Watching The Watchers

The Fraternal Order of Police in Maryland is trying to get state legislators to a law that would expand the already impressive legal protections afforded to police officers:

A bill drafted by the Fraternal Order of Police would force investigators to throw out any evidence of police brutality, corruption, racial profiling or other serious abuses if they made even a technical mistake while looking into suspected wrongdoing. Police chiefs and sheriffs around the state, most of whom oppose the measure, say the bill would undercut their efforts to weed out bad cops and promote public trust in their departments.

This particular paragraph was a doozy:

The measure, sponsored by Sen. Brian E. Frosh and Del. Kathleen M. Dumais, a pair of Montgomery County Democrats, would provide police officers facing internal disciplinary action or firing with protections usually reserved for accused criminals looking at prison time. Even in Maryland, where public employees have extensive rights thanks to their political clout, no other group of state or local workers is covered by such safeguards.

The idea that criminal defendants get protection from “technical mistakes” made by police and prosecutors during their investigations is laughable.  As any law student that has finished a Criminal Procedure course can tell you, police and prosecutors are anything but obligated to throw out evidence procured through “technical” mistakes (or as we say in the Criminal Defense Bar, “illegally”).  The U.S. Supreme Court has long blessed the use of evidence against Criminal Defendants procured through “official lawlessness,” to use Justice Brennan’s phrase.  It all stems from a quaint bit of trolling from Justice Cardozo, who infamously opined in 1926 that throwing out evidence in criminal cases due to “technical errors” was intolerable, because the accused might benefit from the Government’s incompetence.  “The criminal is to go free because the constable has blundered.”

Pursuant to Justice Cardozo’s infamous and misguided alarum, under today’s Fourth Amendment jurisprudence, all but the most egregious “technical mistakes” are ignored when it comes to admitting evidence against a Criminal Defendant.  Few Criminal Defense attorneys exist who haven’t found themselves frustrated by the voluminous case law in both state and federal courts that upholds criminal convictions in the face of blatant misconduct by the Government.  The main culprit in these cases is usually the “harmless error” rule, encoded in the Federal Rules of Criminal Procedure as Rule 52, which imports the following language from former section 556 of Title 18 of the US code:

No indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant

In other words, the Government can screw up during a criminal prosecution and violate the Constitution, court rules, state, and federal law as many times as it wants—as long as the judge, after due consideration for his career prospects (no judge wants to be known as the jurist who set an accused child molester or murderer free on a “technicality”) doesn’t think there’s a reasonable possibility that the outcome of the trial could have been different.  Never mind that this basically requires the judge to jump into the minds of 12 separate jurors and predict how they might have reacted.  Just another “technicality” to brush aside.

And of course, alongside the “Harmless Error” rule is my favorite: the “Good Faith” exception to the Exclusionary Rule.  A bit of Judge-made law that has blessed more defective warrants and police misconduct than our beloved Founders could have ever thought possible.  As numerous commentators have noted, federal courts have created so many exceptions to the Fourth Amendment’s warrant requirement that the exceptions have basically swallowed the rule.  Any judge or prosecutor who wants to find a way to keep evidence in the record can usually find a way to do it.  The law of Search & Seizure is so perforated and flimsy at this point that it’s not hard to find a case that justifies the Government’s conduct in a given case.

So it is simply not true that this bill is giving Maryland police officers the same protections enjoyed by Criminal Defendants.  It is in fact giving police more rights than are enjoyed by criminal defendants.  If mere “technical” flaws in criminal investigation were sufficient to get evidence thrown out in criminal courts, we would have a much more reliable and fair criminal justice system.  But as any seasoned professional will tell you, that’s not the system we actually have.

The bill being proposed by the Maryland Fraternal Order of Police also demonstrates how a change of position can change someone’s point of view.  It’s funny how when it is the police whose conduct is being investigated for wrongdoing, they demand every procedural protection possible be afforded to them, and only the most reliable evidence be admitted against them.  But ask those same officers whether they believe Criminal Defendants should be afforded similar protections, their tune suddenly changes.  Funny how rigorous procedural protection for the accused suddenly becomes important when it is them sitting in the hot seat, and it is their livelihood and/or freedom being threatened by the Government.  It’s unfortunate that their concern probably won’t extend to Criminal Defendants anytime soon.

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