Some Recent Big Decisions Are Not Retroactive

The court had posed the problem for itself in two earlier decisions, and last week, just before adjourning for the summer, it finally got itself off the hook. Neither the vague right to remain silent that had been recognized by Escobedo v. Illinois nor the stricter guidelines for police and prosecutors that had been laid down in Miranda v. Arizona, announced Chief Justice Earl Warren, would be applied retroactively.

Ever since Escobedo, many a confessed and convicted criminal had seen the possibility of retroactivity as a hope of getting his case back into court. And now, with Miranda to remind police that just about any question a suspect answers without a lawyer's advice is improper unless he waives his rights, that hope seemed bright indeed. Writing for a 7 to 2 majority, Warren relocked the prison doors. To reopen past cases, he said, "would seriously disrupt the administration of our criminal laws. It would require the retrial and release of numerous prisoners found guilty by trustworthy evidence in conformity with previously announced constitutional standards."

On those pragmatic grounds the court turned down the appeal of Sylvester Johnson and Stanley Cassidy, two New Jersey Negroes who had killed a storekeeper while robbing him in 1958. But what kind of legal gymnastics could explain why the constitutional privileges which had only recently saved other confessed murderers did not apply now?

Persuasive Confessions. "We do not disparage a constitutional guarantee by declining to apply it retroactively," argued the Chief Justice. He pointed out that in the past the court had denied retroactivity in some cases while permitting it in others. It had always looked at "the peculiar traits of the specific rule in question" before deciding.

In the now famous case of Gideon v. Wainwright, where an indigent did not have the advice of a lawyer at his trial, the court concluded that retroactivity was called for because denial of the right to counsel affected "the very integrity of the fact-finding process." Absence of a lawyer meant a "clear danger of convicting the innocent." The same went for a case where a jury may have relied on an involuntary confession to convict (Jackson v. Denno). "Confessions," said Warren, "are likely to be highly persuasive with a jury, and if coerced, they may well be untrustworthy by their very nature."

As for other constitutional privileges, however, the court has sometimes denied retroactivity and turned its back on those already convicted. It refused to make retroactive a decision barring evidence obtained through illegal search, because the "reliability and relevancy" of the evidence in question in the case the court was considering (Linkletter v. Walker) was unassailable. It backed off in a similar manner when it came to consider a rule forbidding prosecutors and judges from commenting on a defendant's failure to testify at his trial, even though, as Warren said, such comment "may sometimes mislead the jury."

Coming back to the case before the court, Warren stressed that the confessions in question were "trustworthy"--defense lawyers admitted their validity at the trial. Furthermore, he said, convicts are not being deprived of all remedies by the court's ruling: they may still claim their confessions were coerced, may still appeal according to old precedents under which absence of counsel and other safeguards are weighed in "the totality of circumstances." Said Warren: "Future defendants will benefit fully from our new standards governing in-custody interrogations, while past defendants may avail themselves of the voluntariness test."

An End to Waiting. Few observers were surprised by the court's rebuff to Cassidy and Johnson. What did startle many a lawyer was the court's statement that it would not apply Miranda, even to appeals that are now pending. Thus, Miranda and his companions of two weeks ago may get new trials; everybody else tried when they were, stays in prison. The strict new rules it laid down in Miranda, the court said, apply "only to cases in which the trial began after the date of our decision."

For the New Jersey murderers, that all but wiped out any chance of a new trial. Though it was true that police had held both men incommunicado and questioned them for prolonged periods, the court, which had decried such tactics in Miranda, paid little heed to their claims that their confessions were coerced. Just about all that was left for the pair was a petition for a rehearing --unlikely to be granted by the U.S. Supreme Court--or an appeal for executive clemency. For thousands of other criminals who had anxiously awaited the decision, the news was the same.

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