Your rights are on trial; Due process of law

The following tape recorded program is distributed by the National Association of educational broadcasters. A country that cherishes individual freedom is as much concerned with the means used to bring criminals to justice as it is with the ends and sells. That was the actual voice of William O Douglass associate justice of the Supreme Court of the United States. Mr Douglas will appear on today's program. The case of the stomach pump evidence the first in a series of 13 authoritative discussions and authentic dramatizations of High Court cases in which your rights are our right. What is your right to due process of law. This question will be answered as we present the true story. An official opinion of a Supreme Court case in

which your rights are on trial. Your rights are on trial as produced by the University of Minnesota radio under a grant from the Educational Television and Radio Center in cooperation with the National Association of educational broadcasters and the University of Minnesota Law School. On today's program you will hear William Douglas associate justice of the United States Supreme Court and federal Judge Frank author of courts on trial. But first to set the stage for the exciting and shocking case of the stomach. Everyone. Here is one of the consultant commentators for E. Your rights are on trial. Professor of law at Columbia University. Mr. Mann read Paulson some authorities have referred to the Supreme Court of the United States as the conscience of the nation. Like any good conscience the Supreme Court does not act in a vacuum. It acts upon principles that are established and

upon concepts to which we are all committed. These principles and concepts are embodied in the Constitution and the Bill of Rights of the United States. Despite this virtually sacred tradition the Supreme Court is often attacked. This is understandable however we often get angry with our personal conscience too when it points out how we have failed to live up to our principles and commitments. We should remember however for example that it was not the Supreme Court which invented desegregation and equal rights but the founding fathers of our nation and the heritage of a democratic philosophy Christian behavior and civilized traditions throughout all of our history. While it may not be precisely leaderless take this tradition of decency is taken into consideration by the Supreme Court in reaching its most important decisions. This occurs too because sometimes the Constitution just isn't specific enough to provide all the answers. Then the Supreme Court must try to determine the spirit if

not the word of this basic document. Perhaps the least specific and the most controversial part of our Constitution over the years is the due process clause in the 14th Amendment. Nor shall any state deprive any person of life liberty or property without due process of law. What is due process. Is it a process. Do the individual any individual. If so what view or evaluation of man do we have in mind when we say that we will give him his due. Is any consideration do the killer in the dope peddler the kidnapper in the Communist or is due process just a right for nice people. It would appear as if the due process clause is too big an abstract to be of much practical use in the Supreme Court decision in our case today however Mr Justice Frankfurter feels that the abstract nature of the Due Process Clause is advantageous he

writes in dealing not with the machinery of government but with human rights. The absence of formal exactitude or want of fixity of meaning is not an unusual or even regrettable attribute of constitutional provisions even though the concept of due process of law is not final and fixed. These limits are derived from considerations that are fused in the whole nature of our judicial process due process of law is a summarized constitutional guarantee of respect for those personal immunities which are so rooted in the traditions and conscience of our people as to be ranked as fundamental. The words sound good. How do they work out in practice. This is the question this radio series will try most to answer. You will not just hear authoritative opinions on these programs. You will learn about the actual cases in which the good words are put to the hard test of reality. In

some of these cases the individuals faced with infamy and punishment are good ordinary people. Here you will be able to appreciate what is involved because you may feel it could happen to me. In most of our cases however such as our story today you may not see much connection between the defendant and yourself. This is the most important moment then when you face the challenge of the democratic idea. The problem of precedent and the demands of your own conscience and the traditions of decency to be specific. All of these concepts and you were very much involved that morning of July 1st one thousand forty nine when a deputy sheriff in Los Angeles County got a hot tip. This is an authentic version taken from the court records of what actually happened in the case of Roshan versus California. Mike Mike he must have calmed down. Bell It's a day I think I got that lead I've been waiting for.

You know he's passing the morphine for sure. It could be though. Anyhow I'm sure I know where we can pick up some of the stuff real evidence for once. What are we waiting for. I've been itching to lay my hands on one of those can you guys think you're going to sing Bill knows where we can find some of that morphine. Got a search warrant. No the leads not that substantial. I better come along. Keep you boys out of trouble. Are you sure this is the place. Yeah this is the address All right. It's supposed to be a two story house checks. Let's go. All right come on let's see what this is all about. You're right. I don't see anyone around. I'll look for that. Oh yeah the doors are locked. I don't think we all are cloak this guy's probably past all the stuff in the store still be sleeping. OK take the downstairs Franklin bill and I'll check up stairs you got there. Who are you what do you want.

He's supposed to have a sister mother and a wife. Which one are you. What do you want. We're from the county sheriff's office Miss Elliott. He's upstairs just like his bedroom door. Which room is he unless you break in ready yet or just for we find a locked door upstairs or break it out a lot. And it's not just one come on. This is the one that's locked. OK Roshan. Open up open up. Open up petal I said all plan take it easy make it easy enough and give me a shoulder bill. You're ready now. OK go all the beer you can really just give us the stuff I don't know what you're talking about one of those pills on the dresser is making a break for a quick little piece well done the small goes killed there goes our evidence how much you want to bet. Okay Russian your slimy rat Come on come up out at your orders to call k I'll shake a lot of you and I want your mouth you're right there all

right on the credits of the quadrille on it since. You will shake that out of I'm going no you won't give us a hand crank this guys right now right okay just all right slap the cuffs on them now. Do what with this. Oh. Shut up. What a wise guy you're going with us. We're going to get those pillows. You think we've been rough on you so far. Just watch wise guy just watch. When I looked back it gave him a shot. You have got him quieted down so why can't you do it. It just doesn't seem right. I probably have to force a tube into his stomach so force it doesn't seem right. Right Doc. Have you ever seen a teenaged kid that guy's like this got started on that stuff. Now we've got to put him away since we haven't got any evidence on him no.

I look back. Just give him something that will really upset his stomach a bit. Don't they give suspects blood tests and examinations of this would be any worse than I am all right all right. But it's against my better judge will take all responsibility very well but you'd better come with me. He's just about out. But he still might put up a fight. OK let's go. Was. In Volume Three hundred forty two of the United States reports in the case of Roshan vs. California it states at the direction of one of the officers a doctor forced an emetic solution the tube into Roshan's stomach against his will. As a result of the stomach pumping he vomited two capsules which were found to contain morphine. Roshan was brought to trial before a California Superior Court on the charge of possessing a preparation of morphine. Roshan was convicted and sentenced to 60 days imprisonment. The chief evidence against him

was the two capsules they were admitted over petitioners objection although the means of obtaining the morphine capsules was frankly set forth in the testimony by one of the deputies substantially as here narrated. When Roshan appealed his case to the District Court of Appeals in California his conviction was affirmed. The stomach pump evidence was allowed even though the court noted that the officers were guilty of unlawfully breaking into and entering defendant's room and were guilty of unlawfully assaulting and battering defendant while in the room and were guilty of unlawfully assaulting battering torturing and falsely imprisoning the defendant at the hospital. One of the three judges in the District Court of Appeals in California while finding that the record in this case reveals a shocking series of violations of constitutional rights concurred only because he felt himself bound by the decisions of the California Supreme Court. Here is the crux of the matter. It

is one thing to say that the police methods were shocking and unlawful. It is another thing to be able to do something about it at this time one thousand forty nine. It was the law in California not to reject illegally obtained evidence. The California decision on this one which the district court evidently had in mind was written into the law in the case of people versus Mahan in one thousand twenty two. We are not prepared to impose upon the Court of this state the duty and burden of injecting into a criminal prosecution the collateral investigation of every objection that may be raised as to the source from which and the manner in which evidence in the hands of public prosecutors has been obtained. This by the Supreme Court of California meant that no matter how the evidence against Roshan was obtained even by a stomach pump this evidence could be used to convict him. In his opinion our case today Mr Justice Frankfurter stated the due process clause places upon the court

the duty of exercising judgment in revealing state convictions upon the interests of society pushing in opposite directions. This is precisely what we have in the case of Roshan vs. California. It is to the interest of society to see that one who possesses narcotics illegally be punished. It is also to the interest of society to see that efforts are made to stop the use of brutality by the police. The first interest runs contrary to our laws. The second runs against the grain of our traditions of decency. What happens when the interests of society are pushing in opposite directions. In any given situation sometimes the situation as in the legal case such as this one goes to the Supreme Court of the United States. This is one reason why we must have a Supreme Court. This is what is meant by a system of checks and balances. Our laws tell us what is bad and they are made to be enforced. But as

paradoxical as it may seem too much righteousness or over eager law enforcement may be a bad thing too. A nation like an individual is called upon to use its conscience in a variety of ways. What happened in our case today when the United States Supreme Court had to choose between law enforcement and our traditions of decency. On January 2nd one thousand fifty two Mr Justice Felix Frankfurter writing the majority opinion in the case of Roshan vs. California stated you know our federal system the administration of criminal justice is predominately committed to the care of the states broadly speaking crimes in the United States are what the laws of the individual states make them subject to the limitations of the Constitution. These limitations in the main concern not restrictions upon the powers of the states to define crime but restrictions upon the manner in which the states and force their penal codes.

Accordingly in reviewing a state criminal conviction under a claim of rights guaranteed by the due process clause of the 14th Amendment from which is derived the most far reaching and most frequent federal basis of challenging state criminal justice. We must be deeply mindful of the responsibilities of the states for the enforcement of criminal laws and exercise with due humility our merely negative function in subjecting convictions from state courts to the very narrow scrutiny which the due process clause of the Fourteenth Amendment authorizes the Due Process of Law itself and historical product is not to be turned into a destructive dogma against the states. However this court too has its responsibility regard for the requirements of the due process clause in this capably imposes upon this court an exercise of judgement upon the whole course of the proceedings resulting in a

conviction. In order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English speaking peoples even toward those charged with the most heinous offenses. Applying these general considerations to the circumstances of the present case we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner. The struggle to open his mouth and remove what was there the forcible extraction of his stomach's contents. This course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. It has long since ceased to be true that due process of law is heedless of the means by which otherwise relevant and credible evidence is obtained. This was not true even before the series of recent cases and forced the constitutional principle that the states may not base convictions upon

confessions however much verified. If these confessions are obtained by coercion coerced confessions offend the community's sense of fair play and decency. So here to sanction the brutal conduct would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of society. The facts of this case the conviction of the petitioner has been obtained by methods that offend the due process clause. The judgement below must be reversed. This was a portion of the Supreme Court opinion in our case today. Roshan versus California. This decision meant that the illegally obtained evidence against Roshan could not be used and his conviction was reversed. This judgment stands even though it is known that Roshan had morphine in his possession. In his summary for our program today associate justice

of the United States Supreme Court William O Douglass points out that allowing If you are criminals to escape is a small price to pay for a system of justice before we hear Mr Justice Douglas statement as recorded especially for your rights or on trial let us join the producer of this series Philip Gill as he puts two Barry related questions to Federal Judge Jerome Frank author of courts on trial. As recorded at the Yale Law School in New Haven Connecticut. Here are Judge Jerome Frank's answers to two very pertinent questions. Quite honestly judge Frank I suppose it's difficult to work up any real sympathy for Mr. Roshan although the treatment he received was a kind of an ugly ultimate in third degree methods and in forcing a confession. Still is this kind of police spate of years or serious Judge Frank. I mean if we let a few cases like the Russian case go by do you really think it would have any significant

effect on law enforcement and police methods in general. We have at some length expressed our abhorrence of confessions by torture for this reason that practice is unknown in England where to our shame they call it the American method. There are those who say that American conditions compel such official resort to crime to catch and convict criminals. The absurdity of such a view is evidenced by the fact that our most effective American Police Force the FBI and jurors this executable method and in its school for state and city police teaches that the third degree is both detestable and inefficient. Because proof in a court of it's use is most difficult. The only real hope for its eradication lies in the educated influence of such police as the FBI. So that all our American policeman will be trained to detest him repeated an

emphatic judicial denunciations of that barbarism whenever it is exposed as in this case can help to that end until an end is realized. The many decent police officers in a police force generally addicted to that practice will find themselves at so grave a disadvantage that sooner or later they may if they do not themselves indulge in it at least acquiesce in it for the accustomed ways of any group usually come to seeing the right ways. As Chesterton said the horrible thing. How about on legal officials. Even the best about all judges magistrates detectives and policeman is not that they are wicked. Some of them are good. Not that they are stupid. Several of them are quite intelligent. It is simply that they have got used to it. At any rate as long as many policeman third degree the helpless the public will tend to believe that all police officers do likewise. That police

brutality although unfortunate is normal that such a belief is widespread. Anyone can see who reads the hundreds of popular hardboiled detective novels as a consequence the public suspects that almost all policemen deal brutally with suspects. Accordingly the citizenry do not regard the police with respect and fail adequately to cooperate with the police and cooperation without which the police in a democracy cannot officially perform their lawful functions. Worst of all public cynicism develops concerning the basic ideals expressed in our Constitution far repeated and an RE dressed attacks on the constitutional liberties of the humble will tend to destroy the foundations supporting the constitutional liberties of everyone. The test of the moral quality of a civilization is its treatment of the weak and powerless. In the case of Roshan vs. California Judge Frank Roshan is obviously guilty.

Now in putting together a series of this type reaction that I have encountered is that it is only the guilty who escape because we insist on procedural regularities and because we insist on constitutional guarantees. Therefore the guilty can get away. Also that nice people those who are innocent. I never really pushed around. This doesn't happen to them to the innocent. Would you comment on this Judge Frank. It. Is not true that innocent men are never convicted. There have been cases where a man has been convicted of murder and then it is been subsequently discovered that no murder had occurred that the person who was supposed to be the murderer was missing and he turned up later. Let me read a few lines from a new opinion I wrote in United States vs. Murphy. There I said trials fairly conducted

have alas led to the conviction of some innocent men. All such tragedies cannot be avoided. Even in the best of contrived of legal systems. But surely we do. We do not permit tragedies of that sort to result from confessions by torture. That's the end of the quotation in 1932 Broadchurch wrote a book called convicting the innocent which contain many cases of men who had been convicted and who were thereafter found to be innocent. Sometimes they had been in jail many years. Sometimes they were reprieved at the last minute from a death sentence. My daughter Barbara Frank and I are at work on a book now which will include many cases that have occurred since Broadchurch book. These cases come from all parts of the country.

We will attempt to show that this sort of conviction can occur talk almost any kind of person but it isn't limited to the poor and the lonely. Although they are more often likely to be entrapped by such circumstances that was federal Judge Jerome Frank author of courts on trial as recorded at the Yale Law School in New Haven Connecticut. Ordinarily in this series you dear Professor Charles Allan Wright of the University of Texas Law School or I will give the summary of each case and discuss it a bit. On this first program however we have asked Mr. Justice William O Douglass author legal authority and associate justice of the United States Supreme Court to point out what it might mean not to have a Bill of Rights isn't too much stress placed upon methods. In short is there a reasonable and sensible alternative to Due Process of Law. As recorded especially for this program in his

chambers in the United States Supreme Court building in Washington D.C.. Here is Mr. Justice William O Douglass a country that cherishes individual freedom is as much concerned with the means used to bring criminals to justice as it is with the ends them selves. This is a mark of distinction between our democratic system and a dictatorship. The great majority of our police are of course fair in their treatment of people. They are well trained in modern law enforcement techniques. They do their job effectively without resorting to abusive practices. But in a dictatorship the police take the law in their own hands and shape it to the needs of the hour. The right of privacy is violated by midnight raids without the showing of probable cause that a crime has been committed. Wires are tapped and files are searched on suspicion alone and without the supervision of a magistrate. Ugly instruments of torture. The rack the thumbscrew the wheel

and more modernly even the dentist's drill are recorded in history as means used by cruel police to exact confessions. There are of course subtler methods to get a man to break the examination for hours on end by a relay of men with the accused looking into a blinding light unable to see his tormentors. Or he may be weakened by going without food or water or sleep. People have been tried by kangaroo courts that are only instruments of mass hysteria. The accused has been convicted by faceless informers who are not subjected to the risk of confrontation and the rigors of cross-examination. Man a bank condemned without a trial by a legislative body and deprived of their civil rights. These are part of the evils against which our Bill of Rights was aimed. Anyone who studies the history of law enforcement will treasure these procedural safeguards in our Constitution. They are protective they allow

us to live in peaceful comfort free of the terrible anxiety of abusive police practices. A few criminals may use the safeguards to evade punishment but that is a small price to pay for the protection they give. You have just heard the case of the stomach pump evident. The first programme in this series. Your rights are on trial produced by station and cooperation with the University of Minnesota Law School under a grant from the Educational Television and Radio Center. This series is distributed by the National Association of educational broadcasters. The summary of all program today was presented by William O Douglass associate justice of the United States Supreme Court. The consultants for your rights are on trial

are professors of law Brad Paulson and Charles Allen right. Mr. Paulson was the commentator on today's program. This series is written edited and produced by Philip Gill assistant producer William Dale. Your announcer Bert Guerrero. All dramatic roles are portrayed by members of the University of Minnesota radio Gill. What are your rights in relation to wiretap. This question will be answered next week in the case of the wireless wiretap. Join us then. For another authoritative discussion and off dramatization of a Supreme Court case in which your rights are on trial. This is.

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