Wednesday, June 10, 2009

RIP Exclusionary Rule (1961-2009)

In legal circles, the exclusionary rule is the rule that forbids prosecutors from bringing evidence to trial that is acquired via an illegal search or seizure. The Supreme Court has been chipping away at it in recent years, but with a tenuous five-justice majority opposed to it, it's managed to hold on for a while, kinda like a terminally ill patient who just keeps rallying.

But if this LA Times article is any indication, Obama just pulled the plug with the nomination of Sonia Sotomayor:
In two major rulings after she joined the U.S. 2nd Circuit Court of Appeals in New York in 1998, she held that evidence could be used to convict a defendant even though police had violated his rights in seizing it. Sotomayor said that because the police and prosecutors acted "in good faith," the evidence need not be thrown out.

In 1999, Sotomayor upheld the crack cocaine conviction of a New York man despite what she called a "mistaken arrest." Last year, Sotomayor spoke for a 2-1 majority that upheld a man's child pornography conviction, even though she agreed an FBI agent did not have probable cause to search his computer.
This is unwelcome news for more than one reason. First, of course, it dooms the exclusionary rule - now there's a six-justice majority in favor of repeal, which means that Kennedy can wander off the reservation and Mapp could still be overturned. This means that cops can break the Fourth Amendment all they damn well please and it won't matter a bit, which basically renders the "illegal search and seizure" clause null and void, at least with respect to state prosecutions.

Second, it hints at Sotomayor's deference to executive and police power that is dangerous in terms of war on terror issues. Souter was a pretty solid vote in favor of maintaining due process in terrorism cases, and Kennedy - the swing vote - tended to side with the liberals. Now, there'll be a solid five-justice majority (Roberts, Alito, Thomas, Scalia, and Sotomayor) who are not willing to exercise judicial power to maintain the rule of law. And that's dangerous.

(Via Brayton.)

1 comment:

Miguel said...

One would think that this sort of thing would immediately disqualify one for a position whose purpose is to make sure the federal government upholds the constitution.