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INTANGIBLE RIGHTS The first biography of Otto Kerner will be published by the University of Illinois Press next year. Kerner, a former governor and federal judge, died after serving a term in prison. Among the issues raised by the book's authors are Kerner's views on civil liberties, and how his views differed from those of the man who prosecuted himEssay by Bill Barnhart and Gene SchlickmanRichard Nixon's presidential victories in 1968 and 1972, achieved in part through a shrewdly crafted law-and-order message, were watershed events in that shift. His unmasking as a lawbreaker coarsened voters' opinions about political leaders but did nothing to soften their attitudes toward the ordinary criminal suspects and defendants most affected by the hard-line mood Nixon nurtured and exploited. That conservative consensus on civil liberties still holding sway in Illinois owes much to Nixon's presence on the national stage. But the prevailing sentiment was dramatized and enhanced by the careers of two men, Otto Kerner, the last Democrat to be elected to two terms as Illinois governor, and James R. Thompson, who was elected governor four times and inaugurated the 22-year GOP reign in Springfield' s Executive Mansion. A lanky, crew-cut Jim Thompson first entered the public arena in late July 1962 as an assistant Cook County state's attorney in a sweltering, jam-packed hearing room of the Illinois Parole and Pardon Board. Three years out of Northwestern University Law School, he rose to oppose the clemency petition of convicted murderer Paul Crump. Crump, who had been in jail since 1953, attracted national media attention after death-penalty opponents and officials of Cook County Jail claimed he was rehabilitated and was not the same man who killed a security guard after a botched holdup attempt. Countering convincing testimony on Crump's metamorphosis, Thompson belittled the notion that years of unseemly execution delays, which provided Crump's opportunity to feign improved behavior, should allow the state to renege on an obligation that was demanded properly and unequivocally by the judicial system. He reminded the pardon board that Otto Kerner, not themselves, held Crump's fate in his hands. "That awesome power is left, as it should be, to the governor of this state. ... You gentlemen are no more than ministers to the governor's conscience." Thompson knew that four months earlier, Kerner, an avowed death-penalty opponent but a defender of state law, had refused to block the electrocution of murderer Vincent Ciucci, who shot to death his wife and children. Donald Page Moore, Crump's attorney, described Thompson in a Chicago magazine interview: "He was restrained. He hurt us for just that reason. And I think he cared a lot more about the case than he ever showed. He was the very model of a great prosecutor. He didn't do any of this low-down rabble rousing. 32 | July / August 1998 Illinois Issues He was a gentleman. A merciless gentleman." "Gentleman" also was among the generous words many Illinois voters and professional politicians used to describe Kerner, the handsome, compassionate show horse of the Cook County Democratic Organization. Kerner campaigned against William G. Stratton's bid for a third term as governor in part on his spotless reputation as Cook County judge, a now-defunct post notable at the time mostly for its power over the election process in Chicago. Kerner used the office to lead a long-overdue and enormously popular reform of the state's disreputable child adoption procedures. Days after Crump's parole board hearing, Kerner accepted the voluminous evidence in Crump's favor and decided to give rehabilitation a chance under a 199-year sentence. In a statement drafted by his deputy, Dawn Clark, Kerner said: "The most significant goal of a system of penology in a civilized society is the rehabilitation of one of its members who, for a variety of complex reasons, has violated the laws of the society. If that premise were to be denied, solely because it is a capital case, a great disservice would be done." (Dawn Clark Netch's 1994 loss in the race for governor has been attributed in part to her continuing opposition to the death penalty.) Acknowledging deep uncertainty about the correct standard for certifying rehabilitation, Kerner said the evidence in the Crump case "is virtually unanimous that the embittered, distorted man who committed a vicious murder no longer exists. ... Under these circumstances it would serve no useful purpose to society to take this man's life." Kerner's ambivalence on his role as the final arbiter of capital punishment in Illinois reflected an intense but healthy public debate. Clemency for Crump improved his standing among the state's liberals, but three weeks later he permitted the execution of James Dukes, who had killed a Chicago police officer and who made no claim of rehabilitation. It would be the last execution in Illinois for the nearly three decades it took the nation to try to resolve the death penalty issue. Two years after the Crump hearing, 28-year-old Jim Thompson arose in the cool, quiet chamber of the U.S. Supreme Court to argue against leniency for another convicted murderer, Danny Escobedo. This time, Thompson defended the deceptions used by Chicago police to draw Escobedo into admitting complicity in the killing. In Escobedo v. Illinois, Thompson stood symbolically in the place of Fred E. Inbau, his law school mentor. Inbau, who died in May, was one of the nation's leading coaches on the side of the police in conducting interrogations and winning confessions. Escobedo v. Illinois was the first of several landmark cases before the court under Chief Judge Earl Warren testing the constitutionality of police conduct in handling criminal suspects. Inbau called Thompson's presentation "his finest oral argument." But, once again, Thompson lost. As his biographer, Robert Hartley, put it, "the Supreme Court disagreed, and in a five-to-four decision against Thompson and in behalf of Escobedo, fired the first shot in a revolution that altered all practices in questioning suspects and obtaining confessions." Soon after, in Miranda v. Arizona, the high court extended the Escobedo ruling by declaring that whatever an arrested person said without a lawyer being present could not be used against him unless he expressly waived his right to a lawyer before saying it. Hartley wrote in his 1979 book, Big Jim Thompson of Illinois: "Decisions of the Warren Court, civil unrest in the cities, growing discontent with Vietnam involvement, and the discordant notes of a society in turmoil had prepared the nation for Richard Nixon's comeback and created a demand for persons in high office who would work to strengthen the nation's 'peace forces,' as Nixon called them. James R. Thompson's emergence in Illinois and in the nation as an important member of these 'peace forces' was about to begin." Otto Kerner believed national peace would not result from police tactics that trampled the protections of the Bill of Rights, which he knew were most abused in police treatment of the poor and minorities. As chairman of President Lyndon Johnson's National Advisory Commission on Civil Disorders (the Kerner Commission), Kerner helped mold a unanimous statement by a diverse panel of prominent Americans, who said unfair police conduct was a major ingredient in the "explosive mix" that caused deadly and destructive urban riots in black ghettoes in 1967. "To some Negroes police have come to symbolize white power, white racism and white repression," the report concluded. "And the fact is that many police do reflect and express these white attitudes." After Johnson named Kerner to the U.S. Seventh Circuit Court of Appeals in Chicago, he continued to scrutinize police conduct and to point out that the most egregious police behavior tended to involve the least advantaged individuals. Known today as a conservative Republican bench, the Seventh Circuit's early history embodied Democratic and progressive thinking, quite compatible with Kerner's leanings. His appointment renewed the court's outreach to urban ethnic groups that began when Franklin D. 33 | July / August 1998 Illinois Issues Roosevelt placed Kerner's father, Otto Kerner Sr., on the bench in 1938. Like his father, Kerner was neither a doctrinaire liberal nor a zealous challenger of the status quo. Both men cherished the American economic and social establishment that they aspired to join as a Bohemian immigrant family from Chicago's West Side. But they shared an immigrant's love of individual liberty and the right to have a chance as well as a Bohemian's historic suspicion of government's power. The stamp of both Kerners on the court appears most clearly in the area of civil liberties. Their opinions stressed an instinctive vigilance on behalf of the rights of convicts, defendants and suspects in criminal cases. The younger Kerner's first extended expression on this point came in a lengthy dissent to a majority ruling upholding the murder conviction of McKensie Davis, who, without having a lawyer present on his behalf, was convicted through incriminating statements he uttered in response to subtle police baiting. Senior Judge Winfred G. Knoch, the venerable DuPage County Republican whose seat Kerner had taken after Knoch unexpectedly chose senior status, wrote the majority opinion. "We cannot adopt any general rule that voluntary statements freely given by an accused must be suppressed merely because he has retained counsel, when he voluntarily elects to speak in the absence of that counsel," he wrote. "I respectfully dissent," Kerner responded. "I feel that Davis' rights were seriously imposed upon with the deliberate eliciting of confessions from him after he had been arrested. The first statement was blatantly elicited from [Davis] by [a police officer] with the standard misleading police approach that 'it would be better' or 'go easier' on the arrestee if he confessed. Such a nebulous statement is frequently used by a great number of police forces throughout the United States." Kerner cited no less an authority than Thompson's mentor to press his rebuke of the police tactics that induced Davis' admissions: "Professor Fred E. Inbau has been criticized by various writers as an advocate of harsh and improper police practices, especially in the areas of interrogation and detention. The most authoritative criticism of his methods of interrogation was undertaken by the Supreme Court in Miranda v. Arizona. ... Yet even Inbau states that 'it would be better for you if' is not to be used." Numerous Seventh Circuit procedural rulings on behalf of criminal defendants and prisoners followed from Seventh Circuit panels that included Kerner. The nation was moving sharply to the right, applauding those who condemned tolerant judges. But the Seventh Circuit, with Kerner as the junior member, shifted the other way. Sympathy toward suspects, defendants and convicts often split the court itself. When Judges Latham Castle and Otto Kerner, in a habeas corpus petition involving two convicted burglars, found procedural error by two federal district court judges in the case, Senior Judge J. Earl Major, appointed to the bench by Roosevelt a year before Kerner's father, complained that the majority opinion "is calculated to be a mischief maker." Among the lawyers opposing the convicts' petition was James R. Thompson, then an assistant Illinois attorney general. The careers of Thompson and Kerner would intersect again in 1971, days after Thompson was named U.S. attorney for the Northern District of Illinois. As his first major act in office, Thompson obtained a sweeping grand jury indictment against Kerner and several others for an alleged bribery scheme involving Kerner's favorable treatment of certain Illinois horse racing interests. Thompson played little role in developing the indictment, but he headed the government trial team that won a conviction on President's Day, 1973. The prosecution, ultimately resting on an aggressive interpretation of the federal mail fraud statute, had been underway since 1969, when Illinois racing entrepreneur Marjorie Lindheimer Everett first told an IRS agent that she had been induced seven years earlier to award stock in her company to Gov. Kerner and his associate, Theodore Isaacs. In July 1970, Kerner bristled when two special agents of the Internal Revenue Service's intelligence division, meeting Kerner in his judicial chambers, asked if he understood his rights under the Miranda ruling. He not only understood them, he told the agents, he was a dedicated defender of those rights. Nonetheless, Kerner chose not to have a lawyer present on his own behalf when the agents interrogated him about entries on his income tax returns, including several entries relating to stock in Illinois race track corporations. Many Illinoisans never again looked upon a politician with confidence or hope after the stern Jim Thompson, evoking dark images from the Watergate scandal then exploding the Nixon White House, declared that Otto Kerner, the Mr. Clean of the state's Democratic Party, had built his public reputation upon "corruption, arrogance, cynicism." Kerner's administration had modernized the state's mental health program, implemented a fair employment practice law, reformed the state's system of higher education and created the first state department for economic development. It was all for naught, Thompson declared, depicting the former governor as a public enemy. In an emotional and prescient comment, he told the judge hearing Kerner's case: "More than the career 34 | July / August 1998 Illinois Issues of Otto Kerner came tumbling down on verdict day--all the hopes and aspirations and longings of the citizens of the state of Illinois that somewhere in this field called politics, government service, that somewhere, on some occasions, there could be occasional rays of light, there could be people that the citizens could look to, could remove this dark cloud of cynicism that in these days people have hung around the very notion of public service." Nixon eventually made his mark on the Seventh Circuit, beginning with the appointment of conservative former FBI agent Wilbur F. Pell Jr. of Indiana in April 1970. By the mid-1970s, the conviction of Judge Kerner, the death of Judge Roger J. Kiley, a liberal Democrat from Chicago, and the retirement of Chief Judge Luther M. Swygert, a champion of civil liberties, began a shift on the Seventh Circuit toward a more conservative posture, reflecting the public mood. In 1976, capitalizing on the Kerner conviction and subsequent indictments of Chicago politicians, Thompson became the state's longest-serving governor. The prosecutorial power of the federal government, descending on Chicago like a stealth bomber, helped foster cynicism and defeat compassion in public affairs. And Thompson displayed no ambivalence in signing a capital punishment bill that replaced electrocution with lethal injection. The bill's sponsor called it "energy conservation" legislation. Bill Barnhart, a financial columnist for theChicago Tribune, and Gene Schlickman, a retired lawyer and former Illinois legislator, have written the first biography of Otto Kerner, Intangible Rights: The Life and Times of Otto Kerner, to be published by the University of Illinois Press. 35 | July / August 1998 Illinois Issues |
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Sam S. Manivong, Illinois Periodicals Online Coordinator |