Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1915-04-24

The text of the dissenting opinion
in the Frank case. delivered by JUS
tice Holmes, follows:
"Mr. Justice Hughes and are OF
the opinion that the judgment should
be reversed. The only question be-
fore us is whether the petition shows
on its face that the writ of habeas
corpus should be denied or whether
the district court should have pro-
ceeded to try the facts. The allega-
lions that appear TO be material are
these:
THE trial began on July 2S. 1913,
at Atlanta. and was carried on in a
court packed with spectators and sur
rounded by a crowd outside, all
strongly hostile to the petitioner.
, On Saturday, August 23. this hostil-
ity was sufficient to lead the Judge
to confer in the presence OF the jury
with the chief of police Of Atlanta
and the colonel of the Fifth Georgia
regiment stationed in that city, both
OF whom we're known to the jury.
On the same day, the evidence SEEM
ingiy having been closed, the public
press, apprehending danger, united
in a request TO the court that the pro
ceedings should not continue on that
evening. Thereupon the court ad-
journed until Monday morning.
"On that morning. when the solicit
tor general entered the court, he was
greeted with applause. stamping Of
+ feet and clapping OF hands. and the
Judge, before beginning his charge.
had a private conversation with the
petitioners counsel, In which he ex-
pressed the opinion that there would
be probable danger Of violence II
there should be an acquittai OF dts
agreement. and that It would be safer
for not only the petitioner. but his
counsel. TO be absent from court
when the verdict was brought in. At
the judges request they agreed that
the petitioner and they should be abb
sent, and they kept their word. When
the verdict was rendered. and before
more than one Of the jurymen had
been polled. there was such roar OF
applause that the polling could not
go on until order was restored. The
noise outside was such that II was
difficult for the judge 10 hear the an
swers OF the jurors. although he was
only ten feet from them.
with these specifications of fact,
the petitioner alleges that the trial
was dominated by a hostile mob and
was nothing but an empty form.
Can't LegaIise Mob Law.
I'VE lay on one side the question
whether the petitioner could or did
waive his right TO be present at the
polling of the jury. That question
was apparent In the form Of the trial
and was raised by the application for
Q writ Of error; and although, after
the application TO the fun court We
thought that the writ ought to be
granted, we never have been im-
pressed by the argument that tho
presence of the prisoner was required
by the Constitution OF the United
States. But habeas corpus cuts
through all forms and goes to the
very tissue OF the structure. II
comes in from the outside. not in sub
ordination to the proceedings. and.
although every form may have been
preserved. opens the inquiry whether
they have been more than empty
shell.
The argument for the appellee, in
substance. is that the trial was in a
court Of competent jurisdiction. that
Il retains jurisdiction. although, in
fact. II may be dominated by a mob,
and that the rulings OF the state court
as to the fact OF such domination can
not be reviewed. But the argument
seems 10 us ineonclusive. Whatever
disagreement there may be as to the
scope Of the phrase. due process OF
law there can be no doubt that II
embraces the fundamental conception
OF fair trial. with opportunity 10 be
heard. Mob law does not become due
process OF law by securing the assent
OF a terrorized jury. We are not
speaking OF mere disorder OF mere
irregularities in procedure. but OF 9
case where the processes Of justice
are actually subverted. In such .
case the federal court has jurisdic
ton 10 issue the writ. The fact thai
the state court still has its genera
jurisdiction and Is otherwise a com
Detent court does not make It impos