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The intermittent musings of a pedantic public defender...
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Indefensible 
my controversial book about a day in my life as Public Defender in the South Bronx is finally available for Kindle and Ipad.
my controversial book about a day in my life as Public Defender in the South Bronx is finally available for Kindle and Ipad.
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2006
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June
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- When you know the judge...
- Judge Donates Kidney to Ailing Prosecutor - New Yo...
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- My most recent Op-Ed
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- Lost in the system--and with no prior convictions...
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8 comments:
Nice Op-ed!
I'm so glad you wrote something on this. One thing about the Court's opinion that I despised was the Court's blase attitude about human dignity. They mention it, and then say it's not as important as the state's interest in getting evidence admitted. Aargh.
And then they explain that civil lawsuits cure all the ills of someone who's had his Fourth Amendment rights violated. What?! As a civil lawyer, I can guarantee you that civil lawsuits solve absolutely nothing. They might shift money around a little, but the damage is already done.
Well, sometimes an injunction can get some actual relief - but that's not the kind of remedy that would be available in these situations, particularly in light of this opinion.
And when a police department only has civil damages to contemplate, the cost-benefit analysis that they undergo in deciding on policy and training is completely different.
Jo
The Knock and Annouce rule, huh?
C'mon. Do you honestly believe this is TRULY beneficial for either defendants or the police?
If the police have a search warrant (and I'll contend for any example i make they do and always SHOULD), then it helps them to not have to knock and announce their presence. The Court's opinion probably provides some good reasons for this (e.g. not giving an alleged criminal time to dispose of potential evidence).
But, what GOOD does it do for the defendant? Assuming the police have a search warrant (signed properly by a judge), then their rights seem to be protected.
While I'm indeed liberal (and I cannot stand many conservatives. Such as those who call liberals "turncoats" who give comfot to the enemy. To quote Michael savage and others), I"ll have to agree with the Court on this one.
So long as the police has properly gone with a warrant, I see no reason to "knock and annouce" their presence. Maybe it is just rude and violates common courteousy.
But, in the criminal justice system, courteousy is irrelevant to the case. It's the Constitution that (at least should) care for the case.
-Brandon Music
Brandon,
Scalia's opinion does talk about how it's important to give a person time to get out of bed and put on some clothes before the police come busting in.
That's what I'm talking about: human dignity. I think it's absolutely essential in a civilized state.
And this blase government attitude about the invasion of citizens' privacy, with this opinion and with the wiretapping and the erosion of Roe v. Wade and whatever other invasions that are going on is extremely troubling to a person who won't even let a housekeeper in when her home is dirty.
God forbid the police should get a warrant and not give me time to hide my dirty socks.
Jo
Human dignity?
Now that is a very vague concept if one is determining a legal question (in the case of the court, a Constitutional Question).
Why I wouldn't doubt human dignity is built into the constitution in some sense, it is hardly a LEGAL concept.
The conservatives on the court probably have their own opinion on human dignity ("human dignity is the right to life" or "one cannot have dignity with (national) security." etc...). Liberals another. (and many people would fall somewhere in the middle or, in other, unbeknownst to me, extremes).
And I would agree with our constraint that human dignity is absolutely essential to a civilized state.
And, this can tie in with Mr. Feige's own book, human dignity is a very PERSONAL concept. One can maintain his or her own dignity is just about any situation (take the situation with a client in jail. Many of times they hang onto dignity through the truth they can tell. Even though they are essentially stripped of everythign else related to their freedom.)
But, in closing, I know alot of people worry about what their personage (houses for example)when it comes to the impression of others.
But, c'mon, isn't that just a silly characteristic to have at times? I would think one needs to "buck up" when it comes to cops ( who rightly have a search warrant) come into your home.
Of course you can PROBABLY make an argument that Court's decision could be limited by some fleshing out. Perhaps it should apply to extremely violent crimes, or crimes invovling large amounts of illegal drugs (which should be more towards what the Court is worrying about in its decision).
The knock and announce rule has been around for a very long time. Any attempt to weaken it (like we just experienced) is a bad move.
That rule was placed there to afford people dignity. Remember, the police aren't always right...how would you feel if they busted down your door right as you were getting out of the shower...or God forbid, while you were being "intimate" with your significant other.
What happened the other day is a damn shame.
No, you know what? Let's protect the public by reining in the police when they are tempted to abuse their powers.
That's what the framers of the Constitution were concerned with here: protecting an innocent (until *proven* guilty, right?) public from an abusive, intrusive, power-mad state.
Jo
Unfortunatly, it is the public that sanctions illegal police action by electing and re-electing the prosecutors (and in some places the judges) that tacitly condone this illegal police behavior by failing to punish it. This means that the only effective solution is to punish the public by releasing (or at least excluding evidence against) the "criminals" who are victims of police misconduct (remember the presumption of innocence).
And I should add that the accused aer members of the "public" as well. My point in the above comment is that we are all responsible for state misconduct and that the members of the majority are unlikely to repudiate it unless they can see that is has a negative effect on themselves.
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