From:
[email protected]
Newsgroups: alt.folklore.urban
Subject: Legal Loopholes Examples (long)
Date: 13 Feb 94 15:26:30 -0500
In article <
[email protected]>,
[email protected] (Ed Hackett) writes:
[...]
> The po-lice had arrested a serial murderer. Caught him red handed so to speak.
> He was released by a commielib, bleeding heart judge on a "technicality," seems
> his "rights" were violated during the arrest.
>
> It occurred to me that this kind of thing has become an UL. Everyone's heard of
> cases like this one.
>
> Is there any basis in fact for these UL's?
The "technicality" in question usually turns out to be some really
obscure point of law like the Fifth Amendment. Some of those
commie-symp judges expect a red-blooded patriotic street cop, risking
their life everyday to keep scum off the streets so decent folk can
sit at home and read their Bibles in peace not to mention the low
pay and the abuse they have to take from long-hairs and draft dodgers
some of those punks look like they haven't bathed in weeks you can't
tell the boys from the girls they all take drugs and do other things I
can't even mention call it "Free Love" my god love used to be a
beautiful thing between a man and a woman and god and their minister
and their country club now they're even talkin' 'bout stuff like from
Sodom and Gomorrah makes me sick what are we coming to, to remember
things like the Constitution.
Cases do get thrown out on procedural matters, but not as a kind of
reward for "violation of your rights". Improperly obtained
confessions, evidence seized in violation of that pesky old Amendment
against unlawful searches and seizures, unjustified arrests, etc (etc,
etc! ...) can result in the evidence in question being thrown out,
which makes it harder to get a conviction or may result in charges
being withdrawn. A case may get thrown out entirely if the only
judtification for the charges themselves was illegaly acquired. But
just demonstrating that a violation occurred is not a "Get Out of
Jail" card. Many examples exist; I give a few below to illustrate
where these so-called "technicalities" come from. *Note that this
discussion turns entirely on US law; I include it in the presumption
that our non-US friends are eternally fascinated with us and our legal
system.* The most famous rulings are from cases overturned on appeal,
which have set precedents establishing proper procedure.
_Miranda v. Arizona_, 1966 (I will not give full legal citations -
those with the expertise will know how to look them up) involved a
man identified by the victim of a violent crime, who was interrogated,
reportedly without coercion and also without information as to his
Constitutional rights (the defendant had relatively little
education); he gave a detailed confession and was almost undoubtedly
guilty, and was convicted. The Supreme Court ruled that the
conviction was improper because it rested on a confession obtained
from a suspect who could not exercise his Constitutional privilege
against self-incrimination, because he did not know about it. Police
now must "read [the suspect] their rights" - "You have the right to
remain silent ... anything you say will be repeated on television by
Jack Webb ..." - the famous "Miranda warning". Today, any confession
from a suspect who had not been "Mirandized" (yeah - they use that
word) will be disallowed in court unless it was either an "excited
utterance" or a "deathbed confession". This does not mean that the
trial cannot proceed, but it means that the court presumes a defendant
(even a well-educated one who has seen Dragnet) who has not been
informed of their rights will have been unfairly taken advantage of.
_Brewer v. Williams_, 1976, involved a man who kidnapped and killed a
child. He contacted lawyer and was advised not to talk to the police
without the lawyer present; he also stated that he would not talk
until he had seen his lawyer. His lawyer told police that the
defendant would not talk until he had conferred with his new lawyer in
the town to which he was being taken for trial; the lawyer was refused
permission to ride along with the defendant during the trip. On the
ride over, one of the police officers gave the defendant "the Christian
burial speech", saying the child's family was very sad that the child's
body had not been recovered and how nice it would be if someone would
tell them where to find it so they could give it a Christian burial.
The deeply religious defendant took leave of his senses and told them
where the body was, sealing his own fate in the process. The Supreme
Court held that the discussion in the car amounted to manipulation, in
that the police knew that the defendant was religious and also had a
history of psychiatric illness, and they deliberately worked on him
when they had him isolated between his lawyer in the first city and
the lawyer waiting for him in the second. His being deprived of
advice at that time put him at a disadvantage, and the interrogation
was a violation of his right not to incriminate himself. The point
here is that he did not *waive* his right not to talk - talking by
itself is not evidence that he had made a considered decision to give
up his right; if he had said "I've thought about it and decided I
don't need a lawyer and now want to talk to you without one ..." it
would have been OK, but in the absence of a positive decision to waive
the rights to counsel or to silence, unadvised confessions are assumed
to be made in ignorance or under manipulation.
However, a very similar case(_Rhode Island v Innis_) was upheld. Here
police officers expressed concern over the possibility that a gun used
in a murder would be found by a child who might hurt themselves; the
defendant overheard and told them where to find the gun, after being
Mirandized three times before the conversation and once afterwards.
The Court held that this was not an "interrogation" and hence did not
violate the right to have counsel present; it is apparent that if the
Justices thought that the conversation was in fact an interrogation
they would have ruled differently. The difference between _Brewer_
and _Innis_ seems to be that in the former the speech was directed
*at* the defendant and included a barely-disguised plea for him to
confess, while in the latter it seemed to be just a genuine
conversation not directed at the defendant.
_Katz v United States_, 1967, overturned earlier rulings that
wiretapping was not an illegal search and seizure. The case here
concerned a defendant suspected of using a pay phone to facilitate
illegal business (either drugs or gambling, I forget which). The
police wiretapped the public phone in question and listened in to the
conversations of everyone who used it, then taped ones by the
defendant. The Supreme Court held that there is a "reasonable
expectation of privacy" in certain public places, and thus
intrusion into these places violates the protection against unlawful
searches. The case established two things: that wiretapping is a
"search" under the meaning of the Constitution, and that tapping
public phones is just as questionable as tapping private ones.
(Previous rulings held that telephone conversations were not part of
one's house or property and thus were not protected by the
Constitution.) In current cases, wiretappings must be undertaken only
on a warrant signed by a judge - a "search warrant" just like any
other.
_North v [somebody]_ - Oliver North's conviction for misleading
Congress and obstructing justice was overturned on the grounds that
the prosecutors were aided in their search for evidence by testimony
under oath from North himself during his appearance before
Congressional investigating committees. The spineless committees
agreed to "privilege" North's testimony, which meant that it could not
be used against him in court; his lawyers then argued that the
evidence that was used against him had been contaminated by evidence
from his testimony. This illustrates an unusual evidentiary exclusion
which seems (to my untutored eye) to have arisen recently. Now that
we have investigating committees of various kinds, and the innovation
of "privileged testimony", we have that many more opportunities to let
people off the hook for what they have not only confessed under duress
but *testified to under oath with their own lawyers present*.
All the above cases are landmarks which resulted in overturned
convictions and the establishment of new procedural protections. What
they have also done, of course, is get a lot of other people off since
the respective cases, on the grounds that the procedures established
in these precedents had been violated. Again, violation is not
automatic acquittal, but it may serve to get some evidence thrown out
or to lead an appellate judge to agree that the conviction was grossly
unfair (which gets the defendant off because they cannot be re-tried
under the double jeopardy provision). The legal doctrine which
prevails here is "fruit of the poison tree" - a quaint lawyerly saying
which means that anything obtained from a tainted source is also
tainted and must be avoided. This has led to the "exclusionary rule",
an informal rule that any evidence which was obtained in violation of
the Constitution or even local police procedural rules (sometimes)
must be kept out of the trial. The various complaints you hear about
criminals being released on "technicalities" are usually
manifestations of the exclusionary rule, but as you can see that rule
results from a general principle of law which makes a certain amount
of sense in its own right, and from various cases which have hinged on
fundamental Constitutional principles. (Occasionally, someone does
get off on a true technicality, like the spelling of a name on the
docket or the date of filing of charges, but these are just rare
screwups.)
[Most above cases from _Readings in the Philosophy of Law_, Arthur and
Shaw, Prentice-Hall, 1984]
ObTrueLegalRarity: A jury voted for "Guilty" but the foreperson signed
the ballot on the "Not Guilty" line. Defendant acquitted!
Kevin "abuse, maybe, but incrimination, never - thank god for the 5th
Amendment" T. Keith
