Separation of Powers and Prosecutions

97px-RoberthjacksonI was reading a book about Chief Justice Warren the other day and learned about a case that I knew nothing about.  In Irvine v. California, 347 U.S. 128 (1954), the petitioner was convicted of bookmaking.  To obtain the evidence that supported the conviction, state police went into Irvine’s home four times without a warrant to install hidden microphones (including a bedroom mic) and used the neighbor’s garage as a listening post for a month.  At that time, though, the exclusionary rule did not apply to the states, so the Court affirmed Irvine’s conviction.

Nevertheless, a plurality opinion written by Justice Jackson strongly condemned the police.  Then came this amazing paragraph:

“It appears to the writer, in which view he is supported by THE CHIEF JUSTICE, that there is no lack of remedy if an unconstitutional wrong has been done in this instance without upsetting a justifiable conviction of this common gambler. If the officials have willfully deprived a citizen of the United States of a right or privilege secured to him by the Fourteenth Amendment, that being the right to be secure in his home against unreasonable searches, . . . their conduct may constitute a federal crime under 62 Stat. 696 . . . This section provides that whoever, under color of any law, statute, ordinance, regulation or custom, willfully subjects any inhabitant of any state to the deprivation of any rights, privileges or immunities secured or protected by the Constitution of the United States shall be fined or imprisoned . . . We believe the Clerk of this Court should be directed to forward a copy of the record in this case, together with a copy of this opinion, for attention of the Attorney General of the United States.  However, Mr. Justice REED and Mr. Justice MINTON do not join in this paragraph.”

It’s not unheard of for the Court (or for individual Justices) to call upon Congress to do something.  (Such as amend a statute to correct the Court’s interpretation or provide a remedy where there is none.)  I know of no other example, though, where the Court called upon the DOJ to prosecute somebody.

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4 Responses

  1. Kyle says:

    I don’t recall other instances of the Supreme Court taking such an action, but it’s not that uncommon for district court judges to do so — particularly after a trial in which a party may have fabricated evidence, or perjured him- or herself.

  2. Howard Wasserman says:

    If, as some have urged, we were to eliminate the exclusionary rule in favor of other remedies, we might begin to see this more frequently.

  3. Joe says:

    Yes, a book on the Warren Court flagged that case, which troubled a majority of the justices, even if they warily agreed to uphold the conviction.

    It is not the same thing, but another striking opinion is the concurring opinion of Justice White in the Pentagon Papers case in effect providing a tutorial on how to target newspapers in the correct fashion.

  4. Ken Rhodes says:

    Gerard, in re: your final paragraph, I think you’ve overstated the case. When I red those words I saw Justice Jackson noting a point of law and directing the Clerk of the Court to forward his note to the Attorney General, who may have otherwise overlooked that point. I didn’t see Justice Jackson giving any direction to the AG.

    You may say my subtlety is a semantic cop-out. My reply would be “no, it’s one of those things that has to be taken as it was stated, not interpreted to mean other than it says.”