255. Historical Fatuity Watch
If Judge James Earl Major had known when to quit, he wouldn't be remembered in this blog. The time was 1943 and Major, who had struggled through an intermittently-successful career as a member of Congress (twice getting defeated for reelection, but each time coming back to win the rematch two years later), was enjoying the serenity of his new position on the Seventh Circuit Court of Appeals in Chicago.
He was one of a panel of three judges selected to decide the appeal of a group of German-Americans who had provided shelter and material assistance to family members from the Old Country. That doesn't sound like a crime, does it? - except that those particular family members had made the Atlantic crossing in a U-Boat and had landed by night on American beaches. They brought along crates of explosives.
The other two judges on the panel have claims to our attention beyond Major's minor fame. One was Sherman Minton, later a Supreme Court justice. The other was Otto Kerner, Sr., a Cook County pol and father of the Illinois Governor and chairman of the Kerner Commission (appointed to investigate the 1967 riots), who resigned his governorship to follow Dad onto the Seventh Circuit, eventually ending his distinguished career in federal prison. Given his Dad's prominence in Cook County judicial circles, it seems reasonable to suppose he should have wound up there, too.
The saboteurs themselves were tried by military tribunal, an incident that's attracted renewed attention lately. But the aiders and abettors got civilian trials, and it fell to Judge Major to write the opinion overturning their convictions. He cranked up the rhet-o-matic, employing the stemwinding style that was already anachronistic then but is still favored by judges today:
At this point it seems appropriate to emphasize that no principle is more firmly embodied in our system of jurisprudence than that a person shall not be deprived of life or liberty except upon a fair and impartial ascertainment of his guilt. Of the many rights guaranteed to the people of this Republic, there is none more sacred than that of trial by jury. Such right comprehends a fair determination free from passion or prejudice, of the issues involved. The right is all-inclusive; it embraces every class and type of person. Those for whom we have contempt or even hatred are equally entitled to its benefit. It will be a sad day for our system of government if the time should come when any person, whoever he may be, is deprived of this fundamental safeguard. No more important responsibility rests upon courts than its preservation unimpaired. [136 F.2d 661.]
So far so conventional. You can buy this kind of stuff by the case down at the Judges Shop. The final exam at the National Judicial College (located in Reno, in tribute to that city's founding role in modern American jurisprudence), requires students to extemporize on these themes for fifteen minutes while submerged upside down.
Major's basic point - that the purpose of a trial isn't to arrive at the right result, or even necessarily a justified one, but only to reach whatever result by the approved route - is the guiding principle of all criminal law in America today. So long as the pipe meets specs, it doesn't matter what sludge moves through it.
But then Judge Major got carried away - or, rather, carried himself away to the Judicial Valhalla reserved for the "vacuously, smugly, and unconsciously foolish." He just couldn't stop himself from adding:
How wasted is American blood now being spilled in all parts of the world if we at home are unwilling or unable to accord every person charged with crime a trial in conformity with this constitutional requirement.
Fighting Nazi Germany, fighting Imperial Japan, fighting Fascist Italy - "how wasted", if federal appellate judges don't exercise their power to veto the verdicts of juries!
As Judges Major, Kerner and Minton went into print with those words on June 29, 1943, Auschwitz's fourth gas chamber was just four days old. Americans were wading ashore in New Guinea and the Solomon Islands. Patton and Montgomery were putting final touches on the plan to invade Sicily. D-Day was still a year away.
But at least the GIs knew the lives they bled out onto the beaches hadn't been lost in vain. Each dead soldier was doing his small bit to ensure that judges of the Seventh Circuit could vacate factually-accurate verdicts. How that thought must have comforted many a boy in his final moments!
Sunday, April 8, 2007 at 08:32PM in Fatuity Watch
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