Thursday, January 15, 2009

Something Bad Is Happening

Something very Bad is happening.

Maybe there is something lunar going on. Just too much is too weird for this all to be ok.

The Zipper Factory Theater closed suddenly, and without warning. Such a good space with good adventurous shows. Very sad.

For Round Two: the U.S. Supreme Court has dealt a dirty blow to due process, by cutting off the Exclusionary Rule, which protects against unreasonable search and seizure, at the knees. An odd addendum here is that the first article I saw on this in the Times was by David Stout and had a very glib tone - making it seem that this ruling was a-ok if you prefer not to see the bad guys get off on technicalities. But then on Thursday the Times had this article, by Adam Liptak, which is much better and more circumspect, and looks into the ramifications more. And - this is the weird part - that first article is now nowhere to be found. I'll print it at the bottom of this entry, because I think it's important to acknowledge these sorts of media events, especially in publications as influential as the Times. Not to be all conspiracy theory about it, but - what do you suppose is going on there?

No matter how you slice it, the ruling is bad news. And the fact that it's not being treated as BIG news is a little scary.

Next, we have the Metropolitan Opera facing huge cuts. Check out some of the specifics there: their endowment has dropped by a third, to the tune of $100 million dollars. That's 100 million dollars less than they had a couple years ago. This kind of detail is what causes me to go nuts at the notion of it being some big 'victory' when NEA funding increases by 20 or 50 million bucks. It's just not to scale with the problems, and shows that the arts are literally devalued. Or, if you prefer, undervalued. In any case, it seems to me that our policy-makers are missing the point in a fundamental, not incremental, way.

It's an old and well-worn point, but by way of comparison, bear in mind that NEA budget was $144.4 million in 2008 (and the Bush administration even tried to cut that); and the budget for U.S. Military Bands was $168 million - in 1997. They stopped releasing those numbers (as people started noticing things like this?), but I'm going to go out on a limb and guess that they haven't gone down.

And then - why should those things be enough? - a plane crashes in the Hudson River.

What the heck is going on, people?

But there was a seriously sunny side in the fact that no one died or was even too badly hurt in that crash. SO - soon I'll be posting an entry with some things that feel more like good news.

Meanwhile, here's that first article I saw about Wednesday's Supreme Court Ruling, which appears to have been pulled by the Times.


Published: January 14, 2009

WASHINGTON — The Supreme Court on Wednesday upheld the conviction of an Alabama man on drug and weapons charges, emphasizing that the exclusionary rule, which generally bars prosecutors from using evidence obtained by the police through improper searches, is far from absolute.

In a 5-to-4 opinion, the court upheld the federal conviction of Bennie Dean Herring, who from the court records appears to have been very unlucky as well as felonious in his conduct. In upholding the conviction, the court’s majority came to a conclusion that will most likely please those who complain about criminals going free on “technicalities” and alarm those who fear that the high court is looking for ways to narrow the reach of the exclusionary rule.

Mr. Herring had gone to the Coffee County, Ala., sheriff’s department on July 7, 2004, to retrieve something from his truck, which had been impounded. “Herring was no stranger to law enforcement,” as Chief Justice John G. Roberts Jr. observed dryly in his opinion for the court.

And he was no stranger to Mark Anderson, an investigator for the sheriff’s department, who asked a Coffee County clerk if there were any outstanding warrants for Mr. Herring.

No, Mr. Anderson was told. So he asked the clerk to check with her counterpart in neighboring Dale County, who turned up a warrant against Mr. Herring for failing to appear in court on a felony charge.

Mr. Anderson and a deputy following Mr. Herring as he left the impound lot pulled him over and arrested him. A search turned up methamphetamine in his pocket and a pistol, which Mr. Herring could not legally possess because of an earlier felony conviction, in his truck.

Within minutes, however, the Dale County clerk discovered that the warrant against Mr. Herring had been withdrawn five months earlier and had been left in the computer system by mistake. The clerk immediately called Mr. Anderson, but Mr. Herring had already been taken into custody.

Was Mr. Herring entitled to go free because the officers lacked probable cause and there was no dispute that both the arrest and subsequent search were unconstitutional under the Fourth Amendment? No, the Supreme Court ruled.

“When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply,” Chief Justice Roberts wrote in an opinion joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

“We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule,” the majority noted. But the justices said the official errors in the Herring case do not compare with the kind of egregious and deliberate police misconduct that gave rise to the exclusionary rule in the first place.

Deciding when to throw out evidence under the exclusionary rule is a balancing act, the majority said. Is the official misconduct serious enough that the evidence should be disallowed to deter future misconduct, even if criminals sometimes go free?

Not in Mr. Herring’s case, the majority ruled, upholding findings by a federal district court and the United States Court of Appeals for the 11th Circuit.

Justices Ruth Bader Ginsburg, John Paul Stevens, David H. Souter and Stephen G. Breyer dissented. “In my view, the court’s opinion underestimates the need for a forceful exclusionary rule and the gravity of recordkeeping errors in the law enforcement,” Justice Ginsburg wrote.

But in the majority opinion, the chief justice wrote that the exclusionary rule “is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty
and possibly dangerous defendants go free.”

At another point, Chief Justice Roberts wrote that “the very phrase ‘probable cause’ confirms that the Fourth Amendment does not demand all possible precision.”

The dissenters were unpersuaded, however. “Negligent recordkeeping errors by law enforcement threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means,” Justice Ginsburg wrote.

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