JUDGING CRIMES

Caminito, Bonino and Noia all confessed to murdering Murray Hameroff.  They were tried together, and the jury found their confessions voluntary.  Noia chose not to appeal.  But after 14 years, Caminito got a federal judge to vacate his conviction, based on the judge's finding that the police acted "satanically" by questioning him "almost continuously" for 27 hours, leaving him alone in an unheated cell for 7 of them.  (See post 338.)

That last bit sounds like I'm being sarcastic, doesn't it?  Check it out: 222 F.2d at 699-701.  Caminito testified that he and Noia got together in the cells (this must have been during the "almost" rather than the "continuously" part) and agreed on a story to tell the cops.  (At 701, if you're following along.) 

After all, isn't that exactly what you would do if you were desperate for the torture to stop - sit down with your friend, talk it over, and make sure your confessions meshed in the details?  It's part of the ludicrousness of Jerome Frank that he flung around psychoanalytic lingo without first obtaining any concept of human psychology.

(His embrace of doctrinaire Freudianism, mid-50s incarnation, has this in common with his denunciation of the Brooklyn cops: both rest on the idea that other people are helpless puppets.)

Anyway, once Caminito got his conviction overturned, his buddy Bonino asked, "What about me?"  Four judges of the N.Y. Court of Appeals heaved a big sigh and said: "Since the United States Court of Appeals, Second Circuit, has held that the writ of habeas corpus must issue to his codefendant Caminito, because his confessions were inadmissible, the defendant Bonino should, in the interest of justice, receive a new trial with his (Bonino's) confessions excluded."  135 N.E.2d at 52.

Three judges, however, weren't so sure: "As to Caminito, the United States Court of Appeals drew factual conclusions widely different from those made by the jury and accepted by us as having reasonable basis in the record.  In reversing now as to Bonino, we are assuming, and acting on the assumption, that the Federal courts would similarly revise our interpretation of the record.  In our view, we have no right or duty to do so."  135 N.E.2d at 754 (Desmond, J., dissenting).

Okay, two down.  That left only Charles Noia, who confessed, was convicted, and never appealed.  A New York trial judge held: "That fraud and misrepresentation were employed to secure the alleged confession which is the only substantial evidence in this case has been authoritatively established in the United States Court's findings, in ruling on the Caminito writ of habeas corpus."  158 N.Y.S.2d at 686.

Of course, Jerome Frank said that Caminito's confession was involuntary, being the product of "brutalitarian" tactics (which isn't exactly the same as fraud - would you buy a used car from this man?).  He didn't talk about Noia's.  But the judge was right about the "authoritatively established" part.  It didn't matter whether the federal court was right, or even rational, because it had the authority, and that's the important thing in the legal system.

The state trial court judge thought it was intolerable to keep Noia in prison on the basis of "a manifestly unlawful conviction".  However, the Appellate Division pointed out that the trial judge's decision was, itself, manifestly unlawful: "No appeal was taken.  This being so, the court was without authority to grant the application."  163 N.Y.S.2d at 797.  The Court of Appeals affirmed, agreeing that as Noia had waived his right to appellate review, his only recourse was to ask the Governor for clemency.  148 N.E.2d at 142.

Naturally, Noia turned next to the federal courts.  The district judge dismissed his petition for habeas corpus (183 F.Supp. 222) but Jerome Frank's old court, the Second Circuit, reversed on a 2-1 vote.

When the majority ordered the writ of habeas corpus to be issued, ordering Noia's release from prison, it was acting on the authority of a statute that said:  "An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State ..." 

How to interpret that?  It depends on what the meaning of "shall not" is.

The dissenting judge - Leonard P. Moore, who succeeded to Frank's seat upon the latter's death - thought it meant something along the lines of "shall not", but he was voted down.  He characterized the majority opinion this way:

The doctrine now enunciated by the majority is that whenever a group of appellate judges wish to depart from previously settled principles, they may find that 'extraordinary circumstances' exist and that such a finding entitled them to ignore on an ad hoc basis all otherwise applicable principles.  (300 F.2d at 366.)

That's not unstrong stuff. 

Anyway, in January, 1963, 22 years after Murray Hameroff (who?) breathed his last, Charles Noia's case was argued for two days in the United States Supreme Court.  Really.  That's what the opinion says: "Argued Jan. 7 and 8, 1963."

It was a simple case, raising just a single issue: if a state court affirms a state conviction on strictly state law grounds, can federal judges ignore the state court's ruling a re-decide the case on federal law grounds?   There was a catch, though: the question was to be answered by federal judges.

The result of all that palaver was, I think, one of the Supreme Court's finest - in the sense of "most characteristic" - moments.   Justice Brennan wrote the majority opinion explaining that when Congress said federal courts "shall not" issue the writ when the petitioner had not pursued his state remedies, it meant "may." 

Brennan reasoned that, because the requirement that a state prisoner first present his federal claims to state court was originally developed in the federal courts as a matter of professional courtesy, therefore when Congress enacted a statute that flatly prohibited federal courts to issue the writ in any other circumstance, it didn't prohibit federal courts from issuing the writ in other circumstances.

It sounds like I'm being sarcastic again, doesn't it?  372 U.S. at 419-20.  And reiterated at 372 U.S. at 434-35.

To support his conclusion that night was day, Brennan relied on the Reviser's Notes to 28 U.S.C. § 2254, which in turn relied on Ex parte Hawk, 321 U.S. 114 (1944).   A few pages later, however, when considering a different point (whether a prisoner should be required to seek certiorari review of his state conviction), Brennan wrote:

It is also true that Ex parte Hawk, 321 U.S. 114, a decision cited in the Reviser's Notes to 2254, intimated in dictum that exhaustion might comprehend seeking certiorari here.  321 U.S., at 116-117.  But that passing reference cannot be exalted into an attribution to Congress of a design patently belied by the unequivocal statutory language.  

Unfortunately, Brennan neglected to explain to the rest of us how to distinguish between those situations in which such exaltation was appropriate and those in which it was not.

Brennan, who was a master of sentimental 19th-century prose style ("precious" was one of his favorite adjectives), prettied up his wine-into-water miracle with lots of flowery words, like these:  "We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in the Anglo-American jurisprudence: 'the most celebrated writ in the English law.'" (That last is, to my mind, rather like describing Delaware as the fairest of the states east of Maryland.)  

After quoting fellow Supreme Court justices that "'there is no higher duty than to maintain it undisturbed'" (none?), Brennan reached the high-water mark of habeas hyperbole:

These are not extravagant expressions.  Behind them may be discerned the unceasing contest between personal liberty and government oppression.  It is not accident that habeas corpus has time and again played a central role in national crises, wherein the claims of order and of liberty clash most acutely, not only in England in the seventeenth century, but also in America from our very beginnings, and today.

Note the only two choices: personal liberty or government oppression.  Which side are you on? 

Before you answer, recall that the Supreme Court is the government, and six of its members had just declared themselves free to disregard a statute enacted by Congress.  "Oppression," in Brennan's usage, was democracy when it interfered with the powers of government, specifically that of the courts.  The "personal liberty" he was talking about was that of federal judges. 

By the way, in case you'd forgotten about the "central role" habeas corpus has played in our national crises, Brennan helpfully dropped a footnote to remind us that after the Civil War was over, the Supreme Court ruled that during wartime civilians could only sometimes be subjected to martial law.  So next time we have a Civil War, we'll know.

Also, the Court once considered the case of men incarcerated for involvement in Aaron Burr's fantastic conspiracies of imperial dominion.  And during World War II the Court denied habeas petitions filed by condemned saboteurs who had been secretly landed by German submarines on American beaches. 

Brennan's final example was the Court's ruling, in the final months of World War II, that a Japanese-American woman who had succeeded in proving her loyalty could, after three years' incarceration, no longer be held indefinitely in a Utah camp (although Justice Douglas's opinion for the Court sidestepped the separate question whether she would be allowed to return to her California home).

Far from being "central" to the Second World War, the Civil War, and the run-up to the War of 1812, these legal disputes hardly even qualify as marginal.  It would be insulting the memory of Justice Brennan to suggest he believed a word of what he wrote.

Six years later he confirmed it was all eyewash.

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.

On February 15, 1941, Murray Hameroff was shot and killed in front of his home on Stillwell Avenue in Coney Island.  Charles Noia confessed to police he was the triggerman.  His two accessories, Santo Caminito and Frank Bonino, separately confessed.  They were all convicted.  The jury recommended life in prison for them all.

Noia's judge, Peter J. Brancato, told the defendant during sentencing:

I can understand how the jury made its recommendation as to your two accomplices.  I had seriously considered not accepting the jury's recommendation in your case, but without your knowledge you had pleading for you an excellent lawyer.  I am referring to my wife, Mrs. Brancato.  Her last word to me as I left home this morning was a request that I accept the recommendation of the jury in your case as well as the other defendants, and I shall do so.

Noia, perhaps grateful he didn't get the death penalty, didn't appeal his conviction.  But his two accessories did.  They argued

that the trial court committed reversible error in refusing to charge as requested on the subject of illegal detention of defendants by the police without arraignment, in excluding evidence which would have shown that one defendant complained to the jail physician on the day following the arraignment that he had been beaten by the police, ... and in leaving it for the jury to decide whether the confessions were voluntary.  (People v. Bonino, 50 N.E. 2d 654)

In 1944, New York's highest court affirmed the convictions with a one-sentence order finding any errors to be insubstantial.

Fast forward 11 years.  Caminito filed a petition for federal habeas corpus, raising essentially the same issue.  Federal Judge James Thomas Foley heard the petition.  He had a peculiar resume, even for a judge:

Private practice, Troy, New York, 1935-1942
Secretary, Hon. William H. Murray, New York State Supreme Court, 1939-1942
U.S. Naval Reserve, 1942-1945
Secretary, Hon. William H. Murray, New York State Supreme Court, 1946-1949

What, exactly, did it mean to be a "secretary" to a trial court judge (because in New York "supreme" means "not supreme") in those days?   And how did it qualify Foley to become a federal judge?   Well, it was good enough for President Truman and the Senate.

Judge Foley wrote:

The issue of involuntary confession under force and threat was clear cut as far as Caminito was concerned.  He took the stand and under the guidance of an experience and eminent defense attorney, narrated in detail his story of police persecution, brutality, false identification, intimidation, physical and mental, that he said compelled admission and confession.  The detectives flatly contradicted these assertions and the ones mainly accused reiterated such denials in rebuttal.  The questions of food and physical punishment presented by the testimony were essentially and completely factual and peculiarly fitted to the province of the jury.  A cold record, as I try to keep in mind when I am forced to the task of appellate review, can give little indication of the demeanor of the witnesses, their attitude, their tone of voice, their hesitancy, their emotions, their frankness, which are of fundamental importance in the determination where the truth lies.  (U.S. ex rel. Caminito v. Murphy, 127 F.Supp. 689) (the boldface was added for reasons that will become clear in part 2 of this series)

In addition, Judge Foley observed that Caminito hadn't been beaten: he was photographed immediately after his confession; and he never complained either to the magistrate or to his first attorney.  Caminito's trial attorney "flatly stated that he did not claim there were any marks upon the person of Caminito."

Caminito testified at trial "that he did not confess after extreme physical punishment or a staged and spurious identification, but only after a discussion with Noia."  On cross-examination he testified that "statements made in the confession ... came from his own mind and were not instilled in his own mind by the police as part of the alleged fabrication under pressure."  (That last line is just as ambiguous in context: it's unclear if Caminito was referring to all the statements contained in his confession, or only to particular bits - such as, say, his name and address.)

Judge Foley admitted to feeling a little queasy about some of the things that the police apparently acknowledged they had done to Caminito and his co-defendants: "The holding of the defendants incommunicado, the sleeping on a hard bench without pillow or blanket in a cell probably not overheated, the failure to arraign without unnecessary delay as provided by law, the admittedly false identifications, the intensive questioning by relays of detectives ... would cause hesitation and suspicion on my part."

But, the judge added, "the same feelings must have been in the minds of the jurors and they decided the issue in favor of the People after a complete, informative, detailed and conscientious charge."

 So here we have a convicted murderer claiming that the cops mistreated him and the cops denying it.  The factual issue of the voluntariness of Caminito's confession was submitted to the jury, and the jury believed the cops.  Like Judge Foley, you may wonder if they were right to do so, but the whole point of a jury system is that juries get to decide which witness is the credible one.

Isn't it?

It's rare that a story about a judge manages to be both too bizarre and too vague for inclusion in this Judges' Hall of Fame, but the celebrated story of Cleveland, Tennessee's Judge John B. Hagler is very nearly disqualified on both counts.  The newly-exed ex-judge did something very, very, you know .... bizarre.  But so far his former colleagues on the bench are preventing us from finding out exactly what. 

What we know is this: The judge gave a tape to his former secretary, Nona Rogers, who worked with him for 18 years, accompanying him from private practice when he was first ennobled.  Ms. Rogers said that when she first listened to the tape, thinking it was routine dictation, "I shook all over. I was just numb."  Not, one gathers, the usual findings and conclusions.

Here's a clue as to its contents:

"It sounded like someone being tortured," Chattanooga police Sgt. Alan Franks testified Wednesday, offering the first details of what is on the tape.

Franks said the recording was investigated in relation to a still-unsolved 1997 murder. He gave no other details on the murder case.

"The content was so shocking. I have been a police officer for 24 years," Franks said before his testimony was cut off by an objection.

Ex-Judge Hagler himself "has refused to say what is on the tape other than to acknowledge it contains 'graphic fantasies.'"

Apparently, the tape has some connection with the still-unsolved murder of a 35-year-old Episcopal priest, Charles Martin Davis, usually called Marty Davis in the Tennessee media.  Father Davis was beaten and shot either 6 or 7  times, "depending on whether the gunshot wound to the anterior neck is considered a re-entry wound from the graze gunshot wound to the chin".   That last is a link to the autopsy report, which reveals no alcohol, no drugs, no sexual assault.   Not even robbery was a motive, apparently, as money was left in the house.

Does that strike you as promising material for graphic fantasies?  Well, remember that Judge Hagler went to  Father Davis's church, and the two visited and talked on the phone.   So Hagler wasn't just recording his graphic fantasies about violent death - he was fantasizing about a friend's violent death.  Then there's this:

Authorities have said Judge Hagler is not a suspect in the murder of Marty Davis, but Chattanooga Police said they want to hold the Hagler tape because if anyone is ever charged in the Davis case the defense may want it for "exculpatory evidence".

It's hard to keep at bay the thought that the opposite of "exculpate" is "inculpate," and that if a judge's private tape could exculpate another person then it must logically inculpate the judge.  How else could be possibly be Brady material for anyone else?  And, oh, yeah.  One other thing.  Father Davis was "chairman of the gay ministry Integrity" while ex-Judge Hagler teachers a Bible class at the Episcopal church Father Davis attended.  

But wait!  We haven't gotten to the bizarre part yet. 

Hagler, before his resignation became effective, issued a statement which read, in part:

Any decent person, myself, would be disgusted to hear my words as spoken on the recording.  Although I have never been afforded an opportunity to listen to this tape, I believe that the description of it as containing "graphic fantasies" in the Times Free Press is an accurate and sufficient description and all any decent person would want to hear of it.  But any decent person would also conclude that public dissemination, beyond the description previously given, can serve no legitimate public purpose and can only hurt, and continue to hurt, my family and me.

If you were a decent person, yourself, you would have no curiosity about the tape.  This strikes me as rather like Jeffrey Dahmer deploring the poor taste exhibited by a media that insisted on running sensational accounts of cannibalism:  "Any decent person would be satisfied with the information that the persons named in the news reports are no longer living."

Except, of course, that Jeffrey Dahmer didn't exercise immense power over the lives of Milwaukee's citizens for 17 years.  

But, see, that makes it worse that people began know about the pleasure Hagler takes in recording for posterity his fantasies of extreme violence.  Because, he said, an attack on him was an attack on the judiciary:  "This, not a judge's sinful but legal conduct, is the story".   Shades of the "great man" theory of criminal libel.

Remember that allowing the public to hear the tape would serve no purpose other than to "hurt, and continue to hurt, my family and me".  Given that, one might wonder how he could, in the same statement, claim that the tape was an attack on "one of our essential public institutions, the Judiciary".  

The answer, of course, is that Hagler was a judge for a long time.  And for a certain type of judge words are just the wrapping paper concealing the exercise of power.  Complaining about such a judge's self-contradictions is like complaining that the pattern doesn't line up where the paper overlaps itself. 

But now we come to really bizarre bit:

Members of the bar associations in the 10th Judicial District voted today to ask the U.S. attorney to look into how information became public about an audiotape that prompted the district Circuit Court judge to resign Tuesday.

In a joint meeting, bar association members from Bradley, McMinn, Monroe and Polk counties asked the U.S. attorney to become involved and investigate whether the surfacing of information "was an attempt to improperly influence the administration of justice." ...

The members also passed resolutions supporting Judge Hagler and saying that the tape and any copies or transcriptions should be returned to him.

So while we don't know exactly what Judge Hagler said on the tape, we do know the lawyers of southeastern Tennessee considered it well within the acceptable range, at least for judges.