Blame the judges

March 20, 1991

As predictably as the closing bell at the Stock Exchange, the Wall Street Journal weighed in on the topic of the day -- the Los Angeles police brutality scandal -- and, needless to say, weighed in on the side of the police.

Oh, to be sure, the Journal's editorial condemned the beating of a defenseless man by what amounted to a mob in uniform. The editorial was only 10 lines into its topic, however, before the newspaper introduced the word but. The essence of the editorial from that point forward was, yes, it was terrible what the police did, but policemen are just awfully frustrated these days. The reason: They are hamstrung by lazy prosecutors who cut plea bargains and mushy-headed judges who come up with crazy legal doctrines like "the exclusionary rule." Never mind that we presently have a record number of people behind bars. The subtle but clear point of the editorial was simply that, if judges don't do their jobs in the courtroom, then the police will do it for them in the streets. This is the essence of a police state.

The exclusionary rule and related rules basically mean that police officers cannot violate the law in the process of collecting evidence to convict other lawbreakers. If a house is searched without a warrant -- in violation of the Fourth Amendment -- then that evidence cannot be used in court to convict the person who was the victim of the illegal search. If a confession is obtained through trick, threat or violence -- in violation of the Fifth Amendment -- then that confession cannot be introduced into court. If a person who has been arrested is denied a request to see a lawyer -- in violation of the Sixth Amendment -- then the whole prosecution is tainted.

If you listened to the Wall Street Journal, you'd think these rules are just nitpicking nonsense. Is it possible that no one at the Journal has ever bothered to go back to the time when these rules were first being formulated? When it was routine for police to batter down doors without warrants. When the rubber hose was found in practically every police station as a device to extract confessions. When virtually illiterate people were obliged to defend themselves in court against trained state prosecutors.

Yes, we do indeed have a more humane and civilized society because of those rulings -- rulings which protect every American. Evidently, the Wall Street Journal seems simply to prefer an old fashioned police state. More efficient, you know.

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