Friday, June 23, 2006

The Courts conspiracy of silence on police misconduct

The US Supreme Court appears to have 4 votes suggesting that the exclusionary rule, which says that illegally obtained evidence by the police is inadmissible. The justices (I use that term extremely loosely) say that police misconduct can be remedied by other means, such as lawsuits, internal discipline, and publicity, and other things of the like. I guess that it won't be any huge surprise to anyone that I find these arguments dingenuous bordering on dishonest. Conservative Judicial activists like Thomas, Roberts and Alito (and to a lesser extent, Scalia)clearly know that plenty of police misconduct takes place, they just don't care, as long as it doesn't happen to them. The fact that there is no real remedy for this misconduct (how many people convicted of a crime can turn around and sue for the misconduct).

Here is the perfect example about the lack of internal disciplince. In Pasadena, the defense brought a Pithchess Motion (named after the case) trying to find out any prior complaints against the officer in a dope case (where the officer's credibility appeared to be the crucial issue). The Court ordered disclosure, and the Court of Appeal reversed, holding that evidence of the officers prior domestic violence against his wife and subsequent failure to report it was not discoverable. In other words, the defendant takes the stand, he gets all of his prior convictions against him read out in open court, the officer takes the stand and can beat his wife, and it doesn't come in. I'm quite sure that he was never prosecuted for this. A prior study by the LA Times showed that prosecutors almost never file domestic violence charges against police officers, no matter how strong the evidence. Of course, such a conviction is the end of their career, as they're never allowed to own firearms again.

This is what the Court said:

"Custodian of Records [in this case, the City of Pasadena] contends that Officer Llanes's failure to report a domestic violence assault against his wife has no bearing on weather he would lie about the rock cocaine sale on the witness stand and disclosure of the failure to report based on a domestic violence allegation constitutes a breach of privacy."

and later.....

"The matter here is of such a personal and private nature that Officer Llanes's failure to report it has no bearing whatsoever on his credibility."


Read the whole opinion here.

Now the only thing I can think of is that either he was aware of domestic violence against his spouse, but that he didn't do it and didn't report it (who the hell could've done it in that case?), or he beat her more than 5 years ago and failed to report it less than 5 years ago. The more than 5 years being outside the period of Pitchess. Consider this, though. He can be impeached on stuff decades old (at least our clients can be), but we can't find out even if he has been convicted of murder more than 5 years ago under the only vehicle we have to find out his wrongdoing.

This is just another example of the idiotic lengths the courts and legislatures will do to ensure that people accused of crimes do not fight on a level playing field. It is also another example of the manner in which the Supreme Court is a now vehicle for the interests of the powerful against the weak. Such a change over the last half century. Maybe you think this is a proper manner in which the Supreme Court should act, but to you, I say that most of our greatness around the world, and the manner in which we are (or were) viewed as a light unto the world vis a vis civil rights, individual rights and restricting government wrongdoing has come at the hands of the Supreme Court over the last half century. I really hate ending that.

Additional Note - Don't worry, the Courts will ensure that this idiocy doesn't haunt them for too long, they made the opinion unpublished. This means that the case can never be cited, and will eventually waste away unknown into the future, so they write all the idiocy they want without any oversight.


Poverty Lawyer 1 said...

What makes you think Scalia doesn't out-right know his argument was disingenuous (you said "to a lesser extent..."? I think Scalia is brilliant but evil and definitely knows better than to actually believe his line of crap about police being more professional and all that.

Anonymous said...

I cannot believe that!!! I work as a police officer in England, and if you get a disciplinary record for whatever reason, then a page is added to EVERY prosecution file you touch which outlines your disciplinary past. This is given to the defence as part of disclosure (same as 'discovery'), and you would definately expect to be examined in the box about any of your own issues, particularly dishonesty or violence.

There have also been a few high profile appeals where criminals have been cleared and released from LONG jail terms due to police abuse of process (such as bugging a suspect's conversations with his lawyer at the police station - supposed to be private). The courts do this as there is no other way of teaching the police a lesson when they seriously break the rules.

Dennis R. Wilkins said...

It's really good to see you back, PD Dude. I have missed your comments.

The Supreme Court has, indeed, been penning some pretty bad decisions as of late. Make no mistake - the Warren Court has been dead for a long time now. The decisions have been very bad for criminal defendants. I'm fascinated by the last post from a police officer in England. I would love to know more about the Exclusionary Rule in european countries. It seem that, despite what conservative commentators have said to the contrary, most european countries have some form of Exclusionary Rule. Not sure about it, but it may be more robust than our own.

Let's call it what it is: Our country is descending deeper and deeper into fascism. I'm not crazy, and this isn't some anti-Bush tirade. It's been happening for some time. But the players are more open now. Flag burning, rather than poverty, civil rights (Guantanamo, anyone?), crime and punishment (Schwarzeneggar wants to build more prisons? You gotta be kidding me!) has taken center stage in the U.S. Senate. People are constantly being misinformed about the scope, costs and targedies of the drug war (why is it legal only I have a prescription, and how does Ruch keep getting off but poor suckers go to prison for life?), yet no real debate about legalization has taken place. Fascism. This country is rapidly descending into it.

PD Dude said...

Good to hear from you as well, Dennis. It has been too long for me, but I'm back.

I was also interested in the English Police Officer's post, and would love to hear from you more.

Dennis, I'm not the alarmist type, but I also fear that we are descending into fascism. It is something that is very easy to rely on, when thinking becomes too difficult, when it is more desireable to be led around by your emotions. And that is where I see the bulk of the idiots in this country looking for salvation. It is very scary.

wannatakethisoutside said...

Thanks for educating me about this!

Pleader said...

From here in Australia the US is still occasionally held up as a good example for us to follow on civic matters (eg the various freedoms, global responsibility, etc). All the examples are, however, quite dated. Most of those who speak of what America can be do so with examples (selective) from its past. Right or left, much of the commentary that is about its present situation and actions are very derogatory and would be found insulting by most Americans, I believe. Such a shame...

Anonymous said...

Here in Virginia the courts, police and attorney's are corrupt. The Virginia State Bar laughs at their ethical standards expecting a victim to enforce competency.

I was assaulted and incarcerated by a Manassas Police officer in a store that had video cameras all around. When I told my attorney he seemed upset, claiming that unless the officer explained the reason for his demanding my id I did not have to provide him with it. On the date of the hearing, this attorney had not talked to witnesses or viewed the videos.

The police officer lied on his report stating that I did not give him the id, that he did explain why and that I resisted arrest (he had turned my back to his cohorts, slipped when putting on the cuffs and then yelled "he is resisting arrest").

The courts separated me from my girlfriend - we had come from the hospital because she had an episode when the incident had occurred, my girlfriend suffers from bi-polar disorder and allegedly the prescription (we never saw the alteration and my girlfriend does not remember, I was totally unaware of this) was altered, the CVS pharmacist called the police and the incident occurred.

When I mentioned the lies to my attorney at the hearing he said that "the police lie all the time on their reports and that I would not be believed". I asked for the videos, he claimed that the courts would not believe them either if I was upset - I had become a little upset because they could not identify what was going on - they tazered, maced, choked and hit me - I expected the videos to show that I did question but did not physically resist their demands. The judge, just hearing the deal that the prosecutor had made with my attorney (two weeks incarceration) argued that I deserve more time - without my attorney saying a word (fair hearing ?). I wrote letters to the Manassas Police chief, Mayor, Virginia State Bar, the paper that published our names, requesting that they look at the videos - no response... I thought that I would be able to sue the city - but that only works here if the courts found me innocent - I could not get a Virginia Attorney to take the case.

The videos would have shown that I had presented my id, that I had submitted to cuffing and that I had not made an agressive move against the Police. The videos may have shown the police threatening citizens that attempted to interviene on my behalf.

The police will lie, cheat, steal to accomplish their ends and the courts will rubber stamp it. But then the disenfranchised have known this all along.

BabyDA said...

Did you read the same case I did?

The exclusionary rule, created by the federal judiciary, remains alive and well.

The Court simply pointed out that there is no rational justification to throw out evidence recovered by an officer executing a valid search warrant supported by probable cause, just because the officer fails to give sufficient notice by knocking on the door and yelling, "The police are here. One Mississippi, two Mississippi, three Mississippi ... ."

Ostensibly to promote officer safety, the "knock and notice" rule promotes gamesmanship whenever a legitimate, judicially authorized search is to be conducted. It gives suspects time to resist a search by destroying evidence or arming themselves. It clogs the courts with suppression motions debating how many seconds elapsed before entry, and how many seconds the officers should have waited.

Simply stated, a search of a home backed by a valid warrant is completely different scenario from entering someone's home without judicial authorization.

Dennis R. Wilkins said...

Thanks for clearing that up, BabyDA. And yes, I did read the case. "Clogging up the courts with suppression motions[?]" Yeah, I think we don't see eye to eye on this, and we never will. The whole point of knock-notice was to prevent harm all the way around. Too many times the police serve a warrant AT THE WRONG ADDRESS, or on someplace that has nothing to do with criminality. If someone breaks into your home, I can't imagine that someone as 'tough on crime' as yourself is just going to sit tight and quietly dial 911, put up your hands and do what the burglars want, and pray for the best. No, I expect you'll pull out a gun and defend your home. But what if the burglars turn out to be cops? Knock notice was designed to prevent just this issue.

But I don't need to explain all this to you. You already know it. You're a DA and you see the Fourth Amendment as a nuisance. What do you care that the Constitution keeps getting stripped away, bit by bit. They're all just criminals, right?

Remember these words. You'll be subject to an arbitrary law, or an arbitrary cop, and you'll understand why every freedom that we have is precious, and it ought to be worth our very lives to protect.

Re-read anonymous's post above. Is he just crazy? Did he resist the cops? Or was it perhaps that he acted inappropriately, the cops overreacted, then charged him with a crime to cover it up? The tough part is that we will never know, because our criminal justice system is heavily weighted in favor of the police and the victims.

Anonymous said...

What ever happened to, "The children are our Future"?
Baby Boomers are quickly reaching retirement. The courts are locking up many of their children with life sentences. Prisoners' children are forced into the foster or welfare systems.
All of those department agencies and their budgets are broke.
Somebody needs to do the math.
Soon there will not be enough taxpayer dollars to support these agencies.

Anonymous said...

PD Dude:
Bad example with the arrest of the officer versus your clients' criminal records. To level the playing field and get the officer's arrest and failure to report in, the ADA would have to be able to bring up every one of your clients' arrests and/or mistruths regarding those arrests. How many defendants could really stand that sort of litany, rather than a recitation of the fact of conviction and the crime?