Does the recent U.S. Supreme Court decision, Herring v. U.S., signal the end of the "exclusionary rule"? (For those who aren't students of criminal procedure, the "exclusionary rule" is what keeps evidence that was obtained in violation of the U.S. Constitution from being used against a criminal defendant at trial and, if applied, often results in the entire case against them being dismissed).
Perhaps, yes. It is precedent for the idea that the criminal does not necessarily go free where the constable blundered or, as in this case, where the constabulary erred. The warrant upon which Mr. Herring was seized (i.e., "pulled over"), was entered into the computer erroneously, but not in bad faith, by someone other than the officer that pulled him over. Okay, so what? Well, according to the majority, the purpose of the exclusionary rule was to deter intentional misconduct by law enforcement. I guess I agree with that, but here's the point of separation. When we speak of institutions, we can find intent on the part of the higher ups (such as chiefs, and other administrators), or a more nebulous form of intent on behalf of the entire institution where they have failed to put systems in place which will limit the degree of intrusions into the private lives of law abiding people. Not telling police departments, as the Supremes could have, that their failure to develop and implement systems (through software, double-checking by human beings, etc.) to better ensure that information entered into the widely available databases may result in bad guys going free was an opportunity squandered. Incidentally, implementing such systems would also save a lot of valuable law enforcement time by making sure that their time is not wasted barking up the wrong trees. So, everybody could have won: The general public could have won, the police (in a broader sense) could have won, and an occasional undeserving criminal defendant could have won. The latter, according to the ingenious Warren Court, was a worthwhile price to pay for a freer society. The over-arching principals in force are that (1) there is no perfect solution to the problem (and, yes, to my conservative friends who don't know what it's like to be jacked up by cops for no reason, there IS a problem) and (2) that the American values of privacy and freedom that serve to allow us all to live without a rational worry that we will be subjected to the random and otherwise unfettered curiousities of law enforcement are worth sacrificing a small amount of security.
Another discussion that has emerged in the wake of Herring is: "what else might we do to deter police misconduct which violates the U.S. Constitution?". Here are some thoughts:
1. Deprive the offending officer of a paycheck for every violation.
2. Make the offending officer where a patch on his uniform that reads, "I violate people's consitutional rights".
3. Fire the offending officer.
4. Make the offending officer pay money damages to the defendant.
5. Exclude "some" of the illegally obtained evidence. (Hmmm...just the wrapper?)
6. Make the jury aware of the violation and tell them that they may decide to acquit the defendant on that basis. (That might work...maybe...uh, in a marijuana possession case.)
My experience teaches me that prosecutors, judges and cops hate the exclusionary rule so much, that they'll do nearly anything to get around it. What we see in reaction to it are very narrow readings of the rules, and usually a tortured reading of the facts (a very common work-around is to argue that officer didn't actually pull the person over for a dubious legal reason, they pulled them over for a totality of dubious reasons which, altogether, amount to one legal reason) . The less honest police officers will lie to cover up their violation. It's not at all hard to imagine how that happens. If they were lazy about understanding and respecting the Fourth Amendment, who's to say that they won't be just as lazy about understanding and respecting their duty to be honest (when under oath) and otherwise? A rule which does not burden the public safety as much as the "exclusionary rule" might solve this problem. However, would a cop lie to keep his job? Would he lie to avoid public shaming? Would he lie to save money? Would a judge or prosecutor avoid engaging in intellectual dishonesty in order to protect the cop from these various punishments? I say, let's not bother finding out.
Showing posts with label judges. Show all posts
Showing posts with label judges. Show all posts
Monday, February 9, 2009
Friday, July 11, 2008
True versus False: A False Dilemma
I encounter negative perceptions of criminal defense lawyers frequently. Of course, I am resigned to accept them, and I suffer no illusion that I will bring about any sea change in this regard. However, I will observe that one of the root causes of these negative perceptions is the belief that we criminal defense lawyers, as a matter of necessity, encourage our clients to lie to the court, or that we lie to the court on their behalf. This is a tragic misunderstanding of a criminal defense lawyer's vital role. The minority of criminal defense lawyers that commit these abominations should be disbarred, and they sometimes are. Setting the ethical considerations aside for a moment, lying to the court is not "the" solution to the problem. This belief, again, reflects a major misunderstanding.
A recent article in the LA Times exposed a troubling thing about traffic court which is that people who are not represented by lawyers tend to self-incriminate (either by telling the truth or by saying things which make themselves appear guilty regardless of the truth of the matter) under a mistaken belief that they are actually helping themselves. A common way they do so is by pleading "guilty with an explanation". And, what might not be so well understood is that the court has far less interest in the "explanation" part than it does in the "guilty" part. The famous Far Side cartoon depicting the difference between dogs and cats where the dog hears "fido, blah blah blah" and the cat hears just "blah blah blah blah" illustrates the point here. Analogously, the judge hears "guilty, blah blah blah". Occasionally an "explanation" is so compelling and, more importantly, so believable, that it might differentiate itself from the pack of likely explanations. Judges hear it all and they hear it all day long. The "explanations" don't vary that much. And what's really telling is that the compelling and believable "explanation" that worked for the last guy who got his fine substantially reduced, or his case thrown out, is often repeated with little editing by the next several folks.
Many plead guilty with an explanation with the consciousness that saying they are "guilty" amounts to self-incrimination. Others seem to behave as though they are talking to a friend, and if they present a sympathetic story, their loving and forgiving "friend" in the black robe is going to let it go this time. After all, to err is human, to forgive is divine. And aren't people in robes, by the way, supposed to be divine.
It is understood that the Catholic faith puts emphasis on the cleansing aspect of a confession. It is, in a moral sense, important to restore what you have stolen from justice by "taking responsibility". I am down with that. However, the big fallacy is that the government (in the form of a courthouse) affords the only opportunity to do so. You can, and probably do, feel badly about what you have done wrong. If you don't, you are probably a sociopath, or are indulging yourself in some kind of denial, at least. There are numerous ways you can "pay it back". You can feel bad, which is a form of self-imposed punishment; but maybe not altogether satisfying to society nor those whom you have harmed. You can say "sorry" directly to the person(s) you have injured and offer to pay for or otherwise correct the problem you have caused for them (if it is feasible to do so). You can confess to a member of your clergy, your therapist, your lawyer, etc. You can devote your time and money to good causes. You can swear to yourself to never do anything of the kind again and follow through. Clearly, there are numerous ways to accept responsibility for wrongdoing that have nothing to do with a court of law. To say otherwise is to assume that the population consists of mere children who need to be spanked by the government before they will understand that what they did was wrong. To say otherwise is to assume that if you do suffer punishment for your wrongdoing in court that you have made it all okay. Of course both of these assumptions are faulty. The government is not the sole arbiter of morality, and the fact is, the government is incompetent to restore justice in many cases where a wrong has been committed in spite of its laudable, and necessary, effort to do so.
I do not call for the dissolution of the government, nor the judiciary, but I would call upon my fellow human beings to have a more balanced view of what is really going on in court. The defendants in court are neither all "crooks" that deserve stiff punishments, nor are they all "saints" who are going to be recognized as such and given a pass this time by a judge with an impeccable intuition. Most of the defendants are every day people who have made one or more bad choices. The court does not behave as their friend. In our adversarial system a court of law is a place where litigants who let their guard down are routinely taken advantage of by the other side. A corrollary to this concept is the right every criminal defendant enjoys: the right against self-incrimination; or simply put, that the prosecution must be able to prove you guilty. You are under no obligation to prove yourself guilty, and it is generally unwise to do so. If there is any proof problem whatsoever, you are advised to plead "not guilty" and to remain silent unless and until it becomes very obvious that you are going to be found guilty anyway, or that there is something to gain by self-incriminating (e.g., a favorable plea bargain).
A letter to the editor in today's Times criticized the above-linked article because it seemed to suggest, to the letter writer, that defendants should lie to the court. After all, lying is THE alternative to telling the truth, isn't it? I hope, by now, you can see that that is a false dilemma. Pleading not guilty is not lying. Remaining silent is not lying. Causing the prosecution to do their job, which is to prove you guilty, is not lying. Get it?
A recent article in the LA Times exposed a troubling thing about traffic court which is that people who are not represented by lawyers tend to self-incriminate (either by telling the truth or by saying things which make themselves appear guilty regardless of the truth of the matter) under a mistaken belief that they are actually helping themselves. A common way they do so is by pleading "guilty with an explanation". And, what might not be so well understood is that the court has far less interest in the "explanation" part than it does in the "guilty" part. The famous Far Side cartoon depicting the difference between dogs and cats where the dog hears "fido, blah blah blah" and the cat hears just "blah blah blah blah" illustrates the point here. Analogously, the judge hears "guilty, blah blah blah". Occasionally an "explanation" is so compelling and, more importantly, so believable, that it might differentiate itself from the pack of likely explanations. Judges hear it all and they hear it all day long. The "explanations" don't vary that much. And what's really telling is that the compelling and believable "explanation" that worked for the last guy who got his fine substantially reduced, or his case thrown out, is often repeated with little editing by the next several folks.
Many plead guilty with an explanation with the consciousness that saying they are "guilty" amounts to self-incrimination. Others seem to behave as though they are talking to a friend, and if they present a sympathetic story, their loving and forgiving "friend" in the black robe is going to let it go this time. After all, to err is human, to forgive is divine. And aren't people in robes, by the way, supposed to be divine.
It is understood that the Catholic faith puts emphasis on the cleansing aspect of a confession. It is, in a moral sense, important to restore what you have stolen from justice by "taking responsibility". I am down with that. However, the big fallacy is that the government (in the form of a courthouse) affords the only opportunity to do so. You can, and probably do, feel badly about what you have done wrong. If you don't, you are probably a sociopath, or are indulging yourself in some kind of denial, at least. There are numerous ways you can "pay it back". You can feel bad, which is a form of self-imposed punishment; but maybe not altogether satisfying to society nor those whom you have harmed. You can say "sorry" directly to the person(s) you have injured and offer to pay for or otherwise correct the problem you have caused for them (if it is feasible to do so). You can confess to a member of your clergy, your therapist, your lawyer, etc. You can devote your time and money to good causes. You can swear to yourself to never do anything of the kind again and follow through. Clearly, there are numerous ways to accept responsibility for wrongdoing that have nothing to do with a court of law. To say otherwise is to assume that the population consists of mere children who need to be spanked by the government before they will understand that what they did was wrong. To say otherwise is to assume that if you do suffer punishment for your wrongdoing in court that you have made it all okay. Of course both of these assumptions are faulty. The government is not the sole arbiter of morality, and the fact is, the government is incompetent to restore justice in many cases where a wrong has been committed in spite of its laudable, and necessary, effort to do so.
I do not call for the dissolution of the government, nor the judiciary, but I would call upon my fellow human beings to have a more balanced view of what is really going on in court. The defendants in court are neither all "crooks" that deserve stiff punishments, nor are they all "saints" who are going to be recognized as such and given a pass this time by a judge with an impeccable intuition. Most of the defendants are every day people who have made one or more bad choices. The court does not behave as their friend. In our adversarial system a court of law is a place where litigants who let their guard down are routinely taken advantage of by the other side. A corrollary to this concept is the right every criminal defendant enjoys: the right against self-incrimination; or simply put, that the prosecution must be able to prove you guilty. You are under no obligation to prove yourself guilty, and it is generally unwise to do so. If there is any proof problem whatsoever, you are advised to plead "not guilty" and to remain silent unless and until it becomes very obvious that you are going to be found guilty anyway, or that there is something to gain by self-incriminating (e.g., a favorable plea bargain).
A letter to the editor in today's Times criticized the above-linked article because it seemed to suggest, to the letter writer, that defendants should lie to the court. After all, lying is THE alternative to telling the truth, isn't it? I hope, by now, you can see that that is a false dilemma. Pleading not guilty is not lying. Remaining silent is not lying. Causing the prosecution to do their job, which is to prove you guilty, is not lying. Get it?
Sunday, April 27, 2008
No longer a lone voice in the sobering wilderness
I'm very pleased that the Daily Nexus wrote an article on something that I think should be at the top of the agenda for realistic change in Isla Vista and UCSB in the near future. Namely, a sobering (aka "sobriety") center in I.V. It works on State Street in Santa Barbara and can work even better in Isla Vista. I completely disagree with IVFP Lieutenant Brian Olmstead who said we already have a sobering facility: the County Jail. Nice. With this cunning observation, Olmstead flippantly ignores the huge financial and emotional costs incurred by criminalizing an event as mundane as a night of too much alcohol. The unspoken truth is that virtually all of the police officers, judges, correctional officers, university officials, alcohol and drug abuse counselors and d.a.'s got drunk when they were between the ages of 16 and 24; and I'm guessing that more than just a few of them got drunk last weekend and/or have plans to do so next weekend. What am I saying, exacly? I'm saying that there is more than an ounce of hypocrisy under-girding the "get tough on college drunkenness" mentality. The good intentions are over-shadowed by the hypocrisy. Yes, getting drunk and stumbling around in the street is different than doing it in the privacy of your own home, or at a friend's home. However, morally speaking, they are about the same. Someone that is drunk really can't be trusted to make good decisions about where they are going to be drunk. One thing that should make us all feel safer is that many in the Isla Vista community live without ready access to cars. Unfortunately, you can't say that about the rest of the local drinking population.
A sobering (or "sobriety") center in Isla Vista would save everyone money. It would save the taxpayer all of the many costs incident to booking someone into the county jail. The costs per arrest, to the taxpayer, can reach into the thousands. On average we're talking about hundreds of dollars per arrest. Consider the cost of two police officers spending about two hours between the initial contact and returning to IV or UCSB per arrestee. For wages, insurance, equipment costs, and the attending support staff costs (e.g., dispatch), this may range from about $200 to $400. Then there are the costs of booking and housing for up to 24 hours. This can also cost hundreds of dollars. Then, should the person end up in court (and most do), there are the wages of the many court personnel that are involved, including lawyers and judges. And these are all costs on the taxpayer (yes, some are off-set by fines and fees). However, should the person exercise their right to a jury trial and/or decide to initiate a lawsuit and complaint against the police and their employer, the sky is the limit on costs. We are talking about thousands of dollars in those cases, easily; all on the taxpayer. Notice I haven't even mentioned yet the costs on the individual in terms of legal fees, fines, reputational harm, as well as physical and emotional injury. These costs are unacceptable to most.
It is definitely time for a sobering center.
A sobering (or "sobriety") center in Isla Vista would save everyone money. It would save the taxpayer all of the many costs incident to booking someone into the county jail. The costs per arrest, to the taxpayer, can reach into the thousands. On average we're talking about hundreds of dollars per arrest. Consider the cost of two police officers spending about two hours between the initial contact and returning to IV or UCSB per arrestee. For wages, insurance, equipment costs, and the attending support staff costs (e.g., dispatch), this may range from about $200 to $400. Then there are the costs of booking and housing for up to 24 hours. This can also cost hundreds of dollars. Then, should the person end up in court (and most do), there are the wages of the many court personnel that are involved, including lawyers and judges. And these are all costs on the taxpayer (yes, some are off-set by fines and fees). However, should the person exercise their right to a jury trial and/or decide to initiate a lawsuit and complaint against the police and their employer, the sky is the limit on costs. We are talking about thousands of dollars in those cases, easily; all on the taxpayer. Notice I haven't even mentioned yet the costs on the individual in terms of legal fees, fines, reputational harm, as well as physical and emotional injury. These costs are unacceptable to most.
It is definitely time for a sobering center.
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