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Jewish World Review Oct. 4, 1999 /24 Tishrei, 5760

Nat Hentoff

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'Technicalities' that
keep us free -- A REPORTER ONCE ASKED Justice William Brennan: "Why do you let these creeps go on some technicality? They do such bad things."

In a rare show of anger, Brennan said, "You in the media ought to be ashamed of yourselves to call the provisions and guarantees of the Bill of Rights `technicalities.' They're basic to our very existence as the kind of society we are. We are what we are because we have those guarantees."

Once, in his chambers, he asked me, "How can we get the words of the Bill of Rights off the page and into people's lives?"

It's not easy. Speaking at high schools and colleges, and at the graduate schools of journalism at New York University and Columbia University, I met, with very few exceptions, blank stares when I asked about the content and some of the history of the Fourth Amendment, the Fifth Amendment right not to testify against oneself, and other technicalities that sometimes open cell doors.

And on a recent Sunday-morning discussion of Clinton's presidential record -- on ABC-TV's "This Week" -- none of the regular panelists thought to ask Sen. Patrick Moynihan, D-N.Y., about the president's serial violations of the Constitution, from habeas corpus on.

I am grateful, therefore, for a letter I received from reader Robert M. Levine. It's a good example of the difficulty of getting the Bill of Rights off the page.

In commenting on a previous column of mine, in which I reported that 18,000 of the 345,000 arrests last year in New York City were thrown out by prosecutors before being presented to a judge, Mr. Levine wrote that 18,000 sounded "like a reasonable percentage for police who are doing their jobs." If cops are being professional, he added, it's probable that even "with insufficient evidence, they nonetheless arrested the guilty parties.

"It is perverse," he continued, "to compare the complaints of the citizen farmers and townspeople who threw off British military occupation to the inconveniences" of people nowadays who are arrested and then released even though "they are overwhelmingly guilty."

The New York Times, in reporting on such inconveniences, told of Oona Chatterjee, a woman who runs a neighborhood legal clinic and tried to intervene in an altercation between police and a neighborhood resident.

She was arrested, taken to a Brooklyn precinct house, and was handcuffed to the bars of a holding cell for 15 hours. In custody for a total of 22 hours, she was finally released. No charges were filed. She sued for false arrest and the City of New York, without contesting her lawsuit, paid her a $45,000 settlement. But even with the settlement, "it was horrible, exhausting and humiliating," she says.

Among the many others inconvenienced was Alton Fitzgerald White, currently playing Coalhouse Walker Jr. in the Broadway musical "Ragtime." Standing in the vestibule of his building in Harlem, he opened the door for the police, who he assumed were on some assignment. He was arrested along with three other black men who had been about to leave the building. The cops were looking for two Hispanic men, alleged drug dealers, who had run into the building; but seeing the black men, they took them in as well as the two suspects.

Immediately handcuffed, White was put in a cell, made to strip and squat, was not allowed to make a phone call for two hours, and was held for five hours. He said to the New York Post: "I could have been a bum on the street or a Broadway star -- I was a black man."

In November, 1761, James Otis argued for four hours before the Massachusetts Bay Superior Court against the renewal of the power of British customs officials to use general writs of assistance to search the homes and businesses of the colonists at will. Otis failed. That's why we have a Fourth Amendment that forbids unconstitutional searches, such as those experienced by 18,000 New Yorkers last year.

Listening to James Otis was John Adams, later to be our second president. Writing of that day, he declared "American independence was then and there born... every man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain."

But that, as Mr. Levine indicates, was a long time ago. Now, "the police know their business," he wrote, "but in a number of cases there will be defects in the evidence or records that preclude prosecution on purely technical grounds." Mr. Otis would not regret that inconvenience to the prosecutors.

JWR contributor Nat Hentoff is a First Ammendment authority and author of numerous books. Send your comments to him by clicking here.


09/27/99: Our 'Americanism'-ignorant generation
09/20/99: ACLU better clean up its act
09/13/99: A professor of infanticide at Princeton
09/07/99: The Big Apple's Rotten Policing
08/23/99: Lawyerly ethics
08/16/99: To Get a Supreme Court Seat
08/02/99: What are the poor people doing tonight?
07/26/99: Lady Hillary and the press

©1999, NEA