JUDGING CRIMES

In its May 23, 1955 edition, Time Magazine ran this story:

Just about dinnertime, on May 11, 1941, a garment worker named Santo Caminito was picked up by New York police for the holdup-murder of Coney Island Merchant Murray Hameroff. Although Caminito had never been arrested before, the cops were sure they had their man. They set out to get a confession—and they did.

Santo Caminito was thrown into a bedless cell. His family and a lawyer retained by relatives were denied permission to see him. Relays of detectives questioned him for 27 hours, giving him almost no rest. To show Caminito how hopeless his cause was, the police worked a trick: a male detective and two women from the pickpocket squad, posing as witnesses to the crime, confronted Caminito and pretended to identify him as the driver of the getaway car. Caminito finally signed a confession (he later signed a second one) and was duly sentenced to life in prison after the confessions were used as evidence in court. Last week, after 13 years behind bars during which he appealed vainly in New York state courts, Santo Caminito won the right to a new trial. Said a U.S. Court of Appeals decision written by Judge Jerome Frank:

"The confessions obtained by these loathsome means were no more evidence than if they had been forged."

Reminder from Korea. Excoriating the police methods as "satanic," Judge Frank recalled some facts that Americans learned long ago, and of which they have been reminded by Communist brainwashings in Korea: "It has no significance that in this case we must assume there was no physical brutality. For psychological torture may be far more cruel, far more symptomatic of sadism. Many a man who can endure beatings will yield to fatigue.

"To keep a man awake beyond the point of exhaustion, while constantly pummeling him with questions, is to degrade him, to strip him of human dignity, to deprive him of the will to resist, to make him a pitiable creature mastered by a single desire—at all costs to be free of torment. Any member of this or any other court, to escape such anguish, would admit to almost any crime.

"Indeed, the infliction of such psychological punishment is more reprehensible than a physical attack: it leaves no discernible marks on the victim. Because it is thus concealed, it has, under the brutal-itarian regimes, become the favorite weapon of the secret police, bent on procuring confessions as a means of convicting the innocent."

Basic Difference. "The important difference is that in Russia the coercion of confessions is ... legal and avowed, while with us it is always illegal and secret.

That difference is basic. It means that we have a principle of justice on which we can rely to bring such coercion into disrepute and disuse . . .

"Recently, many outstanding Americans have been much concerned—and justifiably—with inroads on the constitutional privileges of persons questioned about subversive activities. But concern with such problems, usually those of fairly prominent persons, should not blind one to the less dramatic, less-publicized plight of humble, inconspicuous men (like Caminito) when unconstitutionally victimized by officialdom."

Concluded the decision: "The test of the moral quality of a civilization is its treatment of the weak and powerless."

If that's the test of the moral quality of a civilization, what should we conclude about the way the American civilization treated Murray Hameroff?  After all, it's hard to top a dead person in the weak and powerless competition. 

By the time Judge Frank got hold of Caminito's case, a jury of 12 people had found his confession voluntary, the seven judges of the New York Court of Appeals had found any error to be insubstantial, and a federal habeas corpus judge, while expressing  qualms, found no constitutional deprivation.  (See post 337.)  If you're counting, that's 20 people in a row who didn't notice the Satanism.  

Caminito testified that the phony identification had nothing to do with his decision to confess.  But you would only find that out if you read the district court opinion.  (See post 337.) 

Frank says first that Caminito was left alone for 7 hours in his cell, then that he confessed 27 hours after being arrested, and then that "[t]he police interrogated him almost continuously for 27 hours" -- which is where Time got the 27 hour figure.   (U.S. ex rel. Caminito, 222 F.2d 698)

Twenty, 27, what's the difference?  I certainly don't mean to make light of Caminito's experience.   Finding yourself suspected of murder inside a Brooklyn stationhouse in 1941 doubtless felt like waking up in hell.   So why did Frank find it necessary to tack on 7 hours?  And why did he use terms like "satanic", "totalitarian regimes", "psychological torture", "sadism", "brutalitarian", "secret police", "medieval," "evil", "criminal", "barbarism"?

I think it was because, as the district judge observed, the facts were known to the jurors "and they decided the issue in favor of the People after a complete, informative, detailed and conscientious charge." 

As the Time piece unintentionally reveals, Frank's hyperbole was effective at directing attention away from the real gist of his opinion, which was that the ordinary men and women who served on the jury just weren't up to the task of deciding whether a confession was voluntary or not. 

Luckily, Judge Jerome Frank possessed the moral sensitivities the occasion demanded.  You want dudgeon?  You got dudgeon!   (Should we assume he sent a copy of his opinion with a press release and 8x12 glossy to Time?  Or were its reporters avid readers of slip opinions in those days?) 

 Jerome Frank was an interesting fellow, perhaps the purest example of the judge who concludes, on the basis of his own lack of self-knowledge, that he's a genius.  (See post 317.)   He was someone who worried about the big issues without thinking about them.  That sounds harsh, but I challenge anyone to try to read his most famous book, Law and the Modern Mind.  It's like wading through dryer lint.  Here's a sample:

The essence of the basic legal myth or illusion is that law can be entirely predictable.  Back of this illusion is the childish desire to have a fixed father-controlled universe, free of chance and error due to human fallibility. ...

Here apparently is the reason why legal thinking is, in part, scholastic, why legal legal thinkers are still much given to Platonizing: Children are incipient, unsophisticated Platonists.  Not only lawyers, but all men in their approach to the law are still somewhat childish emotionally and therefore are prone to Platonizing - not, of course, in the crude manner of children ...

"Scholasticism" has survived in lawyerdom while it is on the wane among natural scientists because the emotional attitudes of childhood have a more tenacious hold on men when their thinking is directed towards the law than when they are thinking about the natural sciences, and not because lawyers have intellects inferior to the scientists.  If and to the extent that you are controlled by a childish emotional need for strict authority, to that your extent your thought-processes will be restricted and will retain something of the childish pattern.  The natural sciences, as we shall see, are not so easily as law converted into a father-substitute.  Hence in the natural sciences, authoritarianism is less potent and the aims of the child have been more rapidly abandoned.

It's possible Frank believed this stuff actually added up to something, but I'm inclined to think it never really got to that point with him.  His books, like his Caminito opinion, were jam-packed with quotations and references, as if he jotted down passages he liked into a commonplace book, and then when he felt the urge to write about a certain topic had his secretary pull out the quotes that seemed relevant.  My impression is that his  secretary pasted one quotation to a page in random order and he inserted short commentaries between them as necessary to fill up the white space. 

As if his spirit were anxious to provide me with an example of his technique, I opened his book at random and read: "There is a contrary minority view, which any dispassionate observer must accept as obviously the correct view" - followed by a long quotation from Pollock - followed by a footnote: "Pollock is clearly in error".  

The bullying, the self-contradiction, the phony erudition - Jerome Frank would have made a terrific headmaster in a farce about a British boarding school.

So Mr. Caminito's murder conviction was vacated in 1955 in a spasm of repugnance against the satanic practices of Brooklyn cops in 1941.  The U.S. Supreme Court denied New York's petition for certiorari.

And now the stage is set for the real intellectual dishonesty to begin.