I do want to apologize for the hostility or frustration of that comment. It had read as a drive by to me, but it wasn't a productive way to engage regardless. I sincerely appreciate you engaging, and I think your post does bring interesting points and I appreciate you taking the time to write them down.
> There's this shuttling back and forth between wide scope and narrow scope thats really hard to engage with.
I can very much see how it reads that way. My intent was to address the comment one or two up from yours saying that they were different because one is a crime, but that is very much a different conversation than this specific case. It feels a bit like I'm having two separate conversations on my end too, which is somewhat difficult for me to do without either writing a novel or losing track of nuance. I'll make an effort to keep this more constrained so it feels less like arguing with a moving target, that is certainly not my intent.
I'm with you on the parts that we agree on, and the parts that you think I'd agree with.
> Then from there, it feels like you're asking us to agree to:
The part that feels, to me, like it's not asking too much is that we already ask this of every other citizen in their everyday life. E.g. (and I apologize for not having a less contentious example) the ATF has repeatedly refused to set quantifiable standards for when someone is selling enough firearms to need an FFL. It's all about being "engaged in the business" and whether sales are for profit or collecting; there is no hard and fast "you must if you have X sales that meet Y criteria".
That's actually much more clear than it used to be; it used to just be "engaged in the business" and you just had to guess whether liquidating a collection made you in the business or not.
It doesn't feel like a huge step forward to say that the people pursuing crimes need to handle ambiguity at least as carefully as a private citizen. Especially considering that police can get a warrant as a definitive answer, where a judge typically won't answer hypotheticals from a citizen.
Furthermore, that was exactly how it worked until the good-faith exception was made in United States v Leon, in 1984 (not a joke, but I did have a chuckle. It's hyperbole but a cute coincidence). A significant portion of Americans were alive when the good faith doctrine didn't exist, and this evidence would have been fruit of the poisoned tree.
It's a little hard for me to accept that the Overton Window has shifted so dramatically that people are unwilling to accept a system they were born with.
> if cops did a thing that's not allowed moving forward, then it is a moral imperative for the cops to drop every case that involved doing the thing that's not allowed moving forward
I would argue for more nuance than that, but that's close. Briefly, I am arguing that evidence obtained via searches that are found not to be supported by the 4th Amendment is necessarily fruit of the poisoned tree, and should not be admissible as evidence in the case nor as evidence to obtain a warrant for a later search. That may result in the charges being dropped in some cases, and not dropped in others where there is other substantial evidence.
Conjecturing about this case, it seems like they would probably have to drop the charges. I don't know though, maybe they have other evidence obtained via other means they could use.
> ex. Miranda v. Arizona established what we call "Miranda rights"
Aside, but Miranda is an interesting example because he was re-tried without using his confession and the conviction stuck that time. An interesting example that a fruit of the poisoned tree policy does not necessarily require dropping charges.
I am perhaps out of the Overton Window here, but I don't see why that is an insane outcome of Miranda though I will certainly acknowledge that there would be fallout. My line of thinking is essentially that the text of the 4th did not change, which means that Miranda rights were free for anyone to claim at virtually any point in history (presuming they thought to make the argument). The outcome is necessarily prejudiced; either against defendants who could have argued for rights they didn't know they had, or against the judiciary for failing to establish that those rights exist at an earlier point. It makes sense to me for that to be prejudiced against the judiciary, because they are the arbiters of what rights people have, and had the ability to suggest and establish those rights at any point they wanted. Essentially if we were going to assign who is responsible for knowing that Miranda rights should exist before they did exist, I would expect that of the arbiters of rights far more than the defense attorney.
I am totally okay with that being unpopular, though. I'm not arguing for the majority of people, just myself.
> the principles you're espousing being applied there would lead to an obviously unacceptable outcome, so if your instinct is to say "yeah, do it, free everyone who talked to the cops!" I know you're just killing time doing a thought exercise --- which I do sometimes too! Not judgement.
Just to reiterate briefly, I do not think they should be immediately set free, but I do think they would be due a retrial without their confession (in the Miranda case specifically) if their confession is material to their conviction. It's not a thought exercise to me, but I may be outside the Overton Window.
I am aware that this would potentially result in some guilty people going free, but I would eat my hat if there wasn't a single person in jail or prison who was innocent and coerced into a confession that could have been avoided if they had known their Miranda rights. I also know that there are no absolutes in the law. It is absolutely a vague mess propped up by piles of precedent that can even be conflicting.
My contention is that given the ambiguity of the law and the power the government wields, defendants should be offered the full protection of the law as we currently understand it. I find the situation frustrating, which makes me look for a source to blame, but I think my real underlying sentiment is a feeling that it is unfair for citizens and defendants to suffer the consequences of the ambiguity the legal system.
It is hard for me to fathom the despair of someone who was innocent but confessed to a crime after a 12 hour investigation without knowing that they could remain silent or demand a lawyer. I cannot fathom the despair of watching the Miranda trial and knowing that their lawyer could have argued the same thing, but didn't, and now they're stuck in prison for however many years without any recourse.
That doesn't directly apply to this situation, because I do think this guy is guilty, but these precedents will be used in cases against innocent people. I find it a condemnation of our justice system if we are willing to risk the rights of innocent people to nail a few convictions.
If you have the time, I would really encourage reading the dissenting opinion in United States v Leon (I'll link it below). Justice Brennan has a far more well articulated opinion than me, that is likely less far outside the Overton Window. I'll leave a snippet that I find persuasive here, but the whole thing is worth at least a skim.
" In contrast to the present Court’s restrictive reading, the Court in Weeks recognized that, if the Amendment is to have any meaning, police and the courts cannot be regarded as constitutional strangers to each other; because the evidence-gathering role of the police is directly linked to the evidence-admitting function of the courts, an individual’s Fourth Amendment rights may be undermined as completely by one as by the other."
> There's this shuttling back and forth between wide scope and narrow scope thats really hard to engage with.
I can very much see how it reads that way. My intent was to address the comment one or two up from yours saying that they were different because one is a crime, but that is very much a different conversation than this specific case. It feels a bit like I'm having two separate conversations on my end too, which is somewhat difficult for me to do without either writing a novel or losing track of nuance. I'll make an effort to keep this more constrained so it feels less like arguing with a moving target, that is certainly not my intent.
I'm with you on the parts that we agree on, and the parts that you think I'd agree with.
> Then from there, it feels like you're asking us to agree to:
The part that feels, to me, like it's not asking too much is that we already ask this of every other citizen in their everyday life. E.g. (and I apologize for not having a less contentious example) the ATF has repeatedly refused to set quantifiable standards for when someone is selling enough firearms to need an FFL. It's all about being "engaged in the business" and whether sales are for profit or collecting; there is no hard and fast "you must if you have X sales that meet Y criteria".
That's actually much more clear than it used to be; it used to just be "engaged in the business" and you just had to guess whether liquidating a collection made you in the business or not.
It doesn't feel like a huge step forward to say that the people pursuing crimes need to handle ambiguity at least as carefully as a private citizen. Especially considering that police can get a warrant as a definitive answer, where a judge typically won't answer hypotheticals from a citizen.
Furthermore, that was exactly how it worked until the good-faith exception was made in United States v Leon, in 1984 (not a joke, but I did have a chuckle. It's hyperbole but a cute coincidence). A significant portion of Americans were alive when the good faith doctrine didn't exist, and this evidence would have been fruit of the poisoned tree.
It's a little hard for me to accept that the Overton Window has shifted so dramatically that people are unwilling to accept a system they were born with.
> if cops did a thing that's not allowed moving forward, then it is a moral imperative for the cops to drop every case that involved doing the thing that's not allowed moving forward
I would argue for more nuance than that, but that's close. Briefly, I am arguing that evidence obtained via searches that are found not to be supported by the 4th Amendment is necessarily fruit of the poisoned tree, and should not be admissible as evidence in the case nor as evidence to obtain a warrant for a later search. That may result in the charges being dropped in some cases, and not dropped in others where there is other substantial evidence.
Conjecturing about this case, it seems like they would probably have to drop the charges. I don't know though, maybe they have other evidence obtained via other means they could use.
> ex. Miranda v. Arizona established what we call "Miranda rights"
Aside, but Miranda is an interesting example because he was re-tried without using his confession and the conviction stuck that time. An interesting example that a fruit of the poisoned tree policy does not necessarily require dropping charges.
I am perhaps out of the Overton Window here, but I don't see why that is an insane outcome of Miranda though I will certainly acknowledge that there would be fallout. My line of thinking is essentially that the text of the 4th did not change, which means that Miranda rights were free for anyone to claim at virtually any point in history (presuming they thought to make the argument). The outcome is necessarily prejudiced; either against defendants who could have argued for rights they didn't know they had, or against the judiciary for failing to establish that those rights exist at an earlier point. It makes sense to me for that to be prejudiced against the judiciary, because they are the arbiters of what rights people have, and had the ability to suggest and establish those rights at any point they wanted. Essentially if we were going to assign who is responsible for knowing that Miranda rights should exist before they did exist, I would expect that of the arbiters of rights far more than the defense attorney.
I am totally okay with that being unpopular, though. I'm not arguing for the majority of people, just myself.
> the principles you're espousing being applied there would lead to an obviously unacceptable outcome, so if your instinct is to say "yeah, do it, free everyone who talked to the cops!" I know you're just killing time doing a thought exercise --- which I do sometimes too! Not judgement.
Just to reiterate briefly, I do not think they should be immediately set free, but I do think they would be due a retrial without their confession (in the Miranda case specifically) if their confession is material to their conviction. It's not a thought exercise to me, but I may be outside the Overton Window.
I am aware that this would potentially result in some guilty people going free, but I would eat my hat if there wasn't a single person in jail or prison who was innocent and coerced into a confession that could have been avoided if they had known their Miranda rights. I also know that there are no absolutes in the law. It is absolutely a vague mess propped up by piles of precedent that can even be conflicting.
My contention is that given the ambiguity of the law and the power the government wields, defendants should be offered the full protection of the law as we currently understand it. I find the situation frustrating, which makes me look for a source to blame, but I think my real underlying sentiment is a feeling that it is unfair for citizens and defendants to suffer the consequences of the ambiguity the legal system.
It is hard for me to fathom the despair of someone who was innocent but confessed to a crime after a 12 hour investigation without knowing that they could remain silent or demand a lawyer. I cannot fathom the despair of watching the Miranda trial and knowing that their lawyer could have argued the same thing, but didn't, and now they're stuck in prison for however many years without any recourse.
That doesn't directly apply to this situation, because I do think this guy is guilty, but these precedents will be used in cases against innocent people. I find it a condemnation of our justice system if we are willing to risk the rights of innocent people to nail a few convictions.
If you have the time, I would really encourage reading the dissenting opinion in United States v Leon (I'll link it below). Justice Brennan has a far more well articulated opinion than me, that is likely less far outside the Overton Window. I'll leave a snippet that I find persuasive here, but the whole thing is worth at least a skim.
" In contrast to the present Court’s restrictive reading, the Court in Weeks recognized that, if the Amendment is to have any meaning, police and the courts cannot be regarded as constitutional strangers to each other; because the evidence-gathering role of the police is directly linked to the evidence-admitting function of the courts, an individual’s Fourth Amendment rights may be undermined as completely by one as by the other."
https://www.courtlistener.com/opinion/111262/united-states-v... (you have to click the Dissent tab, I can't link directly to it and dissenting opinions seem to be difficult to find deep links for).