Where to find more of Andrew Ocean’s writings:


Posted in Uncategorized | Leave a comment

John McLean, Associate Supreme Court Justice

John McLean was a member of the Supreme Court from 1829 through 1861.[1]  John McLean was one of two Justices who dissented to the Dred Scott decision of 1857.[2]  Arguably the Dred Scott decision was the spark that lit the fuse that exploded the American Civil War.[3]  Whether John McLean showed courage or just political adroitness is a matter of conjecture.[4]

John McLean was born in Morris County, N.J., on March 11, 1785, to Fergus McLean, a Scotch-Irish Presbyterian weaver turned farmer, and Sophia Blackford McLean.  The family moved several times with stops in western Virginia and Kentucky before settling in Warren County, Ohio, about forty miles from Cincinnati, in 1797.  In this frontier atmosphere McLean managed to get an irregular but sound education.  His legal education was gained, starting in 1804, by simultaneously serving as apprentice to the clerk of the Hamilton County Court of Common Pleas and reading law with Arthur St. Clair, Jr., for a two-year period.  In 1807 he founded a Jeffersonian weekly, Western Star, at Lebanon and married Rebecca Edwards.  They had four daughters and three sons.[5]

McLean began a political career in 1812.  Voters in Cincinnati elected McLean to the United States House of Representatives.  In 1814, they reelected him to his seat without opposition.  Before the end of his second term, the Ohio legislature appointed McLean as a justice of the Ohio Supreme Court.[6]  In a preview of his opinion about slavery in his US Supreme Court opinion, McLean’s Ohio Supreme Court decision in the case The State of Ohio v. Thomas D. Carneal (1817) (full citation not available).  Richard Lunsford was an African slave who brought a habeas corpus action through the state to secure his freedom from slavery from the administrator of the estate of his former owner, Thomas Carneal.  The Ohio Constitution of 1802 forbade slavery in the state, and at issue was whether slaves owned by a man traveling in Ohio became free once they traveled to Ohio and whether a slave who resided in Kentucky could be sent to work in Ohio without gaining his freedom.  The Court ruled that since the estate administrator sold Lunsford to James Riddle, who had him work in Cincinnati as a slave for eight to ten days at a time, his slave owner forfeited his right to ownership.  McLean, writing the majority opinion, expressed his personal distaste for slavery:

“Some important questions have been raised in the discussion of this cause, which are not necessarily involved in this decision.  The abstract principle of slavery is not presented for deliberation in this case.  Were it proper to consider it, the Court, as well as from the principles recognized by our Constitution and Laws, could not hesitate in declaring that SLAVERY (emphasis in original), except for the punishment of crimes, is an infringement upon the sacred rights of man: Rights, which he derives from his Creator, and which are inalienable.”[7]

McLean was an Ohio Supreme Court Justice from 1816 until 1822, when President James Monroe appointed him as a commissioner of the Federal Land Office.  A year later, Monroe selected McLean as Postmaster General to replace another Ohioan named Return Jonathan Meigs.  President Andrew Jackson appointed McLean to the United States Supreme Court on March 7, 1829.[8]

The behind the scenes story is most interesting.  Early in his career, McLean was a loyal Democrat.  In return for his support, President James Monroe appointed McLean postmaster general.  At the time, this was the largest executive agency [and a place for political supporters to find jobs, Post Office leases and lucrative vendor contracts].  He continued his service under President John Quincy Adams.  President Andrew Jackson appointed McLean to the Supreme Court, perhaps hoping to quell his political ambition.  But the Court is not a monastery, and McLean repeatedly sought a presidential nod from his Supreme Court perch [from just about every national political party].[9]

Francis P.  Weisenburger, in his book The Life of John McLean: A Politician on the United States Supreme Court (1937), makes the case that McLean was a political opportunist and it was only by chance that Dred Scott forced his hand in writing an abolitionist dissent in the case.[10]

A review of the US Supreme Court Cases from the time of McLean’s appointment until the Dred Scott decision proves most uneventful.[11]  During his thirty-one years on the Supreme Court, McLean proved to be a nationalist on most questions of federalism.  He subscribed to John Marshall’s national-supremacy mandates in the Cherokee cases in 1831 and 1832,[12] while consistently championing the exclusive commercial power of the central government.  He did favor state banking, however.[13]

McLean’s greatest judicial impact came in cases concerning slavery, an institution he abhorred, as evidenced by his antebellum politics.  From the 1840s onward, he aligned himself with the antislavery wing of the Whig Party, the Free Soilers, and the Republicans – all of whom sought to arrest the expansion of slavery.  Not surprisingly, an antislavery ethos animated McLean’s jurisprudence.  He filed a dissent in Prigg v.  Pennsylvania, 41 U.S.  539 (1842), in which the Court’s majority struck down a state personal liberty law as repugnant to the fugitive slave provisions of the Constitution.  McLean upheld the anti-kidnapping statute, asserting the right of the free   states to protect alleged runaways from arbitrary and unwarranted seizure.[14]

Yet McLean did not place personal sentiments ahead of constitutional fidelity.  In Jones v.  Van Zandt, 46 U.S.  5 (1847), antislavery attorneys William H.  Seward and Salmon P.  Chase argued that their client committed no offense in harboring runaway slaves because a “higher law than the Constitution” condemned slavery and all ordinances recognizing property in humans, and acknowledged slavery as on of the “sacred compromises” embedded in the Constitution.[15]  Justice Levi Woodbury for the Court spurned these arguments and McLean sided with the majority.  Woodbury stated that the legitimacy of slavery was a political question for the states to resolve, and that the Fugitive Slave Clause was “one of [the] sacred compromises” of the Constitution (p.  231).  Whatever a judge’s views of the morality or policy of slavery, Woodbury went on, he was bound to uphold the Constitution and statutes as he found them and could not refuse to enforce them because of their conflict with moral obligation.  As Justice Joseph Story had before him in Prigg v.  Pennsylvania (1842), Woodbury upheld the constitutionality of the 1793 statute.  Jones therefore was one in an unbroken line of proslavery decisions of the antebellum Court.[16]

McLean’s most significant opinion was his dissent in the aforementioned Scott v. Sandford, 60 U.S.  393 (1857), which concerned both Dred Scott’s, a Missouri slave’s, claim to freedom based upon prolonged residence in free territory, as well as the thorny issue of congressional interference with slavery in the territories.  Initially, the Court majority of five slave-state justices and two northern Democrats elected to dismiss the case on narrow jurisdictional grounds.  But the two Republican (and antislavery) justices – McLean and Benjamin R.  Curtis – [were] determined to draft opinions touching the constitutional merits of the suit.  This prompted Chief Justice Roger B.  Taney to issue the Court’s infamous proslavery ruling, which declared that congress had no power to regulate slavery in the territories, that temporary residence in free territory did not abrogate slave status, and that African slaves could not sue in federal court because they were not citizens within the meaning of the Constitution.[17]

McLean’s dissent refuted Tanney’s decision point by point.  Citing an impressive array of state and federal precedents, McLean wrote that slavery existed only where sanctioned by positive law, so that when a slaveholder carried a slave into free territory, an entitlement to freedom ensued.  He also adduced evidence showing that free blacks were considered citizens in several non-slave-holding states.  Most important, McLean insisted that Congress possessed full constitutional authority to exclude slavery from the territories.[18]  McLean also noted the hypocrisy of Tanney’s decision when he wrote:

On the question of citizenship, it must be admitted that we have not been very fastidious. Under the late treaty with Mexico, we have made citizens of all grades, combinations, and colors.  The same was done in the admission of Louisiana and Florida.  No one ever doubted, and no court ever held, that the people of these Territories did not become citizens under the treaty.  They have exercised all the rights of citizens, without

being naturalized under the acts of Congress.  The argument of Chief Justice Taney that a colored citizen would not be an agreeable member of society was more a matter of taste than law.[19]

McLean wrote about 240 majority opinions and about sixty separate concurring and dissenting opinions.[20]  Briefly, some additional cases where McLean wrote the majority Supreme Court opinions are Wheaton v.  Peters, 33 U.S.  591(1834),  Briscoe v.  Bank of Kentucky, 36 U.S.  257 (1837), The Passenger Cases, 48 U.S.  283 (1849) and Pennsylvania v.  Wheeling Bridge Co., 54 U.S.  518 (1852).  Theses cases are relatively insignificant.  These cases are notable for political, economic, and constitutional issues that brought them to the Court, but not for the jurisprudence or the reasoning of their majority opinions.[21]

Wheaton v.  Peters, 33 U.S.  591 (1834), was the first copyright decision of the U.S.  Supreme Court and a landmark case in the field.  While the case is best known for its rejection of common law copyright in the United States, its significance is also attributable to other factors.  The commentary briefly discusses five significant aspects of the litigation and of the Supreme Court’s decision.  First, the case established the principle that there existed no post-publication common law copyright in the United States, and that post-publication protection could only be attained within the statutory framework.  Second, the case reopened the theoretical debate over literary property more than fifty years after it was officially settled in Britain.  The parties’ arguments, the Justices’ opinions and the public debate surrounding the case contained competing constructions of copyright as a limited state-granted entitlement or as a pre-political natural property right.  While rehearsing the British literary property debate, the American version took place in a somewhat different ideological, economic and political context and thus produced new variants of the conceptual structure underlying copyright thought.  Third, the factual background of the case–revolving around a dispute between two reporters of the Supreme Court over a condensed version of the Court’s reports–involved the question of the propriety and extent of copyright protection in official state-related materials such as laws and case-law reports.  The discussion surrounding the case laid the foundations for future law and thought about this topic.  Fourth the dispute and the actions of the parties illuminates the changing status and character of the Supreme Court reporter during the early nineteenth century.  Finally, the litigation exposed an intriguing and complex array of personal relationships between the various protagonists involved, including judges, litigants and lawyers.[22]

In Briscoe v.  Bank of Kentucky, 36 U.S.  257 (1837), The Bank of Kentucky, a corporation owned and controlled bythe state, issued a negotiable instrument payable to the bearer in exchange for Briscoe’s promissory note.  When the Bank sued to collect on the note, Briscoe defended on grounds of illegal consideration, arguing that the instrument issued bythe bank had offended the provision of Article I, Section 10,that “[n]o State shall.  .  .  emit Bills of Credit.”  The state courts rejected this argument, and the Supreme Court affirmed.  Responding for the majority, Justice McLean acknowledged that the bills to which the framers of the Constitution objected had included those payable on demand, chargeable to a fund, or not made legal tender, and that a state could not issue bills of credit indirectly through a corporation.  However, he concludedthe bank in Briscoe had issued the instrument on its own credit, not on that of the state.  Unlike the state itself, the bank could be sued without its consent, and thus all its assets could be seized to satisfy the obligation.[23]

The so-called Passenger Cases, Smith v.  Turner; Norris v.  Boston, 48 U.S. 283 (1849), were two similar cases, argued together before the United States Supreme Court, in which it was adjudged (5:4) that States did not have the right to impose a tax determined by the number of passengers of a designated category on board a ship and/or disembarking into the State.  Justice McLean, the most senior member of the Court at the time, began his opinion by weighing in on the debate concerning the nature of the Commerce Clause.  McLean asserted the Commerce Clause “is exclusively vested in Congress.”  Under this view, if the federal government does not regulate a particular area of foreign or interstate commerce, such omission is not an invitation to the States to provide interim regulation, but rather is an expression of federal policy that such area should remain unregulated.  McLean derives this interpretation of the Commerce Clause from a fundamental rejection of the concept of concurrent power.  To McLean only one authority can exercise any given power, and the judicial task is to determine whether a particular subject falls within a power delegated to the federal government or within a power reserved to the States.  McLean denies that a power may be exercised by the States unless and until the federal government chooses to exercise the same power, at which point the Sate regulation is trumped by the federal action.  Although McLean recognizes that both Congress and the States may impose a tax on the same object, he insists these respective taxations result from the exercise of distinct powers, and do not represent any concurrent exercise of the same power.  It is unclear what role the Supremacy Clause has in McLean’s constitutional theory, since he seems to view each level of government as supreme within its own legitimate and distinct sphere of operations.[24]

In Pennsylvania v.  Wheeling Bridge Co., 54 U.S.  518 (1852), the Supreme Court held that because the tallest steamboats licensed under federal law to navigate the Ohio River were unable to pass under the bridge at Wheeling during high floods, the bridge interfered with interstate commerce.  The Court ordered that the bridge over the Ohio River at Wheeling be raised to accommodate those steamboats, or else it must be demolished.  The bridge company turned to Congress and asked that the bridge be legalized through federal legislation.  Rather than defer to the Court, Congress wasted no time taking up the issue and debating its own power to save the bridge.  Congressional opponents made numerous arguments that Congress did not have the power to undertake “internal improvements,” that authorization of the bridge would benefit Virginia at the expense of Pennsylvania, and that Congress did not have the authority to override the Court decision (p.193).  Nonetheless, later in 1852, Congress saved the bridge as part of a “postal appropriation law,” writing into the statute that the bridge was an “established post-road for the passage of the mails of the United   States” (as quoted in Currie 2005, p.192).  Rather than debate its commerce power, members of Congress viewed authorization of the bridge as a clear exercise of Congress’s power “To establish Post Offices and Post Roads,” under Article I, Section 8 of the Constitution.  Pennsylvania challenged the congressional enactment, but the Supreme Court upheld the statue in a 6-3 decision.  Importantly, the justices “repeated” the constitutional arguments made in Congress in both the majority and dissenting opinions (p.193); thus, it was members of Congress who led the constitutional debate over federal power, and the Court followed.[25]

My view of the foregoing is in concurrence with those commentators who viewed Justice McLean as A Politician on the United States Supreme Court.  In matters dear to him and his political aspirations, like the abolitionist movement, McLean is progressive arguing for the natural rights of Dred Scott.  In matters dealing with interstate commerce, taxation, supremacy of federal law over conflicting state law, McLean is a strict constructionist who looks at the four corners of the statute before him for the proper interpretation of state and federal statutes.  To compare McLean to a modern-day justice, he reminds me of Justices Roberts and Kennedy who appear to decide cases based often on how political winds are blowing.[26]

From a cursory review of McLean’s majority opinions, I don’t believe that specific issues of criminal procedure were decided.  Since this Justice served before the Civil War, the states still controlled matters of criminal jurisprudence.  Federal law dealt with federal cases, but state law was supreme involving matters of criminal procedure in each of the states.[27]

I would speculate that were Justice McLean an Associate Justice during Warren and Burger Supreme Courts, he would have been in the activist category vis-à-vis civil rights and the constitutional rights of the individual versus the states.  However, I believe McLean would lean toward “states rights” in matters of statutory law that did not conflict with federal law.  McLean’s dissent in Dred Scott was that he put the rights of the individual under the Constitution over those demands made by the states or the federal government.[28]  With emphasis placed on his opinions in great cases in which his reasoning was based largely on nonlegal factors, McLean emerges as a nationalist who was well aware of the needs of the business community.  He was, however, able to adjust his nationalism as circumstances provided.  He also usually practiced judicial activism – considering questions that were not essential to the decision at hand, just as he had done on the state bench.  The slavery questions illustrate well his values.  In Groves v. Slaughter, 40 U.S. 449 (1841), he upheld the right of Mississippi to restrict the introduction of slaves from other states.  But even though it was “not necessary” to the decision, McLean restated his nationalism by holding that the power to regulate commerce rested exclusively with Congress.[29]

[Justice John McLane’s] lifelong battle against the nationalization of slavery by the Court was often futile, but he remained a voice for freedom, however lonely, on a Court dominated by judges who never knew the meaning of their own title—Justice— when it came to slavery and race.  To his great credit, McLean knew the meaning of this term and tried, within the limits of his office and the Constitution, to implement justice for all Americans, even those who might be called slaves in some states.  For that, he should be better appreciated.[30]

McLean became ill while on circuit in Cincinnati and died April 4, 1861.  The Reverends J.T. Mitchess and D.W. Clark conducted the funeral services and McLean is buried in SpringGroveCemetery in Cincinnati.[31]  U.S. Attorney General Edward Bates eulogized McLean to the U.S.  Supreme Court on Dec.  3, 1861.  He said:

“I had not the honor of his intimacy, but I have known him personally for more than thirty years, and under circumstances which attracted and enforced my observation.  I did not consider him a man of brilliant genius, but a man of great talents, with a mind able to comprehend the greatest subject, and not afraid to encounter the minutest analysis.  He was eminently practical, always in pursuit of the truth, and always able to control and utilize any idea that he had once fully conceived.  In short, he was a sincere, earnest, diligent man.”[32]

In conclusion, I agree with Attorney General Bates and Paul Finkelman, and I think Justice McLean would be a hero for many today were he on a modern Supreme Court.  I believe he would push the Court to “do what is right – because it is right” in cases where Congress has abdicated its Constitutional role.  With respect to matters of Criminal Procedure, he would side with the accused and his/her rights under the US Constitution except in cases where state law was not expressly in conflict with the Constitution or federal law, on such matters, he would side with the states.

I enjoyed writing about this obscure Justice who penned his most famous words four short years before the American Civil War began.  Justice McLean tried to right a fundamental wrong within the bounds of his Constitutional authority.  Alas, only a great national struggle was able to start that process and only another one hundred plus years of legal and political struggle through the Civil Rights legislation of the 1960’s, finally set things right.[33]



  • SUPREME COURT OF THE UNITED STATES, 1789–1980: AN      INDEX TO OPINIONS ARRANGED BY JUSTICE 75–84 (Linda A.  Blandford & Patricia Russell Evans      eds., 1983).

[2] The official name of the case is Scott vs. Sandford, 60 U.S.  393 (1857), the respondent’s surname was “Sanford.” A clerk misspelled the name, and the court never corrected the error.  Vishneski, John (1988).  “What the Court Decided in Dred Scott v.  Sandford.” The American Journal of Legal History (TempleUniversity) 32 (4): 373–390.

[3] The Dred Scott case was a major event on the road to the Civil War.  The Supreme Court’s provocative opinion—which stated flatly that blacks had “no rights which the white man was bound to respect” and rejected the right of any territory to ban slavery within its own borders—inflamed public opinion in the North, leading to a hardening of antislavery attitudes and a surge in popularity for the new antislavery Republican Party.  http://www.shmoop.com/causes-of-civil-war/dred-scott.html

[4] Opinion of the author.

[10] Francis P.  Weisenburger, The Life of John McLean: A Politician on the United States Supreme Court (1937), http://www.answers.com/topic/john-mclean#ixzz210BSvob3.

[11] Author.

[12] The Court issued decisions in two cases that are commonly known as the Cherokee Cases: Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L. Ed. 25 (1831), and Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832).  http://www.encyclopedia.com/topic/Cherokee_Cases.aspx

[13] Encyclopedia of the American Civil War – A Political, Social, and Military History, David Stephen Heidler, Jeanne T.  Heidler, David J.  Coles, W.  W.  Norton & Company, 2002, p.  1290.

[14] Ibid.

[15] Ibid, 1291.

[17] Ibid.

[18] Ibid.

[19] Dred Scott, 60 U.S. at 533 (McLean, J., dissenting), as noted in Finkelman – Justice McLean, 62 Vand.  L.  Rev.  519 (2009)

[20] SUPREME COURT OF THE UNITED STATES, 1789–1980: AN INDEX TO OPINIONS ARRANGED BY JUSTICE 75–84 (Linda A.  Blandford & Patricia Russell Evans eds., 1983).

[21] Finkelman – Justice McLean, 62 Vand.  L.  Rev.  519 (2009).

[23] Duke Law Journal, Vol.  1983:471, p.  477.

[26] Author

[27] See Comparative Law Without Leaving Home: What Civil Procedure Can Teach Criminal Procedure, and Vice Versa, David A. Sklansky and Stephen C. Yeazell (2005), 688-689http://www.warreninstitute.berkeley.edu/files/SklanskyGLJ.pdf

[28] Author

[30] Finkelman, 565.

[32] Ibid.

[33] Author.


Posted in Uncategorized | 2 Comments

Just Another Dead Jew – The Leo Frank Case

Leo Frank had the audacity of being a college educated Georgia Jew in 1913.  He had the additional chutzpah of being in charge of a small contingent of folks working at a pencil factory.1

In 1913, Frank was convicted of murdering Mary Phagan, a 13 year old employee of the Atlanta pencil factory that Frank managed.  After his death sentence was commuted by Georgia’s governor, a mob stormed the prison where Frank was being held and lynched him.  Frank became the only Jew lynched in American history.  1

There was no outrage.  There was no outcry.  Cracker bastards still cherish the photos of their idiot ancestors who posed underneath Leo Frank’s lynched corpse.  What the hell, just one dead Jew.  1

Between April 30th and May 8th, 1913, The Fulton County Coroner, Paul Donehoo, and six jurymen sworn under oath, visited the crime scenes of the National Pencil Company at 37-41 South Forsyth   Street, Atlanta, GA, and questioned more than 160 affiliated witnesses sworn under oath.  (One can only imagine the form of the questions!)  At the conclusion of the Coroner’s inquest on Thursday, May 8, 1913, the 7-man tribunal, voted unanimously against Leo Frank, binding him over for murder, to be further investigated by the Fulton County Grand Jury.  (Grand Juries are typically “rubber stamp” juries in the old).  On May 24, 1913, the “rubber stamp” jury voted unanimously 21 to 0 against Leo Frank, indicting him for having murdered Mary Phagan on April 26, 1913.  2

The presiding Trial Judge was Leonard Strickland Roan.2

The evidence presented at trial was as follows:3

On April 27th, 1913, the bound and badly beaten body of thirteen year old Mary Phagan was found in the basement of the Atlanta, Georgia pencil factory where she was an employee.  She was found with a noose around her neck and had been sexually assaulted.  Her body had been found by the factory’s night watchman, Newt Lee, who immediately called the police.  Lee almost instantly became the primary suspect and was taken into custody, but despite intensive questioning, including being beaten, Lee insisted on his innocence, and as the police had no evidence against him, other than his presence at the factory and the fact that he was black, the police released him.  But Lee had unwittingly pointed the police toward another suspect.

During Lee’s questioning, it had been revealed that the last time Mary Phagan had been seen alive had been the day before when she had picked up her pay from the factory’s manager, twenty-nine year old Leo Frank.  Lee had also informed the police that Frank had called Lee at the factory during the night to find out “if anything was going on”.  Frank had never called the factory at night before, and when the police went to Franks home to inform him of the tragedy, Frank, according to the police, “acted nervous”.  On this basis, and the call, Frank was taken in for questioning.  By morning he had been formally charged with the crime.  Also that same night, police had arrested another employee of the factory, a black man named Jim Conley for drunkenness.  Conley would figure heavily in the case against Frank.

The case would be prosecuted by district attorney Hugh Dorsey.  Dorsey, who had political aspirations, (he would later become governor of Georgia), had to deal with the major problem that the available evidence pointed not to Frank, but to the State’s “star” witness, Jim Conley.  Dorsey was also aware that convicting Conley, a janitor with a criminal past, would not be the political “feather in his cap” that convicting Frank, a “wealthy Yankee Jew”, would be, so evidence was simply suppressed.

The trial began in a packed second floor courtroom in July, 1913.  Several spectators, unable to get into the courtroom itself, had crowded on the roof of the building next door, where they could still hear what was going on.  Their shouts of “Kill the Jew”, and “Hang him” frequently interrupted the proceedings.  Presiding judge Leonard Roan made no effort to quiet these shouts, nor did he give even “pro forma” instructions to the jury to ignore them.

On the witness stand, Jim Conley was, unfortunately for Frank, devastating.  According to Conley, Frank had confessed the murder to him and had tried to get him, (Conley), to burn the body in the factory’s basement furnace.  Frank’s lawyers were unable to shake Conley’s story, and Frank himself was hesitant and unconvincing on the stand, and his denial carried little weight.  On September 26th, Frank was found guilty and sentenced to death by Judge Roan.  Atlanta celebrated, but the rest of the country was less convinced that justice had been done.  Over the next eighteen months, over 100,000 letters of protest arrived and a petition for a new trial gathered over a million signatures.  Frank appealed the verdict and eventually his case reached the United States Supreme Court.  The Court ruled that there had been no reversible procedural errors made.  (Evidence of the defendants innocence, oddly enough, was not considered “reversible error” at that time.) The verdict and sentence were both confirmed.  Franks fate now lay in the hands of one man, Georgia’s governor, John Slaton.

Unfortunately for those howling for Franks blood, Governor Slaton was a brave man and one with a highly developed social conscience.  Ignoring advice to simply confirm the verdict and sentence and let Frank go to his death and be done with it, Slaton obtained the trial transcripts and reviewed all the testimony and evidence.  In doing so, Slaton found numerous discrepancies.  Mary Phagan had fought hard for her life, yet Frank had absolutely no scratches or marks of any kind on his body, an utter impossibility had he truly been the killer.  Conley, on the other hand, had been observed to have several scratches, bite marks and gouges when he was arrested for drunkenness the night of the crime.  Further, Conley had testified that he had used the factory’s elevator shaft to dispose of Mary’s belongings and had used the bottom of the shaft as a latrine, defecating in it, before following Franks orders to take the body to the basement.  All of these items, including Conley’s “personal” contribution, were observed by the police and in the case of Mary Phagan’s belongings, recovered intact.  But in recreating the events of that night, anything at the bottom of the shaft was always crushed by the descending elevator.  A letter, found at the scene in Conley’s handwriting, (Conley claimed the letter was dictated by Frank) made references to a legend well known in the black community, but almost unknown among Georgia’s white population, and highly unlikely to have been known by a white man raised in New York.

Slaton, knowing he was committing political suicide, and quite possibly actual suicide, commuted Franks sentence to life imprisonment, saying in a statement that he would rather live in fear of his life than have a guilty conscience.  The governor was burned in effigy and received death threats, and was eventually forced to leave the state.

On the night of August 16th, 1915, a group of armed men “forced” their way into the prison where Leo Frank was being held.  They took him to a ridge near Mary Phagan’s home and there lynched him.  A snapshot of his body dangling from the tree was taken and was a popular nickel postcard item in Georgia for years afterwards.  No one was ever charged with the crime.

Eventually, when it was too late, the truth came out.  Conley’s lawyer had told Judge Roan that Conley had confessed to the murder several times, but despite this, Roan had kept silent and sentenced Frank to death.  Another man, named Alonzo Mann, who has a fourteen year old boy had worked in the factory, told investigators that he had seen Conley commit the crime, but had kept silent because of Conley’s threat to kill him if he spoke out

How the Courts “Held”:  In 1914 and 1915, the United States Supreme Court Majority Decision ruled against Leo Frank and finally unanimously voted that no further reviews of the case would be considered.  Leo Frank had fully exhausted all of his court appeals.

In 1915, the Governor of Georgia, John Marshall Slaton, specifically stated in his June 21, 1915, commutation order, that he was sustaining the verdict of the Leo Frank trial jury and appeals courts decisions, and thus ultimately he was preserving the verdict of guilt rendered against Leo Frank by the trial judge and jury.  Incidentally, Governor John M.  Slaton was a member of the most powerful Lawfirm in Georgia, called ‘Rosser, Brandon, Slaton and Phillips’ (the ‘Slaton’ was Governor John M.  Slaton) who represented Leo Frank at his trial and appeals to the Georgia Supreme Court.  Governor Slaton had committed a gross conflict of interest and betrayal of his oath of office when he commuted the death sentence of his own law client Leo Frank.

On March 11th, 1986, Leo Frank was issued a pardon by the state of Georgia.  Big Fucking Hairy Deal (author.)


1A Jewish Virtual History, 2012.  http://www.jewishvirtuallibrary.org/jsource/anti-semitism/frank.html



Posted in Uncategorized | Leave a comment

Declaration of Independence, Constitution, Bill of Rights – The Basics

“What I believe all Criminal Justice Professionals should know about the preparation and/or adoption of the Declaration of Independence, the Constitution, and the Bill of Rights.”


The Declaration of Independence is NOT a legal document; it is a political document.  In it, however are several principles that later are reflected in laws that are much later adopted by the Continental Congress and then US Congress.  The first sentence is about “Natural law;” that is, universal law.  The principle of “reasonableness” also is first presented here. (Becker, Declaration of Independence, 277-279).  The criminal justice professional must respect that it is universally understood that people; and not government, have rights.  Nevertheless, citizens must act reasonably when exercising their rights under Natural law.


The famous preamble has an enumeration of certain rights that are unalienable; i.e., beyond discussion!  Among others these include “Life, Liberty and the pursuit of Happiness.” (D of I)  The criminal justice professional must way these rights with respect to the alleged criminal AND those of the victims.  The government has the responsibility of protecting its citizens without, in so doing, violating rights of some of its citizens.


The rest of the Declaration cites grievances against the Crown and the reasons for revolution.  (D of I)  As a historical note, most of the citizens of the American colonies did NOT favor revolution.  (Hazelton, Declaration History, 13; Middlekauff, Glorious Cause, 318.)  Even if the British Government were to address all of the grievances cited, the revolution was still going to happen.  In large part, Britain wanted the American colonies to pay the cost of defeating the French and Indians two decades earlier.  Yes, money is at the root of the revolution.


The author of most of the Declaration of Independence was Thomas Jefferson who drew from his education of the evolution of legal thought that began in America and England around 1689 with the English Declaration of Rights.  (Malone, Jefferson the Virginian, 221; Maier, American Scripture, 125–26).  Jefferson’s most immediate sources were two documents written in June 1776: his own draft of the preamble of the Constitution of Virginia, and George Mason‘s draft of the Virginia Declaration of Rights. Ideas and phrases from both of these documents appear in the Declaration of Independence. (Maier, American Scripture, 126–28).


The Articles of Confederation and Perpetual Union, the first “constitution” proved inadequate for running the country.  Once again, money was a significant reason for amending the Articles of Confederation, which brought about a “do-over” with the scrapping of the entire document.  The central government assessed the states to pay for the cost of the revolution, but most states sent little or no money.  (Maier 2010, pp. 11-13).  The current Constitution of the United   States was ratified by the States and put into effect March 4, 1789. (Paul Rodgers (2011). United States Constitutional Law: An Introduction).  The Constitution deals primarily with the separation of powers of the federal government into an executive, legislative and judicial and how the individuals take their offices.  Emphasis was also put on the power of States would continue and be on par with the power of the federal government. (Constitution).


The criminal justice professional must be aware that the laws that he or she is empowered to enforce are derived from a government process.  In one respect this absolves the criminal justice professional from questioning the “rightness” of the federal and state laws.  In another respect, federal authority, by inference, is superior to state authority.


A Bill of Rights was noticeably missing from the original Constitution.  Using the amendment mechanism in the Constitution, 12 amendments were originally proposed as the Bill of Rights, of which, 10 were ratified December 15, 1791. (“The Bill of Rights: A Brief History”. ACLU.org. March 4, 2002.  Retrieved June 13, 2012).  The Amendments of most concern to the criminal justice professional are as follows:


Amendments (Constitution)


Fourth Amendment – Protection from unreasonable search and seizure.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.  The criminal justice professional must act reasonably, pursuant to a warrant, sworn out under oath, and understand the limitations of the warrant. 


Fifth Amendmentdue process, double jeopardy, self-incrimination, eminent domain.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.  The legal principles presented here are important to the criminal justice professional because what is outlined with respect to individual rights is the grand jury indictment process, illegality of double jeopardy, right to remain silent and the right to due process of law.


Sixth AmendmentTrial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.  The legal principles presented here are important to the criminal justice professional because the trial process and the rights of the individual in that process are presented.

Eighth Amendment – Prohibition of excessive bail and cruel and unusual punishment.


Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.  The criminal justice professional, while powerful in the determination of arrest, has to realize that the presumption of innocence carries with it a preservation of rights of the accused and even of the convict.


Ninth Amendment – Protection of rights not specifically enumerated in the Constitution.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


Tenth Amendment – Powers of States and people.

The powers not delegated to the United   States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


The Ninth and Tenth Amendments emphasize that the rights of the people are superior to the rights of government except where the people, through elected representatives, have ceded those rights to the government.


Later amendments to the Constitution made rights under federal law applicable in the States.  These documents are a tribute to the wisdom of the founding fathers.  The Constitution is the longest continually operating body of law in history. (Paul Rodgers (2011). United States Constitutional Law: An Introduction. McFarland. p. 109.)


There is a balancing act struck by the founding fathers with respect to the citizenry and what rights they cede to the government to preserve and just and orderly society.  The criminal justice professional is “on the point of the spear” when it comes to the relationship between government and the citizen.  While the rights of the accused must be preserved during the criminal and incarceration periods, the rights of the victims to be free to enjoy their rights under Natural law in that just and orderly society is of equal weight in that balance.

Posted in Uncategorized | Leave a comment

Gideon’s Trumpet – How the US Supreme Court Really Works

Image“If an obscure Florida convict named Clarence Earl Gideon had not sat down in prison with a pencil and paper to write a letter to the Supreme Court, and if the Supreme Court had not taken the trouble to look for merit in that one crude petition among all the bundles of mail it must receive every day, the vast machinery of American law would have gone on functioning undisturbed.  But Gideon did write that letter. The Court did look into his case and he was retried with the help of a competent defense counsel, found not guilty, and released from prison after two years of punishment for a crime he did not commit, and the whole course of American legal history has been changed.”

Attorney General Robert F. Kennedy
November 11, 1963

(Connecticut Department of Public Defender Services web site; http://www.ct.gov/ocpd/cwp/view.asp?a=4087&q=479198) (Pure and utter bullshit; see below)

I begin this paper citing the remarkable summary by then Attorney General Robert F. Kennedy of the Supreme Court case that became known as Gideon v. Wainright, 372 U.S. 335 (1963).  The movie Gideon’s Trumpet (1980), is an adaptation of the book by the same title by Anthony Lewis (1965). (IMDB.com and Amazon.com).  By way of an introduction, far be it from me to write better than our late Attorney General.

The plot of the book and the movie centers on the idea of justice.  In the United States, are the rights of an indigent person the same as a person of means?  In the Unites States, is justice denied to a person who, just because he is poor, is forced to defend himself in a criminal court case?  In the United States, is it just and right for a barely literate person to be made to rely on his own initiative to get his case heard in the highest court of the land?

As depicted in the movie by Henry Fonda, Clarence Earl Gideon was a nobody.  He was a convicted felon.  He was in the wrong place at the wrong time when the Bay Harbor Pool Room of Panama City, Florida, was burglarized.  Gideon was charged with the crime.  He asked the judge to appoint a lawyer for him because he could not afford one.  The judge, citing Florida law, denied Gideon’s request.  Gideon defended himself at trial and was convicted of the crime and sentenced to 5 years in prison.  While in prison, Gideon educated himself and appealed to the Florida Supreme Court.  His appeal was denied.  He then, by hand written writ of certiorari to the United States Supreme Court, appealed his conviction on the grounds that he was not represented by counsel as he had requested.

The movie shows how in the 1960’s cases find there way before the Supreme Court.  It shows how the Court decides upon which cases to hear.  It shows how the personal efforts of single Justices of the Supreme Court and their political motivations are at play in circumstances that have much wider impact on the country.  The movie uses the humble Florida court room and the grand US Supreme Court hearing room as a metaphor for the little man’s fight against the big government.  In a plot twist, the grand US Supreme Court becomes the champion for the little man whose government had condemned him because he couldn’t afford a lawyer.  It is ironic that, after one of the most well-known and well-respected lawyers of the day, Abe Fortas, who was then Vice President Lyndon Johnson’s personal attorney, successfully argued Gideon’s case before the Supreme Court, Gideon rejected two ACLU attorneys suggested by Fortas in favor of a local lawyer, W. Fred Turner (who was an acquaintance of our then Vice President, I speculate).  Fred Turner successfully defended Gideon and he was found not guilty in his second trial and left the courtroom a free man.

One sad part of the movie, in my view, is how the “higher legal principles” overshadow the real-life circumstances of Gideon and the other people involved.  The Chief Justice supposedly doesn’t know any particulars about the case as it is present for a vote on whether or not to here the case before the rest of the Court.  Abe Fortas supposedly doesn’t even know if his client is black or white following his appointment as Gideon’s appeals lawyer.  The rich and powerful concern themselves with higher principles while the lowly suffer the consequences of their principled decisions.  Over 2,000 Florida inmates went free as a result of the Gideon decision.  The government that wrongfully incarcerated them is the same government that ultimately set them free.  Constitutional law is messy business and the consequences of decisions concerning the little guy often have much larger repercussions elsewhere.  Ours is the worst form of government on earth, except for all the others!

Incidentally, during the 1960 presidential election, Florida went to Nixon in the Electoral College.  Gideon and the resulting release of over 2,000 felons in Florida was Kennedy payback for Florida not getting in line behind the candidate in the 1960 election.  (http://www.uselectionatlas.org/RESULTS/state.php?f=0&fips=12&year=1960)

Despite miscasting Henry Fonda in the role of Gideon (Fonda was 75 at the time and Gideon was 53 at the time of his second trial (IMDB.com), Fonda does a nice job representing the curmudgeonly Gideon.  Americans love “a little guy triumphs over the big guy” plots.  The government has enormous power as compared to the average citizen.  The government controls the systems by which we must live to be “good” citizens.  The government has the power to tax us, charge us, convict us and incarcerate us.  The government has resources available to it that dwarf those of even the richest persons.  Nevertheless, one little man, whose principles would not let the injustice stand for his conviction for a crime he did not commit, fought back against the government and won.  David beat Goliath because “right” was on his side (total bullshit!).

The reality is somewhat different.  Two members of the Gideon Supreme Court who joined in vehement dissent to the Betts v. Brady Supreme Court decision, 316 U.S. 455, 1942, and the cases that followed, still had a very bad taste in their mouths.  (Justices Hugo Black, William O. Douglas; see US Supreme Court web site, http://www.supremecourt.gov/).  These Justices, and other liberals on the Court (Gideon was decided 9 to 0) were on the lookout for a case they could use to reverse Betts v. Brady and Gideon was the case that best fit that agenda.  (I wonder whether or not Gideon had a little help from the outside in drafting his writ of certiorari and in getting his case in front of the Supreme Court!)

The book’s author, Anthony Lewis, is a flaming liberal.  He was a great friend of the aforementioned late Attorney General!  Not that it’s relevant here, but he is married to retired Chief Justice Margaret Marshall of the Massachusetts Supreme Court.  Her court created the right to gay marriage out of whole cloth and single handedly cost John Kerry the presidential election of 2004!  Anthony Lewis, in his days as an editor with The New York Times championed every left wing/communist cause ever faced by the citizens of the United   States. (www.nytimes.com)  In my opinion, the guy’s a nut!  That notwithstanding, Lewis wrote an award winning book he entitled based on the Book of Judges on the Gideon v. Wainright case.  The sinister back story here, and this is just a matter of my speculation, is that Lewis was the moving force behind Gideon.  He prompted Gideon and provided assistance in writing the writ of certiorari, money and influence to get the case before the Court.  I suspect that Lewis was hired by persons sitting on the Court as Justices and by the Kennedy’s to find the case they could use to overturn Betts.  His reward was the inside scoop on the story for his book that sold 800,000 copies to date.  (Amazon.com)  The movie gives us the impression that a law clerk working for the Chief Justice just happened upon Gideon’s writ.  This is pure Hollywood fantasy!!!  Gideon was a set up from the get-go as are most of the landmark cases that come before the Court.

The intended result of Gideon was the exponential growth of the public defender offices throughout the United States and the phenomenal growth of law school enrollment and cost over the last 50 years.  This was a blatant act by the Court to ensure full employment for fellow lawyers at the expense of the American taxpayer.  The conviction rates for publically defended criminals are about the same today as it was before Gideon, but thousands upon thousands of lawyers who would otherwise be greeters at Walmart are employed at the taxpayers’ expense.

In the American system of politics, what forces cannot win through the legislature, they will try to win through the courts.  This is clearly a case where an activist Court did an end-run around the state legislatures to bring about the result the forces demanded; i.e., court appointed lawyers for all poor people.  This doesn’t bother me.  It’s a political system that, with the exception perhaps, of Roe v. Wade, 410 U.S. 113 (1973) (which came before the Supreme Court the same way Gideon did, I speculate), works for the greater good of the average citizen.  The results justify the means in these cases.

I conclude by writing that Clarence Earl Gideon died in 1972 (www.nytimes.com) as anonymously as he would have otherwise had lived.  A drifter, a loser, a little guy, who was used to the advantage of the big guys who wanted to change the criminal justice system and create tens of thousands of new jobs for lawyers.  I’m sure Clarence Earl Gideon never realized how well he was played.  He looked at Anthony Lewis’ proposition as a way of getting out of jail a few years early.  He gave up “three hots and a cot” for a chance at legal immortality and won.  At the end of the movie, Gideon had to borrow money to get on with his life.  He was born, lived and died a loser.  I’m sure he died not knowing of how much he did to embellish the American system of jurisprudence.  I’m sure he died not knowing just how well he was used as a pawn by the powerful.

The result of Gideon:  All accused persons have the right to counsel – which today means from the moment of legal custody until the last appeal.  The US Supreme Court writes the decisions it wants to write.  (It has always done so and it is as corrupt as any other branch of government.)  I think everybody should have at least one lawyer as a golf buddy.  The Supreme Court looks out first and foremost for its own; the benefits to the citizenry are secondary.  Not bad for a “made for TV” movie!!!

Posted in Uncategorized | 2 Comments