Monday, August 08, 2005

Memo to Law Enforcement

Charlie Sykes made this posting on his blog, reporting on a memo that Paul sent out to all law enforcement in Waukesha County. For years, Paul has routinely sent out memos for local cops that summarize Court decisions that affect the way cops have to do business. The memo reprinted on Sykes' blog was one of three recent memos Paul sent out to County police chiefs explaining recent Court decisions that have infringed on police powers in Wisconsin.

From Sykes' blog:

FRIDAY, Aug. 5, 2005, 6:49 a.m.


While the media continues to ignore the magnitude of recent state Supreme Court decisions on crime, Waukesha County District Attorney (And AG candidate) Paul Bucher is warning local enforcement just what they mean:



Unfortunately, this is the third memo I have had to write due to the fact an activist Supreme Court has taken over in the State of Wisconsin. As I stated in my last memorandum, the Wisconsin Supreme Court has now seen fit to ignore and disregard the teaching of the United States Supreme Court and has decided that the citizens of this State wish to give criminals greater protection than those required by the United States Constitution. In doing so, the Wisconsin Supreme Court has reaffirmed its adoption of a concept called New Federalism. “New Federalism” can be described as several things, but, in this case, it’s simply designed to give criminals in the State of Wisconsin greater protections than criminals in other states and criminals who are prosecuted by the Federal government in this State.Justice Butler, of the Supreme Court, has indicated his desire to bend over backwards for individuals who violate the law and use the Wisconsin Constitution as a guise to expand his liberal judicial philosophy in giving convicted criminals greater protection under Wisconsin law, than under the United States Constitution. This should, once again, give all law enforcement officials in the State, great concern regarding where the Supreme Court is headed.

In particular, Justice Butler and Justice Crooks make it very clear they support the adoption of a radical concept that has long been opposed in this State. The central holding of the case in State of Wisconsin v. Knapp, 2005 WI 127 is that the Wisconsin Constitution will grant greater rights to a criminal defendant than the United States Constitution when it deals with use of physical evidence that was discovered or derived as a result of an intentional violation of the Miranda Rule. The initial decision of the Wisconsin Supreme Court indicated that the State could not use physical evidence it had discovered following an intentional violation of Miranda. This matter was appealed to the United States Supreme Court. The United States Supreme Court reversed, telling the Wisconsin Supreme Court that they were in error when they determined that criminals deserve to have evidence suppressed when there is an intentional violation of Miranda. The well-developed law in the United States does not require that. The United States Supreme Court went to great lengths to instruct the Wisconsin Supreme Court on the requirements of the United States Constitution.

By the way, the Wisconsin Constitution and the United States Constitution are almost identical.Notwithstanding this reprimand from the United States Supreme Court following remand, the Wisconsin Supreme Court decided that they were going to grant criminals greater rights by using the Wisconsin Constitution, not the United States Constitution, as the basis to do so. This is called “New Federalism.” The bottom line of the Knapp decision is that, in Wisconsin, State law enforcement officials cannot utilize physical evidence that is a derivative of an intentional Miranda violation. This is in direct contradiction to what Federal agents may do, as well as what most other states require. Justice Butler wrote this decision, joined in by Justice Crooks, Justice Abramson and Justice Bradley to form a majority of the Court. Justice Butler indicated that he did not feel he should allow those we entrust to enforce the law to intentionally subvert a suspect’s constitutional rights. The United States Supreme Court (the highest court in the land) indicated that they did trust law enforcement to be able to use physical evidence discovered as a direct violation of the Miranda Rule. The reason for that is simple. The Miranda Rule is a prophylactic rule. It protects suspects from the use of “incriminating statements” against them when the traditional Miranda warnings did not precede them.Physical evidence, however, is an entirely different subject. It does not fall within the exclusionary rule that was carved out to deal with Miranda violations. The Wisconsin Supreme Court is definitely out of lock step. The Wisconsin Supreme Court has created its own, very narrow reading of the Wisconsin Constitution to grant criminal defendants greater rights. This is a very disturbing decision, as well as a concerning trend of the Wisconsin Supreme Court to use the Wisconsin Constitution to grand defendants greater rights than those required by the United States Constitution....