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26 June 2011

A Simpler Quicker Justice

I know what you're thinking ... a post on Dirty Harry after a post on same sex marriage? There is no connection.  Dirty Harry is a piece of pure Americana. It tackles sensitive issues of civil rights with a sledge hammer, and justice with a .44 Magnum. It is a piece of 1971. This movie helped define the genre, and gave America a character to attach its frustrations.  Dirty Harry can be watched alongside of its 1971 cousin The French Connection, but while the latter is certainly the better film the former has become a part of American culture.

Whenever I watch a recent cops and robbers movie or television show they are all about satellites, cell phones, and some other techno gadget.  The worst one has to be Body of Lies, with a fat Russell Crowe walking around Washington yacking away on his headset.  There is nothing appealing about watching an actor talk into a phone to tell another actor whats going on.  Act! Let there be some suspense!  Some movies use the technology as an aid, and some use it as a substitute for their brain (the Jason Bourne trilogy took a good balance between the two).  Crime is still solved with more shoe leather than UAVs. 

You won't find Callahan using a laptop, a cell phone, or DNA to solve this case.  Rather, Callahan uses his grit and Smith & Wesson. 

Watching Dirty Harry today I come away with a conflicting take on how the movie deals with race.  When presented with a new partner, Gonzales, the dialogue goes:
De Georgio: "Ah that's one thing about our Harry, doesn't play any favorites! Harry hates everybody: Limeys, Micks, Hebes, Fat Dagos, Niggers, Honkies, Chinks, you name it."
Gonzales: "What about Mexicans?"
De Georgio: "Ask him."
Callahan: "Especially Spics.
That dialogue would not stand in a modern movie as it offends our contemporary sensitivities. But we find Callahan in his own way standing up for Gonzales, and visiting him after he is shot.  Callahan seems to say "If you're good police you're fine."

Later, Scorpio hires a black man to beat the hell out of him, and tells the guy he wants "Every penny of it you black son of a bitch." The guy then drags him out of the basement and kicks Scorpio to knock him out and says "This one's on the house." The movie seems to say race is there, and we can either try to avoid it or look it straight on.  Dirty Harry appears to look at it straight on and through it to where if your a criminal then your bad and if not "Who cares?"

On a different note. The movie also tackles constitutional police procedure.  After busting into Scorpio's quarters, shooting him, and pressuring him into giving the location of the girl we Callahan goes to see the district attorney.  The dialogue goes:
DA: "Where the hell does it say that you've got a right to kick down doors, torture suspects, deny medical attention and legal counsel? Where have you been? Does Escobedo ring a bell? Miranda? I mean, you must have heard of the Fourth Amendment. What I'm saying is that man had rights."
Callahan: "Well, I'm all broken up over that man's rights!"
The law has changed since 1971, and while watching it I asked is this still good law? First, the Fourth Amendment. A search is presumptively unreasonable without a warrant, which was not obtained in the movie. A valid warrentless search is permitted if it falls within one of the defined exceptions.  Consent could have come up if the owner of the stadium had been contacted, but there is no indication the owner had been contacted.  The hot pursuit and emergency exceptions seem applicable, but the hot pursuit would apply only if Callahan tried to effect an arrest and then Scorpio fled into his quarters.  The emergency exception would apply if Callahan had heard the girl in the quarters and believed her to be injured.  See Brigham City v. Stuart (2006) and Michigan v. Fisher (2010). The problem is that we do not see where Callahan finds the gun, so would it even be excluded as evidence obtained from an illegal search and seizure of Scorpio's quarters?

Second, Miranda v. Arizona. Miranda applies where there is custodial interrogation. The custody requirement has been met because Callahan is standing on top of Scorpio and his freedom of action is restricted in a significant way. (See J.D.B. v. North Carolina for the most recent custody case.) The interrogation element applies where Callahan the questions are reasonably likely to elicit an incriminating response from Scorpio. Berghuis v. Thompkins does not come into play because there were not any Miranda warnings to start with. So Miranda applies, but what would be excluded? After United States v. Patane (2004) the physical evidence would not be excluded. The girl's body, and the gun would come into evidence regardless of the failure to give Miranda warnings.

Third, Escobedo was basically overruled by Miranda. No need to discuss.

In summary, in the movie nothing was obtained from the illegal search of Scorpio's quarters so there is nothing to exclude. The statement given to Callahan about the location of the gun and the girl would be excluded, but not the physical evidence.  Certainly a defense attorney would argue that the evidence is the fruit of a Due Process violation (torture), but the girl could possibly come in under the independent source or inevitable discovery exceptions.  In today's criminal procedure environment it is likely a district attorney could convict him of a lot more than "spitting on the sidewalk." This is not to mention the murder of the woman, and the attempted murder of the priest. 

Anyways, Dirty Harry gets his swift justice.

If it has been a while then get a copy and enjoy the simpler days of quick justice.  This link opens to Amazon where you can get the Dirty Harry Collection for $10! It does not include The Dead Pool, but your not missing anything.

25 June 2011

New York Legalizes Same Sex Marriage

Before midnight on June 24, 2011 Governor Andrew Cuomo signed into law the Marriage Equality Act to legalize the marriage of same sex couples.  The Act amends prior NY law to state that no application for a marriage license shall be denied on the ground that the parties are of the same sex. That a marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same sex.  Additionally, mo government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage shall differ based on the parties to the marriage being the same sex.

The "otherwise valid" provision recognizes licenses from states that allow same sex marriage licenses. These states are currently Iowa, New Hampshire, Vermont, Massachusetts, Connecticut, and the District of Columbia.  New York had recognized valid licenses from other states along with Rhode Island and Maryland.

With nearly 20 million people New York's new law greatly increase the number of same sex couples that will be allowed to marry.  The law is slated to take effect July 24, 2011. 

The law specifically mentions that religious organizations will not be subject to any legal action for refusing to perform same sex marriage ceremonies.  Governor Cuomo's statement goes further to state "The Act will grant equal access to the government-created legal institution of civil marriage while leaving the religious institution of marriage to its own separate and fully autonomous sphere" 

On June 1, 2011 Illinois began issuing civil union licenses to same sex couples joining Delaware, Hawaii, and New Jersey.  The Illinois law amended the Illinois Marriage and Dissolution of Marriage Act to permit civil unions and to recognize a marriage between persons of the same sex, a civil union, or a substantially similar legal relationship (other than common law marriage) legally entered into in another jurisdiction as a civil union in Illinois. 

Lastly, the Act does not include a severability clause and the whole Act will fall if struck down by the Court of Appeals.  This of course, will likely depend on the outcome of the Proposition 8 case (Perry v. Schwarzenegger) working its way through the Ninth Circuit and likely to the United States Supreme Court.

In summary, New York joins Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, and the District of Columbia in issuing marriage licenses to same sex couples.  Rhode Island and Maryland recognize valid same sex marriages from other states.  Delaware, Hawaii, New Jersey, and Illinois recognize civil unions between same sex persons.  States that provide similar spousal rights to same sex couples are: California, Nevada, Oregon, Washington, Colorado, Wisconsin, and Maine.  See the National Conference of State Legislature's summary and statute guide.