Maybe we’re talking about the death of the suppression motion. Although it was never more than a zombie anyway, eating the brains of judges, lawyers, cops and probably the general public, too.
It’s been a staple of criminal defense practice in the United States for more than 40 years: evidence against the defendant is illegally obtained by police and his lawyer moves to suppress it, so it can’t be used against him, sometimes leaving the government with no evidence with which to convict him. A pretty neat trick, I suppose, in the half dozen or so cases – nationwide – where it actually happened in all those years.
I exaggerate. There were probably more than 20.
One reason such motion were never granted is that a ruling in favor of suppression would come only after the court held an “evidentiary hearing” to determine if, in fact, the evidence was illegally obtained by police. And the police learned what sorts of things they would have to testify to in order to defeat the suppression motion, such as that the evidence was “in plain view” so there wasn’t really a search, or that it was dropped, or that it would inevitably have been discovered anyway, or that they acted in good faith, or that it was the product of a search incident to lawful arrest, or an inventory, or that the cop had x-ray vision and couldn’t help seeing it. And the cop would be believed even if he was often lying and the suppression motion would be denied.
Scott Greenfield, in yet another invaluable service to the legal profession, has managed to prompt a federal judge to offer his unvarnished views on this song and dance. Which is great. It’s great to know how hopeless it always was, this whole suppression business: most defendants are guilty (duh); only one side of the story is told at the suppression hearing, since the criminal defendant almost never testifies; judges have an authoritarian bent (duh); a judge’s experience is that cops are more honest than criminal defendants. Who again, as an empirical matter are likely guilty.
One very interesting interlude is that SHG makes reference to an old case out of New York from the heyday of suppression motions, circa 1970, People v. McMurty. In that case the defendant took the stand at the suppression hearing, said he possessed and sold drugs and in that regard he was an experienced criminal, and that he would never “drop” drugs out of his pocket like the officer said he did because he knew that otherwise the cop would have to conduct an illegal search of his person to find them.
And the judge in the case was troubled, finding the defendant credible but also the cop and of course suppression was denied.
So we marvel at the perversity of it all. A defendant waives his right to not be made a witness against himself by taking the stand, admits everything truthfully, and relies upon the law as it was at the time, and upon the sound judgment of the trial judge, to make the prosecution go away because despite the outcome there, the only reasonable credibility determination would have had to favor the defendant. He confesses to the crime he’s accused of in open court because under the law if he is believed the evidence of his crime would have to be suppressed. Of course, whether the prosecution could proceed on different evidence – namely, the evidence the defendant himself gave at his suppression hearing by testifying – is a question the court didn’t consider because it denied the suppression motion anyway.
No matter how we construct the law to make the process, for want of a better term, a fair game, the mind will recoil at the thought of the factually guilty escaping punishment because of the game’s rules, just as it will recoil at the factually innocent being punished at all.
Then, in the comments, the beginnings of an SHG epiphany:
So you’re exactly right: the outcome is pure cynicism, as some judge lectures them about being a law-abiding citizen and obeying the law, immediately after the cop lies through his teeth and sneers at the defendant. And we wonder why they won’t behave the way we want them to.
More than three years ago, I put up a little post about the morally corrosive influence of the Supreme Court’s 4th amendment jurisprudence from the 1960’s on the whole system – but especially on the police – flowing from Mapp v. Ohio. I had SHG in mind then, not really personally but as sort of a representative sample of criminal defense lawyering of the post-Mapp era. One of the many discussions that should be taking place among lawyers on the subject of why the system so often gets it wrong is detailed in that post.
And now, with a slightly different take, in one of SHG’s posts.
Maybe I shouldn’t say ‘slightly’ different, because when it comes to offering any kind of solution the slight difference becomes a giant chasm. And as regular readers know, I am loathe to make criticisms without offering solutions, however much of an outlier it might appear to make me.
SHG rightly laments the pure cynicism. But you can’t get much more of a cynical result than defendants saying they are guilty and demanding to escape punishment for technical reasons, as in People v. McMurty. To overcome cynicism there has to be some devotion to truthfulness and other virtues, if only in the breach.
Somewhat ironically, I would like to trust the police as much as the next guy – well, maybe not as much as Judge Kopf. But still. The rules of the game that we set up should not, therefore and in my opinion, reward vice and punish virtue.
My suggested solution will have to await another post. It’s Easter, after all and I have to attend to other matters.