Prosecutors And The “Technicalities” That Set Criminals Free

By: Daniel E. Bonilla | Posted: 14th January 2011

Note: this is the second part in a three-part series on the criminal justice system. See part one: “Criminal Defense Attorneys And The People They Really Protect”; part three: “Prosecution v. Defense And The Constitution That Binds Them.”

I am sure at some point or another you have all heard stories of some murderer or pedophile going free because of a “technicality.” And, I bet most, if not all of you, were flat out disgusted or angered by it. Honestly, I feel the same way. The difference with my view and the view of other commentators or individuals that I have discussed such matters with is that my anger is not always directed at the defense attorney. Rather, my concerns lie with law enforcement and the “unreasonable” mistakes they sometimes make that result in criminals going free and recommitting offenses.

Law enforcement personnel do not have easy jobs, by any means. Police officers and other agents make difficult and time-sensitive decisions on a daily basis; decisions that most of us would never want to make. For these reasons, we often sympathize with officers when split second decisions turn out to be “wrong” decisions. More importantly, the courts also take into consideration that officers make sensitive judgment calls, which often involve many different factors. The Supreme Court of the United States has given great deference to officers and the “reasonable” mistakes they occasionally make. This is probably not commonly known by the general public so, on a side note, most of the “technicality” hypotheticals that are floating around in casual discourse would actually not result in anyone going free.

On the other hand, there are some unnecessary mistakes that officers have made that are not reasonable and do result in bad guys walking. Back in 1961, Justice Clark stated that “[t]he criminal goes free, if he must, but it is the law that sets him free.” (see Mapp v. Ohio (1961)). The “law” derives from the Constitution of the United States, which governs the very fabric of our civilized nation. Thus, it is imperative that casual observers understand that it is the Constitution that sets a criminal free, not just some “technicality.” Laws are in place to be followed, to govern people, and to check the amount of power given to different entities. If law enforcement need not follow the laws, then what would that say about the amount of freedom or the rights that we have as a people?

Unfortunately, prosecutors, the law enforcement community, and the people they protect tend to be the ultimate victims of an officer’s “unreasonable” mistake. Granted, prosecutors also make mistakes of their own, however, these mistakes occur less frequently. To demonstrate some of these occurrences, the following cases illustrate examples of unconstitutional practices that were saved by judicial doctrines and others that were not saved but could have been avoided.

The concept of “reasonable” mistakes derives from the case U.S. v. Leon (1984). In Leon, an officer obtained a search warrant from a judge and then acting pursuant to said warrant, the officer seized a large amount of drugs in defendant’s home. The problem was that there was not adequate probable cause for the warrant in the first place. Thus, the warrant should have never been issued. The Court, however, declined to apply the exclusionary rule (the rule that excludes illegally seized evidence from trial), and instead created a “reasonable, good faith reliance” exception to the rule. Emphasizing the lack of deterrence to officer misconduct in the situation, the Court held the evidence admissible. The Court reasoned that the officer acted pursuant to what he perceived to be a valid warrant and therefore should not be penalized because of an error the judge should have noticed.

In the same year as Leon, the Court decided Nix v. Williams (1984), which initially (in a previous trial) involved a violation of defendant’s Sixth Amendment right to counsel. Basically, defendant was arrested for the murder of a ten-year-old girl whose body was still yet to be found. After being arraigned and obtaining counsel, defendant was transported to another town by two police officers. Despite specific instructions by both of defendant’s attorneys, the officers struck up a conversation with defendant that resulted in him taking them to the body’s location. In the first trial, the Court held that all evidence related to the discovery was inadmissible because the officer violated defendant’s Sixth Amendment rights. In the second trial, the Court ruled that evidence concerning the body’s location and composition was admissible. The Court relied on the inevitable discovery exception to the exclusionary rule, which posits that evidence obtained, even tho initially tainted, is admissible if the government could prove it would have been found through legitimate independent means without the usage of tainted information. In this case, a search party was closing in on the area around the same time that defendant gave incriminating information.

In some cases, however, there are no exceptions for officer misconduct. For example, in People v. Lopez (2008), the Supreme Court of Arizona held that officers violated defendant’s Fourth and Fifth Amendment rights. In 1998, officers responding to a burglary report found a victim in the apartment that “had been stabbed numerous times and his arms, legs, and head were bound with duct tape.” After defendant’s name was connected to the murder, officers went to his home and took him to the police station for questioning. Defendant, who was fifteen-years-old at the time, was then placed in an interrogation room for several hours and was not told that he could leave if he wanted to or walk around freely. Instead, he was left in the room with instructions to knock if he needed assistance and was under the impression that the door was locked. Ultimately, he gave an oral and written confession to the crime.

The Court first found that defendant was unreasonably seized under the Fourth Amendment since a “reasonable juvenile in defendant’s position would [not] have felt free to leave the police station.” (see U.S. v. Mendenhall (1980), holding that an individual is seized if a reasonable person would not feel he/she was free to leave). The Court then held that the officers violated defendant’s Fifth Amendment right against self-incrimination. During defendant’s stay in the interrogation room, officers told him that an accomplice implicated him and then asked if he was involved in the murder without having first given him Miranda warnings. After defendant orally confessed, officers gave him the Miranda warnings and then ended the questioning. Subsequently, an assistant State Attorney, in the presence of defendant’s father, gave him Miranda warnings and obtained a written confession. Relying on Missouri v. Seibert (2004), the Supreme Court of Arizona held that in light of all the relevant factors, it could not be found that a “reasonable juvenile in defendant’s position would have understood that he had a genuine choice about whether to continue talking to the police.” Thus, both confessions were inadmissible.

Ultimately, the court vacated his conviction and remanded for a new trial. I do not know what occurred in the second trial, but the mistakes made in the first trial could have easily been avoided. I understand that officers walk a fine line between trying to inform a suspect of his/her rights while also trying to keep that suspect from seeking counsel so that officers can get a confession. In this case, the problem was that officers did not inform the suspect with enough information. If the officers were not comfortable telling defendant he could leave at any point, they should have at least stated that he was free to use the bathroom, or free to walk to a vending machine, or even free to open the interrogation room’s door and walk to an officer’s desk for assistance. With regard to the confessions, the officers should have simply given Miranda warnings before asking if he was involved. Instead, they failed to do so and the confession was automatically considered inadmissible. That alone, however, does not guarantee that a subsequent confession will still be inadmissible. As Justice Kennedy’s concurrence in Seibert noted, courts should look for bad faith on the officer’s part and any curative measures that may have been taken. Here, officers could have told defendant that his previous oral confession could not have been used against him and that the questioning after the initial confession was not a continuation of the first. Such measures, in conjunction with a new set of Miranda warnings, may have been sufficient to remove the illegal taint from the initial confession and allow the second confession to be admissible. Thus, had the officers exercised a little more caution, the confessions may have been admissible and there would have been no need for a second trial.

The Supreme Court of California provided another example of an “unreasonable” mistake in People v Willis (2002). In 1996, officers received a tip about narcotics transactions possibly occurring in a motel room that was registered to defendant. An officer then ran a search on defendant’s name and learned he had “several arrests and/or convictions,” he was required to register as a sex offender, and was on parole. The officer then spoke with a state parole officer who instructed the officer to make a “parole search” of the room. Officers then went to the room and announced that they were conducting a parole search. Defendant informed the officers that he had been discharged from parole nine months earlier and even produced a certificate of discharge. While defendant and an officer stepped out to verify this, another officer noted that defendant’s guest appeared under the influence, at which point she admitted she was and stated that a briefcase in the room contained paraphernalia. The officer then told her he had enough information to obtain a warrant but asked if she would consent to “save us the time and trouble of” getting said warrant. She consented and then the officer broke open the briefcase and found “narcotics, syringes, spoons and a set of scales.”

The court began by explaining that the parole officer acted as a “rubber stamp” when she did nothing more than simply read the same parole list the police officer relied upon to erroneously confirm defendant was on parole. Further, the court noted that either officer should have checked other areas (e.g. defendant’s case file) before visiting defendant’s room. Thus, there was enough room for the court to conclude that this kind of negligent conduct could be deterred and therefore is not a reasonable mistake under Leon and its progeny. Alternatively, even though a clerk made the parole list mistake, the court held that these clerks were aligned closely enough with law enforcement that the same rationale applies to them. The Supreme Court of California reversed the conviction and defendant was released in 2002 (while appealing, defendant was serving prison time under his 26 year trial court conviction). Ultimately, defendant served only six out of those 26 years.

Officers here should have done more than just rely upon one parole list. More pointedly, the parole officer should have done more than literally just re-read what the officer had already read. A quick glance at the defendant’s file or on another database supplied by the state would have revealed that defendant was no longer on parole. At that point, officers could have begun surveilling the area or talking to neighbors, etc. to build upon the tip they received and establish enough probable cause to obtain a valid search warrant. This would have led to a lawful seizure of the contraband and a valid conviction.

I understand that hindsight is 20/20. The truth is we all make mistakes; it is part of human nature and our fallibility. Some mistakes though are more important than others, and some mistakes result in greater harm. Regardless of whether you call them unreasonable mistakes, technicalities, or constitutional violations, the fact is that when they occur criminals may go free. And, when overlooked, rights may be infringed. When the stakes are this high, reasonableness, at the very minimum, should prevail.

- Daniel E. Bonilla
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