149. A thumb on the scales of justice
One of the most-cited constitutional decisions of all time is Johnson v. Zerbst. Westlaw counts 14,048 documents citing to it, and that doesn't includes the tens of thousands of unpublished little opinions that never made it into anyone's database. Its claim to fame is that it established the constitutional principle that "that there is a strong presumption against waiver" of constitutional rights, to use Justice Blackmun's words.
Oddly enough, Johnson v. Zerbst didn't actually say anything about the strength of the presumption. Justice Black's opinion for the Court contained this famous passage:
It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of fundamental rights."
This actually states two inconsistent rules, although I don't think Justice Black realized he was contradicting himself. The second (waiver is not be presumed) is a declaration of judicial neutrality, but the first (judges presume that the defendant didn't waive his constitutional rights) is a declaration of bias. In practice the first rule instantly swallowed the second, because a judge who keeps an open mind obeys the second rule but violates the first.
A legal "presumption" is solemn make-believe. A judge indulging a presumption (and "indulge" is the favored verb) pretends she has heard evidence when she hasn't. A legal presumption is a thumb on the scales of justice, a way to achieve a desired result in the absence of an evidentiary basis for doing so. The most famous presumption is that of innocence.
In modern America, virtually everything a police officer, prosecutor or state criminal judge does implicates one or another of the defendant's constitutional rights. Most of these rights weren't recognized as constitutional in 1938, when Black was writing. Today it's nearly impossible for a police officer to obtain evidence from a suspect without a waiver of rights denominated "constitutional." So not only did one of Black's rules immediately swallow the other, but the survivor quickly burst from its cage. It has thrived out of doors, like a feral pig grown to State Fair-ribbon size.
Presuming that a confessing suspect didn't waive his fifth amendment right against self-incrimination, or that the drug courier who opened the trunk of the rental car didn't waive her fourth amendment right against unreasonable searches and seizures, is the same as presuming that the cops did something wrong. They shouldn't have gathered that evidence.
The lesson is that a modern criminal judge is constitutionally required to approach every criminal case with two biases: that the defendant is innocent of the crime, and that the police are guilty of violating the defendant's rights.
But why should the courts approach questions of waiver with a biased outlook? The glib answer is: to protect the rights guaranteed by the Constitution. But that answer assumes that judges would prove inadequate to the task of protecting those rights if they approached the task with open minds -- and if so, they really shouldn't be judges at all.
Black himself didn't give any reason for his declaration of bias. The Court's political situation in 1938 offers one possible reason for his reticence. In reaction to the excesses of the reactionary Four Horsemen who had so enthusiastically wielded their veto pens against New Deal legislation, making up constitutional doctrines as necessary to justify their political prejudices, Roosevelt-appointed justices such as Black felt some compulsion to pretend they took an entirely different approach to their duties.
If Black had included a defense of the dual doctrines that leapt, Athena-like, from his brow, he would have been tipping off the Court's critics that he was just making the stuff up, condemning actions of the democratically-elected branches of government just because he didn't like them. And so, in support of his two contradictory propositions, he cited three cases, so he could give the impression that he was actually just offering a pithy summation of long-established authority.
None of the three cases, tellingly, was even a criminal case. Black didn't cite them for their holdings, which had no bearing on the actual issues before the Court. He cited them for stray words and phrases found embedded in their text - for things they said but didn't mean in the way Black pretended to understand them.
One, Aetna Insurance Co. v. Kennedy, involved the interpretation of a fire insurance policy. The Third Circuit had held that by asking the trial court to grant it a directed verdict (a routine step in all modern trials), the parties waived their right to trial by jury. To a modern lawyer, that holding was simply ludicrous, and the Supreme Court flipped it.
The second case cited by Justice Black, Hodges v. Easton, was a 19th-century dispute about the ownership of a silo full of wheat. The judge submitted special interrogatories (that is, specific questions in writing) to the jury, but the jury's answers to the questions didn't fully settle the question of ownership. The judge then filled in the gaps on his own. That, the Supreme Court held, the judge couldn't do. If a jury was going to decide the case, it had to decide the whole thing.
The third case, Ohio Bell Telephone Co. v. Public Utilities Commission, was a rate case in which the state commission, without notice to the phone company, chose "to wander afield and fix the composite value of the system without reference to any evidence, upon proofs drawn from the clouds." That sort of thing, Justice Cardozo wrote, really wasn't quite right.
None of the three cited cases had anything remotely to do with the situation presented by Johnson v. Zerbst, two Marines caught passing funny money off base who were arraigned, tried and sentenced in one whirlwind day, without the assistance of their lawyer who had taken their $100 and then fired them as clients because they wouldn't take his advice to plead guilty. (More facts of the case can be found at 13 F.Supp. 253 and 92 F.2d 748.) But all of them contained asides that had something to do with the waiver of the right to jury trial or (in the Ohio rate case) to a fair hearing, phrases Black stretched to cover the right to counsel.
Justice Black was himself wandering far afield, drawing his precedential authority from the clouds, when he press-ganged the three civil cases into service as authority for the proper construction of the sixth amendment right to counsel. Nearly 70 years later, we live with the consequences.
Tuesday, August 15, 2006 at 10:20PM in Faux history, Historical crimes, Individual justices, Not-false
Reader Comments (4)
While we pay lip service the first presumption you describe, I have yet to encounter any judge who is even willing to think about entertaining the second. Moreover, I've never seen a case that says anything of the kind. Aren't you stretching a bit?
I understand your criticism of the roots of the Johnson rule, but is there really a better rule that could be put into practice?
Part of the point I wanted to make was that the current presumption entered our system through the back door. And it really doesn't have a lot to recommend it other than its familiarity.