In lieu of an abstract, here is a brief excerpt of the content:

Introduction to Part II The landmark decisions in Frank v. Magnum1 and Moore v. Dempsey,2 in which seemingly indistinguishable facts led to starkly distinguishable outcomes,3 lie at the heart of the current controversy over the appropriate scope of federal habeas corpus review of state criminal convictions. In both cases, unpopular defendants tried in mob-dominated Southern courtrooms in the wake of murders that had shattered the local community brought federal habeas corpus petitions and urged the Supreme Court to rule that egregious due process violations had been responsible for their convictions and death sentences. And, indeed, both cases displayed many of the features that, as we shall see again in Parts III and IV, were common to death penalty cases then and remain so now: incompetent defense counsel, prosecutorial misconduct, public passion, juror partiality, and intense political pressure on all the actors.4 But the Court denied relief in Frank and granted it in Moore. In recent times, those who support broad federal habeas corpus review of the constitutionality of state convictions have generally taken the view that the cases are inconsistent. Frank, they say, unjustifiably narrowed the scope of the federal courts’ habeas corpus investigations by mandating deference to states’ procedurally adequate mechanisms for the correction of error in criminal trials no matter how wrong the outcome of the procedures; it was rightly overruled by Moore, which called for a searching inquiry into the facts underlying petitioners’ Constitutional claims.5 Those seeking to limit habeas corpus have argued that the cases are consistent , and that the Court should adhere to the doctrine that they perceive as governing both. For conservatives, Frank did indeed set forth a rule that federal habeas courts should give heavy deference to state proceedings. In their view, the rule was (and is) correct, and Moore applied it—although, because of the extreme inadequacy of the state’s review process in that particular case, the result was a victory for the petitioners.6 This debate about the past—which intensified in the run-up to the 8 49 enactment of AEDPA,7 limiting the right of state prisoners (especially Death Row inmates) to obtain federal habeas corpus review of their convictions —is taking place with a sharp eye on the present and near future. One key statutory revision made by AEDPA was to require some increased degree of respect by federal habeas corpus courts for prior state proceedings challenging the same conviction. But the precise contours of this requirement remain cloudy.8 Meanwhile, Frank and Moore have been the subject of continuing investigation by historians. But, with rare exceptions,9 legal scholars have not benefitted from this work, much less from the previously unexamined archival material that is available to illuminate the cases. This Part seeks to make a contribution to the integration of historical and legal knowledge. Using previously unutilized historical materials, it provides the first comprehensive account of the procedural steps in the cases. It then draws on this investigation to reach a novel legal conclusion: Frank and Moore are consistent, and both require in-depth federal habeas corpus review of state prisoner convictions. The differing outcomes of the cases reflect no more than differing discretionary determinations in specific factual settings. More broadly, I suggest a reconciliation between the historical and legal modes of explaining legal decisions. From a realistic or “historical” perspective , outcomes result from the subjective motivations of individual judges. From a formalistic or “legal” perspective, the outcome of a later case results from the application or nonapplication of the rule laid down by an earlier case. My claim is that, while the identity and motivation of legal decision makers critically affect the outcome of cases at the time they are decided, in the long run the influence of legal opinions is likely to depend on their intellectual merits. Leo Frank, his lawyers, and the Justices who decided his case are now dead. Their personal traits were important in determining why the Supreme Court ruled as it did during their lifetimes. But Frank’s enduring importance, to history as well as to law (not to mention to the next prisoner who seeks to invoke it to save his life), will be doctrinal—and specifically , in my view, in its mandate for the searching federal habeas corpus review of state convictions. Chapter 9 describes the first portion of the legal proceedings in Frank, and Chapter 10 takes up the story from his filing of a federal habeas corpus petition. After Chapter...

Share