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Judges: The Exclusionary Rule must even cover the countless police errors resulting from an overgrown criminal justice system

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To my knowledge, when they were lawyers, no current Supreme Court justice prosecuted nor defended criminal cases in trial court, and none of them were police. Probably with few or no exceptions, the sitting justices’ law clerks are chosen not for previous law clerking experience with trial prosecutors or defense lawyers, but primarily for having high law school grades, coming from law schools and colleges that have the toughest criteria for grades and LSAT/SAT scores, having law review experience, and having clerked for a federal appellate judge. Have any sitting justices ever visited a jail, beyond the public relations tours, but instead walked the empty hallways of a jail, feeling the often stifling and lonely smells and sensations of being there, and to talk to an individual inmate in the often tiny visiting rooms, where the prisoner thereafter emerges to be strip searched to assure the lawyer has not passed the inmate any drugs, weapons, candy, or any other contraband? Have any of them sat through a criminal trial? I hope so.

The ruling elite, including judges, tend to have high opinions generally of police. The police patrol the neighborhoods in which they live and work. They provide armed escort protection to judges. They provide armed courtroom and courthouse security.

The police propaganda machines in the United States have long infiltrated the schools — probably at least as far back as the schooldays of the three youngest justices (Roberts, Alito, and Thomas) — where students from the youngest ages are forced into assemblies to sit on the floor and remain quiet while uniformed police present a fairy tale picture of the complete good of cops as “your friends” (unless, for instance, the cop is racist and the student is of a race that the cop distastes), the complete bad of “criminals” (even of those convicted after driving with two beers in the belly, or for carrying but one marijuana cigarette are bad criminals?). Which schools counterbalance such Madison Avenue-style police incantations with visits from the ACLU and criminal defense lawyers to talk about the right to remain silent with the police, to refuse searches, to turn in rogue cops, to learn all other Constitutional rights to assert with cops and in the courts; and about such police atrocities as the 2006 police killing of Sean Bell, the 1999 police murder of Amadou Diallo, and the 1997 police torture of Abner Louima (and such police brutality is not geographically limited to New York, despite the New York location of the foregoing horrific examples of police abuse)? My younger brother once came home from school with a “Fairfield Cops are Tops” button, but no “I love the Bill of Rights” button, because no such buttons entered the school.

Although the sitting Supreme Court justices are too old to have been further propagandized by the D.A.R.E. program, all their law clerks are young enough to have been so propagandized, without memories of the days when barely any schools had metal detectors or urine-drug testing even to play in the marching band. Even when Supreme Court law clerks do not submit drafts for portions of Supreme Court opinions, they are part of the justices’ reality. Who else do justices confide in about pending cases other than each other and their law clerks?

Even the most brilliant and knowledgeable judge cannot sufficiently conceive of what the criminal justice system really is without having been there again and again in the pits of the criminal trial courts, the jails, and alleged crime scenes. It is scary to have justices with so little connection to the real criminal justice system, making pronouncements on the Fourth Amendment when they have been so removed from the daily realities of the effects of their Fourth Amendment pronouncements that often live on for years and decades.

The solution to the foregoing conundrums is not to mandate that Supreme Court justices have more experience in the criminal justice system — and I particularly am not interested in adding more justices from the prosecutorial dark-side — but to shrink the criminal justice system so that the system can be more manageably and clearly understood by the justices in the first place and so that justices will be less concerned about making rulings that might let so-called “bad guys” go, particularly when a shrunken criminal justice system will create fewer “bad guys” in the first place. To shrink the criminal justice system to a more reasonable size and into a system in which more civil libertarians can have faith, let us start by legalizing marijuana, prostitution and gambling; heavily decriminalizing all other drugs; eliminating such over-criminalized laws as criminal libel; and eliminating mandatory minimum prison sentencing.

With the foregoing backdrop, yesterday, the United States Supreme Court yesterday issued a 5-4 decision refusing to exclude evidence obtained through Fourth Amendment violations resulting from mere, innocent police negligence. Herring v. U.S.,, ___ U.S. ___ (Jan. 14, 2008). In this case, a police officer wanted to find an excuse to stop and search Bennie Herring, and got his supposed ticket when a police assistant called the neighboring police department to learn of an open arrest warrant for failing to appear in court. The only problem is that the court had already withdrawn the warrant, but the neighboring police department neglected to update its records accordingly. The Supreme Court affirmed Herring’s conviction for being a felon in possession of a handgun and possessing methamphetamine, even though those items were found incident to his unlawful arrest. The majority reasoned that the Exclusionary Rule is designed to deter Fourth Amendment violations, and that such deterrence would not reach innocent police mistakes. To the contrary, if the Supreme Court extends the Exclusionary Rule to police negligence, police departments and personnel will be motivated to be less negligent, lest police leaders and underlings be disciplined and fired for being asleep at the wheel. Moreover, once governments follow my above-detailed recipe for shrinking the criminal justice system, there will be less police negligence in the first place, because police departments will then be flush with enough cash to only hire, train, maintain, and supervise higher-quality police and police employees, and to have less information overload to manage and bungle. The effect of the Supreme Court’s holding in Herring, even if unintended, is that sh*t happens;

Police need to make countless decisions in a split-second, as many police are fond of saying when decrying public scrutiny of police decisions to shoot suspects when they fear that not shooting might leave a dead police officer or innocent civilian. Police are also filled with information overload at the police academy, about the Fourth Amendment right against unreasonable search and seizure and the Fourth Amendment’s warrant requirements; the Fifth Amendment and the Miranda right to remain silent; detecting, testing and packaging suspected illegal drugs; detecting and investigating drunk driving; fingerprinting; handling scary and bloody situations; dealing with hysterical screaming complainants and suspects; diffusing dangerous situations; knowing when and how to use and not use their guns and tasers; knowing how to avoid being disarmed by suspects, and how to get them handcuffed and brought to the police station and court.

With all the information overload in police officer’s heads, the bright-line rule of Miranda, for instance, is critical, that once a suspect is not free to leave, the suspect’s answers to questioning stay out of trial evidence without first being read and waiving the Miranda warnings. Both the police and public also need a bright-line rule that evidence obtained in violation of the Fourth Amendment gets excluded from trial, period. As Justice Breyer dissents in Herring: “I therefore would apply the exclusionary rule when police personnel are responsible for a record keeping error that results in a Fourth Amendment violation. The need for a clear line, and the recognition of such a line in our precedent, are further reasons in support of the outcome that JUSTICE GINSBURG’s dissent would reach.” Jon Katz