The Constitution of the United States of America: Analysis and Interpretation Part 185

Conviction Based on Perjured Testimony

When a conviction is obtained by the presentation of testimony known to the prosecuting authorities to have been perjured, the const.i.tutional requirement of due process is not satisfied. That requirement "cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance * * * is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation."[936] This principle, as originally announced, was no more than a dictum uttered by the Court in disposing of Tom Mooney's application for a writ of _habeas corpus_, filed almost eighteen years after his conviction, and founded upon the contention that the verdict of his guilt was made possible solely by perjured testimony knowingly employed by the prosecutor who "deliberately suppressed evidence which would have impeached and refuted the testimony thus given against him."[937]

On the authority of the preceding case, and without qualification, the Court subsequently applied this principle in Hysler _v._ Florida,[938]

Pyle _v._ Kansas[939] and White _v._ Ragen.[940] In the first case, the Supreme Court concurred in the judgment of the Florida appellate court denying a pet.i.tion for leave to apply to a trial court for a writ of _coram n.o.bis_. Supporting the pet.i.tion filed by Hysler, the accused, were affidavits signed by one of two codefendants on the eve of his execution for partic.i.p.ation in the same crime and stating that the two codefendants had testified falsely against Hysler because they had been "'coerced, intimidated, beaten, threatened with violence and otherwise abused and mistreated' by the police and were 'promised immunity from the electric chair' by the district attorney." Having made "an independent examination of the affidavits upon which * * * [Hysler's]

claim was based," a majority of the Justices concluded that the Florida appellate court's finding that Hysler's proof was insubstantial and did not make out a _prima facie_ case was justified. "That in the course of * * * years witnesses die or disappear, that memories fade, that a sense of responsibility may become attenuated, that [recantation] * * * on the eve of execution * * * [is] not unfamiliar as a means of relieving others or as an irrational hope for self * * * are relevant" to the determination by the Florida court that "such a belated disclosure" did not spring "from the impulse for truth-telling" and was "the product of self-delusion * * * [and] artifice prompted by the instinct of self-preservation."[941]

Relying largely on the failure of the State to answer allegations in a prisoner's application for a write of _habeas corpus_, which application recited that persons named in supporting affidavits and doc.u.ments were coerced to testify falsely, and that testimony of certain other persons material to the prisoner's defense was suppressed under threat and coercion by the State, the Court, in Pyle _v._ Kansas[942] reversed the Kansas court's refusal to issue the writ. Inasmuch as the record of the prisoner's conviction did "not controvert the charges that perjured evidence was used, and that favorable evidence was suppressed with the knowledge" of the authorities, the case was remanded in order that the prisoner might enjoy that to which he was ent.i.tled; namely, a determination of the verity of his allegations. Similarly, in White _v._ Ragen,[943] the Court declared that since a prisoner's pet.i.tion to a State court for release on _habeas corpus_ had been dismissed without requiring the State to answer allegations supporting the pet.i.tion; namely, that the conviction was obtained by the use of false testimony procured by bribery of two witnesses by the prosecutor, must be a.s.sumed to be true. Accordingly, the pet.i.tioner's contentions were deemed sufficient to make out a _prima facie_ case of violation of const.i.tutional rights and adequate to ent.i.tle him to invoke corrective process in a State court.

Confrontation; Presence of the Accused; Public Trial

On the issue whether the privileges of presence, confrontation and cross-examination face to face, a.s.sured to a defendant in a federal trial by the Sixth Amendment, are also guaranteed in State criminal proceedings, the Court thus far has been unable to formulate an enduring and unequivocal answer. At times it has intimated, as in the following utterance, that the enjoyment of all these privileges is essential to due process. "The personal presence of the accused, from the beginning to the end of a trial for felony, involving life or liberty, as well as at the time final judgment is rendered against him, may be, and must be a.s.sumed to be, vital to the proper conduct of his defence, and cannot be dispensed with."[944] Notwithstanding this early a.s.sumption, the Supreme Court, fourteen years later, sustained a Kentucky court which approved the questioning, in the absence of the accused and his counsel, of a juror whose discharge before he was sworn had been demanded.[945]

Inasmuch as no injury to substantial rights of the defendant was deemed to have been inflicted by his occasional absence during a trial, no denial of due process was declared to have resulted from the acceptance by the State court of the defendant's waiver of his right to be present.

In harmony with the latter case is Felts _v._ Murphy,[946] which contains additional evidence of an increasing inclination on the part of the Court to treat as not fundamental the rights of presence, confrontation, and cross-examination face to face. The defendant in Felts _v._ Murphy proved to be so deaf that he was unable to hear any of the testimony of witnesses, and had never had the evidence repeated to him. While regretting that the trial court has not had the testimony read or repeated to the accused, the Supreme Court held that a deaf person is not deprived of due process of law because he had not heard a word of the evidence. It also did not overlook the fact the defendant "made no objection, asked for nothing, and permitted his counsel to take his own course."

That the presence of the accused may be dispensed with at various stages of criminal proceedings was further conceded by the Court in Frank _v._ Mangum,[947] wherein it held that the presence of the defendant when the verdict is rendered is not essential, and, accordingly, that a rule of practice allowing the accused to waive it and which bound him by that waiver did not effect any unconst.i.tutional deprivation. Enumerating many departures from common law procedure respecting jury trials, including provisions waiving the presence of an accused during portions of a trial, the Court emphasized that none of these changes had been construed as conflicting with the Fourteenth Amendment. More recently, the Court, sustained, by only a five-to-four vote, however, a conviction for murder where the trial court rejected the defendant's request that he be present at a view of the scene of the murder to which the jury had been taken.[948] Acknowledging that it had never squarely held, though it now a.s.sumed, that "the privilege to confront one's accusers and cross-examine them face to face" in State court prosecutions "is reinforced by the Fourteenth Amendment," the majority devised the following standard for disposing of similar cases in the future. "In a prosecution for a felony," five Justices declared, "the defendant has the privilege under the Fourteenth Amendment to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge. * * * The Fourteenth Amendment does not a.s.sume to a defendant the privilege to be present [when] * * * presence would be useless, or the benefit but a shadow. * * * The presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Employing this standard of appraisal, the majority therefore concluded that no harm or damage had been done to the accused by reason of his failure to be present when the jury viewed the site of the murder.[949]

To what extent, consistently with due process, States may authorize the conduct, after conviction and sentence, of nonadversary proceedings from which the accused has been excluded and denied the privilege of confrontation and cross-examination, has been examined by the Court in two recent cases. In Williams _v._ New York,[950] the Supreme Court rejected the contention that the due process clause requires that a person convicted of murder be permitted to cross-examine probation officers as to his prior criminal record when the trial judge, in the exercise of discretion vested in him by law, considers such information, obtained outside the courtroom, in determining whether to abide by a jury's recommendation of life imprisonment or to impose a death sentence. Emphasizing the distinction between evidentiary rules applicable to the conduct of criminal trials, which are confined to the narrow issue of guilt, and sentencing procedures which pertain to the determination of the type and extent of punishment after the issue of guilt has been decided, the Court disposed of the pet.i.tioner's appeal by declaring that, "modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial."[951] By a similar process of reasoning, in Solesbee _v._ Balkcom,[952] the Court sustained a Georgia statutory procedure granting the governor discretionary authority, with the aid of physicians appointed by himself, to determine, without opportunity for an adversary hearing or for judicial review, whether a condemned convict has become insane and, if so, whether he should be committed to an insane asylum.

Likening the function thus vested in the governor to the power of executive clemency, the Supreme Court reiterated that "trial procedure safeguards are not applicable to the process of sentencing," and concluded with the observation that the Georgia procedure is amply supported by "the universal common-law principle that upon a suggestion of insanity after sentence, the tribunal charged with responsibility must be vested with broad discretion in deciding whether evidence shall be heard. * * * The heart of the common-law doctrine has been that a suggestion of insanity after sentence is an appeal to the conscience and sound wisdom of the particular tribunal which is asked to postpone sentence."[953]

When employed in the conduct of the trial, however, summary procedures such as those examined in the preceding two decisions invariably elicit judicial condemnation. Thus, when a Michigan judge proceeding as a one-man grand jury concluded that a witness had given false and evasive testimony, not on the basis of anything inherent in the testimony itself, but at least in part upon its inconsistency with other testimony given by a preceding witness, and immediately thereupon suspended his investigation, and committed the witness to jail for contempt, such summary commitment, in the absence of a showing that it was necessary to prevent demoralization of the judge's authority, was held to const.i.tute a denial of due process. The guaranty of that clause forbids the sentencing of an accused person to prison without a public trial; that is, without a day in court, reasonable notice of the charges, and an opportunity to be heard in one's defense by cross-examining other witnesses, or by summoning witnesses to refute the charges against him.[954]

On the other hand, when the alleged contempt is committed, not within the confines of a secret grand jury proceeding, but in open court, is readily observable by the presiding judge, and const.i.tutes an open and immediate threat to orderly judicial procedure and to the court's authority, the offended tribunal is const.i.tutionally empowered summarily to punish without notice, testimony, or hearing. Thus in Fisher _v._ Pace,[955] albeit with the concurrence of only five Justices, the Court sustained a Texas court's conviction for contempt, with progressive increase of penalty from a $25 to $50 to $100 fine plus three days in jail, of a trial attorney who, despite judicial admonition, persisted in conveying to the jury, in a workmen's compensation case, information not for their consideration. Conceding that "there must be adequate facts to support an order for contempt," the majority declared that the Texas appellate court's finding in the affirmative, after evaluation of the facts, should not be overturned inasmuch as the Supreme Court, in examining the transcript of the record, could not derive therefrom an adequate picture of the courtroom scene nor discern therein "such elements of misbehavior as expression, manner of speaking, bearing, and att.i.tude of * * * [the attorney]." The fact that the bench was guilty of "mildly provocative language" was deemed insufficient to excuse the conduct of the attorney.[956]

Trial by Impartial Tribunal

Inasmuch as due process implies a tribunal both impartial and mentally competent to afford a hearing, it follows that the subjection of a defendant's liberty or property to the decision of a court, the judge of which has a direct, personal, substantial pecuniary interest in rendering a verdict against him, is violative of the Fourteenth Amendment.[957] Compensating an inferior judge for his services only when he convicts a defendant may have been a practice of long-standing, but such a system of remuneration, the Court declared, never became "so embedded by custom in the general practice either at common law or in this country that it can be regarded as due process of law. * * *"[958]

However, a conviction before a mayor's court does not become const.i.tutionally defective by reason of the fact that the fixed salary of the mayor is paid out of the fund to which the fines imposed by him contribute.[959]

Obviously, the attribute of impartiality is lacking whenever the judge and jury are dominated by a mob. "If the jury is intimidated and the trial judge yields, and so that there is an actual interference with the course of justice, there is, in that court, a departure from due process of law. * * *"[960] But "if * * * the whole proceeding is a mask--* * *

[if the] counsel, jury and judge * * * [are] swept to the fatal end by an irresistible wave of public pa.s.sion, and * * * [if] the State Courts failed to correct the wrong, neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent"

intervention by the Supreme Court to secure the const.i.tutional rights of the defendant.[961]

Insofar as a criminal trial proceeds with a jury, it is part of the American tradition to contemplate not only an impartial jury but one drawn from a cross-section of the community. This has been construed as requiring that prospective jurors be selected by court officials without systematic and intentional exclusion of any group, even though it is not necessary that every jury contain representatives of all the economic, social, religious, racial, political, and geographical groups of the community.[962]

Other Attributes of a Fair Trial

"Due process of law," the Supreme Court has observed, "requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. * * * What is fair in one set of circ.u.mstances may be an act of tyranny in others."[963] Conversely, "as applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it * * * [the Court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial."[964] And on another occasion the Court remarked that "the due process clause," as applied in criminal trials "requires that action by a State through any of its agencies must be consistent with the fundamental principles of liberty and justice which lie at the base of our civil and political inst.i.tutions, [and] which not infrequently are designated as 'the law of the land.'"[965]

Basic to the very idea of free government and among the immutable principles of justice which no State of the Union may disregard is the necessity of due "notice of the charge and an adequate opportunity to be heard in defense of it."[966] Consequently, when a State appellate court affirms a conviction on the ground that the information charged, and the evidence showed a violation of Sec. 1 of a penal law of the State, notwithstanding that the language of the information and the construction placed upon it at the trial clearly show that an offense under Sec. 2 of such law was charged, that the trial judge's instructions to the jury were based on Sec. 2, and that on the whole case it was clear that the trial and conviction in the lower court were for the violation of Sec. 2, not Sec. 1, such appellate court in effect is convicting the accused of a charge on which he was never tried, which is as much a violation of due process as a conviction upon a charge that was never made.[967] On the other hand, a prisoner who, after having been indicted on a charge of receiving stolen goods, abides by the prosecutor's suggestion and pleads guilty to the lesser offense of attempted second degree grand larceny, cannot later contend that a judgment of guilty of the latter offense was lacking in due process in that it amounted to a conviction of a crime for which he had never been indicted. In view of the "close kinship between the offense of larceny and that of receiving stolen property * * *, when related to the same stolen goods, the two crimes may fairly be said 'to be connected with the same transaction.'" It would be therefore, the Court concluded, "an exaltation of technical precision to an unwarranted degree to say that the indictment here did not inform the pet.i.tioner that he was charged with the substantial elements of the crime of larceny." Under these circ.u.mstances he must be deemed to have been given "reasonable notice and information of the specific charge against him and a fair hearing in open court."[968]

Excessive Bail, Cruel and Unusual Punishment, Sentence

The commitment to prison of a person convicted of crime, without giving him an opportunity pending an appeal, to furnish bail, does not violate the due process clause of the Fourteenth Amendment.[969] Likewise, a State, notwithstanding the limitations of that clause, retains a wide discretion in prescribing penalties for violation of its laws.

Accordingly, a sentence of fourteen years' imprisonment for the crime of perjury has not been viewed as excessive nor as effecting any unconst.i.tutional deprivation of the defendant's liberty;[970] nor has the imposition of successively heavier penalties upon "repeaters" been considered as partaking of a "cruel and unusual punishment."[971]

In an older decision, Ex parte Kemmler,[972] rendered in 1890, the Supreme Court rejected the suggestion that the substance of the Eighth Amendment had been incorporated into the due process clause of the Fourteenth Amendment, but did intimate that the latter clause would invalidate punishments which would involve "torture or a lingering death," such "as burning at the stake, crucifixion, breaking on the wheel, and the like." Holding that the infliction of the death penalty by electrocution was comparable to none of the latter, the Court refused to interfere with the judgment of the State legislature that such a method of executing the judgment of a court was humane. More recently, in Louisiana ex rel. Francis _v._ Resweber,[973] five members of the Court reached a similar conclusion as to the restraining effect of the due process clause of the Fourteenth Amendment when, a.s.suming, "but without so deciding" that violations of the Eighth Amendment as to cruel and unusual punishments would also be violative of that clause, they upheld a subsequent proceeding to execute a sentence of death by electrocution after an accidental failure of equipment had rendered an initial attempt unsuccessful.[974]

Double Jeopardy

In none of the pertinent cases considered prior to 1937 was the Supreme Court able to discern the existence of any factual situation amounting to double jeopardy, and accordingly it was never confronted with the necessity of determining whether the guarantee that no person be put twice in jeopardy of life or limb, expressed in the Fifth Amendment as a limitation against the Federal Government, had been absorbed in the due process clause of the Fourteenth Amendment. Thus, in Dreyer _v._ Illinois,[975] after declaring that a retrial after discharge of a hung jury did not subject a defendant to double jeopardy, the Court concluded as follows: If "* * * what was said in United States _v._ Perez [(9 Wheat. 579 (1824)) embracing a similar set of facts], * * * is adverse to the contention of the accused that he was put twice in jeopardy,"

then "we need not now express an opinion" as to whether the Fourteenth Amendment embraces the guarantee against double jeopardy. Similarly, in Murphy _v._ Ma.s.sachusetts[976] and Shoener _v._ Pennsylvania[977] the Court held that where the original conviction of the prisoner was, on appeal, construed by the State tribunal to be legally defective and therefore a nullity, a subsequent trial, conviction, and sentence of the accused deprived him of no const.i.tutional right, notwithstanding the fact that under the invalidated original conviction, the defendant had spent time in prison. In both instances the Court found it unnecessary to discuss "any question of a federal nature." With like dispatch, "the propriety of inflicting severer punishment upon old offenders" was sustained on the ground that they were not being "punished * * * [a]

second time for the earlier offense, but [that] the repet.i.tion of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted."[978]

In Palko _v._ Connecticut,[979] however, the Court appeared to have been presented with issues, the disposition of which would preclude further avoidance of a decision as to whether the double jeopardy provision of the Fifth Amendment had become operable as a restraint upon the States by reason of its incorporation into the due process clause of the Fourteenth Amendment. By the terms of the Connecticut statute at issue, the State was privileged to appeal any question of law arising out of a criminal prosecution, and did appeal a conviction of second degree murder and sentence to life imprisonment of one Palko, who had been charged with first degree murder. Obtaining a reversal, the State prosecuted Palko a second time and won a conviction of first degree murder and sentence to death. In response to the pet.i.tioner's contentions that a retrial under one indictment would subject him to double jeopardy in violation of the Fifth Amendment, if the prosecution were one on behalf of the United States and "that whatever is forbidden by the Fifth Amendment is forbidden by the Fourteenth also,"[980] eight Justices[981] replied that the State statute did not subject him to double jeopardy "so acute and shocking that our polity will not endure it"; nor did "it violate those 'fundamental principles of liberty and justice which lie at the base of all our civil and political'

inst.i.tutions.'" Consistently with past behavior, the Court thus refused to a.s.sert that the defendant had been subjected to treatment of the type prohibited by the double jeopardy clause of the Fifth Amendment; nor did it, on the other hand, repudiate the possibility of situations in which the Fourteenth Amendment would prevent the States from inflicting double jeopardy. Whether a State is prohibited by the latter amendment, after a trial free from error, from trying the accused over again or from wearing out the accused "by a mult.i.tude of cases with acc.u.mulated trials" were questions which the Court reserved for future disposition.

Subsequently, in Louisiana ex rel. Francis _v._ Resweber,[982] a majority of the Court a.s.sumed, "but without so deciding, that violation of the principles of the Fifth Amendment * * *, as to double jeopardy * * *, would be violative of the due process clause of the Fourteenth Amendment," and then concluded that the Palko case was decisive, there being "no difference from a const.i.tutional point of view between a new trial for error of law at the instance of the State that results in a death sentence instead of imprisonment for life and an execution" by electrocution that follows after "an accidental failure in equipment had rendered a previous attempt at execution ineffectual."

Rights of Prisoners

Access to the Courts.--A State prison regulation requiring that all legal papers sought to be filed in court by inmates must first be submitted to the inst.i.tution for approval and which was applied so as to obstruct efforts of a prisoner to pet.i.tion a federal court for a writ of _habeas corpus_ is void. Whether a pet.i.tion for such writ is properly drawn and what allegations it must contain are questions which a federal court alone determines.[983] Equally subject to condemnation is the practice of the warden of a State penitentiary who denied prisoners access to the courts unless they procured counsel to represent them.[984]

Appeals; Corrective Process.--Rehearing, new trials, and appeals are not considered to be essential to due process; and a State is forbidden by no provision of the Const.i.tution from vesting in one tribunal the final determination of legal questions. Consequently, a review by an appellate court of a final judgment in a criminal case, irrespective of the gravity of the offense, is wholly within the discretion of the State to allow or not to allow;[985] and, if granted, may be accorded by the State upon such terms as in its wisdom may be deemed proper.[986] "Wide discretion must be left to the States for the manner of adjudicating a claim that a conviction is unconst.i.tutional; * * * and so long as the rights under the * * * Const.i.tution may be pursued, it is for a State and not for * * * [the Supreme] Court [of the United States] to define the mode by which they may be vindicated. * * *

A State may decide whether to have direct appeals * * *, and if so under what circ.u.mstances * * * may provide that the protection of [const.i.tutional] rights * * * be sought through the writ of _habeas corpus_ or _coram n.o.bis_, [or] * * * may afford remedy by a simple motion brought either in the Court of original conviction or at the place of detention."[987]

However, if the tribunal of first instance fails to accord due process such as occurs when the Court in which a conviction is obtained is dominated by a mob, the State must supply corrective process. Moreover, when such process is made available, the corrective proceedings in the reviewing or appellate tribunal being no less a part of the process of law under which a defendant is held in custody, become subject to scrutiny on the occasion of any determination of an alleged unconst.i.tutional deprivation of life or liberty.[988] Such examination may lead unavoidably to substantial federal intervention in State judicial proceedings, and sensitive, no doubt, to the propriety thereof,[989] the Supreme Court, almost until Brown _v._ Mississippi,[990] decided in 1936, manifested an unusual reluctance to indulge in an adverse appraisal of the adequacy of a State's corrective process.

Prior to the latter date, the Court was content to a.s.sume as it did in Frank _v._ Mangum,[991] decided in 1915, that inasmuch as the proceedings in the State appellate court formally appeared to be sufficient to correct errors committed by a trial court alleged to have been intimidated by a mob, the conclusion by that appellate court that the trial court's sentence of execution should be affirmed was ample a.s.surance that life would not be forfeited without due process of law.

Apparently in observance of a principle of comity, whereunder a State appellate court's holding, though acknowledged as not binding, was deemed ent.i.tled to utmost respect, the Court persisted in its refusal to make an independent examination of allegations of a denial of due process. Eight years later, in Moore _v._ Dempsey,[992] a case involving similar allegations of mob domination, the Court, on this occasion speaking through Justice Holmes who had dissented in the preceding decision, ordered the federal district court, in which the defendants had pet.i.tioned for a writ of _habeas corpus_ and which had sustained the State of Arkansas's demurrer thereto, to make an independent investigation of the facts, notwithstanding that the Arkansas appellate court had ruled that, in view of the legally sufficient evidence on which the verdict was based and the competent counsel defending the accused, the allegations of mob domination did not suffice to void the trial.

Indubitably, Moore _v._ Dempsey marked the abandonment of the Supreme Court's deference, founded upon considerations of comity, to decisions of State appellate tribunals on issues of const.i.tutionality and the proclamation of its intention no longer to treat as virtually conclusive p.r.o.nouncements by the latter that proceedings in a trial court were fair. However, the enduring character of this precedent was depreciated by the Court's insistence that Moore _v._ Dempsey was decided consistently[993] with Frank _v._ Mangum; and it was not until the later holding in Brown _v._ Mississippi in 1936 and the numerous decisions rendered conformably thereto in the decade following that all uncertainty was dispelled as to the Supreme Court's willingness to engage in its own independent examination of the const.i.tutional adequacy of trial court proceedings.

DUE PROCESS: MISCELLANEOUS

Appeals

In every case a point is reached where litigation must cease; and what that point is can best be determined by the State legislature. The power to render a final judgment must be lodged somewhere; and there is no provision in the Federal Const.i.tution which forbids a State from granting to a tribunal, whether called a court or an administrative board, the final determination of a legal question. Neither in administrative nor judicial proceedings does the due process clause require that the partic.i.p.ants be ent.i.tled as of right to rehearings, new trials, or appeals.[994]

Federal Review of State Procedure

The Fourteenth Amendment does not impair the authority of the States to determine finally, according to their settled usages and established modes of procedure, issues which do not involve any right secured by the Const.i.tution, an act of Congress, or a treaty. As long as a local tribunal acts in consonance with the Const.i.tution, laws and procedure of its own State and as long as said Const.i.tution and laws are so interpreted as not to violate due process, it is only in exceptional circ.u.mstances that the Supreme Court would feel justified in intervening. Neither by intention nor by result has the Fourteenth Amendment transformed the Supreme Court into a court of general review to which questions of general justice or equitable consideration arising out of the taking of property may be brought for final determination.[995]

Insofar as mere irregularities or errors in matters of practice under State procedure do not affect const.i.tutional right,[996] they are matters solely for consideration by the appropriate State tribunal.[997]

The Const.i.tution does not guarantee that the decisions of State courts shall be free from error;[998] nor does the due process clause give the Supreme Court jurisdiction to review mere mistakes of law concerning nonfederal matters alleged to have been committed by a State court.[999]

Accordingly, when statutes authorizing the form of the indictment used are not obviously violative of fundamental const.i.tutional principles, any question as to the sufficiency of the indictment employed is for a State court to determine.[1000] Likewise, the failure of a State to establish a county appellate court as required by the State const.i.tution cannot support any appeal founded upon a denial of due process.[1001]

Moreover, if a State court errs in deciding what the common law is, without, however, denying any const.i.tutional right, the litigant adversely affected is not deprived of any liberty or property without due process of law.[1002] Also, whenever a wrong judgment is rendered, property is taken when it should not have been; yet whatever the ground may be, if the mistake is not so gross as to be impossible in a rational administration of justice, it is no more than the imperfection of man, not a denial of const.i.tutional rights.[1003] In conclusion, the decision of a State court upon a question of local law, however wrong, is not an infraction of the Fourteenth Amendment merely because it is wrong. It is not for the Supreme Court to determine whether there has been an erroneous construction of a State statute or the common law; nor does the Const.i.tution impose any impediment to the correction or modification by a State court of erroneous or older constructions of local law embraced in previous decisions.[1004]

Equal Protection of the Laws