"The Practice" and Liberal Judicial Activism
One of my favorite TV shows of the early 2000's was The Practice, a drama revolving around a small defense law firm in Boston. Now in syndication, the main plot line of this morning's rerun involves an accused kidnapper and nun killer. The police, upon entering the apartment of the suspect, rescue the girl while the suspect is out getting coffee. The phone is found to be fully functional and the girl was free to go at any time when the suspect was out for coffee, all shedding what seems to be reasonable doubt on the kidnapping charge. But the "victim" tells the police that she was told by the suspect that he has guns in the closet, so in order to secure the apartment fully the police jimmy the closet and find not only an array of weapons but the mutilated remains of the missing nun. The suspect is arrested upon his return from his coffee-procuring expedition.
Tensions rise as the defense makes a motion during cross-examination of the police officer who executed the search (without a warrant) to suppress the contents of the closet because the search was illegal. No exigency, no warrant, bad search. That is the crux of the defense's argument.
There is also a secondary plot line involving a socially awkward middle-aged man who gets arrested for solicitation of prostitution. The police essentially entrapped the man by luring him into a situation he otherwise never would have found himself in without the aggressive actions of the police. Basically, they led a very thirsty man to a water fountain and got him to drink.
These two plot lines share a very powerful, binding thread: the actions of the police and the possibility of misconduct. The ultimate question to be resolved in both circumstances is: does the police misconduct rise to the level necessary to set the defendant free?
The episode, on its face, does a remarkable job juxtaposing two very different cases bound together by the possibility of police misconduct. The underlying heart of the matter, however, is not the outcome of each trial, though that is the hook for the episode as always. No, here the juxtaposition of Supreme Court precedent versus the original understanding of the Fourth Amendment of the Constitution is the heart of the examination.
Let us begin with this obvious truth: like always when liberal judicial activists take their personal hatchets to the plain language of the Constitution, Supreme Court precedent has been expanded and tortured beyond any conceivable relationship to the original understanding of the Fourth Amendment. Whereas the original understanding never required Miranda warnings (a Supreme Court decision) and the original understanding likewise never allowed for the exclusion of evidence based upon reasonable mistakes made by the police in the line of duty, we are now faced with the unfortunate reality that the Court has created a new reality out of whole cloth, requiring Miranda rights and the disgusting exclusion of evidence obtained not due to misconduct, but due to the simple but reasonable mistakes that human beings make every day.
The police in the case of the man who agrees to pay for sex have engaged in gross misconduct. The man never solicited a prostitute. The undercover officer misled the man up to her hotel room under the guise of consensual sex between two adults and on the verge of intercourse demanded money for her services. He agreed. They took advantage of a weak, socially inept man who probably hadn't been engaged by a woman in years. The police in the case of the nun killer entered an apartment of a man who they suspected of kidnapping, opened a closet they were told had guns, and made an honest and reasonable effort to secure the premises before the suspect returned home. Between these two cases, one action by the police was reasonable. One was clearly not.
Unfortunately, due to the liberal perversion of the Fourth Amendment, precedent requires that the Court treat both equally and give more preferential treatment to the defendant in the nun killer case in order to make sure that the abuse in the solicitation case is curbed. What is never asked, until arguments made by the assistant district attorney and a stunning speech by the judge presiding over the nun killer case, is whether or not this equal treatment of the actions of the police in both cases is ITSELF reasonable.
The judge is torn by her fidelity to the Constitution and to the principle of stare decisis, which is of course important for stability in the law but does not require fidelity in a case when the decision to be upheld is clearly wrong and unconstitutional. In the case of the nun killer, when deciding whether or not the actions of the police are reasonable, she recognizes all of the following: the police acted reasonably; her duty to the Constitution; the validity of the ADA's argument with respect to the original understanding of the Fourth Amendment; and the absurdity of Court precedent which is said to require her to suppress the contents of the closet and therefore release the defendant. And yet, she still rules in favor of the defense!!!!
We have been properly conditioned as a people to respect court decisions in order to maintain order in both the law and the day to day actions of society. We also recognize that abusive conduct by the police is a possibility that requires our vigilance. Where we have gone horribly wrong, as evidenced by this outstanding episode of The Practice, is that we now give suspected murderers more latitude in exploiting the possibility of abusive actions by the police than of demonstrating actual abuse. Because of that, procedure in the collection of evidence is held to a standard that is almost unreachable, and certainly unreasonable, while the prospective rights of the accused are given more weight than the rights and interests of society as a whole.
The presiding judge in The Practice shows a clear understanding of fact, law and reality, as well as the unreasonable position in which she finds herself having to choose between fidelity to the Constitution as her oath requires, or discharging her duties as a lower court judge in a system that depends on stability in order to function properly. In making her decision to set the nun killer free, she chooses to uphold not her oath, but the ludicrous idea that precedent requires one to break that very same oath. It is this unfortunate truth we find ourselves faced with now that we've been exposed to 40 years of liberal perversion of the original understanding of the Constitution's Fourth Amendment.
This is one of my favorite episodes of The Practice because it examines a very difficult question with clarity and a keen understanding of the deep cracks in the foundation of our law and jurisprudence due to liberal judges and their propensity for engaging in outright dereliction of duty. I wish the judge would have had the moral courage to uphold her oath instead of swearing fidelity to the cult of liberal judicial activism. She certainly seems capable of exhibiting the strength required to do so. And in doing so she would've demonstrated to a large audience that the Constitution is the final arbiter of proper judicial conduct, a lesson that MUST be revisited if we are to restore the judicial branch to its proper place in our confederate republic. But we at least understand why she did it. Regrettably, she had no choice.
In the final shot when the judge, defense counsel and prosecution come to understand the reality of what they have allowed to unfold, we see in their tears the folly of the choice made by the judge and the real world consequences sure to follow the release of a sociopath who will likely kill again. Bottom line? The police acted reasonably and the search should have been upheld under the original understanding of the Fourth Amendment. But the killer walks anyway, due to the Court's perversion of the Amendment and a warped fidelity to stare decisis. But hey. At least we know court-engineered procedure was followed, no matter the expense of the public's safety. And, aren't we told, isn't THAT what matters most?
Tensions rise as the defense makes a motion during cross-examination of the police officer who executed the search (without a warrant) to suppress the contents of the closet because the search was illegal. No exigency, no warrant, bad search. That is the crux of the defense's argument.
There is also a secondary plot line involving a socially awkward middle-aged man who gets arrested for solicitation of prostitution. The police essentially entrapped the man by luring him into a situation he otherwise never would have found himself in without the aggressive actions of the police. Basically, they led a very thirsty man to a water fountain and got him to drink.
These two plot lines share a very powerful, binding thread: the actions of the police and the possibility of misconduct. The ultimate question to be resolved in both circumstances is: does the police misconduct rise to the level necessary to set the defendant free?
The episode, on its face, does a remarkable job juxtaposing two very different cases bound together by the possibility of police misconduct. The underlying heart of the matter, however, is not the outcome of each trial, though that is the hook for the episode as always. No, here the juxtaposition of Supreme Court precedent versus the original understanding of the Fourth Amendment of the Constitution is the heart of the examination.
Let us begin with this obvious truth: like always when liberal judicial activists take their personal hatchets to the plain language of the Constitution, Supreme Court precedent has been expanded and tortured beyond any conceivable relationship to the original understanding of the Fourth Amendment. Whereas the original understanding never required Miranda warnings (a Supreme Court decision) and the original understanding likewise never allowed for the exclusion of evidence based upon reasonable mistakes made by the police in the line of duty, we are now faced with the unfortunate reality that the Court has created a new reality out of whole cloth, requiring Miranda rights and the disgusting exclusion of evidence obtained not due to misconduct, but due to the simple but reasonable mistakes that human beings make every day.
The police in the case of the man who agrees to pay for sex have engaged in gross misconduct. The man never solicited a prostitute. The undercover officer misled the man up to her hotel room under the guise of consensual sex between two adults and on the verge of intercourse demanded money for her services. He agreed. They took advantage of a weak, socially inept man who probably hadn't been engaged by a woman in years. The police in the case of the nun killer entered an apartment of a man who they suspected of kidnapping, opened a closet they were told had guns, and made an honest and reasonable effort to secure the premises before the suspect returned home. Between these two cases, one action by the police was reasonable. One was clearly not.
Unfortunately, due to the liberal perversion of the Fourth Amendment, precedent requires that the Court treat both equally and give more preferential treatment to the defendant in the nun killer case in order to make sure that the abuse in the solicitation case is curbed. What is never asked, until arguments made by the assistant district attorney and a stunning speech by the judge presiding over the nun killer case, is whether or not this equal treatment of the actions of the police in both cases is ITSELF reasonable.
The judge is torn by her fidelity to the Constitution and to the principle of stare decisis, which is of course important for stability in the law but does not require fidelity in a case when the decision to be upheld is clearly wrong and unconstitutional. In the case of the nun killer, when deciding whether or not the actions of the police are reasonable, she recognizes all of the following: the police acted reasonably; her duty to the Constitution; the validity of the ADA's argument with respect to the original understanding of the Fourth Amendment; and the absurdity of Court precedent which is said to require her to suppress the contents of the closet and therefore release the defendant. And yet, she still rules in favor of the defense!!!!
We have been properly conditioned as a people to respect court decisions in order to maintain order in both the law and the day to day actions of society. We also recognize that abusive conduct by the police is a possibility that requires our vigilance. Where we have gone horribly wrong, as evidenced by this outstanding episode of The Practice, is that we now give suspected murderers more latitude in exploiting the possibility of abusive actions by the police than of demonstrating actual abuse. Because of that, procedure in the collection of evidence is held to a standard that is almost unreachable, and certainly unreasonable, while the prospective rights of the accused are given more weight than the rights and interests of society as a whole.
The presiding judge in The Practice shows a clear understanding of fact, law and reality, as well as the unreasonable position in which she finds herself having to choose between fidelity to the Constitution as her oath requires, or discharging her duties as a lower court judge in a system that depends on stability in order to function properly. In making her decision to set the nun killer free, she chooses to uphold not her oath, but the ludicrous idea that precedent requires one to break that very same oath. It is this unfortunate truth we find ourselves faced with now that we've been exposed to 40 years of liberal perversion of the original understanding of the Constitution's Fourth Amendment.
This is one of my favorite episodes of The Practice because it examines a very difficult question with clarity and a keen understanding of the deep cracks in the foundation of our law and jurisprudence due to liberal judges and their propensity for engaging in outright dereliction of duty. I wish the judge would have had the moral courage to uphold her oath instead of swearing fidelity to the cult of liberal judicial activism. She certainly seems capable of exhibiting the strength required to do so. And in doing so she would've demonstrated to a large audience that the Constitution is the final arbiter of proper judicial conduct, a lesson that MUST be revisited if we are to restore the judicial branch to its proper place in our confederate republic. But we at least understand why she did it. Regrettably, she had no choice.
In the final shot when the judge, defense counsel and prosecution come to understand the reality of what they have allowed to unfold, we see in their tears the folly of the choice made by the judge and the real world consequences sure to follow the release of a sociopath who will likely kill again. Bottom line? The police acted reasonably and the search should have been upheld under the original understanding of the Fourth Amendment. But the killer walks anyway, due to the Court's perversion of the Amendment and a warped fidelity to stare decisis. But hey. At least we know court-engineered procedure was followed, no matter the expense of the public's safety. And, aren't we told, isn't THAT what matters most?
posted by The Rock | 8:59 AM
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