Baker v. State

Concurring Opinion

Arterburn, J.

— I concur in the majority opinion, and particularly what is said about the United States Su *139 preme Court opinion in Irvin v. Dowd (1961), 366 U. S. 717 , 6 L. Ed. 2d 751 , 81 S. Ct. 1639 . I point out first that in a prior 5-4 decision of the same case [(1959) 359 U. S. 394 , 3 L. Ed. 2d 900 , 79 S. Ct. 825 ] that court barged over into purely a state procedural matter. It held that it could nullify the decision of the Supreme Court of Indiana affirming the conviction of Irvin (Irvin v. State (1957), 236 Ind. 384 , 139 N. E. 2d 898 ). Our opinion in that case was based upon and turned upon the purely state procedural principle that by reason of the escape of Irvin pending the time the trial court had before it his motion for a new trial, he thereby forfeited his right to have the court rule on such a motion or claim any error, and as a result we held he had no basis for any appeal to the Supreme Court.

Justice Frankfurter, dissenting to the assuming of jurisdiction by the United States Supreme Court, stated:

“In view of so vital a limitation on our jurisdiction, this Court has, until relatively recently, been very strict on insisting on an affirmative showing on the record, when review is here sought, that it clearly appear that the judgment complained of rested on the construction of federal law and was not supportable on a rule of local law beyond our power to question.” (Our italics) Irvin v. Dowd (1959), 359 U. S. 394, at 409 , 3 L. Ed. 2d 900, at 909 , 79 S. Ct. 825, at 833 .

The dissenting opinions in that case further pointed out that if the United States Supreme Court had any doubt as to whether our state Supreme Court opinion was based upon a federal question or purely a state procedural question, the proper thing to do would be to certify the case and question to our court for clarification upon that point. However, a majority of the United States Supreme Court seemed to be unduly *140 anxious to take over the case, and we thus find that that court ignored the basic rule that it must be clear that the case in the state court turned purely and solely on a federal question before the federal system will interfere in the state’s jurisdiction of a criminal case.

When the case was finally taken over by the United States Supreme Court and reviewed on the merits ((1961), 366 U. S. 717 , 6 L. Ed. 2d 751 , 81 S. Ct. 1639 ), for a second time that court violated a well-established principle of appellate review. As Judge Achor states in the majority opinion, it assumed the role of a trial court and proceeded to weigh the evidence and determine the credibility of prospective jurors and witnesses, as against such a determination and finding of fact by Judge Eby, the trial judge who heard and saw such persons. When the habeas corpus case was appealed to the Seventh Circuit Court of Appeals on the ground that Irvin was not receiving due process of law because (as he alleged) the jury was prejudiced, Judge Schnackenberg, in the opinion of that court (Irvin v. Dowd (7 Cir. 1959), 271 F. 2d 552, at 555 ), stated:

“The record reveals that the trial judge applied this act in this ease. With painstaking care, the court, in asking questions of jurors expressing an opinion as to the guilt or innocence of defendant, founded upon reading newspaper statements, communications, comments or reports, or upon rumors or hearsay, required each such juror to state on oath_ whether he felt able, notwithstanding such opinion, to render an impartial verdict upon the law and evidence. Several of those who answered in the affirmative were accepted upon the trial jury. Defendant now seeks to have us determine, as a matter of federal constitutional law, that this action by the trial court deprived defendant of a fair trial.

*141 “We have no right to question the intelligence, the truthfulness or the sincerity of these jurors, whose impartiality to render a verdict upon the law and the evidence was, after examination, determined to the trial judge’s satisfaction, in the manner provided by the Indiana act.

“A careful reading of the entire record convinces us that the jury which tried defendant was properly qualified as a fair and impartial fact-finding body.”

The United States Supreme Court, however, overruled the Seventh Circuit Court of Appeals and got down on the trial bench and substituted its finding as to the credibility of the jurors and the witnesses for that of Judge Eby of the trial court. This was a second violation of the principles of appellate review.

Aside from the ignoring of those two principles of appellate practice, we have a far more practical question presented by the United States Supreme Court in the selection of a jury. It would appear under the prevailing opinion of that court that the more horrible, revolting, or shocking the crime, the less likely would the State be able to secure a jury to try the defendant. Such a policy encourages the notoriety and violence connected with crime and its publicity over radio, television and other news media, thus making the securing of a jury impossible. The United States Supreme Court has lost sight of the duty which the State owes to protect the lives of the good citizens against criminal attack. That duty is as sacred as the duty to protect the innocent against conviction.

With the recent national tragedy of the assassination of our President and then the killing of the assassin, we are brought to a realization that such killers cannot be tried in any of our fifty states under the decisions of the United States Supreme Court. The long *142 period of publicity over radio, television and in the newspapers was carried to everyone in this country. The problem is, on last analysis, whether the shocking resentment of the people following such events, may be relied upon by the defendants to prevent the State from prosecuting such persons. It would be impossible to find a jury of intelligent men who have not some knowledge of and expressed some opinion about the events. Judge Schnackenberg stated in his opinion (Irvin v. Dowd, supra) :

“If the State is so prevented from trying such a person, it means that the commission within a state of a multiplicity of criminal acts, followed by the usual publicity, actually immunizes the offender from prosecution. We reject such a conclusion as a law of this circuit.”

However, the United States Supreme Court rejected the decision in that case. We ask: Will writs of habeas corpus in federal courts now be the means of freeing people charged with notorious crimes, even though the trial judge has conscientiously and impartially selected a jury of men in conformity with the law of the state? Will the United States Supreme Court continue to get down on the bench of the trial court and substitute its personal judgment as to the credibility of witnesses and as to the weight of the evidence over that of the trial judge who heard, saw, and knew those testifying? I am afraid this must be answered in the affirmative. In a recent case (Fahy v. State of Connecticut, December, 1963, 375 U. S. 85 , 84 S. Ct. 229 ) the United States Supreme Court, in a 5-4 decision, again usurped the trial court bench and weighed the evidence. A dissenting opinion by Justice Harlan points this out when he stated:

*143 “Evidentiary questions of this sort are not a proper part of this Court’s business, particularly in cases coming here from state courts over which this Court possesses no supervisory power. This is not the rare instance of a state conviction which rests upon a record that is devoid of any evidence to support the charge against the defendant, (Cases cited)....”

There must be some reasonable limitation upon the abstractions of the United States Supreme Court when applied to the practicalities of everyday life.

The history of the Irvin case reveals the United States Supreme Court performing the function of a trial court rather than a court of appeals. Because of its violation of the principles of appellate review, such a decision can have no weight as a precedent.

Note. — Reported in 195 N. E. 2d 91 .