Prevent Future Law Enforcement Lawlessness
Washington, DC (September 6, 1995) -- With Congress now focusing public attention on the law enforcement lawlessness that contributed to the tragedies at the Branch Davidians' Mount Carmel Center near Waco, Texas, and the home of the Weaver family on Ruby Ridge, Idaho, congressional leaders must adopt reforms to strengthen Americans' constitutional protections against such misconduct, and abandon proposals that would further weaken them, wrote Robert Fogelnest, president of the National Association of Criminal Defense Lawyers (NACDL) in a letter to congressional leaders on the eve of Senate hearings on the Ruby Ridge incident.
"You're exposing to the American people the corrosive type of lawlessness that was precisely the reason our nation's founders sought to protect citizens' rights through the Constitution and Bill of Rights," Fogelnest, a New York City attorney, wrote. "These are just two of the most egregious recent examples of increasingly powerful federal, state and local law enforcement agencies running roughshod over the rights of Americans."
"I applaud you for focusing the light of public awareness on such lawlessness, but I also implore you: do not leave the task of reform undone," Fogelnest wrote.
The Waco and Ruby Ridge cases have much in common, he said. Both involved:
- violations of Americans' Fourth Amendment rights;
- use of excessive force; and
- prosecutorial and investigative misconduct.
To prevent future tragedies, Fogelnest urged congressional leaders to take the following actions:
Drop a Senate proposal to abolish the exclusionary rule, the only effective way for courts to enforce the Fourth Amendment's prohibitions on unreasonable searches and seizures;
Drop a House proposal (hurriedly passed in February, as H.R.666) to create a "good faith" exception to the exclusionary rule for searches and seizures conducted without warrants;
Legislatively overrule the Supreme Court's aberrational 1984 decision in U.S. v. Leon, which created a "good faith" loophole for searches and seizures based on flawed warrants;
Establish requirements, more protective of citizens' rights, for obtaining warrants, particularly those based on purported "tips" from unnamed informants;
Refrain from authorizing Kafkaesque "roving" electronic surveillance for all federal felonies, as authorized by pending "counter-terrorism" bills;
Reject a Senate proposal to exempt federal prosecutors from the important state, local and court ethical rules that govern all other lawyers; and
Enact modest reforms to provide federal criminal defendants fair rights to be free from prosecutorial surprise by being able to learn, in advance of trial, the basis of the government's case against them.
Fogelnest's letter was sent to House Crime Subcommittee Chairman Bill McCollum (R-FL) and Ranking Member Charles E. Schumer (D-NY); House Criminal Justice Oversight Subcommittee Chairman Bill H. Zeliff, Jr. (R-NH) and Ranking Member Karen Thurman (D-FL); House Speaker Newt Gingrich (R-GA); House Majority Leader Richard Armey (R-TX); and House Minority Leader Richard Gephardt (D-MO).
The full text of NACDL President Robert Fogelnest's 4-page letter to congressional leaders is available from NACDL.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.