This past week has been a week of pure felicity for James McClain, 25. McClain has lived under a dark cloud ever since 1976 when he confessed to having tossed a 10-month old babe named Phil Thomas down an 11-story garbage chute. For this McClain was convicted of murder and sentenced to life imprisonment. Naturally McClain did what so many of our convicted murderers do when faced with so much time on their hands. He appealed, and since 1976 he has kept a host of judges very busy reviewing his appeals.
Finally, early this month, McClain hit pay dirt: he found an appellate court able and willing to forgive and forget. The Maryland Court of Appeals overturned his conviction and ordered him released on the grounds that his confession had been received 12 minutes too late.
This remarkable decision was based on a 1978 ruling that a defendant must appear before a court commissioner within 24 hours of arrest or subsequent confessions are invalid. The court applied this asinine ruling retroactively to McClain's case because the indomiable McClain was still appealing his conviction when the new rule was issued.
In their attempt to devise an ever more perfect system of justice, some balmy judges had developed a new rule, and why not apply it to the McClain case? After all, there is no bringing that infant back to life.
Furthermore, now the cops will know how important our judges feel it is to arraign a suspect within 24 hours of his arrest. As Ernest van den Haag, author of "Punishing Criminals" has observed: "In the attempt to teach the police a lesson -- fruitless, if history tells us anything -- the judges ignore the injury they do to society and to an indefinite number of future victims of criminals whom they fail to deter by their refusal to punish the defendant."
Last week when the chief justice of the Supreme Court discussed punishment in his speech to the American Bar Association, I wonder if he had in mind the release of a man who once confessed to murder on the frivolous grounds that his confession had come 12 minutes too late? Citing the rise in violent crime, the chief justice urged that strong measures be taken. One of his principal recommendations was to place sensible limits on this absurd, and apparently endless, right to appeal and review, a cooked-up right that allows convicted criminals to go from court to court until they find a proper sap in judicial robes.
Here is a sound recommendation as the McClain case suggests, but it will be a very difficult recommendation to follow. This endless appeal system, which does so much to mock justice in our country, is not the creation of our Constitution but of judicial sophists, more solicitous to the plight of criminals than horrified by the condition of crime's victims. Our present system of endless appeals was given its great boost in Fay v. Noia, a noxious product of the Warren Court authored by its most infamous surviving member William Brennan. The decision's influence remains alive, thanks to those judges in sympathy with it. It never had any justification in constitutional precedent, as Justice Harlan made clear in his admirable dissent. Nor was the decision justified by Anglo-American history or settled notions of justice. It was the creation of a judicial ideology.
In recent years the Supreme Court has cut back on the extravagances of Fay owing to opinions written by Justices Powell and Rehnquist. There are two lessons to be learned here. The first is that, contrary to the chief justice's critics, our idiotic appeals process can be reformed consistent with the Constitution. The second is that to reform this system in accord with the court justice's recommendations we shall need reasonable judges making reasonable decisions. We need men and women who are aware that the process of appeal must eventually end in decisions that punish criminals and protect society.
In response to the chief justice, The New York Times has asseverated that "the main obstacle to swifter justice is only money -- but lots of money." This is the new wisdom of those ritualistic liberals who want to show how much they are in tune with the 1980s. Of course they are putting us on. No amount of money will bring swifter justice and safer streets if our judiciary remains vulnerable to those judges who are responsible for the courts' present absurd condition.
As Arthur Fergenson of the University of Maryland School of Law has said, "We can spend more money for more prisons and for more courts, but society will be no safer until men and women who are committed to dispensing justice as well as mercy recognize that their responsibility is to all of us, not just to criminals." When will that happen? Perhaps it will happen when judges are called from their comfortable courtrooms to fetch the broken bodies of babes from the garbage piles into which they have been thrust. Today there are simply too many judges playing God by resurrecting criminals. It is a preposterous act. Let them try instead to resurrect the dead.