Month: October 2016

When the State corrupts rule of law.

The Washington Post recently had an article about a State drug chemist (responsible for various drug tests) was not only a user of the drugs but had been falsifying drug test results which were instrumental in many peoples convictions and incarceration.

The article asks the question about whether the cases for which she provided evidence should be thrown out.

This shouldn’t even be a question.

(Bear with me for a minute, I’m going somewhere with this.) Some years back there was a column in one of the magazines for fans of comics “The Law is a Ass” by Bob Ingersoll, an attorney and public defender. In that column he dissected use of law in comics and along the way gave introductions to the history and reasons behind many of the things we take for granted in law now.

One of those things was exclusionary rules for evidence. This is actually of far more recent vintage than many people realize. As Bob Ingersoll wrote:

For well over one hundred years, the Fourth Amendment existed without the Exclusionary Rule, the rule which makes evidence taken during an unreasonable search and seizure inadmissible at trial. Basically, the amendment depended on the good faith of the government not to violate it for its enforcement. In much the same way–and with much of the same success–that Blanche DuBois depended on the kindness of strangers. Then, in 1914, the Supreme Court of the United States realized that not everyone scrupulously adhered to the Fourth Amendment. Abuses actually occurred. So did sunsets, but not as often.

The Supreme Court ruled that a right without a means to enforce it is no right at all. To remedy this, it enacted by judicial fiat the Exclusionary Rule, as a means of enforcing the Fourth Amendment.

The Exclusionary Rule says the government cannot be allowed to profit, when it breaks the rules with an unreasonable search, so any evidence seized can not be admitted. To use a somewhat simplistic analogy (I like simplistic analogies. If more law school professors used simplistic analogies, I might have passed a few more courses.), the Exclusionary Rule is like calling back a touchdown pass for a holding penalty. The scoring team would not have achieved its goal, but for the fact that it broke the rules. So, rather than allow it to prosper from cheating, the team is penalized by having the play nullified. The Exclusionary Rule was established to enforce compliance with the Fourth Amendment.

In 1961 the Supreme Court ruled that the Exclusionary Rule was applicable on the states through the Fourteenth Amendment of the Constitution. Now, when state or local police conduct unreasonable searches and seizures, the evidence is not admissible at trial.


And that’s where we are here. These cases need to be thrown out to send a loud and clear message of “don’t do that” to prosecutors. And, yes, prohibition against double jeopardy should fully apply.  they cannot be allowed to succeed, to “benefit” from using such poisonous tactics.

The thing many people forget is that the most important aspect of “rule of law” is not punishing the guilty, but protecting the innocent. When people stop believing that their innocence will protect them from the law, that’s when rule of law collapses. That’s why “proof beyond a reasonable doubt”. That’s why prohibition against double jeopardy. That’s why we have trial by jury in the first place, why we have rules on discovery (where the defense gets to see the prosecution’s evidence), why we have all the procedures in place to protect the accused against the vastly greater might of the State.

And that’s why things like this are so very troubling. What it does to society dwarfs even the horrible injustice to the individual falsely convicted on falsified evidence.  It undermines the very concept of rule of law.