On this day when we honor the former chiefs of our executive branch of government, it’s fitting to reflect on our role in the checks and balances that keep executive power from getting out of hand. The suppression motions we make every day are part of 250 years of history of Americans fighting against government intrusion.

In colonial America, British customs agents were granted writs of assistance that permitted them to search merchants’ homes and business for smuggled goods. These royal writs were basically broad search warrants that only expired with the death of the king who signed them. When King George II died in 1760, the  writs had to be renewed. Two attorneys took to the courts to fight the renewal of the royal writs on behalf of Boston merchants. John Adams, as a young lawyer observing from the gallery, referred to the argument as the birthplace of “the Child of Independence.”  Thus began our tradition of putting a check on executive branch agents (e.g. the police) poking their noses in our belongings.

The case was lost, and a revolution was fought. Public sentiment against those intrusive customs searches was so strong that Adams and other drafters of the Constitution included the Fourth Amendment. Flash forward two hundred years and the judiciary keeps the executive branch in check with the exclusionary rule. In Terry v. Ohio, Chief Justice Warren declared that it was the “traditional responsibility” of the judicial branch to scrutinize police encounters for misconduct, and, when it is identified, “it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials.” Yet in a system when only 2|PERCENT| of arrests are dismissed due to suppressed evidence nationwide, is the judicial branch letting the executive get out of hand?

The current crisis in confidence that police departments across the country are facing certainly suggests the judiciary is slacking in its duties. In response to police killings of unarmed (mostly black) people and an epidemic of racial profiling, reforms by the executive branch such as trainings, body cameras, and special prosecutors proliferate. But the judiciary, the one built-in governmental review mechanism that was intended to, and actually has the potential to routinely and independently scrutinize police misconduct, has not been a focus of reform. The judiciary can do more than suppress evidence. They can allow juries to hear about a police officer’s professional conduct to determine the officer’s credibility. Yet defense attorneys are often blocked from seeing, let alone scrutinizing or presenting an officer’s disciplinary history to the jury. When the defense is prevented from presenting evidence of executive overreach, judicial review is impossible and our democratic tripod falls off balance.  

Ta-Nehisi Coates has said that “A state that allows its agents to kill, to beat, to tase, without any real sanction, has ceased to govern and has commenced to simply rule.” To the extent that will change is the extent to which the courts actually perform their constitutional duties to check the power of the executive. Since the 1960s, the extension of the exclusionary rule to police street encounters and, of course, Gideon have given public defenders specifically strong tools for enforcing the Fourth Amendment in the courts. Yes, we get shut down a lot, but we make a record and maybe make an issue for appeal. At the same time we should support all the executive branch reforms (new trainings, body cameras, special prosecutors, etc), we should remind our local leaders what a vital role a robust public defender office plays in prompting routine judicial review of police misconduct and maintaining a working balance in our government branches.

Blog based on research from Conti-Cook, Cynthia “Defending the Public: The Future of Police Accountability in the Courtroom”, 46 Seton Hall L.R.  (pending publication May 2016).