[Marxism] Supreme Court moves toward ending "exclusionary evidence"

["Fred Feldman" <ffeldman@xxxxxxxxxxxxxxxx>]

This means more successfully planted evidence, more successful frame-ups,
and a further increase in the Black prison population, even though this case
involves a disconsolate-looking white guy. SPEAKING AS A WOULD-BE DEFENSE
ATTORNEY,WILL EVERYBODY PLEASE REMEMBER TO SMILE AND LOOK CHARMING FOR YOUR
MUG SHOT. Seriously, people. Mug shots are propaganda.
Fred Feldman

http://www.nytimes.com/2009/01/31/washington/31scotus.html
January 31, 2009
Supreme Court Steps Closer to Repeal of Evidence Ruling 
By ADAM LIPTAK
WASHINGTON - In 1983, a young lawyer in the Reagan White House was hard at
work on what he called in a memorandum "the campaign to amend or abolish the
exclusionary rule" - the principle that evidence obtained by police
misconduct cannot be used against a defendant. 

The Reagan administration's attacks on the exclusionary rule - a barrage of
speeches, opinion articles, litigation and proposed legislation - never
gained much traction. But now that young lawyer, John G. Roberts Jr., is
chief justice of the United States. 

This month, Chief Justice Roberts, writing for the majority in Herring v.
United States, a 5-to-4 decision, took a big step toward the goal he had
discussed a quarter-century before. Taking aim at one of the towering
legacies of the Warren Court, its landmark 1961 decision applying the
exclusionary rule to the states, the chief justice's majority opinion
established for the first time that unlawful police conduct should not
require the suppression of evidence if all that was involved was isolated
carelessness. That was a significant step in itself. More important yet, it
suggested that the exclusionary rule itself might be at risk.

The Herring decision "jumped a firewall," said Kent Scheidegger, the general
counsel of the Criminal Justice Legal Foundation, a victims' rights group.
"I think Herring may be setting the stage for the Holy Grail," he wrote on
the group's blog, referring to the overruling of Mapp v. Ohio, the 1961
Warren Court decision.

Justice Samuel A. Alito Jr. joined the Herring decision and has been a
reliable vote for narrowing the protections afforded criminal defendants
since he joined the court in 2006. In applying for a job in the Reagan
Justice Department in 1985, he wrote that his interest in the law had been
"motivated in large part by disagreement with Warren Court decisions,
particularly in the areas of criminal procedure," religious freedom and
voting rights.

Justice Alito replaced Justice Sandra Day O'Connor, who was considered a
moderate in criminal procedure cases.

"With Alito's replacement of O'Connor," said Craig M. Bradley, a law
professor at Indiana University, "suddenly now they have four votes for sure
and possibly five for the elimination of the exclusionary rule."

The four certain votes, in the opinion of Professor Bradley and other legal
scholars, are Chief Justice Roberts, Justice Alito, Justice Antonin Scalia
and Justice Clarence Thomas, who is also an alumnus of the Reagan
administration.

The fate of the rule seems to turn on the views of Justice Anthony M.
Kennedy, who has sent mixed signals on the question. As in so many areas of
the law, there are indications that the court's liberal and conservative
wings are eagerly courting him. They are also no doubt looking for the case
that, with Justice Kennedy's vote, will settle the issue once and for all.

The United States takes a distinctive approach to the exclusionary rule,
requiring automatic suppression of physical evidence in some kinds of cases.
That means, in theory at least, that relatively minor police misconduct can
result in the suppression of conclusive evidence of terrible crimes.

Other nations balance the two interests case by case or rely on other ways
to deter police wrongdoing directly, including professional discipline,
civil lawsuits and criminal prosecution. 

In Herring, Chief Justice Roberts seemed to be advocating those kinds of
approaches. "To trigger the exclusionary rule," he wrote, "police conduct
must be sufficiently deliberate that exclusion can meaningfully deter it,
and sufficiently culpable that such deterrence is worth the price paid by
the justice system."

That price, the chief justice wrote, "is, of course, letting guilty and
possibly dangerous defendants go free." 

The Herring decision can be read broadly or narrowly, and its fate in the
lower courts is unclear. The conduct at issue in the case - in which an
Alabama man, Bennie D. Herring, was arrested on officers' mistaken belief
that he was subject to an outstanding arrest warrant - was sloppy
recordkeeping in a police database rather than a mistake by an officer on
the scene. Since the misconduct at issue in Herring was, in the legal
jargon, "attenuated from the arrest," the decision may apply only to a
limited number of cases. 

But the balance of the opinion is studded with sweeping suggestions that all
sorts of police carelessness should not require, in Chief Justice Roberts's
words, that juries be barred from "considering all the evidence."

A broad reading of the decision by the lower courts, Professor Bradley said,
means "the death of the exclusionary rule as a practical matter."

In one of the first trial court decisions to interpret Herring, a federal
judge in New Jersey took the broader view, refusing to suppress evidence
obtained from computer hard drives under a search warrant based on false
information supplied by a Secret Service agent. The agent had told the judge
that DVDs found during an earlier search contained child pornography. 

This was false: other law enforcement officials had reviewed the DVDs and
had found no child pornography. The agent, who was leading the
investigation, testified that he did not know of that review when he made
his statement. 

"This conduct," Judge Stanley R. Chesler wrote a week after Herring was
decided, "while hardly qualifying as a model of efficient, careful and
cooperative law enforcement, does not rise to the level of culpability that
the Supreme Court held in Herring must be apparent for the exclusionary rule
to serve its deterrent purpose and outweigh the cost of suppressing
evidence."

Constitutional adjudication is not a science experiment, and it is often
hard to say for sure what difference a change in personnel makes. In the
case of the exclusionary rule, though, you can get pretty close.

On Jan. 9, 2006, just months after Chief Justice Roberts joined the court,
the justices heard arguments in Hudson v. Michigan. The police in Detroit
had violated the constitutional requirement that they knock and announce
themselves before storming the home of Booker T. Hudson, and the question in
the case was whether the drugs they found should be suppressed under the
exclusionary rule 

Justice O'Connor, in her last weeks on the court while the Senate considered
Justice Alito's nomination, was almost certainly the swing vote, and she
showed her cards.

"Is there no policy protecting the homeowner a little bit and the sanctity
of the home from this immediate entry?" she asked a government lawyer, her
tone sharp and flinty.

David A. Moran, who argued the case for Mr. Hudson, was feeling good after
the argument. "I was pretty confident that I'd won," he said in a recent
interview. "O'Connor had pretty clearly spoken on my side."

Three months later, the court called for reargument, signaling a 4-to-4
deadlock after Justice O'Connor's departure. Justice Alito was on the court
now, and the tenor of the second argument was entirely different. 

Now Justice Stephen G. Breyer, who seemed to have been at work on a majority
opinion in favor of Mr. Hudson, saw a looming catastrophe. The court,
Justice Breyer said, was about to "let a kind of computer virus loose in the
Fourth Amendment."

Justice Breyer had reason to be wary. When the 5-to-4 decision was announced
in June, the court not only ruled that violations of the knock-and-announce
rule do not require the suppression of evidence but also called into
question the exclusionary rule itself.

In a law review article later that year, Mr. Moran went even further. "My
5-4 loss in Hudson v. Michigan," he wrote, "signals the end of the Fourth
Amendment as we know it."

Justice Scalia, writing for the majority, said that much had changed since
the Mapp decision in 1961. People whose rights were violated may now sue
police officers, and police departments are more professional. In light of
these factors, he wrote, "resort to the massive remedy of suppressing
evidence of guilt is unjustified."

Justice Scalia cited the work of a criminologist, Samuel Walker, to support
his point about increased police professionalism. Professor Walker responded
with an opinion article in The Los Angeles Times saying that Justice Scalia
had misrepresented his work. Better police work, Professor Walker said, was
a consequence of the exclusionary rule rather than a reason to do away with
it. 

Justice Kennedy signed the majority decision, adopting Justice Scalia's
sweeping language. Oddly, though, he also wrote separately to say that "the
continued operation of the exclusionary rule, as settled and defined by our
precedents, is not in doubt."

Another important Warren Court decision on criminal procedure, Miranda v.
Arizona, appears to remain secure. Miranda, as anyone with a television set
knows, protected a suspect's right to remain silent and the right to a
lawyer by requiring a warning not found in the Constitution. The decision,
like Mapp, was the subject of much criticism in the Reagan years. 

But in a pragmatic 7-to-2 decision in 2000, the Rehnquist Court refused to
revisit the issue. Miranda warnings, Chief Justice William H. Rehnquist
wrote for the majority, had "become embedded in routine police practice" and
had "become part of the national culture." Justices Scalia and Thomas
dissented.

Defenders of the exclusionary rule breathed a sigh of relief in November

"From the point of view of a liberal concerned about criminal procedure,"
said Yale Kamisar, a law professor at the University of San Diego, "we were
saved by Barack Obama in the nick of time. If ever there was a court that
was establishing the foundations for overthrowing the exclusionary rule, it
was this one."

For now, said Pamela Karlan, a law professor at Stanford, "they don't have
five votes to disavow the exclusionary rule by name."

At the same time, Professor Karlan said, "you are not going to see any
dimension along which there is going to be an expansion of defendants'



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