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A Mapp to Freedom: Defending the Guilty.

Defending the Guilty: A Mapp to Freedom!

I’m asked A LOT how can I defend someone I KNOW is guilty . . . The answer is: Easily and with a clear conscious!

Simply put, unless we MAKE the government prove its case beyond a reasonable doubt, innocent people WILL go to jail.  When a society puts innocent people in jail, the citizens will have empathy for those jailed and lose faith in the justice system.  Once faith is completely lost the people cannot trust the government (I know, many don’t have much faith in the justice system now, but by and large MOST of the people in prison are guilty). I stridently agree with The Supreme Court’s reasoning in Mapp v. Ohio (discussed below)* that “the history of the criminal law proves that tolerance of shortcut methods in law enforcement impairs its enduring effectiveness."


OUR Constitutional Rights MUST be defended!  The comforts and “rights” we enjoy today have not been around that long.  Despite the language in the US Constitution,  it was only 50 years ago that the U.S. Supreme Court decided the case of Mapp v. Ohio, 367 U.S. 643 (1961)*.  In Mapp police officers forced their way into a lady’s home under the guise of “looking for a bombing suspect”.  Once in, they forcibly detained and handcuffed Ms. Mapp and rummaged through her dresser and a locked trunk in her basement.  They found “obscene material” (but no suspect) and convicted her of obscenity.  It was only in that case that the Supreme Court determined that evidence obtained in warrantless searches, or otherwise obtained illegally by police, could not be used to convict a person in state courts.

The Mapp court rationalized, "constitutional provisions for the security of person and property should be liberally construed. . . . It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon."  Additionally, “The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land."  In conclusion, The Court reasoned, “The criminal goes free, if he must, but it is the law that sets him free. 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.”

This “technicality” is today one of our cornerstones for privacy (we lawyers refer to it as the “exclusionary rule”).  It is supposed to have a deterrent effect on the police, for if they can’t use the evidence against you, they have no case. (Of course there are MANY crooked and corrupt police, but that is a different article). Only 50 years separate us from when the state could barge into your house, handcuff you and search your underwear drawer.   Unfortunately, in this difficult and emotional time after 9/11, the terrorists are in a way winning an insidious war.  The government today, under the grossly misnamed “Patriot Act”, has more rights to conduct “unconstitutional” searches and invasions of privacy.  The full implications of the “Patriot Act” are beyond the scope of this blog, but we must remember freedom and liberty are two of the cornerstones of this great republic.  They should NEVER be sacrificed!

One of our founders, Benjamin Franklin, put it best.  He opined that “those who give up liberty for safety have neither”**  For if the state breaks the law to uphold the law, which one is the criminal!?

So, how does this relate to defending a guilty person?  I don’t do it just for the criminal.  I do it for America.  I do it to protect our Constitutional Rights.  I do it to keep a bigger enemy at bay; an enemy which eats and gnaws away at the constitution; the enemy of a police state.  Remember, the FIRST thing Hitler did was suspend the German constitution (Less than a month after Adolf Hitler’s appointment as chancellor in 1933, the Reichstag Fire Decree invoked Article 48 of the Weimar Constitution, suspending several constitutional protections on civil rights. The articles affected were 114 (habeas corpus), 115 (inviolability of residence), 117 (correspondence privacy), 118 (freedom of expression /censorship), 123 (assembly), 124 (associations), and 153 (expropriation).)

DO NOT take your freedom for granted!  Give up too much liberty for safety and soon you will have neither.  The land of the free and home of the brave!  Be brave! Fight for freedom!  Fight in your own way as your conscious allows.  For me I do what I can ...  One case at a time.


*To scholarly purists, I apologize for “citing” dicta and understand that the import of  Mapp v. Ohio, supra is that it merely applies the exclusionary rule to the states through the 14th Amendments “due process” clause . . . or does it stand for more?  Dicta that strong and moving is, nonetheless, moving!

**Actually, though Franklin is said to have said and written this multiple times and in various permutations; one actual quote reads, “Those who would give up Essential Liberty, to purchase a little Temporary Safety, deserve neither Liberty nor Safety".

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