Habeas corpus[1] – Latin for “you have the body” – is an important right for convicted prisoners. It allows for a review of the detainment of the individual who asserts that they are wrongfully detained. After the trial and appeals process, it is the method to ensure that the judges that oversaw the trial abided by the proper rules and that due process was afforded the convicted during the trial process, or to have the prisoner released before trial or conviction. While the “Great Writ” has had some changes to weaken it over the years with judicial interpretation and further legislation, it is still seen as a powerful tool to ensure judicial and police adherence to the Constitution and due process rights.
In Mapp v. Ohio,[2] a SCOTUS case decided in 1961, it was determined that evidence that was obtained in contravention of the 4th amendment must not be entered at trial against an accused in a state court. Previously the exclusionary rule had been in place in federal courts but not in state courts, leading to a disparity in the treatment of accused people depending on the court system in which they found themselves. The exclusionary rule is an important safeguard against police abuse and is meant to keep the 4th amendment intact. After all, if there was nothing stopping prosecutors from using evidence illegally obtained by police officers there would be little incentive to search within the bounds of the law.
Not only does this protect the privacy and freedom of individuals, it also protects people from prosecution for the myriad of things that can go wrong every day. If your driver’s license is expired, that’s a problem. If you are carrying a joint on your way to a friend’s house, that’s an arrest that could prevent you from ever getting a job again. If you are arrested for something and the charges are never filed or eventually dropped, the record of arrest can still go on your record, stopping most security clearances and potentially stopping other activities. For example, when you go to law school you are required to detail any experiences or encounters with the police as they can affect your ability to pass the character and fitness section of the bar exam, even if nothing ended up happening from it. If a friend dropped a joint in your car and the police illegally search it you could lose your job and be inapplicable for federal financial aid for school in addition to difficulty in securing another job. An arrest for “cocaine” which ended up being protein powder for your lunch could haunt you for years after the fact, all due to an illegal search. It is in the interests of everyone to keep the cops operating within the bounds of the law.
This exclusionary rule keeps the police from doing many things that otherwise would occur. For example, a dragnet approach that searched homes, vehicles, or people is illegal, but if it was admissible in court officers might be tempted to use that approach. If no evidence of wrongdoing was found the person searched could not sue on the grounds of hassle, breach of privacy, or property destroyed in the search. The first two would be deemed to be no real harm to the individual and the last would be seen as a consequence of the exercise of police authority. Nominal damages of $1 for a recognized trespass are generally awarded in civil suits of this nature, and the costs of securing that $1 are not enough of an impediment or deterrent to keep police from searching anyone or anyplace. Further, qualified immunity protects police officers from being punished for illegal behavior as long as no reasonable police officer would think that it was illegal.[3] Qualified immunity only allows suits to go forward when an official violates a “’clearly established’ statutory or constitutional right.”[4] Disallowing the admission of illegally obtained evidence, however, keeps police from committing egregious breaches of privacy as even if they found evidence it could not be admitted. Illegal searches would be purposeless as long as the evidence is excluded as fruit of a “poisonous tree.”
At trial an accused can object to the evidence admitted against them as the product of an illegal search. (This is a case which exemplifies the necessity of an engaged defense attorney.) If the trial court makes an error and admits the illegally obtained evidence it can be appealed after judgment but that can pose its own problems. 21 states do not allow state-provided representation at the appellate level for non-capital cases, and 14 more allow state-provided representation for capital cases only.[5] This leaves 7 states without a right to representation in any event (Alabama, Georgia, Massachusetts, Michigan, Nebraska, New Hampshire, and New York).[6] Four of those states (Alabama, Georgia, Nebraska, and New Hampshire) are states with the death penalty,[7] meaning that if a mistake was made at the trial level, the person would have to go up against state prosecutors pro se – alone and unguided – unless they could afford the cost themselves. Most cannot. And when a life is at stake certainty of guilt should definitely – ethically – be the most important issue.
Like much appellate work, most Habeas Corpus writs are filed pro se as well. They are subject to strict limits on timing (e.g., four years on a non-capital felony in the Georgia state)[8] and require that any and all claims must be brought up in the first Habeas Corpus petition.[9] If the petitioner failed to include all possible claims, even if it is unintentional omission based on a reasonable lack of knowledge, it can’t be amended later and is summarily dismissed without evaluation on the merits.
Habeas Corpus is the last line of defense against police indiscretion. Stone v. Powell, decided in 1976, forbid federal review of 4th amendment claims in Habeas Corpus as long as the petitioner had an opportunity to raise the matter in state courts.[10] This is almost universally the case as when evidence is introduced the defendant has the opportunity to object. But if the defendant is going pro se or has a less-than-attentive defense attorney an objection will not likely be made and illegally obtained evidence will be used against the defendant. At an appeal, the issue will likely be dismissed as “waived” at the trial level by lack of objection. Stove v. Powell did not overturn Mapp v. Ohio in that illegally obtained evidence was still not allowed at trial level, but it also reduced the remedies for those who were wronged by that introduction. Guilt or innocence, Habeas Corpus petitions on that issue would not be heard, so they would not be further reviewed for impropriety.
The majority’s opinion in Stone viewed the benefits of the exclusionary rule – deterrent from police wrongdoing – were no longer helpful at the level of a habeas review.[11] By then, the argument goes, the detained is so far from trial that no deterrent would even register for the police officers in question. Other cases regarding trial rights, such as the right to have an attorney present during a police interrogation while the detained is in transit[12] and Miranda rights violations[13] came up shortly after Stone and SCOTUS attempted (thankfully unsuccessfully) to extend the reasoning in Stone to these subsequent cases. These cases were, however, based on Constitutional rights and not “judicially-created remedies” such as the exclusionary rule.[14]
Habeas Corpus review can also reveal other trial irregularities: the withholding of exculpatory evidence from the defendant, manufacturing of false evidence, and perjured police testimony.[15] As these issues do not go to the guilt or innocence of the petitioner but rather are trial irregularities (even though grave ones) the same reasoning in Stone can easily be extended to support the dismissal of Habeas claims based around them. In Mapp v. Ohio the exclusionary rule was described as an “essential part of the right to privacy” guaranteed by 14th amendment due process, as necessary to prevent evidence that is “tantamount to coerced testimony, and to protect judicial integrity.[16] So clearly the deterrent effect was not the only reason to exclude evidence wrongfully obtained, but it was the only one mentioned in the Stone decision.
Our system of laws should uphold the constitution, not provide ammunition for those who would just get rid of anyone who could possibly be seen as a criminal risk in the interests of making the criminal system go faster. Imagine yourself as someone wrongly accused – would you want the full benefit of the law, or is “good enough” really good enough?
While We Slept 