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Due Process of Law in the Frank Case
The Harvard Law Review
(June 1915)
pp. 793-795.

Leo Frank, after three unsuccessful attempts to have a conviction of murder set aside by the Supreme Court of Georgia, and a fruitless application to the Supreme Court of the United States for a writ of error, petitioned a United States District Court for a writ of habeas corpus. The denial of this petition without a hearing on the facts was recently upheld by a majority decision of the Supreme Court.  Frank v. Mangurn, 35 Sup. Ct. 582.  While the dramatic interest of this cause celebre has been uppermost in the popular mind, the intricate legal issues of the latest appeal make it noteworthy for the profession. The appellant sought to raise the constitutional question necessary for federal habeas corpus by contending that he had been deprived of due process of law, first by the reception of the verdict in his absence, and secondly by mob domination of the jury.


 The court was unanimous that the first position could not be maintained. Due process of law does not forbid a state statute depriving criminals of indictment and trial by grand and petit juries, and the right to appeal.  As presence of the accused at all stages of the trial is not an essential of due process, it is submitted that a statute compelling the accused to waive his absence at the reception of the verdict unless timely advantage were taken of it should be upheld as a reasonable measure to prevent dilatory tactics without impairing substantial justice.  In the principal case there was no such statute, but the state court held that under the local practice appellant's failure to rely upon this known ground on the first motion for a new trial amounted to such a waiver.  If such a rule had in fact been previously established by the courts, a decision in conformity therewith would be no more objectionable than a statute. The appellant contended, however, that the court's decision was an erroneous departure from the established state law  and hence a deprivation of due process. But even if the state court's decision, which seems well supported, overruled previous authorities, the Fourteenth Amendment would not give the federal courts jurisdiction to disregard this erroneous ruling unless a statute embodying the new rule laid down would be itself unconstitutional. The appellant's further contention that an alteration in the course of decisions would be an ex post facto law is clearly untenable, for this clause applies only to legislation.


But the second point gave the court more trouble. The majority apparently conceded that conviction by a jury dominated by a mob, even in a court of competent jurisdiction by the law of its creation, would not be due process. If such a conviction is upheld by a state court of appeal it is more than an erroneous departure from the requirements of the state law. A statute to legalize lynch law would be unhesitatingly struck down. A single decision upholding it is equally obnoxious to the Fourteenth Amendment, which is not, like the ex post facto clause, restricted in its application to legislation alone.  Although this might at first seem clearer in the case of habitual departure from a valid statute, the Amendment was designed to protect the individual, and the invidious discrimination of the state agency against a single victim falls within the additional prohibition against denying to any person the equal protection of the laws. This view may lead to a potential federal question in every state case. But many determinants of the line which divides mere errors from constitutional infringements are furnished by the cases settling what statutory modifications of procedure are invalid. And the practical difficulty cannot prevent intervention by the federal courts where due process is denied.


Manifestly, where such a question is raised, the Supreme Court must have the right on writ of error to go behind the state court's finding of facts and independently examine the record. Otherwise a state court could deprive the Supreme Court of jurisdiction by an erroneous finding that alleged facts did not sufficiently establish mob domination of a jury. At a hearing to determine whether habeas corpus shall issue, the federal court in addition is authorized by statute to investigate all facts, even extraneous to the record, bearing upon the petitioner's alleged un constitutional detention. As this was conceded by the majority in the principal case, the discussion narrowed down to the question whether the petition showed upon its face that the appellant was not entitled to a hearing. The federal courts are properly cautious in exercising the delicate jurisdiction by which a state is deprived of its custody over a convicted criminal. No heaxing will be granted where the state courts have not finally disposed of the case, and even then the petitioner may be left to his writ of error to the United States Supreme Court. In the principal case, the petitioner relied upon a bald reassertion of the same facts which, as the petition showed, had been twice found untrue by the Supreme Court of Georgia. While, as has been seen, this conclusion is by no means binding, the majority may well be justified in refusing a hearing without the allegation of some additional facts or reasons why the state court's findings should be treated with such scant respect. The court may reasonably assume that the petitioner's case has been put in its strongest aspect on the petition. Any other rule of pleading would make the writ of habeas corpus peculiarly efficient as a weapon to prolong trials and postpone punishments.

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