Fruit of the poisonous tree

The title of this first article of mine seems to be an appropriate announcement of what I intend to achieve with the planned columnist series in the “Nezavisen/Independent” daily newspaper. My intention is to analyze and meditate on the many phenomena in our modern society that are the result of unlawfulness or as it is usually said from “chaos,” from the “abnormal,” from the “mad” time we live in. But time is not the only thing that is chaotic, mad and abnormal. Time, as a category in physics and philosophy, is the same thing, universal, now and always. It is more about time as a social framework and as a sociological category. From that perspective, it appears as shocking, chaotic, mad, abnormal, because of our activities and behaviors, with which we go through our lives and push our personal, family, professional and political relations with the people in them.

The message quoted as “fruit from the poisonous tree” seems to me to be a sustained diagnosis of the state of the macro, i.e. on the social and, above all, on the political plan, as well as on the micro plan, ie on the level of everyday collegial, professional and interpersonal relations. Illegitimacy prevails at all levels (that is, the “poisonous tree”) and we live our lives feeding ourselves, literally and metaphorically, with fruits (grades, diplomas, jobs, awards, purchases…) from poisonous trees. And we know that the fruit is poisoned! But we see it and criticize this only when such fruits are offered to us, or when they do not want to “buy out” the poisonous fruits of our harvest. How do we overcome this problem?

In agriculture, people in developed countries have solved this by developing biological and organic production. This means first clearing the soil so that it can feed and grow healthy stems that will give healthy fruits. In society and politics, the institutions of the rule of law and in general the culture of legality provide clean soil. The independent judiciary has a key role that system. One of the institutes of such a judiciary is the legal doctrine mentioned in the title. The term “Fruit of the poisonous tree” was first formulated by a judge of the US Supreme Court in 1939.

The main principle of this doctrine is that illegally acquired materials, or information, cannot be used as evidence in court proceedings. Since its formulation to date, this doctrine has been expanded with a few specifics that, however, allow such a thing, but only in specific exclusionary situations. They are a matter for our lawyers – especially for those to whom the publicly promoted, most often afterwards, remember after they have been instructed from outside.  With my sociological prism, I imagine the validity of this doctrine in our country. Not so much for our agriculture in which we can see that the first steps towards organic production are being made. I am thinking more of the garden called a “society in transition”.
On a political level, this doctrine has become very popular nowadays. An immediate reason is the verdict of the Greek Supreme Court not to extradite the two accused intelligence officers, in our country. According to that logic, the defenders of the defendants in several procedures of the SPO had come to refer to the decision of the president of the state for their pardon. This decision, as well as the subsequent decision to withdraw pardons, is an example of the state of non-legality here, including the problem with the doctrine of the fruits of the poisonous tree. It would be reasonable to conclude that one of them is illegal. But logic has no place in the sociology of Macedonian law and judiciary. That’s why the times seem crazy to us! And in fact madness and chaos arise from the illegitimacy, voluntarism and bullying of the more powerful. They get the easiest way out of such abnormal or unprepared and shocking circumstances, as Naomi Klein argued extensively.
Thus, for example, the publication of illegally acquired materials in February 2015 reverberated as “bombs”, and some benefited from them. Later, in May 2017, the Doctrine of the Fruits of the Poisonous Tree was publicly called by the party leaders who seized the state by illegally creating these materials. The then leadership of VMRO-DPMNE qualified the giving of the mandate from the president of the leader of the opposition with that phrase. But they did not turn back to realize that a certain portion of their previous mandates and other achievements in politics, but also in their private and business lives were, as the “bombs” revealed,  fruits from one of the many poisonous trees – from the illegitimacy of their rule.

Such political circumstances affect our behavior in everyday life, in our micro environments, at home, at work… What comes from the leadership, the elites, even nominally, is imitated from the citizens. From there I draw the second impetus for the topic of the doctrine. In appealing a decision that was made in an illegal manner, I described it as “a fruit from a poisonous tree” in the complaint. And the decision was withdrawn! Certainly, not because of the power of the phrase, but because of the conviction of the higher instance to which I complained that the arguments, with which it was supported, were facts. The process moved forward. But the reaction of the bearers and the proposers of the contested decision to this phrase deserves a sociological analysis. They discover that: first, in some official circles of our society personal attitudes, interests and experiences and personal relationships with people are the first and main filter and criterion for collective representations and decisions, and second, that some of our “top” lawyers are with fake, local eminence.

The phrase ‘fruit from the poisonous tree’ in their understanding means that they personally are fruits (children) from a poisonous tree (family). That they experienced it traumatically, and are ready to sue. But the most striking and, most interesting, was the claim that such a meaning of the phrase was interpreted and confirmed by “top lawyers”. They consulted with lawyers from the circle of their personal acquaintances in their immediate surroundings. They even gave out their names – one minister and a law professor, the other a “top lawyer”. Unbelievable! What is more tragic? To believe them and realize that such “top lawyers” are the fruits of a mediocre education and recruitment system?! Or, accept them as another manifestation of the more ubiquitous model of fake, or as citizens of Bitola would say – “kabadajsko” (mischievous) behavior.
Such behavior was part of the street until recently. The transition, democratic and capitalist, brought this model of behavior to wide open doors of the highest public institutions. It is not only political, but also academic and cultural institutions that suffer from it. At a more public level, the criterion seems to be the political party merit. However, certain indicators (personnel decisions and policy measures) show that a process of party cartelization of public institutions is in progress. The main parties just seem to mutually fight each other to their destruction. In reality, through “people for liaison” they coordinate each other in order to protect themselves from the law, or from the strengthening of new aspirants. The aim of the cartel parties (according to Katz and Mair) is not to represent and to realize certain ideas and policies they have promised, but to rule in order to profit from the practice of power.

Ilo Trajkovski
The author is a university professor