Leo M. Frank v.
C.Wheeler Mangum, Sheriff
Decided April 19, 1915. Mr.
Justice Hughes and I are of opinion that the judgment should be
reversed. The only question before us is whether the petition shows on
its face that the writ of habeas corpus should be denied, or whether
the district court should have proceeded to try the facts. The
allegations that appear to us material are these: The trial began on
July 28, 1913, at Atlanta, and was carried on in a court packed with
spectators and surrounded by a crowd outside, all strongly hostile to
the petitioner. On Saturday, August 23, this hostility was sufficient
to lead the judge to confer in the presence of the jury with the chief
of police of Atlanta and the colonel of the Fifth Georgia Regiment,
stationed in that city, both of whom were known to the jury. On the
same day, the evidence seemingly having been closed, the public press,
apprehending danger,
united in a request to the court that the proceedings should not
continue on that evening. Thereupon the court adjourned until Monday
morning. On that morning, when the solicitor general entered the court,
he was greeted with applause, stamping of feet and clapping of hands,
and the judge, before beginning his charge, had a private conversation
with the petitioner's counsel in which he expressed the opinion that
there would be ‘probable danger of violence’ if there should be an
acquittal or a disagreement, and that it would be safer for not only
the petitioner but his counsel to be absent from court when the verdict
was brought in. At the judge's request they agreed that the petitioner
and they should be absent, and they kept their word. When the verdict
was rendered, and before more than one of the jurymen had been polled,
there was such a roar of applause that the polling could not go on
until order was restored. The noise outside was such that it was
difficult for the judge to hear the answers of the jurors, although he
was only 10 feet from them. With these specifications of fact, the
petitioner alleges that the trial was dominated by a hostile mob and
was nothing but an empty form.
We
lay on one side the question whether the petitioner could or did waive
his right to be present at the polling of the jury. That question was
apparent in the form of the trial and was raised by the application for
a writ of error; and although, after the application
to the full court, we thought that the writ ought to be granted, we
never have been impressed by the argument that the presence of the
prisoner was required by the Constitution of the United States. But
habeas corpus cuts through all forms and goes to the very tissue of the
structure. It comes in from the outside, not in subordination to the
proceedings, and although every form may have been preserved, opens the
inquiry whether they have been more than an empty shell.
The
argument for the appellee in substance is that the trial was in a court
of competent jurisdiction, that it retains jurisdiction although, in
fact, it may be dominated by a mob, and that the rulings of the state
court as to the fact of such domination cannot be reviewed. But the
argument seems to us inconclusive. Whatever disagreement there may be
as to the scope of the phrase ‘due process of law,’ there can be no
doubt that it embraces the fundamental conception of a fair trial, with
opportunity to be heard. Mob law does not become due process of law by
securing the assent of a terrorized jury. We are not speaking of mere
disorder, or mere irregularities in procedure, but of a case where the
processes of justice are actually subverted. In such a case, the
Federal court has jurisdiction to issue the writ. The fact that the
state court still has its general jurisdiction and is otherwise a
competent court does not make it impossible to find that a jury has
been subjected to intimidation in a particular case. The loss of
jurisdiction is not general, but particular, and proceeds from the
control of a hostile influence.
When such a case is presented, it
cannot be said, in our view, that the state court decision makes the
matter res judicata. The state acts when, by its agency, it
finds the
prisoner guilty and condemns him. We have held in a civil case that it
is no defense to the assertion of the Federal right in the Federal
court that the state has corrective procedure of its own-that still
less does such procedure draw to itself the final determination of the
Federal question. Simon v. Southern R. Co. 236 U. S. 115, 122, 123, 59
L. ed. 492, 35 Sup. Ct. Rep. 255.
We see no reason for a less liberal rule in a matter of life and death.
When the decision of the question of fact is so interwoven with the
decision of the question of constitutional right that the one
necessarily involves the other, the Federal court must examine the
facts. Kansas City Southern R. Co. v. C. H. Albers Commission Co. 223
U. S. 573, 591, 56 L. ed. 556, 565, 32 Sup. Ct. Rep. 316; Norfolk
& W. R. Co. v. Conley March 8, 1915 [236 U. S. 605, 59 L. ed. 745,
35 Sup. Ct. Rep. 437].
Otherwise, the right will be a barren one. It is significant that the
argument for the state does not go so far as to say that in no case
would it be permissible, on application for habeas corpus, to override
the findings of fact by the state courts. It would indeed be a most
serious thing if this court were so to hold, for we could not but
regard it as a removal of what is perhaps the most important guaranty
of the Federal Constitution. If, however, the argument stops short of
this, the whole structure built upon the state procedure and decisions
falls to the ground.
To put an
extreme case and show what we mean, if the trial and the later hearing
before the supreme court had taken place in the presence of an armed
force known to be ready to shoot if the result was not the one desired,
we do not suppose that this court would allow itself to be silenced by
the suggestion that the record showed no flaw. To go one step further,
suppose that the trial had taken place under such intimidation, and
that the supreme court of the state, on writ of error, had discovered
no error in the record, we still imagine that this court would find a
sufficient one outside of the record, and that it would not be
disturbed in its conclusion by anything that the supreme court of the
state might have said. We therefore lay the suggestion that the supreme
court of the state has disposed of the present question by its judgment
on one side, along with the question of the appellant's right to be
present. If the petition discloses facts that amount to a loss of
jurisdiction in the trial court, jurisdiction could not be restored by
any decision above. And notwithstanding the principle of comity and
convenience (for, in our opinion, it is nothing more, United States v.
Sing Tuck, 194 U. S. 161, 168, 48 L. ed. 917, 920, 24 Sup. Ct. Rep.
621)
that calls for a resort to the local appellate tribunal before coming
to the courts of the United States for a writ of habeas corpus, when,
as here, that resort has been had in vain, the power to secure
fundamental rights that had existed at every stage becomes a
duty, and must be put forth.
The
single question in our minds is whether a petition alleging that the
trial took place in the midst of a mob savagely and manifestly intent
on a single result is shown on its face unwarranted, by the
specifications, which may be presumed to set forth the strongest
indications of the fact at the petitioner's command. This is not a
matter for polite presumptions; we must look facts in the face. Any
judge who has sat with juries knows that, in spite of forms,
they are extremely likely to be impregnated by the environing
atmosphere. And when we find the judgment of the expert on the spot, of
the judge whose business it was to preserve not only form, but
substance-to have been that if one juryman yielded to the reasonable
doubt that he himself later expressed in court as the result of most
anxious deliberation, neither prisoner nor counsel would be safe from
the rage of the crowd, we think the presumption overwhelming that the
jury responded to the passions of the mob. Of course we are speaking
only of the case made by the petition, and whether it ought to be
heard. Upon allegations of this gravity in our opinion it ought to be
heard, whatever the decision of the state court may have been, and it
did not need to set forth contradictory evidence, or matter of
rebuttal, or to explain why the motions for a new trial and to set
aside the verdict were overruled by the state court. There is no reason
to fear an impairment of the authority of the state to punish the
guilty. We do not think it impracticable in any part of this country to
have trials free from outside control. But to maintain this immunity it
may be necessary that the supremacy of the law and of the Federal
Constitution should be vindicated in a case like this. It may be that
on a hearing a different complexion would be given to the judge's
alleged request and expression of fear. But supposing the alleged facts
to be true, we are of
opinion that if they were before the supreme court, it sanctioned a
situation upon which the courts of the United States should act; and
if, for any reason, they were not before the supreme court, it is our
duty to act upon them now, and to declare lynch law as little valid
when practised by a regularly drawn jury as when administered by one
elected by a mob intent on death.
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