Just as Latins by nature are lovers, or So tradition tells us, conservatives by nature tend to be pessimists. For the most part, we dwell on the dark side of political moons. There we expect to find calamity and regularly we perceive it. Nothing is so bad that thinking will not make it worse. And thinking about the October term of the U.S. Supreme Court, which came to an explosive end on June 12, the true-blue conservative is likely to. see little but constructions wrongly construed and constitutions violated. It was not that bad. To be sure, the term saw conservative principles of jurisprudence in retreat; the forces that are symbolized by Mr. Justice Harlan lost more battles than they won. Owing to the resignation of Tom Clark and the prospective confirmation of Thurgood Marshall, the 1967 term may move from a retreat to a rout. Nonetheless, Harlan and his cohorts won some notable victories. In the continuing effort to resolve the conflict between the rights of a cri- | minal defendant and the rights of cutraged society, society recovered a little lost ground. The cause of individual freedom suffered a couple of damaging blows, notably in the – Allis-Chalmers case and in the matter of California’s open housing law; but the cause benefited from the Court’s rulings in other fields. Now and then the Court demonstrated a commendable judicial restraint. The justices tended to walk to their newest milestones. They did not run.
The Court’s more deliberate speed could be discerned most clearly in the area of criminal law. It was high time. Over the past six or eight years, in a series of landmark decisions the Court virtually has rewritten the rules of criminal procedure. Peering into the Fourth, Fifth and Sixth Amendments, the liberal bloc has found an assortment of rights never observed before. New doctrines on admissible evidence, on rights of counsel, and on post-conviction remedies have sprung full-blown from lofty brows. Many of these doctrines, in my own view, are quite sound— if reasonably applied; but they have been laid down in such sweeping terms that lower courts and law enforcement officers have been unable to adapt effectively to them. Meanwhile, crime soars. The October term scarcely had begun before the Court handed down its brief opinion in Cichos v. Indiana. The case involved a petitioner who had been tried on a two-count affidavit for both reckless homicide and involuntary manslaughter. He was convicted on the first count only. He appealed successfully, and the case was remanded for retrial. The second time around, Cichos again was tried on both counts and again convicted only for reckless homicide. In his petition to the Supreme Court, the defendant contended that to try him again for involuntary manslaughter was to expose him to double jeopardy, in violation of the Fifth Amendment. The case thus presented a novel question: Does the double jeopardy provision apply to State prosecution? Oddly enough, though almost everything else in the Bill of Rights has been transposed to the States on the back of the Fourteenth Amendment, double jeopardy appeared to have been overlooked. Here was an opportunity, if the Court wished to seize it, for another adventure in activism. The interesting point is that the Court passed the opportunity by. Over | the objections of Fortas, Warren, Douglas and Black, who were quite ready to extend the double jeopardy clause, a five-man majority made deferential bows toward federalism, comity, and judicial restraint. The Court refused to reach the issue, and dismissed the writ of certiorari as improvidently granted. Notably, Mr. Justice Brennan, leader of the activists, this time was the swing-man for restraint. Four weeks later, on December 12, came the several “Hoffa cases,’ and with them the unrelated matter of Duke Lee Lewis. It was a happy hour for friends of law enforcement. The Hoffa case went back to the fall of 1962, when James R. Hoffa was tried in Nashville for violation of the Taft-Hartley Act. He got off on a hung jury. Subsequently, Hoffa and three of his Teamster associates came on for a second trial, this time for attempting to bribe that jury. This time they were convicted. They appealed, but a 4-3 majority of the Supreme Court (Fortas and White sat this one out) affirmed the convictions. The key witness in the government’s bribery prosecution was one Edward Partin, a small-time Louisiana Teamster official and a purported friend of Hoffa. At the time of the first trial, Partin was languishing in jail in Baton Rouge, awaiting trial on various federal charges. When he volunteered to inform on Hoffa, federal prosecutors promptly had him sprung. Partin made his way to Nashville, where he shortly insinuated himself into the Hoffa suite. There he became the indispensable factotum: he fetched and earried; he went out for ice; he said yes, boss, and no, boss, and all the time he listened. Later he was to testify that he heard Jimmy and his pals trying to rig the jury. Was the testimony of this dubious informer admissible? To Chief Justice Warren, indignantly dissenting, Partin was no more than a walking bug who moved with Hoffa wherever he went. In Warren’s view, “this type of informer and the uses to which he was put in this case evidence a serious potential for undermining the integrity of the truth-finding process in the federal courts.” The four-man majority (Stewart, Harlan, Brennan and Black) took a tougher position. Hoffa’s attorneys had attacked the bribery conviction on four constitutional grounds and one general contention. Speaking for the court, Mr. Justice Stewart tossed them all out. It is evident, said Stewart, that no interest protected by the Fourth Amendment was involved, for obviously Hoffa was not relying upon the security of his hotel suite when he made incriminating statements to Partin: he was relying instead upon his misplaced confidence that Partin would keep his mouth shut. Neither was Partin’s testimony a violation of Hoffa’s Fifth Amendment right against compulsory self-incrimination, for no one compelled Hoffa to tell Partin anything. Hoffa raised two arguments based upon his Sixth Amendment right to counsel. The first had some merit. The presence of a government informer during talks between lawyer and client, it was urged, violated the essential privacy of that relationship. The second argument has no merit.
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