15 January 2009


Fuck you and your deciding vote and authorship of the split decision to overturn the exclusionary rule's previous standard! The Herring decision is the most appalling thing I have heard since the USAPATRIOT Act!

I'll update later with more. Too pissed now.

Okay, so a brief summary for those who aren't nerds: the exclusionary rule was a ruling laid down by the Supreme Court whereby if evidence was improperly obtained through police misconduct or negligence, the evidence could not then be used at trial. The phrase often tossed around is "fruit of the poison tree."

Herring, a newly-decided Supreme Court case, yesterday revised the rule. Now a "good-faith" exception is extended to police officers in errors of fact - in other words, if they were just mistaken and not criminal in an improper search or seizure, the evidence is admissable. It's pretty well-summarized by Tom Goldstein (who was involved in the defense) on SCOTUSblog:
The rubber will hit the road in cases in which the officers’ error is one of fact, not law. Herring is such a case - the officer is said to have reasonably relied on the information provided by a police warrant clerk. But what about the more common circumstance in which an officer, based on information not provided by anyone else, negligently but erroneously concludes that probable cause exists. For example, the officer believes that an individual is wanted for arrest but doesn’t call to confirm that fact, or the officer believes that a bag contains marijuana but a closer inspection would have shown otherwise. In the past, those cases would have automatically triggered the exclusionary rule - the Fourth Amendment violation required exclusion.
I understand that many people will have no problem with this. After all, isn't this just eliminating a "technicality" that gets criminals off all the time?

The problem is that this rule has provided incentive for police to be professional and accountable. Herring itself springs from sloppiness: the defendant was stopped and searched under the authority of a warrant that hadn't been valid in months, but the police had neglected to keep their database of warrants current. The exclusionary rule would have thrown the case out because the search was illegal, but that is no longer the case. So why the hell would this police agency ever worry much about keeping their databases up to date in the future? Absolutely no one has any reason to harass them about it except the people who will be screwed - and lone victims are notoriously voiceless.

I bemoaned Roberts' entry into the Court, and it has gone just as I feared. The man's a brilliant legal scholar, but he swung the precarious balance of the Court over more than any one man has done since Rehnquist, asserting his own hyperconservatism with the opposite effect but same persuasiveness as that liberal titan of old.

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