Martin Dyckman: Bad people who helped make good law

We Americans owe our civil liberties not only to the statesmen such as James Madison who wrote them into the Constitution or to the lawyers and judges who have upheld them.

We also have people to thank who we wouldn’t necessarily want as friends or neighbors.

They’re the ones accused of crimes – and sometimes guilty of them – whose cases have compelled the courts to render decisions that are often unpopular but always necessary. Among them:

• Clarence Earl Gideon, a petty career criminal, whose conviction for breaking into a Panama City pool hall led to a unanimous U.S. Supreme Court decision that felony defendants who can’t afford a lawyer are entitled to one at public expense. Some 2,000 other Florida inmates were set free also. Many, I believe, were innocent. As a cub reporter, I had witnessed the pitiful mismatches between skilled prosecutors and clueless defendants.

• Ernesto Miranda, a career criminal, who won a new trial for rape in 1966 because Arizona police had gotten a confession without advising him of his rights to remain silent or to have a lawyer appointed for him. He was convicted on retrial and eventually died in a barroom brawl.

• Dollree “Dolly” Mapp, an African-American single mother with mob connections who was convicted of supposed pornography Cleveland police found during a warrantless search for a suspect. The Supreme Court used her case to forbid states from using evidence seized in violation of the Fourth Amendment. Mapp eventually went to a New York prison for heroin and stolen property. She died recently in obscurity in Georgia, aged 91, but will forever be remembered by law students and civil libertarians.

• Charles Katz, convicted of interstate gambling after the FBI overheard his conversations through a device planed on the outside of a Los Angeles phone booth. In 1967, the Supreme Court held that although it was a public place, Katz had a reasonable expectation of privacy and the FBI should have gotten a court to approve the tap.

In each case, the Supreme Court justices interpreted the Constitution without regard to the character of the defendants or the possible unpopularity of their decisions. That is their duty. Without such decisions, our constitutional rights would be nothing but words on paper.

The same duty applies to state judges. It is tougher for them, however, because they don’t have lifetime appointments and are vulnerable to political reprisal.

This brings me to two courageous recent decisions of the Florida Supreme Court.

Two months ago, the court cited the Katz decision in overturning the cocaine trafficking conviction of Shawn Alvin Tracey, who had been caught essentially in the act by authorities who had followed his travel through real-time information from cell phone towers. They had court authority for a “pen register,” revealing who called him and to whom he called, but not to track him as he moved about.

The majority opinion by Chief Justice Jorge Labarga acknowledged that the U.S. Supreme Court has never ruled on that point and that lower federal courts have not settled it either. But Labarga is not one to duck and cover. He faced the issue squarely:

“We cannot overlook,” he wrote, “the inexorable and significant fact that, because cell phones are indispensable to so many people and are normally carried on one’s person, cell phone tracking can easily invade the right to privacy in one’s home or other private areas, a matter that the government cannot always anticipate and one, which when it occurs, is clearly a Fourth Amendment violation.”

It was a split decision, 5-2. Charles Canady and Ricky Polston, the most conservative justices, dissented. Polston, however, said there would be “justification” for the John Roberts court to eventually agree with Labarga. The state will probably appeal.

On Dec. 11, the Florida court unanimously overturned the life sentences that Richard R. McDade, 68, is serving from Lee County for sexually abusing his pre-teen stepdaughter. There was damning evidence in a conversation she had recorded without his knowledge. But Florida law prohibits that except in specified situations, which don’t include one citizen taping another without a court order.

Canady, whose conservative credentials are impeccable, wrote that decision.

“It may well be that a compelling case can be made for an exception…for recordings that provide evidence of criminal activity – or at least certain types of criminal activities,” he wrote. “But the adoption of such an exception is a matter for the Legislature. It is not within the province of the courts to create such an exception by ignoring the plain import of the statutory text.”

McDade, 67, looks on paper to be as foul as a person can get, and perhaps he can still be convicted on the stepdaughter’s testimony alone.

In any case, the Legislature will likely tweak the law.

You may also hear about these cases when Labarga, Canady and Polston are up for retention in the 2016 elections, but I hope not. Judges should be faulted only for shirking unpleasant duties, not for carrying them out.

Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives near Waynesville, North Carolina. Column courtesy of Context Florida.