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Bombers, Bolsheviks and Bootleggers: A Study in Constitutional Subversion

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From National Review Online, November 2005:
Leon F. Scully, Jr. was probably the only legal scholar ever to examine the original documents and actual events behind Weeks v. United States and Mapp v. Ohio â€" the Supreme Court cases that gave us the exclusionary rule of evidence and similar court-imposed constraints on law enforcement. The story he tells â€" of collusion, rigged test cases, ACLU conniving, and illegitimate precedents â€" will be of great interest to attorneys, prosecutors, and especially police officers. A short Introduction sets forth the case, with the command of both language and the law that characterizes the entire book.

And now for something completely different: Bombers, Bolsheviks, and Bootleggers: A Study in Constitutional
Subversion, by Leon Scully .Mr. Scully, a lawyer, was puzzled by the development of the exclusionary rule, which seemed to him plainly contrary to the sense of the Fourth Amendment. He set out on an exploration of its history, and the result is a splendid detective story, with some eye-opening material about the Progressive movement around the turn of the last century."

In Bombers, Bolsheviks, and Bootleggers: A Study in Constitutional Subversion, lawyer and retired oilman Leon Scully reveals the largely unknown and rather stunning story of how in 1914, a group of lawyers (three of whom would one day sit on the United States Supreme Court), conspired to subvert the Fourth Amendment of the American Constitution for the purpose of reversing the conviction of union leaders involved in the 1910 dynamiting of the Los Angeles Times newspaper.
The case was Weeks v. United States and is the basis used down to this present day by lawyers and judicial activists seeking to overturn the convictions of violent criminals whose guilt has been adjudicated in a court of law to be beyond doubt. The subversive legal tool that was created out of this original conspiracy is called "the exclusionary rule" and came about through a series of colluded cases in which prosecutors set up a case in a lower court, and then took a dive when it got appealed to theSupreme Court, thereby securing a legal precedent in a non-controversial case that the defense lawyers could use in future cases. This incredible state of affairs is here told in documented detail and is fundamentally essential reading for members of
the legal profession, as well as the non-specialist general reader with an interest in justice for the victims of thieves, rapists, child molesters, murders, and career criminals of all stripes.

From National Review magazine, 2002

Bombers, Bolsheviks, and Bootleggers: A Study in Constitutional Subversion, by Leon F. Scully, Jr. (Publius, 464 pp., $29.95)

Since 1914, American courts have held that the fruits of an illegal search are inadmissible, regardless of their bearing on the case. Neither the Fourth Amendment nor any other constitutional provision requires this conclusion. Yet in the name of deterring police misconduct, the "exclusionary rule" routinely derails prosecutions, arguably to the frustration of justice (and certainly to that of the public). While others have made the case that the exclusionary rule was invented by judges, Leon Scully goes further, contending that the "test cases" establishing the rule were in fact "a series of frauds perpetrated on the Supreme Court and the American people."

Scully presents a broad view of these cases, including the political pressures on the actors involved, beginning with Weeks v. United States, the 1914 Supreme Court decision that created the exclusionary rule. Fremont Weeks was convicted of using the mails illegally to transport lottery tickets; to secure the evidence against him, police had entered his house without a warrant. The Court did not dispute the evidence, but, reasoning that the police had stepped over constitutional bounds in obtaining it, overturned the conviction. Scully argues that the Court ignored the probable cause that a crime had been committed, which justified the search.

To Scully, the result in Weeks was all too convenient for the Progressive movement in light of Ryan v. United States, also called the "Dynamiters case," a politically charged prosecution of union leaders who were accused of dynamiting the Los Angeles Times building in 1910. The Dynamiters case, which was ongoing at the time Weeks was decided, also involved allegations of illegal interstate transportation, and its outcome hinged on documents found with dynamite and alarm clocks in a basement vault halfway across the country. Without these documents the testimony of two other bombers who had turned state's evidence could not be corroborated. Scully notes that the wrongful police action alleged in Weeks was nearly identical to that alleged in the Dynamiters case; he concludes that Weeks was manipulated in order to obtain a precedent to dispose of the Dynamiters case, and to aid in the Progressives' relations with unions.

Scully's painstaking reconstruction of these and other cases makes a convincing argument that the precedential underpinnings of the exclusionary rule are judicially created precepts that lack grounding in the original meaning of the Fourth Amendment. His legal history is thus the story of an activist judiciary guided by the doctrine of an "evolving" Constitution, imposing political will instead of implementing constitutional principle. Scully's call for a return to the search for truth in courts of law deserves a wide hearing.

From The American Spectator, November-December 2002:
This family favorite is essential reading for judges, prosecutors, and police officers who wonder what went wrong with our laws of search and seizure. In a frontal challenge to conventional history, my father shows that the two major cases establishing the exclusionary rule-Weeks (1914) and Mapp (1962)-were contrived test cases brought before the Supreme Court by dishonest means. Chief Justice Rehnquist once asked how it happened that modern Fourth Amendment law "brought to bear in favor of accused murderers and armed robbers, a rule which had previously been largely an application to bootleggers and purveyors of stolen lottery tickets." He will find the answer here.