Mob Justice and Television
As no other medium could, television showed the American public many harsh truths about organized crime and its connections with government. The lesson went home to millions of Americans. But as THURMAN ARNOLD is quick to perceive, such a spectacle in the future could completely invalidate the due process of law. Mr. Arnold was Professor of Law at Yale from 1931 to 1938; he was Assistant Attorney General of the United States from 1938 to 1943, and he is now practicing law in Washington.
by THURMAN ARNOLD
1
THE production put on by the Kefauver Committee on crime is unquestionably the best show of the year. My introduction to it was during the examination of Mr. Costello. I missed an entire morning at the office, fascinated and at the same time appalled by the dramatic quality of this new form of public inquisition.
Mr. Costello was not visible. Instead the camera focused on his hands, which constantly moved and twitched in a decidedly guilty way. It was apparent that the committee did not regard Mr. Costello as a pillar of the church or as otherwise an object of hero worship. They were at the moment going back to his career during prohibition. Counsel for the committee would read selected answers made by Costello at a previous examination and ask him if he didn’t remember so answering. It was an effective dramatic device, particularly when the camera would switch from the stern and righteous faces of the committee and its counsel to the guilty twitching hands of the gambler. It soon appeared that Costello had started as a bootlegger. It became equally apparent that the questions were not for the purpose of finding out anything. The committee already had the information. And so Mr. Costello’s attorney thought he had a point. He objected on the ground that all the committee was doing was castigating his client in public for misdeeds in the dim and distant past. He implied that an investigation into the violations of the prohibition laws had become somewhat dated since the repeal of that great experiment. But the presiding Senator had the answer. He observed that if Mr. Costello had been engaged in a conspiracy to violate the prohibition laws at the time of his naturalization it might be a present ground for revoking his citizenship as fraudulently obtained. Counsel agreed, and Mr. Costello’s hands twitched violently. The possibility was considered sufficient to establish the relevancy of going back twenty years. The camera then switched to Mr. Costello’s attorney, whose face registered complete frustration as effectively as I have ever seen it done by any professional actor. In fact, the entire cast was good. Everybody was having fun except Mr. Costello, and certainly no one would suggest that gamblers deserve to be comfortable in a land where gambling is quite often and under certain circumstances illegal.
Nor, as is apparent from a later incident, are persons who associate with unsavory characters entitled to consideration. Mr. Crane testified that he gave Mayor O’Dwyer $10,000 in cash on a front porch in the dark. Ambassador O’Dwyer, frantically flying up from Mexico, denied it. The publicly announced verdict of the committee was that one of the two had perjured himself. This verdict of guilt in the alternative against a public figure is a new weapon in the arsenal of law enforcement for which I predict a bright future. It gets two birds with one shot, and at the same time is so simple to operate that even a child can handle it without danger to himself.
Captious critics might, of course, argue that Mayor O’Dwyer’s official conduct in New York and Governor Dewey’s alleged indifference to Saratoga gambling were, under our federal system, none of the business of Congress. But if so New York has an easy answer. If Senators investigate State officials over television, then let state legislators use the same medium to investigate the Senators whenever they catch them in their state. Governor Dewey requested the committee to come to Albany and learn about crime from him. They declined. Immediately thereafter they should have been hauled to Albany under subpoena for a compulsory course in the problem of crime. It makes a better game if the opposing side occasionally gets the ball.
Bishop Cannon must be turning in his grave with disappointment because he lived before criminal inquisition by television. He had to contend with the grand jury system, a relic of the days when it was thought that investigations of crime had to be conducted in secret. The notion was that even suspicious and unsavory characters should not be publicly accused by a responsible tribunal unless there was enough evidence to support an indictment. And so the bootleggers who supplied liquor to respectable but wayward citizens escaped. If Senators who followed the inspiration of the good Bishop could have compelled the convivial elements of our various cities either to tell over television the names of their bootleggers or to decline on the ground of self-incrimination, they would have cleaned up every country club in the land.
Today the utility of this device in getting rid of subversive ideas on the screen, in the theater, on college campuses, is as yet unexplored. Anyone who has been on television knows the camera fright involved in a first appearance. College professors are shy and retiring folk. When their opinions are inquired into before 20 million listeners by an investigator experienced and skilled in television showmanship, millions of American housewives are going to enjoy the entrancing spectacle of seeing them go to pieces before their eyes with twitching hands, nervous voices, hesitating answers, and similar evidences of guilt which made the ancient trial by ordeal the effective instrument that it was.
Unfortunately Senator McCarthy has not yet attained the chairmanship of an investigating committee. He can now go on television himself but he can’t examine unwilling witnesses there. This is like trying to conduct a fox hunt without a live fox. But the process of time and seniority will soon remove that handicap, and when the Senator does put on his show I’ll lay a substantial wager with my bookie (provided the Kefauver Committee has not deported him) that McCarthy will make the efforts of the present committee look like the work of inept amateurs.
Trials in our courts of justice are public but the audience is so limited that the ordinary housewife can’t see the show because, as we go to press, cameras are still banned. I suggest that if this rule can’t be changed, all the judge has to do is to hold a trial like that of Alger Hiss in the Yankee Stadium. By this method, while the judge could not get television rights he would still have quite a crowd in any cause célèbre. And since judges do not have to run for office as often as Senators, this minor disadvantage creates no real injustice.
The beauty of criminal investigation by television is that it permits us to preserve intact our traditional principle against self-incrimination and at the same time prevents that privilege from getting in our way. No respectable public figure would dare invoke it over a coaxial cable, so that it is a rare case in which a verdict of guilty in the alternative between the accuser and the accused cannot be obtained against any prominent individual.
These are the outstanding virtues of this new technique for public hearings. Others might be added. This kind of presentation makes the problems of government simple enough to be understood by readers of comic strips. It eliminates the bores who are unable to discuss a public issue as a matter of black and white. When ex-Mayor O’Dwyer was testifying about the problem of crime from his vast experience as a prosecutor and a mayor, I am informed the stations were flooded with calls to get him off and put Virginia Hill back on. In my view these people had a point. How can anyone enjoy a good detective story when his train of thought is constantly interrupted by tiresome undramatic interpolation ?
Yet in spite of these many and obvious advantages, I am prepared to argue that the entire show should be taken off the road and that hereafter no investigator should ever be permitted to use the long arm of a government subpoena to force any witness, however unsavory, to confess (or discuss) his sins before 20 million people. And I would maintain this view even if I were convinced that it meant the continuance of the horrid gambling at Saratoga that has shocked the conscience of the civilized world. And if the great television audience protested I would have Arthur Godfrey appear and read to them what Moses said to the children of Israel when they began the worship of the golden calf: “Ye have sinned a great sin.” Exodus 32, 30. I would have him explain that justice is even more important than the enforcement of sumptuary laws.
2
THE thing which I believe is overlooked by those who argue that television is a legitimate extension of our traditional public hearing is this. The reason that a criminal trial is public is not to obtain the maximum publicity for judges or prosecutors. It was not intended to make a cause célèbre out of criminal prosecutions. It is public for the protection of the accused against star-chamber methods, and for the protection of the public against secret deals and alliances. The notion that since a criminal trial is usually entertaining it should be so staged as to provide the greatest entertainment to the greatest number is not an American tradition. A criminal hearing should not be a star chamber. It is equally important that it should not be a circus.
I recognize that a legislative investigation of crime, such as the Kefauver Committee, is not strictly speaking a criminal proceeding. But anyone viewing the proceedings in New York will understand how easily it can be turned into one and how great the temptation is to do so. If the committee succeeds in arousing the American housewife, it is inevitable that there will be a counterreaction and the American housewife will arouse the committee. If this mutual excitement becomes a common incident to the legislative hearing, blind forces will be unleashed which I do not like to contemplate. When a Congressional hearing becomes through the osmosis of television more of a trial than an attempt to obtain information for legislative action, the punishment may be as severe as fine or imprisonment. For the screen actor it may be the loss of his career. For a college professor it may be the end of his job. The fact that those incidents can happen in a hearing even without television does not in my view justify magnifying them a thousand times in order to entertain housewives.
But apart from the injustice to witnesses, there is the effect on the legislative committee itself. It tends to degrade the subject matter of the hearings. The crucial nonmilitary problems before us concern inflation and the economics of mobilization. But these are dull subjects. Their Hooper rating would be nil. The sure-fire topics are sin, sex, and subversion, not presented abstractly but pepped up with live witnesses. Sex presents its difficulties under our present mores. But properly buttered up as an educational show there is no reason why an investigation of vice in our high schools would not be accepted. After all, are we trying to protect the American home or aren’t we?
My trouble here is not a moral one. It is only that the really important investigations cannot compete with these circuses. As a result, at a time of national peril we see the time of our most important Senators engaged in arousing the public on dangers which the historian is going to regard as of the utmost triviality. Indeed, if a sensible list of priorities for the expenditure of Congressional effort and for the education of the public were made today and then turned upside down with the least important thing put first, we would have the present situation. For this distortion of government objectives, investigation by television will bear an increasing responsibility.
And then there is the degrading effect of an audience of 20 million on the manner in which the material is presented. It may be that fox hunts began as an honest attempt to exterminate these predatory animals. I do not think they are that today — at least not the hunts I have seen. And I had an uneasy suspicion, as I watched the Senate crime hearing, that the same metamorphosis was taking place there. I could be wrong, but it did not seem to me that putting an unwilling witness under the strain of a hot lamp and an audience of 20 million was any way of obtaining objective information to be used in drafting legislation on a national problem. And why was Mr. Costello asked to repeat before this vast audience information about his activities of twenty years ago which the committee already had ?
I do not charge the Kefauver Committee with intolerance or vindictiveness in the conduct of the hearings. Senators Kefauver and Tobey, who played the principal roles, have long been distinguished for their fairness and generally liberal attitudes. But the requirements of the television stage on which they have been appearing make an objective investigation almost impossible. It is too apt to become dull, and if it does it will go off the air. And what will happen when intolerant men take over the management is not comfortable to contemplate.
The vice of this television proceeding is not in the way this particular committee conducted it, but in the proceeding itself. Any tribunal which takes on the trappings and aspects of a judicial hearing, particularly where there is compulsory examination of witnesses, must conform to our judicial traditions, or sooner or later it will develop into a monstrosity that demands reform. Those traditions are:-
1. It must be public and at the same time not a device for publicity.
2. It must protect the innocent even at the cost of letting the guilty escape.
Television has no place in such a picture. For witnesses it is an ordeal not unlike the third degree. On those who sit as judges it imposes the demoralizing necessity of also being actors. For the accused it offers no protection whatever. Former Federal Judge Rifkind recently said that our judicial procedure, “forged through the generations to the single end that issues shall be impartially determined on relevant evidence alone, works fairly well in all cases but one — the celebrated cause. As soon as the cause célèbre comes in, the judges and lawyers no longer enjoy a monopoly. They have a partner in the enterprise, and that partner is the press.” I would add that when television is utilized in investigations or trials, causes célèbres will increase like guinea pigs and still another partner will be added — to wit, the mob.