Former Public Defender Underestimates How Often the Exclusionary Rule Sets the Guilty Free
People are unfamiliar with the way that the exclusionary rule operates to deny justice. Why, even a former public defender writing in a major national newspaper doesn’t get it — or, at least, he pretends not to.
In an op-ed in yesterday’s L.A. Times, David Feige writes:
SO THAT’S IT?” My young African American client was shaking his head in disbelief, a look of expectant perplexity warming his face.
“Yep,” I smiled, giving him a quick embrace, “Case dismissed.”
“Cool,” he said, shaking his head just a little bit.
This exchange took place some years ago in a fluorescent-lighted hallway just outside the subterranean courtroom of Judge Robert Cohen in the Bronx. The judge had just ruled that because the police illegally searched a bag inside the trunk of my client’s car, the gun they found there would not be admitted into evidence. And so, there, outside Cohen’s courtroom, I was saying goodbye to a client who no longer faced the specter of a prison term.
Heartwarming, isn’t it? But we soon learn that, according to Feige, the rosy scenario of the guilty going free is happening all too seldom:
Such an outcome, though depicted regularly on “Law & Order,” is actually uncommon. And from now on, there’ll be even fewer.
. . . .
As Justice Stephen Breyer’s dissent suggests, last week’s [knock-and-announce] ruling is itself a significant departure from traditional 4th Amendment jurisprudence. But though the Hudson decision is deeply alarming for what it says, it is even more so for what it presages: a direct attack on the entire remedy of suppression.
Feige says that this is terrible, because the exclusionary rule is almost dead anyway. He knows this because he talked to some public defenders, and they say that they haven’t won a lot of hearings:
For all its traditional centrality and high-minded value, the exclusionary rule these days is honored mainly in the breach. In an informal poll of several public defenders, most could count on one hand the number of times they’ve won suppression motions that have resulted in dismissal.
The fact that the exclusionary rule has been virtually dead for years may come as a surprise to those who don’t see the daily grind of cases being processed through the system.
Yeah, and it comes as an even bigger surprise to those of us who do.
No, suppression motions are not routinely granted (although it happens). But what Feige doesn’t take into account is the filtering that happens before a case gets to court. Police bring cases to a filing D.A., who makes a decision about whether the case should be filed, based upon numerous factors. One of the factors that the filing D.A. considers is whether the case is going to be dismissed because the defense would almost certainly win a suppression motion.
I have seen this happen first-hand. A friend of mine files cases, and I have been in his office watching him explain to the filing officer that he won’t file the case, because the officer had no justification for the search. (By the way, a “bad search” doesn’t necessarily mean we have a “bad cop.” Scroll down to this post for an explanation.)
I can’t give you statistics on how often cases are rejected due to a bad search. But I’d wager that it happens far more often than it happens that a case gets filed and tossed out of court due to a bad search. (I have seen that happen too, by the way.) That’s because your average filing D.A. knows his job, and won’t file a case that’s a sure loser on a suppression motion.
Defense attorneys never see these cases, because they don’t get filed to begin with. So you can’t measure the number of guilty people set free by the exclusionary rule by asking public defenders how many cases they win on suppression motions.
Many more guilty people go free than Mr. Feige and his fellow public defenders see in court.
Mr. Feige should know better. True, he was a public defender, and public defenders don’t file cases. But public defenders know that cases have to be filed, and they know that the exclusionary rule plays a role in filing decisions. If he is going to write a book about this stuff, and write op-eds in major newspapers about it, he owes his readers a duty to be more accurate.
The worst part is that his words take on a greater ring of truth because of his status as a former “insider.” That’s what I have taken the time to type up this post, so you’ll see that not all “insiders” agree with him.
UPDATE: A commenter notes that the author of the op-ed limits his poll of public defenders to the issue of “the number of times they’ve won suppression motions that have resulted in dismissal.” Why is that the relevant number? Why isn’t it the number of suppression motions they have won — period?
In my experience, most suppression motions do result in dismissal, so I wouldn’t think this would lead to a significant difference. But I find it curious that he needs to qualify the statement that way.
I’d wager that even prosecutors don’t witness the full impact of the exclusionary rule. The cops know about it, too, so there’s probably at least one level of filtering before it reaches all y’all.
Xrlq (f52b4f) — 6/21/2006 @ 10:16 amBut I would argue that they are deterred by the Constitution, not the exclusionary rule. I think if you had police discipline for Fourth Amendment violations, rather than suppression, you’d have even fewer violations.
Patterico (50c3cd) — 6/21/2006 @ 10:25 amDoes this line have the significance I think it might: the number of times theyve won suppression motions that have resulted in dismissal ?
I.E. it looks to me like he’s excluding successful suppression motions that have NOT resulted in dismissal. Is that significant, or do such things not happen enough to bother with?
[Not too often. It’s still a good point. — P]
Anwyn (164e26) — 6/21/2006 @ 10:42 amplease forward this information to the LA Times (aka Pravda West). I would like to see if they will present evidence from the other side. My experience, as a prosecutor for more than 3o years, is that the exclusionary rule causes more injustice than justice.
Also, I would imagine that your office keeps statistics as to case “rejects” based upon illegal search. It should not be that difficult to get the information.
j woo (59bfb8) — 6/21/2006 @ 10:58 amISTM that the exclusionary rule is working as intended if it results in cases not being filed due to the filing DA’s certainty that they would be dismissed.
aphrael (e0cdc9) — 6/21/2006 @ 11:25 amif you yourself “can’t give…statistics on how often cases are rejected due to a bad search”, how would you expect a public defender to provide this information?
this strikes me as prosecutorial whining, closely akin to the corporate whining i hear all the time, along the lines of “we were forced to settle the case because we didn’t want to take a chance on what might happen in our deranged jury system, and we continue to deny any wrongdoing whatsoever.”
when enough people find the constitution so inconvenient, it will become a dead letter. meanwhile, everybody go out and exercise the last civil right you still have. buy a gun today!
[The answer is simple. Mention that some cases aren’t filed. Don’t mislead. You claim to argue against “whining” but in fact you are arguing against *accuracy*. That’s not an admirable argument to make. — P]
assistant devil's advocate (85066e) — 6/21/2006 @ 11:30 amYou also have to include in the calculation the number of cases that are settled for far less than the sentence the defendant normally might receive because the defense files a motion to suppress as leverage for a better deal. The motions usually aren’t winners but as long as the defense can raise the specter that they might get suppression it can have a big impact on case disposition.
CStudent (59bfb8) — 6/21/2006 @ 12:09 pmAnd correspondingly fewer convictions of the truly guilty, but that’s one of the problems with having a Fourth Amendment. That wasn’t really my point, though. Rather, I was suggesting that as a result of the exclusionary rule, some violations don’t get reported by police to the D.A., for precisely the same reason the D.A. doesn’t present other violations to the court.
Xrlq (f52b4f) — 6/21/2006 @ 12:32 pmIf memory serves, didn’t Mr X move to Virginia?
The South shall rise again!
Dana (3e4784) — 6/21/2006 @ 12:39 pmYeah, but he violated his own rule, that by observation they don’t actually say “all y’all” there. 🙂
Anwyn (01a5cc) — 6/21/2006 @ 1:12 pmAnwyn, Oh yes they do. The same folks who say “yous guys” up there in Yankeeland, say “all y’all” way down South in Dixie. They may come from the ends of the earth, but they’re sisters under the skin. Folks in the South just know how to talk right.
And that tidbit comes from a natural born ridge runner who was 14 years old before he learned that “damn and “Yankee” were two different words.
Black Jack (d8da01) — 6/21/2006 @ 2:33 pmAnwyn’s right. I like to say “all y’all” myself, but real Virginians generally don’t. In fact, most Richmonders I know say “you all” as two separate words. Bo-ring!
Xrlq (f52b4f) — 6/21/2006 @ 2:39 pm“I think if you had police discipline for Fourth Amendment violations, rather than suppression, youd have even fewer violations.”
Patterico, I was wondering what your take would be on this:
http://www.theagitator.com/archives/026718.php#026718
which suggests that Police discipline doesn’t really make a very good showing.
[Sorry. I don’t fully trust Balko, for reasons I have previously discussed on this blog. Search this blog for his name and you’ll see why. — P]
Dave (6001a6) — 6/21/2006 @ 3:00 pmPatterico, Comment #2, wrote:
“I think if you had police discipline for Fourth Amendment violations, rather than suppression, youd have even fewer violations.”
The late CJ Warren Burger, whom I liked very much, was always against the exclusionary rule to the extent of asking Congress, in an opinion, to exercise its power over rules of evidence in federal cases and, in its place, to expand tort actions against the police for violation of Constitutional rights. Personally, I prefer the exclusionary rule. I am a firm believer in the “roust”. Let the police shake up the bad guys, take away their guns and drugs, subject them to anal searches and up to 48 hours of lockup before arraignment, even if the search and seizure is later held unconstitutional, without the police being afraid of getting sued. Where we need law and order is in our neighborhoods. Putting the bad guys in prison is only one solution. The police slapping them down, fearlessly, whenever they come out of their holes, whether it results in a prison sentence or not, is another.
[I can only hope this is parody. — P]
nk (bfc26a) — 6/21/2006 @ 3:12 pmI am genuinely curious about something. How often are police officers disciplined internally for illegal searches?
Steven Donegal (a0a9b7) — 6/21/2006 @ 4:17 pmXrlq–Take a dip below the VA/NC border if you want to hear some real “Y’all”-ing. As in my NC cousin, gazing around the dining table at three lapsed and/or agnostic friends I had brought with me to visit: “Which one of y’all is the Catholic? Because we don’t let Catholics handle the snakes.” True story. My friends had no trouble making themselves at home after that little ice breaker. I love Carolina.
At least you and Black Jack spell it properly. I want to tear a hair out every time I see somebody type “ya’ll” or even “ya’all”.
Okay, hijacking over, back to thread … am I understanding nk correctly that he wants police to toss “bad guys” because they feel like it and not worry about it if the evidence is excluded?
Anwyn (01a5cc) — 6/21/2006 @ 4:17 pmAs Patterico mentions in his “Bad Search” Doesn’t Mean “Bad Cop” post, police officers must make decisions in a very fluid situation. They do not have the luxury of the debating society that the lawyers do. While most officers aggressively try to remove drugs and guns from their streets, sometimes they forego a search they could have performed. I also agree that the vast majority of officers try to honor the convoluted limits placed on them by the Constitution. However, sometimes officers do not conduct searches because they are unsure of their constitutional footing.
I also concur that the primary effect of the exclusionary rule is the filtering of cases at both the police department and the filing desk of the DA’s office. That being said, it is difficult to quantify the number of cases that are not forwarded to a DA’s office for review or not filed for search issues for several reasons. For example, some filing deputies do not want to list “illegal search and seizure” as a reason for not filing charges. They are afraid that that could be used against the officer in a civil action for violating the criminal’s Constitutional rights. Instead, they opt for the more benign “in the interests of justice.”
I was glad to hear that the US Supreme Court is taking even a small step away from the exclusion of evidence. The exclusionary rule is a judicially created rule not required by the Constitution. But I have always doubted the Court would move away from it simply because, being five years older than Miranda, it too has become “part of our national culture.”
Steve M., henceforth known as "Nine-headed Caesar" (d90f32) — 6/21/2006 @ 6:23 pmBut I find it curious that he needs to qualify the statement that way.
Habit?
Kevin Murphy (0b2493) — 6/21/2006 @ 9:55 pmCan’t speak to “ya’all,” but it’s arguable that “ya’ll” is not a misspelling of “y’all,” but the correct spelling of a different contraction altgoether: “ya will.”
Xrlq (61fe73) — 6/22/2006 @ 3:38 amAnwyn, #16, wrote:
“am I understanding nk correctly that he wants police to toss “bad guys” because they feel like it and not worry about it if the evidence is excluded?”
My previous comment does read that way, doesn’t it? I was just trying to say, roughtly, what Steve M. said much more coherently and intelligently in Comment #17. For most police officers, their primary concern is public safety. Evidence gathering is secondary. They should not chilled from preventing crimes by threat of discipline or lawsuits if in fact they “roust” a criminal or would-be criminal without meeting the Mapp or Terry standard. But we still should not toss away the Constitution. Which is why I disagreed with CJ Burger on replacing the exclusionary rule with a federal tort action against the police.
As an example, the police see a group of young men known to be gang members driving around another gang’s territory. They pull them over, search the car and find loaded guns. I am content that the police prevented a drive-by shooting. The search did not meet Fourth Amendment standards so the kids don’t go to jail. But the guns are melted down into hood ornaments and possibly several lives were saved. Half a loaf ….
nk (b57bfb) — 6/22/2006 @ 5:55 amCan’t speak to “ya’all,” but it’s arguable that “ya’ll” is not a misspelling of “y’all,” but the correct spelling of a different contraction altgoether: “ya will.”
Would be arguable, if 1) I’d ever heard anybody say the word to mean “you will” (maybe you have, but people I know in NC say “y’all’ll” for “y’all will”), and 2) when I’ve seen it typed, the typers definitely meant “you all.” 🙂
Anwyn (01a5cc) — 6/22/2006 @ 8:12 amno patterico, i am not misleading, and i am not arguing against accuracy.
assistant devil's advocate (ea674f) — 6/22/2006 @ 8:59 ami always wanted to be a restaurant critic with a big expense account. a successful criminal prosecution is a little like making a souffle. when i go to the french laundry with my critic hat on and they bring out a perfect grand marnier souffle at the end, i’m gonna write about that. i understand that souffles are tricky, that even the best chefs have souffles fall in the oven, which are never seen by the diner. since they don’t let me into the kitchen, i have no basis for speculating on how many souffles failed.
the only people allowed in the district attorney’s kitchen are prosecutors. you yourself have acknowledged lack of awareness of the souffle failure rate, yet with the common prosecutorial bias, you treat each failed souffle as guilty, notwithstanding the presumption of innocence. patterico, these souffles are innocent until proven guilty, innocent, i tell you!
question for you about the effects of the exclusionary rule. how many serious criminals – murderers, rapists, child molestors, etc., have walked free due to this rule? i’m not talking about drug cases or even illegal firearms. i’m not willing to give up my civil rights so you can get the very last tweaker with a bag of rock in his backpack. offhand, i can’t think of any cases where a murderer walked because of this rule, and i would appreciate any citations to same you may have to offer. i am also curious (and have asked you before) if you have ever seen a pro-police/prosecution supreme court decision you didn’t agree with because you felt it went too far in infringing the rights of citizens, and if so, which one(s) are they?
Note I said “arguable,” which is not the same thing as “correct.” Most of the contexts in which I’ve seen “ya’ll” in print are ambiguous on that point. For example, “Ya’ll come back!” could be interpreted either as an imperative “You all come back!” or as a quasi-imperative use of the future tense “You will come back.”
Xrlq (f52b4f) — 6/22/2006 @ 9:58 amWellll … If you tack on the traditional question, “Hear?” then it becomes far more difficult to argue that it’s the slightly menacing “You will come back, you hear?” as opposed to the hospitable “You all come back, won’t you?”
I shouldn’t scuttle my own argument, but a sounder case for “ya’ll” would be that it is contracted from “ya all” and the apostrophe replaces the second a, as opposed to replacing the first a, or the “ou” in “you,” in “y’all.” But to me that’s just kludgy.
Anwyn (164e26) — 6/22/2006 @ 10:35 amthe only people allowed in the district attorney’s kitchen are prosecutors. you yourself have acknowledged lack of awareness of the souffle failure rate, yet with the common prosecutorial bias, you treat each failed souffle as guilty, notwithstanding the presumption of innocence. patterico, these souffles are innocent until proven guilty, innocent, i tell you!
How many cases are dismissed outright? If well over 95% of the cases filed result in guilty pleas or convictions by jury, and I am fairly certain they do, then cases rejected only because of a Fourth Amendment error are almost always going to result in the release of a guilty person.
Not mentioning the phenomenon that the exclusionary rule catches cases at the filing stage is misleading. When I point out the inaccuracy, you call it whining — yet in fact, you are defending inaccuracy.
To answer your other question: Maryland v. Craig. I’m sure there are others. Not too many, though. But you gotta understand: I disagree with the exclusionary rule and the Miranda ruling to begin with. Naturally, I implement them both faithfully, and would as a judge. But if I were a Supreme Court justice, I’d have ruled differently in Mapp and Miranda and Dickerson. That lets out a lot of cases.
Patterico (50c3cd) — 6/22/2006 @ 10:41 amhello im going thrue similar stuff i got pulled over and they when to look inside my car and didnt find nothing and opened my trunk looked and found a pound of meth they offered me 6 months but if i mess up they will give me 4 and half years of prison.. so i didnt take it my lawyer says i have a 70 percent chance of winning the case filing motion of supression.. if i loose can they still offer me the same..and whats your advise you can give me…first offense i have to go to court in 2 months for trial ready will they offer me something better…. what should i doo
mike (055695) — 8/10/2007 @ 2:05 amMike,
You should talk with your lawyer or get a second opinion from another skilled, reputable lawyer if your not satisfied with your lawyer’s answer.
There’s no way a licensed lawyer like Patterico can give you legal advice over a blog. Discuss issues in a general sense, but not specifically, I’m afraid.
In a general sense, however, I think Patterico’s saying he gets convictions or guilty pleas more often than not. Yet your circumstance may be different and you really need to talk about this with a licensed lawyer familiar with the unique circumstances of your case.
In my opinion. And I am not a lawyer.
Christoph (92b8f7) — 8/10/2007 @ 2:20 am