"No," She Said, Not Without a Warrant

On May 23, 1957, three Cleveland police officers arrived at appellant's residence in that city pursuant to information that "a person [was] hiding out in the home, who was wanted for questioning in connection with a recent bombing, and that there was a large amount of policy paraphernalia being hidden in the home." Miss Mapp and her daughter by a former marriage lived on the top floor of the two-family dwelling. Upon their arrival at that house, the officers knocked on the door and demanded entrance but appellant, after telephoning her attorney, refused to admit them without a search warrant. They advised their headquarters of the situation and undertook a surveillance of the house.

The officers again sought entrance some three hours later when four or more additional officers arrived on the scene. When Miss Mapp did not come to the door immediately, at least one of the several doors to the house was forcibly opened and the policemen gained admittance. Meanwhile Miss Mapp's attorney arrived, but the officers, having secured their own entry, and continuing in their defiance of the law, would permit him neither to see Miss Mapp nor to enter the house. It appears that Miss Mapp was halfway down the stairs from the upper floor to the front door when the officers, in this highhanded manner, broke into the hall. She demanded to see the search warrant. A paper, claimed to be a warrant, was held up by one of the officers. She grabbed the "warrant" and placed it in her bosom. A struggle ensued in which the officers recovered the piece of paper and as a result of which they handcuffed appellant because she had been "belligerent" in resisting their official rescue of the "warrant" from her person. Running roughshod over appellant, a policeman "grabbed" her, "twisted [her] hand," and she "yelled [and] pleaded with him" because "it was hurting." Appellant, in handcuffs, was then forcibly taken upstairs to her bedroom where the officers searched a dresser, a chest of drawers, a closet and some suitcases. They also looked into a photo album and through personal papers belonging to the appellant. The search spread to the rest of the second floor including the child's bedroom, the living room, the kitchen and a dinette. The basement of the building and a trunk found therein were also searched. The obscene materials for possession of which she was ultimately convicted were discovered in the course of that widespread search.

The charge, when they arrested Dolly Mapp, was obscenity.  They found books and drawings.  She was convicted and sent to prison.

The U.S. Supreme Court cut her loose.  It's not that they said Ohio's obscenity law was unconstitutional.  (Actually a majority of the Ohio Supreme Court did think the law was unconstitutional, but the majority was only 5 of the 7 justices; at the time, the Ohio Constitution required at least 6 of the 7 to declare a statute unconstitutional.)  Rather, they said the search was.

Back in 1914, the Supreme Court had tossed out the evidence against Fremont Weeks who'd been convicted of sending lottery tickets through the mail.  In Weeks v. United States, Justice Day wrote for the Court that that the feds could not use in court of evidence obtained in violation of the 4th Amendment. 

We therefore reach the conclusion that the letters in question were taken from the house of the accused by an official of the United States acting under color of his office in direct violation of the constitutional rights of the defendant; that having made a seasonable application for their return, which was heard and passed upon by the court, there was involved in the order refusing the application a denial of the constitutional rights of the accused, and that the court should have restored these letters to the accused. In holding them and permitting their use upon the trial, we think prejudicial error was committed.

But that rule didn't apply to the state prosecutions until 1961.  Which is when the Court ruled on Dolly Mapp's obscenity case.  And ignored the obscenity.  And said, in Mapp v. Ohio, that by god the states can't conduct an illegal search and prosecute you with the evidence, either.

Which was a great rule while it lasted.  

Except that the cops and the prosecutors, and ultimately the judges and justices, and the folks like Kent Scheidegger and Bill Otis* forces of lock-'em-up-until-you-fry-'em for that part about not being able to prosecute people based on the use of illegally obtained evidence.  'Cause it's more important to lock up the bad guys than to obey the Constitution.  

And so the exclusionary rule no longer prohibits use of unconstitutionally obtained evidence.  Unless the prohibition would prevent the cops from violating the Constitution.  Which, of course, it won't if they can use the evidence.

But for a while.

Dollree Mapp's booking photo

Her name was Dolly Mapp.  She just said "No."  For that, and while it lasted, she changed our world.

She died a month and a half ago, on October 31, in Conyers, Georgia.  She was, the Times says in its obit, 90 or 91.

Rest in Peace.

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*Their blog, Crime and Consequences, currently has fewer votes than any of the criminal defense lawyers' blogs except Matt Brown's in the ABA's annual beauty contest for blawgs.  Go vote for Matt's to see that his blog, too, gets more votes than theirs.  

A Hero Passes

You know the story.

1942.  We were at war with Japan.  We were at war with Germany, too, but that was different because we hated Germans but they kind of looked like us and it was hard to be sure.  The Japanese, though, they even looked different.  And had different sorts of names.  And there'd been Genghis Khan and Fu Manchu.  And they were treacherous.  They attacked Pearl Harbor without first sending a post card announcing when they'd do it so we could be prepared to fight back.  And there was this long history of racism against Asians (who weren't, after all, white).

So we were at war and were scared and we hated them anyway, so we did what red-blooded Americans always do at times like that: We imposed a curfew on Japanese-Americans near the west coast.  Then we herded them into concentration camps.  More than 100,000 of them.

• Until it was over.
• Without trials.
• Without redress.
• Citzens and resident aliens.
• Who'd done nothing wrong.
• Except have that funny-colored skin.

Minoru Yasui, Fred Korematsu, and Gordon Hirabayashi refused.  They went to court where they would be protected, vindicated.

They believed in that silly thing called the Constitution.  Limited Government.  Equal Justice under law.  Even in times of war.  Even when we're scared.  Even if they were "yellow."

The courts, they knew, would enforce the Rule of Law against the Law of Rule.

They were wrong.  In a string of cases, the Supreme Court ruled against them.

• Korematsu v. United States
  
• Hirabayashi v. United States
• Yasui v. United States

Korematsu, decided in 1944, was a 6-3 decision, Justices Roberts, Murphy, and Jackson dissenting.

Hirabayashi and its companion case Yasui were decided in 1943 and were unanimous.

The Japanese interment and the Supreme Court's decisions are a national embarrassment and a stain on the judiciary. Of a piece with  Dred Scott, and Plessy v. Fergusen.

But Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui are heroes.  They stood up for what they knew (and we know) was right.  Despite the odds.  They fought.  And then they lost.  Still, they didn't give up.

Their convictions were reversed in the 1980s.  The government, it turns out, had already determined that the Japanese-Americans were no threat to national security.  It just wanted them put away. 

In 1988, the government apologized for its conduct and payed reparations to those it locked away for no reason but the color of their skin. Too little and too late, but something.

Minoru Yasui died in 1986.

Fred Korematsu died in 2005.

On December 31, Obama signed the National Defense Authorization Act which provides for indefinite detention without trial of anyone, citizen or not, found in this country or not, who's suspected of being somehow someway you know maybe could be connected to Al Qaeda or someone who might be somehow.

Two days later, on January 2, Gordon Hirabayashi died.  He was 93.  He was living in Canada.  May he rest in peace.

h/t Jonathan Katz

Randall Dale Adams, Rest in Peace

Randall Dale Adams - Innocent

David Ray Harris - Guilty

That's the mug shot of Randall Dale Adams.  Charged in the 1976 shooting death of Robert Wood, officer in the Dallas Police Department.  Sentenced to die.  Imprisoned for 12 years.  Freed when the Texas Court of Criminal Appeals granted a writ and ordered a new trial based on perjured testimony at Adams's trial and on the prosecutor's lying to the court and defense counsel to conceal the perjury.  Rather than have a new trial at which Adams would pretty clearly be acquitted (since by then it was pretty well established that it was 16-year-old David Harris (on death row himself by then, for another killing) not Adams, who murdered Officer Wood.

The evidence that Adams was innocent and Harris guilty was really developed by documentary filmmaker Errol Morris in The Thin Blue Line.

It's difficult, I think, to overestimate the importance of that film.  I'm not speaking cinematically, though I could be.  

Janet Maslin, reviewing it for the NY Times, wrote that

Mr. Morris's film is both an investigation of the murder and a nightmarish meditation on the difference between truth and fiction, an alarming glimpse at the many distortions that have shaped Mr. Adams's destiny.

Both Maslin and Roger Ebert, writing in the Chicago Sun-Times, called it a "reverie."  And it won whole bunches of awards, detailed in Wikipedia (notes deleted, links retained):

The Thin Blue Line won Best Documentary honors from the New York Film Critics Circle, the Kansas City Film Critics Circle, the National Board of Review, and the National Society of Film Critics. Morris himself won an International Documentary Association Award, an Edgar Award, and a MacArthur Fellowship Genius Grant (1989). The film was marketed as "nonfiction" rather than as a documentary which disqualified it from being considered in that category for an Academy Award.

But the film's cinematic importance isn't what I'm talking about.  I'm not even talking about the fact that Morris's detective work and the film (closing as it does with what is, essentially, David Harris's confession*) are largely responsible for freeing an innocent man from prison.  That was of overriding importance to Adams, of course, and it's a great feat, but it's not that fact.

Instead, it's this.

There was some crime fiction, a few movies, an episode of The Adventures of Superman (the old George Reeves TV series), other odds and ends.  What there wasn't was any sort of broad-based understanding that our criminal justice system made serious mistakes.  Oh, there were questions about Sacco and Vanzetti and Bruno Richard Hauptman and the Rosenbergs, but those were understood to be abberations.  And they were all in the past.  We'd fixed all that.  We were better now.

And then, suddenly, The Thin Blue Line came out.

Morris laid out the evidence and showed things couldn't have happened as the state claimed at trial.  He got the witnesses to say, on camera, that they lied.  And why.  And most tellingly, he had, at the end of the film, this exchange with David Harris.

Morris:  "Is Randall Adams an innocent man?"
Harris:  "I'm sure he is."
Morris: "How can you be sure?"
Harris:  "Because I'm the one that knows."

Damn. Cinematically powerful.  Starkly compelling.  Coldly horrific.

But more, The Thin Blue Line was essentially irrefutable evidence that the system wasn't fixed, wasn't perfect.

Prosecutors cheated and the system didn't catch it.  Witnesses lied, and the jury didn't figure it out.

Errol Morris took our innocence.  And made the issue of innocence real for a generation.

Adams moved to Ohio when he got out of prison.  He spoke out some.  He litigated some.  At one point it looked like we might end up using him as a defense witness in a capital trial in Texas, although that didn't happen.

He died, it turns out, on October 30 last year.

I missed it.  My excuse is that the NY Times did, too.  The Times just corrected that oversight with a moving obituary.

Randall Dale Adams came within three days of execution at one point, but we didn't kill him. Now he's dead.

The Thin Blue Line is still there for us.

And We Are The Poorer For It

His name was Peter Shellem. He died a week ago, at age 49, perhaps by his own hand. For the last 23 years he was a reporter for the Patriot-News in Harrisburg, Pa.

Not just any reporter. Pete Shellem was something more. While working a full-time courts beat, he did the sort of investigative journalism they used to make movies about. Not the glossy, flashy stuff that would bring down the king (though he did that, too - more in a bit). It was the grittier stuff. He freed the innocent.

There was Steven Crawford, arrested for a friend's murder when he was 14. Shellem turned up notes showing that a state police chemist had altered laboratory results to help obtain a conviction. Crawford was released after 28 years.

There was Barry Laughman. He was coerced into confessing to the murder of a distant relative. It turns out that slides containing DNA evidence from the case were in Germany. Shellem tracked them down and had the testing done. Laughman was freed after 15 years.

There was David Gladden, mentally retarded, convicted of killing and then burning the body of a 67 year old woman. Shellem's the one who discovered that she had been living next to a convicted serial killer who killed his victims the same way she was killed. And Shellem showed that the neighbor's alibi was a lie. Gladden spent 12 years in prison.

There was Patty Carbone convicted of killing the man she said was trying to rape her. Shellem demonstrated the gaps in the evidence against her and the great likelihood that she was telling the truth. She served 12 years.

There was Jay Smith sentenced to death for three sensational killings. Shellem turned up the evidence that showed the prosecutorial misconduct that overturned his convictions and that, according to the Pennsylvania Supreme Court, was so "egregious" that a retrial would violate his rights against double jeopardy. He was in prison for six years.

And then there was the time he brought down the king.

From 1994 to 1996, Shellem headed a series of stories about justice being sold for campaign contributions in the office of then-Pennsylvania Attorney General Ernie Preate Jr.

The investigation resurrected a stalled federal probe. Preate, facing potential racketeering charges, eventually resigned and pleaded guilty to mail-fraud charges.

It's Preate, who now does prison reform work, who described Shellem as a "one man Innocence Project."

Perhaps it's no surprise that he wrote the chapter on wrongful convictions in Crime Classification Manual: A Standard System for Investigating and Classifying Violent Crimes.Digging through records and tracking down DNA isn't glamorous. But Shellem wasn't glamorous. A fellow reporter on the Patriot-News described him this way.

Forget “The Front Page” or Woodward and Bernstein. Think Columbo without the charm.

The New York Times called him "relentless," and offered this description.

A bearded, barrel-chested man, Mr. Shellem could have been cast as a B-movie reporter. He knew the first names of many bartenders in Harrisburg. He would sit in a bar poring over court transcripts and interviewing sources.

“I don’t want to lead anyone to believe I go to bars only to get stories,” he once said, “although it would be nice if my editors did.”

The Times lifted that quote from a profile of Shellem in the American Journalism Review.

The Patriot-News is a comparatively small paper in a comparatively small place. So most of us didn't know who Pete Shellem was. As Scott Greenfield said the other day, that's a shame.

Pete Shellem, was someone worth knowing and admiring.

His name was Peter Shellem. He died a week ago, at age 49, perhaps by his own hand.

Miranda's lawyer

Peter Baird died August 27. He was a lawyer with Lewis & Roca in Phoenix. You've likely never heard of him. I don't think I ever did until John Wesley Hall mentioned his passing. But if you didn't know Baird, you knew his most famous client: Ernesto Miranda.

The backstory, which you already know, is that Miranda was charged with rape. He gave a confession to the cops; it was used against him at trial and he was convicted. He appealed the case and the Supreme Court threw out the confession, creating the Miranda warnings in the process. It's after that, for the second trial, that Baird came on board - in time to have Miranda convicted again (this time without that confession he gave the authorities).

Baird argued cases at SCOTUS, but not Miranda's (that was two other lawyers at Lewis & Roca. But they're dead, too. So, apparently, is whoever tried the case in the first place. That's the lawyer I want to know about. The one who thought to stand up in court and ask the judge to suppress his client's confession because nobody told him he didn't have to talk to the police, the one who had an idea, a vision, a wild thought, and preserved it so that it could become the law of the land.

There are three lessons from Miranda's case - one for the criminal defense lawyer; one for the police and prosecutors, and one for the general public.

For the criminal defense lawyer: We have to be smarter and cleverer and gutsier. We have to ask for the sun and the moon and the stars. We have to ask for what nobody's gotten before and keep asking because one of these days it will be the law, but only if we keep after it. The good news is that we are smarter and cleverer and gutsier. The bad news is that too often we're too lazy to take advantage of that. We can't be. They have the cops and the newspapers and the public, and the law and the facts. We must have drive and determination and care and attention. And brains and wit and guts.

For the police and prosecutors: You don't need to lie and cheat. You have crime labs and newspapers and public opinion and the courts and the law and the facts. Play fair. You'll win anyhow. People want to confess, and you're good at talking them into it. And if the case is good, it will be good without that snitch, without that coerced confession, without the unconstitutional search. Trust the record, do your job, and obey the damn law.

For the general public. When police want to ask you questions, when they are ready to interrogate you, refuse. You have the right to remain silent for a reason. Shut the fuck up.

Peter Baird, the last man to represent Ernesto Miranda. R.I.P.