What Does It Mean When We Say “He Got Off On a Technicality”?
When a known criminal is not held accountable, most of us are left confused, angry, and sickened. This response is heightened the more egregious the crime. That anger intensifies when the reason for a lack of accountability is what we often call a legal “technicality.” The “He got off on a technicality!” frustration. As it should, a guilty person getting away with crime makes our blood boil.
I want to offer what I’ve found to be one of the most interesting topics this last semester in school that I wish I’d known earlier as a member of the general public.[1] My phenomenal criminal procedure professor, Tracy Pearl, walked us through this overview about technicalities, which I had never heard. I wanted to process it more through writing and share additional historical information I dug up for context.
What do we mean by technicality? Is our system plagued with them? Why can’t we overlook them for the justice of victims? It is important to interrogate the “technicality” view. Simply put, a “technicality” is often rooted in the government’s violation of someone’s Constitutional rights or privileges.[2]
Historically, a technicality might have looked like a defendant convicted of a crime in court, only for the conviction to be challenged because of how the defendant was treated before the trial (or another due process issue). That frustrated a lot of communities who wanted certain convictions to stick.
For example, the case Brown v. State.[3] A white farmer, Raymond Stewart, was brutally murdered. Within hours of finding the body, locals accused one, and then three, men of the murder: Edward Brown, Yank Ellington, and Henry Shields, all Black men.
As the investigation unfolded, the three suspects confessed. But the way the confessions were elicited became a legal issue. But who cares how the confessions came about, as long as the suspects confessed, right? No one would confess to something they didn’t do, especially murder. The mentality was, “We know they did it — they confessed outright! But these dang judges, they’re gonna let these guys off on some technicality.”
Leading up to the trial, the three men were interrogated and tortured by community members, local leaders, and law enforcement. The abuse, it was promised, would only cease upon a confession. Once each suspect was brutalized and broken, they were then transported to repeat their confession to the local Sheriff, Adcock, directly.
The state’s case was exclusively built on the second set of confessions. Aside from those, the only “evidence” that the state had was fingerprints from the crime scene — which they had not processed by the time the trial began.[4] The prosecutor, John Stennis, told the court they hadn’t bothered to process the fingerprints because the defendants had confessed to the crime.
The state witnesses implied that the confessions were reliable because the suspects disclosed details only the killers would know. The witnesses denied feeding details of the crime to the defendants during the torture. Yet, for example, one of the state’s witnesses, E.L. Gilbert, admitted that he had the murder weapon (an ax) in his hand during the “confession.” Stennis asked, “You had the axe there with you?” Gilbert responded, “Yes, sir. I had it in my hand when I was questioning [Shields].” Yet the state somehow successfully convinced the jury that the defendant thought up the detail of the ax as murder weapon himself, and the confession was valid.
The youngest suspect, Ellington, repeated throughout his testimony that he only confessed because he had been beaten so severely and was living in fear. Ellington had been beaten and hung twice during the torture to extract a confession. Prosecutor Stennis — along with the judge, jury, officers of the court, and others observing the trial were aware that the defendants had been brutalized.
At one point, Stennis asked his own state witness, “On the way down there, did you strap [whip] him some?” The witnessed answered yes. However, minimizing the reality of a mob assault on the suspects, a state’s witness said there were a “bunch” of them there to “question” young Ellington, estimating it to be about “20 men.”
The torture was repeatedly referenced. The defense cross-examined state witnesses, asking one, “Was that before or after the whipping?” The state’s witness responded, “That was after.” The witness was further asked, “The defendants Ed Brown and Henry Shields had been whipped before these statements were obtained?” The state’s witness: “They had been whipped some, yes, sir.”
On cross-examination, another state’s witness acknowledged that a group had whipped at least two of the suspects, Brown and Shields, at a separate jail before delivering them to confess to Sheriff Adcock:
Defense attorney: That was in the jail in the city of Meridian, and you were present at that time? Who else was present there?
Witness: Cliff Dial and Guy Jack, Warren Campbell and myself when Henry was whipped: we four went in there, and Buddy Gilbert was in there when Ed was whipped.
Following is another set of the many exchanges in the trial transcript where those testifying against the defendants confirmed the torture and how they elicited the original confessions. Here, the defense questioned a state witness:
Q. They whipped them a little anyhow?
A. Yes, sir.
Q. A right smart?
A. Not too much for a negro; not as much as I would have done if it was left to me.
Q. They whipped him and hung him up there, and you asked them to let him loose?
A. Yes, sir.
Moments later in the same cross-examination, the defense asked the state witness what he and others did when the first suspect, Brown, denied guilt.
A. We kind of warmed them a little — not too much.
Q. They said then that they were guilty?
A. Yes, sir.
Q. But they didn’t say it until after you warmed them up?
A. No, sir.
“Warmed them” is presumably a euphemism for beat them. In an odd, twisted way, prosecutor Stennis repeatedly acknowledged yet dismissed the illegal torture committed against the defendants as material. For example, Stennis put this question to 20-year-old Ellington, on the record, minimizing the effect the torture had: “You say you were scared. Which did you think was the worst, to be whipped some more or admit killing this white man?”
What is clear from the trial transcript is that some law enforcement and other leaders were present, and some participated, during the torture. The conduct seemed so normalized in the area that it was dismissed as a central issue in the judicial process. Also indisputable is that no one in the courtroom had reason to believe the torture didn’t occur — the judges, jury, attorneys, no one.
Yet, to most of the justice system, this was a cut-and-dry case, since the men had confessed. The jury found all three men guilty of murder. The men were sentenced to death by hanging.
Six days before the execution date, the defense requested time to appeal the case to the Mississippi Supreme Court.
The Mississippi Supreme Court affirmed the conviction. While acknowledging that the initial tortured confessions were problematic, that the defendants freely and voluntarily confessed to Sheriff Adcock went unchallenged (as they were no longer being tortured at that time).[5] The second rounds of confessions counted.
This, despite Sheriff Adcock acknowledging on the record that he had heard of the whippings from the day before and observed that at least one of the suspects, Henry Shields, limped into the room and was so injured that he could not sit down for Adcock’s interrogation.
At trial, prosecutor Stennis set up the line of thinking that the Mississippi Supreme Court followed, emphasizing that the later confessions were disclosed outside of the earlier coercive context. The suspects confessed to Sheriff Adcock, Stennis argued, who had never physically harmed the defendants. Therefore, those confessions were valid, because they were freely and voluntarily given.
But, at trial, each defendant repeatedly testified to how terrified they remained after being brutalized. Fearing more torture, they had stuck to the confessional story fed to them by their torturers. Brown testified that he didn’t distinguish between those who physically harmed him and Sheriff Adcock, because he believed that “white people pull together,” and he “didn’t know what Mr. Adcock would do[.]” Also note that Stennis cross-examined Ellington: “You never were scared of Mr. Adcock?” he led. Ellington replied, “Yes, sir, I am scared of all white people.”
Severely battered and fearful, the suspects gave their later, “valid confession” while in law enforcement custody, after other members of law enforcement had participated in their torture the day before. The suspects were in no position to confess freely and voluntarily. But the trial proceeded as if they had been.
Though outvoted, one Mississippi Supreme Court member Justice Griffith wrote a dissent (concurred by Justice Anderson) worth repeating:
On that night [of the murder] one Dial, a deputy sheriff, accompanied by others, came to the home of Ellington, one of the defendants, and requested him to accompany them to the house of the deceased, and there a number of white men were gathered, who began to accuse the defendant of the crime. Upon his denial they seized him, and with the participation of the deputy they hanged him by a rope to the limb of a tree, and, having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and, still declining to accede to the demands that he confess, he was finally released, and he returned with some difficulty to his home, suffering intense pain and agony. The record of the testimony shows that the signs of the rope on his neck were plainly visible during the socalled [sic] trial. A day or two thereafter the said deputy, accompanied by another, returned to the home of the said defendant and arrested him, and departed with the prisoner towards the jail in an adjoining county, but went by a route which led into the state of Alabama; and while on the way, in that state, the deputy stopped and again severely whipped the defendant, declaring that he would continue the whipping until he confessed, and the defendant then agreed to confess to such a statement as the deputy would dictate, and he did so, after which he was delivered to jail.[6]
Justice Griffith continued:
The other two defendants, Ed Brown and Henry Shields, were also arrested and taken to the same jail. On Sunday night, April 1, 1934, the same deputy, accompanied by a number of white men, one of whom was also an officer, and by the jailer, came to the jail, and the two last named defendants were made to strip and they were laid over chairs and their backs were cut to pieces with a leather strap with buckles on it, and they were likewise made by the said deputy definitely to understand that the whipping would be continued unless and until they confessed, and not only confessed, but confessed, in every matter of detail as demanded by those present; and in this manner the defendants confessed the crime, and, as the whippings progressed and were repeated, they changed or adjusted their confession in all particulars of detail so as to conform to the demands of their torturers. When the confessions had been obtained in the exact form and contents as desired by the mob, they left with the parting admonition and warning that, if the defendants changed their story at any time in any respect from that last stated, the perpetrators of the outrage would administer the same or equally effective treatment.
Further details of the brutal treatment to which these helpless prisoners were subjected need not be pursued. It is sufficient to say that in pertinent respects the [trial] transcript reads more like pages torn from some mediaeval account than a record made within the confines of a modern civilization which aspires to an enlightened Constitutional government. [7]
Justice Griffith was in the minority, and the Mississippi Supreme Court affirmed the trial court’s ruling. The three men were again set to be executed. The defense then appealed to the United States Supreme Court. The Supreme Court accepted the case.[8]
Over a year after the original conviction, the Supreme Court reversed the lower courts’ rulings and remanded the case. The contemporary news coverage at the time described the Court’s response during oral arguments:
Some assume that defendants are free to go when that happens, but it means that the state has the option of a do-over, just this time without introducing prohibited evidence. Here, Mississippi would need to develop more evidence, as they were prohibited from using the defendants’ “confessions” this time. Often, no one actually “gets off on a technicality,” they just get tried again.
Brown, Ellington, and Shields were again cast upon the mercy of the highly prejudicial Mississippi “justice.” Despite the lack of evidence against them, rather than risk their lives again in a system that so egregiously failed them, and not knowing what “evidence” the state could concoct, the three defendants pled out to manslaughter and were incarcerated.
In contrast, the one who originally charged and prosecuted the three men, John Stennis, carried on. A year after the Supreme Court reversed and remanded the case he led, the Mississippi Governor appointed Stennis as a circuit judge.[9] Stennis then served as Mississippi’s senator for 42 years, never once losing a re-election bid.[10]
As a senator, he led the resistance to civil rights for all. He co-authored the “Southern Manifesto” which helped gather political opposition against racial integration and condemned the Brown v. Board of Education ruling that outlawed public school segregation as unconstitutional.[11] Stennis filibustered so votes could not be taken on civil rights reform.[12] Noteworthy, “[h]is first two speeches on the floor of the Senate were against federal antilynching, anti-poll tax and equal employment legislation — claiming they represented unconstitutional interference with the State’s rights to govern themselves.”[13] For about 25 years straight, Stennis voted against each piece of equality-based legislation.[14]
Yet, one writer stated that, though Stennis was a segregationist, “[h]is appeal…was drawn from intellect, not hate.”[15] Indeed. Lest we forget the “heritage not hate” argument, and that Mississippi’s indiscriminate oppression was none of the big, federal government’s business, reframing the issue as a state versus federal power argument.[16]
Further, Senate peers voted Stennis in as the leader of the Senate’s first Ethics Committee.[17] He was honored with writing the Senate’s first Code of Ethics.[18] As one Senate speaker commented, Stennis would “long be remembered as the ‘conscience of the senate….’”[19]
Stennis retired from politics in 1989. Yes, 1989. Ronald Reagan spoke at Stennis’ D.C. retirement dinner party, where the program was titled “John C. Stennis — Celebration of a Legend.”[20] He was then hired to teach at Mississippi State University. He had everything from a hospital and airport named after him, to scholarships and student programs.
Upon his death in 1995, the senate compiled a 152-page tribute to Stennis. It included condolences, speeches, tributes, and newspaper articles on him, including an editorial in the Clarion-Ledger by Andy Kanengiser titled, “No Negatives for the Kemper Statesman.” Former Mississippi governor William Waller is cited as recalling that “Stennis transcended several critical eras in U.S. politics — from the days of segregation to desegregation and affirmative action. And he did it without being controversial….”[21] Stennis’ deeply destructive impact on minorities was white-washed by both political parties, as is common in American politics.
As the Chaplain prayed during the Senate proceeding honoring Stennis, he noted Stennis’ over 40 years of Senate leadership, asking God, “May the memory of his faith in You and his courage in conflict give us determination to seek, as he did, to do our best. In the Lord’s name. Amen.”[22] One leader noted, “History will record John Stennis as a true son of the South. His legacy in Mississippi will never disappear.”[23] While Brown, Shields, and Ellington disappeared into history, their lives destroyed by Stennis and the state, Stennis’ legacy continues to be honored. The most consistent outcome in the re-shaping and re-telling known as U.S. history.
From Brown, Shields, and Ellington, we learn that defendants have historically been on the frontline of securing and preserving rights, protection, and recourse for all of us.
A few things I have come to accept:
Out of all of us, suspects and defendants are the most likely to experience state misconduct. Out of self-interest or innocence, with a good attorney, defendants can push back on the government. When successful, that pushback benefits and secures protection from government misconduct for all of us. Defendants are, in that respect, Constitutional champions.
Moving on to the modern issue of technicalities and understanding what’s behind current frustrations. Unlike in Brown, there are defendants guilty beyond a reasonable doubt, yet the evidence showing that might be suppressed.
Despite states’ resistance, additional amendments began to apply to states — Constitutional limits now are not just limited to federal agents but also state and local law enforcement. This created a lot more “technicalities,” because it expanded the application of what’s called the exclusionary rule. In a sentence, the exclusionary rule prohibits the government from introducing evidence in a criminal trial if the evidence was gathered in a way that violated the defendant’s Constitutional rights. There are separate rules and exceptions for separate amendments, but that is the general idea.
When determining whether to apply the exclusionary rule to evidence, the Court established this guiding question: “Does it violate those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions[?]’”
The question here is not about weighing the defendant’s guilt, which is hard to get our minds around as observers. The question is strictly whether, based on how it was collected, the court should allow the evidence to be introduced at trial. In fact, it was clear in many cases that the defendants were guilty, and the evidence was reliable and important. But, here, innocence or guilt are not relevant to whether their Constitutional rights had been violated. The caselaw here is also fascinating, but I will skip to the outcome because I’m on school break and already eight pages into this post.
Essentially, the Supreme Court found that the only effective means of deterring law enforcement from using abusive, coercive, or otherwise illegal tactics to get information and evidence was for judges to say that improperly gained evidence would not be used at trial.
It can be a steep price to pay, especially if the evidence is reliable and central to the case. But there’s also a steep price to pay in rewarding the government with admissible evidence when they break the law to get it. It risks rendering foundational protections against unlawful searches, seizures, or compelled self-incrimination meaningless. The exclusionary rule is meant to help protect our Fourth, Fifth, and Sixth Amendment rights from disintegrating under eroding power of circumvention.
The exclusionary rule does not stop the violation from happening in the first place, but it’s intended to break the violation pattern by communicating that unlawfully gathered evidence will be thrown out. The courts hope that law enforcement agencies will tire of weakened cases because of evidence suppression and will put the time into proper training and Constitutionally proper evidence-gathering.
A problem is that law enforcement does not charge or prosecute cases. They investigate and provide information and evidence to prosecutors. It is prosecutors who choose to initiate a criminal case, only sometimes to learn that some or all critical evidence was gathered illegally in the investigative stage. They can try to move forward on other evidence, try to strike a deal, or drop the case. The courts implemented the exclusionary rule as a last resort to stop police misconduct, but it deeply effects our entire system and society.
The greatest losses are faced by the victims and their families who are failed at the investigative stage. By no fault of their own, victims’ cases are weakened when law enforcement illegally gathers evidence against perpetrators. But to uphold system integrity, the Court has determined that it cannot allow the government to cut corners Constitutionally, particularly when investigating the people.
Without knowing it, the exclusionary rule is what most are referring to when they vent about “technicalities.” This collective frustration with cases being lost or remanded due to the exclusionary rule suppressing real, critical evidence against a guilty party came to a head in a case called Brewer v. Williams.[24]
In 1968, ten-year-old Pamela Powers headed to the local YMCA with her family, stopping at a pet store on the way. It was December 24th, with all its anticipation and Pamela’s presents under the tree at home. As Pamela’s family watched her brother in a wrestling tournament, Pamela was instructed to wash her hands before eating.[25] She headed off to the washroom. Her brother won the tournament, but Pamela would never get to celebrate with him.[26]
As would soon be discovered, someone kidnapped, sexually assaulted, and killed young Pamela, dumping her body far from the YMCA. Not only did her case devastate a family and shake the community to its core, it also deeply affected criminal law.
Law enforcement quickly narrowed in on a suspect identified by witnesses as having carried a bundle wrapped in a blanket out of the YMCA. One witness recounted seeing two small legs poking out. That suspect was Robert Anthony Williams, a recent mental institution escapee, living at the YMCA. Williams went on the run for a couple of days, and then chose to turn himself in after consulting with an attorney.
Williams turned himself in to the Davenport police and was indicted. He then had to be transported by law enforcement back to Des Moines where the crime was committed. My GPS shows this to be a 2.5–3 hour trip.
Before the transport, Williams consulted with a Davenport attorney and a Des Moines-based attorney. These attorneys consulted with law enforcement, emphasizing that Williams was not to be questioned until he met with his attorney in Des Moines, as was Williams’ Sixth Amendment right.
When it comes to the Sixth Amendment right to counsel, it makes sense that the adversary should not have unfettered access to the defendant after a formal adversarial proceeding has been initiated. Addressing this issue in his Patterson v. Illinois dissent, Justice Stevens drew a helpful parallel between criminal and civil litigation. In civil matters, he wrote, it is “improper for a lawyer to communicate with his or her adversary’s client without either notice to opposing counsel or the permission of the court.” “[G]oing behind the back of one’s adversary,” he reminded all, “would be not only a serious breach of professional ethics but also a manifestly unfair form of trial practice.”
We’re taught early in law school that, if an opposing party is represented, we must communicate through their attorney unless given permission otherwise. No competent attorney would let representatives from the opposing side have a couple of hours alone with a client, and approaching or cornering that client is an absolute no-go. Yet that is essentially what can occur in criminal cases if the Sixth Amendment is not strictly followed post-indictment. At that point, the state is the adversary of the defendant. “In the criminal context,” Justice Stevens concluded, “the same ethical rules apply.” While the stakes are often higher in a criminal case, the standards regarding adversarial communication are often lower in practice, with law enforcement (governmental agents) continuing to communicate with defendants outside of the defendant’s counsel’s presence.
One attorney requested to ride along for the transport but said that law enforcement prohibited it. Williams, an escaped mental health patient, showed signs of being impressionable and perhaps easily manipulated. However, law enforcement assured the attorneys, including the one who had convinced Williams to turn himself in in exchange for legal assistance, that there would be no questioning enroute. Without the power to accompany the client, the attorneys relied on the Sixth Amendment and law enforcement’s word there would not be efforts made to elicit information from Williams in the few hours he spent alone in custody.
Instead, the two escorting officers took the case into their own hands. During the transport, they strategically engaged in a subtle means of eliciting information, circumventing the agreement and the law. Applying psychological pressure is one method of information-gathering in which officers are trained, and they flexed it.
At trial, officer Leaming acknowledged that he’d purposefully turned the conversation to Williams’ religion and reputation. Leaming testified what he said to Williams next, which has famously been labeled the “Christian Burial Speech”:
‘I want to give you something to think about while we’re traveling down the road.’ I said, ‘Number one, I want you to observe the weather conditions, it’s raining, it’s sleeting, it’s freezing, driving is very treacherous, visibility is poor, it’s going to be dark early this evening. They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl’s body is, that you yourself have only been there once, and if you get a snow on top of it you yourself may be unable to find it. And, since we will be going right past the area on the way into Des Moines, I feel that we could stop and locate the body, that the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas eve and murdered. And I feel we should stop and locate it on the way in rather than waiting until morning and trying to come back out after a snow storm and possibly not being able to find it at all.’
When cross-examined, officer Leaming admitted that his goal was to get information from Williams while in custody before they reached Williams’ attorney. The defense attorney questioned Leaming:
Q: Now let me ask you this: When you said to [Williams], you say you said to him it’s snowing out here, bad weather, isn’t that what you said to him?
A: Yes, sir.
Q: He didn’t ask you that, did he?
A: No.
Q: Didn’t you say that to him to induce him to show you where the body was?
A: I was hoping he would.
Q: You was hoping he would?
A: Yes, sir.
Q: So you wanted to make it appear to him that it might be harder or impossible to get out there the next day, you told him there was going to come a big snow, didn’t you?
A: No, I didn’t tell him there was going to come a big snow. I asked him to observe the weather, observe the visibility, observe it sleeting and it raining and they’re predicting snow for tonight.
Q: And that was for the purpose of inducing him to talk, wasn’t it?
A: Telling the truth.
Q: Well, I said, wasn’t that for the purpose of getting Mr. Williams to talk?
A: Well, I was hoping he would tell me where the body was, Mr. McKnight, absolutely.
….
Q: In fact, Captain, whether he was a mental patient or not, you were trying to get all the information you could before he got to his lawyer, weren’t you?
A: I was sure hoping to find out where that little girl was, yes, sir. * * *
Q: Well, I’ll put it this way: You was hoping to get all the information you could before Williams got back to McKnight, weren’t you?
A: Yes, sir.
Leaming’s technique proved effective, as Williams gave directions on where to find the girl’s body, and a detour was made on the way. Unfortunately, after being convicted, the case was reversed and remanded because officer Leaming had gathered critical evidence in violation of the Constitution’s Sixth Amendment. A “technicality.” The main issue was not merely that they talked to a suspect (that is allowed), but that formal proceedings had already been initiated in Davenport, and the parties were now legal adversaries.
Because Williams had attorneys, had invoked his right to counsel, and there was clear evidence that everyone agreed Williams must be with his attorney before being questioned, the state legally had the heavy burden of showing that Williams had waived his rights, permitting the interrogative techniques used during the drive between cities. The state was unable to do that.
Thus, under the exclusionary rule, the evidence gathered illegally should have been suppressed, reinforcing that the government — here, in the form of law enforcement — could not violate the Constitution as a shortcut in their investigation.
Justice Marshall concurred in the Supreme Court decision and pushed back against those who had “lost sight of the fundamental Constitutional backbone of our criminal law.” He wrote that some “seemed to think that Detective Leaming’s actions were perfectly proper, indeed laudable, examples of ‘good police work.’” “In my view,” he continued, “good police work is something far different from catching the criminal at any price. It is equally important the police, as guardians of the law, fulfill their responsibility to obey its commands scrupulously. For, ‘in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.’” He explained that, if (though highly unlikely) the defendant would be released, it would not be because the defendant deserved it. Instead, “[i]t will be because Detective Leaming, knowing full well that he risked reversal of Williams’ conviction, intentionally denied Williams the right of every American under the Sixth Amendment to have the protective shield of a lawyer between himself and the awesome power of the State.”
The public was outraged. The states were in resistance mode. Many were sick of the “pro-defendant” stance the Court seemed to hold at the time. Many states hoped that, in reviewing the Williams case, the Court would also overturn the Miranda ruling that barred use of a suspect’s confession in trial if that confession was compelled while in governmental custody and without warning of their rights. Many states hoped the Court would rule against Williams and, simultaneously, overturn the Miranda decision. Below is an image of The New York Times’ front page on Thursday, March 24, 1977 — the day after the Supreme Court’s ruling on Williams. The article highlights that 22 states were pushing for reduced defendant protections. The Court addressed only Williams’ right to counsel (Sixth Amendment) and, to the dismay of many, stopped short of addressing the Fifth Amendment issue, so Miranda remained good law.
Many turned on the Supreme Court. After being convicted for such a heinous crime, they believed Williams got off on a technicality. Between new rules, such as the Miranda warning, and what was viewed as too-strict adherence to a defendant’s right to counsel in Williams’ case, the public was largely sick of the Supreme Court taking the side of the worst of the worst. They did not see it as the Supreme Court taking the Constitution’s side in order to preserve the integrity of the Amendments.
Many ignored Justice Marshall’s prediction that Williams was highly unlikely to go free, stating, “given the ingenuity of Iowa prosecutors on retrial or in a civil commitment proceeding, I doubt very much that here is any chance a dangerous criminal will be loosed on the streets, the bloodcurdling cries of the dissents notwithstanding….” Despite others’ fearmongering, Justice Marshall knew how the system worked.
The reality was, as is often the case, Williams was re-tried (but prosecutors had to leave out of the trial what occurred in the patrol car) and was again convicted of first-degree murder with a life sentence. It worked. He served the entire sentence, dying in 2017, almost 48 years to the day from Pamela’s murder.
But the damage in the public’s mind that the Supreme Court, criminal-lovers that they were, let Williams get off on a technicality was already done. As opposed to “unbending on the Constitution,” the anti-Supreme Court “soft on crime” rhetoric took off.
What I did not know when I labeled intervention as legal technicalities is what those technicalities were. I did not understand that permitting them endangered the Constitution. These thoughts churned uncomfortably in my mind as I sat through criminal procedure class:
Actual criminals often maintain the integrity of many Constitutional rights for the rest of us.
If we do not uphold Constitutional rights for even the most violent, guilty party, we risk our collective rights, including all the innocent.[27]
If our system is robust and alternative means of lawfully gathering evidence is pursued, criminals can often still be convicted.
I cannot support the Constitution on one hand, yet say some do not deserve its protection on another hand, without weaking or risk destroying the Constitution.
I have a brilliant criminal law professor. One of my favorite quotes of hers:
“What you call a technicality, I call the Bill of Rights.”
Though we might casually refer to an exclusionary rule as a technicality, it is one of the only mechanisms that keeps the government in check when investigating and prosecuting citizens. The rule holds that, if the government gathers information in a way that violates the United States Constitution, the government forfeits the right to use that evidence. Unquestionably, it’s a harsh institutional response for the victims and community, but it is thought by many to be necessary to preserving critical rights of the people.
While I believe I am just writing to myself at this point (thirteen pages in?), I knew I had to share this information.
The point of this post is to pass on what my professor encouraged — when we hear “he’s getting off on a technicality,” dig more deeply, research the technicality. We may often find it would not have occurred if the government was abiding by the Constitution.
As our professor consistently reminded us, law enforcement is asked to do an incredible amount of work that requires an unrealistic breadth of knowledge — social work, mental health intervention, dangerous predator stings, traffic stops of all kinds, etc. They cannot be Constitutional experts, acting in the moment, getting it right every time, especially considering that Supreme Court justices sometimes can’t even agree what is Constitutional or not, even with weeks to review the facts from a safe setting.
Regardless, we cannot let Constitutional violations occur without deterrence, as rights only occasionally and selectively upheld become meaningless. It is our duty to hold our government in check. As our professor reminded us, law enforcement is the armed wing of that government, with its own, unique powers and immunities. In a famous dissent, Justice Brandeis said, “Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example…If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”[28]
Unfortunately, the reality of law enforcement work and constant engagement with the public means constant conflict with Constitutional rights. That leads to the statistical likelihood that law enforcement is among those most likely — intentionally or not — to violate Constitutional rights. Police, like us all, will make mistakes. But being law enforcement does not excuse the mistake. It demands the highest standard.
There’s the common idea that “with great power comes great responsibility.” Law enforcement can legally take our liberty, search, seize, shoot to kill, invade homes, testify with great weight in court, etc. Because of the nature of their work in enforcing laws, their power is immense. Thus, the scrutiny of the conduct must be as well. Not as an anti-police demonstration, but as a pro-democracy, pro-freedom, pro-Constitution safety measure. As Justice Clark wrote in Mapp v. Ohio, “Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”[29] We need law enforcement. We need respect for Constitutional rights. And the balance is kept, surprisingly, often by criminals when they can successfully keep the government in check for the rest of us. Criminals, probably out of self-preservation, self-interest, and not a patriotic duty to defend the U.S. Constitution for its own sake, are on the frontlines. Day and night, they call out Constitutional violations, challenging otherwise unchecked police power that would otherwise grow without the rest of us recognizing it until it was too late.
If I support the Constitution, then monitoring those who are most likely to violate it makes sense. If our aim is to preserve Constitutional rights, there must be consequences to violating those rights. That’s where the exclusionary rule and its “technicality” calls come in.
As my professor explained, when we get (rightfully) angry someone has gotten away with a crime or evidence against them is suppressed, it should not be directed only at the criminal. It should be directed at those who violate the Constitution, take shortcuts, maliciously or ignorantly, setting the court up to exclude that evidence. We should be angry both at the perpetrator and at our system for trying to chip away at a Constitutional principle.
But when we’re disgusted, let’s remember that the more accurate “He got off because of the dang Bill of Rights!” Or “He got off because government officials violated basic Constitutional rights, and we can’t abide in that, so the sacrifice is holding the State accountable” but that rolls off the tongue less smoothly.
Next time we hear an egregious case of a guilty party “getting off,” perhaps take the smallest consolation that behind the scenes, a Constitutional right was vigorously defended and preserved. If the defendant was guilty, society loses either way — by potential exposure to repeated criminal conduct or a chipping away at the Constitution by convicting anyone on illegally-gathered evidence. The decision is sometimes made that the perpetrator’s risk to society is outweighed by the governmental violation’s risk to Constitution.
I appreciate this quote from the famous Brady v. Maryland case: “Society wins not only when the guilty are convicted by when criminal trials are fair, our system of the administration of justice suffers when any accused is treated unfairly.”[30] Justice requires a long view. While such technicalities are often tragic on a personal level, on a social level it shows our system is working to uphold the Constitution.
While we all prefer perfect justice, as Justice Scalia once wrote on a related front, “[T]here is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.”[31] Here, sometimes the criminality of a few goes unpunished in protecting the fundamental rights of all.
Again, if the exclusionary rule affected a case where I was the victim, I would be furious (I am without even being the victim). If a case falls through because of the application of the exclusionary rule, it results directly from government misconduct, resulting in a system failing a victim and the victim’s loved ones. It is a type of revictimization in a process that is supposed to support truth and bring justice.
But that’s also why we prioritize a judicial system of objective judges who must balance the individual desire for retribution against the need to protect all of society’s Constitutional rights from attack. Undoubtedly, many of these judges would much rather put some criminals away instead of sitting through another trial, but judges must serve in their detached roles that form the basis of our judicial system. They weigh facts, law, and underlying Constitutional principles. It is why juries are given specific instructions on the law and how to interpret and apply it before being given the privilege of doing so.
It is an upsetting realization that useful evidence is suppressed. If you oppose the exclusionary rule, no matter how evidence is gathered, take heart. If you think the exclusionary rule is stupid and a mere technicality, you are not alone and stand in the company of some Supreme Court justices and legal scholar (see Debunking Five Great Myths About The Fourth Amendment Exclusionary Rule for a straightforward critique by Eugene Milhizer). Perhaps you will also appreciate that it was quickly determined the exclusionary rule was not a strict liability regime: there are now many exceptions, so it has become flexible.[32]
To those who oppose the application of the exclusionary rule as a needless technicality, I ask: what is a better remedy to government (especially police) misconduct that violates the Constitution? If not punishing the state by not allowing admission of the evidence, what’s a more effective way to curb government misconduct against people?
In my mind, based on what I’ve read, ideally, we would demand increased training on proper governmental stops, investigations, etc. Instead of eliminating the exclusionary rule, perhaps we focus on reducing the need for the exclusionary rule and creating more justice, safety, and freedom in the process. We could improve practices to reduce the number of times the exclusionary rule would be applied. Work it out of its job. But removing the exclusionary rule without improved practices does not seem like a safe bet.
As in Pamela Power’s murder case, there are ways to prosecute even when certain evidence is excluded. For all the outrage over upholding the defendant’s Constitutional rights, the outcome — Williams’ re-conviction and lifetime incarceration — was overlooked. Unfortunately, here I need to note that there remain questions as to whether the system had the right person after all.
For the rest of his life, Williams argued his innocence. There was no conclusive evidence used at the time, as the case was primarily built around eye-witness identification of Williams. There remain questions to this day. For example, there was another man, Arthur Bowers, who lived at the YMCA and worked there as a janitor. He had a history of sexual abuse against minors and fled soon after the murder. He later died in a car accident before Williams’ case was resolved. Williams’ defense believed that it may have been Bowers who assaulted and killed Powers and left her body in Williams’ room, perhaps knowing Williams was unstable and fearful of being returned to a mental hospital and likely to hide the body.
As the Des Moines Register noted in an article covering Williams’ crimes and Pamela’s life and death, “Williams testified that he found Powers’ body in his room at the YMCA. He said he took the body from the building and buried it because he was afraid he might be sent back to the Missouri mental hospital and because he had been involved in a racial incident at a Des Moines high school.”[33]
[END]
Fourth Amendment: 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.
Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
[1] I recognize the sensitivity of the topic and sympathize with victims’ families, always. As a sibling to a surviving violent crime victim and as a community member, I will always fight justice denied. Discussing technicalities does nothing to reduce harm to victims or comfort heartache and is not my intent.
[2] On the flipside, what we don’t often call a technicality is what actually affects defendants — not knowing legal procedures or filing paperwork properly. Their appeals can be tossed out on true procedural technicalities, but for some reason we don’t sit around angry about that.
[3] 173 Miss. 542 (1935). The following analysis of is pulled from the trial transcript: http://users.soc.umn.edu/~samaha/cases/brown_v_mississippi_trial_record.htm.
[4] http://users.soc.umn.edu/~samaha/cases/brown_v_mississippi_trial_record.htm
[5] Brown v. State, 173 Miss. 542 (1935).
[6] Brown v. State, 173 Miss. 542 (1935). J. Griffith, dissenting.
[7] Brown v. State, 173 Miss. 542 (1935). J. Griffith, dissenting.
[8] Brown v. State of Mississippi, 297 U.S. 278, 1936.
[9] https://bioguide.congress.gov/search/bio/S000852; https://www.govinfo.gov/content/pkg/CDOC-104sdoc11/pdf/CDOC-104sdoc11.pdf (p. 87).
[10] https://bioguide.congress.gov/search/bio/S000852
[11] https://www.govinfo.gov/content/pkg/CDOC-104sdoc11/pdf/CDOC-104sdoc11.pdf (p. 87, 100). .
[12] https://www.govinfo.gov/content/pkg/CDOC-104sdoc11/pdf/CDOC-104sdoc11.pdf (p. 87).
[13] https://www.govinfo.gov/content/pkg/CDOC-104sdoc11/pdf/CDOC-104sdoc11.pdf (p. 87).
[14] https://www.govinfo.gov/content/pkg/CDOC-104sdoc11/pdf/CDOC-104sdoc11.pdf (p. 133)
[15] https://www.govinfo.gov/content/pkg/CDOC-104sdoc11/pdf/CDOC-104sdoc11.pdf (p. 87).
[16] Had these states had their way, the Bill of Rights would never apply to states, and defendants would not have protection — the Bill of Rights, it was argued, only applied Federally. They wanted to make sure that federal government officials were limited, but that state officials could treat their own residents how they wanted
[17] https://www.govinfo.gov/content/pkg/CDOC-104sdoc11/pdf/CDOC-104sdoc11.pdf (p. 65).
[18] https://www.govinfo.gov/content/pkg/CDOC-104sdoc11/pdf/CDOC-104sdoc11.pdf (p. 2)
[19] https://www.govinfo.gov/content/pkg/CDOC-104sdoc11/pdf/CDOC-104sdoc11.pdf (p. 21)
[20] https://www.govinfo.gov/content/pkg/CDOC-104sdoc11/pdf/CDOC-104sdoc11.pdf (p. 138).
[21] https://www.govinfo.gov/content/pkg/CDOC-104sdoc11/pdf/CDOC-104sdoc11.pdf (p. 89).
[22] https://www.govinfo.gov/content/pkg/CDOC-104sdoc11/pdf/CDOC-104sdoc11.pdf (p.1)
[23] https://www.govinfo.gov/content/pkg/CDOC-104sdoc11/pdf/CDOC-104sdoc11.pdf (p. 86)
[24] 430 U.S. 387 (1977).
[25] https://www.desmoinesregister.com/story/news/politics/2017/12/20/des-moines-child-killer-robert-anthony-williams-dead-73/971490001/
[26] https://www.desmoinesregister.com/story/life/2014/12/18/pamela-powers-kidnapped-urbandale-girl-murder-tragedy-christmas-eve/20566385/
[27] Here, criminals means that the evidence is more than enough to convict, and, given to any reasonable jury, it’s enough to indicate that they’ve done what they’re accused of.
[28] Olmstead v. United States, 277 U.S. 438, 485.
[29] 367 U.S. 643.
[30] 373 U.S. 83, 89 (1963).
[31] Arizona v. Hicks, 480 U.S. 321 (1987).
[32] Over the years, the Court has outlined many exceptions to the rule through which the government can pass. For example, something called the “inevitable discovery doctrine” was developed and applied against Williams. At the re-trial, the court suppressed evidence of Williams’ statements during the transport but permitted the evidence of recovering Pamela’s body because it was deemed likely that law enforcement would have “inevitably discovered” it anyway (they had been searching the general area). Under a Fourth Amendment violation, for instance, exceptions includes that, if law enforcement act in “objectively reasonable reliance” on a bad warrant, the invalidity of the warrant it is not held against them through the exclusionary rule. Generally, the Court determined that if punishing a specific violation would not act as a deterrent for law enforcement misconduct, the exclusionary rule did not apply. Also, the exclusionary rule does not apply in grand jury proceedings, civil proceedings, sentencing, probation or parole hearings or during impeachment. You get the idea.
[33] https://www.desmoinesregister.com/story/news/politics/2017/12/20/des-moines-child-killer-robert-anthony-williams-dead-73/971490001/
