The Spring issue of the Military Law Review is now available here.  It includes a couple of articles of interest to we military justice wonks.  One is this piece by Eugene R. Milhizer arguing for the abandonment of the Fourth Amendment exclusionary rule — a proposition that I heartily endorse.  Eugene R. Milhizer, Debunking Five Great Myths About the Fourth Amendment Exclusionary Rule, 211 Mil. L. Rev. 211 (2012).  The other is this article by Susan B. Dyer about Joseph Holt, the Judge Advocate General of the Army during the Civil War.  Susan B. Dyer, Joseph Holt:  Lincoln’s Judge Advocate General, 211 Mil. L. Rev. 299 (2012).

2 Responses to “Spring issue of Military Law Review online”

  1. Peter Orlowicz says:

    I don’t feel convinced that as many of Professor Milhizer’s assertions are as “self-evident” as he believes they are. In particular, the belief that the crime is almost always worse than the government intrusion to convict seems at the very least questionable. Personally, I feel that the government and its agents ought to be held to a higher standard in its dealings than the average private individual, and so I take charges of public corruption or misconduct by a public servant much more seriously than similar activity as between private parties. This is partly why I find the hypotheticals posited on pg. 256 (pg. 46 of the .pdf) to be unpersuasive. To suggest, as Professor Milhizer does here, that such differing perspectives on the effect of government misconduct are, apparently, “self-evidently” wrong is objectionable to me. (It is still so “self-evident” that a school should use illegally obtained evidence of past child sexual abuse if the illegal evidence is a juvenile court record sealed by court order?) Then again, I’m absolutely 100% convinced (as a former police dispatcher before getting my JD) that the Supreme Court got Herring exactly wrong.
     
    Moreover, I would take exception to any effort to allow a court to weigh the seriousness of the crime in deciding whether suppression were applicable. Most of existing criminal procedure provides more, not less, protection to those accused of particularly heinous or serious crimes; I don’t really believe FRE 403 permits that sort of weighing either. Unfair prejudice is unfair prejudice, whether you’re charged with murder or driving with a suspended license, and the relevance inquiry can’t be allowed to hinge on how important it is that someone get convicted. There’s no provision in attorney-client privilege that makes an exception if your client committed murder or treason (I would put the exceptions that exist for prospective criminal behavior, rather than retrospective, in a different category entirely.) It’s probably the kind of argument that the general public would find appealing, but then again a major purpose of criminal procedure is to protect the rights and interests of an accused against the possibility of mob justice. How is this any different from excusing the jury in a murder trial from convicting beyond a reasonable doubt? “Well, it’s a really serious case, and we don’t want to let a murderer off the hook just because the prosecution couldn’t prove beyond a reasonable doubt, so let’s allow a conviction on clear and convincing evidence”? That’s “self-evidently” absurd, at least to me.
     
    Finally, I don’t feel that Professor Milhizer did nearly enough to posit an alternative to the exclusionary rule; expanded tort remedies and better political accountability are fine goals, but the Supreme Court in 1914 apparently viewed those alternatives as insufficient, and Professor Milhizer seems to have no more evidence or support (at least as evinced in this article) for those possibilities than the exclusionary rule’s supporters do. The current availability of those remedies hasn’t seemed to curb the worst excesses in places like Chicago or L.A. even when the violations haven’t been Fourth Amendment related; why would we think increasing availability of tort remedies (even assuming such a law were politically feasible to pass over the objection of police unions) would deter or adequately compensate for lesser violations?
     
    Thanks for bringing the article to our attention, even if I found it profoundly unpersuasive.

  2. Dew_Process says:

    Peter, I’ve only skimmed the article, but tend to agree with you.  Tort (or similar) remedies don’t “deter” even if an accused/plaintiff is lucky enough to prevail.  Consider poor John Thompson’s fate in the context of spending 18 years in prison, much on death row, for a murder he didn’t convict where the New Orleans’ DA’s office withheld crucial Brady material.  SCOTUS said, “Sorry John!” in Connick v. Thompson,   http://www.supremecourt.gov/opinions/10pdf/09-571.pdf 

    If he’s not worth of civil relief, an accused who’s property is illegally seized by a bogas affidavit that results in a tainted search warrant, isn’t going to fare much better imho either.

    Just my 2 cents.