Is Official Misconduct Rare? / Supreme Court News

First off, we are trying something new. Each week, we plan on sending out with one of our posts a list of all Supreme Court cases that were granted in the past week, as well as each one that is set for arguments sometime that week. While we don’t have a synopsis of what the case is about (yet), we can at least let you know if a case you had been monitoring has been granted cert or has been argued before the court.

The following cases involve criminal cases that have been granted review by the Supreme Court and have not already been heard. Some of the cases have an argument date set and some have not. The ones currently pending (with the exception of one heard this week already) are:

*Herrera v. Wyoming; Granted: 6/28/18; Arguments: 1/8/19
*Gamble v. United States; Granted: 6/28/18; Arguments: 12/6/18
*United States v. Haymond; Granted: 10/26/18; Arguments: To be determined
*Mont v. United States; Granted: 11/2/18; Arguments: To be determined
*Flowers v. Mississippi; Granted: 11/2/18′ Arguments: To be determined

Also, if any new opinions involving the following cases are issued, we will post the outcome as soon as possible:
*United States v. Stitt/United States v. Sims (Combined); Granted: 4/23/18; Arguments held: 10/9/18
*Carpenter, Interim Warden v. Murphy; Granted: 5/21/18 (Justice GORSICH did not participate); Arguments held: 11/27/18
*Stokeling v. United States; Granted: 4/2/18; Arguments held: 10/9/18
*Gundy v. United States; Granted: 3/5/18; Arguments held: 10/2/18

Until then, enjoy this week’s article.
The recent revelation that judicial committees are shelving all but a few token complaints of misconduct (while not surprising) raises serious questions about the conduct of officials involved in the justice system. Apologists for police, prosecutors, et al like to say that instances of misconduct are rare, but is this actually true? Or do the problems reported with the federal judiciary’s refusal to investigate complaints reflect a wider malady?

There is significant evidence that abuse of authority among law enforcement is distressingly common. For example, police routinely conduct warrantless, and indeed suspicionless, search and seizures today that would have appalled the Founders in both numbers and scope. Even apologists grudgingly admit that officers use these searches for harassment and racist ends (FN1); and simply make up reasons why they search after the fact (FN2). And, even under the best case numbers that departments themselves provide, well over 90% of those they target are blameless (FN3). Police now even admit they pull people over for no reason, hoping they have warrants (FN4).

As if harassing the obviously innocent was not enough, police routinely rely on “informants” of dubious reliability, many of whom are themselves looking at significant prison time if they do not give enough information on other crimes, real or imagined. Police openly brag about lying to suspects and witnesses (FN5) to help get confessions or incriminating evidence, though this has been known to lead to erroneous results for decades. Even once investigatory and evidentiary techniques are shown to be unreliable, officers defend their continued use (FN6).

Once this gets into Court, prosecutors fight tooth and nail to defend these illegitimate practices and keep the unreliable evidence in Court. Despite taking an oath to uphold the Constitution, prosecutors consistently argue for new and imaginative reasons to allow illegally obtained evidence. And, at the same time, they argue for the exclusion of evidence and witnesses directly relevant to innocence (FN7).

When it is questionable whether the defendant actually committed a crime, prosecutors have no issue engaging in “creative charging”, a practice just now getting criticism from the Courts. And, in cases where it is difficult to prove intent, or where it is absent-such as statutory rape and many drug crimes-prosecutors argue for removal or weakening of such elements. Deliberately overcharging of defendants is common and, for those who do not immediately knuckle under, they are punished with more severe charges meant to dissuade them from further exercise (FN8). Sadly though illegal, such punishment or “dissuading” of use of rights is common (FN9).

These are just the things law enforcement openly celebrates and defends. It does not include perjury, tampering with evidence, lying to the public about public dangers and more. If this is the smiley face public version, the version our civil servants are proud of, one need not go into the criticism of the system. This is a system which daily disregards the rights of its citizens and subordinates all interests to winning, even where winning is not justice. It becomes impossible to look at these declarations and believe that misconduct is rare. It is a daily part of the system.

*FN1: Terry v. Ohio, 392 US 1, 14 & n11 (1968)
*FN2: Whren v. United States, 517 US 806, 813 (1996)
*FN3: Michigan State Police v. Sitz, 496 US 444, 454-55 (2000); United States v. Martinez-Fuerte, 428 US 543, 554 (1976)
*FN4: Utah v. Strieff, 195 L.Ed.2d 400, 416 (2016)
*FN5: Oregon v. Mathiason, 429 US 492 (1977)
*FN6: Burns v. Reed, 500 US 478 (1991)(hypnotism)
*FN7: Taylor v. Illinois, 484 US 400 (1988)
*FN8: Bordenkircher v. Hayes, 434 US 357, 367, 371 (1978)
*FN9: North Carolina v. Pearce, 395 US 711, 725 & n20 (1969)

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