Evening star., 1951-05-08
The Public Needs Sofequordinq, Too

That the average layman is perpexed by the
Court of Appeals reversal of the conviction of
Ernest Tatum in such clear-cut case as the
1949 rape OF nine-year-old girl is understand
able. That judge of the court should share the
publics perplexity and shock over the reversal is
worthy OF special note. AS a matter of fact, the
dissenting jurist, Circuit Judge Bennett Champ
Clark, considers the majority action "the most
shocking that has emanated from this court and
ranking among the most shocking judicial de-
cisions"
The majority judges, David L. Bazelon and
Barrett Prettyman, ordered a new trial for Ia
tum coored laborer, convicted by District Court
jury of an atrocious attack and recommended
for the death penalty. The majority, while mot
unmlndful OF the serious import of reversing
criminal conviction" particularly Gin view of the
nature of the crime charged" invaidated the
conviction on two grounds: Cd That District
Court Judge HoltZoff did not instruct the jury
about "the defense of insanity; (2) that the
trial judge failed to instruct the jury that de-
spite concession by defense counsel as to Ia
tunl's guilt, the jury alone could determine guilt
or innocence Judges Bazelon and Prettyman
said they were not concerned with "mere legal
technicalites' but with "the preservation of
safeguards" of the individual That is a proper
concern of any court. But The Star believes
that this concern should be as deep with respect
to the safeguarding of individuals against vicious
sex criminals as to the safeguarding of the rights
of criminals
AS the dissenting judge pointed out, this was
revolving crime in which the defendant Of
fered mot scintila of evidence in his own de-
tense except to say that he could not remember
what had occurred" He had been drinking at
the time. The court-appointed defense attorney
an able lawyer, sought to avert the death penalty
by admitting his clients guilt. Judge Clark
agreed with the majority that the trial Judge
should not have adopted this statement" but
held that this was not a reversible error because
of the circumstances of the case and the theory
. on which it was being tried by defendants
y counsel If the repetition by the court of the
4 attorneys concession of guilt was an error, he
said, "it certainly harmless error" As for the
sanity question. Judge Clark held that since the
defense made no allegation of insanity, it was
not an issue at the trial and hence there was no
obligation for the trial Judge to instruct the jury
on that point.
The majority noted that if Tatum ultimately
should be acquitted on retrial by reason of in
! sanity, "he need not be set free but might be
committed to a mental institution, thereby salts
tying the interest of society both in the safety
Of the public and the rehabilitation of the Of
! fender" But the community at large will share
4 Judge Clarks doubts as to the reliability of such
an assurance. He shows an awareness of condi-
tions that have Soutraged citizens in the past
when he says: ITO any one old enough to read
newspaper, the melancholy history of these cases
Is all too plain"-a record of repeated sex offenses
and repeated arrests. The courts will only COM
plicate the problem of protecting society from
these dangerous offenders if they lean over back
ward to avoid convicting them