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"exclusionary rule") or release him in 90 days. The state appealed to the Eighth Circuit Court of Appeals. The
Eighth Circuit agreed with the District Court. The state appealed to the United States Supreme Court.
Beginning with Stone v. Powell, the Supreme Court decided that they would not hear Fourth Amendment claims on
habeas corpus anymore . Prisoners with Fourth Amendment claims would have to apply for a writ of certiorari
directly from the state Supreme Court.
Chief Justice Warren Burger did not like the exclusionary rule. He felt it should only be applied in cases of
egregious bad-faith conduct on the part of the police, or when the prisoner had a claim of innocence. He believed
that guilty prisoners did not deserve new trials without the evidence that proved their guilt.
During oral argument, Mondo's attorney, Father William Cunningham told the Supreme Court, "My client is
innocent. He wants a new trial to prove his innocence. The police planted that dynamite in his house." (I'm
paraphrasing the oral argument a bit, but that was the general idea.) And the Supreme Court said, "What about the
dynamite in his pants?" And Father Cunningham said, "They could have planted that, too." This stunned the
Supreme Court.
My personal opinion is that the Burger Court picked these two cases because the Court wanted to use these two
black men like George Bush used Willy Horton. The prisoner in Stone v. Powell tried to walk out of a liquor store
with a jug of wine under his coat. He shot the owner of the liquor store and killed his wife when they tried to stop
him. The murder weapon was found on his person when he was illegally searched by a police officer. Even worse,
the prisoner in Wolff v. Rice was a political terrorist! He was a pre-meditated murderer who constructed a bomb
that killed a police officer. The police found dynamite when they illegally searched his house. And these two killers
deserve new trials because of the exclusionary rule??? They are poster-children for the elimination of the
exclusionary rule!
What a shock it must have been when Mondo's attorney told the Court that his client was actually innocent and had
been framed by the police. Even the Attorney General of Nebraska made reference to Mr. Rice’s claims of
innocence. When confronted with the possibility of planted evidence, the Supreme Court said, "That's a different
matter entirely." The remainder of the oral argument was spent talking about whether or not the Court should hear
Fourth Amendment claims on habeas corpus. Father Cunningham reasoned that if the habeas corpus statute was
to be changed, it should be changed by Congress. The Supreme Court responded by saying, essentially, that they
had expanded the scope of the writ therefore they could shrink it back down.
At this point, Father Cunningham saw the writing on the wall. He stood before the United States Supreme Court
and he said this, and I'm not paraphrasing the text.
"My client is not to be penalized for taking the law at that time seriously. Nor must the Eighth Circuit Court of
Appeals be penalized for taking the decisions of this court seriously...to tell my client at this stage of the game
that he has pursued the wrong legal avenue..."
And the Supreme Court cut him off. They said,
"We do not regard it as punishment when we reverse the findings of a lower court, Mr. Cunningham. We're sure
all judges welcome the ultimate justice."
But that's the tragedy. They didn't reverse the findings of the lower court. They changed the procedure for filing a
Fourth Amendment claim. The Supreme Court decision does not disagree with the Eighth Circuit's Constitutional
analysis. They recognized that Mondo's Fourth Amendment rights had been violated by the search of his home and
they decided to ignore it.
In his opinion, Justice Powell accepted the police's explanation that members of the NCCF were believed to be
"planning to kill Duane Peak before he could incriminate them." (428 US at p. 472)
However, the opinion of the Federal District Court (388 F. Supp. 185 (1974) completely discredited this rationale.
"...there is no indication in the police reports of interviews with Duane Peak’s family prior to the entry of Rice’s
house that they were concerned that he might have been eliminated."
The Supreme Court seems to want the reader to believe that members of the NCCF were so depraved that they
would allow a 15-year old kid to carry around a bomb for eight hours on a Sunday afternoon. Furthermore, the
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