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, colleges and at the graduate schools of journalism at New York University and Columbia, 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 during a recent Sunday morning discussion of Bill Clinton's presidential record -- during ABC-TV's "This Week" -- none of the regular panelists thought to ask Sen. Daniel Patrick Moynihan (D-N.Y.) about the president's serial violations of the Constitution, from habeas corpus on.
I am grateful, therefore, for Robert M. Levine's Sept. 13 letter to the editor in The Post, because it lucidly states why it is hard to get the Bill of Rights off the page.
In commenting on my Sept. 4 column 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 arrested and then released even though "they are overwhelmingly guilty."
The New York Times, in reporting on such inconveniences, told of Oona Chatterjee, who runs a neighborhood legal clinic and was trying to intervene in an altercation between police and a neighborhood resident. She was arrested, taken to a Brooklyn precinct house and handcuffed to the bars of a holding cell for 15 hours. After being in custody for a total of 22 hours, she finally was 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 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 armed police, whom he assumed were on some assignment, and 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 the general writs of assistance to search at will the homes and businesses of the colonists. Otis failed, and that's why we have the Fourth Amendment forbidding 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.