The Charlotte News

Saturday, September 17, 1938

FIVE EDITORIALS

Site Ed. Note: We take strong issue with the view expressed in "Common Sense in Law"--whether by Cash or Dowd it is, we can't say.

Although the ultimate point therein conveyed is not entirely inconsonant with what we wish to stress, the so-called legal "technicality" of which it blithely remarks is, at least in the criminal context, too often misunderstood and cast about as if a walk-weary boot, smelly and cracked, when as often these "technicalities" are of the profoundest stripe, that implicating the very rights on which this country is founded: the Fourth Amendment right to be free from unreasonable searches and seizures; the Fifth Amendment right to have Due Process of law and the privilege against self-incrimination; the Sixth Amendment rights in criminal trials to a trial by a jury of one's peers, the right to confront and cross-examine witnesses and present evidence through an effective advocate; the Seventh Amendment right to a trial by jury in the civil context; and the Eighth Amendment right to be free from cruel and unusual punishment.

While the editorial does not question the raising of these weighty issues on appeal and stresses its point in the civil context, nevertheless, often it is the improper comment by a prosecutor in the criminal context or attorney in the civil context, the admission of irrelevant, prejudicial evidence, improper instructions by the court to a jury, the latter often boiling down to particular words or loaded charges to a jury essentially directing the jury's verdict in favor of the prosecution or to one side or the other in the civil case, which most usually form the source of asserted errors on appeals--precisely, the "technicalities" in misapplication of the law and procedure.

Common law rules typically provide that mere technical error is not enough for reversal but that the error must prejudice the person raising it. And the standard defining prejudicial error is typically to the effect that but for the error a more favorable result would likely have occurred for the party raising the issue. Miscues importing deprivations of Constitutional rights are dubbed "plain error", requiring no additional showing of prejudice, their importance to maintaining the essential rights inherent in a trial under our system of jurisprudence, and adherence to the aforementioned Constitutional standards, being enough to warrant a new trial.

Thus, the mere "technicality", often reduced to a seeming bagatelle by press accounts of the more arcane appellate decisions handed down by courts, is usually, if considered by an appellate court as ground for reversal of a case, more than merely that: rather, an error which confounds in some manner the basic fairness of the trial, one not properly corrected by the trial court, such as by proper admonition to the jury in such a manner to unring the rung bell, or one not thus correctable, harder of course the more egregious the gaffe in the presentation of evidence or cross-examination of witnesses, even more so if the court itself was the source of the error.

Most usually, these are not mere legal tripwires, so-called technicalities, which in fact provide grounds for reversal of either civil or criminal cases, popular notions to the contrary notwithstanding, especially today among the uninformed "sock the juice 'n' bars to 'em" crowd. Instead, appellate courts rather most usually rely on the old saw which runs in the vain that when appellate judges see a case which appears on its record to be essentially just in its presentation and result, few errors will catch the eye to warrant reversal, but if an essential injustice appears to have been done, the court will comb the record to find the error upon which reversal may be granted, (in the blunt variants of the aphorism: "...we will damn well find it!").

And so it goes. Justice is never the mechanical application of rules of law to facts as facts are in such variance usually as the variance of human conduct itself that no set of laws may embrace every set of circumstances neatly; however, the departure from objective standards and application of law into the realm too much of "common sense" invites the ad hominem application of law, essentially life-affecting decision-making based on the most imperfect human subjectivism ungoverned by standards against which to compare personal judgment, which when carried to extremes can lead to anything but justice and fairness in result--the objective rights of individual citizens becoming subjugated to the whimsy of public officials, to trolling for votes from the bench or bar, to individual fiat rather than appropriate legal, institutional definition to charge and evidentiary basis therefor, rendering thus in its end effect a chill on the conduct of the community generally. Stay in line, stay in the good grace of the powers that be, boy. Else face the whiphand of "justice", right or wrong, truth or falsity, in any abstract, objective sense of the terms, having no place here. Where'd you get that, some flea-bitten, moss-eaten tribal hornbook?

And that circumstance in any society of course is a dangerous prelude to the end of democracy and a view of its constitution, any constitution of any democracy, as merely a quaint piece of parchment under glass, served up each day from cold storage only for the tourists to view in wide-eyed admiration of its finely laid foundations, its enduring writ of mart, sublimating the while to extinction as dangerous the notion that its present vitality brings no more curtilage to the individual's security than phantasm. Such a society, being far from a vibrant democracy recognizing the inherent rights of freedom and individualism, not merely according them as temporal privilege to be handed by the state to those who toe the expected mark, is on its way to recognition only in dust-puffed pages found in dim, dreary back-stacks, up winding cold spirals in the midnight hour still extant only for study crams before suddy exams on what a society must not do to survive, much as exemplars Rome and the Greek city-states provide to modernity.

We make no comment as to where our society is presently on the continuum of exultation to desolation, but it is always worth remembering that any society remains, in varying degrees, in a state of flux, poised on the balance of time, ready to tip this way or that, and if too far it goes in either direction, crumble from its moorings, twisting and turning itself off the fine-running pinion to the groundling start again, it might.

And, having indited our disagreement, we find from the day's previous editorial page that General Hugh S. Johnson, a lawyer himself, agreed--perhaps explaining, if the below editorial is by Cash, why its author would have disagreed, so profound was Cash's distaste for Johnson. (But then again, recall that Cash quit law school after a year for he found it required "too much mendacity".)

Said the General, referring to the NYC D.A. Dewey prosecution of Tammany Hall bagman Jimmie Hines, (as also commented on in the editorial immediately below), and its abrupt termination on declaration of mistrial by Judge Pecora for Dewey's propounding a prejudicial question--apparently a conspiracy trial, says Johnson anyway, in which, fatal to the force of the indictment, the overriding stench was that there was only one defendant:

That is it precisely, General.

Actually, we find that when Johnson stuck to matters of domestic civil liberties, he seems to have usually got it right, despite his erratic record on the foreign scene, essentially positing himself as an isolationist. In any event, in the latter guise, he presented a handy and usual foil for Cash's contra points, more regularly acerbic toward the General by 1940.

District Attorney Dewey will deliberately repeat, in the re-trial of the Hines case, the question that caused Justice Pecora to declare a mistrial, his assistants say. They insist that there was nothing wrong with the question in the first place and that the references Justice Pecora cited as authority for throwing out the case were irrelevant.

Well, this may be. But the case has been thrown out. It can be thrown out again, and the prosecution has no right of appeal from the judge's decision. More than some technicality of the law, more than the politician Hines is involved. Mr. Dewey represents Public Integrity which has a score to settle with Corruption. To jeopardize the settlement a second time, deliberately would show up a serious weak spot in the people's counsel. For Mr. Dewey is a Republican, be it remembered, whereas the judge who called him down is a Democrat. Mr. Dewey probably irks under that humiliation but in the case against Hines he is representing the people, not the Republican Party--and representing them pretty ably, too.

The European war scare has overshadowed in the news an upheaval in international currency relationships. Most of us remember the storm of conflicting criticism and commendation which resulted in 1933 from the American Government's "clipping" of the gold dollar from 100 cents to 59. Foreign exchange rates have fluctuated so widely since 1914 that many persons have forgotten that the historic value of the pound sterling in terms of American dollars was 4.866.

In times of former distress, however, the value of the pound shot up to around $7. Several years after the World War it was tied again to gold, re-establishing the old relationship with the dollar. Then came the financial debacle of 1929, and in 1930 England cut the pound loose from its gold anchorage, and its value in dollars fell to around $3.50. And thereafter capital took flight from the American dollar, and all that President Hoover did was of little avail in retarding the tremendous outflow of American gold.

It was in 1933 that Roosevelt devalued the dollar. Since that time the gold flood has all but inundated the American treasury. Today this nation possesses slightly more than half of the world's known supply of monetary gold and recently many millions of additional dollars' worth has been received from Old World countries, principally England. The flight of capital now is from the pound to the dollar--another of those powerful movements of funds that have plagued the world's business frequently since the war upset the delicate balances of currency relationships. The result has been to depress the pound, or to boom the dollar, and the English currency now is quoted at about $4.81.

Thus, so far as the pound is concerned, the devalued dollar now represents $1.01 in gold. Its fluctuations has increased the difficulty in maintaining America's already sadly depressed export trade and for the Englishman, has made the dinner table come dearer.

"Auf Wiedersehen," called out Mr. Bumble to his German hosts as he took plane at Munich-- "Until we meet again." "Good old Neville," the English crowd shouted at Croydon.

But in Czechoslovakia no such cheer prevails. Quite the contrary. In Czechoslovakia horrible suspicion is working in the breast of the Government and perhaps in the people that Well Wisher Chamberlain's cheeriness traced to the fact that he had about framed in his own mind the first draft of a bill of sale conveying a desperate little democracy heart, soul and body to its worst enemy. Certainly he left behind him in Germany sanguine expectations of something on that very order justifying Hitler's appraisal of the Englishmen he had to deal with as intimated in his instructions to Konrad Henlein, Sudeten Party leader, to "ask for more, you'll get it."

It all, you see, is a part of Mr. Bumble's miraculous policy of "appeasement." He has appeased Italy by giving her a free hand in Spain at France's backdoor. He has appeased Germany by letting her have Austria without protest, making it essential to round out German territory into circular shape by cutting a line straight through the heart of Czechoslovakia. And there is a dreadful fear in Czechoslovakia that Mr. Bumble has gone even further--and that he has consented not only to the handing over physically of the Sudeten areas to the Reich but the destiny of the rest of Czechoslovakia as well. And in Mr. Bumble's own England there must be a horrible fear that he has purchased with his temporary appeasement only an interlude permitting Hitler to dig in and prepare for the ultimate domination of Central Europe no matter who stands in his way.

In that light Mr. Bumble's Auf Wiedersehen to his hosts becomes ominously prophetic indeed. They will meet again undoubtedly, and again and again and again.

The violent end of C. C. Hook was utterly at variance with the personability of the man. Gentle, artistic, of catholic taste and interest, he moved through life with a manifest sensitiveness that makes the matter of his death all the more tragic.

"It is a fearful thing to see the human soul take wing in any shape, in any mood." It is all the more fearful when a fellow man, beloved for his friendliness and respected for his professional and personal virtues, is borne out abruptly and alone.

Among the new set of rules for Federal court procedure promulgated by the Supreme Court--which are evidently so complicated that the Associated Press despairs at making heads or tales of most of them--is one to the effect that a loser in a civil action cannot ask for a new trial on a technical error unless it can be shown to have affected the outcome of the case.

This looks like common sense, a quality which the law has more and more subordinated. Because the judge coughs insignificantly in the wrong place or the plaintiff's attorney asks an irrelevant question or the niceties of procedure are ignored--all this the layman considers of minor importance to the basic question of justice. Oh, the rights of accused persons and the ho's and hum's of civil litigation must be preserved we grant--otherwise, innocent persons might suffer.

But as matters have gone in the past, especially in criminal procedure, the shoe was on the other foot. Crooks beyond number have got off because smart lawyers have found technical flaws in an indictment or in the manner of presenting evidence or in some procedural formality. There are criminal lawyers whose boast is that they've never had a client hung, not because they never had a client who fully deserved to be hung, but because they were alert enough to pounce upon some technical error.

Technical errors in Federal civil cases are of no consequence henceforth unless they affect the outcome of the case. Now, if something of that same common sense could only be applied to Federal criminal cases and to civil and criminal actions in State courts...