The crime-soft rehnquist court

...And they permitted him to leave at the close of questioning—presumably to avoid any Miranda difficulties—even after he had confessed in a tape-recorded interview to murdering his wife...

...It held that the court of appeals applied the wrong standard and that the case would have to be reopened...

...The high court reviewed regulations imposed by federal judge Carl Muecke on Arizona's prisons...

...It ruled that the cocaine could be admitted because the officers had reasonable suspicion of drug-trafficking activity, which became probable cause when the officer found the loose panel...

...And yet Scalia's opinion described Bounds as an "exemplar" of how courts should grapple with the issue of inmate litigation, in supposedly stark contrast to Judge Muecke's ruling in Lewis...

...I believe," said Thomas, "that the Alaska trial judge—who first decided this question almost a decade ago—was in a far better position than a federal habeas court to determine whether Thompson was 'in custody' for purposes of Miranda v. Arizona...

...more kinship to Judge Harold Baer than Judge Roy Bean...

...At worst, the court, marching in the service of the lawyer class, has grown incapable of overturning any of the landmark criminals' rights rulings, either from an overriding zeal for judicial power or from a broad-based judicial ideology that has grown comfortable with these rights and the social advances they supposedly represent...

...A third officer, a veteran of over 2,000 narcotics searches of vehicles in the previous nine years, conducted the search...

...He questioned why the court had departed from its longstanding deference to lower courts' factual determinations...

...They later arrested him...

...The supposed right of inmates to law libraries goes back only as far as the 1977 case of Bounds v. Smith...

...Americans who feel less safe today because of Warren-court rulings now more deeply entrenched than ever may well remember the Rehnquist court not only as the conservative court that never was, but as the triumph of the lawyer class over the rule of law itself...

...It suggests that, at best, even the most hardy justices have given up hope of reversing the ruinous rulings of the Warren court...

...In a sharply worded dissent, Justice Clarence Thomas, joined by Chief Justice Rehnquist, criticized the majority for flouting any semblance of federalism...

...Except in rare circumstances, Scalia noted, "an appellate court never has the benefit of the district court's intimate familiarity with the details of the case—nor the full benefit of its hearing of the live testimony...

...As in the broadening of the exclusionary rule in Ornelas, Thompson decreed that the federal court should review all the facts de novo...

...They argued on appeal that the officers lacked probable cause to search their car without a warrant and thus that the cocaine should not have been admissible as evidence at their trial...

...She had been stabbed 29 times, then wrapped in chains and a bedspread and tossed into the pit...

...The result is that police officers who gather incriminating evidence in confusing and perilous circumstances sometimes see their hard work thrown out of court because a judge determines, after the fact, that they lacked "probable cause" to search a house or vehicle...

...In the first two, the Warren-court right was actually expanded, while in the third the novel right was preserved and defended in ringing language...

...Scalia, for example, gallantly resists the expansion of the exclusionary rule in Ornelas...

...The same indictment applies to the Rehnquist court's overall record on criminals' rights...

...The federal trial court disagreed...

...The court considered the appeal of Carl Thompson...

...Instead of enforcing the Fourth Amendment simply by punishing wayward cops, the rule gives suspects a windfall: In the words of Justice Benjamin Cardozo, "The criminal is to go free because the constable has blundered...

...The Alaska trial court, after reviewing the facts, held that Thompson was not "in custody" for Miranda purposes when he confessed...

...He found a loose panel above the right rear passenger armrest and concluded that drugs were probably hidden there...

...In an opinion by Justice Scalia, the Supreme Court struck down the lower court's injunction micromanag-ing Arizona's prison law libraries...

...A police officer's failure to read the suspect his rights once he is in custody means that any confession obtained cannot be used at trial...

...Yet in Thompson, he signs on to the majority's expansion of Miranda, and in Lewis he strongly endorses the ludicrous right to publicly funded prison law libraries...

...It was left to Justice Thomas to remind his fellow justices of just how unwise this Burger-court invention was...

...Whatever the explanation for these trends, the court is a growing source of bitterness and division, not only for jilted conservatives but for a splintering society...

...Since Rehnquist became chief, the court not only has refused to overturn any of the major Warren-court decisions establishing new criminals' rights...

...Few judicial excesses infuriate the public more than unworkable, manufactured rights for convicted criminals in prison...

...The state troopers investigating the murder did not inform Thompson of his Miranda rights when they called him to police headquarters for questioning...

...Thomas could not resist pointing out that Rehnquist, who had opposed the manufacturing of this right in Bounds, now had come around to ratifying it...

...These regulations were adopted on the recommendation of a court-appointed "special master," whom Judge Muecke had charged with supervising, among other things, the law libraries in the state's prisons...

...They did, however, tell Thompson repeatedly that he was free to go...

...In this connection, three cases from last term stand out...

...Justice Antonin Scalia filed the lone dissent...

...Justice Thomas comes out best of all, dissenting in two of the three...

...In an opinion by Chief Justice Rehnquist, the high court held that the court of appeals should not have reviewed the lower court's decision deferentially...

...He also asked the Drug Enforcement Agency to check the names of the guests in the motel against its database of known and suspected drug traffickers...

...It was preferable to defer to the lower-court judges, who were in a "better position" to analyze these matters, "and avoid putting the State of Alaska to the uncertainty and expense of defending for the sixth time in nine years an eminently reasonable judgment secured against a confessed murderer...

...Rehnquist based this broadened application of the exclusionary rule on the principle that "independent appellate review" of important factual issues is essential to the Fourth Amendment and the exclusionary rule...

...In a seven-to-two ruling, the Supreme Court reversed the lower courts' decision...

...He checked the car's registration...

...Finally, after two guests emerged from the motel and entered the Oldsmobile, the officer's partner approached them and asked if he could search their car...

...author of Crime and the Sacking of America: The Roots A review of recent decisions reveals a court with of Chaos...

...If Rehnquist's opinion in Ornelas was "contradictory," the same cannot be said of the Supreme Court's straightforward expansion of Miranda rights last year...

...Yet last term, the Rehnquist court extended its reach...

...Taken together, these cases suggest that the landmark criminals' rights rulings of recent decades are now firmly embedded in American law, to the continuing detriment of law enforcement and a crime-weary public...

...The search turned up the name of the car's registered owner and the name of one of the guests...

...Saul and Ismael Ornelas were arrested and convicted...

...and probably no institution better captures the silliness of this jurisprudence than the law library that the state is required to provide to prisoners...

...Circuit Court of Appeals...

...But the court left untouched the underlying right to such libraries at state expense...

...It is there that inmates spend their idle hours cooking up frivolous lawsuits against prison officials, preparing specious appeals of their sentences, and generally making themselves even more obnoxious to society...

...Therefore, the troopers were not obliged to inform him of his rights...

...Fashioned out of the Fourth Amendment's protection against unreasonable searches and seizures, this rule holds that incriminating evidence obtained in violation of the Fourth Amendment cannot be admitted at trial...

...Indeed, it has actually expanded some rights, if only in a gradual and somewhat arcane manner...

...The Soft-on-Crime Rehnquist Court By Andrew Peyton Thomas Whether or not one believes that America is on this point: The Supreme Court led by Chief Justice suffering a crisis of runaway judicial William Rehnquist has significantly weakened the activism, there is at least a broad consensus protections enjoyed by criminal suspects and convict_ ed prisoners...

...The Court cannot have it both ways...

...And what of the chief justice...

...Instead it was required to conduct its own de novo review of the case—its own brand-new, top-to-bottom examination of the facts...

...The majority opinion in Bounds failed to identify a single provision of the Constitution to support the right created in that case," wrote Thomas, "a fact that did not go unnoticed in strong dissents by Chief Justice Burger and then-Justice Rehn-quist...

...Last term, in Thompson v. Keohane, the court not only affirmed Miranda's dubious and dangerous reasoning...

...The high court concluded that "state-court 'in custody' determinations warrant independent review" by federal courts...

...Like the exclusionary rule and Miranda, prisoners' rights have earned a good measure of popular opprobrium...

...Each deals with one of the more vexing criminals' rights invented in the last few decades: the exclusionary rule, Miranda, and the right of prison inmates to law libraries...

...While the Constitution may guarantee state inmates an opportunity to bring suit to vindicate their federal constitutional rights," Thomas said, "I find no basis in the Constitution—and Bounds cited none—for the right to have the government finance the endeavor...

...He noted that "Bounds forged a right with no basis in precedent or constitutional text: a right to have the State 'shoulder affirmative obligations' in the form of law libraries or legal assistance to ensure that prisoners can file meaningful lawsuits...

...and in de novo review, the 'weight due' to a trial court's finding is zero...

...This widely accepted view is spread by Andrew Peyton Thomas, a Bradley fellow at the Heritage Foun- journalists and liberal legal interest groups, both of dation, is deputy counsel to the governor of Arizona and the whom seem genuinely convinced of it...

...Knowing that California is a common source state for drugs, and that the car was of a type favored by drug couriers because it permits the easy hiding of contraband, the policeman grew suspicious...

...Consider, first, the court's recent treatment of the exclusionary rule...

...He dismantled the panel and found two kilograms of cocaine...

...It has affirmed every one of these rights that has come before it...

...The special master drew up a 25-page injunction, which the judge approved with only minor changes...

...The exclusionary rule has long drawn the ire of conservatives...

...In Ornelas v. United States, the court took up the case of two drug dealers who pleaded guilty to possession of cocaine with intent to distribute...

...Thomas's concurring opinion is a back-to-basics lecture on just how far the court has strayed from the text and history of the Constitution...

...Only such a searching inquiry would permit the court to determine whether Thompson was "in custody" when he confessed and thus whether the confession was properly admitted...

...Those who thought the Rehn-quist court might overturn this requirement, or at least question it, were disappointed last term by Lewis v. Casey...

...Writing for the majority, Justice Ruth Bader Ginsburg stated that federal courts must not defer to state courts when reviewing "in custody" rulings for Miranda purposes...

...In 1986, two moose hunters in Alaska discovered the body of Thompson's wife, Dixie, in a gravel-pit lake outside Fairbanks...

...In December 1992, a veteran policeman conducting drug-interdiction surveillance in downtown Milwaukee noticed an older Oldsmobile with California license plates in a motel parking lot...

...The order specified, inter alia, the libraries' hours of operation, the minimal educational requirements for prison librarians, and even the permissible level of noise...

...But is it so...

...Thompson was subsequently convicted of murder...

...No justice comes out of these three cases with his intellectual reputation entirely unbesmirched...

...In an eight-to-one decision, the Supreme Court reversed...

...The main effect of the ruling is to give criminals yet another chance to have incriminating evidence excluded—and, consequently, their convictions overturned...

...His conviction was affirmed by the Alaska court of appeals, the Alaska supreme court, a federal district court, and the Ninth U.S...

...The Warren court held in Miranda v. Arizona, decided in 1966, that the Fifth Amendment right against self-incrimination also contained another right: It required that policemen—of all people—inform criminal suspects of their right not to cooperate in investigations...

...it actually expanded Miranda, much as it did the exclusionary rule in Ornelas...

...He added, "We insult our colleagues in the States when we imply, as we do today, that state judges are not sufficiently competent and reliable to make a decision as straightforward as whether a person was in custody for purposes of Miranda...

...The court of appeals, applying the traditional rule that a lower court's findings are reversed only upon a finding of "clear error," upheld the admission of the cocaine into evidence...

...Scalia condemned the ruling of the nearly unanimous court as "not only wrong but contradictory...

...The finding of 'reasonableness' is precisely what it has told us the appellate court must review de novo...

...He wrote: "In an apparent effort to reduce the unproductive burden today's decision imposes upon appellate courts, or perhaps to salvage some of the trial court's superior familiarity with the facts that it has cast aside, the Court suggests that an appellate court give 'due weight' to a trial court's finding that an officer's inference of wrongdoing (i.e., his assessment of probable cause to search) was reasonable...

...They consented...

...But principled conservatives looking for a champion whose opinions they can consistently cheer must come away from these decisions disillusioned...

...The two federal courts based their decision on the statute that requires federal judges to presume the correctness of state-court determinations of factual issues...