Fair or Foul?
Exclusionary rule hurts the innocent by protecting the guilty
When federal prosecutors brought the Oklahoma City bombing to trial in 1997, they had to make their case against Timothy McVeigh without calling an expert witness they’d counted on: the agent who supervised the collection of evidence for evaluation at the FBI’s crime lab. McVeigh’s defense had challenged that evidence, saying the lab’s questionable procedures made it untrustworthy. 
Enough evidence was deemed admissible that McVeigh was convicted and put to death anyway. But what if key evidence had to be left out, even though it was perfectly trustworthy and perhaps essential to proving the government’s case? What if the terrorist bombing went unpunished as a result? That’s what the exclusionary rule is all about.
Professor Erwin Chemerinsky, one of the many “talking heads” who provide television networks with expert legal commentary, devoted a newspaper opinion column to this issue when it came up during the O.J. Simpson murder trial.
“The exclusionary rule,” he wrote, “is supported by a concern with fairness. Long ago, Supreme Court Justice Benjamin Cardozo remarked that it would be wrong for a person to go to jail because the constable blundered.” 
Constables, it appears, aren’t the only ones who are apt to blunder now and then. Chemerinsky, a specialist in constitutional law, then-holder of the Legion Lex Professorship of Law at the University of Southern California, has got Cardozo’s view of the exclusionary rule exactly backwards.
Don’t take my word for this. Here’s how U.S. appellate Judge Richard A. Posner summarizes the 1926 opinion (People v. Defore, 242 N.Y. 13) from which Cardozo’s famous aphorism is drawn:
“Rejecting the exclusionary rule, the court holds that under New York law evidence illegally seized by the police is nevertheless admissible in a criminal trial.” 
John Defore had been accused of stealing a neighbor’s overcoat, and a policeman, assisted by the neighbor, had arrested Defore and searched his apartment. The warrantless arrest and search turned out to be illegal, since the overcoat was worth less than $50 and New York’s rules of arrest, search and seizure were more restrictive for misdemeanors than for felonies. But Defore was convicted of possessing a blackjack the policeman found in his apartment, and he appealed that conviction.
“There is no rule that homes may be ransacked without process to discover the fruits or the implements of crime,” wrote Cardozo, then a member of the New York Court of Appeals. “… We hold, then, with the defendant that the evidence against him was the outcome of a trespass. The officer might have been resisted, or sued for damages, or even prosecuted for oppression [under New York’s penal laws]. He was subject to removal or other discipline at the hands of his superiors. These consequences are undisputed. The defendant would add another. We must determine whether evidence of criminality, procured by an act of trespass, is to be rejected as incompetent for the misconduct of the trespasser.”
Cardozo noted that although the courts of New York and other states had already considered and rejected the exclusionary rule, the federal courts had embraced it. “There has been no blinking the consequences,” he wrote of the federal rulings (which, he pointed out, did not apply to state courts). “The criminal is to go free because the constable has blundered.”
Cardozo then reaffirmed New York’s rejection of such a rule. “We are confirmed in this conclusion,” he wrote, “when we reflect on how far-reaching in its effect upon society the new consequences would be. The pettiest peace officer would have it in his power, through overzeal or indiscretion, to confer immunity upon an offender” for even the most villainous crimes.
“A room is searched against the law, and the body of a murdered man is found. If the place of discovery may not be proved, the other circumstances may be insufficient to connect the defendant with the crime. The privacy of the home has been infringed, and the murderer goes free. Another search, once more against the law, discloses counterfeit money or the implements of forgery. The absence of a warrant means the freedom of the forger. Like instances can be multiplied. We may not subject society to these dangers until the Legislature has spoken with a clearer voice.”
Cardozo dismissed the argument that “unless the evidence is excluded, the statute [against unreasonable search] becomes a form and its protection an illusion.” He pointed out that the protection “was received into English law” as the outcome of a case in which the victim of such a search sued and collected substantial damages.
“No doubt the protection of the statute would be greater from the point of view of the individual whose privacy had been invaded if the government were required to ignore what it had learned through the invasion,” Cardozo wrote. “The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office.
“There are dangers in any choice,” Cardozo observed, but he held that New York’s existing rule “strikes a balance between opposing interests. We must hold it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that the change has come to pass.”
Notice Mr. Cardozo’s quaint idea that the people’s representatives are to “give notice to the courts” of a change in public policy, rather than the other way around.
The exclusionary rule was introduced by the U.S. Supreme Court in 1914 with its opinion in Weeks v. United States. That decision affected only federal prosecutions; the states by and large declined to adopt the rule for reasons Cardozo most ably expressed. Until 1961, when the Supreme Court brought them to the federal heel with its decision in Mapp v. Ohio, most states adhered instead to the common law, which admitted all relevant evidence at trial and provided civil action as a remedy for victims of unreasonable search and seizure. 
Professor Chemerinsky says that’s not good enough, because jurors in a lawsuit “are much more likely to side with the police officers rather than a convicted criminal who is suing them for money damages.”
Some of us slower students might suppose that shows precisely why the common law is better than the exclusionary rule. The former protects the innocent, but not the guilty; the latter does the reverse. 
If the police ransack my house without a search warrant and find nothing, a lawsuit for money damages is just the thing to make me whole. The exclusionary rule, on the other hand, is of no use to me at all. How can evidence be excluded when there isn’t any evidence and there won’t be any trial?
But if police ransack my house without a warrant and find a dismembered body in the refrigerator, then my prospects of collecting money damages evaporate, and the exclusionary rule suddenly comes in mighty handy.
“The government should not be able to profit from the violation of a person’s constitutional rights by using that evidence in court,” writes Chemerinsky. But it isn’t the government that profits when I go to the gallows for cutting somebody up and stashing his remains in the fridge. Rather, it’s my victim’s next of kin, who will no longer have to share the air with me. And society profits as well, when the word goes forth that in a contest of my victim’s right to life against my right to be secure from unreasonable search and seizure, my victim wins and I lose.
All discussion of this issue is futile, of course. We, the people, have no control over the exclusionary rule. Only the courts that imposed it on us can remove it, and after more than a quarter-century of Republican presidents nominating putatively law-and-order justices to the Supreme Court, the exclusionary rule is still with us.
Supreme Court nominees are, however, expected these days to show a fine concern with how their decisions affect “the little guy.” So why don’t we take a look at how the exclusionary rule affected a case involving one little guy — or, in this particular case, one little girl.
On a chilly Christmas Eve, 10-year-old Pamela Powers went to see her brother compete in a wrestling match in Des Moines, Iowa. A convicted child molester and escaped mental patient named Robert Anthony Williams abducted her, raped her, and accidentally killed her. (She suffocated while being sodomized.) 
Two days later, Williams turned himself in to
police in Davenport, Iowa, 160 miles away. Having been advised of his rights,
and having consulted with a lawyer, Williams listened as a detective driving
him back to Des Moines spoke these words:
You know I’m not supposed to question you and I’m not going to question you. But I have something I want to mention. It’s a concern of mine. Just think about what I’m saying, but don’t respond, please.
It’s snowing like crazy, as you
can see, and pretty soon the ground will be covered with snow. It’s
Christmastime. I’m sure this family would like to have a good Christian burial
for their child. I guess, if you don’t know where the child is, there’s no point
in me even mentioning it. But if you do, it’s probably your last chance to give
this family a Christian burial for their daughter. Don’t say anything. I just
want you to think about that.
Williams thought about it for an hour and then led police to Pamela’s body.
Pamela died in 1968. In 1977, the U.S. Supreme Court called the detective’s talk of giving her a Christian burial “psychological coercion” and ordered a retrial in which jurors could not be told that Williams led police to the body. He was convicted again, but then the exclusionary rule came into play.
Pamela’s body itself could not be used as evidence, an appellate court ruled in 1983, because it had been discovered through police misconduct. Government must not profit from the violation of Williams’ constitutional rights. But the Supreme Court reinstated this second conviction, on the grounds that search parties were only an eighth of a mile away and were about to find the body anyway. 
The justices didn’t say how far away the searchers could have been before the exclusionary rule — which, Chemerinsky tells us, “is supported by a concern with fairness” — would require that the miserable pervert be turned loose to do to some other little girl what he did to Pamela.
'Fair or Foul?' is an excerpt from Yo! Liberals! You Call This Progress?, available at Amazon.com or directly from Fielding Press. Parts of it first appeared in the Chattanooga Free Press and are reprinted by permission.
 The prosecutors ended up removing four of their planned witnesses because of the crime lab problems. McVeigh’s defense called the lab’s whistleblower, Frederic Whitehurst, to dispute the reliability of the evidence the prosecution did use, but he admitted under cross-examination that he had “no knowledge of any actual contamination of any evidence in this case.” The trial judge excluded as irrelevant most of a Justice Department report critical of the crime lab, saying, “if this be error, so be it.” McVeigh was convicted, and in 2000 he dropped his appeals, suffering execution the next year. ———Michael Sniffen, “Oklahoma bombing investigators removed from FBI crime lab,” Associated Press dispatch, Jan. 28, 1997; Steven K. Paulson, “Controversial FBI evidence looms at McVeigh trial,” Associated Press dispatch, May 19, 1997; Paulson, “Defense calls FBI whistle-blower to attack crime lab,” Associated Press dispatch, May 28, 1997; Sniffen, “Verdict boosts FBI’s image as prosecution survives assault on lab,” Associated Press dispatch, June 2, 1997; Paulson, “Judge says McVeigh can drop appeals and receive an execution date,” Associated Press dispatch, Dec. 28, 2000; Kevin Fagan and Chuck Squatriglia, “Death of a terrorist: McVeigh offers no last words, only a steely stare for his victims,” San Francisco Chronicle, June 12, 2001, p. 1A. [back]
 Chemerinsky, “O.J. case won’t resolve exclusionary rule,” Beaumont Enterprise, July 22, 1994, p. 7B. The column first ran in the Los Angeles Daily News. Chemerinsky, who in 1994 taught law at USC, is now a professor at Duke University. [back]
 “The entire opinion is lucid and elegant,” Posner writes, “but the quoted sentence is the only truly notable part of it. More than notable, it is remarkable, because it packs into a simple sentence of eleven words the entire case against the exclusionary rule. The power to compress a tradition of legal thought into a sentence is given to few judges.” ———Posner, Cardozo: A Study in Reputation, p. 56. [back]
 Robert E. Cushman and Robert F. Cushman, Cases in Constitutional Law, Second Edition, pp. 459-462, 870-873; William Tucker, Vigilante: The Backlash Against Crime in America, pp. 83-91. Harold J. Rothwax, Guilty: The Collapse of Criminal Justice, pp. 40-46. [back]
 Tucker argues: “It is hard to say that the police are really ‘punished’ by the exclusionary rule. There is no direct penalty, either for the individual patrolman or for the police department, for making an illegal search. … Instead, it is the public that is punished by having a guilty criminal turned loose upon them … [while] the specific benefits of the rule fall on only one specific class of people. … The exclusionary rule doesn’t do anything to enhance your Fourth Amendment rights until you have done something wrong.” ———Vigilante, pp. 88-90. [back]
 The Powers case is discussed by Tucker in Vigilante, pp. 118-119; by Rothwax in Guilty, pp. 15-18; by Liva Baker in Miranda: Crime, Law and Politics, pp. 389-395; by Ralph Fine in “The Urge to Confess,” an essay in Criminal Justice? The Legal System vs. Individual Responsibility, ed. Robert James Bidinotto, pp. 126-131; and by the editors of National Review in “Through the Looking-Glass,” April 15, 1977, p. 428. [back]
 Des Moines detective Cleatus M. Leaming made his “Christian burial” speech to Williams (who fancied himself a clergyman) without a tape recorder or stenographer present. He reconstructed it from memory in later testimony and depositions. Several versions have appeared in print. The one quoted by Rothwax is used here. An alternative version, recited by Capt. Leaming during a pretrial hearing, goes like this: “I said to Mr. Williams, I said, ‘Reverend, I’m going to tell you something. I don’t want you to answer me, but I want you to think about it when we’re driving down the road.’ I said, ‘I want you to observe the weather. It’s raining and it’s sleeting and it’s freezing. Visibility is very poor. They are predicting snow for tonight. I think we’re going to be going right past where that body is, and if we should stop and find out where it is on the way in, her parents are going to be able to have a good Christian burial for their daughter. If we don’t and it does snow and if you’re the only person that knows where this is and if you have only been there once, it’s very possible that with snow on the ground you might not be able to find it. Now I just want you to think about that when we’re driving down the road.’ That’s all I said.” ———Fine, op. cit., pp. 127-128. [back]
 Tucker comments: “It could be argued, I suppose, that these cases are simply important legal exercises carried on by judges and attorneys for the benefit of defining and redefining the law for future reference. But before I ever heard of the case, I met a 26-year-old congressional staff member who had grown up with the Pamela Powers story in Des Moines. She said the Williams case had cast a pall over her entire childhood. For years she was unable to overcome the quiet terror that a man who had killed a little girl was going to be allowed to go free and no one could do anything about it.” ———Vigilante, p. 119. [back]
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