Comedian and faux TV pundit, Stephen Colbert, does this great bit on his show, The Colbert Report, where he praises political figures for doing something right and attacks others for doing something wrong. The bit is called, “Tip of the Hat, Wag of the Finger” and it can be hilarious. In that spirit, I thought we would do our own version of “Tip of the Hat, Wag of the Finger.”
First, a wag of my finger to the Florida’s Fourth District Court of Appeals for allowing police misconduct to go unchecked and tolerating blatant perjury. In a recent opinion the court said,
“Cases like this one call into question the fairness of some trial court proceedings. On the pages of the record, the story told by the police is unbelievable—an anonymous informant gives incriminating information; police surveillance uncovers no criminal conduct; the defendant is “nonchalantly” and “casually” approached by the police on the street; the defendant cooperatively leads the police back to his apartment to obtain his identification and invites the police inside, where a detective sees contraband in plain view, a fact certainly known to the defendant when he issued the invitation; after his arrest, the defendant tells the police about all the hidden drugs in the apartment.”
So after referring to the police’s testimony as “unbelievable” and calling into question “the fairness of some trial court proceedings”, clearly the denial of the motion to suppress would have been reversed – after all isn’t the purpose of the exclusionary rule to prevent police misconduct? But fear not lovers of injustice, Florida’s Fourth DCA did no such thing. It affirmed the trial court’s ruling because they weren’t there to witness the “unbelievable” police testimony themselves.
A big tip of my hat to Judge Juan Ramirez, Chief Judge of the Florida’s Third District Court of Appeals for having the intellectual courage to call things as they are.
Judge Ramirez wrote (the order of the paragraphs in the opinion have been changed to accent the reason for the tip of the hat),
“I have no sympathy for Torres. He is an admitted sex offender who preyed upon a seven year old girl. He probably also abused N.R. If we, as a society, decide that sex offenders are not entitled to a fair trial, let’s come out and say so. But if the rules of evidence apply equally to all, as we profess they do, this victim impact evidence was clearly inadmissible.
This case can go down under the “anything goes” department when it comes to a criminal prosecution of an unsympathetic defendant. All you need is a trial judge with a flexible outlook on what constitutes relevant evidence and an appellate panel with a bountiful view of trial court discretion. Yosvani Torres, the unsympathetic defendant, appeals his conviction for two counts of sexual battery on a victim under the age of twelve. The trial judge allowed a . . .witness to testify about the permanent damage she suffered as a result of being the victim of a sexual assault. We have today expanded the admissibility of victim impact testimony from the penalty phase in capital cases to the guilt phase of a criminal trial.”