Judicial integrity: a call for its re-emergence in the adjudication of criminal cases.

• Author: Bloom, Robert M.

1. INTRODUCTION

   Justice Rehnquist once said that there may be cases "in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction."(1) The conduct of law enforcement in the case of Humberto Alvarez-Machain apparently was not sufficiently outrageous.

   As a result of an indictment for crimes in connection with the kidnapping and murder of a United States Drug Agent, individuals acting at the request of the Drug Enforcement Administration forcibly kidnaped Alvarez-Machain from his office in Mexico and flew him by private plane to Texas where D.E.A. agents arrested him.(2) He argued at his trial in the United States District Court that the indictment ought to be dismissed due to outrageous governmental conduct and the fact that his abduction violated the Extradition Treaty between the United States and Mexico. The district court and court of appeals dismissed the case on the grounds that the kidnapping violated the Extradition Treaty.(3) In its reversal of these decisions, the Supreme Court held that the treaty had not been violated.(4) Hence, none of the courts hearing Alvarez-Machain accepted or reached the argument that outrageous governmental conduct by itself should deny a court jurisdiction over this defendant.

   A different approach to these facts might be found in a case which occurred in New Zealand, where a man named Bennett was charged with murder.(5) He claimed that the court lacked jurisdiction because he was illegally brought back to New Zealand from Australia. Apparently the New Zealand police did not have a warrant for Bennett's extradition and merely asked the Melbourne police over the telephone to put him on a plane destined for New Zealand.(6) The Melbourne police complied with the request by removing Bennett from his bed and putting him on the next flight to New Zealand, where he was met at the airport by New Zealand authorities.(7) This conduct was arguably less outrageous than the conduct in Alvarez-Machain. However, the Court of Appeal in New Zealand indicated in dicta that had the issue been properly raised at trial, the trial judge would have been justified in discharging the defendant.(8)

   Are the courts to rely on the Executive to protect their process from

   abuse? Have they not themselves an inescapable duty to secure fair

   treatment for those who come or are brought before them? To questions

   of this sort there is only one possible answer. The courts cannot

   contemplate for a moment the transference to the Executive of the

   responsibility for seeing that the process of law is not abused.(9)

   These two cases graphically demonstrate different approaches to the problem of governmental conduct that is illegal or otherwise offensive. The New Zealand court could not tolerate this type of conduct. The United States federal courts ultimately could tolerate it. This difference highlights the importance of the concept of judicial integrity.

   The concept of judicial integrity may be described as the role of the judiciary in leading by example. A court can invalidate or rectify certain kinds of offensive official action on the grounds of judicial integrity. In this way, judges act as a beacon or a symbol to society for ensuring lawful acts by the forces of government. Thus, a court is wise to be cognizant of how its actions will affect the public perception of the judicial system. A court may not sanction or participate in illegal or unfair acts. There are two underlying goals of judicial integrity. First, on a public relations level, the court wishes to be regarded as a symbol of lawfulness and justice. Second, the court has the closely related concern of not appearing to be allied with bad acts. Stated differently, the judge does not want to appear to be associated with illegal actors.(10)

   Our ancestors were sensitive to possible abuses of power by the executive and created three branches of government in part to insulate the court system from the evils they perceived in the English system--a system in which the monarchy could utilize the courts for its own design.

   [T]he highest compliment that has ever been paid to the American

   bench, is embodied in this simple fact, that if the executive officers of

   this government have ever desired to take away the life or the liberty of

   a citizen contrary to law, they have not come into the courts to get it

   done, they have gone outside of the courts, and stepped over the Constitution,

   and created their own tribunals.(11) The concept of checks and balances is closely tied to the independence and integrity of the judiciary.(12)

   The Federalist Papers(13) expressed the importance of protecting the independence of the judiciary so that it can perform its important function of ensuring that the other branches do not overstep their bounds. "The complete independence of the courts of justice is peculiarly essential in a limited constitution."(14) The symbolic function of the judiciary as a safeguard for a society of laws was also stressed.

   The benefits of the integrity and moderation of the judiciary have already

   been felt in more states than one; and though they may have

   displeased those whose sinister expectations they may have disappointed,

   they must have commanded the esteem and applause of all

   the virtuous and disinterested. Considerate men of every description

   ought to prize whatever will tend to beget and fortify that temper in

   the courts; as no man can be sure that he may not be a gainer to-day.

   And every man must now feel that the inevitable tendency of such a

   spirit is to sap the foundations of public and private confidence, and to

   introduce in its stead, universal distrust and distress.(15)

   A leading exposition of the concept of judicial integrity can be found in Justice Brandeis' dissenting opinion in Olmstead v. United States.(16) The Government in that case used illegal wiretaps to secure evidence of criminal activity. The majority did not find this activity to be violative of the Fourth Amendment and allowed the evidence to be introduced. Brandeis asked rhetorically, "will this Court by sustaining the judgment below sanction such conduct on the part of the Executive?"(17) Brandeis answered his own question as follows:

   In a government of laws, existence of the government will be imperiled

   if it fails to observe the law scrupulously. Our Government is the

   potent, the omnispresent teacher. For good of for ill, it teachers the

   whole people by its example. Crime is contagious. If the Government

   becomes a lawbreaker, it breeds contempt for law; it invites every man

   to become a law unto himself; it invites anarchy. To declare that in the

   administration of the criminal law the end justifies the means--to declare

   that the Government may commit crimes in order to secure the

   conviction of a private criminal--would bring terrible retribution.

   Against that pernicious doctrine this Court should resolutely set its

   face.(18)

   Brandeis' major concern was not the right of the individual defendants; rather, he stressed the symbolic protection of the entire government through preservation of "the purity of its courts."(19)

   This Article will focus on the federal criminal justice system through an examination of decisions of the United States Supreme Court. In earlier times, the Supreme Court was more willing to utilize notions of judicial integrity to constrain individuals who act under official license. One finds the concept of judicial integrity being used initially to justify the Fourth Amendment exclusionary remedy,(20) to sanction the Court's use of supervisory powers,(21) and, to a lesser extent, to justify the application of due process.(22) The majority of the current Supreme Court, however, has retreated from the use of the doctrine of judicial integrity, such that judicial integrity is no longer regarded as a justification for the exclusionary rule.(23) In addition, the viability of the judicial integrity doctrine has deteriorated as the Court has limited the use of its supervisory powers.(24) Moreover, there is substantially less flexibility inherent in due process, especially for the investigative stage of the criminal process, due to the selective incorporation of the Bill of Rights.

   By way of contrast, examples from Australia and New Zealand(25) will be utilized to demonstrate that the doctrine of judicial integrity has re-emerged and gained force in these countries as illustrated in the language of their courts which, ironically, sometimes cite United States Supreme Court decisions. Finally, this Article will argue that the pendulum has swung too far toward neglecting concerns inherent in the principles of judicial integrity, and that the doctrine of judicial integrity must be restored in the United States.

2. THE EXCLUSIONARY RULE

   Concerns for the idea of judicial integrity played a large role in the development of the Fourth Amendment exclusionary rule. As this Article will demonstrate, more recent decisions have devalued the importance of judicial integrity and have largely eliminated it as a justification for the rule. Two previously mentioned and interconnected concerns with the concept of judicial integrity can be found by looking at the roots of the exclusionary rule. First, the Court should be a symbol to the public as the guarantor of the rights provided by our laws. Second, the Court should not participate in the sanctioning of illegal acts.

   In the early case of Weeks v. United States,(26) which barred the use of evidence in federal prosecution if obtained by federal officers in violation of the Fourth Amendment, the Court indicated the symbolic importance of failing to sanction government misdeeds. "The tendency of those who execute the criminal laws of the courts to obtain conviction by means of unlawful seizures . . . should find no sanction in the judgment of the courts."(27)

   In Elkins v. United States,(28) the Court went...