Why Your Constitutional Rights Are Named After A Convicted Rapist
Do you ever get a particularly obvious or suspiciously specific edict from management and wonder where it came from? Wouldn’t the office be a happier place if they just named the rule after the person responsible, so we wouldn’t have to wonder? “No sleeveless shirts at the office” would become the Craig Rule. “Two-drink limit at the Christmas party” would be replaced with the Henry Clause. The random drug test would be renamed the “Doug Doctrine.” Sure, we’d still be subject to all of the same stupid regulations, but at least we’d have a story to go with them.
That’s the nice thing about the law. Whenever the court hands down some new mandate, there is usually a name and a story attached to it. Such as:
Miranda Rights
You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to represent you free of charge.
These four commandments were sent down the mountain from God himself, delivered on stone tablets by Saint Miranda, the patron saint of the interrogated. And by that I mean they were already a part of the United States Constitution, but were renamed in 1966 to honor a convicted rapist.
The United States Supreme Court was led by Chief Justice Earl Warren in the 1960s, and the Warren Court was very liberal and progressive for that era. That was a wonderful thing when they were trying to end segregation or ensure that all voters were treated equally. But it was more complicated when they helped violent criminals get away with heinous atrocities.
Miranda v. Arizona was one of four cases that the Warren Court reviewed simultaneously. The question in each case was whether or not the suspect’s confession should be admissible in court. Since Miranda’s case was the first of the four, the resulting decision ultimately took his name.
There had been a long ugly history in law enforcement of suspects being tricked, threatened or beaten into confessions for crimes that they may or may not have committed. The Warren Court acknowledged that the practice was rare by 1966, but not extinct. In response, the court determined that a confession should not be admissible in court unless the suspect was advised beforehand of specific elements of their 4th, 5th and 6th Amendment rights. Those elements became known as Miranda Rights.
You’d be hard pressed to find a less heroic figure than Ernesto Miranda. Miranda was arrested 14 times for drugs, auto theft, armed robbery and the like. The case that went to the Supreme Court, the one for which important constitutional rights are named, was a case in which Miranda kidnapped and raped an 18-year-old woman. The woman picked him out of a police lineup, and Miranda gave a detailed confession that left no doubt of his guilt. The police didn’t beat him, threaten him or trick him, and they even warned him that his statement could be used against him in court. It wasn’t good enough for the Warren Court though, who decided that the confession should be thrown out.
Sanity prevailed in the lower court, and Miranda was tried and convicted again even without the confession. He was sentenced to 20 to 30 years in prison, but paroled in less than half of that because that’s what we did with violent criminals back then.
To cope with the new Supreme Court mandate, police printed out cards that listed what had by then become known as the “Miranda warning.” Miranda autographed and sold the cards to capitalize on the fame he achieved from that time he raped a woman. He was stabbed to death in a bar fight on January 31, 1976, over a $3 card game. Police quickly identified a suspect, but after being advised of his Miranda rights, the man opted not to confess. By the time police had enough evidence to charge him, Miranda’s killer had disappeared to Mexico.
The Terry Stop
Have you ever been pulled over by the cops even though you weren’t actually breaking any laws? Settle down Karen, we know you haven’t. But Andre and Antonio know what I’m talking about. And what I’m talking about is a Terry Stop.
If police want to arrest us, first they need to establish what is referred to as “probable cause.” That isn’t a precise standard, but in essence, the police would need to establish enough facts that, when considered altogether, would cause a reasonable person to believe that you and I have committed a crime. But if police only want to stop us for a few questions, and maybe pat us down for weapons, they don’t have to have probable cause. They only need what is called “reasonable suspicion.” Reasonable suspicion is also an imprecise standard, but a lesser burden than probable cause. Reasonable suspicion only requires enough facts that would cause a reasonable police officer to believe that a crime may be committed. Reasonable suspicion is the basis for the controversial “stop and frisk” policies that have gotten police departments in so much trouble. And in law enforcement, those stops are called Terry Stops.
On October 31, 1963, Cleveland Police Officer Martin McFadden was working a plainclothes detail looking for pickpockets and shoplifters in a downtown business district. It was a beat he had worked for 30 years. On that particular day, he saw two men standing on a street corner who “didn’t look right” to him, so he watched them. The men would talk for a bit, then one man would casually stroll down the sidewalk to the end of the block, turn around and come back. On each pass, the man would stop to look into a specific store window. When one man got back, the other traded him places and did the same thing. They did this five or six times each, and then were joined on the corner by a third man who seemed very interested in what they had to say.
Even though the men were doing as clumsy and awkward of a job of casing the store as you’ll see outside of the Hamburglar, nothing they had done up to that point was technically illegal. But Officer McFadden decided to have a chat with them before the situation escalated. While he was having that chat, Officer McFadden did not wish to be ambushed by three armed felons, so he patted the men down for weapons. He found revolvers on two of the men, Richard Chilton and John Terry.
Terry was convicted of carrying a concealed weapon and appealed the case all the way to the United States Supreme Court. Eventually the court decided that Terry’s conviction should stand, that police didn’t necessarily have to wait for a crime to be committed before they could stop and question somebody and that police could pat down somebody’s clothing to search for weapons if they had a good enough reason to believe that the person was armed. Police tested the boundaries of the ruling for decades, resulting most famously in controversy and lawsuits involving the New York Police Department.
Richard Chilton was killed in a shootout with a pharmacy owner during an attempted robbery before his case reached the supreme court, thus denying his chance at being immortalized with a Chilton Stop. But Chilton’s nephew, Chris Chilton, went on to become a police officer for the Columbus Ohio Police Department. In a strange twist, one of Chilton’s instructors in the police academy was a police officer by the name of Bob Stewart. Bob Stewart was the nephew of John Terry.
Jackie Borchardt from cleveland.com asked Stewart in 2016 what his infamous uncle thought of Stewart’s career choice. “He said he didn’t see a lot of future in it.” Stewart said. “I said it was the same for me, but the other way around — I didn’t see a lot of future in what he was doing.”
Brady Cops and Giglio Material
I know there is a large segment of the internet that believes police never tell the truth. Ever. Under any circumstances. If you believe that, then don’t bother reading the rest of this section. It’s not going to make any sense unless you are willing to accept the idea that most police officers tell the truth. I understand if that’s a tough sell on the internet.
But if you are willing to believe that most cops tell the truth on police matters, then let me explain why it is such a big deal when they don’t. A police officer who has been caught in a lie, big or small, is labeled as a Brady Cop. And a Brady cop, for all practical purposes, can’t testify in court. And a cop who can’t testify in court can’t participate in any police activity with the potential to end up in court, which is essentially any police activity. So a Brady Cop is a cop who isn’t going to be a cop for long.
Which is kind of fitting, because the Brady behind “Brady Cops” was never a cop at all. He was an accessory to murder.
On June 27, 1958, Donald Boblit and John Brady murdered a man named William Brooks. They intended to steal Brooks’ car for a bank robbery, but it escalated to murder. Both men were eventually convicted and sentenced to death.
Brady insisted that Boblit had been the one to strangle Brooks and that Brady had not participated in the actual killing. Brady’s attorney did some digging and found that Boblit had admitted as much in one of five statements he gave to police. That particular confession was never given to Brady’s defense though.
It ultimately didn’t matter as far as the murder conviction was concerned. Brady knowingly participated in a crime that led to a death, which makes him culpable for murder whether he put his hands on the victim or not. But it did matter for sentencing. The jury might not have doomed him to the gallows if they had known the entire story. The Supreme Court overturned Brady’s sentence and it was commuted to life in prison. He was eventually paroled, became a truck driver, started a family and lived a quiet life on the good side of the law. A rare happy ending for the justice system.
When the Supreme Court (Warren again) overturned the sentence, they established what became known as the Brady Rule. Under the Brady Rule, prosecutors were not allowed to withhold information from the defense that might exonerate the defendant. That evolved to mean that the prosecutor had to disclose any information that might cast doubt on the credibility of any witnesses, which further evolved to mean the credibility of the police.
As a result, prosecutors in every jurisdiction in the United States keep a list of officers that they will not put on the witness stand because the required Brady Rule disclosures would doom the case.
Those are Brady Cops.
“Giglio material” is similar to Brady in its practical application. The Brady rule requires prosecutors to turn over any exculpatory information they have to the defense (information that might show the defendant was not guilty). The Giglio rule goes a step further and says that any information the prosecutor has that might impeach a witness must also be turned over the defense. Like in Brady, it frequently applies to police officers who have a documented history of trouble with the truth.
Much like in Brady though, Giglio v The United States didn’t really involve a police officer in any meaningful way. In June of 1966, John Giglio got caught passing several forged cashier’s checks. Further investigation revealed that he had help on the inside by way of bank teller Robert Taliento.
Taliento flipped on Giglio and testified at his trial. In exchange, Taliento was never prosecuted. Pretty standard stuff up to this point right? Taliento snitched and kept himself out of jail. I know, I know, “snitches get stitches.” Not usually in the real world though. Not all of the time at least. You see, everybody snitches in the criminal world. And the hard-ass claiming “I ain’t no snitch,” will snitch on his own mother to get 20 minutes knocked off his sentence. The more a convict insists otherwise, the more snitching they’ve done. Snitches get deals. And they hope their co conspirators don’t beat them to the punch.
The problem in Giglio was that the prosecution didn’t tell the defense that they made a deal with Taliento. In fact, the prosecutor who took the case to trial didn’t even know that his predecessor had made such a deal. The jury was under the impression that Taliento was testifying to unburden his conscience. Had they known he was keeping himself out of the pokey, they might have been less inclined to believe him. That’s the position the United States Supreme Court took anyway when they overturned the conviction and freed Giglio.
And that’s the story of how one court rule about untrustworthy cops came to share a name with a quarterback who has a questionable history of obeying the rules and another rule dealing with embarrassing secrets took a name that sounds an awful lot like fans of the Insane Clown Posse. Both appropriate, in their way, and both entirely coincidental.
Miller Test
Marvin Miller was a pornography dealer in California in the early 1970s. And really, once you’ve accomplished that in life, why would you aspire to more? And yet Miller did. He wanted to find the pornography enthusiasts of the world who did not yet know they were pornography enthusiasts. So Miller mailed advertisements throughout southern California for books and movies with such shocking titles as “Intercourse” and “Sex Orgies Illustrated.”
A restaurant owner in Newport Beach opened the brochure in front of his mother and called the police. I was inadvertently exposed to the sex scene from Howard the Duck under similar circumstances, so I can sympathize even if I think that it might have been overreaction to call the police.
Miller was charged with and later convicted of a misdemeanor count of distributing obscene material. He appealed that conviction all the way to the United States Supreme Court, where the nine highest ranking members of the American judicial system had to debate the artistic merits of Sex Orgies Illustrated. He lost his appeal and the conviction stood. But the Court invented a new test for determining whether or not something was obscene, and it was forever named after Marvin Miller.
In legal terms, the test is three pronged. The first prong required the court to determine if the average person, applying “contemporary community standards” would find that the work appeals to the prurient interest. The second prong required that the work depicted a sexual act in a patently offensive way. The last prong asked if the work, taken as a whole, lacked serious literary, artistic, political or scientific value. If it met all three standards, it was obscene.
The great debate now is about those community standards. How shocking does something have to be before it goes beyond the bounds of contemporary standards of an internet community founded on cat videos and hardcore pornography?
