Waiting for Fitzgerald

Originally posted by Captain
I think the idea of holding the department accountable is interesting, but it does mean that if you get a crummy police department, it is likely to only get worse as they pay claim after claim. You'd likely need a way to taking over those departments entirely.

First, I suppose, they would be taken over by the state. But I hear that some people are not too pleased with the competence found in some of our state governments. So we should take the next step and Federalize them. Then, when we discover rampant corruption at the Federal level, all the pieces will be in place for the final phase of Burger's evil master plan -- one world government run from the basement of the United Nations Building in New York. You are a sly one, Mr. Burger.

[Mmmm, Burger (C.J.)]

Originally posted by ironweed
First, I suppose, they would be taken over by the state. But I hear that some people are not too pleased with the competence found in some of our state governments. So we should take the next step and Federalize them. Then, when we discover rampant corruption at the Federal level, all the pieces will be in place for the final phase of Burger's evil master plan -- one world government run from the basement of the United Nations Building in New York. You are a sly one, Mr. Burger.

If you removed your tinfoil had for just a minute, 'weed, you would be able to see the black helicopters circling your apartment right now.

[taxwonk]

Originally posted by Hank Chinaski
how can the Court make it a requirement then?

Shouldn't it just have said "rights shouldn't be violated and some consequence should attach when they are." When courts start crafting rrules, isn't that kinda sorta legislative?

Yeah. We don't want courts providing any remedies. That's just wrong.

"The court hereby finds that you were fucked. Sorry, about that, Dude."

[taxwonk]

Originally posted by Mmmm, Burger (C.J.)
Why are money damages less of a check than the exclusionary rule? Given the number of times it's violated, it's not like cops are giving it the full weight it deserves?

I can think of at least three reasons. First, the money damages wouldn't be coming out of the individual officers' pockets. And I think we can both agree that government isn't too terribly disturbed by the fact that is has to spend money to get nothing of value in return.

Second, the defendant who is convicted and sentenced to die doesn't have much use for money damages.

Third, the rule isn;t for the benefit of the defendant per se; it's for the benefit of all society. If the cops can bust down anybody's door, and search at will, and the only rememdy is money damages, then I ought to be able to sue the gov't every time they violate the 4th Amendment, because I am just as aggrieved as any other member of society.

[taxwonk]

Originally posted by Mmmm, Burger (C.J.)
Sure, but why is it the best way to protect those rights? What if the rule were that any evidence even if seized unlawfully were admissable, but that the cop(s) who obtained it were automatically discharged and put in jail for a year? (and it didn't require a lawsuit by the defendant, but rather just a motion in court) I'll bet you'd have fewer illegal searches that you do now, and you'd put away the criminal.

I couldlive with that in principle. But how do you deal with the notion of sovereign immunity? And how do you recruit cops if they are being thrown in jail all the time?

[Spanky]

Originally posted by sgtclub
My guess, based on nothing other than a guess, is that most of the time that the exclusionary rule has a real effect is at the margins, so it is not a matter of doing a job well, but rather a matter of taking a risk in the grey area.



I guess I'm focussing more on the down side. Agreed that the criminal that gets off is not deserving, but I think that is better than taking funds away from the PD or de-incentivizing individual cops and thereby hurting us all.

What I think you are ignoring is the corrosive effect on the system of finding relevent evidence and the pretending it is not there. I believe it is much better if the evidence is not found in the first place.

I think the exclusionary rule brought a huge backlash against the system in the 1970 and 1980s. I think it was this atmosphere let led to sentencing guidelines, more focus on the death penalty, locking up everyone person involved in drugs we can find. In my experience peoples biggest complaint about the judicial system is people still talk about people getting off on "technicalities". A lawyer maybe able to rationalize excluding probative evidence, but it is a very hard conecept to get across to the public. As I understand it from my friends in the DA's office, judges do all sorts of rational gymansastics to avoid the effects of the exclusionary rule. It encourages Cops to lie and for the judges to believe those lies no matter how crazy they are - which further corrodes the integrity of the system.

You can't unring a bell, but somehow people that designed our system think you can.

[Spanky]

Originally posted by Replaced_Texan
I am going to hell.

You can hang out with me when you get there.

[Captain]

Originally posted by Spanky
What I think you are ignoring is the corrosive effect on the system of finding relevent evidence and the pretending it is not there. I believe it is much better if the evidence is not found in the first place.

I think the exclusionary rule brought a huge backlash against the system in the 1970 and 1980s. I think it was this atmosphere let led to sentencing guidelines, more focus on the death penalty, locking up everyone person involved in drugs we can find. In my experience peoples biggest complaint about the judicial system is people still talk about people getting off on "technicalities". A lawyer maybe able to rationalize excluding probative evidence, but it is a very hard conecept to get across to the public. As I understand it from my friends in the DA's office, judges do all sorts of rational gymansastics to avoid the effects of the exclusionary rule. It encourages Cops to lie and for the judges to believe those lies no matter how crazy they are - which further corrodes the integrity of the system.

You can't unring a bell, but somehow people that designed our system think you can.

I do not think the exclusionary rule was the only element in that backlash.

[Spanky]

Originally posted by taxwonk

Second, the defendant who is convicted and sentenced to die doesn't have much use for money damages.

What you are forgetting is that the defendant is guilty. There was more probative evidence in his trial which led to the truth. Why is he getting screwed? The purpose of the rule is not to let guilty people go free, that is just an unintended consequence. Better he die and the money go to his heirs.

[Spanky]

Originally posted by Captain
I do not think the exclusionary rule was the only element in that backlash.

Yes but a huge part of it. And the media played it up for all that it was worth. How many shows have you seen where the main tension and drama in the show is provided by the fact that some guilty guy is going free because of the exclusioniary rule. It happens in almsot every cop movie, (Clint Eastwood, Chuck Norris, Steven Seagall, Law and Order). That was the entire plot of the Star Chamber.

I think once the rule was dropped it would restore an unprecedented amount of confidence in the Judicial system.

[Mmmm, Burger (C.J.)]

Originally posted by taxwonk
I couldlive with that in principle. But how do you deal with the notion of sovereign immunity? And how do you recruit cops if they are being thrown in jail all the time?

I said at the outset that sovereign immunity currently makes this alternative approach impossible. It would be necessary to eliminate sovereign immunity for damages actions for unlawful searches.

As for criminals being sentenced to death, 2 to spanky. Unlawfully seized evidence is not unreliable (this is not coerced confessions). No one has ever said it is. The only reason it's excluded is it's a way to vindicate the 4th amendment.

As for your damages, there are plenty of ways that civil litigation has evolved to address just such a concern, including class actions and punitive damages. Why are neither sufficient here?

[Hank Chinaski]

Originally posted by Mmmm, Burger (C.J.)
I said at the outset that sovereign immunity currently makes this alternative approach impossible. It would be necessary to eliminate sovereign immunity for damages actions for unlawful searches.

As for criminals being sentenced to death, 2 to spanky. Unlawfully seized evidence is not unreliable (this is not coerced confessions). No one has ever said it is. The only reason it's excluded is it's a way to vindicate the 4th amendment.

As for your damages, there are plenty of ways that civil litigation has evolved to address just such a concern, including class actions and punitive damages. Why are neither sufficient here?

Maybe you can get counsel to handle the Defense for free (saving the city $$$) for a shot at contigency for the punitives.

[Captain]

Now that we have gotten rid of the exclusion rule and sovereign immunity, what else is wrong with the constitution as currently interpretted? What should the founders have done differently?

I'm not thinking about the current "hot" issues like Roe v. Wade, but of more subtle things like the sovereign immunity issues or 9th amendment issues.

[Mmmm, Burger (C.J.)]

Originally posted by Captain
Now that we have gotten rid of the exclusion rule and sovereign immunity, what else is wrong with the constitution as currently interpretted? What should the founders have done differently?

I'm not thinking about the current "hot" issues like Roe v. Wade, but of more subtle things like the sovereign immunity issues or 9th amendment issues.

Lifetime appointments for S. Ct. justices.

Limit them to 18 years. Stagger the terms so every president gets 2 picks (or should). Avoids incentives to appoint young people who stick around forever; prevents people from hanging on forever; gives presidents and senate a fairly frequent opportunity to have some influence on the court's makeup (not at random intervals either). No concern that they'll kowtow to litigants to ensure a post-judging job, since most will be at retirement age anyway.

Also, while we're amending (and we might not need an amendment to do this), I would create a provision that, whenever a justice is recused, the chief judge from one of the circuits (other than the Fed. Cir. and the one from which the case arises) is selected (perhaps by lot) to sit as an acting justice for that case only.

[Replaced_Texan]

Originally posted by Spanky
Yes but a huge part of it. And the media played it up for all that it was worth. How many shows have you seen where the main tension and drama in the show is provided by the fact that some guilty guy is going free because of the exclusioniary rule. It happens in almsot every cop movie, (Clint Eastwood, Chuck Norris, Steven Seagall, Law and Order). That was the entire plot of the Star Chamber.

I think once the rule was dropped it would restore an unprecedented amount of confidence in the Judicial system.

Or maybe Hollywood could be a little less sensational in its portrayal of the judicial system?

I went to a very good ethics* CLE last year that focused on how much misinformation the public has about good, ethical lawyering because of how lawyers are portayed on film. If Tom Cruise implied he had evidence that he didn't have in A Few Good Men, then it must be ok for real lawyers to do the same.

*Any CLE that spends half the hour showing pop culture film clips is good CLE as far as I'm concerned.