Criminal Justice: A Father is Not a Counsel

When the gasoline fire in the living room was finally put out, it was found that Mrs. Udine Harp’s body had not been destroyed, and an examination disclosed numerous bullet wounds. County police in Boise City, Okla., soon learned from 14-year-old Bruce, one of her three sons, that he had seen a rug-cleaning salesman on the front porch shortly before the fire. An itinerant was picked up on suspicion of being the salesman, but the investigation continued. The husband, Lester Harp, was brought to the district attorney’s office for further questioning, and eventually the three Harp boys were also brought in. To clear up some points, Assistant District Attorney Loys Criswell asked if the three would mind taking a lie-detector test. Before they answered, their father took them aside for a family consultation and returned with some surprising news: “Bruce wants to tell you something.”

Bruce then blurted out that he had shot his mother accidentally with a .22-cal. rifle. Reloading the rifle one cartridge at a time, he had continued to pump bullets into his mother “to put her out of her misery.” He next shot her dog, then doused the couch and her body in gasoline and touched off the fire. The confession came as a complete surprise to Criswell, who said later that he had never even suspected the 14-year-old.

Finger of Suspicion. Criswell was in for another surprise. Because he had not suspected Bruce, he had not warned him of his rights to silence and counsel under the U.S. Supreme Court’s Miranda decision. As a result, after one day of a nonjury trial last week, Judge Merle Lansden reluctantly barred the boy’s confession and found him not guilty. “Before a confession is to be accepted when a person is in custody or his freedom of action is limited in any significant manner, he must be warned,” said the judge. Mention of “the words lie detector” indicated “that the finger of suspicion was moving toward Bruce.”

Though Bruce cannot be tried again on the murder charge, Criswell said he would appeal the ruling in order to challenge the judge’s interpretation of the juvenile’s rights. “It’s the worst miscarriage of justice I’ve ever seen,” said the angry prosecutor. “The boy hadn’t even been arrested. And his father was there. This is ridiculous. It means we have open season on mothers up here.” If Judge Lansden’s barring of the confession is overruled, it will hardly make any difference to Bruce, who has been committed to a state mental hospital by his father. Criswell, however, says that if he wins the appeal, he may retry the boy, this time on an arson charge.

LAW SCHOOLS

From the Bottom of Nothing

At 81, Hugo Black does not often give public speeches, but even a nippy November wind did not dissuade the senior Supreme Court justice from dedicating a new $2,750,000 addition to the University of Georgia Law School. “This law school,” said Black, “is preparing itself to send out graduates with visions wide enough to become real leaders of high-minded men.”

Not long ago, that would have been the wildest overstatement anyone, not to say a Supreme Court justice, could have made. “The Georgia law school was the bottom of nothing,” says an Atlanta attorney. Or at least it was the bottom of nothing until 1964, when Professor Lindsey Cowen, of the University of Virginia Law School, took over as Georgia’s dean. Since then, Georgia has made one of the fastest and most impressive turnabouts in the history of legal education.

Brighter Brothers. Literally every statistical indicator has shown a quantum improvement. The faculty is up from six men to 25. The 82 first-year students in September 1964 were attracted from only eight different states; more than double that number of states was represented by this September’s entering class of 136. The Georgia Law Review, nonexistent in 1964, is about to publish its fourth issue. At a cost of more than $1,000,000, the law library has jumped from 50,000 volumes to 125,000, leapfrogging in the process from a ranking of 70th in the U.S. to No. 31.

Long attended by local boys who could not join their brighter brothers in the exodus to out-of-state law schools, Georgia began its turnabout at a state bar meeting in 1961, when a small group of lawyers decided that something had to be done. Governor Ernest Vandiver agreed; so did his successor, Carl Sanders. Both men fought for the necessary appropriations. In all, $4,000,000 has been raised from public and private sources.

Higher Sights. In addition to money, there was the recruitment of Cowen as dean. A fifth-generation lawyer who followed his law degree with graduate work at Harvard, Cowen was attracted by the opportunity to build a school virtually from scratch. “This was the greatest opportunity ever given to anyone,” he says, and his enthusiasm has infected many of the bright young men he attracted to his faculty. Professor Robert Leavell taught one year at Georgia in the ’50s and left in disgust; wooed back from a law professorship at Tulane University three years ago by Cowen, he says, “It’s exciting to be around this school now.”

Ultimately, of course, a school is made by students as well as by plant and faculty. And in the South particularly, the graduates of the state law school make up the bulk of the state bar, and usually the state legislature. It is therefore especially meaningful that on the student score, Georgia is also vastly changed. “When I first came here three years ago,” says Professor Charles Saunders, “most, if not all the students thought in terms of just going back home and picking up where they’d left off. Their sights weren’t set very high. Today they’re getting confidence in themselves, going to areas where the competition is keener.”

A partner in an Atlanta law firm that has just hired its first two Georgia Law graduates in years agrees: “It is amazing, the improvement in the quality of the boys.” The students seem to know they are in the big leagues now, too. Gone is the old, goof-off atmosphere. Instead of slipping away to the flicks, many of the students this fall have been agitating to keep the library open until midnight.

TRIALS

Two-Way Outrage

Titicut Follies is an 87-minute documentary film that uses a series of unforgettable incidents to show that Massachusetts’ Bridgewater State Mental Hospital for the Criminally Insane is a hellhole where the unbalanced can only grow more so. Film Maker Frederick Wiseman’s camera watched while one man was taunted by guards into a frenzy, while incoming patients were ignominiously stripped naked, while a young inmate pleaded to be sent back to prison because the hospital was only making him worse. The film was shown briefly in New York, and fulfilled Wiseman’s intent to stir public outrage. Since then, it has stirred nothing but bitter legal controversy over whether it should ever be shown publicly again. The state of Massachusetts, Bridgewater’s director and others have brought suit to bar Wiseman from showing it anywhere, mainly on the grounds that Wiseman breached his agreement with them and invaded the privacy of the inmates. If the state wins, other states will likely have to honor the decision.

The trial began in Boston last week. It promises to drag on for weeks, but already the issues involved have divided civil libertarians, law professors and legislators. Trouble began brewing when the film was shown at the New York Film Festival (TIME, Sept. 29), but it did not really get serious until the Massachusetts legislature decided to see what the commotion was all about. The film had already been temporarily banned on a petition of the state, so the legislators ordered a screening behind guarded doors. Many of them emerged muttering over the outrage, not the outrage that existed in the hospital, but the outrage of the film’s having been made. A few were shocked that the inmates were shown naked.

First-Amendment Reliance. But the central question was over the invasion of privacy of the prisoners. In one scene, a sex offender confesses to a psychiatrist that he had molested his own daughter. In others, dozens of inmates are shown clearly enough to be identifiable. According to a hospital psychiatrist who testified before the legislature, at least one patient has subsequently been released and could suffer a relapse if he were ever to realize that he was on public display. To all this, Wiseman replies in defending the suit that in this case the individual right to privacy must be inferior to the public’s right to know about conditions at the hospital. He relies on the First Amendment’s guarantee of the right to free press and free speech.

“The right to take pictures of Bridgewater is as clear as the right to take pictures of a traffic accident in Scollay Square,” says Wiseman. “The state has asserted the privacy rights of the individual as a screen for its own desire for privacy.” Nonetheless, Wiseman admits that while he got written releases from more than 100 inmates, he did not get them from everyone in the film.* And there is, of course, considerable reason to believe that a man adjudged insane is not ever competent to sign a binding waiver.

Wiseman did have permission from the state corrections commissioner and other authorities to make the film, and in the end the controversy may be settled on the narrow grounds of just what was agreed to. The state contends that Wiseman had promised not to photograph incompetent inmates and to give the state final review. Unfortunately the agreement was largely oral, and is wide open to dispute. But it may be easier to settle that than to reconcile the thornier question of how much privacy an insane convict is entitled to in the face of the public’s right to be informed about what amounts to a state scandal.

OBSCENITY

Test by Jury

Book publishers rarely beg the government to prosecute a book for obscenity. But that is just about what the English firm of Calder & Boyars did early this year. The book was Hubert Selby Jr.’s Last Exit to Brooklyn, which had been banned in London’s Soho district (TIME, Dec. 30). Under English custom, such local rulings tend to be honored throughout the country. Calder & Boyars decided that the only way to lift the ban was a full-scale trial, and the government finally agreed to prosecute. Said Publisher John Calder: “I’m sure we’ll win before a jury.”

Last week, to his astonishment, he lost. The jury unanimously found Exit obscene. In so doing, it crisply ignored the testimony of a number of literary lights who contended that the book was a near masterpiece that denounced the gutter by wallowing in it. Critic Frank Kermode, former co-editor of Encounter, argued that he “was horrified by it, but impressed by its novelty, originality and moral power. Dealing as it does with the lower depths of a great city, it is very much in the tradition of Dickens.” Since Selby offered a minutely detailed chronicle of unremitting violence, perversion, homosexuality, sadism and sex without directly indicating any objection, the comparison with Dickens, who made his point by contrasting the good and the bad, may have seemed specious to the jury.

In any case, they decided to judge for themselves. The twelve men (the judge had barred all women) spent two days reading Exit, ultimately agreed with Prosecution Witness George Catlin, a former professor at Canada’s McGill University, who said: “I can’t imagine anything being obscene if this book isn’t.” The question that now arises for England is how many other modern works might fail a test by jury.

JUDGES

For Services Rendered

The Soviet Union has announced the award of the Order of Lenin to Judge Lev N. Smirnov for his “services in strengthening socialist legality.” Smirnov is the judge who last year convicted and sentenced Authors Andrei Sinyavsky and Yuli Daniel to seven and five years respectively in a labor camp for disseminating “slanderous material besmirching the Soviet state and social system.”

* He did say that he would not, and did not, photograph certain specified inmates, among them Albert De Salvo, the confessed Boston Strangler.