Criminal Justice: New Headache for State Courts

Shortly after sticking up a Brooklyn hotel in 1960, Nathan Jackson fatally shot a pursuing policeman. Shot twice himself, Jackson got to a hospital. There, say detectives, he admitted: "I shot the colored cop. I got the drop on him." At his trial, however, Jackson testified that he had been drugged, refused water, and was in such pain that he could not remember what he said.

Had the confession clearly been coerced, the trial judge would have ruled it inadmissible. But the facts were in dispute. Consistent with New York practice, the judge submitted the issue to the jury along with the question of Jackson's guilt or innocence. If you find the confession involuntary, the judge told the jurors, "exclude it from the case. Do not consider it at all." The verdict: guilty of first-degree murder.

True Yet Tainted. But what had the jury decided about the confession? The verdict did not say. And even if the jurors had concluded that the confession was coerced, did they then disregard it? To Jackson's lawyers, the unanswered questions suggested a solid case of violated due process. Coerced confessions, however true, have been outlawed as evidence by the Supreme Court since the early 1920s. The court holds that only voluntary confessions are trustworthy; it believes, said Justice Felix Frankfurter, that "society carries the burden of proving its charges against the accused not out of his own mouth." Accordingly, the defendant must go free if the evidence used to convict him includes a true yet tainted confession.

But how shall the courts determine voluntariness? In Jackson's case, New York saw its procedure as eminently fair—let the jury decide. Jackson nonetheless appealed to the Supreme Court, which last June handed down a landmark decision (Jackson v. Denno) voiding the New York procedure as unconstitutional. "The New York jury returns only a general verdict upon the ultimate question of guilt or innocence," said Justice Byron White, speaking for a narrow 5-to-4 majority. "It is impossible to discover whether the jury found the confession voluntary and relied upon it, or involuntary and supposedly ignored it."

Cons' Windfall. The court ruled that Jackson was entitled to a new evidentiary hearing solely to determine the voluntariness of his confession. (He is getting a new trial next month.) Out went New York-style procedure in 15 states, Puerto Rico, the District of Columbia, and six of the ten federal districts. But to two of the court's dissenters, including Justice Hugo Black, the decision posed a new danger: it would affect hundreds of state and federal convicts whose challenged confessions had been admitted under New York procedure. If the Jackson rule was retroactive, as it seemed to be, prisoners whose confessions proved to have been involuntary were entitled to complete new trials.*

The New York Court of Appeals has just confirmed the dissenters' fears. In the case of Charles Huntley, convicted of first-degree robbery in 1960, the state's highest court ruled that New York judges must now fully determine voluntariness and make express findings before the jury itself tackles the issue.