One of the most frustrating aspects of criminal defense work is the double standards that abound between what we expect of government (cops and prosecutors) and what expect of citizens. Which leads us to the case of the day…..
Today’s SCOTUS disaster is Heien vs. North Carolina. The issue was- Can the police detain you for something that is not illegal, if the police “reasonably believe” you have broken the law?
The answer is a resounding 8-1/”Holy shit what happened to the liberal justices?!”/”Hell YES they can!” ruling.
I’m disappointed, but not really surprised by this ruling. Anyone who follows criminal appeals can see how we go here. A few years ago SCOTUS ruled if the police kept a database with erroneous information, and wrongfully arrested someone who didn’t have a warrant when the computer said the suspect did, that was ok. The police have a hard job, and making sure they don’t arrest innocent people is just not a reasonable expectation. Courts have also ruled that it is ok to discriminate against those who have IQs and want to work in law enforcement.
So it just follows that if we are going to have a police state, we can’t expect law enforcement to know the law that well, or law enforcement to only stop detain/arrest who break the law or actually have a warrant right? That would slow down the conviction machine folks. And if we are going to stay number one in the world for highest incarceration rate per capita, we’ve got be focused on savings convictions! USA! USA!
Let’s compare the treatment of shitty police work to how defense lawyers are treated in trial in Texas. On appeal, courts love to say that a defense attorney “waived any objection” when they cite the wrong subsection of a statute, or object to inadmissible evidence at pre trial, but forget to object again, over and over and over, at trial.
This is what we call result-oriented jurisprudence. Justices know how they want to win in these cases (in Texas that would be the State in criminal cases, and corporations in civil cases), and fit/make up law to fit. When liberal justices do this, the right screams activism, when it benefits the police state, well libertarians complain but who listens to us? But seriously people, the Supreme Court just invented a new doctrine that the government can detain you if the government can’t remember exactly the laws that the government passed and that the government wants to enforce.
Now if a defendant makes a mistake in life, holy shit, stop the presses, there is no defense for not knowing the precise meaning, definition, and application of every section of the Texas penal code. Again, we have a complete asymmetry of responsibility and expectations between the conduct of the government, and the citizen. Citizens must be perfect, the government can just do their best.
Rulings like this Heien have created a race to the bottom for police and prosecutors to see exactly what sort of misconduct and nonsense the appellate courts will forgive, and by implication, condone and endorse. If you ever wonder why we convict so many innocent people, one reason is the complete lack of accountability on the side of law enforcement and prosecutors at the appellate level.
Everyone suffers from shitty policing, and in this case, the 4th Amendment is the victim. What kind of case was Heien? What offense was so important we had to green light detaining innocent people without cause? As you should have come to expect if you read this blog, it’s another pointless bullshit drug possession case.