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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