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Frank v. Moore: The Legal and Historical Explanations Legal scholars have long differed irreconcilably in their explanations of the disparate outcomes of Frank and Moore in the Supreme Court of the United States. There are three leading theories. Paul M. Bator, a conservative Harvard Law School professor whom we shall see again in Part III, argued that the Moore “case is entirely consistent with Frank.” He claimed that Frank lost because: the prisoner’s allegations were considered by the Georgia Supreme Court under conditions which were concededly free from any suggestion of mob domination and found by that court, on independent inquiry to be groundless, while in Moore, unlike in Frank, the state supreme court did not conduct any proceedings or make any inquiry into the truth of the allegations of mob domination , and made no findings with respect to them. Thus, Frank presented a situation in which the state courts had delivered “reasoned findings rationally reached through fair procedures,” resulting in “a reasoned probability that justice was done,” while in Moore there was: a conclusory and out-of-hand rejection by a state court of a claim of violation of federal right, without any process of inquiry being afforded at all, [which] cannot insulate the merits of the question from the federal habeas court.1 To Bator, then, the cases spoke to the scope of federal habeas corpus review,2 and were consistent. To Gary Peller, a Georgetown law professor whose views are closely aligned with those of Justice Brennan, in contrast, the two cases dealt with the substantive requirements of due process. In Frank: 15 86 [b]y allowing a procedurally adequate state appellate hearing to satisfy due process requirements, the Court reduced constitutional claims available to a state prisoner on direct Supreme Court, or habeas, review. In Moore, “the due process doctrine of Frank was overturned,” and the Court held that “regardless of the nature of the state’s appellate review,” an allegation of a mob-dominated trial stated a claim under the Due Process Clause. Thus, the “dispositive difference between Frank and Moore was the Court’s view of the requirements of the due process clause,” with Moore returning “due process law to its pre-Frank state.”3 Criticizing both of these views, Professor James S. Liebman of Columbia Law School, today’s best-known scholar of habeas corpus, finds that from “Frank to Moore, it was not habeas corpus or due process that changed, but rather federal question appellate review.” In Frank, the question of mob domination was treated as one of fact, and therefore not to be reviewed in a federal appellate court, on direct appeal or by habeas corpus, whereas in Moore the majority accepted the view that Justice Holmes had articulated in his Frank dissent and characterized the issue as a “mixed question”; then, applying in the criminal context a doctrine of appellate review it had already articulated in the realm of economic liberties, it granted de novo review.4 While each scholar’s perspective captures important aspects of the cases, none is fully explanatory. Bator’s view ignores the fact that, even in Frank, it was agreed on all hands that, regardless of the state processes, the federal court could examine the merits; the disagreement was over whether it should do so. Peller fails to recognize that all Justices in both cases agreed that actual mob intimidation of a jury was a due process violation; and his additional statement that Moore returned due process law to its pre-Frank state on this point is unsupported by the authority cited. Liebman, perhaps misled by Holmes’s elaboration for rhetorical reasons in Frank of a point on which there was actually no disagreement,5 fails to recognize that all Justices considered the issue of mob domination to be one of fact.6 Moreover—in the most important holding of Frank, whose poor reputation among friends of habeas corpus surely owes more to the drama of the surrounding facts than to the legal doctrine it articulated—all the Justices recognized the power of the District Court to conduct an independent investigation of the facts.7 But in neither Frank nor Moore was the Court engaged in appellate review of lower court findings of fact; in both, it was reviewing the summary dismissal of a petition and deciding whether there should be a hearing—a purely legal question.8 Frank v. Moore: The Legal and Historical Explanations | 87 [13.58.252.8] Project MUSE (2024...

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