08 September 2008

Fourth amendment doesn't mean what it says.

We have a trial for a couple guys accused of serial shootings around the area getting underway. The (very) short version of the story is that the two are accused of several apparently random attacks over the course of 15 months, resulting in six deaths and 20-30 injuries.

But here is what has my dander up tonight. Potential Jurors have been instructed to complete a 56 item questionnaire .

Question 18 has me concerned (emphasis mine):
18. An emergency wiretap was used in this case, and recordings from this wiretap will be admitted into evidence at this trial. A wiretap may be authorized by a Judge, or under certain circumstances the County Attorney may authorize the interception.

Do you have any opinion regarding this procedure? YES____ NO____
Now I'm no lawyer which means I simply have to read the words and make sense of them. Like these here from the Fourth Amendment to the Constitution:
Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Now it only says the warrant must be supported by oath or affirmation, but does not say who judges the request. But if this isn't the job for a Judge, what is? Under what reasonable justification could a politician who arguably has an interest in the outcome be reasonably unbiased in judging the request? Talk about the fox guarding the hen house! Yea, they probably wrote the due process law to allow a County Attorney emergency authority which *wink-wink* makes it legal. How can such authority be constitutional?

And it's not like the request couldn't have been presented before a judge. These cowards were at it for over a year. They weren't running for the border. Past news stories have proudly announced local judges are apparently available 24 hours a day in case a DUI suspect comes in and declines to give a blood sample. (Police call a judge who signs an order and they collect their evidence). The whole thing reeks of a rubber stamp operation. But this was a big case. What Judge wouldn't be proud to wake up in the wee hours to sign the warrant that'll break the big case? Are they really going to argue emergency circumstances prevented timely presentation in front of a judge?

So why didn't he take advantage of the rubber stamp in this case? My guess, they didn't have enough, you know evidence, for even this low standard.

Don't get me wrong. I believe these guys did at least some of what they are accused of and should never again walk among the free. But the prosecutor's tactics should scare us all. We've all seen what happens when unaccountable petty tyrants get an expansive power like this. My biggest fear is that the case will eventually be thrown out by the CA's shortcut, putting these cowardly predators back on the street.

Disclaimer: I have absolutely no inside information on the case. This account may be factually incorrect. In My Opinion!


AnarchAngel said...

Some states allow "officers of the court" in certain elected positions the effective power of magistrate. This could include a county attorney.

It's legal, and under most interpretations thus far, constitutional; but it's certainly ethically questionable.

The supreme court has presented a standard for conflict of interest that in part reads: "to prevent impropriety or the appearance of impropriety".

Clearly, the county attorney is an interested party. By allowing the county attorney to sign off on a warrant, they are depending on the legal doctrine of the disinterested arbiter; which is the assumption that judges, prosecutors, and other officers of the court, have a higher duty to justice than to winning, and therefore can be trusted to be impartial and fair.

That said, the law does recognize that prosecutors are human. It also recognizes that in all states but Louisiana (which operates under napoleonic code), we have an oppositional advocate system; therefore one cannot both be impartial, and do ones duty for ones client (in this case the state).

It's likely that were it challenged properly, a federal appeals court would find a warrant signed by an interested party to be invalid.

Anonymous said...

Do you have an opinion? What kind of question is that?

Everyone has an opinion about everything. It's pretty much impossible not to.

Did I have an opinion on the subject coming in or do I have an opinion now based solely upon the information you just provided?

Does my having an opinion preclude me from making and informed, unbiased decision as to whether the procedure followed in THIS PARTICULAR CASE was proper or not?

Our judicial system has issues. They don't want thinking human beings on juries, they want good little government bots that will meekly support any manner of infringement of rights.