Joel Jacobsen

Caminito, Bonino and Noia all confessed to murdering Murray Hameroff.  They were tried together, and the jury found their confessions voluntary.  Noia chose not to appeal.  But after 14 years, Caminito got a federal judge to vacate his conviction, based on the judge's finding that the police acted "satanically" by questioning him "almost continuously" for 27 hours, leaving him alone in an unheated cell for 7 of them.  (See post 338.)

That last bit sounds like I'm being sarcastic, doesn't it?  Check it out: 222 F.2d at 699-701.  Caminito testified that he and Noia got together in the cells (this must have been during the "almost" rather than the "continuously" part) and agreed on a story to tell the cops.  (At 701, if you're following along.) 

After all, isn't that exactly what you would do if you were desperate for the torture to stop - sit down with your friend, talk it over, and make sure your confessions meshed in the details?  It's part of the ludicrousness of Jerome Frank that he flung around psychoanalytic lingo without first obtaining any concept of human psychology.

(His embrace of doctrinaire Freudianism, mid-50s incarnation, has this in common with his denunciation of the Brooklyn cops: both rest on the idea that other people are helpless puppets.)

Anyway, once Caminito got his conviction overturned, his buddy Bonino asked, "What about me?"  Four judges of the N.Y. Court of Appeals heaved a big sigh and said: "Since the United States Court of Appeals, Second Circuit, has held that the writ of habeas corpus must issue to his codefendant Caminito, because his confessions were inadmissible, the defendant Bonino should, in the interest of justice, receive a new trial with his (Bonino's) confessions excluded."  135 N.E.2d at 52.

Three judges, however, weren't so sure: "As to Caminito, the United States Court of Appeals drew factual conclusions widely different from those made by the jury and accepted by us as having reasonable basis in the record.  In reversing now as to Bonino, we are assuming, and acting on the assumption, that the Federal courts would similarly revise our interpretation of the record.  In our view, we have no right or duty to do so."  135 N.E.2d at 754 (Desmond, J., dissenting).

Okay, two down.  That left only Charles Noia, who confessed, was convicted, and never appealed.  A New York trial judge held: "That fraud and misrepresentation were employed to secure the alleged confession which is the only substantial evidence in this case has been authoritatively established in the United States Court's findings, in ruling on the Caminito writ of habeas corpus."  158 N.Y.S.2d at 686.

Of course, Jerome Frank said that Caminito's confession was involuntary, being the product of "brutalitarian" tactics (which isn't exactly the same as fraud - would you buy a used car from this man?).  He didn't talk about Noia's.  But the judge was right about the "authoritatively established" part.  It didn't matter whether the federal court was right, or even rational, because it had the authority, and that's the important thing in the legal system.

The state trial court judge thought it was intolerable to keep Noia in prison on the basis of "a manifestly unlawful conviction".  However, the Appellate Division pointed out that the trial judge's decision was, itself, manifestly unlawful: "No appeal was taken.  This being so, the court was without authority to grant the application."  163 N.Y.S.2d at 797.  The Court of Appeals affirmed, agreeing that as Noia had waived his right to appellate review, his only recourse was to ask the Governor for clemency.  148 N.E.2d at 142.

Naturally, Noia turned next to the federal courts.  The district judge dismissed his petition for habeas corpus (183 F.Supp. 222) but Jerome Frank's old court, the Second Circuit, reversed on a 2-1 vote.

When the majority ordered the writ of habeas corpus to be issued, ordering Noia's release from prison, it was acting on the authority of a statute that said:  "An 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 ..." 

How to interpret that?  It depends on what the meaning of "shall not" is.

The dissenting judge - Leonard P. Moore, who succeeded to Frank's seat upon the latter's death - thought it meant something along the lines of "shall not", but he was voted down.  He characterized the majority opinion this way:

The doctrine now enunciated by the majority is that whenever a group of appellate judges wish to depart from previously settled principles, they may find that 'extraordinary circumstances' exist and that such a finding entitled them to ignore on an ad hoc basis all otherwise applicable principles.  (300 F.2d at 366.)

That's not unstrong stuff. 

Anyway, in January, 1963, 22 years after Murray Hameroff (who?) breathed his last, Charles Noia's case was argued for two days in the United States Supreme Court.  Really.  That's what the opinion says: "Argued Jan. 7 and 8, 1963."

It was a simple case, raising just a single issue: if a state court affirms a state conviction on strictly state law grounds, can federal judges ignore the state court's ruling a re-decide the case on federal law grounds?   There was a catch, though: the question was to be answered by federal judges.

The result of all that palaver was, I think, one of the Supreme Court's finest - in the sense of "most characteristic" - moments.   Justice Brennan wrote the majority opinion explaining that when Congress said federal courts "shall not" issue the writ when the petitioner had not pursued his state remedies, it meant "may." 

Brennan reasoned that, because the requirement that a state prisoner first present his federal claims to state court was originally developed in the federal courts as a matter of professional courtesy, therefore when Congress enacted a statute that flatly prohibited federal courts to issue the writ in any other circumstance, it didn't prohibit federal courts from issuing the writ in other circumstances.

It sounds like I'm being sarcastic again, doesn't it?  372 U.S. at 419-20.  And reiterated at 372 U.S. at 434-35.

To support his conclusion that night was day, Brennan relied on the Reviser's Notes to 28 U.S.C. § 2254, which in turn relied on Ex parte Hawk, 321 U.S. 114 (1944).   A few pages later, however, when considering a different point (whether a prisoner should be required to seek certiorari review of his state conviction), Brennan wrote:

It is also true that Ex parte Hawk, 321 U.S. 114, a decision cited in the Reviser's Notes to 2254, intimated in dictum that exhaustion might comprehend seeking certiorari here.  321 U.S., at 116-117.  But that passing reference cannot be exalted into an attribution to Congress of a design patently belied by the unequivocal statutory language.  

Unfortunately, Brennan neglected to explain to the rest of us how to distinguish between those situations in which such exaltation was appropriate and those in which it was not.

Brennan, who was a master of sentimental 19th-century prose style ("precious" was one of his favorite adjectives), prettied up his wine-into-water miracle with lots of flowery words, like these:  "We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in the Anglo-American jurisprudence: 'the most celebrated writ in the English law.'" (That last is, to my mind, rather like describing Delaware as the fairest of the states east of Maryland.)  

After quoting fellow Supreme Court justices that "'there is no higher duty than to maintain it undisturbed'" (none?), Brennan reached the high-water mark of habeas hyperbole:

These are not extravagant expressions.  Behind them may be discerned the unceasing contest between personal liberty and government oppression.  It is not accident that habeas corpus has time and again played a central role in national crises, wherein the claims of order and of liberty clash most acutely, not only in England in the seventeenth century, but also in America from our very beginnings, and today.

Note the only two choices: personal liberty or government oppression.  Which side are you on? 

Before you answer, recall that the Supreme Court is the government, and six of its members had just declared themselves free to disregard a statute enacted by Congress.  "Oppression," in Brennan's usage, was democracy when it interfered with the powers of government, specifically that of the courts.  The "personal liberty" he was talking about was that of federal judges. 

By the way, in case you'd forgotten about the "central role" habeas corpus has played in our national crises, Brennan helpfully dropped a footnote to remind us that after the Civil War was over, the Supreme Court ruled that during wartime civilians could only sometimes be subjected to martial law.  So next time we have a Civil War, we'll know.

Also, the Court once considered the case of men incarcerated for involvement in Aaron Burr's fantastic conspiracies of imperial dominion.  And during World War II the Court denied habeas petitions filed by condemned saboteurs who had been secretly landed by German submarines on American beaches. 

Brennan's final example was the Court's ruling, in the final months of World War II, that a Japanese-American woman who had succeeded in proving her loyalty could, after three years' incarceration, no longer be held indefinitely in a Utah camp (although Justice Douglas's opinion for the Court sidestepped the separate question whether she would be allowed to return to her California home).

Far from being "central" to the Second World War, the Civil War, and the run-up to the War of 1812, these legal disputes hardly even qualify as marginal.  It would be insulting the memory of Justice Brennan to suggest he believed a word of what he wrote.

Six years later he confirmed it was all eyewash.