Confessions of Guilt by Leo Richard A. Thomas George C. & Richard A. Leo

Author:Leo, Richard A., Thomas, George C. & Richard A. Leo
Language: eng
Format: epub
Publisher: Oxford University Press, USA
Published: 2012-04-20T16:00:00+00:00

I was in Philadelphia the other day. I found that a cab driver who had been cruelly murdered and robbed, and the man who murdered and robbed him had confessed the crime, was set free because of a Supreme Court decision. An old woman, who had been brutally robbed and then murdered—the man who confessed the crime was set free because of a Supreme Court decision. … And an old man who had been robbed and clubbed to death—and the man who confessed the crime was set free in Las Vegas because of a Supreme Court decision. My friends, when that’s happening in thousands of cases all over America, I say this. Some of our courts have gone too far in their decisions weakening the peace forces as against the criminal forces in the United States of America. And we’re going to change that.151

Just as telling as the attacks on the Court by Wallace and Nixon was Hubert Humphrey’s failure to defend the Court. Only one position was presented to the American voter in 1968: The Court had gone too far in the direction of protecting criminals; the criminal forces were gaining the upper hand over the peace forces; something had to be done to right the ship. As Fred Graham put it:

Where its predecessors had been bold, Miranda was to be brazen—Gideon v. Wainwright152 had created a constitutional right to counsel in felony cases at a time when all but five states already provided it; Mapp v. Ohio153 had extended the exclusionary rule to illegal searches after roughly one-half of the states had adopted the same rule; Miranda was to impose limits on police interrogation that no state had even approached prior to the Escobedo decision.154

Nixon carried Ohio by 90,000 votes and defeated Humphrey at the national level by only 500,000 votes.155 It seems likely that the “law and order” attack on Miranda was part of the reason for Nixon’s victory.

Why deviance shifted from suspected rapists, robbers, and murderers to the police for the Miranda majority is not entirely clear. Gerald Caplan noted that Escobedo “shows sympathy for Danny Escobedo because he was the underdog. One detects what Thurman Arnold referred to as ‘the humanitarian notion that the underdog is always entitled to a chance.’”156 Caplan continued:

Perhaps the impulse to allow even the unquestionably guilty some prospect of escaping detection or conviction is universal. Wigmore referred to this impulse as the “instinct of giving the game fair play.” Pound characterized it as “the sporting theory” of justice, and Bentham derisively labeled it “the fox hunter’s reason.” Under this view, fairness is given that special definition that sportsmen reserve for their games. Bentham elaborated on his analogy to the fox hunt: “The fox is to have a fair chance for his life: he must have … leave to run a certain length of way, for the express purpose of giving him a chance for escape.” Fairness, so defined, dictates that neither side should have an undue advantage; the police and

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