'Case Dismissed': The Unreasonable Leniency of American Justice

Crime waves have followed every great war. Are our American courts any better prepared to protect the community against the gangsters who flourished in 1919 and may flourish again?
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IN 1924, about five years after World War I, an almost unbelievable armed invasion by gangsters occurred in Cicero, Illinois. This city of 70,000 inhabitants fell to the control of Al Capone and his mobsters. Two years later a rival gang invaded Capone's stronghold: eight cars full of hoodlums, armed with shotguns and machine guns, rode through the main business street of Cicero and riddled buildings with bullets and shotgun slugs. Innocent people were wounded. A Chicago newspaper editorial blazoned, "This Is War!"

Soon thereafter the police department of Chicago, second-largest city of the United States, virtually surrendered to the Capone gang. Businesses and industries of all kinds began paying tribute directly or indirectly to racketeers and gangsters. One of the largest industrial cleaners and dyers of Chicago found it necessary to take Al Capone into partnership for protection. His places had been bombed time and again. Senator George W. Norris suggested to President Calvin Coolidge that the Marines be withdrawn from Nicaragua and sent to Chicago to restore law and order.

All this happened to one community within a decade following the last war, and comparable conditions prevailed in many other cities. Prohibition was not the cause: it merely aggravated fundamental weaknesses that existed then and are found now' in many of our large urban centers.

Although crime waves have followed almost every war, and although we have had sufficient warnings that after the present world-wide conflict we can expect unprecedented lawlessness, few communities have heeded the warning. In many cities the law enforcement agencies, upon which our security depends, are helpless to function efficiently. Appointments, promotions, transfers, and even disciplinary action all too often depend upon the influence of ward politicians. Many times the ward committeemen or aldermen control the vote and perpetuate their power through alliances with criminals. As long as such conditions are tolerated, our society will receive inadequate protection.

But there is another aspect of law enforcement which has received too little attention. Even strong enforcement agencies cannot fulfill their responsibility to the public unless they have the backing of the courts. There must be a change in judicial attitudes toward the rights of criminals. There must be a clear-cut and more realistic interpretation of the rights guaranteed by the Constitution, which was never intended as a refuge for the guilty.

Two years ago, in Chicago, a criminal with a record of prior conviction for armed robbery was again found guilty of the same crime. Several members of a family were held prisoners at gunpoint for two hours while their home was ransacked. Edward Damiani, the convict, was sentenced to the penitentiary for one year to life. As happens on innumerable occasions, after his conviction and while an appeal was pending, his bond was reduced by the court from $15,000 to $10,000. Damiani was released June 24, 1943. Only nine days later, on July 3, he committed an armed holdup of a currency exchange in Chicago. Over two thousand dollars was stolen. In addition to guns, he and his associates were armed with a cylinder containing poison gas. The cashier, Agnes Olsen, fifty-two years old, did not comply with the demands of the robbers speedily enough to suit them. Poison gas was released and she died. Innocent people present were terrorized and robbed and an innocent woman was murdered.

It is time to give some thought to the rights of the Agnes Olsens as well as the Damianis. Damiani had his alleged rights of liberty and freedom preserved. But the preservation of Damiani's alleged rights cost the life of an innocent victim. Surely law-abiding people must be protected too.

 

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The strained reasoning by which courts have sometimes freed lawbreakers would be humorous if the results were not so tragic to society. Several years ago officers charged with the duty of enforcing the game laws received information that on a certain passenger train in Cook County, Illinois, there were men who were illegally in possession of hen pheasants Acting on this definite information, the officers boarded the train. They saw some pheasant feathers protruding from the pockets of a passenger, Sigmund De Luca. It would appear that the information previously received by the officers was reasonably substantiated. The officers searched De Luca. They found he was in possession of four hen pheasants in violation of the law. De Luca confessed to the officers that he had killed the birds.

Here was a perfect case establishing a violation of the game law -- perfect to everyone, that is, except the Illinois Supreme Court. In reversing the conviction, the court held that when the officers saw the pheasant feathers sticking out of De Luca's pockets, they could not tell whether they were the feathers of hen pheasants or cock pheasants. Consequently, the officers had no reasonable ground for believing De Luca was implicated in a crime. The search was, therefore, unreasonable and illegal. All evidence of guilt found as a result of the search was held inadmissible in court.

This case is unimportant. But such decisions pave the way for the immunity enjoyed by the hoodlums, thugs, and gangsters who endanger the security of the citizens in many communities The pheasant hen case can easily serve as a precedent to turn murderers loose.

Recently in Chicago a man admitted in Federal Court that over a period of ten years he had embezzled more than $40,000 from the bank in which he had been employed. His salary was $37 a week. In placing the embezzler on probation the judge condoned the stealing. He put the blame on the bank for paying low wages. Again, the case in itself is of no great moment. The judge's remarks would be unimportant if they did not typify a peculiar philosophy that has gradually pervaded our thinking on crime. Having progressed from the situation in colonial, times, where criminals had few rights, we are approaching the equally untenable position that the criminals are entitled to a good measure of predatory privileges.

Although social protection is the principal function of our penal laws, the trend in the administration of criminal justice has been to place more and more emphasis upon the rights of the individual criminal. The idea of protecting society has many times been relegated to a position of secondary importance. This is paradoxical when we observe that the trend in business, and even in the professions, is to restrain individual rights in order to promote the welfare of all. But consistency does not appear to be an American virtue.

We have prided ourselves, with justification, on the strides we have made in the application of science in the field of criminology. We have behavior clinics, diagnostic depots, psychologists, psychiatrists, sociologists, biologists, and social workers who give expert aid, advice, and treatment to the individual after he is convicted of a crime against society. But the scientific efforts of these experts are expended on behalf of only a small minority of the criminals. Those who go free and who menace society to the greatest extent seldom reach the experts for treatment.

No scientific treatment of the individual is possible without the diagnosis -- determination of the guilt or innocence of the person accused of a criminal offense --: but it is here that WO are the most unscientific Through legal technicalities that frequently benefit only the law violator, we have been setting up all kinds of artificial obstacles and barriers that prevent a proper diagnosis The professional criminal preys on society at will He knows that if he is arrested, the odds are that he will never go to trial, let alone be convicted.

Rules of evidence have become confused with constitutional rights. The ordinary meaning of the word "reasonable" when applied to searches and seizures has frequently been misinterpreted as "unreasonable" and the evidence secured has been thrown out of court. Even when a suspect makes a voluntary confession, a court may decide that he was under "mental coercion" and the confession cannot be admitted in court against him. In either event the diagnosis may call him innocent when he should be called guilty. Consequently, a person who is badly in need of treatment, if society is to be afforded adequate protection, will receive no treatment or supervision at all.

Our health laws like our penal laws were also enacted primarily for social protection. But we should not dream of permitting unnecessary obstacles, such as those which are so commonplace in defeating criminal justice, to interfere with a proper diagnosis by health officials. Let us suppose that a physician of the Chicago Health Department receives an anonymous report that at a particular address there lives a person infected with leprosy -- a highly contagious disease. In answer to the call, he proceeds to the address and knocks at the door. Receiving no answer, but believing that he hears someone in the place, he tries the door. It is unlocked. He enters. There he finds a man with all the symptoms of leprosy. After an examination he orders him quarantined and removed from society.

No person in his right mind would protest that, because of the illegal entry by the physician, society should not be protected by the quarantine and medical treatment of the infected man. It would be ludicrous to say that the leper's rights had been violated and he should therefore be returned home.

But if a police officer received an anonymous report that suspicious, heavily armed individuals were living in that same house in Chicago, the results would be entirely different. If he should enter the place without permission, it would be said that the officer violated the constitutional rights of the law violators. Suppose the officer does enter the place and finds an arsenal. He also finds conclusive evidence to establish that the occupants of the house committed a particular armed robbery a few days previously, at which time several innocent persons were killed.

The obvious fact that these persons constitute a menace to the citizens of the community would be considered immaterial. The evidence, in Illinois and in many other jurisdictions, would be suppressed because of an "unreasonable search and seizure" on the part of the police officer. In some courts, the judge might even deliver a patriotic speech about a man's home being his castle and severely admonish the officer for wanton disregard of the criminal's constitutional rights.

 

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You say that is absurd? In Chicago several years ago on of the most notorious of the gangsters was Two Gun Louis Alterie. After the gang slaying of his pal, Dion O'Banion, Alterie had been frequenting various places, flourishing guns and challenging the killers of O'Banion to shoot it out with him. The police arrested him in a tight spot, with his gun cocked, ready for action. When he was brought into court, the judge castigated the officers for "wasting their time” in making arrests of that nature. Disregarding the well-known reputation of this gangster, the judge stated that citizens had to carry guns to protect their homes against robbers.

There have been numerous instances in which professional criminals have leased business premises to be used for the sole purpose of violating the law. Everyone is welcome in the place if he goes there to break the law. Special buses and other means of transportation are afforded to visit the place if the purpose is to infract the law. It is open to the public, with a sole exception: the law enforcement officer, the only person who has a legitimate errand in the place. If he attempts to enter, the door is slammed in his face.

From a logical standpoint it would appear that if the rights of anyone were violated it would be those of the police officer. He was wrongfully discriminated against by the establishment! But if the officer shoves aside the doorman and enters the place, it is said that he made an illegal entry. The constitutional rights of the lawbreaker are said to have been violated. Even though the officer obtains conclusive evidence of guilt, it cannot in many jurisdictions be admitted in court against those who respect neither the laws of the state nor the Constitution of the United States.

Such decisions benefit only the professional criminal and habitual law violator. They demoralize the honest and efficient officer of the law and assist the crooked officer. If a dishonest officer is forced to take action against the illegal establishment he is protecting, he can always testify that he had to use force to enter. His record of arrests will present a good defense to a charge of neglect of duty. Because the evidence is always thrown out of court, the hoodlum accepts the inconvenience and expense of having a stooge appear in court occasionally as a part of his operating costs. This arrangement is satisfactory to all concerned— unless the rights of the law-abiding citizenry are worthy of consideration.

Several weeks ago two officers were patrolling the streets of Chicago. They observed an automobile loaded with merchandise. The conduct of the occupants of the car aroused their suspicions. They stopped the car and questioned the occupants. It developed that these men had just perpetrated a burglary. The car was loaded with several hundred dollars' worth of stolen goods. Charges of burglary were lodged against the occupants of the car. When the case was heard in court, a motion to suppress the 'evidence was sustained on the ground that the arrest, search, and seizure were illegal. The two burglars who had committed the burglary one of them had a prior record — were set free. The judge who discharged the two burglars (with the result that they may continue to prey on other innocent, law-abiding citizens) was not responsible for this ridiculous protection of the criminals' alleged rights at the expense of society. He was merely following the decisions that have been handed down by higher courts.

Neither the Fourth Amendment to the Constitution of the United States nor the provisions of the state constitutions prohibit all arrests, searches, and seizures without a warrant. Only unreasonable searches and seizures are prohibited. Nevertheless, the courts have been constantly placing limitations on the definition of "reasonable.” This tendency works to the benefit of the criminal only. It makes it possible for the professional law violator to operate openly and brazenly with a minimum of interference from the law enforcement agencies and with little fear of adverse rulings from the courts.

 

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IT is highly important that we protect the constitutional rights of criminals. But it appears that we sometimes forget that the Constitution was meant to protect the rights of law-abiding citizens as well. Certainly it cannot be contended that a professional criminal has a constitutional right to violate the law. To permit such a person to continue his depredations on society merely because the evidence which conclusively established his guilt was allegedly the product of a theoretically unreasonable search and seizure is nonsensical. It is judging the rights of society from the point of view of the individual the individual criminal.

During Capone's regime, at times Chicago was practically in a state of anarchy. Gang murders were commonplace events. Hundreds of murders were attributed to Capone and his henchmen. Yet, Capone was completely immune. The deputy commissioner of police of Chicago, explaining his helplessness in the situation, said "I've arrested Capone a half dozen times, and each time found guns on him. The same goes for a hundred other gangsters around town. But what happens? The minute you get them before a municipal court judge, the defense attorney makes a motion to suppress the evidence. The policeman is cross-examined, and if he admits he didn't have a warrant for the man's arrest on a charge of carrying concealed weapons, the judge declares the arrest illegal and the hoodlum is discharged."

We sometimes hear indignant protests that such illogical jurisprudence is necessary to protect individual rights. We feel impelled to inquire, as did Judge John F. Perkins of the Boston Juvenile Court, "Which individual? . . . The individual who breaks the law in reckless disregard of other people's safety, or the individual who is behaving himself as he should and is entitled to protection?" Those who have no respect for the Constitution or the rights of others immediately run to the Constitution, and to the laws they break, as soon as they are brought to account for their criminal activities.

Other unrealistic standards are applied in making it possible for the criminal to avoid the legal consequences of his acts Competent physical evidence definitely establishing that the defendant committed a serious crime may be supplemented with a detailed admission of guilt. After the physical evidence has been suppressed on technical grounds the confession may be rejected because of the alleged presence of mental coercion. The culprit may still be released, without restriction or supervision, to prey on the innocent again.

There are elements of coercion in almost all confessions. The criminal may be confronted with such a preponderance of evidence that he may consider further denials of participation in a crime as useless. If the investigating officer has spent a few hours pointing out to the criminal the futility of denying his guilt in the face of the evidence against him, the courts may hold that the criminal was subjected to "mental coercion" and refuse to admit the statement in evidence.

Although a confession freely given affords highly credible testimony, the truth of which may be easily verified, some courts have leaned over backwards in rejecting confessions on the ground of real or imaginary mental coercion. A few judges have indicated that all confessions should be viewed with suspicion and summarily rejected as evidence. Such an attitude ignores reality. Any law enforcement officer of experience has handled hundreds of cases in which confessions have been free and voluntary. On many occasions the culprit will fully confess upon the arrival of the arresting officer. He apparently desires to ease his overburdened conscience by fully admitting his guilt. Yet only a few hours later he may completely deny the voluntary nature of his confession and become imbued with a burning desire to avoid the clutches of the law.

It is ironical that frequently the self-serving statement of a criminal that his confession was not voluntarily made will be given much more credence than any contrary assertion by the law enforcement officer. In a recent dissenting United States Supreme Court opinion, Mr. Justice Jackson spoke out against this unwarranted and anomalous, yet commonplace, tendency. He said, "We know that police standards often leave much to be desired, but we are not ready to believe that the democratic process brings to office men generally less believable than the average of those accused of crime."

In this same case the United States Supreme Court reversed the conviction of a confessed murderer. It was held that even if the defendant did make a confession, it was not voluntary. The holding of the defendant incommunicado during many hours of interrogation without sleep or rest was inherently coercive and violated the " due process" clause of the Constitution. To this opinion Mr. Justice Jackson replied that custody and examination for one hour are inherently coercive and so is arrest itself or detention. Fie maintained that, despite the inherent coerciveness, "the confession, when made, was deliberate, free and voluntary in the sense in which that term is used in criminal law."

 

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IN 1943 the United States Supreme Court, in McNabb v. United States, rendered a decision which, in effect, held that voluntary confessions of a crime made while the accused was in custody prior to arraignment before a magistrate were inadmissible. It was' held that the officers failed to arraign the defendant immediately before a magistrate in conformity with the statute that required prompt arraignment.

A few months later the convictions of six individuals found guilty of treason in a Chicago Federal Court were reversed on the basis of the McNabb decision. In this opinion the United States Circuit Court of Appeals for the Seventh Circuit said: "With all due deference to the Supreme Court and especially to Mr. Justice Felix Frankfurter, the author of those opinions, we are constrained to state that we entertain grave doubts that this recently promulgated rule of evidence will result in any improvement to the administration of justice.

“As pointed out by Mr. Justice Reed in his dissent to the McNabb opinion ‘a frank and free confession of crime by the culprit affords testimony of the highest credibility and of a character which may be verified easily.' In our judgment this new rule will inure to the benefit of the guilty rather than the innocent, and will seriously impair the work of law enforcement officers. The Supreme Court, however, has clearly spoken and we must accept its pronouncement."

Following the McNabb decision, efforts were made to incorporate the substance of that decision into proposed rules of criminal procedure Federal judges, United States district attorneys, and other Federal law enforcement officials protested, and at the American Bar Association convention in 1943 the proposed rule was rejected. A bill is now pending in Congress to remove the effect of the McNabb decision.

In Illinois, however, at the 1943 session of the General Assembly, a bill was introduced and passed that would have excluded from evidence any purported voluntary confession unless the defendant admitted to a judge, justice of the peace, or magistrate, within twenty-four hours from the time the statement or admission was made, that it was given voluntarily. This is another indication of the modern trend to go to extreme lengths to create artificial and unrealistic barriers to prevent a proper diagnosis. Governor Dwight Green of Illinois vetoed the bill after it had passed both houses. Had he not done so, a preposterous situation would have prevailed as the law of Illinois. A person guilty of a crime could have made a complete confession without any interrogation whatever. Yet if, a few hours or even minutes later, upon arraignment, he refused to admit his confession was voluntary. It could never be used in court against him.

There is no more logic in making the admission of a confession depend solely upon the self-serving statement of a defendant than there would be in a requirement to admit any confession in evidence solely on the representation of its voluntary nature by a prosecutor or law enforcement officer. Any attempt to enact the latter provision into law would be denounced as an undemocratic process and tyrannical. The objections would be fully justified.

Our legislators and courts must remember that overemphasis of the' rights of criminals, with the resultant disregard for the safety of society as a whole, can with equal justification be criticized as undemocratic and tyrannical. It is claimed that the tendency of courts and legislators to exclude competent and relevant evidence on technical grounds is the inevitable result of lawlessness on the part of the police. Such reasoning is without justification. Two wrongs do not make a right. Whenever the police engage in lawless activity, appropriate action can and should be taken against them. But to turn enemies of society loose to prey on the innocent as a means of punishing the police is a perverted notion of justice.

It might be possible to understand the attitude which has given birth to this grotesque system of criminal jurisprudence if those who have professed so much concern over the alleged rights of antisocial persons and over wrongdoing by the police evidenced equal anxiety over the abuses engaged in by the professional defenders of the law violator. There is a significant silence against commonplace practices designed to defeat justice that are engaged in on behalf of the criminal day after day in our courts.

Apparently any device or subterfuge used to free a person accused of a crime is considered part and parcel of the criminal's natural rights. Witnesses against the accused are intimidated or mysteriously disappear. Dilatory tactics are pursued until the witnesses are worn out, disgusted, and made hostile. These practices are customary. A prominent sociologist, Dr. William E. Cole, recently wrote: "So common are delays in our courts that it is almost a folk expression among criminal lawyers to remark that 'one good delay in hand is worth two perjured witnesses in prospect." Defense counsel frequently look upon concocted alibis and phony alibi witnesses as part of their stock in trade. Extraneous issues intended to confuse the jury are not uncommon.

Witnesses for the state who give testimony damaging to the accused are sometimes subjected to tactics on the part of defense counsel that the same lawyer would denounce as "third degree" if employed in the pretrial interrogation of the defendant. If the identical methods were permitted on the part of the prosecutor in the cross-examination of the man on trial, they would be considered prejudicial and constitute reversible error. Recently a police officer found it necessary to interrupt the ruthless and unfair cross-examination to which he was being subjected by the defense counsel with this plea to the court: "Your Honor, if I am being placed on trial I would like to employ a lawyer to defend me."

Opening statements for the defense are frequently made that are intended to prejudice the jury against the state without making any subsequent effort whatever to prove them. Emotional appeals having no bearing on the guilt or innocence of the defendant are among the many tricks employed to turn dangerous criminals loose on the streets. If any of the numerous devices succeeds in defeating justice, the state is through. It has no right of appeal. With the defendant, conditions are entirely different. The conviction is just the first phase of the proceeding.

There must be a distinction between the rights of an accused person and license. The rights of a defendant include a fair trial with a presumption of innocence until guilt is established beyond a reasonable doubt. An accused person does not have a right to manufactured alibis, nor does he have a right to have the people's witnesses intimidated or bribed. He has a right to a fair and impartial jury. He does not have a right to a jury fixed in his behalf. The defendant has a right to prevent the prosecutor or witnesses from making statements that are prejudicial against him. He does not have a right to have prejudicial statements made in his behalf. The defendant has the right to have the truth brought out at a trial. He has the right to the admission in evidence of all competent testimony which tends to establish his innocence. He does not have a right to the exclusion of relevant and competent evidence that establishes his guilt. And he does not have a right to have all witnesses who testify against him harassed, humiliated, and confused.

The Constitution prohibits unreasonable searches and seizures. The accused has a right to have the word "unreasonable" interpreted in its ordinary meaning. He is not entitled to have a reasonable search declared unreasonable through legal theorizing that is absurd when considered in the light of reality. The criminal has a right to protection from third-degree tactics and inhumane treatment when he is in custody, and he cannot be forced to incriminate himself. He does not have a right to the exclusion from evidence, on some technical ground that is totally unrealistic, of a confession made freely and frankly.

The person on trial is entitled to a fair administration of criminal justice. But that does not mean the one-sided system of criminal jurisprudence which we are gradually approaching. And with almost all authorities predicting an unprecedented crime wave following the war, we had better take inventory as to how well we are equipped to meet it.

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Virgil W. Peterson was admitted to the Illinois bar in 1930. For twelve years he was a special agent of the Federal Bureau of Investigation and during seven of those years was in charge of the FBI offices in Milwaukee, St. Louis, and Boston. Since April 1942, he has been Operating Director of the Chicago Crime Commission.

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