Paul Shechtman (NYLJ/Rick Kopstein)
On June 22, 1964, 50 years ago Sunday, the U.S. Supreme Court decided Jackson v. Denno, in which it reversed the conviction of Nathan Jackson for murdering a New York City police officer.1 For Jackson, the victory was short-lived: he was convicted at a retrial and resentenced to death. For thousands of New York defendants, Jackson has had a more lasting effect: It spawned Huntley hearings—the pretrial hearing at which the court determines the voluntariness of a confession—which are now a staple of our criminal justice system.
Killing and Confession
On June 14, 1960, at about 1 a.m., Nathan Jackson and Nora Elliot registered at a Brooklyn hotel. As the clerk began showing them to their room, Jackson robbed her at gunpoint. He then herded the clerk, a porter, and several guests into a third-floor room and warned them to stay there until he was gone. Ignoring his warning, they broke a window and shouted for help. Police Officer William J. Ramos, who had been on the job only 18 months, heard their shouts and intercepted Jackson as he was leaving the hotel. In the exchange of gunfire, Jackson shot Officer Ramos twice, killing him.
Jackson was himself wounded and hailed a taxi cab, which took him to a nearby hospital. At about 2 a.m., a detective arrived at the hospital and interviewed Jackson, who admitted to the shooting: “I shot the colored cop. I got the drop on him.” Later, Jackson was questioned by an assistant district attorney and gave a more detailed confession, which included this:
Q. Where did you meet the officer?
A. On the street.
Q. What happened when you met him?
A. I said, “There was a fight upstairs.”
Q. Then what?
A. He insisted I go with him so I got the best of him.
Q. How did you get the best of him?
A. I know Judo.
Q. You threw him over?
Q. After you threw him to the ground, what did you do about your gun?
A. He went for his gun.
Q. What did you do?
A. I got mine out first….
Q. What did you say to him?
A. Told him not to be a hero.
Q. How many shots did you fire at the officer?
A. I don’t know.
Q. Was it more than one?
Q. Who fired first, you or the police officer?
A. I beat him to it.
It was this second statement that Jackson sought to keep from the jury, claiming that it was involuntarily obtained because he was heavily sedated in anticipation of surgery.
At trial, Jackson testified in his own defense and admitted the robbery and the shooting. He contended, however, that the shooting was not in connection with the robbery (and therefore it was not a felony murder) and that he was intoxicated (and therefore it was not an intentional murder). Without objection, the judge instructed the jury that the voluntariness of the second confession was for it to decide: “If you should decide that [the statement] was involuntary, exclude it from the case.”
Jackson was convicted of intentional murder (the jury was silent on the felony murder charge) and sentenced to death.2
After his conviction and death sentence were upheld on direct appeal and federal habeas, Jackson filed a writ of certiorari in the U.S. Supreme Court. The first question presented was this: “Does [New York's] procedure which leaves solely to the jury the factual question of voluntariness of a confession violate the Fourteenth Amendment”? The court granted the petition, which required it to reconsider its decision in Stein v. New York, decided only 11 years earlier, in which it had upheld the New York procedure.3
Under the so-called “New York rule” at issue in Stein and Jackson (and followed in 15??states), the voluntariness of a confession was decided by the jury, which was instructed to disregard the confession if it was involuntarily obtained. There were two competing approaches to allocating responsibility between judge and jury. Under the “orthodox approach” (followed in 20 states), the judge alone decided the voluntariness issue. And under the “Massachusetts rule” (followed in 14??states), the judge decided voluntariness but then gave the jury a second bite: He instructed the jury to disregard the confession if it found that the confession was involuntary. Under all three approaches, the weight to be given to a confession found to be voluntary was for the jury to decide.
Writing for the majority in Jackson, Justice Byron White concluded that the New York rule was unconstitutional and therefore Stein should be overruled. For White, what had changed in the 11 years between Stein and Jackson was the meaning of the term “involuntary.” It was now clear (after Rogers v. Richmond decided in 1961), that “the reliability of a confession had nothing to do with its voluntariness.”4 The question instead was whether the defendant’s “will had been overborne.” (Put differently, a reliable confession was still constitutionally inadmissible if the police had employed improper tactics to procure it.) As White saw it, the requirement “that a trustworthy confession must also be voluntary if it is to be used…generates natural and potent pressure [on the jury under the New York rule] to find it voluntary [for] otherwise the guilty defendant goes free.” Only a prior judicial determination could adequately protect a defendant’s right not to have an involuntary confession used against him.
White also expressed deep skepticism that a jury that found a confession involuntary could be trusted to follow an instruction to ignore it:
Under the New York procedure, the fact of a defendant’s confession is solidly implanted in the jury’s mind, for it has not only heard the confession, but it has been instructed to consider and determine its voluntariness…. If it finds the confession involuntary, does the jury—indeed, can it—then disregard the confession in accordance with its instructions.
Justice Hugo Black dissented from the majority’s decision to overrule Stein.5 For Black, the majority’s opinion was an exercise in lawmaking. It reflected a misguided judicial philosophy that the due process clause could be used to strike down laws and procedures because they were “‘unfair,’ ‘contrary to the concept of ordered liberty,’ ‘shock the conscience,’ or come within various catch phrases.” The jury, Black reminded, was a “bedrock safeguard of the people’s liberties,” so that in invalidating the New York rule (which Black called “the New York trial-by-jury practice”), the majority was “overlooking the fact that the Constitution itself long ago made the decision that jurors are to be trusted.”
Exchange of Letters
The disagreement between Justices White and Black first surfaced in late February 1964, when White circulated a draft of his Jackson opinion. On Feb. 21, 1964, Black sent a three-page, single-spaced “Dear Byron” letter announcing that “it will be impossible for me to agree with what you have written.”6 The letter began with this:
Some of my objections stem from your use of the word “fairness” in the second sentence of your opening paragraph instead of the word “constitutionality.” This word “fairness” used in its context implies that we are relying on the loose definition of “due process” as meaning anything that is offensive to this Court’s sense of decency or the basic principles of “fundamental fairness in the English-speaking world.”
For Black, the notion that the justices could strike down practices that they found “unfair” was anathema; it was an approach to constitutional law that he had spent more than 20 years trying to entomb.
Oddly, Black’s letter also reveals a serious misunderstanding of the issue in Jackson. He wrote this: “There might be more unfair things for a defendant than to have his guilt passed on by a jury on a confession admitted by the court as true while at the same time the jury is denied the benefit of evidence to show that the confession was in fact the result of coercion, intimidation, force or violence, but I cannot think of a worse procedure at present.”
The next day, White wrote back (“Dear Hugo”) emphasizing that he had “no intention to proscribe the introduction of coercion evidence going to the weight of the confession”—i.e., that under “the orthodox procedure [or] the Massachusetts rule…a defendant [has] a full opportunity to impeach the confession by presenting evidence of the circumstances surrounding its procurement.”
In response to Black’s letter, White changed the second sentence of his opinion, substituting the word “constitutionality” for “fairness.”
In October 1964, the New York Court of Appeals granted Charles Huntley’s petition for leave to appeal to decide “some but not all of the…questions which have or will be raised because of Jackson v. Denno.” In Huntley, the Court of Appeals “adopt[ed] for New York State the Massachusetts procedure” under which “the jury passed on voluntariness only after the judge has fully and independently resolved the issue against the accused and has made express findings upon the disputed fact question of voluntariness.”7 The judge, the Court of Appeals held, must find voluntariness beyond a reasonable doubt before the confession can be submitted to the jury. That procedure remains New York law, and the term Huntley hearing (for the pretrial hearing on the admissibility of a confession) has become a part of every New York criminal lawyer’s lexicon. Jackson hearing might be a more accurate name.
As for Nathan Jackson, the Brooklyn District Attorney’s Office elected to retry him without using the disputed confession. (And so Jackson did not get a Huntley hearing.) This time, he was found guilty of felony murder and resentenced to death. That outcome engendered litigation that eventually reached the U.S. Court of Appeals for the Second Circuit as to whether the conviction for felony murder, on which the jury had not rendered a verdict at the first trial, violated Jackson’s double jeopardy rights. The Second Circuit upheld the conviction.8
In November 1967, Governor Nelson Rockefeller commuted Jackson’s death sentence to 20 years to life imprisonment. Although a supporter of the death penalty, the governor believed that New York’s statute could not be applied where the conviction was for felony murder. In 1983, Jackson was released on lifetime parole after serving 23 years. Eight years later he was convicted of a bank robbery and sentenced to two to four years’ imprisonment. (It was his third felony conviction; he had a 1954 conviction for burglary.) A 1991 Department of Corrections report indicates this:
[Jackson] is no stranger to the correctional setting and states that he is presently in good physical and mental health. He denies both drug and alcohol abuse. He readily admits to his guilt in the [instant offense] without elaboration. While incarcerated, Jackson states he would like to continue his education through college.
Whether Jackson continued his education is unclear, but he did continue his criminal ways. Released from prison in 1993, he was returned on a parole violation in 2004 after he struck a man in the face with a metal cane. He died in Wende Correctional Facility three years later at age 72.
Black’s Longstanding View
Jackson v. Denno remains a landmark Warren Court precedent but one with which Justice Black never reconciled. In 1970, at age 84, he issued a dissenting opinion in an obscure case from Nebraska in which he announced that he “continued [his] protest against this Court’s decision in Jackson v. Denno.”9
Paul Shechtman is a partner at Zuckerman Spaeder and an adjunct professor at Columbia Law School.
1. Jackson v. Denno, 378 U.S. 368 (1964).
2. Elliot was tried with Jackson and convicted of manslaughter.
3. Stein v. New York, 346 U.S. 156 (1953).
4. Rogers v. Richmond, 365 U.S. 534 (1961).
5. Notably, Justice Black found that Jackson’s second confession was “given under circumstances that were inherently coercive” and therefore should not have been admitted. Justice John Marshall Harlan filed a separate dissent, joined by Justices Tom Clark and Potter Stewart, arguing that Stein had been rightly decided.
6. The correspondence can be found in the papers of Justice Tom Clark.
7. People v. Huntley, 15 N.Y.2d 72 (1965).
8. United States ex rel. Jackson v. Follette, 462 F.2d 1041 (2d Cir. 1972).
9. Sigler v. Parker, 396 U.S. 482 (1970).