The author, who writes under the pseudonym Eric Blair--the actual real name of famed author George Orwell--details egregious cases in which patently guilty defendants were freed when evidence was tossed out by liberal judges, and estimates the total resulting cost to society. Had crime rates continued at the low 1960s clip--before the 30-year Great Crime Spree took over--some 500,000 fewer Americans would have been murdered. Even larger numbers of rapes & robberies would not have been perpetrated. Some portion of these monster numbers came courtesy of recidivist felons, freed not infrequently as federal & state judges fashioned judicial rules that had not existed when the police arrested & questioned the subject--declaring old practices no longer lawful, and interpreting new practices differently than police predicted would prove the case.
Let one Mapp & one Miranda case each, as told by the author, show who the rules worked--often perversely.
For Miranda:
All this turned loose a lot of potentially dangerous people. Perhaps more damaging, however, was the psychological toll on the public in watching the courts flounder over whether an obviously guilty person should go free. A typical case was the murder of 9-year-old Pamela Powers in Des Moines in 1968 by Robert Anthony Williams, a 23-year-old drifter. Williams came under suspicion when Powers disappeared at a YMCA event and a 12-year-old boy saw him carrying a large object wrapped in a blanket from his upstairs hotel room. Williams was read his rights and refused to answer police questions. While he was being transported to jail, however, a police officer remarked that the family might want to give the missing girl a "Christian burial." An hour later, without prompting, Williams volunteered to lead police to the body.
It took the courts fifteen years to decide whether this confession violated Miranda. Williams was convicted at trial but the U.S. Supreme Court overturned the verdict, saying that mention of a "Christian burial" had constituted "psychological coercion." At a second trial, Williams's implicit confession was excluded but the dead body was ruled admissible on the grounds that its discovery was "inevitable." Several years later, the Eighth Circuit ruled the discovery was not inevitable and ordered another retrial without the body as evidence. Only a narrow 1983 decision by the U.S. Supreme Court finally made the conviction stand.
And for Mapp:
Far more consequential, however, would be to reconsider the exclusionary rule of the Fourth Amendment. The whole process of search-and-seizure has become paralyzed over interpretation of its meaning:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.In the early days after Mapp, evidence was excluded because the police had not obtained a warrant. This was understandable since before Mapp the Fourth Amendment only applied to the federal government while most investigations take place in the states. Once issuing warrants became routine, however, defense attorneys began pecking away at them on technicalities. Convictions were overturned because a warrant had listed a wrong address or misspelled a name. In one famous case, a murderer went free because the judge had written the warrant on a wrong legal form.
Then attorneys began focusing on the phrase "describing… persons or things to be seized." What constituted a proper description? In a case that finally reached the U.S. Supreme Court, the conviction of a Boston murderer had been overturned because the warrant had specified searching for "a woman's jacket," "wire and rope that match those on the body" and "a blunt instrument that might have been used on the victim." Instead police found "a pair of bloodstained boots," "a woman's earring with bloodstains on it" "three types of wire" and "a woman's hairpiece subsequently identified as the victim's." The Massachusetts Supreme Court ruled the description in the warrant was not adequate. In 1984 the U.S. Supreme Court finally used this case to carve out a "good faith exemption" to the exclusionary rule.
Since then, Fourth Amendment challenges have concentrated on the phrase, "probable cause." What constitutes "probable cause" for initiating a search? Is it an experienced policeman's suspicions that something is wrong? Is it a reasonable surmise that a person is about to commit a crime? Not a chance. Hunches don't count. Instead, the police must wait until a crime is being committed before investigating.
All this came home to roost in August 2001 when the FBI arrested Zacarias Moussaoui, a French national who had aroused suspicion when he was taking flight classes in Minneapolis. Moussaoui was held for having an expired visa. He also had a laptop computer. FBI officials in Minneapolis wanted to look into his computer and search his room but were told by supervisors in Washington that they lacked "probable cause." "All you've got is a guy with an expired visa taking flying lessons," was the response. "Where's the crime?" Minneapolis officials complained bitterly that "somebody better do something before this guy flies an airplane into the World Trade Center."
Moussaoui was the "20th hijacker." On his computer were contacts that could have led FBI officials to other members of the September 11th conspiracy. Because there was no "probable cause," however, his hard drive remained unopened and nothing was discovered.
Now there was a crime that might have been worth preventing.
In the complex tax law case of Graves v. O'Keefe (1939), Justice Felix Frankfurter, an FDR appointee, wrote in his concurring opinion:
The judicial history of this doctrine of immunity is a striking illustration of an occasional tendency to encrust unwarranted interpretations upon the Constitution, and thereafter to consider merely what has been judicially said about the Constitution, rather than to be primarily controlled by a fair conception of the Constitution. Judicial exegesis is unavoidable with reference to an organic act like our Constitution, drawn in many particulars with purposed vagueness so as to leave room for the unfolding future. But the ultimate touchstone of constitutionality is the Constitution itself, and not what we have said about it.
Rarely do the Justices today note this difference, nor do many commentators.
Bottom Line. Such gymnastics on the part of liberal judges clearly freed lots of otherwise convictable criminals, many guilty of violent crimes. Worse, many cases never got to court, because prosecutors knew key evidence would be tossed out. It was surely possible to punish gross abuses of defendants, without finding coercion in every utterance during interrogation, or requiring perfection in warrant preparation, including perfect spelling. Crime victims whose faces were pushed into the sidewalk, who were robbed, raped & murdered, and whose families & friends also suffered terribly, are the price of the liberal revamping of police procedure by often fickle, after-the-fact judicial fiat instead of considered, prospective legislative enactment. The Constitution itself did not mandate such rulings, only the sensibilities of liberal judges incanting the document as they so ruled. As less liberal judges would have ruled differently, it is a reminder that the Constitution itself, and what the judges say about it, are, as Justice Frankfurter wrote in 1939, two distinct things.
Letter from the Capitol, LFTC, 9/11, National Security, Terrorism, Homeland Security, Supreme Court, Conservative Politics
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