Tuesday, January 11, 2011

On The Rate of Wrongful Conviction: Chapter 0.0

As I have mentioned many times previously, I am (slowly) preparing a monograph on the rate of wrongful conviction. Each chapter will deal with one estimate of that rate, beginning with zero and ending beyond 10%. I am posting the draft chapters here, as I write them.  I have so far posted the following: 

Chapter 0.027: The Scalia Number
Chapter 0.5: The Huff Number
Chapter 0.8: The Prosecutor Number
Chapter 1.0: The Rosenbaum Number
Chapter 1.3: The Police Number
Chapter 1.4: The Poveda Number
Chapter 1.9: The Judge Number
Chapter 2.3: The Gross Number
Chapter 3.3: The Risinger Number
Chapter 5.4: The Defense Number
Chapter 9.5: The Inmate Number
Chapter 10.1: A Skeptical Juror Number
Chapter 10.6: The Spencer Number
Chapter 11.1: A Skeptical Juror Number
Chapter 11.4: The Common Man Number

Here I present the introductory post to the monograph, Chapter 0.0.  It's been a long time coming. It took far more research than I anticipated, I've been busy, the dog ate my homework, and the sun was in my eyes. Now finally, after all this time, I present:

Chapter 0.0
The Learned Hand Number

Joseph DiCarlo

We begin our investigation into the rate of wrongful conviction in Buffalo, New York, on New Year's Day, in the year 1924. Joseph DiCarlo was then, according to the federal government, a drug pusher. At the time, nearly a century ago, the pushed drug of choice was morphine or cocaine.

One of DiCarlo's customers was "one" Pattitucci, as the customer is memorialized in the appellate court records, for Pattitucci's first name was not reported. Pattitucci was a restaurant owner, a morphine user, and a downstream distributor. The Feds raided his restaurant, convicted him, and sentenced him to two-years in prison. The Feds then offered him a trade: his freedom for his testimony.

The Feds, of course, had no particular interest in Pattitucci. They were after bigger prey. They wanted DiCarlo. Pattitucci testified before the grand jury, DiCarlo was indicted, and Pattitucci was scheduled to be the star witness at DiCarlo's trial.

It was under those circumstances that "one" Pattitucci and May Gilmore were walking together in Buffalo, on New Year's Day in 1924. May Gilmore was, in the words of the appellate records, Pattitucci's leman. In today's vernacular, Pattitucci and May Gilmore were lovers. Suddenly, a car pulled alongside them, the drug pusher and his leman. Two of four men exited the car and attacked Pattitucci, shooting him through his chin.

Despite his injury, Pattitucci ran and escaped his four assailants, though they were armed and he was not, though they had transport and he did not. Pattitucci later and repeatedly identified all four assailants in the presence of the police and hospital staff. One of those assailants was Joseph DiCarlo.

Pattitucci was soon once again before a grand jury, once again testifying against Joseph DiCarlo. May Gilmore also testified before the grand jury. She also identified DiCarlo as one of the two men who exited the car and attacked Pattitucci. DiCarlo was indicted once again, this time charged with obstructing justice and intimidating a witness.

During his trial on those two charges, DiCarlo produced "many" witnesses to show he was in the New York City central train station at the time of the attack. His defense was also buttressed, and substantially so, by none other than government star witness May Gilmore. Contrary to her grand jury testimony, and to the shock of the prosecution, Gilmore testified that she did not actually see who attacked Pattitucci and could not place DiCarlo at the scene.

Shocked that the jury should hear such exculpatory testimony, the judge granted the prosecutor wide latitude in impeaching Gilmore's testimony by use of her grand jury testimony and her previous statements. Gilmore refused to budge. This stubbornness so frustrated the judge that he ordered the prosecutor to arrest May Gilmore for perjury, right then and there, right in front of the jury and the other witnesses.

DiCarlo was naturally convicted. He appealed that conviction based in part on the adverse treatment of May Gilmore for her refusal to testify as the government wished her to testify. DiCarlo argued that the judge had contaminated the jury and had intimidated all other witnesses, particularly government witnesses, who might otherwise testify to the displeasure of the prosecution.

It was an ironic appeal in that the government secured a conviction for witness intimidation by intimidating its own witnesses. The U.S. Second Circuit Court of Appeals, however, failed to see the irony. In sustaining DiCarlo's conviction, Justice Learned Hand wrote:
The next point arises from the commitment [i.e. arrest] in the presence of the jury of the witness Gilmore for perjury. Before the grand jury she had identified DiCarlo [and another] as the persons who, stepping from the motor car, had attacked Pattitucci. At the trial she refused to say that she could any longer do so, although the learned judge allowed great latitude in her examination to the prosecution. At the conclusion of her examination she was committed [i.e. arrested] for perjury. 
[I]n McNutt v. U.S. … similar action was made a ground for reversal, largely because of its supposed effect upon other witnesses. We cannot disguise the fact that this may at times be the result; the practice is certainly inadvisable. Still it seems to us that a conviction should not be reversed on the mere possibility that witnesses may have been intimidated.
Though admitting precedence instructed such errors be handled as fatal, Learned Hand affirmed DiCarlo's conviction. In his weak justification for ignoring the precedent clearly established in McNutt, Hand simply proclaimed that none of the other nine government witnesses to follow Gilmore's testimony would have been intimidated. He made no effort whatsoever to address the adverse impact of the judge's action on the impartiality of the jury.

Learned Hand had still other issues to blithely dismiss before he could affirm the conviction. One of those issues was the seemingly troublesome possibility of actual innocence. Learned handled it with aplomb.
After the conviction, Pattitucci, who had quarreled with May Gilmore, tried to kill her, and, failing, poisoned himself. After his death, the defendants produced a written recantation of his evidence, stating that the defendants were innocent, and that his assault had been by others out of jealousy. The learned District Judge, after a careful consideration of the evidence submitted, concluded that the circumstances were too doubtful to demand a retrial of the cause. If it be a defect in our system of criminal procedure that such a decision is not reviewable, certainly we cannot correct it. We must decide the case upon the record here, and the defendants have no further recourse, except to executive clemency.
Learned Hand was reviewing a case in which multiple ("many") witnesses placed the defendant far from the crime, where the victim's companion testified she did not see the defendant commit the crime (and stood by that testimony even in the face of arrest for perjury), and where the victim himself later provided a written recantation exonerating those he had accused (after attempting to murder the female witness, and before killing himself.) Even under those circumstances, Hand could not bring himself to believe that DiCarlo, or any other defendant, might have ever been wrongfully convicted.

Learned made that point clear as he dismissed an additional claim by DiCarlo that the prosecutor's closing argument was improper. Apparently DiCarlo was troubled that the prosecutor attempted to subtly (but not too subtly) suggest DiCarlo was a member of the Mafia.
[T]he learned counsel permitted himself by way of peroration [i.e. his dramatic conclusion] to put some theoretical questions to the jury. These called upon them to put an end to the rule of the 'dagger and the stiletto,' to the 'invisible power behind these defendants.' We cannot find any abuse in such comments. It is indeed fatuous to complain of the allusion to the stiletto when a revolver was used. An 'invisible power' might or might not be inferred from their 'attitude on the stand.' … To shear [the prosecutor] of all oratorical emphasis, while leaving wide latitude to the defense, is to load the scales of justice; it is to deny what has always been an accepted incident of jury trials, except in those jurisdictions where any serious execution of the criminal law has yielded to a ghostly phantom of the innocent man falsely convicted. … The judgements are affirmed.

Learned Hand

Billings Learned Hand is perhaps the most highly regarded justice to have never served on the Supreme Court, present justices excepted so as not to cause harsh feelings. Learned served 25 years on the U.S. District Court for the Southern District of New York and then 37 years on the United States Court of Appeals for the Second Circuit. That's 62 years behind the bench. During that time, he published more than four thousand opinions. He is allegedly quoted more often by legal scholars and the U.S. Supreme Court than any other lower court judge.

When Supreme Court Justice Benjamin Cardozo was asked which of his Supreme Court colleagues was the greatest living American jurist, Cardozo replied “The greatest living American jurist isn’t on the Supreme Court.” Instead, Justice Cardozo reserved that honor for Learned Hand.

Marc Arkin, in a book review for The New Criterion, referred to Learned Hand as "The Tenth Justice."

Once in 1930 and again in 1942, Learned Hand was nearly, but not actually appointed to the Supreme Court. Learned Hand was to the Supreme Court what Hubert Humphrey was to the presidency: the national figure bridesmaid, the winner of our country’s consolation bracket, the man who should have served at the highest level but never did.

I’m glad he didn’t.

Richard Posner, the reigning superstar of appellate judges, claims that Learned Hand
“displayed a positive antipathy toward constitutional law. To exaggerate only a little, he didn’t think judges should have anything to do with it.”
Learned Hand’s strength was in areas such as antitrust, intellectual property, tort, and admiralty law. Other than First Amendment issues, Hand was not particularly a fan of the Bill of Rights. He considered the Bill as merely a set of “admonitory” principles. He was particularly offended by the two due process clauses, the one in the Fifth Amendment …
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, … nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; …”
… and the other one, added well after the Bill of Rights, in the Fourteenth Amendment.
“… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. …”
Learned perceived the due process clauses to be an invitation for federal courts to intervene into issues that he believed should be reserved for the state courts. He went so far as to advocate for the removal of the due process clauses. Then, to put the icing on his anti-due-process cake, he took public exception to the U.S. Supreme Court decision in Brown v. Board of Education. Recall that decision declared state-enforced segregated schooling to be unconstitutional. Learned described the decision as judicial abuse.

Learned’s apparent displeasure with the Bill of Rights in general, and the due process clauses in particular, pale in comparison to his apparent displeasure for those accused of crimes. As he had in DiCarlo (1926), Hand declared in United States v. Garsson (1923) that the thought of an innocent man wrongfully convicted was nothing more than an ethereal fiction.  
Our dangers do not lie in too little tenderness to the accused. Our procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime. … The motions are denied.
Learned Hand's preferences among classes of people are poorly hidden in his judicial opinions. Based on the few excerpts already provided, judges are frequently "learned." District attorneys are occasionally "learned."

Defense attorneys obstruct, delay, and defeat the prosecution of crime.

Faithful prosecution witnesses are stalwart individuals worthy of belief beyond a reasonable doubt.

Apostate prosecution witnesses are worthy of immediate arrest and gratuitous identification as a leman.

The accused are shown too much tenderness.

The convicted are never innocent.

Harry Berger

Harry Berger was convicted of conspiracy to distribute counterfeit money based exclusively on the testimony of Jack Katz. Katz would later be described by Learned Hand as "a thoroughly unreliable person."

Katz had a long history of forgery and larceny convictions. He sold his testimony against Berger (and Berger's co-defendants) for a substantial sum. The Feds reduced his prison time from 122 years to 2 years, and reduced his fine from $50,000 to $10,000.

In return, Katz testified extensively about the alleged, extensive wrongdoings of Berger's co-defendants. With regard to Berger however, Katz claimed only that on one occasion he gave Berger four counterfeit bills that Berger immediately handed over to one of the co-defendants. That was it for the testimonial evidence against Berger.

It seems quite possible that Katz threw Berger to the prosecutorial wolves merely on a whim. Katz believed that Berger had been romancing Katz' wife. The prosecution, nonetheless, pursued Berger with zeal.

No testimony, documents, or physical evidence corroborated Katz' version of the alleged isolated and transient event. Multiple witnesses testified that Katz had earlier told them that Berger had nothing to do with the counterfeit bills.

US Attorney Harry Singer, however, did not take all the trouble to charge and try Harry Berger just to lose a case due to lack of evidence. Singer instead presented such a masterfully convoluted case that the jury convicted despite the absence of credible evidence. To understand how Singer did that, to believe it, you need to read at least a portion of the transcripts.

Consider therefore the following exchange from Harry Singer's cross-examination of Harry Berger. The excerpt is but a small portion of Singer's effort to heap ridicule upon Singer's character. We pick up the testimony after Singer has accused Berger of having several women "stay overnight" and of "indulging in whatever you say was your privilege with this lady." In the exchange to follow, Singer implies that Berger intends to physically attack him, but only after asking about the man without pants who wasn't there.
"The man who didn't have his pants on and was running around the apartment, he wasn't there?" >> No, Mr. Singer. Mr. Godby told me about this, he told me, as long as you ask me about it, if you want it, I will tell you, he told me `If you give this man's name out, I will give you the works.'
"Give me the works?" >> No, Mr. Godby told me that.
"You are going to give me the works?" >> Mr. Singer, you are a gentleman, I have got nothing against you. You are doing your duty.
[Defense attempts to clarify. Court stands mute. State proceeds.]
"Wait a minute. Are you going to give me the works?" >> Mr. Singer, you are absolutely a gentleman, in my opinion, you are doing your duty here.
"Thank you very much. But I am only asking you are you going to give me the works? >> I do not give anybody such things, I never said it.
"All right. Then do not make the statement."
[Defense objects. Court instructs defense to not interrupt.]
Singer then proceeds to ask repeatedly about whether he, the judge, or the jury had ever been in the apartment where the man without pants had not been either.
"I asked you whether the man who was running around this apartment …, was he there in the Secret Service office on the morning that you were arrested?" >>I didn't see him. 
"I wasn't in that apartment, was I?" >> No, Mr. Singer. 
"I didn't pull the gun on you and stick you up against the wall?" >> No. 
"I wasn't up in this apartment at any time, as far as you know, was I?" >> As far as I know, you weren't. 
"You might have an idea that I may have been there?" >> No, I should say not. 
"I just want to get that part of it straight. … Was I in that apartment that night?" >> No, but Mr. Godby -- 
"Was Mr. Godby in that apartment?" >> No, but he has been there. 
"Do you include as those who may have been there the Court and all the jurymen and your own counsel?" >> Mr. Singer, … are you serious about that? 
[Defense objects and is overruled.] 
"I would like to have an answer to it." >> Mr. Singer … that is ridiculous.
Singer then grills Berger about a threat Singer concedes Berger never made.
"Now Mr. Berger, do you remember yesterday when the court recessed for a few minutes and you saw me out in the hall; do you remember that?" >> I do, Mr. Singer. 
"You talked to me out in the hall?" >> I talked to you? 
"Yes." >> No. 
"You say you didn't say to me out in the hall yesterday, `You wait until I take the stand and I will take care of you.' You didn't say that yesterday?" >> No; I didn't, Mr. Singer. You are lying. 
"I am lying, you are right. You didn't say that at all?" >> No. 
"You didn't speak to me out in the hall?" >> I never did speak to you outside since this case started, except the day I was in your office, when you questioned me. 
"I said yesterday." >> No, Mr. Singer. 
"Do you mean that seriously?" >> I said no. 
"That never happened?" >> No, Mr. Singer, it did not. 
"You did not say that to me?" >> I did not. 
"Of course, I have just made that up?" >> What do you want me to answer you? 
"I want you to tell me I am lying …"
Prosecutor Singer's conduct during his closing argument was equally egregious. Regarding a witness who testified she could not identify Berger, Singer told the jury he personally had inside knowledge she was lying.
Mrs. Goldie Goldstein takes the stand. She says she knows [a co-defendant], and you can bet your bottom dollar she knew Berger. She stood right where I am now and looked at him and was afraid to go over there, and when I waved my arm, everybody started to holler, ‘Don’t point at him.’ You know the rules of law. Well, it is the most complicated game in the world. I was examining a woman that I knew knew Berger and could identify him, she was standing right here looking at him, and I couldn’t say, ‘Isn’t that the man?’ Now, imagine that! But that is the rules of the game, and I have to play within those rules. … But, oh, [the defense attorneys] can twist questions … [T]hey can sit up in their offices and devise ways to pass counterfeit money; "but don’t let the Government touch me, that is unfair; please leave my client alone."
Rather than confusion and revulsion, Singer's verbal assaults on Berger's character were met with laughter and a guilty verdict. Even the judge, who allowed the circus to take place within his courtroom, found it necessary on multiple occasions to caution against laughing.

Once the laughter subsided, and the guilty verdict rendered, the judge sentenced Berger to one year and a day in the penitentiary.

Learned Hand

Berger appealed for relief to the U.S. Court of Appeals for the Second Circuit. Surely this verdict could not be allowed to stand. The only substantive witness for the prosecution provided his uncorroborated testimony in exchange for 120 years of his life and $40,000 of his money. The prosecutor's behavior was beyond the pale, and the judge failed to control the prosecutorial excess.

Learned Hand was unimpressed by Berger's claims. He wrote the Second Circuit opinion affirming the conviction. Early in that opinion, Hand acknowledged both the importance of Katz' testimony and the unreliability of his character.
[The State's case] depended chiefly upon the testimony of Katz who turned state's evidence against the rest; who had been several times convicted of other crimes; and who was a thoroughly unreliable person. 
Learned quickly explained such considerations were unworthy of review.
We have frequently said that we would not ordinarily intervene in an issue depending on the credibility of witnesses and there is no reason to make an exception here.
Learned then dealt with the prosecutor's conduct in a single paragraph.
Berger also complains of the conduct of the prosecuting attorney. It is indeed true that this officer failed in moderation and good taste; we might have been better content had the trial judge seen fit to keep him more closely in hand than he did. But the abuse of his position as prosecutor -- for it seems to us to have been such -- was not so extreme as to require us to upset the judgment. … [I]t would be extravagant now to reverse the conviction on its account, for it is fantastic to suppose that it substantially determined the outcome. … [T]oday, when mere possibilities do not interest us as they did our forerunners, we demand more tangible evidence that damage has been done. … Judgment affirmed.
No more impressed with Learned Hand back then than I am now, Harry Berger appealed to the U.S. Supreme Court. Though Berger's case was inconsequential in terms of crime and punishment, and though it raised no constitutional question, the Supremes for some reason agreed to hear his case. They were unimpressed both by the prosecutor and by those on the Second Circuit who failed to find reversible error in his behavior.
That the United States prosecuting attorney overstepped the bounds of that propriety and fairness … is clearly shown by the record. He was guilty of misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court, in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and in general, of conducting himself in a thoroughly indecorous and improper manner. … It is impossible to say that the evil influence upon the jury of these acts of misconduct was removed by such mild judicial action as was taken. 
The prosecuting attorney's argument to the jury was undignified and intemperate, containing improper insinuations and assertions calculated to mislead the jury. A reading of the entire argument is necessary to an appreciation of these objectionable features. 
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. ... Judgment reversed.

Jerome Frank

Jerome New Frank joined in the Second Circuit Court in 1941 after Billings Learned Hand had been sitting there for 17 years. Jerome was clearly unimpressed by his learned colleague's portrayal of the wrongfully convicted as ghostly phantoms or unreal dreams. He would become a pain in the otherwise unanimous butt of the United States Court of Appeals for the Second Circuit Court.

For the period 1942 through 1950, the time span when both Frank and Hand served complete years on the court, I found 186 criminal appeals in which the Second Circuit found exclusively for the state, and 60 cases in which the Second Circuit found exclusively for the defence. Each criminal appeal was normally heard by any three of the following justices:

Learned Hand (1924 - 1961)
Thomas Swan (1926 - 1975)
Augustus Hand (1927 - 1954)
Harrie Chase (1929 - 1969)
Charles Clark (1939 - 1959)
Jerome Frank (1941 - 1957)

Billings Learned Hand and Augustus Noble Hand were cousins. Augustus dissented in but one of the 246 cases in my database, and that was for a case in which cousin Learned was not involved. Learned dissented in only five of the cases, only once when cousin Augustus was hearing the same case. In that one disagreement, Augustus found for the defendant and Learned felt compelled to dissent.

Dissents were rare regardless of who was hearing the case, unless one of those hearing the case was Jerome Frank. Thomas Swan never dissented. Augustus Hand and Harrie Chase dissented only three times combined, and then only when the majority found for the defendant. Learned Hand and Charles Clark dissented only twelve times combined, splitting their dissents for the state and the defendant.

Jerome Frank, by comparison, dissented 29 times, 28 of those in cases where the majority found for the state. He dissented not only more frequently than did his colleagues, he dissented with greater fervor. In United States v. Rubenstein, Learned Hand used 2,141 words to affirm the conviction a man charged with aiding the immigration of a woman via a sham marriage. Jerome Frank used 5,022 words in his dissent, including those words in his 27 footnotes.

Not to be outdone, Learned Hand later used 5,793 words and 4 footnotes to uphold the verdict against four individuals in United States v. Antonelli Fireworks. Jerome Frank countered with 19,580 words, 79 footnotes, and 3 appendices in his dissent.

Where Learned Hand portrayed wrongful convictions as ghostly phantoms, Jerome Frank referenced Edwin Borchard.

Borchard's groundbreaking work Convicting the Innocent was published 1932. Borchard therein documented 65 cases of people wrongfully convicted. He included cases where the alleged murder victim reappeared, where the actual culprit was later captured and confessed, and where compelling, exculpatory evidence appeared after conviction. Borchard laid low any claim that wrongful convictions were but ghostly phantoms.

Where Learned Hand portrayed wrongful convictions as unreal dreams, Jerome Frank noted the contemporaneous case of  Bertram Campbell.

Campbell was, while Hand and Frank were writing opinions, serving five-to-ten in Sing Sing for forgery and grand larceny. Though identified by multiple bank employees as the person who passed forged checks, Campbell proclaimed his innocence. Before his sentencing, he sent a note to the judge: "I solemnly swear to you by all that I hold holy, and by the lives of my dear wife and children, that I am absolutely innocent of the crimes for which I was convicted."

Master forger Alexander Thiel, captured for a string of other check forgeries, confessed to the crime for which Campbell had been convicted. Most, but not all, of the bank employees retroactively confirmed that they must have witnessed Thiel rather Campbell, though the two had only a passing resemblence. The employees were perhaps led astray by the wax-tipped mustache actually worn by Thiel but only inked onto photo the employees were shown of Campbell.

While Learned Hand fretted about the "archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime," Jerome Frank referenced the 1931 report of the Wickersham Commission.

Established in 1929 by President Hoover, the National Committee on Law Observation and Enforcement, better and more easily known as the Wickersham Commission, reported egregious abuse of power by both police and prosecutors, finding for example that "the third degree - the inflicting of pain, physical or mental, to extract confessions or statements - is widespread throughout the country." With respect to prosecutors, the commission reported widespread, inexcusable ignorance of elementary principles of criminal justice. They reported also blatant disregard of defendants' rights including character assassination, interjection of inadmissible evidence, and inflammatory closing arguments. The conclusion concluded that such behavior could lead to the "conviction of the innocent."

Harmless Error

No issue so frequently prompted Frank's dissent as did the Second Circuit's pervasive reliance on the concept of harmless error. In Rubenstein, Frank wrote:
The only conceivable … basis … for not reversing this judgment must be the tacit application of the unique interpretation of the phrase "harmless error" which has unfortunately become current in this Circuit.

I have the very highest respect for Judge Hand. To sit with him is an inestimable privilege, a constant source of education. Consequently, I usually suspect my own tentative opinions, when they vary from his. But on this one subject I find myself recurrently and unregenerately at odds with him.

My colleagues' rule is to overlook errors in admitting evidence, when …  the record, in their opinion, shows that defendant is guilty. … The rule here is that, even if that evidence was such that it may well have affected the jury's verdict, yet it is no ground for reversal if my colleagues believe the defendant guilty.

In so doing, the judges convert themselves into a jury. By thus substituting themselves for the legally authorized jury, I think they exercise a power beyond their legitimate -- their constitutional -- scope. Without warrant in statute or Constitution, the judges find the facts. I cannot believe that such a procedure satisfies the constitutional requirement of a jury trial. The defendant has been convicted by the judges, not by a jury. He has been unconstitutionally deprived, I think, of the privilege of a trial by jury fully as much as if, in the first instance, he had been compelled to go to trial before a juryless court.

A jury trial unquestionably has defects. At best, such a trial … is an imperfect, all-too-human, instrument for ascertaining the true facts of a case As Borchard reported several years ago and as current discussion in the press of the recent Campbell case dramatically reminds us, occasionally it is discovered that an innocent man, after a jury trial, has been convicted and sent to jail or put to death by the government. No one can doubt that there have been undiscovered instances (no one knows how many) of convictions of the innocent.

Unfortunately, some tragedies of that kind are bound to occur. I, for one, do not care to accept responsibility for any such miscarriage of justice which, with reasonable precautions, could have been avoided.

Although usually I feel constrained to concur in a ruling with which I disagree if it has been endorsed in previous decisions by a majority of this court, I think that, in respect of this "Second Circuit doctrine" of harmless error, because of what may be its consequences, I may appropriately continue to dissent.
And continue to dissent he did. In Antonelli, he reminded his colleagues that they had already been reversed by the Supreme Court because of their careless application of the harmless error concept.
I think it plain, then, that, because of their unique conception of "harmless error" and their interpretation of a "strong case", my colleagues do not follow the [Supreme Court] rule in Berger's case, but, remaining renitent, render it mere lip service: Just as they refuse to reverse for erroneously admitted evidence when, despite conflicting testimony, they believe a defendant guilty, so they do likewise as to counsel's improper remarks in a criminal suit. 
Strangely enough, my colleagues have taken a different position as to misconduct of counsel in civil litigation. In Brown v. Walter … the lawyer for the successful plaintiff, in an automobile collision case, injected into the record the fact that the nominal defendant was insured by an insurance company. Although the trial judge cautioned the jury not to heed that fact this court reversed, citing cases … to effect that "no caution would serve to cure" such an error. Surely, if that rule is to be invoked to protect the pocket-book of an insurance company, it should be invoked in the instant case to protect natural persons from being sent to jail unjustly. 
If government counsel in a criminal suit is allowed to inflame the jurors by irrelevantly arousing their deepest prejudices, the jury may become in his hands a lethal weapon directed against defendants who may be innocent. He should not be permitted to summon that thirteenth juror, prejudice. Law suits, do what we will, are hazardous: A missing witness, a lost document -- these and numerous other fortuitous factors may result in a man's losing his life, liberty or property unjustly. When the government puts a citizen to the hazards of a criminal jury trial, a government attorney should not be allowed to increase those hazards unfairly. When, as here, such an attorney has done so, I, as a government servant, am unwilling to approve the result. I think it is our duty to give these defendants another trial.
Frank went on to warn that the Second Circuit Court's tacit acceptance of prosecutorial misconduct would lead to injustice, not just in the case at hand, but in untold cases to come.
This court has several times used vigorous language in denouncing government counsel for such conduct as that of the United States Attorney here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. It means actual condonation of counsel's alleged offense, coupled with verbal disapprobation. 
If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. For otherwise it will be as if we declared in effect, "Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If prosecutors win verdicts as a result of `disapproved' remarks, we will not deprive them of their victories; we will merely go through the form of expressing displeasure. 
The deprecatory words we use in our opinions on such occasions are purely ceremonial. Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court — recalling the bitter tear shed by the Walrus as he ate the oysters — breeds a deplorably cynical attitude towards the judiciary. 
On the other hand, a reversal in a case like this might well serve as a deterrent: If it became known that misconduct of a United States Attorney had caused the public the expense of a new trial, his resultant unpopularity might tend to make him subsequently live up to professional standards of courtroom decency. If this court really meant business about such behavior as that of government counsel in the case at bar, if it actually considered such behavior reprehensible, it would, at a minimum, announce that if, in any future case any government lawyer should thus conduct himself, it would deprive him of the right to practice in this court and would recommend that he be removed from his office as a representative of our government. 
Lawyers may talk rhapsodically of JUSTICE. They may, in Bar Association meetings, hymn the pre-eminent virtues of "our Lady of the Common Law," prostrate themselves devotedly before the miracle of the common law's protection of human liberties. But, in the last analysis, there is only one practical way to test puddings: If, again and again in concrete instances, courts unnecessarily take the chance of having innocent men sent to jail or put to death by the government because they have been found guilty by juries persuaded by unfair appeals to improper prejudices, then the praises of our legal system will be but beautiful verbal garlands concealing ugly practices we have not the courage, or have grown too callous, to contemplate.

Epilogue to Chapter 0.0

Learned Hand and the others were less moved by Jerome Frank's writing than I am. Learned and the others continued to apply the harmless error doctrine with all due speed. Only on occasion were they called to the carpet for their decisions.

In 1946, the Supreme Court overturned the their application of harmless error in Kotteakos, and again in Bihn, and again in Bollenbach.

In 1949, the Supremes overturned them for the same reason in Krulewitch.

Also in 1949, Jerome Frank published his book Courts on Trial: Myth and Reality in American Justice. Frank dedicated that book "To Learned Hand -- Our Wisest Judge."

In 1957, Jerome Frank completed work on his last book. He titled it Not Guilty. Following in the footsteps of Edwin Borchard, Jerome and his daughter Barbara documented 36 cases of innocent people wrongfully convicted. One of those cases was that of Bertram Campbell.

Jerome Frank then died. In the forward to their book, Barbara Frank wrote:
On January 11, 1957, we made the last change in the final draft of the manuscript. I went to sleep that night with a happy feeling of accomplishment. I like to think that he did too.
At noon the following day an ambulance carried my father to the hospital. His generous heart, which in his sixty-seven years had rarely failed another human being, was finally neglecting him. At four-fifty the next morning, on January 13, he died, painlessly, in his sleep. It is too soon for me to say any more than this: I am proud to be his daughter and to have shared this book with him.
In a perverted sense, Learned Hand prevailed in his legal disagreement with Jerome Frank. The concept of "harmless error" runs amok today. A search in Goggle Scholar for "harmless error" and "is affirmed" returns 19,500 hits. A similar search for "is reversed" yields fewer than half as many.

On the other hand, Learned Hand was woefully wrong when he argued that "our dangers do not lie in too little tenderness to the accused." Assuming either Professor Bruce Spencer's judge-jury analysis (Chapter 10.6) or my own judge-jury analysis (Chapter 11.1) is correct and broadly applicable, we now have a quarter million of our fellow Americans wrongfully incarcerated.

For his efforts to prevent wrongful convictions, I dedicate this book to Jerome New Frank, Our Wisest Judge.

For his inability to conceive that our judicial system might consume the innocent as well as the guilty, I award Billings Learned Hand the eponymous sub-title for this Chapter 0.0.

1 comment:

CGW said...

John, As usual a great and very informative post. I hope we can talk against soon. Corey

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