In none of the pertinent cases considered prior to 1937 was the Supreme Court able to discern the existence of any factual situation amounting to double jeopardy, and accordingly it was never confronted with the necessity of determining whether the guarantee that no person be put twice in jeopardy of life or limb, expressed in the Fifth Amendment as a limitation against the Federal Government, had been absorbed in the due process clause of the Fourteenth Amendment. Thus, in Dreyer v. Illinois,[975] after declaring that a retrial after discharge of a hung jury did not subject a defendant to double jeopardy, the Court concluded as follows: If "* * * what was said in United States v. Perez [(9 Wheat. 579 (1824)) embracing a similar set of facts], * * * is adverse to the contention of the accused that he was put twice in jeopardy," then "we need not now express an opinion" as to whether the Fourteenth Amendment embraces the guarantee against double jeopardy. Similarly, in Murphy v. Massachusetts[976] and Shoener v. Pennsylvania[977] the Court held that where the original conviction of the prisoner was, on appeal, construed by the State tribunal to be legally defective and therefore a nullity, a subsequent trial, conviction, and sentence of the accused deprived him of no constitutional right, notwithstanding the fact that under the invalidated original conviction, the defendant had spent time in prison. In both instances the Court found it unnecessary to discuss "any question of a federal nature." With like dispatch, "the propriety of inflicting severer punishment upon old offenders" was sustained on the ground that they were not being "punished * * * [a] second time for the earlier offense, but [that] the repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted."[978]
In Palko v. Connecticut,[979] however, the Court appeared to have been presented with issues, the disposition of which would preclude further avoidance of a decision as to whether the double jeopardy provision of the Fifth Amendment had become operable as a restraint upon the States by reason of its incorporation into the due process clause of the Fourteenth Amendment. By the terms of the Connecticut statute at issue, the State was privileged to appeal any question of law arising out of a criminal prosecution, and did appeal a conviction of second degree murder and sentence to life imprisonment of one Palko, who had been charged with first degree murder. Obtaining a reversal, the State prosecuted Palko a second time and won a conviction of first degree murder and sentence to death. In response to the petitioner's contentions that a retrial under one indictment would subject him to double jeopardy in violation of the Fifth Amendment, if the prosecution were one on behalf of the United States and "that whatever is forbidden by the Fifth Amendment is forbidden by the Fourteenth also,"[980] eight Justices[981] replied that the State statute did not subject him to double jeopardy "so acute and shocking that our polity will not endure it"; nor did "it violate those 'fundamental principles of liberty and justice which lie at the base of all our civil and political' institutions.'" Consistently with past behavior, the Court thus refused to assert that the defendant had been subjected to treatment of the type prohibited by the double jeopardy clause of the Fifth Amendment; nor did it, on the other hand, repudiate the possibility of situations in which the Fourteenth Amendment would prevent the States from inflicting double jeopardy. Whether a State is prohibited by the latter amendment, after a trial free from error, from trying the accused over again or from wearing out the accused "by a multitude of cases with accumulated trials" were questions which the Court reserved for future disposition. Subsequently, in Louisiana ex rel. Francis v. Resweber,[982] a majority of the Court assumed, "but without so deciding, that violation of the principles of the Fifth Amendment * * *, as to double jeopardy * * *, would be violative of the due process clause of the Fourteenth Amendment," and then concluded that the Palko case was decisive, there being "no difference from a constitutional point of view between a new trial for error of law at the instance of the State that results in a death sentence instead of imprisonment for life and an execution" by electrocution that follows after "an accidental failure in equipment had rendered a previous attempt at execution ineffectual."
Access to the Courts.—A State prison regulation requiring that all legal papers sought to be filed in court by inmates must first be submitted to the institution for approval and which was applied so as to obstruct efforts of a prisoner to petition a federal court for a writ of habeas corpus is void. Whether a petition for such writ is properly drawn and what allegations it must contain are questions which a federal court alone determines.[983] Equally subject to condemnation is the practice of the warden of a State penitentiary who denied prisoners access to the courts unless they procured counsel to represent them.[984]
Appeals; Corrective Process.—Rehearing, new trials, and appeals are not considered to be essential to due process; and a State is forbidden by no provision of the Constitution from vesting in one tribunal the final determination of legal questions. Consequently, a review by an appellate court of a final judgment in a criminal case, irrespective of the gravity of the offense, is wholly within the discretion of the State to allow or not to allow;[985] and, if granted, may be accorded by the State upon such terms as in its wisdom may be deemed proper.[986] "Wide discretion must be left to the States for the manner of adjudicating a claim that a conviction is unconstitutional; * * * and so long as the rights under the * * * Constitution may be pursued, it is for a State and not for * * * [the Supreme] Court [of the United States] to define the mode by which they may be vindicated. * * * A State may decide whether to have direct appeals * * *, and if so under what circumstances * * * may provide that the protection of [constitutional] rights * * * be sought through the writ of habeas corpus or coram nobis, [or] * * * may afford remedy by a simple motion brought either in the Court of original conviction or at the place of detention."[987]
However, if the tribunal of first instance fails to accord due process such as occurs when the Court in which a conviction is obtained is dominated by a mob, the State must supply corrective process. Moreover, when such process is made available, the corrective proceedings in the reviewing or appellate tribunal being no less a part of the process of law under which a defendant is held in custody, become subject to scrutiny on the occasion of any determination of an alleged unconstitutional deprivation of life or liberty.[988] Such examination may lead unavoidably to substantial federal intervention in State judicial proceedings, and sensitive, no doubt, to the propriety thereof,[989] the Supreme Court, almost until Brown v. Mississippi,[990] decided in 1936, manifested an unusual reluctance to indulge in an adverse appraisal of the adequacy of a State's corrective process.
Prior to the latter date, the Court was content to assume as it did in Frank v. Mangum,[991] decided in 1915, that inasmuch as the proceedings in the State appellate court formally appeared to be sufficient to correct errors committed by a trial court alleged to have been intimidated by a mob, the conclusion by that appellate court that the trial court's sentence of execution should be affirmed was ample assurance that life would not be forfeited without due process of law. Apparently in observance of a principle of comity, whereunder a State appellate court's holding, though acknowledged as not binding, was deemed entitled to utmost respect, the Court persisted in its refusal to make an independent examination of allegations of a denial of due process. Eight years later, in Moore v. Dempsey,[992] a case involving similar allegations of mob domination, the Court, on this occasion speaking through Justice Holmes who had dissented in the preceding decision, ordered the federal district court, in which the defendants had petitioned for a writ of habeas corpus and which had sustained the State of Arkansas's demurrer thereto, to make an independent investigation of the facts, notwithstanding that the Arkansas appellate court had ruled that, in view of the legally sufficient evidence on which the verdict was based and the competent counsel defending the accused, the allegations of mob domination did not suffice to void the trial.
Indubitably, Moore v. Dempsey marked the abandonment of the Supreme Court's deference, founded upon considerations of comity, to decisions of State appellate tribunals on issues of constitutionality and the proclamation of its intention no longer to treat as virtually conclusive pronouncements by the latter that proceedings in a trial court were fair. However, the enduring character of this precedent was depreciated by the Court's insistence that Moore v. Dempsey was decided consistently[993] with Frank v. Mangum; and it was not until the later holding in Brown v. Mississippi in 1936 and the numerous decisions rendered conformably thereto in the decade following that all uncertainty was dispelled as to the Supreme Court's willingness to engage in its own independent examination of the constitutional adequacy of trial court proceedings.
DUE PROCESS: MISCELLANEOUS