• Judge upholding our constitutions
    July 19,2013
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    In your pages, at least two people have wrongly criticized Judge Harold Eaton for throwing out evidence that police got by illegally stopping the car with some “Jersey Boys.” First was Windsor County State’s Attorney Michael Kainen, who said, “We all hold our constitutional rights dearly,” but then undercut them by adding, “But there is some perversion of the original concept of rights and ordered liberties when the Constitution is used to spring criminals so that they can continue to threaten, intimidate and peddle poison in the community.”

    Mr. Kainen is a good lawyer and should know better. Judge Eaton was not using the Constitution for the purpose of letting criminals go. He had to let the suspects go because both our federal and state constitutions generally require a search warrant, and none of the exceptions applied. Given the parts of these constitutions that I quote below, nobody should be dismayed that a policeman is not allowed to stop a car because he hears someone in it has given him a false name two weeks earlier. How many of us would want police to be able to seize us or search our property without a warrant from a judge, merely because we were suspected of a committing a misdemeanor two weeks earlier? Not many, I hope. When this happened, Judge Eaton simply applied the usual remedy: exclude the evidence. Without the illegally gathered evidence, the state had no case, and Judge Eaton had to dismiss it no matter what he thought of the accused people.

    Judge Eaton was honoring the Constitution and applying it equally to everyone. The Fourth Amendment to the U.S. Constitution says: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Chapter 1, Article 11 of our own state constitution restricts searches even further, saying, “That the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure; and therefore warrants, without oath or affirmation first made, affording sufficient foundation for them, and whereby by any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are contrary to that right, and ought not to be granted.” One could read the state constitution not to allow any searches without a warrant.

    Now, despite these constitutions and the oaths judges swear to uphold them, along comes John Graves and says, “Any judge who releases this type of criminal should be relieved of his duties and disbarred.” Apparently Mr. Graves doesn’t care if the police follow the law. Mr. Graves has it backwards. Any judge who did not release the suspects under these circumstances would not be doing his duty, and any judge who repeatedly ignored the Constitution ought to be relieved of his duties when the Legislature conducts its six-year review of each judge. Any judge who applies the Constitution equally to everyone, as Judge Eaton did, is simply doing his duty and should continue to serve.


    Mount Tabor
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