Robert H. Jackson Center

Need for Effective Criminal Trial System

Chairman Loughran:

Thank you, Mr. Nizer.

Within recent times, as I suppose no one need remind us, upon the bench of the highest court in the land there were three lawyers who were chosen from the ranks of the profession of the Bar of the State of New York: Chief Justice Hughes, Chief Justice Stone, and Mr. Justice Cardozo.

At my right, my brother judges, there sits a lawyer and a statesman who now represents the State of New York upon that high court and who belongs to that distinguished company by his own right.

They have but one term a year in that court. It begins in October and ends in June. The only time they have any real leisure is from June until October comes around again.

Nonetheless for all that, Mr. Justice Jackson, because he is one of us and knows that we recognize him as such and that we admire and respect him and are proud in no mean sense at all, of course, but greatly and grandly proud of him and in that spirit we welcome him here again today.

If you will let me, I will add this one little personal note. Downstairs in the House of the Association of the Bar of the City of New York, as long ago as in the early thirties, when I first attended a meeting of the Judicial Section, being then only a little while a trial judge in upstate New York, Robert H. Jackson, as he then was, gave us a talk. I spoke about it to Judge Sears, who presented him to me, and he was kind enough to say something that lifted up my heart, something about what the trial judges in upper New York State said of me. I tell it only for this reason: When I sought to thank him for it, he said, "After all, the Bar gives back to the Bench what it gets from the Bench." That is a piece of counsel which I have tried to keep at the top of my mind ever since and which I strongly commend to your consideration.

I am very happy to have this very high privilege of presenting to you our own Mr. Justice Robert H, Jackson.

Hon. Robert H. Jackson :

Chief Judge, fellow members of the bench and bar:

It is a great pleasure to me to be here. It was worth leaving Washington and coming up here just to hear you elect officers. I didn't know that so many judges could ever be unanimous about anything, but that is accounted for perhaps, by the change of atmosphere between here and Washington.

I am always glad to attend these sessions. After all, this Bar is my Bar, and, as Kipling said about the people with whom he lived : "I have eaten your bread and salt, "I have drunk of your water and wine. "The deaths ye have died I have watched beside, "And the lives ye led were mine."

So it is coming home to come to this meeting and I feel just that way about it.

There is another reason I am always glad to come here. I am proud of the Bench and Bar of the State of New York. It isn't a pride based entirely on having come from here. It is our lot on the Supreme Court to look over perhaps more or less casually the work of Courts of the forty-eight states as well as the Federal Courts. I have pride in the craftsmanship, the fine judicial spirit that characterizes the work of my State and my Circuit.

The Supreme Court is, in a way, an international court, because under the Fourteenth Amendment, it sometimes must review decisions of the highest courts of sovereign states. It deals with them certainly more frequently than it used to, and, perhaps, I think sometimes more than we ought to. But it is interesting to trace the development of particular doctrines of the law as they have moved from state to state.

The Bar of the seaboard states have been cradles in which were raised lawyers who went to Westward and became the pioneer lawyers and the early judges in new territory. They carried the teaching of our Eastern seaboard courts with them, as often in their minds as in books. But they adapted their learning rather freely to the new conditions they met, and provide the bar, as a nation-wide profession, with a spirit and example of changing old concepts to meet new conditions.

I know why you chose Mr. Nizer to speak today. He said many things that you, I suspect, would like to say, but, being on the bench, you can not say.

We certainly are confronted with difficult times in which to try to exercise the judicial function. It is essentially the function of being reasonable and of deciding controversies by reason and tested evidence, and that is, in celebrated cases at least, difficult to do in the context of a society which passionately holds and has so many means of spreading conclusions which are not based upon evidence or reason at all.

I can not help being impressed by emotionalism of the comment I have heard about several recent cases. Almost invariably positions are taken without any reference to what is going on in court--passionate advocates of innocence, passionate advocates of guilt, pay not the slightest attention to the evidence, but base their view entirely upon considerations that are outside of the trials.

I suppose that no judge would want to prevent lawyers from making even passionate or ill-considered defenses for any man who is unfortunate enough to be in court. We know that the rights of men are only as good as some advocate will make them. None of the great protections of our Bill of Rights are self-enforcing. They are only good when a lawyer makes them good. Therefore we want to preserve the broadest freedom of the bar to defend.

But Chief Justice Taft some years ago said that criminal justice in the United States is a disgrace, and perhaps you would stand for the addition to that observation that it is not improving much.

Certainly if we are to preserve the freedoms which we value so highly, which are a part of our way of life, we must have an effective criminal trial system.

I do not know what your experience in the State Court is, but it seems to me that a trial in the Federal Court is interminable. It seems almost impossible to get the worst of criminals, charged with a bailable offense, in jail within a couple of years. Swift and moderate punishments, in my opinion, is better than delayed and severe penalties. I do not criticize lawyers for availing themselves of all the ways of defense that there are. But if in each criminal case they can put the Government on trial for six or eight months, as to whether the grand jury was properly constituted, and then another few months as to whether the trial jury is properly constituted, and then another few weeks or months as to whether the prosecution came by its evidence in ways that are proper, and then you go on with the trial indefinitely, and then you go to the Court of Appeals, and then you go on to the United States Supreme Court: and you apply for rehearings in each of those cases, and then you start over again with writs of habeas corpus, the process of getting and keeping in jail a man who ought to be there is pretty near endless and hopeless.

We have one litigant, whose name is well known in this Circuit, who has filed upwards of 400 applications for writs of habeas corpus and has forced judges many times to hear them, We have applications made to us so absurd that it is difficult to conceive that they are made by members of the Bar. One was denied a short time ago, two days ago, in which we were asked to compel by mandamus the District Judge--the trial had long since passed--to reverse the judgment of conviction. It didn't ask us to take the case for review, by appeal or certiorari, it just asked us to order the trial court to reverse itself, and by way of good measure asked us to compel the attorney-general to confess error. I don't know whether applications of that kind proceed from ignorance or from a fanatical search for headlines.

Any system of criminal jurisprudence which postpones finality as long as ours does is very difficult to administer with decent efficiency. Of course, in reformation, everybody wants to preserve the right to make a vigorous defense for the most unpopular of accused people. We do not need to discuss in a gathering of this kind the importance of having a free Bar. But society has its rights as well and our criminal system needs thorough overlooking and overhauling to the end that these rights may also be preserved, but preserved in manners consistent with the rights of the individual.

I believe there are many improvements that can be made. I believe there are ways in which we could eliminate some of this delay and repetitious appeals to courts and pleas for rehearings which must be based on the proposition that the Court did not do its work properly in the first place.

One thing that was deeply impressed on me, more deeply than ever, by the little experience that I had abroad holding a post mortem examination of the Nazi regime, is the importance of a free Bar, a courageous Bar, a Bar that is patriotic and devoted to professional standards, and a courageous and independent judiciary. They are the last things to go and, when they go, there is nothing left worth while.

Judges will often differ in particular instances as to what judgment should be rendered; we will differ as to the reasons. But unless we can have courts with the courage to stand between the Government and the citizen, and courts that also have the capacity to deal with the accused citizen when he deserves it, if we cannot apply the law to both by reasoned adjudications, then there would be no hope for the liberties that we prize.

I believe that meetings like this in which we get together to discuss our problems, derive courage from each other, renew our faith in each other, our faith in the judicial process, and our faith in the profession, are good for us. That is why I am glad to be here and to meet so many old friends.

It is a great pleasure, and I hope that I will always have the privilege, as long as I am in this kind of work, to come and meet with you in your gatherings, and that you will not always have to be afflicted by a speech from me.

Chairman Loughran:

Thank you, Mr. Justice Jackson.

Now, my brother judges, I declare this most interesting and inspiring meeting adjourned.

(The meeting adjourned at 3:10 p.m.)