The Rape Case: A Young Lawyer’s Struggle for Justice in the 1950s, by Irving Morris, tells us at least as much about its author as it does about the facts of the underlying case, which concerned an encounter between an unnamed young woman and three young men in Wilmington, Delaware’s Woodlawn Park in the early hours of October 30, 1947. The book, Morris writes, “is essentially the story of a fledgling lawyer’s struggle to overturn the result of a flawed trial by proving…police perjury.”
Irving Morris’s vivid recollection of events that occurred many decades ago demonstrates how the intangible benefits that lawyers receive from unpaid devotion to their profession generally far exceed the value of fees received from paying clients. I have often quoted the advice that John Adams gave to a younger lawyer: “Now, to what higher object, to what greater character, can any mortal aspire than to be possessed of all this knowledge well digested, and ready at command to assist the feeble and friendless…?” Morris’s story exemplifies this lesson. As he writes toward the end of the book, “Even though my clients paid little, I know I have earned far beyond what I ever imagined I might receive from successfully representing them.”
As the story unfolds, we learn how a competent lawyer responds to a series of defeats in protracted litigation. We are not told about the later events that made Irving Morris a leader of the corporate bar and the president of the Delaware State Bar Association. I shall mention one of the most dramatic of these to disclose my bias in the author’s favor. In the 1960s, Morris was retained to defend the former directors of a corporation against a lawsuit that challenged their decision to compensate themselves with stock options for finding a buyer of the corporation’s only significant asset—a sizable carry-forward tax loss. I was one of those directors and testified in that case.
As my lawyer, Morris was to cross-examine the witness who would provide contrary testimony. I will never know how that cross-examination would have unfolded because, in a strange turn of events, the witness suffered a heart attack as he was being sworn in, and keeled over and died a few minutes later. Needless to say, Morris won the case. Morris has told me he thought about that case on January 20, 2009, as he watched me administer the oath of office to Vice President Joe Biden. Morris is likely the only spectator who could identify both participants in that ceremony as former clients. Of course, in his book he quite appropriately does not mention Biden, me, or any other former clients, with the exception of the three young men who were unjustly tried in the 1948 rape case for what was then a capital offense.
At about 1:45 AM on October 30, 1947, one of those men, “Sonny” Jones, and a young woman were stopped by a police officer after they left Woodlawn Park. Although the woman told the officer “that she did not have any trouble,” when another squad car arrived she stated that Jones and two other men had raped her in the park. The police took Jones into custody, and began to interrogate him at 2:15 AM. Jones identified “Bud” Curran and “Reds” Maguire as the two other persons involved, and they were taken into custody. By about 4:00 AM, two officers had secured and witnessed a statement by Jones. Two other officers obtained a signed statement from Curran by about 4:30 AM, and the original two officers obtained one from Maguire by 5:00 AM. About twelve hours later the police presented the three men with a second set of statements, saying that the initial set had just been retyped for “neatness.” Each of the three signed his second statement without reading it. Whether there were two sets of statements by the defendants, as they testified, or just one, as the police officers testified, became an important, disputed issue at the trial.
Morris’s description of the jury’s delivery of its verdict contains a haunting reminder of the risks of arbitrariness that are associated with the death penalty. He quotes from the trial transcript and news stories, as follows:
MR. MALONE: Ladies and gentlemen of the jury, have you agreed upon a verdict?
THE FOREMAN OF THE JURY: We have.
MR. MALONE: Who shall answer for you?
JURORS: Our foreman.
MR. MALONE: How say you, Madam Foreman, do you find the prisoner, Francis J. Curran, guilty in manner and form as he stands indicted in the first count or not guilty?
THE FOREMAN OF THE JURY: Guilty.
When the forelady, Isabelle Booth, spoke the single word “guilty” about Curran, “There was an electrifying silence while the word penetrated through the courtroom.” Because the jury had not recommended mercy, the guilty verdict meant an automatic sentence of death. The lawyers had not merely lost a case; their clients were going to die. Reinhardt was the first defense lawyer to react: “I ask that the jury be polled.”
What then ensued was as dramatic a scene as had ever occurred in a Delaware courtroom. With a nod of assent from [the judge], Deputy Malone went forward to poll the jurors one by one. In response to the question, “Is that your verdict?” the first eight jurors confirmed it was. The ninth juror, Richard E. Porter, answered, “It is, with a recommendation of mercy.” Porter’s different response did not register with Malone as he continued with the same question to the tenth juror, Louis H. Talley. Talley responded, “It is. We couldn’t hear Mrs. Booth, with a recommendation of the mercy of this Court.” Whereupon Mrs. Booth interjected: “I did not know whether I was to give that now or when you finished, but we do make that recommendation.”
The recommendation of mercy, provided two of the three judges accepted it, meant the court would impose the statutorily mandated sentence of life imprisonment upon Curran, Jones, and Maguire. Without the polling, there would have been no recommendation, and the issue of the trial’s unfairness might well have died with the three accused.
Arbitrariness in the imposition of the death penalty is exactly the type of thing the Constitution prohibits, as Justice Lewis Powell, Justice Potter Stewart, and I explained in our joint opinion in Gregg v. Georgia (1976). We wrote that capital sentencing procedures must be constructed to avoid the random or capricious imposition of the penalty, akin to the risk of being struck by lightning. Today one of the sources of such arbitrariness is the decision of state prosecutors—which is not subject to review—to seek a sentence of death. It is a discretionary call that may be influenced by the prosecutor’s estimate of the impact of his decision on his chances for reelection or for election to higher office.
When the trial of the rape case ended, Morris was a twenty-two-year old student in the second semester of his first year at the Yale Law School. His legal education, like that of many of his contemporaries, was financed by the federal government as a result of his World War II army service. Morris not only narrowly escaped death at the hands of a German machine gunner during the Battle of the Bulge, but also was captured by the enemy just before the end of the war. His experience during the war no doubt enhanced his desire to help three other honorably discharged veterans, who later became his clients, obtain their freedom from unjust incarceration.
The early chapters of the book describe the events that led up to the trial and how Morris became the lawyer for the three defendants. Particularly moving is his description of the suffering of their family members, all of whom were firmly convinced that the young men were innocent. Prior to the trial, the most involvement with the law those three families had had was through Maguire’s older brother, who worked in the police department; he apparently also had a part in the department’s decision, after the trial, to conduct an internal investigation of the veracity of the police officers’ testimony. Two of the families were able to pay the fees of retained trial counsel, but after the verdict they could not afford to finance an appeal.
Later in the book, Morris describes the lengths to which these families went in order to assemble the $5,000 collateral for each of the three men’s bail upon their release. Only by combining real estate equity and shares in a family company, and only by the grace of a court clerk who allowed those assets as bail despite a statute that arguably required cash or government securities, were Curran, Maguire, and Jones able to return to their families after spending over a decade in state custody.
The families’ path to Morris began when Curran’s mother read a January 1948 article in Reader’s Digest that described a Philadelphia lawyer named Herbert L. Maris, who was devoted to the cause of freeing innocent, unjustly convicted persons. Her husband went to Philadelphia to persuade Maris to take the case, but he refused to do so without first studying a transcript of the trial. No transcript was then available, but the families made an arrangement with the court reporter that enabled them to purchase it in installments. In due course, Maris read the entire record, became convinced that the men were innocent, and agreed to take the case. Delaware law, however, required participation by local counsel, which led to Morris’s participation in the case.
In September 1952, when the families were still trying to find Delaware counsel to assist Maris, Morris was employed as the law clerk for the chief judge of the United States District Court in Delaware. As the result of an accident, Morris’s boss became a patient in a hospital where two of Sonny Jones’s sisters were nurses. They asked the judge for advice about finding a Delaware lawyer, which led them to Morris, who served at first merely as local counsel, but eventually as counsel with full responsibility for the case.
Rather than provide readers with an advocate’s recitation of the facts designed to persuade them that all three defendants were innocent, the first several chapters of Morris’s book—which describe the incident itself, the preliminary hearing, and the six-day trial—serve a more limited objective. They make clear that the jury was confronted with difficult questions of credibility: whether to believe the defendants’ or the alleged victim’s account of what happened in the park as to whether the encounter was consensual. The conflict was not only between the testimony of participants in the event, but also that of three police officers. We know now that those officers unquestionably committed perjury. They testified falsely that each of the defendants had signed only one statement, rather than two. If the jury accepted the perjured police testimony as true, it necessarily would have concluded that the defendants were lying when they testified to the contrary. The conclusion that the defendants lied about a matter debated at length throughout the trial undoubtedly affected the jurors’ resolution of the conflicting testimony about the incident itself.