RUTHFULLY YOURS

Mr. Walpin is the author of the recently published The Supreme Court vs. The Constitution (Significance press 2013)

The Supreme Court has long recognized that “the primary function of government … is to render security to its subjects, [with] any mischief menacing that security demand[ing] a remedy.”  In simple language, that means that our government has the responsibility to imprison those who have committed crimes endangering people, such as murder or rape.  Taking them off the streets saves many innocent persons from being the victim of such crimes because, even as Attorney-General Holder vouched, “[m]ost crimes in America are committed by people who have committed crimes before.”It is logical and human nature that someone who has already committed a rape is more likely to commit another one, particularly after having gotten away without prosecution, than one who has never done so.

            Thus it was not surprising that the Supreme Court, on June 3, 2013, sustained a jury verdict finding the defendant Alonzo King guilty of rape on incontrovertible evidence: The defendant’s DNA had matched the perpetrator’s DNA found in the rape victim.

            What is surprising, and not boding well for future rulings on clearly guilty criminals who should be taken out of circulation, is that the Court vote was only 5-4,

and thus but one vote away from ordering this rapist released back to society to commit another rape on an innocent victim.

            The four dissenters never disputed that King was clearly shown to have performed this 2003 rape after breaking into the woman’s home, armed with a gun, with his face concealed, thus carefully hiding his identity from the victim.  It was unlikely that he would ever have been apprehended and connected to this rape, except that, in 2009, six years later, King was arrested for assault with a shotgun.  As part of the regular Maryland booking procedure for serious offense, along with fingerprinting and photo, his DNA sample was taken by applying a cotton swab to the inside of his cheek.  That DNA was found to match the DNA taken from the 2009 rape victim.

            The 4-Justice dissent would have reversed the rape conviction, and allowed King to go free, because they claimed that swabbing King’s cheek to get a DNA sample was an illegal search, with any evidence learned as a result of that swabbing to be excluded.  Obviously, excluding the DNA evidence meant that King would not be connected to the rape that he committed.

            The Fourth Amendment to the Constitution, on which the dissent purported to rely, prohibits only unreasonable searches.  What is unreasonable about a two second swabbing of the defendant on his arrest?  It certainly is not painful; there is not even an observable residue left in the cheek, as there is from fingerprinting which leaves a difficult-to-wash-off ink residue on the hand, but which the dissent agrees is constitutional on any arrest. 

Excluding such evidence was contrary to the Constitution, according to about 150 years of Supreme Court decisions. Supreme Court Justice Joseph Story, still recognized as the encyclopedia of knowledge on the Constitution, wrote, in an 1822 Court decision, that “the right of using evidence does not depend, nor … has even been supposed to depend, upon the lawfulness or unlawfulness of the mode, by which it is obtained.”  As late as 1904, a unanimous Supreme Court reiterated that, even assuming that evidence may have been “’unlawfully obtained, this is no valid objection to their admissibility if they are pertinent to the issue’” – which the DNA evidence here was.

            I recognize that, later in the 20th Century, a majority of Justices created, out of the blue because nothing in the Constitution required it, the exclusionary rule.  But, even assuming any validity to the exclusionary rule, what societal benefit is found in applying it to allow a rapist to go free?

            Justice Scalia, who surprisingly wrote the dissenting opinion, had, only 15 years before, joined in an opinion which, applying any consistency, should have required him to vote to sustain King’s conviction.  The Court there, with Justice Scalia signing-on, had authorized allegedly illegally seized evidence to be considered against the defendant in a parole revocation proceeding.  The reasoning there applies equally to the use of the evidence against King: “[B]ecause the [exclusionary] rule is prudential rather than constitutionally mandated, we have held it to be applicable only where its … benefits outweigh its substantial social costs.”  Justice

Scalia (and the Court) had no problem in deciding there not to apply the exclusionary rule because “[t]he costs of allowing a parolee to avoid the consequences of his violation are compounded by the fact that parolees … are more likely to commit future criminal offenses than are average citizens.”

            The invasion of the parolee’s home, without authority, was a much more drastic violation of the Fourth Amendment than the two-second swab of King’s cheek, if that was in fact any violation.  Yet, the Court (including Justice Scalia’s supporting vote) refused to bar the evidence obtained in his home.

            Likewise, the Supreme Court had previously ruled that the exclusionary rule would not apply in deportation proceedings, because such “application of the exclusionary rule … would compel the courts to release from custody persons who would then resume their commission of a crime through their continuing, unlawful presence in this country.” 

Can you believe the topsy-turvy reasoning of the dissent?  The exclusionary rule should not be applied to an illegal alien (who may have committed no crime other than being an illegal alien) because it would not be good for society, but it should be applied to a rapist, who would more likely endanger innocent Americans!  That makes no sense.  We should all be pleased that five Justices retained their common sense and allowed this rapist to remain behind bars.

The Supreme Court vs. The Constitution: You don’t have to be a lawyer to understand how Supreme Court Justices… by Gerald Walpin (Apr 29, 2013)