Last week I wrote about a conversation I had with Sam Walker, the University of Nebraska criminology professor whose research was abused by Justice Scalia in the Hudson case. I mentioned that conversation to ex-Reason associate editor Matt Welch, who's now at the L.A. Times.
That turned into an op-ed for Walker in today's paper. Excerpt:
The misuse of evidence is a serious offense — in academia as well as in the courts. When it's your work being manipulated, it is a violation of your intellectual integrity. Since the issue at stake in the Hudson case is extremely important — what role the Supreme Court should play in policing the police — I feel obligated to set the record straight.
Scalia quotes my book, "Taming the System: The Control of Discretion in American Criminal Justice," on the point that there has been tremendous progress "in the education, training and supervision of police officers" since the 1961 Mapp decision, which imposed the exclusionary rule on local law enforcement.
My argument, based on the historical evidence of the last 40 years, is that the Warren court in the 1960s played a pivotal role in stimulating these reforms. For more than 100 years, police departments had failed to curb misuse of authority by officers on the street while the courts took a hands-off attitude. The Warren court's interventions (Mapp and Miranda being the most famous) set new standards for lawful conduct, forcing the police to reform and strengthening community demands for curbs on abuse.
Scalia's opinion suggests that the results I highlighted have sufficiently removed the need for an exclusionary rule to act as a judicial-branch watchdog over the police. I have never said or even suggested such a thing. To the contrary, I have argued that the results reinforce the Supreme Court's continuing importance in defining constitutional protections for individual rights and requiring the appropriate remedies for violations, including the exclusion of evidence.
I'm not familiar enough with legal scholarship to know just how much of an ethical breach it is for a judge to misuse academic research in an opinion. But Scalia was an academic before coming to the bench, so it seems to me awfully untoward — or awfully careless — to have invoked Walker's research to further a point that the research pretty clearly disputes. Moreover, Scalia cited Walker in advancing a key argument in a case that could have some pretty significant repercussions.
Walker seems to think it's a big deal. I find him convincing.