Queens County Criminal Court began a new
felony gun court starting in January, 2004. The creation of this
court followed the implementation of a similar plan in Brooklyn.
The idea is that all felony gun cases will be tracked to one courtroom and
they will be dealt
with from start to finish in that one courtroom. The same judge will
do all the hearings and trials for gun cases and the cases will be handled
in an expedited manner.
The concept of a particular gun court is one that has drawn some
criticism among criminal defense lawyers and others concerned with civil
liberties.
The problem as some see it, is that gun cases frequently generate legal
issues that quite literally define the boundary between a police state and
what it means to live in a free society under our Constitution. This
may sound abstract, but here is why:
By their nature, guns tend to be small and
easily hidden. As a result, the police frequently find themselves
searching closed spaces and compartments, pockets, cars, and other areas
that we in America tend to think of as private personal areas not typically
available for Government inspection. Now in many cases, the police are
perfectly within their rights, whether for reasons of personal safety or
based upon specific
reliable information, to search the places they search.
The difficulties arise, however, when the police search locations or
people when perhaps there is little or no legitimate justification other
than the Government's persistent desire to see whether or not a crime
is being committed.
It was decided long ago by people like Thomas Jefferson and John Adams
that there really ought to be a line beyond which the Government ought not
be allowed to go just because one or more Government agent might feel like
seeing what he could find. Mr. Jefferson, Mr. Adams, and the others
attempted to help fix this line by writing the Fourth Amendment to the
United States Constitution. The Fourth Amendment, as written, was
really about trying to define the line between a Government's legitimate
need to investigate and punish crime and the citizen's right to privacy.
This concept of a citizen's right to privacy is a concept that represents
one of the basic and most important principles of our country. Indeed
it is a concept that quite literally helps to define what it means to be
free in the United States.
Now, while the Founding Fathers included this
important privacy concept in the Constitution, they weren't exactly clear on how to enforce it.
In other words, the Constitution tells us that we all have the right to
expect privacy against unreasonable Government intrusion into our lives, but
it doesn't say what happens if, God forbid, a particular Government agent
violates that expectation of privacy. Furthermore, it doesn't answer
the even more difficult question of what to do if the Government violates
that expectation of privacy BUT in violating a citizen's expectation of
privacy reliable evidence of criminal activity is discovered.
To put it simply, what happens if the police kick down my door for no
good reason, BUT when they come in to my house, they find an illegal gun?
The Constitution doesn't specifically say what to do about it. It just
tells us that it isn't supposed to happen.
Well, as more and more uncomfortable situations just like this occurred,
the United States Supreme Court finally told us what was going to happen.
In a landmark case, the United States Supreme Court said that the remedy for
violating this most basic of Constitutional rights would be that any
evidence obtained as a result of the violation would not be allowed to be
used against the person whose rights were violated.
In short, if the
police kick down my door for no good reason and thereby find an illegal gun
in my house, the gun would not be admissible evidence against me. The
Government would not be allowed to benefit from violating one of the most
important founding principles of our Constitution, even if it means that it
would not be able to prosecute me for illegal possession of a weapon.
The Supreme Court considered a number of different possible remedies
including simply leaving it up to the police to discipline police officers
who violate fundamental Constitutional principles. Among other reasons
for rejecting this alternative, the Supreme Court was not entirely confident
that the police would really police themselves. Furthermore, this is
not some trivial administrative police regulation that we are talking about.
It is a basic Constitutional principle that quite literally defines
citizens' relationships to their Government. In a world where getting
tough on crime is increasingly so popular, and in a world of ever increasing
mandatory minimums for more and more crimes, it would seem that the
punishment for Governmental action that undermines the very meaning of
freedom in America ought to be extremely severe.
Now why all this talk of lofty Constitutional
principles in an article about gun cases and the new gun
court? Gun cases, by their very nature frequently involve these sorts
of privacy issues. Guns are small and frequently found in secret
locations. Police are often quite curious about what people might have
in these personal and secret and locations. Therefore, as you can
probably imagine, the police will frequently invade these personal and
secret locations hoping to find things like guns.
And with police invading all sorts of
personal and secret locations in the quest for things like guns, you can
imagine that there will be times when the legitimacy of the police
intrusion might be called into question.
And if you agree that the line between
"legitimate" Government investigation and unwarranted Government
intrusion into the personal lives of citizens is a line that is
important to keep tabs on, then you will find that gun cases then become
an extremely important measure of where that line is.
Gun cases are serious enough and carry
sufficient prison sentences to make it worth it for people to litigate.
In other types of cases in which Fourth Amendment privacy issues occur,
the stakes may not be high enough to make it worth the risk to litigate.
So this is part of the problem of putting
all the gun cases in a given location into one particular Courtroom to
be decided. Rather than spreading the judicial responsibility
for "keeping the flame of freedom" among the full range of various
Judges and judicial temperaments in Queens County, the responsibility
will fall to one judge and one judge alone who will rule with absolute
authority in Queens County.
We all hope and believe of course, that this
new plan to place all the gun cases into one courtroom will result in a
Court specially sensitive to the staggeringly significant fundamental issues
frequently presented.
One of the most
troubling aspects of the press coverage of this new gun court is the
focus on increasing the punishment for gun cases in New York City with
very little if any focus on the opportunity presented to deal
thoughtfully and consistently with some of the tough issues of privacy
and freedom that gun cases routinely generate.
The most important message of the press
coverage was that gun cases were going to result in speedier
resolutions, higher conviction rates, and longer prison sentences.
There was little or nothing reported as said by Mayor Bloomberg or
District Attorney Richard Brown about a renewed scrutiny of Government
action that will be brought to bear in this new Court.
And there is the worry.
The messages of speedier resolutions, higher
conviction rates, and longer prison sentences are the sorts of messages
that might be appropriate as goals of a Prosecuting Government Agency,
but why the "Independent" Courts are participating is an interesting and
difficult question. For every quote from the District Attorney
crowing about longer prison sentences and higher conviction rates, one
would think there would be a quote from someone in the Court system
speaking of the opportunity to carefully scrutinize the serious
Constitutional issues that will inevitably be raised in a "gun court".
And yet there is silence on this issue.
People unconnected with the criminal justice
system also need to understand that these determinations with respect to
Government action in gun cases can very quickly and easily be
transformed into what amounts to a sham hearing in which almost anything
the Government agents testify to is accepted without question.
Here is how:
A "typical" gun case is one in which an
illegal gun is recovered from inside a car. Typically the police
will not actually be investigating a report of an illegal gun, but will
for some reason or another have cause to be interacting with people who
happen to be in a car. At some point during the interaction, the
police will take actions that will lead them to the discovery of a gun
somewhere inside the car. The occupants of the car (all of them)
are then all arrested and charged with possession of the same gun.
Frequently there is vast difference between
how the police say they came to take the actions that led to the
discovery of the gun and how the occupants of the car say the police
came to take the actions that led to the discovery of the gun. And
this is where the line between Government action and privacy is drawn.
The police frequently say things like:
1. The gun was visible out on the seat when
they approached the car
or
2. They observed the butt of the gun
sticking out from some otherwise hidden location inside the car.
or
3.
They observed some stray bullets rolling around on the floor of the car
as they approached and a further search revealed a gun under the seat.
The occupants of cars frequently say things
like:
1. The police immediately
ordered us out of the car, told us to shut up, made us lie down on the
ground or lean face down on the back of the car, and they tore the car
apart until they found (either nothing, a gun, or something else
illegal).
Now in some cases, of
course, it stands to reason that people will be foolish enough to leave
guns on seats as uniformed police officers approach to give them tickets
for speeding. In other cases, people will leave guns carelessly
sticking out of hiding places. And in still other cases, people
may forget to pick up those stray bullets they normally keep on their
car floors.
Nevertheless, the
frequency with which the police make these sorts of claims in
combination with the frequency with which people claim that the police
search first and tell you to shut up later would lead even the most
cynical of people to believe that maybe the gun butt wasn't showing from
under the driver's seat after all, and that maybe the police officer is
saying that so that a judge won't tell him that he had no right to
search the car.
Off the record,
just about anyone involved in any way with the criminal justice system
will usually admit that the testimony at these suppression hearings is
often not, to put it one way, of the highest quality. One
famous trial lawyer once suggested that on a scale of truthfulness or
reliability, police testimony at suppression hearings would
probably fall significantly below testimony of the Devil himself.
On the record, however, is always a
different story. And this would explain the extreme rarity with
which the Government is ever told that its agents acted improperly.
People imagine that "liberal judges" suppress guns constantly, thereby
allowing criminals to roam free out of court in leering mockery of
justice. The truth of course is that our liberal judges almost
never suppress evidence of case critical importance.
All of this is by way of explanation of the
danger of funneling all of these decisions into one Courtroom for one
judge. Rather than spreading the cases around among a variety of
judicial temperaments and perspectives, the cases will all be decided by
the perspective of whichever Judge happens to be the Gun Czar at any
given moment.
Of course familiarity
with the issues that arise and the development of a specialty could
result in quite a positive atmosphere. A wise and just person with
absolute power has the capability to do enormous good with astonishing
efficiency. But there is also the opposite possibility.
Our system of government was designed to
incorporate numerous checks and balances because our Founding Fathers
were well aware that great intentions and the hope that people in
positions of power will always rise to the occasion are simply not good
enough. Power must therefore be spread around.
And here is the danger of this Gun Court.
The problem is not with the gun cases themselves. The problem is
that gun cases carry with them some of the most significant and delicate
issues of freedom and privacy that are addressed in the criminal courts
of our country. The danger is that rather than being treated with
the delicacy that they deserve, these issues will be treated as
run-of-the-mill, assembly line stumbling blocks to speedier resolutions,
higher conviction rates, and longer prison sentences.
One legitimate question to be asked about
this new gun court, for example is whether the focused caseload of gun
cases will cause the court to carefully explore the Constitutional
privacy issues raised at hearings. Common practice in Queens is to
forgo the writing of formal legal arguments after these Constitutional
hearings in favor of off the cuff oral arguments followed by oral
decisions from the bench. Given the smaller focused caseload of a
Gun Court, one would expect the Court to want to explore issues more
formally and more thoroughly with written legal arguments after
hearings. Certainly written legal arguments are the better
practice and a more professional way to decide a matter of
Constitutional importance. Perhaps a Gun Court then will offer
lawyers the opportunity to more thoughtfully flesh out the issues in
these important cases.
One would
certainly expect that the extremely cynical approach of "hearing into
trial" would not be implemented. Hearing into trial suggests that
defense counsel conduct a Constitutional Hearing, and then immediately
begin picking a jury for the trial. Of course this assumes that
the Constitutional hearing will be LOST - a somewhat blatant and cynical
concession about the reality of criminal court (Where are all those
liberal judges?).
Of course the
parties involved in the creation of this Gun Court have nothing but the
highest motivations and best of intentions. It simply strikes me
as a dreadful mistake, not necessarily for what everyone hopes it will
be today, tomorrow or this year, but because of what it might well
become.
I hope to be proven wrong.
