Law Enforcement, Race and the Gun Culture – Part IX and Conclusion

This is the tenth part in this series, if you count the Discussion post. I recommend that you read or re-read the earlier posts.

Part I is here, Part II is here, Part III is here, the Discussion is here, Part IV is here, Part V is here, Part VI is here, Part VII is here and Part VIII is here:

In Part VIII, I concluded by setting forth the Review of Gerald Walpin’s book by RUTHEE as it appears on the Amazon website.

I now set forth my response as it also appears on that website:

It has been fourteen months since I wrote my negative review of “The Supreme Court vs. The Constitution”, which sparked a lively debate with the author, though now that I return to the Amazon page for this book, I see that all the reviews but mine, have not only been positive, but have been on the rave side.

I wonder why this is? I suggest that that in our hyper-partisan age, it is unlikely that anyone with a view that would not agree with the premise of the book is unlikely to read it. I am the exception.

RUTHEE, whoever that is, since he/she/it does not care to use her real name, came to the book with an obvious pre-disposition to agree with it, and I must say that there are things in the book, that I too, agree with.

But before I get to that I want to comment on RUTHEE’s review.

Ruthee starts out by complaining that while the Constitution is “America's most important document…few have read it” and then demonstrates an ignorance of the Constitution that clearly shows that RUTHEE hasn’t read it either.

How else can one explain the absurd comment that “the primary function of government…is to render security to its subjects? And any mischief menacing that security demands a remedy commensurate with the evil.”

I hope that isn’t a quote from Walpin’s book for it would not reflect well on Walpin’s knowledge of the Constitution.

First of all it is only in a monarchy or a dictatorship that the relationship of the people to their government is that of “subjects”. In a Democracy the people are citizens, not subjects.

Secondly, where did he get the idea that the primary function of government “is to render security to its subjects”? Certainly not from the Constitution, for the Constitution in its preamble states that:

...in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…

Now if Ruthee, and possibly Walpin, had actually read the Constitution, they would have found that the founders did not consider the primary task of government to be “security to its subjects” but rather to “establish Justice” and it should be noted that the founders even chose to capitalize “Justice”. To do Justice, the founders tell us, is the first function.

Now I find no reason why Walpin (if he in fact wrote what RUTHEE claims he did) or RUTHEE, cannot disagree with the founders; they were not Gods. But to claim that this is what the Constitution provides is either ignorance, or deliberate misrepresentation.

RUTHEE then goes on to select as the most outrageous decision of the Supreme Court, Miranda v. Arizona Supreme Court. Now, I happen to agree that this decision was misplaced in interpreting the 5^th amendment, but wouldn’t it be nice if RUTHEE had bothered to quote the relevant portion of the Constitution in criticizing the courts interpretation of it. Or is the language of the Constitution of no consequence in RUTHEE’s mind, and only the result is what counts. Has RUTHEE really ever read the Constitution?

The relevant portion of the Fifth Amendment reads:

…nor shall (any person) be compelled in any criminal case to be a witness against himself, …

This is a very short and concise statement. It, like most provisions of the Constitution, is subject to different interpretations.

We could, for instance, make a case that it means only that torture may not be used to coerce confessions, or other forms of evidence that might be harmful to the defendant, but that, a refusal to testify may be used by a jury as evidence of guilt.

But on this point the Supreme Court as early as 1893, in Wilson v. U S, 149 U.S. 60 said: “… clearly recognize their constitutional privilege, … their neglect or refusal to testify shall not create any presumption against them.”

Now if there is a constitutional right to be silent, is it such a huge step to insist that a defendant in police custody must be told of this right. Certainly, we can disagree with this conclusion, as at least three judges did, but is it such a clear deviation from the Constitution as to provoke outrage.

Now RUTHEE goes on to say: “Failure to adhere to this (giving the Miranda warning) will result in dismissal of the case even against hardened and dangerous criminals.” But this is patently untrue! Failure to give the Miranda warnings will, under the Supreme Court decision, make the confession inadmissible, not lead to dismissal of the case.

RUTHEE then goes on to quote Justice O’Connor: “The failure of police to administer Miranda warnings does not mean that the statements received have actually been coerced…” No, but neither does it proof that they have not been coerced, and when a person’s liberty is at stake, shouldn’t the proof have to be that they were not coerced?

Justice O’Connor is also quoted as saying, ”when the admission is not coerced… (it is) highly probative evidence”. Did Justice O’Connor base this on evidence? Was there a record before the court to support this assertion? Isn’t that what courts, and particular Supreme Court Justices, are supposed to do? Base their opinions on evidence?

So let us look at the evidence! The non-partisan Innocence Project uses DNA evidence to determine a person’s guilt. On this basis they have proven to the satisfaction of American Courts that 324 people were wrongfully convicted, and that in 27% of those cases “False confessions and incriminating statements lead to wrongful convictions”. What does that say about O’Connor’s comment about confessions being “highly probative”, or for that matter about RUTHEE’s or Walpin’s approving quote of O’Connor. See here.

One of the foundations of American jurisprudence, as most lawyers know, is Blackstone’s Commentaries on the Laws of England, published in the 1760s. In it he puts forth the principle: "It is better that ten guilty persons escape than that one innocent suffer". Apparently, Walpin, RUTHEE, and O’Connor have lost sight of this principle, which finds its genesis even in the bible:

“Abraham drew near, and said, "Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it? ... What if ten are found there?" He [The Lord] said, "I will not destroy it for the ten's sake." (Genesis 18:23-32)

Aside from the damning statistics of the Innocence project, has RUTHEE paid any attention to the tragic story of the Central Park 5? The newspapers trumpeted the glory of their convictions on the basis of their confessions, supposedly freely given and with the Miranda warnings. But the confessions were false. Clearly, the Miranda warnings don’t go far enough!!! I urge anyone who cares, to read the story in New York Magazine, “Central Park Revisited.” 

There is something wrong with a society that incarcerates more people per capita than any other Democratic state, by far.

I urge the reader to look at this graph.

Sadly, this graph doesn’t tell the whole story. According to Wikipedia’s “List of countries by incarceration rate" the US has the highest incarceration rate of any country in the world except for Seychelles, and North Korea. It, by far, exceeds China, Cuba and Russia.

Yes, maybe we can all agree that the Supreme Court has become too powerful and that rulings that drastically limit or overrule previous decisions, or lower court decisions, may not be made by a bare majority of 5-4.

But allow me to point out that in the Miranda decision the majority five were not all appointed by Presidents of one party. Two, Warren and Brennan, were appointed by Eisenhower, Republican, and among the dissenters one, White was appointed by Kennedy (Democrat). Contrast that with today’s decisions where the Supreme Court Justices break consistently along the lines of whether they were appointed by Republican or Democratic Presidents. In other words the Court has become completely politicized.

Just how politicized can be garnered best by the completely partisan decision of Bush v. Gore. The Justices in the majority were Rehnquist, Kennedy, O'Connor and Scalia, appointed by Reagan, Thomas, appointed by Bush, G. H.W. Republican Presidents appointed all of them.

Dissenting were Souter appointed by Bush, G. H.W, Stevens appointed by Ford, and Breyer and Ginsburg appointed by Clinton. Thus this majority of Justices that came to their posts through Republican Presidents, chose the next President of the US to be, guess what, a Republican.

They did this in a decision that they declared would have no precedential effect and went against all precedents (stare decisis) in substituting its interpretation of Florida laws for that of the highest state court. For an in depth discussion of the decision see Alan Dershowitz's “Supreme Injustice” and other books on the subject.

Ever since we have seen this partisan divide on the court, only worse, and when that divide is consistently 5 to 4 along party lines, we have good reason to put an end to such 5 to 4 decisions, which take the court out of evenhanded justice and into political partisanship.

That this is not good for the nation is something we should be able to agree upon.

And so I once again I ride into the night. For the foreseeable future there will be no new posts, while I devote my time to writing my memoirs.

However, if there should be any:

Comments, questions, or corrections they are welcome, and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified. However, please give your full name and the town and state in which you reside or have an office.

Law Enforcement, Race and the Gun Culture – Part VIII

This is the ninth part in this series, if you count the Discussion post. I recommend that you read or re-read the earlier posts.

Part I is here, Part II is here, Part III is here, the Discussion is here, Part IV is here, Part V is here, Part VI is here and Part VII is here.

In Part VII, I focused on the excessive prison population, resulting from ever-longer sentences, the huge number of people, particularly of color, caught up in the drug wars, and both the human and financial costs resulting therefrom.

In earlier posts, I spent a great deal of my focus, on the denial of the right to trial by jury, a proper defense and the criminal behavior of many prosecuting offices in withholding exculpatory evidence. I spent relatively little time on the Supreme Court as a major miscreant in denying the accused a fair trial and in allowing proper remedies against the abuse of the criminal justice system.

I did mention the Supreme Court decision in CONNICK, DISTRICT ATTORNEY, ET AL. v. THOMPSON where the innocent defendant was convicted of murder and spent 14 years on death row as a result of the DA’s office withholding a crime lab report that exonerated him. A jury awarded one million dollars to the defendant (I million for each year served) but SCOTUS by the usual 5-4 vote decided that the 14 years wrongfully incarcerated entitled the victim to zilch. -0- Nothing.

And that is where the problem begins but doesn't end. There is good reason why the founders wrote in the 5^th amendment:

…nor shall be compelled in any criminal case to be a witness against himself...

so as to prevent coerced confessions. But the amendment has been distorted to keep miscreants (particularly white collar affluent ones) from having to answer questions in court or even before investigative bodies. To be sure the danger of being held in contempt is, in a sense, a means to force an accused into answering questions under threat of contempt of court. But is that what the founders had in mind? Or did they try to prevent the use of the 3^rd degree, whether physical or mental, to extract confessions. I suggest the latter. But it is the latter that is so frequently used to extract confessions, and it is the latter that the courts have allowed, even though it has been shown again and again that such confessions are unreliable.

Thus the Innocence Project has found:

...in about 30% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty.

These cases show that confessions are not always prompted by internal knowledge or actual guilt, but are sometimes motivated by external influences.

Since DNA evidence is more often than not available to prove the innocence of the convicted, it may be assumed that the number of innocent in our jails or on death row is much higher than 30%.

It is for that reason that the SCOTUS instituted the Miranda rule, which I suggest is entirely inadequate to prevent the large number of cases that result in convictions of the innocent from false confessions.

Thus what prompted me to address this issue came through a rather circuitous route. I refer the reader to my blog posts of October and November of 2013 entitled "The Supreme Court vs. the Constitution," "The Supreme Court vs. the Constitution (Discussion),"

and "The Supreme Court vs. the Constitution(Addendum)," where I reproduced a discussion of a book by that name by one Gerald Walpin, which resulted from my negative review of Walpin’s book, his response, and my reply, all of which can be found on the Amazon website (See here).

Fourteen months later, out of curiosity, I returned to the Amazon website to see what other reviews had been posted and found one written under the pseudonym RUTHEE, which among other things attacked the Supreme Court, not for the Gore decision, or the United decision, or the many other recent decisions of the court that ignored precedent and made decisions for blatantly political reasons, but for instituting the Miranda rule in 1966. See Miranda v. Arizona.

Allow me to share RUTHEE’s review with you here, and I will share my response, as it appears on the Amazon website, in my next post.

Both liberals and conservatives promote their ideologies by evoking America's most important document. (sic) the Constitution, but very few have read it, understand its intent and its impact on American civil life.

Gerald Walpin comes to the rescue with this indispensable book. In “The Supreme Court vs. The Constitution,” in elegant prose coupled with meticulous research, he demonstrates how justices have based critical decisions on politics and a desire to implement a particular agenda. In his own words: “You don’t have to be a lawyer to understand how Supreme court Justices have substituted their own elitist vision for constitutional guarantees that protect the average American’s security and values.”

One particular egregious example is the passage of the Miranda law. How many times have we seen a movie or a column on a criminal being told his “Miranda rights?” Have you wondered why violent criminals have these rights which exclude confessions from admissible evidence?

Gerald Walpin reminds us “…the primary function of government…is to render security to its subjects. And any mischief menacing that security demands a remedy commensurate with the evil.”

Until the Miranda Law, the Supreme Court held that a confession obtained while the defendant was in custody was admissible, without any specific required procedures, as long as evidence showed that it was freely given and not induced by fear or threats.

Nonetheless, in 1966 five justices, outvoted four colleagues, and in Miranda v. Arizona Supreme Court, ruled that persons in custody must, prior to interrogation, be clearly informed they have the right to remain silent, and that anything the person says will be used against that person in court. Failure to adhere to this will result in dismissal of the case even against hardened and dangerous criminals.

Gerald Walpin demonstrates how the law and its practice violates the intent of the Constitution and quotes Justice Sandra Day O'Connor, dissenting almost two decades later in 1985: “The failure of police to administer Miranda warnings does not mean that the statements received have actually been coerced’ and ”when the admission is not coerced, little justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievable lost to the fact finder.”

This is one of the many gems in this book. There are many, many more.

Mr. Walpin has written many excellent columns on the debates in our judicial system- on Race and the Law and the Supreme Court, the misuse of the 14th Amendment to foster illegal immigration, New York's "stop and frisk" decision, NSA surveillance, to name a few.

The Supreme Court vs,(sic) The Constitution makes the debate about original intent and practice intelligible for non lawyers. It is highly recommended.

Comments, questions, or corrections are welcome, and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified. However, please give your full name and the town and state in which you reside or have an office.