The opinion of the court was delivered by: BARKSDALE
The question here presented arises on the petition of Wilbur V. Keegan for a certificate of innocence under the provisions of 18 U.S.C.A. §§ 729 and 730, and the objections thereto of the United States, said Code sections being as follows:
' § 729. Erroneous conviction; authorization of suit against United States
'Any person who, having been convicted of any crime or offense against the United States and having been sentenced to imprisonment and having served all or any part of his sentence, shall hereafter, on appeal or on a new trial or rehearing, be found not guilty of the crime of which he was convicted or shall hereafter receive a pardon on the ground of innocence, if it shall appear that such person did not commit any of the acts with which he was charged or that his conduct in connection with such charge did not constitute a crime or offense against the United States or any State, Territory, or possession of the United States or the District of Columbia, in which the offense or acts are alleged to have been committed, and that he has not, either intentionally, or by willful misconduct, or negligence, contributed to bring about his arrest or conviction, may, subject to the limitations and conditions hereinafter stated, and in accordance with the provisions of the Judicial Code, maintain suit against the United States in the Court of Claims for damages sustained by him as a result of such conviction and imprisonment. May 24, 1938, c. 266, § 1, 52 Stat. 438.'
' § 730. Same; certificate of innocence; admissibility; contents
'The only evidence admissible on the issue of innocence of the plaintiff shall be a certificate of the court in which such person was adjudged not guilty or a pardon or certified copy of a pardon, and such certificate of the court, pardon, or certified copy of a pardon shall contain recitals or findings that --
'(a) Claimant did not commit any of the acts with which he was charged; or
'(b) that his conduct in connection with such charge did not constitute a crime or offense against the United States or any State, Territory, or possession of the United States or the District of Columbia, in which the offense or acts are alleged to have been committed; and
'(c) that he has not, either intentionally, or by willful misconduct, or negligence, contributed to bring about his arrest or conviction. May 24, 1938, c. 266, § 2, 52 Stat. 438.'
On July 7, 1942, petitioner and divers others were indicted under the provisions of 50 U.S.C.A.Appendix, § 311, Section 11 of the Selective Training & Service Act of 1940, for conspiring 'to counsel divers persons to evade, resist and refuse service in the land and naval forces of the United States * * * '. It was charged that the petitioner was counsel for, and his codefendants were national officers, department leaders and unit leaders of, the German-American Bund. All these defendants, except three who had pleaded guilty, came on for trial before the undersigned, sitting by assignment in the District Court for the Southern District of New York, on September 17, 1942, which trial resulted in the conviction of defendant and 23 of his codefendants, one defendant being acquitted. Promptly after conviction, the petitioner and his 23 codefendants were sentenced to imprisonment. Thereupon petitioner and his codefendants who had been sentenced, began serving their sentences. Upon appeal to the Circuit Court of Appeals for the Second Circuit, these convictions and sentences were unanimously affirmed. Keegan v. United States, 141 F.2d 248. The Supreme Court granted certiorari, and on June 11, 1945, the judgment of conviction of all defendants by the District Court was reversed by the Supreme Court and the cause was remanded thereto for further proceedings in conformity with the opinion of the Supreme Court. Keegan v. United States, 325 U.S. 478, 65 S. Ct. 1203, 89 L. Ed. 1745 (four Justices dissenting). The ground of reversal, as stated in the headnote, was: 'The evidence in this case was insufficient to sustain conviction of the petitioners, * * * '.
Upon receipt of the mandate, the District Court entered an order making the mandate of the Supreme Court the judgment of the District Court, dismissing the indictment, and discharging the defendants from custody. Meanwhile, the petitioner had served a very substantial portion of his sentence of imprisonment.
Being advised that under these circumstances he was entitled to maintain his suit in the Court of Claims for damages as provided in Section 729, he filed his petition in the District Court for a certificate of innocence as provided in Section 730. Honorable John C. Knox, Senior District Judge of the Southern District of New York, being of the opinion that this petition should be considered by the judge before whom the trial was had, the petition has been referred to the undersigned. The Government objects to the granting of such certificate upon the grounds:
(I) That the record of trial shows that, even though he has been found not guilty of conspiracy in consequence of the mandate of the Supreme Court, the record of trial shows that he was nevertheless guilty of the substantive offense of counselling evasion of the military service;
(II) That petitioner was guilty of wilful misconduct which contributed to bring about his arrest and conviction; and
(III) That petitioner was guilty of conspiracy to induce others to make false statements and to furnish false information under the Alien Registration Act, 8 U.S.C.A. §§ 137, 155, 156a, 451-460, 18 U.S.C.A. §§ 9-13, as charged in a separate indictment from that upon which he was tried, and as to which indictment a nolle prosequi was entered after the decision of the Supreme Court reversing his conviction under the other indictment.
Oral argument has been heard, and briefs have been filed.
Legislative History of the Act.
It has always been recognized that the safe-guarding of society by the prosecution of crimes against it, is a sovereign attribute inherent in all governments, one of the jura majestatis, and for mistakes in exercising this sovereign right, there can be no liability against the government without its consent. It has been said that it would be injurious to the public interest if a government hesitated to prosecute a suspected guilty person for fear of striking an innocent one. Nevertheless, it cannot be gainsaid that, where a sovereign government has punished a person for a crime of which the person was entirely innocent, in fairness and justice the injured person should be compensated. He cannot be made whole. The wrong cannot be wholly righted, but in such instances, at the very least, the injured person can be compensated by the sovereign. Of course, it is distasteful to the public generally, and lawyers and judges particularly, to think that an entirely innocent person is ever punished for a crime. There are, however, certain glaring instances of this tragedy. There is the case of Lesurques, in France, just before the Revolution -- a victim of mistaken identity -- which is chronicled in nearly every book on circumstantial evidence. Then there is the English case of Adolf Beck, who was convicted and imprisoned for seven years for the crime of another man. Beck had no legal redress available, but his case was so shocking that he was granted a gratuity of 5,000 pounds by Parliament. In America, there is the case of Andrew Toth, who, after having been convicted of murder in Pennsylvania, and serving 20 years, was found to have been absolutely innocent. He had no redress at law, and the Legislature declining to provide compensation, Andrew Carnegie gave him a pension of $ 40 a month. This case was the subject of an editorial in the Virginia Law Register in September, 1944 -- 17 Va.Law Reg. 406 -- which is in part as follows:
'Had this man been imprisoned at the instance of a private person for twenty-four hours in jail and such imprisonment been shown to be false and malicious he would have recovered ample damages. But in his present situation he is without redress and the strong arm of the law which has taken out of his life twenty years, caused him to endure shame, suffering and humiliation, is withdrawn from him and he goes forth an outcast and a beggar, only saved from actual want by private charity. Is this a condition of affairs which should exist in a civilized country, boasting of men's equality before the law? In a late number of the Register we spoke of the propriety of a law allowing a man tried for an offence against the Commonwealth and acquitted, an allowance for costs. We believe such a law should be passed, despite the fact that there is no precedent in history for it.
'But in a case like Toth's it seems to us there can be no question that the State should compensate the man and that a general act should be passed permitting a man who has suffered at the hands of the law for a crime of which he was innocent, compensation to be fixed by a court of justice upon good cause shown.'
The recent case of Bertram Campbell in New York, is another tragic instance of miscarriage of justice. Campbell v. State, 186 Misc. 586, 62 N.Y.S.2d 638.
The principle that private property cannot be taken for public use, without just compensation, it not only inherent in the Constitution, but is a principle of great antiquity. It is thoroughly illogical that in a legal system an innocent person may be deprived of his liberty, which is much dearer to him than property, by his sovereign, without compensation, although he cannot be so deprived of his property. However, there seems to have been no legislation by our Government on this subject until the enactment of the statutes here under consideration, in 1938. The earliest instance of an attempt in this Country to procure the enactment of such legislation of which I am aware, was in 1912, when a bill was introduced in Congress providing for the indemnification of innocent persons convicted of crime. This bill seems to have been drafted by, and introduced largely at the instance of, Prof. Edwin M. Borchard, then Law Librarian of Congress, and to accompany the bill, an article was printed entitled 'State Indemnity for Errors of Criminal Justice', by Prof. Borchard, with an editorial preface by Prof. John H. Wigmore. This article and its preface are intensely interesting, both from a philosophical and historical viewpoint. From this article, it appears that the movement for the indemnification by the state of erroneously convicted persons, was begun toward the end of the Eighteenth Century in France, one of its most earnest champions being Voltaire, 'the friend of the oppressed'. Prof. Borchard says:
'It was probably due to the intimate correspondence between Voltaire and Frederick the Great that we find in Prussia in 1766 the first legislative expression of the obligation of the State to indemnify unjustly arrested and detained persons. This decree provided:
"If a person suspected of crime has been detained for trial, and where, for lack of proof, he has been released from custody, and in the course of time his complete innocence is established, he shall have not only complete costs restored to him, but also a sum of money as just indemnity, according to all the circumstances of the case, payable from the funds of the trial court, so that the innocent person may be compensated for the injuries he suffered."
It appears that the effective life of this decree was not long. In any event, it is not found in the Prussian Code of Criminal Procedure of December 11, 1805. However, the seeds of this idea germinated, and by the time of the publication of Prof. Borchard's article, he states that statutes, in various forms, providing for the indemnification by the state of innocent persons unjustly punished, were in effect in Spain, Portugal, Sweden, Norway, Denmark, Austria, France, Hungary, Germany, and Mexico. Speaking of the European statutes, Prof. Borchard said: 'It will be seen that they have endeavored to restrict the indemnity to those only who are clearly shown to deserve it. Therefore, first, the class that has the right to receive the indemnity is strictly defined; secondly, to exclude the undeserving, special and general limitations on the right are established from various points of view, such as censurable conduct of the claimant; thirdly, the injury indemnified is in general confined to the pecuniary loss only; fourthly, a very brief statute of limitations is provided; and, lastly, the indemnity is in other respects restricted so that the burden on the State treasury will not be oppressive.'
Although the Bill which was introduced in the Senate in 1912, heretofore referred to (and which I will hereafter refer to as the 'Borchard Bill'), failed of enactment, the two Code Sections here under consideration contain so much of the identical language of the original Borchard Bill, I am satisfied that the Borchard Bill was the forerunner of the present statute, and that a consideration of the Borchard Bill, and his explanation of its provisions, should be of great value. Therefore, from Senate Document No. 974, 63rd Congress, 3rd Session, p. 31, I quote as follows the Bill and Prof. Borchard's comments on the various sections thereof:
'A Bill to grant relief to persons erroneously convicted in courts of the United States.
'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person who, having been convicted of any crime or offense against the United States, shall hereafter, on appeal from the judgment of conviction or on the retrial or rehearing of his case, be found to have been innocent of the crime with which he was charged and not guilty of any other offense against the United States, or who, after inquiry by the Executive has received a pardon on the ground of innocence, may, under the conditions hereinafter mentioned, apply by petition for indemnification for the pecuniary injury he has sustained through his erroneous conviction and imprisonment.
'The bill is limited to convictions in the Federal courts -- that is crimes or offenses against the United States. It is limited to those only who have been convicted and imprisoned under a judgment of conviction, and whose innocence is subsequently established. The right to relief is discretionary only. It is called here indemnification, although some other word may be substituted. The relief is limited to the pecuniary injury, thus excluding all compensation for moral injury, which in case of conviction for crime is generally the more serious element of injury. This limitation follows in general the European statutes, and has as its object the restriction to its narrowest limits (while acknowledging the principle) of a demand on the State treasury. When the Innocence is established after the wrongful conviction plus imprisonment, the indemnity should cover the injury during the whole period of detention, both before and after trial. The expression 'of the crime with which he was charged and not guilty of any other offense against the United States' has been used to cover cases where the indictment may fail on the original count, but claimant may yet be guilty of another or a minor offense. Therefore, if the accused has committed any offense against the United States, his right to relief is barred. Some may raise the objection that the right to petition the United States is granted in the bill, even though the accused may have a private right of action against any individual for false imprisonment or malicious prosecution. I do not consider it desirable to insert this limitation in the bill, though if there is a general feeling that the accused must exhaust all his other remedies, either as a bar to this relief or as a condition precedent to demanding it, words to this effect will have to be inserted. My own feeling is that the Court of Claims should take into consideration, under section 9, all matters connected with the case, including the other remedies of the accused, whether he had a possible right of action against third persons, how much that right may have been worth, the possibility of securing and executing judgment and particularly the extent of the State's participation in the wrong inflicted on the individual.
'Sec. 2. That the claimant may, within six months after he has been finally acquitted or pardoned on the ground of innocence, petition the Court of Claims for the relief granted in this Act.
'A very short statute of limitations is fixed, following the European statutes in this respect. The claim is to be brought before the Court of Claims, which has been granted jurisdiction over similar awards made by the United States to individual claimants. (See, for example, the French spoliations act, 23 Stat.L. 283.)
'Sec. 3. That the court is hereby authorized to make all needful rules and regulations, consistent with the law, for executing the provisions hereof.
'This follows in general the provisions of section 2 of the French spoliations act (23 Stat.L. 283).
'Sec. 4. That the claimant shall have the burden of proving his innocence, in that he must show that the act with which he was charged was not committed at all, or, if committed, was not committed by the accused.
'The cases in which the relief can be claimed are limited here to those only in which the claimant shall affirmatively prove his innocence. Hence only a most flagrant case of injustice could be brought within the terms of this section. In providing that the claimant must show that the crime was not committed at all, or, if committed, was not committed by the accused, I am following in general the provisions of the law of Sweden and Hungary. It is likewise intended to limit the relief to cases in which the justice of an award is obvious.
'Sec. 5. That the claimant must show that he has not, by his acts or failure to act, either intentionally or by willful misconduct or negligence, contributed to bring about his arrest or conviction.
'This carries out simply the equitable maxim that no one shall profit by his own wrong or come into court with unclean hands. It follows the provisions generally found in the European statutes, although these provide, for example in the German act, that gross negligence must exist to bar the right. In the United States we are opposed to fixing degrees of negligence. (See 18 Harvard Law Review, 536, 537.)
'Sec. 6. That the Court of Claims shall examine the validity and amount of all claims included within the description of this Act; they shall receive all suitable testimony on oath or affirmation and all other proper evidence; and they shall report all such conclusions of fact and law as in their judgment may affect the right to relief.
'In its general provisions this section follows section 3 of the French spoliations act (23 Stat.L. 283). Under it the Court of Claims would, of course, receive the record from the trial court, the appellate court, and the second trial court, in order to determine the justice of relief in the case. They may also call for oral or written testimony whenever desired. This section gives the court full power and opportunity to arrive at the facts.
'Sec. 7. That upon proof satisfactory to the Court of Claims that the claimant is unable to advance the costs of court and of process, the cost of obtaining and printing the record of the original proceedings and of securing the attendance of such witnesses as the chief justice or the presiding judge of the Court of Claims shall certify to be necessary, and the service of all notices required by this Act, shall be paid out of any general appropriation made by law for the payment and satisfaction of private claims, on presentation to the Secretary of the Treasury of a duly authenticated order, certified by the clerk of the Court of Claims and signed by the chief justice or, in his absence, by the presiding judge of said court.
'The claimant will in most cases be a poor person and it is desirable that the expense of bringing up the record should not fall as a burden on him. This expense might, in fact, prevent the poor claimant from bringing suit at all. It should, therefore, be provided that in such cases where the chief justice, or the presiding judge of the Court of Claims, considers that the claimant has made out a prima facie case of erroneous conviction and his own innocence that the expense of bringing up the record shall be borne by the Treasury. Where the claimant does not make out a prima facie case coming within the provisions of this Act, the chief justice of the Court of Claims would not make the certification necessary to have the Treasury bear the expense.
'Sec. 8. That the court shall cause notice of all petitions presented under this Act to be served on the Attorney General of the United States, who shall be authorized, by himself or his assistant, to examine witnesses, to cause testimony to be taken, to have access to all testimony taken under this Act, and to be heard by the court. He shall resist all claims presented under this Act by all proper legal defenses.
'The purpose of this section is self-explanatory. In terminology it follows the provisions of section 4 of the French spoliations act (23 Stat.L. 284).
'Sec. 9. That the Court of Claims in granting or refusing the relief demanded shall take into consideration all the circumstances of the case which may defeat or in any other way affect the right to and the amount of the relief herein provided for, but in no case shall the relief granted exceed $ 5,000.
'The granting of the relief is discretionary, as was stated in the beginning. Most of the European statutes generally present a list of conditions which shall bar or limit the right to the relief, but I consider it best to follow the French law, which makes no mention of limiting conditions, but leaves the judge to determine from all the circumstances of the case whether any and how much relief is proper. The relief is limited to $ 5,000. This provision is to limit any exorbitant claims which may be brought.
'The Court of Claims is given jurisdiction over the matter in preference to the trial court, or the appellate court, or the second trial court (which presumably could judge better of the merits and circumstances of the case) in order to maintain the traditions of American judicial procedure. If the jury or trial court were given the right to pronounce on the propriety of an award in a case of acquittal (as is the case in some of the European countries), it would bring into our law a new kind of acquittal, in which the jury or judge could acquit with degrees of approval or sympathy. The distinction would be an odious one to make. While it would be desirable to have the benefit of the special knowledge of the case secured by the trial court or the jury, still it is better to forego this advantage for the sake of ...