29 Fogelson, Fogelson, Big-City Police, Big-City Police, p. 124. p. 124.

30 See, in general, Mark E. Neely, Jr., See, in general, Mark E. Neely, Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties The Fate of Liberty: Abraham Lincoln and Civil Liberties (1991). (1991).

31 40 Stats. 230 (act of June 16, 1917); 40 Stats. 553 (act of May 16, 1918). 40 Stats. 230 (act of June 16, 1917); 40 Stats. 553 (act of May 16, 1918).

32 See, in general, William Preston, Jr., See, in general, William Preston, Jr., Aliens and Dissenters: Federal Suppression of Radicals, 1903-1933 Aliens and Dissenters: Federal Suppression of Radicals, 1903-1933 (1963). (1963).

33 249 U.S. 47 (1919). 249 U.S. 47 (1919).

34 Ibid., at 52. Ibid., at 52.

35 250 U.S. 616 (1919); the case, its background, and its aftermath are discussed in Richard Polenberg's fine study, 250 U.S. 616 (1919); the case, its background, and its aftermath are discussed in Richard Polenberg's fine study, Fighting Faiths: The Abrams Case, the Supreme Court and Free Speech Fighting Faiths: The Abrams Case, the Supreme Court and Free Speech (1987). (1987).

36 Abrams and others were later deported to the Soviet Union; Polenberg, Abrams and others were later deported to the Soviet Union; Polenberg, Fighting Faiths, Fighting Faiths, p. 341; still later, ironically, the Soviet Union itself deported them as subversives. p. 341; still later, ironically, the Soviet Union itself deported them as subversives.

37 John D. Lawson, ed., John D. Lawson, ed., American State Trials, American State Trials, Vol. 12 (1919), pp. 897, 960-61. Vol. 12 (1919), pp. 897, 960-61.

38 Robert K. Murray, Robert K. Murray, Red Scare: A Study in National Hysteria, 1919-1920 Red Scare: A Study in National Hysteria, 1919-1920 (1955), pp. 210-22; Preston, (1955), pp. 210-22; Preston, Aliens and Dissenters, Aliens and Dissenters, pp. 220-21. pp. 220-21.

39 Laws Ariz. 1919, chap. 11, p. 11. The Espionage Act of 1918 had made it a crime to display the flag of "any foreign enemy." 40 Stats. 553 (act of May 16, 1918). Laws Ariz. 1919, chap. 11, p. 11. The Espionage Act of 1918 had made it a crime to display the flag of "any foreign enemy." 40 Stats. 553 (act of May 16, 1918).

40 Murray, Murray, Red Scare, Red Scare, pp. 233-34. pp. 233-34.

41 Laws Idaho 1917, chap. 145, p. 459. Laws Idaho 1917, chap. 145, p. 459.

42 Laws Cal. 1919, chap. 188, p. 281; Stephen F. Rohde, "Criminal Syndicalism : The Repression of Radical Political Speech in California," Laws Cal. 1919, chap. 188, p. 281; Stephen F. Rohde, "Criminal Syndicalism : The Repression of Radical Political Speech in California," Western Western Legal History Legal History 3:309 (1990). 3:309 (1990).

43 Rohde, "Criminal Syndicalism," p. 316. It is estimated that about 1,400 people were arrested under syndicalist and related laws in 1919-20, in the United States; about 300 were convicted and sent to prison. Murray, Rohde, "Criminal Syndicalism," p. 316. It is estimated that about 1,400 people were arrested under syndicalist and related laws in 1919-20, in the United States; about 300 were convicted and sent to prison. Murray, Red Scare, Red Scare, p. 234. p. 234.

44 274 U.S. 357 (1927). 274 U.S. 357 (1927).

45 This account is based on Charles H. Martin, This account is based on Charles H. Martin, The Angelo Herndon Case and Southern Justice The Angelo Herndon Case and Southern Justice (1976). The Hudson quote is pp. 57-58; the statute struck down was Ga. Code 1933, sections 26-901 to 904. (1976). The Hudson quote is pp. 57-58; the statute struck down was Ga. Code 1933, sections 26-901 to 904.

46 Herndon v. Lowry, 301 U.S. 242, 263 (1937); Martin, Herndon v. Lowry, 301 U.S. 242, 263 (1937); Martin, The Angelo Herndon Case, The Angelo Herndon Case, p. 182. p. 182.

47 Francis Russell, Francis Russell, Sacco and Vanzetti: The Case Resolved Sacco and Vanzetti: The Case Resolved (1986), p. 222. (1986), p. 222.

48 Russell, Russell, Sacco and Vanzetti, Sacco and Vanzetti, p. 202. Russell argues that Sacco was guilty and Vanzetti innocent. The literature on the case is enormous and highly polemical. The weight of the writing, in sheer tonnage at least, comes down on the side of innocence and miscarriage of justice. p. 202. Russell argues that Sacco was guilty and Vanzetti innocent. The literature on the case is enormous and highly polemical. The weight of the writing, in sheer tonnage at least, comes down on the side of innocence and miscarriage of justice.

49 Melvin I. Urofsky, Melvin I. Urofsky, A March of Liberty: A Const.i.tutional History of the United States A March of Liberty: A Const.i.tutional History of the United States (1988), p. 726. (1988), p. 726.

50 323 U.S. 214 (1944). The background and the cases are discussed in Peter Irons, 323 U.S. 214 (1944). The background and the cases are discussed in Peter Irons, Justice at War Justice at War (1983). (1983).

51 Harry N. Scheiber and Jane L. Scheiber, "Const.i.tutional Liberty in World War II: Army Rule and Martial Law in Hawaii, 1941-1946," Harry N. Scheiber and Jane L. Scheiber, "Const.i.tutional Liberty in World War II: Army Rule and Martial Law in Hawaii, 1941-1946," Western Legal History Western Legal History 3:341-352 (1990). 3:341-352 (1990).

52 Scheiber and Scheiber, "Const.i.tutional Liberty," pp. 353-54. Scheiber and Scheiber, "Const.i.tutional Liberty," pp. 353-54.

53 On the trial, see Stanley I. Kutler, On the trial, see Stanley I. Kutler, The American Inquisition: Justice and Injustice in the Cold War The American Inquisition: Justice and Injustice in the Cold War (1982), chap. 1. (1982), chap. 1.

54 For one example, the vendetta in New York against the International Workers Order, an insurance organization, see Arthur J. Sabin, For one example, the vendetta in New York against the International Workers Order, an insurance organization, see Arthur J. Sabin, Red Scare in Court: New York versus The International Workers Order Red Scare in Court: New York versus The International Workers Order (1993). (1993).

55 On the trial and other aspects of the McCarthy period, see Urofsky, On the trial and other aspects of the McCarthy period, see Urofsky, March of Liberty, March of Liberty, pp. 748-57. pp. 748-57.

56 Kutler, Kutler, The American Inquisition, The American Inquisition, chap. 6. chap. 6.

57 Dennis v. United States, 341 U.S. 494 (1951). Dennis v. United States, 341 U.S. 494 (1951).

58 354 U.S. 298 (1957). 354 U.S. 298 (1957).

59 395 U.S. 444 ( 1969). 395 U.S. 444 ( 1969).

60 On this trial, see, for example, Alistair Cooke, On this trial, see, for example, Alistair Cooke, A Generation on Trial: U.S.A. v. Alger Hiss A Generation on Trial: U.S.A. v. Alger Hiss (1950). (1950).

61 On these trials, see Steven E. Barkan, On these trials, see Steven E. Barkan, Protesters on Trial: Criminal Justice in the Southern Civil Rights and Vietnam Antiwar Movements Protesters on Trial: Criminal Justice in the Southern Civil Rights and Vietnam Antiwar Movements (1985) (1985).

62 Barkan, Barkan, Protesters on Trial, Protesters on Trial, p. 127. p. 127.

63 Washington Post Washington Post, May 30, 1979, p. B1; " "Night of Gay Rage," Newsweek, June 4, 1979, p. 30. June 4, 1979, p. 30.

64 New York Times New York Times, April 30, 1992, p. 1; May 1, 1992, p. 1.

65 Gerard C. Brandon, Gerard C. Brandon, " "The Unequal Application of the Criminal Law," Journal of Criminal Law 1 :893, 896-97 (1911). 1 :893, 896-97 (1911).

66 Fosd.i.c.k, Fosd.i.c.k, American Police Systems, American Police Systems, p. 45. p. 45.

67 See Dan T. Carter, See Dan T. Carter, Scottsboro: Scottsboro: A Tragedy of the American South A Tragedy of the American South (1969), pp. 110-11. (1969), pp. 110-11.

68 See, on the a.s.sociation of Southern Women for the Prevention of Lynching (ASWPL), Jacquelyn Dowd Hall, See, on the a.s.sociation of Southern Women for the Prevention of Lynching (ASWPL), Jacquelyn Dowd Hall, Revolt Against Chivalry Revolt Against Chivalry: Jessie Daniel Ames and the Women's Campaign Against Lynching Jessie Daniel Ames and the Women's Campaign Against Lynching (1979). Hall is particularly good at discussing the gender aspects of lynching, that is, the way it reinforced a particular view of southern womanhood. (1979). Hall is particularly good at discussing the gender aspects of lynching, that is, the way it reinforced a particular view of southern womanhood.

69 Hall, Hall, Revolt Against Chivalry, Revolt Against Chivalry, pp. 12930. This particular lynching was the impetus for the creation of the ASWPL. pp. 12930. This particular lynching was the impetus for the creation of the ASWPL.

70 297 U.S. 278 (1936). 297 U.S. 278 (1936).

71 The full story of the case is beautifully told in Carter, The full story of the case is beautifully told in Carter, Scottsboro Scottsboro.

72 On Leibowitz's role in the case, see Robert Leibowitz, On Leibowitz's role in the case, see Robert Leibowitz, The Defender The Defender: The Life and Career of Samuel S. Leibowitz, 1893-1933 The Life and Career of Samuel S. Leibowitz, 1893-1933 (1981), pp. 186-249. (1981), pp. 186-249.

73 Fogelson, Fogelson, Big-City Police Big-City Police, p. 248.

74 The data in this and the following paragraph are drawn from Gerald David Jaynes and Robin W. Williams, Jr., eds., The data in this and the following paragraph are drawn from Gerald David Jaynes and Robin W. Williams, Jr., eds., A A Common Destiny: Common Destiny: Blacks and American Society Blacks and American Society (1989), chap. 9. Professor Joel F. Handler, of the UCLA Law School, was chair of the panel that produced this material. (1989), chap. 9. Professor Joel F. Handler, of the UCLA Law School, was chair of the panel that produced this material.

75 Jaynes and Williams, Jaynes and Williams, A Common Destiny A Common Destiny, p. 461.

76 New York Times, New York Times, Oct. 4, 1990, p. B6. Oct. 4, 1990, p. B6.

77 New York Times New York Times, April 18, 1992, p. 1.

78 Marjorie S. Zatz, Marjorie S. Zatz, " "The Changing Forms of Racial/Ethnic Biases in Sentencing," Journal of Research in Crime and Criminology Journal of Research in Crime and Criminology 24:69, 87-88 (1987). 24:69, 87-88 (1987).

79 Jaynes and Williams, Jaynes and Williams, A Common Destiny, A Common Destiny, p. 464. p. 464.

80 John Gregory Dunne, John Gregory Dunne, " "Law and Disorder in Los Angeles," New York New York Review of Books Review of Books, Oct. 10, 1991, p. 23.

81 For a chronology of the Howard Beach incident, see J. Clay Smith, Jr., "The For a chronology of the Howard Beach incident, see J. Clay Smith, Jr., "The ' 'Lynching' at Howard Beach: An Annotated Bibliographic Index," at Howard Beach: An Annotated Bibliographic Index," National Black Law Journal National Black Law Journal 12:29 (1990). 12:29 (1990).

82 Richard Maxwell Brown, Richard Maxwell Brown, Strain of Violence Strain of Violence (1975), p. 213. (1975), p. 213.

83 Shih-Shan Henry Tsai, Shih-Shan Henry Tsai, The Chinese Experience in America The Chinese Experience in America (1986), pp. 165-66. On the Golden Dragon affair, see (1986), pp. 165-66. On the Golden Dragon affair, see Washington Post Washington Post, Sept. 21, 1977, p. A6.

84 Paul S. Volk, "The Legal Trail of Tears: Supreme Court Removal of Tribal Court Jurisdiction Over Crimes by and Against Reservation Indians," Paul S. Volk, "The Legal Trail of Tears: Supreme Court Removal of Tribal Court Jurisdiction Over Crimes by and Against Reservation Indians," New England Law Review New England Law Review 20:247 (1984-85). 20:247 (1984-85).

85 A report published in 1932 found that the Indians were fairly law-abiding people. In tribal courts, about half of all prosecutions were for drunkenness, another 16 percent for such crimes as adultery and fornication. Indians committed felonies at rates far below that of whites. See Russel Lawrence Barsh and J. Youngblood Henderson, A report published in 1932 found that the Indians were fairly law-abiding people. In tribal courts, about half of all prosecutions were for drunkenness, another 16 percent for such crimes as adultery and fornication. Indians committed felonies at rates far below that of whites. See Russel Lawrence Barsh and J. Youngblood Henderson, " "Tribal Courts, the Model Code, and the Police Idea in American Indian Policy, " " in Lawrence Rosen, ed., in Lawrence Rosen, ed., American Indians and the Law American Indians and the Law (1976), pp. 25, 41. (1976), pp. 25, 41.

86 82 Stats. 77 (act of April 11, 1968). 25 U.S.C.A. sees. 1301, 1302. On this act, see Vine Deloria, Jr., and Clifford Lytle, 82 Stats. 77 (act of April 11, 1968). 25 U.S.C.A. sees. 1301, 1302. On this act, see Vine Deloria, Jr., and Clifford Lytle, The Nations Within: The Past and Future of American Indian Sovereignty The Nations Within: The Past and Future of American Indian Sovereignty (1984), chap. 14. (1984), chap. 14.

87 See, in general, Alfredo Mirande, See, in general, Alfredo Mirande, Gringo Justice Gringo Justice (1987). (1987).

88 The account is drawn from Mirande, The account is drawn from Mirande, Gringo Justice Gringo Justice, pp. 156-66.

89 On the riots, see ibid., pp. 166-73. On the riots, see ibid., pp. 166-73.

CHAPTER 17. THE CONTEMPORARY CRIMINAL TRIAL.

1 William N. Gemmill, "The Criminal, Who Is He, and What Shall We Do with Him," William N. Gemmill, "The Criminal, Who Is He, and What Shall We Do with Him," Journal of the American Inst.i.tute of Criminal Law Journal of the American Inst.i.tute of Criminal Law and Criminology and Criminology 5:170, 174-75 (1914). 5:170, 174-75 (1914).

2 Annual Report, Los Angeles Police Department 1916-1917, Annual Report, Los Angeles Police Department 1916-1917, p. 31; p. 31; Annual Annual Report, Los Angeles Police Department, (year ending June 30, Report, Los Angeles Police Department, (year ending June 30, 1915), 1915), pp. 6-7. The Sunrise Court was discontinued in 1918. pp. 6-7. The Sunrise Court was discontinued in 1918. Annual Report, 1917-1918, Annual Report, 1917-1918, p. 53. p. 53.

3 I. P. Callison, I. P. Callison, Courts of Injustice Courts of Injustice (1956), pp. 419-21; the New York Magistrates' Courts, as Callison described them, were much the same. See also, on the Munic.i.p.al Court of Chicago, Samuel Dash, "Cracks in the Foundation of Criminal Justice," (1956), pp. 419-21; the New York Magistrates' Courts, as Callison described them, were much the same. See also, on the Munic.i.p.al Court of Chicago, Samuel Dash, "Cracks in the Foundation of Criminal Justice," Illinois Law Review Illinois Law Review 46:385 (1951). 46:385 (1951).

4 Wheeler v. Goodman, 306 F. Supp. 58 (D.C.W.D. No. Car., 1969); Rev. Stats. No. Car. 1969, sec. 14-336. Wheeler v. Goodman, 306 F. Supp. 58 (D.C.W.D. No. Car., 1969); Rev. Stats. No. Car. 1969, sec. 14-336.

5 Illinois Crime Survey, Illinois Crime Survey, 1929, p. 35. 1929, p. 35.

6 Quoted in Lester B. Orfield, Quoted in Lester B. Orfield, Criminal Procedure from Arrest to Appeal Criminal Procedure from Arrest to Appeal (1947), p. 365. (1947), p. 365.

7 Roscoe Pound, "The Causes of Popular Dissatisfaction with the Administration of Justice," Roscoe Pound, "The Causes of Popular Dissatisfaction with the Administration of Justice," Reports of the American Bar a.s.socation Reports of the American Bar a.s.socation 29:395 (1906). 29:395 (1906).

8 U.S. v. Garsson et al., 291 Fed. 646 (S.D. N.Y., 1923). U.S. v. Garsson et al., 291 Fed. 646 (S.D. N.Y., 1923).

9 Powell v. Superior Court of Los Angeles 48 Cal. 2d. 704, 312 P. 2d 698 (1957); see also Robert L. Fletcher, "Pretrial Discovery in State Criminal Cases," Powell v. Superior Court of Los Angeles 48 Cal. 2d. 704, 312 P. 2d 698 (1957); see also Robert L. Fletcher, "Pretrial Discovery in State Criminal Cases," Stanford Law Review Stanford Law Review 12:293 (1960). 12:293 (1960).

10 Orfield, Orfield, Criminal Procedure Criminal Procedure, p. 457.

11 Harry Kalven, Jr., and Hans Zeisel, Harry Kalven, Jr., and Hans Zeisel, The American Jury The American Jury (1966), pp. 420-23. (1966), pp. 420-23.

12 Illinois Judicial Conference. Illinois Judicial Conference. Illinois Pattern Jury Instructions: Criminal IPI Illinois Pattern Jury Instructions: Criminal IPI (1968), pp. v, vii. (1968), pp. v, vii.

13 Roscoe Pound and Felix Frankfurter, eds., Roscoe Pound and Felix Frankfurter, eds., Criminal Criminal Justice in Justice in Cleveland Cleveland (1922), p. 306. (1922), p. 306.

14 Annual Report, Director of Administrative Office of the U.S. Courts, 1940, p. 15. Annual Report, Director of Administrative Office of the U.S. Courts, 1940, p. 15.

15 [Note:] "R.I. Statistics," [Note:] "R.I. Statistics," Journal of the American Inst.i.tute of Criminal Law and Criminology Journal of the American Inst.i.tute of Criminal Law and Criminology 31:475 (1941). 31:475 (1941).

16 See Susan C. Towne, "The Historical Origins of Bench Trial for Serious Crime," See Susan C. Towne, "The Historical Origins of Bench Trial for Serious Crime," American Journal of Legal History American Journal of Legal History 26:123 (1982). Trial without jury was, of course, the norm in some of the colonies (chapter 1). 26:123 (1982). Trial without jury was, of course, the norm in some of the colonies (chapter 1).

17 Patton v. U.S. 281 U.S. 276, 312 (1930). Patton v. U.S. 281 U.S. 276, 312 (1930).

18 Fifth Annual Report Fifth Annual Report, Judicial Council of the State of New York (1939), Judicial Council of the State of New York (1939), pp. 160, 174-75. pp. 160, 174-75.

19 Kalven and Zeisel, Kalven and Zeisel, American Jury, American Jury, p. 25. p. 25.

20 Annual Report, Annual Report, Administrative Office of the Illinois Courts Administrative Office of the Illinois Courts (1989), p. 204. (1989), p. 204.

21 Kalven and Zeisel, Kalven and Zeisel, American Jury American Jury, p. 26.

22 Ibid., pp. 28-29. Ibid., pp. 28-29.

23 Lawrence M. Friedman and Robert V. Percival, Lawrence M. Friedman and Robert V. Percival, The Roots of Justice: The Roots of Justice: Crime and Punishment in Alameda County, California, 1870-1910 Crime and Punishment in Alameda County, California, 1870-1910 (1981), p.173. (1981), p.173.

24 Illinois Illinois Crime Survey Crime Survey, 1929, p. 82.

25 Wayne L. Morse and Ronald H. Beattie, Wayne L. Morse and Ronald H. Beattie, Survey of the Administration Survey of the Administration of of Criminal Justice in Oregon ( Criminal Justice in Oregon (1932), p. 138.

26 American Law Inst.i.tute, American Law Inst.i.tute, A Study of the Business of the Federal A Study of the Business of the Federal Courts, Part Courts, Part I: Criminal Cases I: Criminal Cases (1934), pp. 12, 117 (tables 8 and 9). (1934), pp. 12, 117 (tables 8 and 9).

27 Albert W. Alschuler, "Plea Bargaining and Its History," Albert W. Alschuler, "Plea Bargaining and Its History," Law and Society Review Law and Society Review 13:211, 231 (1978). 13:211, 231 (1978).

28 Friedman and Percival, Friedman and Percival, Roots of Justice Roots of Justice, p. 226.

29 Arthur Train, Arthur Train, The Prisoner at the Bar: Sidelights on the Administration of Criminal Justice The Prisoner at the Bar: Sidelights on the Administration of Criminal Justice (1906), pp. 156, 158. (1906), pp. 156, 158.

30 Ibid., p. 159. Ibid., p. 159.

31 Harry I. Subin, Harry I. Subin, Criminal Justice in a Metropolitan Court: The Processing of Serious Criminal Cases in the District of Columbia Court of General Sessions Criminal Justice in a Metropolitan Court: The Processing of Serious Criminal Cases in the District of Columbia Court of General Sessions (1966), pp. 12-13. (1966), pp. 12-13.

32 400 U.S. 25 (1970). 400 U.S. 25 (1970).

33 404 U.S. 257 (1971). 404 U.S. 257 (1971).

34 Jonathan D. Casper, Jonathan D. Casper, American Criminal Justice: American Criminal Justice: The Defendant's Perspective The Defendant's Perspective (1972), pp. 83-84. (1972), pp. 83-84.

35 Michael L. Rubinstein and Teresa J. White, "Alaska's Ban on Plea Bargaining," Michael L. Rubinstein and Teresa J. White, "Alaska's Ban on Plea Bargaining," Law and Society Review Law and Society Review 13:367 (1979). 13:367 (1979).