaneously with modern times.
they conjured that the writers of the Constitution could not
anticipate future events or cultures so they had to project what the
writers probably would have done in the instant situation.
now, these decisions are the basis for decisions that must be made by
the lower courts in cases put before them. lower courts are not
allowed to write new law. they must study the law and see what has
come before, and keep their rulings in line with those precedents.
that principle is "stare decisis," roughly translated from legalese
Latin: follow what has been done before.
the supreme court, however is not really bound by stare decisis.
obviously, it has made new law on many occasions. the supreme court
nominees are often asked about their views of this doctrine. and they
invariably answer that it is, in their minds, the ultimate arbitrator
of decision. to have it any other way, would mean that law is a
meandering, capricious rendition of what ever the judges want. it is
state decisis that keeps the law flowing in a reasoned, logical path.
so the nominees swear to the doctrine of stare decisis, but they all
know that they, and they alone, are not bound by it. they are free
to conjure up new law to fit their own ideals if they want to. they
have plenty of proof that others in the supreme court have done it
before.
really, then, the only real check on the expansion of judicial power
by the supreme court is the restraint of the members themselves. the
majority decision is accompanied by the dissent, and both are
published. future justices are certain to study both.
what is not generally realized, however, is that the decisions of the
supreme court are only referenced to the materials presented before
it. a lot of information about the original case is filtered out.
this leaves only a hypothetical summary of the actual events at the
foundation of the decision. the whole exercise is a carefully
crafted fantasy that results in real consequences for the people
involved in the case, and then, for all the people in the country who
will ultimately be governed by it.
smart lawyers realized this fact and used it to craft a means to guide
the supreme court to render decisions that they wanted. when a big,
important case was winding its way thru the channels, hotly contested
and fiercely argued, and often delayed; they conjured up a simple
little affair that was innocuous on its face, but actually could and
would be used as the means to influence the outcome of the big event.
the little case would give the supreme court justices the precedences
they needed to cite to justify their desires in the big important case
that would soon appear on their calendar.
the article i sent to you is about these issues and these processes,
and how they work. it is about specific cases and concerns within a
part of law that is called the exclusionary principle. this is the
idea that evidence can be excluded if it is not obtained in a manner
that the law says is ok. how the boundaries of that approval were
drawn is the point of the article. the implication of the procedure,
however, can be applied to all areas of law that the court is involved
in.
the final word on this is that the whole idea of stare decisis is a
cover for the fact that the law is really anything that the court
wants it to be. we are not really a nation of law. we are a nation
of law as decreed by the ideas and desires of those who are anointed
to interpret them.
its what we have. i think its better than any other system ever
devised. but we should understand what it is, and not worship it. it
is seriously flawed, as are most human endeavors.
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