February 19, 1979 University of Michigan Law School

University of Michigan Law School University of Michigan Law School Scholarship Repository Res Gestae Law School History and Publications 1979 February 19, 1979 University of Michigan Law School Follow this and additional works at: http://repository.law.umich.edu/res_gestae Part of the Legal Education Commons Recommended Citation University of Michigan Law School, "February 19, 1979" (1979). Res Gestae. Paper 505. http://repository.law.umich.edu/res_gestae/505 This Article is brought to you for free and open access by the Law School History and Publications at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Res Gestae by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. THE UNIVERSITY OF MICHIGAN LAW SCHOOL STUDENT WEEKLY DON'T GUT THE FOURTH AHEll\TD. Says Xamisar On-The Defensive Many members of the legal profession Wilkey of the U.S . Court of Appeals for mos t notably Chief Justice Warren the D.C. Dircuit, a critic of the Burger, have urged abandonment of the exclusionary rule. Wilkey is also a so-called "exclusionary rule" which former U.S. Attorney and former prohibits the government from using Assistant Attorney General. The final illegally seized evidence in criminal installments of the articles appear in trials. the current issue of Judicature (FEB'79) . Among other claims, critics of the The exclusionary rule, which was rule say the measure has handcuffed adopted by the federal courts in 1914 the police in dealing with increas and imposed on the states as a result ing incidence of street crime, includ of Mapp v. Ohio (1961), bars the use in ing assault and robberies with crimianl prosecutions of evidence gained deadly weapons, and makes gun control in violation of the Fourth Amendment regulat~ ons almost impossible to protection against unreasonable Bearch · enforce. and seizure. But Professor Yale Kamisar, a Kamisar says his defense of the rule staunch defender of the exclusionary is directed at both Judge Wilkey and rule, says the measure should be Chief Justice Burger, whom he calls maintained as a means of preventing "Wilkey's ideological ally." Editors "the government from profiting from of Judicature say the Kamisar-Wilkey its own misconduct." debate has generated more mail than Kamisar also maintains that the anything published in the magazine's alleged connection between the rule 62-year history. and higher crime rates is not borne The following is a point-by-point out by s tatistics in several states summary of some of Judge Wilkey's showing crime levels before and after criticisms of the rule and Professor exclusionary rules were put into Kamisar's defenses: effect . --Wilkey: "We can see the huge social "Though critics of the exclusionary cost (of the exclusionary rule) most rule sometimes sound as though it clearly in the distressing rate of onstitutes the main loophole in the street crimes--assaults and robberies administration of justice, the fact with deadly weapons, narcotics traf ~ s that it is only a minor escape ficking, gambling and prostitution ... oute in a system that filters out To this high price we can rightfully ar more offenders through police, add specific, pernicious police conduct 'r osecutorial, and judicial discre- (such as police perjury, harassment and Li on than it tries, convicts and corruption) and lack of discipline- .' entences," says Karnisar . the very opposite of the objectives of Views of the Law School professor the rule itself." are set forth in a series of articles --Kamisar: Judge Wilkey "has presented i n Judicature, a national legal no statistical support for his asser t agazine. A series of three articles tion that there is a causal link between by Kamisar is contrasted with pieces the high crime rate in America and the Written by Judge Malcolm Richard exclusionary rule, and no such empirical (Continued on Page 2) KAMISAR DEFENDS RETENTION OF THE EXCLUSIONARY RULE AGAINST VICIOUS ASSAULT Continued from Page 1) evidence exists. In the decade certainly provide a far more effective immediately preceding Mapp (1950-60) , deterrent than . .. the exclusionary rule." crime rose much faster-in may states, --Kamisar: If such an alternative which admitted illegally seized were to constitute an effective deter evidence than in the District of rent, "the weapon still would not be Columbia, whose law enforcement brought i n as evidence in the case ... officers were subject to the exclu because the officer would not make the sionary rule ... Although Michigan had sear ch or frisk if he lacked the an 'anti-exclusionary rule' proviso requisite cause to do so." in its state constitution from --Wilkey : "The greatest obstacle to 1961-70 which permitted its police replacing the exclusionary rule with a to search for and seize forearms of rational process" is "the powerful, all types without 'probable sause' unthinking (!) emotional attachment" or any cause, the number of unregis to the rule by some lawyers and judges tered handguns increased dramatically, "heavily imbued with a mystique of the firearms robberies doubled and homi exclusionary rule as of almost divine cides committed with firearms in origin." creased fourfold." (Michigan's --Kamisar: "This cannot explain anti-exclusionary rule proviso was support for the rule by such battle struck down in 1970 as violating the scarred veterans as Roger Traynor federal constitution.) (Chief Justice of the California Supreme --Wilkey: "Compare the results in Court in the 1950's and 60's and other countries--in England neither generally regarded as the greatest the police nor the criminals carry state judge of his time) and former guns. ~fuy? The criminals know that Supreme Court Chief Justice Earl Warren if a weapon is found they will be and Justice Tom Clark. Warren spent prosecuted. ~fuenever a man is caught more years as a state prosecutor than with a gun or narcotics in his any other person who has ever sat on possession in England or Canada, the U.S. Supreme Court and during the conviction is virtually automatic- entire 24 years Warren spent in state there is no denying the fact of law enforcement work, his state (Cal possession, there is not exclusion ifornia) admitted illegally seized of the evidence, no matter how evidence. Indeed, Warren was the obtained."(!!!!) California attorney general who suc - - Kamisar: "Judge Wilkey's attack cessfully urged Traynor and his on the exclusionary rule is really an brethren to admit illegally seized attack on the Fourth Amendment itself. evidence in 1942. Years later, however, It is the constitutional guarantee both Traynor and Warren became convinced itself (against unreasonable searches of the need for the exclusionary rule;" and seizures)--not the exclusionary --Wilkey: The 1961 Mapp decision rule--which imposes limits on police "removed frotn the states both the in operations . If the ban against centive and the opportunity to deal unreasonable search and seizure were with illegal search and seizure by obeyed as it should be, there would means other than suppression (of the be no illegally seized evidence to be illegally seized evidence." Abolition excluded . Thus, abolishing the rule of the rule would "permit in the would not confer a right on our police laboratories of our 51 jurisdictions to search 'on the slightest suspicion, the experimentation with the various it would not affect lawful police possible alternatives promising far practices in any way . Only a change more than the now-discredited exclu in the substantive law on search and sionary rule." seizure can do that." - -Kamisar: "For may decades a --Wilkey: The exclusionary rule majority of the states had no exclu should be replaced with "disciplinary sionary rule but none of them developed punishment and civil penalties direct any meaningful alternatives. Between ly against the erring officer in the time the Supreme Court adopted an volved"--an alternative which "would exclusionary rule for federal prose- 2 (Concluded on Page 6) by Nat Colley This past weekend the Black law But the most interesting question students hosted the Midwest Regional about Black leadership in the 1980's convention of BALSA. The topic of is not what or how, but who? Who will the convention was "Black Leadership be the Black leaders of the 1980's, in the 1980's." Thus, it seems a and how will they be determined? good time to consider Black leader Traditionally, Black leaders have ship. been preachers and/or heads of major The issues confronting Blacks in organizations. Today, elected politi the 1980's are manifold. But several cians can be included. (This has meant of them are variations on the same incidentally, an increasing number of theme, of which Bakke was only the lawyers. Whether this is good, bad or forerunner. This is the issue of indifferent remains to be seen.) , legal equality of the races, for which Personally, I don't expect a tremendous we and our ancestors fought so bitter amount of Black leadership from elected ly. Now that Blacks are equal under officials acting otherwise than through the law, isn't affirmative action the congressional Black Caucus. This "reverse" discrimination? Why should is so because the more power a poli we tolerate the continued existence tician has, the more he or she must of all-Black colleges? Indeed, is respond to a variety of interests, and a Miss Black America contest legal? cannot be seen to be bending over back In short , is the cost of integration wards for one over others. This is the loss of Black identity? Black not to say that there is any necessary leaders are going to have to deal conflict between black interests and, with such issues in the 1980's, along say, what's good for the country, but with unemployment and all the other you never know how people will perceive more traditional issues.

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