Civil wrongs

National Review, May 25, 1992 by Leon Scully

THE exclusionary rule--which bars the use of evidence said to have been illegally obtained--was established in 1914 in Weeks v. United States but did little harm until it was applied to the states. So long as the Weeks rule was confined to federal cases, as Justice Rehnquist pointed out, its chief "beneficiaries . .. were smugglers, federal income tax evaders, counterfeiters, and the like." State crime is a profoundly different matter. Ninety-five per cent of the crime committed in the United States, and virtually all violent

crime, comes under the jurisdiction of the states. Once the Weeks rule was brought to bear against the states the result was uncounted thousands of robbers, rapists, and murderers set free.

The case which accomplished this was Mapp v. Ohio, decided in 1961. Since then, the exclusionary rule has come to be accepted as a cornerstone of our jurisprudence. That violent criminals go free as a result is now accepted as the price we pay for liberty. But let us turn over this cornerstone and see what lies underneath.

The official version of Mapp v. Ohio, the one accepted by the Supreme Courts of Ohio and of the United States, was the following, put forth by A.L. Kearns and Walter L. Greene in the Jurisdictional Statement they filed on behalf of Dollree Mapp in the Supreme Court of the United States on July 14, 1960:

STATEMENT OF THE CASE

On the 23rd day of May, 1957, police officers, without the benefit of a search warrant, ostensibly looking for an individual who was wanted in connection with an extortion bombing, forced their way into defendant's private residence, which was the upper portion of a two-family house. Twelve (12) police officers had surrounded the private residence of the defendant where she lived with her 13-year-old daughter and forced their way into it. Upon demand of a search warrant, a piece of paper was held before the defendant without giving her an opportunity to view or read same. She was then handcuffed to the banister of the stairway while the search of her private residence was made. This alleged search warrant was never proved or even tendered in the trial court upon request of the defendant. Nor was there any evidence introduced that any search warrant was ever issued.

Thereafter, the police officers, frustrated in their attempt to find any individual involved in an extortion bombing, illegally and in violation of defendant's constitutional rights, searched her private dwelling, and found lewd and lascivious documents belonging to a former roomer. The evidence showed that these documents were found by the defendant while she was cleaning a room which had been vacated by a former roomer. She stored these documents until such a time as the roomer would have returned to claim his property. It was for possession of the roomer's documents that the defendant was convicted of violation of Section 2905.34 Ohio Revised Code, and sentenced to from one (1) to seven (7) years in the Ohio State Women's Reformatory.

The story of the indignities suffered by Miss Mapp would have turned the strongest of judicial stomachs. It was the viscera of Tom Clark that were the most crucial. Justice Clark had always voted against the application of the Weeks rule to the states, but had predicted that this would come about at such time as "five Justices are sufficiently revolted by local police action." Apparently he accepted the official version and became "sufficiently revolted," because he switched sides and provided the swing vote in the 5 to 4 decision. So it is important to know what actually happened in Cleveland that May of 1957.

The real case of Mapp v. Ohio began with a bang at 3:45 A.M. on May 20, 1957. The bang was caused by a bomb planted under the residence of one of Cleveland's leading "policy bankers," Donald (The Kid) King.* The front-page headline of the Cleveland Press reads: "Birns Is Jailed in Bombing; Charge $l,000-a-Week Plot." Also on the front page are photos of a youthful and short-haired Donald King and of Shondor Birns, and the statement that the bomb blast "opened what police believe is a new offensive by Shondor Birns to control Cleveland's numbers racket." The bomb didn't kill the man who, with his famous "electric hair," would go on to become the world's most successful boxing promoter, but it did give him quite a fright. Instead of tending to the matter himself, in the tradition of the numbers racket, he did what a good citizen should--he went to the police. The Cleveland Plain Dealer reported the next day that "King made history when he openly turned to police with information he said would help send someone to jail." "Shondor was one of the five pistols who bombed me," he said to reporters. One of the others he named was Virgil Ogletree, a clearinghouse operator, who was thought to be doing his dearing in the house, and in the company, of one Dollree Mapp.

It was Ogletree for whom Sergeant Carl J. Delau and patrolmen Thomas J. Dever and Michael J. Haney were looking when they arrived at 14705 Milverton Road, Miss Mapp's residence. Perhaps they had been told by King that where Ogletree was, so also would be a large amount of "policy paraphernalia." There is no mention of policy paraphernalia in the "official version" of the case. We are told only that the police were "ostensibly looking for an individual who was wanted in connection with an extortion bombing." And from its opinion we know the Supreme Court believed that but for the obscene material, the police came up empty handed.