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The early days of 1963 saw the American Camelot in full flower. The young, vibrant President John Fitzgerald Kennedy was at the peak of his power and influence. The Cuban missile crisis of the previous October had shown America and the world that, despite his relative youth and lack of political experience, JFK was capable of exerting an iron will that influenced the nation and the world. Domestic strife increased as the civil rights movement gained momentum. In the weeks immediately preceding the showdown with the Soviet Union over the placement of missile in Cuba, President Kennedy and his brother Robert, the Attorney General, sent U.S. Marshals, other federal law enforcement officers, and National Guardsmen to the campus of the University of Mississippi in Oxford to suppress violence as James Meredith registered. Meredith, the first African-American to be admitted to the college, was enrolled on October 1, 1962, following a ruling in his favor by the Supreme Court of the United States.
The year 1963 saw a Supreme Court comprised of a diverse array of justices, including senior jurists who had served for more than two decades, and some new additions appointed by President Kennedy himself. The “Warren Court,” a liberal, pro-civil rights core of five justices centered around Chief Justice Earl Warren, was at its zenith (for more on the composition of the Supreme Court in 1963, see the June 2012 issue of The Champion). The American civil rights movement was still gathering momentum, and the Court was proving to be a critical element in the establishment of fundamental rights for all Americans, including minorities, criminal suspects, juvenile offenders, and prison convicts.
Within this historical and legal context, the Court decided several significant criminal justice cases in 1963.
Brady v. Maryland1
(7-2) This was the most significant case involving criminal procedure and due process decided by the Supreme Court during the year 1963. Much more discussion about Brady and its impact is found throughout this issue of The Champion, but a summary of the case is in order here.
In separate trials, John Brady and a companion named Donald Boblit were each convicted of first degree murder and sentenced to death; their convictions were upheld by the Maryland Court of Appeals. Prior to trial, counsel for Brady had requested and been granted permission to examine several statements made by Brady’s co-defendant to police in the course of their investigation. However, one such statement, in which Boblit admitted actually killing the victim, was withheld. The existence of this statement did not come to light until after Brady’s trial, conviction, and unsuccessful appeal.
To complicate matters in this case, Brady had testified during his trial and admitted participation in the crime, but denied actually killing the victim. In his closing argument, Brady’s attorney acknowledged that Brady was guilty of first degree murder but implored the jury to spare his life by returning a verdict of guilty “without capital punishment.”2 Since there was no real question as to Brady’s guilt, the Maryland Court of Appeals ultimately granted post-conviction relief in the form of a remand to the trial court solely on the issue of punishment.
The U.S. Supreme Court affirmed the decision of the Maryland appeals court. It found that Brady’s Fourteenth Amendment due process rights were not infringed by limiting retrial to the question of punishment, but the concealment of Boblit’s confession from the defense was nevertheless substantially material to the issue of punishment, so as to require a retrial on that aspect of Brady’s case. As Justice Douglas wrote in his majority opinion, “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”3
Douglas v. California4
(6-3) William Douglas and his co-defendant, Bennie Meyes, faced 13 felony charges, including robbery and assault, in a California court. The two men were indigent and both had been assigned the same public defender. Defense counsel moved for a continuance, citing a lack of adequate time to prepare for trial, and requested that separate counsel be appointed for each defendant; these motions were denied. Acting pro se, Douglas and Meyes then renewed their motions for continuance and appointment of separate counsel. These motions were also denied. Following a jury trial, both men were convicted and sentenced to prison terms.
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Douglas and Meyes requested appointment of counsel in filing an appeal of right to the California District Court of Appeal, but their requests were denied. In its review of their request, the appellate court, citing a state rule of criminal procedure, asserted that it had “gone through” the trial record and had found that “no good whatever could be served by appointment of counsel.”5 The convictions of Douglas and Meyes were affirmed by the District Court of Appeal; a subsequent discretionary appeal to the California Supreme Court was summarily denied.
The decision of the U.S. Supreme Court was written by Justice William O. Douglas, in a predictable 6-3 split that reflected the orientation of the Warren Court. Citing the Court’s earlier ruling in Griffin v. Illinois, Douglas wrote that “a State may not grant appellate review in such a way as to discriminate against some convicted defendants on account of their poverty.”6 The majority held that California’s statutory scheme allowing an ex parte review of the merits of an appeal, without guaranteeing counsel to an indigent appellant, was violative of the Fourteenth Amendment’s due process and equal protection mandates because the indigent defendant in these circumstances “is forced to go without a champion on appeal,”7 and thus “an unconstitutional line has been drawn between rich and poor.”8
Draper v. Washington9
(5-4) This case was decided the same day as Douglas v. California and involves similar issues regarding the rights of indigent defendants on appeal. Draper and two co-defendants were convicted of two counts of robbery and sentenced to lengthy terms of imprisonment. They were indigent and had court-appointed counsel at trial. Following their conviction, the three men filed pro se notices of appeal and motions for a free copy of the trial transcript and a “statement of facts.” The judge who presided at the original trial heard arguments from Draper and from the trial attorney, who had been directed by the court to appear for the defendants despite their wish to proceed without counsel. At the conclusion of this hearing, the judge denied the motions, finding that the defendants’ enumerations of error were “patently frivolous,” that there was “overwhelming evidence” of the guilt of each defendant, and that providing the requested transcript or statement of facts would be “a waste of public funds.”10 The ruling of the trial judge was sustained by the Washington State Supreme Court, which reviewed only the transcript of the hearing on defendants’ motions. Defendants then brought an appeal to the U.S. Supreme Court.
In a 5-4 decision authored by Justice Goldberg, the Court reversed the convictions of Draper and his co-defendants and remanded the case. Similar to its holding in Douglas, the Court found that denial of a free transcript to indigent defendants created an unconstitutional disparity between rich and poor criminal defendants, in violation of the Fourteenth Amendment. Justice Goldberg observed that “the conclusion of the trial judge that an indigent’s appeal is frivolous is a similarly inadequate substitute for the full appellate review available to nonindigents in Washington, when the effect of that finding is to prevent an appellate examination based upon a sufficiently complete record of the trial proceedings themselves.”11 It is important to note that, citing Griffin v. Illinois12 and Eskridge v. Washington State Board of Prison Terms and Paroles,13 the Court held that, in order to pass constitutional muster, it may not be necessary for a state to provide every indigent defendant with an entire trial transcript in every case, provided that what is furnished is a “record of sufficient completeness … for adequate consideration of the errors assigned.14
Fahy v. Connecticut15
(5-4) After waiving a jury trial, Fahy and a codefendant named Arnold were convicted of willfully injuring a public building; they had painted swastikas on a local synagogue. At trial, over objection of the defendants, a paint brush and a can of black paint was admitted into evidence. The arresting officer in this case had initially encountered Fahy and Arnold on an early-morning traffic stop, before the vandalism to the synagogue had been discovered. The officer searched the car and discovered the paint and brush under the front seat. Not realizing the import of these items, he left them in the vehicle and released Fahy and Arnold, following them to Fahy’s home. Later that day, once the vandalism had been discovered, the officer returned to Fahy’s residence and, without benefit of a warrant or other justification, entered Fahy’s garage and removed the incriminating items from Fahy’s car. Fahy and Arnold were later taken into custody after the officer obtained arrest warrants.
On appeal, the Connecticut Supreme Court of Errors upheld the convictions of Fahy and Arnold. The court acknowledged that the paint and brush had been illegally seized by police, but held that this was harmless error. This case was tried before the Supreme Court decided Mapp v. Ohio16 in 1961, but the appeal was brought thereafter.
Further appeal to the U.S. Supreme Court brought a reversal of the convictions and a remand of the case. Chief Justice Warren himself wrote the majority opinion, holding that the admission of the illegally obtained evidence was prejudicial to the defendants and could not therefore be considered harmless error. Warren noted that the Court could not “ignore the cumulative prejudicial effect of this evidence upon the conduct of the defense at trial.”17
Fay v. Noia18
(6-3) This is a case involving the Great Writ, the writ of habeas corpus. In 1942, Noia and two co-defendants, Caminito and Bonino, were convicted of murder committed in the course of a robbery; all three were sentenced to life imprisonment. Written confessions from each of the defendants were apparently the sole evidence presented by the State of New York at trial. Noia’s two accomplices, but not Noia himself, appealed their convictions unsuccessfully. However, both men were later released when, in subsequent legal proceedings, it was determined that the confessions of all three men had been illegally coerced, in violation of the Fourteenth Amendment’s due process requirement. Following the release of Caminito and Bonino, Noia filed a Petition for Writ of Habeas Corpus in the U.S. District Court for the Southern District of New York. This court denied the petition, citing the provisions of 28 U.S.C. § 2254, which require that “[a]n 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. …”19 The Second Circuit Court of Appeals reversed the decision of the District Court, setting aside Noia’s conviction and ordering that he be either released from custody or retried. The Court of Appeals expressed doubt that this statute was applicable when State remedies were no longer available to the accused. In addition, the Court found that the particular “exceptional circumstances”20 of Noia’s case excused noncompliance.
Justice Brennan wrote the opinion for the 6-3 majority, affirming the decision of the Court of Appeals granting the writ. After a long discourse on the historical origins and significance of the Great Writ, Brennan concluded that it would be fundamentally unjust to allow Noia’s conviction and life sentence to stand when his co-defendants, convicted on the same tainted evidence, had been released. Brennan concluded, “It should be unnecessary to repeat what so often has been said and what so plainly is the case: that the availability of the Great Writ of habeas corpus in the federal courts for persons in the custody of the States offends no legitimate state interest in the enforcement of criminal justice or procedure. … Surely no fair-minded person will contend that those who have been deprived of their liberty without due process of law ought nevertheless to languish in prison.”21
Gideon v. Wainwright22
(9-0) Clarence Earl Gideon was no stranger to the criminal justice system. A four-time convict, he was arrested for breaking and entering a poolroom with the intent to commit a misdemeanor. Florida law provided that this was a felony. Gideon lacked funds to hire counsel and appeared before the trial court, Judge Robert McCrary, without an attorney. Judge McCrary denied Gideon’s request for counsel on the basis that the law did not permit appointment of counsel except in capital cases,23 a misinterpretation of Powell v. Alabama.24 Following his conviction, Gideon was sentenced to the maximum punishment, five years’ imprisonment. He filed a Petition for a Writ of Habeas Corpus with the Florida Supreme Court on the denial of counsel issue. When that Petition was denied, he sought and obtained review by the Supreme Court of the United States, which held (overruling Betts v. Brady25), in a unanimous opinion authored by Justice Black, that indigent defendants in state felony proceedings were entitled to counsel. Justice Black wrote that “the Sixth Amendment’s guarantee of counsel is … [a] fundamental right[,]”26 and that “in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured of a fair trial unless counsel is provided for him. This seems to be an obvious truth.”27 He continued, stating that “[t]he right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”28
Justices Douglas, Clark, and Harlan each wrote separate concurring opinions in Gideon. Justice Douglas wrote briefly to say that guarantees found within the Bill of Rights and which are made applicable to the states through the first section of the Fourteenth Amendment are of equal value29 (Justice Harlan had espoused a view that such secondhand application was of a lesser value). Justice Clark’s concurrence focused on the lack of a constitutional “distinction between capital and noncapital cases” since the Fourteenth Amendment protects both “life” and “liberty.”30 Finally, Justice Harlan, the last holdout against imposing on the states an obligation to provide counsel to indigent criminal defendants, acknowledged that the “special circumstances rule,” which had been abandoned in capital cases, should be abandoned in, at the very least, noncapital cases that “carry the possibility of a substantial prison sentence.”31
Haynes v. Washington32
(5-4) Haynes was charged with robbing a Spokane, Wash., gasoline service station. Although he orally admitted the robbery to the arresting officers, he was held incommunicado for 16 hours. He made repeated requests to talk to an attorney and his wife, but was told he could not talk to either until he gave a written confession. Even after giving a written confession to detectives, he was not permitted to call his wife until he’d talked to the prosecutor. Despite having “evidence more than adequate to justify [Haynes] being charged without delay,” the defendant was not taken before a magistrate for a preliminary hearing until he signed a written confession. Further, the record fails to indicate, both before and after the confession, that “Haynes was advised by authorities of his right to remain silent, warned that his answers might be used against him, or told of his rights respecting consultation with an attorney.”33 At trial he objected to the admission of the written confession as a due process violation. Washington law provided that the issue of voluntariness of a confession was a question of fact for the jury to decide. Haynes was convicted and the conviction was affirmed by the Washington Supreme Court (5-4).
In the last of a series of confession cases preceding Escobedo v. Illinois34 and Miranda v. Arizona,35 the Supreme Court of the United States, in an opinion written by Justice Goldberg, described an “atmosphere of substantial coercion and inducement created by statements and actions of state authorities”36 and held that the confession was not “the voluntary product of a free and unconstrained will.”37 The opinion continued: “We are impelled to the conclusion, from all of the facts presented, that the bounds of due process have been exceeded.”38
Jones v. Cunningham39
(9-0) Petitioner, while in a Virginia state penitentiary, filed a state Petition for a Writ of Habeas Corpus challenging an earlier conviction based on the denial of his right to counsel. During the pendency an appeal of an order denying the Petition, he was paroled and placed in the “custody and control” of the Parole Board, who directed him to live with family members in Georgia. The Court of Appeals dismissed the appeal, holding that the case was moot as to the prison superintendent because he no longer had custody or control over Petitioner “at large on parole.”40
Justice Black addressed whether a parolee is “in custody” for the purposes of a Petition for a Writ of Habeas Corpus through a lengthy analysis of English and American civil and criminal law. Writing for a unanimous Court, he stated that merely because Petitioner had left the territorial jurisdiction of the District Court did not deprive that Court of jurisdiction when the members of the Parole Board were still within the Court’s jurisdiction and those Board members could be required to do all things necessary to bring the case to a final adjudication. “While petitioner’s parole releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom; this is enough to keep him in the ‘custody’ of the members of the Virginia Parole Board within the meaning of the habeas corpus statute.”41
Wong Sun v. United States42
(5-4) Federal agents arrested Toy, Yee, and Wong Sun for “fraudulent and knowing transportation and concealment of illegally imported heroin.”43 Following the arrest, Wong Sun was released on his own recognizance after a lawful arraignment. He voluntarily returned to the police station several days later and made a statement implicating himself in the crime. At a bench trial in federal court, Petitioner and his co-defendants were convicted. The Court of Appeals found that the warrantless arrests of Petitioner and his co-defendants were illegal because they were “not based on ‘probable cause’ within the meaning of the Fourth Amendment nor ‘reasonable grounds’ within the meaning of the Narcotic Control Act of 1956,”44 but nevertheless affirmed the convictions holding that “the four items of proof were not the ‘fruits’ of the illegal arrests, and that they were therefore properly admitted in evidence.”45
Justice Brennan, writing for the majority, acknowledged that the Court of Appeals had already determined that there “was neither reasonable grounds nor probable cause for Toy’s [one of the co-defendant’s warrantless] arrest,”46 an arrest which lead to the subsequent arrest of Wong Sun and others, since there was “no basis in experience for confidence in the reliability of [the informant’s] information.”47 Continuing, the Court ruled that narcotics taken from co-defendant Yee were not evidence “from an independent source,”48 and thus were subject to the exclusionary rule and could “not be used against Toy.”49 Turning to Wong Sun’s unsigned confession, the Court held that it did “not furnish competent corroborative evidence”50 against Toy, and the Court agreed with the finding of the Court of Appeals that Wong Sun’s arrest was without probable cause or reasonable grounds.
However, Wong Sun’s later, unsigned confession was not the fruit of his arrest, and therefore was therefore properly admitted at trial. Given that “the connection between the arrest and the statement had ‘become so attenuated as to dissipate the taint,’”51 Wong Sun’s statement was admissible. Not “all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.”52
It would be a mistake not to acknowledge that the Supreme Court decided more than one-half dozen significant civil rights cases in 1963, many announced on May 20th. These cases varied from the First Amendment right to peaceably assemble,53 to several involving the failure to leave a store’s lunch counter after service was refused,54 or a “sit-down demonstration” at a white lunch counter in protest against racial segregation.55 The Court also addressed desegregation of public parks and recreational facilities,56 and playing basketball in a public park customarily used only by white people.57 Clearly 1963 was an important year for the Court’s civil rights agenda.
Avent v. North Carolina58
Five black students and two white students were convicted of criminal trespass after sitting at a lunch counter in Durham, N.C., a city which had an ordinance requiring racial segregation in public eating places. In a per curiam opinion, the Court reversed the convictions citing Peterson v. City of Greenville.
Edwards v. South Carolina59
One hundred eighty-seven black high school and college students were arrested for common law breach of peace after participating in a peaceful demonstration in Columbia on the grounds of the South Carolina State House. The students were protesting “discriminatory actions against Negroes in general.” While accepting South Carolina’s determination that the petitioners breached the peace, the Court held that “South Carolina infringed the petitioners’ constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances.”60
Gober v. City of Birmingham61
Linked with Shuttlesworth v. City of Birmingham, below, in this case 10 black students were convicted of criminal trespass in Birmingham, Ala., for sitting at white lunch counters and failing to leave when requested to do so. In a per curiam opinion citing Peterson v. City of Greenville, decided the same day, the Court reversed the convictions.
Lombard v. Louisiana62
This case involved three black students and one white student who sought to be served at a lunch counter in New Orleans, contrary to prior announcements by the mayor and superintendent of police that “‘sit-in demonstrations’ would not be permitted.”63 The Court treated these “officials’ statements … exactly as if [New Orleans] had an ordinance prohibiting” desegregated service in restaurants,64 and reversed the convictions. Justice Douglas concurred, noting privately owned enterprises open to the public are subject to regulation and may not discriminate.
Peterson v. City of Greenville65
This case was the lynchpin of five civil rights cases announced on May 20, 1963,66 and involved an attempt to desegregate a lunch counter by 10 young black men and women in Greenville, S.C., which had an ordinance prohibiting “furnish[ing] meals to white persons and colored persons in the same room, or at the same table, or at the same counter.”67 Chief Justice Warren wrote the opinion, which reversed the convictions based on a violation of the Equal Protection Clause of the Fourteenth Amendment.
Shuttlesworth v. City of Birmingham68
The two black ministers who had encouraged the students in Gober v. City of Birmingham, above, were convicted of “aiding and abetting a violation of the city criminal trespass ordinance.”69 Chief Justice Warren, writing for the majority, noted that “[s]ince the convictions in Gober [had] been set aside, it follow[ed] that the present petitioners did not incite or aid and abet any crime, and that therefore their own convictions must be set aside. … [T]here can be no conviction for aiding and abetting someone to do an innocent act.”70
Watson v. City of Memphis71
Decided a week after Peterson and its brethren, this case involved the slow desegregation of municipal parks in Memphis, Tenn. Justice Goldberg wrote that “the city has completely failed to demonstrate any compelling or convincing reason requiring further delay in implementing the constitutional proscription of segregation of publicly owned or operated recreational facilities.”72
Wright v. Georgia73
Six young blacks “were convicted of breach of the peace for peacefully playing basketball in a public park [customarily used by whites] in Savannah, Ga.”74 Chief Justice Warren wrote that “one cannot be punished for failing to obey the command of an officer if that command is itself violative of the Constitution.”75
1. Brady v. Maryland, 373 U.S. 83 (1963).
2. Id. at 84.
3. Id. at 87.
4. Douglas v. California, 372 U.S. 353 (1963).
5. 187 Cal. App. 2d 802, 812, 10 Cal. Rptr. 188, 195.
6. Griffin v. Illinois, 351 U.S. 12 (1956).
7. Douglas, 372 U.S. at 356.
8. Id. at 357.
9. Draper v. Washington, 372 U.S. 487 (1963).
10. Id. at 493.
11. Id. at 500.
12. Griffin v. Illinois, 351 U.S. 12 (1956).
13. Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214 (1958).
14. Draper, 372 U.S. at 497; Coppedge v. United States, 369 U.S. 438, 446.
15. Fahy v. Connecticut, 375 U.S. 85 (1963).
16. 367 U.S. 643 (1961).
17. Fahy, 375 U.S. at 91.
18. Fay v. Noia, 372 U.S. 391 (1963).
19. Id. at 396.
20. Id. at 397.
21. Id. at 441.
22. Gideon v. Wainwright, 372 U.S. 335 (1963).
23. THE COURT: “Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time I can appoint Counsel to represent a Defendant is when that person is charged with a capital offense.” Id. at 337.
24. Powell v. Alabama, 287 U.S. 45 (1932).
25. Betts v. Brady, 316 U.S. 455 (1942).
26. Gideon, 372 U.S. at 343.
27. Id. at 344.
28. Id. at 344.
29. Id. at 346.
30. Id. at 349.
31. Id. at 351.
32. Haynes v. Washington, 373 U.S. 503 (1963).
33. Id. at 510-511.
34. Escobedo v. Illinois, 378 U.S. 478 (1964).
35. Miranda v. Arizona, 384 U.S. 436 (1966).
36. Id. at 513.
37. Id. at 514.
38. Id. at 515.
39. Jones v. Cunningham, 371 U.S. 236 (1963).
40. Id. at 237.
41. Id. at 243.
42. Wong Sun v. United States, 371 U.S. 471 (1963).
43. Id. at 473.
44. Id. at 477-478.
45. Id. at 478.
46. Id. at 479.
47. Id. at 480.
48. Id. at 487, citing Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).
49. Id. at 488.
50. Id. at 490.
51. Id. at 491, citing Nardone v. United States, 308 U.S. 338 (1939).
52. Id. at 487-488.
53. Edwards v. South Carolina, 372 U.S. 229 (1963).
54. Avent v. North Carolina, 373 U.S. 375 (1963), Lombard v. Louisiana, 373 U.S. 267 (1963), and Peterson v. City of Greenville, 373 U.S. 244 (1963).
55. Shuttlesworth v. City of Birmingham, 373 U.S. 262 (1963).
56. Watson v. City of Memphis, 373 U.S. 526 (1963).
57. Wright v. Georgia, 373 U.S. 284 (1963).
58. Avent, supra note 2.
59. Edwards v. South Carolina, 372 U.S. 229 (1963).
60. Id. at 235.
61. Gober v. City of Birmingham, 373 U.S. 374 (1963).
62. Lombard v. Louisiana, 373 U.S. 267 (1963).
63. Id. at 267.
64. Id. at 273.
65. Peterson v. City of Greenville, 373 U.S. 244 (1963).
66. Gober, Lombard, Peterson, Shuttlesworth, and Wright were all decided on May 20, 1963.
67. Peterson, 373 U.S. at 246.
68. Shuttlesworth v. City of Birmingham, 373 U.S. 262 (1963).
69. Id. at 263.
70. Id. at 265.
71. Watson v. City of Memphis, 373 U.S. 526 (1963).
72. Id. at 539.
73. Wright v. Georgia, 373 U.S. 284 (1963).
74. Id. at 285.
75. Id. at 291-292.