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Time to Draw the Line On Police Power

Friday, March 29, 1991
(By: Alan Ellis)

While Americans are still reeling at the videotaped images of the Los Angeles police savagely beating a helpless suspect, the U.S. Supreme Court has added fuel to the fire.

In its ruling on Tuesday in the case of Arizona vs. Fulminante, the court confronted the question of whether a coerced confession can be used against a defendant in court.

In the past, the answer has always been a flat no; confessions extracted under fear of pain or death are inherently unreliable and offensive in a free society. But the answer today is: it depends.

The court affirmed the rule that coercive interrogation tactics are wrong, and that a judge who allows the courtroom use of such a confession makes a constitutional error.

But the startling nub was that if there is enough evidence other than the confession to support a conviction, then the error can be considered “harmless” and the confession used.

For the first time, police have an incentive to coerce a confession out of a suspect.

What makes this decision disturbing now is that it comes just weeks after the Bush administration’s announcement that police are handcuffed by constitutional restrictions.

On March 13, the president sent Congress his proposed Comprehensive Violent Crime Control Act of 1991. A key provision would permit the courtroom to use evidence seized in violation of a person’s Fourth Amendment rights – that is, in violation of the requirement for a search warrant and the prohibition against unreasonable searches and seizures.

Under the bill, evidence illegally seized could be used if police made a “good faith” mistake about the search’s constitutionality – thus bizarrely putting a premium on police ignorance of the law.

And if the police are searching for guns, no pretense of good faith would be necessary; the fruits of even the most deliberately illegal search would be admissible. And unlike the Fulminante decision, admissibility would not depend on the existence of other evidence.

As a result, police could go door to door ransacking houses without a warrant, on a whim. If they find an unlicensed gun – together with other contraband, if they get lucky – the occupants get arrested.

A citizen who wanted to complain could spend years pursuing a civil suit, or file a disciplinary complaint with the officer’s superiors and hope for a better response than Rodney King got from the LAPD commanding sergeant present at the scene of the beating.

The crime bill proposes to cut back on constitutional protections in other areas as well. It proposes unprecedented restrictions on habeas corpus – the centuries-old legal device by which people wrongly imprisoned can raise violations of their constitutional rights, or present new evidence which would exonerate them or prove a police frame-up.

The bill proposes for the first time in U.S. history to strip federal courts’ authority to review a prisoner’s constitutional claim if a state court already has heard the claim – even if the state court decided the claim incorrectly.

Though the goal is to clamp down on death row appeals, the bill does nothing to address the reason that there are so many appealable, botched trials in the first place: the incompetence of so many lawyers who are appointed – frequently on a low-bid basis – to handle the trial of an indigent defendant.

The Los Angeles beating and the court’s ruling on coerced confessions are wake-up calls to America. Increasing police power will do little to reduce crime and has enormous costs for a free society.[/vc_column_text][/vc_column][/vc_row]

The Law Offices of Alan Ellis specializing In Federal Sentencing, Appeals, 2255 Habeas Corpus