Habeus Wrongus

As a defuncted professional of the legal sort, I often hear stuff on the TeeVee that bothers me. It’s not like they get the doctrine of laches wrong, or can’t differentiate between strict liability and negligence. It’s specific things, like significant case law, that is often enough unreasonably wrong enough to wonder why whoever was scripting the teleplay couldn’t simply Google the precept before quoting it.

For reasons that you don’t need to know about, I was watching a DVR’ed episode of The Client List. Yes, yes, it’s the very campy Lifetime show with that big-boobed lady from The Ghost Whisperer. So what? Wanna make something of it? Didn’t think so. Well, in this episode, there’s a scene where a secondary character is studying criminal justice concepts with his police department cadet buddies and a question comes up. To paraphrase, because I can be bothered to rewind and get the exact text, the character asks something to the effect of what case law is cited in the concept of “fruit of the poisonous tree”. The concept, for those of you who have not yet seen all 20 seasons of Law and Order, surrounds the inadmissibility of evidence in a criminal matter if the evidence was obtained by violating the subject’s Fourth Amendment rights.

The Fourth Amendment goes a little like this:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

So, to put this in context, a policeman, or other agent of the government, can’t bust down your door to look for your stash of whatever without a search warrant, which you most certainly have heard of through popular media, and such search warrant can only be obtained through judicial authority, by practice, by the investigating authority providing a reasonable indication that there’s a reason to search for a particular thing or things in a particular place. Despite what you may see on the Boob Tube, it’s not so easy to get a search warrant.

So, if the police do SWAT your door in without probable cause and without a warrant, whatever they find can’t be admitted as evidence against you in court, because it violates the Fourth Amendment. Of the Constitution. Of the United States of America.

The “fruit of the poisonous tree” doctrine applies to evidence that is obtained as a result of an illegal search. In the warrantless entry example above, if the police don’t manage to locate your stash at your crib, but do find the keys to your car and thereafter search it, finding your stuff there, that evidence is likewise inadmissable because the initial search was illegal, so by extension, the subsequently discovered evidence is also inadmissable. There are exceptions, but you can go look that up for yourself.

It’s a pretty important concept, sort of a get-out-of-jail free card for those accused of a crime as a result of evidence improperly obtained. And that’s the way it should be, since it’s literally the Law of the Land. Now, that law has been adapted and annotated over time to be more specific and particular through the mode of what’s called case law. This means that a trial or most usually, an appeal, is brought on a matter of law and that decision is then incorporated in the the arguments of lawyers trying those kinds of cases and judicial consideration in the rendering of decisions in similar cases. So, you’ve got the Law (black-letter law) and case law that kinda explains and expands on it. Got it?

If you’re studying law and important criminal justice concepts as all police cadets do, you’ll want to fully understand these ideas so that the criminal justice system is not unduly burdened with cases brought against people who can’t be convicted because you violated their Constitutional rights. Of course, you will want to not only fully understand the U.S Constitution, State and local laws, but also the case law that informs at least Constitutional matters. You might not exactly remember every last bit of a given case, but that’s okay, because one only needs remember the title of the case and the rest can be looked up in a law book, or on Lexis, Justia or Findlaw.

The title of the case could be pretty long, like Jones v. United States, 463 U.S. 354, followed by a case number and initials for the court in which the case was heard and other numbers. That’s okay. We only need to refer to significant cases by the basic title that includes the parties, like in the example above, Jones v. United States. In that particular case, the question was whether a defendant who had been found Not Guilty By Reason of Insanity and subsequently remanded to a psychiatric facility should be released from involuntary commitment there because the period of time he had spent there was longer than the time he would have spent in prison. Interesting case, but not the point here.

In the aforementioned episode, one of the prospective cadets in the study group erupts with “Wall v. U.S.” as the answer to the question regarding the doctrine of the fruit of the poisonous tree. The cadet providing the answer is the romantic interest of the questioning cadet. She received a High Five for her efforts. I scratch my head. “Huh? That’s not right.” See, when you study law, you really have to learn the relevant case law intimately, not only because it will help you build arguments later that may benefit your client, but because before that happens, you will be tested and if you fail, you don’t get to be a lawyer. You do get to pay back the student loans, though.

Wall v. U.S. has nothing to do with the doctrine in question, if either based on the earliest or latest or intervening Wall v. U.S.-named cases, ad there are a few. The actual case is Silverthorne Lumber, Inc. v. United States, in which the Supreme Court of The United States heard an appeal in a tax evasion case where certain documents were illegally obtained by agents of the government, that is, without warrant, and subsequently copied and a case was meant to be made on the persons involved even after the illegally obtained documents were returned to them on the basis of the copies made by the agents of the government. Justice Holmes wrote the opinion, in which he said, “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” See, so, that’s why. Silverthorne, NOT Wall.

So, why don’t they Google this stuff? Journalists are writers and they get fact-checked. It’s not as if this drama takes place on Moon Station Victor Alpha or 20,000 leagues under the ice of Io. It’s not nice to make up legal (or medical, for that matter) answers especially when the facts are at hand. Why not just cite Silverthorne? It’s a big-deal concept. Ask a lawyer or a cop. They’ll hopefully know. And when you get the answer, frickin’ Google it. Geez.

Just to add insult to injury, the fantasy law used in this episode rears its head one more time when the wife of a jailed suspect is not allowed to see her husband because he had lost privileges. The guard tells the wife, “Sorry, he violated 105-24, fighting. Only his lawyer can ask for an administrative review.” Sigh. By now, I had my pencil sharpened for the next, inevitable faux pas. I don’t know Texas law, but it’s true that all penal systems in the U.S. have rules governing the disposition of inmates and it’s certainly true that inmates may be discplined for bad behaviour in a number of ways, one of which is the loss of certain privileges. Use of a phone or visiting with someone other than his or her attorney may be forfeit in appropriate circumstances. Heck, you’re in jail, man, better play by the rules, right? Right, except that the Constitution still applies and so, due process still applies, so, the inmate in question would be the OTHER person who could make an application to have privileges restored, or rather, would be THE person, since the attorney speaks on behalf of the client. It’s not like the lawyer has some magical property that causes the prison administration to speak ONLY to him. In fact, the Texas Department of Criminal Justice’s Inmate Handbook says, “offenders have the right to appeal any disciplinary decision made by the unit. This appeal is done by using the offender grievance procedure and submitted to the warden or facility administrator. If the offender is not satisfied with the warden or facility administrator’s decision, the offender may then file the next level of grievance for appeal purposes.” No outside lawyer needed, even, since the State will provide counsel to the offender for the purpose of correctly preparing the grievance.

So what about 105-24? How serious is the crime? What? What do I mean there’s no 105-24 either in the Texas Penal Code or in Correctional Department regulations? How could that be? It be because it be.

I’m going to look forward to how well the series continues to trample legal reality into the dust of Texas this season. Should be fun.