Error-Centricity, Habeas Corpus, and The Rule of Law as The Law of Rulings

• Author: Roger Berkowitz
• Position: Visiting Assistant Professor, Cardozo Law School
• Pages: 477-517

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Visiting Assistant Professor, Cardozo Law School; J.D. Boalt Hall, Ph.D., Jurisprudence and Social Policy, UC Berkeley. I would like to thank Laurent Mayali and Bronwen Morgan for their fruitful discussions during the formative stages of writing this article. David Gray Carlson, Jenny Lyn Bader, Drucilla Cornell, and Gabriela Ann Eakin read and helpfully commented on various drafts of this essay. I also benefitted from discussions with Uday Mehta.

Objektivitt und Gerechtigkeit haben nichts miteinander zu thun.

-Friedrich Nietzsche¹

[Objectivity and justice have nothing to do with one another.]

I Introduction

On August 10, 1927, as hundreds of thousands of protesters marched in New York, Paris, Berlin and in cities from South America to the Soviet Union, as workers around the world called general strikes and took to the streets, and as, in the words of one commentator, "the world waited,"² a team of attorneys representing Nicola Sacco and Bartolomeo Vanzetti sought out United States Supreme Court Justice Oliver Wendell Holmes, Jr. Trailed by journalists to Holmes' Beverly, Massachusetts summer residence, the attorneys pleaded with the Justice to grant Sacco and Vanzetti a writ of habeas corpus. If Holmes were to grant the writ, the murder verdict against the two Italian-American anarchists would be nullified, and they would be set free pending a new trial. As Sacco and Vanzetti were scheduled to be executed that evening, time was short and tensions were high.

Accused of murdering Frederick A. Parmenter, a paymaster, and Alessandro Beradelli, his guard, during the payroll robbery of the Slater and Morrill shoe factory on April 15, 1920, Sacco and Vanzetti had been convicted by a unanimous trial jury on July 14, 1921. They appealed the decision, arguing both that they were innocent and that they had been denied constitutional and statutory procedures necessar Page 478 to guarantee a fair trial.³ Massachusetts law at the time stipulated that the only judge to rule on the merits of the appeal could be the trial judge,⁴ Webster Thayer, who himself stood accused of prejudice and partisanship against the defendants. It was only after Judge Thayer had refused all of the appeals and had sentenced Sacco and Vanzetti to "suffer the punishment of death by the passage of a current of electricity through [their] bod[ies]...", and after the mercy of executive clemency had been denied by the governor, that the lawyers-with the execution of Sacco and Vanzetti looming-took the then extraordinary step of seeking a writ of habeas corpus.

Habeas Corpus-literally translated: have the body present-was, and technically remains, a civil-as opposed to a criminal-law procedure available to prisoners held without legal authority.⁵ Habeas corpus cum causum and its successor writ, habeas corpus ad subjiciendum were originally writs designed to compel the appearance of a defendant in court. They were employed by English justices in the 17th century to free prisoners held by the King or his representatives without legal cause.⁶ The breadth of the writ extended to many kinds of improper confinements. It provided wives relief from illegal detention by their husbands,⁷ it gave persons committed to asylums the right to secure a medical review showing cause for confinement,⁸ and it enabled slaves brought into English territory to escape being sent back to slavery in the U.S.⁹ The writ of habeas corpus, Alexander Hamilton wrote in Federalist 83, was, along with trial by jury, the necessary and sufficient bulwark against "arbitrary methods of prosecuting pretended offenses, and arbitrary punishment upon arbitrary convictions."¹⁰

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Hailed as the "Great and efficacious writ," habeas corpus has long been considered one of the treasured inheritances of the English struggle for individual liberty and the rule of law. It has been "'esteemed the best and only sufficient defense of personal liberty;'"¹¹ no lesser authority on English law than William Blackstone has hailed habeas corpus as "another Magna Carta,"¹² and Supreme Court Justice Felix Frankfurter claimed that "[i]t is not the boasting of empty rhetoric that has treated the writ of habeas corpus as the basic safeguard of freedom in the Anglo-American world."¹³The writ was considered so fundamental a protection of personal liberty that the founding fathers guaranteed its availability in the United States Constitution.¹⁴ In 1867, more than fifty years before Sacco and Vanzetti sought to save their lives with a writ of habeas corpus, the Supreme Court gushed that habeas corpus was a remedy "for every possible case of privation of liberty contrary to the National Constitution, treaties or laws. It is impossible," Chief Justice Chase continued, "to widen this jurisdiction."¹⁵ The idea, therefore, that a writ of habeas corpus could be used to prevent the happening of a grave injustice was in itself neither out of the ordinary nor new.

While habeas corpus had long been a bulwark protecting individual liberty, Sacco and Vanzetti's claim that their convictions were injustices remediable by habeas corpus was at the time radical. In spite of its reputation, the writ did not inquire into the guilt or innocence of the prisoner,¹⁶ but only into whether the detaining authority had the proper legal jurisdiction to adjudicate the proffered cause.¹⁷ Habeas corpus was not, until the latter half of the 20th century, a legitimate means of addressing factual or procedural trial error in state courts.¹⁸ Even if, as has been argued recently, the scope Page 480 of review in habeas corpus cases expanded in the early 20th century to include errors of law as well as mixed legal and factual errors,¹⁹ the fact remained that the writ could neither open an inquiry into the petitioners' innocence,²⁰ nor could it grant post-conviction relief as a result of mere errors of law. "It is certainly true," Holmes wrote in Moore v. Dempsey, "that mere mistakes of law in the course of a trial are not to be corrected [by habeas corpus]."²¹ Legal error alone, absent some further circumstance voiding the trial court's jurisdiction, was not enough to justify issuing a writ of habeas corpus.

While it has been suggested that the Court's emphasis on jurisdiction as the main inquiry in habeas corpus cases has been perfunctory,²² the Court continued to insist that valid claims for a writ of habeas corpus challenge the jurisdiction of the trial court. In Matter of Moran, for example, Justice Holmes held for the Court that a claim of error regarding the forcing of a defendant to incriminate himself in violation of the Fifth Amendment could not be recognized under the writ of habeas corpus, because "it did not go to the jurisdiction of the court."²³ Even in Moore v. Dempsey, where the Court granted a writ to African-Americans whose trial jury had been intimidated by a mob, Holmes reaffirmed the traditional view that mistakes of law could only give rise to a claim of habeas corpus "if the case is that the whole proceeding is a mask-that counsel, jury and judge were swept to the fatal end by an irresistible wave of public passion, and that the State Courts failed to correct the wrong."²⁴

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In short, habeas corpus could only free a prisoner convicted in a U.S. court when that court was so infected with non-legal norms as to forfeit its presumptive jurisdiction.²⁵ Particular legal errors that denied a defendant important constitutional protections were, taken alone, insufficient to allow the granting of a writ of habeas corpus. Only when both the errors at trial were so extreme as to render the legality of the proceeding a sham, and when the corrective procedures-as distinct from the results-were deemed so insufficient, could a court be obliged to grant a writ of habeas corpus in order to avoid a violation of the due process clause.

In the case of Sacco and Vanzetti, Justice Holmes, consistent with legal dogmatics of the age,²⁶ could not readily grant Sacco and Vanzetti writs of habeas corpus. The procedural errors the prisoners alleged were serious violations of their constitutional rights, and certainly threw the fairness of the convictions into doubt; the errors, however, did not throw the entire legality of the proceedings into question. Sacco and Vanzetti could not rightly claim that their trial was void, a mere empty form without legal substance.²⁷ Holmes refused to issue the writ, and Sacco and Vanzetti were executed.²⁸

In his private letters, Holmes makes it clear that he had doubts about their guilt, even writing that "my prejudices are against the conviction."²⁹ Nevertheless, he took a kind of joy in defending his decision. Holmes saw himself as heroic for accepting the necessary fact that the law involves violence and even injustice. Holmes' favorite judicial maxim is that law has little to do with justice: "'I hate justice,'" Holmes wrote to the famous jurist Learned Hand. Page 482 "'[Justice] is not my job. My job is to play the game according to the rules.'"³⁰ Since Sacco and Vanzetti had been tried and convicted according to legal rules, Holmes did not see that the possible execution of innocent persons represented an injustice for which habeas corpus might be a remedy.

Habeas corpus jurisprudence changed radically in the latter half of the 20th century.³¹ The writ is now accepted as a method for prisoners, convicted in state court trials and whose convictions have been upheld on appellate review, to have federal courts review the state court proceedings looking for federal constitutional error. While this modern application of habeas corpus...