The Constitution of the United States of America: Analysis and Interpretation Part 207

[857] Ibid. 64.

[858] 335 U.S. 437, 440-441 (1948).

[859] Rice _v._ Olson, 324 U.S. 786, 788-789 (1945).

[860] Wade _v._ Mayo, 334 U.S. 672, 683-684 (1948); De Meerleer _v._ Michigan, 329 U.S. 663, 664-665 (1947); Betts _v._ Brady, 316 U.S. 455, 472 (1942); Powell _v._ Alabama, 287 U.S. 45, 51-52, 71 (1932).

[861] Townsend _v._ Burke, 334 U.S. 736, 739-741 (1948); De Meerleer _v._ Michigan, 329 U.S. 663, 665 (1947); Smith _v._ O'Grady, 312 U.S.

329, 332-333 (1941).

[862] Rice _v._ Olson, 324 U.S. 786, 789-791 (1945).

[863] Gibbs _v._ Burke, 337 U.S. 773, 780-781 (1949). Devotion to the Fair Trial doctrine has also created another problem for the Court, that of a burdensome increase in the volume of its business. Inasmuch as accurate appraisal of the effect of absence of counsel on the validity of a State criminal proceeding has been rendered more difficult by the vagueness of that doctrine as well as by the Court's acknowledged variation in the application thereof, innumerable State prisoners have been tempted to seek judicial reconsideration of their convictions. To reduce the number of such cases which it is obliged to examine on their merits, the Court had been compelled to have recourse to certain protective rules. Thus, when a State prisoner seeks to attack the validity of his conviction by way of _habeas corpus_ proceedings begun in a lower federal court, application for that writ will be entertained only after all State remedies available, including all appellate remedies in State courts and in the Supreme Court by appeal or writ of certiorari, have been exhausted. This rule, however, will not be applied when no adequate State remedy is in fact available. Also when a prisoner's pet.i.tion for release on the grounds of the unconst.i.tutionally of his conviction has been rejected by a State court, a pet.i.tion for certiorari addressed to the United States Supreme Court will be denied whenever it appears that the prisoner had not invoked the appropriate State remedy. Or stated otherwise, where the State court's conviction or refusal to grant writs of _habeas corpus_ to those under State sentences may fairly be attributed to a rule of local procedure and is not exclusively founded on the denial of a federal claim, such as, right to counsel, the Supreme Court will refuse to intervene. As in the case of other legal rules, Justices of the Supreme Court have often found themselves in disagreement as to the manner of applying these aforementioned principles; and vigorous dissents arising out of this very issue were recorded in the cases of Marino _v._ Ragen, 332 U.S. 561 (1947); Wade _v._ Mayo, 334 U.S. 672 (1948); and Uveges _v._ Pennsylvania, 335 U.S. 437 (1948). Justice Frankfurter has frequently, albeit unsuccessfully contended, that "intervention by * * * [the Supreme Court] in the criminal process of States * * * should not be indulged in unless no reasonable doubt is left that a State denies, or has refused to exercise, means of correcting a claimed infraction of the United States Const.i.tution. * * * After all, [it should be borne in mind that] this is the Nation's ultimate judicial tribunal, not a super-legal-aid bureau."

[864] 176 U.S. 581 (1900).

[865] 110 U.S. 516 (1884).

[866] Jordan _v._ Ma.s.sachusetts, 225 U.S. 167, 176. (1912).

[867] Maxwell _v._ Dow, 176 U.S. 581 (1900).

[868] Hallinger _v._ Davis, 146 U.S. 314 (1892).

[869] Ibid. 318-320.

[870] Missouri _v._ Lewis, 101 U.S. 22 (1880); Maxwell _v._ Dow, 176 U.S. 581, 603 (1900); Jordan _v._ Ma.s.sachusetts, 225 U.S. 167, 176 (1912); Snyder _v._ Ma.s.sachusetts, 291 U.S. 97, 105 (1934).

[871] Brown _v._ New Jersey, 175 U.S. 172, 175, 176 (1899).

[872] Ashe _v._ United States ex rel. Valotta, 270 U.S. 424, 425 (1926).

[873] Fay _v._ New York, 332 U.S. 261, 288 (1947); Moore _v._ New York, 333 U.S. 585 (1948).--Both cases reject the proposition that the commandment of the Sixth Amendment, which requires a jury trial in criminal cases in the federal courts is picked up by the due process clause of the Fourteenth Amendment so as to become a limitation upon the States.

[874] Fay _v._ New York, 332 U.S. 261, 283-284 (1947).--Since Congress, by way of enforcing the guarantees contained in the Fourteenth Amendment, has, by statute [18 Stat. 336, 377 (1875); 8 U.S.C. 44], made it a crime to exclude a citizen from jury service only on account of race, color, or previous condition of servitude, the Supreme Court "never has interfered with the composition of State court juries except in cases where this guidance of Congress was applicable." Without suggesting that "no case of discrimination in jury drawing except those involving race or color can carry such unjust consequences as to amount to a denial of * * * due process," the Court has nevertheless required that a defendant, alleging grounds not covered by that statute, "must comply with the exacting requirements of proving clearly" that the procedure in his case was destructive of due process.

These statements reflect the views of only five Justices. Speaking for the minority (Justices Black, Douglas, and Rutledge), Justice Murphy declared that "the vice lies in the very concept of 'blue ribbon'

panels--the systematic and intentional exclusion of all but the 'best'

or the most learned or intelligent of the general jurors. Such panels are completely at war with the democratic theory of our jury system, a theory formulated out of the experience of generations. One is const.i.tutionally ent.i.tled to be judged by a fair sampling of all one's neighbors who are qualified, not merely those with superior intelligence or learning. Jury panels are supposed to be representative of all qualified cla.s.ses. Within those cla.s.ses, of course, are persons with varying degrees of intelligence, wealth, education, ability and experience. But it is from that welter of qualified individuals, who meet specified minimum standards, that juries are to be chosen. Any method that permits only the 'best' of these to be selected opens the way to grave abuses. The jury is then in danger of losing its democratic flavor and becoming the instrument of the select few." A "blue ribbon jury" is neither "a jury of the * * * [defendant's] peers," nor "a jury chosen from a fair cross-section of the community, * * *"--Moore _v._ New York, 333 U.S. 565, 569-570 (1948).

[875] Rawlins _v._ Georgia, 201 U.S. 638 (1906). The Supreme Court "has never entertained a defendant's objections to exclusions from the jury except when he was a member of the excluded cla.s.s."--Fay _v._ New York, 332 U.S. 261, 287 (1947).

[876] 211 U.S. 78, 93, 106-107, 113; citing Missouri _v._ Lewis, 101 U.S. 22 (1880); and Holden _v._ Hardy, 169 U.S. 366, 387, 389 (1898).

[877] In several decisions the Court, a.s.suming, but without deciding, that a State law requiring a witness to answer incriminating questions would violate the due process clause, has then proceeded to conclude, nevertheless, that a State ant.i.trust law which grants immunity from local prosecution to a witness compelled to testify thereunder is valid even though testimony thus extracted may later serve as the basis of a federal prosecution for violation of federal ant.i.trust laws.--Jack _v._ Kansas, 199 U.S. 372, 380 (1905).

[878] Snyder _v._ Ma.s.sachusetts, 291 U.S. 97, 105 (1934).

[879] Palko _v._ Connecticut, 302 U.S. 319, 325-326 (1937).

[880] 297 U.S. 278, 285-286 (1936). For the significance of this decision as a precedent in favor of a more careful scrutiny by the Supreme Court of State trials in which a denial of const.i.tutional rights allegedly occurred, see p. 1138.

[881] Ibid, 285-286.

[882] 309 U.S. 227 (1940).

[883] Ibid. 228-229, 237-241.

[884] 310 U.S. 530 (1940).

[885] 314 U.S. 219, 237 (1941). This dictum represents the closest approach which the Court thus far has made toward inclusion of the privilege against self-incrimination within the due process clause of the Fourteenth Amendment. In all but a few of the forced confession cases, however, the results achieved by application of the Fair Trial doctrine differ scarcely at all from those attainable by incorporation of the privilege within that clause.

[886] 316 U.S. 547 (1942).

[887] 322 U.S. 143 (1944).

[888] _See_ Baldwin _v._ Missouri, 281 U.S. 586, 595 (1930).

[889] 322 U.S. 143, 160-162 (1944).--All members of the Court were in accord, however, in condemning, as no less a denial of due process, the admission at the second trial of Ashcraft [Ashcraft _v._ Tennessee, 327 U.S. 274 (1946)] of evidence uncovered in consequence of the written confession, acceptance of which at the first trial had led to the reversal of his prior conviction.

[890] 322 U.S. 596 (1944).

[891] Ibid. 602.--Of three Justices who dissented, Justice Murphy, with whom Justice Black was a.s.sociated, declared that it was "inconceivable *

* * that the second confession was free from the coercive atmosphere that admittedly impregnated the first one"; and added that previous decisions of this Court "in effect have held that the Fourteenth Amendment makes the prohibition [of the Fifth pertaining to self-incrimination] applicable to the States."--Ibid. 605-606.

[892] 324 U.S. 401 (1945).

[893] Chief Justice Stone, together with Justices Roberts, Reed, and Jackson, all of whom dissented, would have sustained the conviction.

[894] Justices Rutledge and Murphy dissented in part, a.s.signing among their reasons therefor their belief that the "subsequent confessions, *

* *, were vitiated with all the coercion which destroys admissibility of the first one." According to Justice Rutledge, "a stricter standard is necessary where the confession tendered follows a prior coerced one than in the case of a single confession * * *. Once a coerced confession has been obtained all later ones should be excluded from evidence, wherever there is evidence that the coerced one has been used to secure the later ones."--324 U.S. 401, 420, 428-429 (1945).

[895] In Lyons _v._ Oklahoma, 322 U.S. 596, 601 (1944), the Court stated that "when the State-approved instruction (to the jury) fairly raises the question of whether or not the challenged confession was voluntary, * * *, the requirements of due process, * * *, are satisfied and this Court will not require a modification of local practice to meet views that it might have as to * * * how specific an instruction * * * must be." In Malinski _v._ New York, the four dissenting Justices declared that "the trial court, * * *, instructed the jury that the evidence with respect to the first confession was adduced only to show that the second was coerced. And * * * that it could consider the second confession, only if it found it voluntary, and that it could convict in that case.

In view of these instructions, we cannot say that the first confession was submitted to the jury, or that in the absence of any exception or request to charge more particularly, there was any error, of which the *

* * [accused] can complain."--324 U.S. 401, 437 (1945).

[896] The coercive nature of the first oral confession was apparently acknowledged by the prosecuting attorney in his summation to the jury; for he declared that the accused "was not hard to break," and that the purpose of holding him _incommunicado_ and unclothed in a hotel room from 8 a.m. to 6 p.m., when the confession was made, was to "let him think that he is going to get a sh.e.l.lacking (beating)."--324 U.S. 401, 407 (1945).

[897] 332 U.S. 46, 56 (1947).

[898] 211 U.S. 78 (1908).

[899] 302 U.S. 319 (1937).

[900] Adamson _v._ California, 332 U.S. 46, 50, 53, 56, 58 (1947).

[901] Adamson _v._ California, 332 U.S. 46, 59-60, 63-64, 66 (1947).

_See also_ Malinski _v._ New York, 324 U.S. 401, 414, 415, 417 (1945).