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.
In Morris’s account of the events that occurred after he took over the case, he tells us about his series of defeats in state court proceedings. Initially, he unsuccessfully sought access to evidence that would establish the perjury by the police officers. After that perjury came to light as a result of an internal police department investigation, Morris experienced repeated defeats in his attempts to persuade state judges to grant a new trial.
Morris convincingly explains how state judges decided the disputed factual issues about the encounter between the defendants and the alleged victim, rather than the relevant question: whether the perjury had deprived the defendants of their right to have an impartial jury make that decision. Implicit in Morris’s book is the recognition of the risk that judges confronted with post-conviction claims may be biased in favor of upholding both the work of their colleagues and the continued confinement of convicted defendants in a highly publicized case.
Morris’s description of what he regarded as improper fact-finding by appellate judges reminded me of the Supreme Court’s decision a few years ago in Scott v. Harris (2007). It must have reminded Morris of that case as well, because he refers to it in a footnote in the book. In that case, eight of my colleagues made their own de novo examination of a police videotape of a high-speed chase, in order to determine the reasonableness of a police officer’s decision to use deadly force to bring the chase to an end. I wrote in my dissent, and still firmly believe, that my colleagues should have deferred to the two lower courts’ judgment that a jury should resolve the question, and on the basis of the entire record. (The entire record—unlike the unexplained video—made clear that the sirens on the police cars gave oncoming motorists adequate warning about the chase in progress.)
One of Morris’s defeats in the state courts is particularly difficult to understand. In December 1954, when he presented his oral argument before the state superior court in support of his clients’ application for relief, two extremely favorable developments had occurred. First, he had obtained a copy of the internal police report that established that each of the defendants had indeed signed two statements. That report, in turn, led to the state’s acknowledgment that the officers had destroyed the first set of statements and committed perjury. Second, a unanimous decision by the Delaware Supreme Court earlier that year had held that where evidence is willfully destroyed, the court must “adopt a view of the facts as unfavorable to the [party who destroyed the evidence] as the known circumstances will reasonably admit.”
The newspaper account of Morris’s oral argument seemed to declare him the clear winner, but several months went by without any state court ruling. Because his clients had already spent over seven years in custody and because he expected to prevail, Morris decided to try to expedite the judges’ decision by offering to provide any additional briefing or argument that might be helpful. Whether or not that offer offended the judges, it surely did not help his cause. Ten months after the hearing, the court finally denied relief.
Instead of responding directly to the argument that emphasized the impact of the perjury on the defendants’ credibility, the court in effect concluded that the error was harmless because there was no significant difference between the destroyed statements and those received in evidence. But that conclusion depended on accepting as true the claims of the very police officers who lied about the number of statements.
After the defendants exhausted their state court remedies, Morris finally was able to seek relief from a federal court. He persuaded United States District Judge Caleb Wright to disagree with the six state judges who had denied relief for his clients, and to reject the analysis in the Delaware Supreme Court’s opinion. Morris writes:
The critical distinction between the two opinions was in the poles-apart approach each of the courts had taken. To the [Delaware] Supreme Court, the task was to search the record to find justification for the convictions without regard to the effect of the admittedly false police testimony…. Wright, on the other hand, based his granting of relief upon the unfairness the police perjury caused at trial.
The three defendants, as well as their families, were of course overjoyed. When Morris visited the defendants in the workhouse where they were imprisoned, they “greeted my report of our success with what I thought was restraint. But as I walked away, I heard their whoops of joy as they returned to their cells.” The reaction of the press was reflected in both the four-column headline on the front page of the Morning News, and the accompanying mug shots that had been taken of Morris’s clients at the time of their arrest. As the author correctly notes, those mug shots—which also appear in the book and on its jacket—“would not arouse any sympathy either for them or their cause as they stared out at the public.” The description of the press reaction reminds the reader that Morris’s cause was by no means popular. The Delaware attorney general issued a press release announcing that he would appeal. He was critical not only of the specific decision, but also of the harm caused by federal courts’ involvement in reviewing the work of state judges.
While the case was on appeal, Morris brought it to the attention of a friend and law school classmate who was the faculty adviser to the Duke Law Journal. In due course, that journal published a note discussing the significant legal issue presented by the federal habeas petition in the rape case. It was well-settled law that the prosecutor’s knowing use of perjured testimony violates a defendant’s constitutional rights, but the courts were divided about whether the same is true of false testimony when the prosecutor does not know of the falsity.
In analyzing that issue, the note’s author recommended a rule that would support an affirmance of Judge Wright’s order by expanding “the meaning of the term ‘prosecution authorities’ to include all employees of the state directly connected with bringing a particular defendant to justice.” The note was published before the United States Court of Appeals for the Third Circuit issued its unanimous decision affirming Judge Wright’s grant of relief to Curran, Maguire, and Jones. While the Court of Appeals opinion did not cite the note, the opinion endorsed the view that perjury by police officers who participated in the investigation rendered the trial unfair even if the prosecutor was unaware of their falsehoods.
Ironically, while it is possible that the uncited note may have helped Morris’s cause in the federal court of appeals, the fact that it highlighted the different approaches to the issue in the lower courts enhanced the possibility that the Supreme Court would grant the state’s petition for certiorari and review the merits of the case. In that petition, the state correctly argued that it was important to resolve the conflict. The Supreme Court, however, declined to review the Third Circuit’s decision in the case, which was then called Delaware v. Curran.
The Court’s order denying the petition was followed by the release of Morris’s clients because the state attorney general decided not to retry them. The book concludes by summarizing several important lessons that the rape case teaches.
Rather than depriving potential readers of the opportunity to learn those lessons directly from the book, I shall conclude this review with a comment on an important later legal development in the law, and shall try to answer whether that development would permit a federal district judge to grant relief if an identical case should arise today. The later legal development was a reaction to the argument made by the Delaware attorney general and other public officials, who criticized the burdens imposed on state law enforcement by federal judges granting habeas to state prisoners. In response to that argument, Morris points out that in the preceding decade federal judges had issued the writ in only ninety-eight cases.
Nevertheless, in 1996, Congress and President Bill Clinton were persuaded that this argument of state officials had merit, and consequently Congress passed and the president signed the Antiterrorism and Effective Death Penalty Act (AEDPA). That statute generally prohibits federal judges from granting an application for a writ of habeas corpus on behalf of a person in custody pursuant to a state court judgment unless that judgment was the product of a “decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
If a new rape case, with the exact same facts as the case Morris discusses, were to arise today—after the enactment of AEDPA and after the federal court of appeals decision in Morris’s rape case—state prosecutors would argue that Delaware’s petition for certiorari gave the Supreme Court the opportunity to clearly establish the Third Circuit’s Curran holding as the correct rule of law, but that the Court, by denying the petition, failed to do so. Given the well-settled rule that a denial of certiorari is not a ruling on the merits, that denial could not clearly establish anything for purposes of AEDPA.
But that argument overlooks the critically important sequel to the Curran case. A few months after the denial of certiorari in Curran, the Supreme Court announced its opinion in Napue v. Illinois (1959), extending the rule against the state’s use of perjured testimony in two important respects. First, Napue held that the rule encompasses a prosecutor’s failure to correct a witness’s false denial of a fact that merely affects credibility. Second, Napue restated the rule to encompass the use of false testimony “known to be such by representatives of the State.” Especially telling is the fact that one of the three cases that the Court cited in support of its rephrasing of the rule was the Curran case in which it had recently denied certiorari; the Court surely was aware of the fact that the relevant “representatives of the State” in that case were police officers, rather than prosecutors.
Even if history cannot clearly confirm the Justices’ knowledge of Curran’s facts, respect for their scholarship mandates a presumption that they at least read the Curran court of appeals opinion before citing it as support for their rephrasing of an important rule of law. That opinion quite openly relied on the principle that constitutional due process is violated by police perjury even when the prosecutor lacks knowledge of the falsity of the police testimony. Interpreting Pyle v. Kansas (1942), the second of the three cases cited by the Supreme Court in Napue for the rule about “representatives of the State,” the Curran opinion stated:
An examination of the record in the Pyle case discloses, as the learned Judge below pointed out, that the prosecuting officer was in no wise a party to or cognizant of the perjured testimony given by certain witnesses of the State of Kansas or of the fact that the law enforcement officers had taken steps to procure false testimony favorable to the prosecution. We conclude, as did the court below, that the knowingly false testimony of Detective Rodenheiser under the circumstances of the case at bar was sufficient to cause the defendants’ trial to pass the line of tolerable imperfection and fall into the field of fundamental unfairness…. On the whole record we find that the defendants were denied due process of law as guaranteed to them by the Fourteenth Amendment.
Since Irving Morris is entitled to credit for persuading the Court of Appeals to write the Curran opinion, and for persuading the Supreme Court to deny Delaware’s petition for certiorari, he should also be given credit for his contribution to the Supreme Court’s clear establishment of a rule of law that would provide relief today for my hypothetical petitioner if there were a new rape case with the exact same facts and procedural history. This is only one of the many reasons why Morris’s memoir is well worth reading.