One Woman’s Stand: The Dolly Mapp Story

December 17th, 2014

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause …”

-Amendment IV, U.S. Constitution

As obituaries go, this one wasn’t front-page news.  She was 91 years old, and had never been a subject of media scrutiny or interest but for one incident in her life.  But that one incident, and her resolve in dealing with it, had a profound impact on the way one of the country’s most basic freedoms has been interpreted.

Her name was Dollree (Dolly) Mapp.  She died on the last day of October this year.  The incident that made her life noteworthy occurred 57 years earlier, and it led to one of the country’s more significant Supreme Court decisions, one that extended the protections of a key provision of the Bill of Rights to all Americans.

Her story transpired as follows: On May 23, 1957, three police officers arrived at her home in Cleveland and demanded to enter.  They wanted to question a man they believed was in the home about a recent bombing.  Ms. Mapp refused to allow them entry unless they produced a search warrant.  The officers retreated and returned a few hours later, at which point they forced themselves into the house.  Ms. Mapp again asked to see a warrant.  One of the officers held up a piece of paper he claimed was a warrant.  Ms. Mapp snatched it and stuffed it into her blouse.  The officer reached inside her clothing and took it back.

The officers then handcuffed Ms. Mapp, calling her “belligerent,” and searched her bedroom and much of the rest of the house.  They never found the man they were looking for, but they did retrieve what they said were sexually explicit materials that Ms. Mapp told them had belonged to a previous border in the house.  She was arrested on obscenity charges and was convicted and sentenced to prison.

Four years later, Ms. Mapp having exhausted all of her state court appeals, the U.S. Supreme Court took up her case.  At first the Court thought it would review the obscenity statute she had been convicted under (as a possible First Amendment violation).  But in the decision the Court ultimately made, it addressed a much more significant issue, to wit: whether Ms. Mapp had been subjected to an illegal search in violation of the Fourth Amendment, and, if so, whether she was entitled to have the evidence seized in that illegal search excluded from her trial by virtue of the Exclusionary Rule (the Rule).

The Rule had been recognized by the Court for many years in all federal prosecutions as a means of enforcing the Fourth Amendment against illegal federal searches (searches conducted by federal authorities like the F.B.I.), but it had rejected application of the Rule to state court prosecutions by refusing to consider that the Rule itself was implicitly part of the Fourth Amendment prohibition.

But in the landmark decision of Mapp v. Ohio, the Court reversed its prior rulings by a 6-3 vote and declared definitively that the Exclusionary Rule was imposed on the states by virtue of the Fourteenth Amendment’s due process clause, which incorporated the provisions of the Fourth Amendment and made them applicable to the states.  The Court declared in its majority opinion that “the state, by admitting evidence seized unlawfully, serves to encourage disobedience to the federal Constitution, which it is bound to uphold.”

The effect of the decision was to turn state court prosecutions in a vast number of cases on their head.  In any instance where a warrantless search or a search secured through an improperly granted warrant had been conducted, a defense could be asserted in pre-trial motions that, if successful, would deny the prosecution the ability to prove its case (because the necessary evidence would be excluded from introduction at trial).

Simply stated, defendants like Dolly Mapp were now released from custody and freed from prosecution by successfully asserting that their Fourth Amendment rights had been violated.  The decision also had the effect of opening police procedures up to far more intense scrutiny as defense lawyers (I was one of them) would comb through police reports to look for flaws in the investigative process that led to the grant of a search warrant.  If a warrant had been obtained from a magistrate by virtue of undocumented suspicions or because of unnamed (and presumably unreliable) informants, the warrant could be contested in a pre-trial suppression motion.

The media began to use the term “technicality” to describe such releases from prosecution of defendants who otherwise appeared guilty (or at least potentially guilty).  Richard Nixon ran two successful presidential campaigns on a “law-and-order” theme by claiming that the Rule had allowed too many guilty individuals to escape prosecution.  Years later, the Court began a process of limiting the impact of the Rule, beginning with a decision in 1984 that allowed for an exception to the Rule when the police had acted “in good faith” in securing and executing an improperly granted warrant.  Other decisions have also restricted the use of the Rule by defendants in criminal cases, but the heart of it is still intact, and it has undoubtedly had a prophylactic effect in securing for all Americans the freedom from unreasonable searches and seizures that the Constitution guarantees.

For that fact, the country has Dolly Mapp to thank.  To be sure, she isn’t about to have monuments built in her honor.  She isn’t being compared, for example, to Rosa Parks, who also defied the guise of lawful authority when she refused to move to the back of the bus a few years before Ms. Mapp refused entry to those warrantless officers.

But in her own act of defiance, her own claim to her constitutional rights, Dolly Mapp was a hero of equal stature and importance: a woman who made a difference, not by the life she led, but by the stand she took on a single occasion when her only resource was the country’s Constitution.

On Police-Created Homicides and the Protests that Follow Them

December 11th, 2014

“Why can’t we all just get along?”

-Rodney King

I once had a friend who was a seasoned highway patrol officer.  In a particularly memorable conversation, he explained to me how he avoided the kind of problems that lead to administrative reviews and related disciplinary action.

“I never engage in ‘gotcha’ policing, Ed,” he told me.  He went on to define that term.  “It’s when I could stop a driver for a nit-picky infraction” (he was referring to the classic burnt-out tail-light), “or respond with hostility to an angry driver I pull over for speeding.  There are tons of ways that police work can become adversarial, and in most instances it shouldn’t.  We have a job to do, but we don’t need to cop an attitude in doing it.  The uniform does enough of that for us.  I’m much more concerned with confrontations I can avoid than with adding another citation to my report.”

In my years of driving, I’ve been pulled over by cops like my friend and by cops who don’t follow my friend’s approach.  The former are always courteous and respectful; the latter are just plain nasty, daring me, it sometimes seems, to question their authority or to mouth off with any kind of objection to their attitude.  Of course, I always refrain from giving those in the latter camp the satisfaction of anything other than my license and registration.  I’m not about to test their ego or their ability to make my life a whole lot more miserable.

In this manner, I have avoided any kind of incident such as might have gotten me arrested or handcuffed.  Thus, speeding tickets and the like aside, I have a clean record.  But I’m an attorney, I’m white, and I don’t think my demeanor or appearance would otherwise suggest that I might be potential trouble or pose a danger to an armed officer of the law.

Police work is hard.  Let’s agree on that point.  Any interaction a cop has with anyone on his or her beat can be dangerous.  That’s why they are given guns and other weapons.  The hope is that they will never have to use any of them.  The reality is that they sometimes do.

Now let’s talk about the kind of interaction that leaves the person the cop has interacted with dead.  There have been more than a few of those in the news recently, and while every situation is unique, they all seem to have one fact in common: in each instance the dead person was black.  Those deaths have led to accusations of police bigotry, or police brutality, or of police incompetence, or of poor and inadequate training.  Those accusations have been met with vehement denials, albeit in most instances the police officers involved in the deaths have at least been put on administrative leave.

Let’s consider the charges in order:

Police bigotry – Are there bigots on the police force in any given community?  Almost certainly.  There are bigots throughout our society.  It would be unusual if that kind of individual didn’t occasionally end up in a police uniform.  That bigotry exists on a given police unit, however, does not mean that the death of a black individual at the hand of a specific police officer was due to bigotry.

Police brutality – Are there police officers in any given community who are either short tempered or bullies by nature?  Almost certainly.  Those types of individuals also exist throughout our society, and it stands to reason that the lure of the badge, the uniform, the baton, the gun, would be appealing to some who are inclined to “get physically aggressive” in certain instances.  But the existence of such individuals on a given police force does not necessarily mean that the death of an individual who came in contact with a specific police officer was due to police brutality.

Police incompetence – Are there police officers in any given community who are just not competent in their work?  Almost certainly.  Incompetence is part of the human condition, either by virtue of the Peter Principle (everyone advances by promotion to a level of ultimate incompetence) or because that’s “how God made us” (to borrow an expression).  But the likelihood that police incompetence exists in any given police force doesn’t mean that incompetence led to the death of a particular individual at the hand of a particular police officer.

Poor training – Are some police officers poorly trained for the tasks they perform?  Almost certainly.  Even the best police departments struggle to provide the necessary training in the more sophisticated and nuanced areas of the work the officers are required to do.  When is it appropriate to draw a weapon?  When should the weapon be fired?  Should it ever be fired to wound or disable rather than to kill?  These aren’t textbook lessons.  They are often taught by senior officers who may never have had such an experience themselves.  And even the best of teachers can still not get through to students who, for whatever reason, aren’t open to learning from them.  (I can definitely attest to this point.)  But the likelihood of poor training in any given police squad doesn’t mean that lack of sufficient training led to the death of a particular individual at the hand of a particular police officer.

Some deaths of innocent victims of police action are accidents; some are justified; some are caused by ordinary negligence and therefore aren’t criminal; some are caused by criminal negligence and therefore are; and some, but probably very few (far fewer than non-attorneys would expect), are murders.

Police officers are human beings.  They are forced to act in highly perilous circumstances that require split-second judgments.  Some are better equipped to deal with those circumstances than others.  Some police officers shouldn’t be police officers.

None of the foregoing addresses the injustice of the loss of an innocent life due to the act of a police officer.  Injustice is never fair, always infuriating, and rarely correctable.  It’s human nature to protest, angrily and even irrationally, against injustice.  That, too, it would seem, is how God made us.


Nolan’s “Interstellar” and Kubrick’s “2001”: A Comparison

December 6th, 2014

Christopher Nolan is reported to have first seen Stanley Kubrick’s “2001: A Space Odyssey” when he was seven years old.  The experience was impactful, as Nolan then began to shoot films using his father’s Super 8 camera.  By the age of eleven, he had determined to be a professional filmmaker.

It would be easy to conclude that Kubrick has been a heavy influence on Nolan’s career.  As visionary as Kubrick was in his day, so has Nolan been in his.  Beginning with “Memento” in 2000, Nolan has directed (and often written or co-written) a succession of provocative and critically-acclaimed films that have often pushed the envelope in terms of what movies can be.

In “Memento,” Nolan focused on a character who suffered from anterograde amnesia.  To give the audience a sense of what this malady would be like (the victim cannot remember anything that has just happened), the film presents the character’s story in reverse chronology, leaving the audience as mystified by the events that are depicted as the central character would presumably be.

The film was a huge success, both artistically and commercially, and Nolan followed it with a succession of equally admirable, if not quite so mind-bending, efforts that culminated several years ago with “Inception,” a masterpiece that played with the idea of dreams as alternate realities and that left audiences guessing as to what really happened in the film’s climactic scene.

Nolan’s film-making career to date, now well into its second decade (he is 44 years old), has led many to view news of his latest effort with the same kind of excitement that greeted Kubrick’s releases (few and far between though they became).  Thus, when news came out that he was working on a sci-fi project that could be this generation’s “2001,” movie buffs and critics prepared themselves for another momentous event in the history of cinema.

“Interstellar” does bear some similarities to Kubrick’s masterpiece, but they are not of the kind that suggest this film will rank as the most noteworthy of Nolan’s career.  In fact, on many levels, the film is a disappointment, notwithstanding the obvious serious intent and purposeful effort Nolan took in making it.

(Spoiler alert: In what follows, I will be discussing details of the film that would spoil the first-viewing experience for many.)

One comparison that could be made between the two films is that both are arguably longer than they need to be.  “2001” was deemed overly long when it debuted despite the fact that it was released with a built-in intermission (in those days, blockbuster films often had intermissions, especially when they were shown in reserved-seat theaters) and only ran for two hours and eighteen minutes.  But it contained long stretches of balletic scenes that involved nothing more than a space craft docking to a space station (to the languid music of Johann Strauss’s “Blue Danube Waltz”).

Nolan’s film is longer than Kubrick’s (by 30 minutes), but where the extra minutes in “2001” are mood-setting (and could be considered essential), some of the bulk in Nolan’s film is just excess.  In particular, the opening segment that gets the Matthew McConaughey character to the hidden NASA headquarters seems completely unnecessary, if not confusing, since his arrival was apparently expected or at least desired by the agency’s leaders.  And the entire sequence that is built around the Matt Damon character seemed, to me at least, entirely unnecessary to the storyline and the theme of the film.

That complaint aside, it is no doubt true that both films explore the unknown in terms of space-time travel and things like black holes and wormholes.  But where “2001” used those concepts to project a philosophical vision, in “Interstellar” they are merely plot devices that create no small amount of dramatic impact, to be sure, but that also lead to some confusing resolutions as well.

How, for example, (big spoiler alert here) does the McConaughey character get back to the new planet (no longer planet Earth) on which humanity has re-established its population?  The science behind this “return” is never explained, nor is it particularly plausible.

Of course, much the same can be said of the Keir Dullea character’s “trip” into the “Beyond the Infinite” in Kubrick’s film, but his travel is much more metaphysically based and much less dependent on astro-physics or theories of relativity.  In fact, of all the criticisms of Kubrick’s movie, few attack the last act, since by then it is obvious that the science fiction aspect of the film is merely the vehicle for Kubrick’s metaphysical “message,” if such it was.

And that difference is everything in comparing the two films.  Where Kubrick sought to suggest (if not embrace) a Nietzschian view of humanity’s destiny, Nolan appears content to wrap his tale up in a homage to love and family ties, which are undoubtedly crowd-pleasing sentiments, but hardly the stuff of ground-breaking cinema.

Where Nolan does succeed immeasurably in “Interstellar,” as might be expected, is in the craft of film-making.  His film is visually appealing and dramatically engrossing.  Just contemplating a futuristic planet Earth on the verge of extinction is enough to stir the interest of most viewers, and the thought that new worlds might be populated to save the human race is certainly an intriguing, if oft explored, concept for true sci-fi buffs.

And in both the McConaughey and Anne Hathaway characters, Nolan creates people who are believable and heroic, necessities in a film that depicts humans struggling to secure not just their own survival but that of the entire species.

So “Interstellar” doesn’t lack for a grand theme, and it certainly delivers as a sci-fi thriller.  Whether the neatly wrapped-up ending will be as satisfying to critics, however, as it is likely to be to mass audiences is problematic.  And whether mass audiences will endure the almost three-hour film with the patience that it requires may be more problematic still.

I expect that “Interstellar” will make some money, but nothing close to what “Inception” did, and that it will secure a few Oscar nominations in the technical categories but will fall short of any major awards.

Then again, that was also the fate of “2001.”


Give Thanks: Life’s Pains and Heartaches are All Relative

December 4th, 2014

She entered my office tentatively, which told me immediately that she was not in a good place emotionally.  She was one of my first-year students, and I had sensed all semester that she may not have been adapting to the rigors of law school all that well.

I bade her to have a seat across from me and asked her how things were going.

“Fine,” she said, and almost before she finished the word, she was crying.  “I failed my Torts mid-term,” she said through her tears, “and I don’t have any idea what I should be doing on the memo you expect us to write.”

She was one of the students I worry about the most: a 2014 graduate from a third-tier undergraduate school who had probably never had to work very hard at her academic assignments to get by with adequate grades.  Now she was in over her head, with carloads of work being thrown at her every day from me and my faculty colleagues.  It’s part of the method at my law school, intended to impose a form of self-discipline that we believe is essential in the practice of law.

But she hadn’t expected it to be as hard, as demanding, as it had turned out to be, and now she was facing the cold reality that she hadn’t, to this point at least, been up to it.

“I just feel like I’ve thrown away thousands of dollars,” she continued as her tears flowed.

I felt for her, understood her pain and disappointment.  And I was midway through a kind of “buck-up, you can do it if you try” kind of speech when I realized that she wasn’t even listening to me.  I stopped talking and just let her cry.  If she had been my daughter, I would have hugged her and then told her to get to work, but she wasn’t and I really couldn’t do either.

And so we just sat for a few minutes, she crying and I hoping she would at least ask me to help her or to give her advice or otherwise commiserate with her.

And then, suddenly, a second student appeared in my doorway.  She was in my other first-year class, and was the exact opposite of the first student: an older woman (mid-30s) who was always prepared and seemed very focused on the requisites of being a good law student and, someday, a good lawyer.

“Professor,” she said, “I’m sorry to interrupt your conference, but I just need to tell you that I probably won’t be able to attend your class tomorrow night.”

And then, before I could even inquire why, she also started to cry.  She had, she said, just been tentatively diagnosed with Stage 4 breast cancer, and she would be undergoing further tests all day tomorrow in preparation for intense chemotherapy to start next week.

I sat in semi-shock for a moment.  I knew I should say or do something, but I felt immobilized.  Finally, I mumbled something that was far too trite and insensitive for the moment, something like “attitude is critical,” which was the best I could do under the circumstances.  I should have given her a hug, but she’s a student and a woman, and unconsented touching can be misconstrued, or so we are told by the HR folks.

In any event, I did, essentially, nothing, all the while pondering how imponderable the entire scene was, what with two students crying for entirely different reasons, each having come to me for comfort or understanding or whatever humans reach out to others for in times of pain and crisis.

Finally, after what seemed like about an hour but was probably only a minute or so, the second student recovered and left.  “I have to get to class,” she said.

I turned my attention back to the first.  She had stopped crying.

“I guess everything is relative,” I said, again pointlessly.  And sure enough, she started crying again.

Ultimately, she did allow me to give her some assistance on the memo I had assigned.  Most of my advice required harder work, much harder work, than she had been putting into my course to that point, but it was the only advice that would turn her prognosis around in my class.  I thought, as she left, that she had half understood and half rejected my advice, but it was the best I could do under the circumstances.

Everything is relative: one person’s pain and heartache can pale in comparison to what might be considered another’s worst nightmare.  Or, as I tell my students: Life is hard; law school is optional.

The first student came back to see me last week.  She had done all the extra work I had assigned her and had done it fairly well.  I was pleased and told her so.

“Yes,” she said, “I feel better now about my chances.”

The second student dropped by to see me before class a few days later.  She had her head shaved but looked surprisingly cheerful.

“I’m starting the chemo tomorrow,” she said.  “I’ve had all the tests and been fully prepped, and now I just have to endure six months of hell, and then, if the cancer regresses, they’ll do the double mastectomy and I can get this thing behind me.”

I started to say something about how strong she was being.

“Attitude,” she said.  “It’s just what you told me.  Attitude is everything.”

She gave me a big smile as she left.  Later, in class, she was as involved as ever, helping other students with their recitations and generally acting like the A student I had fully expected her to be, the A student that she was still committed to being.

Reflecting on her reaction to the sudden trauma that had inflicted itself upon her life, I recalled my own battle with cancer, now almost nine years ago.  I only had Stage 3, which was scary enough, but I determined to get through it (or to die trying), and I guess that’s the secret, if there is one.

Happy Thanksgiving, everyone.