Crime Library: Criminal Minds and Methods

Dolly Mapp

The Warren Court

Dolly Mapp traveled by train to Washington and arrived early at the Supreme Court Building on that brisk March day. She took a seat in the spectators gallery and watched as the nine robed justices filed into the vast marble courtroom.

Chief Justice Earl Warren
Chief Justice Earl Warren
This was the Warren Court -- named for Chief Justice Earl Warren -- which rendered a series of monumental decisions in the 1960s regarding constitutional rights and criminal justice, from the Miranda Warning ruling to the right to free counsel in the Clarence Gideon case.

Warren was joined on the long bench at the head of the imposing room by Justices Hugo Black, William Brennan Jr., Tom Clark, William Douglas, Felix Frankfurter, John Harlan, Potter Stewart and Charles Whittaker.

Warren Court, partial, 1960s
Warren Court, partial, 1960s

Attorney Kearns, 66, was making his first appearance before the high court. He had barely begun his rather overstated oration on behalf of Dolly Mapp when Justice Frankfurter cut him off:

May I trouble you, Frankfurter said sarcastically, to tell us what do you deem to be the questions that are open before this (court).

Justice Felix Frankfurter
Justice Felix Frankfurter

Frankfurter took the lead in questioning both Kearns, ACLU attorney Bernard Berkman and Gertrude Mahon, the Cleveland prosecutor who argued the states position in Mapp v. Ohio.

Frankfurter, a liberal member of the court, was born in Austria and raised in a New York City tenement by immigrant parents. Fabulously bright, he had edited the Harvard Law Review as a student and returned to become a young lion of that university's law faculty after a brief career as a federal prosecutor in New York.

President Roosevelt appointed him to the Supreme Court in 1938. After 23 years on the bench, he was sometimes guilty of impatience.

And the arguments that day were a frustrating hodgepodge for Frankfurter and his colleagues.

The justices had an obvious agenda in agreeing to the Mapp appeal.

In a 1949 case from Colorado, the Supreme Court had refused to apply the federal evidence-exclusion rule to state courts. A dozen years later, the justices saw Mapp v. Ohio as an opportunity to revisit the issue.

Yet Kearns ignored that states-right argument, instead focusing on the illegality of the search since Cleveland police had no valid warrant.

The justices tried to lead Kearns in the right direction.

One justice asked whether the attorney was seeking to have the 1949 Colorado ruling overruled. The proper response was yes. Instead, Kearns said, No, I dont believe we are.

Prosecutor Mahon spent a good deal of her time arguing the validity of Ohios obscenity lawanother tangent that tried the patience of the justices.

But she eventually found her way to the exclusionary rule.

The absence of a search warrant can be no defense to a crime, Mahon said. If the evidence establishes the crime, what defense is there in the absence of a search warrant?

The justices listened for two hoursan hour longer than most oral argumentsbefore adjourning.

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