Post by SoulTrainOz on Jun 25, 2006 21:46:27 GMT -5
Attempts by defense attorneys to keep evidence away from juries are the stuff of legend.
Stories of criminals walking free because of technicalities fuel rage in the citizenry and spur politicians to action.
In 1 high-profile case, a Citrus County judge is considering a request by defense attorneys for John Evander Couey, accused in the killing of 9-year-old Jessica Lunsford, to throw out Couey's confession.
In spite of the outrage generated by the idea that criminals can thumb their nose at society by using technicalities to go free, legal experts say judges seldom keep crucial evidence out of court.
A recent U.S. Supreme Court decision limited the use of the rule that allows judges to suppress evidence, known as the exclusionary rule. The court held that the cost to society - potentially letting criminals go free - is too high a price to pay for some missteps by police.
Some court watchers think the case may mark the beginning of the end of the controversial rule.
Hillsborough State Attorney Mark Ober couldn't think of a significant local case in which crucial evidence was lost because a judge excluded it. Occasionally, Ober said, judges have suppressed evidence in drug cases, but losing evidence hasn't been an issue in major cases, such as murders or sexual battery.
Ober said he thinks that's because police follow the rules.
Ober said he doesn't view the exclusionary rule as an obstacle for
prosecutors.
"We're a nation of laws, bound to follow the laws," Ober said.
The exclusionary rule is "an inherent part of our freedom, and I view it that way," he added. "The defense attorneys have an obligation to pursue these issues if they honestly and ethically can do so. It's a system of checks and balances."
Rarely Granted
Pinellas County defense attorney Jeffrey Brown says that in his career he has represented thousands of criminal defendants. In all those cases, he estimates he's filed motions to suppress evidence 100 times, winning maybe 25.
"Motions are very common, but it's rare that they're granted," Brown said.
Brown said he thinks the exclusionary rule plays an important role in the judicial system - deterrence. "We want law enforcement officers to follow the law, and if they don't, there's a penalty to pay."
The exclusionary rule was created by the U.S. Supreme Court in 1914 and applied to state and local police in 1961. According to the Oxford Companion to the Supreme Court, the rule derives from the constitutional concept of limited government power. The reasoning, according to the book, is, "if the government had no authority to seize the evidence, then a court - another branch of government - had no right to retain the evidence for use in a trial." Thomas Davies' 1983 study of the exclusionary rule has been cited by the Supreme Court. Davies, a law professor at the
University of Tennessee, found then that between 0.6 % and 2.35 % of cases are lost because of evidence kept out of court by the exclusionary rule.
Davies said no one has updated his statistics because the larger national debate on the exclusionary rule has quieted.
He said the courts have severely limited the use of the rule over the years, carving out numerous exceptions. Because of that, Davies said his sense is that evidence is excluded much less than he found in his 1983 study.
"The Fourth Amendment's protections are pretty limited today," Davies said, referring to the part of the Constitution that forbids unreasonable searches.
Court 'Tweaking,' Lawyer Says
In its recent ruling in a case known as Hudson vs. Michigan, the nation's highest court held that when police serving a search warrant violate a requirement that they knock and announce themselves, the exclusionary rule does not apply. In other words, the evidence they seize still can be used in court.
Bartow defense attorney Robert Norgard said he thinks the Hudson ruling is reasonable because some requirements on police are overly restrictive.
"It seems like every time something like this happens, you get people who think it's the end of the world," Norgard said.
Norgard said he thinks the court is just fixing some problems with the law. "I just see it as a tweaking of the rules of search and seizure rather than an assault on the exclusionary rule."
3 years ago, Norgard persuaded the state Supreme Court to throw out evidence in a 1994 murder case.
The case involved Bartow citrus rancher Scott Mitchell, who drove up to 2 people stripping a stolen car in a grove. He was shot twice in the head.
A suspect, Darryl Moody, was stopped by a Polk County deputy because the deputy knew that Moody had prior arrests for driving without a license. The deputy found evidence in the car that linked him to the shooting. Despite defense objections, the trial judge said the deputy's traffic stop was valid.
In 1998, a jury convicted Moody and recommended death. Five years later, the Florida Supreme Court ruled that the deputies had pulled over Moody "on a hunch" and threw out all the evidence - including the murder weapon.
At a 2nd trial, the jury found Moody guilty of 3rd-degree murder, in part because there was no way to tie him to the murder weapon. He was sentenced to 15 years in prison. He is currently in the Polk County Jail awaiting charges of battery on a corrections deputy.
"Certainly we don't condone illegal activity in our society," Norgard said. "We don't look favorably on people who ignore the law. We should hold the police accountable as well."
Rule Remains Vulnerable
Timothy Lynch directs the Project on Criminal Justice for the Cato
Institute, a conservative, libertarian think tank. He said the
exclusionary rule is a way to enforce the government's separation of powers by telling police, who are part of the executive branch, that the courts have a role in enforcing the Constitution.
Lynch said it's wrong to think that the rule helps only guilty people.
"We don't know how many innocent people are searched or detained by police," he said, because those cases don't get into court unless someone is killed or seriously injured during a search.
"This is a conversation that begins when we determine that police have overstepped their authority," Lynch said. "That is sometimes lost when you rush into this conversation too quickly."
Conservatives have been fighting to eliminate the rule for decades. The Justice Department, under President Reagan, had a unit that had eliminating the rule as its goal. Lynch said one participant in that effort was newly appointed Supreme Court Justice Samuel Alito. When Republicans took control of Congress in 1995, they included a proposal to eliminate the rule in the "Contract with America."
The recent 5-4 Hudson decision came from the Supreme Court's conservative majority, led by Justice Antonin Scalia. The decision embraced arguments that long have been made by critics of the exclusionary rule: that it's too costly and that other alternatives are available to keep police from violating the Constitution.
Lynch and Davies noted that one justice, James Kennedy, wrote a concurring opinion in which he signaled he's not ready to do away with the rule. For now, they took this to mean the rule is not in imminent danger of being eliminated.
They said, however, that if one of the court's more liberal justices
should retire with President Bush able to appoint a successor, then the exclusionary rule will be on the table.
(source: Tampa Tribune)
Stories of criminals walking free because of technicalities fuel rage in the citizenry and spur politicians to action.
In 1 high-profile case, a Citrus County judge is considering a request by defense attorneys for John Evander Couey, accused in the killing of 9-year-old Jessica Lunsford, to throw out Couey's confession.
In spite of the outrage generated by the idea that criminals can thumb their nose at society by using technicalities to go free, legal experts say judges seldom keep crucial evidence out of court.
A recent U.S. Supreme Court decision limited the use of the rule that allows judges to suppress evidence, known as the exclusionary rule. The court held that the cost to society - potentially letting criminals go free - is too high a price to pay for some missteps by police.
Some court watchers think the case may mark the beginning of the end of the controversial rule.
Hillsborough State Attorney Mark Ober couldn't think of a significant local case in which crucial evidence was lost because a judge excluded it. Occasionally, Ober said, judges have suppressed evidence in drug cases, but losing evidence hasn't been an issue in major cases, such as murders or sexual battery.
Ober said he thinks that's because police follow the rules.
Ober said he doesn't view the exclusionary rule as an obstacle for
prosecutors.
"We're a nation of laws, bound to follow the laws," Ober said.
The exclusionary rule is "an inherent part of our freedom, and I view it that way," he added. "The defense attorneys have an obligation to pursue these issues if they honestly and ethically can do so. It's a system of checks and balances."
Rarely Granted
Pinellas County defense attorney Jeffrey Brown says that in his career he has represented thousands of criminal defendants. In all those cases, he estimates he's filed motions to suppress evidence 100 times, winning maybe 25.
"Motions are very common, but it's rare that they're granted," Brown said.
Brown said he thinks the exclusionary rule plays an important role in the judicial system - deterrence. "We want law enforcement officers to follow the law, and if they don't, there's a penalty to pay."
The exclusionary rule was created by the U.S. Supreme Court in 1914 and applied to state and local police in 1961. According to the Oxford Companion to the Supreme Court, the rule derives from the constitutional concept of limited government power. The reasoning, according to the book, is, "if the government had no authority to seize the evidence, then a court - another branch of government - had no right to retain the evidence for use in a trial." Thomas Davies' 1983 study of the exclusionary rule has been cited by the Supreme Court. Davies, a law professor at the
University of Tennessee, found then that between 0.6 % and 2.35 % of cases are lost because of evidence kept out of court by the exclusionary rule.
Davies said no one has updated his statistics because the larger national debate on the exclusionary rule has quieted.
He said the courts have severely limited the use of the rule over the years, carving out numerous exceptions. Because of that, Davies said his sense is that evidence is excluded much less than he found in his 1983 study.
"The Fourth Amendment's protections are pretty limited today," Davies said, referring to the part of the Constitution that forbids unreasonable searches.
Court 'Tweaking,' Lawyer Says
In its recent ruling in a case known as Hudson vs. Michigan, the nation's highest court held that when police serving a search warrant violate a requirement that they knock and announce themselves, the exclusionary rule does not apply. In other words, the evidence they seize still can be used in court.
Bartow defense attorney Robert Norgard said he thinks the Hudson ruling is reasonable because some requirements on police are overly restrictive.
"It seems like every time something like this happens, you get people who think it's the end of the world," Norgard said.
Norgard said he thinks the court is just fixing some problems with the law. "I just see it as a tweaking of the rules of search and seizure rather than an assault on the exclusionary rule."
3 years ago, Norgard persuaded the state Supreme Court to throw out evidence in a 1994 murder case.
The case involved Bartow citrus rancher Scott Mitchell, who drove up to 2 people stripping a stolen car in a grove. He was shot twice in the head.
A suspect, Darryl Moody, was stopped by a Polk County deputy because the deputy knew that Moody had prior arrests for driving without a license. The deputy found evidence in the car that linked him to the shooting. Despite defense objections, the trial judge said the deputy's traffic stop was valid.
In 1998, a jury convicted Moody and recommended death. Five years later, the Florida Supreme Court ruled that the deputies had pulled over Moody "on a hunch" and threw out all the evidence - including the murder weapon.
At a 2nd trial, the jury found Moody guilty of 3rd-degree murder, in part because there was no way to tie him to the murder weapon. He was sentenced to 15 years in prison. He is currently in the Polk County Jail awaiting charges of battery on a corrections deputy.
"Certainly we don't condone illegal activity in our society," Norgard said. "We don't look favorably on people who ignore the law. We should hold the police accountable as well."
Rule Remains Vulnerable
Timothy Lynch directs the Project on Criminal Justice for the Cato
Institute, a conservative, libertarian think tank. He said the
exclusionary rule is a way to enforce the government's separation of powers by telling police, who are part of the executive branch, that the courts have a role in enforcing the Constitution.
Lynch said it's wrong to think that the rule helps only guilty people.
"We don't know how many innocent people are searched or detained by police," he said, because those cases don't get into court unless someone is killed or seriously injured during a search.
"This is a conversation that begins when we determine that police have overstepped their authority," Lynch said. "That is sometimes lost when you rush into this conversation too quickly."
Conservatives have been fighting to eliminate the rule for decades. The Justice Department, under President Reagan, had a unit that had eliminating the rule as its goal. Lynch said one participant in that effort was newly appointed Supreme Court Justice Samuel Alito. When Republicans took control of Congress in 1995, they included a proposal to eliminate the rule in the "Contract with America."
The recent 5-4 Hudson decision came from the Supreme Court's conservative majority, led by Justice Antonin Scalia. The decision embraced arguments that long have been made by critics of the exclusionary rule: that it's too costly and that other alternatives are available to keep police from violating the Constitution.
Lynch and Davies noted that one justice, James Kennedy, wrote a concurring opinion in which he signaled he's not ready to do away with the rule. For now, they took this to mean the rule is not in imminent danger of being eliminated.
They said, however, that if one of the court's more liberal justices
should retire with President Bush able to appoint a successor, then the exclusionary rule will be on the table.
(source: Tampa Tribune)