Liberty Defined - Part 5

In our saga tracing the incorporation doctrine, the Court went gung-ho on the free speech aspects of the First Amendment. And then the glitches started. We discovered that the Fourteenth Amendment provided no help to state defendants when it came to double jeopardy. Here I will add my speculation that this was very significant in Massachusetts as our state constitution - as wonderful as it is with a preamble that makes any beating heart swoon - does not mention double jeopardy. (You can look it up!) The Palko v. Connecticut, 302 U.S. 319 (1937) decision held. That means that for almost 100 years after the Fourteenth Amendment was ratified, it was not a due process violation for state court defendants to be tried twice for the same crime. We will venture deeper into the Fifth Amendment at a later point (so, stay tuned!)

But, what about the Fourth Amendment? Are criminal defendants in state court protected from unreasonable searches and seizures? Well, first, let’s jump in and explain why this would be an area that state criminal defendants would be eager to explore. While not all states prohibit double jeopardy in their constitutions, all states protect this very fundamental right. And remember, the incorporation doctrine avers that there are some rights so fundamental that they are guaranteed to everyone via the due process clause of the Fourteenth Amendment. But, if the states already protect this right, what is the big whoop as to whether the right is also incorporated through the Fourteenth Amendment? That comes down to a case from 1914 and a little judicial invention called the exclusionary rule.

Prior to the exclusionary rule, when law enforcement obtained evidence in violation of the defendant’s rights (for now, we will stick to Fourth Amendment rights – think: a warrantless arrest without probable cause or an unauthorized search of the defendant’s home), there was no prohibition at trial for the prosecution to use those ill gotten gains in order to convict. (I know!) I wish I could find out more about Martin J. O’Donnell, a lawyer from Kansas City, MO but I could not.

Anyway, shout out to that guy! He crafted and filed a motion prior to trial, for the government to return the defendant’s belongings as they were illegally obtained. Weeks v. United States, 232 U.S. 383, 388 (1914). The trial court ordered that the government return the non-pertinent items to the defendant which the government did. Id. After the jury was sworn, but before the first witness was called, Mr. O’Donnell renewed his motion regarding the remaining items because they were obtained in violation of both the Fourth and Fifth Amendments. The court denied the plea and Mr. Weeks was convicted. Mr. O’Donnell then appealed the ruling regarding the use of illegally seized evidence. The Court of Appeals of the Eighth Circuit denied the appeal and the Supreme Court granted cert.

If you have not read it – do – Weeks is a beautiful history lesson written by Justice Day in the month of February in the year 1914 (you’re welcome). Amongst other precious gems, it contains this nugget which is as timely as today’s headlines: “The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established be years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.” Id. at 393. (Can we say that again for the folks in the back, please?)

The case essentially says that evidence obtained in violation of the constitution cannot be used at trial. We now call that the exclusionary rule. However, this was decided as a federal rule related to federal cases where the government illegally seized evidence. So – here is the test – does the Fourteenth Amendment incorporate the exclusionary rule to the states?

Enter Wolf v. Colorado, 338 U.S. 25 (1949). With the opening salvo averring that the due process clause of the Fourteenth Amendment is not shorthand for incorporation of the Bill of Rights to the states, it signals the answer. So, no.

For those of you who chastise the Court today and exclaim that it is the worst and so different from past courts – to you I give The Vinson Court. (The hill I am willing to die on is that the Court has always been “horrible” AND that it should not matter so much because no democracy of millions should rely so deeply on the opinions – no matter how learned – of nine unelected people for their governance. That. Is. What. Legislatures. Are. For. Okay – now that that is out of our systems…)

 So, Justice Rutledge – who was, by no means, the most harsh Justice on the Court at the time – and whose real name was Wiley (which is just fun) – and who was literally considered to be a champion of civil liberties – explained very carefully that the exclusionary rule was simply made up by some very great minds on the court (and he even listed them and reminded us that they were dead!) but was not a license to drive the car of the Bill of Rights over the proverbial civil rights cliff (or something like that). What he actually said was:

We hold, therefore, that in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure. And though we have interpreted the Fourth Amendment to forbid the admission of such evidence, a different question would be presented if Congress under its legislative powers were to pass a statute purporting to negate the Weeks doctrine.

Wolf v. Colorado, 338 U.S. at 33.

Yes. You read that correctly. The Court decided that to honor the meaning of the Fourth Amendment, federal prosecutors are forbidden to use evidence obtained during an unreasonable search and seizure. BUT, that does not mean that this is a fundamental right available to state litigants AND if Congress wants to, it can interpret the Fourth Amendment differently and allow the use of such evidence in all trials. This is where you sigh that relieved sigh that Congress is – and mostly has been – a sclerotic mess of ribbon cutters and baby kissers often with very nice smiles who are not really sure which is the Fourth Amendment (and does it involve quartering soldiers?) and have never read a Supreme Court case in their lives. Whew!

State court criminal defendants would have to wait until 1961 – a full 47 years – before the Court would review the issue. Let’s welcome to the stage Dollree Mapp and her collection of porn. We have her to thank for the Court’s mea culpa on the old well-sure-the-search-was-unreasonable-but-go-ahead-and-convict-the son-of-a-bitch-with-whatever-you-found concept for state court litigants declared with such aplomb in Wolf v. Colorado. Enter Mapp v. Ohio, 367 U.S. 643 (1961).

But rather than just explain that Weeks was right and Wolf was wrong and so in America – no matter who prosecutes the case – all enjoy the rights enshrined in the Fourth Amendment and no law enforcement agent may profit from its ill gotten gains. Instead of just that (which is really the crux of the case), the Court pontificates endlessly on history and what is unreasonable and on and on until it gets to this:

Moreover, our holding that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments is not only the logical dictate of prior cases, but it also makes very good sense.

Id. at 657.

And then the Court explains why it makes sense when – duh – it just makes sense even though they assured us just a dozen years prior that it definitely did not make sense. And that is how the exclusionary rule and the Fourth Amendment was incorporated to the states through the Fourteenth Amendment. Hooray!

But, before you exclaim – well, yeah, it was the 60’s and the Court became liberal, let me stop you right there. The author of Mapp was Justice Clark and you should know a few things about him to understand my dying hill. Before he was appointed to the Court, Thomas Clark was never, ever a judge. However, amongst other things, he was a lead lawyer in the Justice Department where he was in charge of the Alien Enemy Control Program (you may know them by their hit single, Japanese Internment Camps).

Then he was promoted to Attorney General where, admittedly, he did some very good things on civil rights and treatment of juvenile offenders, but he also led a hard line on anti-communism and loved loyalty oaths. He possessed multitudes. When the compassionate and truly justice oriented Frank Murphy died, Truman nominated this guy to the high court.

Folks were, umm, not happy. Here are some quotes I stole from Wikipedia so blame them if they are wrong, but I liked them and thought they were funny so I am adding them here as though they are true (with that caveat):

"President Truman has not 'elevated' Tom C. Clark to the Supreme Court, he has degraded the Court." - Harold Ickes

Clark was called, "a personal and political friend [of Truman's] with no judicial experience and few demonstrated qualifications." – New York Times

Clark refused even to go to the nomination hearing before the judicial committee. And, in that quintessential United States Senate kind of way, they pushed through his nomination to the full Senate regardless. And it was not even close – he was confirmed overwhelmingly. To be fair, while he was uneven in some ways, he ended up being reasonably fair and decent in many others as a justice. He even inched away from loyalty oaths very similar to ones he insisted on when he worked in the executive branch. There was absolutely no way to know when he was appointed that he would side with the majority in Brown v. Board of Education or Gideon v. Wainwright or that he would author Mapp v. Ohio. And there was absolutely no way to know when he was appointed that a later president would appoint his son to be Attorney General which urged Justice Clark to resign and upon that resignation, the giant, the incredible Thurgood Marshall would be appointed to that seat. And now you know the rest of the story.

Anyway – after a long, winding road, the Fourth Amendment, and its significant exclusionary rule too, became incorporated to state court prosecutions through the due process clause of the Fourteenth Amendment. Oh, but to hammer home the dying hill thing – not SO incorporated that it would be considered retroactive, so there’s that. See, Linkletter v. Walker, 381 U.S. 618 (1965) (Clark, J. for the majority).