Carrington, Frank G.

Schmidt, Wayne W.

English

Northwestern University Illinois, School of Law: Scholarly Commons

Journal of Criminal Law and CriminologyVolume 68Issue 2 June Article 3Summer 1977The Man Who Swam UpstreamFrank G. CarringtonWayne W. SchmidtFollow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclcPart of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice CommonsThis Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.Recommended CitationFrank G. Carrington, Wayne W. Schmidt, The Man Who Swam Upstream, 68 J. Crim. L. & Criminology 177 (1977)THE MAN WHO SWAM UPSTREAMTHE MAN WHO SWAM UPSTREAMFRANK G. CARRINGTON* AND WAYNE W. SCHMIDT**It has been described, accurately, as the"Warren Revolution": that period, roughly be-tween 1960 and 1969, during which th& Su-preme Court of the United States under theleadership of Earl Warren chose to revolution-ize the enforcement of the criminal law. In thisten-year period the Court's rulings, in thewords of Senator John L. McClellan (D.-Ark.),threatened: "to alter the nature of the criminaltrial from a test of the defendant's guilt orinnocence to an inquiry into the propriety ofthe policeman's conduct."' To back up this con-tention, Senator McClellan noted the Court'srecord of reversals of criminal convictions be-tween 1960 and 1969: 63 of 112 federal criminalconvictions were reversed-a figure of almost60%; 113 of 144 state criminal convictions werereversed-a figure of almost 80%.2Of far greater importance than the actualnumber of reversals was the sweeping mannerin which many of the Court's opinions werecast. Police procedures were scrutinizedthrough a fine constitutional eyepiece. Forexample, the exclusionary rule3 mandated thatany evidence, no matter how relevant or proba-tive of a suspect's guilt, must be excluded if thepolice committed any error in the search andseizure process; Miranda v. Arizona4 dictatedthat no confession, no matter how voluntary,could be used against a suspect if law enforce-ment officers ran afoul of a prescribed litany ofwarnings to the accused of his rights; and the"line-up cases"5 held that eyewitness identifica-tions by witnesses to and victims of crimes wereinadmissible if the suspect's attorney was notpresent (unless he waived the right). The thrustof the "Warren Revolution" was to elevate the* Executive Director, Americans for Effective LawEnforcement.** Operating Director, Americans for EffectiveLaw Enforcement.1 115 CONG. REC. 23235 (1969) (remarks of Sen.McClellan).2Id.I Mapp v. Ohio, 367 U.S. 643 (1961).4 384 U.S. 436 (1966).5 United States v. Wade, 388 U.S. 218 (1967); Gil-bert v. California, 388 U.S. 263 (1967); Stovall v.Denno, 388 U.S. 293 (1967).rights of the criminal accused to a level hithertounknown in this country, or, for that matter, inthe world. If the rights of society to be reasona-bly free from criminal harm might, as a conse-quence, be correspondingly diminished, so beit.Nowhere was the Court's revolution of thecriminal law greeted with more enthusiasmthan in academic legal circles. Not surprisingly,hymns of praise rang out from law school cam-puses across the nation. The rights of all citi-zens are extremely important, especially thoseof criminal suspects. Furthermore, it is thefunction of the academic to study the issuefrom a rather lofty plane, withdrawn from thehurly-burly of law enforcement on the street:the constant interplay, in real life, of police-man, criminal and victim. As Mr. Justice Blackonce stated: "It is always easy to hint at mysteri-ous means available just around the corner tocatch outlaws ."6The torrent of adulation from the groves oflegal academe for the Warren Court and itspronouncements became pretty much a ragingcurrent. Few had the inclination to swim up-stream against it. Of those who did, one namestands out preeminently: Fred E. Inbau.A minor figure in the legal academic schemeof things might not have gotten away with it.He might have floundered in the current. ButFred Inbau was no minor figure. He was one ofthe most respected law professors in the nation.Students at the Northwestern University Schoolof Law jockeyed to get into his classes. He wasin demand in both national and internationalcircles as a lecturer in criminal law and scientificcrime detection. He had written so many case-books and textbooks that most people (perhapseven Fred) had lost count of them; but thou-sands of law students had cut their criminal lawteeth on them. An international authority, In-bau was not a man whose views could be easilybrushed aside.Inbau holds certain deeply-rooted beliefsabout the criminal justice system. He is among6 Berger v. New York, 388 U.S. 41, 73 (1967)(Black, J., dissenting).19771CARRINGTON AND SCHMIDTthe first to champion the fundamental rights ofcriminal suspects. He is probably the leadingnational authority on criminal interrogationsand confessions; his book on the subject hasbeen a Bible for law enforcement officers foryears; but he has always maintained that anyinterrogation techniques which might cause aninnocent party to confess must be absolutely pro-hibited and any confession so obtained shouldbe inadmissible.His concerns, however, unlike many of hiscolleagues of a different persuasion, are notsinglemindedly directed towards the rights ofthe accused. Others, he believes, also haverights; namely, the law-abiding citizen and thevictim of crime. For Inbau, a system of lawwhich raises elaborate safeguards around theaccused, but does little or nothing to protect theinnocent, is a system badly out of balance, andthis was the direction in which he perceived ourcriminal justice system to be going.So the swim upstream began. Fred Inbaunever had any lack of invitations to lecture, totestify before state and national legislative bod-ies and to appear on television talk shows. Hebegan to carry the message: we've gone over-board in favor of the criminal and some day thechickens are going to come home to roost. Hewas, of course, to be proven perfectly correct-at least to those who believe that the permissive-ness shown towards criminals in the 1960's hada direct cause-and-effect relationship to sky-rocketing crime rates during the same period.As editor-in-chief of the prestigiousJournal ofCriminal Law, Criminology and Police Science pub-lished by Northwestern University Law School,he had a built-in platform from which to ex-pound his views, and he did not hesitate to doso. His, best effort was an editorial entitled"Playing God": 5 to 4 in which he testily ac-cused the majority of the Court in Miranda v.Arizona of going on a sort of constitutional ram-page-'Self-effacing and retiring, Inbau is neverthe-less a man of action. (He has been known tochase down a fleeing robber on the street, collarhim and hold him for the police-hence theappellation, "Freddy the Cop"). It would havebeen uncharacteristic of the man had he con-tented himself with speaking and writing on thedrift which the law currently was taking. InInbau, "Playing God": 5 to 4, 57 J. CRIM. L.C. &P.S. 377 (1966).1965 he went into action and founded Ameri-cans for Effective Law Enforcement, Inc.(AELE).Although AELE was Fred's brainchild, heassembled about him a blue-ribbon roster of co-founders: the late 0. W. Wilson, then Superin-tendent of the Chicago Police Department;Richard B. Ogilvie, then president of the CookCounty Board, and later Governor of Illinois;James R. Thompson, then a Professor of Lawat Northwestern University who is currentlyGovernor of Illinois; the late Harold A. Smith,past president of both the Chicago Bar Associa-tion and the Chicago Crime Commission; andtwo Chicago Attorneys, Alan S. Ganz and Dan-iel B. Hales.AELE was founded as a national, not-for-profit citizens organization whose purpose wasto represent the rights of the law-abiding citizenin the criminal justice system. Inbau has ex-pressed his motivations: when he was calledupon to testify in support of more effective lawenforcement before various policy-makingbodies he usually stood alone, while the roomwas filled with those calling for more rights fordefendants. He felt that there should also be aresponsible citizen's voice on the other side.8AELE's principle program at the outset wasthe filing of briefs as amicus curiae, in the Su-preme Court of the United States, on the sideof law enforcement. The first such brief, writ-ten by James R. Thomspon, was filed in thecase of Terr, v. Ohio.' It was a masterful piece oflegal draftsmanship which may well have as-sisted the Court in arriving at its eight-to-onedecision upholding the right of the police to"stop and frisk" persons suspected of criminalactivity in public places.Since then, AELE amicus curiae briefs havebeen filed in twenty-one Supreme Court cases,with AELE on the winning side in fifteen out ofthe eighteen cases which have been decided.Significantly, many of these were cases in whichthe Burger Court narrowed, or at least de-8 Early in the course of AELE's endeavors, Mr.John P. MacKenzie, a staff writer for the WashingtonPost, wrote that Inbau had founded AELE to "geteven" with the Warren Court for the Miranda deci-sion. Whether this allegation was made spitefully orjust in ignorance, it was totally unfounded. Inbausent MacKenzie a copy of AELE's Articles of Incorpo-ration dated March, 1966, three months before theMiranda decision. MacKenzie did not reply.9 392 U.S. 1 (1968).[Vol. 68THE MAN WHO SWAM UPSTREAMclined to expand, restrictions which the WarrenCourt had imposed upon law enforcementofficers. Some measure of the importance ofsuch amicus advocacy can perhaps be found inthe fact that in the recently decided case ofBrewer v. Williams,1 ° the attorneys general oftwenty-one states joined in AELE's brief.Both of the authors of this article have beenclosely associated with Fred Inbau, personallyand professionally, for over ten years. Our ad-miration for him is obvious and this articlemust, of necessity, be biased. But biased or not,the fact remains that Fred Inbau, once a lonelyvoice in the wilderness, has been vindicated and10 97 S. Ct. 1232 (1977).proven right about as much as a man can be.Inbau was almost alone in calling for a criminaljustice system which considered the rights ofthe law-abiding, at a time when such a positionwas not in vogue in the legal-academic com-munity. He had many detractors then; butwhen he predicted that a single-minded per-missiveness towards criminals would lead tosky-rocketing crime rates he was, of course,right. He called for a balance in the system, andsuch a balance is slowly coming into being to-day. The impact Fred Inbau has had upon thisimproved situation cannot be measured withprecision but in our opinion the contributionmade by the man who swam upstream has beenindeed significant.

The Man Who Swam Upstream

https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6017&amp;context=jclc

The Man Who Swam Upstream

Abstract

Similar works

Full text

Available Versions

Northwestern University Illinois, School of Law: Scholarly Commons