Taking extreme liberty with spatial, temporal and stark reality, I post about my chat yesterday with New York Times’ Legal Smeagle Adam Liptak.  I’ve had my issues with Adam in the past, and since he’s slated to be the voice of the Supreme Court for a fairly credible newspaper, I couldn’t ignore it any longer.  Not after Adam wrote this article. 

After brief pleasantries, we settled down to our drink.  I voted for a beer, but Adam insisted on green tea due to its herbal healing qualities and the possibility that it would induce the growth of hair.

Adam, there are way too many people reading your articles for you to play so fast and loose with the truth…

         What!  I don’t do that.  I would never do that.

Adam, you wrote

The United States is the only country to take the position that some police misconduct must automatically result in the suppression of physical evidence. The rule applies whether the misconduct is slight or serious, and without regard to the gravity of the crime or the power of the evidence.

What were you thinking?

         But that’s true.  It’s true, true, true.

Not only is it not true, but it’s completely misleading.  First, the exclusionary rule doesn’t come into play because of “police misconduct,” but because the police have violated a defendant’s rights under the 4th Amendment.  

         It’s the same thing.

Not even close.  Misconduct encompasses a huge variety of wrongs, from a good beating to lying under oath.  You remember “testilying”, don’t you?

         I never believe it happened, by the way.  It’s just another liberal plot.

Sigh.  Let’s save that one for another day and focus for the moment on this one article.  Are we clear that it’s not about “police misconduct?”

         I suppose, maybe.

Now let’s talk about the word “some”.  You stuck that in there to suggest that no matter how trivial the “misconduct”, the criminal would beat the case, right?

         I was just trying to be accurate.  Is it my fault that suppression sucks?

Cut the crap, Adam.  There’s no “some” involved.  Either the cops made an unlawful search or they didn’t.  That’s the question, and the only question.  Your “little bit pregnant” allusion is designed to feed into the wackos who love to call constitutional violations “technicalities”.  Admit it.

         But some of them are my best friends…

Yeah, like you have friends.  Anyway, let’s get to my favorite word choice in this polemic, “automatically”.  You want to explain that one?

         Well, they have to suppress if the cops did something wrong.  The judge has no choice!

Slow it down there, buckaroo.  Do you know how many exceptions to the rule of the 4th Amendment now exist?  According to my good buddy, Norm, it’s up to 479 as of today, except in the State of Washington where it’s 478.  Any judge who can’t find an exception to allow an unconstitutional search is a disgrace to the robe.

         But all those activist judges and their revolving door justice?

You have got to stop reading George Will.  Just take a look at the cases, man.  Maybe one in a hundred ends in suppression.  Maybe less.  It’s almost as rare as hen’s teeth.  Why are you trying to make it seem like it happens all the time?

         Because if I didn’t, then my whole story would be a load of garbage and they 
        would make me go back to work in the legal department in a little cubicle.

But your story was about how other countries don’t have the exclusionary rule.  How Cardozo ridiculed it, and how the Supremes may get their chance to play with Mapp v. Ohio when they decide Herring v. US next term.  You could have told the truth and still written an interesting article.

        Yeah, but do you know how hard it was to find anybody, even a law professor, who
        thought the exclusionary rule was a bad idea and should get tossed?  Even my old stand-by,
        Orin Kerr, thought it was justified by historical experience.  I mean, I had to find
        some Yale guy, Akhil Reed Amar, who wrote a 1994 Harvard Lampoon, I mean Law Review,
        article to get a negative.  Yale, for Pete’s sake!

So do you think there might be a reason why all these people think that the exclusionary rule is needed to stop the cops from playing with the 4th Amendment?  Now drink up your green tea.  I think I see something sprouting up top.

Note to Self:  Remind readers at some point that this conversation never happened, that Adam Liptak won’t take your calls and even though he reads Simple Justice religiously, pretends that he doesn’t know you at parties.

H/T Mike at C&F